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[2020] ZAGPPHC 27
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Shongwe v S (72734/2017) [2020] ZAGPPHC 27 (25 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION)
(1)
REPORTABLE:
YES
/ NO.
(2)
OF INTEREST TO OTHER JUDGES:
YES
/ NO.
(3) REVISED. No
Case
No. A166/2017
25/2/2020
In
the matter between:
ROBERTO
ROMARIO SHONGWE
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MILLAR
AJ
[1]
On 22 November 2016, the appellant, a 21-year-old man was convicted
in the Regional
Court Ermelo of 1 Count of murder. He was sentenced
to 12 years imprisonment. The appeal before this court is against
conviction
and sentence, such leave having been granted by the court
a quo
.
[2]
The appellant was legally represented throughout the proceedings. He
pleaded not guilty
to charges of murder and assault with intent to
cause grievous bodily harm. An explanation of plea was placed on
record.
[3]
On the evening of 17 December 2014 and at Dubs Tavern in Lothair,
Mpumalanga, a chain
of events was set in motion that resulted in the
late Ayanda Nkosi (“the deceased”) being stabbed 18
times and
losing his life as a result. This was all that was
common cause. Six persons were charged with murder, one of whom was
the appellant.
The appellant was “accused no. 2” in the
court
a quo
. For the sake of convenience he will be referred
to as the appellant and the other accused persons who are not before
this court
as accused 1, 3, 4, 5 & 6 respectively.
[4]
The state called two witnesses to testify – Mr. Philane
Slabbert and Mr. Themba
Maseko. Each of the state witnesses testified
as to the portion of the chain of events observed by them
respectively. The evidence
of Mr. Slabbert related mainly to what had
transpired inside the tavern and that of Mr. Maseko to what had
transpired outside.
[5]
According to Mr. Slabbert he had heard a commotion outside the tavern
and then the
deceased had entered the tavern followed by all 6
accused. He had climbed onto the pool table in the tavern to see what
the commotion
was about and it was from this vantage point that he
had observed events. The deceased had been cornered inside and while
he had
seen the appellant and accused 6 hitting him with clenched
fists, he had seen the others, 1, 3, 4, and 5 stabbing the deceased.
He did not testify that he had seen the deceased inflict injuries on
anyone.
[6]
He had at some stage tried to intervene to stop the attack on the
deceased and had
himself been stabbed although the injuries he
suffered were relatively minor. The deceased had managed to break
free and left the
tavern with the accused in pursuit. He had a short
while later exited the tavern and I will return later to his
observations outside.
[7]
Mr. Maseko had been seated outside the tavern drinking with friends.
He had seen the
deceased run into the tavern being chased. A short
while later the deceased ran out pursued by the appellant and accused
4, 5 and
6. The appellant and accused 6 had caught up to the deceased
and tripped him to the ground and had then proceeded to stab him.
[8]
The deceased had managed to get up and ran further to a nearby bakkie
and had jumped
onto the back of it. Accused 4 and 5 had followed the
deceased to the bakkie and had continued stabbing him there. He did
not notice
the appellant and accused 6 after that as neither the
appellant nor accused 6 had followed the deceased to the bakkie or
stabbed
him there. He had then for the first time noticed accused 1
lying injured on the ground outside.
[9]
The appellant accused 1 and accused 6 made common cause with their
defence to the
charges against them. Accused 1 had testified that the
deceased had stabbed him 3 times and that he had stabbed him once in
self
defence. His evidence was then that he had fallen to the ground
outside the tavern, unable to move as a result of his injuries and
his state of inebriation. The appellant testified that he had been
called to come to the tavern to assist accused 1 and that when
he had
got there and seen his state he realized he would need help to take
him to the clinic, he had then telephoned accused 6
to come and help
him. Accused 6 arrived in his sleepwear and together they had helped
accused 1 to the clinic.
[10]
All three denied entering the tavern, accused 1 on the basis that he
was unable to do so because
of his injuries, the appellant because he
was only there to assist accused 1 and as a person who did not drink
would in any event
have had no reason to go inside and lastly accused
6 who stated that he would not go inside in his sleepwear.
[11]
Returning to the last part of the evidence of Mr. Slabbert, he
testified that when he had exited
the tavern he had seen accused 1
near the bakkie and had observed that he was bleeding from his mouth.
He did not see either the
appellant or accused 6 at that stage.
[12]
Counsel for the appellant argued that there were material
discrepancies in the evidence of Mr.
Slabbert and Mr. Maseko which
rendered all their evidence questionable. She pointed pertinently to
the fact that Mr. Slabbert had
said that he did not see the appellant
and accused 6 with weapons inside the tavern and that when he had
come out he had seen accused
1 but not them.
[13]
Mr. Maseko was criticized for the fact that the statement he had
given to the police shortly
after the incident did not accord
precisely with the evidence given in court in that the statement did
not record that the appellant
and accused 6 had tripped the appellant
and stabbed him before he had fled to the bakkie.
[14]
While it is so that the evidence of Mr. Slabbert and Mr. Maseko did
not correspond precisely,
it seems to me that the discrepancies such
as there may be, are indicative of the “moving scene”
through which the
events of the evening in question unfolded. Both
witnesses place accused 1, the appellant and accused 6 following the
deceased
into the tavern. Both place all three outside the tavern
after the deceased ran out. It is the evidence of Mr. Maseko alone
that
the appellant and accused 6 stabbed the deceased.
