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[2019] ZAKZPHC 26
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Mkhwanazi and Others v S (AR185/18) [2019] ZAKZPHC 26 (10 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR 185/18
In the matter between:
KHULEKANI
SIZWE MKHWANAZI
1
st
Appellant
LUCKY
BONGINKOSI
MKWANA
2
nd
Appellant
BHEKISISA
MEHLO Z
MANQELE
3
rd
Appellant
and
THE
STATE
Respondent
ORDER
In
the result, the following order is made:
1.
The
appeal against conviction and sentence fails.
2.
The
convictions and sentences of the appellants by the court a quo are
confirmed.
JUDGMENT
Date
delivered: 10 May 2019
Masipa J (K Pillay J
concurring):
[1]
On 12 November 2012, the three appellants were convicted on one count
of murder by
the Regional Court Verulam relating to the killing of
Zamokuthula Mgenge (‘the deceased’) on 4 June 2011 and
acquitted
on a kidnapping charge. They were each sentenced to life
imprisonment in terms of
s 51(1)
of the
Criminal Law Amendment Act
105 of 1997
. The appellants exercised their automatic right of appeal
in respect of conviction and sentence.
[2]
The circumstances leading to the appellants’ conviction and
sentence are dealt
with hereinafter. The State led the evidence of
Mboniseni Thulasizwe Ndlovu (‘Ndlovu’) whose evidence was
that on the
date of the incident he, together with the first and
second appellants rendered services to one Mr Ngcobo, cutting wood.
After
completing the work, they were paid R200. They used the money
to purchase a case of liquor at Mologotlhe store. They sat at the
tavern which is in the vicinity of the store and consumed the
alcohol. When the alcohol was finished, he left the tavern to go
home
and found the third appellant, his cousin, parked outside the shop
next to the main gate. He climbed into the front passenger
seat of
the vehicle and while there, the first appellant arrived and informed
the third appellant that the deceased who was in
the tavern was
talking about him. The third appellant directed that the deceased be
brought to him so that he could question him.
The first appellant
went to the tavern and returned with the deceased and the second
appellant.
[3]
According to Ndlovu, the third appellant questioned the deceased but
before the deceased
could reply, he was forced into the back seat of
the vehicle where he sat in between the first and second appellants.
Ndlovu did
not say anything despite witnessing this. The vehicle then
left the store and the deceased was assaulted on several occasions by
the first and second appellants. This was in the evening at
approximately 20h00 with visibility provided by moonlight. They drove
to a bridge leading to the sugar field plantation and parked there.
The deceased was taken out of the vehicle by the first appellant
and
thrown to the ground. He was assaulted further and taken to a level
which was lower than the bridge where the assault continued
with the
appellants using stones on his body and head. The deceased tried to
run away but the appellants caught up with him and
the assault
continued. The deceased was on the ground but Ndlovu could see what
was happening from the bridge where he had remained.
[4]
Pursuant to the assault, Ndlovu and the appellants left the scene
leaving the deceased
for dead. The third appellant dropped him off at
the bus stop and proceeded with the first and second appellants as he
was going
to leave them at the clinic. Although Ndlovu had consumed
alcohol, his evidence was that he was not very drunk. He denied that
he had left the tavern as he was very drunk. After Ndlovu was dropped
off at the bus stop, he went home and slept.
[5]
The appellants’ version which was put to Ndlovu was that they
arrived at the
tavern at approximately 12h00. Ndlovu’s evidence
was that it was around 13h00. He disputed their version that they sat
with
him until they were all heavily intoxicated. He accepted as
correct the version that they had spent the R200 on alcohol and then
said that they bought the case of beer for R120 and then used the
balance of the money to buy cigarettes, peanuts and to play the
jukebox. It was further put to Ndlovu that when they finished
consuming alcohol, the third appellant transported them home in his
vehicle. This was disputed by Ndlovu who stuck to his initial
version. Ndlovu denied that when they left the tavern, the deceased
was not in their company. He also denied that he was sleeping in the
vehicle while they were driving.
[6]
The State also led the evidence of the deceased’s brother
Sandile Zamani Mgenge
(‘Mgenge’) who was present at the
tavern on the day of the incident. He arrived there at about 18h00
and observed the
deceased crying with a male he identified as
Mgalagathe, the first and second appellant near him. It was the first
time that Mgenge
saw the first and second appellant as he did not
live in the area. Mgalagethe appeared to be separating a fight. He
did not enquire
as to what the fight was about. The first appellant
grabbed the deceased and told Mgalagathe that he just wanted to talk
to him.
