S v Mhlungu

• Jurisdiction: South Africa
• Judge: Patel JP and Mbatha J and Chili AJ
• Judgment Date: 16 May 2014
• Docket Number: AR: 300/13
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 02 May 2014
• Citation: 2014 JDR 0972 (KZP)

Patel JP

Introduction

[1]

The appellant, Mr Bandile Mhlungu, was convicted of the murder of Nkosinathi Winfred Buthelezi (the deceased) and sentenced to 15 years' imprisonment. He unsuccessfully applied for leave to appeal from the trial court. Leave against conviction was, however, subsequently granted by the Supreme Court of Appeal.

The merits of appellant's conviction

[2]

Three witnesses testified for the State: the deceased's wife (Nompumelelo), his daughter (Noluthando) and his son (Mxolisi). Mxolisi was the State's main witness as he testified that he had seen the appellant shoot the deceased.

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[3]

First to give evidence for the State was Nompumelelo. She testified that on 11 March 2009 at approximately 9 pm she was watching television with three elderly children and other small children in the bedroom when she heard a sound emanating from the garage. She heard the deceased arguing with someone and then heard two shots being fired. She proceeded to the window in the sitting room where she saw two young men carrying firearms. They went towards the deceased's vehicle, a blue Toyota Tazz. One entered the vehicle. A third man was in the garage. Mxolisi exited the house but was brought back by the third man. Mxolisi was instructed to return to the house. She then met Mxolisi at the back door and ran with him out of the house. They jumped over the fence and into the neighbour's yard.

[4]

According to Nompumelelo, Mxolisi said he knew who shot his father, and that it was the appellant. Mxolisi further relayed this information to the police.

[5]

Nompumelelo admitted to knowing a certain Phumla, as someone who borrowed money from the deceased. She had known that the deceased had a number of girlfriends. After the deceased's death Mxolisi told her that Phumla and the deceased had a child together. During cross-examination Nompumelelo said that she was not aware of any problems between Phumla and Mxolisi.

[6]

Nompumelelo confirmed that the deceased went to a mechanic to fix his car, but did not know that the repairs were carried out at the appellant's uncle's home. According to her Mxolisi would sometimes accompany the deceased when the deceased went to repair the cars.

[7]

During cross-examination it was put to Nompumelelo that her visibility on the day was not good. Nompumelelo conceded that the window through which she viewed the incident was frosted. Visibility was not good because there was only a small opening in the window from which one could see. There was a light on the veranda and street lights far from house. A pillar further obstructed her view. She could not see properly because it was dark.

[8]

Noluthando then testified. She was aged 14 and testified through an intermediary. Her version of the events was that she was asleep in the bedroom when she was awoken by the sound of a gunshot. She peeped through a window in the back of the house but did not

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see anything. She, Ntombiyoxolo and Nompumelelo then went to the sitting room and peeped through the window there. She heard the deceased speaking to someone in the garage. He was saying "Bandile, what have I done, brother." Then there was another shot fired. In total she heard two gunshots.

[9]

Mxolisi was on his way to call his grandparents when he was stopped by one of the assailants and ordered to return to the house. She saw Mxolisi being slapped. This assailant, at all times, had his back towards her. She testified that she did not know the appellant.

[10]

Her evidence was that Nompumelelo jumped into the neighbour's yard and returned with the deceased's parents and two others. The police were then contacted. She made a statement to the police on 13 February 2010, approximately a year after the murder.

[11]

According to Noluthando she also heard people running in the yard but did not see their faces. She noticed that the assailants were wearing dark clothing, with one of them wearing a white cap. She stated that even though it was dark, light was being provided by the electric light from the house and the street.

[12]

The last witness to testify for the State was Mxolisi, who was 13 years old at the time of the trial and who also testified via an intermediary. His evidence was that on the day in question the deceased arrived home, opened the gate and switched on the electric light. He then heard a shot being fired. Whist he was still inside the house he heard the deceased say to the appellant: "Brother, why are you killing me?" Mxolisi then ran to the front of the house through the right hand side of the house. He saw the appellant shoot his father three times in the garage. In total there were three assailants.

