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[2010] ZAWCHC 548
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Machanyana v S (A363/10) [2010] ZAWCHC 548 (12 November 2010)
9
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: A363/10
In
the matter between:
ANELE
MACHANYANA
…...................................................................................
APPELLANT
and
THE
STATE
…...................................................................................................
RESPONDENT
JUDGMENT
DELIVERED ON FRIDAY 12 NOVEMBER 2010
HENNEY,
AJ
INTRODUCTION
[1]
The
appellant was arraigned in the Regional Court sitting at Blue Downs
on 5
February
2008 on a charge of murder. He was convicted on 7 February 2008 and
on 8 February 2008 he was sentenced to fifteen (15)
years
imprisonment.
[2]
The
appellant now appeals against his conviction and sentence after
successfully
petitioning this court.
[3]
The
appellant's main ground of appeal on the convictions is that the
court a
quo
had
erred in finding that the state had succeeded in proving their case
beyond reasonable doubt, and failed to properly consider
and find
that the version of the appellant might reasonably possibly be true.
In particular the appellant avers that:
i)
the
evidence of the two state witnesses was in no way enough to prove the
guilt
beyond reasonable doubt as there are contradictions between
the two state
witnesses, Thembelani Fatyela and Jeffrey Vumbe;
ii)
the
court a
quo
did
not properly consider these contradictions and the impact
thereof;
iii)
the
court a
quo
erred
in finding that the contradictions were not material.
[4]
With
regards to sentence the appellant contends that the court a quo erred
in
finding
that there are no substantial and compelling circumstances in terms
of Section 105 of 1997.
[5]
The
State called two state witnesses. Further documentary evidence
relating
to
the blood alcohol present in the body of the deceased and the
post-mortem that was conducted was also admitted.
[6]
The following seem to be common cause:
i)
that
the deceased was Mlondalozi Eric Mbali;
that
he died of a perforating gunshot wound to the chest and
the
consequences thereof.
[7]
SUMMARY
OF THE EVIDENCE
Evidence
for the State:
Thembelani
Fatyela testified that on 20 January 2007, he, the deceased and
another friend Bataneli Mlova sat under a tree. The
appellant
arrived and joined them.
Initially,
appellant and the deceased were alone together and they were talking
while the witness and Bataneli were on their own
talking. From his
observation, the discussion between the deceased and the appellant
seemed to be a friendly one. A person with
the name of Anderson also
joined them, stood behind the deceased and the appellant. At that
moment, the appellant took out a
firearm and pointed it to Anderson
and wanted to know why he was standing behind them. At that stage,
Anderson moved away and
later ran away.
The
deceased reprimanded the appellant and told him to stop what he is
doing. An argument ensued between the deceased and the
appellant.
The appellant then wanted to know if he wants him (appellant) to
shoot him. The deceased moved back. The appellant
thereafter asked
the deceased for a second time if he must shoot him.
Appellant
thereafter shot the deceased once. The deceased fell down and the
appellant walked away. The second witness, Jeffrey
Vumbe was asked
to transport the deceased to hospital.
At
the time the deceased was shot, he was not armed and he did not do
anything to the deceased The witness denies that he was
drunk or
that he was drinking. He further denies that the appellant had left
a bottle of brandy at the scene and that there was
an argument
between the deceased and the appellant about the bottle of brandy.
He further denies that it was the deceased who
took out a gun. He
denies that there were a fight and a struggle to get hold of the gun
between the appellant and the deceased.
He denies that in the
struggle for the gun a shot went off.
Jeffrey
Vumbe testified that he was sitting in front of his house and he
observed what happened on this particular day when the
incident
happened.
There
is a public road between where he was sitting and the place where
four persons including the appellant and the deceased,
were sitting
under a tree. At about 19h30 Vumbe saw two persons sitting under a
tree, who were later joined by two other persons.
The latter two
persons initially had a discussion with the other two persons. The
appellant then took out a firearm, pointed
it at the deceased and
shot him. He thereafter, walked away. Vumbe was requested to take
the deceased to hospital.
He
did not see appellant pointing the firearm at anyone other than the
deceased.
He
denies that there was any struggle between the deceased and the
appellant to grab hold of the gun.
[8]
Appellant's
Evidence
The
appellant's evidence was that on 20 January 2007, he was in the
company of the deceased, Anele and Bataneli where this incident
occurred. At that stage all of them were drinking. After they had
consumed a certain amount of liquor, everybody including the
deceased was intoxicated. Thereafter, the appellant briefly left to
go and buy some more brandy. His younger brother arrived
to tell him
that he was being called by his father. The appellant went home, but
before departing, told the deceased not to start
drinking any of the
appellant's brandy while he is gone. He came back after five (5)
minutes and saw that the brandy bottle was
half-empty. As a result
of this, an argument
ensued
between him and the deceased. The deceased lifted up his T-shirt
during this argument and pulled out a gun. At that stage,
the
appellant grabbed the hands of the deceased, they struggled for
possession of the firearm and a shot went off. The firearm
was still
in the hands of the deceased at that time and it fell out of his
hand after the shot was fired. The appellant thereafter
picked up
the firearm and left the scene, and explained that he did so because
he was afraid of the family of the deceased. He
never pointed the
firearm at anyone or was also never his intention to kill the
deceased.
