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[2021] ZASCA 106
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Machi v S (256/2020) [2021] ZASCA 106 (30 July 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
reportable
Case
no: 256/2020
In
the matter between:
ZOLA
CEDRIC MACHI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Machi
v The State
(256/2020)
[2021] ZASCA 106
(30 July 2021)
Coram:
ZONDI, MOCUMIE and
MAKGOKA JJA and KGOELE and EKSTEEN AJJA
Heard:
13 May 2021
Delivered:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on
the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 30 July 2021.
Summary:
Criminal law –
murder – circumstantial evidence – sufficiency and
reliability thereof – whether common purpose
was established –
whether contradictions material – whether sentence is
appropriate.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Johannesburg (
Msimeki,
Twala and Opperman JJ
sitting
as court of appeal):
The
appeal against both the conviction and sentence is dismissed.
JUDGMENT
Kgoele
AJA (Zondi, Mocumie and Makgoka JJA and Eksteeen AJA concurring):
[1]
The
appeal is a sequel to the death of Mr Walter Mandla Thusi
(the deceased), who was fatally shot in his office at Engen
Diesel Depot, Langlaagte, Johannesburg (the depot) while on duty on
19 January 2007. Mr Zola Cedric Machi (the appellant), his co-worker
at that time, was subsequently arrested following this incident. He
was charged and convicted of murder on 11 December 2008
by Mayat
AJ sitting at the South Gauteng High Court (the trial court).
He was sentenced to life imprisonment. With the
leave of the
trial court the appellant appealed to the full court of that
Division against conviction and sentence. The full
court (Msimeki J
with Twala and Opperman JJ concurring) dismissed the appeal against
conviction but upheld the appeal against sentence.
It set aside the
sentence of life imprisonment imposed by the trial court and
substituted it with one of 20 years’ imprisonment.
The
appellant, with the special leave granted by this Court, appeals
against his conviction and sentence. He is currently on bail
pending
the finalisation of the appeal.
[2]
The
appeal lapsed because the appellant did not file the record timeously
and the appellant applied for condonation for the late
filing thereof
and the reinstatement of the appeal. As the application was unopposed
we granted condonation. In doing so we had
regard to the fact that
the delay is not excessive, (not more than 20 days); the appellant
did not willfully disregard the time
frames provided for in the rules
and practice directives of this Court; and that the respondent was
not prejudiced by the delay.
With this, I now proceed to consider the
merits of the appeal.
[3]
The issues are, firstly, whether the State had proved beyond
reasonable doubt that the appellant was at the
scene of the crime
when the deceased was fatally shot by an unknown person; secondly,
whether the appellant had actively associated
himself with the murder
of the deceased; and lastly, whether the sentence imposed was
appropriate.
The
facts
[4]
The events which gave rise to the appellant’s conviction and
sentence are briefly to the following
effect. As I have said, the
shooting took place at the depot, located behind the Engen
garage (the garage), where the two
state witnesses, Messrs Sunnyboy
Ntunja (Mr Ntunja) and Sonwabo Alfred Makholisa (Mr Makholisa)
were employed. The appellant
was a truck driver employed by Engen and
based at the depot, whilst the deceased had been his supervisor. The
relationship between
the appellant and the deceased was strained
because, sometime before the incident, the appellant had been
suspended from work.
He blamed the deceased for his suspension, which
was later lifted; the lighting at the garage was sufficient for one
to be able
to see at night; the Mercedes Benz allegedly involved in
the incident belonged to the appellant’s cousin, Ms Mlauli; at
the
time of the incident the motor-vehicle was under the control of
the appellant for his personal use. The contentious issues, as I
have
said, are firstly, whether the appellant was at the crime scene on
the evening in question; and, secondly, whether he was
correctly
convicted on the basis of the common purpose doctrine. The
appellant’s defence was an alibi
.
