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[2014] ZASCA 116
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Makumbane and Others v S (46/2013) [2014] ZASCA 116 (18 September 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 46/2013
In
the matter between:
MMABANGISENI
VICTOR
MAKUMBANE
..............................................................
First
Appellant
MURAVHA
WILLEM
MUNYAI
...............................................................................
Second
Appellant
TAKALANI
NEKHWEVHA
........................................................................................
Third
Appellant
and
THE
STATE
............................................................................................................................
Respondent
Neutral
citation:
Makumbane v The State
(46/2013)[2014] ZASCA 116 (18 September
2014)
Coram:
NAVSA ADP, WALLIS AND WILLIS JJA.
Heard
:
10 September 2014
Delivered
:
18 September 2014
Summary:
Criminal procedure – special
entry in terms of s 317 of
Criminal Procedure Act 51 of 1977
–
can only be made by trial court – application to lead evidence
on appeal – in circumstances could not be used
to overcome
failure to testify at the trial – fair trial – complaint
of inadequate representation – sentence.
ORDER
On
appeal from:
Limpopo High Court,
Thohoyandou (Makhafola J sitting as court of first instance):
1
The applications for leave to appeal
against conviction are dismissed.
2
Leave to appeal against the sentences
imposed on the applicants is granted.
3
The appeals against sentence are upheld.
4
The sentence on count 1 (murder) is set
aside and replaced by a sentence of 20 years’ imprisonment in
respect of all three
appellants.
5
The sentence on count 2 (assault with
intent to commit grievous bodily harm) of three years’
imprisonment is confirmed in
respect of all three appellants.
6
The sentence of three years’
imprisonment imposed on the second and third appellants in respect of
count 3 (kidnapping) is
confirmed and it is ordered that this
sentence is to run concurrently with the sentence imposed in respect
of count 2.
JUDGMENT
Wallis
JA (Navsa and Willis JJA concurring)
[1]
This is an application for leave to appeal
against conviction and sentence, joined with applications for the
making of a special
entry and leave to lead further evidence on
appeal. The events leading to it were briefly the following. On the
evening of 10 October
2008, two young men, Tshilate Tshilidzi and
Tshifaro Funanani were taken to a grinding mill near Tshishaulu in
Limpopo and beaten.
Mr Tshilidzi died as a result and Mr Funanani was
severely injured. The applicants were among seven local residents,
all men of
mature years and having some stature in the community, who
were charged with the murder of Mr Tshilidzi and the attempted murder
of Mr Funanani. All three applicants were also charged with
kidnapping Mr Funanani and the first and third applicants with the
kidnapping of Mr Tshilidzi.
[2]
After a trial, at which Mr Funanani was the
principal witness for the prosecution, six of the seven accused,
including the three
applicants, were convicted by Makhafola J of the
murder of Mr Tshilidzi; all of the accused were convicted of assault
with intent
to do grievous bodily harm in relation to Mr Funanani and
the second and third applicants were convicted of kidnapping Mr
Funanani.
On the murder count all of the accused that were convicted,
were sentenced to life imprisonment and on the other counts terms of
imprisonment were imposed to run concurrently with the sentence of
life imprisonment. Leave to appeal against both conviction and
sentence was refused. An application to this court for leave to
appeal, including applications for leave to lead further evidence
on
appeal and an application for the making of a special entry, was
referred for oral argument by this Court in terms of s 21(3)
(c)
(ii)
of the Supreme Court Act 59 of 1959. The parties were required to be
prepared, if called upon to do so, to address the merits
of the
appeal.
[3]
I deal first with the facts. The evidence
of Mr Funanani concerning the events of that evening was not
seriously challenged. The
first and second applicants made formal
admissions that they had beaten him with a sjambok although only a
few strokes, as did
some of the other accused. The third applicant
made a similar admission in relation to Mr Tshilidzi as did the
remainder of the
accused. The effect of those admissions was to place
all three of them at the scene where the beatings took place and to
admit
their participation in at least some kind of collective assault
on the two young men to which all seven accused and possibly others
were party. Although the admissions were made in relation to the use
of a sjambok, the evidence of Mr Funanani that they were in
fact
beaten with a length of fairly robust cable was accepted by the judge
in the light of the opinions expressed by Drs Mutshembele
and
Onwugbolu, that the injuries sustained by Mr Funanani and the
deceased were more consistent with their having been beaten with
a
cable, rather than a sjambok. There is no basis for rejecting that
conclusion.
