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[2021] ZAGPPHC 62
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Saohatse and Others v S (A18/2020) [2021] ZAGPPHC 62 (3 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION - PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
03/02/21
Case No.: A18/2020
In
the matter between:
BOY
BOY JACOB
SAOHATSE
1
st
Appellant
SAMUEL
TSHEOLO
FAKU
2
nd
Appellant
OARABILE
KENNY
SAOHATSE
3
rd
Appellant
and
THE
STATE
Respondent
J
U D G M E N T
MNGQIBISA-THUSI
J
:
[1]
On 5 November 2015 the
appellants were convicted of murder, read with the provisions of s
51(1) and (2) of the Criminal Law Amendment
Act
[1]
in the Sebokeng Regional Court. On 04 February 2016, the first
and second appellants were sentenced to an effective period
of 18
years imprisonment and the third appellant to 10 years imprisonment.
[2]
On petition to the Supreme Court of Appeal, the first and second
appellants
were granted leave to appeal against their conviction and
the third appellant was granted leave to appeal against his
conviction
and sentence.
[3]
The conviction of the appellants relates to an incident which
occurred
on 22 January 2013 at Evaton, at the parental home of the
first and third appellants, during which one Pule Lehoko (“the
deceased”) was killed after he was assaulted with various
instruments.
[4]
The appellants are appealing against their conviction on the grounds
that
the court
a quo
erred in finding that the State had
proven its case beyond a reasonable doubt based on the evidence of a
single witness; and by
not accepting the appellants’ version as
reasonably possibly true. With regard to sentence, it is the
third appellant’s
contention that the court
a quo
erred
in imposing the sentence of 10 years’ imprisonment and not
considering a non-custodial sentence, in that it failed
to take into
account the third appellant’s age at the time of the commission
of the offence. Further that the court
a quo
erred in
over-emphasising the seriousness of the offence, the interests of the
community and the prevalence of the offence.
[5]
The
issue to be determined is whether the State
has proven beyond a reasonable doubt that the appellants were the
persons who assaulted
the deceased, thereby causing his death.
[6]
In brief the State’s case is that on the day in question, the
appellants,
in furtherance of a common purpose, had assaulted the
deceased at the home of the first and third appellants, which assault
led
to the death of the deceased.
[7]
Mr Samuel Lehoko, whose evidence is as follows. On the relevant
day he was sleeping at his house when at around 04h00, he heard some
noise coming from outside. He woke up and jumped his
parameter
wall and went to where the noise was coming from, which was at the
home of the first and third appellants. On arriving
there he
found people milling outside the first and third appellants’
home and he went inside the yard where he found a neighbour,
Mr
Molefe Mahlatse (“Mr Mahlatse”), a witness for the
defence, the three appellants and the deceased who was lying
on the
ground. His evidence is that he saw the appellants assaulting
the deceased. The first appellant used a sjambok,
the second
appellant an iron rod and the third appellant a plank. He
testified that as the deceased was being assaulted,
the deceased
never reacted but only showed some reaction when the second appellant
hit him with the plank on his private parts.
He testified that
he then left and came back to the first and third appellants’
home in the morning where he found the police
and discovered that the
person who was assaulted by the appellants had died. He did not
say anything to the police about
the incident he had witnessed.
However, when during the day he learnt that the person he witnessed
being assaulted at the
first and third appellants’ home was
actually his cousin, he went to the police where he gave a statement
about what he had
witnessed, leading to the appellants being arrested
after he pointed them out. With regard to the visibility at the
scene
of the crime, Mr Lehoko testified that even though it was still
dark, the area was illuminated by an Apollo light and lights coming
from the Saohatse’s house.
[8]
In the post-mortem report, it is indicated that the cause of death
was
‘multiple serious injuries’. Dr Schutte, the
doctor who performed the post-mortem on the body of the deceased,
testified that injuries sustained by the deceased before he succumbed
to his wounds were consistent with being hit with a sjambok,
an iron
rod and a plank.
