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[2021] ZAKZPHC 95
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Kweyama v S (AR416/2019) [2021] ZAKZPHC 95 (1 December 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR416/2019
In
the matter between:
CYPRIAN
SIPHO
KWEYAMA APPELLANT
and
THE
STATE RESPONDENT
Coram:
Jasat
AJ (Olsen J concurring)
Heard:
05
November 2021
Delivered:
01
December 2021
ORDER
On
appeal from:
Esikhawini Regional Court
(sitting as court of first instance):
1. The
appeal against the conviction is dismissed, and the conviction is
confirmed.
2. The
appeal against the sentence succeeds. The sentence of the court
a
quo
is set aside and is substituted with the following:
‘
The
appellant is sentenced to 15 years’ imprisonment, such sentence
antedated to 11 October 2018.’
JUDGMENT
Jasat
AJ (Olsen J concurring)
[1] The
appellant was arraigned in the Regional Court sitting at Esikhawini
on one count of murder, read with section
51 and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997 (‘the Amendment Act’)
together with Mr Dumisani Mthembu
(‘accused 2’). The
appellant was legally represented at his trial and pleaded not guilty
to the charge. In support
of his plea of not guilty, the appellant
submitted a statement in terms of section 115 of the Criminal
Procedure Act 51 of 1977
(‘the Act’), incorporating
admissions in terms of section 220 of the Act. The appellant and
accused 2 were both convicted
of murder and sentenced to life
imprisonment on 11 October 2018. This appeal is before us only in
respect of the appellant.
[2] Exercising
his automatic right of appeal,
[1]
the matter is now before us on appeal against both conviction and
sentence.
[3] The
appellant admitted that the deceased was an adult male person known
as Mr Thulani Cyril Mkhwanazi (‘the
deceased’), and that
at the time of his death, he was approximately 37 years of age.
[4] It
was common cause that:
(a) the
deceased was assaulted on 7 December 2014 at or near Port Dunford and
subsequently died whilst
at Ngwelezane Hospital on 18 December 2014.
(b) the
appellant, as well as accused 2, were present at the scene where the
deceased was assaulted.
(c) the
State sought to amend its charge sheet to allege that the offence for
which the appellant was
charged with, was committed by a group of
people acting in furtherance of a common purpose. The amendment was
subsequently granted
by the court
a quo
.
(d) the
amendment to the charge sheet was not objected to at the trial by the
legal representatives
for the appellant, and was further not raised
as a ground of appeal herein.
[5] The
crisp issue therefore before the court
a
quo
and before us on appeal is whether
the appellant:
(a) was
part of a group who had assaulted the deceased, and
(b) formed
common purpose by actively associating himself and acting in concert
to participate in a
criminal endeavour with the actions of the group.
[6] In
order to prove the case against the appellant, the State relied
amongst others on the evidence of Mr Siboniso
Mkhwanazi (Siboniso),
who was the deceased’s cousin, Mr Sipho Mthiyane (Mthiyane) and
Mr Emmanuel Mkhwanazi (Emmanuel), the
deceased’s elder brother.
[7] The
facts of the matter are succinctly captured in the judgment of the
court
a quo
.
In as much as this appeal lies against both conviction and sentence,
it is necessary to briefly have regard to those facts. I
now turn to
deal with the conviction of the appellant.
[8] By
way of brief background, the evidence led was that the accused 2’s
home was burgled and his firearm,
cellular phone and cash was stolen.
On 7 December 2014, the appellant, who was an independent councillor
for Ward 13 in the Mpembeni
area, had convened a community meeting in
the Madaka area. Accused 2 was also present at the meeting. Accused 2
had approached
the appellant and requested to be excused from the
meeting. Accused 2 later returned to the community meeting in the
company of
the deceased, who allegedly confessed to members of the
community and offered to return accused 2’s firearm. It is
alleged
that after the deceased confessed to the community meeting
members, they started assaulting him. Accused 2 had placed the
assaulted
deceased into the appellant’s motor vehicle, as the
deceased had requested that he, the appellant, and accused 2 go to
his
(the deceased’s) homestead to fetch the firearm.
[9] It
is significant that it was only when they arrived at the deceased’s
homestead in Port Dunford that
the serious assaults, which ultimately
led to the death of the deceased, occurred.
[10] Siboniso
testified that, on 7 December 2014, he was in a house which is used
as a church. After church services
had been completed, Siboniso
together with other church members, were sitting in a circle holding
a meeting. Siboniso noticed four
vehicles approaching, which stopped
near the homestead. He described the motor vehicles as a bakkie, a
white Golf, a silver brown
Cressida and a white truck with
approximately 50 people on, who then proceeded to surround the house.