[4]
In cross-examination of Mr Funanani the
applicants disputed his further evidence that he and the deceased
were suspended by their
ankles from some beams and beaten severely
while suspended. They did not give evidence to contradict him but
relied on the absence
in the medical report on Mr Funanani and the
post-mortem report in respect of Mr Tshilidzi of any injuries
consistent with that
having occurred. However, even if one disregards
this part of Mr Funanani’s evidence as an attempt to exaggerate
the severity
of the beatings the two men received, it does not affect
the fact that all seven accused, together possibly with others,
participated
in a collective assault on these two young men, which
left the one dead and the other with extensive bruises and
lacerations.
[5]
It was suggested in argument that the
evidence was insufficient to show that the applicants were
participants in that part of the
assault on Mr Tshilidzi that
resulted in the head injuries that caused his death. However, it is
clear that the assault was a concerted
one and there is no basis for
postulating an interruption in it where the applicants withdrew from
the proceedings and others inflicted
the fatal blow or blows. Had
there been evidence to that effect from any of the applicants that
might have been a different matter
but in the absence of such
evidence and the lack of any serious inroads in cross-examination
into the credibility of Mr Funanani,
the inevitable conclusion, on
the evidence before the trial court, was that all of the applicants
participated in the two assaults
and that one of them led to the
death of Mr Tshilidzi. On that evidence the convictions for murder
and assault with intent to commit
grievous bodily harm were proper.
Similarly, the convictions of the second and third applicants on the
kidnapping count could not
be challenged.
[6]
Faced with that the applicants sought to
introduce fresh evidence at the appeal and also asked this court to
make a special entry
arising from the manner in which the advocate
who represented all seven accused throughout the trial conducted
their defence. However
it is clear that only the trial court can make
a special entry as
s 317(2)
of the
Criminal Procedure Act 51 of
1977
says that an application for a special entry shall be made to
the judge who presided at the trial, subject to that judge’s
availability. That is entirely logical as a special entry may often,
as would the one here suggested, require evidence of the irregularity
that does not appear from the record of the trial. The application
for a special entry was accordingly dismissed in the course
of the
hearing.
[7]
The application to lead further evidence on
appeal suffered the same fate. Again the reasons are straightforward.
The purpose of
the application was nothing more than to enable the
applicants to reopen the case in order to give the evidence that they
elected
not to give at the trial, the nature of which broadly emerges
from the record of the evidence led in mitigation of sentence. The
record shows that they made a conscious decision when legally
represented not to give evidence. An application on appeal to lead
evidence that was available and that they elected not to give at the
trial is plainly impermissible. Hence the dismissal of the
application.
[8]
As the argument developed it became
apparent that the applicants’ real complaint was that they had
not had a fair trial. The
basis for this contention was that all the
accused had been represented by the same advocate throughout the
trial. The advocate
had advised them to make certain admissions in
the conduct of their defence those being the admissions referred to
in para 3 of
this judgment. Then when it came to the defence case
they say that they were advised that the best course to follow was
for accused
number two to give evidence and for the remaining
accused, including all three applicants, not to enter the witness
box. Their
further complaint is that the evidence of accused number
two was exculpatory of him, but reinforced their presence at the
scene
and participation in the assaults on Mr Funanani and Mr
Tshilidzi.
[9]
The difficulty with this argument is that
it is simply not borne out by the record of events both before the
trial commenced and
while it ran its course. Counsel, a Mr Mushasha,
was retained to represent all seven accused. The question of any
possible conflict
was specifically raised with him and the accused at
a hearing before the commencement of the trial when the matter was
adjourned.
The assurance was then given that there was no conflict
among the accused. At that stage counsel had consulted with his
clients
and having been asked for an assurance gave it. When the
trial commenced before Makhafola J the first witness was Mr Funanani.
He gave his evidence and was cross-examined by Mr Mushasha. It was
during the cross-examination that all of the accused, including
accused number two, tendered certain admissions about their
involvement in the events on 10 October 2008. In addition, at various
stages in the course of the cross-examination, questions were put to
the witness prefaced by ‘my instructions are’.