[9]
Former warrant officer Morena Dlamini testified that when he arrived
in
the morning at the crime scene, he found a piece of sjambok and an
electrical pipe in the yard, lying to next to where the deceased
was
lying.
[10]
The appellants denied being responsible for the death of the
deceased, maintaining either
that they were not present when the
deceased was assaulted or that they did not participate in the
assault of the deceased.
[11]
The first appellant testified that during the period when the
deceased was assaulted, he
was not at his parental home but was
sleeping at his brother-in-law’s house which is a few blocks
from his home. At
04h00 his brother-in- law woke him up and he
returned to his parental home where he found his mother, the third
appellant and the
deceased lying on the ground. Thereafter Mr
Molefe Mahlatse (“Mr Mahlatse”), a neighbour, arrived at
his home.
Although he inquired about what had happened, her
mother did not tell him how it came about that the deceased was lying
on the
ground in her yard. His mother only told him about the
presence of an intruder in the yard. Only later did his mother
tell him that whilst they were asleep, an intruder came into the
yard, and when the third appellant went outside to investigate,
he
collided with the deceased and a struggle ensued. A group of
community members started assaulting the deceased.
He denied
participating in the assault on the appellant. With regard to
visibility on the day in question, first appellant
testified that
although it was still dark, there was a street light which was on.
He denied seeing either the second appellant
or Mr Lehoko at his
parental home.
[12]
The second appellant’s testimony is that on the day in
question, between 03h00 and
04h00 and while sleeping he was woken by
a noise and he heard people talking in his neighbour’s yard
(the Saohatse’s).
He went to the neighbour’s house
and found people standing inside and outside the yard of the Saohatse
house. He did
not see either the first appellant, the third
appellant or the first appellant’s mother. He testified
that there was
chaos in the yard and he later left to go to work.
He further testified that he was unable to see inside the yard
because
there was a wall. He also denied being involved in the
assault of the deceased.
[13]
The third appellant testified that on the day in question he was
woken up by his mother
to investigate the presence of an intruder in
the yard. When he went outside, he bumped into the intruder and
a strife ensued
between them and he fell on a rock. He
testified that he went to sit on a
stoep
and there was chaos
in the yard as members of the community, who had jumped over the wall
as the gate was locked, responded to
his mother’s screams.
He could not see what they were doing. He testified that he
could not remember whether
Mr Mahlatse was there or whether there
were any weapons. He further testified that he did not see
second appellant on the
day in question.
[14]
The first and third appellants called Mr Mahlatse who testified as
follows. On the
day in question between 04h00 and 05h00, his
father woke him up as he heard a noise coming from their neighbour’s
house.
He went to the first and third appellants’
parental home where he found their parents and all three appellants
and the deceased
injured and lying on the ground inside the yard.
There were community members standing outside the yard. At some
stage
he saw the first appellant pulling the deceased back into the
yard as he tried to run away and tied his feet. He testified
that the second appellant had asked the first appellant to call the
police. At a later stage Mr Lehoko also came into the
yard.
He denied seeing any weapons. He further denied witnessing any
assault on the deceased.
[15]
The evidence pertaining to the killing of the deceased and identity
of the perpetration
thereof was given by Mr Lehoko, a single witness.
[16]
In
convicting the appellants, the court a quo said the following
[2]
:
“
The
accounts given by Lehoko were credible and reliable in all material
respects and satisfactory beyond a reasonable doubt.
The
killing of the deceased was a slow grinding process. There were
breaks when these people will take a break and rest and
go back,
continued unabatedly with the attack.
The
killing of the deceased in the manner described by Lehoko constituted
murder. The post-mortem report shows multiple injuries
and
these are the cause of death. The state witnesses were honest
and reliable. There is no reasonable possibility
that the
defences raised by the accused persons could be true. Their
defences are not reasonably, possibly true. I
reject their
versions as false beyond a reasonable doubt”.
[17]
In criminal cases, the
State bears the onus to
prove the guilt of the accused person(s) beyond a reasonable doubt.
