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[2015] ZAGPJHC 80
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Maqala v S (A382/2014) [2015] ZAGPJHC 80 (14 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: A382/2014
DATE: 14 MAY 2015
In the matter between:
LUZUKO FANYANA
MAQALA
............................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J U D G M E N T
MASHILE, J:
[1] On 12 February 2009, following a
charge of murder as defined under
Section 1
of the
Criminal Procedure
Act No. 51 of 1977
read with Section 51(2) of the Criminal Law
Amendment Act No. 105 of 1997 (the Act), the Appellant appeared in
the Regional
Court for the Regional Division of South Gauteng held at
Germiston. Prior to his plea, he was warned that the provisions of
the
Act would be invoked in the event that he was found guilty as
charged.
[2] The Appellant was legally
represented throughout the proceedings. He pleaded not guilty as
envisaged in
Section 115
of the
Criminal Procedure Act No. 51 of 1977
and exercised his right not to furnish a plea explanation. In the
proceedings that ensued on 12 February 2009, the court convicted
him
and sentenced him to life imprisonment. In addition, the court
declared him unfit to possess a firearm in terms of
Section 103
of
the Firearm Controls act No. 60 of 2000.
[3] In terms of
Section 309(1)
of the
Criminal Procedure Act No. 51 of 1977
, the Appellant had an automatic
right to appeal both the conviction and sentence. He availed himself
of this right and for this
reason, the appeal is about conviction and
sentence.
[4] The basis of the appeal is that the
trial court erred by finding that the prosecution had proved the
guilt of the Appellant
beyond reasonable doubt. The Appellant
characterized this case as one of mistaken identity. Insofar as he
is concerned he did
not murder Ben Lovemore Nkomo and does not know
who did. He denies that he is Fanyana and maintained that his name
is Luzuko.
The Appellant also emphasized that the evidence of the
prosecution ought to be approached with caution because it is
evidence
of a single witness.
[5] The prosecution for its part
contends that appellant has been positively identified by a witness
well known to him. The Appellant
is known in the community as
Fanyana. Accordingly, whether he is or not, the position is that
Fanyana and the Appellant are one
and the same person. Furthermore,
argued the prosecution, the court can convict on the strength of the
evidence of a single witness
which is clear and satisfactory in all
material respects.
[6] In an effort to prove the
Appellant’s guilt beyond reasonable doubt, the prosecution led
the evidence of two witnesses,
Mr Mhlanga (“Mhlanga”) and
the brother of the deceased, Mr Benjamin Sibanda (“Sibanda”)
The Appellant,
also gave testimony in support of his own case.
[7] The evidence of the prosecution’s
first witness, Mhlanga, was that he was in the company of the
deceased and Tembelani
on 17 May 2008 at his place at Makausi, a
squatter camp in the area of Germiston. Three men, the Appellant
amongst them approached
them. One of the three men accused the
deceased of being nuisance to his brother.
[8] The Appellant whom he referred to
as Fanyana, put his hand inside his pocket, took out a knife and
fatally stabbed the deceased
in the area of his chest whereafter they
all ran away from the Appellants and his friends. The Appellant gave
chase and caught
up with them and stabbed Tembelani at the back of
his leg with the knife. Tembelani survived but the deceased died
later that
day.
[9] The incident happened at
approximately 22h00 and the source of light was a tower light
situated about 50 Metres away from the
scene. He was able to observe
the Appellant as a person that he has known for a few months.
Moreover, the Appellant frequently
came to his brother’s place
to purchase and drink liquor. He testified that he could identify
the second man who was in
the company of the Appellant but not the
third, as he did not have sufficient opportunity to observe him as he
did with the appellant
[10] Benjamin Sibanda testified that he
did not witness how his brother was killed. He heard from members of
the community that
the deceased had been stabbed to death by Fanyana.
Asked who Fanyana was, he pointed at the Appellant in the dock and
stated that
he had known him for approximately 3 to 4 years. His
evidence concluded the case for the prosecution.
[11] The Appellant took to the stand
and testified that he did not stab the deceased on 17 May 2008. Two
people came to his place
of residence and accused him for being
responsible for the death of the deceased. Thereafter they requested
him to accompany them
to the local police station where he was
arrested and locked up. He did not know why the deceased’s
brother would accuse
him of the death of the deceased.
[12] Under cross-examination the
Appellant stated that he had been living in Makausi since 2006. He
denied that he was arrested
by the community and reiterated that he
was arrested by two community members. He admitted that he knew
Mhlanga’s brother
and that he often drank liquor at his place
of residence. He denied knowing Mhlanga and had no reason for not
knowing him yet
he knew that Mhlanga was the brother of the person
who sells liquor.
