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[2019] ZAFSHC 235
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Thom and Another v S (A147/2019) [2019] ZAFSHC 235 (6 December 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Case
No: A147/2019
In the matter
between:
DAVID
THOM
[1]
First
Appellant
MONNAPULE
PETRUS
WILLEMSE
[2]
Second
Appellant
a
nd
THE
STATE
Respondent
Coram:
Mbhele,
J
et
Opperman,
J
Heard:
18
November
2019
Delivered:
6
December
2019
Judgment:
Opperman,
J
Summary:
Appeal
- murder - conviction and sentence - evaluation of evidence
JUDGMENT
[1]
Both appellants were
convicted of murder and sentenced to life imprisonment in terms of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
in the
Regional Court.
An accused
sentenced to imprisonment for life by a Regional Court under said
section may note an appeal to the High Court without
having to apply
for leave to appeal in terms of
section 309B
of Act 51
of 1977. The matter lies as such before this court.
[2]
The facts that are common
cause and proven by the State are:
1.
The deceased went missing
on the night of the 5
th
of August 2014 whilst working. He was a taxi driver.
2.
On the 7
th
of August 2014 his body was discovered in a stream submerged under
water; his hands and legs were tied with shoelaces and there
was a
plastic bag over his head.
3.
The moss on the rock under
his bare feet was disturbed in a half-moon pattern. A member of the
South African Police that made observations
at the scene concluded
that the deceased struggled to loosen himself hence the markings by
his feet on the rock.
4.
The post-mortem report
proved that the deceased drowned. There was a bruise on his neck and
lower chest on the lateral side that
was sustained before death.
5.
The girlfriend of the
deceased spoke to him over the phone at about 20h00 on the 5
th
of August 2014. He was to sleep over at her place that night but
never arrived.
6.
At about midnight of the
5
th
/6
th
of August 2014 accused two contacted his nephew to ask for a place to
sleep. At about 5h00 that morning this witness, the nephew,
met with
accused one, two and three. At 13h00 the accused called him and
informed of trouble with their vehicle. The witness was
at work at
this stage.
7.
The witness found the
three accused by a white Toyota Conquest vehicle. They moved the
vehicle to his home. At the witnesses’
place the first
appellant took, among others, the rear number-plate from said
vehicle.
8.
The witness wanted to buy
the vehicle and two days later the first appellant phoned and made an
offer to sell the vehicle to him
for R7000.00.
9.
The same vehicle was later
confiscated from the witness by the police and identified by the
owner as the vehicle the deceased drove
when he went missing; the
rear number-plate was missing.
[3]
Confessions
made by the second appellant and accused two were correctly ruled
admissible by the trial court. The detail of the murder
was described
therein and correlated with the surrounding and objective facts
proven and that are common cause.
[3]
Evidence adduced directs to the fact that the confessions were
obtained in line with constitutional standards.
[4]
In the face of the above
the appellants did not testify in their defence or adduce any
evidence.
[5]
The onus is on the State
to prove its case beyond a reasonable doubt. If the subjective
version of the accused is reasonably possibly
true after the
evaluation of the evidence as a whole, the accused must receive the
benefit of the doubt and go free. The quandary
of this case is that
the versions of the appellants were not placed before the court in
any way whatsoever.
[6]
In
S
v Mlambo
[1957] 4 All
SA 326
(A) it was ruled that if an accused choose not to avail the
court of their version or is deceitful, they have only themselves to
blame if an adverse verdict is given. An accused's claim to the
benefit of a doubt when it may be said to exist must not be derived
from speculation but must rest upon a reasonable and solid foundation
created either by positive evidence and gathered from reasonable
inferences which are not in conflict with, or outweighed by, the
proved facts of the case.
[7]
Again,
the Mlambo-case: There is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an
accused. It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that
the ordinary reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an
accused has committed the crime
charged. He must, in other words, be morally certain of the guilt of
the accused.
[4]
[8]
The evidence points
directly to the guilt of the appellants and the convictions cannot be
faulted.
[9]
The sentences of life
imprisonment are decreed in legislation. Aside from said provisions
the circumstances of the case demonstrate
a heinous premeditated
crime. The appellants got information of a person that wanted to buy
a Toyota. The deceased drove one and
they targeted him. The deceased
was a friend of one of the accused. They duped the decease to
transport them. They strangled him
with a waist belt and whilst he
was kicking and struggling, they locked him in the back of the
vehicle. They also pulled a plastic
bag over his head. They drove off
with him to a place where they stopped and submerged him; hands and
feet tied, with the plastic
bag over his head, in a stream. He fought
for his life in the dark of night until he drowned.
[10]
The appellants now,
half-heartedly so, claim to be deserving of a lesser sentence than
life imprisonment. The substantial and compelling
circumstances
submitted to the sentencing court were:
1.
The first appellant is the
eldest of the three perpetrators at 32 years of age. He has two minor
children of which one that is three
years old stays with him and the
mother at his parental home. The appellant’s highest
educational level is grade twelve and
he was permanently employed at
the time of the offence. He has one previous conviction dated 2008
for assault with the intent to
commit grievous bodily harm.
2.
The second appellant was
27 years old at the time of the sentencing, not married, unemployed
and a first offender. He passed matric
and later trained at his
church.
[11]
There
is nothing in the circumstances and cold facts of the case that
indicates that the sentencing court erred in any manner and
that the
punishment
in
casu
does not fit the crime and is not fair to society and the
perpetrators.
[5]
The deceased
was a hardworking and trusted man that endeavoured to make a living
in a competitive and dangerous world. He was an
easy target as a
taxi-driver for strangers but, ironically so, murdered by a friend.
[12]
In conclusion; the
convictions are correct and the sentences apt. The appeal stands to
be dismissed.
[13]
ORDER
The
appeals are dismissed and the convictions and sentences of both
appellants confirmed.
______________________________
M.
OPPERMAN, J
I
concur
______________________________
N.M
MBHELE, J
Appearances
For
appellants:
ADV V.C. ABRAHAMS
Legal Aid SA
Bloemfontein
For
respondent:
ADV A.M. FERREIRA
Office of the
Director of Public Prosecutions: Free State
Bloemfontein
[1]
Accused one.
[2]
Accused
three.
[3]
As was ruled
in
R
v Blom 1
939
AD 188
and following the cardinal principles of logic:
1. The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be
drawn.
2. The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn.
If they do not exclude
other reasonable inferences, there must be doubt whether the
inference sought to be drawn is correct.
[4]
S
v Mlambo
[1957]
4 All SA 326
(A) on 336.
[5]
S v
Khumalo
1973 (3) SA 697
(A).