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[2017] ZAWCHC 83
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Ngcukana v S (A443/15) [2017] ZAWCHC 83 (18 August 2017)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Court a quo Case No:
SS26/2012
Appeal Case No:
A443/15
ANATHI
NGCUKANA
APPELLANT
And
THE
STATE
RESPONDENT
Coram
:
ERASMUS, SAMELA &
ROGERS JJ
Heard:
30 JANUARY
2017
Delivered:
18 AUGUST 2017
JUDGMENT
ROGERS J:
Introduction
[1]
We heard this appeal on 30 January 2017. Since this
judgment is being delivered more than six months later, the litigants
are owed
an explanation. Immediately after the hearing the presiding
judges conferred and were in agreement as to the outcome of the
appeal.
Because the case lent itself to a three-way division of
labour, it was agreed that each of the judges would prepare a portion
of
the judgment which would then become the judgment of the court.
This arrangement did not come to fruition as a result of which I
have
prepared a judgment covering the whole appeal.
[2]
The appellant and one
Avile
Tokota were charged in the court a quo with having
committed various crimes in the Strand area over the period November
2006 to
March 2007. The charges were as follows (Tokota being a
co-accused only in respect of counts 4, 5, 9 and 10):
·
count 1: murdering, by shooting, one Sonwabile on
11 November 2006 near Jango’s Tavern in Nomzamo;
·
counts 2 and 3: attempting to murder, by
shooting, one
Nkholise
on
7 February 2007 near a container in Nomzamo and robbing him of a
cellphone;
·
counts 4 and 5: murdering one
Mejeni
and one Mgidi
, both by shooting, on 25
February 2007 while they sat in a parked car in Pholile Park;
·
count 6: murdering, by shooting, one
Mrawshe
on 17 March 2007 at Lwandle
;
·
count 7: attempting to murder, by shooting, one
Mnguni on 24 March 2007 at Nomzamo;
·
count 8: attempting to murder, by shooting, one
Hans on 29 March 2007 at Nomzamo;
·
counts 9 and 10: possession of the firearms and
ammunition used in counts 1 - 8.
[3]
The appellant was arrested in early April 2007. He was
released on bail. In November 2011 he was taken into custody where he
remained
until sentenced in the present case. The trial ran before
MacRobert AJ over the period October 2012 - April 2013. There were
two
assessors for part of the trial but with the concurrence of the
accused one of the assessors was excused on account of ill-health.
The court a quo delivered judgment in late May 2013. Tokota was
acquitted on all counts where he was a co-accused. The appellant
was
acquitted on count 6. He was found guilty on all the other counts,
save that in respect of count 2 (the robbery charge associated
with
the attempted murder of
Nkholise
)
he was convicted on the competent verdict of theft.
[4]
The sentencing proceedings took place in June 2013. On 6
June 2013 the court a quo imposed the following sentences on the
appellant:
·
count 1: life imprisonment;
·
counts 2 and 3: one year’s imprisonment
(theft) and five years’ imprisonment (attempted murder);
·
counts 4 and 5: eighteen years’
imprisonment on each count;
·
count 7: five years’ imprisonment;
·
count 8: five years’ imprisonment;
·
counts 9 and 10: three years’ imprisonment
(possession of a firearm) and 18 months’ imprisonment
(possession of ammunition).
[5]
On 10 December 2013 MacRobert AJ granted the appellant
leave to appeal to a full bench against all the convictions and
sentences.
The appeal was initially scheduled to be heard in January
2016. In the absence of heads of argument, the appeal was postponed
and
eventually heard on 30 January 2017. Mr du Preez, who was not
involved in the trial, appeared for the appellant and Mr Moeketsi,
who was the prosecutor in the court a quo, for the respondent.
[6]
The appeal is essentially against the trial court’s
factual findings. There were no contentious legal issues. We can only
interfere with the trial court’s factual findings if they are
vitiated by material misdirection or shown by the record to
be wrong
(
R v Dhlumayo & Another
1948
(2) SA 677
(A) at 705-706;
S v Naidoo
2003
(1) SA 347
(SCA) para 26). This approach applies equally to
credibility findings and the application of cautionary rules (
S
v Prinsloo
2016 (2) SACR 25
(SCA) para 187).
Less deference is required where the question is one of drawing
inferences from proved facts (
Director Of
Public Prosecutions, Gauteng v Pistorius
2016
(1) SACR 431
(SCA) para 46).
[7]
MacRobert AJ meticulously summarised the evidence in
respect of each count. After dealing with a trial-within-a-trial
conducted
concerning an identity parade (not germane to this appeal),
he proceeded to set out the legal principles relating to
contradictions
in witnesses’ testimony, accomplice evidence,
identificatory evidence, single witnesses, evaluation of evidence in
general
and adequacy of proof, common purpose, police statements,
lying witnesses and alibi evidence. It has not been argued that he
misstated
any of the legal principles. He then evaluated the case
against the accused in respect of each count.
[8]
The learned judge’s reasons for sentence were
somewhat terse in comparison to his judgment on conviction. He did
not provide
reasons for granting leave to appeal.
[9]
In his heads of argument and oral submissions Mr du
Preez realistically and wisely acknowledged that there was little he
could say
in support of the appeal against the convictions on counts
2, 3 and 7 – 10. We thus do not intend to deal with them except
to say that we are satisfied that there is no basis for us to
interfere with the trial court’s factual findings. The same
is
true for the sentences imposed on these counts.
[10]
We thus concentrate, in what follows, on the convictions
in respect of counts 1, 4 and 5 and on the sentences imposed for
these
convictions. For reasons which will become apparent, it is
convenient to deal with counts 4 and 5 before addressing count 1.
[11]
Because the court a quo did not give reasons for
granting leave to appeal, we do not know, in respect of each count
and each sentence,
the ground or grounds which the trial judge
thought had reasonable prospects of success. It is unfortunate that
he did not assess
the application for leave to appeal more
critically. If leave to appeal had been confined to the counts which
Mr du Preez argued,
the record would have been considerably shorter
than the 39 volumes placed before us.
Conviction
on counts 4 and 5
[12]
Both of the accused were charged with the double murders
constituting counts 4 and 5. In the event Tokota was acquitted on
both
counts while the appellant was convicted on both counts, on the
basis that he had shot one of the deceased and had shared a common
purpose with the perpetrator of the other shooting.
[13]
A neighbour and family member discovered the bodies of
the two deceased at around 03h00 – 04h00 on the morning of
Sunday 25
February 2007 in the front and back seats of a car parked
outside their dwellings in Pholile Park, an informal settlement. The
car belonged to the deceased Mejeni. Both deceased died from single
gunshot wounds, Mgidi to the head, Mejeni to the abdomen. Mgidi
was
in the front passenger seat. Mejeni was sprawled across the back seat
with his legs protruding from the right door. It appears
likely that
they were drinking beer in the car when they were attacked.
