The DPP also tried to argue the court had “failed to attach sufficient weight to” Hlonipheni Ntanzi's evidence, which Mossop said was ironic given that Ntanzi did not testify in the civil trial but rather his evidence was included in the transcript.
Ntanzi was the family friend Dlamini called after her husband's initial threat of suicide.
This included that: Dlamini was the “only other person in the dwelling apart from Ntanzi” when Gumede took his own life; that Ntanzi “heard two shots and two spent cartridge cases were subsequently found”; that he saw Dlamini putting the firearm Gumede used on the ground and that “though he had earlier received information the deceased was threatening to shoot himself Ntanzi did not find a firearm on the deceased when he searched him”.
“The firearm that caused the death of the deceased belonged to the plaintiff [Dlamini],” the DPP argued.
Mossop raised issue with the first, third and fourth points, saying these were inaccurate.
Another important point flagged by the DPP was the gunshot residue (GSR) specimens and tests, which eventually proved Dlamini's innocence and that her husband took his life.
“It was submitted that there was no reference to GSR tests in the docket before the conclusion of the criminal trial of the plaintiff. Accepting that the proposition is correct, that did not necessarily mean the third defendant [Nxumalo] did not know of the existence of the specimens harvested or that there were no results then in existence.
“[Nxumalo] knew of the specimens because a copy of the letter accompanying the specimens to the forensic science laboratory in Pretoria was in the photographic album [Nxumalo] received before the criminal trial commencing.”
Mossop ruled “the application for leave to appeal is refused, with costs to be taxed on scale C”.
TimesLIVE
KZN DPP’s bid to appeal ‘malicious prosecution’ ruling fails
Image: 123RF
The KwaZulu-Natal director of public prosecutions (DPP) has failed in her bid to overturn a judgment that found in favour of a Nkandla woman wrongfully convicted of her husband's murder.
The DPP filed the leave to appeal application months after KwaZulu-Natal high court judge Rob Mossop ruled the minister of police and DPP are liable to pay Phikisile Alvina Dlamini damages for five-and-a-half years of “torment”.
Dlamini was detained, prosecuted and sentenced to 20 years in prison after the death of her husband Thamsanqa Gumede, who took his own life.
This was eventually set aside and she launched a successful claim for wrongful arrest, unlawful detention and malicious prosecution.
The quantum is yet to be determined through a further trial or negotiations.
The prosecution, in its appeal bid, argued the transcript of proceedings from the criminal court should not have been submitted as an exhibit in the civil trial. This despite that all parties in the matter consented to its submission.
“It was argued by [counsel for the DPP] that the transcript was hearsay evidence and ought to have been excluded by me and my failure to order this may be viewed by another court as a misdirection,” Mossop said.
“I was advised there was agreement between the parties that I was to treat what was recorded in the transcript as if it was evidence that had been led before me. It consequently hardly lies in the mouth of the fourth defendant to now say I should have ignored what its own counsel, among others, urged me to do.”
Woman's 5-year jail torment for wrongful murder conviction 'like a CSI plot': judge
The DPP also tried to argue the court had “failed to attach sufficient weight to” Hlonipheni Ntanzi's evidence, which Mossop said was ironic given that Ntanzi did not testify in the civil trial but rather his evidence was included in the transcript.
Ntanzi was the family friend Dlamini called after her husband's initial threat of suicide.
This included that: Dlamini was the “only other person in the dwelling apart from Ntanzi” when Gumede took his own life; that Ntanzi “heard two shots and two spent cartridge cases were subsequently found”; that he saw Dlamini putting the firearm Gumede used on the ground and that “though he had earlier received information the deceased was threatening to shoot himself Ntanzi did not find a firearm on the deceased when he searched him”.
“The firearm that caused the death of the deceased belonged to the plaintiff [Dlamini],” the DPP argued.
Mossop raised issue with the first, third and fourth points, saying these were inaccurate.
Another important point flagged by the DPP was the gunshot residue (GSR) specimens and tests, which eventually proved Dlamini's innocence and that her husband took his life.
“It was submitted that there was no reference to GSR tests in the docket before the conclusion of the criminal trial of the plaintiff. Accepting that the proposition is correct, that did not necessarily mean the third defendant [Nxumalo] did not know of the existence of the specimens harvested or that there were no results then in existence.
“[Nxumalo] knew of the specimens because a copy of the letter accompanying the specimens to the forensic science laboratory in Pretoria was in the photographic album [Nxumalo] received before the criminal trial commencing.”
Mossop ruled “the application for leave to appeal is refused, with costs to be taxed on scale C”.
TimesLIVE
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