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[2023] ZAFSHC 235
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T. P v S (A157/2021) [2023] ZAFSHC 235 (12 June 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case
no: A157/2021
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In the matter between:
T[…]
P[…]
Appellant
and
THE
STATE
Respondent
CORAM:
DANISO, J
et
BOONZAAIER, AJ
HEARD
ON:
06
MARCH 2023
SUPPLEMENTARY
HEADS OF ARGUMENT DELIVERED ON 27 MARCH AND 19 APRIL 2023
JUDGMENT
BY:
DANISO, J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 12 June 2023 at
10H00.
[1]
On 3 December 2015, the body of a two (2) year old little boy named
B[…] was found discarded
in the street some 3 to 5 minutes
walking distance from his home. B[…] died of multiple tramline
and stab wounds.
[2]
Following the recovering of B[…]’s body his biological
father, the appellant was
charged with his murder (count 1) including
other four counts namely: assault with intent to cause grievous
bodily harm on
his other son, ten (10) year old K[…] (count
2); assault on his partner who is also the mother of the children, Ms
K[…]
T[…] (count 3); assault on his neighbour Ms
Dikeledi Kgalebane (count 4); and child abuse relating to B[…]
(count
5). On 7 November 2016, count 5 was withdrawn. The appellant
pleaded not guilty to all the remaining charges. He was subsequently
convicted on the murder charge and acquitted on the rest of the
charges. The court
a quo
found
no
substantial and compelling circumstances warranting a deviation from
the minimum sentence prescribed in terms of the Criminal
Law
Amendment Act 105 of 1997 (the CLAA)
and sentenced him to
fifteen (15) years imprisonment
.
[3]
This is an appeal against conviction and sentence and it is by leave
of the court
a quo.
The appeal is opposed by the State.
[4]
The principles applicable in appeals where the findings of a trial
court are attacked, are now
established: the appeal court will not
interfere with or tamper with a trial court’s judgment or
decision regarding either
conviction or sentence unless, it (the
court of appeal) finds that the trial court misdirected itself as
regards its findings of
facts or the law.
[1]
[5]
The record is incomplete in that the evidence of the third State
witness Mr Itumeleng and that
of the accused is missing despite the
applicants’ effort to trace the said record. However, the
appellant is of the view
that the available record is sufficient for
the purpose of the hearing of the appeal.
[6]
The appellant was convicted on circumstantial evidence as the
identity of the perpetrator of this
heinous and gruesome crime was
not known. The appellant was implicated by the fact that he was the
last person who was with B[…].
The State’s case rested
on evidence of the appellant’s mother Ms E[…] N[…]
P[…], Ms T[…],
Mr Itumeleng (Ms T[…] cousin) and
Dr John Mohai who conducted the post-mortem.
[7]
The summary of the State’s case is that: on the morning of 2
December 2015 Ms T[…]
left the home she shared with the
appellant in Botshabelo to go to work leaving B[…] in the care
of the appellant who was
unemployed at that time. The appellant took
B[…] to his parental home where he left him with his
(appellant’s) mother
and went to town with his sister. During
the day at about 12h00 he returned from town and spent the afternoon
at his parent’s
house with B[…]. He left again to visit
friends when he returned later in the evening at around 20h00 asking
about the whereabouts
of Ms T[…]. Upon being told that she was
not there, he took B[…] and left.
[8]
Ms T[…] called the appellant at around 19h00 to find out where
he was with B[…].
The appellant explained that he was changing
B[…]’s nappy then he will be coming home. About an hour
later at 20h30
Ms T[…] was in bed when the appellant called
and asked her to meet him half way. She refused which made the
appellant to
shout at her. She then asked her cousin Itumeleng to
rather go and meet the appellant and to also call the police as she
knew that
there was bound to be an argument when the appellant arrive
as she could tell that he had been drinking and she wanted to avoid
the quarrel.
[9]
Ms T[…] took their older child (K[…]) and her cousin
Lindiwe and sought refuge at
the neighbours. They went to Lucas and
Dikeledi’s house where Ms T[…] went to hide in their
bedroom. Whilst hiding
the appellant arrived shouting and demanding
to know where she was. She did not come out. She also told K[…]
not to tell
the appellant where she was. She could also hear B[…]
crying. The appellant then left with the child and shortly thereafter
there was a commotion and K[…] told her that the police had
arrived.
