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[2024] ZAFSHC 56
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Mbele v S (A91/2023) [2024] ZAFSHC 56 (22 February 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: A91//2023
In
the matter between:
THABO
THOSA MBELE
Appellant
and
THE
STATE
Respondent
CORAM:
CHESIWE J
et
LEKHOABA AJ
HEARD
ON:
9 OCTOBER 2023
DELIVERED
ON:
22 FEBRUARY 2024
JUDGMENT
BY:
LEKHOABA AJ
[1]
This is an application for appeal
against both conviction and
sentence which was imposed by Regional Court on 27 November 2020.
[2]
Appellant was charged in the
Regional Court, Bethlehem on charges of
murder, read with the provision section 51(2) of Act 105 of 1997, and
sentenced to 20 (Twenty)
year’s imprisonment.
[3]
An application for Leave to Appeal
was brought, but dismissed by the
Court a
quo.
Appellant however successfully petitioned this
Court, with the Honourable Justice Reinders, J et Gusha, AJ granting
the Appellant
the required leave to Appeal on 17 April 2023.
[4]
This court is grateful to Counsels
in this matter for their oral
arguments and written heads of arguments.
Grounds
for Appeal
[5]
Appellant’s grounds for
appeal against his
convictions
are that the
Court a quo
erred by finding that the guilt of
Appellant was proved beyond reasonable doubt; and that the
Court a
quo
disregarded the cautionary rules applicable to the evidence
of a single - and child witness and factors that affected the witness
reliability of the identification of the perpetrator. The factors
are:
a) The
attacker’s clothing;
b) No
identifying features other than having a dark complexion and a bad
haircut;
c)
Contradictions pertaining the illumination of the scene;
d) The
inherent suggestibility of the witness, especially the history of
animosity between her family and the
Appellant;
e)
Appellant’s alibi; and
f)
The wearing or not of a cap by the attacker.
[6]
Appellant’s grounds for
appeal against his
sentence
are
as follows:
a) The
sentence is inappropriate and shocking;
b) The
Court a quo not bestowing any mercy towards the Appellant, despite
the matter being classified as one of
Gender Based Violence (GBV);
c)
The Court a quo overemphasized the retribution element and as such
ordered an increased sentence;
d) Not
finding that there were factors in mitigation that were substantial
and compelling as the Appellant is
a first time offender, the sole
breadwinner of three (3) minor children left in the care of a life
partner and without a social
grant and has been in custody awaiting
trial for 18 months.
Background
[7]
The background on this matter
is briefly as follows: According to the
transcribed record, the Appellant was in a relationship with the
deceased at the time of
her demise. K[…] M[…]
[sic] (name continued herein after as is), the deceased 9-year-old
daughter, testified
through an intermediary that: Earlier during the
day on 13 May 2017, the Appellant arrived at the deceased house
looking for the
deceased. The deceased was not at home.
In the evening of the same day, Appellant returned. There was a
knocked at
the door and the person entered the house.
K[...] noticed that it was the Appellant. The Appellant then
pulled
the deceased outside. K[...] followed the Appellant and
deceased outside. She saw the deceased fall under a tree and
saw how the Appellant got on top of the deceased and started to
stabbed the deceased several times. The Appellant then left
the
decease. An ambulance was called to collect the deceased.
The deceased died in hospital.
[8]
The offence was committed at
the place of residence of the deceased.
A knife was used to inflict fatal wounds and/or injuries on the
deceased.
[9]
It is common cause that the identity
of the deceased as it appears on
the charge sheet is not in dispute and that she died on the 13
th
of March 2017. Further that the correctness of the post-mortem
report, contents therefore as it relates to the deceased as well
as
the cause of death are not in dispute. Moreover, the chain of
evidence regarding that the body of the deceased sustained no
further
injuries from the time of being moved from the scene, right up until
the time the pots-mortem was concluded. And, there
was a love
relationship between the Appellant and the deceased at the time of
her demise.
