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[2017] ZASCA 2
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Langa v S (640/16) [2017] ZASCA 2 (23 February 2017)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case No: 640/16
In
the matter between:
SYDWELL
LANGA
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Langa
v The State
(640/16)
[2017] ZASCA 2
(23 February 2017)
Coram:
Shongwe,
Van der Merwe, Mocumie, JJA and Dlodlo and Potterill AJJA
Heard:
3 November
2016
Delivered:
23
February 2017
Summary:
Criminal
Law: Appeal against convictions of murder and attempted murder:
whether contradictions in State witnesses’ evidence
were
material: whether denial of s 174 application was a fatal
irregularity: whether
s 309B
of the
Criminal Procedure Act 51
of 1977
was complied with: appeal against sentence: whether sentences
should have been made to run concurrently
ORDER
On
appeal from:
The
Gauteng Local Division, Johannesburg (with Borchers J and Hattingh AJ
concurring sitting as Court of Appeal) The appeal against
the
convictions and sentences is dismissed.
JUDGMENT
Potterill
AJA (Shongwe, Van der Merwe, Mocumie JJA and Dlodlo AJA concurring):
[1]
On 17 June 1999 the appellant was found guilty on one count of murder
and one count of attempted murder in the Regional Court,
Soweto. He
was sentenced to 10 years imprisonment on the murder conviction and
four years imprisonment on the attempted murder
conviction, with the
sentences ordered not to run concurrently. The appellant lodged an
appeal against the convictions and sentences
in the Witwatersrand
Local Division, but the appeal was dismissed. That judgment is not
part of the record and despite onerous
attempts could not be traced.
The appellant then again approached the South Gauteng High Court for
leave to appeal against
the conviction and sentence to this court.
The leave to appeal to this court was granted, hence the appeal
before us.
[2]
The State raised a point in
limine
that
the record did not reflect that the appellant applied for leave to
appeal to the trial court to prosecute the appeal to the
High Court.
Leave to appeal from the trial court is a statutory requirement in
terms of section 309B of the Criminal Procedure
Act 51 of 1977
(CPA).
[1]
The
State in argument conceded that it must be assumed that the trial
court had denied leave to appeal and that the appeal was properly
before the court a quo. This assumption was fortified by the written
reasons given by the magistrate in the record, which are required
of
an appellant to obtain prior to the lodging of an appeal to the High
Court. This conceded point in
limine
accordingly
needs no further consideration.
[3]
The appellant argued that the magistrate committed a fatal
irregularity in refusing to hear the appellant’s application
for discharge at the end of the State’s case. Counsel for the
appellant conceded that this argument could only be relevant
if the
argument on the merits was upheld. From what follows this argument
must be rejected. Also, because the State had put up
a prima facie
case, despite the contradictions. Furthermore this appellant had
ample opportunity to apply for discharge in terms
of s174 of the CPA
at the same time as his co- accused did so.
[4]
The crux of the appeal revolves around whether the appellant
committed the crimes. It was submitted on behalf of the appellant,
that the identification evidence of the State witnesses was
contradictory, unreliable and that the court a quo only paid lip
service
to the cautionary rules pertaining to identification.
However, it is common cause that the appellant was present at the
time
of the shooting and that there had been an altercation between
him and the deceased prior to the shooting. Thus, identification
is
not the issue, but rather, whether the appellant was correctly found
to be the perpetrator of these offences.
[5]
On 20 April 1997 at Joe’s tavern in Meadowlands Mr Wilson
Mofokane tragically lost his life due to multiple gunshot wounds
and
Mr Smangilso Simelane (Simelane) was wounded on his right arm.
Simelane testified that he did not know the appellant
and that he did
not know whether or not the appellant was the shooter. It had been
dark where the shooter was standing. He therefore
could not identify
the shooter at the identification parade.
[6]
Mr Khutsoane (Khutsoane) testified that he recognised the appellant
in the dock from the incident, but did not know him prior
to the
incident. He did not attend an identification parade. He testified
that the lighting had been sufficient for him to see
the shooter. The
shooter was wearing a cap and a brown leather jacket. Khutsoane saw
the appellant shooting in the direction of
where the deceased was
standing. He could see that the fire-arm being used was an automatic
nine millimetre pistol. He had the
opportunity to observe the shooter
because he was immobilised due to shock and he was sober. Furthermore
he did not immediately
run away when the shooting started because he
could only walk with crutches and his crutches were lying on the
ground. He maintained
that he saw the appellant shooting more than
one shot. Although not mentioned in his statement, he testified that
he saw the shebeen
owner wrestling with the appellant during the
shooting in an attempt to gain possession of the firearm.
[7]
Mr Letsolo (Letsolo), the shebeen owner, testified that he had been
called because there was fighting in the shebeen.
He saw the
deceased and a person called Sue fighting and he and his patrons
succeeded in separating the deceased and Sue. He in
that period also
had to calm the appellant down and while doing so Sue walked away.
