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[2017] ZASCA 92
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Gcaza v S (1400/2016) [2017] ZASCA 92 (9 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
No: 1400/2016
In the
matter between:
MHLANGANISI
GCAZA
APPELLANT
and
THE
STATE
RESPONDENT
Neutral citation:
Gcaza
v
The State
(1400/16)
[2017]
ZASCA 92
(9 June 2017)
Coram:
Maya AP, Zondi and Dambuza JJA, Gorven
and Mbatha AJJA
Heard
:
8 May 2017
Delivered:
9 June 2017
Summary:
Evidence: what constitutes
sufficiency of circumstantial evidence: conviction based on
circumstantial evidence well-founded: cross-appeal:
finding of
substantial and compelling circumstances justifying sentences lesser
than the minimum sentences prescribed by statute
not constituting
misdirection.
ORDER
On
appeal from:
Eastern
Cape Division of the High Court, Grahamstown (Makaula J sitting as
court of first instance):
1.
The appeal against the convictions is dismissed.
2.
The cross-appeal against the sentences is dismissed.
JUDGMENT
Mbatha
AJA (Maya AP, Zondi and Dambuza JJA and Gorven AJA concurring):
[1]
The appellant was convicted by the Eastern Cape Division of the High
Court, Grahamstown on 29 March 2016 of one count of rape
and one
count of murder. He was sentenced to undergo 23 years’
imprisonment in respect of each count and the sentences were
ordered
to run concurrently. With leave of the high court, the appellant
appeals against both convictions. The respondent was also
granted
leave to cross-appeal against the sentences. The provisions of
s
51(1)
of the
Criminal Law Amendment Act 105 of 1997
applied to both
counts.
[2]
The incident giving rise to the conviction and sentence arose from
the discovery of the body of the deceased, a six year old
boy at
Ezibeleni Street in Lingelihle Township, Cradock. The post-mortem
examination revealed that the deceased had been anally
raped and died
as a result of multiple stab wounds and ligature strangulation.
[3]
The appeal turns on the quality and sufficiency of the circumstantial
evidence upon which the trial court convicted the appellant.
In the
cross-appeal the respondent contends essentially that the trial court
had misdirected itself in concluding that there existed
substantial
and compelling circumstances which justified the imposition of lesser
sentences than the prescribed minimum sentences.
Counsel for the
appellant, on the other hand, argued in support of the correctness of
the trial court’s finding in respect
of the substantial and
compelling circumstances and submitted that the sentences were in
order.
[4]
On the morning of 20 January 2015 Sergeant Andile Klaas (Klaas)
received a call to attend to a crime scene at Lingelihle Township
in
Cradock, where the deceased’s body had been found by members of
the community. In close proximity to the body, a blue
cooler bag
containing a transparent plastic bag was also found. At the scene of
the crime Klaas was informed that the appellant
was a suspect and was
directed to his home. Klaas then proceeded to the appellant’s
house. As he approached the appellant,
members of the community
became agitated and threw stones at the appellant. It was then that
Klaas took him to the police station.
He says that this was done to
protect the appellant from members of the community.
[5]
The respondent led the evidence of the appellant’s aunt, Ms
Maria Gayi (Gayi), who lived with him at the time of his arrest.
Gayi
testified that the appellant, who permanently lived in Cape Town, had
arrived in Lingelihle on 8 January 2015. He occupied
his mother’s
house which was behind her house. He brought with him raw and cooked
fish in a cooler bag. Gayi cleaned the
cooler bag and put it on the
hi-fi music system in the lounge, where it remained until removed by
the appellant on 18 January 2015.
She described the cooler bag as
blue in colour and that it was the type that could be folded up. She
identified the cooler bag
as the one appearing in photo 17 of Exhibit
D by its colour and the logo inscribed on it. Gayi testified that she
had also joined
in the search for the deceased. Upon her return from
the search Gayi found the appellant in her home. He appeared to be in
state
of shock, and enquired from her if the police had left. The
appellant spent the night in her house, as he had done on the
previous
night on the pretext that he was afraid to sleep alone.
[6]
On 21 January 2015, a day following the arrest of the appellant, Gayi
accompanied police officers to a location where she identified
a blue
cooler bag as the bag brought by the appellant to her home. When she
was cross-examined, it was suggested to her that the
appellant did
not bring the fish in the cooler bag or even bring a cooler bag, but
brought it in a container, which version was
denied by Gayi.
[7]
Adonis testified that in the early afternoon of the day before they
learnt of the disappearance of the deceased, she had observed
from
her home the appellant taking something out of a blue cooler bag and
placing it in a newly dug hole. The appellant removed
it from the
hole and placed in the cooler bag and thereafter walked away.
