About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Bhisho
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Bhisho
>>
2019
>>
[2019] ZAECBHC 19
|
|
Mkolo and Others v S (CA&R19,20,21&22/2016) [2019] ZAECBHC 19 (17 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION - BHISHO
CASE NO.
:
CA& R 19, 20, 21
& 22/2016
Heard on : 24
June 2019
Date
delivered: 17 September 2019
In
the matter between:
XOLANI
MKOLO
First
Appellant
VUYOLWETHU
ZINGO
Second
Appellant
JONGIKHAYA
MKOLO
Third
Appellant
SINAYE
MBONGO
Fourth
Appellant
And
THE
STATE
Respondent
JUDGMENT
MAJIKI
J
[1]
The four appellants faced charges of murder in the regional court in
Zwelitsha.
Initially they were five but the fifth one was
discharged at the end of the state case. The provisions of
section 51(1) of
Act 105 of 1977 (the Minimum Sentence’s Act)
were invoked by the state in the event that they were convicted on
that charge.
They pleaded not guilty to the said charge without
disclosing the basis of their defence. They were found guilty
as charged
and each sentenced to undergo eighteen (18) years
imprisonment. With the leave of the court
a quo
they now
appeal against both conviction and sentence.
[2]
The grounds of appeal are summarily;
·
that the magistrate erred in finding that the state had proved the
appellants’
guilt beyond reasonable doubt;
·
that the magistrate erred in rejecting the evidence of the appellants
that
they did not participate in the assault of the deceased but he
was attacked by members of the community;
·
that he erred in finding that the appellants’ evidence was
false
and not satisfactory in all material respect;
·
that he erred in not taking into account the evidence of the
chairperson
of the community of Cwengcwe, Wanini Panama (Panama)
that the appellants did not participate in the assault of the
deceased,
they were just standing by trying to stop the crowd from
assaulting the deceased when he was being assaulted by the
members
of the community;
·
that the magistrate over emphasized the seriousness of the offence
and
interest of the community over the appellants’ personal
circumstances;
·
that the sentence lacks the concept of mercy and indicates
overemphasis
on retribution;
·
the magistrate failed to take into account that there is a likelihood
that
the appellant may still be rehabilitated; and
·
that the sentence imposed is startlingly inappropriate and induces a
sense
of shock.
[3]
It is common cause that the deceased was severely assaulted and
subsequently died
of multiple injuries. On the day of the
assault, in the early hours of 3 July 2014, the deceased was with
Thulani Tokwe,
(Thulani) Sipho Tshiki, (Sipho) and Nosithembele
Harry (Nosithembele) (the first three state witnesses) at Thulani and
Siphos’
homestead. The appellants arrived at the said
home, they enquired where the deceased was from and about a machine.
The reference to the machine was in respect of a grass cutter, which
apparently was stolen in a break-in at Xolani and Jongikhaya
Mkolo’s
homestead. The appellants were in pursuit of the suspect.
Subsequently, they went away with the deceased.
[4]
It is in dispute that the appellants had weapons and that they
assaulted the deceased.
[5]
I will be referring to the appellants according to their names
hereunder. The
proceedings in the court
a quo
did not
consistently follow the numbering as outlined in the charge sheet.
Also, the judgment of the court
a quo
has the same challenge.
[6]
According to the first three state witnesses, the appellants entered
the homestead,
where they found the deceased with Thulani, Sipho,
Nosithembele and one Sinovuyo. Upon enquiry, the deceased told
them he
was from Gaza locality. He had not responded to the
next enquiry about where the machine was, when the appellants
assaulted
him with spades and sticks. The then accused number 2
(Vuyolwethu) entered the room following the first and third
appellants
after the then accused numbers 1 (Xolani) and
3 (Jongikhaya). Vuyolwethu hacked the deceased first,
with
a spade. Then Xolani, Vuyolwethu
,
Sinaye went to the deceased and hit him with sticks and
spades. Sipho specifically testified that also hit the
deceased
with a spade. The owner of the homestead was alerted
by the noise from her room, in another structure within the
homestead.
She came to the room where the assault was taking
place. She found the appellants but when she entered they did
not continue
to assault the deceased. She asked them not to
attack the deceased at her home. The appellants held the
deceased and
left with him. The deceased was protesting,
shaking his body. The appellants forced him by assaulting and
pulling
him. Nosithembele and Sinovuyo were also instructed by
the appellants to go with the appellants. The appellants
accused
them of knowing the whereabouts of the machine and were told
they would have to point out where it was. Thulani had already
ran away. He did have a view of the appellants from where he
stood in the street. He conceded that when the appellants
were
walking with the deceased, they were confronted by five men.
However, he never saw those men assaulting the deceased.
