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[2021] ZAWCHC 166
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Faure v S (A250/2017) [2021] ZAWCHC 166 (20 August 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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Republic of
South Africa
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case number: A250/2017
Before:
The Hon. Mr Justice Bozalek
The
Hon. Ms Acting Justice Le Roux
Hearing:
28 May 2021
In
the matter between:
RYAN
FAURE
Appellant
and
THE
STATE
Respondent
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email. The date and time
for
hand-down is deemed to be 15h00 on 20 August 2021.
JUDGMENT
BOZALEK
J
[1]
The
appellant in this matter was found guilty on 3 March 2017 in the
Regional Court sitting at Parow of one count of housebreaking
with
intent to commit robbery and robbery with aggravating circumstances
and one count of murder. On the robbery conviction he
was sentenced
to 15 years’ imprisonment and on the murder conviction to life
imprisonment. Exercising his automatic right
of appeal, the appellant
now appeals against his conviction for murder and the accompanying
sentence.
[2]
The
appellant was refused leave to appeal against his conviction of
robbery and elected not to pursue his right to petition this
Court
for leave to appeal in that regard. It follows that it must be
accepted for the purposes of this appeal that the appellant
broke
into the deceased’s home and, using force, robbed her of a
flatscreen television set. As will be seen from the circumstances
of
this matter, acceptance of this fact poses a virtually insuperable
obstacle to the appellant’s appeal against his conviction
of
murder since nowhere in the trial record, nor on appeal, is there any
explanation as to how the appellant on the one hand committed
the
robbery with aggravating circumstances but on the other had nothing
to do with the deceased’s murder. Be that as
it may for
the purposes of this judgment I shall approach the appeal against the
murder conviction as if it were independent from
the associated
housebreaking and robbery.
[3]
The
State’s case against the appellant was that on 22 May 2015 he
broke into the home of the deceased, a 79 year old woman,
at [….],
robbed her of her television set and certain other items and stabbed
her multiple times, causing her death. In
order to prove its case the
State led the evidence of the investigating officer, the appellant’s
ex-wife and two witnesses,
Mr Mario Lottering and Mr Nathan Solomons.
Both these last two witnesses had dealings with the appellant shortly
after the robbery
and murder and testified that the appellant had
admitted to them that he had broken into the deceased’s home
and robbed her
and killed her. It was also Lottering’s evidence
that on the night of the incident the appellant had brought a
flatscreen
TV wrapped in a blanket to him and asked him to find a
buyer for it. Apart from this evidence the State led no direct
evidence
implicating the appellant in the robbery and murder, hence
the two confessions are critical evidence.
[4]
The
appellant testified in his own defence denying that he had broken
into or being in the deceased’s house on the night in
question.
Although he admitted being friendly with and having dealings with
Messrs Lottering and Solomons he denied making any
confession,
statement or admission to them that he had either broken into the
house or killed the deceased.
[5]
In
convicting the appellant, the magistrate accepted the evidence of
Lottering and Solomons finding that notwithstanding some hesitancy
on
both of their part to testify against the appellant and despite some
discrepancies between their viva voce evidence and their
statements
to the police, their evidence was satisfactory in all material
respects and was corroborated in key aspects. The magistrate
rejected
the appellant’s version of events as false beyond reasonable
doubt taking into account various unsatisfactory features
and the
improbabilities in his version.
[6]
In
his notice of appeal and in argument the principal submissions made
on behalf of the appellant were that Messrs Lottering and
Solomons
were poor and unreliable witnesses. Reliance was placed on the fact
that at one stage the State sought to discredit Lottering
as a
witness due to him deviating from the statement which he had given to
the police. The appellant also contended that Solomons
was unable to
satisfactorily explain why he had initially failed to come to court
to testify. In both instances the appellant relied
on discrepancies
between the evidence of these witnesses and their police statements
as indications of their lack of credibility.
He also contended that
the magistrate had erred by not making a negative finding based on
the State’s failure to call Lottering’s
girlfriend to
corroborate his evidence. He further contended that the magistrate
had erred in not finding that the evidence of
the appellant’s
former wife corroborated his version that he could not have been the
person who broke into the deceased’s
house and killed her.
