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[2022] ZANCHC 79
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Madyavanhu and Others v S (K/S 38/2016) [2022] ZANCHC 79 (21 October 2022)
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
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: K/S 38/2016
Heard
on: 08/08/2022
Delivered
on: 21/10/2022
Reportable
Yes/No
Circulate
to Judges Yes/No
Circulate
to Magistrate Yes/No
Circulate
to Regional Magistrate Yes/No
MADYAVANHU
,
CLIFFORD
FIRST APPELLANT
MRHASHULA
,
ZAMAXOLO
SECOND APPELLANT
Geswind
, BRUCE
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Nxumalo, J
et
Kgopa, AJ
et
Stanton, AJ
JUDGMENT
Per
Kgopa AJ
INTRODUCTION
1.
The
appellants were convicted and sentenced on 19 September 2019 in the
Gariep Circuit Court, sitting in Upington, Northern Cape
on charges
of contravening
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act 32 of 2007
i.e.
rape;
[1]
robbery with
aggravating circumstances
[2]
and
murder.
[3]
Counts 1 and 3 were
read with
section 51(1)
of the
Criminal Law Amendment Act 105 of
1997
; while count 2 was read with
section 51(2)
thereof.
[4]
2.
Section 3
of Act 32 of 2007, expressly stipulates that any person who
unlawfully and intentionally commits an act of sexual penetration
with
a complainant, without the latter’s consent, is guilty of
the offence of rape. Section 51 (1) and (2), severally stipulates
as
follows, in turn:
“
51
Minimum sentences for certain serious offences
(1)
Notwithstanding any other law but subject to subsections (3) and (6),
a Regional Court or High Court shall
sentence a person it has
convicted of an offence referred to in Part I of Schedule 2 to
imprisonment for life.
(2)
Notwithstanding any other law but subject to subsections (3) and (6),
a Regional Court or a High Court shall
sentence a person who has been
convicted of an offence referred to in:
(a)
Part II of Schedule 2, in the case of—
(i)
a first offender, to imprisonment for a period not less than 15
years;
(
ii)
a second offender of any such offence, to imprisonment for a period
not less than 20 years;
and
(iii) a third or
subsequent offender of any such offence, to imprisonment for a period
not less than 25 years;
(b)
Part III of Schedule 2, in the case of—
(i)
a first offender. to imprisonment for a period not less than 10
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 15 years;
and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less
than 20 years;
(c)
Part IV of Schedule 2, in the case of—
(i)
a first offender. to imprisonment for a period not less than 5 years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than 7 years;
and
(iii)
a third or subsequent offender of any such offence, to imprisonment
for a period not less than
10 years; and
(d)
Part V of Schedule 2, in case of –
(i)
a first offender, to imprisonment for a period of not less than 3
years;
(ii)
a second offender of any such offence, to imprisonment for a period
not less than
5 years; and
(iii)
a third or subsequent offender of any such offence, to imprisonment
of a period not less
than 7 years:
Provided that the
maximum sentence that a regional court may impose in terms of this
subsection shall not be more than five years
longer than the minimum
sentence that it may impose in terms of this subsection by more than
five years.”
THE
IMPUGNED CONVICTION AND SENTENCE
3.
The appellants were convicted on all counts and subsequently
sentenced to life imprisonment,
on counts 1 (rape) and 3 (murder);
and a period of 10 years, on count 2 (robbery). All sentences were
ordered to run concurrently.
Thereafter, the appellants lodged an
application for leave to appeal against conviction, which was granted
by the trial court on
the 20 August 2020. The appeal is directed
against the appellants’ convictions and resultant sentences of
life imprisonment.
4.
They maintained their innocence and averred that at all material
times hereto,
they were at their respective homes and therefore could
not have been together in one place to commit the crimes they are
convicted
of. They also maintain that the trial court erred in
accepting and finding the evidence on their identity and other
evidence reliable.
They contended that, regard being had to the facts
and circumstances of this case, there were material contradictions in
the state’s
evidence. That the main witness on their identity,
one J [....] D [....], actually lied or perjured himself in his
police statements
and in court such that his evidence should not have
been accepted by the trial court to convict them.
5.
It is good to remember that contradictions in and of themselves, if
they be such
do not inevitably lead to the rejection of a witness’s
evidence. As Nicholas J observed in
S v Oosthuizen
1982 (3) SA
571
(T) at 576 B – C, they may simply be indicative of an
error. At 576 G – H of the same judgment, the learned Judge
stated
that:
“
It is not every
error made by a witness that affects their credibility, in each case,
the trier of fact has to make an evaluation,
taking into account such
factors as the nature of the contradictions, their number and
importance, and their bearing on other parts
of the witness’
evidence.
”
[5]
6.
With regard to the impugned sentence, they contended that the trial
court erred
in not finding substantial and compelling circumstances
when sentencing them to life imprisonment. They contended the
sentence
imposed was shockingly harsh and inappropriate. They vied
that their convictions and sentence fell to be set aside.
BRIEF
STATEMENT OF THE RELEVANT FACTS
7.
