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[2021] ZAGPJHC 357
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Ndlovu v S (A128/2020) [2021] ZAGPJHC 357 (31 May 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A128/2020
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
NO
DATE:
31 May 2021
In
the matter between:
GERALD
NDLOVU
Appellant
And
THE
STATE
Respondent
JUDGMENT
SIWENDU
J (NICHOLS AJ concurring)
Introduction
[1]
The appellant is a 44-year-old naturalised
Zimbabwean and a qualified bookkeeper. He is employed as a Portfolio
Manager with S[....]
P[....] Investments (the ‘company’)
located in Bez Valley, Johannesburg. He manages certain properties as
well as payments
by tenants on behalf of property owners. At the time
of his trial, he had been in the employ of the company for 11 years.
[2]
On 13 November 2017, he was arraigned in
the Johannesburg Regional Court on a single count of murder read with
s 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. It was
alleged that on 11 November 2017, he acted in common purpose with
others and unlawfully and intentionally killed Ikechuku
Edmond Manoke
(the ‘deceased’).
[3]
The appellant pleaded not guilty to the
charge, but was convicted on 29 January 2020. On 30 June 2020, the
trial court sentenced
him to a 15-year term of imprisonment imposed
in terms of
s 51(2)
of the
Criminal Law Amendment Act.
[4]
On
23 July 2020, the trial court refused the appellant’s
application for leave to appeal. The appeal against the conviction
and the sentence follows a petition to this court in terms of
s 309C(2) of the Criminal Procedure Act 51 of 1977 (the
‘CPA’).
[1]
Background
[5]
The deceased, together with Mr Calvin
Chukwu, Mr Denis Ekwedi, and Ms Sibongile Mabasa were tenants at
house [...] A[....],
M[....] (the ‘property’). Ms Mabasa
occupied the backroom cottage while the deceased, Mr Chukwu, and
Mr Ekwedi
occupied rooms in the main house. They paid rent to
John Paul who also occupied part of the main house.
[6]
The evidence before the trial court was
that the registered owner of the property and the company claimed
that the occupants were
in unlawful occupation of the property. They
were not paying rent. In October 2017, the company dispatched the
appellant to serve
a notice to evict the occupants. On arrival, the
appellant met two women inside the main house. The appellant’s
evidence
is that there was a verbal altercation, but that he managed
to serve the notice because one of the ladies reluctantly accepted
it.
[7]
On 11 November 2017, at approximately
17h00, Ms Mabasa and Ms Nqai (a friend who came to visit) were in the
backroom cottage. A
child came to alert them that six armed men had
forcefully broken and entered the main gate, heading towards the main
house. Ms
Mabasa’s evidence is that she immediately left to
investigate. En route, at the passage outside the main house, she
encountered
the six unknown men. They told her they were there for
some work, pushed her aside, and proceeded to the main house. The
appellant
was amongst them.
[8]
The men broke the doors to the main house
and the rooms using crowbars. Some of the men had beer or other
alcohol. The appellant
had a crowbar and a Heineken beer. Ms Mabasa
called 10111 and was informed that the Cleveland Police would arrive.
When she realised
the police would not come, she called Mr Chukwu and
Mr Ekwedi, who arrived before the police officers. By this time, the
group
of men were taking furniture from the bedrooms of the main
house, leaving it outside the house. Ms Mabasa was at the gate when
Mr Chukwu arrived; soon thereafter, the deceased, whom she knew as
‘Madiba’, arrived.
[9]
The incident escalated, because the post
mortem report reveals that the deceased died of a fatal traumatic
brain injury and blunt
force trauma of the abdominal. Three classes
of injuries were identified, namely: (1) head injuries which were
potentially fatal;
(2) blunt force abdominal trauma which was also
potentially fatal; and (3) non-fatal superficial injuries to the
head, body, and
limbs were identified. The deceased was pronounced
dead at approximately 18h30.
[10]
The appellant was severely injured during
the incident. Photographs show that he was stripped and left lying on
the street naked.
He was admitted at Charlotte Maxeke Johannesburg
Academic Hospital for serious head injuries.
The
court a quo
[11]
At
the trial, the appellant admitted the injuries sustained by the
deceased, the cause of his death, and the photographic evidence
of
the scene prepared by Constable Shongwe in terms of s 220 the
CPA.
