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Ntomi v S (A135/19) [2019] ZAFSHC 261 (12 December 2019)

75 Reportability
Criminal Law
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Brief Summary

Criminal Law — Murder — Conviction based on evidence of single witness — Appellant convicted of murder after being identified as the assailant by a single witness who testified to witnessing the stabbing — Appellant denied involvement, claiming he did not stab the deceased — Trial court found the witness credible and reliable, corroborated by medical evidence — Appeal against conviction dismissed.

Comprehensive Summary

Summary of Judgment


1. Introduction


This was a criminal appeal to the High Court of South Africa, Free State Division, Bloemfontein, against both conviction and sentence imposed by the Regional Court, Welkom. The matter was heard by Musi JP and Chesiwe J, with judgment delivered by Chesiwe J.


The appellant, Mr Paseka Elvis Ntomi, had been charged with and convicted of murder, with the charge framed as read with section 51(2) of the Criminal Law Amendment Act 105 of 1997. He pleaded not guilty, was convicted on 19 March 2019, and was sentenced to 15 years’ imprisonment.


The Regional Court granted the appellant leave to appeal against both the conviction and the sentence. The central dispute on appeal concerned, first, whether the State had proved the appellant’s guilt beyond reasonable doubt in circumstances where the State relied materially on the evidence of a single witness, and second, whether the sentence imposed was susceptible to appellate interference, including whether substantial and compelling circumstances justified a lesser sentence.


2. Material Facts


The events giving rise to the charge occurred on the night of 15 April 2018 at or near ZM Tavern. It was common cause in the evidence that the deceased was chased and was subsequently found lying in a pool of sewerage water and later discovered to be unresponsive.


A key area of overlap between the State case and the appellant’s version was that the appellant was present at ZM Tavern on the relevant night and that he chased the deceased. The appellant accepted that he and Katleho pursued the deceased after the tavern owner instructed them to catch or chase the deceased, allegedly because the deceased had previously broken into the tavern.


The disputed issue was the identity of the person who stabbed the deceased. The appellant’s case was that, although he chased the deceased, he did not stab him; he attributed the stabbing to Katleho, and also suggested that the deceased had approached him while holding a knife, causing him to retreat.


The State relied on the evidence of Stephen Thobehi, who testified that he was at ZM Tavern with a group including the deceased, and that they were members of the same gang as the appellant. Thobehi’s evidence placed the appellant in the immediate vicinity of the attack and attributed the stabbing to the appellant. According to Thobehi, he observed the deceased being chased, with the appellant positioned behind the deceased, and he saw the appellant stab the deceased twice in the back. Thobehi further testified that he confronted the appellant about stabbing the deceased.


The court treated as material corroboration the post-mortem findings (Exhibit B), which recorded two stab wounds on the back penetrating through the 3rd and 7th intercostal spaces, puncturing the right lung’s upper and lower lobes respectively, with the cause of death recorded as stab chest. The number and location of the wounds were considered consistent with Thobehi’s account of two stabs to the back.


3. Legal Issues


The appeal required determination of two central questions.


First, in relation to conviction, the court had to decide whether the trial court had erred in accepting the State’s case where the State relied on the evidence of a single witness, and whether the evidence as a whole established the appellant’s guilt beyond reasonable doubt. This issue concerned primarily the application of legal standards to factual findings, including the proper approach to credibility and reliability and the operation of the cautionary rule applicable to single-witness testimony.


Second, in relation to sentence, the court had to determine whether the appellate court was entitled to interfere with the sentence of 15 years’ imprisonment, including whether the trial court had misdirected itself or whether there was a sufficient basis to depart from the sentence imposed. This required an evaluation of the sentencing framework and the threshold for appellate interference, including the role of substantial and compelling circumstances and the test for a sentence that is “shocking”, “startling”, or “disturbingly inappropriate”.


4. Court’s Reasoning


Conviction


The court approached the conviction appeal on the basis that the State’s case rested on a single witness and emphasised that the trial court was required to treat such evidence with caution, while not allowing caution to displace common sense. In applying this approach, the court referred to authority indicating that there is no fixed formula for assessing a single witness’s credibility, and that the evidence must be weighed with regard to its merits and demerits, including any shortcomings or contradictions.


On the facts, the appeal court considered that Thobehi’s evidence placed the appellant at the scene in a direct and incriminating way, including that Thobehi said he questioned the appellant as to why he stabbed the deceased. The appellant’s own evidence, to the extent that he admitted chasing the deceased, provided a point of alignment with the State evidence regarding the appellant’s presence and participation in the pursuit, even though the appellant denied stabbing.


