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[2012] ZASCA 75
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Kekana v S (581/11) [2012] ZASCA 75; 2013 (1) SACR 101 (SCA) (25 May 2012)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 581/11
DAVID
MALISELA KEKANA
…...............................................................
Appellant
and
THE
STATE
…....................................................................................
Respondent
Neutral
citation:
Kekana v The State
(581/11)
[2012] ZASCA 75
(25 May
2012)
BENCH: PONNAN and TSHIQI JJA and KROON AJA
HEARD: 21 MAY 2012
DELIVERED: 25 MAY 2012
CORRECTED:
SUMMARY:
Evidence – assessment of - court's powers to interfere
on appeal with the findings of fact of a trial court limited in the
absence of demonstrable and material misdirection.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from
:
South Gauteng High Court,
Johannesburg (Boruchowitz and Mathopo JJ sitting as court of appeal):
The appeal is dismissed.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PONNAN JA (TSHIQUI JA and KROON AJA concurring):
[1] The appellant was convicted in the Regional Court, Germiston on a
charge of conspiracy to commit murder in contravention of
s 18(2)
(a)
of the Riotous Assemblies Act 17 of 1956 and sentenced to
imprisonment for a term of 10 years. His appeal to the South Gauteng
High Court (per Boruchowitz J (Mathopo J concurring)) was partially
successful inasmuch as his conviction was altered to one of
attempting to commit the aforesaid offence and his sentence was, as a
consequence, reduced to imprisonment for a term of 5 years.
[2] The charge levelled by the State against the appellant alleged
that on or about 23 January 2006 and at or near Germiston he
unlawfully and intentionally conspired with Sipho Gift Ndlovu to aid
or procure the commission of or to commit an offence, to wit
to
unlawfully and intentionally kill Frederick Ngoma.
[3] Those allegations arose against the following factual backdrop:
The appellant and Frederick Ngoma were employed by the Ekurhuleni
Municipality at its Solid Waste Department in Bedfordview, Gauteng.
Towards the end of 2005 the position of supervisor within the
department in which they worked became available. Both of them
applied for the post. According to their manager, Ms Mthethwa, the
appellant's application was unsuccessful and it fell to her to inform
him that the successful candidate was Mr Ngoma. She testified
that
the appellant reacted angrily to the news stating, inter alia, that
he will 'never be supervised by an inexperienced person'
and that
will only happen 'over his dead body'. He also, according to her,
threatened to kill several of his co-employees including
Mr Ngoma.
[4] On 23 January 2006, so testified Mr Ndlovu, he was approached by
the appellant who was looking for someone named Sidney to
'do a job
for him'. Ndlovu pleaded with the appellant to give him the job as he
was unemployed. The appellant then told him that
there was a person
at his work that he wanted dead. The appellant gave Ndlovu his cell
phone so that he could stay in touch with
the latter. Ndlovu was then
taken to the appellant's place of employment where Ngoma was pointed
out to him. Thereafter Ndlovu
was driven to Ngoma's home by the
appellant. Once there Ndlovu contacted Ngoma telephonically and told
him of the plot to killl
him. Ndlovu then telephoned the appellant
and told him that he had done the job. In the meanwhile the police
had been contacted
by Ngoma. They lay in wait for the appellant and
he was arrested when he subsequently met with Ndlovu. Ndlovu's
evidence was that
the appellant had offered to pay him R3000.00 to
kill Ngoma, but that right from the outset he had no intention of
carrying out
the plan but simply played along.
