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[2023] ZAECMKHC 30
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Van Tonder v S (CA&R 125/2022) [2023] ZAECMKHC 30 (14 March 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
Case no: CA&R
125/2022
In the matter between:
MORNE VAN
TONDER
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
Govindjee J
[1]
The appellant was convicted of murder
(count 1), theft (count 2) and two counts of negligent driving
(counts 3 and 4). He was sentenced
by the Regional Court in Gqeberha
to 20 years’ imprisonment on count 1, five years’
imprisonment on count 2, and six
months’ imprisonment each for
counts 3 and 4. The sentences were not ordered to run concurrently,
so that a sentence of 26
years’ imprisonment was effectively
imposed. On petition, the appellant obtained leave to appeal against
his conviction and
sentence. As to his conviction, the appellant
argues that the magistrate erred in finding that the state had proved
his guilt beyond
reasonable doubt. The main basis for this argument
is that the court a quo erred in accepting the evidence of the
appellant’s
ex-wife, who was potentially biased against him,
and because the court relied on the evidence of a single witness
testifying about
a matter of identification, whose evidence should
have been treated with caution. As there was nothing inherently
improbable in
the version of the appellant, it was argued that it was
reasonably possible that he was not the person who murdered the
deceased.
Regarding sentence, it was submitted that the trial court
failed to properly appreciate the time spent by the appellant in
custody
awaiting trial, and that his state of mind (he was under the
influence of intoxicating liquor and drugs during the incident)
should
have counted as a mitigating factor. The court a quo ought not
to have imposed a sentence five years in excess of the prescribed
minimum sentence for count 1, and the cumulative effect of the
sentences was unduly harsh. The sentence imposed was, it was argued,
reflective of a material misdirection on the part of the magistrate.
[2]
Much of the factual matrix of the case is
not in dispute. The appellant and deceased knew each other. The
deceased visited the appellant’s
home on the day in question.
They subsequently spent time together at the deceased’s flat,
consuming drugs and alcohol. It
is common cause that the appellant
was at the home of the deceased on the night in question, returning
to his home, where his ex-wife
lived, sometime during the early hours
of the following morning. He did so wearing a different top than he
had worn when he had
accompanied the deceased to his house to drink
with him. Given the available DNA evidence, and the appellant’s
own testimony,
it may be accepted that he had been wearing socks when
he stepped in the blood of the deceased prior to leaving the
deceased’s
home.
[3]
Various witnesses were called to prove that
it was the appellant who stabbed the deceased to death, and that he
subsequently drove
the deceased’s car and was involved in an
accident. The state relied, in particular, on the following two
witnesses. Firstly,
Mr Edward Vorster (‘Vorster’)
identified the appellant running past him close to the scene of a
motor vehicle accident
in the vicinity of M[...] Street just after
midnight. Secondly, the appellant’s ex-wife, Ms van Tonder
(‘Van Tonder’),
testified that the appellant had admitted
to her that he had stabbed the deceased. The outcome of the
post-mortem examination reflects
that the deceased’s injuries
had mainly been caused by a knife. In addition to two bruises, there
were 14 knife wounds and
various injuries to the deceased’s
face. It must be accepted that the murder weapon, containing the
deceased’s blood,
was found on the scene. The appellant’s
DNA was found on the steering wheel of the deceased’s vehicle.
[4]
The appellant’s version was that the
deceased had made sexual advances towards him. He had lay down on the
deceased’s
bed. Another man, now deceased, had arrived with two
associates, one of whom had assaulted the deceased. He had left the
deceased’s
home on foot and been robbed of the blue top he had
been wearing, obtaining a red top en route to his home.
The judgment
[5]
The court a quo was alive to the fact that
there was no direct evidence that the appellant murdered the
deceased, or that he had
driven the vehicle of the deceased. The
conviction was premised on the available circumstantial evidence, the
court concluding
that the only reasonable inference to drawn, to the
exclusion of all other reasonable inferences, was that the appellant
was guilty
of murder, theft and two counts of negligent driving. The
analysis proceeded as follows:
‘
The
circumstantial evidence is that he was indeed there at the residence
of the deceased. That he admitted to his ex-wife that he
had stabbed
the deceased and that he came from the direction of where the vehicle
had been involved in an accident. The witness
who saw him coming from
the direction of the vehicle made a good impression on me. I am
convinced that he was an honest and credible
witness. The same may be
said of his ex-wife. As I have already said she was very offended
when it was put to her that he never
told her that he had stabbed the
deceased. I accept the evidence of these two witnesses. The accused’s
denial in this regard
… is thus rejected as false. I am
satisfied that the State has proven beyond reasonable doubt that he
caused the death of
the deceased and that he then took his vehicle
and raced away in it before getting into an accident with it …
I am however
satisfied that he caused the death of the deceased and
if one bears in mind the injuries inflicted as they appear from the
post
mortem report it is clear that he had direct intent to kill the
deceased.’
