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[2015] ZASCA 184
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Ngculu v The State (438/2015) [2015] ZASCA 184 (30 November 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 438/2015
Not
Reportable
In
the matter between:
SITHEMBISO
RONALD NGCULU
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Ngculu
v The State
(438/15)
[2015] ZASCA 184
(30 November 2015)
Coram:
Bosielo,
Zondi, Mathopo JJA and Van der Merwe, Baartman AJJA
Heard:
18
November 2015
Delivered:
30
November 2015
Summary
:
Criminal appeal against conviction on murder and assault with intent
to cause grievous bodily harm – sentenced to life
imprisonment
in respect of murder and 3 years’ imprisonment in respect of
assault with intent to cause grievous bodily harm
– single
witness – adequacy of the evidence – fair trial –
sentence of life imprisonment disturbingly inappropriate.
ORDER
On
appeal from
:
Limpopo High Court, Thohoyandou (Makhafola J sitting as court of
first instance).
a)
The appeal against convictions is dismissed.
b)
The appeal against the sentence imposed succeeds partially and to the
following extent:
‘
The
sentence of life imprisonment in respect of murder is set aside and
replaced with a sentence of 20 years’ imprisonment.
The
sentence of 3 years’ imprisonment in respect of the assault
with intent to cause grievous bodily harm is confirmed. In
terms of s
280 of the Criminal Procedure Act 51 of 1977, the sentence of 3
years’ imprisonment is ordered to run concurrently
with the
sentence of 20 years’ imprisonment in respect of murder.’
c)
The sentence is antedated to 22 September 2011.
JUDGMENT
Bosielo
JA (Zondi, Mathopo JJA and Van der Merwe, Baartman AJJA concurring)
[1]
The appellant who was accused 6, stood trial together with six others
in the Limpopo High Court, Thohoyandou on a number of
counts. He was
ultimately convicted on the counts of murder and assault with intent
to do grievous bodily harm. He was sentenced
to imprisonment for life
in respect of murder and 3 years’ imprisonment for assault with
intent to cause grievous bodily
harm. The appellant’s
application for leave to appeal against his conviction and sentence
was refused by the court below.
The appeal before us is with the
leave of this Court.
[2]
The state called several witnesses. The appellant’s conviction
is predicated on the medical evidence by Dr NT Mutshembele
and the
evidence of a complainant who survived the assault, Tshifaro Funanani
(Funanani). According to Funanani, he was accosted
by the former
accused 5 whilst at a bar lounge in the village. He was accused of
having stolen some cables at accused 2’s
mill. He was forcibly
taken to accused 2’s mill where he was assaulted by accused 1
and 3 with a cable. They were saying
‘he, the complainant,
knows and he will talk’.
[3]
In no time, the deceased was brought in by accused 1, 2, 3, 5, 6 and
7. Accused 3 and 7 started to assault the deceased all
over his body
with pieces of cables. Accused 3 and 7 then took cables and started
to assault the deceased all over his body. Both
the deceased and
Funanani were then shocked with electric wires by accused 1 and 7.
All seven accused continued to assault them.
Later, they were hung
upside down from the rafters. Funanani testified that as he was
escaping he saw the deceased lying on the
ground whilst accused 2 was
standing next to him. He was later separated from the deceased. He
saw the deceased walking with great
difficulty whilst being taken to
another room. Accused 7 was physically supporting and helping him to
walk. According to Funanani
all the accused including the appellant
assaulted him and the deceased. He later consulted with Dr
Mutshembele who treated him
for the injuries he had sustained from
the assault. According to Funanani, the accused were drinking
intoxicating liquor whilst
assaulting them.
[4]
Dr Mutshembele testified and elaborated on multiple soft tissue
injuries which he observed on Funanani during his medical
examination.
His professional opinion is that ‘these injuries
were consistent with the injuries that were caused by a blunt
object’.
[5]
I pause to state that the appellant made formal admissions in terms
of s 220 of the Criminal Procedure Act 51 of 1977 (CPA)
where he
admitted having ‘kicked Tshifaro [the deceased] in order to
induce him to disclose information pertaining to his
involvement in
the theft of electric cables around Tshisaulu area’. The
appellant did not testify in his defence but testified
in mitigation
of sentence.
