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2024
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[2024] ZAFSHC 35
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Booysen and Others v S (A146/2022) [2024] ZAFSHC 35 (9 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A146/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
In
the matter between:
GEORGE
PAPA BOOYSEN
1
st
Appellant
XOLANI
WILLIAM SOLOMON
2
nd
Appellant
MZWAKHE
NXOKAZI
3
rd
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
BUYS, AJ
JUDGMENT
BY:
REINDERS, J
HEARD
ON:
29 JANUARY 2024
DELIVERED
ON:
9 FEBRUARY 2024
[1]
Mr Kgotso Bohope (the complainant) was the victim of an assault by a
group of people that took place on 20 April 2021 when he
was hit with
a sjambok, fists and open hands. The following day on 21 April 2021
the complainant was dragged from his home to an
open field by a group
of people and once again viciously assaulted by a group of people
with sjamboks, golf sticks, knobkierries,
open hands and fists.
[2]The
three appellants were arraigned in the Regional Court at Bloemfontein
on charges of assault with the intent to do grievous
bodily harm
(Count1), kidnapping (Count 2) and attempted murder (Count 3).
[3]
The appellants pleaded not guilty to all the charges.
3.1
Having heard the evidence of the single state witness (the
complainant) and the three appellants, the
trial court on 17 November
2021 convicted the first and third appellants on Count 1, all three
appellants on Count 2 and found
all three appellants guilty of
assault with the intent to do grievous bodily harm on Count 3.
3.2
The first and third appellants were sentenced as follow:
Counts 1, 2 and 3 were
taken together for purposes of sentence and appellants were sentenced
to 7 years’ imprisonment of which
18 months is suspended for 4
years on condition that they are not convicted of assault with intent
to do grievous bodily harm,
murder, attempted murder or kidnapping
committed during the period of suspension.
3.3The second appellant
was sentenced as follows:
Counts 2 and 3 were taken
together for purposes of sentence and appellant was sentenced to 5
years’ imprisonment of which
1 year was suspended for 4 years
on condition that he is not convicted of assault with intent to do
grievous bodily harm, murder,
attempted murder or kidnapping
committed during the period of suspension.
[4]This
appeal lies against both conviction and sentence with leave having
been granted by the court
a quo.
[5]The
upshot of the appellants’ grounds of appeal against their
respective convictions relates to whether the state had succeeded
in
proving its case beyond a reasonable doubt and more specifically
whether the trial court erred in the application of the cautionary
rule in respect of the evidence of a single witness.
[6]
From a reading of the record it is evident
that the learned magistrate was well appraised thereof that
the state
has to prove the guilt of an accused person beyond reasonable doubt
whereas an accuseds’ version need only be reasonably
possibly
true to lead to an acquittal. It is also evident that the magistrate
appreciated that the complainant was a single witness
in testifying
what had occurred on 20 and 21 April 2021.
[1]
[7]
In evaluating the evidence before her, the magistrate alluded to the
following issues as being common cause between the state
and the
defence:
7.1 “It is common
cause between the state and the defence that the complainant was
confronted on 20 April by a group of people
accusing him of stealing
a bicycle. It is common cause that the complainant and his brother
were again confronted by a group of
people on 21 April 2021. It is
common cause that they were taken away from their house to an open
space or a so called park and
that they were there seriously
assaulted. It is common cause that the three accused were all present
on 21 April 2021 when the
complainant was assaulted and it is common
cause that accused, at least accused 2 and 3 were also part of the
group that confronted
him on 20 April”.
[2]
7.2 “It is common
cause that accused 1 was well known to the complainant and it is
common cause that accused 1 did go to the
house of the complainant
and his brother.”
[3]
7.3
“It is so that all three accused put themselves at the scene on
both occasions. It is so that
the complainant knew accused 1 and 3
very well. Accused 2 confirmed that he was part of the group on 20
April that approached the
complainant and that he was watching what
was happening on the 21
st
.
All three accused are members of the Wanya tsotsies. All three of
them told the court that it is their mission to combat crime
in the
community. All three of them told the court that they were just
standing watching the complainant being seriously assaulted.”
[4]
The magistrate concluded
as follows:
“
All three accused
are members of the Wanya tsotsies who initiated this whole process
and I am not convinced that they then would
just stand back and let
the community do what they saying the community did. I am satisfied
that it has been proven that all three
of them took part in the
confrontation and the assault and the kidnapping of the
complainant.”