[14]
Mgidi was still alive when found but died at the scene
shortly afterwards. The forensic pathologist, Dr Abrahams, said that
the
‘snoring’ which the neighbour and family member heard
from Mgidi was probably the respiration phenomenon known as
Cheyne-Stokes
breathing which is characteristic of a person’s
dying breaths.
[15]
Dr Abrahams testified that the wound suffered by Mgidi
was such that he would not have survived for more than a few minutes.
This
would place the shooting well after midnight. She gave this
evidence before the lay witnesses testified that Mgidi was still
alive
when they found him. Since the State’s case was that the
shooting occurred before midnight, Dr Abrahams was recalled. She
then
said that it would have been possible for Mgidi to survive for much
longer than a few minutes.
[16]
The appellant’s right palm-print was found on the
driver’s door just beneath the window. The appellant, who
denied having
been on the scene at all, testified that he recalled
seeing the car in question (as depicted in a photograph) in front of
Lucky’s
Tavern in Sithunzi Street, Nomzamo (the appellant lived
in Sithunzi Street). This was on the Saturday morning. He was sitting
outside
the tavern with friends on a beer crate. He thought he may at
one stage have lent against the car. The appellant admitted that
Tokota was a friend of his but said they were not together on the
night of 24/25 February 2007.
[17]
Tokota testified that he could not recall what he did on
24/25 February 2007 because there was nothing special about this
night
at the time. He testified that if he went out drinking he would
normally be home before 22h00. He first heard of the double murders
when he was arrested in November 2008.
[18]
Tokota testified that his right arm was injured in 2003,
leaving him with permanent weakness in his right hand. He does not
have
the strength to use his right hand to hold and fire a weapon.
Because he is right-handed, he would not be able to wield a weapon
with his left hand. Dr Theron of Victoria Hospital gave evidence
which supported Tokota’s evidence in this respect.
[19]
The State’s case against the two accused rested on
the evidence of
Bonginkosi
Dase who goes by the nickname Novosh. As at February
2007 Dase was a student at the Cape Peninsula University of
Technology. He
testified in terms of s 204 of the Criminal
Procedure Act.
[20]
His evidence was in summary the following. On the
evening of 24 February 2007 he was playing pool at Mangena’s
Tavern in Sithunzi
Street. He was joined there by his friends
Malibongwe and Vuyo and later by the appellant and Tokota whom he
knew but who were
not his friends. One Sabelo then arrived to say
that his beers had been taken by two men from Pholile Park and that
they should
go there to retrieve them. After finishing their game of
pool, the six of them set off for Pholile Park.
[21]
Sabelo led them to a car parked outside a dwelling in
Pholile Park. One man was sitting in the front passenger seat,
another in
the back seat. The appellant confronted the man in the
front seat. After a brief and heated exchange, the appellant drew a
firearm
from his waist and shot the man in the head. Shortly
thereafter Tokota said there was another man in the back seat. Tokota
drew
a firearm and shot this man. The appellant walked around to the
driver’s side and searched inside the front of the car for
beers. Malibongwe also looked inside the car. They retrieved two
beers and gave one to Sabelo and one to Dase and Vuyo. The six
men
then went off in different directions.
[22]
Dase testified that he did not know that the appellant
and Tokota were carrying firearms. He was shocked when the shooting
occurred.
This notwithstanding, he did not report the matter to the
police. He testified that about two weeks later he met Malibongwe and
asked him what had transpired. Malibongwe said that he had gone to
the police as a result of which the appellant and Tokota had
been
arrested. (Tokota was in fact only arrested in November 2008.)
[23]
Sabelo, Vuyo and Malibongwe were not called as
witnesses. By the time of the trial Sabelo had apparently died. The
other two, according
to the investigating officer, Constable Ntetha,
could no longer be found. It seems likely that Malibongwe did indeed
approach the
police because there was a statement from him in the
docket in which he named the six people who had been at the car at
the time
of the shooting. It was put to Dase that according to
Malibongwe’s statement the appellant supposedly shot the person
in
the back seat while Tokota shot the person in the front seat. Dase
said that this was untrue.
[24]
Ntetha interviewed Sabelo, who denied having been on the
scene, and Vuyo. When the trial started on 8 October 2012, Dase’s
name was known to the police as one of the six men but he had not yet
been interviewed. Ntetha said there was difficulty tracing
him. The
State at that stage thus had no eye-witnesses to support the double
murder charges. Ntetha finally spoke with Dase in
early February 2013
and arranged an interview with the prosecutor. Dase was called as a
witness about two weeks later.
[25]
The fact that Dase’s nickname is Novosh led to
some unexpected twists and turns in the conduct of the trial. This
arose from
the fact that the three eye-witnesses in respect of count
1 (to whom I shall refer as Thuliswa, Amanda and Asanda) had already
testified that the second perpetrator in count 1 – the man who
was with the appellant at the time of the shooting outside
Jango’s
Tavern on the evening of Saturday 11 November 2006 – was a
person known to them as Novosh. This person had
a light skin
complexion and dreadlocks. Dase answers this description.
[26]
Thuliswa testified that a few days after the shooting in
count 1 she was at the police station to have a copy of her ID
document
certified. She saw another policeman in the presence of the
man known to her as Novosh. She told the policeman who was dealing
with her, Const Mzukwa, that this Novosh was the man involved in the
shooting at Jango’s Tavern. Const Mzukwa testified that
he
reported this information to Const Mbuqe who was at that time the
investigating officer but who subsequently died.
[27]
During Dase’s cross-examination it was put to him
by Tokota’s attorney that Tokota would testify that he had a
quarrel
with Dase in 2006 when Dase was arrested for attempted
murder. Dase responded that this was not true and asked what the
quarrel
was about. Strangely, Tokota’s attorney said that it
was a ‘long story’ and that ‘we are not going to go
into that now’.
[28]
In the event, the reference to an attempted murder
assumed greater significance in the light of subsequent evidence. It
emerged
that at around 12
h00
on Monday 13 November 2006 Dase was arrested on a charge
of attempting to murder one Sibusiso Peti in Simon Street, Nomzamo.
This
was not far from Jango’s Tavern. The docket in respect of
the Peti attempted murder was subsequently handed in as an exhibit.
The investigating officer was Const (later W/O) Ndzingwe, who was
called as a witness. According to the docket, the shooting in
Simon
Street took place at about 20h00 on Saturday 11 November 2016, around
one hour before the shooting at Jango’s Tavern.
The complainant
and witnesses in the Peti attempted murder identified Dase as one of
the four men who accosted the family in their
home. W/O Ndzingwe
testified that he received information (he could not remember from
whom) that the firearm used in the Peti shooting
belonged to Tokota,
as a result of which the police went to Tokota’s house. This
could well provide the basis for a quarrel
between Dase and Tokota.