[8]
Warrant Officer Gregory Pitt (Pitt) corroborated the evidence of
Klaas regarding the arrest of the appellant. He also testified
that
after arresting the appellant, he removed the following items of
clothing from the appellant: a pair of takkies, a white linen
hat and
a pair of trousers. He booked the items in the SAP 13 register,
packed them in an evidence bag, and delivered it to the
forensic
laboratory in Port Elizabeth. The forensic bag bore the serial number
PAD000889338.
[9]
When recalled after, Pitt explained to the court that the cooler bag
recovered at the scene had been misplaced and what steps
he took to
trace a cooler bag similar to the one in Exhibit D. The cooler bag in
Exhibit D bore the logo, ‘Department of
Environmental Affairs,
Republic of South Africa Marine Week 10.’ Pitt’s evidence
is that no blue coloured bag could
be found, but an identical bag in
a green colour was found at the Waterfront in Cape Town. It was
handed in as Exhibit 1. Despite
a search, no cooler bag was found in
the appellant’s possession or in his premises.
[10]
Mr Charles Ludick (Ludick) testified as to how he found the blue
cooler bag, which contained a blood stained, transparent plastic
bag
under a pile of stones near JJ’s spaza shop, having been drawn
to it by barking dogs. This was reported to the police,
who took over
the scene.
[11]
Warrant Officer Michelle Baard (Baard) attached to the Biology Unit
of Forensic Science Laboratory, a Forensic Analyst and
a Reporting
Officer, testified that she received DNA evidence for interpreting
and analysis relating to CAS 265/01/2015 Cradock.
The case files were
received on 9 July 2015 and 18 September 2015 bearing lab numbers
23067/15, 69683/15, 23067/15, 69683/15, and
184121/15 respectively.
Her findings were tabulated in an affidavit deposed in terms of
ss
212(4)
(a)
,
6
(a)
,
6(
b
)
and 8
(a)
of the Criminal Procedure Act 51 of 1977 (CPA), which was handed in
as Exhibits B and C.
[12]
The first report in Exhibit B, compared the sample to the ‘hat’,
reference number PAD000889338, to the control
sample, reference
number 13DBAA0532EP, Nogaga Inganathi, the deceased. The result as
summarised in para 4.1 of Exhibit B, stated
that PAD000889338 matched
the DNA result in the control sample reference 13DBAA0532EP, Nogaga
Inganathi ─ the most conservative
occurrence of the DNA result
being one in eight billion people.
[13]
The second report in Exhibit C compared an analysis and evaluation of
a swab marked ‘from the plastic bag’ reference
number
14DCAH7816, to the control sample reference number 13DBAA0532EP,
Nogaga Inganathi. In this regard, the result as stated
in para 4.1 of
Exhibit C stated that the DNA result from the plastic bag swab,
14DCAH7816 matched the reference sample 13DBAA0532EP,
Nogaga
Inganathi. Again, the most conservative occurrence for this DNA
result was one in eight billion people. Baard’s evidence
was
unchallenged by the appellant and the affidavits were handed in by
consent.
[14]
Dr Johan de Beer (de Beer) conducted a post-mortem examination on the
body of the deceased. He collected swabs from the buccal
cells and
also from the anal area of the deceased. These were done by using the
sample collection kit number 13DBAA0532 which was
sealed inside the
forensic bag PA5002109742. The sealed forensic bag was handed over to
Pitt. De Beer confirmed sexual assault
on the deceased and also the
cause of his death.
[15]
Constable Bonolo Mohlokonya (Mohlokonya) testified as to the
collection of evidence at the crime scene, including the taking
of
photographs and swabs. The exhibits were all placed in forensic bags
and entered in the SAP 13 register. These were dispatched
to the
Forensic Laboratory in Port Elizabeth under the cover of a minute
dated 23 January 2015. Evidence bag number PA4002148A24
contained
swabs marked A and B from the plastic bag. The evidence bag number
PA4002148AD228 contained swabs A and B for possible
blood inside the
cooler bag. All the forensic bags were sealed and placed in exhibit
bag number PAD000091508 and despatched to
the forensic laboratory in
Port Elizabeth. The respondent handed in, by consent, the affidavits
deposed in terms of s 212 of the
CPA by the forensic analysts in Port
Elizabeth and Cape Town.
[16]
The appellant testified in his defence and denied knowledge of the
alleged offences. He denied ever bringing a blue cooler
bag to
Cradock. The appellant denied that he owned a hat at all and that on
the day of his arrest he was wearing one. However,
under
cross-examination he admitted that he in fact did own hats, one in
black and the other yellowish with black stripes on it.
