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IN THE HIGH COURT OF SOUTH AFRICA

VENDA PROVINCIAL DIVISION

                                                                             Case No:  CC42/2007

In the matter between:

 

THE STATE

vs

JONAS  TSHIFHIWA  RASIMPHI                                                Accused

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JUDGMENT: Delivered on 06 June 2008

 

 

SNYMAN  AJ

 

[1]     The accused is charged with murder in that upon or about 15 December 2006 and at or near Tshikwarani Location he unlawfully and intentionally caused the death of Tendani Lorence Ndaivhada by stabbing him with a knife.  The indictment indicated that the accused was accused no.1 and that Charles Khorombi Ramashia (hereinafter referred to as Ramashia) was accused no. 2.  On 29 April 2008 the State withdrew the charge against Ramashia.

 

[2]     The trial commenced on 22 May 2008. Mr Poodhun appeared for the State and Mr Makhuvha appeared for the accused.  The accused pleaded not guilty and in his explanation of his plea it was stated that the basis of his defence is that he did not stab the deceased.  The State handed in the post mortem report as exhibit “A” and an album of photographs as exhibit “B”; the contents of both these exhibits were admitted by the accused in terms of the provisions of section 220 of the Criminal Procedure Act No. 51 of 1977 (hereinafter referred to as the Act).

 

[3]     The State called constable Bugana who testified that he took the photographs and compiled the album exhibit “B”.  Detective inspector Makhavhu testified and his evidence is briefly as follows:  on 15 December 2006 at about half past nine in the evening he received a report that a person was killed at a tavern,  he arrived at the scene and found the deceased lying on his back on the ground, the deceased had a wound on the left hand side of his chest, he asked the community who was responsible for the killing and he was told it was Charles Ramashia, he traced and found Charles Ramashia on the scene inside the yard of the tavern, he questioned Ramashia who informed him that he was not the one who stabbed the deceased but that it was his friend Jonas Rasimphi  (the accused) who stabbed the deceased, he found the murder weapon being an Okapi knife, he handed the knife in at the police station but he does not know where the knife is now, he stated that photograph 1 depicts the deceased next to the stoep where he was lying and that photograph 2 depicts the wound of the deceased as the same wound when he arrived at the scene.  The attorney for the accused did not put his case to the witness.

 

[4]     The State then called Charles Khorombi Ramashia, being the accused against whom the state withdrew the charge of murder.  The State requested this Court to inform Ramashia of the provisions of section 204 of the Act, with specific reference to the offence of murder.  Ramashia was duly informed of the aforesaid provisions.  The evidence of Ramashia is briefly as follows:  on 15 December 2006 he and the accused were at the tavern drinking liquor, the deceased was also at the tavern, at some stage the accused told the deceased that he must now buy liquor and the deceased said that he will buy later, they were inside the building at that stage, the accused went out to the stoep and grabbed the deceased on his clothes and they were scuffling, he and someone else got up and went outside when the deceased and the accused were scuffling they intervened, the owner of the tavern was also there, the accused walked back and sat on beer cases and the deceased walked towards houses that were inside the yard, later the deceased came and went in the direction of the gate, when the accused saw the deceased the accused ran after him, he also got up and went to the gate and when he was next to the gate he saw the accused stabbing the deceased on the left hand side of the chest of the deceased, the wound was inflicted with a knife with a brown handle, the accused removed the knife, he went back unto the stoep, the accused came running passed him, the deceased picked up a stone, the deceased screamed “Jonas you had stabbed me”, the deceased then collapsed and died.  He also testified that before the stabbing the accused was playing with a knife and he saw this when he went to the toilet, that the accused was the aggressor.  It was also put to him by Mr Poodhun that there is a “suggestion” that he stabbed the deceased – he stated that that is not true, that he did not stab the deceased.

 

[5]     In cross-examination when it was put to Ramashia that the accused will testify that he was not in possession of a knife, Ramashia stated that the accused is lying, he also stated that the accused is lying when it was put to him that the accused will testify that he (the accused ) and the deceased were not “holding their clothes”, he also denied the statement that the accused will testify that he (Ramashia) was chasing the deceased.  He also testified that he knew that the accused had a knife in his pocket.  In re-examination he said that the accused was playing with the knife when he and the accused were in the toilet.

