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HIGH COURT
(BISHO)
CASE NO.: CC20/2000
In the matter between:
THE STATE 5
versus
PUMLANI GQANGENI
J U D G M E N T
10
EBRAHIM J: The indictment sets out that the accused PUMLANI
GQANGENI is charged with two counts of murder, one count of
attempted murder, and two counts of assault. The accused has
pleaded not guilty to these charges. In terms of SECTION
115 of the CRIMINAL PROCEDURE ACT 51 of 1977 he elected not 15
to disclose the basis of his defence on any of the charges.
These charges arise out of events which occurred on the
night of 3 June 1999 at the residence of NTSHATSHOBA
GQANGENI, the deceased in count 1 and his wife NOMATHOKAZI 20
GQANGENI, the deceased in count 2.
The State case rests primarily on the evidence of two
witnesses. They are NOMASUNDU GQANGENI who is the daughter
of the deceased and the accused's cousin and BUSISIWE 25
GQANGENI the granddaughter of both deceased. In addition to
them four other witnesses also testified. Sergeant BULELA
MALUSI who arrived at the house shortly after the two
deceased/ ...
2 .
both/ ...
deceased had been killed testified about an altercation
relating to a firearm which occurred between the accused and
himself. He also testified that he had taken the accused
into custody. Dr DOMINIC TARA TILANKA JOHN who conducted a 5
post-mortem examination on both the deceased testified with
regard to the post-mortem findings he had made and the cause
of death in respect of each of the deceased. Inspector
MUTLESELI ERIC POTWA testified that he had taken a series of
photographs depicting the positions of the bodies of the 10
deceased at the scene of the murders. These were tendered
in evidence as EXHIBIT "D" . The testimony of Sergeant
SITEMBELO SOLANI related to the transportation of the bodies
of the deceased to the Cecilia Makiwane Hospital and
thereafter to the mortuary. Mr Kristafor who appears for 15
the State also tendered in evidence affidavits in terms of
SECTION 212(4) and 212(7) of the CRIMINAL PROCEDURE ACT.
Two of these were attested to by MANDELA CORNELUIS GANGENI
in which he identified the bodies of both the deceased to
Sergeant MADLANGOSI. A further two affidavits were attested 20
to by LUZUKO MADLANGOSI in which he identified the bodies of
both deceased to Dr DT JOHN. The State also tendered in
evidence in terms of SECTION 212(4) of the CRIMINAL
PROCEDURE ACT an affidavit and medical report from Dr CG
BOTLANI relating to his clinical findings of the injuries 25
sustained by LUPHO MASIKO.
The evidence of NOMASUNDU GQANGENI was that she resided with
3 .
wrapped/ ...
both the deceased at their residence at 9133 NU 3 Mdantsane.
On 3 June 1999 at about 6 pm the accused arrived at their
home. Shortly thereafter she left to attend church. Upon
her return she found the accused still there in conversation 5
with her mother, the deceased, NOMATHOKAZI GQANGENI. Her
mother later told the accused that he should sleep there and
not return home and in turn asked her to prepare a bed on
the floor for him. She then prepared a bed in the room in
which she and BUSISIWE GQANGENI and another child, LUPHO 10
MASIKO who was visiting there shared a bed. She says that
the accused was at first reluctant to go to bed, but later
he switched off the light and went to lie fully clothed on
the bed on the floor. She was able to see what was
happening in the room as the street light was shining 15
through the window. A short while later the accused got up
and smacked BUSISIWE and returned to his bed. Still a few
minutes later he handed his wallet to her, that is
NOMASUNDU, for safekeeping. After a short while BUSISIWE
told her to have a look at LUPHO, she got up, switched on 20
the light and saw that LUPHO had been stabbed on the right
hard side of her neck near to the jaw, and called to her
mother. The light in the parents' room was switched on and
with this the accused went to her parents' bedroom. He and
her parents met at the doorway of their room and her mother 25
asked the accused what he was doing to her children. The
accused did not reply but instead stabbed at her. Aft er the
accused had stabbed the mother she saw the knife in his hand
4 .