The incidents apparently took place on the 12 July 2015, in the early
hours of
the morning, in Pabalello location, behind the stadium in a
hole-like, rocky and bushy area in Upington. On that day, the body of
the deceased, one Ms Stefanie Daries, was discovered. She was found
half naked with only a red top pulled up her upper body; her
legs
spread apart; and her hands tied together with pantyhose. She had no
shoes on and her blue jean-pants covered her face. She
had suffered a
wound to the head, another to the right and close to the front or the
forehead, with traces of blood on it.
8.
There were no arrests relating to the incident between 2015 and 2018.
The Investigating
Officer, Warrant Officer Venter attached to the
murder unit of the South African Police in Upington, testified that
it was a hard
case to crack. That members of the community of
Pabalello generally did not want to get involved and feared for their
lives or
physical security if they came forward. Consequently, the
arrest of the accused were only effected after a certain witness, one
Mr J [....] D [....], made a statement identifying the perpetrators
as the three appellants.
BRIEF
OVERVIEW OF THE RELEVANT EVIDENCE
Doctor
Isaacs
9.
Doctor Isaacs, the pathologist who testified on behalf of the State,
testified
that he conducted a post mortem on the body of the deceased
on the 14 July 2015. In court, he was showed the pictures taken of
the scene and the deceased as found or discovered. He opined that
with her position where found with hands above her head and stretched
out and legs spread open, the possibility was she was dragged to the
scene or was held in that position prior her death and remained
so
after her passing.
10.
According to Doctor Isaac’s autopsy report, the chief autopsy
findings were as follows:
(a) degloving lacerative wound on the
forehead; (b) Four limb stellate lacerative wound of 10 cm of the
right temporofrontal area,
with underlying depressed skull fracture;
(c) lacerative wound of 10 cm at the back of the head on the right;
(d) lacerative wound
of 5 cm of the occipital area, with underlying
depressed skull fracture; (e) bruise of the inside of the lower lip
opposite the
lower two incisor teeth; (f) ten linear superficial
scratches of the back and buttocks; (g) circumferential superficial
lacerations
at the vaginal entrance in the positions 1,3,5,7 and 10
o’ clock, with associated bruising; and subarachnoid bleeding
of
the left temporal, left frontal and right frontal areas. With
regard to the vaginal injuries, the Doctor testified that same were
indicative of forceful sexual penetration or sexual assault. The
cause of death was recorded as blunt trauma to the head whilst
the
manner of death as homicide or unnatural death.
11.
It can be deduced from the evidence of the doctor, that the deceased
was not only murdered
but was also forcefully sexually penetrated,
the latter being indicative of non-consensual sexual intercourse.
Ms
M [....] F [....]
12.
According to Ms F [....] the deceased, her cousin, was staying at
Grootdrink informal settlement.
Ms F [....] testified about the
alleged incidents of the night of Saturday 11 July 2015 going into
the early morning of Sunday
12 July. According to her, on the former
date she, the deceased and others went out for drinks at one tavern
called Vuyo’s.
On the night in question, the deceased was
wearing a black jacket, a red long sleeve top, blue jeans and black
boots. The latter
had a shiny object or something. She testified that
Vuyo’s tavern is situate somewhere in Pabalello, Upington and
that they
arrived at the said tavern at approximately 20h00. On this
occasion, it was her second visit to this tavern and for the
deceased,
her first. She denied, ever being in the company of one J
[....] 1, as testified by one Mr J [....] D [....] for the State,
during
the trial.
13.
According to her, neither she nor anyone in her company paid any
attention to the deceased’s
whereabouts or interactions, whilst
they drank and danced in the said tavern. Sometime before midnight,
the deceased handed her
the jacket she was wearing and went on to
mingle in the tavern and return to the dance floor. She testified
that, at all material
times hereto, when the deceased was on the
dance floor, she had no sight of her. They left the tavern at
approximately 01h00, the
following morning, after having looked for
her, to no avail.
14.
On Monday 13 July, she and others heard of a dead body found
somewhere in the area. They
(she and the deceased’s sister)
went to the police station to make inquiries about the deceased and
were taken to the forensics
department of SAPS, where they found the
deceased’s body.
15.
I must interpose to point out here that, whilst it was argued for the
appellants that Mr
D [....] contradicted this witness with regard to
the presence of J [....] 1, which this witness denied was there, I do
not find
this a material contradiction. It is so since, after all has
been said and done, the incontrovertible fact is that the deceased
and Mr D [....] and others, were at all material times hereto, prior
to the incident, in attendance at Vuyo’s tavern.
Mr
R [....] M [....] 1
16.
According to Mr M [....] 1, one afternoon in 2017, whilst in the
company of one B [....]
whom he referred to as “Skurwe”
they were walking towards a certain bridge in the area. The first
appellant, there
and then followed. They only knew the first
appellant as a local hairdresser specialising in dread-locks
hairstyle. The appellant
also did one uncle Kallie’s “dreads”
who live in their street.
17.
He testified that whilst the first appellant also at some point in
time in the past also
wore dread-locks, his head was bald on this
particular day. Mister M [....] 1 also testified that the first
appellant, there and
then told them that they
[6]
murdered someone at the “Gaaitjie”. B [....] asked when
and with whom he committed the said murder because he, B [....]
,
resided at the “Gaatjie” but that they have never heard
of such. The first appellant responded that he was not referring
to
the “Gaaitjie”, i.e. the informal settlement area, but to
“the gaatjie” behind the Pabalello stadium,
which is the
only stadium in Pabalello. The first appellant however did not
respond to the question as to with whom was he when
he committed the
alleged murder.
