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[2020] ZALMPPHC 15
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Vhavari v S (Makgoba JP, Kganyango J, Smenya J) [2020] ZALMPPHC 15 (26 March 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
APPEAL
CASE NO: AA 10/2016
COURT
A QUO
CASE NO: CC 51/2011
26/3/2020
In
the matter between:
MURENDI LODRICK
VHAVARI
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MAKGOBA JP
[1]
This
is an appeal against the conviction and sentence imposed by a single
Judge of this Division (Webster J) on 12 March 2012. The
Appellant
was sentenced to two terms of life imprisonment on two counts of
murder read with the provisions of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
and three months imprisonment on a charge
of theft. The sentences were ordered to run concurrently. The appeal
is with leave of
the Court a
quo
per
Muller J.
[2]
There
were no eye witnesses on the incidents of murder and theft. The
conviction is based on circumstantial evidence presented by
a number
of state witnesses and the confession or admission made by the
Appellant to two state witnesses.
[3]
It
is common cause that the Appellant was together with the two
deceased, Muvhango Emmanuel Vhavari, a male and Thokozile
Maswanganyi,
a female on the 24 December 2009 'when they were last
seen alive. The naked lifeless bodies of the two deceased were
discovered
on the same spot on the 27 December 2009. It is further
common cause that the deceased in Court one, Emmanuel Vhavari's
cellphone
was found in possession of the Appellant in the morning of
the 25 December 2009.
[4]
Mr
Norman Vhavari ("Uncle Norman") is the relative of both the
deceased in count 1 and the Appellant. His evidence is
that the
deceased and the Appellant left home to attend a function at a tavern
in a nearby Nkuri village late in the afternoon
of the 24
th
December 2009 and that he last saw the deceased alive on that day. He
further testified that in the morning of the 25
th
December 2009 when he saw the Appellant, he asked him how the
previous night outing was and where was the deceased in count 1,
to
which the Appellant replied that the outing went well and that the
Appellant left the deceased in count 1 asleep in his bedroom,
that is
Appellant bedroom. Uncle Norman further testified that the Appellant
informed him that there was a caller who is calling
him on the mobile
phone belonging to the deceased in count 1 asking him about the
whereabouts of her child ("the deceased
in count 2") and
that the Appellant told him that he told the caller that the deceased
in count 1 was not present. He further
testified that shortly
thereafter, whilst he was still in the company of the Appellant at
his homestead the mother of the deceased
in count 2 arrived and asked
about the whereabouts of the deceased in count 2 who was last seen in
the company of the deceased
in count 1. When asked about the
whereabouts of the deceased in count 2, the Appellant's explanation
was to the effect that he
last saw the deceased in count 2 in the
company of the deceased in count 1 at Nkuri village outside the
tavern.
[5]
According
to this witness, the Appellant's conduct and responses left much to
be desired and it resulted in the family organizing
a search party
that went to search for the bodies of the deceased at the place where
the Appellant said he last saw them alive.
He also testified that
after the Appellant was arrested, he and other family members
(including a family member of the deceased
in count 2) went to visit
the Appellant at Giyani police station where the Appellant told them
that he killed the two deceased
with the assistance of two other
persons with the sole intention of selling their body parts.
[6]
Mr
Phumulani Goodwill Vhavari is an elder brother to the deceased in
count 1 and a cousin of the Appellant. He testified that on
the 24
th
December 2009 at around 20:00 at night he met with deceased in count
1, the Appellant and some other people who were in the company
of the
deceased in count 1. He then gave the deceased in count 1 R50-00
which he had requested from him with the understanding
that this
money would be returned to him by the deceased in count 1 the
following morning. He stated that after spending few minutes
with the
deceased in count 1 and the Appellant, he then left for Giyani. On
the morning of the 25
th
December 2009 at around 07:00, his sister woke him up and asked for
money to buy bread from him and he there and then told his
sister to
go to collect the money from the deceased in count 1, but his sister
told him that the deceased in count 1 was not in
his room. He there
and then telephoned the deceased in count 1 to demand the R50-00 he
had borrowed him the previous night, but
the mobile phone of the
deceased in count 1 was answered by the Appellant who told him that
the deceased was at his homestead.
