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IN THE COURT OF APPEAL OF SWAZILAND
In the matter between:
KHEKHE SIMELANE &
FOUR
OTHERS Appellants
Versus
REX Respondent
Coram Leon,
JP
Tebbutt, JA
Shearer, JA
For Appellants Mr. B.J.
Simelane for 1st, 2nd, 3rd & 5th
appellants & Mr. E. Twala for 4th appellant
For
Respondent Mr. M. Mabila
JUDGMENT
LEON, JP
It will be convenient to refer to the five appellants, as they
were in the Court a quo, as the accused. They appeared before the High
Court on two charges: Count 1 was the alleged murder of George Simelane while
Count
2 was malicious injury to property, i.e. the deceased’s
house.
All the accused pleaded not guilty to both counts but were found
guilty as charged.
Accused Nos. 1 and 2 were sentenced to ten
years’ imprisonment on Count 1 and two years’ imprisonment on Count
2. The
sentences were back-dated to the time of their arrest (29 August 1998)
and were ordered to run concurrently.
Accused Nos. 3, 4 and 5 were
sentenced to seven years’ imprisonment on Count 1 and to two years’
imprisonment on Count
2. The sentences were backdated in the same manner and
were also ordered to run concurrently.
The learned Judge has given a
detailed judgment which it is not necessary to repeat. I shall refer briefly to
the background to
this case and to the nature of the evidence.
Accused
Nos. 1,2,3 and 5 are brothers while accused No. 4 is their cousin. The deceased
was the uncle of accused numbers 1,2,3 &
5 while the main Crown witness
Rejoice Simelane is the aunt of the four accused and the cousin of accused No. 4
having been married
to the deceased.
Accused Nos. 1,2,3 and 5 had a
brother named France and a sister Ivy. Both died young. France committed
suicide while Ivy died
after being ill. There is some evidence that they may
have died in mysterious circumstances.
However that may be, the motive
for the killing appears from the evidence of PW1 whose evidence suggested that
all the accused believed
that the deceased was a wizard who was responsible for
the death of France and Ivy. That is why the court a quo found
extenuating circumstances to be present.
The Crown case against the
accused amounts to the following, very briefly stated. PW1 knew the accused and
their voices very well.
They had grown up with her in the same homestead and
only moved elsewhere when they secured employment. She called them her children
and the accused agreed with that description.
On the evening of the
murder, the 27th August 1998, she had taken water to the deceased to
wash himself. She heard a noise. Stones were thrown at the roof of their house
and at the windows which were shattered. Voiced shouted, “Come out so we
can kill you.” They asked, “Where is
Ivy and where is
France?” They hit the door until it broke open. The voices shouted,
“Come out, George, so that we
can kill you.” PW1 escaped through a
window, shouting; a voice shouted back, “Voetsak.” Later she
returned to
the house – the deceased was not there but she followed his
footmarks to a donga where she found the deceased dead with numerous
injuries.
She said that she saw all the accused at the door and although
the light could not have been good, she identified each of them by
their voices.
She said, “they are my children and have grown up under me.” She
noticed the accused carrying sticks,
knobsticks and stones at the doors. She
saw the knobsticks being held in a fighting position but did not see what was
being carried
in the other hands.
In her evidence she said that the
relationship between her and the accused was “no more good” but she
was clearly referring
to the time since the deceased’s death.
She
did not deviate from her evidence in cross-examination. In my view she was a
most impressive witness and I reach this conclusion
notwithstanding the
arguments by counsel for the appellants to which I shall later refer.
The post-mortem report was handed in by consent. It revealed that
the deceased had a laceration over the scalp and multiple penetrating
injuries
involving the lung, heart and intestines causing haemorrhage from which he
died.
Thomas Ndlovu (PW2) gave evidence against accused No. 3. He is a
supervisor at Guys & Sons Bus Services and he also assists
in giving
medication to children.
On a Saturday, on his way to his Chief’s
kraal, he met accused No. 3 who said that he was coming to see him for his
assistance
as he knows him to be a traditional healer. Accused No. 3 told him
that he and others whom he named had killed the deceased George
Simelane with a
spear at his homestead because the deceased had killed his aunt. PW2 reported
this at the Chief’s kraal.