18.
Mr M [....] 1 also testified as follows. He knew D [....] as they
worked together at the
said tavern. He and others in the
neighbourhood had previously heard from Mr D [....] that a murder had
occurred at the said stadium.
That, after the foregoing conversation,
they (i.e. he, B [....] and the first appellant) then accompanied the
first appellant to
the police station so as to report the said
matter. When they got to the police station, the police sent them
away saying that
the first appellant was crazy and demanded to know
why they must believe a crazy person. They left without the police
assisting
them. The investigating officer thereafter contacted him in
2018 and he made a statement regarding the foregoing encounter with
first appellant.
Mr
B [....] H [....]
19.
Mr H [....] , for his own part, testified as follows. He knew the
first appellant
as “Tshepo” and that he was from
Zimbabwe. That he knows him because he and the appellant used to
smoke drugs together.
That this notwithstanding, he and the first
appellant were not friends. He only approached him as and when he
needed smoking “utensils”,
to share same. One day, whilst
he and Mr M [....] 1 were sitting under a certain local bridge, the
first appellant came running
from behind calling out to them. When he
reached them, they asked him what he wanted from them.
20.
In response to the foregoing, the first appellant then informed them
that he
had raped someone at the “Hole”. He then asked
them for “something to smoke”, i.e.
tik
, before he
could tell them the whole story. Thereupon they allowed the first
appellant some
tik
to smoke. The first appellant thereafter
told them that he had raped someone behind the stadium. He then
requested them to assist
him return to Zimbabwe. He also mentioned
that if they do not believe him they should ask one “
Flenters
”
whose real name is the abovementioned J [....] D [....].
21.
Mr H [....] thereafter went to Blikkies to drop some money. Having
done that,
they then went looking for Mr D [....] so as to go and
report what the first appellant had said to them to the police, but
did
not find him. They then proceeded to the police station. On
arrival at the police station, they met two police officers, i.e. one
Mr Jordaan and another, to whom they related the first appellant’s
said story. Nevertheless, the said police officers sent
them away. He
testified that Mr D [....] had told them of the same incident the day
after it had happened, but they did not take
him seriously.
22.
It can be deduced from the foregoing that the two witnesses somewhat
differ
on what the first appellant is alleged to have claimed had
happened during the alleged rape and/or murder, during their said
encounter.
According to Mr M [....] 1, the first appellant claimed
that he and some other person or persons murdered someone behind the
stadium.
Mr H [....] , on the other hand, testified that the first
appellant claimed to have raped someone at the said scene. That is
the
only difference in their evidence but they testified the same at
all material times hereto on all other aspects and circumstances
pertaining to their encounter with the first appellant.
23.
I do not find the said difference to be a material contradiction. The
incontrovertible
fact, I repeat, is that the deceased was killed and
raped. The uncontested post mortem findings of Dr Isaacs states that
much.
The first appellant, for his own part, denied that any meeting
between him and the two witnesses ever occurred. He also denied ever
accompanying the said witnesses to the police station or them being
dismissed by the said police.
Messrs
Jordaan and Mnyaka
24.
The two police officers, Messrs Jordaan and Mnyaka testified in the
defence
case. They “naturally” denied the evidence of
Messrs. M [....] 1 and H [....] . Mr Mnyaka did not want to engage or
respond when the state put to him that the only reason why they
denied any encounter with the trio was in order to save their jobs.
Ms
M [....] 2 S [....]
25.
Ms M [....] 2 S [....] testified that she and her husband were
friends with
the third appellant, whom they referred to as
“
Broertjie
. She also testified that she knew the second
appellant. She further testified she also knew the first appellant
because they were
not staying far from each other in Pabalello.
26.
One Thursday night, the third appellant or “
Broertjie
”
arrived at their home to request something to smoke from her husband.
At all material times hereto, one Stefanie was also
in their company.
The third appellant and Stefanie were regulars at her house. The
third appellant had in his possession a pair
of black boots with a
shiny thing more or less where the boot ends, which he said he was
selling in order to raise some money for
a “smoke”. She
then asked the third appellant, where he got the said boots from and
he responded that he had picked
them up somewhere in town.
27.
According to her, it was the first time she ever saw the third
appellant selling
anything in her presence. She furthermore testified
that Stefanie took the boots and gave the third appellant something.
She also
recalled that that same night one Mr Geswind also came to
her home in the company of his mother to fetch some dishes from her.
28.
The next evening when the third appellant returned he inquired from
her as to
what she had heard or knew about the murder that transpired
behind the stadium. She asked him why he was concerned about the said
murder and he responded that it was because one “
Stonga
”
(the second appellant herein) together with others, had chased him
away from a girl (presumably the deceased) with stones
and knives. He
said he knew the deceased as being from Grootdrink informal
settlement or “
Garries
”. She testified that at all
material times hereto, the third appellant appeared to be nervous
when talking about the said
incident.
29.
Whilst the witness differed with Mr Geswind on whether he was there
with his
mother or not and the exact time the evening they were
there, if at all, I do not see any material contradiction as argued
by appellants,
with regard to the material events pertaining to this
specific day. The fact that Mr Geswind was at the witness’s
place is
just one of those collateral incidents that the witness had
experienced that reminded her of the meeting and discussions with the
third appellant with regard to the sale of the black boots.
