Sitha and Another v S (11/2006) [2010] ZAECMHC 6 (22 February 2010)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE HIGH COURT : MTHATHA

CASE NO. 11/2006

In the matter between:

DUMISANI REGINALD SITHA 1st Respondent

BARNABASA SISEKO NTISSA 2nd Respondent

and

THE STATE

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

MILLER, J.:

[1] The applicants, who were Accused no. 7 and Accused No. 8 at the trial were, together with their six co-accused, charged with murder. Accused Nos 1 to 5 were convicted of culpable homicide and Accused No. 6 and both of the applicants were convicted of being an accessory after the fact to culpable homicide. The applicants now apply for leave to appeal to the Full Bench of this Court against their conviction only.

[2] The applicants have raised a number of grounds of appeal. There is, in my view, no merit in the grounds of appeal which relate to the court having erred in accepting the evidence of the state witnesses, in particular Ms Mzinzi, Ms Silangwe and Dr Perumal, and rejecting that of Accused Nos 1 to 5 and Dr Mafanya. Dr Perumal, an independent forensic pathologist, conducted a thorough medico-legal post mortem examination on the body of the deceased. He expressed the opinion that the deceased was subjected to a severe and prolonged beating in which more than one instrument was used, that the assault resulted in him being unable to walk unaided thereafter and which directly led to his death, which, it is clear from the evidence, occurred a short while after the assault. Dr Perumal, was a particularly good witness and his evidence supports that of Ms Mzinzi and Ms Silangwe and contradicts that of Accused Nos 1 to 5. It was on the evidence of these State witnesses that the Court concluded that it must have been patently obvious to all who were in the vicinity of the hut when the assault took place and who saw the deceased after the assault, including the applicants, that he had been severely assaulted. I do not believe that any of other Court will arrive at a different conclusion.

[3] There is also, in my opinion, no reasonable prospect of the grounds of appeal relating to the Court erring in adopting the incorrect approach to the definition of an accessory after the fact succeeding on appeal. The Court did not find that the applicants merely associated themselves ‘in a broad sense’ with the crime. The finding of the Court was that the only reasonable inference that can be drawn by the failure of the applicants to report the assault is that they were protecting their colleagues from being convicted and punished in respect of the assault. The fact that the 2nd applicant reported the death of the deceased to Superintendent Siyoyo, who at the time was the Acting Station Commander of the SAPS in Bizana, does not absolve the applicants in any way. The fact is that he did not report the assault to Superintended Siyoyo who said that the first he heard of the allegation that Inspector Mkambayi assaulted the deceased was during the trial in this matter.

[4] The contention that the applicants could, at most, have been convicted as accessories after the fact to assault is also, in my view, devoid of any merit. Accused Nos 1 to 5 were convicted of culpable homicide. The applicants assisted those accused to evade justice by covering up the commission of that crime. If those accused were convicted of murder or only of assault then the applicants would have, for their same culpable omission, have been found guilty of being accessories after the fact to murder or assault.

[5] The last ground of appeal is that the Court erred in coming to the conclusion that the failure of the applicants to testify was in order to protect the other accused and with the intention to assist them to avoid justice. This ground is misplaced. No such conclusion was arrived at or made.

[6] I am accordingly of the view that the applicants do not have a reasonable prospect of succeeding in an appeal.

[7] The following order is therefore made:

The application by the applicants for leave to appeal is dismissed.

JUDGE OF THE HIGH COURT

HEARD ON : 17 FEBRUARY 2010

DELIVERED ON : 22 FEBRUARY 2010

COUNSEL FOR APPLICANTS : Mr Botma

INSTRUCTED BY : Elliot and Walker Attorneys

: c/o Keightely Inc.

COUNSEL FOR THE RESPONDENTS : Mr Van Drunick