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[2015] ZASCA 128
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Mukona v The State (97/2015) [2015] ZASCA 128 (28 September 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 97/2015
In
the matter between:
THOMAS
RECKSON MUKONA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation
:
Mukona
v
The
State
(97/15)
[2015] ZASCA 128
(28 September 2015)
Coram:
Leach,
Willis and Mathopo JJA
Heard:
28 August 2015
Delivered:
28
September 2015
Summary:
Criminal
appeal against conviction and sentence ─ appellant convicted of
murder, arson and three counts of attempted murder
─ failure by
appellant to refute State case ─ effect of failure by the
appellant to refute the State’s case ─
appellant also
failing to give evidence in mitigation of sentence ─ conviction
upheld ─ sentences ordered to run concurrently.
ORDER
On
appeal from:
The
Limpopo High Court, Thohoyandou (Hetisani J sitting as court of first
instance):
1.
The appeal against convictions is dismissed.
2.
The appeal against sentence in respect of counts 1, 2, 3 and 4 is
dismissed.
3.
The appeal against the sentence in respect of count 5 is upheld. The
sentence imposed is set aside and replaced with the sentence
of 15
years imprisonment.
4.
The sentences imposed in respect of counts 2, 3, 4 and 5 are ordered
to run concurrently with the sentence imposed in respect
of count 1.
The total effective sentence is thus life imprisonment.
JUDGMENT
Mathopo
JA (Leach and Willis JJA concurring):
[1]
In October 2002, the appellant, Mr Mukona, was convicted of murder,
three counts of attempted murder and one count of arson
in what was
then known as the Venda High Court (Hetisani J)
[1]
on 22 October 2002. Having found that there were no substantial and
compelling circumstances justifying a deviation from the minimum
sentence prescribed under s 51(1) of the Criminal Law Amendment Act
105 of 1997 (the Act), the trial court sentenced him to life
imprisonment in respect of the murder of his son (Moboya); ten years
imprisonment in respect of the arson count; ten years imprisonment
on
each of the attempted murders of Mr Freddy Thagwana (Mr Thagwana) and
his former wife, Ms Reneth Mulondo (Ms Mulondo); and,
lastly, 35
years imprisonment in respect of the attempted murder of his daughter
Mulanda. The sentences in respect of the three
counts of attempted
murder (counts 3, 4 and 5) were ordered to run concurrently with the
sentence in respect of murder (count 1).
In the result, the total
effective sentence imposed on the appellant was life imprisonment.
Kganyago AJ who dealt with the application
for leave to appeal
against convictions and sentences, granted leave to appeal to this
court on 13 June 2012.
[2]
The undisputed evidence of the State is that the appellant was
unhappy that his former wife, Ms Mulondo, had formed a relationship
with Mr Thagwana and that they were living together as husband and
wife. The evidence of Ms Mulondo is that the appellant tried
on
several occasions to win her back but she declined his advances. This
incensed the appellant to the extent that he tried to
influence Mr
Thagwana to break up with Ms Mulondo by suggesting that Ms Mulondo
was only interested in Mr Thagwana because of his
money. There is
also evidence that the appellant visited Mr Thagwana’s
workplace twice and tried to influence him to terminate
the
relationship with Ms Mulondo.
[3]
When all these attempts failed, jealousy got the better of the
appellant as the facts of this case will illustrate. At midnight
on
20 October 2001 Mr Thagwana and Ms Mulondo were woken from their
sleep to find their house on fire. They tried to extinguish
the blaze
but to no avail, and were only able to escape being burnt to death by
escaping from a window. Mr Thagwana sustained burns
on the shoulders
and Ms Mulondo suffered burns on the arm and both required medical
treatment for their burns. After reporting
the incident at the police
station, they went home and then noticed an open two litre petrol
container and a small blue shawl lying
next to the entrance of the
door. The shawl was folded and soaked in petrol and had clearly been
used to start the fire. Ms Mulondo
recognised the shawl as belonging
to her daughter, Mulanda, who together with her son, Moboya, was
living with the appellant at
the time. She informed the police about
her findings. According to her evidence, this shawl was given to
Mulanda by one of the
appellant’s girlfriends, Ms Elisa
Netshiphugana (Ms Netshiphugana). Even though Ms Mulondo could not
explain with certainty
how she identified the shawl, her evidence
that it belonged to her daughter and that the children had never
visited Mr Thagwana’s
homestead was not challenged. The tenor
of her evidence is that the appellant must have brought the shawl to
the scene.