Mr
B [....] 1 P [....] G [....]
30.
Mr B [....] 1 P [....] G [....] testified that he knew Ms S [....]
who he referred
to as “
Witmeid
”. He recalled that
he went to Ms S [....] ’s house one night or early evening in
July to fetch certain crockery or
dishes from her. There, he found Ms
S [....] , her husband, one Jan and his uncle, the third appellant
and one other lady. He however
testified that he was not accompanied
by his mother.
31.
Of significance in this regard is the fact that, after all had been
said and
done, this witness placed the third appellant, his uncle,
another lady and Ms S [....] together at Ms S [....] ’s house
on
the day he went to collect the said dishes and crockery.
Warrant
Officer Jacob Venter
32.
Warrant Officer Pieter Jacob Venter testified that he specialises in
the investigation
of murder cases. He testified that on 12 July 2015,
a murder was reported to have occurred at a certain hole behind the
stadium
in Pabalello. He immediately attended the scene, where he
found other police officers and some members of the public. The
investigations
he conducted led him to J D [....], M S [....] and
others. He also testified that there was reference to a Stefanie but
that she
could not assist as she was always under the influence of
drugs. He never recovered the boots which were said to have been sold
to Stefanie. Investigations went on until 2018, when Mr J [....] D
[....] ultimately made a second statement and on the strength
of
which the three appellants were arrested. Thereafter, he went back to
make follow-ups with other witnesses.
33.
He further testified that in his experience, in Pabalello, people
feared to
get involved and give information on matters such as this.
That the said murder was the only one that had happened there at the
back of the stadium in Pabalello in 2015 and that it was
“
opspraakwekkend
” or a sensation or something
startling for the community. Had there been any other murders in the
area or similar incidents
that were investigated by his colleagues,
he would have known about them.
Mr
W [....] T [....] C [....] T [....] 1
34.
Mr W [....] T [....] C [....] T [....] 1 testified about the lighting
around
the stadium. At all material times hereto, he was under the
employ of Dawid Kruiper Municipality and Pabalello fell under the
jurisdiction
of the said municipality. He testified that he was
employed in the electricity department as an electrician for the past
18 years
and was responsible for all street lights. At the time of
testifying, he had already been occupying the position of
superintendent
for four years. During his testimony, photos of the
scene of the incident and from where J [....] D [....] had said he
was watching
the Appellants and the deceased with regard to the
visibility in the area, were shown to him. He testified that, at all
material
times hereto, there were mast lights in the area. The one
situate in Pom Pom street was thirty meters high; with maximum
strength
lights illuminating 180 metres plus burning at 400 watts.
The other light was forty meters high burning at a thousand/1000
watts
and the illumination could go up to a distance of two hundred
and fifty meters. These lights were erected and have since been
operating
for fifteen years, almost uninterruptedly.
Inspection
in loco
35.
The record shows that an inspection
in loco
was held by the
Court
a quo
at the spot from where Mr J [....] D [....] was
observing everything from to enable the Court to follow his oral
evidence. The trial
Court found that the distance in meters may be
further than J [....] D [....]’s estimate of 20 – 25
meters and that
it could have been approximately some 60 – 100
meters away.
36.
Despite the distance that was clarified during the inspection
in
loco
, if one has regard to the evidence of Mr T [....] 1 that the
mast lights were at all material times hereto working, then J [....]
D [....] was watching the incident unfold from and in a
well-illuminated area. The third appellant also corroborated the
evidence
on the lighting around the stadium and the streets in the
vicinity.
Mr
J [....] D [....] (also known as “
Flenters
”)
37.
Mr D [....] testified that he was working at Vuyo’s tavern as a
security
guard. He testified that his duties
inter alia
included searching patrons upon entry of the tavern and ensuring that
everything and everyone were safe in the tavern. He also
did cleaning
duty.
38.
He described the set-up at the said tavern as having two gates. The
first one
as one enters the premises and second one situate where he
searched patrons before they entered the tavern and moved towards the
dance floor area. He testified that he would usually stand at the
second gate to observe what was going on inside the tavern. The
operating hours of the tavern were from 21h00 until between 01h00 and
03h00 in the morning.
39.
On 11 July 2015, before going to work, he went
via
a place he
referred to as “
Gun-a-Gun’s
house” to have a
smoke. He testified that dagga is sold at the said house. He also
testified that he specifically smoked
drugs, “
tik
”
on the said occasion and that he did so before 20h00 or soon
thereafter. Whilst there at Gun-a-gun house, he saw the first
and
third appellants in possession of a home-made axe and overheard the
first appellant saying to the third appellant that he would
give him
the axe in return for the third appellant buying or giving him two
bags of “
tik
” (drugs).
40.
He further testified as follows. He knew the third appellant as
“
Boraks
” as he grew up in front of him. He and his
aunt lived diagonally opposite the third appellant’s place of
residence.
He knew the first appellant as a hairdresser specialising
in dreadlocks. The first appellant also used to attend to his
sister’s
hair. He also knew the second appellant as “
Stonga
”,
with whom he used to smoke “
tik
” and/or drugs.
41.