The law
[6]
Appeals
on fact are disposed of in accordance with the principles set out in
R
v Dhlumayo and Another
.
[1]
There is a presumption that the trial court’s evaluation of the
evidence is correct and it will only be disregarded if it
is clearly
wrong.
[2]
In the absence of any
misdirection, the trial court’s conclusion, including its
acceptance of particular evidence, is presumed
to be correct:
‘
In
order to succeed on appeal [the appellant] must therefore convince us
on adequate grounds that the trial Court was wrong in accepting
[the]
evidence – a reasonable doubt will not suffice to justify
interference with its findings … Bearing in mind the
advantage
which 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 a trial Court’s evaluation of oral
testimony.’
[3]
[7]
It
is trite that conviction on the evidence of a single witness is
possible, and that there is no rule of thumb test or formula
to apply
when it comes to consideration of the credibility of the single
witness.
[4]
Where the identity
of the perpetrator of a crime depends on human observation and is in
dispute, the court must exercise caution
in carefully considering all
the surrounding circumstances before deciding whether the state has
proved beyond reasonable doubt
that the accused is the perpetrator.
Reliability of observation is also of fundamental importance. As the
Court held in
S
v Mthetwa
:
[5]
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends on various
factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as to
time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused’s
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case
are not individually decisive,
but must be weighed one against the other, in the light of the
totality of the evidence, and the
probabilities…”
[8]
The
best indication of whether appropriate caution was applied by the
trial court to the evaluation of the evidence is to be found
in its
reasons for judgment.
[6]
It is
evident that the court a quo thought highly of the evidence of the
single witness who identified the appellant shortly after
the vehicle
collision. The court failed, however, to engage with the reliability
of that witness’ observations given that
the identification of
the appellant close to the scene of the collision is in issue. There
is no reflection in the judgment to
suggest that the various
considerations in respect of identification were properly appreciated
and, ultimately, little explanation
as to why Vorster’s
evidence regarding identification was reliable.
[7]
That shortcoming amounts to a material misdirection of fact. The
consequence is that this court is at liberty to disregard the
presiding officer’s findings on fact, even though based on
credibility, in whole or in part according to the nature of the
misdirection and the circumstances of the case, and to come to its
own conclusion on the matter.
The evidence
[9]
The evidence reflects that a person driving
a white Kia, owned by the deceased, had been trying to exit the
parking area of the
block of flats where the deceased lived,
colliding with other parked vehicles in the process. Approximately
ten or fifteen minutes
later, the Kia was observed approximately two
kilometres from the block of flats. It had seemingly been involved in
an accident
and had overturned.
[10]
Vorster testified that he knew the
appellant because his ex-wife had previously pointed him out, while
they had been driving, as
the father of her child. On the night in
question, just after midnight, he had observed a vehicle travelling
at high speed near
the stadium, losing control as it came around a
bend, overturning and crashing. The lighting at the scene of the
collision was
poor. A person was observed running towards him.
Vorster recognised that it was the appellant, based on his facial
features. Vorster
spoke to him and asked him if he was alright or
required any assistance. The appellant replied that he thought he was
in trouble
and continued running.
[11]
During cross-examination, Vorster explained
that he had seen the appellant on more than five occasions, but not
for a few months
prior to the incident. He had never spoken to him
but had seen him at least twice when he stood on the pavement. He had
not seen
any person exiting the vehicle and the entire incident had
occurred very quickly. The person he had seen had tattoos on his neck
and a small goatee and the street lights made it possible for him to
observe that it was the appellant. They had encountered one
another
under a light. On the appellant’s version he did not encounter
Vorster at all when he walked home from the deceased’s
flat.
