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[2018] ZAGPJHC 551
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Sithole v S (A295/2006) [2018] ZAGPJHC 551 (21 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION,
JOHANNESBURG)
CASE
NO: A295/2006
In the matter
between:
SITHOLE,
KHULUMAOKUHLE APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
A.
INTRODUCTION
1.
On
19 May 2005, the Appellant was convicted in the Johannesburg High
Court of the following:-
1.1
count
1 – attempted robbery with aggravating circumstances;
1.2
count
2 – attempted murder;
1.3
count
3 – murder;
1.4
count
5 – attempted murder;
1.5
count
6 – attempted murder;
1.6
count
7 – robbery with aggravating circumstances;
1.7
count
8 – unlawful possession of a firearm; and
1.8
count
9 – unlawful possession of ammunition.
Save for counts 1,
8 and 9 aforesaid, the other counts were read with the provisions of
Act 105 of 1997 (“the minimum sentence
legislation”).
2.
On
23 May 2005 the Appellant was sentenced as follows:-
2.1 count 1 –
15 years imprisonment;
2.2 count 2 –
5 years imprisonment;
2.3 count 3 –
life imprisonment;
2.4
count 5
– 5 years imprisonment;
2.5
count 6
– 5 years imprisonment;
2.6
count 7
– 15 years imprisonment;
2.7
count 8
– 5 years imprisonment;
2.8
count 9
– 12 months imprisonment.
It was ordered that the sentences
imposed on counts 5 and 6 run
concurrently. Similarly, that the
sentences imposed on counts 8 and 9 run concurrently.
3. On 13 April 2006 the Appellant was
granted leave to appeal on both conviction and sentence.
4. Accordingly, the matter comes
before us, sitting as a Full Court of Appeal, in respect of both
conviction and sentence.
5. Condonation for the late filing of
the Appellant’s heads of argument was sought and granted.
6. At the outset, this Court had two
concerns namely:
6.1 The fact that the charges as
reflected in the indictment, did not correspond with the Appellant’s
ultimate convictions
and sentences.
See pages 1 –
5
370
500
Notwithstanding this, it was apparent
that this was merely a numerical error on the part of the trial
Court. Both counsel confirmed
same and further, that there was no
prejudice of whatsoever nature to either party arising therefrom.
6.2 The delay of some 12 years in
having this matter enrolled for hearing.
Counsel for the Appellant and
Respondent furnished the Court with written reasons, including an
affidavit. It transpired that the
matter had in fact been set down
for hearing on at least two prior occasions, on which occasions the
matter could not proceed due
to the record having to be reconstructed
and the inability to locate the Appellant, he allegedly having used
different names whilst
incarcerated.
B.
FACTUAL BACKGROUND
7. On 28 September 2003 Mrs June
Motto-Ros (“June”) the mother of the deceased, Ms
Margaret Meyer (“Maggy”)
the deceased’s girlfriend,
and a neighbour Auntie Grace, were having coffee on the patio at
June’s residence in Moffat
View. The deceased was sleeping on
the back seat of his vehicle which was parked outside June’s
residence. It was in the
late afternoon when Maggy decided that she
and the deceased should leave.
She unlocked the vehicle and as she
was about to enter same, a male approached, produced a firearm and
pointed it at her head, demanding
the keys of the vehicle. June, who
was standing with Maggy, grabbed the vehicle keys from Maggy’s
hand and threw them in
to the street, telling the assailant that he
could fetch them once she had managed to get Maggy and the deceased
into her home.
As Maggy was waking up the deceased, advising him of
what was happening, the assailant returned to the vehicle with the
keys. Maggy
quickly entered the vehicle at the driver’s door
and locked same manually, thereby locking all the doors to the
vehicle.
Each door could, however, be unlocked manually from the
inside of the vehicle.
Whilst June was attempting to try and
get the deceased out of the vehicle, several shots were fired by the
assailant and she was
struck by a bullet. The deceased alighted from
the vehicle and was shot by the assailant twice in his chest.
The assailant entered the vehicle at
the driver’s door, opening same with the remote and pushed
Maggy from the driver’s
seat where she was seated to the front
passenger seat, and locked the vehicle. He started fumbling with the
keys in an attempt
to unlock the gear-lock that was affixed to the
gears of the vehicle.
June then screamed to Maggy to open
her door manually, which Maggy did, and the assailant and June
engaged in a “tug of war”
over Maggy. June ultimately
succeeded in pulling Maggy out of the vehicle.