 

[6]     The State then called Mahuwa as witness.  Her evidence is briefly as follows:  she is the owner of the tavern where the stabbing of the deceased took place on 15 December 2006, she saw the accused and the deceased quarrelling about liquor, she went out and took the accused back into the building, later Ramashia approached her and said that the accused followed the deceased to the street and that the accused then stabbed him, she saw the accused coming back running, the deceased was also coming from behind, the deceased had a stone in the one hand and the other hand on his upper body , the deceased said that the accused stabbed him.

 

[7]     The State closed its case, and the accused then testified.  His evidence in chief is briefly as follows:  on 15 December 2006 he and Ramashia were at the said tavern drinking liquor, the deceased was also there and at some stage he told the deceased not to drink liquor anymore to which the deceased agree, later the deceased went out of the building and stood on the stoep (verandah),  he also went outside, the deceased blocked his way and the deceased again talked to him about liquor, they were talking in high voices, the owner of the tavern took him and said he must go  inside, he did not hold the deceased by his clothes as testified by Ramashia, the deceased walked towards the gate, he went back inside the tavern and joined Ramashia, Ramashia later got up and went out towards the gate, he followed and when he arrived at the gate he heard a scream, the reason why he went to the gate was because he was looking for a girl that he loved, he then returned back to the verandah, he then saw the deceased  running and Ramashia was behind the deceased, that he (the accused) was not in possession of a knife, that Ramashia was the one who had a knife, a knife with a brown handle and that the knife was still at the police station.

 

[8]     The accused was subjected to lengthy, well-judged and well-reasoned cross-examination on various issues and the important parts of the accused’s evidence can be summarised as follows:  he denied that he accompanied Ramashia to the toilet at all, that Ramashia is the one who stabbed the deceased, that he saw Ramashia discarding the knife under rockery after the stabbing of the deceased, he denied that there was a scuffle between him and the deceased and stated that they were only verbally talking, he saw Ramashia standing in the street, he recognised Ramashia at that stage by his clothes and built but he was unable to recognise the deceased by his clothes at that stage, he recognised the deceased when the deceased was running towards him, he saw the deceased was bleeding, he saw Ramashia stabbing somebody and when he saw the deceased bleeding and Ramashia chasing the deceased, he concluded that it was the deceased who had been stabbed by Ramashia, he admitted that the deceased uttered his name Jonas and on the question why was his name uttered he answered he does not know because the deceased knew him and whether the deceased wanted to say something more, that Ramashia usually carries a knife, he denied the evidence of Ramashia as to the playing with a knife in the toilet, he again denied the evidence by Ramashia that he stabbed the deceased, that he was angry, that he was the aggressor and also denied the statement to the effect that Ramashia saw him stabbing the deceased.  The accused then closed his case.

 

[9]     The following facts are common cause:

 

(a)      the deceased was stabbed with a knife on the evening of 15 December 2006 at the tavern where the accused, Ramashia and other people were present;

(b)     that the cause of death was a stab wound to the heart.

 

[10]    Did the State prove its case beyond reasonable doubt?  It is common cause that the deceased was stabbed with a knife, but the question is who stabbed the deceased?  There are two direct conflicting and mutually destructive versions in this regard:  Ramashia, being an ex-accused, said the accused stabbed the deceased but the accused said it was not him but that it was Ramashia who stabbed the deceased.  There is some corroboration for the evidence of Ramashia in this regard:  Mahuwa testified that the deceased said that the accused stabbed him.  But having said that, this Court must have regard to the totality of all the evidence put before it in order to make a finding whether or not the state did prove its case beyond reasonable doubt.

 

[11]    It is clear that both the version of Ramashia and the accused cannot be true:  only one person stabbed the deceased and it was either Ramashia or the accused.  Ramashia was a co-accused and as such his evidence must be approached and assessed with caution.  This Court informed Ramashia of the provisions of section 204(1)(a) (i) – (iv) of the Act, and in my view he answered all questions put to him frankly and honestly; he did not contradict himself and maintained throughout that the accused had a knife and that the accused stabbed the deceased.  It must however be stressed that he was not subjected to full and/or comprehensive cross-examination; the accused’s full case was not put to him, namely that the accused will deny that he was in possession of a knife and that the accused will deny that he and the deceased were “holding clothes”.  The accused’s full version, as he testified later on, was never put to him.  In view of the fact that Ramashia  answered all the questions frankly and honestly, he is , in terms of the provisions of section 204(2)(a) of the Act, discharged from prosecution of murder and for any offence in respect of which a verdict of guilty would be competent upon the charge of murder.  Furthermore, there is no evidence justifying a finding that his evidence was false; the mere fact that his evidence is contrary to that of the accused, does not mean it is false.