Later on the appellant was in the company of
Sue. After some minutes
he heard gunshots and he walked to the direction of the sound. As he
entered the passage between the main
house and room from which the
shebeen was operated he encountered the appellant in this passage
with a firearm in his hand, shooting
randomly. Mr Letsolo and his
girlfriend took the firearm from the appellant but the fire-arm was
by then empty of bullets. This
witness could not recall that he had
seen the appellant prior to that evening. This witness identified the
appellant at an identification
parade.
[8]
The appellant confirmed wearing a brown leather jacket and a cap, as
had been testified to by Khutsoane as being the clothing
worn by the
shooter. The appellant confirmed that he was identified as the
perpetrator of the crimes at an identification parade
by Letsolo. It
was never specifically put to Letsolo that the reason why he
implicated the appellant was that some problems had
arisen between
them in 1990 when the appellant, aged nine, had worked at
Letsolo’s salon some nine years prior
to this shooting.
There is no reason for the witness to deny that he knew the
appellant; that is if he could recall him from nine
years ago, as a
nine year old child. This evidence was never put to the witness and
only surfaced in the appellant’s evidence,
presumably, to
provide a motive for this witness identifying the appellant as the
perpetrator.
[9]
The appellant’s version was that his unnamed friend had fired
two warning shots to save the appellant from being attacked
by seven
people. The appellant testified that he did not shoot at all. He
conceded that the shebeen owner tried to calm him down
once, and that
the person he fought with might have been the deceased.
[10]
Khutsoane was in close proximity of the shooter, at just over a metre
away. Letsolo corroborated his version that there was
sufficient
lighting to see the shooter. Mr Khutsoane gave cogent reasons
as to why he had ample opportunity to observe the
shooter, in that he
was looking at him directly, could see him and had time to observe
his clothing as well as the type of firearm
he had in his hand. He
could not run away when the shooting started because he had to
retrieve his crutches and was thus observing
the shooter. He
was sober and shocked into watching. The immobility of Khutsoane
rendered credibility to his detailed observation
of the appellant as
the shooter. Letsolo saw the appellant shooting and wrestling with
the appellant for the firearm. He identified
the appellant as the
perpetrator at an identification parade. He was an independent
witness with no involvement in the altercations;
his only concern was
the safety of his patrons.
[11]
The contradictions in the versions of the State witnesses’ were
not material. It is immaterial whether there had been
one or two
altercations prior to the shooting. It is common cause that there was
an altercation to such an extent that the shebeen
owner was called to
intervene, which he did. In any event Letsolo testified that he did
not see the first altercation as he was
only called thereafter. In
ascertaining who pulled the trigger it is immaterial to determine who
assisted in the breaking
up of the altercation.
[2]
Whether
the shooting took place in the passage between the house and the
shebeen or in the yard of the shebeen is also not material
to who was
shooting. Letsolo testified that a photo reflected that the bullet
from the first shot made an impact on the outside
room’s window
but was blocked by the burglar bars. The other shots hit the deceased
and Simelane while another bullet hit
the outside wall of the room
from where the shebeen is run. What is clear is that shots were fired
within the perimeters of Letsolo’s
premises and not outside the
premises, as put to the witnesses on behalf of appellant. The mere
fact that the witnesses’
observations did not in all aspects
coincide does not render their versions untruthful or unreliable. The
test is whether the truth
was told, despite any shortcomings. The
trial court evaluated the evidence as a whole and correctly found the
State had proved
its case beyond reasonable doubt.
[3]
The
appeal against the convictions ought to be dismissed.
[12]
It was conceded on behalf of the appellant that the appeal ground
that the court a quo, when considering sentence, should have
considered the fact that the appellant was standing trial on another
matter, despite it not being finalised, was fatally flawed.
The fact
that ex post facto it is known that the appellant had in the matter,
when finalised, been sentenced to 33 years’
imprisonment, could
be raised on appeal as a point of appeal in that matter and not in
the matter before us.
[13]
The only other ground of appeal against sentence is that the
sentences should have been ordered to run concurrently because
the
two offences were closely connected in space and time. Section 280(2)
of the CPA provides a sentencing court with the discretion
to make an
order that sentences run concurrently. A court of appeal can only
interfere with the exercise of that discretion if
it is satisfied
that the sentencing court misdirected itself or did not exercise its
discretion judicially. Absent such proof,
this court has no
right to interfere with the exercise of the discretion of the court a
quo.
[4]
[14]
The court a quo did not provide reasons as to why the sentences were
not ordered to run concurrently. It is correct that the
offences
where closely linked in time and space, however the appellant was
randomly shooting at patrons in the shebeen in an attempt
to kill the
deceased execution style. The appellant thus intended not only to
shoot the deceased, but foresaw that by randomly
shooting in the
shebeen, he could kill other patrons. The appellant was thus not
punished twice for the same actions and therefore
the court a quo did
not misdirect itself in not ordering that the sentences run
concurrently. The cumulative effect of 14 years
imprisonment for
murder and attempted murder is not disturbingly inappropriate or
disproportionate to the offences, the needs of
society or the
personal circumstances of the appellant. The sentence of 14 years
imprisonment is not such that no reasonable court
would have imposed
the sentence. The trial court therefore did not exercise its
discretion unreasonably, it did so judicially and
there are no
grounds justifying interference with the sentence on appeal.