He furthermore testified as follows. The deceased together with
friends entered
the tavern. It was the first time he saw the deceased
at the tavern. At all material times hereto, he observed that the
deceased
had a multi-coloured braided hair-style and wore black suede
boots on her feet. The deceased and friends went onto the dance
floor.
42.
At around past ten, being a while after his arrival at work, he saw
all three
appellants entering the tavern. They proceeded to buy beers
for themselves and the deceased and friends. After a while, the
appellants
went out. He overheard them discussing how the deceased
and friends were not going to get away with drinking their beers for
free.
They thereafter went back into the tavern. After approximately
fifteen minutes the deceased complained to him that the first
appellant
was bothering her.
43.
Towards closing time, he observed the deceased looking for her
friends. He could
also observe that she was intoxicated. He tried to
stop her from leaving and told her to wait for him to take her to the
police
given her condition. This notwithstanding, she did not listen
to him and left the tavern. He also called her but she waved him off
and kept on walking. At this time, the first appellant called her but
she waved him off and kept walking. He, the first appellant,
remained
standing outside where the second and third appellants joined him. He
overheard a conversation between the three on who
was to follow the
deceased. Thereafter, the first appellant followed the deceased by
walking in her direction – across the
park.
44.
Thereafter, the witness went inside the tavern to ask the owner to
close early
so he could follow the deceased as he was concerned for
her safety. After closing the tavern, which took a while, he went
looking
for the deceased in the vicinity. He searched around the park
to no avail. Thereafter, he searched for her in and around the
streets
in the vicinity, also to no avail. Thereafter he went
searching in the direction of the stadium.
45.
On his arrival in the vicinity, he stopped at a distance of, as the
information
from the inspection
in loco
indicated, about 100
meters. He testified that the distance was closer, at about 20 –
25. From there, he saw the deceased
reach a corner of the stadium. He
also testified that at all material times hereto, there was a
floodlight in the area where he
was which illuminated in the
direction and spot where the deceased was.
46.
He further testified that he waited in a dark spot at a distance from
where he could observe
the appellants and the deceased’s
movements. According to him, he had to keep moving as and when they
moved to keep them
within his sight. He then saw the first appellant
grab the deceased from behind around her neck. He also saw the second
and third
appellants joining the former in assisting him to pull the
deceased to a darker area. He got a little closer and saw the second
appellant picking up a big stone, which he hurled at the deceased. He
then saw the second appellant pulling the deceased by her
hair whilst
the third pulled her by her t-shirt. They then took her further into
the dark to behind the stadium and out of his
sight.
47.
He furthermore testified that he was so scared from what he had just
witnessed that he had
to go and sit in Gun-a-Gun’s street until
day break. He was shocked by what he had seen as he thought they were
just going
to rob the deceased and then leave her. Thereafter, he
went to Gun-a-Gun’s house whereat he found the first appellant
fast
asleep, his head next to a bloodied axe. This axe, according to
this witness, resembled the one he had seen the previous day in
possession of the first appellant.
48.
Approximately fifteen minutes later, the second appellant arrived at
the said house wearing
a pair of black jeans and sneakers both of
which he could observe had some spats of blood in front. He then left
Gun-a-Gun’s
house through the back, where he saw the third
appellant in the company of a lady he does not know. Thereafter, he
informed his
aunt of the incident.
49.
Seven days later he made a statement to the police regarding the
incident. He also made
a second statement on 26 May 2018. In this
regard, he testified that the reason why he did not tell everything
to the police in
his former statement, is because at that time he was
fearing for his life. He testified that he was afraid of the
appellants because
he knew that they were gangsters. He was also
fearful because the second appellant’s friends had threatened
him that if he
told the police everything, he would be killed. Of
significance is that he did not give any details regarding the
perpetrators’
identities or their description. He was alone and
did not have parents.
50.
In 2018 when he made the second statement, the Investigating Officer
came to him and asked
him to tell the whole truth. By then, he had
not seen the appellants around. He then told the whole truth. That on
the night in
question when he witnessed the incident, the first
appellant followed the deceased, grabbed her by the neck from behind
and threw
her to the ground, immediately whereafter, the second and
third appellants joined the latter. That he did not know how and when
the appellants were arrested after he made the latter statement.
51.
During cross-examination he maintained as follows. That whilst at
this place called Gun-a-Gun,
the two people he saw quarrelling over
the homemade axe were actually the first and second appellants,
whilst the third appellant
was on the other side of the house. That
he got confused with the numbers of the accused in court. That the
reason why he paid
particular attention to the deceased that
particular night was because he was seeing her for the first time at
the said tavern.
That after the second appellant had hit the deceased
with a stone, all the appellants dragged her to the hole, behind the
stadium.
That he thereafter could not see what happened as that part
of the area was dark. That at all material times hereto, he saw the
three appellants with the deceased.
52.
He conceded that it was the first time for him to mention in
cross-examination that the
first appellant at all material times
hereto, had a dreadlock hairstyle and that the others’ hair was
cut. He also indicated
that at all material times hereto, he
recognised the appellants from their gaits and clothing. In
particular, he recalled the following
with regard to what each of the
appellants were wearing: the first appellant was wearing a pair of
black All-Star boot sneakers
and a black hoodie jersey; the second
appellant was wearing a blue jacket and a pair of white All-Star boot
sneakers and the third
appellant, for his own part, was wearing a
blue jeans jacket. He did not see other persons wearing similar
clothing at any stage
on the night of the incident.