[5]
For the purposes of placing the appellant on the scene, the State led
the evidence of Messrs Ntunja
and Makholisa. Their oral evidence,
summarised, was to the effect that on 19 January 2007 at about 20h30,
the appellant came to
the garage driving a Mercedes Benz motor
vehicle. He was in the company of an unknown man who wore clothing
resembling an Engen
uniform. When the two arrived, the witnesses were
sitting and enjoying their meal next to a fridge, located outside the
shop at
the garage (the shop), not far from the entrance. They
recognised the appellant as a truck driver from the depot who was a
regular
customer at the filling station. Prior to the incident Mr
Makholisa had known the appellant for almost a year and Mr Ntunja for
almost a month.
[6]
Mr Ntunja said that the appellant and the unknown man had disembarked
from the motor vehicle, where after
the following unfolded: The
unknown man walked away from the garage, in the direction of the
depot and Spoornet offices, while
the appellant entered the shop and
bought airtime. Upon leaving the shop, the appellant gave him a
R50-note to share with his colleagues.
The appellant allegedly told
him that there was ‘someone who was disturbing him at work’,
but did not elaborate.
[7]
He testified further that upon leaving the shop, the appellant
proceeded to the motor vehicle, drove to one
of the bowsers and
filled up petrol, before driving out of the garage in the direction
of Langlaagte police station. Upon reaching
the robot-controlled
intersection, he made a U-turn and drove back slowly in the direction
of the garage. The motor vehicle proceeded
past the garage, with its
hazard lights on, for some distance before stopping near the depot.
At that stage he heard five or six gunshots coming from behind
the shop (the depot side). He ran into the shop and looked through
the toilet window in an attempt to establish the source of the
gunshots. He did not see anything, nor who fired the shots. After
a
few minutes, he came out of the shop and stood on the tar road in
front of the garage. There he saw the appellant’s motor
vehicle, still in a stationery position, with its hazard lights
flashing, in the vicinity of the depot. The same unknown man he
had
earlier observed moving in the direction of depot came running back
from there and climbed into the appellant’s motor
vehicle,
after which it drove away.
[8]
Mr Makholisa corroborated Mr Ntunja to a great extent, although his
account of what happened after the two
men had alighted from the
motor vehicle differs in some respects from that of Mr Ntunja. There
were also inconsistencies in, and
discrepancies between, their
written statements, which counsel for the appellant highlighted. I
shall revert to these. It suffices
for now to record that his version
was that the appellant and the unknown man walked together towards
the direction of the depot
and the Spoornet offices. The appellant
returned alone and went into the shop. When he exited the shop, he
gave Mr Ntunja a R50-note
to share and told him that ‘he came
to assault someone who is an ‘impimpi’ (an informer)
at the back’.
[9]
The State also led the evidence of the police officers who conducted
the identification parade. Their unrefuted
evidence was that both
Messrs Ntunja and Makholisa identified the appellant positively.
[10]
In denying complicity in the commission of the murder, the appellant
raised an alibi as his defence
.
In short his defence was that
he could not have been at the scene of the crime at the time of the
shooting because he was at his
home in Soweto. Whilst the appellant
admitted that Messrs Ntunja and Makholisa knew him, he denied ever
being at the garage or
near the depot on the night in question. His
evidence was that he did not report for duty on 19 January 2009
because
of ill-health. According to him, he started to feel ill
whilst on duty on 18 January. He produced a copy of a sick note
issued
by a doctor whom he had consulted on 19 January 2009. His
alibi was basically that he had spent the entire evening at his
residence
with his girlfriend, Madi, who corroborated him on their
whereabouts on the two days. A totally new aspect of his version only
emerged towards the end of his cross-examination when he stated that
he was in fact driving a Corolla, and not a Mercedes Benz,
on the day
in question, as the Mercedes Benz was parked in Killarney at his
grandfather’s place.
