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[2013] ZASCA 21
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S v Maselani and Another (511/2012) [2013] ZASCA 21; 2013 (2) SACR 172 (SCA) (22 March 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 511/2012
Reportable
In the matter between:
VUYANI MASELANI
...................................................................
FIRST
APPELLANT
PATRICK MGESI
...................................................................
SECOND
APPELLANT
and
THE
STATE
.........................................................................................
RESPONDENT
Neutral
citation
:
Maselani
v The State
(511/2012)
[2013] ZASCA 21
(22 March 2013)
Coram
: Mpati P,
Tshiqi, Pillay, JJA, and Southwood and Swain AJJA
Heard
: 8 March
2013
Delivered:
22
March 2013
Summary
:
Criminal law – s 1 of act 51 of 1977 – robbery with
aggravating circumstances – determination of whether grievous
bodily harm has been established – consequences to the victim
of the robbery is a relevant factor to be considered.
Order
On appeal from:
Western Cape High Court, Cape Town (Koen AJ sitting as court of
first instance):
The following order is
made:
1. The appeal against
conviction is dismissed.
2. The appeal against
sentence is upheld and the sentence of 15 years’ imprisonment
imposed upon each of the appellants is
set aside and replaced with
the following:
‘
First
appellant is sentenced to ten years’ imprisonment.
Second appellant is
sentenced to ten years’ imprisonment.’
which sentences are, in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, to run from
the date of sentencing, being 29 July 2010.
JUDGMENT
_______________________________________________________________
SWAIN AJA
(
MPATI
P, TSHIQI, PILLAY JJA & SOUTHWOOD AJA
concurring):
The
appellants with the leave of the Western Cape High Court (Koen AJ)
appeal against their convictions of robbery with aggravating
circumstances and the sentences of 15 years’ imprisonment
which were imposed upon each of them.
The
first and second appellants stood trial as first and second accused
respectively, and were convicted with a third accused,
but at the
stage of sentencing, the proceedings against the third accused were
adjourned to allow for a psychiatric examination
to be conducted
upon this accused, in terms of s 78(2) of The Criminal Procedure Act
51 of 1977 (the Act). The relevance of this
issue will become
apparent when dealing with the sentences imposed upon the
appellants.
The sole issue in regard
to the appeals against conviction is whether as a question of fact,
aggravating circumstances were present
in the form of the infliction
of ‘grievous bodily harm’ upon the victim of the
robbery, within the meaning of that
term as contained in s 1(
b
)(ii)
of the Act. The section provides as follows:
‘
1
Definitions
(1)
In this Act, unless the context otherwise indicates -
“
aggravating
circumstances
”,
in relation to –
(a)
…
(b)
robbery or attempted robbery, means –
(i)
the wielding of a fire-arm or any other dangerous weapon;
(ii)
the infliction of grievous bodily harm; or
(iii)
a threat to inflict grievous bodily harm,
by
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence.’
The
death of the victim of the robbery formed the basis of the murder
charge against all three accused on which they were acquitted.
The
finding by the trial court that all three accused were party to a
common purpose to rob was not challenged on appeal, and
correctly
so, as the evidence against all of them was overwhelming. According
to the first appellant, all three accused arrived
at the house where
the victim was employed, looking for work. The first appellant
stated that when they arrived at the house
they knocked on the door,
which was opened by the deceased and the second appellant asked if
there was work for them. When the
deceased replied there was none,
the first appellant asked the deceased for water. All three accused
waited at the door whilst
the deceased fetched the water. On her
return, the deceased noticed that a cell phone which she had left at
the door had disappeared
and she asked where it was. All three
accused initially denied knowledge of the cell phone and the
deceased then said she was
going to call the police. Accused 3 then
admitted taking the cell phone, but refused to return it to the
deceased. They asked
the deceased for money for petrol and she
answered that she had none. All three accused then decided the only
way to get money
was to rob the deceased. According to the first
appellant all three accused held the deceased, who was struggling
and proceeded
to tie her up.
The
trial court correctly concluded that the first appellant was a
truthful witness and that his evidence to the effect that all
three
of the accused participated in ‘the suppression of the
deceased by force before stealing from the premises’
could be
accepted.
