Court name
Supreme Court of Zimbabwe
Case number
SC 131 of 2004
Crim. Appeal 107 of 2003

S v Labuschagne (07/03) (SC 131 of 2004, Crim. Appeal 107 of 2003) [2005] ZWSC 131 (21 February 2005);

Law report citations
Media neutral citation
[2005] ZWSC 131













DISTRIBUTABLE
(108)


Judgment
No. SC. 131/04


Crim.
Appeal No. 107/03








RUSSELL
WAYNE LABUSCHAGNE v THE STATE








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, SANDURA JA & ZIYAMBI JA


HARARE,
NOVEMBER 25, 2004 & FEBRUARY 22, 2005








J
C Andersen SC
, for the appellant





R
K Tokwe
, for the respondent





ZIYAMBI
JA: The appellant was convicted by the High Court sitting at
Bulawayo of the murder, with a constructive intent, of Wilson Mudimba
at Sinamwenda River, Binga, on 28 November 2000. He was sentenced
to undergo a term of fifteen years’ imprisonment. He now
appeals
to this Court against both the conviction and sentence.






Siansole Muchimba
(“Muchimba”) was the last State witness to see the deceased
alive. He is a fisherman at Chimbuyu Fishing
Camp in Binga. He
and the deceased were friends. His evidence was that on 28 November
2000 he and the deceased were fishing
from a metal canoe along the
Sinamwenda River. At about 5 pm the appellant, accompanied by
Walter Ryan Claasen (“Claasen”),
approached them in a white
speedboat. The appellant cut into the fishing nets which had
earlier been set by Muchimba and the deceased
and then rammed into
the side of their canoe, thereby capsizing it and causing them to
fall into the water. The deceased and he
swam towards the speedboat
and held onto its rails as their canoe had drifted away and they were
some thirty metres from the riverbank.
However, the appellant and
Claasen took hold of Muchimba’s hands and pulled him into the
speedboat. In so doing both lost their
balance and fell into the
water. Muchimba swam to the riverbank for safety, while the
appellant and Claasen swam back to the speedboat.






Once in the speedboat the
appellant and Claasen took hold of the deceased, who had remained
clinging to the rails of the speedboat.
While Claasen pressed the
deceased’s hands against the railings, the appellant, who had armed
himself with an oar from the capsized
canoe, assaulted the deceased
with the oar several times on his head and hands. During the
assault, one blow missed the deceased
and landed on the speedboat,
causing the oar to break in two. The deceased let go of the rails
and fell into the water. He swam
for safety towards a petrified
tree that protruded from the water and, on reaching it, held onto the
stump. But the appellant and
Claasen followed him to the petrified
tree and rammed the speedboat into his back as he clung to the tree
stump. The deceased lost
his grip, fell into the water and
disappeared for some time. He then resurfaced and shouted: “I am
dying; I am going”. With
that he disappeared under the water.






The
appellant and Claasen then turned their attention to the witness, who
was standing on the riverbank, but he took to his heels
and fled.
He later saw the appellant and Claasen camped on the riverbank some
distance away.






Muchimba went to Chimbuyu Fishing
Camp, where he reported the matter to Samuel Mwinde (“Mwinde”)
and James Makore (“Makore”).
The three then proceeded to
report the matter to Stanley Michael Shaw (“Shaw”), whom they
requested to radio the police.
Shaw advised them to return the next
morning and they did – but on their arrival they found the
appellant with Shaw, so they decided
to go to the scene of the
incident. At the scene, they observed bloodstains on a petrified
tree branch and retrieved a broken oar
and a green cap belonging to
the appellant. There was no sign of the body of the deceased.
They returned to Shaw, who then summoned
the police.





The
police arrived on 1 December 2000 and searched for the
deceased’s body without success. Following indications made by
Muchimba, the appellant and Claasen were arrested and charged with
murder.