[5] The appellant denied the allegations against him. The gist of his
evidence was that he was the victim of a conspiracy orchestrated
by
Ngoma and Ndlovu, and to a lesser extent Ms Mthethwa. He testified
that Ngoma was his friend and that he had not had any problems
with
either him or Ms Mthethwa previously. According to the appellant, he
had met Ndlovu on a prior occasion when Ngoma introduced
the two of
them to each other. He testified that when he saw Ndlovu on the
second occasion during January 2006 the latter complained
that he was
unemployed and had been struggling to secure employment as he did not
have a cell phone and accordingly could not be
contacted by
prospective employers. As he had two cell phones he sold one to
Ndlovu for R600.00. The latter, however, was only
able to pay him
R400.00 immediately with the balance of R200.00 being owed to him. On
the day of his arrest he was contacted by
Ndlovu, who intimated that
he had run into a problem and thus requested return of the R400.00.
They arranged to meet so that he
could retrieve his cell phone and
return the R400.00 to Ndlovu. He kept that meeting and was then
arrested by the police.
[6] The high court concluded that the State had failed to prove the
offence charged but rather only an attempt to commit that offence.
In
that, it cannot be faulted. As long ago as
Harris v Rex
(1927)
48 NPD 330
at 347, Tatham J (Matthews concurring) put it thus:
‘
(k)
The last ground relied upon in argument is that the evidence in
relation to count 1 does not support a conviction for conspiring
with
Lockwood, for Lockwood was not a conspirator, and there can be no
conspiracy unless two or more persons are
ad
idem
as
to their object, that is, have come to some agreement. 9
Halsbury's
Laws
of England, par. 545, and
R
v Plummer,
[1902]
2 KB 339.
This argument must prevail. It is clear that whatever the
appellant may have thought was the case, Lockwood was not in
agreement
with him as to obtaining money from Indians to defeat the
course of justice, but was entrapping him. The evidence, however,
leaves
no room for doubt that while it does not support a conviction
for conspiracy, it supports a conviction for attempting to commit
that offence, for the authorities are clear that a person may attempt
to commit an offence which he could not in the circumstances
in fact
commit. This Court has power to alter the conviction to one of
attempting to commit the offence (Act 32, 1917, sections
95 and 100),
and it will be altered accordingly.
’
[7] For the rest, the high court disposed of the appellant’s
appeal in a judgment of three pages. It identified the central
issue
as being 'whether the state witnesses falsely implicated the
appellant and whether or not his version is reasonably possibly
true'. It concluded:
'The magistrate, in a detailed
judgment, accepted the evidence of the state witnesses. He held that
despite certain contradictions
they were reliable and credible and
that they corroborated each other in material respects. The
magistrate rejected the evidence
of the appellant as improbable and
not reasonable possibly true.'
Having expressed itself so emphatically in disposing of the
appellant's appeal the high court subsequently, somewhat
surprisingly,
granted leave to the appellant to appeal to this court.
It did so in the briefest of terms, by merely recording that in its
view
the appeal has reasonable prospects of success. Why it formed
that view – which I must state is at odds with the view I take
of the matter - was not articulated.
[8] In
S v Monyane & others
2008 (1) SACR 543
(SCA) para
15 this court stated:
'This court's powers to
interfere on appeal with the findings of fact of a trial court are
limited. It has not been suggested that
the trial court misdirected
itself in any respect. In the absence of demonstrable and material
misdirection by the trial court,
its findings of fact are presumed to
be correct and will only be disregarded if the recorded evidence
shows them to be clearly
wrong (
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645e-f). This, in my view, is certainly not a
case in which a thorough reading of the record leaves me in any doubt
as
to the correctness of the trial court's factual findings. Bearing
in mind the advantage that a trial court has of seeing, hearing
and
appraising a witness, it is only in exceptional cases that this court
will be entitled to interfere with a trial court's evaluation
of oral
testimony (
S v Francis
1991 (1) SACR 198
(A) at 204e).'
[9] Here no misdirection is relied upon. It was suggested from the
bar in argument that the trial court appeared not to appreciate
that
it was dealing with a single witness in Ndlovu. I do not agree.
