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[2019] ZAECBHC 2
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Gule and Others v S (CA & R 205/2017) [2019] ZAECBHC 2 (31 January 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
{EASTERN
CAPE LOCAL
DIVISION, BHISHO
}
Case
no. CA & R 25/2017
Date
heard: 31 October 2018
Date
delivered: 31 January 2019
In the matter
between:
THOZAMILE
GULE
First
Appellant
ROSE
NTUTHALO SOKOPO
Second
Appellant
ORABA
QELE
Third
Appellant
ANELE
YAWA
Fourth
Appellant
UHURU
QELE
Fifth
Appellant
And
THE
STATE
Respondent
JUDGMENT
T
ONI
AJ
Introduction
[1] Serving before us is an appeal
against the decision of my brother, Ndengezi AJ. Appellants were
found guilty of one count of
murder, two accounts of attempted
murder, and unlawful possession of firearms and ammunition,
respectively. The appeal is with
the leave of the court
a quo
.
[2] The appellants were sentenced as
follows: (a) count 1 (murder) – 25 years’ imprisonment;
(b) count 2 (attempted
murder) – 15 years’ imprisonment;
(c) count 3 (attempted murder) – 15 years’ imprisonment;
(d) count 4
(unlawful possession of firearms) – 5 years’
imprisonment; and (e) count 5 (unlawful possession of firearm) –
5 years’ imprisonment. The sentences in count 1 and 2 and those
in respect of counts 4 and 5, respectively, were ordered
to run
concurrently. The appellants were thus sentenced to an effective 45
years’ imprisonment.
[3] In relation to count 1 the state
alleged that on 10 September 2008 and at or near Norman’s Wine
and Dine, NU3, Mdantsane
(“the tavern”), the accused shot
and killed one Siyabonga Matiti (“the deceased”). In
respect of count
2 the state alleged that on the same date and place
as in count 1, the appellants attempted to kill one Sisanda Gole by
shooting
her with a firearm. In count 3 it was alleged that on the
same date and place the appellants attempted to kill one Sisanda
Febana.
Alternative to counts 2 and 3 the appellants were charged
with causing serious bodily injury to Sisanda Goje and Sisanda Febana
by discharging firearms. In count 4 the appellants were charged with
unlawful possession of firearms in that on the same date and
at the
same place they unlawfully possessed firearms without licences,
permits or authorisation to possess such firearms. In count
5 it was
alleged that on the same date and place the appellants unlawfully
possessed live rounds of ammunition.
[4] The appellants were duly informed
that a minimum sentence of life imprisonment would apply in the event
of them being found
guilty of murder, since the murder was allegedly
planned or premeditated, or was committed by a group of persons
acting in furtherance
of common purpose.
[5] The first appellant appeals
against his sentences only, whilst the rest of the appellants are
appealing against both their convictions
and sentences. The grounds
of appeal are (save for the first appellant) that the learned judge
misdirected himself in convicting
them and that (in respect of all
appellants) the sentences imposed by the learned judge induce a sense
of shock.
[6] In addition to relying on the
evidence of an eye witness, in convicting the appellants the learned
judge also relied on admissions
made by some of the appellants. Apart
from contending that the trial court erred in finding that the state
had proved the guilt
of the appellants beyond reasonable doubt, the
second and fifth appellants also contend that the learned judge erred
in admitting
evidence of admissions allegedly made by them in the
face of compelling evidence that they had been coerced into making
the statements.
The Evidence
[7] The state called several police
officers who attended the crime scene. Police officer Thobela Peter
Phelisile said that he was
alerted to a shooting at the tavern
through a report from Radio Control. He said that he rushed to the
scene and there met the
owner of the business, Mthuthuzeli Ngqakayi,
who informed him that three people had been shot, namely two women
and one male. He
noticed blood stains on the door, and had called an
ambulance to attend to the injured. The two ladies were taken to
Cecilia Makiwane
and the male was slumped on a table and appeared to
be dead. He then called one detective Mlumbi. Upon Mlumbi’s
arrival,
he handed him 21 cartridges found on the scene.