The
appellant’s evidence was to the following effect. He is a safari
operator operating from his fishing camp at Sinamwenda Bay.
On
28 November 2000, at about 4 pm, he went fishing for
tigerfish in the lake, accompanied by Claasen. About one hundred
and fifty metres or so from the shore, his cap blew off his head
while he was driving the speedboat and landed in the water. It
proved difficult to recover it owing to the swells in the water,
which caused the cap to go “up and down in the water”. He
decided to leave it – intending to look for it later. They
proceeded tiger-fishing and were returning at approximately 5.30 pm
when, about three to four hundred yards away from the fishing party,
he noticed a net extended from a tree in the lake to the shore,
in a
prohibited netting area. He cut the net at both ends and was about
to head for his camp when he saw two people in a steel
boat
approximately eight metres from the shore. He drove towards them as
they paddled towards the shore. When he was two metres
from them,
and they were about three metres from the shore, they jumped out of
their boat into the water. They could both stand.
The water
seemed to be about five feet deep. Muchimba left the water first
and ran into the bush without looking back, with the
“assumed”
deceased following about five metres behind him. The appellant
stopped his speedboat beside their canoe, looked inside
and then left
to rejoin his fishing party. After about twenty minutes they
proceeded to his fishing camp, where at about 7 pm
they had a
braai until 10 pm, after which they returned to the camp.







The next morning the appellant
was going tiger-fishing when he received a message that Shaw wanted
to see him. He went to Shaw’s
house and was told that he was
being accused of drowning someone. He told Shaw to call the police.
As he left Shaw’s house
Makore accosted him, saying that: “Your
people have stolen my pots”. He told Makore twenty times to call
the police. Makore
is a police reservist. He made no mention of
the drowning at all. The appellant then went tiger-fishing and
returned at 11 o’clock
for breakfast. As he reached the shore,
Makore walked up to his boat with a paddle in his hand, accompanied
by Muchimba and two
or three others. Makore held the paddle up and
said: “You killed him, this is what you killed him with”. The
appellant
told him to go and make a report to the police and went on
to have breakfast. At 3 pm he went fishing again.





Claasen’s
evidence was corroborative of the appellant’s.






Claasen
was convicted of assault with intent to commit grievous bodily harm,
while the appellant was convicted of murder with a
constructive
intent to kill. There is no appeal by Claasen.







The main ground of appeal
advanced by counsel on behalf of the appellant is that the
conviction, based as it was on the evidence
of a single witness –
Muchimba – could not be sustained as the evidence of Muchimba, far
from being satisfactory in all material
respects, was contradictory
and inconsistent with the real evidence and probabilities. He
submitted also that the court a quo misdirected itself by
not referring to the cautionary rule at all.





It
is trite that in every criminal case the onus is on the State
to establish the case against an accused person beyond a reasonable
doubt. This onus never shifts. Even an accused person’s
untruthfulness standing by itself is not sufficient for a court to
draw an inference of
guilt, since an innocent person may falsely deny
certain facts because he fears that admitting them would land him in
trouble.
See S v Gijima 1986 (1) ZLR 33 (S); S v Dladla
1980 (1) SA 526 (AD) at 530 C-E.





However,
the fact that an accused person lied or gave false evidence is a
factor to be considered when drawing inferences of his
guilt. See
Broadhurst v Reginam [1964] 1 All ER 111 at 120 A-B,
where LORD DEVLIN made the following remarks:






“But if on the proved facts two
inferences may be drawn about the accused’s conduct or state of
mind, his untruthfulness is a factor
which the jury can properly take
into account as strengthening the inference of guilt. What strength
it adds depends of course
on all the circumstances and especially on
whether there are reasons other than guilt that might account for
untruthfulness.”






The
learned judge in the court a quo disbelieved the
appellant, whom he found to be untruthful, and accepted the evidence
of Muchimba.





Muchimba
was the only eyewitness to the incident and his evidence was required
to be treated with caution. With reference to the
evidence of
single witnesses, our courts have pronounced as follows:






“It is, of course, permissible
in terms of s 253 of the Criminal Procedure and Evidence Act
[Chapter 59] for a court to convict a person on the single
evidence of a competent and credible witness. The recognised test
is whether his
evidence is found to be satisfactory in every material
respect. See, for instance, R v Mokoena 1932 OPD 79 and R
v Ellis
1961 R & N 468 (FSC). But, as cautioned
by LEWIS JP in S v Nyati 1977 (2) RLR 315 (AD) at
318 E-H, that test is not to be regarded as an inflexible rule
of thumb. There is no magic formula
which determines when a
conviction is warranted upon the testimony of a single witness. His
evidence must be approached with caution,
and the merits thereof
weighed against any factors which militate against its credibility.
In essence a commonsense approach must
be applied. If the court is
convinced beyond a reasonable doubt that the sole witness has spoken
the truth, it must convict, notwithstanding
that he was in some
respects unsatisfactory. See Hoffmann and Zeffertt South African
Law of Evidence
3 ed at 451.”






