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[2019] ZAGPPHC 323
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Gonyonga v S (A100-2018) [2019] ZAGPPHC 323 (18 July 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
Reportable:
NO
(2)
Of
interest to other judges: NO
CASE NO: A100 / 2018
18/7/2019
In
the matter between:
BONGILE
GONYONGA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MAKHUVELE J
Introduction
[1]
This appeal is against the conviction and sentence that was imposed
on the appellant
by the Regional Court at Oberholtzer where he was
arraigned on one count of murder read with the provisions of Section
51 of the
Criminal Law Amendment Act 105 of 1977 where it is alleged
that on or about 10 April 2011 he unlawfully and intentionally killed
one David Adams (the deceased) by stabbing him with a knife.
[2]
He plec1ded not guilty. He did not
tender any plea explanation but it transpired during cross
examination of the state witnesses
that his defence was an alibi. He
indicated that he left Carltonville on 27 March 2011 and went to
Sasolburg where he had obtained
new employment and never returned.
[3]
It appears from the transcript of the
record of proceedings that the appellant was legally represented
throughout the trial. It
is also evident that he had a fair trial in
that at the request of the Public Prosecutor and after charges were
put to him, the
Magistrate explained to the appellant that the
sentence that can be imposed on him can be up to life imprisonment,
that he had
a right to appeal the conviction and sentence and that he
may be declared unfit to possess a firearm if convicted. He also
explained
the various applicable competent verdicts.
Relevant background facts
leading to the conviction and sentence
[4]
The circumstances under which the
deceased died appear from the evidence of the witnesses that
testified on behalf of the State,
who, except for one, were not at
the scene of crime. The appellant testified and also called one
witness, his sister, to confirm
his alleged alibi.
State case
[5]
The first witness was Majukijela. He is
the police officer who attended to the crime scene. He confirmed that
he found the d ceased
lying on the floor, in the street near Chesa .
The deceased was still breathing, but his eyes were closed. He had a
wound on his
head and two other wounds on his back. There were two
men with the deceased at the scene. He was advised that the one that
stabbed
him had run away.
[6]
The second witness was Christopher
Twabi. He knows the appellant and the deceased as they were all
employed at Chesa By Night. He
was a 'bouncer'. He did not mention
the type of work that the appellant and the deceased were doing.
[7]
On the day in question they were
drinking at their work place until very late. Before closing time
they decided to go and buy food
at a nearby garage. They then went to
eat at Tower Butchery as they did not want to be seen eating tinned
food.
[8]
The appellant and the deceased then got
into an argument about their nationality, dissing each other about
one (appellant) being
colured and the other (deceased) being Xhosa .
The deceased became angry and pushed the appellant, also known as
Small who hit
against the wall. The appellant pushed back. He
separated them and they continued eating.
[9]
The quarell between the appellant and
the deceased started again, and this time it became serious. He moved
to separate them again
but realised that the deceased, who was moving
away from the appellant was injured. He asked the appellant what he
had done to
the deceased, but he did not answer. The deceased fell on
the grass. He ran to Chesa By Night and asked the security officer to
call an ambulance.
[10]
On much probing by the State Prosecutor,
he confirmed that the reason the deceased fell on the grass was
because the appellant stabbed
him with a knife, about two times.
He also confirmed that of the three of them, the deceased was more
intoxicated and that
is the reason he was trying to restrain the
appellant from what he was doing.
[11]
The appellant ran away with the knife
that he used to stab the deceased. The deceased was not armed.
[12]
Under cross examination, he testified
that:
[12.1] Other than the
three of them, were no other persons at Tower Butchery when the
incident occurred.
[12.2] He was sitting
a little bit further from the deceased and the appellant when they
quarrelled, hence he had to
stand and go and separate them.
[12.3] He did see the
stabbing and the knife that the appellant had after that.
[12.4] The deceased
and the appellant were
'best friends'.
[12.5] He denied the
version of the appellant that he left Carltonville, and Chesa By
Night employment on 27 March 2011.