[10]
The police took Ms T[…] to the appellant’s parental home
in order to look for the appellant
and B[…]. They did not find
them. After they left, the appellant arrived. He was alone this time
and when his mother asked
him where was B[…] his response was
that he was home. His mother told him that Ms T[…] came
looking for B[…]
accompanied by the police, he then left his
mother’s house saying the was going to the police station to
find why the police
were looking for him. He returned later and spent
the night at his mother’s house.
[11] On
the next morning Ms T[…] was in a taxi on her way to seek a
protection order against the appellant
when she heard the other
commuters talking about a baby that had been found murdered. She went
to the scene and that’s when
she discovered B[…]’s
body.
[12] It
was the State’s case that the appellant was responsible for
killing B[…] because: he was
the last person who was with him;
he was clearly angry at B[…]’s mother for refusing his
request to meet halfway;
Ms T[…]’s evidence that the
appellant had a history of being aggressive when he was drunk and
when he did not get
his away was undisputed. It was the State’s
case that these are also the reasons why Ms T[…] not only did
she refuse
to meet him in the street at night, she also sought help
from his cousin to call the police on her behalf and also sought
refuge
at the neighbours. In the morning when the appellant was still
not back with B[…] she decided to go and obtain a protection
order against him. The court
a quo
agreed.
[13]
The appellant is aggrieved by the court
a quo
’s reliance
on the State’s evidence in its conclusion that his guilt was
proven beyond a reasonable doubt. The appellant
also criticizes the
court
a
quo’s finding that there were no substantial and
compelling circumstances warranting a deviation from the prescribed
sentence.
[14]
The appellant’s notice of appeal and the heads of argument
raise at least fifteen (15) grounds of appeal.
To avoid prolixity, I
will not to repeat them here verbatim except to highlight that the
appellant’s gripe is essentially
that due to the material
contradictions in the evidence tendered by the State witnesses the
court
a quo
should not relied on that evidence and should have
rather accepted the appellant’s version as the truth and
acquitted him
on the murder charge.
[15]
The appellant points out to the discrepancies between the statement
made by Ms T[…] to the police
regarding the incidents. In her
statement she detailed how the appellant assaulted her, their other
son K[…] and their neighbour
Ms Dikeledi whereas in her
testimony no such allegations were proffered. It is the appellant’s
case that these contradictions
are material therefore cast doubt on
the guilt of the appellant.
[16] As
correctly pointed out by the appellant this evidence relates to the
other charges the appellant was charged
with, assault with intent to
cause grievous bodily harm and two counts of assault (counts 2 to 4
respectively). The appellant was
acquitted on those charges correctly
so, as the State conceded that based on the evidence proffered no
case was made out to sustain
the allegations pertaining to those
charges.
[17] It
is important to note that at no stage did Ms T[…] identify the
appellant as the perpetrator of
this crime. She was specifically
asked in her direct evidence whether she knew who killed her son and
she said no, she even went
further and testified about how the
appellant loved their son. Her version that the last time she heard
the sounds of her B[…]
he was with the appellant was
undisputed. Based on the reasons I fail to understand how the
acceptance of this witness’ evidence
by the court
a quo
prejudiced the appellant in the conduct of his defence.
[18]
The appellant’s criticism of the court
a
quo’s
acceptance
of the State’s version despite the fact that the State did not
disprove his version that he left B[…] in
the care of
Kgomotso, is in my view unsound. Much as there is no obligation on an
accused person to prove his defence, where he
provides a version of
his defence he would be entitled to an acquittal if his version is
reasonably possibly true in the light
of the totality of the
evidence.
[2]
All
evidence
should be tested or corroborated.
[19]
In rejecting the
appellant’s version the court
a
quo
took into
account that the appellant presented conflicting versions regarding
where he left B[…] and concluded that his version
was false
beyond a reasonable doubt. The appellant had initially told his own
mother that B[…] was at home. In his plea
explanation as
contemplated in section 115 of the Criminal Procedure Act (The Act)
he had the opportunity of explaining that he
left B[…] with
Kgomotso he did not instead, he merely denied killing him. It does
not end there, the version that was put
to Ms T[…] was that
B[…] was left outside with Kgomotso and other tenants, the
other version was that he did not
leave him with Kgomotso he left him
outside as Kgomotso was also there. I am in agreement with the trial
court’s conclusions,
the State is only expected to verify a
sound and distinct defence and not to embark on a wild goose chase.
[20] On
the accepted State’s version, it is indisputable that
immediately before B[…] met his untimely
death the appellant
was drunk, angry and shouting at the complainant because she refused
to comply with his request to meet him
halfway. He was also livid
that when he finally arrived home he was told she was not there and
he had a history of acting out in
that manner whenever he had been
drinking and did not get his way. It is equally undisputed that due
to the tender age of B[…]
the appellant had never left him
unattended let alone at night.