[13] He did not know why the whole
community would accuse him of killing the deceased. He denied having
stabbed the deceased at
all. He stated that there were other people
in Makausi who are known as Fanyana.
[14] It is settled law that the
prosecution bears the onus of proving the guilt of the accused beyond
reasonable doubt. If the
accused's version is reasonably possibly
true he is entitled to acquittal even if his explanation is
improbable. See S v V
2000 (1) SACR 453
(SCA) at 455A. The court
must always remind itself that it is not necessary for the
prosecution to prove its case beyond all doubt.
See S v Van As
1991(2) SACR 74 (W) at 82D-H.
[15] In evaluating the evidence
presented, the court must not decide the matter in a “piece
meal” fashion, but all the
evidence presented must be taken
into account. See S v Radebe 1991(2) SACR 166 (T) at 174. The court
must also apply its mind
not only to the merits or demerits of the
prosecution and the defence witnesses, but also to the probabilities
of the case. See
S v Mhlongo
1991 (4) SACR 207
(A).
[16] Against that backdrop, it is
common cause that the evidence that incriminates the Appellant is of
a single witness. That evidence
was given by Mhlanga. Under those
circumstances the court is enjoined to bring into play the cautionary
rule and apply extra vigilance.
Section 208
of the
Criminal
Procedure Act No. 51 of 1977
provides that it is competent to convict
on the strength of the evidence of a single witness as long as such
evidence is satisfactory
in all material respects. In State v Ganie
1967(4) SA 203 (N) at 206H it was added that the evidence must be
corroborated. ?????
[17] For this court to dismiss the
appeal, it must be persuaded that the trial court was correct that
the evidence of Mhlanga, as
one of a single witness, complies with
the requirements of
Section 208
of the
Criminal Procedure Act No. 51
of 1977
and that it was corroborated as per S v Ganie (supra). If
not, the Appellant must be acquitted.
[18] The Appellant’s contention
that this matter is one of mistaken identity as the place was not
well light must be immediately
rejected as devoid of any merit
whatsoever for three reasons:
18.1 It was Mhlanga’s evidence
that the light that illuminated the area of the scene of the crime
was a tower light. Tower
lights are meant to light up areas far
beyond their immediate surrounding, which could easily cover an area
in excess of 50 metres.
Mhlanga could therefore not have been
mistaken;
18.2 The Appellant is well-known to
Mhlanga. His evidence in this regard is that he had known him for a
few months and has seen
him at his brother’s place of residence
where he (the Appellant) buys and consumes liquor regularly. The
Appellant himself
conceded that he often visits the place of
Mhlanga’s brother;
18.3 The Appellant and his two friends
first spoke to Mhlanga, Tembelani and the deceased before the
deceased was stabbed. This
must have given Mhlanga an opportunity to
observe appellant
[19] The Appellant’s denial that
he is not Fanyana is preposterous and must be rejected as false. It
is evident that he is
known as such by the members of that community.
Moreover, after his arrest, he turned to be the person who was seen
by Mhlanga
stabbing the deceased. This is a confirmation of the
evidence of Mhlanga that the Appellant is in fact Fanyana.
[20] Benjamin Sibanda’s evidence
was that he had known the Appellant for about 3 to 4 years prior to
the incident. He did
not see how the deceased was stabbed but was
told that Fanyana was responsible. He had no doubt as to who
Fanyana was. He testified
that he has known Fanyana to be the
Appellant. This court is convinced that the trial court was correct
to accept the evidence
of Mhlanga as true albeit that he was a single
witness.
[21] The evidence of the Appellant is
simply a bare denial. Two people came to his place and accused him
of murdering the deceased.
They then took him along to the local
police station. Surprisingly, his attorney put it to Mhlanga that he
would testify that
he was arrested by a group of community members.
He testified that he did not know Mhlanga yet somehow he knew that he
usually
bought and drank liquor at the residence of Mhlanga’s
brother.
[22] He denied that he is Fanyana and
probably hoped that by referring to himself as Luzuko would change
that he is the one who
murdered the deceased. . He could not
explain why everyone referred to him as Fanyana nor could he state
why there was no doubt
in the community that he was Fanyana.
[23] This court is satisfied that the
trial court cannot be faulted in its rejection of the evidence of the
Appellant as false beyond
reasonable doubt and accepting that of the
prosecution as true. The prosecution has in view of that proved the
guilt of the Appellant
beyond reasonable doubt and his appeal on
conviction therefore fails.