[2]
He disputed that he had
inflicted the injuries sustained and/or that he caused the death of
the deceased.
[12]
In convicting the appellant, the trial
court relied on the evidence of two eyewitnesses, Ms Mabasa and Ms
Nqai, as well as the expert
evidence of Dr Mantanga, all of whom
testified for the state. The trial court held that the appellant was
positively identified
by Ms Mabasa and Ms Nqai as the person
responsible for the fatal injuries. It found there was no room for
error in their positive
identification. In the view of the trial
court, the witnesses had made good and reliable observations of the
appellant and the
incident.
[13]
With regards to the injuries found on the
deceased, the trial court held that the head injury was consistent
with the blunt force
caused by a brick. It was the cause of the
deceased’s death. While it noted that the deceased had
sustained an abdominal
injury, it recorded that there was no evidence
of how the injury occurred. It concluded that the abdominal injury
must have occurred
while the deceased was lying on the street
injured. However, during the application for leave to appeal, the
trial court dismissed
the importance of the abdominal injury, holding
that it was irrelevant.
[14]
Ultimately, in convicting the appellant,
the court a quo found that the appellant acted in common purpose with
the group of men
who helped with the eviction. It held that the group
of men were acting under the appellant’s direct control. It
rejected
the appellant’s version as false, improbable, and not
being reasonably possibly true, finding that his version was in
conflict
with the totality of the evidence.
The
grounds for appeal
[15]
The appeal pivots on the trial court’s
assessment and approach to the evidence, in particular, whether the
trial court was
correct in:
a.
accepting the evidence of Ms Mabasa and
Nqai as a reliable account of what occurred; and
b.
finding that they were credible witness who
had corroborated each other.
[16]
In addition, the appellant claims that the
trial court misconstrued the basis of his defence. He argues that it
convicted him on
an incorrect premise of identification. Further, he
states that the trial court also applied the wrong test in its
assessment of
the evidence, as it failed to consider the
contradictions and the totality of the evidence.
Trial
evidence
The
evidence of Ms Mabasa
[17]
In her evidence-in-chief, Ms Mabasa
testified that when she went to investigate the break-in, she left Ms
Nqai inside the backroom
cottage with the children. Even though her
child had reported that the men were carrying sticks, she saw them
carrying crowbars
and alcohol. She saw them breaking the door to the
main house and the doors to the bedrooms. When the police did not
arrive, she
called Mr Chukwu and Mr Ekwedi. By this time, the
men had removed the furniture from the main house and placed it
outside.
[18]
Mr Chukwu arrived first, and went to the
main house. The men assaulted him with sticks. Soon thereafter the
deceased arrived. The
deceased immediately called the police. While
she and deceased were at the gate, the appellant approached them and
pulled the deceased
aside to out to talk to him. The deceased
refused, telling the appellant that he was only prepared to talk to
the police.
[19]
While the deceased was on the phone
to the police, she saw the appellant pick a brick from the ground and
assault the deceased on
the forehead. The appellant and the deceased
were at close range. The appellant did not throw the brick at the
deceased. He assaulted
the deceased once, while holding the brick in
his hand. She saw the deceased bleeding from the nose and mouth. The
deceased ran
for about eight meters, but collapsed on the ground near
the neighbour’s gate. This was the only assault she witnessed.
[20]
Ms Mabasa left the deceased to buy airtime
from the Spaza shop. On her return, the deceased was still lying on
the ground. She called
out to the deceased. He did not respond. The
police had not yet arrived. There were two BMW motor vehicles in
front of the house,
one of them was white. Five of the men got inside
the BMW, indicating to her they were going to the police station. She
remained
with the deceased but insisted that the appellant remain
behind.
[21]
Their neighbours witnessed the commotion.
The appellant attempted to leave but he was prevented from doing so.
Approximately 50
or more Nigerians, who were brothers of the
deceased, came to the scene and assaulted the appellant. Ms Mabasa
could not remember
what happened thereafter. She confirmed, however,
that the fight between Mr Chwuku, Mr Ekwedi, and the group of men
inside the
house migrated to the street. She also confirmed that even
though she had left Ms Nqai behind looking after the children, she
became
aware of Ms Nqai's presence on the street later. The
paramedics and the police arrived at about 19h00.