[15]
While Mr. Slabbert did not see the appellant and accused 6 outside
when he exited the tavern,
he did see accused 1 and testified about
the injury he had seen. The fact that all three accused confirmed in
evidence that accused
1 was bleeding from his mouth means that Mr.
Slabbert could not have known this unless he had indeed come out of
the tavern when
he said he did.
[16]
The evidence paints a picture of a series of events which culminated
in the death of the deceased.
None of the state witnesses saw the
entire series of events, each seeing only part. The consideration of
the evidence in this matter
must be as a whole
[1]
and the individual pieces of the “jig-saw puzzle” pieced
together.
[17]
In S v Chabalala
2003 (1) SACR 134
(SCA) it was held by Heher AJA at
40a–b that:
“
The
correct approach is to weigh up all the elements which points towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt to the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be on an ex post facto determination
and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it
in the context
of the full picture in evidence.”
[18]
The appellants counsel made much of the fact that Mr. Slabbert had
testified that he had not
seen the appellant and accused 6 when he
had exited the tavern and tried to suggest that this fact should
cause the evidence of
Mr. Maseko to be called into question. I
disagree – the fact that Mr. Maseko kept his attention on the
attack on the deceased
and that Mr. Slabbert saw accused 1 on his own
near the bakkie while the attack continued, is destructive of the
version given
in evidence by accused 1, the appellant and accused
6
[2]
.
[19]
The most serious challenge to the evidence of Mr. Maseko was in
regard to the discrepancy between
his evidence in court and the
written statement. The approach to be followed in this regard is set
out in
S
v Mafaladiso and Others
2003 SACR 589
(SCA) at 584d-h:
“
Material
differences between witness’s evidence and prior statement –
Juridical approach to contradictions between two
witnesses and
contradictions between versions of the same witness is, in principle
identical – In neither case is aim to
prove which version is
correct, but to satisfy oneself that witness could err, either
because of defective recollection or because
of dishonesty –
Court must carefully determine what witnesses actually meant to say
on each occasion – In this regard
adjudicator of fact must keep
in mind that previous statement not taken down by means of
cross-examination, that there may be language
and cultural
differences between the witness and the person taking down the
statement and that person giving statement is seldom,
if ever, asked
to explain statement in detail – It must be kept in mind that
not every error by a witness and not every contradiction
or deviation
affects credibility of witness – Non material deviations not
necessarily relevant – Contradictory versions
must be
considered and evaluated on a holistic basis.”
[20]
The failure to record in the prior statement to the police that he
specifically saw the appellant
and accused 6 tripping and stabbing
the deceased was traversed during cross examination. Mr. Maseko
testified that he had told
this to the Police Officer who took down
his statement. The statement was read into the record and it is
apparent that it was a
narrative of the events as witnessed by him on
the evening. None of the 6 accused were named in the statement -
being referred
to as “a group of males”. It was open to
the defence to have pursued this further, but it failed to do so.
[21]
It bears mentioning that the evidence of Mr. Maseko was not seriously
disturbed during cross-examination
and that the court
a quo
had found him to have made a favourable impression upon the court.
AD
CONVICTION
[22]
In my view, and on consideration of the evidence as a whole, there
can be no doubt that the appellant,
committed the offence with which
he was charged and convicted.
[23]
There is in the circumstances, no reason to interfere with the
factual findings of the court
a quo
in respect of the
conviction on count 1
AD
SENTENCE
[24]
The appellant was convicted, on Count 1 of a crime referred to in
Part
1 of Schedule 2 of The
Criminal Law Amendment Act 105 of 1997
and the court a quo was obliged to impose the prescribed minimum
sentence of life imprisonment in terms of
Section 51(1)(a)
of that
Act, absent substantial and compelling circumstances
[3]
.
See
S
v Malgas
[4]
.
1.
The
court
a
quo
found
substantial and compelling circumstances and imposed a sentence of 12
years imprisonment, a sentence significantly lower than
the
prescribed minimum.
2.
There
are in the circumstances no grounds for to interfere with the
sentence imposed by the trial court.
[25]
In the circumstances, I make the following order:
25.1
The
appeal against the conviction on count 1 is dismissed.
25.2
The
appeal against sentence on count 1 is dismissed.
A
MILLAR
ACTING
JUDGE OF THE HIGH COURT
I agree, and is so ordered.
B NEUKIRCHER
JUDGE
OF THE HIGH COURT
HEARD
ON:
20 FEBRUARY 2019
JUDGMENT DELIVERED
ON:
25 FEBRUARY 2019
COUNSEL FOR THE APPELLANT:
ADV L AUGUSTYN
INSTRUCTED
BY:
LEGAL AID SOUTH AFRICA
PRETORIA JUSTICE
CENTRE
COUNSEL FOR THE RESPONDENT:
ADV M MOHAMED
INSTRUCTED
BY:
THE STATE ATTORNEY
[1]
S
v Trainor
2003 (1) SA 35
(SCA) -
“
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.”
[2]
Shackell
v S
[2001] 4 All SA 279
(SCA)
[3]
Section
52(3)
of Act 105 of 1997
[4]
2001
(1) SACR 469
(SCA) at paragraph 8