[12]
Van Tonder testified she had been married
to the appellant for 14 years prior to their divorce. The appellant
had woken her after
midnight on the night of the incident. He was
drunk and told her he had been robbed. He was now wearing a red top,
having left
her home wearing a dark navy top. The appellant indicated
to her that he had returned to the deceased’s flat after being
robbed, and that the deceased had dropped him off.
[13]
Van Tonder and the appellant had an
altercation sometime during January 2019. He had been away for some
time but had returned. The
appellant then admitted that he had
stabbed the deceased with a knife he had found in the kitchen. Van
Tonder had conveyed the
information to Warrant Officer Steyn.
[14]
During cross-examination, the witness
admitted to selling drugs at the time of the incident, also to the
deceased. She had been
arrested after the appellant, who also used
drugs, had reported her to a detective. She had been in prison for
two days. While
she had been angry with him, she had allowed him to
live with her as he had no place to go. The deceased and the
appellant had
left her home together with a bag of drugs, driving in
a white vehicle. The appellant was usually clean shaven, but
sometimes sported
a goatee. At the time of the incident the appellant
had been clean shaven.
[15]
Van Tonder appeared incredulous when
confronted with the notion that she had lied in order to obtain
revenge for her own imprisonment:
‘
Van
Tonder:
I was angry with him at that time.
Ms Baatjes: And
you are still angry.
Van Tonder: I can’t
still hold that against him now but yes, at that time I was very,
very angry with him.
Ms Baatjes:
And he says that is why you went to speak to the police about this
case.
Van Tonder: About this
case?
Ms Baatjes: Yes.
Van Tonder: I felt that
it was my right to tell them what he had told me about this.
Ms Baatjes: And to
go and speak untruths to the police about him.
Van Tonder: Untruths?
Ms Baatjes: Yes.
Van Tonder: What untruths
did I go and discuss with them?
Ms Baatjes: About
these things that he allegedly told you.
Van Tonder: Just say that
again?
Ms Baatjes: He
says that you went and reported untruths to the police about things
that you say he did such as that he was
angry with the deceased
because he allegedly said something bad about you.
Van Tonder: So you mean
he wants to say that I made these things up because he had me locked
up? I would never do such a thing…He
is lying, he is a liar…He
was still living with me, I was still accommodating him…that
is the father of my child.’
Analysis
[16]
On his own version it must be
accepted that the appellant was on the scene at the time of the
deceased’s murder. It is not
in dispute that he stepped in the
blood of the deceased while exiting the flat. It is also apparent
that the deceased’s vehicle
was driven after his death. The
driver drove poorly, colliding with other vehicles in the parking
area, cornering at high speed
and causing the vehicle to roll.
Vorster’s evidence that he saw the appellant coming towards
him, in a state of shock, soon
thereafter, requires careful
consideration and a measure of caution. While the lighting where the
collision occurred was poor,
Vorster was standing under a street lamp
when he encountered the person he believed was the appellant. Given
the collision that
had occurred, and the pace with which he was
approached, it is apparent that the scene was fast moving. But
Vorster saw the person
at close quarters and spoke to him with
apparent concern. Importantly, it is plausible that he would have
recalled the facial features
of the appellant, including his tattoos,
when his ex-wife pointed him out as the father of her child. Given
the previous relationship
between the appellant and his ex-wife,
Vorster would have remembered what he looked like and testified that
he had seen him on
a few occasions. He recognised him that evening
based on his facial features, in particular his tattoos and a goatee.
The latter
feature is questionable given Van Tonder’s testimony
that the appellant was usually clean shaven, and the appellant’s
own version in that respect, although it is apparent that the
appellant sported a small goatee during his trial. Nevertheless,
considering the various factors relating to the identification of the
appellant near the scene of the collision, in the light of
the
totality of the evidence and the probabilities, it was indeed the
appellant that was the driver of the vehicle. This conclusion
is
supported by various factors, including his state of intoxication at
the time, which is consistent with the poor driving observed
by the
witness at the block of flats and by Vorster. His DNA was also found
on the steering wheel. On his own version he did not
notice or hear
anybody else driving the deceased’s vehicle when he left the
flat, having stepped in the deceased’s
blood. The overwhelming
probabilities are that he drove the vehicle in leaving the scene of
the crime.