That he left the deceased at the
deceased's homestead.
[7]
He
further testified that on the 26
th
December 2009 in the morning he was at home when the mother of the
deceased in count 2 arrived at his homestead to report that
the
deceased in count 1 took along the deceased in count 2 on the 24
th
December 2016 and that she was never seen again since then. He then
went to Uncle Norman with the mother of the deceased in count
2 to
report what she had told him. Uncle Norman then called the Appellant
who was also around Uncle Norman's homestead to ask him
about the
whereabouts of the deceased in count 1 and 2, to which the Appellant
responded that he left both deceased at a rock near
a tavern at Nkuri
village. He further stated that the mother of the deceased in count 2
asked the Appellant why was he answering
the calls made to the mobile
phone of the deceased in count 1, to which the Appellant offered no
reasonable explanation and simply
just looked down. He further
testified that at that gathering at Uncle Norman's homestead, he was
tasked by Uncle Norman to go
and report a case of missing people at
Giyani police station, a task which he did. He further testified that
he was part of the
search party that went to search and ultimately
found the bodies of the two deceased.
[8]
The
witness further testified that on the 31
st
December 2009 after the Appellant was arrested he visited the
Appellant at the Giyani police station together with Uncle Norman
and
a Mr David Maswanganyi with the aim of understanding what had
happened to the two deceased persons and in response thereto,
the
Appellant told them that he is the one that stabbed· and
killed the deceased in count 1 with a screwdriver whilst his
accomplices Jeffrey and Patrick were holding the deceased in count 2.
[9]
Mr
Ndifelani Mulaudzi who is a cousin of the Appellant testified that on
the 25
th
December 2009 at around 15:00 he was at his homestead in the company
of his mother, his grandmother and the Appellant. The Appellant
uttered certain words directed to them. The Appellant told them that
he dreamt that the deceased in count 1 was killed and that
his body
was laid underneath the bushes next to the valley. He further
testified that his grandmother asked the Appellant if he
knew the
identity of the deceased's friend to which the Appellant responded
that he does not know him, but only knew that person
by sight.
[10] Warrant Officer
Zondo Baloyi is a police officer who attended the scene where the
bodies of the two
deceased were discovered on the 27
th
December 2009. He testified that after attending to the scene of
crime, he ended up at the homestead of the Appellant to question
him
after being told that the Appellant was in possession of the mobile
phone of the deceased in count 1. He stated that after
questioning
the Appellant about the mobile phone which belonged to the deceased
in count 1, the Appellant admitted that he was
in possession of same
and the Appellant gave an explanation to the effect that he was given
the mobile phone by the deceased in
count 1 in the presence of one Mr
Michael Mulaudzi. He further testified that he then went to the home
of Michael Mulaudzi and
questioned him about the Appellant being
given the mobile phone by the deceased in count 1 in his presence.
Michael Mulaudzi told
him in the presence of the Appellant that the
Appellant was not telling the truth.
[11]
Mr Khadi Vhavari is the father of the
Appellant. He testified that on the 25 December 2009 he was at his
homestead when his younger
brother, Norman Vhavari (Uncle Norman)
arrived and then called the Appellant to question him about the
whereabouts of the deceased
in count 1. He further testified that the
Appellant told Uncle Norman that the deceased in count 1 was asleep
in the bedroom after
which the Appellant was then released and he
went away.
[12]
The
Appellant on the other hand testified in his own defence and to a
large extent confirmed the version of the state witnesses.
He
testified that he was with the deceased in count 1, David Mudau,
Michael and other unknown female persons whom he met for the
first
time at Nkuri village on the night of the 24
th
December 2009. He testified that after they consumed liquor, he then
indicated to the deceased in count 1 that he was going home.
