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[2010] ZAWCHC 566
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Sophazi And Others v S (A523/2010) [2010] ZAWCHC 566 (19 November 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE HIGH
COURT, CAPE TOWN)
CASE:
A523/2010
NUMBER
:
DATE:
19
NOVEMBER 2010
In
the matter between:
THEMBELANI
SOPHAZI
…....................................................
1
st
Appellant
THULANI
SOPHAZI
…...........................................................
2
nd
Appellant
MUDI
MBABE
….....................................................................
3
rd
Appellant
WITNESS
SOPHAZI
…...........................................................
4
th
Appellant
SIBONGILE
KETHANI
…........................................................
5
th
Appellant
and
THE
STATE
….........................................................................
Respondent
JUDGMENT
BOZALEK,
J
:
On 23 June 2009 the
appellants were charged in the Cape Town Regional Court with the
murder of Luandiso Sifile. The appellants
were legally represented
and pleaded not guilty to the charges, none offering a
plea-explanation. On 29 March 2010 all appellants
were convicted of
murder and were each sentenced, pursuant to the provisions of the
Criminal Law Amendment Act 105 of 1997
, to 15 years imprisonment.
The appellants now appeal, with the leave of the magistrate, against
both conviction and sentence.
It
is common cause that the victim, a man aged about 25 years, was
killed in Potsdam Road between Site 5 and Dunoon informal
settlements on the night of 21 March 2008. The
postmortem
report
revealed that the cause of death was multiple stab wounds to the
chest, the head and the abdomen. The deceased sustained
no less than
45 stab wounds. In addition, there were extensive skull vault
comminuted fractures, a linear fracture of the occipital
bone on the
left middle cranial fossa and extensive sub-scapular haemorrhage.
The evidence as to who
killed the deceased was fragmentary and also the subject of dispute.
The most crucial evidence was that
of a Mr Ayanda Mzuko, who
testified that he was walking with the deceased along Potsdam Road
that night when a car travelling
at a high speed stopped and the
occupants spilled out. Some of them were armed with screwdrivers and
others with knives and they
accosted two young men on the other side
of the road.
The deceased crossed the
road to find out what the problem was, since he apparently knew one
of the men being accosted. One of
the vehicle's occupants grabbed
hold of the deceased and then the group began to stab him whereupon
the two young men originally
accosted, ran away. Mzuko ran off to
inform the deceased's family and when he returned he observed a
police van on the scene
and the deceased's body in the road near the
group's vehicle. I shall return to his identification evidence
later.
The other major State
witness was Captain Nyati. He responded to a report of fighting in
Potsdam Road at about 10 p.m. that night.
On arrival he found the
vehicle used by the appellants and, lying on the road, the deceased,
still in the process of being attacked.
Captain Nyati tried to
protect the deceased from the group of five men whom he described as
very angry. He called for backup
and noticed the group was also in
conflict with people from the surrounding area. He made specific
observations of the role of
two of the group, to which I will
revert, and, when backup arrived, he pointed out the group of five
men to the relieving policemen
and specifically gave an instruction
that those two must be arrested.
Another Police Officer,
Dovey, testified and confirmed that he arrested two suspects on the
instructions of Captain Nyati. Nyati
had been accompanied by another
policeman, one Lebejo (no rank given), and he confirmed the broad
outline of Nyati's evidence.
He added that when they arrived on the
scene most of the group were throwing stones at persons on the other
side of the road
whilst two of their number were assaulting the
deceased as he lay on the road. The final State witness was
Inspector Gertner,
part of the reinforcements which arrived. He
testified that Nyati pointed out five men involved in the killing
and that he proceeded
to arrest one of them.
Neither third appellant
nor fifth appellant testified. The remaining appellants testified
but called no witnesses. The general
outline of their evidence in
each case was that a stone had been thrown at and hit the car in
which they, the five appellants,
had been driving through the area.
They turned back and stopped alongside two men to enquire from them
whether they knew anything
about the incident. The appellants were
then attacked by a group of persons in the vicinity and some of
their number were stabbed.