He was adamant that the appellant
was on duty with him and the deceased on the day in question and that
after they knocked off
they went to buy food as he had testified. He
was also adamant that the appellant stabbed the deceased, and that he
ran away after
that. The knife remained in the appellant's hands
after he had stabbed the deceased.
[13]
The third witness for the State was Mr.
Makwa. He was also employed by Chesa By Night. He confirmed that the
deceased, Christopher
and the appellant were amongst the people who
were sitting there finishing their drinks just before they closed.
They moved away
to the direction of the filling station. He heard
their voices when they came back because he was upstairs. Christopher
came back
running to him after about an hour and reported that the
deceased and the appellant were fighting and that the latter had
stabbed
the former. He went downstairs and found that indeed the
deceased had been injured. He called the ambulance. The police
arrived
first. The appellant was not there at this stage.
[14]
Under cross examination he confirmed
what Christopher told him and that he knew all three as they work
together but the deceased
at the time had already left and was
working at SAB, but on the day in question the three were together
drinking at Chesa By Night.
He denied the appellant's version that he
left Carltonvllle on 27 March 2011.
[15]
The State also handed in a post-mortem
report and other documents relating to identification of the deceased
and hospital records.
[16]
After close of the defence case, the
State was granted leave to reopen
its case to deal with the appellant's defence of an
alibi. In this regard, Mr Somezembe, a 'Supervisor of security' at
Chesa
By Night was called to testify.
[16.1] He
testified that he knew the deceased. On the day in question he was in
Johannesburg. He received a call from
the deceased who advised him
that he was drinking with the appellant and Christopher at Chesa By
Night. He promised to see him
the next day. He received a call at
about midnight from one of the security officers advising him that
the deceased had been stabbed
and was taken to hospital. In the
morning he went to work and received a report about what happened.
[16.2] He went to see
the deceased at Sybrand Hospital but was advised that he had been
transferred to Leratong Hospital.
He went to look for the appellant
at his place of residence in Khutsong. He did not find him and the
room was locked. He was advised
that he left that
morning
with one Dex.
[16.3] He confirmed
that the appellant was on duty on Saturday night.
[16.4] During cross
examination the questions that he was asked were about his memory
since the incident happened seven
years before the trial, why he did
not report the appellant to the police since he went looking for him
after he heard that he
is the one who stabbed the deceased. His
response was that his staff gave him the report because he is in
charge and he went to
appellant's place to hear his version. The
police were already investigating the matter and had taken
statements. He denied the
appellant's version that he was no longer
working there. He confirmed that the appellant did not attend the
deceased's funeral
and raised concerns about this because as a
friend, he should have known about his death because on his version
he was in Sasolburg.
Defence case
[17]
The appellant testified that he was
arrested on 17 January 2017 at Cape Town.
[18]
He left Carltonville on 28 March 2011 for Sasolburg where he had
obtained another employment.
The deceased was the only person amongst
his friends who knew that he was leaving because he is the last
person he
was
with before the incident and before he left. The other person who
knew that he was leaving is his sister, with whom he is very
close.
He stayed at Sasolburg and was renting a room from a person called
Cedi, but he does not have the contact details as that
is a long time
ago. He also does not have contact details of where he was workingat
Sasolburg.
[18]
His employer (Chesa By Night) did not know that he had left . He left
in the morning of 27 March
2011.
[19]
Over the years after he left, he tried to contact the deceased by
telephone but he could not
get through. He only heard about his death
on the day of his arrest.
[20]
He knew the State witness, Chistopher as they worked together at
Chesa By Night, but they were
not friends.
[21]
He denied knowledge of what all state witnesses had testified about
him.
[22]
Under cross examination;
[22.1] He confirmed
that he knew the witnesses who testified because he worked with them
at Chesa By Night. He does
not know their motives for implicating him
in the murder of the deceased.
[22.2] He confirmed
that the deceased had resigned from Chesa By Night and that he he did
not resign, but simply left
because he was not
permanently employed.
[22.3] He also
confirmed that he did not tell any of the people who arrested him
about his alibi or that he had a witness
because they did not want
his statement.
