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[2021] ZAKZPHC 37
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Motala and Another v S (AR667/17) [2021] ZAKZPHC 37 (7 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR667/17
In
the matter between:
RIDWAAN
MOTALA
First
Appellant
ADHIL
BRIDGEMOHAN BUCKUS
Second
Appellant
and
THE
STATE
Respondent
ORDER
On
appeal from
the Ladysmith Regional
Court (sitting as court of first instance):
1.
The first appellant’s appeal against his convictions in respect
of counts 1, 2 and
3 are dismissed.
2.
The first appellant’s appeal against the sentences imposed in
respect of counts 1 and
2 are dismissed.
3.
The first appellant’s appeal against the sentence imposed in
respect of count 3 is
upheld and is amended to read:
“
In
respect of count 3, first appellant is sentenced to twenty years’
imprisonment, which sentence is to run concurrently with
the sentence
of 15 years’ imprisonment imposed in respect of count 2.”
4.
The effective term of imprisonment in respect of the first appellant
is therefore 24 years’
imprisonment.
5.
The second appellant’s appeal against the sentences imposed in
respect of counts 1
and 2 is upheld and amended to read as follows:
“
In
respect of count 1, second appellant is sentenced to four years’
imprisonment. In respect of count 2, second appellant
is sentenced to
four years’ imprisonment. It is ordered that the sentence
imposed in respect of count 2 shall run concurrently
with the
sentence imposed on count 1”.
6.
The effective term of imprisonment in respect of second appellant is
therefore 4 years’
imprisonment.
JUDGMENT
delivered
on: 07 May 2021
BEZUIDENHOUT
AJ with MADONDO DJP (Concurring)
[1]
The first and second appellants were initially charged on three
counts, namely:
(a)
Count 1 – Housebreaking with the intent to commit a crime
unknown to the State.
(b)
Count 2 – Robbery with aggravating circumstances as intended in
Section 1 of Act 51 of 1977.
(c)
Count 3 – Murder
[2]
On 20 June 2017 the first appellant was convicted as follows:
(a)
Count 1 – Housebreaking with the
intent to steal.
(b)
Count 2 – Robbery with aggravating circumstances.
(c)
Count 3 – Murder
[3]
The second appellant was convicted of only count 1 and count 2 on the
same day. The conviction
in respect of count 1 was also for
housebreaking with the intent to steal, a competent verdict of the
original charge.
[4]
The first appellant was sentenced to four (4) years imprisonment on
count 1, fifteen (15) years
imprisonment on count 2 (in terms of the
minimum sentence legislation) and to life imprisonment on count 3
(again in terms of the
minimum sentence legislation).
[5]
The second appellant was sentenced to seven (7) years imprisonment on
each of the two counts and
the terms were ordered to run
consecutively, an effective term of 14 years’ imprisonment.
[6]
The first appellant was granted leave to appeal against both
conviction and sentence by the magistrate
with the second appellant
only granted leave to appeal (on petition) against sentence.
[7]
The facts of the matter were briefly that on the evening or early
morning of 16 and 17 of June
2016, the two appellants gained entry to
the house of the deceased, Mrs Zarina Moolla, a 67-year-old female.
Their intention was
to steal money and it appears that they were
under the impression that she was not at home. The first appellant
went into her room
and found her sleeping in her bed. She woke up and
cried out. The first appellant retrieved a knife from the deceased’s
kitchen
and stabbed her to death, in a particularly brutal manner.
The appellants left the home of the deceased and were arrested a few
days later.
[8]
It is common cause that the State only relied on circumstantial
evidence.
[9]
The first appellant made a pointing out during which he pointed out a
knife and a set of keys.
He also pointed out where and how access was
gained to the deceased’s property and where the knife was taken
from in the
deceased’s kitchen.
[10]
A trial within a trial was conducted as the first appellant disputed
that the pointing out was done freely
and voluntarily. Very few
aspects of the evidence given in the trial within a trial were
disputed and the first appellant failed
to give evidence. The
magistrate ruled the pointing out to be admissible, correctly in my
view.
[11]
The first appellant further more resides in the house next to the
deceased and had acted as a house-sitter
for her on many occasions in
the past.
