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