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2023
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[2023] ZAFSHC 499
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T.J.S v S (A94/2022) [2023] ZAFSHC 499 (20 December 2023)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A94/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
In
the matter between:
T[...]
J[...] S[...]
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS J
et
VELE AJ
et
THAMAE AJ
JUDGMENT
BY:
REINDERS J
HEARD
ON:
11 SEPTEMBER 2023
DELIVERED
ON:
20 DECEMBER 2023
This
judgment was handed down in open court and subsequently circulated
electronically to the parties’ representatives by
email.
[1]
This appeal came before us with leave granted to the appellant by the
Supreme Court
of Appeal. On 11 September 2023 the appeal was heard by
the full bench of this Division as constituted of
myself,
Thamae AJ and Vele AJ. Shortly after the hearing of the appeal was
concluded but before judgment could be delivered, Thamae
AJ sadly
passed away.
[2]
The Superior Courts Act
[1]
makes
provision for instances where a vacancy amongst the members of a
court arises prior to the finalisation of a judgment.
[2]
[3]
Vele AJ and I remained and constituted the majority of judges. We
resolved to proceed
considering the matter and to deliver this
judgment.
[4]
The appellant was accused number three (3) in the Circuit Court of
this Division held
at Bethulie. It is convenient to refer to him as
in the trial court.
[5]
Four accused were arraigned on three charges. The first charge was
murder read with
the provisions of section 51(1) of the Criminal Law
Amendment Act (the “CLAA”)
[3]
.
It was alleged that on 25 February 2019 at house number 1[...] in
L[...] in Bethulie the accused unlawfully and intentionally
killed
T[...] M[...] M[...], an adult female (hereafter “the
deceased”). The second charge was robbery with aggravating
circumstances (read with the provisions of s51(1) of the CLAA) in
that the accused by means of force and violence induced the
deceased’s submission and stole her cell phone from her. Count
3 was that the accused at the same time and place in counts
1 and 2
unlawfully and intentionally deprived the deceased of her freedom of
movement.
[6]
At the conclusion of the trial accused 1, 2 and 3 were convicted of
all three counts
and accused 4 was acquitted. The appellant was
sentenced on count 1 to life imprisonment, on count 2 fifteen years’
imprisonment
and on count 3 to five years’ imprisonment. It was
ordered that the sentences on counts 2 and 3 were to run concurrently
with the sentence in count 1.
[7]
Leave as granted by the Supreme Court of Appeal to the appellant on 8
July 2022, was
against both the convictions and sentences.
[8]
Accused 3 was legally represented during the trial and Mr Pieterse
argued the matter
before us on appeal. The state was represented by
Mr Mpemvane who also appeared for the state in the hearing at the
trial court.
[9]
The bones of contention and arguments in respect of the convictions
may be summarised
to say that it was submitted that the trail court
misdirected itself in accepting the evidence of the state witnesses
Messrs Zon
and Dywili as credible and reliable. In respect of Mr Zon
is was argued that he was previously a suspect and co-accused in the
matter and it was contended that the trial court did not exercise
proper caution in the evaluation of his evidence. It was
submitted that both Mr Zon and Mr Dywili’s evidence were
inconsistent with their statements made to the South African Police
Services. The critique levelled at the trial court included the
submission that it had misdirected itself in drawing the conclusion
that the three accused conspired to kill the deceased. The trial
court was also criticized for rejecting the version tendered by
accused 3. On appeal we were referred to the well-known dicta in
R
v Difford
[4]
and it was reiterated on this basis that the appellant was entitled
to his acquittal if there was any reasonability of his explanation
being true.
[10]
The highlights of the state case indicated that accused 3 and the
deceased were in a toxic love
relationship at the time of her death.
One minor child was born from this union. According to the medico
legal post mortem report
the deceased was strangled to death. Mr
Dywili’s evidence revealed that accused 3 approached him to
assist in killing the
deceased. A day prior to the deceased being
killed, accused 3 transported accused 1 and 2 from Bloemfontein to
Bethulie. Shortly
before the death of the deceased, accused 3 was
briefly at her place of residence and shortly after he had left,
accused 1 and
2 entered the house. Testimony revealed that accused 1
and 2 contacted accused 3 shortly after deceased was killed –
informing
him that they were done. Accused 1, 2 and 3 re-united
within a short time thereafter. Mr Zon then transported accused 1 and
2 and
accused 3 followed them in his employer’s vehicle. A cell
phone was taken from deceased and later found when accused 1 and
2
were arrested.
Accused 3 did not challenge accused 4's evidence that accused 1 and 2
did not have bags when traveling from Bloemfontein the night
before
the murder. This contradicts his evidence that accused 1 and 2 were
delivering dagga that he bought from them. Surely if
this was the
case, they were to carry some luggage. It is highly improbable that
accused 3 gave the child's cell phone for use
in the dagga business
as the unchallenged evidence of Ms M Mokatsi was that phone was
on the table when accused 1 and 2 entered
the house. Accused 3’s
version was not tested with the witness to get her comment thereon.