The onus of proof is discharged if the evidence presented by
the state establishes the guilt of the accused beyond reasonable
doubt.
The corollary is that the accused is entitled to be acquitted
if it is reasonably possible that he might be innocent. There
is no obligation upon the accused to convince the court of his
innocence.
[18]
In
S
v Van der Meyden
[3]
the court stated the
following:
“
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is appropriate to the application of the test in any particular
case will depend on the nature of the evidence which the
court has
before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict
or to acquit)
must account for all the evidence. Some of the evidence might
be found to be false; some of it might be found
to be unreliable; and
some of it might be found to be only possibly false or unreliable;
but none of it may simply be ignored”
[4]
.
[19]
On behalf of the appellants it was submitted that the court
a quo
erred in its finding that Mr Lehoko was a credible witness.
Further that no explanation is given as to why the evidence of
the
single state witness was accepted and that of an Independent witness,
Mr Mahlatse was rejected.
[20]
A court of appeal will not
ordinarily depart from a trial court’s findings of fact unless
such findings unless they are plainly
wrong. In
R
v Dhlumayo and Another
[5]
,
the court stated that the trial court’s findings of fact and
credibility are presumed to be correct because the trial court
has
had the advantage of seeing and hearing the witnesses, and is in the
best position to determine where the truth lies.
[21]
It is common cause that the appellant and his co-accused were
convicted on the basis of
a single witness.
[22]
It is trite that a
court
can base its finding on the evidence of a single witness as long as
such evidence is substantially satisfactory in every material
respect
or if there is corroboration
[6]
.
Section 208 of the Criminal Procedure Act (“the Act”)
provides that an accused person may be convicted on the
single
evidence of a competent witness.
In
S v Sauls and
Others
[7]
the court held that:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S
v Webber
. . .). The
trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he is
satisfied that the truth
has been told. The cautionary rule referred to by De Villiers
JP in 1932 [in
R v
Mokoena
1932 OPD 79
at 80] may be a guide to a right decision but it does not mean “that
the appeal must succeed if any criticism, however slender,
of the
witnesses’ evidence were well-founded” (per Schreiner JA
in
R v Nhlapo
(AD 10 November 1952) quoted in
R
v Bellingham
1955 (2)
SA 566
(A) at 569.) It has been said more than once that the
exercise of caution must not be allowed to displace the exercise of
common sense”.
[23]
With regard to the
consideration in a criminal trial of the evidence of a single the
Supreme Court of Appeal in
Y
v S
[8]
stated that:
“
[45]
In criminal proceedings, the State bears the onus to prove the
accused’s guilt beyond a reasonable
doubt. Furthermore, the
accused’s version cannot be rejected solely on the basis that
it is improbable, but only once the
trial court has found on credible
evidence that the accused’s explanation is false beyond a
reasonable doubt. (See:
S
v
2000 (1) SACR 453
(SCA) at 455B.) The corollary is that, if the accused’s version
is reasonably possibly true, the accused is entitled to an
acquittal.
It is trite that in an appeal the accused’s conviction can only
be sustained after consideration of all the evidence
and the
accused’s version of events.
…
[48]
The applicant was convicted on the evidence of a single witness,
which in order to be sufficient
to convict, must be clear and
satisfactory in every material respect. (See:
S v Sauls
1981 4
All SA 182
(A).) It is trite that a court will not rely on such
evidence where the witness has made a previous inconsistent
statement, where
the witness has not had a sufficient opportunity for
observation and where there are material contradictions in the
evidence of
the witness. In
Sauls
it was held that there is no
rule of thumb, test or formula to apply when it comes to the
consideration of the credibility of a
single witness. Rather, a court
should consider the merits and demerits of the evidence, then decide
whether it is satisfied that
the truth has been told despite the
shortcomings in the evidence”.
[24]
From reading the record it is clear that the court a quo was alive to
the fact that it
was dealing with the evidence of a single witness
with regard to the events surrounding the killing of the deceased.
