S v Mathonsi

• Jurisdiction: South Africa
• Judge: Madondo J and Sishi J
• Judgment Date: 26 July 2011
• Docket Number: AR 294/2010
• Hearing Date: 04 January 2011
• Counsel: Mbulelo Mfungula (attorney) for the appellant. AA Watt for the State.
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Madondo J (Sishi J concurring):

[1] The appellant, Edmund Mathonsi, was, in the regional court sitting at Richards Bay, convicted of murder and sentenced to 20 years' F imprisonment. With the leave of this court he now appeals against conviction only.

[2] The appellant's contention is that, had the learned regional magistrate not taken into account the previous inconsistent statement made by a hostile witness, there would have been no evidence against the G appellant. It has, accordingly, been argued on his behalf that the State failed to discharge the onus resting on it to prove the guilt of the appellant beyond reasonable doubt.

[3] To the contrary, it has been argued on behalf of the State that the statement in question had sufficient evidential value to such an extent H that the learned regional magistrate, when evaluating, assessing and considering all the evidence tendered before him in its totality, was entitled to take it into account.

[4] The facts and the evidence giving rise to this appeal are briefly the I following: On 10 June 2007 at 00h30 Njabulo Gumede, the deceased, and Sandile Thamsanqa Banda (Banda) were at Madunga Bar purchasing beers. When they exited the bar two male persons followed them on- to the road. On the road there was a female person walking in front of them. Whilst they were walking along the road a voice came from behind ordering them to stop, but the deceased responded, saying that he would J not stop. Shortly thereafter, two gunshots were fired behind them. In

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consequence thereof, Banda ran behind the bar to his home. On his A arrival at home, he reported the shooting incident to his mother. When he indicated to his mother that he wanted to go back in order to ascertain what had happened, his mother objected to that, saying that it was then late at night and not safe.

[5] The female person who had been walking ahead of the deceased and B Banda when the two gunshots were fired was Zandile Hlatshwayo, and she testified that, after hearing the gunshots being fired behind her, she became scared to proceed with her journey. She then returned to the bar and entered the bar premises through a small gate. At the time when she left the bar premises, prior to the shooting incident, she saw the appellant C and Mandlenkosi Ephraim Nxumalo, his erstwhile co-accused, standing on the veranda of the bar. On her return to the bar she found the appellant and his erstwhile co-accused still standing on the same spot where they had been on her departure from the premises. On the following day at 07h00 the appellant telephoned her and told her that a dead body had been found lying outside the bar. D

[6] Banda had not seen who the two male persons were that followed him and the deceased from the bar on the previous night. At 05h30 on the following day Banda returned to the scene of the shooting in order to E ascertain what had happened. On his arrival there he found the body of the deceased lying in the neighbourhood of the bar. Whilst Banda was on the scene Mrs Sharon Milda Mdletshe (Mdletshe), a member of CPF, a community policing forum, arrived and summoned the police.

[7] According to Mdletshe at 07h15 she was on her way to open her tuck F shop and, when she walked past Madunga Bar, she saw a group of people standing on the dirt road. She proceeded to the scene and she found the dead body of a man lying on the dirt road. Amongst the people who had converged there was the appellant. On enquiring from him what had happened, the appellant said that he had no knowledge thereof. At the G time the appellant was carrying a spent cartridge in his hand, wrapped in plastic. Whilst they were talking (Mdletshe and the appellant), the appellant handed the spent cartridge over to Mdletshe. She later handed it over to the police on their arrival at the scene. This finds corroboration in the evidence of Constable Sabelo and of the investigating officer, Thokozani Clement Mkabela, who attended the scene of the crime. H

[8] According to the investigating officer, Mkabela, he also picked up a 9 mm spent cartridge from the ground and received the other one from Mdletshe which she said she had received from the appellant. Following on information he had received on 16 June 2007 Mkabela took I appellant, his erstwhile co-accused and Muntu Nkosi Cele to Richards Bay Police Station for investigation purposes.

[9] On Monday 18 June 2007, Cele stated that he was not involved in the commission of murder, but the appellant and his erstwhile co-accused had given him two 9 mm pistols for safekeeping. In fact they had J

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A requested him to conceal the said firearms. Cele then took Mkabela and other members of the police service to the garden of his home where he dug out three firearms. On arrival at his homestead the police and Cele found Cele's aunt, Beauty Cele, present at home. The police then explained to her the purpose of their visit to the homestead and invited B her to be present while Cele was digging up the firearms from the garden. Three firearms were recovered, ie two 9 mm pistols and a 7,65 mm pistol, wrapped in a plastic bag in the garden. The police confiscated the three firearms. Mkabela then requested Constable Ndawonde to obtain a statement from Cele, with regard to the firearms found in his C possession.

[10] The firearms confiscated from Cele and two spent cartridges, ie the spent cartridge received from the appellant and a spent cartridge Mkabela lifted from the scene were sent to Amanzimtoti Ballistics for D examination and comparison. On examination a link between the firearms found in possession of Cele and the spent cartridges was established in that the cartridges were found to have been fired from the two 9 mm pistols.

[11] On 18 June 2007 the erstwhile co-accused made a pointing-out E statement to Superintendent Mthimkhulu of Richards Bay Police Station. He took Mthimkhulu to the spot where the deceased was shot dead. He, the erstwhile co-accused, stated that he and the appellant each fired a single shot.

[12] The erstwhile co-accused also stated that there were boys that were F fighting at the bar and one of them possessed a knife. The appellant dispossessed him of the knife. Later, the boy returned to the appellant and told him that he was then leaving. The appellant gave him the knife and he went away. However, the boy later returned to report to the appellant and his erstwhile co-accused that there were people who G wanted to stab him outside. The appellant and the erstwhile co-accused went outside to investigate. The boys ran away in different directions. The appellant then drew his 9 mm pistol and fired a shot at the deceased and he, the deceased, fell down. The erstwhile co-accused also drew his 9 mm pistol and fired a shot into the air. On the following day he H returned to the scene. He was arrested on 16 June 2007. However, when he testified at the trial the erstwhile co-accused denied making a pointing-out and stated that the statement was a product of coercion. He denied any involvement in the commission of the crime of murder.

I [13] Cele, who was employed as a general worker at the bar, testified that between 23h00 and 24h00 on 10 June 2007 he was on duty. The appellant was in charge of the bar on the day in question. A girl came in and reported to the appellant that some boys were fighting outside and that some of them were carrying knives. The appellant went outside to investigate. On his return the appellant was carrying a knife which he J claimed to have dispossessed from one of the fighting boys. At

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24h00 Cele and his girlfriend left the bar premises for his home. On the A following day he reported for duty. The appellant and his erstwhile co-accused told him that a dead body of a male person had been found lying in the neighbourhood of the bar premises.

[14] On Saturday, Cele, the appellant and the erstwhile co-accused were B taken by the police for investigation. On Monday 18 June 2007 the police took Cele to his homestead to dig the firearms which were buried in the garden of his premises. He told the police that the firearms belonged to his...