[7]
The evidence reveals that when they were next to Vuyolwethu’s
home, the appellants
assaulted the deceased again. By this time
the deceased was weak and he was on the ground. In the morning,
after day
break, the community members arrived and they also
assaulted the deceased with sticks. The appellants were
present
but they were no longer assaulting the deceased at this
stage. The police were called.
[8]
According to the fourth state witness, Sergeant Mangxola the
appellants reported to
him that they assaulted the deceased with
sticks. They found him hiding at a certain homestead after he
had committed robbery
at the first appellant’s home. He
found the deceased lying in the street. There were angry
community members
on the scene. According to him, by the time
he arrived the deceased appeared to have passed away for
sometime.
[9]
The appellants’ version is that they only took the deceased
with a view of taking
him to the police. The appellants
suspected him of having committed robbery. Whilst walking with
him, five men approached
and forcefully took the deceased from the
appellants. The members of the community joined the five men.
Those people
assaulted the deceased with sticks. The appellants
never assaulted the deceased at any stage that day. They did
not
carry weapons. There was no bad blood between them and the
three state witnesses who implicated them.
[10]
Panama who is referred to as the chairperson in the locality
testified for the defence.
His evidence was that on the day in
question, around 03h30 in the morning, he was awakened by noise.
He went to the scene
where the deceased was. He found community
members. He enquired from Xolani as to what was happening.
Xolani
said they got a thief, the thief was then being attacked. The
appellants were standing by and not assaulting the deceased.
When the police arrived, the deceased was still alive. He
succumbed to his injuries in the police officer’s presence.
The deceased’s body was swollen and he had blood in his head.
Upon being shown photos of the deceased’s injuries
on the
exhibited photo album, he said he saw the open wound but did not know
its depth.
[11]
The issue for the appeal is whether the court
a quo
misdirected itself in finding that the appellants assaulted and
stabbed the deceased resulting in the injuries which led to his
death. Further, whether the sentence of eighteen (18)
years imprisonment is appropriate in the circumstances of this
case.
[12]
The court
a quo
rejected the version of the appellants and
found the assertions that they were unarmed as extremely ridiculous,
in the circumstances
of this case. The magistrate went on to
state that, it would have been better if the court had to deal
with the appellants
who said they acted out of rage, believing that
the deceased was the suspect in the housebreaking.
[13]
The magistrate rejected the evidence of the defence witness, Mr
Panama as an attempt to mislead
the court. He said how Panama
described the injuries on the deceased’s head is not consistent
with the injuries depicted
in the exhibited photos. The witness
said he saw blood in deceased’s head, but according to the
magistrate the photos
showed a ravaged man. The deceased had
open wounds. According to the post-mortem report, he had
“fissured fracture
across occipital bone at the back of the
head, bruised abrasions on the forehead, left chick and chin,”
amongst his
injuries.
[14]
The magistrate summarised how the assault started, how it progressed
and which of the appellants
did what in the course of the assault.
Worth mentioning is the fact that Thulani described the assault as a
sustained attack
which shocked him. He watched the severe
attack on the deceased. Of the appellants, two had
spades, one had a
sword and another had a stick. When he
was leaving in order to call elders, Jongikhaya assaulted him by
slapping him
in his face. Thulani is the only one who did not
witness the whole events that led to the deceased’s death.
The
magistrate accepted this evidence.
[15]
In
S
v
Hadebe
1997 (2) SACR (SCA) 641 at 645 the
approach of an appeal court to findings of fact of a trial court was
summarised as follows:
“…
in
the absence of demonstrable and material misdirection by the trial
court, its findings of fact are presumed to be correct and
will only
be disregarded if the recorded evidence shows them to be clearly
wrong.”
This
confirmed the approach adopted in
S
v
Francis
1991 (1)
SACR 198
(A) at 198-199 that:
“
The powers
of a Court of appeal to interfere with the findings of fact of a
trial Court are limited. In the absence of any misdirection
the trial
Court’s conclusion, including its acceptance of a witness’
evidence is presumed to be correct. In order to
succeed on appeal,
the appellant must therefore convince the Court of appeal on adequate
grounds that the trial Court was wrong
in accepting the witness’
evidence – a reasonable doubt will not suffice to justify
interference with its findings.
Bearing in mind the advantage with a
trial Court has in seeing, hearing and appraising a witness, it is
only in exceptional cases
that the Court of appeal will be entitled
to interfere with a trial Court’s evaluation of oral
testimony.”