[15]
In the result the following order is made:
The
appeal against the convictions and sentences is dismissed.
________________
S Potterill
Acting Judge of
Appeal
APPEARANCES:
For
the Appellant:
H L Alberts
Instructed
by:
Johannesburg Justice Centre, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For
the Respondent:
S
H Rubin
Instructed
by:
Director of Public Prosecutions, Johannesburg
Director of Public
Prosecutions, Bloemfontein
[1]
S309 B(1)
(a)
Subject
to section 84 of the Child Justice Act, 2008 (Act 75 of 2008), any
accused, other than a person referred to in the first
proviso to
section 309 (1) (a), who wishes to note an appeal against any
conviction or against any resultant sentence or order
of a lower
court, must apply to that court for leave to appeal against that
conviction, sentence or order.
[Para.
(a) substituted by s. 99 (1) of Act 75 of 2008 (wef 1 April 2010)
and by s. 11 of Act 42 of 2013 (wef 1 April 2010).]
(b)
An application referred to in paragraph (a) must
be made-
(i) within 14 days after
the passing of the sentence or order following on the conviction; or
(ii) within such extended
period as the court may on application and for good cause shown,
allow.
(2)
(a)
Any application in terms of subsection (1) must be heard by the
magistrate whose conviction, sentence or order is the subject
of the
prospective appeal (hereinafter referred to as the trial magistrate)
or, if the trial magistrate is not available, by
any other
magistrate of the court concerned, to whom it is assigned for
hearing.
(b)
If the application is to be heard by a
magistrate, other than the trial magistrate, the clerk of the court
must submit a copy
of the record of the proceedings before the trial
magistrate to the magistrate hearing the application: Provided that
where the
accused was legally represented at a trial in a regional
court the clerk of the court must, subject to paragraph (c), only
submit
a copy of the judgment of the trial magistrate, including the
reasons for the conviction, sentence or order in respect of which
the appeal is sought to be noted to the magistrate hearing the
application.
(c)
The magistrate referred to in the proviso to
paragraph (b) may, if he or she deems it necessary in order to
decide the application,
request the full record of the proceedings
before the trial magistrate.
(d)
Notice of the date fixed for the hearing of the
application must be given to the Director of Public Prosecutions
concerned, or
to a person designated thereto by him or her, and the
accused.
(3)
(a)
Every application for leave to appeal must set forth clearly and
specifically the grounds upon which the accused desires to appeal.
(b)
If the accused applies orally for such leave
immediately after the passing of the sentence or order, he or she
must state such
grounds, which must be recorded and form part of the
record.
(4)
(a)
If an application for leave to appeal under subsection (1) is
granted, the clerk of the court must, in accordance with the rules
of the court, transmit copies of the record and of all relevant
documents to the registrar of the High Court concerned: Provided
that instead of the whole record, with the consent of the accused
and the Director of Public Prosecutions, copies (one of which
must
be certified) may be transmitted of such parts of the record as may
be agreed upon by the Director of Public Prosecutions
and the
accused to be sufficient, in which event the High Court concerned
may nevertheless call for the production of the whole
record.
(b)
If any application referred to in this section is
refused, the magistrate must immediately record his or her reasons
for such
refusal.
(5)
(a)
An application for leave to appeal may be accompanied by an
application to adduce further evidence (hereafter referred to as
an
application for further evidence) relating to the conviction,
sentence or order in respect of which the appeal is sought to
be
noted.
(b)
An application for further evidence must be
supported by an affidavit stating that-
(i) further evidence
which would presumably be accepted as true, is available;
(ii) if accepted the
evidence could reasonably lead to a different decision or order; and
(iii) there is a
reasonably acceptable explanation for the failure to produce the
evidence before the close of the
trial.
(c)
The court granting an application for further
evidence must-
(i) receive that evidence
and further evidence rendered necessary thereby, including evidence
in rebuttal called by
the prosecutor and evidence called by the
court; and
(ii) record its findings
or views with regard to that evidence, including the cogency and the
sufficiency of the evidence,
and the demeanour and credibility of
any witness.
(6)
Any evidence received under subsection (5) shall for the purposes of
an appeal be deemed to be evidence taken or admitted
at the trial in
question.
[2]
S v
Mafaladiso en andere
2003 (1)
SACR 583
(SCA) at 594 c-d
[3]
S v
Bruiners en ‘n ander
1998 (2)
SACR 432 (SE);
S
v Safatsa and others
1988 (1) SA
868 (A).
[4]
S v
Mokela
[2011]
ZASCA;2012011)
SACR 431 (SCA) para 10