The
crux of the argument advanced by counsel for the appellants, was
that the medical evidence led by the State, as to the injuries
sustained by the deceased, which culminated in her death, did not
constitute the infliction of grievous bodily harm upon the
deceased
within the definition of ‘aggravating circumstances’.
Dr
van de Hyde confirmed that the cause of death of the deceased was
asphyxia caused by manual strangulation. She confirmed that
severe
force was not applied, because there was no fracture of the hyoid
bones in the neck of the deceased, but that the force
applied was
moderate, because of the presence of haemorrhage.
Counsel
for the appellants submitted that for the purpose of determining
whether grievous bodily harm had been inflicted, the
inquiry was
concerned solely with the ‘nature, position and extent of the
actual wounds and injuries’ and the consequences
stemming from
the infliction of such wounds and injuries to the victim, was to be
ignored.
Support for this
assertion, according to counsel for the appellants, was to be found
in a dictum of Hoexter JA in
R v Jacobs
1961 (1) SA 475
(A)
at 478D.
‘
The
question whether grievous bodily harm has been inflicted depends
entirely upon the nature, position and extent of the actual
wounds or
injuries, and the intention of the accused is irrelevant in answering
that question.’
Read
in its proper context, the learned judge of appeal did not intend to
limit the inquiry to the specified incidents of an attack
upon a
victim, but did so in order to emphasise that the intention of the
attacker was irrelevant to the inquiry.
That this is so is
illustrated in
Jacobs
in the majority judgment of Van Winsen
AJA with whose judgment Van Blerk JA concurred. Having pointed out
that it is a question
of fact whether aggravating circumstances are
present in a particular case (at 481F), the learned acting judge of
appeal expressed
himself as follows at 485B-D:
‘
In
deciding whether the Crown has proved the infliction of grievous
bodily harm by the accused, the jury would, in my opinion, be
entitled to have regard to the whole complex of objective factors
involved in the accused’s assault upon the deceased. It
could
take into consideration the shock which would inevitably result to
the deceased by reason of the fact that the accused directed
two
blows at his face with a knife. It could have regard to the wounds
resulting from the stabs in the face, their number, nature
and
seriousness, as well as to the two blows directed to the accused’s
stomach, their severity and the results which flowed
from their
infliction.’
Counsel
for the appellants submitted that these remarks were predicated
solely upon the facts in
Jacobs
and were never intended to
generally lay down what factors should be considered, in
ascertaining whether grievous bodily harm
had been inflicted. I
disagree. It was made clear as a general proposition that the whole
complex of objective factors, involved
in the assault, are to be
considered in deciding whether the infliction of grievous bodily
harm had been established. This expressly
included the ‘results
which flowed’ from the wounds inflicted.
Common
sense dictates that where the object of the provision is to penalise
‘the infliction of grievous bodily harm’
upon a victim,
the consequences suffered by the victim are a relevant
consideration. As pointed out by the trial court, ‘what
harm
can be more grievous than death’. This must be so where the
victim dies as a result of the infliction of bodily harm.
In addition, as pointed
out by the trial court, if the harm suffered by the victim is
excluded from consideration, absurd consequences
could result where
‘…
a
mere threat to kill would result in a conviction with robbery by
aggravating circumstances, but actual death would not if the
degree
or nature of the force applied in order to bring about the death
could not be said to be grievous.’
In
the result, because the deceased died as a consequence of the
injuries inflicted upon her neck, grievous bodily harm was
established on the facts.
By
virtue of the provisions of s 1 of the Act, once a common purpose on
the part of the accused to rob was proved and the infliction
of
grievous bodily harm upon the victim was established, then the
offence of robbery with aggravating circumstances was proved
against
all three accused. In such a situation if it is uncertain which of
the parties to the common purpose to rob, inflicted
grievous bodily
harm upon the victim, it matters not. It is not necessary to prove
that this consequence was foreseen by the
members to the common
purpose to rob, provided it is established that one or other, or all
of them,
inflicted
such harm. See
S
v Dhlamini
&
another
1974
(1) SA 90
(A) at 94B-D.