The two went out and Mgenge followed them and observed that
they were talking at the back of the shop. The second appellant then
joined the first appellant.
[7]
The first appellant held the deceased by his hand and took him to the
vehicle belonging
to the third appellant, who was Mgenge’s
relative. The third appellant and Ndlovu followed them. Mgenge then
saw them all
climbing into the vehicle and they seemed to be sitting
there. He did not see the use of any force or violence on the
deceased
who seemed to climb into the vehicle willingly. As a result,
Mgenge returned into the tavern.
[8]
When Mgenge went out of the tavern, the vehicle was no longer there.
He continued
to watch soccer and left for his home at about 22h00. On
arrival, he informed his younger brother of what he observed and then
went to ask the deceased’s mother to phone the deceased. The
deceased could not be reached on his phone. Mgenge then went
to
sleep. The next morning he informed his mother about what he had
witnessed at the tavern regarding the deceased. They again
attempted
phoning him with no success. Mgenge’s brother woke up and they
went to the first and second appellant’s home
to enquire about
the deceased. The two appellants told them that they had last seen
the deceased the day before at about 17h00
and he had said that he
was going to Ongothini area. Mgenge and his brother then left.
[9]
As they were leaving, Mgenge told his brother that the first and
second appellants
were not telling the truth since he had seen them
with the deceased around 18h00. They then went to Ndlovu’s home
but could
not find him. He did not see the deceased alive again and
had last seen him in the company of the appellants and Ndlovu. Mgenge
did not know the first and second appellants and it was his brother
that provided him with their details. He never had a problem
with the
third appellant.
[10]
The appellants’ version put to Mgenge was that they denied that
they had exited the tavern
and spoke to the deceased outside which
version he refuted. According to them, when they left the tavern, the
deceased remained
behind and continued to consume alcohol with other
people. This was also disputed by Mgenge. The appellants denied that
they left
the tavern together using a vehicle. Mgenge denied that the
third appellant had not entered the tavern on the day. When it was
put to him that the third appellant left the tavern alone Mgenge
insisted that the deceased had climbed into the vehicle belonging
to
the third appellant.
[11]
The appellants testified in their defence. The evidence of the first
appellant was that on the
day of the incident at about 14h00, he went
to the shop alone to consume alcohol. On arrival, he joined some male
persons and they
drank alcohol. He thereafter left the tavern at
about 18h00. While at the tavern, he saw the second appellant who was
sitting with
another group and was also consuming alcohol. According
to the first appellant, he arrived at the tavern before the second
appellant
who is his brother. He knew the deceased and also saw him
at the tavern on the day drinking with Mgalagathe.
[12]
According to him, he did not speak to anyone in the tavern on that
day. He then said he only
spoke to the people he was seated with. He
denied that there was an argument between him and the deceased to
which Mgalagathe intervened.
He also denied going out of the tavern
with the deceased to talk. He did not see the deceased crying and did
not have any conflict
with him. Also, he did not see Ndlovu at the
tavern on that day. His evidence was that he did not know Ndlovu but
under cross-examination
said that he knew Ndlovu by sight. He
also said that he did not know the name of the third appellant until
their court appearance.
He then contradicted himself and said that he
knew him but did not know that he owned a motor vehicle.
[13]
He walked home alone and since he was highly intoxicated, upon his
arrival at his home, he slept
until the next day. He denied that he
had climbed into a vehicle which was parked outside of the tavern
with the deceased. While
at home on 5 June 2011, he was approached by
some unknown people who were looking for the deceased and he informed
them that he
had last seen him at the tavern. He was arrested the
same day.
[14]
The first appellant confirmed under cross-examination that he had
been hired by Mr Ngcobo to
do some work on the day of the incident.
He worked with the second appellant and Sicelo Vilakazi. He said that
Ndlovu was not in
their company on that day. When they finished
working, Mr Ngcobo paid each of them R50. He could not remember
whether he had told
this version to his attorney. He had no
explanation why his attorney had not challenged Ndlovu’s
evidence on this issue and
had in fact appeared to be confirming it.