[12]
The first appellant was aware of the fact that the deceased received
envelopes containing cash on 16 June
2016 as a charity contribution
made during the month of Ramadhan. His own mother had received a
similar contribution on the same
day.
[13]
The set of keys pointed out by first appellant was identified by the
deceased’s housekeeper as belonging
to her. The knife was
identified by the investigating officer as being identical to other
knives found in a ‘butcher block’
from the deceased’s
kitchen and in fact fitted perfectly in the only open space in the
butcher’s block.
[14]
The first appellant claimed that on the evening of the incident he
was visiting a relative’s house
where they smoked ‘rock’
together. He returned to his house at around 22h00 where he went to
sit inside a motor vehicle
to listen to music where he fell asleep
and only awoke the next morning.
[15]
He also claimed that after his arrest he was severely assaulted over
many hours by members of the police
service. He was thereafter taken
by certain police members and shown exactly where the knife and keys
were in two different open
fields and told to point the items out to
the officer conducting the pointing out, which he did.
[16]
The State re-opened its case to call a witness who had given the
first appellant a lift into town around
01h00 in the morning of 17
June 2016. Upon his return he again saw the first appellant walking
next to the road and again gave
him a lift back to where he came
from.
[17]
The second appellant made a confession to a magistrate. It was also
disputed that it was made freely and
voluntarily and a trial within a
trial was held. The magistrate ruled the confession to be admissible,
correctly in my view.
[18]
The second appellant testified that he also had been severely
assaulted over many hours and only agreed to
make a confession in
order to stop the assaults on him. He claimed that what was taken
down in the confession was a story made
up by him based on pieces of
information he gleaned from the policemen interrogating and
assaulting him.
[19]
He also testified that on the evening in question he was at home
watching a movie with his mother and his
nephew. He went to bed at
around 00h30 that evening or early morning and did not leave the
house. He called no witnesses to support
his alibi, his mother being
too old and sickly to give evidence.
[20]
From the second appellant’s confession, it appears that he and
the first appellant went to the deceased’s
house on the evening
in question. The first appellant told him that the deceased was not
at home. They entered through the kitchen
door. He kept watch in the
kitchen whilst the first appellant went into the deceased’s
bedroom to look for money. The first
appellant apparently then found
the deceased sleeping. She woke up and shouted at him. The second
appellant heard her making a
noise, and when he entered the room he
saw holes in stomach and on the side of her body. He ran outside and
waited for the first
appellant who came out a while later. They left
the house and went to buy drugs.
[21]
The magistrate convicted both appellants on circumstantial evidence.
She was well aware of the fact that
the confession made by the second
appellant could not be used as evidence against first appellant.
[22]
As far as circumstantial evidence is concerned, the following was
said in
S
v Reddy and others
:
[1]
‘
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted
dictum
in
R v Blom
1939 AD 188
at 202-3, where reference is made to two cardinal rules
of logic which cannot be ignored. These are, firstly, that the
inference
sought to be drawn must be consistent with all the proved
facts and, secondly, the proved facts should be such “that they
exclude every reasonable inference from them save the one sought to
be drawn”. The matter is well put in the following remarks
of
Davis AJA in
R v De Villiers
1944 AD 493
at 508-9:
“
The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way; the
Crown must satisfy the Court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”’
[23]
The magistrate, also quite correctly, found that there was no
evidence before her that more than one person
participated actively
in the murder of the deceased. She said the following:
‘
It
just seems more likely that the intention initially was to enter this
house to steal the money but when the deceased was discovered
in the
house this intention changed from merely stealing into robbing the
deceased and having to use force to kill the deceased.’
[24]
In argument before us Ms Hulley, appearing for the appellants, argued
that the magistrate should have accepted
what first appellant said in
his pointing out, namely that he saw his accomplice throw the knife
away, and that’s how he
knew where the knife was.
[25]
It is however clear from the record that this version was not
repeated by first appellant when he gave evidence
under oath.
[26]
It is clear in my view that taking into account the cumulative effect
of all the evidence led by the State,
the magistrate was correct in
convicting the first appellant, as she did on all three counts. She
was also correct in acquitting
the second appellant on the count of
murder and only convicting him on the first two counts. I can find no
misdirection in her
approach to the evidence and the conclusions
drawn from it.
[27]
As far as sentence is concerned, there are however a couple of
misdirections made by the magistrate.