Siboniso further testified
that five to six people had entered the
premises. Amongst them was the deceased, who appeared to have been
assaulted as he was
bleeding from the mouth and his head, the
appellant and another person claiming to have lost his firearm.
Siboniso noticed that
the appellant was carrying a stick and accused
2 was carrying a sjambok.
[11] Upon
enquiring from Siboniso and the church members on the whereabouts of
one Nde, they exited the premises
with the deceased. Whilst being
approximately six metres away from them, Siboniso witnessed the
appellant hitting the deceased
with a stick several times, whereafter
the deceased fell down. The deceased was then assaulted by accused 2,
and other members
of the community who had accompanied the appellant
to the deceased’s homestead.
[12] Under
cross-examination, Siboniso testified that although there were people
with and in front of him, it did
not obstruct his view, as he could
clearly see the appellant assaulting the deceased. At first Siboniso
did not know the people
who had entered the house, but later learnt
that it was the appellant. Siboniso remained steadfast in his version
that the appellant
had assaulted the deceased, and that the deceased
had fallen down. Siboniso testified that he did not see any injuries,
as he and
the church members who were present, were chased away by
the appellant.
[13] Mthiyane
testified that he was a ward councillor for Ward 18 in Port Dunford.
He arrived at the scene after
receiving a report that the deceased
was being assaulted. He found the deceased lying on the ground
wrapped in a blanket, assaulted
and bleeding from his head. At the
scene, Mthiyane saw the appellant, accused 2 and a group of people.
Mthiyane approached the
appellant and accused 2, both of whom were
well-known to him. After speaking to accused 2, who was not far from
the appellant who
was leaning against a motor vehicle, Mthiyane
approached the deceased and enquired from him as to who had assaulted
him. Prior
to Mthiyane approaching the deceased, Mthiyane had
approached the appellant to enquire what had happened to the
deceased, and the
appellant merely told Mthiyane to speak to the
deceased. Based on the appellant’s response, Mthiyane
approached the deceased,
who reported to Mthiyane that the appellant
and accused 2 had assaulted him as they had suspected him of having
stolen accused
2’s money and firearm. The deceased had denied
that he was involved in the theft. At the time when the deceased
reported
this to Mthiyane, the appellant was standing approximately
three metres away.
[14] Emmanuel
testified that he was the deceased’s elder brother. He is
employed as a warrant officer with
the South African Police Service,
and is stationed at the KwaDukuza Crime Intelligence Unit. He is also
a bishop of the church
at his homestead. On 7 December 2014, he
attended at his homestead after receiving a call from a church
member, and on his arrival
he saw a crowd of people standing at the
gate. He testified that the deceased was severely assaulted and
injured. The appellant
and accused 2 were standing next to his
brother and he asked them what had happened. The appellant responded
that he must ask the
deceased. Emmanuel further testified that prior
to this date, he did not know the appellant.
[15] On
the appellant’s version, he confirmed the contents of his
section 115 plea statement, and corroborated
Mthiyane’s version
that he was a ward councillor during 2014. The appellant testified
that on 7 December 2014, the deceased
addressed the community where
he was chairing a meeting together with accused 2 in the Makaga area.
The deceased reported to the
community that he had taken accused 2’s
firearm, money and cellular phone, whereafter the community members
started assaulting
the deceased using twigs and sticks. However, the
appellant reprimanded the community members. When the community did
not listen
to his instruction to stop assaulting the deceased, the
deceased was taken to the appellant’s motor vehicle by accused
2,
as the deceased requested that the appellant and accused 2
accompany him to Port Dunford to retrieve the firearm. On arrival at
Port Dunford, the appellant noticed that other motor vehicles had
followed him. The community members could not assault the deceased
as
the appellant was guarding him. When questioned why he did not stop
at the police station, his response was that he did not
want to
interfere with the deceased’s arrangement with accused 2.
[16] During
cross-examination, the appellant confirmed that the deceased was
assaulted because they wanted him
to admit where the firearm was, and
that the deceased was not taken to the police station because he
refused to be taken to it.