[11]
Mr David van Zyl (Mr van Zyl), a security officer who was on duty at
the depot on the night in issue, was called
by the appellant. He
testified that he did not hear the gunshots, due to the noise made by
the delivery trucks arriving at, or
leaving, the depot. He received a
report at 22h36 that there had been a shooting incident on the
premises and he immediately made
an entry to that effect in his
occurrence book. He assumed that the shooting had just occurred. His
reasoning was that, had the
shooting taken place around 20h30, as the
two State witnesses testified, he would have received the message
much earlier.
The
trial court
[12]
The trial court found that Messrs Ntunja and Makholisa were reliable
witnesses; they corroborated each other on material
aspects and their
evidence that several shots were fired was corroborated by other
objective facts, in this case, the post-mortem
report. Regarding the
inconsistencies or contradictions in the oral evidence of these two
state witnesses and those found in the
statements of Mr Makholisa in
particular, the trial court found that they did not adversely affect
their credibility. In rejecting
the appellant’s alibi as false,
it accepted the evidence of the state witnesses and found that the
only inference that could
be drawn from the proven facts was that the
appellant was present at the scene of crime and acted in common
purpose with the unknown
man who shot the deceased.
The
full court
[13]
Once more the contradictions and the inconsistencies in the evidence
relied on by the State
took centre stage before the full court. The
full court found no demonstrable and material misdirection in the
manner in which
the trial court had evaluated the evidence. It
furthermore, concluded that the application of the law, by the trial
court, to the
facts, had been sound. The appeal on the conviction was
dismissed. As I have said, it only interfered with the sentence
imposed.
Before
this Court
[14]
Before this Court, the appellant again attacked the credibility and
the factual findings of the trial court, and the
full court’s
upholding of them. The appellant also complained that the reduced
sentence is inappropriately severe. In respect
of the conviction, it
was argued, on behalf of the appellant, that ‘the evidence
of the so-called eyewitnesses, [Mr]
Ntunja and [Mr] Makholisa, was
riddled with material contradictions and inconsistencies to such an
extent that it should have been
rejected by both the trial court and
the full court’.
[15]
Two key submissions were advanced on behalf of the appellant to
support the above argument. First, that,
considering the
contradictions in the evidence of the state witnesses, the quality of
the identification evidence that placed the
appellant at the scene,
was very poor. Second, that the trial court failed to accord
sufficient weight to the fact that the two
key witnesses were not in
a position to positively identify the motor vehicle, including the
driver thereof at the time it picked
up a person who came running
from the direction of the depot after the gunshots had been heard. In
developing this argument, it
was contended that, even if it could be
found that the appellant was positively identified as the person who
was seen at the garage
on that evening, the State failed to prove
common purpose between that man (the shooter) and the appellant.
[16]
This Court is therefore, required to determine whether the
evaluation of the evidence by the trial court, confirmed
by the full
court was sound. Put differently, whether the factual and credibility
findings by the trial court, confirmed by the
full court, stand
scrutiny, and if so,
whether
the evidence adduced by the State was sufficient for the trial court
to draw an inference that the appellant was at the
scene of crime and
whether he acted in common purpose with the shooter to kill the
deceased.
The
law
[17]
It is trite that in the absence of demonstrable and material
misdirection a trial court’s findings
of fact are presumed to
be correct and that they will only be disregarded on appeal if the
recorded evidence shows them to be clearly
wrong.
[1]
[18]
It is against this principle that the credibility and factual
findings made by the trial court, and decried
by the appellant, must
be considered. In particular, this Court is called upon to determine
whether this principle was correctly
applied by the full court. It is
important to first deal with the contradictions as they cut across
the two bases of this appeal.
Contradictions
[19]
The manner in which the contradictions between the version of two
witnesses and the contradictions between the
versions of the same
witness (such as, inter alia, between their viva voce evidence
and a previous statement made by them)
should be approached was
outlined by this Court more than a decade ago in
S
v Mafaladiso and Andere.