Per
GUBBAY JA (as he then was) in S v Nathoo Supermarket (Pvt) Ltd
1987 (2) ZLR 136 at 138 D-F. And further:






“… ‘the
court must first decide whether the witness is to be believed, and
must then satisfy itself that it has not been deceived by an
apparently honest witness’. His evidence must be clear and
satisfactory in every material respect. See Ellis v R 1961 R
& N 468 (FSC); S v Bvundura SC 125-82; S v Muranda
SC 36-84.”









Per KORSAH  JA in S
v Shoniwa
1990 (1) ZLR 311 (SC) at 313G.





The
failure to refer to the cautionary rule is not in itself a
misdirection. What is required is a demonstration or indication
from the reasoning of the learned judge that he exercised caution in
the assessment of, and placing reliance on, the evidence of
the
single witness. See S v Mutandi 1996 (1) ZLR 367 (H) at
371 G-H.





The
court a quo was confronted with two opposing versions of
what transpired at the scene of the crime - that of Muchimba, who
deposed to a physical
confrontation between the appellant and the
deceased; as opposed to the appellant’s version, that there was no
confrontation whatsoever,
but that the deceased and Muchimba, upon
seeing the appellant, quickly paddled to the riverbank and ran away;
and further, that Muchimba
had made a false allegation of murder.





The
court a quo found Muchimba to be an honest witness and
accepted his evidence in preference to that of the appellant. The
two versions are mutually
destructive. Acceptance of one
necessarily means rejection of the other.





I
am unable to find any error on the part of the court a quo
in accepting Muchimba’s evidence. It was corroborated in a
material respect by Shaw, who was a State witness and a friend of
the
appellant. That Shaw had no reason to lie against the appellant was
readily admitted by the latter. Shaw told the court that
the
appellant had related to him how he “bumped” into the boat in
which the deceased and Muchimba were. The following is an
extract
from Shaw’s evidence as it appears from the record:





“Q So
what did the accused say to you? A. Russell?






Q.
Yes. A. He said that he went down the river and he bumped the
boat over and the one guy got up and ran away up the hill.





Q.
He said he bumped their boat over? A. Yes.”







The evidence of Shaw was fatal to
the appellant’s case. It adequately corroborated Muchimba’s
evidence. In addition, two witnesses,
Mwinde and Makore, told the
court that Muchimba made a report of the drowning of the deceased to
them and indicated the place in
the water where his canoe capsized.






Much
argument was advanced, on behalf of the appellant, on the allegation
that Muchimba made no mention to the witnesses of the
capsizing of
his canoe. According to Shaw, Muchimba reported that the appellant
had “beaten us and drowned my friend”, no reference
being made to
a collision. According to Makore, the report made by Muchimba was
“one of them had been assaulted, fallen into
the river and drowned
…”.






In
my view, it was clear from Muchimba’s report that the appellant had
assaulted the deceased and caused him to drown. The failure
to
mention the ramming of the canoe could easily be attributed to the
fact that such a detail was of secondary importance to him
at the
time, his main purpose being to report the death of the deceased at
the hands of the appellant. In any event, the appellant
himself
mentioned the ramming of the canoe, according to the evidence of
Shaw, which the court a quo believed on that point.
Accordingly the learned trial judge’s acceptance of Muchimba’s
evidence of the ramming of the canoe
cannot be faulted.





Muchimba’s
evidence that there was blood on the tree stump where the deceased
was last assaulted by the appellant was also criticised
by counsel.
It was submitted that no reliance could be placed on this evidence
since the police saw no blood when they visited
the scene.