[28]
I will deal with the sentence of the second appellant first as
counsel for the State, Mr Mbokazi, quite rightly
and appropriately
conceded that the effective sentence of 14 years’ imprisonment
imposed by the magistrate constituted a
material misdirection.
[29]
The second appellant was sentenced to 7 years’ imprisonment on
the first count of housebreaking with
the intention to steal whereas
the first appellant, who for all intents and purposes was the
instigator, only received a sentence
of 4 years’ imprisonment.
[30]
From the record it is clear that the magistrate was attempting to
punish the second appellant for not distancing
himself from the first
appellant’s behaviour and because ‘he did nothing’
and then ‘joined in the spoils’.
[31]
Although the magistrate indicated that she considered the cumulative
effect of the sentence imposed, it is
clear that she merely paid lip
service to this aspect and did not give it proper consideration.
[32]
Our courts have dealt with this aspect on numerous occasions and have
found that a sentencing court must
have regard to the cumulative
effect of a sentence to ensure that it does not become shockingly
inappropriate.
[2]
[33]
Where the cumulative effect of a number of sentences strikes one as
excessive appellate interference is warranted.
[3]
[34]
As far as the sentences imposed in respect of the first appellant and
in particular on counts 1 and 2, the
magistrate cannot be faulted.
[35]
The sentence imposed on count 3 – that of life imprisonment,
requires closer scrutiny. During the hearing
of this matter Ms Hulley
raised an interesting point, which was not dealt with during the
trial, during the sentencing proceedings,
during the application for
leave to appeal, or in her heads of argument for that matter.
[36] Ms
Hulley submitted that the magistrate had failed to explain to the
appellants the correct minimum sentences.
We were referred to the
record of the proceedings where the magistrate explained the
following to the appellants:
‘
Mr
Motala and Mr Buckus, before you plead, just listen to the following
explanation. You understand that as far as the robbery with
aggravating circumstances charge is concerned, as well as the murder
charge there are minimum sentences applicable. As far as the
robbery…. As far as the murder is concerned, the same applies,
if you are a first offender 15 years’ imprisonment
if you are
convicted of murder, 20 years’ imprisonment, for a second
offender, and 25 years’ imprisonment for a subsequent
offender.
Do you both understand the concept of minimum sentencing?’
[37]
Prior to the magistrate explaining the above to the appellants, the
prosecutor put the charges to the accused.
It is however not recorded
what exactly was read out to the accused, as is the norm in appeal
records. It simply states that the
‘Prosecutor puts charge to
accused’.
[38]
The charge sheet in respect of count 3, the murder charge, reads as
follows:
‘
That
the accused is/are guilty of the crime of MURDER read with the
provisions of section 51(1), 51(2) (a)/(b)/(c) (Parts I, II,
III and
IV of Schedule 2) of the
Criminal Law Amendment Act 105 of 1997
).
Delete if not applicable.
IN
THAT during 10-17 June 2010 and near or at Ladysmith in the Regional
Division of KwaZulu-Natal, the accused did unlawfully and
intentionally kill ZARINA MOOLLA, a female person.
The
principles of the doctrine of common purpose will apply to the facts
(unless it is alleged that accused acted on his/her own)
i.e.
it is alleged that the accused acted in common purpose
.
Competent verdicts for
murder –
Section 258
CPA and Offences not mentioned –
Section 270
of the
Criminal Procedure Act 51 of 1977
.
MINIMUM SENTENCE/S THAT
MAY BE APPLICABLE:
·
Notwithstanding any other law, but subject
to
sections 51(3)
and (6) a Regional Court or High Court shall
sentence the accused, if convicted of the above charge, an offence
referred to in
Part 1
of Schedule 2 of Act 105 of 1977, to
imprisonment for life.
·
If accused is/are convicted of the above
charge, as mentioned in Part 2 of Schedule 2 of Act 105 of 1977
section 51(2)(a) makes
provision for a minimum sentence of:
(i)
15 years imprisonment in case of a first
offender;
(ii)
20 years imprisonment in case of a second
offender;
(iii)
25 years imprisonment in case of a third or
subsequent offender…’
No
sections or portions were deleted on the charge sheet. The underlined
portion was added in script, presumably by the prosecutor,
on the
original charge sheet.