[2]
[20]
As far as the oral evidence of the two key state witnesses is
concerned, it was argued on the one hand, that
in his evidence in
chief, Mr Ntunja did not testify about the R50 bribe allegedly given
to them, but only mentioned this in cross-examination.
On the other
hand, the argument continued, Mr Makholisa was quick to mention this
when he testified a day after Mr Ntunja’s
testimony. The
criticism levelled in this regard is that the inconsistency or
contradiction does not only affect their credibility,
but shows that
they were schooled to tailor their evidence to corroborate each
other. This criticism is not justified. The mere
fact that Mr Ntunja
mentioned this part of evidence after being prompted during
cross-examination as opposed to Mr Makholisa who
mentioned it without
being prompted, does not make it a contradiction. Furthermore, it
remains speculative to suggest, as the appellant’s
counsel
seems to do, that ‘the probabilities are that [Mr] Makholisa
was alerted to the criticism levelled against [Mr] Ntunja
for not
mentioning this on the previous day, and made sure that he mentions
this aspect when he was not led on it’.
[21]
An added string to the appellant’s bow relating to the R50 note
was that the two State witnesses contradicted
each other with regard
to the reason or purpose for which it was given. This argument need
not detain this Court either. It suffices
to say that it cannot
advance the appellant’s case. The difference between ‘he
came there to assault someone who is
an ‘impimpi’ at the
back’ and that ‘he was being disturbed by someone at
work’ is neither here nor
there. Rather, it illustrates the
absence of collusion.
[22]
The other feature of their oral evidence which evoked a lot of
criticism by counsel for the appellant was
the testimony in chief of
Mr Ntunja that when he came out of the toilet of the shop, his
colleagues were not where he had left
them. This, according to the
appellant’s counsel, contradicted the evidence of Mr Makholisa
that he was outside. This, it
was contended, was a material
contradiction which the trial court had overlooked. This criticism is
ill- conceived. A careful
reading of the record of the
proceedings reveals that, although Mr Ntunja indicated that he did
not see his colleagues when he
came out of the shop, Mr Makholisa
testified that he saw Mr Ntunja when he came out. Upon being asked
where he (Mr Makholisa) was
at that time, he indicated that he was
standing next to a tree. Understandably, he could not, during
cross- examination, explain
Mr Ntunja’s evidence that when
he came out of the shop, his colleagues had disappeared. Of
significance is that it was not
established where the tree was, or
where he, Mr Makholisa, was standing in relation to the tree for Mr
Ntunja not to see him. Quite
frankly, a contextual and holistic
evaluation of their account of events reveals that their evidence is
not mutually incompatible.
This is because, the possibility that Mr
Ntunja could not see Mr Makholisa where he was next to the tree,
although outside,
cannot be discounted. The fact that Mr Makholisa
was no longer in the vicinity of the fridge where they were having a
meal when
the gunshots were heard or in the vicinity where Mr Ntunja
could see him, does not necessarily mean he was not outside. The
difference
in what they said can therefore not be classified as a
contradiction at all.
[23]
The record reveals that the trial court was not oblivious to these
supposed contradictions and the criticism
levelled against the
evidence of the two state witnesses. The same applies to the seeming
inconsistencies found in the sequence
of their account as to how the
appellant and the shooter conducted themselves after disembarking
from the motor vehicle. It considered
the criticisms, and rejected
them, on the basis that they were not material as to affect the
witnesses’ credibility. The
conclusion by the trial court
cannot, in my view, be faulted. Instead, they show that their
evidence was not tailored in order
to falsely implicate the
appellant.
[24]
As regards the contradictions in the key state witnesses’
written statements, it was submitted that
the trial court should have
rejected Mr Makholisa’s evidence because he had made two
statements which are not only at
odds with each other, but also at
variance with his oral evidence and that of Mr Ntunja. It was pointed
out that in his first statement
Mr Makholisa did not identify the
appellant by name as the person who told him that he and the other
man were there to kill a person
and who gave him R50, whereas in his
second statement, made two months after the first one, he identified
the appellant by name.