about/ ...
wrapped in a white cloth. The accused and her father were
thereupon involved in a struggle and during the course
thereof he stabbed her father too. Her mother had fallen
down on the bed in her parents' bedroom while her father 5
fell down near to the front door of the house. She heard
her father asking the accused to take him to hospital as he
was getting weak, but the accused did not respond and left
him lying there. The accused then called to her to come and
see what had happened and when she did so he grabbed her by 10
the collar and held the knife close to her neck. She could
hear their neighbours attempting to gain entry. Someone on
the roof tried to remove the iron sheet while others were
trying to get in by the door. The accused shouted that he
would kill her if they did not desist and thereupon they 15
seized with their efforts to gain entry. Shortly thereafter
the police arrived and gained entry to the house. This
enabled her to escape from the grasp of the accused. She
saw the accused grappling with a policeman in an attempt to
get the policeman's firearm, but his efforts proved 20
unsuccessful. The accused was then bound and placed in the
police van. She had not seen any injuries on BUSISIWE, nor
had she sustained any injuries herself. She was unable to
say why the accused had acted in such a manner.
25
She was extensively cross-examined by Mr Manj ezi who
appeared for the accused. She was questioned not only about
the stabbing of both the deceased and LUPHO MASIKO, but also
5 .
stabbed/ ...
about the surrounding circumstances and various other
issues. From this is emerged that she had not seen or heard
the accused speak to her father either before she went to
church nor upon her return. However, he had spoken to her 5
mother in her parents' bedroom and at that stage her father
was lying on her parents' bed. She confirmed that she had
seen the accused slapped BUSISIWE, but had not done anything
about it. She had not seen him stabbing LUPHO, but noticed
that she had been stabbed only after she had switched on the 10
light. She had not been asleep during either of these
incidents. She did not know why the accused had handed his
wallet to her for safekeeping. After he had stabbed her
parents he asked for the wallet to be returned to him, and
she did so. She denied the accused's version of the events. 15
She insisted that he had stabbed her father in the doorway
of her parents' bedroom and not near to the front door of
the house. At the time that the accused stabbed her mother
she was standing behind her mother and had unsuccessfully
tried to pull her mother away. Her father had not tried to 20
prevent the accused from leaving, nor had there been a
struggle over this. It was untrue that her mother had
intervened and been stabbed by her father, nor had her
father stabbed the accused in his hand. It was also untrue
thao her father had been in possession of a knife and that 25
the accused had dispossessed him thereof. When the accused
grabbed her she had been afraid as he had aimed the knife at
her neck. There was no reason for the accused to have
6 .
with/ ...
stabbed her parents or LUPHO MASIKO. She had seen at the
hospital that the accused had been assaulted, but his
injuries were not severe. She admitted that her father had
said that she should not call the police to lay a charge 5
against the accused, but he had done this in order to
protect himself from the accused.
During the course of re-examination and questions from the
Court she stated that she had not seen any injuries on the 10
accused prior to the neighbours assaulting him. At no stage
had her mother come between the accused or her father. Her
mother was approaching the accused when he stabbed her and
he had stabbed her before stabbing her father.
15
The testimony of BUSISIWE GQANGENI who is 9 years old is
thai after they had gone to bed the accused got up to drink
water. He then came to her and smacked her. Thereafter he
wen: to LUPHO and stabbed her. She awoke NOMASUNDU who
switched on the light and called to her grandmother. In 20
this regard she is referring to NOMATHOKAZI GQANGENI. She
says further that the accused went to her grandmother and
stabbed her and also stabbed her grandfather, in this regard
she is referring to NTSHATSHOBA GQANGENI. After this he
grabbed NOMASUNDU and held the point of the knife to her 2 5
neck. When the neighbours tried to get in by the roof
NOMASUNDU said that they should stop as the accused wanted
to stab her. When the police arrived the accused struggled
7
with the policeman over a firearm.