[29]
Dase’s warning statement in the Peti attempted
murder was taken at around 18h00 on Wednesday 13 November 2016. He
would have
been in custody for several days before being released on
bail. It is thus not unlikely that he was at the police station when
Thuliswa claims to have seen Novosh there.
[30]
Dase, having agreed to testify as a s 204 witness
in respect of counts 4 and 5, thus found – no doubt to his
surprise
and dismay – that the finger of suspicion was pointing
at him as a co-perpetrator of the murder in count 1. At the court’s
insistence, Dase, Thuliswa, Amanda, Asanda and Ntetha were recalled,
sometimes more than once, to answer questions about the Novosh
issue.
Dase, who was the first to be recalled, said that there were in fact
two persons living in Sithunzi Street with the nickname
Novosh. The
other Novosh was about his height and also wore dreadlocks. The other
Novosh was, however, thinner and taller than
he was.
[31]
Thuliswa, when first called as a witness, testified that
at the police station she told the policeman, ‘This is the
friend
of Anathi [the appellant] who was with Anathi when Sonwabile
[the deceased in count 1] was shot’. In the statement she made
to the police on 12 November 2006, the day after the shooting, she
described the second perpetrator as a man with dreadlocks but
said
she did not know his name. In oral evidence she testified that she
had told the policeman that the other man was Novosh but
that she did
not know his proper name.
[32]
Upon recall, she testified that she knew a Novosh whose
proper name was Bonginkosi Dase and who lived in Sithunzi Street. She
also
knew of another Novosh but did not know where he lived. She now
claimed that it was this other Novosh who was with the appellant
at
Jango’s Tavern. She said the two Novoshes looked quite similar.
Later in the course of the same evidence she admitted
having thought
that the Novosh at the police station was the one with the appellant
at Jango’s Tavern but she was not sure.
Thuliswa’s
description of the other Novosh was that he was the same height as
Dase, also with a light complexion and dreadlocks
but thinner.
[33]
During her initial evidence, Amanda said that the Novosh
who was with the appellant lived in Sithunzi Street. She often saw
them
together. She said she used to buy clothes from Novosh’s
mother. In her first statement to the police she said that she did
not know the names of the perpetrators but described the one as
having dreadlocks. In oral testimony she denied having told the
police that she did not know the perpetrators’ names.
[34]
When Amanda was recalled, she testified that she knew a
person called Bonginkosi (ie Dase) who lived in Sithunzi Street. His
mother
sold clothes. She said that this was not the person who was
with the appellant at Jango’s Tavern. This is directly at odds
with her previous testimony where she identified the Novosh in
question as being the son of a woman from whom she bought clothes.
When this direct contradiction was put to her, she denied having
given the evidence attributed to her. She now claimed that the
appellant had been with another person, also with a light complexion
and dreadlocks. She said the night at Jango’s Tavern
was the
first time she saw this other person. She described him as thin and
taller than Dase. She denied knowing of more than one
person called
Novosh. In other words, she now claimed that the person who was with
the appellant at Jango’s Tavern was not
a person known to her
as Novosh.
[35]
When Asanda first testified, she described the Novosh
who had been with the appellant outside Jango’s Tavern as
white-complexioned
with dreadlocks. She did not mention any other
person called Novosh. When recalled, Asanda said that the Novosh she
saw with the
appellant was a person with whom she had been at school.
(It is common cause that she and Dase attended the same high school
and
that Dase was already then known as Novosh.) She testified that
she did not know of any other Novosh. She described this Novosh
as
having a light complexion, slender build and dreadlocks. He was
shorter than she.
[36]
Not very much can be made of the conflicting
descriptions of Dase and the person who was with the appellant at
Jango’s Tavern.
Dase’s height was subsequently measured
at 1,73 m and Asanda’s at 1,66. So if Asanda was correct
in saying that
the second perpetrator at Jango’s Tavern was
shorter than her, it could not have been Dase. However Dase, Thuliswa
and Amanda
all said that the other Novosh was the same height or
taller than Dase.
[37]
It is necessary to record a point made by the
appellant’s counsel in cross-examination, namely that it was
the investigating
officer, Ntetha, who brought Thuliswa and Amanda to
court when they were recalled. He was alive to the problem which had
arisen
in regard to his key witness on counts 4 and 5. Ntetha was
recalled on the Novosh issue before they testified again. Upon such
recall, he confirmed having heard that Thuliswa had seen Novosh at
the police station. He said that he understood there to be two
Novoshes. The other Novosh was wanted in connection with several
other cases. His information was that this other Novosh was slender
and light-skinned. He said this person’s real name was
Malibongwe.
[38]
When he was recalled yet again, he claimed that
the other Novosh was not Malibongwe. He had now obtained that
person’s real
name,
Sithemnekosi
Gungle
, from his (Novosh’s) brother,
Wandile. He said that this other Novosh was taller than Dase. This
person could not be found
but used to stay in Sithunzi Street.
[39]
Ntetha’s evidence was, as the trial judge found,
most unsatisfactory. The possible involvement of Dase in count 1 was
not
properly investigated by the police. The reason for the
withdrawal of the Peti attempted murder charge is unclear.
Unfortunately
one cannot discount as a reasonable possibility that
the about-turn which Thuliswa and Amanda (who are cousins) made
regarding
the identity of the second perpetrator in count 1 was the
result of influence from the investigating officer with a view to
protecting
the credibility of the State’s single witness on
counts 4 and 5. The same may be true of the evidence that Dase gave
concerning
the existence of a second Novosh.
[40]
The appellant testified before Ntetha, Dase and the
other witnesses were recalled. He admitted knowing Dase and that the
latter’s
nickname was Novosh. He said he was friends with Dase
at an earlier time but not in 2006/2007. He testified that he did not
know
of any other Novosh. This evidence was not challenged nor was he
recalled for further questioning.
[41]
The appellant testified that he knew Malibongwe by
sight. He denied knowing a person with the name Sabelo. He mentioned
one Vuyo
as being the person who was sitting with him outside Lucky’s
Tavern. Whether this was the Vuyo to whom Dase was referring
in
connection with the events of 24/25 February 2007 was not explored.
[42]
Tokota, like the appellant, testified before the
recalling of the witnesses mentioned above. He confirmed that he knew
Dase by the
nickname Novosh. He testified that he fell out with Dase
in 2006. The circumstances of the quarrel were that Dase was arrested
for attempted murder. Tokota heard that Dase had told the police that
he got the firearm from Tokota, as a result of which the police
visited his place. When Tokota next met Dase, he told Dase he would
‘get him’ by telling their friends that Dase was
gay –
Tokota (so he claimed) had seen Dase kissing a man. Tokota did not
mention a second person with the nickname Novosh
nor was he asked
about this.