[17] The
appellant called a witness, Mr Falakhe Maphumulo (Maphumulo), who
testified that accused 2 drove the appellant’s
motor vehicle
when transporting the deceased to Port Dunford. Maphumulo testified
that the appellant did not do anything to the
deceased. He further
testified that Mthiyane eventually arrived and spoke to the
councillors and transported the deceased to the
clinic. During
cross-examination, Maphumulo testified that accused 2 had pushed the
deceased with his knee, and stomped on his
chest and that this
happened in sight and in front of the appellant. He also stated that
when Mthiyane arrived at Siboniso’s
homestead, he was not with
the appellant. He also testified that Siboniso had arrived before
Mthiyane.
[18] The
appellant in his ground of appeal contends that:
(a) the
court erred in accepting the evidence of Sibusiso;
(b) the
evidence of Siboniso was not clear and satisfactory in every material
respect;
(c) the
court erred in accepting that Siboniso’s evidence had been
corroborated;
(d) the
court erred in relying on hearsay evidence for corroboration;
(e) the
court erred in placing any reliance on the evidence of Emmanuel.
[19] Our
law requires that the guilt of the accused must be proved beyond a
reasonable doubt. The corollary is
that the accused is entitled to be
acquitted if it is reasonably possibly true that he might be
innocent. The court has to take
all the evidence into account,
consider inherent strengths, weaknesses, probabilities and
improbabilities on both sides. The conclusion
of a trial court on
factual findings is deemed to be correct unless the appeal court is
convinced that the assessment of the evidence
was wrong.
[2]
[20] It
is also trite that a court
a quo
must be cautious when considering the reliability of evidence
provided by a single witness. It is apparent from the judgment of
the
court
a quo
that the court was at all times aware of the dangers when considering
the evidence of Siboniso as he was a single witness. Section
208 of
the Act provides that ‘an accused may be convicted of any
offence on the single evidence of any competent witness’.
[21] The
court
a quo
relied essentially on the evidence of Siboniso and Mthiyane which was
corroborated to some degree by the evidence of Emmanuel.
The court
a
quo
was alive to the fact that
Siboniso’s evidence was that of a single witness and that he
was the deceased’s cousin.
[22] For
the appellant to contend that the evidence of Siboniso was not clear
and satisfactory in every maternal
respect, there must, however, be
an evidential basis for suggesting that the evidence of a single
witness may be unreliable. The
court in
S v
Sauls
[3]
held as follows:
‘
There is no rule
of thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness . .
. 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 . . .It
has been said more than once that the exercise of caution must not be
allowed to displace
the exercise of common sense.’
[23] The
court
a quo
found that Siboniso’s evidence did not exhibit any bias adverse
to the appellant and furthermore that his evidence was corroborated
to a certain extent by that of accused 2. The court
a
quo
was also very much alive to
Siboniso having an interest as to what happened, as he is a member of
the deceased’s family,
they were in a church at his house when
they were attacked by this group of people and the deceased having
been assaulted in his
presence. These factors would warrant that the
perpetrator be adequately dealt with.
[24] The
statement by the deceased to Mthiyane was admitted by the court
a
quo
as evidence. Apparent from the
record, as well as the judgment delivered by the court
a
quo,
was that the appellant’s
legal representation did not argue against the admission of that
evidence. The court
a quo
nonetheless, correctly in my view, held that
section 3(1)
(c)
of the
Law of Evidence Amendment Act 45 of 1988
provides the
circumstances that the court needs to take into consideration in
dealing with hearsay evidence.
[25] In
S
v Trainor
[4]
it was held:
‘
A conspectus of
all the evidence is required. Evidence that is reliable should be
weighed alongside such evidence as may be found to
be false.
Independently verifiable evidence, if any, should be weighed to see
if it supports any of the evidence tendered. In considering
whether
evidence is reliable, the quality of that evidence must of necessity
be evaluated, as must corroborative evidence, if any.
Evidence, of
course, must be evaluated against the
onus
on any particular
issue or in respect of the case in its entirety.’
[26] In
my view, the court
a quo
was correct in admitting the evidence of Mthiyane and to an extent
that of Siboniso, both of whom were present when the statement
was
made by the deceased. Due consideration was also given to the absence
of the lack of objection to the admission of the evidence
by the
appellant.
[27] The
court
a quo
accepted that Siboniso’s evidence and that of Mthiyane
corroborated same.
[28] The
court
a quo
rejected the evidence of the appellant, and in particular found that
the version proffered by the appellant differed from that
set out in
his
section 115
plea statement at the commencement of the trial.
