S v Ngwadla
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | RD Hendricks DJP and BR Nonyane AJ |
| Judgment Date | 12 March 2020 |
| Docket Number | CA 69/2019 |
| Hearing Date | 28 February 2020 |
| Court | North West High Court, Mafikeng |
| Citation | 2021 JDR 1423 (NWM) |
Hendricks DJP:
Mr. Hlalanathi Ngwadla (appellant) stood trial in the Regional Court, Stilfontein together with his late brother, Mr. Namhla Ngwadla, who was accused 1 during the trial, on a charge of murder read with the provisions of Section 51 (1) of the Criminal Law Amendment Act 105 of 1997, as amended. They were convicted and sentenced to life imprisonment. Accused 1, Mr. Namhla Ngwadla, subsequently passed away. The appellant appeals his conviction and sentence.
The evidence tendered for and on behalf of the State can be succinctly summarized as follows. Mr. Isaac Papie Riet was on his way home in the early morning hours of the 23rd November 2014. He was accosted and threatened with a knife by a man whom he only knew by sight. This man told him that he was actually not looking for him but for someone else. He was then released. Being interested to know what the man who accosted him was up to, he followed him by moving parallel to him in an adjacent street.
2021 JDR 1423 p3
Hendricks DJP
Whilst approaching the house of the appellant (accused 2), he heard music being played. In what at first appeared to him to be people who were dancing, upon closer observation, he saw three men being close to another person. That person was held by two of the men at each of his legs and one holding him by his head. The person was caused to fall to the ground. He identified the appellant and his late brother, Namhla as two of the three men. The appellant was armed with a knife. The third unknown person had a pick-handle. It became apparent to him that they were assaulting the man whom he recognized as his friend, Klaas Matsipe, the deceased. The deceased had a wound on his head that was bleeding. The blade of the knife was protruding from the side of the head of the deceased.
Mr. Riet screamed that they should leave the deceased whereupon they diverted their attention to him. The appellant then said to his brother that the deceased is not yet dead. Some of the friends to the witness arrived and they threw stones at the appellant, his brother and the third unknown person. The people in the area also assembled and the police were summoned. The appellant and his companions ran away before the police could arrive at the scene. The appellant and his late brother Namhla were subsequently arrested and charged with the murder of the deceased.
Admissions were made during the trial about the identity of the deceased; that the deceased sustained no further injuries that contributed to his death from the time that this incident occurred up until a postmortem examination was conducted on the body of the deceased; the correctness of the contents of the post mortem examination was also admitted; and the postmortem report as well as a photo album depicting the deceased, was handed in by consent as exhibits. All the chain evidence was therefore admitted.
2021 JDR 1423 p4
Hendricks DJP
Except for Isaac Papie Riet, the only other witness called by the State was the investigating officer, Sergeant Stefanus Johannes Coetzee. He testified that the deceased was a witness in a murder case in which the appellant and his brother Namhla, together with two others, were accused persons. That case could not proceed because of the death of the deceased in this matter, Klaas Matsipe. This was also the evidence of Isaac Papie Riet. It was therefore alleged that the deceased, who was a crucial witness in a murder case in which the appellant and his brother were amongst others accused, was eliminated.
Mr. Riet was a single witness with regard to the incident that led to the death of the deceased. As such, his evidence needed to be treated with caution. The learned Regional Magistrate was alive to this and clearly stated in her ex tempore judgment that caution should be exercised in the acceptance of the evidence of Mr. Riet as a single witness, in terms of the provisions of Section 208 of the Criminal Procedure Act 51 of 1997, as amended.
The acceptance of the evidence of Mr. Riet as a single witness also constitute the crux of the grounds of appeal in this matter. The appeal is premised on the following grounds of appeal.
"AD CONVICTION
It is the Appellant's respectful submission that the Honourable Court erred in deciding that the State proved its case against him beyond any reasonable doubt and thereby erred in returning a verdict of guilt against the Appellant.