It was put to him in cross-examination that
accused No. 3 would say that he, PW2, was the first to speak and he had said,
“nephew
you had done a good job by killing George the witch.” That
allegation was denied as being totally false. PW2 thought that
his assistance
had been sought because he had “helped in some criminal
matters.”
An 18 year-old youth Dumisane Simelane testified as PW3.
He is related to all the accused and he knew the deceased. On 27 August
1998 he
saw accused No. 4 enter his sleeping house while the witness went to the kitchen
to see his mother. Accused No. 3’s
voice called out for accused No. 4
three times saying: “You are not coming out because at your homestead
people don’t
die, at my homestead they die.” He went to look for
accused No. 4 who had disappeared. Accused No. 3 pushed the door open
carrying
a spear saying he had come from killing George Simelane. The spear had
bloodstains. In cross-examination it was put that
accused No. 3 would deny that
he ever went to the witness’s house.
Phineas Dlamini was PW4. The
deceased was his cousin and he is related to all the accused. At the material
time he said that he
had come from Nkondolo when he was passed by the accused,
No. 3 who poked at him with a stick. Accused No. 3 asked him to what area
he
belonged. They then disappeared. He became nervous and shouted to the
deceased’s home which was nearby that the deceased
should get dressed.
PW4 was a community policeman. He was certain that accused Nos. 1 and 5 were
among those who passed him but
was not sure about No. 4. After they had passed
he heard the noise of something landing on corrugated iron sheets and the
breaking
of glass and a door. Shortly after that he saw PW1 running crying and
rushing into his house. He went back to the house with PW1,
found the windows
and the door broken and the deceased was not there. He sent a message to the
police and the deceased’s body
was found the following day in a donga.
His identification is subject to the criticism that he wrongly identified one
Nono as part
of the group and he was not sure about accused No.
4.
Detective Sergeant Sibandze, PW5, together with other police officers
found the body of the deceased in a donga. He saw that he
had wounds inflicted
with sharp instruments, knobkerries and sticks. There were multiple injuries.
Near the body they found two
spears and broken sticks. Accused No. 1 took the
police to his house where he pointed out a spear and two knobsticks. They then
arrested accused No. 2, 3 and 4. At the police station accused Nos. 1,2 and 3
pointed out the exhibits which were already at the
charge office (spears,
sticks, et cetera). They then arrested accused No. 5.
With regard to
the pointing out he said that accused No. 1 had pointed out a spear, a stick and
a knobstick, accused No. 3 two spears
and a knobstick, accused No. 4 a straight
stick and accused No. 5 a knobstick.
The trousers of accused No. 3 had
bloodstains on them.
He said that all the accused were cautioned. This
was hotly disputed in cross-examination when it was also suggested that the
accused
had been suffocated with a tube and beaten up. When the accused gave
evidence they also claimed to have been throttled but this
was not put in
cross-examination. It was also put in cross-examination that accused No. 3 had
told him that the bloodstains were
from a goat which he pointed out but PW5 had
no recollection of that.
Constable Ndzimandze was PW6. He said that he
and other policemen had retrieved a large spear, a knobstick and a straight
stick
from accused No. 1 who pointed them out. Accused No. 2 produced stones.
Accused No. 3 had two spears and a knobstick. Accused
No. 4 had two sticks and
a knobstick. They found nothing on accused No. 5.
He said that he kept
a notebook where all this was recorded but he had started a new one and the old
one disappeared with the exhibits.
He too denied that any force had been used
against the accused stating that they had all been cautioned on more than one
occasion.
The defence of each of the accused, and they all gave evidence
under oath, was precisely the same. They denied all knowledge of
the crimes
stating that they were at home at the time in question.
They all
testified that all the Crown witnesses were liars and that they had been
viciously assaulted by the police. No defence
witnesses were
called.
The trial judge found that all the Crown witnesses were reliable
and was particularly impressed by the evidence of the deceased’s
wife,
PW1.
