S v Xaba

• Jurisdiction: South Africa
• Judge: Lopes J, K Pillay J and Bezuidenhout AJ
• Judgment Date: 14 February 2014
• Docket Number: AR 172/13
• Hearing Date: 27 January 2014
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Lopes J

[1]

On the 19th October 2012 the appellant was convicted of one count of robbery with aggravating circumstances read with the provisions of s 51 and Schedule 2 of the Criminal Law Amendment Act, 1997, and a further count of murder, also read with the provisions of s 51 and Schedule 2 of the same Act.

2014 JDR 0234 p2

Lopes J

[2]

The appellant was sentenced to twelve years imprisonment on Count 1 and twenty years imprisonment on Count 2, both counts to run concurrently. The court further directed that the non-parole period in respect of the imprisonment should be fifteen years.

[3]

This matter comes before us by way of leave to appeal granted by the learned Acting Judge on the 19th October 2012. The central issue in the case was the identification of the appellant as one of the attackers of the deceased. In this regard, reliance was placed by the State upon the evidence of Mr K P Khanyile.

[4]

Mr Khanyile testified that on the 23rd April 2011 and at about 7.30 in the evening he was at his residence emerging from his house, and going to another building on the premises, when he heard two persons greet him. One was the appellant and the other was Qolo, who is now deceased. He knew the appellant from the area and Qolo was his neighbour. He went to the outhouse and upon returning to the main house could still hear the voices of the appellant and Qolo on the road nearby. He heard them asking a third person, who turned out to be the deceased, who he was, because he was unknown in the area.

[5]

Mr Khanyile then went out and observed Qolo and a third person, Vete, attempting to take a bag away from the deceased. When he resisted Vete stabbed the deceased in the face and the appellant stabbed him in the back.

2014 JDR 0234 p3

Lopes J

[6]

At that stage the deceased attempted to run away and as he was fleeing he was being pursued by the appellant and Qolo. After that Mr Khanyile went back into his house, emerging later when he heard people talking outside. He saw the deceased lying on the ground with people around him. The appellant, Qolo and Vete were no longer on the scene.

[7]

Alexandre Novela, the older brother of the deceased testified that the deceased was sixteen years old at the time of his death, and shortly before the deceased was attacked Mr Novela had given him his gym bag to carry home. His description of the bag coincided with that given by Mr Khanyile.

[8]

Mandla Richard Majozi, who lived near Mr Khanyile, testified that on the day in question he had been called by his children who said that a boy had been stabbed outside. He left his home and took the deceased to the Poly Clinic in his own motor vehicle. He realised when they removed the deceased from his motor vehicle that he was lifeless.

[9]

The appellant was the only person who testified in his defence, and he claimed that he was not at the scene...