It was further pointed out that, Mr Makholisa
stated in the same statement that the appellant and the unknown man
had walked around
the corner of the garage and ‘after few
minutes shots of [a] gun were heard in the vicinity and Zola Machi
came back walking
to the silver BMW and drove away’. The
argument proceeded that his statements are at variance with his
evidence in that he
did not say that the appellant had said that he
was there to kill someone; that the R50 was given to him; that he
knew the appellant
by name; and that the appellant had walked, after
the sound of gunshots from the depot, to the silver BMW. It was
submitted that
Mr Makholisa’s evidence had to be rejected in
its totality because he changed his evidence from the first statement
to the
second, and from his statements and oral evidence.
[25] In
evaluating these contradictions and inconsistencies levelled at
Mr Makholisa’s evidence including his written
statements
the trial court reasoned:
‘
[It] is my
view that to the extent that such inconsistencies are relevant,
his
explanation relating to the errors in these written statements were
not implausible in the circumstances of this trial.
Moreover, if one takes into cognisance the relevance of the averred
inconsistencies in the context of the rest of the material
evidence,
such
inconsistencies do not cast any doubt on his material evidence.
Mr Makholisa also confirmed in this regard that he
gave
his statement in Zulu and that his statement was recorded in
English
.’
(Emphasis
added.)
[26] There is
in my view, no demonstrable irregularity that can be relied upon
regarding the manner in which the trial court
evaluated all of these
contradictions and inconsistencies and the weight attached thereto. I
am thus not persuaded that the contradictions
and inconsistencies
highlighted and considered were fatal to their credibility. The
principle in
Rex
v Dhlumayo and Another
[3]
was therefore correctly applied by the full court. Having come to
this conclusion, I proceed to consider below the evaluation of
the
facts found proven by the trial court.
Identity
[27] As
regards the evidence of the appellant’s identity, it is
significant to note that the appellant did not dispute
the fact that
the two key state witnesses, Messrs Ntunja and Makholisa, knew
him prior to this incident. He also admitted
that he knew them too.
Even though they testified that they did not know his name at first,
the fact that in their statements mention
was made of his name, does
not take this matter any further, as there is no dispute that they
knew him. There is therefore, in
my view, no room for mistaken
identity. Their evidence regarding the identity of the appellant was
beyond doubt and could be relied
upon independently of their
identification in court and during the identification parade. Their
evidence was that visibility in
and around the filling station was
good. They not only saw him, but spoke to him too.
[28] The
finding of the trial court that Mr van Zyl could not positively
testify about the exact time as to when the incident
took place, as
he did not hear the sound of a single shot, is unassailable. The
recorded time of 22h36 in the occurrence book clearly
relates to the
time when a report was made to him, and not when the shots were
fired. His evidence that the shooting took place
closer to 22h36 was
based on his own assumption. Consequently, the evidence of Mr van
Zyl regarding the time of the shooting
was correctly rejected by the
trial court. In any event, the time is a neutral factor in this
matter because the appellant’s
defence is an alibi
.
[29] It was
also submitted that an adverse inference should be drawn from the
failure of the State to call an eye-witness,
Mr Maxwell Njoi, who, it
was said, could have corroborated the evidence of Mr van Zyl. Apart
from the fact that the name of this
witness did not feature in the
list of witnesses for the State, I do not see how the evidence of
this witness would have advanced
the appellant’s case
considering that his defence was an alibi. No cogent reasons were
advanced why the appellant could not
call this witness in
circumstances where the State elected not to call him.
[30] The
conclusion by the trial court that the identity of the appellant was
proven beyond reasonable doubt, cannot be faulted.
The sum total of
all the pieces of the proven facts from the evidence of all the
witnesses called by the State, when sewn together,
create an
impregnable mosaic of proof that the appellant was at the garage at
the time the deceased was killed.