[8] Nkululeko Mtuze, a police officer
attached to the South African Police Fingerprints Section, also
became aware of the incident
through Radio Control, and upon arrival
at the scene, he found Inspector Phelisile already there. He then
took photos and collected
exhibits, among which were cartridges and
bullet heads. He also compiled a photo album which was submitted into
evidence a Exhibit
“A”.
[9]
Thamsanqa Jeffrey also testified that at about 17h00 on the day in
question he received a telephone call from Radio Control
that a
shooting had occurred at the tavern where “
15
Niggers
[1]
”
arrived and discharged shots. Upon arrival he found Phelisile and
Mtutuzeli Ngqakayi there, and he took over the crime scene
from the
former. Mtuze arrived later, took photos and collected evidence.
[10]
Sisanda Goje (“Goje”), the complainant in respect of
count 2, testified that she was at the tavern drinking beer
when she
saw about three people entering the door. She looked at them as they
entered and could see that they were carrying firearms.
She took
cover under the table and thereafter heard several gunshots. She did
not recognise the shooters. After the shooting had
ceased she
realised that she had been shot as she noticed blood on her jersey.
There was another young man behind her who had also
been shot. She
was wounded in the arm and the owner, Mthutuzeli Ngqakayi, called an
ambulance. She was first taken to Cecilia Makiwane
Hospital and
thereafter to Frere Hospital, together with the other complainant,
Sisanda Febana. She spent three days in the hospital.
[11] She also said that she was shot
at five times and that one bullet hit her in the chest but was
fortunately deflected by her
cellular phone. Her medical reports and
a J88 form were handed in as Exhibits “B1 and “B2”,
respectively.
Under cross-examination she
testified that at the time the assailants entered she was drinking
beer and Ngqakayi was behind the
counter. When the shooting started
he ran to the kitchen.
The appellants’ representative
asked her if was possible that Ngqakayi did not witness the shooting.
She replied that it “
could be that he did not see it
”
.
[12] The other complainant, Sisanda
Febana, said that she had gone to the tavern after 17h00 to buy a
fish. She was served by Ngqakayi
who was behind the counter. She
heard Ngqakayi exclaiming “yoh” and thereafter several
gunshots were fired. She hid
under a table, but could not avoid being
hit. She only realised that she had been struck by a bullet when she
felt a burning sensation
on her waist and noticed that she was
bleeding. The bullet is still lodged in her body. She does not know
who fired the shots and
according to her Ngqakayi disappeared after
exclaiming “yoh”. She did not know if he had seen the
shooters.
[13] Mthutuzeli Ngqakayi testified
that he owns the tavern as well as a supermarket operated from the
same premises. He runs the
tavern whilst the supermarket is managed
by his son, Siyabulela Ngqakayi (“Siyabulela”). Ngqakayi
said that he knew
all the appellants except for the fifth appellant.
The appellants always drink at his tavern. He said he had known the
first appellant
since 2004 and was his neighbour. He knew the second
appellant since his primary school days and their homes are close to
each
other.
He further said that he knew the
third appellant as a companion of Monwabisi and that they frequent
the tavern together. The fourth
appellant also usually accompanies
them. Ngqakayi knew the first to the third appellants so well that he
could even recite their
nicknames, namely Thoko, Nkutalo and Oraba.
He could, however, not remember the fourth appellant’s first
name or nickname
.
[14] On the ill-fated day he was
behind the counter at the tavern, selling fish to Febana. He had put
the fish in the microwave
when he saw one Monwabisi in the doorway,
carrying two firearms. Monwabisi was behind Febana. Behind him was
the first appellant
who was also carrying a firearm, followed by the
third appellant.
Whilst he was still waiting to
retrieve the fish from the microwave, Monwabisi exclaimed “
here
is this faeces
”, referring to
the deceased. He was looking at the first appellant and firing shots
at the same time. The first appellant
followed suit, also referring
to the deceased as “this
faeces
”
and also fired shots at him. The third appellant thereafter did the
same. Fearing
for his own life, Ngqakayi drew his own firearm
and went to stand closer to the kitchen. It was only then that he
noticed that there
were many assailants, some whom he did not know.
He, however, did not see the fifth appellant.
[15] Ngqakayi pointed out the shooters
as being the first, second and third appellants. He ran to stand near
the door of the kitchen
and could not see the others clearly because
he was dizzy. The deceased was lying on a table, his body riddled by
bullet holes
from which blood was oozing. Under cross-examination
Ngqakayi said that at the time of the shooting incident the entrance
was well
lit and there was also some illumination outside.
