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[2016] ZAECPEHC 56
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Koboka v S (CC39/2011) [2016] ZAECPEHC 56 (13 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE
NO: CC39/2011
Date
heard: 6 September 2016
Date
delivered: 13 September 2016
Not
reportable
In
the matter between
LUVOYO
KOBOKA
and
THE
STATE
JUDGMENT
PLASKET
J:
[1]
I convicted the applicant of robbery with aggravating circumstances,
murder, two counts of unlawful possession of a firearm
and two counts
of unlawful possession of ammunition. I sentenced him to terms of
imprisonment ranging from two years to life imprisonment.
He seeks
leave to appeal against both conviction and sentence.
[2]
As a result of a long delay in bringing this application, condonation
was sought. The State did not oppose that application.
A full
explanation of the delay has been given. Condonation was accordingly
granted.
[3]
I turn now to the issue of leave to appeal against conviction.
[4]
The most damning piece of evidence against the applicant was a
confession. It implicated him in all of the offences of which
he was
convicted. He claimed that despite being savagely tortured by the
police, he never made any statement to them. The
investigating
officer, on the other hand, denied that the applicant had been
tortured and testified that he had made the confession
freely and
voluntarily.
[5]
A trial-within-a-trial was held. As the true issue was whether the
applicant made the statement, it was, in fact, unnecessary
but, as I
said in my judgment, no harm was done. I found – on the basis,
inter alia, of expert evidence led by both the State
and the defence
– that the signatures on the confession were the applicant’s
and that he had made the confession.
[6]
That finding is attacked in this application. After detailing the
evidence led by both parties, I concluded as follows in my
judgment
(from para 40-45):
‘
[40]
What stands out in the evidence of both Rheeder and Cloete is the
following: first, neither says that
the accused did not make the
disputed signatures; secondly, that it was extremely unlikely that
the disputed signatures were forgeries;
and thirdly, that it would
have taken a person of rare skill to have forged the disputed
signatures.
[41]
The issue that I have to decide is whether the accused signed the
statement as Mayi alleges.
The accused’s version, after all, is
that no interview with Mayi took place, he made no statement and that
consequently he
never signed the statement in question. The beatings
and torture that he says that he endured are irrelevant to the issue.
If I
disbelieve him on his version, I cannot see on what basis I can
accept that he was in fact beaten and tortured and then conclude
that
despite his evidence to the contrary, those beatings and torture
induced him to make a statement he denies making.
[42]
If the accused’s version is to be accepted it also has to be
accepted that the police –
probably Mayi – first
concocted the statement and then procured the services of a highly
skilled professional forger to forge
the accused’s signature;
and that the forger first studied the accused’s signature and
its natural variations before
forging some with one of the natural
variations and some with another. This is improbable in the extreme.
[43]
Mayi’s evidence may be subjected to criticism to an extent. For
instance, he was clearly
not open with the court when he denied that
the accused had at some stage soiled himself. The purpose of his
denial is beyond me
because he had, in the accused’s bail
application, given evidence that the accused had indeed soiled
himself. For the rest,
he was attacked in cross-examination for minor
errors in filling in the form on which the statement had been taken.
By and large,
however, on the central issue of whether he interviewed
the accused on 4 December 2009, whether he warned the accused of his
rights,
whether he took the statement and whether the accused signed
it, he was a satisfactory witness. His evidence is supported too by
the probabilities.
[44]
The accused, on the other hand, gave a version that suffered from a
number of problems. He claimed
to have been severely assaulted by the
police kicking him, inter alia, on the head a number of times but
does not appear to have
suffered any visible injuries as a result. He
made no complaints of injuries when booked into the cells at Despatch
and no injuries
on him were noted by anyone there. He claimed that
the police planted two firearms in his backpack but, as it happened,
ballistic
testing established months later that one had been used to
shoot the deceased, a fact that the police could not have known at
the
time. But perhaps most tellingly, the accused’s
version simply cannot answer the overwhelming improbabilities that
are highlighted by the evidence of both Rheeder and Cloete. As a
result, it cannot be reasonably possibly true. On the other hand
the
State’s version accords with the probabilities and I also
accept the evidence of Mayi that he interviewed the accused,
warned
him of his rights, took down the accused’s statement and saw
the accused sign the statement on each page.
[45]
As a result, I concluded that the State had proved the making of the
statement by the accused
beyond reasonable doubt. I accordingly
admitted the statement.’
[7]
The second line of attack on my judgment relates to my acceptance of
the evidence that the applicant was in possession of a
particular
cellphone and the expert evidence of Ms. Hilda Du Plessis as to where
and when that cellphone was used.
[8]
The applicant denied that he owned a cellphone. I rejected his
evidence. Once I had accepted that the cellphone in question
was his, his confession taken with the evidence of Ms. Du Plessis
destroyed his alibi in respect of the murder conviction.
[9]
A number of issues rendered the applicant’s version untenable.
First, the investigating officer testified that during
the course of
his investigation he had obtained the applicant’s cellphone
number. On his arrest, a cellphone was found
on him and the
number accorded with the information that the investigating officer
already had. He also checked the cellphones
of the applicant’s
associates and found that his number was listed on them under his
nickname, Ray. Moreover, in his confession
he spoke of having been
phoned and alerted to the presence of the deceased at a night club. I
found this evidence to be overwhelming.
[10]
I have set out, in some detail, the evidence and my findings in
relation to the confession and the cellphone evidence. I am
satisfied
that there are no reasonable prospects of a court of appeal arriving
at conclusions, contrary to those arrived at by
me in respect of this
evidence and the convictions they support.
[11]
In the result, there is no merit in the application for leave to
appeal against conviction.
[12]
I turn now to the application for leave to appeal against sentence.
[13]
I departed from the prescribed sentences of 15 years imprisonment in
respect of the robbery and possession of firearm counts.
I did so
largely on the basis of the generally favourable personal
circumstances of the applicant. At the same time, I recognised
the
inherent seriousness of these offences.
[14]
I was, however, unable to find substantial and compelling
circumstances to justify a departure from the life sentence for the
murder conviction. I concluded that the ‘favourable personal
circumstances of the accused must bow to the gravity of the
offence –
a callous, brutal, planned and pre-meditated execution of a State
witness – and the interests of society
in the due and proper
administration of justice and the investigation and prosecution of
crime’.
[15]
In my view, there are no reasonable prospects of a court of appeal
interfering with the sentences I imposed.
[16]
As a result, the application for leave to appeal against both
conviction and sentence is dismissed.
___________________
C.
PLASKET
JUDGE
OF THE HIGH COURT
Appearing
on behalf of Applicant: C van Rooyen
Instructed
by: Port Elizabeth Justice Centre
Appearing
on behalf of Respondent: M Sanden
Instructed
by: Office of the Director of Public Prosecutions, Port Elizabeth