[43]
Tokota confirmed that he knew Sabelo. He said Sabelo
lived in Pholile Park and that he (Tokota) had first met Dase at
Sabelo’s
house. He also knew Malibongwe and Vuyo. He denied,
however, having been with them on the night of 24/25 February 2007 or
having
any involvement in the double murders.
[44]
I must emphasise that Dase was not on trial. However in
assessing the State’s case the trial court was obliged to take
into
account, in the appellant’s favour, all facts which might
reasonably possibly have been true. On the evidence before the trial
court, it was reasonably possible that Dase was not a stranger to gun
violence and that he had participated in the murder at Jango’s
Tavern and in the Peti attempted murder which took place about an
hour earlier.
[45]
The reason why these possibilities are relevant is that
one only has Dase’s word that the persons who committed the
double
murders at Pholile Park were the appellant and Tokota. The
trial judge said that, although Dase’s initial evidence was
‘extremely
impressive’, his evidence on recall was ‘shaky
at best’. He was found to have been untruthful regarding his
arrest
for the Peti attempted murder. The judge found that Dase may
have had a motive falsely to implicate Tokota, based on their falling
out following the Peti attempted murder. The fact that the trial
court acquitted Tokota of the double murders necessarily implies
that
the court found it to be reasonably possible that Dase lied in
identifying Tokota as one of the shooters at Pholile Park.
(The judge
correctly ruled out the possibility of mistaken identification.)
[46]
In regard to the appellant, the trial court said that
Dase had no motive falsely to implicate him. Dase’s initial
evidence
had been ‘impressive’. The subsequent evidence
which was unsatisfactory and untruthful related to ‘extraneous
matters’. Because Dase had not been warned in terms of s 204
in relation to offences other than counts 4 and 5, he might
have been
untruthful out of fear of being implicated in count 1 and in the Peti
attempted murder.
[47]
The court said that the evidence of the other witnesses
generally corroborated each other. This does not take the State’s
case further because these other witnesses could not give evidence on
the crucial matter as to who the perpetrators were.
[48]
The court rejected as untrue the evidence of Mejeni’s
wife that on the morning of Saturday 24 February 2007 they had washed
the car at the Caltex garage near Shoprite. This finding was made in
the light of evidence from W/O Mostert that the Caltex garage
was
only built several years after the murders and evidence from lay
witnesses that the car had not been in working order on the
Saturday.
Again one has to question the integrity of the police investigation.
The washing of the car was relevant to the fingerprint
evidence.
Mejeni’s wife would not have been aware of the significance of
this detail. One is left with the uncomfortable
possibility that the
idea of the car’s having been washed was suggested to her.
[49]
The trial court was critical of the appellant’s
evidence. The first ground of criticism was he initially appeared
intent on
challenging the palm-print evidence. This criticism is
unfair. The appellant’s counsel wanted Legal Aid to fund the
cost
of a fingerprint expert to assess the State’s expert
evidence. In the event this funding was not forthcoming and the
appellant’s
counsel thus had no foundation on which to
cross-examine the State’s expert, W/O Berlyn. If the appellant
was not at the
scene of the shooting, he was within his rights to
explore the correctness of the palm-print identification, since only
if the
palm-print identification were solid would he need to explore
other possibilities as to how the print might have got onto the car
innocently.
[50]
The next point of criticism was that the car could not
have been outside Lucky’s Tavern on Saturday 24 February 2007
because
it was not in working order. However a fair reading of the
appellant’s evidence shows that he himself never said that the
Saturday in question was 24 February 2007. The assessor and the judge
questioned him on the assumption that he was talking about
24
February 2007 but even then he qualified his responses by saying that
he could not remember the date. He testified that he often
visited
Lucky’s Tavern on Saturdays. The tavern was in his street. When
W/O Berlyn was recalled, she was unable to say that
the print could
not have been left on the car a week or more earlier.
[51]
The trial court also said that it was most unlikely that
the palm-print got onto the driver’s door in the way described
by
the appellant. The movement he demonstrated in court would have
left the print towards the bottom of the door, not immediately
beneath the window. The court found that the position of the print
accorded with Dase’s observations. We must defer to the
trial
judge’s assessment of the movement described by Dase though I
would hesitate to say that it was impossible, even if
it was
unlikely, for the print to have got onto the car in the way the
appellant explained.
[52]
As to the palm-print’s according with Dase’s
observations, neither Dase nor W/O Berlyn demonstrated how the print
might
have been placed in the position where it was found. Dase said
that the appellant opened the front passenger door immediately before
shooting the occupant. Dase’s prints were not found on the
front passenger door. Dase testified that the appellant then went
around to the driver’s door and looked inside the car for
beers. He did not say what part of the driver’s door the
appellant touched. The appellant testified that he was left-handed.
It is not immediately obvious why a person opening the driver’s
door would place his right hand on the body of the door immediately
beneath the window and facing downwards. W/O Berlyn was not
asked to
demonstrate how the print might have got into that position.
[53]
I should mention that four other prints were lifted, one
from the front passenger window, and three from the interior back
windows
of the car. There was no evidence as to whose prints these
were.
[54]
The presence of an accused’s fingerprint where one
would not expect it to be can be a damning piece of evidence. Even a
single
finger-print may, in appropriate circumstances, be sufficient
to establish an accused person’s guilt (cf
S
v Legote & Another
[2001] ZASCA 64
, where
Harms JA was critical of the trial court’s decision to
discharge an accused person against whom the only evidence
was a
fingerprint on a vehicle). However vehicles are used in public
places. The presence of a stranger’s fingerprint on
the outside
of an ordinary sedan car is not necessarily surprising (see
R
v Du Plessis
1944 AD 314).
[55]
However, and even if one accepts it as proved beyond
reasonable doubt that the palm-print got onto the car at the time of
the double
murder, the trial court appears not to have considered the
possibility that the appellant may nevertheless not have been one of
the shooters. Sabelo was the person who took the others to Pholile
Park to recover his beers. Dase’s evidence was that Malibongwe
was one of the persons who searched the car for beers. It is possible
that the appellant, like Malibongwe, touched the vehicle
while
looking inside for beers, after two other people had shot the
occupants. Neither the appellant nor Tokota appear to have
had any
motive to resort to such violent conduct in respect of beers
apparently taken from Sabelo.
[56]
It is here that Dase’s evidence as a single
witness becomes critical. The trial court found it reasonably
possible that Dase
was lying when he testified that the person who
shot Mejeni in the back seat was Tokota. It must follow as a
reasonable possibility
that Dase was protecting one of the true
killers. And if that is so in the case of Tokota, why not also in the
appellant’s
case? And given the question marks over Dase’s
activities on 11 November 2006, one cannot rule out as a reasonable
possibility
that he himself was one of the shooters.