[39]
On the face of it, it appears as if the magistrate in error explained
the minimum sentences applicable to
a charge as mentioned in Part 2
of Schedule 2 of Criminal Law Amendment Act 105 of 1977 (the minimum
sentencing legislation).
[40]
As this particular point was not raised in the heads of argument
filed by Ms Hulley on behalf of the appellants,
Mr Mbokazi, for the
State did not and could not address this issue fully before us. I
requested Ms Hulley to provide me with case
law, which she did in
reply, albeit only in the way of providing the case citation and a
brief referral to the head notes. She
referred us to the following
two cases namely
S
v Legoa
[4]
and
Khoza
and another v S
.
[5]
[41]
Bearing in mind the importance of this aspect, I deemed it crucial
and in the interests of justice to afford
both counsel an opportunity
to submit further heads of argument to deal with the above decisions
as well as a subsequent decision
on a similar issue namely
S
v Ndlovu
,
[6]
delivered on 15 June 2017. Accordingly, a letter was addressed to
both counsel involved and their supplementary heads of argument
were
received on 28 April 2021 and the 3
rd
May 2021 respectively.
[42]
In
Ndlovu
,
supra, the Constitutional Court dealt with the situation where the
applicant had been charged in the regional court with rape
subject to
the provisions of section 51(2) of the minimum sentencing legislation
and was informed at the commencement of the trial
that the court was
bound to impose a minimum sentence of 15 years imprisonment. After
hearing evidence of the serious nature of
the complainant’s
injuries, the magistrate found the applicant guilty ‘as
charged’ but sentenced him to life
imprisonment in terms of
section 51(1) of the minimum sentencing legislation.
[43]
The court found at paragraph 46 that the regional court did not have
jurisdiction to impose life imprisonment
in terms of section 51(1) as
Mr Ndlovu had been convicted of rape read with section 51(2) and
accordingly the magistrate was required
to impose a minimum sentence
of 10 years imprisonment. The regional court’s jurisdiction was
also limited to a maximum of
15 years’ imprisonment in terms of
section 51(2) of the minimum sentencing legislation.
[44]
Mr Mbokazi, in his supplementary heads of argument, correctly in my
view, submitted that the charge to which
the appellants pleaded was
ambiguous as it referred to both sections 51(1) and 51(2) of the
minimum sentencing legislation as nothing
had been deleted.
[45]
He furthermore conceded that the magistrate made an error when she
explained the minimum sentence applicable
to the murder count which
was count 3 and that such error created an expectation with the
first appellant that he was facing
a less stringent punishment.
[46]
Mr Mbokazi finally submitted that the magistrate misdirected herself
in imposing life imprisonment. I fully
agree with this submission.
The magistrate’s misdirection has a direct bearing on the first
appellant’s right to a
fair trial and falls to be set aside.
[47]
The first appellant chose not to give evidence in mitigation. His
legal representative placed the absolute
bare minimum about the first
appellant’s personal circumstances on record.
[48]
The first appellant was a first offender and 27-years-old. He was
self-employed as a mechanic and earned
between R7 000.00 and R10
000.00 per week. He was not married and had no children. In
S
v Vilakazi
[7]
Nugent JA said that in cases involving serious crime deserving a
substantial period of imprisonment, the personal circumstances
of an
offender recede into the background. I cannot agree more.
[49]
It was submitted by his legal representative that ‘drugs did
play a role in the commission of this
offence’. However, as
mentioned before, the first appellant chose not to give evidence and
did not take the court into his
confidence by disclosing the nature
of his drug use or addiction. In
S
v Piater
[8]
the fact that an accused did not take the court into her confidence
by testifying and subjecting herself to cross-examination,
was held
against her.
[50]
I am of the view that the first appellant has failed to demonstrate
any circumstances which justify the imposition
of a lesser sentence
from what is prescribed in the minimum sentence legislation. I deem
it therefore unnecessary to even discuss
the principles as set out in
S
v Malgas
.
[9]
[51]
In terms of section 51(2) of the minimum sentencing legislation, the
maximum term of imprisonment a regional
court magistrate may impose
‘shall not exceed the minimum term of imprisonment that it must
impose in terms of this subsection
by more than five years’.
