IN THE HIGH COURT OF SOUTH AFRICA NATAL PROVINCIAL DIVISION AR 274/05 NKOSINATHI ELIJAH MAPHUMULO REASONS FOR JUDGMENT

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1 IN THE HIGH COURT OF SOUTH AFRICA REPORTABLE NATAL PROVINCIAL DIVISION AR 274/05 In the matter between: NKOSINATHI ELIJAH MAPHUMULO Appellant and THE STATE Respondent REASONS FOR JUDGMENT Hurt J On 6 December 2004, Nkosinathi Elijah Maphumulo was convicted, in the Durban and Coast Local Division, on two counts of murder. On the following day he was sentenced to life imprisonment on each of the counts. On 10 December 2004 he was given leave to appeal, and although neither the judgment nor the order consequent thereto state as much, the matter has proceeded as an appeal before the Full Bench of this Court. It was duly set down to be heard on the 21st

2 2 October, On Saturday, 15 October 2005, the Appellant died. On Tuesday, 18th October, the attorney who had been acting for the late Appellant delivered a notice of withdrawal of the appeal, under the impression that appeal proceedings terminate ipso facto on the death of the Appellant. However, after further consultation with the intestate heirs of the Appellant, the Appellant s attorney addressed a further letter to the Court, on the same day, in the following terms: We have been instructed by the family and intestate heirs of the Appellant to proceed with the appeal which was set down for hearing on 21 October 2005 as the deceased Appellant's pension benefits and other benefits accruing from his employment may be affected by the outcome of the appeal. In the circumstances could you please ignore our notice of withdrawal of the appeal sent by telefax earlier today." It appears that, since Roman times, the common law has been that an appeal against conviction is a "personal proceeding" that terminates on the death of the Appellant, but where the conviction

3 3 affected the patrimony of the Appellant, his heirs had locus standi to proceed with the appeal. The common law authority cited in support of this principle is Voet in which the learned writer (referring to Digest ) distinguishes between an appeal against a banishment with a deprivation of assets and an appeal where the banishment is accompanied by an order of deprivation. In the former case, the learned author says, the appeal lapses because no one other than the Appellant himself had, up to the time of his death, any interest in the outcome of the appeal. In the case where the conviction was accompanied by a deprivation of the Appellant s assets, his heirs had an interest in the outcome of the appeal, and could prosecute it for the purpose of "winning the day against the sentence" (Gane's Translation, volume 7 page 642). The first record of this passage being referred to in a judgment in this country is in the case of Tremearne v. Rex 1917 NPD 117, a decision by the full bench of this Division (Dove Wilson JP, Broome & Hathorn JJ). In that case the full Court dismissed a contention

4 4 that an appeal could be proceeded with where the setting aside of the conviction would have a result on the estate s power to enforce the terms of a lease which the deceased had concluded before his death. Dove Wilson J., who handed down the judgment of the Court, said (at page 121) That passage I think draws this distinction, that if the appeal is to be competently maintained by a deceased man's representatives the estate must have been affected expressly by the terms of the sentence and the appeal must have been lodged by deceased, expressly against the sentence as affecting the estate; but if the estate is not affected expressly by the terms of the sentence, but only indirectly as a result of it, the heir cannot maintain the appeal." It seems that the ratio of this judgment was that an appeal could only be prosecuted after the death of the Appellant if the result of setting aside the conviction would be that the estate became entitled to some sort of refund from the State. Prima facie that decision is still binding on this Court and must be followed unless we are satisfied that it is wrong. For reasons which will emerge later in this judgment it is, in my view, not necessary to decide whether their Lordships correctly

5 5 applied the principle referred to by Voet. A more generalised approach to the passage from Voet is to be discerned in subsequent judgments (S v. P 1972 (2) SA 513(NC); S v. Molotsi 1976 (2) SA 404 (O); S v von Molendorff 1987 (1) SA 135 (T)). In the case of S v. January : Attorney General of Natal v. Khumalo 1994 (2) SACR 801 (A), the State had appealed on a point of law against a decision by the Full Bench of the Natal Provincial Division. The respondent, against whom the State had brought the appeal, had died prior to the hearing of the appeal. The Supreme Court of Appeal dealt with the matter in the following passage at page 809 g. to i : In supplementary heads of argument filed by the Appellant it was brought to our notice that the respondent had died on 25 September 1922 (sic). Counsel for the Appellant nevertheless contended that the appeal should be heard and adjudicated upon. This contention is without substance. Had the court a quo known that the respondent had died, it would no doubt not have granted leave to appeal. The reason is that at the death of a convicted person all appeal proceedings lapse unless, possibly, the conviction detrimentally affects his estate. (See, e.g. Voet ; S v. P 1972 (2) SA 513(NC); S v. Molotsi 1976 (2) SA 404 (O); S v von Molendorff 1987 (1) SA 135 (T)......) Admittedly these authorities deal with the effect of the death of a convicted person on appeal proceedings

