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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

BHEKANI HLONGWA APPELLANT

AND

THE STATE ....RESPONDENT

CORAM : HEFER, MILNE et KUMLEBEN JJA
HEARD : 18 MARCH 1991 DELIVERED : 21 MARCH 1991

JUDGMENT

KUMLEBEN JA/

1.

KUMLEBEN JA:

On 13 August 1988 Patrick Khumalo was fatally stabbed in the chest. This led to the appellant being indicted for murder before Gordon AJ and two assessors in the Durban and Coast Local Division of the Supreme Court. He was found guilty as charged; but with extenuating circumstances proved. The sentence was one of five years' imprisonment. The appellant was granted leave by the court a quo to appeal against his conviction. In addition a question of law, based on an alleged irregularity during the course of the trial, was reserved for consideration by this court in terms of s 319 of the Criminal Procedure Act, 51 of 1977.

The evidence of the State explaining how the deceased came to be killed, and implicating the appellant, was that of a single eye-witness, Patrick Nyathi. He was 18 years old at the time he testified on 7 November 1988. His evidence was to the following

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effect.

Nyathi and the appellant were friends and

worked for the same employer. On the evening in
question the two of them went to a shebeen located in a

house or shack, referred to in evidence as Nzuza's
place. They expected to find their respective girl

friends there. They first entered a room where drinks
were available and were there for about an hour.
During this time Nyathi remained with the other three
but did not drink as he was an abstainer. (In his
evidence-in-chief he said "I just don't drink at all",
but in cross-examination he watered this down by saying

"I normally do not drink" and at a later stage in his
evidence said "I'm not a drinker". ) When he in due
course entered the room where people were dancing, he
found his girl friend Zodwa in the company of another
young man. Nyathi requested him to accompany him
outside the house where Nyathi asked him whether Zodwa

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3. was his girl friend. This person replied that she was. Nyathi told him that she was also his girl friend. Contrary to what one might have expected, this conflict of interest did not give rise to a dispute or worse. Nyathi simply said to him: "[It] was okay, he might as well go along with her because nothing could be done if she was in love with him as well." Although Nyathi was upset by this disclosure, he remained on a friendly footing with this other person and the two of them re-entered the house.

Next an unknown "senior man" appeared and

offered Nyathi some free advice. (He was Patrick
Khumalo, later the deceased and henceforth referred to
as such.) He said that Nyathi should not keep company
with Zodwa because she has numerous boy friends. In
Nyathi's words: "He told me to beware that whereas I

was considerate towards the other young man, there are

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4.

those who would not be considerate to me. He advised
me to leave her alone". It follows that the deceased
must have somehow overheard the conversation between
Nyathi and her other boy friend. Before either of

them could reply, the appellant appeared, pulled out a
clasp knife from his right-hand trouser pocket and
opened it. The moonlight outside enabled Nyathi to see
that it was an Okapi knife with a red handle and a
blade about seven centimetres long. The appellant
stabbed the deceased on the left upper arm. The
deceased ran away with the appellant, Nyathi and
apparently others chasing after him. Nyathi
remonstrated with the appellant but to no avail.
Under cross-examination he said that he also
remonstrated with a certain Mandla and another Sipho,
implying that they were at that stage part of the
assault group. During the chase the appellant stabbed
the deceased once more, this time in the back between

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5. his shoulder blades. This took place when Nyathi was no more than five paces behind the appellant. Nyathi pleaded with the appellant not to assault the deceased as he had "done nothing bad" to him (Nyathi) . As a result of the second stabbing the deceased fell next to a stream. Sipho and Mandla were at hand at this stage. After the deceased had fallen, Sipho took a black wallet from the possession of the deceased, but, in some or other manner not explained by Nyathi, managed to leave his brown balaclava cap at the scene in the vicinity of the deceased.

The foursome (Nyathi, the appellant, Mandla

and Sipho) left together. When asked why he had not
attempted to assist the injured person, he said that
he could not because the appellant had threatened to
stab him when he pointed out to the appellant that he
had attacked the deceased without reason. After they

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6. left the deceased lying there, they did not disperse but went to the garage where Nyathi and the appellant were employed. At no stage on their way there did the appellant leave the other three for any purpose. When asked why he spent the night with them at the garage he said: "I was compelled really to sleep there. There was no other place where I could possibly find to sleep." And when asked why he did not break away from his companions to report the matter to the people at the shebeen, in order that the deceased could be helped, he replied: "It wasn't easy for me to do that. I was part of the group, I was going along with them. How would I explain my departure from them - where could I say I was going if I did so?" He was asked by the court whether he was certain that Sipho and Mandla did nothing to the deceased. In reply he gave this somewhat confused and contradictory answer:

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"Well I'm sure that they didn't do anything to him while I was with them all. If they had done it they could have done it when I was not with them all but then I was the person who was watching the deceased."