Issues
for determination
[10]
This Court is called upon to determine if the Court
a quo
erred
in finding that the guilt of the Appellant was proved beyond
reasonable doubt and if the Court
a quo
disregarded the
cautionary rules applicable to the evidence of single – and
child witness and factors that affected the witness’
reliability of the identification of the perpetrator.
[11]
The Court
a quo
accepted that K[...]’s evidence was
contradicted by the evidence of the State’s second witness, Mr
Joseph Motaung regarding
the aspect of whether the deceased had found
employment in Cape Town or not. However, the Court
a quo
found
it to be an immaterial contradiction. The Court
a quo
further mentioned that even though Mr M[…] J[…] M[…]
[sic] (surname continued herein after as is) testified
that he was
drunk, he corroborated K[...]’s testimony to the effect that
there was an Apollo light that illuminates on that
street.
[12]
K[...]’s evidence was also corroborated by Doctor
Van Schalkwyk
who testified that the deceased was stabbed several times with a
knife and indeed 11 stab wounds were observed on
the body of the
deceased. The Court a
quo
in its judgment stated that K[...]
answered to questions directly and was never evasive. It further
stated that she was bold when
testifying and her evidence was
coherent and logical.
[13]
The Court a
quo
further stated in its judgment that Mr M[…]
was upfront and frank with the Court from the onset that he was
drunk. He was
honest with the Court that he saw a person whose
physique and walk resembled that of the Appellant. He however, could
not commit
himself to confirming if the Appellant was the person that
he saw. There was nothing more that could be said regarding Mr M[…]’s
evidence since he arrived after the murder of his sister.
[14]
The Appellant testified that he lived with the deceased
and the
children would visit. No plea explanation was given on behalf of
Appellant. It was however during cross-examination of
a witness
that his version of having an alibi was put to him. Court
a
quo
found the Appellant’s defence of an alibi that he was
in Vereeniging was not reasonably possibly true and was therefore
rejected.
Ad
Conviction
[15]
It has long been
our law that the trier of fact should not consider the evidence
implicating the accused and evidence exculpating
the accused in a
compartmentalised manner. The court must evaluate the evidence before
it in its totality and judge the probabilities
in light of all the
evidence.
[1]
[16]
In
S v Sauls and Others
1981 (3) SA 172
(A)
at
180E-G, the Court said the following:
“
There is no rule
of thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness…
. The trial Judge will
weigh his evidence, will consider its merits and demerits and, having
done so, will decide whether it is
trustworthy and whether, despite
the fact that there are shortcomings or defects or contradictions in
the testimony, he is satisfied
that the truth has been told. The
cautionary rule referred to by DE VILLIERS JP in 1932 may be a guide
to a right decision but
it does not mean ‘that the appeal must
succeed if any criticism, however slender, of the witnesses' evidence
were well founded.’
[17]
It has been said more than once that the exercise of
caution must not
be allowed to displace the exercise of common sense.
[18]
In
R v Mokoena
1932 OPD 79
at 80 in which it was stated
that
“
The uncorroborated
evidence of a single competent and credible witness is no doubt
declared to be sufficient for a conviction by
sec 284 of Act 31 of
1917, but in my opinion that section should be relied on where the
evidence of the single witness is clear
and satisfactory in every
material respect”.
[19]
In
S v Francis
1991 (1) SACR 198
(A)
at p 204 C –
E the Court remarked:
“
This Court’s
powers to interfere on appeal with the findings of fact of a trial
Court are limited. …The advantage 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 the trial Court’s
evaluation of oral testimony.”
[20]
Adv. Lencoe, on behalf of the Respondent, contended
that it is
undisputed that K[...] M[…] knew the Appellant very well as
the Appellant was involved in a love affair with
her mother and they
even stayed together. And it is also the testimony of the Appellant
that he stayed with the deceased for approximately
a year and few
months and that the children would visit.
[21]
It is trite that in this case where single –and
child witness
has a prior knowledge of the Appellant, questions identifying marks,
facial characteristics or clothing plays a lesser
role, but what is
important is prior knowledge. I agree with Counsel for the Respondent
that the issue of mistaken identity is
neither here nor there.