[23]
Gasikwa Gonyago the appellant's sister, testified as a defence
witness.
[23.1] She testified
that the appellant telephoned her in March and told her that he had
found employment at Sasolburg.
She did not see him leave
Carltonville, but she visited him once at Sasolburg. She could not
remember the date.
[23.2] The appellant
was in Sasolburg during the time that it Is alleged he committed the
crime in question. He did
not come back to Carrltonville as he was
working in Sasolburg.
[23.3] Under cross examination she
was unable to answer questions such as whether the appellant resigned
from Chesa By Night or
not and how he came to be in Cape Town.
Ad
conviction: Findings and reasons
[24]
The defence of alibi was abandoned during argument on the merits of
the charge. It is rather
strange that the counsel for the appellant
raised the defence of alibi in his heads of argument when it clearly
appear from the
record that this was abandoned. The Magistrate in his
written reasons for judgment also wrote the following:
"
The appellant
, a
male aged 29, was sentenced to 15 years imprisonment on
a
count of Murder.
The appellant throughout denied
his presence on the scene. However in his final argument he, with
toungue in the cheek, submitted
that Indeed he was on the scene and
that he indeed assaulted the deceased, but that he did not have the
necessary intention to
kill. (Transcript page 48 line 10). We are
aware that
a
false explanation
explanation tends to support the state's case (
S
v
Nkomo
1966 (1)
SA
831
(A), but we nonetheless duly considered the aspect of intent
(Transcript page 54 lines 18-25). We did not want to create the
impression
that intention was found only because his alibi was
rejected.''
[25]
Having abandoned the defence of alibi,
the remaining dispute between the state and the appellant was whether
the latter is the person
that killed the deceased and whether he had
the requisite intention to kill.
[26]
On the question of identity, the
Magistrate took into account the fact that there was a single eye
witness to the stabbing, and
as such, he had to apply the necessary
caution. There was overwhelming evidence to corroborate the fact that
the appellant was
at the scene. Furthermore, most of the witnesses
for the state were friends or colleagues of the appellant.
[27]
The Magistrate indicated that he did not
notice any sign of prejudice because even the supervisor was on
social terms with the appellant
and used
to
attend celebrations at his home. Furthermore, the eye witness,
Christopher , made a concession that the deceased was the first
to
push the appellant.
[28]
Taking into account all eveidence
tendered, the Magistrate found that the 'probabilities were on the
side of the state." There
was also corroboration with regard to
the presence of the appellant at Chesa By Night.
[29]
The Magistrate considered the versions
given by the appellant and his witness. The appellant was not
consistent with the date that
he left Carltoville for Sasolburg. At
first he said 27 March, then changed to 28 March . His sister did not
know the date on which
he left.
[30]
He also dealt with the issue of the
alibi, which in any event was abandoned during argument. Before us it
was raised as a main ground
of appeal, and intention to kill as an
alternative .
[31]
On intention to kill, the Magistrate
considered the number of times that the deceased was stabbed and the
fact that he had 'a 7
centimetre
wound among others right through the skull'.
The
deceased was drunk and unarmed but the appellant continued stabbing
him even as he was falling down
Ad sentence: reasons
[32]
The appelant's personal circumstances were taken into account.
[32.1] He is 29 years
of age, unmarried with three children with ages ranging between 2 and
7 years. He was employed,
earning an Income and was supporting his
immediate and extended famiy.
[33]
The appellant spent 12 months in custody
whilst awaiting finalization of the trial.
[34]
The circumstances under which the
offence was committed were also taken into account, namely;
[34.1] Intoxication,
[34.2] the
provocation, which was actually more of a nuisance that the deceased
had been on him, which he could have
ignored as the latter was drunk
and not posing a danger to him.
[34.3] Even though one
cannot say that the murder was premeditated, the appellant readily
had a knife in his possession.
[35]
He also took into account the prevalence
of violent crimes and the interests of society because many offenders
are not arrested
or get away without being punished.