The
evidence of Ms Nqai
[22]
Ms Nqai, on the other hand, testified that
she and Ms Mabasa went outside to investigate at the gate. She
instructed Ms Mabasa to
call the police as they left the backroom
cottage. They met a man carrying a firearm and a can of Heineken. The
man told them he
was not there to harm them but to evict foreigners.
The appellant was amongst the group of men. He had a crowbar in his
possession.
There was a 3-year-old child sleeping in the main house.
Ms Nqai went to fetch the child in the company of the man with the
firearm.
She took the child to the backroom. She returned to the
gate.
[23]
She testified that she saw five men
removing furniture from the main house, leaving it outside the yard.
The community gathered
to witness the incident. At this time the
deceased returned from the shops. He did not get inside the house. He
called the police,
advising that ‘thugs’ or ‘tsotsi’s’
were at his house. While some of the men were inside the house
taking
out furniture the appellant, who was standing outside, approached the
deceased to talk. Ms Nqai testified that the appellant
picked up a
stone, which she later described as a brick, 20 centimetres in
length, and hit the deceased once on the face. The deceased
tried to
run away but fell to the ground on his face. He had tripped on his
shoes which had a sharp nose. The deceased later turned
over to lie
with his face up.
[24]
Ms Nqai stated that five of the men left in
a white BMW. The appellant attempted to run but members of the
community prevented him
from doing so. She returned to the backroom
to look after the children. She did not see the attack on the
appellant by the community.
She went outside again after the police
and paramedics arrived. She was informed that the deceased had passed
away.
The
evidence of Dr Mantanga
[25]
The trial court also heard the evidence of
Dr Mantanga. He testified that the deceased sustained a fatal
cranial-cerebral blunt
force trauma in the cranium (skull bone)
leading to an intracranial haemorrhage, and an injury to the cerebrum
(soft tissue of
the brain), also referred to as a cortico cerebral
contusion. This led to the cerebral oedema (swelling of the brain).
Even though
the deceased had a ventricular hypertrophy consistent
with high blood pressure, the head injury was severe, leading to
bruising
under the sub-endocardial membrane and a sub-endocardial
haemorrhage in the left ventricle.
[26]
The fatal blunt force abdominal trauma
revealed a nine by ten centimetre bruise to the right midline. It was
complicated by a nine
centimetre laceration to the liver. The
position of the laceration was in a vulnerable part of the kidney
under the skin. The deceased
sustained massive intra-abdominal
haemorrhage injuries. The bleeding was significant. However, the
deceased lost less than 30%
of the threshold of blood volume. The
spleen contracted consistently with the shock. Other non-fatal
injuries were abrasions to
the nose and the chin, and a bruising and
swelling of the frontal scalp of six by five centimetres. The
deceased had a moderate
amount of clotted blood within the nasal
cavity.
[27]
Dr Mantanga stated that the head injury was
irreversible and non-survivable because of the tonsillar herniation
at the end stage.
The swelling of the brain, which forced the
midbrain into the foramen, affected the deceased’s respiratory
and cardiac functioning.
A substantial amount of force, consistent
with that of a car accident, would have been required to result in
the nature of the
head injury sustained. The brick would have had to
be flung or accelerated with a significant amount of force.
[28]
Dr Mantanga testified that although the
abdominal injury was potentially fatal, it was potentially
survivable. A laceration to the
liver can occur with a moderate
amount of force applied. The deceased was clinically overweight at
110 kilograms, and had sufficient
layer of fat as protection. A
moderate to significant amount of force was necessary to cause the
injury. He told the trial court
that it would be difficult to
reconcile how falling flat on the ground would have caused the liver
to lacerate to the degree sustained.
The most likely conclusion was
that there had to be have been external factors applied, moderate and
excessive, to cause the laceration
to the extent suffered by the
deceased.
The
appellant's evidence
[29]
The appellant testified in his own defence. He told the trial court
that he went to the
house to deliver a document to the occupants. His
company required personal details from the occupants to proceed with
the eviction.
He was afraid and felt unsafe because of what had
transpired on the previous occasion in October 2017. He had called
Dan to assist
him with the delivery of the document. Dan employed
security personnel and had an agreement with the owner of the company
to assist
when tenants become difficult. They met a street away from
the property. Dan arrived in his own vehicle with four men.
[30]
The appellant stated that on arrival at the house, he remained
outside the property while
Dan and the group of men went inside.