As appears from the aforegoing the case against accused number 3 is
stronger than that of the case against the other accused. With
regard to the
latter, the case against them depends upon the evidence of PW1 together with the
evidence relating to the pointing
out. The court a quo did not rely upon
the pointing out at the police station and there are some further criticisms
which may be levelled against that
evidence. I am prepared to assume, in favour
of accused numbers 1,2,4 and 5 that the case against them depends on the
evidence of
a single witness, namely PW1.
It was contended on behalf of
the appellants that the evidence of a single witness must be approached with
caution and that such
evidence should not be accepted unless it is satisfactory
in all material respects. (see R vs Mokoena 1932 OPD 79 at P
80).
That judgment must yield to the more modern approach which
has been followed in a number of cases such as R vs Abdoorham,
1954(3) SA 163 (IV) at 165, S v T 1958(2) SA 676 (A) at page 678
and particularly in S vs SAULS and Others 1981 (3) SA
172(A) at 180 E – G. In SAULS’ case Diemont J.A.
said this SUPRA CIT:-
“There is no rule of thumb test or formula
to apply when it comes to a consideration of the credibility of the single
witness
(see the remarks of Rumpff J.A. in S v WEBBER 1971
(3) SA 754 (A) at 758).”
“The trial judge will weigh
his evidence and consider its merits and demerits and, having done so, will
decide whether it is
trustworthy and whether, despite the fact that there are
shortcomings or defects or contradictions in the testimony, he is satisfied
that
the truth has been told. The cautionary rule referred to by de Villiers JP in
1932 (the first Mokoena case) may be a guide
to a right decision but it does not
mean
“that the appeal must succeed if any
criticism, however slender, of the witnesses’ evidence were well founded
(per Schreiner
JA in R v Nhlapo (AD 10 November 1952) quoted in
R v Bellingham 1955(2) SA 566(A) at 569). It has been said
more than once that the exercise of caution must not be allowed to displace the
exercise of common sense.”
That decision was
a decision of the Appellate Division in South Africa, is plainly right and must
be applied and followed by this
court.
Both counsel for the appellants
advanced lengthy arguments as to why the evidence of PW1 should not be accepted.
They include the
point that she was frightened, that it was dark and that she
could not describe the clothes worn by the accused. Moreover they contended
that her evidence of voice identification was unreliable.
I have
considered these and the other arguments which were advanced on behalf of the
accused but I am unpersuaded that the trial
court erred in accepting her
evidence.
It is true that PW1 did not describe the clothes worn by the
accused but there is no reason why she should have done so. She knew
the
accused and their voices: that is the important point. It is also true that it
was dark but there was light enough for PW1 to
see the accused and the weapons
which they were carrying for she saw them at the front door. Her fright might
well have heightened
her perception. While she did not describe precisely what
she heard each accused say she heard enough: she heard the accused calling
each
other by their names and singing in unison.
What is a most important
point in this case is that PW1 regarded the accused as “her
children” and they agreed with that
description. As I have mentioned
earlier they had grown up in her homestead and she would inevitably have known
their voices extremely
well. In general it may be said that a court should
approach voice identification with circumspection for it in some cases it may
not be reliable, but this is a special case where the evidence on this point,
for the reasons stated, is very strong and she saw
them as well.
It was
not suggested in argument that PW1 was a dishonest witness but it was argued
that she may have been mistaken. I am not persuaded
that she was. Moreover the
court a quo had the advantage of seeing and hearing the evidence,
an advantage not enjoyed by this court.
Finally I should add this. The
evidence of PW1 is inherently probable, it hangs together with other relevant
crown evidence and
it provides the motive for the killing. The accuseds’
evidence was that of a bare denial and the trial court having heard
their
evidence rejected it as false. I see no reason to disagree.
In my
judgment the trial court did not misdirect itself in any way and there is
certainly no basis for holding that one can be satisfied
that it was wrong.
No argument was advanced on sentence.
The appeal must be
dismissed and the convictions and sentences
confirmed.
_________________________
I AGREE _________________________
TEBBUTT, JA
I AGREE _________________________
SHEARER, JA
Dated at MBABANE
this..............day of December, 2000
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