[6]
Before us, the appellant’s counsel’s main attack against
the judgment of the court below was that the appellant
did not get a
fair trial. This was premised on the fact that all seven accused were
represented by one counsel. The contention
is that their common
counsel was conflicted as accused 2 in particular implicated the
appellant during his testimony. It was contended
further that the
appellant was unfairly denied the right to testify due to this
conflict of interest. This resulted in the appellant’s
version
not being put before the court below, so the contention went.
[7]
On the other hand, the respondent’s counsel supported the
convictions as being unassailable. He contended that the state’s
evidence was clear and overwhelming. Furthermore, he submitted that
the appellant placed himself at the scene of crime and further
admitted participating in the assault on the deceased. Based on this,
he contended that the appellant’s failure to testify
to dispute
the state’s version was fatal to his case. Regarding the
appellant’s role, he submitted that by being at
the crime scene
and participating in the assault, irrespective the role he played, he
associated himself with the entire assault,
and thus made himself
guilty by common purpose.
[8]
As I indicated earlier, the appellant’s main contention is that
he did not receive a fair trial on the basis that all
seven accused
were represented by one counsel. The appellant contends that this
made it very difficult for the same counsel to
effectively
cross-examine accused 2 who implicated him. A second string to his
bow was the contention that the appellant was ill-advised
by his
counsel not to testify in his defence. As a result, his version was
never put before the court below, resulting in an unfair
trial.
[9]
The record does not bear out these complaints. It is correct that Mr
Mushasha represented all the accused. As he was on a private
and not
on a Legal Aid Board brief, it follows that he was counsel of choice
by the accused. This is in line with s 35(3) (
f
)
of the Constitution which states that ‘every accused person has
a right to a fair trial, which includes the right to choose,
and be
represented by a legal practitioner.’ Once an accused person
has chosen his or her legal representative, he or she
enters into
what is called a lawyer-client relationship. This relationship is
unique. It requires the lawyer to receive full and
clear instructions
from his or her client which include the client telling the lawyer
the truth about what his or her case is.
Whatever the client
discloses to the lawyer is privileged and can only be disclosed with
the client’s consent. No person,
including the court can insist
on such lawyer-client confidential discussions being disclosed. This
will enable the lawyer to determine
and advise the client
accordingly.
[10]
Ordinarily, in the course of consultation, both the lawyer and the
client will discuss and agree on the strategy to be adopted
during
the trial. Once this has happened, the conduct of the trial is left
in the hands of the lawyer, who presumably will act
on the client’s
mandate. Should the lawyer either ignore or go beyond or even against
the client’s mandate, the client
is free to take remedial
actions which he or she may find appropriate, which may include
correcting the lawyer or at worst, terminating
the lawyer’s
mandate. Because of the confidentiality of the consultations between
the lawyer and the client, a court will
not know if and when the
lawyer is not acting in accordance with the mandate. It is the
accused who will know. A court will only
know if an accused brings it
to its attention. Even then a court has very limited powers to
intervene, save where it is clear that
an injustice is happening to
the accused. There was absolutely no indication in this case that the
appellant was not satisfied
with the manner in which Mr Mushasha
conducted his trial. In fact all evidence points to the contrary.
[11]
In this matter, Mr Mushasha received instructions from the appellant.
He executed his mandate. Throughout the trial, the appellant
never
complained about how he conducted the trial. As part of their
strategy they had agreed with him that only accused 2 would
testify.
Mr Mushasha explained the strategy and the rationale behind it to all
the accused including the appellant. They all accepted
his advice. It
follows that they made an informed decision. Ordinarily, no court can
circumvent this and interrogate
the accused about the
wisdom of his or her choice. I venture to say that a court can do
this in exceptional circumstances. Such
as where the lawyer is
patently incompetent and there is a real indication that the decision
is ill-considered and might result
in a failure of justice.
Fortunately, that is not the case in this matter. In this case, the
appellant was satisfied with the manner
in which Mr Mushasha
conducted the trial. This is demonstrated by the fact that even after
he withdrew from the case due to lack
of funds, the appellant and the
other accused raised money and reinstated him. Why is the appellant
complaining now? This is clearly
the case where an accused person is
satisfied with the strategy adopted by his or her lawyer. Once the
strategy has backfired as
it did here, such an accused cannot be
allowed to try to avoid the unpleasant results of the trial by
imputing the blame to his
or her lawyer. This is an age-old trick
often adopted by disgruntled accused. Such a stratagem can never be
allowed to undermine
the administration of justice by setting aside
convictions which are proper. It follows that this ground has no
merit.