2021 JDR 1423 p5
Hendricks DJP
It is respectfully submitted by both Appellants that the court a quo erred in accepting the evidence of the first state witness and thereby ignoring the material contradictions and inconsistencies eminent from such piece of evidence. The said contradictions and inconsistencies being that:
The said witness never under evidence in chief testified that the deceased was ever assaulted: but mentioned that Point when being cross-examined by the defense Attorneys;
Under examination in chief the witness did not testify relating to the stabbing of the deceased by any of the accused but that point was only mentioned when he was being cross-examined by the defense;
The court in disregarding the evidence on record proving that the first time the said witness Saw the accused they were dancing then the deceased fell to the ground, as to what caused the said falling to the ground there was no such evidence and there was further no evidence that the falling to the ground can be attributed to the Appellant herein;
The witness testified that he never at any point see the wielding of the knife in the air nor did he ever see the 1st accused (who is deceased at this point) in possession of a knife but was able to give evidence to the stabbing of the deceased by the said accused and where the deceased was stabbed at;
The 1st state witness goes even further to contradict himself by stating, only under cross examination that there were blows emanating from the first accused whereas in evidence in chief he never testified to any blows being directed at the deceased and in doing so that evidence
2021 JDR 1423 p6
Hendricks DJP
contradicts the medico-legal report submitted which indicated that the deceased suffered only a stab wound and not any other injuries (scratches or bruises);
The court in disregarding the said inconsistencies and contradictions disregarded the provisions of section 208 of the Criminal Procedure Act 51 of 1977 (as amended) which indicates that the evidence, of a single witness must be clear and satisfactory in all material aspects for a conviction to follow from that evidence;
The honourable Court further" erred in deciding that the case against the Appellant herein was proven beyond any reasonable doubt when it is clear from the evidence that the death of the deceased cannot be attributed to him. The court also erred by not indicating whether the Appellant herein was acting in pursuit of common purpose with the other accused or not and whether the actions of others can be attributed to him especially the stabbing of the deceased as it was evident that he never stabbed the deceased on the morning in question.
The court also erred, in deciding that the deceased was killed as he was a witness who was to testify against the Appellant whereas there was no evidence presented before the court suggesting that the foundational reason for the cause of the deceased death was to prevent him from giving evidence against the Appellant and his co-accused. The only evidence presented was that the deceased was a witness in the other matter wherein the Appellant was acquitted on as to the relations between the death of the deceased and that other matter nothing was presented before the court on that point.
AD SENTENCE
2021 JDR 1423 p7
Hendricks DJP
In the event that the above-mentioned Honorable Court is of the opinion that conviction of the Appellant herein was in order, we submit the following with regard to sentence. The Honorable Court misdirected: itself when it pronounced that the provisions of section 51(1) and schedule 2 of the Criminal Law. Amendment Act 105 of 1997 1 finds application. The court relied on the evidence presented by both state witness that the decease' as a witness in the other case invoking the accused without there being any conclusive proof that the death of the deceased was as a result of him being a witness in that other matter.
The court a quo further disregarded the personal circumstance of the Appellant and the possibilities of rehabilitation on his part as he is fairly young and a good candidate for rehabilitation. Thereby imposed a harsh and shocking sentence even though the Appellant was a first time offender. In doing, so the court overemphasized the seriousness of the offence over and above the personal circumstances of the Appellant herein.
The court further erred when it decided that the Appellant produced no substantial and compelling circumstances for the court to deviate from imposing the sentence of life as prescribed by legislation. The fact that the appellant did not personally stab the deceased nor assault the deceased should have been taken as a substantial and compelling circumstance for the court to deviate when imposing sentence.
The personal circumstances of the Appellant taken together with the fact that he was a first time offender should also have been taken as substantial and compelling circumstances warranting
2021 JDR 1423 p8
Hendricks DJP
the court to deviate, from...
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