After a while, Dan came out to tell him the people inside wanted to
talk to him. The appellant
did not go inside. Dan went back to the
house, but emerged a while later to advise him that he wanted to
remove his vehicle to
a garage nearby for safety reasons. He told the
appellant that he should remain as he would return.
[31]
The appellant testified that while he was talking to Dan, a
group of people arrived
outside the house. He was not certain whether
they were community members. They did not come from inside the
property. When pressed,
he stated that the group of people must have
been attracted by noise from the main house. He could also hear the
noise of people
inside the house. They were ‘fighting with
words’. He does not know what went on inside the house as he
had remained
outside the property. A crowd gathered and commotion
broke out.
[32]
Three Nigerian men approached the appellant looking for the
whereabouts of the men who had accompanied Dan. They assaulted the
appellant,
and as a result, he was taken to hospital. He lost
consciousness and regained it at the ICU a few days later. He had had
brain
surgery. He recalled interacting with the third state witness,
Mr Chukwu, to explain why they were there. He did not recall
seeing furniture moved out of the house. He did not see that the men
in Dan’s company were armed with knives, beer bottles,
or
firearms. He denied seeing or interacting with the deceased. He
denied hitting the deceased with a brick.
Analysis
of the evidence
[33]
The first point of departure is the trial
court’s evaluation of the evidence. Mr van Rensburg (for the
appellant) seeks to
impeach the evidence of the two eyewitnesses. He
argued that on a proper evaluation, and an assessment of the totality
of the evidence,
the trial court did not arrive at a sound
conviction. He contended that there were the contradictions in the
evidence of Ms Mabasa
and Ms Nqai which, contrary to the court’s
finding, rendered their evidence less credible and unreliable. He
argued that
this Court should infer that the two witnesses rehearsed
their version, and that the evidence should have been rejected.
[34]
I pause to mention that the two women were
eyewitnesses. They were the only ones who saw the appellant hit the
deceased with the
brick. Their testimony about the assault was the
primary area of convergence in their evidence. I first deal with the
complaint
about the contradictions, before considering the trial
court’s evaluation of the totality of the evidence.
[35]
An appeal court will generally be slow to
interfere with the trial court’s evaluation of the evidence
assessment. In
Essential Evidence
,
Zeffertt
et al
point out that:
‘…
while
deference is paid to the trial court’s findings on credibility,
it is not precluded from dealing with findings of fact
which do not
in essence depend on personal impressions made by a witness in giving
evidence. They “generally have greater
power to do so where a
finding of fact does not essentially depend on the witness’
demeanour, but predominantly upon inferences
from other facts and
upon probabilities”. The trial court’s reasoning may, for
instance, be logically flawed, or the
record may reveal a false
premise based on a mistake of fact, or the court may have failed to
take a relevant fact into account.
An error of this kind is known as
misdirection. Where there has been no misdirection, the appeal court
will reverse a finding on
fact only when it is convinced that it is
wrong; but, where there has been a misdirection, the appeal court is
at large to disregard
the court a quo’s findings in whole or in
part and substitute its own.’
[3]
[36]
It
is trite that contradictions
per
se
are not sufficient grounds to reject the evidence of a witness. The
court is required to consider the precise nature of the
contradictions,
the materiality thereof, and their effect on the
totality of the evidence before it.
[4]
This principle was confirmed in
S
v Mkohle
,
[5]
and that court, dealing with contradictions in the evidence, held
that:
‘
Contradictions
per se do not lead to the rejection of a witness' evidence. As
Nicholas J, as he then was, observed in
S
v Oosthuizen
1982 (3) SA 571
(T) at
576B-C, they may simply be indicative of an error. And (at 576G-H) it
is stated that not every error made by a witness affects
his
credibility; in each case the trier of fact has to make an
evaluation; taking into account such matters as the nature of the
contradictions, their number and importance, and their bearing on
other parts of the witness' evidence.’
[37]
In
Nzimande
v S
,
[6]
the court’s guidance makes clear that where contradictions and
inconsistencies arise, the aim is not to establish which of
the
versions is correct. Rather, the court must satisfy itself that the
witness could err, either because of a defective recollection
or
because of dishonesty. Confirming the principle laid out in
S v
Mafaladiso
,
it held that the approach to contradictions between two witnesses and
contradictions between the versions of the same witness
(such as
inter
alia
,
between their
viva
voce
evidence and a previous statement) is identical
.