[24] This represents an opportune
moment to turn to sentence. Here there are two issues to decide and
these are firstly, whether
or not the trial court was right to impose
life sentence notwithstanding that the charge sheet referred to a
Section of the Act
that required it to sentence the Appellant to a
minimum sentence of fifteen years. Secondly, whether or not there
were substantial
and compelling circumstances that should have
persuaded the trial court to impose a sentence less than the minimum.
[25] I shall attend to the issues in
the order presented in the preceding paragraph. The charge sheet
reads that the Appellant
was charged with murder as defined in
Section 1
of the
Criminal Procedure Act No. 51 of 1977
as read with
Section 51(2) of the Act. Section 51(2) of the Act provides as
follows:
“Notwithstanding any other law
but subject to subsections (3) and (6), a regional court or a High
Court shall sentence a person
who has been convicted of an offence
referred to in- fa) Part II of Schedule 2, in the case of –
a first offender, to imprisonment for a
period not less than 15 years; a second offender of any such offence,
to imprisonment for
a period not less than 20 years; and
(Hi) a third or subsequent offender of
any such offence, to imprisonment for a period not less than 25
years.”
[26] The Appellant has contended that
the trial court misdirected itself by imposing a life sentence when
in fact in terms of Section
51(2) of the Act the minimum sentence
applicable was 15 years because the Appellant was a first offender.
On the contrary, the
prosecution argued that the , the Appellant was
warned that that the court could impose the minimum sentence
applicable in terms
of the Act. The prosecution submitted that under
these circumstances it did not matter that the charge sheet alluded
to Section
51(2) instead of Section 51(1).
[27] In support of its assertion, the
prosecution contended that the unreported case of the Supreme Court
of Appeal, of Ndlovu v
The State (204/2014)
[2014] ZASCA 149
is on
‘all fours’ with the case in casu. This case overturned
its earlier decision in Mashinini v The State
2012 (1) SACR 604
(sca)
where the majority of the court acquitted an appellant on the ground
that the charge sheet referred to Section 51(2) instead
of Section
51(1) of the Act.
[28] Refusing to follow the decision in
Mashinini supra, the court in Ndlovu supra unanimously held that the
Mashinini case decision
was based on an incorrect reading of Section
51. The minimum sentence prescribed by the Act should be read as
such. In other
words, the court cannot, unless it finds that there
are substantial and compelling circumstances, impose a sentence that
is less
than that which is prescribed in the Act.
[29] Understood in that manner, there
is nothing that can prohibit the imposition of any sentence above the
minimum sentence prescribed
in the Act and this would include life
sentence provided the evidence does demonstrate that such sentence is
defensible. The Appellant
argued that it is always desirable that
‘the charge sheet should set out the facts which the
prosecution intended to prove
in order to bring the accused within an
enhanced sentencing jurisdiction.’
[30] Theron JA in Ndlovu supra
continued to state as follows in paragraph [7]:
“This court has, with good
reason, been reluctant to lay down a general rule as to what the
charge sheet should contain. Lewis
JA in S v Makatu put it thus:
‘As a general rule, where the
State charges an accused with an offence governed by s 51(1) of the
Act, such as premeditated
murder, it should state this in the
indictment. This rule is clearly neither absolute nor inflexible.’”
31] The Appellant in the present matter
was warned of the likelihood of the imposition of the minimum
sentence prescribed by the
Act in terms of Section 51(2). The trial
court sentenced him to serve a life term imprisonment. In the
circumstances, the trial
court was entitled to impose any sentence as
long as it was not below the minimum and that the evidence
demonstrated that the murder
was premeditated. I agree that the
manner in which the Appellant executed the murder was reminiscent of
a planned murder.
[32] If one argues, as Counsel for the
Appellant did, that it was not carefully planned, how can this court
make sense of the following:
32.1 The Appellant and his two
co-perpetrators approaching the deceased, Tembelani and Mhlanga to
ask one question only;
32.2 Before the deceased or any of the
three could answer, the Appellant produced a knife from his pocket
and administered a fatal
stab wound;
32.3 The wound was inflicted at a vital
part of the body, the neck;
32.4 It resulted in the desired
outcome, the death of the deceased; and
32.5 As though that was not enough, the
Appellant thereafter still chased the deceased, Tembelani and Mhlanga
and in fact inflicted
a further injury, this time on Tembelani.