[17]
Van Tonder’s evidence regarding the
admissions made by the appellant was, in my view, correctly accepted
by the magistrate,
who was impressed by her testimony. The record
reflects that her evidence was consistent and clear, and that she was
an excellent
witness. She had no difficulty in conceding her own
involvement with drugs, explained her initial anger towards the
appellant when
he had reported her to the police, and the cogent
reasons why she had allowed him to live with her thereafter. Her
conduct in reporting
what he had told her to the police was
independently motivated, and not a fabrication borne out of revenge.
The conversation between
the appellant and Van Tonder confirms what
is clear from analysis of the appellant’s own version. He
offered the most improbable
of narratives as a counter to his own
involvement in the deceased’s death. The notion that he may
have half slept through
a vicious attack, involving multiple stab
wounds and the deceased bleeding to death in the room where he lay,
is far-fetched. Even
accepting that he was under the influence of
alcohol and drugs at the time, the conduct he described, on his own
version, is implausible.
To walk over the deceased’s body, step
in his blood, leave the scene without raising any alarm, return home
and not mention
a word of the stabbing of his long-time acquaintance
to Van Tonder, beggars’ belief. There are also the unexplained
inconsistencies
in his version regarding how he came to change his
top during the course of events. This conclusion is consistent with
the magistrate’s
assessment of Van Tonder’s evidence, and
the rejection of the appellant’s version. That version was not
reasonably
possibly true. While the magistrate erred in failing to
explain the reasons for the acceptance of Vorster’s
identification
of the appellant, no mistake was made in convicting
the appellant.
Sentence
[18]
It is open to a court of appeal to
interfere with a sentence that is excessive or disturbingly
inappropriate.
Mrs Obermeyer
conceded, correctly, that this was the case given the circumstances
of the matter.
[19]
The presiding officer appeared to
over-emphasise the appellant’s prior convictions, the
seriousness of the various offences
and the evidence in aggravation,
while underplaying the fact that he had been in custody awaiting
trial since 2019, a period in
excess of three years. No mention was
made of the effect of alcohol and drugs on the sentence to be
imposed. Improper consideration
was also given to the cumulative
effect of the sentences imposed. Considering all the circumstances,
the difference between the
sentence imposed and the sentence that
this court would have imposed had it been sitting as the trial court.
As such, the inference
can be drawn that the trial court acted
unreasonably, and therefore improperly. This warrants this court’s
alteration of
sentence. Considering all the circumstances a sentence
of fifteen years’ imprisonment for the murder conviction would
be
appropriate, the sentences for the other convictions to run
concurrently.
Order
[20]
The following order will issue:
1.
The appeal against conviction is dismissed.
2.
The appeal against sentence is upheld.
3.
The sentence imposed is set aside and the
following is substituted for it:
‘
Count
1: 15 years’ imprisonment;
Count 2: 5 years’
imprisonment;
Count 3: 6 months’
imprisonment;
Count 4: 6 months’
imprisonment
The sentences imposed on
counts 2, 3 and 4 are to run concurrently with the sentence imposed
on count 1.
The accused is deemed
unfit to possess a firearm.’
4.
In terms of s 282 of the Criminal Procedure
Act, 1977 (Act 51 of 1977), the substituted sentence is antedated to
30 May 2022, being
the date on which the appellant was sentence.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
G BLOEM:
I agree
G BLOEM
JUDGE OF THE HIGH
COURT
Heard:
08 March 2023
Delivered:
14 March 2023
Appearances:
For
the appellant:
Adv
Geldenhuys
Instructed
by:
Legal-Aid
South Africa
69
High Street
Makhanda
6140
046
622 9350
For
the respondent:
Adv
Obermeyer
Instructed
by:
Director
of Public Prosecutions
Makhanda
046
602 3000
[1]
R
v Dhlumayo and Another
[1948]
2 All SA 566 (A); 1948 (2) SA 677 (A).
[2]
See
S
v Francis
1991 (1) SACR 198 (A).
[3]
S
v Francis
ibid
at 204
c-f
.
[4]
S
v Sauls and Others
1981
(3) SA 173
(A) at 179G-180G.
[5]
S v
Mthetwa
[1972]
3 All SA 568
(A);
1972 (3) SA 766
(A) at 768A-C.
[6]
S
v Ergie
2021
(1) SACR 127
(WCC) para 6.
[7]
See
Schoonwinkel
v Swart’s Trustee
1911 TPD 397
at 401.