[38]
I have considered the contradictions
complained of. Their essence pivots on two areas: (1) whether the two
witnesses left the backroom
cottage together; and (2) whether they
witnessed the same things. Ms Mabasa stated she had left Ms Nqai
behind, while Ms Nqai testified
she went out to investigate with
Ms Mabasa. Further, Ms Nqai testified about a man carrying a
firearm. He told her they were
there to evict foreigners. The man had
escorted her into the main house to collect a three-year-old child
who was sleeping in the
main house. In contrast, Ms Mabasa testified
that she encountered six men carrying crowbars and beers along the
passage to the
main house. Her evidence was that she had called
10111. Ms Nqai, on the other hand, stated that she asked Ms Mabasa to
call the
police.
[39]
In her statement to the police, Ms
Mabasa stated that the men carried ‘knives’. She
testified that this was the first
time she had ever seen the
appellant. Yet in the statement to the police, she had told them the
appellant was the driver of the
BMW and was in red trousers, and that
she had seen him at the property on a previous occasion. When
confronted with the contradictions,
Ms Mabasa’s
explanation was that she became aware that Ms Nqai was outside later
that evening when they were all on
the street. She had conceded she
was traumatised by the incident.
[40]
I find that when viewed in context and what transpired, the
contradictions are not material. Ms Mabasa, in particular, accounted
for the inconsistencies. I find she was a reliable, credible witness
who made concessions when required. On the appellant’s
own
account, after he and the group of men came to the property, there
was commotion and noise coming from inside the house. People
were
‘fighting with words’. The two
witnesses
could hardly have been expected to give exactly the same account of
the same incident.
[41]
In view of what transpired, it is not
material whether the group of men used sticks or crowbars to force
their entry onto the property.
The indisputable fact is they
forcefully entered the property and as will be evident later in the
judgment, vandalised the house.
It is clear from the record
that the situation was fluid, became volatile, and soon escalated
after the occupants arrived.
I am unable to agree
that the witnesses were dishonest, or to find that their evidence was
contrived
.
[42]
A
material part of the complaint, which Mr van Rensburg argued
justifies the jettisoning of the evidence and the conviction by this
Court, is that the state did not account for the abdominal and other
injuries found on the deceased. On this score, the approach
enunciated in
S
v Chabalala
[7]
is instructive as to a trial court’s approach to evidence. The
SCA noted that in weighing all the elements, which either
prove the
guilt of an accused, against all those that are indicative of his
innocence:
‘…
.
The result may prove that one scrap of evidence or one defect in the
case for either party (such as the failure to call a material
witness
concerning an identity parade) was decisive but that can only be an
ex post facto
determination and a trial court (and counsel) should avoid the
temptation to latch on to one (apparently) obvious aspect without
assessing it in the context of the full picture presented in
evidence….’
[43]
The evidence by the two witnesses was that
the appellant inflicted a single assault with a brick on the
deceased’s head from
a close proximity. It was not disputed
that after the brick assault on the deceased, Ms Mabasa left the
scene to buy airtime at
the spaza shop. It is not clear from the
record what transpired. I disagree with the trial court’s
finding that the abdominal
injury and laceration of the liver was, in
all probability, inflicted while the deceased was lying along the
street where he had
fallen down. There was no basis for the trial
court’s conclusion. Nevertheless, I find that conclusion does
not take the
matter further. On the evidence, the abdominal injury
was survivable and the head injury was the cause of death. Ms
Kalikhan (for
the state) relies on the head injury to support the
conviction.
[44]
I
have also considered Dr Mantanga’s opinion evidence that the
deceased’s head was accelerated and decelerated at a
rapid rate
out of synchrony with the skull. The skull moved so violently. The
brick would have had to be flung or accelerated to
a significant
amount of force usually generated by a car accident in the light of
the direct evidence by the eye witnesses. This
is based on the
accepted approach in
Motor
Vehicle Accident Assurance Fund v Kenny
that:
[8]
‘
An
expert’s view of what might probably have occurred in a
collision must, in my view, give way to the assertions of the direct
and credible evidence of an eye witness. It is only where such direct
evidence is so improbable that its very credibility is impugned,
that
an expert’s opinion as to what may or may not have occurred can
persuade the Court to his view.’