They fought to defend themselves until
the police arrived. They had no idea how the deceased was killed,
denied any involvement
therein and appeared to suggest that he had
been a victim of the group or groups which had attacked them.
In convicting the
appellants the magistrate accepted the evidence of the State
witnesses and rejected that of the appellants where
it conflicted
with the State witnesses. She expressed herself satisfied that the
appellants had been correctly identified. She
also found that
Captain Nyati was an outstanding witness, a conclusion which is
borne out upon a reading of his evidence. I might
add that his
conduct in the dangerous circumstances in which he found himself
that night was also outstanding.
On the basis of certain
proven facts, namely that five persons were standing around the
deceased, some of them assaulting him,
two of them having been seen
either kicking or beating the deceased with a steel pipe, two being
found with knives in their possession
and all having blood on their
hands and clothes, none of them being so injured that they could no
longer fight, the evidence
that they acted as a group, the fact that
they had to be restrained by the police and were in a rage and still
attempting to
get at the deceased, the magistrate concluded that
this was a case where all the appellants' guilt had been proven in
terms of
the doctrine of common purpose. The magistrate concluded
further that it was clear from the conduct of the appellants at the
scene of the crime that they all associated themselves with the acts
of the others and had sought to attack the deceased together.
On appeal it was
contended that there was no evidence that the deceased had been
stabbed by any one of the appellants, no evidence
suggesting that
other appellants were aware that the deceased was stabbed one or
other co-appellants, no evidence to show that
the appellants
associated themselves with the killing of the deceased nor any
evidence which suggested that any of the appellants
intended to kill
the deceased or to contribute to his death.
In
my view, the core issues in this appeal are the question of whether
the requirements of the doctrine of common purpose were
met and
generally, whether there was sufficient evidence to establish beyond
reasonable doubt the guilt of each appellant. In
S
v Maedezi & Others
1989
(1) SA 687
AD, the Appellate Division set out the requirements in
order to establish the guilt of an accused using the doctrine of
common
purpose in the following terms:
"In
the absence of proof of a prior agreement, accused 6, who was not
shown to have contributed causally to the killing or
wounding of the
occupants of room 12, can be held liable for those events on the
basis of the decision in
S
v Safatsa & Others
1988
(1) SA 868
(A) only if certain prerequisites are satisfied. In the
first place he must have been present at the scene where the
violence
was being committed. Secondly, he must have been aware of
the assault on the inmates of room 12. Thirdly, he must have
intended
to make common cause with those who were actually
perpetrating the assault. Fourthly, he must have manifested his
sharing of
a common purpose with the perpetrators of the assault by
himself performing some act of association with the conduct of the
others.
Fifthly, he must have had the requisite
mens
rea
so,
in respect of the killing of the deceased he must have intended them
to be killed, or he must have foreseen the possibility
of them being
killed and performed his own act of association with recklessness as
to whether or not death was to ensue."
The Court emphasised
further that a court was under;
"a duty to consider
the evidence of each accused separately and individually, to weigh
up that evidence against the evidence
of the State witnesses who
implicated the accused, and upon that basis to assess whether the
accused's evidence could reasonably
possibly be true."
The Court was further
obliged:
"...to consider, in
relation to each individual accused whose evidence could properly be
rejected as false, the facts found
proved by the State evidence
against that accused, in order to assess whether there was
sufficient basis for holding that accused
liable on the ground of
active participation in the achievement of a common purpose."
I propose to embark upon
such an exercise in relation to each of the appellants.
First
Appell
ant
First appellant
testified and placed himself on the scene. Captain Nyati identified
the first appellant as being armed with an
iron bar with which he
saw the appellant strike the deceased as he lay on the ground. This
steel pipe or bar was found later
in the appellants' vehicle and is
clearly a deadly weapon. When the reinforcements arrived. Nyati
asked the first appellant his
name, which he duly provided. Nyati
noted that the appellant had blood on his clothes. He pointed him
out to Inspector Gertner
and instructed that he be arrested.
The latter testified
that he approached first appellant, who identified himself by name.