Moreover, he
could not explain why his aunt (Gayi), who looked after his welfare,
would insist that he brought to Cradock the incriminating
cooler bag
which she identified as that in Exhibit D.
[17]
The trial court accepted the evidence proffered by the state
witnesses. It rejected the appellant’s denial as not reasonably
possibly true. The trial court accepted the evidence of Gayi that a
cooler bag in which a blood-stained plastic bag, which contained
the
deceased’s DNA was found, was the cooler bag which the
appellant had brought to her house. It made credibility findings
in
respect of Gayi and concluded that there was no reason to reject her
evidence. The trial court also accepted that the hat which
was
removed from the appellant by Pitt on his arrest contained the
deceased’s DNA. It accordingly convicted him of both counts
on
the basis of that evidence.
[18]
Counsel for the appellant contended that the trial court misdirected
itself by finding that the State had proved its case beyond
reasonable doubt. She argued that the circumstantial evidence on
which the appellant was convicted was not sufficient to sustain
the
convictions.
[19]
The issue on appeal is whether the State proved beyond a reasonable
doubt that the appellant was guilty of the crimes with
which he was
charged.
[20]
There are two uncontroverted pieces of evidence against the
appellant. First, a plastic bag with the deceased’s blood
inside a cooler bag similar to the one he had brought with him from
Cape Town. He removed his cooler bag from Gayi’s house.
Shortly
before the discovery of the body of the child he was seen carrying
his cooler bag. Secondly, a hat with the deceased’s
blood was
one of the items sent for DNA testing, together with other clothing
items not disputed to belong to the appellant. Further,
the chain
evidence given by Pitt, Baard, Dr de Beer and the s 212 affidavits
handed in by consent were sufficient as proof of the
chain evidence.
There was no evidence that the seals of the sample bags might have
been tampered with. To reject this evidence
would require findings
that the appellant’s aunt lied about the cooler bag, that
Pitt deliberately lied about the origin
of the hat and submitted
someone else’s hat with the deceased’s DNA to the lab for
testing. The probabilities simply
do not support that reasoning.
[21]
I accept the credibility findings made by the trial court in respect
of Adonis. She is not a member of the appellant’s
family to
have been aware that appellant had brought a blue cooler bag from
Cape Town. Moreover, the bag was only discovered a
day after the
arrest of the appellant. It was Adonis who had informed Klaas about
the cooler bag prior to the discovery thereof.
This cannot be said to
have been a coincidence.
[22]
The appellant seeks to challenge the chain evidence regarding the DNA
evidence linking him to the crimes. One has to bear in
mind that the
cardinal rule is whether on a conspectus of the evidence as a whole,
it was established beyond a reasonable doubt
that the commission of
the offences were committed by the accused. It is unacceptable that
any possibility, no matter how far-fetched,
should be elevated to a
defence in law, as there is a veiled suggestion for which no
foundation was laid that the evidence may
have been contaminated or
that the wrong items were examined. It is my view that affidavits
submitted in terms of s 212 are conclusive
proof of the lack of any
interference or contamination.
[23]
The appellant’s challenge to the evidence is in a piecemeal
fashion. This court in
S v Reddy & others
1996 (2) SACR 1
(A) at 8C-D warned against this, where it stated as follows:
‘
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 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 202-203, 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”.’
[24]
I am satisfied that the trial court’s approach to the
evaluation of the evidence was correct. It considered the totality
of
the evidence and, in that process, weighed the evidence of the
State’s witnesses against that of the appellant. As appears
above, the appellant’s evidence was also riddled with
contradictions, regarding whether or not he owned a hat, or whether
he wore a hat or if it was in his bag. Distancing himself from the
blue cooler bag, which he had removed a few hours prior to the
disappearance of the deceased, clearly indicates that he was not
taking the court into his confidence. The trial court, in my view,
rightfully rejected his evidence. He admitted that the deceased was
known to him as one of the children from the neighbourhood.
[25]
The sentiments expressed by this court in
S
v
Ntsele
1998
(2) SACR 178
(SCA) are relevant, where it held that the onus rests
upon the State in a criminal case to prove the guilt of the accused
beyond
reasonable doubt ─ not beyond all shadow of doubt. The
court held further that when was dealing with circumstantial
evidence,
as in the present matter, the court was not required to
consider every fragment of evidence individually. It was the
cumulative
impression, which all the pieces of evidence made
collectively, that had to be considered to determine whether the
accused’s
guilt had been established beyond a reasonable doubt.
