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[2016] ZAGPJHC 372
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Sithole v S (A92/2016) [2016] ZAGPJHC 372 (11 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: A92/2016
In
the matter between:
ARTHUR
SITHOLE
Appellant
and
THE
STATE
Respondent
Case
Summary: Criminal Law – Appeal against convictions of
attempted robbery with aggravating circumstances, murder,
unlawful
possession of firearm and ammunition and unlawfully pointing a
firearm and against effective sentence of imprisonment
for life
dismissed.
JUDGMENT
MEYER,
J (MASIPA and NICHOLLS JJ concurring)
[1]
Arising from an incident that occurred on Saturday, 5 September 2009
at about 14.30 in which the late Mr Anthony Cecil Michael
(the
deceased) was shot by a man while he was sitting on the driver’s
seat of his car in the driveway where he resided at
43 Basil Road,
Marlboro and in which the same man moments later pointed a firearm at
Mr Aarqil Farhad Dawood, the appellant, Mr
Arthur Sithole, was tried
in the South Gauteng High Court, Johannesburg (Tshabalala AJ). On
29 September 2010, he was convicted
of attempted robbery of the
deceased’s car with aggravating circumstances (count 1), the
murder of the deceased (count 2),
unlawful possession of a firearm
(count 3) and of ammunition (count 4) and unlawfully pointing a
firearm at Mr Dawood (count 5).
On 1 October 2010, he was
sentenced to imprisonment for life pursuant to his conviction of
murder (count 2) and to six years’
imprisonment for his
conviction of attempted robbery (count 1), to four years’
imprisonment for his convictions of unlawfully
possessing a firearm
and ammunition (counts 3 and 4) and to two years’ imprisonment
for his conviction of unlawfully pointing
a firearm. His
effective sentence is accordingly one of imprisonment for life.
The appeal to this full court against
the convictions and sentences
is with the leave of the trial court.
[2]
The only question as far as the convictions is concerned is whether
the state indeed proved beyond a reasonable doubt that it
was the
appellant who had shot and killed the deceased and who moments later
had pointed a firearm at Mr Dawood. On another
side of a veld
about 100 metres away from the deceased’s house are business
premises that were guarded by Mr Mncedisi Molili
on the day and at
about the time of the incident. He noticed a group of three men
walking into the veld and one of them dressed
in a green jacket and
khaki trousers.
[3]
At about 14.30 on the same day, Mr Dawood, who resided in the
neighbourhood, drove past the deceased’s house. He
noticed the deceased reversing out of his driveway. He heard
what he described as ‘a bang’. He stopped
and when
he looked behind him he saw a person standing at the deceased’s
driver’s side window and the window shattered.
The man
was dressed in a green jacket, khaki trousers and a white hat.
Mr Dawood jumped out of his car, yelled at the man,
who then started
to run into the veld. Mr Dawood chased him, but he stopped when
the man pointed a firearm at him, and he
then returned to the
deceased’s residence. He noticed that the deceased had
been shot. Shortly thereafter the
police arrived at the scene.
Mr Dawood gave them a description of the clothes the man he had seen
was wearing, and he accompanied
the police in search of the suspect.
[4]
The security guard, Mr Molili, again noticed the man, who was dressed
in a green jacket and khaki trousers and whom he had seen
earlier in
the company of two other men walking into the veld, returning from
the veld. The man, according to Mr Molili,
acted suspiciously.
He kept on looking backwards, he took off his green jacket, made it
into a bundle and it appeared to
Mr Molili as if he was going to drop
it in the tall grass. But when he noticed Mr Molili, he kept
his jacket without putting
it on and continued walking.
[5]
A few minutes later Mr Molili was approached by Mr Dawood, who
enquired from him whether he had seen a man wearing a green jacket
and Mr Molili pointed out to him the direction in which the man had
gone. Shortly thereafter the police also enquired from
Mr
Molili whether he had seen the man. Again he pointed out to
them the direction in which the man he had seen had gone,
and they
left and went into that direction.
[6]
On the day in question, Warrant Officer Jerry Seroto and a colleague
were on crime prevention duty patrolling the streets of
Marlboro when
they reacted to a message that a shooting was in progress at the
deceased’s address. They found the appellant
about one
hundred metres away from the point where Mr Molili had pointed out to
them the direction in which the man he had seen,
had gone. The
appellant was wearing khaki trousers and he had a bag with him in
which they found a green jacket and a white
hat.