[31]
Regarding an alibi defence this Court held in
S
v Liebenberg
:
[4]
‘
Once the
trial court accepted that the alibi evidence could not be rejected as
false, it was not entitled to reject it on the basis
that the
prosecution had placed before it strong evidence linking the
appellant to the offences. The acceptance of the prosecution’s
evidence could not, by itself alone, be a sufficient basis for
rejecting the alibi evidence. Something more was required. The
evidence must have been,
when
considered in its totality
,
of the nature that proved the alibi evidence to be false. . . .’
(Emphasis
added.)
[32]
In
R
v Hlongwane
[5]
the court stated that ‘. . . the alibi does not have to be
considered in isolation’.
[33] The
alibi defence of the appellant was correctly rejected by the trial
court as being not reasonably possibly true.
The full court cannot be
faulted for confirming the finding of the trial court that, the
nature of the evidence of the State, considered
in its totality,
proved the evidence of the alibi to be false.
Doctrine of
common purpose
[34]
It is common cause that although the State rested its case on the
doctrine of common purpose in this matter, the
evidence adduced did
not establish prior agreement to commit murder. It relied on active
participation.
[35]
This Court in
S
v Mgedezi and Others
[6]
had this to say where liability arises from active participation:
‘
In the first
place,
he
must have been present at the scene where the violence was being
committed.
Secondly, he must have been aware of the assault on the inmates of
room 12. Thirdly, he must have intended to make common cause
with
those who were actually perpetrating the assault. Fourthly, he must
have manifested his sharing of a common purpose with the
perpetrators
of the assault by himself performing some act of association with the
conduct of the others. Fifthly, he must have
had the requisite
mens
rea
;
so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.’
(Emphasis
added.)
[36]
In
Dewnath
v S
[7]
Mocumie AJA, explained the application of the common purpose doctrine
as follows:
‘
In the light
of the facts of this case, it is important to note that the common
purpose doctrine as espoused in
S
v Mgedezi [and] others
has been pronounced by the Constitutional Court to be constitutional.
The most critical requirement of active association is to
curb too
wide a liability. Current jurisprudence, premised on a proper
application of
S
v Mgedezi [and] others
,
makes it clear that (i)
there
must be a close proximity in fact between the conduct considered to
be active association and the result; and (ii) such active
association must be significant and not a limited participation
removed from the actual execution of the crime
.’
(Emphasis
added.)
[37]
The next question is whether the evidence of Messrs Ntunja and
Makholisa was sufficient to prove that the
appellant acted in common
purpose with the shooter. It was argued that the trial court
failed to attach sufficient weight
to the fact that the two witnesses
were not in a position to identify the driver of the vehicle which
they saw picking up the shooter
who came running from the direction
of the depot. This contention was based on the argument that Mr
Ntunja had testified that he
remained in the toilet for seven to
eight minutes while he tried to ascertain what was happening before
he went out to look down
Main Reef Road. The argument was
that, in the intervening 7 to 8 minutes, several things could have
happened that Mr
Ntunja did not observe. This included the fact that
a different Mercedes Benz may have arrived in order to pick up the
shooter
from the direction of the depot or that a different man got
into the Mercedes Benz.
[38] There are
three reasons why these propositions adumbrated above should be
rejected. In the first instance, the two key
state witnesses
testified that the man who disembarked from the appellant’s
vehicle and went to the direction of the depot,
was the same man they
saw being picked up by the Mercedes Benz, driven by the appellant,
after it stopped, having made a U-turn
at the robot –
controlled intersection. In particular, Mr Ntunja stated that
although he could not see the face of this man,
he recognised him by
the clothing he wore. Even though Mr Makholisa did not mention
any particular feature by which he identified
this person, he was
adamant that it was the same man. He could see him from the lighting
provided by the street lights. Secondly,
they both testified that it
was not busy at the garage that evening; the road was also not busy
and there were no other motor vehicles
at that time on the road. It
was quiet.