In the
course of his cross-examination the court required him when putting
matters to the witness to identify which of the accused
would say
what was being put and he did so. Had that been incorrect one would
have expected it to be drawn to counsel’s attention.
Whilst the
accused were not all highly sophisticated men they were not without
experience and acumen. The first applicant was a
general officer
employed by the tribal council; the second applicant was a police
officer of thirty years standing; and the third
applicant was a
self-employed motor mechanic. What was put to Mr Funanani was
consistent with the admissions handed in and also
consistent with
what the first and third applicants said when giving evidence in
mitigation of sentence.
[10]
Importantly, at the end of the
cross-examination of Mr Funanani, counsel sought the leave of the
court to approach his clients and
ensure that he had covered all the
matters on which they wished him to cross-examine. It was only after
he had taken these instructions
that he completed the
cross-examination. At that stage, and before re-examination Mr
Mushasha indicated that he would have to withdraw
because of a lack
of funds to pay his fees. The accused were so intent on his
continuing to represent them that they asked for
and secured a brief
adjournment in order to raise the necessary funds. In the result Mr
Mushasha continued to represent them for
the rest of the trial. It is
plain from this that the complaints now made that he procured that
they make admissions harmful to
their interests are ill-founded. I
turn then to consider the complaint about their closing their cases
without leading evidence
and relying solely on the evidence of
accused number two.
[11]
The first applicant closed his case without
giving evidence. This was before accused number two commenced giving
evidence. In view
of the similarity of the admissions made by all the
accused it appears plain that there was a deliberate decision in
conjunction
with counsel to call accused number two, who was the best
educated and presumably the most articulate of the accused, to
describe
the events of that evening. The fact that he said that he
left the place where the beatings occurred at an early stage, before
Mr Tshilidzi was brought to the mill, did not serve to implicate the
remaining accused, and particularly the applicants, any further
in
the events beyond the scope of their existing admissions. The
applicants heard the evidence of accused number two and had they
wished to add anything to it or qualify it in any way they were free
to do so. Equally there was nothing in his evidence that prevented
any of them giving similarly exculpatory explanations of their
conduct, but had they done so they would have been exposed to
cross-examination
about inconsistencies between their evidence and
that of accused number two. Once the latter’s evidence was
complete it was
open to any of the five remaining accused to give
evidence, if they wished to do so, and it is probable that the court
would even
have been willing to allow the first applicant to do so if
he had sought leave to reopen his case. It would hardly have mattered
to the course of the trial had he given evidence after accused number
two. Most importantly, if there was indeed any conflict of
interest,
as contended in the application for leave to appeal, it would
undoubtedly have emerged once the second accused finished
giving
evidence. That it did not do so clearly indicates that no such
conflict manifested itself or existed.
[12]
In the result there is no merit in the
applicants’ complaint that they did not receive a fair trial.
The application for leave
to appeal against their convictions must
therefore be refused. But there remains an application for leave to
appeal against the
sentences imposed upon them. In regard to the
sentences on the counts of assault with intent to commit grievous
bodily harm and
kidnapping it is not suggested that these were in any
way untoward. The attack focussed on the sentences of life
imprisonment for
the murder of Mr Tshilidzi. That sentence had been
imposed in terms of
s 51(1)
of the
Criminal Law Amendment Act
105 of 1997
read with
Part I
of Schedule 2 to that Act, because the
death of Mr Tshilidzi was occasioned by persons acting in the
furtherance of a common purpose.
[13]
The trial court held that there were no
substantial and compelling circumstances justifying the imposition of
a lesser sentence.
In my view it misdirected itself in at least two
respects in reaching that conclusion. First it categorised the
killing of Mr Tshilidzi
as ‘gruesome, dastardly, insensitive,
rampant, heinous, vicious and careless in the most extreme’ a
combination of
adjectives that was not only internally inconsistent
but over-stated the position. That much is clear from the concession
by counsel
for the State that the accused did not have any direct
intention to kill the deceased. It is clear that this was a case of
local
vigilantism, where a community beset by a particular type of
crime – the theft of electrical cables – and consequent
inconvenience to their daily lives set out to solve the crime by
kidnapping and beating the suspected perpetrators in order to
elicit
confessions and deter them from repeating their offence. They did not
set out to kill their victims, but they killed Mr
Tshilidzi because
they did not appreciate the seriousness of some of the blows they
struck, which caused his head injuries. Their
lack of appreciation of
the possible consequences of their conduct was probably fuelled by
the liquor they were consuming at the
time.