Certain other State evidence, which is common

cause or not disputed, ought to be mentioned. Detective
Sergeant Govender stated that a balaclava cap was found
next to or close to where the deceased lay. The
deceased's lover, Mrs Duma, noticed that the lining of

the deceased's trouser pockets had been turned inside
out. The findings in the post-mortem report, which
were admitted, confirmed the evidence of Nyathi on the

infliction of the two stab wounds.

The appellant gave evidence denying that he

was in any way involved in the murder. He gave this
account of his movements that night. He went alone to
the Nzuza shebeen. There was an incident involving him
and Thulani, who was Zodwa's brother. He demanded

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money from the appellant, felled him with his clenched

fist and took his money. The appellant retreated to

another house ("Duma's place") which was next door. He
remained there until he saw that Thulani had left
Nzuzu's shebeen before he returned there. At a later

stage Nyathi, Mandla and Sipho arrived. The four of

them sat drinking and dancing. Later on they left the

shebeen to go home. He, however, returned to Duma's
house, which was apparently also a shebeen, in order to
buy some beer. His three companions waited for him at
a spot about 20 metres from Duma's house. When he
arrived there it had already closed and there was no
response to his knocking on the door. He turned to
rejoin his friends but they had gone. He decided to
walk on alone, presumably towards his home, along a
footpath. He saw two men approaching him in single
file. The first greeted him and he returned the
salutation. However, as he was about to pass him,

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this person blocked hís path, produced a knife and

demanded money from him. The appellant shouted out

"Why do you stab me?" With that someone from Nzuza's

shebeen said: "You, come here." This caused the two
men to run away. The appellant walked on and caught up

with his three companions. He told them what had

happened. They proceeded to the garage where the four
of them spend the night. No one produced a wallet at

the garage. He denied ever having stabbed the
deceased. I should add that under cross-examination
the appellant admitted that in the proceedings in terms
of s 119 of the said Act he had told the magistrate

that one of the two persons who confronted him as he
walked home, grabbed his clothing and the other person
was armed with a knife, whereas at the trial he was
explicit in saying that only one person was involved.
The record of the s 119 proceedings was handed in as
Exhibit F. He is recorded as having said:

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"One of them did grab me as indicated by holding the lapels of my apparel. The other person was armed by means of a knife. After the first person grabbed hold of me, the second person, who had a knife in his possession, demanded me to produce money."

The appellant called Mr Mandla Ngubane to testif y on his behalf. He said that he, Nyathi and Sipho had gone to the Nzuza shebeen where they met the appellant. He confirmed the appellant's version to the extent that he said that the appellant left them to buy some beer at Duma's house; that they did not wait for them to return before proceeding on their way; that he caught up with them and told them that two people had tried to rob him.

Gordon AJ at the outset of his judgment

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candidly stated that deciding whether the State had proved the guilt of the appellant was no easy task. The court was mindful of the fact that Nyathi was a single witness and that his evidence was unsatisfactory in certain respects. For this reason due regard was paid to what was said in S v Saul and Others 1981(3) SA 172(A) and particularly to the following passage at 180 E - G (which was quoted by the trial court in the judgment):

"There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness (see the remarks of RUMPFF JA in S v Webber 1971 (3) SA 754 (A) at 758.) The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, wïll decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told."

After referring to the defects in appellant's and

Mandla's evidence, the court found both of them to be

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untruthful and unreliable and rejected their evidence. (Without necessarily subscribing to all the reasons given for this conclusion, one can, with respect, confidently endorse it.) As regards the evidence of Nyathi, the court concluded, despite its defects, that there was corroboration of his evidence and that it could be accepted. The relevant, and critical, reasoning which led to this conclusion appears from the following passage in the judgment:

"In weighing up all this evidence in the light of what we have stated, we find that notwithstanding the shortcomings in Patrick's evidence, he Patrick told the truth when he described to us the wounding of the deceased. His descriptions of the wounds which he observed the accused inflict upon the deceased are absolutely accurate, when considered in the light of the postmortem report and are in addition corroborated by the observations of Gloria, not only as to the nature of the iniuries suffered by the deceased, but also as to the place where the body was found.
There is no evidence that Patrick saw the deceased's body the following day. There is no suggestion that Patrick himself did the killing
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and falsely implicated the accused. Patrick was a friend of the accused, Sipho and Mandla, yet the accused would have us believe that he falsely implicated both the accused and Sipho in crimes, and places Mandla in the position of an eye witness. Patrick was a friend of theirs and it is in our view improbable that he would implicate all of. them in these various respects. Beyond reasonable doubt Patrick told the truth as to how the deceased was killed." (I italisize.)