[39] Thirdly
and most importantly, Mr Makholisa indicated that from the time he
saw the appellant leaving the garage until
he made a U-turn, and
ultimately stopped next to the depot with his hazard lights on, he
never alighted from the vehicle. The ineluctable
conclusion must be
that he kept watch of the appellant’s motor vehicle until the
shooter jumped into the appellant’s
motor vehicle.
[40] It is
clear from Mr Makholisa’s evidence that he was at the forecourt
of the filling station all the time. There
is no evidence that he
went inside the shop. The likelihood of another Mercedes Benz coming
at that time, which happened to pick
up the unknown man, is minimal.
The same applies to the proposition that another man may have jumped
into this motor vehicle. The
finding by both courts that there was
enough evidence from which an inference could be drawn that the
appellant and an unknown
man, who shot the deceased, acted in common
purpose to kill the deceased cannot be faulted.
Sentence
[41] As far as
the sentence is concerned, it was submitted that the full court did
not go far enough to reduce the sentence,
as the appellant has led an
exemplary life throughout the period he has been on bail pending the
outcome of this appeal and that
he is a good candidate for
rehabilitation.
[42] That the
appellant has been convicted of a very serious offence admits of no
doubt. It is also apparent that the murder
falls within the ambit of
Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
,
for which life imprisonment is a prescribed sentence. The prescribed
sentence could not be deviated from unless there were substantial
and
compelling circumstances. However, the full court found favour with
the concession made by the State that, after the conviction
and
sentence, the appellant led a reasonable and exemplary life and
therefore was a good candidate for rehabilitation. On this
basis, the
full court found that substantial and compelling circumstances
were present which warranted the setting aside of
the sentence of
life imprisonment imposed by the trial court. It replaced it with a
sentence of 20 years’ imprisonment. This
was done, despite the
full court making a remark, correctly so, in my view, that ‘I
am unable to say that the [c]ourt a quo
misdirected itself when it
sentenced the appellant to imprisonment for life. Some of the factors
I have referred to above surfaced
after the appellant was convicted
and sentenced’.
[43] The less
said about the reasons for reducing the sentence by the full court,
the better. It suffices to say that it is
difficult to discern the
full court’s reasoning on the reduction of the sentence imposed
by the trial court as it was based
on contradictory statements. It
found no misdirection in the manner in which the trial court
exercised its sentencing discretion
but yet it changed the sentence.
As to why the full court considered the facts which, it acknowledged,
surfaced after the appellant
was convicted, boggles the mind. It is
trite law that an appeal court will only consider the facts and
circumstances known when
sentence was initially imposed. But since
there is no cross-appeal by the State against the sentence imposed by
the full court,
nothing more needs to be said and there is no reason
to interfere with the sentence.
[44]
In the result, the following order is made:
The
appeal against both the conviction and sentence is dismissed.
A M KGOELE
ACTING JUDGE OF
APPEAL
APPEARANCES
For
the appellant:
G Malindi SC (with X D Matyolo)
Instructed
by:
Nkosi Tshabalala Inc, Johannesburg
McIntyre
Van Der Post, Bloemfontein
For
the respondent:
M P Moleko
Instructed
by:
Director of Public Prosecutions, Johannesburg
[1]
Rex v Dhlumayo and Another
[1948] 2 All SA 566 (A); 1948 (2) SA 677.
[2]
S v Mafaladiso en Andere
[2002] 4 All SA 74
(SCA);
2003 (1) SACR 583
(SCA) at 584-585.
[3]
Dhlumayo
note
1 above.
[4]
S v Liebenberg
2005 (2) SACR 355
(SCA) para 14.
[5]
R v Hlongwane
1959 (3) SA 337
(A) at 340H.
[6]
S v Mgedezi and Others
[1989] 2 All SA 13
(A);
1989 (1) SA 687
(A) at 705I-706B.
[7]
Dewnath v S
[2014] ZASCA 57
para 15.