[22]
Having considered the above, I am of the view that illumination
was
sufficient for K[...] to see the Appellant from inside the house and
outside the house with the help of Apollo light. K[...]
was able
again to see that the assailant was indeed the Appellant.
[23]
On the issue of cautionary rule applicable to the evidence
of a minor
and single witness, the Court a
quo
in its judgement pointed
out that K[...] had prior knowledge of the Appellant as the Appellant
was in in a love relationship with
her mother, further that the
Appellant knocked and entered the and she saw that it was the
Appellant and the Appellant dragged
the deceased and when falling
down, the Appellant pinned the deceased down and then proceeded to
stab the deceased several times
with a knife. Moreover, K[...]
watched uninterrupted and testified that there was illumination from
an Apollo light.
[24]
Section 208
[2]
provides that an accused may be convicted of any offence on the
single evidence of any competent witness. However, this section
must
be read with the case of
Mokoena
Supra
where it was
stated that the uncorroborated evidence of a single competent and
credible witness is no doubt declared to be sufficient
for a
conviction but in my opinion that section should only be relied on
where the evidence of a single witness is clear and satisfactory
is
very material aspect. In this case K[...]’s evidence was found
by the trial court to be sufficiently reliable to sustain
a
conviction.
[25]
The appellant brutally killed the deceased. The
appellant used
a dangerous weapon to kill a defenceless woman at her own place of
residence. Stabbed her eight times and
in the presence of the
deceased minor child. That in itself is remorseless.
Furthermore, the post-mortem report gives a gruesome
detail report on
the injuries the deceased sustained.
[26]
After careful consideration of the evidence, I cannot fault the trial
court.
The evidence against the Appellant is strong and the manner in
which the trial Court adjudicated the conspectus of evidence is
legally sound.
[27]
The appeal court will only tamper with the trial court’s
findings where
it is clearly wrong. Furthermore, an appeal court’s
powers to interfere with the findings of the trial court on
credibility
are limited. When consideration is paid to all
consistencies, improbabilities and contradictions, there is no reason
to doubt the
correctness of the credibility findings made by the
trial court. In my view, the trial court correctly convicted the
appellant
and there is no reason to tamper with its findings on
conviction. And the appeal on conviction ought to fail.
Ad
Sentence
[28]
Life imprisonment
is the ultimate penalty that courts can impose and should not be
imposed lightly. In saying this, I am fully aware
of and acquainted
with the judgments in
S
v PB,
[3]
and
S
v Matyityi,
[4]
wherein the Supreme Court of Appeal in both judgments warned courts
not to depart from prescribed minimum sentences for flimsy
reasons.
[29]
No doubt, due to
the seriousness of the offences in
casu
,
it is required that the elements of retribution and deterrence should
come to the fore and that the rehabilitation of the Appellant
should
be accorded a smaller part as emphasised by the Supreme Court of
Appeal in
S
v Kekana.
[5]
The appellant’s personal circumstances have to bow to the
interest of society.
[30]
In S v De
Beer,
[6]
the Supreme Court of Appeal held as follows:
“
This court
has pointed out on many occasions that injustices may occur if
the prescribed minimum sentences are imposed without
a proper
consideration of the existence of substantial and compelling
circumstances, including the question whether the prescribed
sentence
will be disproportionate to the offence, in the wide sense, in other
words, including all the circumstances of not
only the offence
itself, but also the circumstances of the parties involved.”
[31]
The sentence of
life imprisonment must be imposed unless, as subsections (3) and (6)
provide that there are substantial and compelling
circumstances which
justify the imposition of a lesser sentence.
[7]
The test of what constitutes substantial and compelling circumstances
was articulated in
S
v Malgas.
[8]
The trite triad of factors as set out in
S
v Zinn,
[9]
also prevails.
[32]
The trial court took into consideration the Appellant’s
personal circumstances that he was
38 years old in
love relationship with the deceased. He is not married but has a life
partner with whom they are blessed with the
three children, the first
born being 14 years old and the other two are 11 years old twins.