The
trial court found that according to the evidence of the appellants,
accused 3 was alone with the deceased for a sufficient
amount of
time during which her death eventuated. However, because their
evidence was not corroborated in accordance with the
cautionary rule
regarding evidence given by an accused, implicating a co-accused,
the trial court held that it had not been established
beyond a
reasonable doubt that accused 3 had killed the deceased. The trial
court also found that a common purpose to murder
on the part of all
three accused was not proved. In the result all three accused were
acquitted on the murder charge.
Although
the correctness of this conclusion is not before this court, it is
necessary to examine the evidence of the appellants,
implicating
accused 3 in the murder of the deceased. This is so, because in
order to properly consider the sentences imposed
upon the
appellants, a relevant issue is whether the evidence established any
involvement by the appellants, in the infliction
of grievous bodily
harm upon the deceased, which resulted in her death. If accused 3
was solely responsible, then the moral blameworthiness
of the
appellants, in relation to the grievous bodily harm inflicted upon
the deceased, was considerably less than that of accused
3. This was
a factor which the trial court did not consider when passing
sentence, as a result of the conclusion it reached on
the murder
charge.
According
to the first appellant, after they had subdued the deceased, accused
3 was asked to stay and guard the deceased, whilst
the appellants
went upstairs, to search for items to steal. Whilst upstairs, the
first appellant stated that the second appellant,
had called to
accused 3 asking if the deceased was all right. Accused 3 replied
that she was. Shortly thereafter, the first appellant
saw children
arriving at the home and he and the second appellant ran downstairs
to make good their escape. The first appellant
stated that he saw
accused 3 holding the deceased and the second appellant then asked
accused 3 why the deceased was not moving.
Accused 3 replied that he
was simply holding her. The appellants then carried the deceased and
placed her upon a bed. They then
tried to wake her, and when unable
to do so they assumed she was unconscious. Accused 3,
however,
maintained that he had
never entered the house at all. This was refuted by two of the
state’s witnesses, who saw three individuals
approach and
three individuals leave the house.
The
trial court, for the reasons set out in the judgment, correctly
concluded that it had no hesitation in accepting the evidence
of the
first appellant and rejecting the evidence of the second appellant
and accused 3 where their testimony conflicted with
that of the
first appellant. The trial court also correctly found that with due
regard being had to the fact that the first appellant
was a
co-accused and his evidence therefore required careful scrutiny, the
evidence of the first appellant was reliable and could
be accepted
as true.
In
contrast to this finding the trial court correctly found that the
evidence of accused 3 that he remained in the vehicle and
never
entered the premises ‘was obviously uncreditworthy and must be
rejected’ because of the evidence of the state
witnesses.
The
trial court also made detailed findings on the demeanour of all of
the accused. It found that with regard to the first appellant
‘his
demeanour was that of a remorseful person who had seen the error of
his ways and had decided to tell the truth’.
In contrast, the
trial court found that the second appellant and accused 3 were ‘less
impressive witnesses’ and each
‘attempted to minimise
his role in the events of that day and to point fingers at others’.
On
the first appellant’s evidence only accused 3 could have
strangled the deceased, whilst both appellants were upstairs.
Indeed, accused 3 was the only one who had a motive to murder the
deceased. The first appellant stated that when they arrived
at the
house, accused 3 had told them that he had worked there before.
Accused 3 also told the deceased that he used to work
at the
premises. Accused 3 accordingly knew that the deceased would be able
to tell the owners of the house, that one of her
attackers claimed
to have worked there before, which would possibly enable the police
to trace him. For this reason accused 3
could not risk the survival
of the deceased. However, the trial court,
as
pointed out above, concluded that because the evidence of the
appellants implicating accused 3 in the murder of the deceased
was
not corroborated ‘in any respect significant enough to
outweigh the cautionary rule, and the risk of relying on the
evidence of co-accused, we are not persuaded beyond reasonable doubt
that it was accused 3 who killed the deceased’.