He noted that his hands and clothing
were stained with blood and
that he was armed with a knife and a steel pipe. He refused to hand
these over but placed them in
the back of the vehicle. Gertner
arrested the first appellant. In his evidence, the first appellant
denied any part in the attack
upon the deceased or using or
possessing a metal pipe or a knife that night. He admitted that he
had been bloodstained but explained
that this was the blood of a
fellow appellant whom he had helped when he had been stabbed. He
stated that the limits of his own
fighting were using his fists and
throwing stones back at the crowd of attackers.
In my view, the
magistrate correctly rejected the first appellant's evidence where
it conflicted with that of the State witnesses
and correctly held,
in relation to the incident as a whole, that the deceased had been
killed by no one other than some or all
members of the group
constituting the appellants. Both the evidence and the probabilities
point overwhelming in this direction.
Quite clearly, one or more
groups of nearby residents had tried to intervene to curtail the
assault by the appellants on the
deceased and this had led to the
general fighting. There is not a jot of evidence to support the
illogical proposition that the
deceased was killed by nearby
residents.
It is also important to
note that the appellants were part of a small group who found
themselves in foreign territory, so to speak,
at night and came
under attack from surrounding residents. In these circumstances,
they would have kept close together to defend
themselves.
Accepting the evidence
of Captain Nyati and Inspector Gertner, it was clearly proven that
the first appellant was present at the
scene where the violence was
committed. He must have been aware of the assault upon the deceased
and must have intended to make
common cause with those who had
earlier assaulted the deceased. His striking of blows to the head of
the deceased with a metal
pipe admits of only one intention, namely,
to kill the deceased and his act in doing so, if not rendering him
guilty of murder
on the basis of direct participation, at the very
least manifested his sharing of the common purpose of the group and
was an
active association with the conduct of those who inflicted
all the other fatal wounds. The first appellant was no passive
spectator
and performed his act of association before the deceased's
death. In my view he was correctly convicted of murder.
Second
appellant
:
Mzuko identified the
second appellant as being a stocky person armed with a knife who, by
the time the police arrived, had a naked
torso and a belt tied on
each of his upper arms. He was, in other words, in full fighting
mode. At this stage,
Mzuko also noted that
the second appellant was close to where the deceased lay and was
unsuccessfully attempting to pick up a
heavy kerbstone, the clear
implication being that he wanted to further assault the deceased
with this stone or rock. Mzuko saw
the second appellant being
arrested by the police.
Dovey testified that he
arrested the second appellant and upon searching him, he found a
knife tucked "behind his belt and
between his bum cheeks".
Second appellant identified himself by name to Dovey who noted that
there was blood on the blade
of the knife. When the second appellant
testified he conceded that he had been found in possession of a
knife and had been bare-chested.
He stated that his shirt had been
cut by an assailant armed with a knife and he himself had then torn
off the remains of the
shirt. He had disarmed the attacker and this
was the knife with which he was found by the police, but in his hand
and not hidden
on his person.
Again, in my view, the
magistrate was correct in rejecting the appellant's evidence where
it conflicted with that of the State
witnesses. His account of how
he came to acquire the knife, to be bare-chested and his disavowal
of any knowledge of how the
deceased was killed is, in my view,
utterly improbable. In all the circumstances, the only reasonable
inference to be drawn,
and one which is consistent with alt the
facts, is that the appellant used the knife found hidden on his
person to stab the deceased.
Furthermore, his act of trying to lift
the heavy kerbstone clearly to further assault the deceased, was an
act of association
with his co-appellants and manifested his sharing
of a common purpose with the conduct of his co-appellants in
murderously assaulting
the deceased.
Second appellant was
present at the scene and must have been aware of the assault upon
the deceased and clearly intended to make
common cause with his
co-assailants. He could only have intended to kill the deceased
through stabbing him or dropping the kerbstone
on him. I can see no
basis upon which to interfere with the second appellant's
conviction.