He
stated that before he left the deceased in count 1 handed him his
mobile phone for safekeeping as the deceased in count 1 was
scared of
losing or misplacing the mobile phone because he was under the
influence of liquor. The Appellant together with David
Mudau then
left leaving the deceased in count 1 behind. He further testified
that the following morning, the 25
th
December 2009 he woke up and went to the homestead of the deceased in
count 1 and that on his arrival, he went to the deceased's
bedroom
and found the younger brother of the deceased (one Owen) sleeping in
that bedroom. He enquired from Owen where the deceased
was. Owen told
him that the deceased in count 1 did not return home.
[13]
The Court a
quo
in its evaluation of the evidence
preferred and accepted the version of the State over that of the
Appellant. The Court a
quo
cannot
be faulted in this regard. In
S v
Francis
1991 (1) SACR 198
(A) at 204d
it
was stated that the appeal Court's powers to interfere with findings
of fact of a trial Court is limited.
In
S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f,
it was held that:
"In the absence of
demonstrable and material misdirection by the trial Court, its
findings of fact are presumed to be correct
and will only be
disregarded if the recorded evidence shows them to be clearly wrong".
In
S v Monyane and Others
2008 (1) SACR 543
(SCA) at 548b
it was also held that:
"Bearing in mind the advantage that
a
trial Court has of seeing, hearing
and appraising
a
witness,
it
is
in
exceptional cases that this Court will be entitled to interfere with
a
trial
Court's evaluation of oral testimony".
[14]
Accordingly, this Court accepts the
version of the State and rejects that of the Appellant. The
Appellant's version is not reasonably
possibly true given the
inconsistency and contradictions in his evidence regarding his
explanation of the whereabouts of the deceased
in count 1 and his
possession of the deceased's cell phone.
[15]
It is trite that where a trial Court
draws inference from a set of facts in a case dealing with
circumstantial evidence, the inference
sought to be drawn must comply
with the two cardinal rules laid down in
R
v Blom
1939 AD 188
which are:
(a)
Firstly, that the inference sought
to be drawn must be consistent with the proved fact;
(b)
And secondly, the proved facts
should be such that they exclude every reasonable inference from them
save for the one sought to
be drawn
See also
R v De Villiers
1944 AD 493
at
508-9;
and
S v Reddy
1996 (2) SACR 1
(AD).
[16]
In
casu,
the following facts are found to
have been proved or established:
(1)
The Appellant was the last person seen
in the company of the two deceased on 24 December 2009.
(2)
The Appellant gave wrong or false
account of events when he was questioned about the whereabouts of the
deceased in count 1.
(3)
The Appellant was in possession of the
cellphone belonging to the deceased in count 1 and the fact that he
in fact answered some
of the calls that were made to this cellphone.
(4)
The Appelant told Uncle Norman and Khadi
Vhavari that the deceased was asleep in his (Appellant's) bedroom on
the morning of 25
December 2009 and later changed his version to say
that he left the deceased at a rock near Nkuri bar lounge.
(5)
The Appellant looked down when he was
asked why he used the deceased's cellphone and answered various
calls.
(6)
The Appellant did not join the search
party at the bush near Nkuri bar lounge and did not go to the scene
where the two deceased
were found.
(7)
The Appellant made voluntary confession
or admission to private individuals that he and his accomplices are
the killers of the deceased
in both counts.
[17]
The circumstances surrounding the
extra-curial confession or admission by the accused is outlined as
follows: Uncle Norman and Phumulani
testified that they visited the
accused at the police cells as they wanted to find out exactly what
happened to the deceased. The
accused was not threatened and the
conversation was cordial. They further testified that the accused had
spoken freely and voluntarily.
They also testified that the accused
admitted that he stabbed the deceased and his accomplices stabbed the
other deceased. Lastly
the accused told them that there was a person
who required body parts of a human being and that person's name is
Nthangiseni Mudau
who had offered to buy him a Quantum combi for the
work done.