Mwinde’s
evidence reads in part as follows:





“Q.
Did you make any other observation of the tree stump? A. I
saw some blood.






Q.
Whereabouts on the stump? A. It was as from the top of the
piece of tree stump. It was showing going downwards.





Q.
How much blood was there on the tree stump? A. The blood was
not much on the tree stump. After we had seen the tree stump
we
then went back. When we went back it then started drizzling and
there was some wind blowing and the following day that is when
the
police came. …





Q.
If you might continue? A. When the police arrived people had
gathered so the people together with the police went to the
scene.
When the police arrived we took them to the scene at the tree stump
and due to the drizzle which had occurred the police
did not find any
blood.”







Makore also saw blood on the tree
stump. The following is an extract from his evidence under
cross-examination:





“Q.
You saw blood on this tree? A. Yes.






Q.
This blood was on top of the tree? A. The blood was not right
at the top of the tree but on the sides where he had been
holding
onto.





Q.
So the blood indicated handprints, the blood you found at the
shore? A. No I did not see any palm-prints or fingerprints.
I
only saw blood.





Q.
How do you know it was blood from holding onto the tree? A. I
saw blood.





Q.
Where did you get this about holding onto the tree? A.
Siansole (Muchimba) told me that he had been holding onto the tree
on
that spot …”.






There
was accordingly abundant corroboration of Muchimba’s evidence in
this regard and in every material respect.






The
appellant, on the other hand, was found by the court a quo
to be untruthful. When asked to comment on Shaw’s evidence that
the appellant had told him he “bumped their boat and then one
of
them ran out of the water”, he said:





“Well
first of all I never said anything like that to Mike Shaw.
Secondly if I said something like that then basically I am
saying I
drowned somebody.”





Later
he was questioned by the court
a quo
as follows:





Q.
So are you saying did he (Shaw) get that story from Muchimba or
from you? A. I have no idea, my lord, he knows the story,
sir.
Well he was confused of what happened. I have no idea but the last
thing in the world I would do if I had drowned somebody
was to go and
tell somebody that I had drowned someone.”





In
view of the foregoing, the acceptance by the learned trial judge of
the evidence of Muchimba, as corroborated by the three State
witnesses, is unassailable. The guilt of the appellant was
established beyond reasonable doubt and his conviction of the murder
of the deceased cannot be faulted.





The
appeal against Sentence
:





It
was submitted that the sentence was in all the circumstances
excessive. The mitigatory features advanced on behalf of the
appellant
in his notice of appeal were that he acted as “an
overzealous citizen trying to prevent a serial, and well known, fish
poacher
from decimating the river of fish, with nets, when other
types of fishing were allowed”.






It was also submitted that the
court
a quo
misdirected itself in finding that the appellant’s attempt to
return to the deceased when he realised that he was drowning was
equally consistent with a sinister motive, namely that the appellant
did not intend to save the deceased. I find no misdirection
as
alleged. Certainly the actions of the appellant in going towards
the deceased, who was apparently drowning, were equally consistent
with a desire to save him or to complete the work of drowning the
deceased. The learned trial judge placed no weight on either
version. I discern no error in his approach.







As to the appellant’s
overzealousness, if overzealousness it was, the court
a quo
correctly dismissed this as an excuse for the appellant to embark on
such a murderous attack of the deceased. He rammed into the
canoe,
capsizing it, assaulted the deceased as he clung to the speedboat,
and again rammed into the deceased as he clung to the tree
stump for
safety. The attack was correctly found by the learned trial judge
to be an unprovoked one on a defenceless victim.






The
appellant showed no remorse whatsoever. After assaulting the
deceased and causing him to drown, he returned to his camp where
he
had a braai – not troubling himself to search for the body or to
make a report. The next morning he went fishing as though
nothing
had happened. His actions were callous, to say the least. I am
unable, therefore, to agree that the sentence imposed
was excessive.





Accordingly
there is no merit whatsoever in the appeal and it is dismissed in its
entirety.





CHIDYAUSIKU
CJ: I agree.





SANDURA
JA: I agree.





Gill,
Godlonton & Gerrans
,
appellant's legal practitioners