[45]
I conclude that the testimony of the
eyewitnesses must prevail. It is clear from Dr Mantanga’s
further evidence that the brick
assault was unexpected. The deceased
was on the phone to the police. This may account for the sharp
acceleration and deceleration
of his head.
[46]
I
have, in addition, considered the trial court’s verdict based
on the above facts and the appellant’s version and,
in
particular, Mr van Rensburg’s criticism that despite referring
to
S
v Aswegen
,
[9]
the trial court applied an incorrect test to evaluate the evidence.
Ultimately, as held in
S
v Janse van Rensburg and Another
,
[10]
and endorsed by the SCA in
S
v Doorewaard and Another
[11]
—
‘…
.
In order to determine the objective truth of the one version and the
falsity of the other, it is important to consider not only
the
credibility of the witnesses, but also the reliability of such
witnesses. Evidence that is reliable should be weighed against
the
evidence that is found to be false and in the process measured
against the probabilities. In the final analysis the court must
determine whether the State has mustered the requisite threshold —
in this case proof beyond reasonable doubt.’
[47]
The appellant’s account is instructive. He was at the
property to serve a document and to obtain personal details of the
occupants.
He denied that the personal belongings and furniture of
the occupants were taken out and vandalised. He denied that Dan’s
security men were armed. It was only when questioned to explain why
people who were not from the property had gathered outside
that he
agreed, there was commotion and noise coming from the house. He
stated that people were ‘fighting with words’.
Even
though he denied implementing or being part of the group that
implemented the illegal eviction, it had been peaceful until
their
arrival. The house was ransacked and commotion broke out after their
arrival.
[48]
Even though the appellant testified that he had remained
outside the property, and the only person he spoke to was Mr Chukwu,
the
two women connected him with the group inside. It is clear that
the occupants knew and identified him as the leader and part of
the
group of men inside the house. The occupants wanted to talk to him.
He referred to Dan and the security men as his ‘colleagues’.
The three people he cannot identify, who came from the property
towards him to assault him, connected him with the commotion and
the
events inside.
[49]
When Dan left to move his vehicle for safety reasons, the
situation had escalated. The fight inside the property had migrated
outside
the property. The commotion escalated further when the three
men arrived. The appellant did not call the police. He did not call
his employer. He did not leave because he took comfort from Dan’s
security he assumed were still inside the property. It
is clear that
the relationship with Dan soured after the incident. The appellant
did not discuss how he got severely attacked.
Dan no longer provides
services to the company.
[50]
The appellant did not take the trial court into confidence
about what had transpired between him and the two women in October
2017
to warrant the security protection. He could not identify the
nature of the
second document he was there to
serve.
His evidence is inconsistent with the photographs
admitted in terms of s 220 of the CPA. They show that the doors
inside the
main house were broken. Personal belongings including
furniture of the occupants were thrown outside. The house was
vandalised
inside. There was blood on the floor. I accept Ms Mabasa’s
evidence that the appellant came inside the property at a certain
point. He was connected to the group inside. I find that the
appellant knew that they were at the property to implement an
unlawful
eviction. He could not explain why he required a group of
security men to merely serve a document. I find that he was evasive
and
sought to minimise their unlawful conduct. The version he
advanced was improbable and could not be believed.
[51]
Having
regards to the above, I am minded to articulate the threshold of a
proof beyond a reasonable doubt as held by the court in
S
v Phallo and Others
,
[12]
where the court endorsed the classic formulation by Malan JA in
R
v Mlambo
that:
[13]
‘…
there
is no obligation on the Crown to close every avenue of escape which
may be said to be open to an accused. It is sufficient
for the Crown
to produce evidence by means of which such a high degree of
probability is raised that the ordinary reasonable man,
after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime
charged. He
must, in other words, be morally certain of the guilt of the
accused.’
[52]
I disagree with Mr van Rensburg’s assertion that the
trial court’s premise about identification was flawed. It did
no
more than confirm that the appellant was identified outside
property as the one who threw a brick at the deceased. Photographs
also show that windows of one of the BMW motor vehicles were broken.
The appellant was seen outside the property. I find that this
is
consistent with the migration of the violent commotion outside
property and the fateful attack on the deceased. I accept that
the
head injury was the final cause of the deceased’s death and
that the appellant inflicted the fatal injury.
[53]
The state discharged the burden of proof of
the appellant’s guilt beyond a reasonable doubt, and the
appellant was correctly
convicted.