He denied that he had told his attorney that he went to the tavern
with Ndlovu and the
second appellant after they finished cutting wood
for Mr Ngcobo. Having said in his evidence in chief that he had
not seen
Ndlovu on that day, during cross-examination, he said that
he had seen him at the tavern but did not concentrate on him or talk
to him. He denied that he acted in common purpose with the second and
third appellants by assaulting the deceased and that they
had killed
him.
[15]
The second appellant testified that he only knew the deceased by
sight. He did not have much
recollection of his whereabouts at 19h00
on 4 June 2011 as he arrived at the tavern highly intoxicated. He
then said that he was
home. He confirmed under cross-examination that
he and Vilakazi had worked with the first appellant earlier that day
rendering
services to Mr Ngcobo. He vaguely recalled that he had gone
to the tavern where he consumed alcohol with some soccer mates of his
until he was highly intoxicated. He recalled seeing the deceased when
he was about to leave the tavern but did not talk to him.
While at
the tavern, he saw the first appellant who was on his way home. He
did not see Mgalagathe at the tavern on the day.
[16]
He left the tavern on foot and went home alone. He was arrested the
next day while at his home.
He did not know the third appellant prior
to his arrest and did not see him in the vicinity of the tavern on
the day of the incident.
He denied any knowledge of the charges
against him. He said under cross-examination that he had told his
attorney that he did not
know the third appellant until after his
arrest and then said that his attorney never asked him about this. He
then suggested that
they had not been informed that the matter was
set down for trial and therefore they had not adequately consulted
with the attorney.
When questioned further, he conceded that he had
consulted with the attorney but said that all he told him was that he
knew nothing
about the case.
[17]
He saw Ndlovu at the tavern but did not know him. He then said that
it was the first time that
he saw Ndlovu at court. He did not tell
his attorney about this and said that the attorney had not asked him.
He then said that
he had seen him at the tavern but that he did not
know that Ndlovu was a witness. He had seen him for the first time at
the tavern
and then in court. He told his attorney that he knew
nothing about Ndlovu. He did not tell his attorney that he went to
the tavern
with Ndlovu and the first appellant and had no idea where
the attorney obtained that version. He never told his attorney that
he
left the tavern with the first and third appellants and Ndlovu. He
told the attorney that he went to the tavern alone and returned
home
alone. He denied that he together with the first and third appellants
killed the deceased.
[18]
The evidence of the third appellant was that he resided in the
Ndwedwe area where he worked.
He did not know the second appellant
and only got to know him after his arrest. He knew the first
appellant by sight. On 4 June
2011, he went past the tavern and
bought airtime through the window as it was packed. He parked his
vehicle outside the premises
and after purchasing what he required,
he left. It was around 18h00 and he was rushing home as his mother
was sick. He saw the
first and second appellants outside of the
tavern going down the stairs together with his cousin, Ndlovu who
spoke to him. The
deceased was also present. They walked together and
Ndlovu asked the third appellant for a lift which the third appellant
acceded
to. Ndlovu was seated in the front passenger’s seat and
the other three sat in the back. The deceased was sitting on the left
side of the vehicle. Since the four passengers were all under the
influence of alcohol, the third appellant listened to his radio.
He
dropped them all at their bus stop and proceeded with his journey.
[19]
The third appellant knew the deceased whom he said was his brother in
law. He had known him from
when they were in school which was a
period in excess of ten years. According to him, there had been some
conflict between him
and Ndlovu in 2010 as they were in a
relationship with the same woman. He then changed to say that he was
in a relationship with
Ndlovu’s brother’s wife and the
family was upset. This he provided as the reason why Ndlovu would
implicate him in
the murder. They had discussed the issue and he
continued to be Ndlovu’s friend. He suggested under
cross-examination that
Ndlovu had been pretending that the matter was
resolved. He denied that he assaulted and murdered the deceased.
[20]
The third appellant’s evidence was that the first and second
appellant had lied and that
their evidence should not be believed. He
stated that it was not true that he had left the tavern alone and
said that he was compelled
to say that by the first and second
appellant. He accepted that his evidence contradicted what his
attorney had put to the state
witnesses. And said it was because he
was afraid of the first and second appellants. He accepted that
during the trial, he had
given instructions to his attorney. He said
that he was changing his version since he was under oath and had to
tell the court
the truth. He denied that he was being opportunistic
and that he was using this to shift the blame to the first and second
appellants.
The third appellant’s evidence was that he was not
present when the murder was committed.
[21]
It is trite that in criminal cases, the State bears the onus to prove
the accused’s guilt
beyond a reasonable doubt and there is no
onus on the accused to prove his innocence
.