Before commenting on this reasoning and

conclusion, it is, I think, necessary to stress the
extent to which Nyathi's evidence was deficient. If he
was bent on locating his girl friend, it is somewhat

strange that he spent about an hour in another room
whilst his friends were drinking before he went to see
whether she was there. His evidence on whether he was
drinking during that time, or whether he ever imbibes,

is, as I have pointed out, contradictory. It is
unlikely that the attention this other young man paid

to Zodwa would have been treated with such equanimity.

It is, if anything, more improbable that an unknown

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14. adult overhearing this conversation would have intervened and offered the alleged advice. The fact that, on Nyathi's evidence, the appellant at this stage attacked and stabbed the deceased for no reason whatsoever, can hardly be accepted. That part of his evidence describing the chase, and the stabbing of the deceased the second time at or. near the stream, cannot be faulted. On his version, however, he is quite unable to explain why he accompanied the appellant and the other two from the scene of the crime and spent the night with them: his answers were pitiful and patently false.

Viewing his evidence as a whole, one is left

with the inescapable impression: that he was giving an
untruthful account of events, particularly with
reference to what happened before the deceased was
stabbed for the first time; that a further assault may

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15. well have taken place more or less as described by him; that the motive was in all probability robbery; and that, if the appellant was not a participant in the commission of this offence, he certainly condoned it. These misgivings and reservations concerning the evidence of Nyathi were shared by the trial court. With reference to his evidence it is said in the judgment:

"We must record that we feel that the evidence as a totality, even in its absolutely contradictory form, does not constitute the whole truth of the circumstances surrounding the incident in question, nor does it give any satisfactory clue to what actually surrounded what occurred."
and
"In fact we feel that he did not tell the whole, or the accurate truth of what happened immediately before his discussion with the deceased."

Reverting to the judgment, and particularly the passage quoted from it, the court

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found corroboration of Nyathi's evidence in the
evidence of Gloria Duma and the post-mortem report.

But such evidence does not justify the conclusion that

"Patrick told the truth when he described to us the
wounding of the deceased", if by that observation is
meant that he necessarily told the truth as regards the

identity of the deceased's assailant or the stabbing on
the first occasion. He may well have seen the

infliction of the two stab wounds and observed where
the deceased ultimately fell. But his evidence in this
regard does not serve to corroborate any other details
of his evidence or guarantee that such are truthful and
reliable. It is true that he did implicate his friend
Sipho in the crime of robbery (actually on his version

it may have amounted to no more than theft) but I do
not consider that this fact really serves to confirm
his evidence as to the identity of the person who
fatally stabbed the deceased. In this regard what was

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17. said by Schreiner JA, although with reference to the evidence of an accomplice, is pertinent in this case too:

"The cautious Court or jury will often properly acquit in the absence of other evidence connectinq the accused with the crime, but no rule of law or practice requires it to do so. What is required is that the trier of fact should warn himself, or, if the trier is a jury, that it should be warned, of the special danger of convicting on the evidence of an accomplice; for an accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth. This special danger is not met by corroboration of the accomplice in material respects not implicating the accused, or by proof aliunde that the crime charged was committed by someone;"
(I italisize: the passage is taken from Rex v Ncanana 1948(4) SA 399 (A) 405.)

As Holmes JA pointed out in S v Hlapezula and Others 1965(4) SA 439 (A) at 440 E - F: "by reason of his [an accomplice's] inside knowledge, he has a deceptive

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facility for convincing description - his only fiction being the substitution of the accused for the culprit." It is to my mind an open question whether there is not sufficient evidence for Nyathi to be treated as an accomplice. Be that as it may, the same danger of deceitful substitution presents itself in this case. It would appear that this consideration may well have been overlooked, or not have been given sufficient weight, by the trial court in its finding that there was corroboration of Nyathi's evidence. As a spectator, or a participant, Nyathi was in a position to give a convincing account of what happened (not that he did so) but at the same time substitute the appellant for Mandla or Sipho or perhaps himself.

For these reasons I am of the view that,

particularly since the evidence of this single eye-
witness was unreliable in a number of respects,

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Nyathi's evidence, despite the poor evidence of the appellant and his witness, ought not to have been regarded as sufficient to prove the guilt of the appellant beyond any reasonable doubt.

The alleged irregularity related to the use of a different interpreter to translate the evidence of one of the witnesses. Since the appeal on the merits must succeed, there is no point in considering it.

Lastly, an aspect of the transcribed record

calls for comment and must be drawn to the attention of
the Registrar of the court a quo. The names of the
persons putting and answering every question have been

typed in the record rather than such identification
only when a change of personae arises. This is to an
extent a hindrance to the reader and no doubt entails

some waste of time and perhaps money. This procedure

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20. should be discontinued.

The appeal is allowed. The conviction and sentence are set aside.

M E KUMLEBEN JUDGE OF APPEAL

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