SIMPHIWE MABHUTI SONTSHANTSHA JUDGMENT

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE: MTHATHA In the matter between CASE NO:121/08 THE STATE and SIMPHIWE MABHUTI SONTSHANTSHA Accused JUDGMENT PAKADE J: Background [1] The accused is charged with the murder of his stepfather by stabbing him with a knife with intent to kill him. The offence is alleged to have been committed at Pola Park area within the outskirts of the District of Mthatha. [2] Upon arraignment the accused pleaded not guilty to the charge of murder. Mr Gabavana, Counsel for the accused, confirmed the plea and raised self defence as the defence of the accused but did not

2 outline it. It is clear therefore, in my view, that by raising self defence, the accused was placing himself at the scene of crime and is thus admitting actus reus. All that remains is for the accused to put the details of his defence to the state witnesses under cross examination before confirming them in his evidence (President of the RSA v South African Rugby Football Union 2000(1) SA 1 (CC)). State Case [3] The State handed up the following documentary exhibits with the consent of the accused and his counsel, namely, section 220 admissions which embody the post mortem report. These are marked exhibit A and B respectively, in the record. [4] As depicted in the post mortem report, the chief post mortem finding is that the deceased sustained a cut on the left subclavion artery and left carotid artery. As a result of these injuries plus minus 2500 mls of liquid blood was found in the left pleural cavity. The cause of death is thoracic injuries caused by a sharp instrument. [5] It is apposite to state right from the outset that the State has a duty to prove its case beyond a reasonable doubt and that an accused person does not have any duty to prove his innocence. Once the State has made up a prima facie case as at the closure of its case, it is only then that an accused person may testify in his defence. Before that he has a duty to cross-examine every state witness that testifies against him. In order to secure a conviction the State must show that the defence 2

3 raised is false beyond a reasonable doubt while at the same time showing that it has proved the guilt of the accused beyond a reasonable doubt. At the same time the Court need not reject the state case in order to acquit the accused but must be satisfied that the defence version is reasonably probably true. The accused must establish his defence on a balance of probability, namely, his explanation must raise a defence valid in law which is reasonably probably true. [6] I must now consider if the state has proved its case beyond a reasonable doubt or the accused has raised a valid defence which entitles him to an acquittal. [7] The State relied on the evidence of two witnesses, Mrs Nomvano Mbovane (Nomvano) and Mrs Zukiswa Mhlawuli (Zukiswa). Nomvano does not provide direct evidence implicating the accused with the stabbing of the deceased. The essence of her evidence is that she saw the accused carrying a knife after he had had a meeting with the deceased in the passage of the shop while the latter was running away from the spot of the meeting. The deceased then fell down and bled on the chest while the accused proceeded to the direction of the shop building. It emerges from her evidence further that the accused and the deceased shared accommodation together with accused`s mother and the accused. In 2004 the deceased killed accused`s mother by stabbing her. Nomvano did not testify that the two were quarrelling when she first saw them in the passage. The cross examination of Nomvano by Counsel for the defence did not have any 3

4 direct substantial impact on her. In fact, only two questions which were not even relevant were asked to the witness. Her testimony is corroborated by the accused`s defence which places him at the scene where the stabbing of the deceased occurred which then makes it common cause between the state and the defence that a knife was indeed used in the scene of crime. [8] Zukiswa is the cousin of the accused. On the 22 April 2007 the accused visited her in her place of work and reported to her that he had stabbed the deceased. He then told her the circumstances under which the stabbing occurred. The deceased found him sitting with his friends in a shop and requested to talk to him outside. They both went outside with the accused following the deceased. When they were walking, the deceased drew out a knife and wanted to stab him. The accused pushed him and the knife fell off the deceased`s hand. The accused picked it up and stabbed the deceased. [9] This piece of evidence was not challenged, as it should have been if it was disputed by the accused. This principle of cross examination which emanates from English law in Browne v Dunn (1893) 6 R67 (HL) was reaffirmed by the Constitutional Court in President of SA v South African Rugby Football Union referred to at paragraph [2] above. The Court said in paragraph [61] page 36: The institution of cross examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular 4