The court highlighted factors relied upon by the trial court in treating the single witness as credible and reliable. These included the witness’s familiarity with the appellant, given that they were members of the same gang; the witness’s candour in conceding his own gang membership and that group members had knives; and his evidence that his observation was not obstructed and that lighting (a mast light) allowed him to see what occurred. The court also treated the post-mortem report as supporting Thobehi’s account of two stabs to the back, thereby providing corroboration on an aspect central to the disputed stabbing.


In addressing the appellant’s challenge based on contradictions between State witnesses and the absence of DNA testing on clothing, the appeal court’s reasoning turned on its acceptance that the trial court properly evaluated the evidence, applied the cautionary rule to the single witness, and made credibility findings. The appeal court reiterated the principle that a court of appeal will interfere with credibility findings only in circumscribed circumstances, given the trial court’s advantage in hearing and observing witnesses.


On that basis, the court concluded that the trial court correctly found the appellant to be an untruthful witness and correctly rejected his version as false beyond reasonable doubt, and that the State had proved its case beyond reasonable doubt. It therefore found no basis to disturb the conviction.


Sentence


In considering sentence, the court reaffirmed the principle that sentencing lies primarily within the discretion of the trial court and that appellate interference is limited. It relied on the established test that an appellate court may not substitute its preferred sentence absent a material misdirection, and may otherwise interfere only if the disparity between the imposed sentence and the sentence that ought to have been imposed is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”.


The submissions on sentence included mitigation advanced for the appellant, namely that he was 24 years old at the time; had schooling up to Grade 10; was unmarried but his girlfriend was pregnant; earned approximately R1500 per month doing odd jobs; owned immovable property; and had no previous convictions. The respondent ultimately conceded in argument that a sentence of 10 years would be appropriate.


The appeal court held that, although the trial court considered the usual triad of sentencing factors, it did not accord due weight to the appellant’s personal circumstances, which the appeal court characterised as amounting to substantial and compelling circumstances in the context of the sentencing framework applied. In light of those circumstances and the respondent’s concession, the appeal court found that interference with the sentence was warranted.


5. Outcome and Relief


The appeal against conviction was dismissed, and the conviction for murder remained in place.


The appeal against sentence was upheld. The sentence of 15 years’ imprisonment imposed by the Regional Court was set aside and replaced with a sentence of 10 years’ imprisonment, which the High Court ordered to be antedated to 19 March 2019.


The order made by the trial court in terms of section 103 of the Firearms Control Act 60 of 2000 was confirmed. The judgment as provided did not set out a separate costs order (consistent with criminal appellate practice).


Cases Cited


S v Snyman 1968 (2) SA 582.


S v Sauls and Others 1981 (3) SA 172 (A).


S v Webber 1971 (3) SA 754 (A).


Masiu and Others v S (A8/2014) [2014] ZAFSHC 246 (11 December 2014).


Magadla v S (80/2011) [2011] ZASCA 195 (16 November 2011).


S v Rabie 1975 (4) SA 855 (A).


S v Malgas 2001 (1) SACR 469 (SCA).


Bailey v The State (454/2011) [2012] ZASCA 154 (1 October 2012).


S v Wood 1973 (4) SA 95 (RA).


Legislation Cited


Criminal Law Amendment Act 105 of 1997, section 51(2).


Firearms Control Act 60 of 2000, section 103.


Rules of Court Cited


No specific rules of court were cited in the judgment.


Held


The High Court held that the trial court properly applied the cautionary approach to the evidence of a single witness, accepted that witness as credible and reliable, and correctly rejected the appellant’s version as false beyond reasonable doubt. The conviction for murder was therefore confirmed.


On sentence, the High Court held that interference on appeal was justified because the appellant’s personal circumstances warranted recognition as substantial and compelling circumstances, and the sentence imposed by the trial court was replaced with a lesser sentence. The appellant’s sentence was reduced from 15 years’ imprisonment to 10 years’ imprisonment, antedated to 19 March 2019, with the section 103 firearms-related order confirmed.


LEGAL PRINCIPLES


The evidence of a single witness must be approached with caution, but the cautious approach should not displace the exercise of common sense, and there is no rule-of-thumb formula for assessing the credibility of a single witness. The evidence must be weighed on its merits, including reliability and the witness’s opportunity for observation, and may be accepted notwithstanding shortcomings if the court is satisfied that the truth has been told.


An appellate court will interfere with a trial court’s credibility findings only in limited circumstances, recognising the trial court’s advantage in seeing and hearing witnesses.


