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[2010] ZAWCHC 340
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Lumika v S (A499/2010) [2010] ZAWCHC 340 (26 November 2010)
IN THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER
:
A499/2010
DATE
:
26
NOVEMBER 2010
In the
matter between:
SIYABULELA
LUMIKA
…................................................................................
Appellant
and
THE
STATE
….............................................................................................
Respondent
JUDGMENT
BAARTMAN.
J:
On 19
August 2009, the regional magistrate at Wynberg convicted the
appellant on one count of murder and one count of assault with
intent
to do grievous bodily harm. That court sentenced the appellant to an
effective 16 years direct imprisonment, 15 years in
respect of the
murder charge and 3 years in respect of the assault charge, 2 of
which were to run concurrently with the sentence
on the murder count.
This is an appeal against that conviction and sentence.
The
circumstances that gave rise to the conviction, appear from the
record to be the following:
The
State's version
:
The
State's version of the events were as follows. Six years ago,
Tomyika Kavese, the deceased, and Joseph Hadida, the complainant
in
respect of the assault charge {"the complainant"), arrived
in South Africa from Angola. They settled in Nyanga in
the Western
Cape. On the evening of 30 July 2007, the complainant was walking
towards his house when he saw the deceased come
out of his, that is
the complainant's house, and the appellant and two others attacked
the deceased.
The
complainant saw the appellant stab the deceased several times. When
the complainant tried to intervene, the appellant, who
was armed
with a knife, said "here is Joseph", (referring to the
complainant) and chased the complainant until he fell
on the road,
at which point a scuffle broke out between the two, in which process
the appellant stabbed the complainant in the
knee and chest. The
appellant raised the alarm, which caused Nathaniel Jacob, a
neighbour, to investigate. Jacob found the appellant
and the
complainant in a scuffle with a knife lying close to them. Members
of the community arrived on the scene and assaulted
the appellant to
the extent that he needed medical attention.
The
deceased died at the scene. Later that same evening, the police
removed the deceased's body from the scene. The complainant
testified and said that although the area where the deceased was
attacked was poorly lit, it was sufficient for him to have
identified the appellant as the perpetrator. Inspector Prinsloo
(Prinsloo), the investigating officer, who attended the scene
on the
night of the incident, corroborated the complainant in respect of
the available light in the area. The Court called Prinsloo,
who said
that:
"Dit
is 'n plakkersgemeenskap wat daar woon. Aan die oorkant van die pad
is huise. Daar is 'n groot
floodlight
wat
jy gewoonlik in die
townships
in
kry. Ek het die toneel daai aand bygewoon en daar was redelik lig
gewees daardie aand. Waar die oorledene geld het is tussen
- is so
'n klein gapinkie tussen die hokkies. So as jy verbygestap het, sou
jy horn nie kon sien Id nie. (Die area waar die oorledene
geld het
was...so inhamme van, spasie van omtrent 'n meter...As die oorledene
moes gestaan het - die plek waar die oorledene
geld het, is omtrent
'n meter tussen twee plakkershutte. Al staan hy daar, as jy verby
horn geloop het, dan sou jy horn nie gesien
het nie. Al die
aanduidings is dat hy voor, nie in die stegie nie, maar voor die
stegie gesteek was. Die bloed het 'n ent van
die ingang af, was daar
ook bloedspatseIs wat verder af in die pad geloop het. Daai gedeelte
is belig, dit is in die pad, so
om te s§ in die hoofpad waar jy
deur ry."
That
is a summary of what his evidence is in that respect.
The
appellant's version
:
The
appellant testified and said that he was walking with his girlfriend
towards his house when a group confronted and accused
him of having
killed someone. Members of that group assaulted him. The
complainant, who was armed with a firearm which he pointed
at the
appellant, was in the group. The appellant denied that he had
assaulted the complainant or the deceased. The appellant's
girlfriend testified in an attempt to corroborate his versions.
Identification
was in dispute
:
It
is so that identification is in dispute in this matter. The court a
quo
found
that the State had proved the appellant's identity. In the matter of
S
v Mthetwa
1972
(3) SA 766
(A) at 768A-G,
Holmes
.
JA said the following about identification:
"...because
of the fallibility of human observation, evidence of identification
is approached by the Court with some caution.
It is not enough for
the identifying witness to be honest, the reliability of his
observation must also be tested. This depends
on various factors
such as lighting, visibility and eyesight, the proximity of the
witness, his opportunity for observation,
both as to time and
situation, the extent of his prior knowledge of the accused, the
mobility of the scene, corroboration, suggestibility,
the accused's
face, voice, build, gait and dress, the result of its identification
parades, if any. and, of course, the evidence
by and on behalf of
the accused. The list is not exhaustive. These factors, or such of
them as are applicable in a particular
case, are not individually
decisive, but must be weighed one against another in the light of
the totality of the evidence and
the probabilities. See cases such
as
R
v Masemang
1950
(2) SA 488
AD and
R
v Dladla & Others
1962
(1) SA 307
(AD) at 301C and
R
v Mehlape
1963
(2) SA 29
(D)."