Discussion
[7]
I
shall deal firstly with the evidence of Lottering. He testified that
he was a homeless person who had lived for seven years under
a bridge
close to the flats in which the appellant lived. On the night of 22
May 2015 i.e. the night of the murder, the appellant
arrived with the
flatscreen TV and asked him to find a buyer. The appellant appeared
to be shocked and worried and told him that
he should tell no one
about the TV set. The following morning the appellant had returned
asking whether he had found a buyer for
the television set. Together
they left to find a buyer but were unsuccessful because at least two
of the persons that they approached
said that they were not
interested because they had heard that an old lady had been murdered
the previous night and a television
set stolen from her.
[8]
The
appellant and Lottering then handed the television set over to a
Nigerian man who said he could find a buyer. Shortly afterwards
the
police had arrived and both the appellant and Lottering had fled
leaving the Nigerian man, then in possession of the TV set,
to be
arrested by the police. The prosecutor then sought to lead Lottering
on a conversation he had subsequently had with the appellant
concerning the circumstances in which he had initially obtained the
TV set. The witness was evasive however and the prosecutor
then began
to put to the witness a portion of his statement to the police as a
prelude to discrediting him as a witness. This proved
not to be
necessary however as Lottering admitted that part of his statement,
namely, that after fleeing from the police he had
asked the appellant
where he had obtained the TV. The appellant’s answer was that
he had killed the old woman at 15 Sakabula
Crescent and taken her TV.
Lottering was asked by the prosecutor and by the appellant’s
representative why he had not initially
given this incriminating
evidence against the appellant and his reply was that he had
forgotten to do so.
[9]
As
mentioned, the appellant sought to discredit Lottering’s
evidence inter alia by virtue of his initial hesitancy to give
this
incriminating evidence. However, as the magistrate noted, the witness
was clearly reluctant to testify against the appellant
in this regard
because they had a long association in which the appellant had
assisted him by giving him items to keep or to sell
and because of
threats which the appellant had made in the event that the witness
should tell anyone of the appellant’s involvement
in the
robbery and murder. As was also noted by the magistrate, an important
factor is that Lottering’s evidence that the
appellant had
confessed to him that he had robbed and murdered the deceased was not
a late fabrication. Lottering was arrested
by the police a few weeks
after the murder and in a written statement said that the appellant
had told him that he had killed the
deceased and taken her TV. It was
clear furthermore that the police were led to Lottering through their
arrest of the Nigerian
person found in possession of the flatscreen
TV set.
[10]
There
are at least two other factors which lend significant support to
Lottering’s evidence that the appellant confessed to
the crimes
in question. The first such factor is that, save for the confession,
the appellant’s own evidence largely corroborates
that of
Lottering. He confirmed that on the day after the robbery and murder
he had accompanied Lottering in an attempt to find
a buyer for the TV
set which ended when they fled upon the police arriving and arresting
the Nigerian man to whom they had just
handed over the TV set.
According to the appellant, however, it was Lottering who had asked
him for assistance to sell a TV set
which he had acquired, promising
him R500.00 if they were successful. The appellant could not explain
what his specific role would
be in selling the TV set nor why he
should receive R500.00 for doing so little and nor why he had fled
from the police if he had
no guilty knowledge regarding the
television set. The second major factor lending support to
Lottering’s evidence was the
lack of any reason why Lottering
should falsely implicate the appellant in the robbery and murder of
the deceased through a confession.
This was particularly so since the
evidence was that there was a good relationship between the two men
and the appellant had frequently
assisted Lottering in the past.
[11]
I
turn now to the evidence of Solomons. He testified that he had been
friendly with the appellant for a period of 14 years, since
childhood, and that they had often consumed drugs together. Some
weeks after the robbery and murder he had met the appellant’s
ex-wife in the street and assisted her carrying groceries to her home
in Sakabula Flats. There he had come across the appellant
smoking a
mixture of marijuana and mandrax and had joined him in taking these
drugs. The appellant had confronted him asking why
he was spreading
stories that it was he who had robbed and killed the deceased.
Solomons had denied doing so even though this was
true. The appellant
had then admitted to him that he had in fact killed the deceased,
stolen her TV set and had taken it to Lottering
to find a buyer.
[12]
Solomons
testified of hearing a detailed confession from the appellant i.e.
how he had been in her garden and observed the deceased
watching TV
that night, how he had bent her security gate in an effort to gain
entrance and that, when confronted by the deceased,
he had
overpowered her through the gate and used her keys to gain entrance.