The
trial court extensively and with reference dealt with the differences
between the witnesses Zon and Dywili’s oral testimony
and prior
statements to the police.
[5]
Having considered the merits and the demerits the trial court found
that their oral evidence did not materially differ from their
statements and accepted it. The trial court found both witnesses to
be good witnesses and accepted their evidence.
[11]
From a perusal of the record and having heard arguments from counsel,
I am unable to find that
the trial court erred in rejecting accused
3’s version as it did. The trial court found accused 3’s
evidence to be
evasive and concluded that accused 3 deliberately
tendered irrelevant answers to direct questions. There is no basis
for interfering
with the aforementioned findings by the trial court.
[12]
I have not been convinced that the trial court misdirected itself in
respect of any credibility
findings nor that it misdirected itself in
evaluating the evidence. In my view the factual findings made by the
trial court are
consistent with the evidence tendered before it. It
is trite that in the absence of a demonstrable and or material
misdirection
by a trial court, it findings of fact are presumed to be
correct and should be proven to be clearly wrong before a court of
appeal
will interfere.
[6]
Despite the critique levelled against the trial court in various
respects, Mr Pieterse responsibly did not insist that the trial
court
had not taken a holistic view of all the evidence tendered before
him, considering each piece of evidence in favour and against
both
the appellant and the state in reaching the conclusion
[13]
Although not listed as a ground of appeal, Mr Pieterse both in his
heads of argument
[7]
and in
submission before us responsibly did not attempt to convince us that
the appellant was not informed at the commencement
of the trial of
the minimum sentences applicable on counts 1 and 2 which would have
caused appellant to conduct his defence differently.
It is clear from
the record that the trial court, before the appellant (and his
co-accused) were requested to plead, not only explained
the
provisions of the CLAA, but also requested each accused whether they
had been informed of the position by their respective
legal
representatives. Appellant so confirmed to the learned judge.
[8]
Accordingly there is no merit in this point of appeal taken by the
appellant. The appellant also bemoaned the fact that the indictment
did not indicate that the accused had acted with a common purpose in
the commission of the crimes. The record reflects that the
indictment, together with the summary of substantial facts attached
thereto, was read into the record. There is likewise no merit
in this
contention.
[14]
It follows that the trial court’s finding that the three
accused plotted, planned and executed
the murder does not stand to be
interfered with by this court and that the appeal against the
convictions stands to be dismissed.
[15]
In respect of sentencing, the appellant in his notice of leave to
appeal relied on the grounds
that the sentence was shockingly harsh
and disproportionate.
[9]
As
counts 1 and 2 involved the consideration of whether substantial and
compelling circumstances exist which would cause
the trial court to
deviate from the minimum mandatory sentences, the trial court duly
considered and applied the tests enunciated
in
S
v Malgas
.
[10]
The personal circumstances of appellant, the gravity of the offences
of which he had been convicted and the interest of society
were
considered by the trial court. The court found that, although the
appellant was a first offender, the heinousness of the murder
by
having the vulnerable 26-year old deceased strangled coupled with a
complete lack of remorse, by far outweighed the factors
in mitigation
of sentence. In my view the trial court did not err in concluding
that the aforementioned factors did not constitute
substantial and
compelling circumstances which would have caused him to deviate from
the minimum sentences prescribed by the legislator
in respect of
counts 1 and 2.
[16]
It follows thus that the appeal against the sentences imposed by the
trial court, stands to suffer
the same fate as the appeal against the
conviction and stands to be dismissed.
[17]
Accordingly the following order is made:
The appeal against the
convictions and sentences is dismissed.
C REINDERS, J
I
concur.
VELE, AJ
On
behalf of the Appellant:
Adv
KF Pieterse
Instructed
by:
Peyper
& Botha Attorneys
BLOEMFONTEIN
On
behalf of the Respondent:
Adv
LP Mpemvane
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
[1]
Act
10
of 2013.
[2]
S
14(5) provides:
“
If, at any
stage during the hearing of any matter by a full court, any judge of
such court is absent or unable to perform his
or her functions, or
if a vacancy among the members of the court arises, that hearing
must—
(a)
if the remaining judges constitute a majority of the judges
before whom it was commenced, proceed before such remaining judges;
or
(b)
…
if the remaining judges do not constitute such a
majority, or if only one judge remains, be commenced
de
novo,
unless all the parties to the proceedings agree
unconditionally in writing to accept the decision of the majority of
the remaining
judges or of the one remaining judge as the decision
of the court.”
[3]
Act 105 of 1997.
[4]
1937
(AD) 370 at 373.
[5]
Compare:
S
v Mafaladiso and Another
2003 (1) SACR (3).
[6]
S
v Hadebe and Others
1979
(2) at 645.
[7]
Heads
of Arguments p 4-5 paragraphs 14-17.
[8]
Record
Vol 2 p101 at lines 9-22.
[9]
Record
Vol 1 p96 paragraphs 2.1 and 2.2.
[10]
2001 (1) SACR 469
(SCA).