[57]
The judge’s statement that Dase had no motive
falsely to implicate the appellant presupposes that the shooter was
not Dase
or someone whom Dase had reason to protect (such as his
friend Malibongwe). One should bear in mind that Dase did not
volunteer
any information to the police. He was approached six years
after the event when the trial was already underway. In all
likelihood
he was told about the information Malibongwe had supplied.
Whether Malibongwe told the truth in his statement we do not know.
Either
way, Dase was put on the spot to come up with a version, since
Malibongwe placed him on the scene. Malibongwe and Vuyo in the
meanwhile
had disappeared and Sabelo was dead.
[58]
There was in my view a double need for caution in
relation to Dase’s identification of the appellant as one of
the shooters.
Firstly, he was in that respect a single witness.
Second, although one cannot say that he was a participant in the
double murders,
his presence on the scene as part of the group which
confronted the car’s occupants, and his subsequent failure to
make any
report to the police, bring into play the same
considerations which call for caution in the case of an accomplice.
He would have
been able to give a vivid account of the events while
changing crucial detail as to the perpetrators.
[59]
Although the trial judge correctly identified the
principles applicable to the evaluation of single witnesses and
accomplices, he
failed to apply them properly in assessing Dase’s
evidence. There were definite shortcomings and defects in his
testimony.
The trial judge found that he had lied on a major issue,
namely the identity of the second shooter. His evidence was hardly
‘clear
and satisfactory in every material respect’ (
S
v Mokoena
1932 OPD 79
at 80). Even if the
appellant’s palm-print provided corroboration for the
appellant’s presence at the scene (and I
doubt whether in all
the circumstances the palm-print proves this beyond reasonable
doubt), the palm-print does not provide corroboration
as to who the
shooter was.
[60]
It may be said that the appellant himself did not offer,
as an explanation for his palm-print, that he had been on the scene
but
had only searched the car after others shot the occupants.
However it is not unknown for an accused person to try to put as much
daylight as possible between himself and the crime. After all, this
is apparently what Sabelo did. In a sense, all six men in the
group
had reason to feel guilty about their conduct. As far as we know,
Dase’s cooperation required the offer of indemnification
in
terms of s 204.
[61]
I thus think that the trial court misdirected itself in
finding that the State proved the appellant’s guilt on counts 4
and
5 beyond reasonable doubt. It is thus unnecessary to consider
whether, if the appellant were guilty of shooting Mgidi (the occupant
in the front seat), he was also guilty of Mejeni’s murder on
the basis of the doctrine of common purpose. I simply observe
that,
since the trial judge did not find that the second shooter made
common cause with the appellant in the murder of Mgidi, it
does not
appear logical to find that the appellant made common cause with the
second shooter in the murder of Mejeni. There is
no evidence that
either of the shooters knew that the other was carrying a firearm.
Nothing happened between the first shooting
and the second shooting
(a space of a few seconds) to draw the appellant into the second
shooting.
Count
1
[62]
The State’s case was that the appellant and Tokota
shot Sonwabile outside Jango’s Tavern at around 21h00 on the
night
of Saturday 11 November 2006. The State’s case rested on
the evidence of Thuliswa, Amanda and Asanda. Thuliswa and Amanda
are
cousins. Asanda is a friend of theirs. Amanda resided in Sithunzi
Street. At that time Thuliswa, Amanda and Asanda were aged
19, 23 and
17 respectively. All of them identified the appellant as one of the
two perpetrators.
[63]
The three ladies were in each other’s company
prior to arriving at Jango’s Tavern. There were some
differences between
them as to when they first met up on that day and
when they started drinking. Be that as it may, they arrived at
Jango’s
Tavern between 19h00 and 20h00. They sat at a table and
drank Hunter Drys. The shooting incident occurred about an hour later
(their
estimates of time are not likely to have been very accurate).
There were differences between them as to precisely where they were
sitting at the table immediately prior to the incident.
[64]
Thuliswa testified that while sitting at the table she
saw her friend Sonwabile standing outside. She went to greet him. She
stood
on the step chatting to him. She suddenly heard people
screaming and heard Asanda shout that she should get away from
Sonwabile.
She looked back inside but could not see Asanda or Amanda.
People in the tavern were running out. She heard three gunshots in
rapid
succession. She turned back to Sonwabile and saw him falling to
the ground. He was barely a metre from her. At the same time she
saw
the appellant and a second person (X) with firearms. They were about
six metres away. The appellant was pointing his firearm
at Sonwabile
while X was pointing his skywards. Thuliswa sought refuge next to the
dwelling of Amanda’s boyfriend, Moses.
While hiding there, she
saw the appellant and X standing over the deceased. They walked away
a short distance and then returned
to Sonwabile. She saw them kicking
his body and swearing at him.
[65]
Thuliswa described the lighting inside and outside the
tavern as good. This evidence was not challenged. She testified that
she
was familiar with the appellant’s appearance because she
had seen him on previous occasions at the tavern and in the area.
[66]
Amanda in her evidence confirmed that Thuliswa went
outside to talk with Sonwabile. From where she was sitting Amanda
could see
Sonwabile through the window but could not see Thuliswa. At
this time Asanda was on the dancefloor. Amanda suddenly heard Asanda
shouting that Thuliswa should get away from Sonwabile because the
appellant and his friend were approaching with guns. Amanda got
up
and left the tavern. As she went outside she saw the appellant and X
with firearms approaching the tavern. She crossed the street
to take
refuge in Moses’ dwelling. As she was about to enter the
dwelling she heard the first shot and once she was inside
she heard a
second and third shot.
[67]
Amanda testified that she had known the appellant since
he was about 12. He, like her, lived in Sithunzi Street.
[68]
Asanda likewise fled the tavern and went to Moses’
dwelling. She also saw the appellant and X with firearms outside the
tavern.
[69]
The post-mortem examination established that Sonwabile
had been shot in the head and chest. The brain damage caused by the
head
wound would have been fatal. The chest shot went through the
right ventricle of the heart and perforated the right diaphragm and
large lobe of the liver. This shot could also have been fatal. The
cause of death was thus one or two gunshot wounds.
[70]
The appellant’s evidence was that on the night of
11 November 2006 he was at home with his parents in Sithunzi Street.
His
father’s uncle from the Eastern Cape was also there. They
watched a video for several hours. He went to bed at around 21h00.
The appellant’s father confirmed this alibi, stating that he
and his uncle went to bed about an hour later. The appellant’s
father locked the front door (the only entrance to the house) and
kept the key with him. According to the appellant’s father,
the
uncle passed away prior to the trial.
[71]
As at 11 November 2006 the appellant had just turned 20
(his birthday was on 5 November). It is doubtful that the appellant
would
have been at home and gone to bed so early on a Saturday night.