[14]
The other factor that seemed to weigh
heavily in the judge’s consideration of the question whether
there were substantial
and compelling circumstances justifying the
imposition of a lesser sentence was some evidence that Mr Funanani’s
mother was
being ostracised by a section of the community who
supported the actions of the accused and were hostile to their
prosecution.
However, that could not be laid at the door of the
applicants and was a matter extraneous to the judge’s function.
It should
not have been taken into account.
[15]
For those reasons I think that the judge
erred in regard to sentence and that we are at large to reconsider
the issue. In my view
this was a serious case involving as it did the
perpetrators taking the law into their own hands. That must always be
discouraged
however much communities may be frustrated by a high
incidence of crime and any apparent inability of the police to
prevent crime
in general and solve crimes once perpetrated. So does
the fact that they did not set out to kill either Mr Funanani or Mr
Tshilidzi.
Lastly, as I have already mentioned the three applicants
had hitherto led useful lives making a contribution to the community
in
which they lived. There is every reason to think that the
imposition of a substantial term of imprisonment will bring home to
them
what they have done wrong and that, having served that term of
imprisonment, they will be rehabilitated and able to resume useful
lives in the community.
[16]
These
factors must be taken together with the fact that life imprisonment
is the most stringent sentence that our courts can impose.
[1]
Then there must be an overall assessment of whether on the facts of
this case a sentence of life imprisonment is proportionate
to the
offence committed by the applicants.
[2]
In making that latter assessment the court will always be
conscious of other cases in which it has had to consider the
appropriate
sentence to be imposed for serious crimes, and the
assessment in those cases of which crimes are truly the most heinous
and warrant
the heaviest sentence. I see no point in reciting those
cases as they all turn on their own facts, but they inevitably form a
backdrop
to the sentencing process in terms of the legislation
prescribing certain minimum sentences for serious crimes. In the
present
case I think that the factors I have identified in the
context of the case as a whole and my assessment of whether the
sentence
of life imprisonment is appropriate here, leads to the
conclusion that there were substantial and compelling circumstances
justifying
a departure from the statutorily prescribed minimum
sentence. For those reasons the applications for leave to appeal
against sentence
should be granted and the appeals upheld to the
extent set out in the next paragraph.
[17]
I have already held that there were
substantial and compelling circumstances justifying a departure from
the sentence of life imprisonment
on the charge of murder. In my view
that sentence should be set aside and replaced with a sentence of 20
years’ imprisonment
in respect of each of the applicants. The
sentences on the other two counts were appropriate for those
offences, but were originally
as required by law made to run
concurrently with the sentence of life imprisonment in each case. I
do not think it appropriate
for them to run concurrently with the
sentence for the murder of Mr Tshilidzi as they related to crimes
perpetrated against Mr
Funanani. But insofar as he was concerned they
formed part of a single train of events. I accordingly think that
they should be
confirmed and that it should be ordered that they run
concurrently with one another. That has the result that an effective
sentence
of 23 years’ imprisonment is imposed for all the
crimes of which the applicants have been convicted.
[18]
The following order is accordingly made:
1
The applications for leave to appeal
against conviction are dismissed.
2
Leave to appeal against the sentences
imposed on the applicants is granted.
3
The appeals against sentence are upheld.
4
The sentence on count 1 (murder) is set
aside and replaced by a sentence of 20 years’ imprisonment in
respect of all three
appellants.
5
The sentence on count 2 (assault with
intent to commit grievous bodily harm) of three years’
imprisonment is confirmed in
respect of all three appellants.
6
The sentence of three years’
imprisonment imposed on the second and third appellants in respect of
count 3 (kidnapping) is
confirmed and it is ordered that this
sentence is to run concurrently with the sentence imposed in respect
of count 2.
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For
appellant: L M Manzini
Instructed
by: Justice Centre, Thohoyandou
For
respondent: A I S Poodhun
Instructed
by: National Director of Public Prosecutions.
[1]
Rammoko
v Director of Public Prosecutions
2003
(1) SACR 200
(SCA) para 13.
[2]
S
v Vilakazi
2009 (1) SACR 552
(SCA) paras 18-20.