[13]

Mxolisi testified that the visibility was good at the time he witnessed the shooting because light was being provided by lights on the street, the veranda of the house and the garage. Furthermore the appellant's face was not covered. Mxolisi was on his way to go and call his grandparents when the appellant stopped him and slapped him. This gave Mxolisi a good view of the appellant. Mxolisi was ordered to return to the house.

[14]

Mxolisi's evidence was that he and Nompumelelo ran and jumped into the neighbour's yard. Pretty, the neighbour, phoned the police. When the police arrived Mxolisi told them that the appellant had shot the deceased.

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[15]

Mxolisi knew the appellant prior to the shooting because he used to accompany the deceased to the location (Esibongile) which is where the deceased would go to fix his motor vehicle. The repairs were carried out at the appellant's uncle's home. He did not ever speak to the appellant but knew the appellant's name.

[16]

He knew Phumla because she used to borrow money from the deceased. He did not know whether the deceased had a relationship or a child with Phumla. He knew that Phumla stayed at the Mhlungu residence. During cross-examination Mxolisi testified that he did not tell Nompumelelo that the deceased had a child with Phumla. He in fact said that Nompumelelo was lying to the court. He went on to further state that he did not have a good relationship with Nompumelelo.

[17]

Mxolisi testified that he had never seen the appellant and Phumla together. It was put to him during cross-examination that he had made a statement to the police wherein he stated that the appellant had assaulted Phumla. He denied having said this to the police. Inspector Mthembu, who was later called as a witness by the defence, testified that he had taken down the statements from Mxolisi and confirmed that he wrote down everything that was said to him by Mxolisi.

Appellant's case

[18]

The appellant's defence was that on the day of the incident he was at home with his girlfriend Ntombenhle Xaba (Ntombenhle). Earlier that day he went to his parental home. He left his parental home at 7:30 pm and returned to his home, with Ntombenhle, at 8 pm. Upon arrival at his home he found Mpume Sibisi, the tenant, and her child Slindo in the kitchen. There was a story playing on the radio. He sat with them for a short while (2 – 3 minutes) and he then went to his bedroom. He said the others, including Ntombenhle, listened to the story but he did not do so because he did not listen to stories.

[19]

He was awoken at 2 am the next morning by his brother, Aubrey, who told him that he had heard that he (the appellant) shot someone. Aubrey was with the appellant's sister, Kara Mhlungu. The appellant accompanied Aubrey to the police station. Upon arrival at the police station they found an Inspector Khanyile. They informed him of the allegations against the appellant. The appellant left his details at the police station. Two days later, on the 13th of March 2009, he was arrested.

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[20]

The appellant confirmed knowing the deceased but did not know where he lived. Whenever the deceased needed repairs done to his vehicles he would go to Sanele, who would in turn ask the appellant's uncle to use his garage to do the repairs. He further confirmed that Mxolisi used to accompany the deceased when repairs were being done. He did not speak to Mxolisi but used to speak to the deceased.

[21]

The appellant suggested to the court as to why there may have been bad blood between himself and the deceased. Appellant stated that Phumla was his uncle's girlfriend and she had become the deceased's girlfriend after his uncle passed away. Phumla stayed with the deceased in the uncle's house. The appellant's family was not happy about this. The family did not want the deceased to bring his vehicles to the uncle's house for repairs. The appellant conceded to having assaulted Phumla and chasing her from his uncle's house. The deceased and Mxolisi were present when he assaulted Phumla and that's the reason for his implication in the deceased's murder.

[22]

The appellant denied having shot the deceased. According to the appellant he had been implicated by Mxolisi because he assaulted Phumla. Phumla opened an assault charge against the appellant. The appellant stated that Mxolisi was lying to the court when he said that he did not know Phumla. According to the appellant Mxolisi knew Phumla because Mxolisi was with her on the day the appellant went to pick up his uncle's death certificate from her.

[23]

Ntombenhle, the accused's girlfriend thereafter...