Third
Appellant
:
Only Dovey testified
directly regarding third appellant's involvement, stating that he
arrested him and searched him but found
no weapon upon him. Mzuko
could identify no particular act performed by the third appellant,
whilst Nyati and Gertner's evidence
took the case against the third
appellant no further. Lebejo's evidence was that, of the group, four
were throwing stones at
men on the other side of the road when he
arrived. Given the lack of any concrete evidence as to the role of
the appellant in
the deceased's death, in my view the State failed
to prove all the elements necessary for his liability in terms of
the common
purpose doctrine.
In
particular the State was unable to point to some active association
on the part of the third appellant as a manifestation of
his sharing
a common purpose with the others. The appellant did not testify but,
given the deficiencies in the State case. I
do not consider that the
State had established a
prima
facie
case
which called for an explanation from him and which, in the absence
thereof, established his guilt beyond reasonable doubt.
See in this
regard
Osman
v Attorney General Transvaal
ig98
(2) SACR 493 (CC). In the result, I am of the view that the
appellant's appeal against his conviction must be upheld.
Fourth
Appellant
:
Captain Nyati identified
the fourth appellant as being on the scene and assaulting the
deceased by kicking him, together with
the first appellant who was
using the metal pipe. The kicking by fourth appellant took place
before the deceased died. Both men,
according to Nyati, were angry,
were swearing, were in a fight and wanted to "finish off"
the deceased. When the reinforcements
arrived, he instructed that
the fourth appellant be arrested The fourth appellant then
identified himself by name. Nyati instructed
Gertner to arrest two
suspects, one of them being fourth appellant.
Gertner testified that
he arrested the first appellant only, adding that the other four or
five men had blood on their clothing
and hands. Gertner did not
testify that he arrested the fourth appellant but the latter
confirmed in his evidence that he was
present on the scene. In his
evidence the fourth appellant confirmed that he had been arrested at
the scene. He testified that
he had nothing to do with the killing
and had himself been stabbed three times in his back. He too,
improbably, denied any knowledge
of how the deceased came to be
killed. He stated that he was the innocent victim of an unprovoked
assault and he dismissed Nyati's
evidence of him kicking the
deceased before his death as "a mistake".
For the same reasons
expressed earlier, I can consider that the fourth appellant's
evidence, where it conflicted with that of
Captain Nyati's, must be
rejected. His account of events and in particular his denial of any
knowledge of how the deceased came
to be killed, is most improbable,
as is his account of being stabbed for no apparent reason. In my
view, the fourth appellant's
act of joining in the final assault up
the deceased by kicking him after he had been repeatedly stabbed and
at the same time
as the first appellant was raining blows upon the
deceased's head with a steel pipe, constituted an act of association
sufficient
to establish his criminal liability on the charge of
murder under the doctrine of common purpose.
The fourth appellant
must have been present at the scene while the extensive attack upon
the deceased was being carried out and
indeed must have witnessed
this. The evidence is clear that a small group of men rounded upon
the deceased. Similarly, the evidence
establishes beyond reasonable
doubt that the fourth appellant must have intended to make common
cause with these persons. For
these reasons, I consider that the
fourth appellant was properly convicted of murder.
Fifth
Appellant
:
Fifth appellant's case
is similar to that of the third appellant. He did not testify and
nor was he specifically mentioned in
evidence by any of the State
witnesses. Although he was part of the group of five who were
travelling in the vehicle and must
have been present at the scene
and aware of the assault upon the deceased. I consider that the
State failed to prove beyond reasonable
doubt that he intended to
make common cause with his fellow appellants, and in particular that
he performed some act of association
to manifest his association
therewith or that he intended to kill the deceased.
I,
furthermore, consider that the State's case against the fifth
appellant insufficient to render his failure to testify instrumental
in turning a
prima
facie
case
into one where his guilt was proved beyond reasonable doubt. In the
circumstances, I consider that his appeal against conviction
must
succeed.
Ad sentence:
There remains the
appeals against sentence. In terms of the provisions of Act 103 of
1998, the magistrate found that there were
no substantial or
mitigating circumstances justifying the imposition of a sentence
less than the prescribed minimum sentence
of 15 years imprisonment
On appeal it is contended that the appellants' personal
circumstances, their lack of any previous criminal
convictions and
the fact that they were under the impression that there was an
attempt to hijack them, which in itself constituted
provocation and
ought to be viewed as a mitigating factor, constituted substantial
and compelling circumstances justifying the
Court in departing from
the minimum prescribed sentence.