Sentencing lies within the discretion of the trial court. An appellate court may interfere with sentence where there has been a material misdirection vitiating the sentencing discretion, or where the disparity between the sentence imposed and the sentence that ought to have been imposed is so marked that it is properly described as shocking, startling, or disturbingly inappropriate.


The concept of substantial and compelling circumstances is elastic and may, depending on the case, accommodate even ordinary mitigating circumstances; a court may depart from a prescribed or ordinarily applicable sentence where it is satisfied that imposition of such sentence would be unjust or disproportionate when considering the crime, the offender, and society’s legitimate interests.

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[2019] ZAFSHC 261
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Ntomi v S (A135/19) [2019] ZAFSHC 261 (12 December 2019)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
APPEAL
NUMBER:
A135/19
In
the matter between:
PASEKA
ELVIS
NTOMI

APPELLANT
And
THE
STATE

RESPONDENT
CORAM:
MUSI, JP
et
CHESIWE, J
JUDGMENT
BY:
CHESIWE, J
HEARD
ON:
11 NOVEMBER 2019
DELIVERED
ON:
12 DECEMBER 2019
[1]
The appellant was arraigned before the Regional Court in Welkom on a
charge of murder (read with the provisions of
section 51
(2) of the
Criminal Law Amendment Act 105 of 1997
.)  The appellant pleaded
not guilty. He was convicted on the 19 March 2019 and sentenced to 15
years imprisonment.
[2]
The trial court granted leave to appeal against conviction and
sentence.
[3]
The appellant was legally represented by Mr Thulsie at the trial
court.
[4]
The background of this matter is as follows: The appellant testified
that on the night of the 15
th
of April 2018, he was at ZM
tavern. The owner of ZM tavern asked the appellant to chase the
deceased as the owner said the deceased
was one of the people who
broke into ZM tavern. The appellant and Katleho chased the deceased
and when they got hold of the deceased,
Katleho stabbed the deceased,
but the appellant testified that he did not see where Katleho stabbed
the deceased.  The appellant
denied that he stabbed the
deceased.
[5]
The first State witness, Stephen Thobehi (Thobehi), testified that on
15 April 2018, he was at ZM tavern with Thabo, Thami,
Manele and the
deceased. According to the witness they were all members of the Zauta
gang including the appellant. They wanted
to enter the tavern but the
security guard refused them entry because they were intoxicated and
had knives.  Thobehi was able
to enter as he had hidden his
knife. The deceased had asked Thobehi to enter the tavern. When
inside the tavern, Thobehi saw the
appellant with Katleho
(appellant’s friend) and Mamelo (deceased’s girlfriend)
and another unknown lady. The appellant
immediately left the tavern
with the Mamelo and the unknown lady. It was not long thereafter that
Thami (Thobehi’s friend)
called him outside and told him that
the deceased was being attacked by the appellant and his friends.
Thobehi said he saw
the appellant and his friends chase the
deceased.  The friends approached the deceased from the front
and the appellant was
behind the deceased. He saw the appellant stab
the deceased twice in the back. Thobehi asked the appellant why he
stabbed the deceased,
instead the appellant insulted Thobehi.
Thobehi and Thami chased the appellant and his friends. A Quantum
taxi appeared and
the appellant and his friends got into it.
Thobehi thereafter, went back to check on the deceased, who was by
then laying
in a pool of sewerage water. Thobehi further testified
that he took the deceased out of the sewerage water and took the
deceased
next to the road, where he discovered that the deceased was
quiet.
[6]
The appellant testified that, on the night of the incident he was
with Katleho at the ZM Tavern, when Matsietsie (Katleho’s

girlfriend) told him that the deceased was outside.  The
appellant went outside.  He found the deceased sitting in a

corner. The deceased approached the appellant holding a knife.
The appellant said he retreated from the deceased.  The
tavern
owner came out and told the appellant and Katleho to catch the
deceased as he had previously broken into the tavern.
The
appellant confirmed that on the night of the incident he and Katlego
chased the deceased, but denied that he stabbed the deceased.