[33] It is difficult not to come to the
conclusion that the Appellant and his co-perpetrators did not know
what they set out to
do. Why was there a need to arm himself with a
knife if the purpose was merely to establish why the deceased
bothered the brother
of one of them? The Appellant knew or must have
foreseen the possibility of the use of the knife becoming necessary
and that its
use could have fatal repercussions. Accordingly, the
trial court was correct to find that the murder was premeditated.
[34] The next and probably the last
issue involving sentence in this case is to determine whether, the
trial court having imposed
a life sentence imprisonment term, was
correct that there were no substantial and compelling circumstances
as envisaged in Section
51(3) of the Act justifying a deviation from
the imposition of the life sentence. The determination of the
existence or non-existence
of substantial and compelling
circumstances is for all intents and purposes a factual enquiry. The
Appellant maintained that the
following taken together constituted
substantial and compelling circumstances:
34.1 The Appellant was 20 years when he
committed this offence;
34.2 He is a first time offender and is
therefore not beyond rehabilitation;
34.3 He is a father of a 2 year old
child and he is unemployed;
34.4 He managed to pass grade 8 at
school, whereafter he could not proceed with further schooling due to
financial constraints;
and
34.5 He stabbed the deceased once.
[35] Ponnan JA stated in S v Matyityi
2011 (1) SACR 40
(SCA) that S v Malgas
2001 (1) SACR 469
(SCA) sets
out how the minimum sentencing regime should be applied and in
particular, how the enquiry into substantial and compelling
circumstances is to be conducted by a court. It is constructive to
refer to the following extract from Matyityi supra:
“...... To paraphrase from
Malgas: the fact that Parliament had enacted the minimum sentencing
legislation was an indication
that it was no longer 'business as
usual'. A court no longer had a clean slate to inscribe whatever
sentence it thought fit for
the specified crimes. It had to approach
the question of sentencing, conscious of the fact that the minimum
sentence had been ordained
as the sentence which ordinarily should be
imposed, unless substantial and compelling circumstances were found
to be present.”
[36] It is common knowledge that the
main objective for the introduction of the minimum sentence
legislation was to curb the ever-spiralling
wave of crime in the
country. To date there is no solid evidence showing that crime is
declining. This has prompted courts to
call for more rigorous
adherence to the minimum sentence legislation unless of course
circumstances warrant otherwise. See S v
Kwanape
[2012] ZASCA 168
where Petse JA, quoting from the Matyityi case supra stated:
“This court reiterated in S v
Matyityi
2011 (1) SACR 40
(SCA) that ‘the crime pandemic that
engulfs our country’ has not abated. Thus courts are duty-bound
to implement the
sentences prescribed in terms of the Act and that
‘ill-defined concepts such as “relative youthfulness”
or other
equally vague and ill-founded hypotheses that appear to fit
the particular sentencing officer’s personal notion of
fairness’
ought to be eschewed.”
[37] It is against the above background
that the actions of the Appellant must be adjudged. While the crime
is indubitably serious,
this court should not lose sight of the fact
that he committed this crime when he was only twenty years old and
therefore immature
and probably very impetuous. His relative
youthfulness, that he was a first offender and that he stands a
better chance of rehabilitation,
all taken together , militate
against the imposition of a life sentence.
[38] Having stated that though, it does
not take away the fact that the Appellant committed a heinous crime.
The fact that he stabbed
the deceased once does not make him less
culpable for the horrendous deed. For that reason, the court must
endeavour to strike
a balance between the seriousness and prevalence
of the crime in the area of jurisdiction of this court and the
interest of the
Appellant on the other.
39] I agree that the trial court
emphasized the seriousness and prevalence of the offence in the
community and in so doing placed
insignificant value on the personal
circumstances of the Appellant. Given the less emphasis on the
personal circumstances of the
Appellant, it is understandable why the
trial court misdirected itself.
[40] In the result, the appeal against
sentence succeeds and I make the following order:
1. The appeal against conviction is
dismissed.
2. The order of the trial court on
sentence is set aside and is replaced with the following:
“The Appellant is sentenced to a
direct imprisonment term of twenty years.”
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
I agree and it is so ordered
E MATOJANE
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR APPELLANT: Adv. Van
Rensburg
INSTRUCTED BY: BDK Attorneys
COUNSEL FOR RESPONDENT: ADV. Masilo
INSTRUCTED BY: Director of Public
Prosecutions
DATE OF HEARING: 14 APRIL 2015
DATE OF JUDGMENT: 14 MAY 2015