Having perused the record it is plain that the trial court
was
careful in its approach to Ndlovu by seeking corroboration for his
account of events in the testimony of the other witnesses
and the
objective evidence – which it clearly found. Moreover, I can
find nothing in the record which would warrant us disturbing
the
findings of fact or credibility that have been made by the trial
court. As I have already stated, on his own version the appellant
enjoyed a good relationship with Ngoma. It does seem rather
far-fetched that Ngoma would have conspired with Ndlovu to falsely
implicate the appellant. Nothing can be gleaned from the record as to
what would have motivated them - particularly Ndlovu, who
was a
virtual stranger to him - to do so. Moreover, the appellant had some
difficulty in explaining why he so generously parted
with his cell
phone to Ndlovu when the latter had not yet paid the full purchase
price for it. The appellant suggested that he
did so because he
trusted Ndlovu. But on his own version there was no history of any
relationship between them and thus no foundation
for the trust he
asserted. Ndlovu's version as to how he came to be in possession of
the appellant's cell phone is by far the more
convincing when
compared to that of the appellant. Simply put, Ndlovu's evidence
carries a ring of truth. The same cannot be said
of the appellant's
evidence. Of the appellant, the magistrate stated:
'Ek bevind beskuldigde se
weergawe ten opsigte van aanklag een onwaarskylik in so mate dat dit
nie reedelik moontlik waar kan wees
nie.'
Further, Ndlovu was not to know that there were problems between the
appellant and his co-worker. And yet he proffered that as
the reason
why the appellant wanted Ngoma killed. It must be asked where else
would he have got that information from if not the
appellant. In my
view it would have taken a particularly fertile imagination to have
conjured up the version adduced by Ndlovu.
Having perused his
evidence he hardly strikes me as the kind of witness who is
sufficiently sophisticated to have made up such
an elaborate story.
[10] It follows that the appeal against conviction is devoid of any
merit and accordingly falls to be dismissed.
[11] As to sentence: It is trite that this court will not interfere
with the sentence imposed by the court a quo unless it is satisfied
that the sentence has been vitiated by a material misdirection or is
disturbingly inappropriate. No misdirection has been alluded
to, nor
can it be said that the sentence induces a sense of shock. It has
been submitted on behalf of the appellants that the sentence
is out
of proportion to the gravity of the offence and that in the
circumstances of this case a non-custodial sentence was appropriate.
It is true that the appellant has an unblemished record and that he
was a useful member of society in gainful employment at the
relevant
time. Those circumstances, however, have to be weighed against the
nature and severity of the offence and the requirements
of society.
Notwithstanding those mitigating factors being present, the
seriousness of the offence makes it necessary to send out
a clear
message that behaviour of the kind encountered in this case cannot be
countenanced. The natural indignation that the community
would feel
at conduct of this kind warrants recognition in the determination of
an appropriate sentence. It bears noting that the
appellant was
serious in his endeavour to have Ngoma killed and but for Ndlovu’s
aversion to the appellant’s suggestion
that he kill another
human being, the appellant’s plan might well have come to
fruition. Thus, in the circumstances of this
case the alteration of
the conviction by the high court involved no reduction in the moral
gravity of the offence, and it may well
have been arguable that the
sentence which the trial court imposed ought, notwithstanding the
alteration of the conviction, to
have remained undisturbed. Moreover,
as the version advanced by the appellant was found by the trial court
to be false and in effect
contrived, it is difficult to conclude in
his favour that he has demonstrated any remorse or contrition. In all
of the circumstances
of this case therefore the moral
reprehensibility of the appellant’s conduct remains
undiminished. There thus appears to
be no warrant for interfering
with the sentence imposed by the court below. It follows that the
appeal in respect of sentence must
also fail.
[12] In the result the appeal is dismissed.
________________
V PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: E S Classen (Attorney with right of appearance)
BDK
Attorneys
Johannesburg
Symington
& De Kok
Bloemfontein
For
Respondent: N Kowlas (Ms)
Instructed
by:
The
Director of Public Prosecutions
Johannesburg
The
Director of Public Prosecutions
Bloemfontein