 

[12]    Mahuwa did not see the stabbing of the deceased;  she testified that, after Ramashia told her that the accused stabbed the deceased, she saw the accused coming back, running, she saw the deceased with a stone in the hand and the deceased said that the accused stabbed him.  Again, the attorney of the accused did not put the accused’s case to this witness.  After cross-examination the evidence of this witness was therefore unchallenged.

 

[13]    As to the duty and/or principle that a legal representative should put his client’s case during cross-examination to the witness for the other side, KIRK-COHEN J stated the following in S v Van As 1991(2) SACR 74 (W) at 76j:  “It is a cornerstone of the administration of justice in South Africa and elsewhere that counsel should put his case to the witnesses for the other side”.  And on p.108 the Court referred to the following decisions in support of the aforesaid statement:

 

(a)      Small v Smith 1954(3) SA 434 (SWA) at 438 E – G:  “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness and if need be to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character.  It is grossly unfair and improper to let a witness’ evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.”

 

(b)     R v M 1946 AD 1023 at 1028 :  “As a rule a party should put to each of his opponent’s witnesses in turn so much of his own case as concerned that particular witness, or in which he had a share …………… Moreover, where it is intended to suggest that the witness is not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination, so that he may have an opportunity of explanation ………………..”

 

(c)     S v P 1974(1) SA 581 (RA) at 582 E- G:  “It would be difficult to over-emphasise the importance of putting the defence case to prosecution witnesses and it is certainly not a reason for not doing so that the answer will almost certainly be a denial.  The Court was entitled to see and hear the reaction of the witnesses ………………”

 

In view of the authority aforesaid, there was a duty on the accused’s attorney to have put his full case to the prosecution witnesses, which he did not do.  Should such failure be decisive in deciding upon the guilt of the accused? In my view, the following relevant and important factors should be taken into account:

 

(i)      it appears that the failure of the accused’s attorney was due to inexperience; I wish however to state categorically that this is not per se a valid reason and much will depend on the particular circumstances of each case.  Legal practitioners have the aforesaid duty and a failure to adhere thereto may result in a negative finding against their clients;

 

(ii)      the State was not taken by surprise at the trial when the  accused testified that he did not stab the deceased and that it was Ramashia who stabbed the deceased;  on the evening of the murder, detective inspector Makhavhu was told by community members that Ramashia was responsible  for the death of the deceased and when confronted Ramashia told him that he did not stab the deceased but that the accused did that and when the accused was confronted by the said detective he told him that he did not do it but that Ramashia did it.  Even during Ramashia’s evidence in chief it was put to him by Mr Poodhun that there is a “suggestion” that he (Ramashia) stabbed the deceased.  The State , and in particular Ramashia, knew from the date of the murder what the full case of the accused was.  The State was therefore never prejudiced.

 

In the premises, I am of the view that the failure of the accused’s attorney to put his case to the witnesses during cross-examination should not be decisive in deciding upon the guilt of the accused.

 

[14]    Insofar as the evidence of the accused is concerned, there is in my view no reason whatsoever to reject his evidence; he was honest and did not hesitate in answering the questions put to him.  Furthermore, the mere fact that his evidence differs from that of the state witnesses is no ground for rejecting his evidence.  As to his honesty I can mention an example:  when confronted by the statement that the deceased uttered his name (Jonas), the accused admitted this and if he wanted to be untruthful he could very easily have denied this statement – he then went on and gave a reasonable explanation on the issue of why the deceased uttered his name.  There is in my view no room for a finding that the accused’s evidence is false; on the contrary there is more than a reasonable possibility that his evidence is true.

 

[15]    The State bears the onus to proof the guilt of the accused beyond reasonable doubt.  In R v Difford 1937 AD 370 at 373 the following was stated:  ………………. no onus rests on the accused to convince the court of the truth of any explanation which he gives.  If he gives an explanation, even if that explanation is improbable, the court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false.  If there is any reasonable possibility of his explanation being true, then he is entitled to his acquittal.”  And in R v M, supra, at 1027 the following is stated:  “………………. The court does not have to believe the defence story, still less does it have to believe it in all its details:  it is sufficient if it thinks that there is a reasonable possibility that it

 

may be substantially true”.  In view hereof, and having due regard to the totality of the evidence, I am of the view that the State did not proof the guilt of the accused beyond reasonable doubt.  In the result, the accused is found not guilty of murder.

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MM  SNYMAN

ACTING JUDGE OF THE VENDA HIGH COURT

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