From
the court a quo’s reasons, it does not appear that the
court
a quo’s
evaluation of the evidence can be
criticised in any material respect. The trial court found that Mr
Lehoko was a credible and left
a good impression. Further, the
evidence of Mr Lehoko as to how the deceased was assaulted is
-corroborated by the post-mortem
report and the evidence of Dr
Schutte with regard to the nature of the wounds the deceased
sustained. This is further corroborated
by the evidence of
Warrant Officer Dlamini about finding a piece of a sjambok and an
electrical pipe next to the deceased’s
body. Mr Lehoko
further testified about the visibility of the area where the assault
took place and was able to identify
the appellants as they were known
to him as neighbours. Even though the first and second
appellants tried to distance themselves
from the assault, Mr Mahlatse
testified that he found them on the premises when he went to
investigate the noise. Mr Lehoko
did not contradict himself.
[25]
I am satisfied that the court a quo did not misdirect itself in
finding that the State
had proven the guilt of the appellants beyond
a reasonable doubt. I am therefore of the view that the
appellants’ appeal
on conviction ought to be dismissed.
SENTENCE
[26]
The imposition of sentence
falls within the discretion of the trial court and an appeal court
may only interfere with a sentence
if it is satisfied that the trial
court discretion in sentencing was not judicially and properly
exercised
[9]
.
[27]
A sentence imposed by a lower court will
only be altered if:
27.1
an irregularity took place during the trial
or sentencing stage;
27.2
the court
a
quo
misdirected itself in respect of
the imposition of sentence;
27.3
the sentence imposed by the court a quo
could be described as disturbingly or shockingly inappropriate.
See
S v Salzwedel and others
1999 (2)
SACR 586
(SCA) at 591 [10]
and
S
v Malgas
2001 (1) SACR 469
(SCA) at 857 D-E
.
[28]
The issue which this court has to determine is whether the trial
court has misdirected
itself in imposing an effective sentence of 10
years’ imprisonment on the third appellant, taking into account
the fact that
at the time of the commission of the offence he was 16
years old.
[29]
In
S v Rabie
1975 (4) SA 855
(a) at 861A-862F the court stated
that punishment must fit the criminal, as well as the crime, taking
into account the interest
of society, as well as the need to blend
the sentence with a measure of mercy.
[30]
In
respect of the trial’s court’s discretion in imposing an
appropriate sentence, the court in
S
v Kgosimore
[10]
the court stated that:
“
[10]
It is trite that sentence is a matter for the discretion of the court
burdened with the task of imposing
the sentence. Various tests
have been formulated as to when a Court of appeal may interfere.
These include whether
the reasoning of the trial court is vitiated by
misdirection or whether the sentence imposed can be said to be
startlingly inappropriate,
or to induce a sense of shock or whether
there is a striking disparity between the sentence imposed and the
sentence the Court
of appeal would have imposed. All these
formulation, however, are aimed at determining the same thing; viz
whether there
was a proper and reasonable exercise of the discretion
bestowed upon the court imposing sentence. In the ultimate
analysis
this is the true inquiry. ... Either the discretion was
properly and reasonably exercised or if it was not. If it
was,
a Court of appeal has no power to interfere; if it was not, it
is free to do so.
[31]
The offence for which the third appellant was convicted falls within
the purview of the
minimum sentence regime which prescribes a minimum
sentence of life imprisonment where a murder was committed with a
common purpose,
unless
substantial and compelling
circumstances exist warranting a departure from the prescribed
minimum sentence
. However, the provisions of s 51 (1)
and (2) do not apply to an accused who was below the age of 18 years
at the time of
the commission of the offence.
[32]
There is no dispute that the crimes the appellant and the others
committed are serious.
[33]
According to the triad formulated by the Appellate
Division in
S v Zinn
1969 (2) SA 537
(A),
the personal circumstances of the
criminal, the seriousness of the offence and the interests of the
community are the relevant factors
determinative of an appropriate
sentence.
