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2023
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[2023] ZAFSHC 405
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Tshiu and Another v S (27 October 2023) (A77/2023) [2023] ZAFSHC 405 (27 October 2023)
THE
HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case No: A77/2023
REPORTABLE: YES/NO
In
the matter between:
KOPANO
LAWRENCE TSHIU
First
Appellant
MAHLOMOLA
ERIC MABINA
Second
Appellant
and
THE
STATE
Respondent
Coram:
Opperman, J
et
Zietsman, AJ
Heard:
23
October 2023
Delivered:
27 October
2023.
This judgment was handed down in
court and electronically by circulation to the parties’ legal
representatives
via
email
and release to SAFLII on 27 October 2023. The date and time of
hand-down is deemed to be 15h00 on 27 October 2023
Judgment:
Opperman, J
Summary:
Appeal –
conviction – sentence
JUDGMENT
[1]
The appellants come to this court on appeal against their
conviction
of murder as well as the sentence of life imprisonment that was
imposed on them in the regional court. They rely on
their automatic
right to appeal.
[2]
They were charged with murder read with the provisions
of section
51(1) of the General Law Amendment Act 105 of 1997.
Section
51(1) decrees that notwithstanding any other law, but subject
to
subsections
(3)
and
(6)
,
a regional court or a high court shall sentence a person it has
convicted of an offence referred to in Part I of
Schedule
2
to
imprisonment for life. Part I of
Schedule
2
subsection
(d) finds application and refers to: “Murder, when (d) the
offence was committed by a person, group of persons
or syndicate
acting in the execution or furtherance of a common purpose or
conspiracy;”
[3]
The appellants were represented by counsel
a quo.
Afore the
trial commenced the terms of the legislatively prescribed minimum
sentences and the consequences thereof were explained
to the accused.
The issue of common purpose was as such explained.
[4]
The incident of the murder occurred during some cultural
initiation
ceremonies of young men. The two accused, carrying weapons, arrived
with other men where the deceased and his group
were. The two accused
violently started to provoke a fight but the deceased and his
companions decided to flee. They got into a
vehicle but the deceased;
whilst running behind this vehicle, and trying to get onto the
vehicle, was accosted by among others,
accused one and two and killed
by them. It is the version of the two accused that they were at the
scene but did not partake in
the assault of the deceased.
[5]
The court
a quo
gave a well-reasoned and thorough depiction of
the evidence. The portrayal and evaluation of the evidence cannot be
faulted. Counsel
for the appellants, correctly so, conceded that the
contradictions between the witnesses cannot be labelled to be
material and
fatal for the case of the State. In fact, counsel for
the State argued that she would have been suspicious of witnesses
that corroborated
each other on all the issues in the circumstances
that prevailed. They testified from different vantage points in
different moments
of the incident.
[6]
The reliability of the observation of the witnesses must
be tested
and a court must carefully consider the opportunity the witnesses had
for correct identification. The reliability of
identification depends
on various factors. In
S v Ndika and others
2002 (1) SACR 250
(SCA) the Supreme Court of Appeal noted that:
[20]
It is of course so that the
honesty of a witness in identifying a person is not by itself
a
guarantee of its correctness. The objective circumstances attending
the observation of the person and the state of mind of the
observer
is just as critical.
[7]
Counsel for the State correctly submitted in address
that all the
witnesses had adequate time and opportunity for identification. The
visibility was good and there was nothing to obstruct
the view of the
witnesses. None of the state witnesses had any reason to falsely
implicate the appellants. The state witnesses
testified with clarity
and confidence about the identification of the appellants. There were
no material contradictions in the
evidence of the state witnesses.
The contradictions that exist were evaluated and found not to be
material.
[8]
The versions of the appellants fail dismally if compared
with the
evidence as a whole. The explanation of the appellants that they were
at the scene of certain events, but then to conveniently
extricate
themselves from the scene where the assault occurred, was correctly
rejected by the court
a quo
.
[9]
It was aptly pointed out by the State; and due regard was
given to this fact
a quo
as emphasized by Nugent, JA in
S v
Mbuli
2003 (1) SACR 97
(SCA), that:
[57]
It is trite that the State bears
the onus of establishing the guilt of the appellant beyond
reasonable
doubt, and the converse is that he is entitled to be acquitted if
there is a reasonable possibility that he might be
innocent (R v
Difford
1937 AD 370
at 373, 383). In S v Van der Meyden
1999 (2) SA
79
(W), which was adopted and affirmed by this Court in S v Van
Aswegen
2001 (2) SACR 97
(SCA), I had occasion to reiterate that in
whichever form the test is applied it must be satisfied upon a
consideration of all
the evidence. Just as a court does not look at
the evidence implicating the accused in isolation to determine
whether there is
proof beyond reasonable doubt, so too does it not
look at the exculpatory evidence in isolation to determine whether it
is reasonably
possible that it might be true. In similar vein the
following was said in Moshephi and Others v R LAC (1980 - 1984) 57 at
59F -
H, which was cited with approval in S v Hadebe and Others
1998
(1) SACR 422
(SCA) at 426f - h:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful aid
to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees.’
[10]
Although an accused has a
right to appeal, a court of appeal is not at liberty to depart from
the trial court's findings of fact
and credibility, unless they are
vitiated by irregularity, or unless an examination of the record of
evidence reveals that those
findings are patently wrong. The trial
court's findings of fact and credibility are presumed to be correct,
because the trial court,
and not the court of appeal, has had the
advantage of seeing and hearing the witnesses, and is in the best
position to determine
where the truth lies.
[11]
The appeal of both appellants against their conviction cannot stand.
[12]
The murder and the manner in which it was committed are atrocious. A
young
man, at no time having been part of any of the conflict stirred
on by the appellants and fleeing for his life; was violently
assaulted
and killed. The appellants acted with a total disdain for
human life. The postmortem report shows that the violence perpetrated
was severe. The ease with which murders are committed in our society
is of grave concern. Life has become too cheap.
[13]
The factors to be regarded and as submitted by the appellants during
the adjudication
of the sentences did not impress as substantial and
compelling. It was mundane in comparison to the circumstances of the
case.
[14]
From the evidence adduced in the court below and the factors pointed
out in
the appeal, there is nothing that indicates that the trial
court did not apply her mind judiciously and with due care. She did
not misdirect herself. Her sentence is in accordance with the
prevailing legislation and law. There is not any issue that dictates
for the interference of this court. The sentences were apt and
appropriate in the circumstances.
Flynote
: Sleutelwoorde
Appeal
- Against sentence - Powers of Court on appeal - Sentencing falling
primarily within discretion of trial court - Appeal Court
may
interfere where trial court has not properly and reasonably exercised
its discretion in imposing sentence - Where discretion
properly and
reasonably exercised, appeal Court having no power to interfere -
Court imposing sentence not bound by sentences imposed
by other
courts, including higher Courts, as long as it exercises its
sentencing discretion reasonably.
[1]
[15]
ORDER
The appeal against the
conviction and sentence of both the first and second appellants is
dismissed.
M
OPPERMAN, J
I
concur
P.J.J.
ZIETSMAN, AJ
APPEARANCES
On
behalf of the appellants
P.L.
VAN DER MERWE/
S
KRUGER
Legal
Aid: South Africa
Bloemfontein
On
behalf of the respondent
B.G.
CLAASSENS
Office
of the Director:
Public
Prosecutions,
Free
State
Bloemfontein
[1]
See
S
v Ncheche
[2005] ZAGPHC 21
;
2005
(2) SACR 386
(W).