A Nkandla woman languished in jail for more than five years after being convicted of murdering her husband despite objective, scientific evidence she had not committed the crime.
The results of gunshot residue (GSR) tests, which proved her innocence and that her husband had committed suicide, were never admitted as evidence during her trial.
The prosecutor seemingly lied to the presiding regional court magistrate, claiming no tests had been done.
Now Durban high court judge Rob Mossop has ruled the minister of police and the director of public prosecutions are liable to pay Phikisile Alvina Dlamini damages for five-and-a-half years of “torment”.
The quantum is yet to be determined through a further trial or negotiations.
“The facts of this matter could have been taken from a popular TV series, such as CSI. They have all the hallmarks of a work of fiction that have been brought into existence by the creative mind of a screenplay writer, but they are true,” Mossop said in his ruling.
Dlamini, a schoolteacher, was married to Thamsanqa Gumede.
On January 27 or 28 2008, Gumede threatened to commit suicide.
Dlamini went to her mother's house and informed one of Gumede’s relatives.
At best this was reckless. At worst it was untruthful
— Durban high court judge Rob Mossop
She returned to her marital home with a family friend, Hlonipheni Ntanzi. Gumede was lying on the bed drinking beer. He denied wanting to commit suicide. Ntanzi searched his upper body and found no firearm.
Ntanzi said Gumede went outside and he heard two shots. He did not see who fired the shots.
Soon a large group of about 45 to 60 people, including police officers, crowded onto the scene.
Dlamini was arrested and charged with Gumede's murder. Bail was denied.
An inspector Ngobese, a SAPS crime scene investigator, was one of the officers at the scene. He said he had taken gunshot “primer residue” samples from the hands of Gumede, Dlamini and Ntanzi and sent them to the lab for testing with a covering letter.
A copy of this letter was placed in the photo album used at Dlamini’s trial which commenced in April 2008 in the Eshowe regional court.
Mossop said when Ngobese testified he “curiously” did not mention in his evidence in chief that he had taken primer residue specimens at the scene.
He only acknowledged this after a question from Dlamini’s lawyer.
The prosecutor, questioned about this by the magistrate, indicated there were no tests.
Dlamini was convicted and sentenced to 20 years' imprisonment in March 2009.
“Unbeknown to Dlamini and, allegedly, the prosecution, an analysis had been performed and the test result was available six months before she was found guilty. It revealed Gumede had tested positive for GSR on his right hand,” Mossop said.
It had been forwarded to Nkandla SAPS but it was never presented at her trial.
Dlamini lodged an application for leave to appeal her conviction and sentence. She then obtained the result “through a single telephone call to the investigating officer”.
Based on this new evidence, she applied for bail and was released.
She then insisted the other tests on her and Ntanzi also be forensically examined. They conclusively established she had not fired the gun. “But there was a problem with her appeal,” Mossop said.
This was because the GSR evidence did not form part of the appeal record before the high court because it had not been used in the trial.
In November 2015, the appeal court, however, set aside her conviction and sentence and sent the matter back to the regional court for it to hear the GSR evidence.
In January 2016, the regional court considered an affidavit of the GSR expert “which did not deal with any of the facts specific to the death of the deceased”.
Dlamini was convicted of murder again. The magistrate took into account the five years she had already served in prison, deducted this and sentenced her to 15 years behind bars.
Dlamini immediately sought leave to appeal again and was granted bail pending this. Only then did the director of public prosecutions concede the case.
“Her conviction and sentence were set aside and she was, at last, freed from the torment of her conviction and imprisonment. It had devoured five-and-a-half years of her life,” Mossop said.
In determining liability, he said it should have been obvious to the investigating officer that there was no direct evidence Gumede had been murdered but there was evidence he had committed suicide.
“It appears there was a rush to judgment,” he said, noting the GSR results would have cleared up any doubt.
Regarding Dlamini’s claim for unlawful detention, he said SAPS had done nothing with the test result for nearly four-and-a-half years, resulting in her prolonged detention.
“The tragedy of this is Dlamini had not been convicted by the time the test result was completed and received. Had this been brought to the attention of the prosecuting authority timeously, it is probable there would have been a different outcome to this episode,” Mossop said.
Regarding the actions of the prosecutor, he said it was difficult to accept his version that he had no knowledge of the GSR specimens because the letter to the laboratory should have been in the docket.
The prosecutor, in his evidence, also said he was “mortified” after hearing the evidence of Ngobese on the first day of the criminal trial and confronted the Nkandla branch commander to demand the results.
“He was told he would get them but never did. Yet he permitted the trial to continue for a further 10 months and he told the magistrate no tests had been done. That was manifestly untrue. At best this was reckless. At worst, it was untruthful,” Mossop said.
He found for Dlamini in her claim for wrongful arrest, unlawful detention and malicious prosecution.
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