Courts are warned to guard against the tendency to focus too
intensely on
separate and individual components of evidence and
viewing each component in isolation. In the light of the evidence
presented
to the trial court, I am satisfied that on the conspectus
of the evidence, the inference was correctly drawn that the appellant
was guilty of the crimes with which he was charged. The appeal on
conviction must therefore fail.
[26]
I will now consider the cross-appeal. The respondent submits that the
trial court misdirected itself in finding that there
were substantial
and compelling circumstances that justified the court’s
deviation from imposing the prescribed minimum sentences
on the
convictions. In both instances, the prescribed minimum sentence was
life imprisonment.
[27]
It is trite that a court will only interfere with a sentence if the
trial court misdirected itself in passing the sentence.
Moreover, a
misdirection alone does not suffice for a court of appeal to
interfere. A misdirection should be material, as expressed
by Trollip
JA in
S v Pillay
1977 (4) SA 531
(A) at 535E-H. In
S v
Malgas
2001 (1) SACR 469
(SCA) para 12, this court stated that:
‘
A
court exercising appellate jurisdiction cannot, in the absence of
material misdirection by the trial court, approach the question
of
sentence as if it were the trial court and then substitute the
sentence arrived at by it simply because it prefers it. To do
so
would be to usurp the sentencing discretion of the trial court. Where
material misdirection by the trial court vitiates its
exercise of
that discretion, an appellate court is of course entitled to consider
the question of sentence afresh. In doing so,
it assesses sentence as
if it were a court of first instance and the sentence imposed by the
trial court has no relevance. As it
is said, an appellate court is at
large. However, even in the absence of material misdirection, an
appellate court may yet be justified
in interfering with the sentence
imposed by the trial court. It may do so when the disparity between
the sentence of the trial
court and the sentence which the appellate
court would have imposed had it been the trial court is so marked
that it can properly
be described as “shocking”,
“startling” or “disturbingly inappropriate” .
. . In the latter
situation the appellant court is not at large in
the sense in which it is at large in the former. In the latter
situation it may
not substitute the sentence which it thinks
appropriate merely because it does not accord with the sentence
imposed by the trial
court or because it prefers it to that sentence.
It may do so only where the difference is so substantial that it
attracts epithets
of the kind I have mentioned. No limitation exists
in the former situation.’
[28]
I shall now turn to the reasons that informed the mind of the learned
judge when he sentenced the appellant. He took into account
the
seriousness of the offences, that the deceased, a six year old child,
was brutally raped and died from multiple stab wounds
and
strangulation. He stressed the effect and impact of these offences on
the family of the deceased and the community of Ezibeleni
Township in
Cradock. A close- knit community which had
en
masse
searched for the missing child, and which was not hesitant to take
the law into its own hands when the appellant was fingered as
the
suspect. This showed the devastating effect of the incident on the
community which had lost a child to a vicious crime. The
viciousness
of the offences upon an innocent child, ruthlessly raped and killed
was not overlooked or minimised by the trial court.
[29]
The trial court considered the personal circumstances of the
appellant who was 23 years old at the time of sentencing. He was
single and had no children. The appellant left school in grade 8. The
court accepted the probation officer’s report, which
stated
that for three days during the period in which the deceased was
killed, the appellant was continuously using the methamphetamine
(commonly known as tik). This was also supported by the evidence of
Dr Hester Jordaan, a psychiatrist, whose evidence what that
the
appellant was diagnosed to have abused cannabis, methamphetamine and
alcohol during the period that the deceased was killed.
Dr Jordaan
testified that the appellant suffered from what is known as an
‘anti-social personality disorder’. She described
this as
not being a mental illness, but opined that such persons show certain
personality traits, which become so severe that they
impact ‘on
the person’s social, occupational and interpersonal functions’.
People who suffer from this disorder
show a longstanding pattern of
disregard for and the violation of the rights of others and they fail
to conform to social norms
with respect to lawful behaviour. Her
evidence was also that deceitfulness, irritability and aggressiveness
are traits that indicate
such a personality disorder.
[30]
The respondent submitted that there is no treatment for such a
disorder and that in fact, the appellant falls within the
locus
classicus
of
a psychopath. As a result of this condition there are no prospects of
rehabilitation on the appellant and he remains a danger
to society.
[31]
Dr Jordaan’s testimony was that ‘a social personality
disorder is not amenable to treatment’. She further
stated that
these individuals are extremely difficult to involve in any form of
rehabilitation and that a vast majority of such
individuals end up in
correctional facilities. However, she stated that ‘a related
rehabilitation programme to improve their
insight, anger management
and impulsive control can be attempted which would minimise his
co-morbid substance abuse and help him
develop an insight into his
condition’. It would be unsafe to draw inferences from the
appellant’s condition other
than the ones drawn by the
psychiatrist.