See
S
v V
2000
(1) SACR 453
(SCA) at 455B.
[22]
The court a quo in analysing the evidence acquitted the appellants on
the kidnapping charge having
found that the State failed to prove
that the deceased was taken from the tavern against his will. This
finding was based on the
evidence of Mgenge who had returned into the
tavern when he observed that the deceased had willingly climbed into
the third appellant’s
vehicle. The court a quo was however
satisfied that the State had proved beyond a reasonable doubt that
the appellants murdered
the deceased. This was because it found that
the material aspects of Ndlovu were corroborated by Mgenge.
[23]
The court a quo was mindful that Ndlovu was a single witness and that
his evidence should be
approached with caution. In this regard, the
court a quo considered the provisions of
s 208
of the
Criminal
Procedure Act 51 of 1977
and
S v Sauls & others
1981 (3)
SA 172
(A). The court a quo considered the credibility of Ndlovu, the
merits, demerits of his evidence, shortcomings, defects and
contradictions.
It also relied on
S v Banana
2000 (2) SACR 1
(ZS) where it was stated that where the evidence of a single witness
is corroborated in a way which tends to indicate that it was
not
fictitious, the caution enjoyed may be overcome and corroboration is
not essential. The court a quo found that Ndlovu’s
evidence was
clear, consistent and free flowing. Further that he did not
contradict himself in his evidence. It found that he was
an
impressive and reliable witness whose testimony stood unshaken. It
was never put to him that there was any animosity between
him and the
appellants.
[24]
The court a quo accepted as a fact that Ndlovu, the deceased and the
appellants left the tavern
in the third appellants’ vehicle as
this was corroborated by the two State witnesses and the third
appellant. The evidence
of the first and second appellants was
contradictory stating that they had not seen Ndlovu on the day and
then changing under cross-examination
to say that they saw him. The
court a quo noted that the first appellant in his evidence denied the
version which was put to the
State witnesses by his counsel.
[25]
As regards the second appellant, the court a quo found that he was a
poor witness who suggested
under cross-examination that he had not
consulted with his counsel and therefore did not know where the
versions put emanated from.
He contradicted himself as to whether he
had seen Ndlovu or not on the day of the incident. The court a quo
found that the first
and second appellants fabricated their versions
of walking home separately from the tavern to disassociate themselves
from Ndlovu
as he was the main witness in respect of the death of the
deceased.
[26]
In respect of the third appellant, the court found that he had failed
to ensure that his attorney
placed a version that there was animosity
between him and Ndlovu. Despite accepting that Ndlovu had consumed
alcohol, the court
a quo was satisfied that he could still observe
the assaults on the deceased. On the whole, the court a quo rejected
the evidence
of the three appellants as being false beyond reasonable
doubt. The court a quo was satisfied that the appellants murdered the
deceased.
[27]
Mr
Chiliza
for the appellants submitted that since Ndlovu was
a single witness, his evidence should have been treated with caution.
He highlighted
the supporting factors as being that Ndlovu had
consumed alcohol; despite witnessing the assault on the deceased, he
returned home
and did not alert the police or seek medical
assistance; he suggested that there was material misdirection between
Ndlovu’s
evidence and that of Mgenge on whether the deceased
entered the vehicle voluntarily or was forced. He argued that the
court a quo
erred in finding that the appellants’ version was
not reasonably true. He argued that even if the court a quo rejected
the
appellants’ evidence, there was doubt in the State’s
case and therefore the appellants should have been given the benefit
of doubt. Consequently, the court a quo erred in convicting the
appellants.
[28]
Mr
Sibanyoni
for the State argued that it was apparent from a
reading of the record that the court a quo took into account the fact
that Ndlovu
was a single witness and having considered relevant law
applied the cautionary rule. He submitted that the court a quo
correctly
found that Ndlovu gave his evidence in a clear, consistent
and free flowing manner. Further that there was no criticism in his
evidence. He submitted that the photo album corroborated Ndlovu’s
evidence on how the deceased died.