[4]
Ms Netshiphugana, a former lover of the appellant, testified that
Mulanda had stayed with her for a long period of time and
that she
gave the shawl to her to carry her toys. When she was shown the
photographs of the shawl in court, she without hesitation
stated that
it was indeed the same shawl that she had given Mulanda. In
cross-examination she readily conceded that she could not
identify
any distinguishing features of the shawl, but was adamant that this
was the shawl which she had given to Mulanda. Ms Netshiphugana’s
evidence in essence corroborated to a large extent the evidence of Ms
Mulondo.
[5]
As a result of this shawl, Inspector Makungo and his colleague
Nemabolo went to the appellant’s house, travelling in a
marked
police vehicle. After asking for directions to the appellant’s
home they eventually saw him coming out his house.
They called him
but he ignored them and ran away towards and disappeared into the
bush. Nemabolo knew the appellant very well.
It was broad daylight,
visibility was good, and there is no possibility of mistaken
identity.
[6]
At the time the police had a suspect in another case in their
vehicle. They took this person to the police station and then
returned to the appellant’s home. In a rondavel, they found the
appellant’s two children, both of whom had been chopped
in the
head with an axe. The son, Moboya was dead but Mulanda, although
grievously injured, was alive and was moving her hand.
Paramedics and
a fingerprint expert and photographer were also called to the scene.
[7]
Nelson Nematshema, a police officer, photographer and fingerprint
expert testified that, at the scene of the arson, he took
photographs
of the shawl as well as a two litre container which was containing
petrol. At the appellant’s homestead she found
two children one
deceased and the other alive. Next to the children was an axe. He
uplifted the fingerprints from the left-hand
side of the handle of
the axe and the fingerprints were later found to match that of the
appellant.
[8]
Very little, if any, is in dispute between the State and the defence
with regard to the facts and circumstances surrounding
the burning
down of Mr Thagwana’s homestead. More especially is this the
case because the appellant elected not to testify
and thus did not
materially dispute the State’s case.
[9]
The State’s case in respect of the arson and attempted murders
of Mr Thagwana and Ms Mulondo rested on the inferences
to be drawn
from the evidence of the two complainants as well as that of Ms
Netshiphugana and the police officers who attended
the scene of the
arson, where the shawl was found. The uncontroverted evidence of Mr
Thagwana and Ms Mulondo is that the children
of the latter had never
visited the former’s homestead. Indeed, the appellant refused
them permission to visit their mother
at Mr Thagwana’s
homestead. Ms Netshiphugana, the appellant’s former girlfriend
testified that she gave the shawl to
the appellant’s daughter.
She gave a general description of the shawl but in essence she was
adamant that the shawl found
at Mr Thagwana’s homestead, was
identical to the one she had given to the appellant’s child.
Despite this, the appellant
elected not to take the stand and refute
the allegations.
[10]
We were urged to accept that, once the State witnesses conceded that
they could not say with certainty that the shawl found
at the scene
was the same shawl as the one belonging to Mulanda, the inference as
to the guilt of the appellant could not be drawn
and that there was
no case for the appellant to answer. When assessing circumstantial
evidence, a court needs, however, to be careful
not to approach such
evidence on a piecemeal basis but to consider the evidence in its
totality. (See
S
v Reddy
1996 (2) SACR (A) at 8C.) In this regard the two cardinal rules of
logic in the often quoted the dictum of
R
v Blom
[2]
must be borne in mind. In the present matter, each separate piece of
evidence linking the appellant to the burning down of Mr Thagwana’s
homestead viewed on its own and analysed in isolation may not be
sufficient for a conviction. However, approaching the evidence
holistically, as one must, the totality of the evidence against the
appellant that pointed towards him being the person
responsible.