In
S
v Vilakazi
(567/07)
[2008] ZASCA 87(2)
(September 2008), the Supreme Court of Appeal per
Nugent
.
JA stated that:
"The
essence of
Malqas
and
of
Dodo
is
that disproportionate sentences are not to be imposed and that the
courts are not vehicles for injustice. Whether a sentence
is
proportionate cannot be determined in the abstract but only upon a
consideration of all material circumstances of the particular
case,
bearing in mind what the legislature has ordained and the other
strictures referred to in
Malqas
."
It
is trite law that a court of appeal has limited competence to 10
interfere with sentences imposed by a trial court. It may
do so only
if the exercise of the trial court's discretion is vitiated by a
misdirection as to the law or the facts or if the
sentence imposed
is so inappropriate as to indicate that such discretion has not been
properly exercised. See
S
v Fazzie
1964
(4) SA 15
680 at 68,
S
v Van Eck
2003
(2) SACR 563
(SCA) at 568e. In
S
v Malgas
it
was held that:
"All
factors ... traditionally taken into account in sentencing (whether
or not they diminish moral
guilt)
continue to play a role. None is excluded at
the
outset from consideration in the sentencing process. The ultimate
impact of all the circumstances relevant to sentencing,
must be
measured against the composite yardstick
"substantial
and compelling" and must be such as cumulatively justify
departure from the standardised response the legislature
has
ordained."
But the Court also held
that:
"The specified
sentences are not to be departed from lightly and for flimsy
reasons. Speculative hypotheses favourable to
the offender, undue
sympathy, aversion to imprisoning first offenders, personal doubt as
to the efficacy of the policy underlying
the legislation and
marginal differences in personal circumstances or degrees of
participation between co-offenders are to be
excluded."
The first appellant was
30 years old at the time of sentencing and married with two young
dependants. He was employed, earning
R3 500,00 per month, and had
matriculated. The second appellant was 37 years old, married with
one young child and was self-employed.
He had Grade 8 education. The
fourth appellant was 35 years old, unmarried with two young
dependants, was unemployed and had
Grade 10 education. The
appellants' personal circumstances were, therefore, favourable.
However, there were in my view no other
mitigating circumstances
present.
There was little
evidence, subjective or objective, to support the contention that
the appellants believed they were going to
be hijacked. The facts
are that a stone was thrown at the vehicle. There was nothing to
stop the appellants driving away. Instead
they turned back, stopped
and accosted two young men at the side of the road. When the
deceased intervened they turned on him
and vented their anger in the
most horrifying and brutal manner. They could hardly have believed
that the deceased had done them
or meant them any real harm since,
if he was the stone thrower, it is most unlikely he would have
crossed the road and come to
the aid of the two men whom they
initially accosted.
The nett outcome of this
tragic event was that a young man was brutally murdered when he came
to the aid of others. I can find
no provocation or mitigating
circumstances in the circumstances of this killing at alt. The
magistrate took the appellants' personal
circumstances into account
in concluding that there were no substantial and compelling
circumstances present. She noted correctly
that none of the accused
had shown any remorse.
I am not persuaded that
the magistrate erred in not departing from the minimum prescribed
sentence. Indeed, even were the minimum
sentencing provisions not
applicable, in my view the sentences imposed were entirely
proportionate and appropriate having regard
to the personal
circumstances of the appellants, the nature and seriousness of the
offence and the interests of the community.
For these reasons, I
consider that the appeals against sentence have no merit. In the
result I would make the following order:
1. The appeals against
conviction and sentence in the case of the third and the fifth
appellants are upheld and their convictions
and sentences are set
aside.
2. The appeals against
conviction and sentence by the first, second and fourth appellants
are dismissed and their convictions
and sentences are confirmed.
BOZALEK, J
WEYER,
AJ
:
I so agree and it is so ordered.
WEYER, AJ