53.
The following was put to him in cross-examination that the appellants
believed they were
at their respective homes. They also put to him
that he had only learned the first appellant’s name, Tshepo,
after the incident.
The witness responded by saying that it was not
so.
The
First Appellant
54.
The first appellant, for his own part in sum testified as follows.
That, whilst
as a hairdresser he specialised in turning clients’
hairstyles into dreadlocks in Pabalello, at all material times
hereto,
he never wore dreadlocks. That he never confessed to anyone
around 2017, regarding the incident. He denied ever referring Messrs
M [....] 1 or H [....] to J [....] D [....], to corroborate his
alleged confession to them.
55.
During cross-examination, he maintained as follows. That he
started-off as a
hairdresser in 2016. That Mr D [....] and Mr M
[....] 1 knew he was a hairdresser because they saw him attending to
clients’
hair from time to time. That he could not dispute it
that J [....] D [....] knew he was not originally from Upington. That
whilst
he always told all his clients that he was not originally from
Upington, he could neither recall having told J [....] D [....]’s
sister nor confirm or deny her acquaintance. That whilst he had seen
B [....] H [....] from time to time around Pabalello, he never
smoked
anything with him.
56.
He also maintained that he never told Mr H [....] that he was
originally from
Zimbabwe. In response to Mr D [....]’s
evidence, with regard to his involvement in the incident, he
maintained as follows.
That, at all material times hereto, he was
home and therefore could not have been seen with anyone else. He knew
“Gun-a-Gun.”
She was selling dagga but he did not know if
she also sold drugs. That he was also known as “Tshepo”
in Pabalello.
He denied, that he was ever at the said tavern or had
followed the deceased. He however admitted that indeed, there were
floodlights
around the area where the incident had taken place in
2015.
The
Second Appellant
57.
The second appellant, in turn, in the main testified as follows. He
has been residing in
Upington since 1995. He is originally from the
Eastern Cape Province. He knew J [....] D [....] by sight only since
2008. As far
as his relationship with Mr D [....] is concerned he
testified that there was no bad blood between them. That whilst he
did not
have a clear recollection of the specific date in 2015 in
relation to the case, he at all material times hereto must have been
at home and nowhere else. He specifically denied ever being at Vuyo’s
tavern that specific night or throwing any stone at
the deceased.
58.
He also denied ever having been in the company of any of the other
appellants, at all material
times hereto. He admitted he is known as
“
Stonga
”. He denied an incident regarding an axe
taking place at Gun-a-Gun between him and the first appellant, as
alleged by Mr
D [....]. Whilst he admitted that he used to smoke
“
tik
” between 2014 and 2017, he denied ever doing
so at Gun-a-Gun’s place. He also denied ever visiting Vuyo’s
tavern
in 2015. He also testified that he did not recall if drugs
were sold at Gun-a-Gun.
59.
He admitted he knew the third appellant because he was friends with
his younger brother.
Whilst he also admitted that one is able to see
what is happening around the stadium in Pabalello, because of the
flood lights,
he flatly denied that Mr D [....] ever saw him hurl
anything at the deceased, simply because, at all material times
hereto he was
never at the said scene. He also denied that his jeans
or sneakers ever had blood spats on them as alleged by Mr D [....].
The
Third Appellant
60.
The third appellant, for his own part, testified as follows. He was
residing
in Pabalello. He admitted to his nicknames being “
Broertjie
”
and “
Boraks
.” That whilst the second appellant was
well known to him, the first appellant was not. That he knew nothing
about the charges
proffered against him by the State. He however
admitted being a regular patron at Ms M [....] 2 S [....] ’s
place during
July 2015, because he went there during weekends; as
well as being friends with Ms S [....] ’s husband.
61.
He however denied Ms S [....] ’s testimony regarding him and
contended
that she must have decided to deliberately mislead the
court. Whilst he admitted that at the time of the trial, that there
were
flood lights in the area that illuminated it at night, he could
however, not recall whether same were already installed in 2015.
62.
He testified that whilst Mr D [....] might know all three of them, he
only knew
him by sight. He testified that he would have been home
most evenings or nights during 2015 as he likes watching “soapies”.
He however could not recall if he was at home on this fateful night,
but flatly denied ever being at the scene or the said tavern.
EVALUATION
63.
It is so that Mr D [....] was the only identity witness that put the
appellants
and the deceased together at the tavern and at the
stadium, whereafter the deceased was discovered dead.
64.
It was argued on behalf of the appellants that, Mr D [....]’s
evidence
cannot be relied on as he was under the influence of drugs (
i.e. “
tik
”) on the night in question and gave two
contradictory statements to the police with regard the identity of
the perpetrators
i.e. in his first police statement, the identity of
the alleged perpetrator(s) was unknown to him.
65.
Mister D [....]’s uncontested evidence is that he smoked
tik
earlier at around 20h00 before he start to work at 21h00. He worked
at the tavern and executed his duties until he knocked off
in the
early hours of the morning. After work, the evidence is that, he went
looking for the deceased and witnessed the deceased
being assaulted;
hurled with a stone by the second appellant and being dragged to
somewhere behind the stadium by the appellants
jointly. He was
detailed in his observations from the time the deceased and
appellants arrived at the tavern until they left its
vicinity and the
incidents he observed thereafter in the vicinity of the stadium.