This does not seem to have been his pattern of behaviour in respect
of counts 2, 3, 7 and 8 where his guilt was proved beyond reasonable
doubt. On these occasions he was out on the streets and up
to
mischief on the evenings of Wednesday 7 February 2007, Saturday 24
March 2007 and Thursday 29 March 2007. Furthermore, and although
his
guilt on counts 4 and 5 has not been proved beyond reasonable doubt,
it is probable that he was part of the group at Pholile
Park late on
the night of Saturday 24 February 2007.
[72]
The evidence in relation to count 6 is also of some
relevance, even though the appellant was acquitted on that count. The
appellant’s
evidence was that on the evening of Saturday 17
March 2007 he was dropped off at home by one
Mashicolo
after attending several parties. The appellant and
Mashicolo
both
testified that the appellant’s girlfriend was with him and
spent the night at the appellant’s home. According to
the
appellant and Mashicolo, the appellant and his girlfriend were
dropped off at the house between 20h00 and 21h00 though the
appellant’s father said it was sometime between 21h00 and
23h00. However the appellant’s father testified that he did
not
know that the appellant was accompanied by his girlfriend or how they
got into the house or how the girlfriend was able to
leave the next
morning without his knowledge. The trial judge observed that the
appellant’s father ‘fell about’
when questioned
closely as to where the keys were or might have been. Although the
judge found that the appellant’s guilt
had not been proved
beyond reasonable doubt, he found the alibi defence to suffer from
various implausibilities and rejected it.
[73]
More generally, the appellant’s correct
convictions on counts 2, 3, 7 and 8 demonstrate that his evidence in
respect of those
counts was dishonest. His evidence in respect of
counts 4 and 5 was probably also false. And one knows from the trial
judge’s
findings in respect of count 6 that he found the
appellant and his father to have been dishonest witnesses in relation
to the alibi
on that count. The trial judge and his assessor had the
opportunity to observe the appellant and his father in the witness
box.
It is apparent that the trial court was not impressed with their
evidence.
[74]
The fact that the appellant and his father lied in
respect of other counts does not in itself mean that they were lying
in respect
of count 1 but it does reflect negatively on their
credibility. The alibi in respect of count 1 is not particularly
strong. By
virtue of the close blood relationship, the appellant’s
father had motive to protect his son. These circumstances are
relevant
in assessing whether the State proved its case beyond
reasonable doubt. I should add that the trial court also drew
attention to
other inconsistencies and implausibilities in the
evidence of the appellant’s father but in fairness to the
appellant I do
not regard these as particularly significant.
[75]
Although none of the three ladies actually saw the
appellant and X firing shots, there can be no doubt, if their
evidence is accepted,
that the appellant and X were the perpetrators.
They were seen with firearms immediately before and immediately after
the firing
of the shots. They were also seen kicking and swearing at
Sonwabile (who would have been dead or dying by this stage).
[76]
The trial court was alive to various circumstances
calling for caution in the evaluation of the evidence of the three
eye-witnesses.
One of these was that all of them had consumed alcohol
and were probably under the influence to some extent. However they
were
clearly not so drunk that they could not walk, run, dance and
converse. The elapse of time (they testified about six years after
the shooting) coupled with the consumption of alcohol would explain
differences between them on matters of detail such as what
and how
much liquor they consumed, where they were sitting and so forth. I do
not think that discrepancies of this kind show them
to have been
unreliable or dishonest witnesses on the crucial question, namely
whether they saw the appellant with a firearm. What
is of particular
significance here is that they were familiar with the appellant’s
appearance, the lighting was good, they
had adequate opportunity for
observation and – importantly – had no motive falsely to
implicate him. There was no bad
blood. Indeed although Thuliswa and
Asanda knew the appellant by sight from the area, he did not know
them. He confirmed knowing
Amanda. He could not suggest any reason
why she should have falsely identified him. Neither mistaken identity
nor a conspiracy
to commit perjury is at all plausible in the
circumstances.
[77]
A further need for caution identified by the judge
related to the conflicting evidence concerning Novosh. This
implicates Thuliswa
and Amanda. I have already discussed this
evidence at some length in relation to counts 4 and 5. Even if
Thuliswa and Amanda received
improper police encouragement to shield
Dase from being implicated in count 1, the fact that they succumbed
to such encouragement
does not reflect well on their credibility.
However on this particular issue there is an explanation for why
Thuliswa and Amanda
might, when they were recalled, have adjusted
their earlier evidence. No similar explanation exists in relation to
their identification
of the appellant as one of the perpetrators. I
cannot fault the trial court’s conclusion that the
unsatisfactory evidence
given by these two witnesses in relation to
Novosh does not detract from the reliability of their evidence in
relation to the appellant.
I should add that the trial court, which
had the opportunity to observe them when they initially testified and
when they were recalled,
said that they made a favourable impression
and gave compelling and convincing evidence, the main wrinkle being
the Novosh issue.
[78]
A third potential circumstance calling for caution
related to the docket statements furnished by the eyewitnesses. In
Thuliswa’s
statement, taken the day after the shooting, she
named the appellant as one of the perpetrators but did not name the
other person
as Novosh. This omission does not assist the appellant.
In so far as it might bear on Thuliswa’s credibility more
generally,
her evidence was that she indeed named both suspects to
the police. This seems inherently plausible, because only a few days
later
at the police station she pointed out a person as being the
Novosh who was with the appellant at Jango’s Tavern. She
testified
that she relayed her account in Xhosa. The written
statement, however, was in English. She also testified that the
statement was
not read back to her and that she was not required to
take an oath. She did not even notice that her statement was in
English.
The judge with good justification criticised the lamentably
poor police work in taking the statements which featured in the case.
Although he provisionally allowed Thuliswa’s statement to be
used in cross-examination, in his judgment he concluded that
her
purported English statement had not been properly proved. I can find
no fault with this conclusion.
[79]
In Amanda’s docket statement she supposedly named
neither of the perpetrators. Like Thuliswa, she was adamant that she
gave
the police the appellant’s first name – she did not
know his surname. In her statement, while supposedly not naming
the
appellant, she described him and said she knew he lived in Sithunzi
Street. It is most unlikely in the circumstances that she
would not
have given his name to the police. In her case, too, the statement
was recorded in English whereas she spoke Xhosa to
the policeman. The
statement was not read back to her. The judge found that the
purported statement was not properly proved. I
agree.
[80]
Since Asanda confirmed that her two docket statements
were read back to her and that she thereafter affirmed them under
oath, the
trial judge found them to have been properly proved.
However, he identified obvious police ineptitude in the taking of the
statements
and considered that the statements carried little weight
in adversely affecting her credibility. In reaching this conclusion
he
inter alia had regard to cases such as
S v
Govender & others
2006 (1) SACR 322
(E)
at 324-326 and
S v Mafaladiso & andere
2003 (1) SACR 583
(SCA) concerning the care
to be exercised when impugning a witness’s credibility on the
basis of a police statement. However
the court considered that Asanda
was heavily intoxicated and for this reason viewed her account of
events with great circumspection.
