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2022
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[2022] ZAFSHC 363
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Masetla v S (A01/2022) [2022] ZAFSHC 363 (27 September 2022)
IN THE HIGH COURT OF SOUTH
AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
APPEAL
NUMBER: A01/2022
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
TSEKO
JOHANNES MASETLA
APPELLANT
and
THE
STATE
RESPONDENT
HEARD
ON:
30 MAY 2022
CORAM
:
NAIDOO,
J et De KOCK AJ,
JUDGMENT
BY:
NAIDOO,
J
DELIVERED
ON:
27
SEPTEMBER
2022
[1]
The
appellant, who was one of two accused and appeared as accused 2, was
convicted on 19 June 2019, in the Welkom Regional Court,
on one count
of murder, and sentenced to life imprisonment. The appellant
approaches this court in terms of
his
automatic right of appeal, and the appeal lies against both his
conviction and sentence. Adv (Mr) P Mokoena appeared for the
appellant and Adv (Mr) M Strauss for the respondent.
[2]
The
Appellant’s grounds of appeal against the conviction and
sentence are, in essence, that in respect of the convictions,
the
court
a
quo
erred in finding that:
2.1
There
were no improbabilities in the state’s case;
2.2
The
complainant’s version was satisfactory in all material respects
and that the court could rely on such evidence;
2.3
the
evidence of the complainant, can be criticised in detail only,
whereas the evidence was contradictory in nature
2.4
not
properly analysing and evaluating the state’s evidence and
rejecting the version of the appellant as not being reasonably
possibly true;
In respect of sentence, the court
erred by:
2.5
imposing
a sentence that is strikingly inappropriate, excessive and which
induces a sense of shock;
2.6
over-emphasising,
inter
alia
,
the interests of the community and the seriousness of the offences
over the personal circumstances of the appellant;
[3]
The background to this matter, briefly, is that
on
the morning of 1 January 2018, Mpho Archibolt Motsekoa (the deceased)
and his girlfriend, Dietsekeng Patricia Dikane (Dietsekeng)
were at a
tavern in Thabong in Welkom, celebrating the New Year. They were
enjoying a few drinks when the appellant, accused 1
and another
person arrived at the tavern. Accused 1 asked the deceased where the
owner of the tavern is, to which the latter replied
that he was
inside the house. Accused 1 went into the house, while the appellant
remained outside. He began insulting the deceased,
which seems to
have been a follow on from an incident that took place earlier in the
week, when the appellant quarrelled with the
deceased.
Thereafter the appellant, accused 1 and the other person left the
premises. A while later, the deceased and Dietsekeng
decided to go to
another tavern.
[4]
On the way there, they
encountered the appellant, accused 1 and the third person again. A
confrontation between the deceased and
appellant ensued, resulting in
them slapping each other. At this stage, accused 1 drew a knife and
approached the deceased, who
ran away. He was pursued by accused 1
onto a neighbouring property, where accused 1 stabbed the deceased in
the chest area. Thereafter
the appellant came to the deceased who was
lying on the floor, being held by Dietsekeng. He pulled Dietsekeng
away from the deceased
and stabbed the him twice. The appellant,
accused 1 and the other person then left the scene. Dietsekeng, who
was the only eye
witness and who testified for the state, indicated
that the area was well lit, and she was able to see everything that
happened.
The appellant and accused 1 were well known to her and the
deceased.
[5]
The version of the appellant and accused 1 was similar to that of the
state, agreeing
in most respects with the version tendered by
Dietsekeng. The point of departure was their participation in the
stabbing of the
deceased. The appellant and accused 1 alleged that
Dietsekeng was so drunk that she could not have observed them. When
they arrived
at the tavern she was leaning against the deceased in a
way that she looked like she had a blackout. Dietsekeng’s
version
is that she only met the deceased after midnight, on her
return from greeting her family and the parents of the deceased. She,
the deceased and another friend drank two quarts of beer amongst
them. She only started drinking after she met the accused in the
early hours of 1 January 2018. She testified that she was only
moderately intoxicated and was able to see everything that happened
during the incident.
[6]
An inspection
in loco
was also conducted at the request of the accused 1. The court placed
on record a detailed note of the observations of the scene
at the
inspection
in loco
,
and both the appellant and accused 1 agreed with such observations.
The court, thereafter, undertook a detailed analysis of the
versions
of the state and the appellant.
As
correctly pointed out by the court
a
quo
,
the state bears the onus to prove the guilt of an accused beyond
reasonable doubt and that the accused person bears no onus to
prove
his innocence. It was asserted that there were discrepancies in
Dietsekeng’s evidence in that prior to the inspection
in
loco
,
she indicated that she entered the neighbouring yard closer to the
feet of the deceased, as depicted in the photograph album handed
in
as an exhibit. After the inspection she changed her version, alleging
that she entered that yard from the side closer to the
head of the
deceased. Much was also made of the position of the lights
referred to by the witness and observed during the
inspection. Hence,
it was argued that her evidence is unreliable and should have been
rejected.
[7]
It is noteworthy that these aspects were not canvassed with the
witness or even raised
when the court sought confirmation of its
recording of what transpired during the inspection
in loco
.
The court, in its evaluation of the evidence, dealt with the aspect
of the entrance through which the witness says she entered
the yard
where the deceased was stabbed. In my view, the court correctly found
that it was more a question of the orientation of
the witness when
viewing the photographs than a discrepancy. Once she viewed the scene
during the inspection, she was able to correct
her evidence in this
regard. With regard to the lighting, the court pointed out that the
inspection
in loco
was held at the insistence of accused 1 who
was adamant that there was no electric light close to where the
deceased was stabbed.