66.
On the issue of being under the influence of drugs. It is apparent
that even
though he had smoked “tik” earlier, he was
functional or sobered up considering the detailed observations he
gave with
regard to the presence of the appellants; the deceased and
her friends at the tavern; as well the attack on the deceased and his
own reaction to the attack until he gave statements to the police.
67.
It is also so that Mr D [....] gave evidence and explained how and
why he gave
two different police statements. The main difference was
on the identity of the persons that attacked and killed the deceased.
He testified that at the time he made the first statement, he was
fearful for his life and was also threatened by the second
appellant’s
friends. This evidence was not seriously or
contested at all. The foregoing notwithstanding, he still made the
second statement
when the investigating officer came back to him for
further investigation. He then felt safe to tell the whole truth
because it
was years after the incident coupled with the fact that he
had not seen the perpetrators around anymore.
68.
The evidence of Warrant Officer Venter as the investigating officer
was that
the community did not want to get involved in such matters
out of fear for their lives. Investigations sent him back to Mr D
[....]
resulting in the 2018 statement that led to the arrest and
trial of the appellants.
69.
Messrs H [....] and M [....] 1 testified with regard to their
encounter and
content of conversation with the first appellant. Mrs S
[....] , for her own part, also testified uncontroverted that she had
two
different encounters with the third appellant. First, how the
third appellant sold the boots described in the trial evidence as
belonging to the deceased and second, when he came to talk about the
murder and how the second appellant and others took the deceased
from
him.
70.
Mr B [....] 1 G [....] , for his own part, also placed the third
appellant,
being his uncle, himself and the S [....] couple together
around the same day or period when the incidents as per evidence
occurred.
It is therefore not only the evidence of Mr D [....] that
was and could be considered, but a trail of events and evidence that
linked the witness, Mr D [....] and the appellants with the incident.
71.
In
Abdullah
v S
[7]
,
the court found it understandable in the circumstances of the case
where the witness made a statement to the police 19 days after
the
incident of murder that involved his deceased father after he had
been assured by his uncle that he will be safe and could
trust
Colonel Kinnear in the SAPS, on the case. Mr J [....] D [....]’s
explanation on the inconsistencies in his two police
statements is
then found to be plausible in the circumstances of the trial.
72.
In the
Abdullah
case referred to above, the court when dealing
with identification by a single witness who observed and identified
the perpetrators
in a short space of time, the court said:
“
The appellants
contend that Mr Carelse did not have the opportunity to properly
observe and identify the gunmen. Much was made of
the fact that Mr
Carelse only had between 2-4 seconds in which to observe the
appellant. Had the appellant been a stranger to him,
this could have
been a significant factor.
However,
when seeing a person who is known to you, it is not a process of
observation that takes place but rather one of recognition.
This is a
different cognitive process which plays a vital role in our everyday
social interaction. The time necessary to recognise
a known face as
opposed to identifying a person for the first time, is different. It
has been recognised by our courts that where
a witness knows the
person sought to be identified, or has seen him frequently, the
identification is likely to be accurate
.”
[8]
73.
Mister D [....] spent a while observing the appellants and how they
manhandled
the deceased. He knew them before the date of the
incident. He was able to describe their clothing and what each one
did. He was
also consistent on the other (encounters) with the
appellants with specific reference to “Gun-a-Gun’s”
place
and Ms S [....] ’s place before the incidents and after.
It is trite law that an identifying witness’s evidence should
not only be honest but be truthful and reliable –
State v
Mthetwa
1972 (3) SA 768
A-C.
74.
The appellants could not dispute that Mr D [....] knew them before
the incident.
The first appellant told the trial court how he also
informed his clients that he was from Zimbabwe, which was an
indication that
Messrs H [....] and M [....] 1 also got the
information on this from him. The third appellant, for his own part,
in his conversation
with Ms S [....] , placed himself together with
one Stonga, the second appellant, and the fact that the latter and
others took
the deceased from him. He also, contrary to his alibi,
said he sometimes walked about at night and confirmed that there were
lights
around the stadium illuminating the vicinity.
75.
It is clear from the foregoing that Mr D [....]’s evidence on
the identity
of the appellants was correctly found credible and
reliable by the trial court. The sum total of all pieces of the
proven facts
from the evidence of all witnesses called by the state
proved that the appellants were with the deceased and are the ones
who robbed,
killed and raped her.
76.
In
S
v Schackell
[9]
,
the Supreme Court of Appeal at paragraph 30 held as follows that:
“
It is trite
principle that in criminal proceedings, the prosecution must prove
its case beyond a reasonable doubt and that a mere
preponderance of
probabilities is not enough”.
77.
In
S v Francis
1991 (1) SACR 198(A)
at 198j – 199a it
was held that:
“
The powers
of a court of appeal to interfere with the findings of fact of a
trial court are limited. In the absence of any misdirection
the trial
court’s conclusion, including its acceptance of a witness’
evidence is presumed to be correct.