[16]
In the court
a quo
an argument was raised that there was
inconsistency in the evidence of the state witnesses with regard to
whether Jongikhaya hit
the deceased with a sword. This is based
on the fact that only Sipho so testified, in his description of the
attack by the
appellants on the deceased. In my view, whether
this was indeed an inconsistency, it would not affect the gist of the
testimony
of the state witness. They all testified the four
appellants assaulted the deceased with dangerous weapons. They
mentioned
spades and sticks. What would be material is that
Jongikhaya did deliver a blow which was part of the continued fatal
assault
on the deceased. When I deal with requirements for
common purpose it will be shown that Jongikhaya’s blow was part
of the assault that led to the death of the deceased.
[17]
Further, reliance was sought to be placed on the submission that the
magistrate ought to have
accepted the evidence of Panama, that the
appellants were standing by and did not assault the deceased. During
the hearing, Mr
Erasmus, who appeared for the appellants, correctly
conceded that the magistrate’s findings in accepting the
evidence of
the state witnesses and rejecting that of the appellants
and their witness was correct.
[18]
I also find no basis to faulter the magistrate’s findings in
that regard. The evidence
by state witnesses is that sustained
assault on the deceased took place at the witness’ homestead,
it continued outside until
daybreak. Panama only arrived
in the morning. How he described what he saw in deceased’s
body is inconsistent
with proven injuries. The magistrate
found, correctly so, that the evidence of the state witnesses
corroborated each other
in material respects. I have no basis
to find that he misdirected himself in any manner. In my view,
he was also correct
in rejecting the appellant’s evidence as
improbable in the circumstances. This is particularly in
relation to them
stating that they pursued a perceived thief
peacefully, took him out in the middle of the night, tried to defend
him when five
men were forcefully taking him. Later, they
watched him being assaulted with sticks. Despite that, his
injuries in
the end are said to include open wounds consistent with
the manner the state witness described the assault by the appellants
on
the deceased.
[19]
As regards sentence, the state had invoked the provisions of the
Minimum Sentences Act.
The prosecutor when putting the charge
stated that the state invoked the provisions of the Act because
“
the
murder was planned or premeditated and all accused acted in
furtherance of common purpose
”
.
The magistrate found the appellants guilty as charged.
In my view, there is no evidence that the murder was
planned or
premeditated. He found that they were following on a recently
stolen machine, as even state witnesses testified
that, that was the
enquiry. He also accepted that the deceased was not known to
the appellants. The facts seem to indicate
that the appellants
just gave a chase. Even though they were armed, it cannot
be concluded that they had planned, prior,
to murder the deceased.
However, the appellants could be convicted for murder in furtherance
of common purpose.
In
S v Mgedezi
1989
(1) SA 687
(A) at 705 (I) to 706 (C)
Stated:
“`In the absence of proof of a prior agreement, accused No 6,
who was not shown to have contributed causally to the
killing or
wounding of the occupants of room 12, can be held liable for those
events, on the basis of the decision in
S
v Safatsa and Others
1988
(1) SA 868
(A), only if certain prerequisites are satisfied. In the first place,
he must have been present at the scene where the violence
was being
committed. Secondly, he must have been aware of the assault on the
inmates of room 12. Thirdly, he must have intended
to make common
cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a
common purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of the others.
Fifthly, he must have
had the requisite
mens rea
;
so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the possibility
of their
being killed and performed his own act of association with
recklessness as to whether or not death was to ensue.”
[20] In
S v Thebus
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) par 49 the
Constitutional Court re-iterated the position with regard to the
doctrine of common purpose.
It
stated:
“
If the
prosecution relies on common purpose, it must prove beyond a
reasonable doubt that each accused had requisite
mens
rea
concerning the unlawful outcome at
the time the offence was committed. That means that he or she
must have intended the criminal
result or must have foreseen the
possibility of the criminal result ensuing and nonetheless actively
associated himself or herself
reckless as to whether the result was
to ensue.”
[21]
The evidence herein established that when the appellants budged into
the house where the deceased
was a guest, they each carried a weapon.
Sinaye
hacked the deceased with a spade on the head. All others
joined- in in the assault. When they were chased away
by the
owner of the house, after dragging a resisting deceased, they
continued assaulting him outside until day break. All
the
appellants therefore had the necessary
mens
rea
to kill the deceased. They
assaulted him mercilessly over a long time.
[22]
The sentence of life imprisonment could therefore only be deviated
on, if the court found that
there were substantial and compelling
circumstances justifying departure from imposing that sentence.
[23]
Section 51(3) (a) of
Criminal Law Amendment Act 105 of 1997
provides:
“
If any court
referred to in subsection (1) or (2) is satisfied that substantial
and compelling circumstances exist which justify
the imposition of a
lesser sentence than the sentence prescribed in those subsections, it
shall enter those circumstances on the
record of the proceedings and
must thereupon impose such lesser sentence …”
The
magistrate did not make a finding that there are substantial and
compelling circumstances justifying him to impose a lesser
sentence.