[36]
He also took into account the fact that
a big knife was used and that he has a previous conviction. He then
stated that if they
were not there he would find compelling
circumstances.
[37]
The appellant was sentenced to 15 years imprisonment and also
declared unfit to possess a firearm.
The grounds of appeal and
the parties' oral submissions
[38]
The appellant's counsel argued the
merits of the conviction on two grounds, namely, the evidence of the
single witness and the alibi.
[39]
During oral argument he could not take
the issue of alibi any further than as it has been presented in the
record of proceedings.
He then relied on absence of intention as an
alternative ground.
[40]
He argued that the cumulative effect of
the mitigatory circumstances constitute compelling and substantial
circumstances that the
Magistrate should have considered and deviated
from the prescribed minimum sentencing regime.
[41]
The State in its heads of argument
conceded that the Magistrate failed to make findings on whether there
are compelling and substantial
circumstances to justify a deviation
from the minimum sentencing regime.
We were however urged to use the
court's common law jurisdiction and accept the sentence passed.
Evaluation of the evidence
and applicable legal principles
Identification and evidence of
a single witness
[42]
The issue of alibi and identity of the
person that stabbed the deceased are intertwined. In my view, having
disposed of the alibi,
and the overwhelming evidence regarding the
presence of the appellant in the group that comprised of himself and,
the deceased
and Christopher is sufficient proof that there is no
mistaken identity here. In any event, identity was not seriously
contended.
[43]
The principles that guide resolution of
identity dispute are as follows:
[43.1] Due to the
fallibility of human observation, courts normally approach the
evidence of identification with some caution.
[1]
[43.2] The identifying
witnesses must be honest. The reliability of their observations must
be tested bearing in mind factors
such as lighting, visibility,
eyesight, the proximity of the witness, her opportunity for
observation both as to time and situation,
the extent of her prior
knowledge of the accused, the mobility of the scene, corroboration,
suggestibility, the accused's face,
voice, build, gait and dress as
well as the evidence by or on behalf of the accused. These factors
must be weighed one against
the other, in light of the totality of
the evidence and the probabilities.
[43.3] Caution must be
applied when evaluating the evidence of a single witness by
considering its merits and demerits. Despite
shortcomings, defects or
contradictions in her evidence if any, if the trial court is
satisfied that the witness has told the truth,
it ought to accept it.
The exercise of caution must not be allowed to displace the exercise
of common sense.
[2]
[43.4] In the normal course
of events, the evidence of a single witness would only be accepted if
it is in every important
respect satisfactory or if there is
corroboration for that evidence. The corroboration required is
confirmatory evidential material
outside the evidence that was being
corroborated.
[3]
[44]
I am satisfied that the Magistrate has
carefully weighed the evidence and applied the necessary cautionary
rules. There is sufficient
corroboratory evidence with regard to
material issues that are in dispute, namely, the identity of the
person that stabbed the
deceased.
Intention to kill
[45]
The appellant stabbed the deceased with
a big knife, under circumstances where the deceased was defenceless,
unarmed and drunk .
Moreover. they were best friends.
[46]
The types of injuries that he sustained
and the part of the body on which they were inflicted indicate that
the appellant did not
care whether he dies or not. In fact, he
reconciled himself with the fact that he will die, hence he pulled
the knife out after
stabbing him and ran away, disapperaed from that
community , never returned until he was arrested about seven years
later at Cape
Town. It is worth mentioning that the crime took place
in Gauteng Province.
Whether there is any
midirection on the sentence imposed_
[47]
It is trite that the appeal court can
only interfere with the discretion of the lower courts to impose
sentences only if :
[47.1] There was an
irregularity during the trial or sentencing of an accused person.
[47.2] The lower court
misdirected itself in respect of the imposition of the sentence.
[47.3] The sentence
imposed by the court could be described as disturbingly or shockingly
inappropriate.
[48]
The qestion is not whether the sentence
is right or wrong, but rather
whether the lower court exercised its discretion
properly and judicially
[4]
.