[52]
The question as to whether a sentence in excess of the prescribed
minimum is competent has been answered
in the affirmative in
S
v Mthembu
,
[10]
which was approved and confirmed by the Supreme Court of Appeal.
[11]
[53]
The first appellant was convicted of a violent and vicious murder on
an innocent and unsuspecting woman of
67 years in her own home. The
post mortem report indicated that the deceased sustained four stab
wounds to her chest and five stab
wounds to her abdomen. A further
stab wound to her neck was inflicted with so much force that the
larynx, pharynx and oesophagus
were completely severed. In this day
and age where violence against women is becoming more prevalent every
day, the first appellant
certainly deserves a lengthy period of
imprisonment.
[54]
I agree with Khampepe J, in
Ndlovu
[12]
that ‘[it] is therefore incumbent upon prosecutors to discharge
this duty diligently and competently’. The utmost care
should
be taken when drafting charge sheets to ensure that the correct
sections are relied upon and explained to an accused person.
The
magistrate herself should also have ensured that she explained the
correct provisions to the accused persons appearing before
her. It
was clear from the charge sheet that the State was relying on the
doctrine of common purpose and that life imprisonment
would be the
prescribed sentence and accordingly explained to the accused.
[55]
The following order is made:
1.
The first appellant’s appeal against his convictions in respect
of counts 1, 2 and
3 are dismissed.
2.
The first appellant’s appeal against the sentences imposed in
respect of counts 1 and
2 are dismissed.
3.
The first appellant’s appeal against the sentence imposed in
respect of count 3 is
upheld and is amended to read:
“
In
respect of count 3, first appellant is sentenced to twenty years’
imprisonment, which sentence is to run concurrently with
the sentence
of 15 years’ imprisonment imposed in respect of count 2.”
4.
The effective term of imprisonment in respect of the first appellant
is therefore 24 years’
imprisonment.
5.
The second appellant’s appeal against the sentences imposed in
respect of counts 1
and 2 is upheld and amended to read as follows:
“
In
respect of count 1, second appellant is sentenced to four years’
imprisonment. In respect of count 2, second appellant
is sentenced to
four years’ imprisonment. It is ordered that the sentence
imposed in respect of count 2 shall run concurrently
with the
sentence imposed on count 1”.
6.
The effective term of imprisonment in respect of second appellant is
therefore 4 years’
imprisonment.
BEZUIDENHOUT
AJ
MADONDO
DJP (concurring)
APPEARANCES
Date of hearing
: 23
April
2021
Date
of judgment :
07 May 2021
For Appellant :
A Hulley
Instructed by :
DURBAN JUSTICE CENTRE
Ground
Floor
22
Dorothy Nyembe Street
DURBAN
Fax:
031 – 304 3564
Tel:
031 – 304 0100
Email:
AmandaH@legal-aid.co.za
Ref:
MS A HULLEY/X780800119
For Respondent:
B N Mbokazi
Instructed by :
DEPUTY DIRECTOR OF PUBLIC PROSECUTION
Tel:
031 – 334 5114
Email:
BMbokazi@npa.gov.za
Ref:
BN Mbokazi
[1]
S
v Reddy and others
1996 (2) SACR 1
(A) at 8C-G.
[2]
See
S
v Moswathupa
[2011] ZASCA 172
,
2012 (1) SACR 259
(SCA);
Zimila
v S
[2017] ZASCA 55;
S
v Mhlakaza and another
1997 (1) SACR 515 (SCA).
[3]
S
v Dube
2012 (2) SACR 579
(ECG) para 11.
[4]
S
v Legoa
2003 (1) SACR 13
(SCA)
[5]
Khoza
and another v S
[2017] ZANWHC 108.
[6]
[6]
S
v Ndlovu
2017 (2) SACR 305 (CC).
[7]
S
v Vilakazi
2009 (1) SACR 552
(SCA) para 58.
[8]
S
v Piater
2013 (2) SACR 254 (GNP).
[9]
S
v Malgas
2001 (1) SACR 469
(SCA).
[10]
S
v Mthembu
2011 (1) SACR 272 (KZP).
[11]
S
v Mthembu
2012 (1) SACR 517 (SCA).
[12]
S
v Ndlovu
2017 (2) SACR 305
(CC) para 58.