[29] The
appellant’s version as contained in his
section 115
plea
statement, compared to his testimony during the proceedings, was
correctly described by the learned magistrate in the judgment
as
follows:
’
Unfortunately
their versions are infested with the greatest of contradictions and
improbabilities. Accused 1 denied certain portions
of his statement,
exhibit “A”. He attributed the presence of such
contradictions to the issue of language between himself
and the
person who took the statement. When questioned by the prosecutor as
to the reasons behind his signature and acceptance
of the correctness
of the contents of exhibit “A”, his answers in that
regard were absolutely feeble.’
[30] The
appellant as well as his witness, Maphumulo, were proved to be
dishonest and unreliable witnesses. The
court
a
quo
found that Maphumulo was an
appalling witness, who at any given stage was ready to alter his
evidence to align itself with the
question. He contradicted the
appellant as well as himself. The appellant admitted that he was a
councillor and a man who exercised
a degree of authority. It was
accordingly nonsensical that he would not assume the role of a person
of authority and contact the
police when the incident took place or
to report the incident to the police or to assist the deceased by
taking him to a clinic
for medical assistance.
[31] The
court
a quo,
correctly in my view, held that Siboniso’s evidence should be
accepted, and that accordingly, the appellant and accused 2
had
assaulted the deceased. The appellant used a stick whilst accused 2
used a sjambok. As a consequence of the assault that the
appellant
perpetrated on the deceased, other members of the public joined in
and also assaulted the deceased, and the deceased
was so severely
assaulted that he died 11 days later at Ngwelezane Hospital.
[32] The
court
a quo
,
in my view, correctly concluded that the appellant was present at the
scene where the deceased was assaulted, and that he was
aware that
the deceased was being assaulted by others. But more importantly, the
appellant made common purpose by assaulting the
deceased with a
stick. Of significance, and taking into consideration the appellant’s
section 115 plea statement, the appellant
clearly stated: ‘we
told them if they continue to assault Thulani he will die’.
[33] The
Constitutional Court in
S
v Thebus and another
[5]
confirmed the principles applicable to the doctrine of common
purpose, and held that:
‘
The
doctrine of common purpose is a set of rules of the common law that
regulates the attribution of criminal liability to a person
who
undertakes jointly with another person or persons the commission of a
crime.
Burchell
and Milton
define
the doctrine of common purpose in the following terms:
“
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from their
''common purpose''
to commit the crime.”
Snyman
points out that “the
essence of the doctrine is that if two or more people, having a
common purpose to commit a crime, act
together in order to achieve
that purpose, the conduct of each of them in the execution of that
purpose is imputed to the others”.
These requirements are often
couched in terms which relate to consequence crimes such as murder.’
(Footnotes omitted.)
[34] There
is therefore no doubt in my mind that the appellant did foresee that
the assault upon the deceased would
lead to his death. I am not
persuaded that the trial court was wrong in convicting the appellant
of murder. The appeal on the conviction
is devoid of merit, and it
falls to be dismissed.
[35] The
appellant, being found guilty of murder read with the provision of
section 51
and Schedule 2 of the Amendment Act, was sentenced to life
imprisonment in terms of the prescribed minimum sentence applicable
in this matter. It is trite that punishment is a matter for the
discretion of the sentencing court. An appeal court will only
interfere
with the sentence imposed by the sentencing court if it did
not exercise its discretion property and judicially.
[36] The
test is whether the sentence is vitiated by irregularity or
misdirection or is startlingly inappropriate.
[6]
[37] The
Constitutional Court has however held in
S
v Bogaards
[7]
that an appeal court has jurisdiction to interfere with a sentence
imposed by a trial court
‘
.
. .where there has been an irregularity that results in a failure of
justice; the court below misdirected itself to such an extent
that
its decision on sentence is vitiated; or the sentence is so
disproportionate or shocking that no reasonable court could
have
imposed it.’ (Footnotes omitted.)
[38] The
court
a quo
noted the following personal circumstances of the appellant: he was
the father of five minor children, was previously employed
and was a
first offender. The court
a quo
was cognisant of the fact that the offence was serious and that
society cannot afford to have members become ‘a law unto
themselves’.
[39] The
court
a quo
also considered and compared the appellant’s personal
circumstances, the nature of the offence, and the interests of
society
when deciding on the appropriate sentence. Furthermore, the
court
a quo
was alive to and considered the objectives of sentence, namely
deterrence, retribution and rehabilitation and that same needed
to be
exercised judicially.
[40] The
court
a quo
found that the appellant displayed no remorse, did not accept
responsibility for his actions and therefore the prospects of
rehabilitation
were seriously limited.