[29]
He submitted that the trial court made credibility findings and that
the appeal court should
be slow to interfere unless convinced on a
conspectus of all the evidence that the trial court was clearly
wrong. This is because
the trial court would have had the advantage
of observing witnesses. See
R v Dhlumayo
& another
1948
(2) SA 677
(A) at 706 and
Kebana v S
[2010] 1 All SA 310
(SCA)
para 12. He submitted that the evidence before the court a quo
presented two contradictory versions
[30]
It was argued for the State that after considering all the evidence
including inherent probabilities,
the court a quo delivered a clear
and well-reasoned judgment. Further, that the existence of
contradictions did not lead to the
rejection of a witness’
evidence. There must be proper weighing of the nature and importance
of evidence. See
S v Mkohle
1990 (1) SACR 95
(A) at 98E-H. Mr
Sibanyoni
submitted that there was no reason to interfere with
the conviction.
[31]
It is apparent from the record that the court a quo was mindful of
the fact that Ndlovu was a
single witness and that his evidence
should be approached with caution. Indeed the court a quo applied the
necessary caution to
the evidence of Ndlovu. It is noteworthy that
Ndlovu was present during the commission of the offence and the
manner in which he
conducted himself in not reporting the offence is
questionable. One wonders why he was not considered a
s 204
witness.
This was however not dealt with during the trial and it is not for
this court to consider the issue.
[32]
The courts have held that the evidence of a single witness should be
approached with caution
and that the correct approach in dealing with
such evidence is to assess the bias, if any, and determine the
importance thereof
in the light of the evidence as a whole.
See
R
v Abdoorham
1954
(3) SA 163
(N) and
S
v Webber
1971
(3) SA 754
(A). It is trite that the exercise of caution must
not displace the exercise of common sense.
[33]
In
S v Letsedi
1963 (2) SA 471 (A) at 473 and
S
v Snyman
1968 (2) SA 582 (A) at 586-587 it was
held that when, there is a measure of corroboration, even if it is
small, one
is no longer dealing with a single witness. The evidence
of Ndlovu was corroborated on three instances. First by the evidence
of
Mgenge that he had witnessed the appellants, Ndlovu and the
deceased climb into the third appellant’s vehicle; the second
corroboration was the evidence of the third appellant confirming this
and then the post-mortem report which was consistent with
Ndlovu’s
evidence on how the deceased had died. This issue was adequately
dealt with by the court a quo when it referred
to
S v
Banana
.
In view of this, I am satisfied that the measure of corroboration was
sufficient enough to warrant a conclusion that the court
was no
longer dealing with a single witness.
[34]
Of course there was a contradiction between the evidence of Ndlovu
and Mgenge on whether the
deceased had climbed into the vehicle
voluntarily or was forced. This however is not material to the facts.
What is material is
that the five men had climbed into the vehicle
belonging to the third appellant and this was the last time Mgenge
had seen his
brother alive. On the evidence before the court a quo,
which correctly found the evidence of Ndlovu to be credible, what
followed
from this were brutal assaults on the deceased which led to
his demise.
[35]
In respect of credibility, in
S v Mkohle
the court held that
not all errors affect a witness’ credibility. The trier of fact
has to make an evaluation taking into
account contradictions, their
number and importance and bearing in mind other parts of the
evidence. Similar sentiments were shared
by the court in
S v
Mafaladiso en Andere
2003 (1) SACR 583
(SCA) where the court
added that contradictory evidence must be evaluated holistically. The
court also held that it is the duty
of the trial judge to weigh all
previous statements with oral evidence and decide whether it is
reliable or not and decide whether
the truth has been told despite
any shortcomings.
[36]
The court a quo correctly found that the evidence of the appellants
was contradictory. Their
oral evidence was in contrast with the
version put by their attorney to the State witnesses. Having put
versions that they had
gone to the tavern with Ndlovu, they sought to
suggest during their oral evidence that they had not worked with him
on that day
and that they had not seen him. They gave several
conflicting versions in this regard. They failed to challenge
relevant evidence
led by Ndlovu, for example, that they had been paid
R200 by Mr Ngcobo and how that money was spent. They suggested
without having
raised this with Ndlovu that they were paid R50.
Having put a version that they had left the tavern with the third
appellant, the
first and second appellants in order to disassociate
themselves from Ndlovu suggested that they had gone to the tavern
separately
and had left separately.