[16] His son Siyabulela testified that
he knew all the appellants very well since they grew up together. He
said that he and the
first appellant are neighbours, that he grew up
together with the second appellant, was in police custody with the
third appellant
during 2004, and that the fourth appellant used to
drink at his home and chat to his girlfriend. He also met the fifth
appellant
in prison.
[17] Whilst serving his customers at
the supermarket he heard a volley of shots being fired at the tavern
which is below the supermarket.
He went outside to investigate and
saw the first, second, third, and fourth appellants together with
Monwabisi and one Tando.
They were leaving the
tavern while carrying firearms. Monwabisi was carrying two firearms.
He heard Monwabisi commenting that he had killed “
that
faeces
” that he had been looking for. He and the others
also swore at Siyabulela and pointed him with firearms. He then ran
into
the supermarket where he locked himself and some of his
customers in the kitchen. It was only after they had been told by
other
customers that the armed gang had left, that he went to see
what had happened at the tavern. The deceased was still there and the
floor was covered in blood. He also did not see the fifth appellant
on the day in question.
The trial-within-a-trial
[18] During the trial proceedings a
trial-within-a-trial was held with a view to determining the
admissibility of certain statements
made by the first, second, and
fifth appellants to the investigating officer, Superintendent Andrew
George Middleton (“Middleton”)
and Magistrate Dewald Van
Lamp (“Van Lamp”). At the conclusion of the
trial-within-a-trial the learned judge ruled
that all those
statements were admissible. The reasons for that ruling are
regrettably not explained in his judgment. Suffice it
to mention that
the learned judge found that those statements did not amount to
confessions since they did not constitute unequivocal
admissions of
guilt. Mr Els, who appeared for the state at the hearing of the
appeal, correctly conceded that the learned judge
had erred in
admitting the statements. It was clear from the testimonies of both
Middleton and Van Lamp that the appellants told
them that they had
been assaulted and exhibited injuries which were consistent with
their claims. The appellants’ versions
regarding their alleged
assaults and ill-treatment at the hands of the police were
accordingly reasonably possibly true. The state
has accordingly
failed to establish beyond a reasonable doubt that those statements
were made freely and voluntarily. Even though
the learned judge
correctly found that the statements did not amount to unequivocal
admissions of guilt, he respectfully erred
in admitting the
statements in the face of compelling evidence that the appellants had
been assaulted and subjected to ill-treatment
at the hands of the
police.
[19] Middleton said that after asking
the fifth appellant a series of questions, he asked him if he had
been assaulted and whether
he had any injuries. He replied that he
had been assaulted, removed his shirt, and showed Middleton slight
bruises on his left
shoulder and back.
He also
told Middleton that he had been assaulted by the police with guns
during his arrest. He nevertheless indicated that he still
wanted to
continue with his confession.
[20] It was put to Middleton during
cross examination that the freshness of the injuries suggests that it
was probable that the
fifth appellant had been coerced into making
the statement. It appears from the record that Middleton was unable
to provide an
acceptable reason why he nevertheless proceeded to
record the fifth appellant’s confession. It also became
apparent during
cross examination that Middleton was a senior officer
in the same unit in which the police officials investigating the
appellants
were attached. After some obvious attempts to avoid
dealing with this issue, contending that he had just been transferred
to the
unit and that he had no knowledge of any of these cases,
Middleton eventually conceded that he was indeed attached to the same
unit.
[21] Magistrate Van Lamp testified
that the second appellant appeared before him at 14:09 on 15
September 2008, apparently in his
sound and sober senses. Present in
his office were the second appellant, the interpreter and himself.
Having been warned by the
magistrate, the second appellant indicated
that he wanted to make a statement and said that he expected to be
advantaged since
he did not have any knowledge of the allegations
against him. When asked by the magistrate if he had been assaulted or
threatened
by any person to influence him to make a statement, he
said he was not. But when he was asked if he had any fresh wounds,
injuries
or scars on his body, he said he was assaulted with gun
butts on his head by police on 13 and 14
September 2008,
and showed Van Lamp abrasions and contusions on his back. He said he
was throttled and was suffocated with a tube
while being exhorted to
tell the truth.