During cross-examination she said that the accused had
gotten up from where he was sleeping before smacking her. 5
She admitted that she had not seen the accused stab LUPHO,
nor had she seen him stab her grandmother or grandfather.
But she had seen the accused struggled with her grandfather
in the passage and this was close to the door of her
grandparents' bedroom. She admitted further that at the 10
hospital she had told NOMASUNDU that LUPHO had bumped her.
She had seen the knife when the accused was holding it to
the neck of NOMASUNDU and it had a white cloth around it.
In re-examination she said that she had seen the silver 15
capping at the end of the knife's handle. In reply to
questions by the Court she said that she had not heard any
shouting between the accused and her grandparents. She also
did not know why the accused had smacked her, or why he
stabbed LUPHO. 2 0
Dr DOMINIC TARA TILANKA J O H N ' S testimony is that he
conducted a post-mortem examination on the body of the
deceased NTSHATSHOBA GQANGE1NI . He confirmed his findings
contained in the post-mortem report, EXHIBIT "B", and also 25
confirmed his conclusion that the cause of death had been a
stao wound. Dr DT JOHN also conducted a post-mortem
examination on the body of "he deceased NOMATHOKAZI
GQANGENI/ ...
8 .
The accused's version of the events which resulted in the
stabbing of the deceased is materially different from that
provided by the State witnesses. He testified that he
visited the deceased NTSHATSHOBA GQANGENI who is his uncle
to discuss problems he was experiencing with the man who was 10
staying at his home. He and his uncle then became involved
in an argument with the money. Later it was agreed that he
would not return home but would sleep there. Prior to going
to bed he gave his wallet to the witness NOMASUNDU for
safekeeping as his uncle had wanted money from him. He then 15
went to sleep but awoke at about 10 pm and went to the front
door. As he was opening the door the deceased NTSHATSHOBA
came out of his bedroom and shouted at him, asking him where
he was going. His uncle pulled at him and they struggled as
he unsuccessfully tried to open the front door. His uncle 20
went to his bedroom but returned and they struggled again.
His uncle was trying to pull him away from the door and when
he turned to face his uncle he felt that he was being
stabbed on his head. The deceased NOMATHOKAZI GQANGENI
approached and tried to pull her husband away. She was 25
standing behind her husband who swore at her and then swung
his arm in an arch backwards towards her. He grabbed his
uncle's hand and discovered that his uncle had a knife in
his/ . . .
5
GQANGENI. He similarly confirmed his findings in the post
mortem report, EXHIBIT "C" and his conclusion that the cause
of death had been a stab wound.
9 .
had/ ...
his hand. He also noticed that the deceased NOMATHOKAZI was
no longer there. He could not say how many times his uncle
had swung his arm towards the deceased NOMATHOKAZI . He was
then able to overpower his uncle. He disarmed him and 5
stabbed him with the knife in self-defence. His uncle then
fell to the ground. The first wound which he inflicted was
to his uncle's neck and the second was also in the same
vicinity. His uncle, he says, was gripping him by his belt
and his private parts. He asked NOMASUNDU to telephone the 10
police by using the number 10111 and she did so. When the
residents of the area tried to enter the house he took hold
of NOMASUNDU by the hand so that the residents should not
enter. The knife was in his other hand and he did not
threaten her. The police entered the house by kicking open 15
an inter-leading door which provides access to the adjoining
residence. They instructed him to throw the knife down, and
he did so. One of the policeman pointed a firearm at him
and told him to face the wall and searched him. He was
taken outside where he was assaulted by the residents and 20
had to receive treatment at the hospital for his injuries.
The knife injury which his uncle had inflicted on his head
had been an open wound. He maintained that he had only
stabbed his uncle twice and did not know how his uncle had
sustained the other 10 stab wounds. He could not explain 25
now the deceased NOMATHOKAZI had sustained three stab
wounds, since his uncle had only swung at her once with the
knife in his hand. He denied having stabbed BUSISIWE, nor
10 .
wounds/ ...
had he stabbed LUPHO MASIKO and he did not know who had
stabbed LUPHO.