The appellant had recounted further how the deceased
has screamed for
help which led him to silence her by stabbing her four times in the
chest and once in the neck. The appellant
had then laid her on her
bed and sexually assaulted her. Solomons testified that he was
shocked upon hearing the appellant’s
confession and by the
cruelty of the killing. At a later stage he was approached by the
deceased’s son and agreed to disclose
what he knew to the
police. Some weeks after the incident he had given a statement to the
police detailing the confession made
to him by the appellant. In
cross-examination he was challenged, inter alia, on the basis that it
had been difficult to procure
his attendance in Court and that he was
a reluctant witness. Solomons however gave a convincing explanation
in this regard. In
the first place he had been working as a seaman
and it appeared that the police had difficulty in tracing him as a
witness after
he had given his initial statement. Eventually it had
been the deceased’s son who had found him and prevailed upon
him to
testify. Solomons also explained that his brother had been
threatened by members of the appellant’s family and this had
initially
led to him being reluctant to testify in Court.
[13]
Solomons
gave clear and convincing evidence and the detail which he gave of
the appellant’s confession renders it highly unlikely
that this
evidence was a fabrication. It contained detail which he could have
obtained only from someone who was directly involved
in the robbery
and murder or someone with a full knowledge of its circumstances such
as the police. There was, however, no suggestion
that this
information was provided by the investigating officer or any other
member of the police. It was suggested on behalf of
the appellant
that Solomons’ evidence of the confession was fabricated by him
in order to claim the reward offered by the
deceased’s family
for information leading to the arrest of her attacker. Solomons
testified, convincingly, that he had no
interest in claiming any
reward and it was not suggested that he had obtained any reward at
all. His credibility was also challenged
on the basis that there were
discrepancies between his viva voce evidence and the contents of his
police statement. However, as
has been held by the Courts on numerous
occasions, what is contained in a witness’ police statement is
more often than not
no more than a concise summary of what the
witness’ evidence will be. Furthermore, the mere fact that
there appear to be
such discrepancies does not necessarily reflect
adversely on the witness’ credibility. These must be more
closely examined
inter alia to ascertain whether the witness’
version was correctly recorded in the first place and, secondly,
regard must
be had to the import and the importance of any such
alleged discrepancies. This is particularly the case given the rough
and ready
manner in which, experience shows, such statements are
frequently taken by police officials.
[1]
When this exercise is done, none of the discrepancies allegedly
arising from Solomons’ statement are material to his
credibility.
[14]
As
regards the credibility of Solomons generally it is against
significant that there is no apparent reason why he would falsely
implicate the appellant through his evidence of the latter’s
confession to the robbery and murder. On both Solomons’
version
and that of the appellant they enjoyed a long and friendly
relationship, to the extent that they regularly smoked cannabis
together. What also offers strong support to Solomons’ evidence
is the extent to which it dovetails with the appellant’s
own
version of events. He testified that on the day in question he indeed
met with Solomons and that they consumed drugs together.
The
appellant testified that he had indeed confronted Solomons about
spreading stories that it was he who had killed the deceased,
adding
that it was in fact so that rumours were spreading throughout the
neighbourhood that he had been the perpetrator of these
crimes. It
was common cause that the appellant had lived with this ex-wife only
some 50 meters away from where the deceased lived.
The appellant
testified that he knew the deceased by sight.
[15]
It
is trite that in evaluating whether the State has discharged its onus
in a criminal case of proving the accused’s guilt
beyond
reasonable doubt the evidence must be examined, and accounted for,
holistically. As was stated in
S
v van der Meyden,
[2]
in a passage which has been repeatedly approved by the Supreme Court
of Appeal:
‘
A
Court does not base its conclusion, whether it be to convict or
acquit, on only part of the evidence. The conclusion at which
it
arrives at must account for all the evidence … What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or to acquit) must account for all of the
evidence. Some of the evidence might be found to be false;
some of it
might be found to be unreliable; and some of it might simply be found
to be only possibly false or unreliable; but none
of it may simply be
ignored’.
[16]
In
the present matter two independent witnesses, on friendly terms with
the appellant, testified of his confession to them, on separate
occasions, that he was responsible for the robbery and killing of the
deceased. The appellant admits the encounters with both witnesses
in
all material respects save that he denies making the confessions.
There is no clear or apparent reason why, in each case, these
witnesses would falsely implicate the appellant since there is no
suggestion let alone any evidence which implicated either of
them in
the robbery or the murder.