[12]
I am fortified in this finding by two important events which occurred
during the trial and which undermine the appellant’s
complaint
about his counsel. Firstly, on 15 March 2010, some time before the
trial started, Mann AJ asked Mr Mushasha, who appeared
for all seven
accused if there is no conflict amongst any of the seven accused
which may necessitate the obtaining of the services
of another
counsel to represent some of the accused. He responded and assured
the court that there is no such conflict. Notably,
none of the
accused, including the appellant raised any objection to this.
Secondly, during the trial Mr Mushasha withdrew from
defending all
the accused due to lack of funds. The accused requested the court to
grant them a postponement to enable them to
raise funds as they
preferred to retain Mr Mushasha as their counsel. Suffice to state
that after they had resolved their financial
difficulties, Mr
Mushasha was placed on brief to continue defending all seven of them,
including the appellant. Why would they
have him reinstated if they
were not satisfied with how he conducted their defence? Thirdly, the
record shows that at the end of
the cross-examination of the state
witnesses, Mr Mushasha would, with the court’s leave, approach
all seven accused to verify
if he had covered all relevant aspects of
the case in his cross-examination. None of the seven accused,
including the appellant
ever indicated their dissatisfaction with the
manner in which Mr Mushasha cross-examined the state witnesses. The
facts of this
case show indubitably that the appellant was either
satisfied with the manner in which Mr Mushasha conducted his trial or
acquiesced
therein.
S
v Louw
[1990] ZASCA 43
;
1990 (3) SA 116
(AD).
[13]
It is worth noting that the appellant is not illiterate or
unsophisticated. At the time of the trial, he was busy with his
thesis research for his honours degree on microbiology at the
University of Venda (Univen). This would qualify him for MSc (Master
of Science). It is not the appellant’s case that he did not
follow the court proceedings. With his level of education, it
is
unthinkable that he did not appreciate the importance of the
decisions which he took regarding his choice of counsel. It is
axiomatic that counsel acts on instructions from his or her client
and never on his own. Based on this, I accept that whatever
Mr
Mushasha did, he did it with the informed consent of the appellant.
This explains why throughout the trial the appellant never
complained
to the court regarding any decision which Mr Mushasha took. The truth
is that whatever strategy Mr Mushasha opted for
was discussed and
agreed upon with all the accused, including the appellant. This case
is different from what happened in
S
v Majola
1982
(1) SA 125
(A) where the appellant had expressed disagreement with
the conduct of his case by his counsel during the trial. Faced with a
similar
problem, this Court held in
R
v Matonsi
1958 (2) SA 450
(AD) at 457F that ‘since the appellant took no
steps to withdraw his counsel’s mandate and expressed no
disagreement
with the conduct of his case until after the verdict had
been given the trial was regular and the correctness of the verdict
cannot
be challenged on appeal to this Court’. It suffices to
state that by parity of reasoning this appeal must suffer the same
fate.
[14]
I now turn to deal with the appeal against the sentence. The
appellant’s counsel submitted that, although the assault
was
brutal, concerted, prolonged and perpetrated by a group of men, it
was not so serious as to call for life imprisonment. However,
he
conceded correctly in my view that, having taken all the
circumstances into account, a sentence of 20 years’
imprisonment
in respect of murder would be appropriate as it would
punish the appellant appropriately whilst reflecting the gravity and
seriousness
of the offence, particularly as this amounted to
self-help. He did not attack the 3 years’ imprisonment imposed
for the assault
with intent to do grievous bodily harm.
[15]
The court below sentenced the appellant in terms of the
Criminal Law
Amendment Act 105 of 1997
. This is notwithstanding the fact that
neither in the indictment nor at any stage during the trial, was any
mention made of the
state’s desire to invoke the minimum
sentence prescribed in the Act. Such a step is improper and
impermissible as the appellant
had not been pre-warned of the
applicability of the minimum sentence regime. See
S
v Ndlovu
(75/2002)
[2002] ZASCA 144
;
2003 (1) SACR 331
(SCA);
S
v Legoa
(33/2002)
[2002] ZASCA 122
;
2003 (1) SACR 13
(SCA);
S
v Makatu
(245/05)
[2006] ZASCA 72
;
2006 (2) SACR 582
(SCA).