[22] Van Lamp also testified in
relation to a confession made by the first appellant. He said that
having been warned in the appropriate
fashion, an identical form with
identical questions was also used in respect of the first appellant.
He also said he was assaulted
and gave a detailed and account of the
assault. The same
modus operandi
that was used on the other
appellants was also used on him. He also sustained visible injuries
as a result of the assault. When
he was asked whether he was
assaulted to make a statement, he replied that he was assaulted to
coerce him to admit the allegations.
[23] The first, second, and fifth
appellants, in their testimonies during the trial within a trial,
gave detailed accounts of the
circumstances of their arrest and their
ill-treatment at the hands of the police. In the light of the state’s
concession
it is not necessary for to provide a detailed summary of
their testimonies. Suffice it to say, however, that their versions
were
consistent with what they told Middleton and Van Lamp regarding
their alleged assaults. In the circumstances I find that the learned
judge in the court
a quo
erred in admitting the statements. I
accordingly find that the statements made by the first, second, and
fifth appellants to Van
Lamp and Middleton, respectively, are
inadmissible as evidence against those appellants.
The appellants’ versions
[24] The appellants all testified in
their defence. The upshot of their testimonies was that they all
denied having committed the
offences with which they had been
charged. The first appellant testified that he knows Ngqakayi well
since they are neighbours.
He once had a quarrel with him long time
ago, they fought and the quarrel remains unresolved. He also knows
Siyabulela well since
they grew up together. They do not have a
cordial relationship ostensibly because of the quarrel he had with
Siyabulela’s
father. He further said that he had also known the
deceased during his life time. They resided together at NU3,
Mdantsane. They
often spoke to each other but were not friends. But
they were not enemies either. He knows the two ladies who were
injured at the
tavern, but he did not know their names.
[25] On the day of the shooting
incident he was in the vicinity of the tavern drinking beer with the
third and fifth appellants
when they heard shots being fired from
inside the tavern. They were about 60 metres away and whilst still in
shock, they saw people
running out of the tavern. He did not notice
any of those people carrying a firearm. He did not see Siyabulela
among the people.
They left and went to another shebeen. He denied
having been in the tavern on that day and said that Ngqakayi was
lying when he
said that he saw him, Monwabisi and others entering the
tavern carrying firearms. He denied that he ever entered the tavern
and
said that he did not see Monwabisi on the day in question. He
also said that Siyabulela was lying when he said he saw him,
Monwabisi
and others coming out of the tavern brandishing firearms.
He denied any involvement in the killing of the deceased and shooting
of the two women.
[26] Under cross-examination he said
that the shooting incident occurred during the day and that the
visibility was good. He also
conceded that he was banned by Ngqakayi
from entering the tavern after they had a quarrel and would sit
outside. He denied that
he is a member of a gang. He further said
that what he told the magistrate in his confession was not true as he
feared that he
would be detained further and tortured by the police
if he did not say what they expected him to say. The police assaulted
him
because they wanted him to incriminate himself.
[27] The second appellant testified
that he grew up in NU3 and knows the tavern. He further testified
that he knew the deceased
but was not involved in his killing. He
could not remember anything of particular significance on 10
September 2008, but he knew
for a fact that he was not at the tavern.
He said that the statement he made to the magistrate was not the
truth and that he had
been coerced into making it. Under
cross-examination he conceded that he knows both Mtutuzeli and
Siyabulela well and that they
would not confuse him with somebody
else.
[28] The third appellant testified
that he resides at NU14, Mdantsane which is not far from the tavern.
He said that he knows both
Mtutuzeli and Siyabulela but only
recognised the latter when he saw him in court. They met in prison
but were not friends. He denied
knowing Monwabisi or being friends
with him. He also said that he does not own a firearm. On the day in
question he was telephonically
contacted by the fifth appellant who
was at his girlfriend’s place at NU3, and had a taken a taxi to
join him. On his arrival
he was told by the fifth appellant’s
girlfriend that the fifth appellant was at the first appellant’s
place. He went
to look for him but did not find him there. He
subsequently found him sitting on a veranda facing the tavern.