It emerged from Mr Kristafor's cross-examination that he had 5
not asked NOMASUNDU to return his wallet when he was
leaving. He claimed that he would get it later. When his
uncle approached he turned to face him, his uncle had the
knife in his right hand and had not transferred the knife to
his left hand. He had only seen him swung his arm once in 10
a horizontal motion backwards. He was unable to explain how
his uncle had inflicted the wounds on the left side of the
neck of the deceased. When he was asked to demonstrate this
in the court he had difficulty in demonstrating how his
uncle had swung at NOMATHOKAZI and inflicted the wounds. He 15
could not say how the wounds had been inflicted when Dr
J O H N ' S testimony was that it had been inflicted by means of
a downward motion. He had little difficulty in overpowering
his uncle who was older than him. He had stabbed his uncle
because his uncle had stabbed him. He said that he had the 20
knife in his right hand, but could not explain how the
wounds came to be inflicted on the right hand side of the
deceased's neck. He admitted that the deceased was unarmed
when he stabbed him and said that he had retaliated because
the deceased had stabbed him earlier. He was also cross and 25
had stabbed the deceased a second time in revenge and
because the deceased was holding his private parts. He did
not know how the deceased sustained the remaining stab
wounds
11
When re-examined by his attorney he said that he had not
stabbed the deceased in self-defence, he was retaliating 5
when he stabbed the deceased the second time and also
because the deceased had grabbed his private parts. In
reply to questions from the Court he said that besides
himself no-one else had been in the room with the children.
After he took the knife from the deceased, NTSHATSHOBA 10
GQANGENI he kept the knife until the policeman had told him
to throw it on the floor. His uncle, the deceased
NTSHATSHOBA, remained lying at the front door after he had
stabbed him. The deceased, NOMATHOKAZI, remained lying on
the bed in her bedroom after she had been stabbed. He had 15
seen his uncle stab her and there should only have been one
stab wound on her. His uncle had been the aggressor.
Although he had disarmed his uncle he had not thought of
slaoping or kicking him instead of stabbing him. He did not
know who else could have inflicted the additional wounds on 20
his uncle, but this must have occurred after he had been
taken away by the police. LUPHO MASIKO must also have been
stabbed thereafter. He could not explain why he did not
have confidence that NOMASUNDU would have told the residents
the truth and by this he meant the version as described by 25
him.
This concluded the testimony of the accused and the defence
case/ . . .
12
case was then closed.
I turn to an evaluation of the evidence. Mr Kristaf or' s
submission that NOMASUNDU GQANGENI was a truthful witness 5
has not been challenged by Mr Manj ezi. The truthfulness of
the witness BUSISIWE GQANGENI has similarly not been
challenged. It is the contention, however, of Mr Manj ezi
that NOMASUNDU did not see the accused stab LUPHO MASIKO,
nor did she see him smack BUSISIWE. Further at the hospital 10
BUSISIWE had said that she thought that she had been bumped
by LUPHO. These manifested no question that both NOMASUNDU
and BUSISIWE GQANGENI were truthful witnesses. Neither of
them attempted to exaggerate the conduct of the accused, nor
was there any indication that either of them were bias 15
against him. Throughout their evidence in chief and in
cross-examination NOMASUNDU created a very favourable
impression. She confined herself solely to what she had
observed and gave a clear decisive account of the events of
that night. She was an honest witness and her observations 20
of what occurred are unquestionably reliable. I have no
hesitation in accepting her testimony in its entity.
BUSISIWE GQANGENI, although only 9 years old, impressed me 25
with the manner in which she testified and the content of
her evidence. Despite her tender years she was able to
provide a clear and uncontradictory account of what had
happened/ ...