(See
S
v Van der Meyden
[3]
and
S
v Trainor
.
[4]
)
[11]
All that evidence called for an answer yet the appellant chose to
counter it with nothing preferring to shun the witness stand.
The
choice to remain silent in the face of the weight of evidence
implicating him in a criminal conduct is suggestive of the fact
that
he had no answer for it. The cumulative effect of the circumstantial
evidence against the appellant, coupled with his failure
to testify,
leads to the inescapable inference being drawn that he was the person
who set the homestead of Mr Thagwana on fire.
Any lingering doubt
about this is dispelled by his reaction of fleeing from the police
when they wanted to talk to him immediately
after the event.
[12]
In setting a fire of this nature, the inference is further
inescapable that the appellant’s sole purpose was to cause
the
death of those in the house. He must have realised at that stage that
prospects of reconciling with Ms Mulondo were non-existent
and for
this reason he decided to try and kill her and the new man in her
life. Accordingly there is no merit in the appeal against
convictions
for arson and attempted murders of Mr Thagwana and Ms Mulondo.
[13]
The evidence implicating the appellant to the murder and attempted
murder of his children is straightforward. An important
fact which
weighs heavily against him is that shortly before the children were
discovered he was seen running away from his homestead
by two police
officers. When they tried to chase him he disappeared into the bush
or mountain. The police officers later went to
his house where they
found the children in a bloodied state, already dead at that time and
next to them were an axe and a brown
rope. The other child was
severely assaulted and was bleeding. There was blood all over the
floor and no one else in the house.
The fingerprints uplifted from
the axe matched those of the appellant. Sight must not be lost of the
fact that the children were
living with the appellant. No one save
for the appellant was seen leaving the homestead. Despite all this
strongly incriminating
evidence, the appellant elected not to testify
to explain why he absconded. His version put in cross-examination
that he had left
early for work that day cannot be accepted in the
light of the direct and undisputed evidence of the two police
officers who saw
him running away from them at 10h30 in the morning.
It also does not explain why, on his own version put in
cross-examination,
he would have left his two young children
unattended for a month before he was arrested. The submission by his
counsel that the
children could have been attacked by an intruder was
rightly rejected by the trial court. All these factors ineluctably
point towards
the guilt of the appellant. The only inference that
could be drawn is that he was responsible for the murder and
attempted murder
of his children. It follows that the appeal against
convictions must fail.
[14]
In this court the sentence was attacked on two grounds. First, that
the court below applied the provisions of the Act without
prior
warning to the appellant. Secondly, that the sentence imposed by the
trial court was shockingly inappropriate because the
trial court
relied on brief personal information before sentencing the appellant
and failed to direct that a presentencing report
be obtained. It was
argued that, because of the paucity of the information the trial
court was in no position to properly exercise
its discretion in
determining the appropriate sentence, and misdirected itself in
failing to call for more facts, including pre-sentencing
reports.
[15]
There is no merit in this contention. The appellant’s personal
circumstances were adduced from the bar by his counsel
as follows:
(a) He is 44 years old with four children, one of whom he has
murdered; (b) He is employed earning a salary of R90,00
per day. He
was not a first offender. He has three relevant previous convictions,
one for murder committed during 1991 (for which
he was sentenced to
14 years’ imprisonment, four years of which were conditionally
suspended) and two for assault with intent
to do grievous bodily harm
committed during 1990 and 2001. All these offences indicate a
propensity for violence. The appellant
was represented throughout the
trial. The facts which were submitted were those which counsel for
the appellant deemed sufficient
to assist the court in mitigation.
There is no evidence to suggest that other relevant facts were
suppressed by him or deliberately
omitted. All that was submitted
adequately described the appellant personal circumstances and there
is no suggestion that more
could have been added or rather that he
was denied an opportunity to do so. In my view there is no basis to
attack the trial court’s
approach and conclusions on this
ground.