In order to succeed on appeal, the appellant must therefore convince
the court of appeal on adequate grounds that the trial court
was
wrong in accepting the witness evidence- a reasonable doubt will not
suffice to justify interference with its findings. Bearing
in mind
the advantage which the trial court has of seeing, hearing and
appraising a witness, it is only in exceptional circumstances
that
the court of appeal will be entitled to interfere with a trial court’
evaluation of oral testimony.”
[10]
78.
Therefore, the conclusion reached by the trial court that the
identity of the
appellants was proved beyond a reasonable doubt
cannot be faulted. It is found that the trial court did not err in
finding the
appellants guilty on Murder, Rape and Robbery with
aggravating circumstances.
79.
It follows therefore that appeal against conviction must fail.
SENTENCE
80.
The appellants were convicted of very serious offences. It is also
apparent
that counts 1 and 3, rape and murder fall within the ambit
of Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
, for which life imprisonment is a prescribed sentence and the
Robbery charge carried a prescribed minimum sentence of 15 years.
The
prescribed sentence could not be deviated from unless there were
substantial and compelling circumstances.
81.
It was submitted on behalf of the appellants that the sentence of
life imprisonment
imposed was shockingly inappropriate as the trial
court did not consider the fact that they had spent 18 months in
custody awaiting
finalisation of the case and that the sentence of
life leaves no room for rehabilitation.
82.
The trial court considered the facts and circumstances of this case.
That the
deceased was brutally raped, robbed and murdered. She was
found half naked with legs spread apart and did not find substantial
and compelling circumstances to deviate from the prescribed sentence.
To add to this, there was also evidence by the Investigating
Officer
that this was an “
opspraakwekkende
” or sensational
murder.
83.
Phatsoane
AJA in Director of Public Prosecutions, Free State v Mokati
[11]
,
said the following:
“
A sentence
should be individualised to fit the crime, the criminal and the
interest of society. A court should not shy away from
imposing a
sentence that accounts for all the triad on the basis that ‘it
would be tantamount to breaking’ the accused.”
84.
The Supreme
Court of Appeal also held in
S
v Vilakazi
[12]
,
that, in cases of serious crimes, the personal circumstances recede
into the background, once it becomes clear that the offence
is
deserving of a substantial period of imprisonment. The personal
circumstances remain relevant though to assess whether the accused
will offend again.
85.
The deceased had the right to live as provided in section 11 of the
Constitution
of South Africa. Her child was only 4 years old when she
was brutally murdered. She was also gainfully employed at Kentucky
Fried
Chicken, at the time of her death. At the time of the trial,
the child was 8 years old and lived with the family of the deceased
as the father was also deceased.
86.
The first appellant was 29 years old at the time of the trial and
originally
from Zimbabwe. He resided in Upington since 2010. He was
not married and had no children. He completed grade 8 or form 1 in
Zimbabwe
and was employed as boilermaker earning R1,500.00 per week.
He had two previous convictions i.e. possession of dagga and being an
illegal immigrant in the Republic.
87.
The second appellant, for his own part was 37 years old, at the time.
He lived
in Pabalello, Upington. He was married with two children,
aged 13 and 1, respectively. He passed standard 10 in school and did
odd jobs in construction and earned R2,000.00 per month. He had
previous convictions i.e. theft (1998); house breaking and theft
(1999); possession of drugs (2001); house breaking and theft (2010);
assault with intent to do grievous bodily harm (2010); two
counts
possession of drugs (2014 and 2015, respectively); and house breaking
and theft (2016).
88.
The third appellant, on the other hand was 42 year old, married man
with five
children aged 28, 27, 23, 21 and 9 years, respectively. He
lived in Upington in Grootdrink. He testified that he has a technical
certificate in construction and maintenance. At the time of his
arrest, he was working as a builder earning R6,000.00 per month.
He
has previous convictions of theft ( 2014); possession of drugs
(2015); assault and possession of drugs (2016).
CONCLUSION
89.
I find the views held by the SCA in the cases stated above to find
application
in this matter. The trial court did not err in not
finding substantial and compelling circumstances and the sentence
imposed is
found not shocking and inappropriate. I find no
misdirection that warrant any interference by this court.
90.
It follows that the appeal against sentence must fail.
ORDER
91.
In the circumstances the following order is made:
The appeal is dismissed.
KGOPA
AJ (SCRIBE)
ACTING
JUDGE
HIGH
COURT KIMBERLEY
I
CONCUR.
NXUMALO
APS
JUDGE
HIGH
COURT KIMBERLEY
I
CONCUR.
STANTON
A
ACTING
JUDGE
HIGH
COURT, KIMBERLEY
On
behalf of the Appellants:
Mr H. Steynberg
On
instruction of:
Legal Aid SA
On
behalf of the Respondent:
Adv J. Rosenberg
On
instruction of:
The NDPP
[1]
Count
1.
[2]
Count
2.
[3]
Count
3.
[4]
Ibid
.
[5]
Tshiki v The State (358/2019)
[2020] ZASCA 92
(18 August 2020 at
para 65)
[6]
Apparently
the first appellant and some other person(s).
[7]
(134/2021)
[2022] ZASCA 33
(31 March 2022)
[8]
Emphasis
supplied.
[9]
2001 (4) SA 1 (SCA)
[10]
Emphasis
supplied.
[11]
(Case no 440/2019)
[2022] ZASCA 31
(25 March 2022) at para 53
[12]
2009 (1) SACR 552
(SCA) at paragraph 58