[7]
The police returned to Mr Molili with the appellant in their
company. Mr Molili confirmed to the police that the appellant
was indeed the person he had seen. He based his identification
of the appellant on the khaki trousers he was wearing and
the green
jacket, which at that stage had been placed inside a bag which the
appellant had in his possession. The trousers
and jacket,
according to Mr Molili, were the same jacket and trousers the man
whom he had seen walking into the veld and later
returning, was
wearing. The appellant was also taken to Mr Dawood. He
identified the appellant as the man he had seen
standing at the
deceased’s driver’s side window whom he chased and who
pointed a firearm at him. His identification
of the appellant
was based on the khaki trousers he was wearing and the green jacket
and white hat which the appellant had with
him in a bag. The
trousers, jacket and hat, according to Mr Dawood, were the same items
of clothing that the man he had seen
and chased was wearing.
[8]
The appellant denied that he was the man who Mr Molili had seen going
into and returning from the veld or whom Mr Dawood had
seen standing
at the driver’s side of the deceased’s vehicle and whom
Mr Dawood chased. He maintained that he
had not been involved
in any of the offences with which he was charged. He was not at
the deceased’s house on the day
in question. He got a
piece job painting on the day in question, and he was on his way home
from work to Alexandra when the
police found him. He denied
that he wore the white hat and he maintained that the police put it
in the bag in which he carried
not only his green jacket, but also a
blue overall jacket.
[9]
I am not persuaded that in convicting the appellant the trial court
misdirected itself in any respect in its assessment of the
evidence.
The totality of the evidence justifies the trial court’s
findings and conclusions that the exculpatory version
of the
appellant was not reasonably possibly true and that the guilt of the
appellant was proved beyond reasonable doubt.
The trial court
treated the evidence of identification with the required caution.
A reading of the record satisfies me that
the evidence of
particularly Mr Dawood and Mr Molili is trustworthy and
unquestionably true. The exculpatory
evidence of
the appellant is, on a conspectus of the evidence, inherently
improbable and clearly false. It is in material
respects
self-contradictory and on the aspect of the blue overall jacket,
which he said was also in the bag that was found in his
possession,
contradicted by the evidence of his own witness, Mr Vashi Mbatha,
from whom he allegedly borrowed the overall jacket
and to whom he
needed to return it that day. I find it highly improbable that
the police, in the circumstances of this case,
would have planted the
white hat in the bag which the appellant was carrying.
[10]
The appellant had been identified as the perpetrator of the offences
of which he was convicted by virtue of his dress in the
light of the
totality of the evidence. The ineluctable inference is that the
appellant was the man dressed in khaki trousers
and a green jacket,
whom Mr Molili had seen entering the veld, that he was the man
dressed in khaki trousers, a green jacket and
a white hat whom Mr
Dawood had seen next to the driver’s side of the deceased’s
car and who ran into the veld when
he was chased by Mr Dawood, that
he was the man whom Mr Molili saw returning from the veld and trying
to dispose of his green jacket,
and whom the police found about 100
metres away from where Mr Molili had seen him. The appellant
wore the identical khaki
trousers, green jacket and white hat worn by
the perpetrator and he was caught in close proximity as to time and
place. He
was identified by Mr Molili and then by Mr Dawood
individually shortly after he had been seen by each one of them.
The evidence
of identification is in the light of the totality of the
evidence, and the probabilities, reliable. (See
S v Mthetwa
1972 (3) SA 766
(A), at 768A.)
[11]
The appellant also contends that the sentences which the trial court
imposed upon him induce a sense of shock and that the
trial court
erred in its finding that there were no substantial and compelling
circumstances, which justified the imposition of
a lesser sentence
than the legally prescribed one of imprisonment for life for the
murder charge of which he had been convicted.
There is no merit
in these contentions. In sentencing the appellant, the trial
court exercised its discretion judicially
and his effective sentence
of imprisonment for life does not induce a sense of shock. (See
S v De Jager
1965 (2) SA 616
(A) at 628H-629B.) All the
relevant factors and circumstances were considered and duly taken
into account by the trial court.
Interference with the imposed
sentences is, therefore, not warranted.
[12]
In the result I would make the following order:
The
appeal against the appellant’s convictions and against his
sentences is dismissed.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
I
agree:
T.M.
MASIPA
JUDGE
OF THE HIGH COURT
I
agree:
C.
NICHOLLS
JUDGE
OF THE HIGH COURT
Date
of hearing: 05 August 2016
Date
of judgment: 11 August 2016
Counsel
for appellant: AH Lerm
Instructed
by: Legal Aid South Africa, Johannesburg
Counsel
for respondent: A de Klerk
Instructed
by: Director of Public Prosecutions, Gauteng Local Division of the
High Court of South Africa