The
trial court was satisfied that the circumstances were such that the
complainant could have reliably identified the appellant.
The court
a
quo
relied
on Prinsloo's evidence.
The
approach on appeal
:
In
considering the various grounds of appeal, it should first be noted
that it is a well accepted principle that a court of appeal
will not
likely interfere with the credibility findings of the trial court,
since the court "sees and hears the witness
in person, is
steeped in the atmosphere of the trial and is furthermore in an
advantages position to observe their demeanour,
but also their
appearance and whole personality". See
Rex
v Dhlumwayo & Another
1948
(2) SA 677
(A) at 705, paragraph 3. However, the court of appeal
should be alert to the warning sounded by
Nuoent
.
J in the matter of
S
v Marx
2009
(4) (SCA) 123 at para 6:
"I
do not think we ought simply to defer to the trial court's findings,
notwithstanding the care with which they were arrived
at. This court
has cautioned on more than one occasion, most recently in
Medscheme
Holdings (Ptv) Ltd v Bhamiee
against
according undue weight to the advantages that are said to be enjoyed
by a trial court and has said that the demeanour
of a witness is no
substitute for evaluating the content of the evidence, taking into
account the wider probabilities."
The
Court must assess the evidence as a whole. This approach was set out
as follows in the matter of
S
v Van der Mevden
1999
(1) SACR 477
(W) at 499i, 450a-b:
'The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning,
which
is appropriate to the application of that test, in any particular
case will depend on the nature of the evidence which
the court has
before it. What must be borne in mind, however, is that the
conclusion which is reached, (whether it be to convict
or acquit),
must account for all the evidence. Some of the evidence might be
found to be false, some of it might be found to
be unreliable and
some might be found to be only possibly false or unreliable, but
none of it may simply be ignored."
Grounds
of Appeal
:
The
appellant's counsel submitted that the identity of the deceased's
killer was in dispute. Counsel criticised the court a
quo
for
placing the reliance that it did on Prinsloo's evidence. Having
regard to the totality of the evidence, I cannot fault the
magistrate's acceptance of Prinsloo's evidence. The complainant said
that he saw the deceased as he came out of the complainant's
house,
where the appellant and two others accosted him. The appellant had a
knife with which he stabbed the deceased and when
the complainant
intervened, the appellant chased him and caught up with him where
they struggled until Jacob intervened. Jacob
confirmed the scuffle
between the appellant and the complainant. It follows that part of
the scene must have had adequate light,
at least, for the
complainant to have seen the attack on the deceased.
However,
that is not the end of the inquiry, for if the appellant's version
is reasonably possibly true, he is entitled to an
acquittal. The
appellant would have the Court believe that he was walking in the
middle of the road with his girlfriend when
he was accused of having
killed someone and that his accusers assaulted him. A case of
mistaken identity.
The
appellant's girlfriend confirmed that they were walking along the
road when she saw approximately 10 men approach them and
start to
assault the appellant. She did not see the firearm. I cannot fault
the Court's rejecting of that version in the light
of the totality
of the evidence presented to the Court. I am satisfied that the
court a
quo
correctly
found that the State had proved beyond reasonable doubt that the
appellant was the person who assaulted the deceased
and also the
complainant.
Regarding
sentence
:
As
indicated above, the Court sentenced the appellant to an effective
16 years direct imprisonment. The appellant's counsel submitted
that
that sentence was shockingly inappropriate. The accused's personal
circumstances appear from the record to be the following.
He was a
22 year old first offender. The appellant had completed Grade 11 at
school and was employed and earned R500.00 per week.
The community
assaulted the appellant on the night of the incident. It is so that
the provisions of section 51 of Act 105 of
1997, the Criminal Law
Amendment Act, was applicable to the murder count.
The
Court was of the view that in the circumstances of this matter,
there were no substantial and compelling circumstances justifying
imposing a lesser sentence than the prescribed minimum. In
S
v Vilakazi
2009
(1) SACR 551
at 562F, para 20,
Nugent
.
JA put the position as follows:
"I
have pointed out that the essence of the decisions in
Malqas
and
Dodo
,
is that a court is not compelled to perpetrate injustice by imposing
a sentence that is disproportionate to the particular offence.
Whether a sentence is proportionate, cannot be determined in the
abstract, but only upon a consideration of all material
circumstances
of the particular case. Although bearing in mind what
the legislature has ordained and the other strictures referred to in
Malqas
.
It was also pointed out in
Malgas
that
a prescribed minimum sentence need not be 'shockingly unjust' before
it is departed from, for '(o)ne does not calibrate injustices
in a
court of law'. It is enough for the sentence to be departed from
that it would be unjust to impose it."
Having
regard to the circumstances of this matter, I am of the view that
the sentence imposed by the Court is not unjust and does
not warrant
interference. Therefore, I make the following order. The appeal
against conviction and sentence is dismissed.
BAARTMAN,J
MIA.
AJ
:
I agree.
MIA.
AJ