[41] It
was stated by Henriques J in
S
v Pillay
[8]
that
‘
[w]here
a court is convinced that, after consideration of all the factors, an
injustice would be done if the minimum sentence is
imposed, then it
can characterise such factors as constituting substantial and
compelling circumstances and deviate from imposing
the prescribed
minimum sentence.’
[42] In
S
v Vilakazi
[9]
the court explained that particular factors, whether aggravating or
mitigating, should not be taken individually and in isolation
as
substantial or compelling circumstances. Ultimately in deciding
whether substantial and compelling circumstances exist, one
must look
at the traditional mitigating and aggravating factors and consider
the cumulative effect thereof.
[43] In
my view, the court
a quo
failed to consider whether the prescribed sentence will be
disproportionate to the offence, taking into account all the
circumstances
of not only the offence itself but also the
circumstances of the parties involved.
[44] The
court
a quo
failed to note the appellant’s age, namely 52 years, and did
not place proper weight on the personal circumstance of the
appellant. Secondly, the appellant was responsible for supporting
five children and was employed prior to his incarceration. Finally,
and most significantly, the appellant was a first offender. The court
a quo
failed to balance the fact that the appellant was a first offender to
the pertinent fact that the appellant was at an advanced
age of 52
years. Another important factor which was not considered by the trial
court was that the appellant did not initiate the
assault. I am alive
to the fact that the appellant joined in the assault on the deceased
and used a stick to assault a defenceless
person, which is an
aggravating factor. It is nonetheless notable from the post mortem
report that the cause of death of the deceased
was ‘extensive
blunt force trauma to body and subsequent death’. These
injuries were more severe than are likely to
have been inflicted by
the appellant alone, using a stick.
[45] The
crime of murder is an overt disrespect of the right to life of
another human being. The right to life
is recognized and protected by
our Constitution, although it is often not respected by human kind.
It is true that any offence
which lacks respect for the sanctity of
human life will always be viewed in a serious light.
[46] I
am therefore satisfied that a lengthy custodial sentence is
justified. However, in my view, the appellant
is a candidate for
rehabilitation being a 52-year-old first offender, and life
imprisonment is not warranted, and was disproportionate
to the
offence. It must also be borne in mind that the appellant did not
initiate the assault and there is no evidence to suggest
that the
death of the deceased was caused solely by the actions of the
appellant. This court is therefore at liberty to impose
an
appropriate sentence.
[47] Affected
members of society may be tempted to take the law into their own
hands if sentences which the courts
impose are perceived to be too
lenient. The court has a duty to instil public confidence in the
criminal justice system and also
general respect for the law by
imposing sentences which meet the expectations of society.
Nevertheless, the indignation of society
must not be allowed to cloud
a court’s judgment when determining the most suitable and just
sentence.
[48] I
am of the view that an appropriate sentence is a term of 15 years’
imprisonment.
Order
[49] I
accordingly propose the following order:
1. The
appeal against the conviction is dismissed, and the conviction is
confirmed.
2. The
appeal against the sentence succeeds. The sentence of the court
a
quo
is set aside and is substituted with the following:
‘
The
appellant is sentenced to 15 years’ imprisonment, such sentence
antedated to 11 October 2018.’
Jasat
AJ
I agree
Olsen J
APPEARANCES:
Heard: 05
November 2021
Delivered: 02
December 2021
For the
Appellant: Mr
J.H. du Plessis
Instructed
by: Van
der Westhuizen
& Marshall Attorneys
Ref.: KWE1/0002
Tel: 035-772
16 48/087 004 29 65/073 014 21 82
For
the Respondent: Ms P.G. Shange
Instructed
by: The
Director of Public
Prosecutions - Pietermaritzburg
Ref.: Ms
P.G. Shange
Tel: 033-845
44 00
[1]
In
terms of section 309(1) of the Act.
[2]
R
v Dhlumayo and another
1948 (2) SA 677 (A).
[3]
S
v Sauls and others
1981 (3) SA 172
(A) at 180.
[4]
S
v Trainor
2003
(1) SACR 35
(SCA) para 9.
[5]
S
v Thebus and another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) para 18.
[6]
S
v Rabie
1975 (4) SA 855
(A) at 857D–E.
[7]
S
v Bogaards
[2012] ZACC 23
;
2013 (1) SACR 1
(CC) para 41.
[8]
S
v Pillay
2018 (2) SACR 192
(KZD) para 11.
[9]
S
v Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR 552
(SCA).