13 .
too/ ...
happened to her and in addition that something untoward had
happened to LUPHO MASIKO. Even though she made the comment
at the hospital that she thought LUPHO had bumped her, the
fact that the accused smacked her is corroborated by 5
NOMASUNDU. In my view the evidence establishes that the
accused assaulted her by smacking her.
The only evidence to contradict that of the State witnesses
is provided by the accused. His version in a nutshell is 10
that he did not assault BUSISIWE, nor did he assault
NOMASUNDU by holding the knife to her neck, nor did he stab
LUPHO MASIKO in an attempt to kill her. Further it is not
he, but NTSHATSHOBA GQANGENI who stabbed NOMATHOKAZI
GQANGENI and caused her death. He admits that he stabbed 15
his uncle NTSHATSHOBA GQANGENI twice, but he says he did
this in self-defence. The accused was an extremely poor
witness. In his evidence in chief he contradicted the
version that his attorney had put to the witnesses and which
he had obviously provided. This version changed again 20
during cross-examination. His replies were often evasive
and contradictory and on a number of occasions he was
patently untruthful. His version of how NOMATHOKAZI came to
be stabbed is manifestly false, since it was impossible for
her wounds to have been inflicted in the manner described by 25
him. On the basis of his version she should only have
sustained a single wound, yet she clearly had three wounds
which were inflicted by means of a knife. On his version
14 .
There/
too he only inflicted two stab wounds on NTSHATSHOBA
GQANGENI, yet the post-mortem examination revealed that
there were 12 knife wounds. Finally he admitted that when
he stabbed NTSHATSHOBA he had done so in retaliation for the 5
deceased having stabbed him. earlier and that the deceased
was unarmed on this occasion. His suggestion that LUPHO may
have been stabbed by NTSHATSHOBA GQANGENI is not merely
farfetched but clearly untrue. On the basis of the evidence
of NOMASUNDU the only person who could have inflicted the 10
stab wounds on LUPHO is the accused, since neither her
father or mother had entered the room prior to the wounds
being inflicted. There is no suggestion either that
NOMASUNDU or BUSISIWE stabbed LUPHO. In my view there is no
question either that in stabbing LUPHO twice in the neck the 15
only reasonable inference to be drawn is that he intended
killing her. The reason he has proffered for grabbing hold
of NOMASUNDU is manifestly false. If he was indeed innocent
of any wrongdoing then he had nothing to fear from her
opening the door to permit the others to enter. He clearly 20
did not want her to open the door as he realised she would
tell the residents the truth of what had occurred and that
he was the assailant that stabbed both her mother and father
and LUPHO and had in addition smacked BUSISIWE. He also
realised that she would convey to the residents that he was 25
holding a knife to her neck and had threatened to kill her
if they entered.
15 .
There is no question that NOMASUNDU has told the truth in
regard to the actions cf the accused and has not
misinterpreted his conduct. I accept her version that he
held the knife to her throat and threatened to kill her 5
should the residents of the area try to enter the house.
The accused has tried to deceive the Court and his version
of the events is manifestly a fabrication. There is no
question of it being reasonably possibly true. I have no
hesitation in rejecting it since it is palpably false. I 10
accept without reservation that the true version of what
occurred that night have been provided by the State
witnesses BUSISIWE and NOMASUNDU GQANGENI. I am satisfied
that the State has proved the guilt of the accused in
respect of each of the charges set out in the indictment 15
beyond a reasonable doubt.
In the result the accused is found guilty of:
(a) The murder of NOMATHOKAZI GQANGENI as set out in count
1 of the indictment. 20
(b) The murder of NTSHATSHOBA GQANGENI as set out in count
2 of the indictment.
(c) The attempted murder of LUPHO MASIKO as set out in
count 3 of the indictment.
(d) The assault of NOMASUNDU GQANGENI as set out in count 25
4 of the indictment.
(e) The assault of BUSISIWE GQANGENI as set out in count 5
of the indictment.
/ • • •
16 .
Y EBRAHIM : 5 JUNE 2 00 0
JUDGE : BISHO HIGH COURT
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