5 point, to direct the witness`s attention to the fact by questions put in cross examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness`s testimony is accepted as correct. This rule was enunciated by the House of Lords in Brown v Dunn (1893) 6 R 67 (HL). The learned Justices of the Constitutional Court put further clarity on the principle in paragraph [63] at page 37 of the judgment: The precise nature of the imputation should be made clear to the witness so that it can be met and destroyed, particularly where the imputation relies upon inferences to be drawn from other evidence in the proceedings. It should be made clear not only that the evidence is to be challenged but also how it is to be challenged. This is so because the witness must be given an opportunity to deny the challenge, to call corroborative evidence, to qualify the evidence given by the witness or others and to explain contradictions on which reliance is to be placed. [10] The rule is, however, not inflexible. It is not necessary to cross examine on the point if it is clear that prior notice has been given to the witness that his honesty is being impeached or that such intention is otherwise manifest. [11] The evidence of Zukiswa turned out to be the only one implicating the accused and on which the prosecution relies as an informal admission of the stabbing of the deceased. Obviously on hindsight and on realising 5

6 the negative effect of this piece of evidence on him, the accused disavowed it in his evidence and gave a different version. His version of the events is that deceased called him to a passage. He asked if he had cooked at home and upon the accused answering in the affirmative, the deceased went home to eat. Deceased came back and called him again to the same passage. He asked for his cellular phone. The accused offered to give him another one at a later stage as the one that was in his possession belonged to his girlfriend. The deceased drew out a knife and opened it. The accused, believing that he was attacking him, then grabbed deceased`s hand which was holding the knife and a struggle ensued over the possession of the knife. The accused overpowered the deceased who got stabbed in that process and the knife fell down. The deceased ran away and the accused picked up the knife and went to the shop to show it to his friends. [12] It was only the accused and the deceased in the passage. The accused is the only person left to give credible evidence of how the deceased sustained the two fatal injuries on the chest region. The nature and the position of the wounds in the deceased`s chest are inconsistent of having been inflicted in the course of the struggle over the possession of the knife. The plausible indication is that they were inflicted one after the other but certainly not at the same time. On the infliction of the first wound in self defence there could have been no need to inflict the second one as the deceased could have been rendered powerless and ineffective by the first one. The inference is therefore irresistible that both wounds were inflicted intentionally when the deceased was powerless and defenceless. 6

7 The version he gave on this point is not reasonably possibly true. His demeanour had the hallmark of a lying witness and this makes it impossible for me to accept his evidence. He did not answer honestly, satisfactorily, clearly and candidly questions which were put to him by the state counsel. He has contradicted himself in many ways. On the contradictory versions of the accused and Zukiswa it is prudent to accept the more probable version. [13] The evidence of Zukiswa was not only unchallenged but the version of the accused was not put to her. The accused had a duty to introduce his defence by putting it to state witnesses who gave evidence in the trial especially Zukiswa who implicated him. As the accused was legally represented by an experienced advocate of this Court and not appearing in person I have, without hesitation, to accept the unchallenged evidence of Zukiswa that the accused visited her in her workplace and told her that the knife fell in the course of a struggle between him and the deceased and that he picked it up and stabbed the deceased on the chest. That version is more probable than that of the accused. There is nothing in the evidence of Zukiswa that the accused told her that he was against the wall when he stabbed the deceased. He could not have said so because he had told her that he was following the deceased. This is an informal admission of the stabbing after the knife fell from the struggle between the two. The only irresistible inference from this admission is that the stabbing took place when the deceased was no longer posing an imminent danger to the accused as the knife had fallen down. That the accused was able to pick the knife up is an 7

8 indication that it fell on a spot which was convenient for him to pick it up uninterrupted by the deceased. He had an opportunity to run away after picking the knife up. The law of self defence prefers that a person should run away rather than to kill. If he prefers to kill when he has such an opportunity then he is guilty of murder. [14] Having considered all the facts of this case I find that the state has proved its case beyond a reasonable doubt. The defence of self defence raised by the accused is rejected as palpably false beyond a reasonable doubt. I find instead that the accused has exceeded the reasonable bounds of self defence and has thus become the aggressor. Verdict The accused is found guilty of Murder. L. P. Pakade JUDGE OF THE HIGH COURT Counsel for the State: Counsel for the Accused: Adv Nxumalo Adv Gabavana Matter Heard on: 2, 3, 4 August 2010 Judgment delivered: 6 August