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[2019] ZAECBHC 14
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Gule and Others v S (CA&R25/2017) [2019] ZAECBHC 14 (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:
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.
The
appeal against the convictions of the second, third and fourth
appellants is dismissed.
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 run
concurrently, effectively resulting in 25 years’ imprisonment
for each appellant.
The
sentences are antedated to 23 July 2010.
___________________________________
H.
S. TONI
JUDGE
OF THE HIGH COURT (ACTING)
I
agree.
____________________________________
J.
E. SMITH
JUDGE
OF THE HIGH COURT
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
Els
Instructed
by
: The Director of Public
Prosecutions
:
BISHO
[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