[29] He further testified that
Mtutuzeli did not know him, as he would speak to him only when he was
buying something at the tavern.
He did not go to the tavern on the
day in question, but only went to a shop to buy tobacco. The only
person who went there to buy
beers was the fifth appellant. Mtutuzeli
might be confusing him with someone else when he testified that he
saw him at the tavern
on the day in question. People often confuse
him with the fifth appellant, who is his brother.
[30] Whilst they were still drinking
beer they heard shots coming from the tavern. He stood up but whilst
still trying to determine
what was happening, he heard a commotion.
He saw people coming out of the tavern and walking towards them. The
first appellant
then suggested that they should leave. The fifth
appellant, however, refused to leave as he was already intoxicated.
Both he and
the first appellant held the fifth appellant and while
supporting him, they walked past the crowd and went to another tavern
called
China’s Place. He denied having been seen by Siyabulela
carrying firearms or shooting at persons inside the tavern, as
alleged
by Mtutuzeli. Under cross-examination, he said that he was
not informed of his rights and did not make any statements.
[31] The fourth appellant denied that
he was in possession of an unlawful firearm or ammunition at the
tavern on 10 September 2008.
He further denied that he was at any
stage at the tavern on the day in question. He also denied having
shot the deceased or attempted
to kill both Goje and Febana. He said
that he had known Siyabulela from as far back as 2000. They were
together in initiation school
and would occasionally meet when they
went to buy liquor at a tavern called Salinga’s Place. He did
not have good relations
with Mtutuzeli flowing from their previous
quarrels which resulted in the latter shooting at him in defence of
Siyabulela. His
relations with the Ngqakayis were so strained that
Mtutuzeli banned him from entering the tavern. He conceded knowing
Thando Kondlo
(mentioned by Siyabulela during his testimony) and also
confirmed that he had since died. He said that on the day of the
shooting
incident at the tavern, he was painting his home. He could
not dispute that Mtutuzeli had ample opportunity to observe the
persons
who shot and killed the deceased and injured Goje and Febana.
[32] Since the state has conceded that
there was insufficient evidence against the fifth appellant to
justify his conviction, it
is not necessary for me to summarize his
testimony. The fact that the statement he had made to Middleton had
been ruled inadmissible,
means that there is no evidence connecting
him to the shooting, and his appeal against conviction must
accordingly be upheld. This
much was conceded by Mr Els.
Analysis and evaluation
[33] It is trite that in criminal
proceedings
the onus is on the state to prove
beyond reasonable doubt that an accused is guilty of the crimes with
which he had been charged.
The accused does not have a
corresponding
obligation to prove his or her innocence.
[34]
At this stage it is apposite to reflect on the proposition made by
Brand AJA (as he then was)
in
S v Shackell
[2]
,
where he observed that:
“
It is a
trite principle that in criminal proceedings the prosecution must
prove its case beyond reasonable doubt and that a mere
preponderance
of probabilities is not enough. Equally trite is the observation
that, in view of this standard of proof in a criminal
case, a court
does not have to be convinced that every detail of an accused’s
version is true. If the accused’s version
is reasonably
possibly true in substance the court must decide the matter on the
acceptance of that version. Of course it is permissible
to test the
accused’s version against the inherent probabilities. But it
cannot be rejected merely because it is improbable;
it can only be
rejected on the basis of inherent probabilities if it can be said to
be so improbable that it cannot reasonably
possibly be true. On my
reading of the judgment of the Court
a
quo
its reasoning lacks this final and
crucial step.”
[35]
In assessing the evidence the court must consider it holistically in
order to determine whether the guilt of the accused has
been proved
beyond reasonable doubt. It is only after a detailed and critical
examination of each and every component in a body
of evidence that a
judge may be able “
to
step back a pace and consider the mosaic as a whole”
[3]
.
In
the words of Nugent J
[4]
,
the conclusion which is reached must account for all evidence.
Illustrating the importance of an evaluation of all the evidence,
Nugent J said:
“
What
must be borne in mind, however, is that the conclusion which is
reached (whether it be to convict or to acquit) must account
for all
evidence. Some of the evidence might be found to be false; some of it
might be found to be unreliable; and some of it might
be found to be
only possibly false or unreliable;
but
none of it may simple be ignored
[5]
”.