[18]
Section 217(1)
of the
Criminal Procedure
Act 51 of 1977
provides:
"(1) Evidence of any confession made by
any person in relation to the commission of offence shall, if such
confession is proved
to have been freely and voluntarily made by such
person in his sound and sober senses and without having been unduly
influenced
thereto, be admissible in evidence against such person at
criminal proceedings".
Section
219
A of the
Criminal Procedure Act 51 of 1977
provides as follows:
"(1)
Evidence of any admission made extra-judicially by any person in
relation to the commission of an offence shall, if such
admission
does not constitute
a
confession
of that offence and is proved to have been voluntarily made by that
person, be admissible in evidence against him at
criminal proceedings
relating to that offence".
[19]
The evidence of Uncle Norman and
Phumulani Vhavari complied with the provisions of
sections 217(1)
and
219A
of Act 51 of 1977 and is admissible against the Appellant in
that the confession or admission was made freely and voluntarily and
the Appellant was not unduly influenced. There is no evidence that
the Appellant was not in his sound and sober senses. In the
circumstances the conviction of the Appellant on murder and theft
cannot be faulted.
[20]
Regarding sentence the Court a
quo
correctly made a finding that the
provisions of section 51(1) of Act 105 of 1997 were applicable and
that there were no substantial
and compelling circumstances to
justify the trial Court's deviation from the prescribed sentence.
Section 51(1) reads as follows:
"51(1)
Notwithstanding any other law, but subject to subsection (3) and (6),
a
Regional
Court or High Court shall sentence
a
person it has convicted of an offence
referred to in part 1 of schedule 2 to imprisonment for life."
Part 1 of schedule 2 reads as follows:
"murder;
when
-
(a)
it was planned or premediated
……………
..
(e)
the victim was killed in order to unlawfully remove any body part of
the victim; or
a
result
of such unlawful removal of
a
body
of the victim."
[21]
Uncle Norman and Phumulani testified
that the Appellant told them that the deceased were killed because
someone wanted body parts
of a human being. It was also submitted by
the Appellant's legal representative during mitigation of sentence at
the trial that
the deceased was killed because someone asked the
Appellant to find him human body parts. The first leg of Part 1,
Schedule II
(e) does not require actual removal of body parts. The
Appellant killed the two deceased for financial gain an in order to
remove
body parts for muti purpose. The motive is morally
unacceptable.
In
S v Mogaramedi
2015 (1) SACR 427
(GP)
at
par 20, it was stated that in South Africa, cultural practices
pertaining to a believe in witchcraft and muti killings are
prevalent.
In
casu
the murder was well planned and therefore premeditated as
provided for in section 51(1) of the Act, in particular Part 1 of
Schedule
2(a) thereof.
[22]
In
State
v Petkar
1988 All SA 550
(A)
at 550,
it was held that;
"This Court's powers to interfere with
a
sentence
on appeal are circumscribed. It
may
only do
so
if the sentence is vitiated by (1)
irregularity, (2) misdirection, or (3) is one to which no reasonable
Court could have come, in
other words, one where there is
a
striking disparity between the
sentence imposed and that which this Court considers appropriate".
Also
see
S v Monyane and Others
2008 (1) SACR 543
(SCA)
at 550.
We
do not find any justification to interfere with the sentence imposed
by the Court a
quo
and in the circumstances the Court a
quo
correctly exercised its discretion judiciously in imposing the
prescribed sentence of life imprisonment.
[23]
In the result the appeal against
conviction and sentence is dismissed.
E M MAKGOBA
JUDGE PRESIDENT OF THE HIGH
COURT, LIMPOPO DIVISION,
POLOKWANE
I agree
M
F KGANYANGO
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
I agree
M V SEMENYA
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
:13 March 2020
Judgment
delivered on
: 26 March 2020
For
the Appellant
: L M Manzini
Legal Aid South Africa
Polokwane
For
the Respondent
: TE Mabapa
Director of Public Prosecution,
Polokwane