The inspection in fact revealed that there was
indeed a light where the witness said it was. In any event, the
appellant confirmed
that there was lighting in that area and that
visibility was good. I pause to mention that during oral evidence in
court, Mr Mokoena
conceded that the only discrepancy that he could
find in Dietsekeng’s evidence was in respect of whether she
approached that
deceased from the head or his feet. Mr Mokoena also
conceded that court
a quo
had dealt appropriately with this
discrepancy.
[8] The task of analysing and
evaluating evidence is vested in the trial court. An appeal court is
limited in its ability
to interfere with the trial court’s
conclusions, and may not do so simply because it would have come to a
different finding
or conclusion. The trial court’s advantage of
seeing and hearing witnesses places it in a better position than a
court of
appeal to assess the evidence, and such assessment must
prevail, unless there is a clear and demonstrable misdirection. This
is
a principle that is well established in our law.
[9]
In
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 705
the majority, per Greenberg JA and Davis AJA (Schreiner dissenting)
said: “The trial court has the advantages, which the
appeal
judges do not have, in seeing and hearing the witness and being
steeped in the atmosphere of the trial. Not only has
the trial
court the opportunity of observing their demeanour, but also their
appearances and whole personality. This should not
be overlooked.”
A similar view was adopted in
S
v Pistorius
2014 (2) SACR 315
(SCA) par 30,
which
cited,
inter
alia
Dhlumayo
with
approval
:
“
It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo and Another
1948
(2) SA 677
(A) at 706;
S
v Kebana
[2010]
1 All SA 310
(SCA) para 12. It can hardly be disputed that the
magistrate had advantages which we, as an appeal court, do not have
of having
seen, observed and heard the witnesses testify in his
presence in court. As the saying goes, he was steeped in the
atmosphere of
the trial. Absent any positive finding that he was
wrong,
this
court
is
not at liberty to interfere with his findings.”
[6]
As indicated earlier, the trial court, in this matter, undertook a
comprehensive analysis
of the evidence for the state and the
appellant. The court compared the evidence of Dietsekeng with that of
the appellant and his
co-accused and listed the similarities in both
versions, which led to the court accepting the version of the state
witness as reliable
and credible. The court also correctly rejected
the appellant’s version that the state witness was so drunk
that she had
passed out.
[7]
I am unable to fault the
reasoning of the magistrate in concluding that the evidence of the
state witness was reliable and credible,
and that the version of the
appellant and his co-accused was so improbable that it could be
rejected as not being reasonably possibly
true. The concessions made
by Mr Mokoena, which I have mentioned earlier, are further
fortification for the correctness of the
magistrate’s
reasoning.
In
view of what I have said, the appellant’s grounds of appeal,
which I have listed above, cannot be sustained.
[8] With
regard to sentence, Mr Mokoena argued that his instructions were that
the court should have taken
into account that liquor might have
played a part in the commission of the offence, and that twelve
years’ imprisonment would
have been an appropriate sentence.
The state argued that the appellant had a previous conviction and
that court’s reasoning
in respect of sentence was correct,
rendering the sentence of fifteen years’ imprisonment
appropriate. The sentence was not
shockingly harsh or inappropriate.
I point out that the court did in fact consider that the accused as
well as the Dietsekeng and
the deceased had consumed alcohol while
celebrating the New Year, but that it was satisfied that alcohol did
not play a part in
the commission of this offence.
[9]
With
regard to sentence, it is well established that
sentencing
is a matter which is within the discretion of the trial court. It is
trite that an appeal court will only interfere with
a sentence if the
trial court misdirected itself in imposing sentence or its discretion
is vitiated by irregularity, or if the
sentence is unreasonable,
unjust or disproportionate to the offence. This trite principle has
been well settled in our law, and
was succinctly enunciated
approximately 47 years ago in the case of
S
v Rabie 1975(4) 855 (A) at 857
,
where Holmes JA said:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
a
Judge, the
Court hearing the appeal –
(a)
should
be guided by the principle that punishment is
"pre-eminently
a matter for the discretion of the trial Court";
and
(b)
should
be careful not to erode such discretion: hence the further principle
that
the sentence should only be altered if the discretion has not been
"judicially
and properly exercised".
2.
The test under
(b)
is whether the sentence is
vitiated by irregularity or
misdirection
or is disturbingly inappropriate”.
This principle was subsequently
re-iterated in the much-quoted case of
S v Malgas 2001(1) SACR,
469 (SCA)
at, 478 para12
, where the court remarked that:
“…
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate Court is of course entitled to consider
the question of sentence afresh…”.
[11]
In this matter, the personal circumstances of the appellant placed on
record are that he was
a 33 year old unmarried man who was casually
employed, earning between R1000.00 and R1500.00 per month. He has two
minor children
from two different women. He has two previous
convictions for assault, and his legal representative conceded that
this was indicative
of violent tendencies on his part.
[12]
The trial court’s comprehensive analysis of the various
factors, as well as the law, relevant
to sentencing in this matter
cannot be faulted, and I am unable to find any misdirection in the
imposition of the sentence in this
matter. The seriousness of the
offence in this matter is deserving of harsh sanction, and I am of
the view that the sentence of
fifteen years’ imprisonment is
neither shocking nor inappropriate.
[13]
In the circumstances, the following orders are made:
13.1
The appeal against the conviction and sentence is dismissed.
13.2
The conviction and sentence imposed on the appellant are confirmed.
NAIDOO, J
I
concur.
D.
DE KOK, AJ
On
behalf of appellant:
Adv
P Mokoena
Instructed
by:
Legal
Aid South Africa
Bloemfontein
Local Office
On
behalf of respondent:
Adv.
M Strauss
Instructed
by:
The
Office of the DPP
BLOEMFONTEIN