[32]
The respondent, in pursuit of its argument, relies on the minority
judgment in
S
v Lawrence
1991 (2) SACR 57
(A) which found that a person diagnosed with a
severe personality disorder, should not be considered as a candidate
for rehabilitation.
The reliance on this minority judgment is
misplaced as the majority found otherwise. The appellant in that case
who was described
as a psychopath, showed similar traits to the
prognosis given by Dr Jordaan in respect of the appellant. Goldstone
JA, writing
for the majority, stated that ‘[i]t is not
unreasonable, in our day, to nurture the hope that medical science
may yet find
a drug or procedure to control if not cure, this extreme
kind of mental abnormality.’ That was said in 1991. Dr Jordaan
testified
in 2015, where she affirmed that though there is still no
cure for such conditions, a rehabilitation programme can be
introduced
to such persons as the appellant to improve their insight,
anger management, and impulsive control. And that though the
appellant
had previously failed to continue with a rehabilitation
programme, he had at least embarked on one and that such a programme
would
be very useful in attempting to manage future risk of offensive
behaviour. This factor, taken into account with the age of the
appellant and his use of narcotic and intoxicating substances at the
time, suggests that the appellant can be rehabilitated to a
certain
extent. It is my view that the trial court attached proper weight to
the personal circumstances of the appellant and the
expert evidence
of Dr Jordaan. I am thus not persuaded that the trial court
misdirected itself in finding the existence of substantial
and
compelling circumstances.
[33]
The fact that the convictions fall within the ambit of the prescribed
minimum sentence does not automatically result in a sentence
of life
imprisonment. The views expressed by Nugent JA in
S v Vilakazi
[2008] ZASCA 87
;
2009 (1) SACR 552
(SCA) para 18 are apposite in this
regard:
‘
It
is plain from the determinative test laid down by
Malgas
,
consistent with what was said throughout the judgment, and consistent
with what was said by the Constitutional Court in
Dodo
[
S
v Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC)], that a prescribed sentence cannot be assumed
a priori to be proportionate in a particular case. It cannot even be
assumed
a priori that the sentence is constitutionally permitted.
Whether the prescribed sentenced is indeed proportionate, and thus
capable
of being imposed, is a matter to be determined upon a
consideration of the circumstances of the particular case. It ought
to be
apparent that when the matter is approached in that way it
might turn out that the prescribed sentence is seldom imposed in
cases
that fall within the specified category. If that occurs it will
be because the prescribed sentence is seldom proportionate to the
offence. For the essence of
Malgas
and of
Dodo
is that disproportionate sentences are not to be imposed and that
courts are not vehicles for injustice.’
[34]
Though the appellant was not a first-time offender, the trial court
found that there was scope for rehabilitation. It accepted
that he
was under the influence of drugs and alcohol when the offences were
committed. The trial court rightfully accepted these
facts
cumulatively as amounting to substantial and compelling
circumstances.
[35]
Without appearing to have over-emphasized the personal circumstances
of the appellant I must emphasize that the crimes committed
by the
appellant were gross and inhumane. Rape is unquestionably a
despicable crime. The enormity of this crime was aggravated
by the
fact that it was committed against an unsuspecting young boy. In
S
v D
1995 (1) SACR 259
(A) this court said the following (at
260F-I):
‘
Children
are vulnerable to abuse, and the younger they are, the more
vulnerable they are. They are usually abused by those who think
they
can get away with it, and all too often do. . . . [The] appellant’s
conduct in my view was sufficiently reprehensible
to fall within the
category of offences calling for sentence both reflecting the Court’s
strong disapproval and hopefully
acting as a deterrent to others
minded to satisfy their carnal desires with helpless children.’
[36]
It is my view, that there was no misdirection on the part of the
trial court. It also cannot be said that the sentences imposed
were
startlingly inappropriate. There is no reason for this court to
interfere with the sentences.
[37]
Accordingly, I make the following order:
1.
The appeal against the convictions is dismissed.
2.
The cross-appeal against the sentences is dismissed.
__________________
YT Mbatha
Acting Judge of Appeal
Appearances
For Appellant:
E Crouse (with him H Charles)
Instructed by:
Grahamstown
Justice Centre Legal Aid, Grahamstown
Bloemfontein Justice Centre,
Bloemfontein
For
Respondent:
N Henning
Instructed by:
The Director of Public Prosecutions,
Grahamstown
The Director of Public Prosecutions,
Bloemfontein