He said Katleho stabbed the deceased.
[7]
The appellant’s grounds of appeal in this matter are that the
trial court erred in not taking into account the extent
of material
contradictions between the evidence of the State witnesses; that the
court erred in not properly analysing the evidence
of the single
state witness and that there was no corroboration of the single
witness with regard to the knife; that the appellant’s
clothes
were not send for DNA analysis. Thus the state did not prove its case
beyond reasonable doubt against the appellant. In
respect of sentence
the appellant is of the view that the sentence is shockingly
inappropriate under the circumstances and induces
a sense of shock
especially in light of the totality of accepted facts in mitigation.
[8]
Ms Abrahams on behalf of the appellant submitted that the trial court
incorrectly convicted the appellant.  She said the
appellant’s
version was that the deceased wanted to stab the appellant. She
submitted that the trial court did not take into
consideration the
whole evidence. Consequently it was a misdirection by the trial court
to have accepted the version offered by
the state witness.
[9]
Ms. Moroka on behalf of the respondent submitted that the conviction
by the trial court is supported and that the appeal has
no merits.
She submitted that there was no misdirection on the part of the trial
court. She contended that the trial court
took cognisance of the
single witness’ evidence and dealt with in the utmost caution.
Therefore the trial court cannot be
faulted nor did it misdirect
itself as it came to the correct decision in respect of conviction,
and that the appeal against conviction
must be dismissed.
[10]
The state relied on the evidence of a single witness.  The trial
court was aware that Thobehi was a single witness and
that his
evidence had to be treated not only with caution but that the court
had to be satisfied that the evidence of that single
witness was
credible and reliable. In
S
v
Snyman
[1]
,
the court said:
“…
while
there is always need for special caution in scrutinising and weighing
the evidence of young children, complainants in sexual
cases,
accomplices and, generally, the evidence of a single witness, the
exercise of caution should not be allowed to displace
the exercise of
common sense.
And
equally important is what was stated in
S
v Sauls and Others,
[2]
that
“
there is no
rule of thumb test or formula to apply when it comes to consideration
of the credibility of the single witness”.
[3]
[11]
Thobehi (single witness) placed the appellant at the scene of the
crime to the extent that he questioned the appellant as to
why he
stabbed the deceased. Thobehi confirmed that the appellant and
Katleho chased the deceased. The appellant on his own version

testified that he did chase after the deceased. Thobehi knew the
appellant well as they were all members of the same gang.
He
was honest to concede that he was also a gang member.  He
explained how he saw the appellant stabbing the deceased twice
at the
back.  His evidence is corroborated by the post-mortem report,
Exhibit B that: “There were two stab wounds on
the back that
penetrated the wall through the 3
rd
and 7
th
intercostal spaces and punctured the right lung upper and lower lobes
respectively. Cause of death: stab chest.”
[12]
The trial court analysed and evaluated the evidence of the single
witness and applied the cautionary rule.  The witness
did not
downplay the deceased’s involvement in the gang activities.
The witness confirmed that all the members had
knives on the night in
question, including the witness himself.  He did not exclude or
distance himself from the events of
that night. The witness testified
that he was closed to the appellant and the deceased. His observation
of the incident was not
obstructed by anything. The mast light was
bright enough for him to see what happened between the appellant and
the deceased.
As a single witness, he gave his evidence in a
clear, logical and satisfactory manner.
[13]
In
Masiu
v S
[4]
,
the court was of the view that:
“…
where the
witness was in a situation where he or she had ample opportunity to
make a proper and reliable observation of the perpetrator,
such
factor will be taken into consideration to consider the value to be
attached to such evidence, especially so where the witness
did not
have any reason to falsely implicate the perpetrator.”
[5]
[14]
The trial court’s evaluation of the evidence demonstrates that
it was alive to the fact that the state witness was reliable,

truthful and had no reason to falsely implicate the appellant. For
the fact that the appellant and the state witness were not rival
gang
members but members of the same gang.  The single witness was
consistent in his testimony that he saw the appellant stab
the
deceased twice in the back. The trial court correctly concluded that
the single witness’s evidence was not only reliable,
but also
truthful.
[15]
It is trite that a court of appeal will only tamper with the trial
court’s credibility findings in certain circumscribed

circumstances, considering the advantage which the trial court had of
hearing and appraising the witnesses.
[16]
Furthermore, the trial court correctly found the appellant to be an
untruthful witnesses and correctly rejected his version
as false
beyond reasonable doubt. I am satisfied that the State had proven its
case beyond reasonable doubt.
[17]
In my view the trial court correctly convicted the appellant and
there is no reason to tamper with the trial court’s
findings on
the conviction. As such the conviction ought to be confirmed.
[18]
Regarding sentence, it is trite that a court with appellate
jurisdiction has limited powers to interfere with the sentence