Although
corroboration of the evidence of an accused, which implicates a
co-accused in the commission of an offence, is one of
the recognised
safeguards to reduce the risk of a wrong conviction, this is
obviously not the only way in which this danger can
be overcome. The
absence of gainsaying evidence by the co-accused, or his mendacity
as a witness, may,
depending
upon the facts,
be
regarded as a sufficient safeguard. Satisfaction of the cautionary
rule does not necessarily warrant a conviction. What is
required is
proof beyond reasonable doubt and ‘this depends upon an
appraisal of all of the evidence and the degree of
the safeguard
aforementioned’. See
S
v Hlapezula & others
1965
(4) SA 439
(A) at 440D-H.
If it can be said that
‘the accomplice is beyond all question a satisfactory and
convincing witness while the accused is
the opposite’ then
corroboration is not required. See
R
v Mpompotshe & another
1958
(4) SA 471
(A) at 476F-G.
Similarly
as pointed out by Schreiner ACJ in
Mpompotshe
at 476E-F:
‘
The
cautionary rule does not require that the triers of fact should be
told, or should warn themselves, that there must always be
corroboration of the accomplice.’
Having
correctly found that the evidence of the first appellant was
truthful and could be accepted, whereas the evidence of accused
3
could not, the trial court, in requiring corroboration of the first
appellant’s evidence implicating accused 3 in the
murder of
the deceased, misdirected itself. The evidence of the first
appellant proved beyond a reasonable doubt that accused
3 had in
fact murdered the deceased. The trial court accordingly erred in
acquitting accused 3 on that charge. The evidence of
the first
appellant also established that the appellants played no part in the
infliction of grievous bodily harm upon the deceased.
That they were
found guilty of this crime is solely as a consequence of the deeming
provisions of s 1 of the Act.
The trial court, in
sentencing the appellants, referred to the approach formulated in
S
v Malgas
2001 (2) SA 1222
(SCA), which is to be followed when a
court is faced with the task of sentencing an offender in terms of
ss 51
and
52
of the
Criminal Law Amendment Act 105 of 1997
. This
court formulated the test for when the prescribed sentence may be
departed from in the following terms (para 25):
‘
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice
would be done
by imposing that sentence, it is entitled to impose a lesser
sentence.’
The trial court also
referred to the decision of this court in S v Vilakazi
2009 (1) SACR
552
(SCA) in which this court held that (para 15):
‘
It
is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence’
and that the
essence of the inquiry (para 18) ‘is that disproportionate
sentences are not to be imposed and that courts are
not vehicles for
injustice.’
[29]
By virtue of the misdirection committed by the trial court, the
absence of any involvement by the appellants in the death of
the
deceased, was not considered by the trial court when passing
sentence. This in itself was a further misdirection. To sentence
the
appellants to the prescribed minimum of 15 years’ imprisonment,
when due regard is paid to this factor, would result
in the
imposition of a disproportionate sentence. An additional circumstance
of relevance is the sentence which was imposed upon
accused 3. We
were informed by counsel that accused 3 was sentenced to ten years’
imprisonment. The psychiatric investigation
found that accused 3
suffered from mild intellectual disability. It would be unjust if
accused 3, who caused the death of the deceased,
received a lesser
sentence than the appellants. Regard being had to all of the above,
substantial and compelling circumstances
exist for the imposition of
a sentence less than the minimum prescribed sentence. A proportionate
sentence in all of the circumstances
to be imposed upon the
appellants is that of ten years’ imprisonment.
[30] In the result the
following order is made:
1. The appeal against
conviction is dismissed.
2. The appeal against
sentence is upheld and the sentence of 15 years’ imprisonment
imposed upon each of the appellants is
set aside and replaced with
the following:
‘
First
appellant is sentenced to ten years’ imprisonment.
Second appellant is
sentenced to ten years’ imprisonment.’
which sentences are, in
terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, to run from
the date of sentencing, being 29 July 2010.
K G B SWAIN
ACTING JUDGE OF APPEAL
appearances:
FOR first AND M CALITZ
second appellantS: LEGAL
AID BOARD, CAPE TOWN
Bloemfontein Justice
Centre, Bloemfontein
FOR respondeNT: R J VAN
ROOYEN
DIRECTOR OF PUBLIC
PROSECUTIONS, CAPE TOWN
Director of Public
Prosecutions, Bloemfontein