[17]
In
a considered and comprehensive judgment, the magistrate set out her
reasons for accepting the evidence of the two witnesses,
Lottering
and Solomons, and for rejecting the evidence of the appellant as
false beyond reasonable doubt. In doing so she was clearly
conscious
that she was dealing with the evidence of single witnesses in
relation to the confessions but she found corroboration
for their
evidence in the various aspects which I have already mentioned. I can
find no convincing basis on which to reject any
of the magistrate’s
findings in this regard.
[18]
As
to the remaining criticisms or attacks upon the magistrate’s
finding, she correctly noted that the evidence given by the
appellant’s former wife fell far short of establishing that the
appellant had an alibi or that he could not have committed
the
robbery and murder. It is clear that she could not account for his
movements on the evening or night in question in any detail.
Secondly
in this regard, there was no obligation on the State to call the
evidence of Lottering’s girlfriend with a view
to corroborating
his evidence of appellant’s confession to him as might have
been the case if the State’s case had
rested solely on the
appellant’s confession to Lottering.
[19]
In
the result for these reasons I am unpersuaded that the magistrate
erred in finding that the State had proved its case against
the
appellant beyond reasonable doubt.
Sentence
[20]
As
regards the appeal against sentence, the magistrate found that the
appellant had failed to establish the existence of substantial
and
compelling circumstances justifying the imposition of a sentence
other than life imprisonment.
[21]
It
was contended on behalf of the appellant that the magistrate had
misdirected herself in not taking into account all relevant
sentencing factors, more particularly the following:
1.
the
appellant was 36 years old at the time of sentencing;
2.
he
was divorced and had two minor children aged 9 and 4 years old;
3.
he
supported his family financially when employed;
4.
although
not a first offender, his last previous conviction was more than 17
years previously;
5.
he
had no history of violent behaviour.
[22]
In
S
v Malgas
it was held that a Court should not deviate from the prescribed
minimum sentence for flimsy reasons. In
S
v GK
,
[3]
the Court held that there was nothing in the minimum sentence
legislation which fettered an appellate court’s power to
reconsider
the matter of substantial and compelling circumstances.
What are these substantial and compelling circumstances in the
present
matter? They can amount to no more than the appellant’s
personal circumstances and the fact that he was to all intents and
purposes a first offender. Against this, however, stands the
brutality and callousness of the murder. The appellant broke into
the
home of a 79-year-old woman with a view to robbing her. When she
cried out for help he stabbed her some 30 times, leaving her
for
dead. At no stage did the appellant express any remorse for his
actions. His victim was someone who was known to him and was
in fact
a neighbour. The appellant cannot claim to have been young or
immature at the time he committed these offences. Nor are
the
appellant’s personal circumstances in any way exceptional.
Furthermore, as was held in
S
v Vilakazi
:
[4]
‘
In
cases of serious crime the personal circumstances of the offender, by
themselves, will necessarily recede into the background.
Once it
becomes clear that the crime is deserving of a substantial period of
imprisonment the questions whether the accused is
married or single,
whether he has two or three children, whether or not he is in
employment, are in themselves largely immaterial
to what that period
should be. Those seem to me to be the kind of
“flimsy”
grounds
that Malgas said should be avoided’
.
[23]
Having
regard to all the relevant factors I consider that the magistrate
correctly found that the appellant failed to establish
the existence
of substantial and compelling circumstances. In the circumstances the
appeal against sentence too must fail.
[24]
In
the result the following order is made:
1.
The
appeal against the appellant’s conviction for murder and the
sentence of life imprisonment is dismissed and the conviction
and
sentence are confirmed.
BOZALEK
J
I
agree.
LE
ROUX AJ
For
the Appellant
: Mrs A De
Jongh
As
Instructed
Legal-Aid South Africa
For
the Respondent
: Adv C
van der Vijver
As
Instructed
: The
Director of Public Prosecutions
[1]
See in this regard
S
v Mafaladiso
2003 (1)
SACR 583
(SCA),
S v
Linden
[2016] JOL
36306
at para 91,
S v
Mlumbi
and Another
1991 (SACR) 235 A at 248B and
S
v Mkohle
1990 (1)
SACR 95A.
[2]
1999 (1) SACR 447
(WLD) at 449.
[3]
2013 (2) SACR 505 (WCC).
[4]
2009 (1) SACR 552
(SCA) at 574.