imposed at the trial court. The sentencing discretion lies with the
trial court.  Its sentence will only be interfered with
on
appeal if the discretion in question was not exercised judicially and
properly
[6]
, or if there is a
disparity between the sentence imposed and the one that ought to have
been imposed. In
S
v Malgas
[7]
the court stated as follows:
“…
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'. It must be emphasised
that in the
latter situation the appellate 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…
”
[8]
[19]
Ms Abrahams submitted that the trial court misdirected itself by not
taking into consideration that there was compelling and
substantial
circumstances, in that the appellant was still a youth at the time
the offence was committed; his girlfriend was pregnant;
he did odd
jobs; he finished school at grade 10; he owned immovable property;
and the offence occurred on the spur of the moment
and that the
appellant was a first offender and was capable of being
rehabilitated. Counsel submitted that an appropriate lesser
sentence
will still meet the objectives of sentencing.
[20]
Ms Moroka submitted that the trial court failed to attach weight to
the mitigating factors of the appellant that the trial
court did not
properly take into account that there were compelling and substantial
circumstances. She conceded that a sentence
of 10 years would be an
appropriate sentence.
[21]
It is evident from the record that the trial court properly
considered the triad of factors relevant to sentence, but did not

take the appellant’s personal circumstances into consideration,
since they were found not to be exceptional.  In the
matter of
Bailey
v The
State,
[9]
the
court said: “The most difficult question to answer is always
what substantial and compelling circumstances are?
The term is
so elastic that it can accommodate even the ordinary mitigating
circumstances.”
[22]
In
Malgas
[10]
supra,
the court said:
“
The greater the
sense of unease a court feels about the imposition of a prescribed
sentence, the greater its anxiety will be that
it may be perpetrating
an injustice.  Once  a court reaches the point where unease
has hastened into a conviction that
an injustice will be done, that
only be because it is satisfied that the circumstance of the
particular case render the prescribed
sentence unjust, or as
some might prefer to put it, disproportionate to the crime, the
criminal and the legitimate needs
of society.  If it is the
result of a consideration of circumstances the court is entitled to
characterise them as substantial
and compelling and such as to
justify the imposition of a lesser sentence.”
[23]
In my view the trial court did not accord due weight to the personal
circumstances of the appellant. The appellant presented
to the trial
court substantial and compelling circumstances as follows: That the
appellant was 24 years of age at the time of the
offence; he attended
school up to Grade 10; he was not married, but his girlfriend was
pregnant; he earned R1500 per month by doing
odd jobs; he owns
immovable property; he has no previous convictions and is a first
offender.
[11]
In light of the
mentioned personal circumstances, and seeing that the respondent also
conceded that the sentence of the trial court
may be tampered with,
this warrants the court with appeal jurisdiction to tamper with the
sentence of the trial court.   Thus
the appeal against
sentence ought to succeed.
ORDER
[24]
In the result, the following order is granted:
1. The appeal against
conviction is dismissed.
2. The appeal against
sentence is upheld.
3. The sentence of the
trial court of 15 years imprisonment is set aside and replaced  with
the following:
The appellant is
sentenced to 10 years imprisonment.
The sentence is antedated
to 19 March 2019.
4. The order in terms of
section 103 of the Firearms Control Act 60 0f 2000 is confirmed.
_____________
S.
CHESIWE, J
I
CONCUR
______________
CJ. MUSI, JP
On
behalf of Appellant: Adv. V. Abrahams
Instructed
by: Legal Aid SA
Bloemfontein
On
behalf of Respondent: Adv. MMM. Moroka
Instructed
by: Office of the DPP
BLOEMFONTEIN
[1]
S v
Snyman
1968 (2) SA 582
at 585G
[2]
S v
Sauls and Others
1981 (3
)
SA 172
(A)
[3]
Ibid at 180E and see also
the
remarks of Rumppf JA in
S
v Webber
1971 (3) SA 754
(A) at 757 that: “the trial Judge will weigh
the evidence, will consider its merits and demerits and having done
so, will
decide whether it is trustworthy and whether despite the
fact that there are shortcomings or defects or contradiction in the

testimony, he is satisfied that the truth has been told.”
[4]
Masiu
and Others v
S (A8/2014)
[2014] ZAFSHC 246
(11 December 2014)
[5]
Ibid para [16] and see also
Magadla
v S
(80/2011)
[2011] ZASCA 195
(16 November 2011) – unreported
para [32].
[6]
S v
Rabie
1975 (4) SA 855 (A)
[7]
S v
Malgas
2001 (1) SACR 469
(SCA)
[8]
Ibid at 478 D-H
[9]
(
454/2011)
[2012] ZASCA 154
(1 October 2012) para [21].
[10]
S v
Malgas
para
[22]
[11]
See
S
v Wood
1973
(4) SA 95
(RA) 96H-97B.

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