[16]
Regarding the trial court’s alleged failure to forewarn the
appellant of the applicability of the minimum sentencing
provisions
of the Act, counsel for the state rightly contended that the
appellant was legally represented and he must have been
aware of the
provisions of the Act. The reason is that, during the sentencing
stage, his counsel alluded to the provisions of the
Act. In my view,
there is nothing to show that the appellant was prejudiced by the
State’s failure to draw attention in the
charge sheet to the
minimum sentences he faced. (See
S
v Ndlovu
.
[5]
)
[17]
In this court counsel for the appellant conceded, correctly in my
view, that the provisions of the Act are applicable. His
argument
that the trial court should have found that substantial and
compelling circumstances existed is not supported by any evidence
due
to the appellant’s reluctance to adduce any such evidence. As a
result of that approach, the trial judge had no option
but to apply
the provisions of the Act and did not deviate therefrom for flimsy
reasons. (See
S
v Malgas
[6]
and
S
v Matyityi
.
[7]
)
The facts of the case in any event called out for the imposition of
life imprisonment on the charge of murder.
[18]
There is no doubt that the offences were serious to the extreme. What
is aggravating is the fact that the arson, murder and
attempted
murders were committed in the sanctity of the complainants’
homes. The children had looked to the appellant for
protection and
guidance. Instead he abused his position of trust, and killed and
injured them. This must have been emotional, traumatic
and
devastating for the young defenceless children to have had to suffer
at the hands of their father. As a result of the assault,
Mulanda has
been semi-paralysed and been left mentally impaired. She is probably
fortunate to have survived but will forever live
with the fact that
her condition was caused by her father. The appellant showed no
remorse for his actions and persisted on his
innocence and did not
testify or adduce evidence aimed at demonstrating his remorse or
contrition.
[19]
Even though the trial court ordered the sentences in count 1, 2, 3, 4
and 5 to run concurrently with the sentence imposed in
count 1 (life
imprisonment), no explanation was given why a sentence of 35 years
was imposed in respect of the attempted murder
of the appellant’s
child Mulanda. I am satisfied that although the appellant deserves a
lengthy period of imprisonment, 35
years imprisonment is totally out
of proportion to the nature of the offence, the interest of society
and fails to take into account
the personal circumstances of the
appellant. In my view a sentence of 15 years imprisonment would give
recognition to the justifiable
abhorrence invoked by the callousness
of the deed whilst not destroying the appellant on the altar of
general deterrence. The appeal
against sentence therefore succeeds to
this limited extent only.
[20]
I therefore make the following order:
1.
The appeal against convictions is dismissed.
2.
The appeal against sentence in respect of counts 1, 2, 3 and 4 is
dismissed.
3.
The appeal against the sentence in respect of count 5 is upheld. The
sentence imposed is set aside and replaced with the sentence
of 15
years imprisonment.
4.
The sentences imposed in respect of counts 2, 3, 4 and 5 are ordered
to run concurrently with the sentence imposed in respect
of count 1.
The total effective sentence is thus life imprisonment.
______________
R
S Mathopo Judge
of Appeal
Appearances
For
Appellant: A L
Thomu
Instructed by:
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: R J Makhera
Instructed
by:
Director
of Public Prosecutions, Thohoyandou
Director
of Public Prosecutions, Bloemfontein
[1]
That court was subsequently
renamed the Limpopo High Court, Thohoyandou after 1 March 2009, and
it was again renamed the Limpopo
Local Division from 23 August 2013.
See Renaming of High Courts 2014 (3) SA 319.
[2]
R v Blom
1939
AD 188
at 202-203.
[3]
S v Van
der Meyden
1999
(1) SACR 447
(W) at 449h-450b.
[4]
S V
Trainor
2003 (1) SACR 35
(SCA) paras 8 and 9.
[5]
S v Ndlovu
2003
(1) SACR 331 (SCA).
[6]
S v Malgas
2001
(2) SA 1222 (SCA).
[7]
S v Matyitya
2011
(1) SACR 40
(SCA).