Prior to his arrest, the Appellant
was working as a builder in a
construction company earning R800 per fortnight. He cannot read
or write. He has been in custody
since May 2019, and that constitutes
about a year and a half awaiting the finalisation of this case.
[33]
Both Mr Reyneke and Adv. Lencoe correctly submitted
that this offence
is very serious. The victim lost her life, what also aggravates
matters is that the accused has not shown any
remorse nor did he
tender an apology to the deceased family through his legal
representative.
[34]
The Court when sentencing, correctly ruled that no compelling
and
substantial circumstances exist. The argument in mitigation that the
Appellant was incarcerated awaiting trial for a substantial
period of
time does not hold water as compelling and substantial. He was the
architect of his own fate here. It is also a reality
that the
Appellant is the father of three minor children. There is however, no
other evidence that he was the primary caregiver
nor the primary
breadwinner of these children. This factor may also not be elevated
to compelling and substantial on the evidence
before Court.
[35]
In every appeal
against sentence, the Judges hearing the appeal should be guided by
certain appellate principles. The first is that
punishment of an
offender is primarily for the discretion of the trial court. The
second is that such judges should be careful
not to erode such
discretion. The third is that the sentence should only be altered, on
appeal, if the discretion has not been
judicially and properly
exercised.
[10]
[36]
It is indeed so that the first principle that the sentencing
courts
should not readily depart, for flimsy reasons, from the Prescribed
Minimum Sentence ordained as an ordinarily appropriate
punishment.
The Prescribed Minimum Sentence of life imprisonment is the harshest
a court can impose on an offender. It is the ultimate
punishment in
our Criminal Law system. The sentencing court always has that choice
dictated by the peculiar circumstances of a
particular case. To say
that the court has no choice boiled down to some kind of neglect to
exercise the sentencing discretion
judicially and constitute a
material misdirection.
[37]
I therefore see no reason for this court to interfere
with the
sentence of the trial court.
Conclusion
[38]
From the evidence adduced in the court below and the
factors pointed
out in the appeal, there is nothing that indicates that the presiding
magistrate did not apply his mind judiciously
and with due care. He
did not misdirect himself. The convictions and sentences are in
accordance with the prevailing legislation
and law. There is no other
issue that dictates for the interference of this Court.
[39]
I am convinced that Court a
quo
applied double caution based
on few pointers that I have cited above.
[40]
The Court a
quo
was alive to the fact that K[...] was a minor
and a key witness and it had applied cautionary rules when dealing
with her evidence.
[41]
Therefore, there is no reason to interfere with
the findings of the Court a
quo.
[42]
In the premises the following order is made:
1.
The
appeal against conviction and sentence is dismissed.
2.
The
conviction and sentence imposed by the court
a
quo
are confirmed.
LEKHOABA,
AJ
I
CONCUR
CHESIWE,
J
On
behalf of the Appellant:
Mr. D
Reyneke
Instructed
by:
Legal
Aid South Africa
BLOEMFONTEIN
On
behalf of the Defendant:
Adv.
M Lencoe
Instructed
by:
Director
Public Prosecution
BLOEMFONTEIN
[1]
R v Difford
1937 AD 373
, S v Van der Meyden 1999(1) SACR 447 (W) and
S v Toubie 2004(1) SACR 530 (W)
[2]
Criminal
Procedure Act 51 of 1977
[3]
2013
(2) SACR 533
(SCA) para 20.
[4]
2011
(1) SACR 40
(SCA) para 23.
[5]
2019
(1) SACR 1
(SCA) at paras 39 & 40.
[6]
2018 (1) SACR 229
(SCA) at para 17.
[7]
Section
51
(3) of Act 105 of 1997 provides that in the absence of any
physical injuries that shall not constitute substantial and
compelling
circumstances.
[8]
2001
(1) SACR 469
(SCA) at 482 c.
[9]
1969
(2) SA 537 (A).
[10]
S v Rabie
1975 (4) SA 855
(A) as per Holmes JA.