[36] It is so that the statements made
by the first, second, and fifth appellants having been found to be
inadmissible, the state
was entirely reliant on the evidence of
Mtutuzeli Ngqakayi and, to the extent that his testimony corroborated
that of the former,
that of his son, Siyabulela. Mtutizeli’s
testimony was indeed compelling and beyond any criticism. It was
common cause that
he had known all the appellants well and had ample
time to identify them. They admitted that they had been in the
vicinity of the
tavern, albeit that they claimed to have been on the
veranda of a nearby property. If indeed he was dishonestly
implicating the
appellants, he would not have conceded that he did
not see the fifth appellant. And since the possibility of mistaken
identity
can be excluded (since the assailants were well known to
him), the only other basis on which his testimony can be rejected is
that
he was deliberately lying about the identities of the
assailants. It must have been abundantly clear from the summary of
the evidence
that there is no basis for such a finding.
[37]
More importantly, Mtutuzeli’s testimony was corroborated by
that of Siyabulela in a number of important aspects. It was
also
common cause that Siyabulela had known the appellants well. He also
had ample time to observe them since they had spoken to
him and
threatened him with firearms as well. It is significant that
Siyabulela also observed that Monwabisi was carrying two firearms
and
that he had bragged about having shot “
that
faeces
”
(facts mentioned also by Mtutuzeli). Since the first appellant has
not appealed against his convictions (having admitted
guilt during
the sentencing stage), it must be assumed that Mtutuzeli’s
assertion that he was one of the shooters is unassailable.
This fact
renders it even more unlikely that he would have been mistaken about
the identities of the other assailants. Where, as
is the case here,
an eye witness had known the accused previously, other issues such as
identifying marks, facial characteristics
and clothing are less
important than in cases where there is no previous acquaintance with
the accused. What is important is the
opportunity for observation and
degree of previous knowledge.
[6]
In this case the eye witness had more than adequate opportunity to
observe the shooters, visibility was good, and they had been
known to
him for many years. The possibility of mistaken identity is
accordingly negligible.
[38] Mr Giqwa, who appeared on behalf
of the appellants, sought to criticise Mtutuzeli’s testimony on
the basis of a statement
by Goje to the effect that the latter had
run to the kitchen when the shooting started. He argued that there
was accordingly a
reasonable possibility that Mtutuzeli did in fact
not witness the shooting. I am not convinced that it is reasonable to
make such
an inference from Goje’s evidence. When Goje was
asked about Mtutuzeli’s whereabouts at the time the shooting
had started,
she was clearly speculating and could not possibly have
known what he could observe from his vantage point.
[39] The evidence adduced by the state
accordingly established a compelling
prima facie
case which
required of the appellants to provide versions which were reasonably
possibly true. In my view the reasoning of Ndengezi
AJ in finding
that there was no reasonable possibility that their versions could be
true (and rejecting them as false), cannot
be faulted. It must have
been evident from my summary of the evidence that their versions were
contrived, improbable, and fell
to be rejected as false.
[40] I am accordingly satisfied that
the finding by the court a quo to the effect that the state has
proved the charges against
the second, third, and fourth appellants
beyond a reasonable doubt, is justifiable. The appeal against their
conviction accordingly
fails.
The appeal against sentence
[41]
Sentencing is pre-eminently within the discretion of the trial court,
and the appeal court may interfere only if there is clear
misdirection on the part of the trial court or the sentence is
shockingly severe. The correct approach is to apply the triad of
factors enunciated in
S
v Zinn
[7]
,
namely weighing: the personal circumstances of the accused; the
interest of the society; and the nature and seriousness of the
offence
[8]
.
In
S
v Pillay
[9]
Trollip
JA said the following:
“
Now
the word ‘misdirection’ in the present context simply
means an error committed by the Court in determining or applying
the
facts for assessing the appropriate sentence. As the essential
inquiry in an appeal against sentence, however, is not whether
the
sentence was right or wrong, but whether the Court in imposing it
exercised its discretion properly and judicially, a mere
misdirection
is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence, it must be of such a nature,
degree, or
seriousness that it shows, directly or inferentially, that the Court
did not exercise its discretion at all or exercised
it improperly or
unreasonably. Such a misdirection is usually and conveniently termed
one that vitiates the Court’s decision
on sentence.”