6 6 initiated by him, but there is no logical reason why such proceedings brought by the State should not also lapse at his death save, possibly, should the State stand to derive some pecuniary benefit in the event of the appeal being upheld. It follows that the granting of leave to appeal was a nullity." Save for the facts stated in the letter which I have quoted earlier in this judgment, which Mr De KIerk, on behalf of the State, was prepared to accept as correct, it is clear that the Appellant s estate is not affected expressly by the terms of the sentence, but only indirectly as a result of it and on that basis, a decision to allow the appeal to be prosecuted on behalf of the heirs would be contrary to the express ratio decidendi in the Tremearne case (supra page 121). This particular aspect was not dealt with in the case of S v January (supra), but in the light of the acceptance of the statements in the cases cited at page 809 h, it would seem that the Appellate Division was inclined to the view that a direct pecuniary interest was essential to preserve an appeal notwithstanding the death of the Appellant. In my view, the common law in this regard has been changed by the enactment of the Bill of Rights in the Constitution, Act No 108 of

7 7 1996, more particularly the provisions of section 10 which read as follows: 10 Human Dignity Everyone has inherent dignity and the right to have their dignity respected and protected. It cannot be contended that a conviction for a criminal offence is not a drastic curtailment of a person s dignity. All the more so where the offence is a heinous crime such as the assassination of the two victims whose deaths gave rise to the charges against the Appellant in this matter. In the words of Marc Antony, The evil which men do lives after them, the good is oft interred with their bones. I do not intend, in this judgment, to wrestle with the problematic question of whether a person retains the right to have his dignity respected and protected after he has died, although all equitable considerations plainly point in favour of that. No doubt a finding to this effect may have dramatic consequences on many aspects of our law, for instance the law of defamation. But for the purposes of this judgment it is clear that the heirs themselves have a right to have their dignity respected and protected and it cannot be gainsaid that their dignity,

8 8 too, must have suffered to a certain degree by their association with the Appellant. The evidence adduced in mitigation established that the Appellant had one child, aged seven, who was being looked after by the Appellant s mother because the Appellant s wife had apparently suffered a stroke and was unable to look after their child. These three people, at least, would have had their dignity adversely affected by the accused having been found guilty of the two murders with which he was charged. In my view, the heirs and family of the deceased have a sufficient interest, in law, to instruct his attorney to prosecutor the appeal for the sake of clearing the Appellant s name and good reputation. A fortiori, they have an interest to have the conviction set aside because that must plainly entitle them to acquire the Appellant s pension benefits and, possibly, aspects of his employment contract, reinstated to the benefit of his estate. I turn now to the merits of the appeal: Very little need be said on this score. The Court a quo came to the conclusion that the Appellant

9 9 had committed the murders because the two deceased had both been shot with the firearm which the Appellant kept in his safe in his home. The Appellant s evidence that other people lived in the home, knew that he had the firearm in the safe and knew that he kept the key to the safe in his cupboard, was simply disregarded by the Trial Court. Evidence that the key to the safe had been lost some six months before the accused was arrested (and, incidentally, approximately one year after the commission of the offences) seems to have absorbed the attention of the Court and to have been the basis upon which the Court formed the opinion that the Appellant was not a truthful witness. Even if this opinion was justified (and I am by no means persuaded that it was) it did not follow as a matter of logic that, because the Appellant lied in the witness box, the only reasonable inference was that he had committed the offences. In the circumstances of this offence, that could only be one of many reasonably possible inferences. It follows that the Court a quo erred in convicting the Appellant. The conviction and sentence are set aside and a verdict of not guilty

10 10 substituted therefor. Balton J : I agree Murugasen AJ : I agree