Picture: iStock
A school teacher, Phikisile Alvina Dlamini, who was wrongfully convicted and spent over five years in prison for her husband’s murder more than a decade ago, has achieved another legal victory.
On Wednesday, the KwaZulu-Natal (KZN) High Court in Durban dismissed the leave to appeal an application filed by the Director of Public Prosecutions (DPP).
This came after Dlamini successfully sued the state in July this year.
The high court ruled at the time that the DPP and the minister of police were liable to compensate Dlamini for the five-and-a-half years of “torment” she endured while serving a 20 year prison sentence.
In his judgment, Judge Robin Mossop compared Dlamini’s ordeal to the popular TV series CSI, stating that her experience was like “the hallmarks of a work of fiction that has been brought into existence by the creative mind of a screenplay writer. But they are entirely true.”
Dlamini, who lived in the Thulani area near Nkandla in KZN, was convicted of murdering her husband, Thamsanqa Gumede.
In court, it was revealed that on January 27 or 28, 2008, Gumede had threatened to commit suicide with a firearm.
The wife had returned to their home to prepare for work after spending the night at her mother’s house.
She informed one of Gumede’s sisters about the situation, and eventually, Hlonipheni Ntanzi, who was dating Dlamini’s sister, came to assist her.
Gumede was found lying on the bed drinking beer, and he denied any intention of committing suicide.
Ntanzi testified during Dlamini’s trial, which began at the Eshowe Regional Court in April 2008, stating that he searched Gumede’s upper body and found no firearm.
ALSO READ: Daveyton man seeks R350k in damages after wife left him following unlawful arrest
He recounted that shortly afterward, Gumede stepped outside to urinate, and moments later, Ntanzi heard two gunshots.
When he went to investigate, he discovered Gumede dead near the front door of the house.
The witness noted that he did not see who fired the shots.
Dlamini was subsequently arrested and charged with her husband’s murder, with bail denied.
Inspector Kunene, who has since passed away, was the arresting officer.
Inspector Ngobese, a police crime scene investigator, was among the officers who responded to the scene on 28 January.
During the trial, he testified that he received a call regarding the incident at approximately 7:25am.
Ngobese described his duties at the scene, which included briefly interviewing witnesses, taking photographs, and collecting physical evidence, including a firearm and two spent cartridge cases.
Additionally, he collected samples from the hands of Dlamini, Gumede, and Ntanzi, sending them to the Forensic Science Laboratory (FSL) in Pretoria for gunshot residue (GSR) testing.
The specimens were accompanied by a letter dated 18 February 2008, which was included in the photo album presented in the trial.
READ MORE: Mozambican man bags R270K in damages after ‘xenophobic assault’, unlawful arrest by SA police
However, it was later emerged that the GSR test results, which exonerated Dlamini and indicated that Gumede had committed suicide, were never presented as evidence in the criminal trial.
Ngobese only disclosed during cross-examination by Dlamini’s lawyer that he had collected the GSR specimens; he did not mention this in his initial testimony.
Furthermore, the state prosecutor, E.M. Nxumalo, confirmed to the magistrate that no tests had been conducted regarding the matter.
Despite this, Dlamini was convicted in February 2009 and sentenced to 20 years in prison the following month.
Dlamini later discovered that the GSR test results conducted by Captain van Hamm had been available six months prior to her conviction.
She received these results in February 2013.
Afterwards, Dlamini applied for bail again and was released from prison in June 2013.
Although she pursued an appeal against her conviction and sentence, she faced several challenges during the process.
ALSO READ: Police clarify claims of more than 4 000 wrongful arrests in a year
In November 2015, the KZN High Court in Pietermaritzburg overturned Dlamini’s conviction and sentence, referring the case back to the Eshowe Regional Court.
However, in January 2016, Dlamini was once again convicted of murder, as Van Hamm’s analysis report “did not address any of the facts specific to the deceased’s death”.
Dlamini promptly appealed this verdict and was granted bail.
Following the prosecution’s concession of the appeal, her conviction and sentence were subsequently set aside, leading to her release.
Dlamini subsequently filed a lawsuit against the state for damages.
Mossop, in a judgment delivered on 19 July 2024, concluded that there was no direct evidence indicating that Gumede had been murdered.
The judge ruled that both the DPP and the minister were liable for damages due to Dlamini’s wrongful arrest, unlawful detention, and malicious prosecution.
The specific amount of damages was yet to be determined, as the DPP lodged an appeal application.
READ MORE: Over 4 000 wrongful arrests registered in one year, claims exceed R2bn
On 2 October, the same judge dismissed the appeal, stating that there were no prospects of success.
He rejected the argument that the test results were unavailable at the time the decision to prosecute was made.
Lawyers for the DPP contended that even if the test results had been introduced before the trial concluded, they would not have proven suicide.
However, Mossop criticised the prosecutor for denying during the trial, when questioned by the magistrate, that the tests had not been conducted.
He described the prosecutor’s conduct as “disturbing and significant”.
“The interaction between the regional magistrate and the third defendant did not suggest that the test had been conducted but that the results were not yet on hand.
“The question posed by the magistrate was clear, as was the third defendant’s response: no tests had been done.
“There was, thus, nothing for the plaintiff’s legal representative to raise with the third defendant for he would have heard that no test had been conducted, notwithstanding that specimens had been collected,” the judgment on the appeal reads.
“After reflection, I am not persuaded that another court would come to a different conclusion other than the one to which I came. Costs must follow the result.”
NOW READ: Woman loses R1.8m negligence case involving miscarried twins removed a month apart
Download our app and read this and other great stories on the move. Available for Android and iOS.