The court placed greater reliance
on the evidence of Thuliswa and Amanda. In relation to Thuliswa, the
judge said that her evidence
was ‘the most compelling and clear
of the three, to the point that had she been a single witness the
court would be satisfied
that her evidence was satisfactory in all
material respects’.
[81]
In his written submissions the appellant’s counsel
submitted that the trial court misdirected itself in finding Thuliswa
to
have been a good and credible witness ‘despite the fact that
she presented a very poor demeanour in the witness box’.
Counsel did not refer to any part of the record in support of the
submission and it is not apparent how he could know anything
about
Thuliswa’s demeanour during the trial. Counsel was on firmer
ground when he submitted that Thuliswa gave untruthful
evidence when
she was recalled but this was in relation to the Novosh issue and I
have explained why this does not reflect adversely
on her evidence
implicating the appellant.
[82]
In general, the appellant’s counsel’s
submissions in respect of count 1 represented an attack on the
cogency of the
trial court’s judgment on its own terms without
reference to the transcript of the evidence or to the exhibits. Our
attention
was not directed to any evidence which the trial court had
supposedly overlooked or incorrectly understood.
[83]
In my view, the trial court was not guilty of any
material misdirection and I am not satisfied that its conclusion in
respect of
count 1 was plainly wrong on the record. It follows that
the appeal in respect of count 1 must fail.
Sentence
on count 1
[84]
Because the appellant and X were acting in furtherance
of a common purpose, the trial court was obliged to impose life
imprisonment
unless there were substantial and compelling
circumstances to depart from the prescribed sentence. On appeal this
court is entitled
to reach its own conclusion as to whether
substantial and compelling circumstances existed; a finding on this
question is not a
matter of pure sentencing discretion (
S
v GK
2013 (2) SACR 505
(WCC) paras 5-7;
S
v Tafeni
2016 (2) SACR 720
(WCC) para 8).
[85]
The appellant had just turned 20 at the time he
committed the murder. He had no previous convictions. He is the
oldest of eight
children. According to his mother, a primary school
teacher, he did well at school, always passing, but had to abandon
grade 12
because of frequent epileptic attacks. He subsequently
became a student at the Cape Peninsula University of Technology but
his
studies were interrupted by his arrest in this case. His mother
described him as an obedient child who assisted with housework and
with looking after the younger children. He got on well with his
family. His father transports schoolchildren for a living.
[86]
The appellant has a son and a daughter from different
mothers. As at June 2013, when he was sentenced, both children were
five years
old. Fairly soon after the children were born they were
taken in by the appellant’s family and have remained in the
care
of the appellant’s mother. The children do not have
contact with their biological mothers and do not receive maintenance
from them.
[87]
The crime was obviously heinous. There is no evidence
regarding the motive for the killing though it is apparent from the
fact that
the appellant and X kicked Sonwabile and swore at him that
there must have been some quarrel. Robbery does not seem to have been
the motive. Intention was present in the form of dolus directus but
there was no evidence of premeditation or planning.
[88]
The appellant was in custody from April 2007 to October
2007 when he was released on bail. Following several non-appearances
he
was rearrested in November 2011 and remained in custody until
sentenced in June 2013. He thus spent an initial period of seven
months awaiting trial and then a further 18 months. It is unclear why
the trial only started five and a half years after the appellant’s
arrest.
[89]
According to the prosecutor’s ex parte submissions
the deceased, Sonwabile, was 21 years old. He was still at school and
was
due to go into grade 9. (This latter detail does not appear to be
consistent with his age.)
[90]
The approach to the question
whether substantial and compelling circumstances exist is the one
laid down in
S v
Malgas
2001 (1)
SACR 469
(SCA), which has been consistently followed. In terms of
that case the factors to be considered in determining whether
substantial
and compelling circumstances exist are all the factors
traditionally taken into account in assessing an appropriate
sentence, bearing
in mind, however, that it is no longer ‘business
as usual’ and that the emphasis has shifted to the objective
gravity
of the crime and the need for effective sanctions. If, after
considering all relevant sentencing factors, the court has not merely
a sense of unease but a conviction that injustice will be done if the
prescribed sentence is imposed or (to put it differently)
that the
prescribed sentence would be disproportionate to the crime, the
criminal and the legitimate needs of society, there will
be
substantial and compelling circumstances requiring the court to
depart from the prescribed sentence.
[91]
The Supreme Court of Appeal
has emphasised, however, that a trial court should not base a finding
of substantial and compelling
circumstances on flimsy or speculative
grounds or hypotheses (see, eg
S
v PB
2011 (1) SACR
448
(SCA) paras 9-10 and the passages there quoted). In
Malgas
it was said that
the lawmaker has ordained that ‘ordinarily and in the absence
of weighty justification’ the prescribed
sentence should be
imposed. Unless there are ‘truly convincing reasons for a
different response, the crimes in question are
therefore required to
elicit a severe, standardised and consistent response from the
courts’ (para 25).
[92]
In determining whether an
injustice would arise from the imposition of the prescribed sentence,
the customary sentencing considerations
which come into play are the
well-known triad comprising the offender, the offence and the
interests of society. These three factors
in turn require a court to
bear in mind the varying purposes served by criminal punishment,
namely deterrence, prevention, retribution
and rehabilitation.
Nevertheless, and in respect of crimes dealt with in the Act, the
type of sentence to which these considerations
point should not be
assessed as if the Act had not been enacted. As was observed by
Cameron JA in
S v
Abrahams
2002 (1)
SACR 116
(SCA) at para 25 the Act ‘creates a legislative
standard that weighs upon the exercise of the sentencing court’s
discretion’,
so that even where there are substantial and
compelling circumstances one should expect discretionary sentences to
be more severe
than before.
[93]
The trial judge noted the
various circumstances put forward on the appellant’s behalf as
substantial and compelling circumstances
but considered that he could
not properly make such a finding. He reasoned thus. In a short space
of four and a half months the
appellant was instrumental in the
murder of three people and the attempted murder of another three. He
acted without provocation
and with scant motive, conducting a reign
of terror with apparent impunity. There was evidence from the
complainants in counts
2, 3 and 8 that the appellant had a bad
reputation, something confirmed by the way in which patrons at
Jango’s Tavern fled
in panic when the appellant and his
associate were seen approaching with firearms. Sonwabile’s
post-mortem report showed
that the shot to the head was fired from
close range. The deceased in count 5 was also shot at point-blank
range, whereafter the
appellant saw fit to retrieve beers from the
car and dish them out. The appellant showed no compassion or remorse.
He had the benefits
of a close family and a reasonable education. The
appellant ‘made choices and choices have consequences’.
He was a
‘very real danger to society and the community’.
The murder in count 1 was not an isolated act but a ‘relentless
pattern’. There was no evidence that alcohol or drugs played
any part. The appellant acted ‘openly and with callous
disregard for the consequences of his actions’.