[37]
The second appellant sought to place the blame of not challenging the
evidence of Ndlovu and
placing a different version to his evidence on
his attorney suggesting that they had insufficient time to consult
but conceded
under cross- examination that this was not correct. As
regards the third appellant, his complete turn-around when he took
the stand
before the court a quo proved that he was not a credible
witness. He confirmed most of Ndlovu’s evidence except on the
actual
murder which he sought to remove himself from. While he
suggested that he had been scared of the first and second appellants,
he
conceded that during the trial, he had given instructions to their
attorney on several occasions. He had sufficient opportunity
to raise
this in the instructions he was giving to the attorney but failed to
do so. He is susceptible to lying to the court and
continuing with
that lie. He lies in order to get himself out of a situation. His
evidence can therefore not be relied upon.
The sentence herein
falls within the purview of
s51(1)
read with schedule 1 part 1 of the
Criminal Law Amendment Act 105 of 1997on the basis that the
appellants acted in common purpose
in committing the murder.
[38]
It is trite that sentencing falls within the discretion of the trial
court and should not be
interfered with
unless
the appeal court is satisfied that the discretion has not been
judicially and properly exercised and the sentence is vitiated
by
irregularity, misdirection or is strikingly inappropriate
.
[39]
Mr
Chiliza
argued that the court a quo misdirected itself by
attaching insufficient weight to traditional mitigating factors. It
failed to
take into account that the first appellant was 22 years of
age, had temporary employment, was a father of two minor children and
went up to standard six (grade eight) at school. He was admittedly
not a first offender. The second appellant was 28 years old
with
casual employment and no children. He was also not a first offender.
The third appellant was 35 years of age with seven minor
children and
a common law wife. He was self-employed running two tuck shops.
[40]
What was aggravating in respect of the first appellant was the fact
that his previous conviction
was on a murder charge in 2005 and he
was sentenced to six years’ imprisonment two of which was
suspended. The previous conviction
had no salutary effect and instead
of being rehabilitated, he has now become a seasoned murderer who
attaches no value to human
life. The second appellant’s
previous conviction was for assault with intent to do grievous bodily
harm. He was sentenced
to 12 months’ imprisonment which also
had no rehabilitatory effect on him. Instead, he has graduated to now
becoming a murderer.
In my view, the third appellant’s previous
conviction of theft is not relevant in considering an appropriate
sentence for
a murder charge.
[41]
He submitted that while the appellants deserved to be punished for
the offence, life imprisonment
imposed upon them was harsh and
inappropriate taking into account that alcohol played a major role in
the commission of the offence.
He accepted however that the
appellants had not suggested that they had diminished capacity.
Further, that there was no apparent
reason why they murdered the
deceased. He conceded that the deceased was brutally murdered as he
was stoned to death. He however
argued that the murder was not
premeditated and that the sentence was shockingly inappropriate and
induced a sense of shock. This
warrants this court to interfere with
the discretion of the court a quo.
[42] Mr
Sibanyoni
argued that the sentence imposed by the court a quo
was correct and that there was no reason to interfere.
[43]
In
S v N
[2008] ZASCA 30
;
2008 (2) SACR 135
(SCA) para 29 the court stated that when
considering an appropriate sentence in serious crimes emphasis should
be on retribution
and deterrence and that the rehabilitation of the
offender will play a smaller role.
In serious crimes, however,
the personal circumstances of the offender retreated into the
background. Once it was clear that a substantial
jail term was
appropriate questions of whether or not the accused was married, or
employed, or of how many children he had were
largely immaterial.
Their relevance is in assessing whether the accused was likely to
offend again. See
S v Vilakazi
2009 (1) SACR 552
(SCA). The
traditional mitigating factors of the appellants played a minor role
in this regard in view of the seriousness of their
offence.
[44]
In order not to be seen to be abdicating its duty and discretion, the
court a quo court found
that the sentence of life imprisonment as
prescribed was fitting. See
S
v PB
2013
(2) SACR 533
(SCA).
On
the evidence, there is nothing to suggest that the court a quo
imposed
sentences that were strikingly inappropriate even when it is
considered that the first and second appellants had consumed
alcohol.
There is nothing to suggest that alcohol played any role in their
conduct.
[45]
In the result, the following order is made:
1.
The
appeal against conviction and sentence fails.
2.
The
conviction and sentence of the appellants by the court a quo are
confirmed.
Masipa,
J
K
Pillay, J
I
agree.
DETAILS
OF THE HEARING
Appearances:
For
The Appellant:
Mr EM Chiliza
Instructed
by:
Durban Justice Centre
For
the Defendants:
Mr J Sibanyoni
Instructed
by:
Director for Public Prosecutions, Durban
Matter
heard on:
3 May2019
Judgment
delivered:
10 May 2019