[54]
With
regard to the imposition of the sentence, it has been repeatedly
emphasised that it is a matter that pre-eminently lies in
the
discretion of the trial court, and a court of appeal can only
interfere if: there was a material misdirection by the court;
the
court failed to exercise its discretion judicially and/or the court
acted unreasonably or improperly; if the sentence is startlingly
inappropriate; or the interests of justice require an
interference.
[14]
[55]
As
held in
S
v Zinn
,
[15]
a court must consider a triad of factors, consisting of the crime,
the offender, and the interests of society. I have scrutinised
the
trial court’s reasoning and approach to the sentence. It took
account of the pre-sentencing report, the totality of the
appellant’s
circumstances, and the seriousness of the offence. It found there
were no substantial and compelling circumstances
to justify a
deviation from the prescribed minimum sentence.
[56]
The appellant was charged in terms of s
51(1)
Criminal Law Amendment Act 105 of 1997
. The prescribed minimum
sentence is mandatory life imprisonment. Despite the evidence that
the group of men acted on the instructions
of the appellant, and that
he considered them his ‘colleagues’, the trial court did
not place sufficient weight on
this in sentencing the appellant.
Curiously, even though the trial court found that there were no
substantial and compelling circumstances
justifying a deviation from
the minimum sentence, it departed from the prescribed minimum
sentence and imposed a lighter sentence
in terms of
s 51(2)
of
the
Criminal Law Amendment Act. The
state did not cross-appeal this
finding.
[57]
The 15-year term of imprisonment imposed is
therefore not shockingly inappropriate, nor does it deviate from the
sentence that this
Court would impose.
Therefore,
the following order is made:
1.
The appeal against the conviction and the sentence is dismissed.
T
SIWENDU
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
agree
T
NICHOLS
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
This
judgment was handed down electronically by circulation to the
parties’ and/or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for hand-down is
deemed to be 10h00 on
31 May 2021.
Date
of hearing:
15
April 2021
Date
of judgment:
31
May 2021
Appearances:
Counsel
for the appellant:
R C Krause
Attorney
for the appellant:
David H Botha, Du Plessis & Kruger Inc
Counsel
for the respondent:
A Kalikhan
Attorney
for the respondent:
National Prosecuting Authority
[1]
Section
309C(2)
of the CPA provides:
(a)
If any application—
(i)
for condonation;
(ii)
for further evidence; or
(iii)
for leave to appeal,
is
refused by a lower court, the accused may by petition apply to the
Judge President of the High Court having jurisdiction to
grant any
one or more of the applications in question.
(b)
…
[2]
Section 220
of the CPA provides: 'An accused or his or her legal
adviser or the prosecutor may in criminal proceedings admit any fact
placed
in issue at such proceedings and any such admission shall be
sufficient proof of such fact.'
[3]
DT
Zeffertt et al
Essential
Evidence
2
ed (2020) at 326 (footnotes omitted).
[4]
S
v Mafaladiso en Andere
2003
(1) SACR 583 (SCA).
[5]
S
v Mkohle
1990
(1) SACR 95
(A) at 98F-G. See also
S
v Bruiners en 'n Ander
1998
(2) SACR 432
(SE) at 435A-B.
[6]
Nzimande
v S
[2017] ZAKZPHC 33 para 10.
[7]
S
v Chabalala
2003 (1) SACR 134
(SCA) para 15.
[8]
Motor
Vehicle Accident Assurance Fund v Kenny
1984 (4) SA 432
(ECD) at 436H-437B.
[9]
S
v Aswegen
2001 (2) SACR 1997 (SCA).
[10]
S
v Janse van Rensburg and Another
2009 (2) SACR 216
(C);
[2008] ZAWCHC 40
para 8. Also see
S
v Saban 'n Ander
1992 (1) SACR 199
(A) regarding contradictory versions.
[11]
S
v Doorewaard and Another
2021 (1) SACR 235
(SCA);
[2020] ZASCA 155
para 22.
[12]
S
v Phallo and Others
1999 (2) SACR 558
(SCA) para 10.
[13]
R
v Mlambo
1957 (4) SA 727
(A) at 738A-C.
[14]
S
v Pillay
1977 (4) SA 531
(A) at 535E-F.
[15]
S
v Zinn
1969 (2) SA 537
(A) at 535G.