[16]
Given the peculiar circumstances of this case, I find a sentence of
imprisonment for life imposed on the appellant shockingly
inappropriate. However, it cannot be gainsaid that the appellant made
himself guilty of a serious offence. Any offence which involves
a
deliberate infliction of harm to another is serious. It is a
violation of his or her right to his or her dignity and physical
integrity. What makes it even more serious is that it was perpetrated
by a group who assaulted the appellant and the deceased randomly.
They used an electric cable which in itself can inflict serious
injuries. The assault was prolonged, indiscriminate, brutal and
barbaric. The medical report shows that the deceased died of serious
injuries to his body, whilst Funanani suffered serious injuries
all
over his body.
[17]
The reason advanced for this wanton assault on the deceased and
Funanani is that accused 2 had suffered theft of his cables
at his
mill. The deceased and Funanani were the suspects. It is clear that
accused 2 was aggrieved and angry because of the loss
he had
suffered. His co-accused including the appellant were merely
assisting him to investigate the theft and apprehend the culprits.
However, their biggest mistake is that once they found them, they did
not take them to the police station to allow the criminal
justice
system to take its course. They attempted to turn themselves into
police officers, prosecutors and a court. In simple terms,
they took
the law into their own hands. Needless to state that we are living in
a constitutional democracy underpinned by the rule
of law and the
principle of legality. Section 34 of the Constitution guarantees
everybody the right of access to justice. Citizens
must learn to
respect and abide by the law. It is reprehensible for the appellant
and his co-accused to have taken the law into
their own hands. Our
constitutional architecture has no room for self-help. See
Lesapo
v North West Agricultural Bank & another
(CCT 23/99)
[1999] ZACC 16
;
2000 (1) SA 409
(CC);
(1999 (12) BCLR
1420).
[18]
The offences for which the appellant has been convicted call for a
severe sentence. Both counsel for the appellant and the
state
suggested a sentence of 20 years’ imprisonment as being
balanced and appropriate. I agree. I think that a sentence
of
imprisonment for 20 years’ although not necessarily destroying
the appellant, will punish him effectively and, importantly
will
cater for society’s outrage at such conduct, lest we create the
impression, unwittingly that owners whose property has
been stolen
may take the law into their own hands with impunity. This will be a
fertile ground for vigilantism to thrive –
a recipe for
lawlessness.
[19]
On the other hand, I do not think that the sentence of 3 years
imprisonment for assault with intent to cause grievous bodily
harm on
Funanani, is shockingly inappropriate. None of the counsel argued to
that effect. However, sight cannot be lost of the
fact that
essentially the two crimes constitute one continuous act committed at
the same place, same time, by the same accused
and for the same
reason. Although it is correct to punish him separately for the two
offences, the cumulative sentence of 23 years’
imprisonment
induces a sense of shock. Justice requires that it be tempered. I
think that the severity of the sentence can be ameliorated
by
ordering the sentence of 3 years’ imprisonment to run
concurrently with the 20 years’ imprisonment imposed for murder
in terms of s 280 of the CPA.
[20]
In the result, the following order is made:
a)
The appeal against convictions is dismissed.
b)
The appeal against the sentence imposed succeeds partially and to the
following extent:
‘
The
sentence of life imprisonment in respect of murder is set aside and
replaced with a sentence of 20 years’ imprisonment.
The
sentence of 3 years’ imprisonment in respect of the assault
with intent to cause grievous bodily harm is confirmed. In
terms of
s
280
of the
Criminal Procedure Act 51 of 1977
, the sentence of 3
years’ imprisonment is ordered to run concurrently with the
sentence of 20 years’ imprisonment in
respect of murder.’
c)
The sentence is antedated to 22 September 2011.
____________
L
O Bosielo
Judge
of Appeal
APPEARANCES:
For
Appellant:
LM Manzini
Instructed
by:
Legal
Aid South Africa, Polokwane
Legal
Aid South Africa, Bloemfontein
For
Respondent:
A Madzhuta
Instructed
by:
Director
Public Prosecutions, Thohoyandou
Director
Public Prosecutions, Bloemfontein