[21] It
is also quiet peculiar that despite his admission that his mother did
tell him that Ms T[…] and
the police were looking for B[…],
except to go to the police station to find out the reason why the
police were looking
for him he did not call Ms T[…] to inform
her about B[…]’s whereabouts. He did not even go home
that night
he slept at his mother’s house. This behaviour also
puts paid to his defence that he did not leave home with B[…].
Based on these reasons, I am satisfied that the appellant was
correctly convicted of the murder of his son.
[22] As
regards sentence, Section 51(2) of the
CLAA
prescribes a
minimum sentence of fifteen years’ imprisonment for murder
unless there are substantial and compelling circumstances
warranting
a deviation from the prescribed sentence.
[23]
The trial court is criticized for not warning the appellant about the
applicability of the provisions of
section 51 (2) of the CLAA at the
commencement of the trial. It is the appellant’s case that he
only found out at the sentencing
stage when his attorney addressed
the court in mitigation that section 51(2) was applicable. It is
argued that the appellant was
as a result prejudiced in the conduct
of his defence and this constitutes an infringement of constitutional
rights to a fair trial.
The appellant also complains that at the time
of sentencing the trial court was not in possession of a
pre-sentencing report to
have properly assessed his situation.
[24]
The appellant’s contentions have no merit. The charge sheet
clearly States that the appellant was charged
with “...
the
crime of MURDER (read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act, Act
105 of 1997)
”
therefore, it is thus disingenuous for the appellant to aver that he
only discovered at the sentencing stage that
section 51(2)
was
applicable. An accused pleads to a charge not a sentencing
legislation in that, the provisions of the CLAA are relevant to
sentence not to a defence to the charge.
[3]
The
sentencing court has a discretion to exercise whether to call for a
pre-sentence report or not. It is desirable for
a
pre-sentencing report to be called for where a court feels that not
enough information has been proffered to enable it to exercise
its
sentencing discretion properly and reasonably. In this matter the
appellant testified in mitigation and it is clear from the
record of
the proceedings
[4]
that the
learned magistrate when sentencing the appellant he also took into
account the appellant’s testimony in that regard.
[25] I am also not
persuaded that the sentence imposed by the court
a quo
is
excessive or imbalanced. The mitigating factors in this case namely;
the appellant’s personal circumstances, that he was
a first
offender, aged 30 at the time sentence, that he was a bread winner
and employed as a security guard including that he had
a medical
condition are far outweighed by the nature and the gravity of the
offence he was convicted of. They do not constitute
substantial and
compelling reasons warranting a deviation from the prescribed
sentence.
[26]
B[…] died in the hands of his own father who owed him a duty
of care and protection for no other reason
except that he was angry
at his partner, the mother of this child. The injuries sustained by
this child as detailed in the post-mortem
report are horrific
(Exhibit “A”). The appellant testified in mitigation but
elected not to take the court into his
confidence and explain the
motive behind his horrendous actions. It is accordingly my view that
the sentence imposed by the court
a
quo
fits
the appellant, the crime he was convicted of and also addresses the
plight of the society. The sentence was also blended with
mercy
[5]
in that the State had argued that the court
a
quo
could
impose a sentence which was more than the prescribed sentence but the
court decided not to.
[27] In
conclusion, the facts of this matter do not justify the interference
with either the conviction or the
sentence imposed by the trial
court. The appeal against conviction and sentence fails.
[28] In
the result, the following order is made:
1.
The
conviction and sentence is confirmed.
N.S.
DANISO, J
I concur,
A.S.
BOONZAAIER, AJ
On
behalf of the Appellant:
Mr
P. Peyper
Instructed
by:
Peyper
Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
S. Tunzi
Instructed
by:
Office
of the DPP, Free State
BLOEMFONTEIN
[1]
R
v Dhlumayo & Anothe
r
1948
(2) SA 677
(A).
The
principle was
also
restated
in
AM &
Another v MEC Health, Western Cape
2021(3)
SA 337
(SCA
)
at paragraph 8.
[2]
R
v Difford
1937
AD 37
0
at 373 and 383;
S
v Van der Meyden 1999 (1
)
SACR 447
(W);
S v Combrink
2012
(1) SACR
93
(SCA).
[3]
S
v Kekana
2019
(1) SACR 1
SCA at para 22.
[4]
Record
page 165 to 167.
[5]
S
v Rabie
1
975
(4) SA 85
5
(AD)
at 862 G-H