[9]
EVALUATION
On
a careful consideration of the evidence of the two state witnesses,
it is clear that they observed the incident from two different
vantage points.
The
first witness, Thembelani Fatyela, because of his position, must
have had more clearer and intimate knowledge of the incident,
than
the second witness, Jeffrey Vumbe who was positioned across the
road.
Fatyela
was also better placed because he was at the incident and closer
involved. He was almost part of what transpired between
the deceased
and the appellant. Vumbe was not interested and was an independent
observer.
There
was initially no reason for him to be involved in the altercation
and the happenings between the group of people on the
opposite side
of the road.
The
evidence clearly paints a picture that his involvement in the whole
incident was far less than that of Fatyela and would not
have been
so involved or observant than Fatyela.
It
is clear from the evidence therefore that things that Fatyela
observed and saw, Vumbe did not see or is not aware of.
It
is not uncommon for witnesses especially in criminal trials who have
seen the same incident, to give different accounts of
their
observations.
If
one has to have regard to the merits of the evidence of each
witness, both of them came across as honest and reliable. They
were
very adamant as to what they said.
The
discrepancies are in my view of not such a nature that it negates
the reliability of their evidence on the material aspects.
Therefore
on a conspectus of the evidence, I am in agreement with the findings
of the trial magistrate where he accepted their
version as to how
the death of the deceased was caused, above the version of the
appellant.
[10]
A further factor that strengthens the finding of the trial
magistrate in favour of the State, was the highly improbable and
unconvincing version of the appellant, especially where he tried to
explain how the deceased was shot. The undisputed evidence
recorded
in the post mortem finding was that the tract of the gun shot wound
was in an upward direction whereas the appellant
testified that, at
the time the shot was discharged, the deceased, who was still
holding the firearm, was pointing it in a downward
direction. As
already stated, the post mortem report is admitted and the physical
evidence regarding the tract of the gun shot
wound cannot possibly
be reconciled with the appellant's ve
r
sion
of how the shot was fired. The fact that appellant's version is
irreconcilable with reliable and objective factual evidence
is a
compelling indication that the appellant's version cannot be
reasonably possibly true.
In
my view, the trial magistrate correctly rejected his version.
[11]
Therefore, for the reasons stated, the appeal against the conviction
cannot succeed.
[12]
SENTENCE
The
trial court after conviction found that there was no substantial and
compelling circumstances and imposed a sentence of fifteen
(15)
years imprisonment in terms of Section 51 of Act 105 of 1997 (The
Criminal Law Amendment Act). The court of appeal will
only interfere
with the trial court in exercising its sentencing discretion, if it
finds that the trial court did not act properly
or judiciously. In
S
v
Malgas
2001 (1) S.A.C.R 469 SCA
at
478
D-E.
In
Malgas it was further stated at 482 F:-
"All
other factors traditionally taken into account in sentencing
(whether or not they diminish moral guilt) thus continue
to play a
role none is excluded at the outset from consideration in the
sentencing process".
[13]
The appellant at the time when he was sentenced, was 23 years of
age. One of 13 children. The father of a one year old child.
His
level of education is standard 9 and he worked and earned R70.00 per
week. The accused is also a first offender.
[14]
In my view, the trial court over emphasised the seriousness of the
offence at the expense of the other factors that a court
would have
taken into consideration in imposing an appropriate sentence. Even
though there is a minimum sentence, the court did
not consider the
totality of all the circumstances in order to arrive at a finding
whether it is substantial and compelling.
I do not believe that the
legislature intended, in promulgating section 51 of act 105 of 1997,
to restrict a court, when considering
sentencing a person convicted
of an offence governed by the aforesaid legislation, to have regard
only to the retributive element
of sentencing and to ignore the
other well-established elements namely the personal circumstances of
the accused, the fact that
any sentence is
inter
alia
and
at the rehabilitation of the accused, and the interest of the
community in ensuring that the punishment meted out for crime
seeks
to achieve a balance between the elements of retribution, prevention
and rehabilitation.
[15]
In my view, the following circumstances should have been listed as
substantial and compelling to deviate from the minimum
sentence in
terms of Section 51(3) of Act 105 of 1997:-
the
age (23 years) of the accused in relation to the number of years
(15 years) he had to serve as a minimum sentence;
the
accused spent almost one year in custody awaiting trial; This was
also not adequately addressed.
the
court failed to consider the element of leniency towards the
accused;
the
fact that he was a first offender was not given due weight and
consideration.
These
factors together with the rest of the personal circumstances of the
accused, accumulatively should have been regarded as
substantial and
compelling in order to justify a deviation from the prescribed
minimum sentence.
[16]
A sentence of twelve (12) years imprisonment in my view, would have
been fair and equitable.
[17]
CONCLUSION
In
the result, I make the following order:
a)
the appeal against the conviction is dismissed;
(b)
the appeal against the sentence succeeds. The imposed sentence is
set aside and substituted with the following:
Twelve
(12) years imprisonment
(c)
It is ordered that in terms of Section 282 of Act 51 of 1977
(Criminal Procedure Act), that the sentence be antedated to the
date
of sentence in the Regional Court, being 8 February 2008
RCA
HENNEY, AJ
I
agree
AC
OOSTHUIZEN, AJ
12
November 2010