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[2019] ZAFSHC 15
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Cofa and Others v S (A132/2017) [2019] ZAFSHC 15 (22 March 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A132/2017
In
the matter between:
ANDILE
COFA
1
st
Appellant
TEBELLO
NTISA
2
nd
Appellant
MONGEZI
JOHANNES MATIWANE
3
rd
Appellant
and
THE
STATE
Respondent
HEARD
ON:
10 DECEMBER 2018
JUDGMENT
BY:
MATHEBULA, J et CHESIWE, J
DELIVERED
ON:
22 MARCH 2019
[1]
The appellants appeared before the regional magistrate, Welkom
charged with murder read with provisions of section 51 (2) of
Act 105
of 1997. An additional charge of assault with intent to do
grievous bodily harm was also preferred against the 2
nd
appellant. The trial court convicted all the appellants with
murder and the 2
nd
appellant with a further charge of assault with intent to do grievous
bodily harm. They were all sentenced to fifteen (15)
years
imprisonment. In respect of the 2
nd
appellant a further sentence of three (3) years was handed down to
the aforementioned sentence. In terms of section 280 of
Act 51
of 1977 it was ordered that the sentence run concurrently with the
sentence imposed on the murder charge.
[2]
Aggrieved with both conviction and sentence the appellant applied for
leave to appeal. This appeal is before us with leave
granted by
the trial court. Before us appeared Mr L Tshabalala for first
and third appellants. The second appellant was represented
by Mr P.P.
Mile. Mr D. Pretorius appeared for the State. All counsel did
not make any submissions and stood by their heads
of argument.
[3]
The facts are briefly as follows. The events of 23 November
2012 unfolded at Mahlomola’s Tavern, Welkom. The
deceased
an his friends arrived there to have a drink but they were barred
from entering. After persuading the lady in charge
they were
allowed to buy beer. As they were leaving an altercation
erupted and one Mokhele Thys Thebeladi was stabbed at
the back by the
second appellant after chasing him for approximately 200 metres.
[4]
The situation deteriorated very fast and all three accused were
observed in a stabbing frenzy against the deceased who was lying
on
the ground after being tripped by the first appellant. The
deceased tried in vain to defend himself but he was no match
against
the three appellants. All the appellants denied any involvement
in a fight that resulted in the death of the deceased.
The crux
of the defence of the first appellant is that he left the tavern
before the fight started. The second appellant
testified that
he chased after Mokhele and on his return the deceased was already
lying on the ground. According to the 3
rd
appellant he did not participate nor see what happened to the
deceased.
[5]
The fundamental rule is that the court of Appeal is not at liberty to
depart from the factual and credibility findings of the
trial court
unless they are clearly wrong.
[1]
The presumption is that the trial court’s conclusions on the
facts is correct. The appeal court will only reverse
such
conclusion(s) where it is convinced that the trial court is wrong.
[6]
It is trite law that the State must prove its case against an accused
person beyond reasonable doubt. The proper approach
in
evaluating evidence was instructively explained by Heher AJA (as he
then was) in S v Chabalala in the following terms:-
“
The correct
approach is to weigh up all elements which point 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 reasonable doubt about the
accused’s
guilt”
[2]
[7]
I note that the trial court was alive to this approach and set out to
apply the appropriate legal principles to the facts.
The trial
court also dealt with the evidence of state witnesses corroborating
each other. The appellants which were well
known to the
witnesses were all seen stabbing the deceased while he tried in vain
to defend himself. According to the post
mortem report he
sustained multiple stab wounds. Nobody else except the three
were seen attacking the deceased. The
second appellant chased
Mokhele and stabbed him on the back. The trial court correctly
concluded that this was an attack.
It could not by any stretch
of imagination be considered as self-defence.
[8]
It is so that the version of the accused person must only be
reasonably possibly true. If the accused’s evidence
surpasses this threshold, then an acquittal must follow.
However, confronted with such formidable evidence against them,
the
version of the appellants does not measure up to the threshold.
[9]
Therefore I come to the conclusion that the trial court did not
commit any misdirection to the extent of vitiating its findings.
The appeal on conviction ought to fail.
[10]
I now turn to the last leg of the appeal namely sentence. The
appellants were charged under section 51 (2) of Act 105
of 1997.
The section provides that in the event of conviction, a first
offender may be sentence to fifteen (15) years imprisonment
unless
the court finds substantial and compelling circumstances justifying
deviation from imposing the prescribed minimum sentence.
The
trial court concluded that there were no substantial and compelling
circumstances and proceeded to impose the aforementioned
sentence.
[11]
Sentencing is the prerogative of the trial court and the court of
appeal must not replace the sentence imposed by the trial
court with
its own, unless it is justified to do so.
[3]
The trial court took into consideration the personal circumstances of
all the appellants, the nature and gravity of the offence
and
interest of the community. Having balanced these against each
other, the trial court correctly concluded that the prescribed
minimum sentence is the appropriate sentence. I have no doubt
that the heinous nature of the offence and in particular the
predatory manner it was committed deserve such stern punishment. I am
persuaded that the trial court has not misdirected itself
and the
sentence imposed cannot be faulted nor is it shockingly
inappropriate.
[12]
Accordingly I make the following order:-
12.1. The appeals against
convictions and sentences are dismissed.
_____________
MATHEBULA,
J
I
concur
__________
CHESIWE,
J
On
behalf of first and third applicant: Adv. P.P Mile
Instructed
by: Legal Aid
BLOEMFONTEIN
On
behalf of second applicant: Adv. P.P Mile
Instructed
by: 28 Lategan Street
St
Helena
WELKOM
On
behalf of respondent: Adv. D. Pretorius
Instructed
by: State Attorney
BLOEMFONTEIN
[1]
S v Leve
2011 (1) SACR 87
(ECG) at para 81
[2]
2003 (1)
SACR 134 (SCA)
[3]
S v
Obisi
2015 (2) SACR 35
(W) at 35 I - J