[34]
In sentencing the third appellant the court a quo took into account
his age at the time
of the commission of the offence and the fact
that he was a first offender as mitigating factors. However,
the court
a quo
appears to have given the following
aggravating factors more weight than the existing mitigating factors:
34.1 the fact
that the deceased was mercilessly and brutally assaulted by the third
appellants;
34.2 the
prevalence of the offence;
34.3 the
seriousness of the offence.
[35]
On behalf of the third appellant it was argued that the sentence
imposed was harsh in view
of the age of the third appellant at the
time of the commission of the offence. It was further submitted
that the court a
quo misdirected itself by over-emphasising the
interest of the community, the seriousness of the offence and its
prevalence.
[36]
While conceding the youthfulness of the third appellant at the time
of the commission of
the offence, it was submitted on behalf of the
respondent that the third appellant has not shown any remorse and
that the interest
of the community call for a harsh sentence.
[37]
At the time of the commission of the offence, the
third appellant was 16 years old, single and still a learner and is a
first offender.
Although the trial court took into account the
fact that the third appellant showed no remorse, I am of the view
that the trial
court
failed in this regard by
overemphasizing the interests of the community and the seriousness of
the offence at the expense of the
appellant’s personal
circumstances.
[38]
Although
the nature and seriousness of the offence the third appellant was
convicted of warranted a custodial sentence, I am not
convinced,
bearing in mind the age of the third appellant, that it was
appropriate under the circumstances. I am of the view,
as
correctly pointed out by counsel for the appellants, that the court a
quo over-emphasised the seriousness of the offence and
the interests
of the community over the personal circumstances of the third
appellant. Taking into account that the third
appellant was
still a juvenile at the time of the commission of the offence.
Bearing in mind that the third appellant’s
co-accused were
adults, there is a possibility that he participated in the assault on
the deceased out of pressure. Furthermore,
I am convinced that
the third appellant was a good candidate for rehabilitation, taking
into consideration his age and the fact
that he was still at school.
The court a quo’s reasons for preferring to impose a custodial
sentence instead of correctional
supervision
[11]
as suggested by the probation officer are not convincing.
[39]
In the result I am satisfied that the third
appellant’s appeal against sentence ought to be upheld and the
following order
is made:
1.
The appellants’ appeal against
conviction is dismissed.
2.
The sentence of the court
a
q
uo is set aside and is replaced
with the following:
‘
The
third accused is sentenced to correctional supervision in terms of
s276 (1) (h)’.
NP
MNGQIBISA-THUSI
Judge
of the High Court
I
agree:
B
MNYOVU
Acting
Judge of the High Court
Appearances
For
the Appellants: Mr. Khumalo (instructed by: Khumalo
Attorneys)
For
the Respondent: Adv Germishuis (instructed by the DPP,
Pretoria)
[1]
Act 105 of 1997.
[2]
Page 217 lines 7 – 17 of the paginated record.
[3]
1999 (2) SA 79
(W) at 81I-82E.
[4]
See also
S v Chabalala
2003 (1) SACR 134
(SCA) where the court held that: “[15] ...the correct approach
is to weigh up all the elements which point towards the
guilt of the
accused against all those which are indicative of his innocence,
taking proper account of inherent strengths and
weaknesses,
probabilities and improbabilities on both sides and, having done so,
to decide whether the balance weighs so heavily
in favour of the
State as to exclude any reasonable doubt about the accused's guilt”.
[5]
1948 (2) SA 677(A)
at 705. See also
S
vs Francis
1991 (1)
SACR 198
(A) at 204 c-f.
[6]
See
Mahlangu v S
2011 (2) SACR 164
(SCA) at para [21].
[7]
1981 (3) SA 172
(A) at 180E-G.
[8]
(537/2018)
[2020] ZASCA 42
(21 April 2020).
[9]
S v Pieters
1987 (3) SA 717
(A) at 727 F – 728 C.
[10]
1999 (2) SA SACR 238 (SCA).
[11]
Section
276(1)(h) of the Act provides that: “The following sentences
may be passed upon a person convicted of an offence,
namely- (h)
correctional supervision.