[5]
[8]
It is trite that in the absence of an
irregularity or misdirection by the trial court, a court
of appeal is
bound by credibility findings thereof, unless it is convinced that
such findings are clearly incorrect.
[6]
[9]
In my view the magistrate was correct in convicting the appellants as
she did. There is no indication
of any misdirection in respect of any
relevant evidence.
Much ado was made by
counsel for the appellant about the complaints’ initial
incorrect reference to the numbering of the appellants
in court at
the time. In her judgment the magistrate alluded to this aspect,
holding that in view of the complainants’ correction
thereof
(having regard to the common cause facts in relation to the
complainants’ identification and prior acquaintance with
the
appellants), she was satisfied that the complainant did not err in
his evidence of the appellants’ roles in the brutal
assaults
and kidnapping. I am in agreement with the learned magistrate’s
finding in this regard
She took a holistic view
of all the evidence tendered before her, applied the legal principles
in considering the matter and the
appellants’ guilt, and
comprehensively indicated her reasoning for finding the state to have
proven its case beyond a reasonable
doubt. Therefore, there is no
basis upon which we should interfere with the conviction. The result
is that the appeal against conviction
should be dismissed.
[10]
As mentioned, the appellants were convicted of two charges of assault
to do grievous bodily harm and a charge
of kidnapping.
[11]
The attack against the imposed sentences by the trail court was a
mere submission that the court a
quo
“did not exercise
its discretion properly and judicially by failing to consider all
relevant factors”.
[12]
From the record it is evident that the learned magistrate was well
appraised of the time honoured triad in
Zinn
[7]
,
the purposes of sentence and the principles to be applied in arriving
at a fair and just sentence:
12.1
The personal circumstances of the appellants were fully dealt with by
the magistrate. The magistrate considered
all three appellants to be
first offenders for purposes of sentencing.
[8]
12.2
The magistrate considered the crime and the seriousness thereof,
describing it as “ghastly”.
The magistrate alluded
thereto that the complainant would bear the physical scars forever.
Although the state did not present a
victim impact statement by the
complainant, in my view emotional scars would as a matter of logic,
also not be excluded. As indicated
by the magistrate, the complainant
was attacked by the mob like a pack of dogs would attack its prey.
The magistrate took it as
an aggravating circumstance that the
appellants showed no remorse for the crimes that they had committed.
12.3 In
considering the interest of the community, the learned magistrate
pointed out that it is important that
courts send out a clear message
that such behaviour will not be allowed. She stressed that the
appellants’ actions by taking
the law into their own hands can
never be tolerated.
[13]
It has long been established that sentencing is pre-eminently the
prerogative of
the trial court and a court of appeal should be
careful not to erode this discretion.
[9]
Interference is warranted if the sentence where there has been
results in a failure of justice, or when the court a
quo
misdirected itself to such an extent that its decision on sentencing
is vitiated, or the sentence is so disproportionate or shocking
that
no court could have imposed it.
[10]
[14]
Mindful of the aforementioned principles, the submissions placed
before us for interference
with the sentence imposed by the trial
court, were considered.
[15]
In my view there is no merit in the submission that the trial court
erred as alluded to herein above in imposing
sentences. The sentences
imposed by the trial court cannot be faulted. The appeal against
sentence should likewise be met with
the same fate as the appeal
against the convictions and is accordingly dismissed.
[16]
Accordingly the following order is made:
The appeal is dismissed
against both the imposed convictions and sentences.
C
REINDERS, J
I
concur
JJ
BUYS, AJ
On
behalf of the Appellant:
Adv T
Mogwera
Instructed
by
Finger
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv M
Tsefutha
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
Michael
Jantjies v The State
(
Case
no 532/2022)
[2023] ZASCA 3
(15 January 2024), see also s208 of
Criminal Procedure Act 51 of 1977
.
[2]
See
record: p 157 line 18 - p 158 line 3.
[3]
See
record: p 158 line 13 – 15.
[4]
See
record: p 159 line 15 – 23.
[5]
See
record: p160 line 19 – 24.
[6]
See:
S
v Francis
1991 (1) SACR 198
(A) at 204c;
J
v S
[1998] 2 All SA 267
(A) at 271c.
[7]
S
v Zinn
1969 (2) SA 537 (A).
[8]
See
record: p 171 line 20 – p 172 line 21.
[9]
See:
S
v Rabie
1975 (4) 855 (AD).
[10]
See:
S
v Boggards
2013 (1) SACR (CC) at [4].