[42]
As regard the circumstances in which a court on appeal may interfere
with the sentence of the trial court, Mohamed CJ commented
as follows
in
S v
Salzwedel and Others
[10]
:
“
A court of appeal was entitled
to interfere with a sentence imposed by a trial Court in a case where
the sentence was ‘disturbingly
inappropriate’, or totally
out of proportion to the gravity and magnitude of the offence, or
sufficiently disparate, or vitiated
by misdirection of a nature which
showed emphasis of the personal circumstances of an accused and
underestimation of the gravity
of the offence constituted a
misdirection which might result in the sentence being set aside.”
[43]
The court imposing sentence must ensure that it exercises its
discretion not only correctly but also reasonably. The test being
whether there was proper and reasonable exercise of the discretion
bestowed upon the court imposing sentence. In
S
v Kgosimore
[11]
Scott JA said that ‘…
either the discretion was
properly and reasonably exercised or it was not. If it was, a Court
of appeal has no power to interfere;
if it was not, it is free to do
so..
.’
[44]
While the learned judge’s finding regarding substantial and
compelling circumstances cannot be faulted, the offences
remain
serious and deserving of long term imprisonment. In killing the
deceased the appellants acted in a callous manner and without
any
regard for human life. They shot the deceased in cold blood and were
completely unconcerned about the possibility of serious
injury (or
even death) to other by-standers.
[45]
It is clear, however, that the learned judge did not give due
consideration to the disproportionally severe impact of the
accumulative
effect of the sentences. The effective period of 45
years’ imprisonment imposed by the learned judge is, with
respect, so
excessive in the circumstances that the inference is
ineluctable that he did not properly exercise his sentencing
discretion. This
court is accordingly at large to interfere with the
sentences. Mr Els conceded that it would be fair and appropriate to
order all
the sentences to run concurrently, resulting in an
effective term of 25 years’ imprisonment. In my view such an
approach
will effectively ameliorate the unduly harsh consequences of
the consecutive periods of imprisonment.
Order
[46] In the result, the following
order issues:
1.
The fifth appellant’s appeal against his convictions is upheld
and the convictions
and the sentences imposed by the court a
quo
are set aside.
2.
The appeal against the convictions of the second, third and fourth
appellants is dismissed.
3.
The appeal against the sentences in respect of the first, second,
third and fourth
appellants is upheld, and the sentence is amended to
the extent that all sentences imposed by the court
a quo
are
ordered to run concurrently, effectively resulting in 25 years’
imprisonment for each appellant.
4.
The sentences are antedated to 23 July 2010.
H. S. TONI
JUDGE OF THE HIGH COURT (ACTING)
SMITH,
J
:
I agree.
J. E. SMITH
JUDGE OF THE HIGH COURT
LOWE,
J
:
I agree.
M. J. LOWE
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the Appellants
Adv
A. A. H. Giqwa
Instructed
by
Legal
Aid Board
KING
WILLIAM’S TOWN JUSTICE CENTRE
Counsel
for the Respondent
Adv
D. Els
Instructed
by
The
Director of Public Prosecutions
BHISHO
[1]
This was a reference to a local gang.
[2]
2001 (4) SA 1
(SCA) para 30
[3]
See
S v Shilakwe
2012 (1) SACR 16
(SCA) at [11]; S v Hadebe and others
1998 (1) SACR 422
(SCA) at 426 f-h
[4]
In
S v Vander Meyden
1999 (1) SACR 447
(W) at 450 a-b;
1999 (2) SA 79
at 82D-E. This case is quoted with approval in the unreported
judgment of Petse JA in Mulaudzi and others v The State,
SCA case
no. 768/2015 (SCA) and many other cases in that court.
[5]
Emphasis
added.
[6]
R
v Dladla 1962 (1) SA (A) at 310.
[7]
1969
(2) SA 537A
[8]
See
also S v SMM
2013 (2) SACR 292
(SCA) at 207, para (a)-(b)
[9]
1977
(4) SA 531
(A) at 553E=F
[10]
1999
(2) SACR 586
(SCA)
[11]
1999
(2) SACR 238
(SCA) at 241, para 10