He also failed to record those circumstances.
[24]
This constitutes misdirection; consequently this court is at liberty
to consider the issue
of sentence afresh.
[25] The
following mitigation factors were placed before the court
a quo;
Xolani was
recorded as a 36 year old male with two girl children aged
seven and three years. The seven year old
is doing grade 5 at
school. His wife was unemployed and lives in Cape Town with the
children. The children receive
child maintenance grant.
He passed grade 9. He was working as a builder in a building
contractor, earning R700.00 per
fortnight. He was suffering
from and was being treated for tuberculosis, at the time. He is
a first offender.
Sinaye was 20 years old. He was
single with one girl child. He was self-employed as a builder
and would get a minimum
of R3 000.00 for each built structure.
He lived with his paternal aunt and her family. Jongikhaya was
23 years
of age. He was single with one year old boy child.
He was doing odd jobs, cutting grass for R150.00 per yard.
He
passed grade 9. He stayed at home looking after the homestead,
whilst his parents and siblings live in Cape Town, where
his father
works. Vuyolwethu was 21 years old. He was single with no
children. He also did odd jobs of cutting
grass and earned
between R150.00 and R400.00 per yard. He lived with his parents
and siblings. Only his father was
doing odd plumbing jobs.
[26]
The aggravating circumstances in this matter on the other hand are
that the appellants took the
law into their own hands. The
courts ought to be seen to be showing their displeasure on such
conduct. The prosecutor
submitted that there is a possibility
that they attacked a wrong person. The deceased was sleeping
unsuspecting, he was not
found with any of the stolen items.
The offence is very serious in that, life that was lost can never be
replaced.
[27] In
S v Malgas
2001 (1) SACR 469
(SCA) at paragraph 24 the court
stated:
“
F. All
factors (other than those set out in D above) traditionally taken
into account in
sentencing (whether or not they diminish moral guilt) thus continue
to play a role; none is excluded at the outset
from consideration in
the sentencing process.
G.
The ultimate impact of all the circumstances relevant to sentencing
must be measured
against the composite yardstick (substantial and
compelling) and must be such as cumulatively to justify a departure
from standardised
response that the legislature has ordained.”
[28]
The prosecutor in the court
a quo
submitted that the fact that
the appellants were young constituted substantial and compelling
reason to deviate from the prescribed
sentence. However,
this loses sight of what was said in
S v Matyityi
2011 (1)
SACR 40
SCA at
para
14. Youthfulness without
explaining what it meant in respect of a particular individual is not
decisive in concluding
whether it constitutes a substantial and
compelling circumstances to deviate from imposing the prescribed
sentence. A
person of 20 years or more
must show
acceptable
evidence that he was immature to such an extent that his immaturity
can operate as a mitigation factor. There has
to be established
clear evidence about his background, education, level of intelligence
and etc.
[29]
Having said that, I do find
ex facie
the record that the
following circumstances, when considered cumulatively, amount to
substantial and compelling circumstances justifying
the imposition of
a lesser sentence than the prescribed minimum sentence:
The
offence itself was an act of a spur of a moment. The appellants
must have been angered by the break in. They are
relatives.
The two are siblings and the other two are their cousins. The
break-in directly affected them. The
three appellants are
relatively young, all in their early twenties. They had never
been away from their locality, except
a brief stint one of them had
in Cape Town. Due to their level of education I would
regard them as not having had exposure
and sufficient social outlook
to enhance their level of maturity. None of the appellants had
a previous conviction.
Xolani, in particular, at 36 years of
age, had never had brushes with the law.
[30]
During the hearing in this court both
counsel submitted that a term of eighteen (18) years imprisonment,
is
not disproportionate in the circumstances of this case. This I
agree to, despite the fact that I had to reconsider the
basis for the
said sentence. Having balanced all the relevant factors,
I am of the view that the offence that involves
tracking down a
person, wake him up and attack him to death calls for such a term of
imprisonment. Despite the misdirection
by the Magistrate the
sentence of eighteen (18) years imprisonment is still appropriate.
(See:
S v Fatyi
2001
(1) SACR 489
SCA at paragraph 7.
In
the result;
1.
The appeal against conviction and sentence
is hereby dismissed.
___________________________
B
Majiki
Judge
of the High Court
I
agree,
MAKAULA J
________________________________
M
MAKAULA
Judge
of the High Court
Counsel
for the applicant : Advocate
H J Erasmus
Instructed
by
: Legal Aid South Africa
King William’s Town Justice
Centre
2
nd
Floor Old Mutual Building
Corner
Cathcart & McLean Street
KING
WILLIAM’S TOWN
Counsel
for the respondent: Advocate
N Tokota
Instructed
by
: The Director of Public
Prosecutions
BHISHO