[49]
Much has been said about the omissions
of the trial court with regard to making a finding on whether there
are substantial and compelling
circumstances to justify a deviation
from the prescibed minimum sentences.
[50]
I referred to the record where the
Magistrate appeared to indicate a constraint on him to make such a
finding. He was reluctant
to do so because of what he considered to
be aggravating factors, such as the big knife and the previous
conviction.
[51]
The concern for me though Is that the
trial court went along with the failure by the legal representatives
to mention or argue whether
there were substantial and compelling
circumstances justifying a departure from the minimum sentencing
regime.
[52]
This failure by the trial court to
mero
motu
raise the issue is in my view a
misdirection. In fact, the very factors that the trial court
considered when passing sentence may
constitute substantial and
compelling circumstances to justify a departure from imposing the
minimum prescribed sentences.
[53]
The proper approach to sentencing under
circumstances where the provisions that created a mandatory minimum
sentencing regime ,
Section 51(3)(a) of Act 105 of 1997 are
applicable was formulated by Marais JA in the leading case of
S
v Malgas (117/2000) [2001) ZASCA 30; (600113 All SA 220 (A) (19 March
2001)
[5]
.
[54]
In Paragraph 25, Marais J summarized the
proper approach by examining the provisions that created the minimum
sentencing regime
as well as the specific offences referred to in
Part 1 of Schedule 2. With regard to the latter, the learned Judge
stated that
the court's discretion In imposing sentence has been
limited, and not eliminated. The usual factors that a trial court
would take
into account when sentencing are still applicable, such as
proportionality of the sentence to the crime, balancing the various
competing interests, and the nature of the offence.
[55]
It is clear from the charges preferred
on the appellant that the State indicated its intention to rely on
the prescribed minimum
sentences. The Magistrate was asked to explain
the competent verdicts and possible sentences. He did this.
It is therefore suprising why at
the end he did not deal with this issue in clear terms, and not in a
roundabout way.
Conclusion
[56]
There is no reason for this court to interfere with the conviction of
the appellant, however,
due to the misdirections that I have
highlighted above, this court is entitled to interfere with the
sentence imposed.
[57]
I have already stated that the very
factors that the court took into account could constitute substantial
and compelling circumstances
to justify a departure from imposing the
minimum prescribed sentences.
[58]
There is no need to remit the matter
back to the trial Magistrate because the factors have been identified
and form part of the
record. This court is in a position to impose a
fresh sentence .
[59]
In my view, the fact that the Magistrate
did not find any evidence of premeditation and the fact that the
group were drinking, the
provocation by the deceased and the fact
that the appellant spent 12 months in prision whilst awaiting trial
are amongst others
factors that the Magistrate should have taken into
account as justification for a departure from the minimum sentencing
regime.
[60]
Taking into account all the relevant
factors the appropriate sentence in my view is 12 years imprisonment.
Order
[61]
Accordingly, I make the following order,
[61.1] The appeal on conviction is
refused.
[6.2] The
appeal against the sentence of 15 years Imprisonment is upheld . The
order of the Magistrate is
set aside and substituted as follows;
"
The appellant Is
sentenced to 12 years imprisonment
"
TAN
MAKHUVELE J
Judge
of the High Court
I
agree, and it is o ordered,
NN
BAM AJ
Acting
Judge of the High Court
APPEARANCES
Appellant:
Mr. S.M Moeng
Instructed
by Legal Aid South Africa
The
State:
Advocate R Molokoane
On
behalf of the Office of the Director of Public Prosecututions,
Pretoria,
Date
heard:
20 May 2019
Judgment
delivered on:
18
July 2019
[1]
S v Mthethwa
1972 (3) SA 766
AD at 7680.
[2]
S v Sauls and Others 1981 (3) SA 172 (A).
[3]
S v Miggel
2007 (1) SACR 675
(C) at 678A.
[4]
S v Pillav
1977 (4) SA 531
(A) at p 535 E-G
[5]
Reported in the South African Criminal Law Reports as S V Malgas
2001 (1) SACR 469
(SCA)