[94]
The appellant’s criminal
conduct subsequent to 11 November 2006 may bear on the question
whether he was a candidate for rehabilitation
and on the extent to
which he posed a danger to society but it cannot render the murder
itself more heinous. I do not think it
is right to allow subsequent
criminal behaviour to cast too large a shadow backwards over what was
the appellant’s first
offence. More importantly, the sentiments
expressed by the trial judge were based on his finding that the
appellant was guilty
on counts 4 and 5, a finding which will be
reversed on appeal. Although the appellant’s crime spree
remains serious, he will
in the event be convicted on only one count
of murder.
[95]
In my view the trial judge
erred in not attaching greater weight to the prospect of
rehabilitation. The appellant was a young man.
In
S
v Matyityi
2011 (1)
SACR 40
(SCA) Ponnan JA was critical of the trial judge’s use
of the phrase ‘relative youthfulness’ without any attempt
at defining what exactly that meant in respect of the particular
individual. The learned judge of appeal said that while someone
under
the age of 18 years could be regarded as naturally immature, the same
does not hold true for an adult and that a person of
20 years or more
must show by acceptable evidence that he was immature to such an
extent that his immaturity can operate as a mitigating
factor. In the
present case, the appellant had just turned 20. His crime spree, as
the trial judge said, lasted four and a half
months. The crimes of
which he was convicted were difficult for his mother to understand.
They seemed so out of character. The
appellant came from a stable
family and had performed satisfactorily at school. The fact that he
was not able to complete matric
due to frequent epileptic attacks
would have been a disruptive feature of his life. The picture seems
to be one of a young man
with reasonable promise having gone badly
off the rails for a short period (though it may have lasted longer
but for his arrest).
[96]
Life imprisonment is the ultimate
sentence and should not be lightly imposed. It is the kind of
sentence that should be imposed
only after due consideration of all
the facts and circumstances relevant to sentencing, in particular the
life history of an accused,
his upbringing, his career if any, his
prospects of rehabilitation and, of course, the nature, impact and
effect of the offence
on the complainant (
S
v
Mashigo
& another
[2015]
ZASCA 65
para 26). In
S
v Netshivhodza
[2014]
ZASCA 145
the accused was convicted of raping a six-year-old girl. He
had just turned 20 at the time of the offence. In finding that the
trial court erred in concluding that there were no substantial and
compelling circumstances, the court emphasised the real possibility
of rehabilitation (para 16).
Schoeman
AJA concluded as follows (para 21, citation of authority omitted):
‘
However
it is to be remembered that “... Custodial sentences are not
merely numbers. And familiarity
with
the sentence of life imprisonment must never blunt one to the fact
that its consequences are profound”. I am of the view
that a
severe sentence is appropriate, taking into consideration all the
circumstances of the offence. But the youthfulness of
the appellant
as a first offender, the time he has spent in custody prior to being
sentenced and the possibility of rehabilitation
are of paramount
importance when assessing the proportionality of the sentence to the
offence.’
[97]
In
S v
Dyantyi
2011 (1) SACR 540
(ECG) it was said that rehabilitation
was not possible in the absence of remorse (para 26). If this
statement was intended to convey
that a court cannot take the
possibility of rehabilitation into account where the accused
maintains his innocence, I disagree.
In several cases the Supreme
Court of Appeal has taken the prospect of rehabilitation into account
despite the fact that the accused
person pleaded not guilty and
maintained his innocence (see eg
S v Nkomo
2007 (2) SACR 198
(SCA) paras 13-14 and 22;
S
v Sikhipha
[2006] ZASCA 73
para 19;
S
v Mudau
2013 (2) SACR 292
(SCA) para 24;
Netshivhodza
supra;
S
v Kekana
[2015] ZASCA 194
para 11). Of
course, an accused who does not plead guilty and take the court into
his confidence is at a disadvantage in advancing
the prospect of
rehabilitation as a mitigating circumstance but it would not be in
keeping with our constitutional order to hold
that the prospect of
rehabilitation must be ignored just because the accused, as is his
right, maintains his innocence.
[98]
In the present case, for reasons I have explained, I
think that the appellant’s prospects of rehabilitation are not
purely
speculative even if he only truly comes to terms with his
crimes once no further appeal is open to him. He is young and not
without
ability. He has family support.
[99]
Additional factors tilting the balance in favour of a
finding of substantial and compelling circumstances are that the
appellant
has two young children and that he spent a considerable
period in custody awaiting trial. While an enforced separation from
his
children for some years is unavoidable in the light of his
serious offences, a sentence of life imprisonment would seem to rule
out any prospect of his forming a relationship with his children or
caring for them financially.
[100]
I consider that a sentence of 20 years’
imprisonment would be fitting. Because the life sentence has fallen
away, it is necessary
to consider to what extent if any the other
periods of imprisonment should be ordered to run concurrently with
the sentence on
the first count. Complete concurrence is out of the
question; the crimes making up counts 2 and 3, count 7 and count 8
were unrelated
to each other and to the crime in count 1. I consider
that an effective imprisonment of 25 years would be appropriate.
[101]
I would thus make the following order on the appeal:
(a) The appeal
against the appellant’s conviction on counts 4 and 5 is upheld.
There is substituted for the said conviction
an acquittal on those
counts.
(b) Save as
aforesaid, the appeal against conviction is dismissed.
(c) The appeal
against the sentence of life imprisonment imposed in respect of count
1 is upheld. The said sentence is set
aside and replaced with one of
20 years’ imprisonment, antedated to 6 June 2013.
(d) In consequence
of the order in (c), the sentences imposed by the trial court in
respect of counts 2, 3, 7, 8, 9 and
10 are revised to the following
extent:
(i) The sentence of
one year’s imprisonment imposed on count 2, and three years out
of the five years’ imprisonment
imposed on count 3, shall run
concurrently with the sentence on count 1.
(ii) Three years of
the five years’ imprisonment imposed in respect of count 7
shall run concurrently with the sentence
on count 1.
(iii) Four years of
the five years’ imprisonment imposed in respect of count 8
shall run concurrently with the sentence
on count 1.
(iv) The sentences
imposed in respect of counts 9 and 10 shall run concurrently with the
sentence on count 1.
(v) For the
avoidance of doubt, the intended effect of the aforesaid orders is
that the appellant’s effective period
of imprisonment on all
counts shall be 25 years.
ERASMUS
J:
[102]
I concur and it is so ordered.
SAMELA
J:
[103]
I concur.
______________________
ERASMUS
J
______________________
SAMELA
J
______________________
ROGERS
J
APPEARANCES
For
Appellant
Mr
J du Preez
Instructed
by
Legal
Aid Board
Cape
Town
For
Respondent
Mr
MD Moeketsi
Office
of the Director of Public Prosecutions
Western
Cape