The assailant then reversed the
vehicle down the street, not having succeeded in removing the
gear-lock. June ran after the vehicle,
wanting to kill this person
who had shot her son. The vehicle stopped at an intersection and June
entered same through the door
of the front passenger seat which
Maggie had earlier unlocked, and commenced throttling the assailant.
In the meantime, a Mr Timothy Gaisford
(“Tim”), whose father in law resided in the same street
as June, witnessed what
he believed to be a hijacking, as he was
reversing his vehicle and trailer out of the driveway of his father
in law’s residence.
He rushed inside that residence and pushed
the panic button and then returned to his vehicle. His 7 year old son
was with him in
the vehicle. He saw the deceased’s vehicle
reversing, followed it with his vehicle and purposefully collided his
vehicle
into that of the deceased at the intersection. June, having
seen Tim’s vehicle approaching, had sprung out of the
deceased’s
vehicle prior to the collision.
The assailant exited the deceased’s
vehicle and, a metre away from Tim, commenced firing shots at Tim.
Five of the shots fired
struck Tim and various others struck his
vehicle. Tim shouted to his son to exit the vehicle and run away,
which his son did. The
assailant entered Tim’s vehicle, which
was idling, and drove off. Tim’s vehicle was fitted with an
anti-hijacking device
and was later found abandoned 5 kilometres
away.
C.
AD CONVICTION
8. It is common cause that the only
evidence linking the Appellant to the crimes is the identification of
the Appellant as the perpetrator,
by June and Maggy. Tim was unable
to identify the assailant and was accordingly not called to attend
the subsequent identification
parade.
8.1 It is abundantly evident that both
women had ample opportunity to properly observe the hitherto unknown
assailant on the day
of incident.
Inter alia
, the events
unfolded in the late afternoon of 28 September 2003. It was a clear
day, the sun had not set as yet and visibility
was good. The
aforesaid identifying witnesses were in very close proximity to the
perpetrator at the various stages that the events
unfolded. The
perpetrator wore nothing on his head/face that would hinder a proper
identification of his face.
The identifying witnesses, and in
particular June, did not spend a fleeting moment in the presence of
the perpetrator. Rather, their
interactions with him endured for
several minutes. June, in particular had run after the perpetrator
who was in the process of
reversing the gear-locked robbed vehicle in
count 1, and commenced throttling the perpetrator advising him that
she would identify
him. Maggy, at the stage that the perpetrator had
entered that same vehicle that she had locked herself in and forced
her from
the driver’s seat to the front passenger seat, was
looking directly at him when pleading with him to allow her to exit
the
vehicle.
I have considered what is stated in
the seminal judgment of
S v
Mthethwa
1972 (3) SA 766
(A)
and in the subsequent decisions of the Supreme Court of Appeal on
the issue of identification.
8.2 Less than three weeks later and on
16 October 2003 these witnesses attended an identification parade at
which parade both witnesses
identified the Appellant as the
perpetrator.
8.3 It was admitted at the trial that
the identification parade was properly conducted.
8.3.1 Regarding June’s
identification of the Appellant at the parade, the issue arose that
she had not properly or accurately
identified the Appellant regard
being had to what is recorded on the SAP 329 form that he was the
fifth person pointed out by her
and that she had taken 7 minutes to
do so. This is reflected on page 449 of the record.
8.3.2 Notwithstanding June’s
alleged uncertainty
ex facie
the SAP 329 form, the trial court
accepted her identification of the Appellant as proper in the
circumstances and I have no hesitation
in endorsing same. She
testified and was vigorously cross-examined. Her evidence was that
she was seated in another room and a
one-way mirror/glass separated
her from the suspects on parade. In her calling forward of the four
suspects, she was embarking
on a process of elimination. This was the
first time that she had attended an identification parade and had not
been advised by
any officer as to what to do. She was merely told to
look for the person who she thinks had shot her son. She did not
advise the
officer that she was embarking on this process of
elimination. The Appellant was the fifth suspect she requested to
step forward.
He had been standing with his head lowered, his chin on
his breast. She had requested the officer in the parade room on more
than
one occasion to ask the Appellant to lift his head. He did not.
Ultimately, the officer lifted the Appellant’s head. Upon
the
officer lifting the Appellant’s head, June became hysterical
and started banging on the window stating, “ that
is him, that
is him, that is him,” and proceeded to cry.
8.3.3 June stated that she did not
verbalise her reasons to the officer for eliminating the four
suspects. However she testified
as to why she had eliminated them. It
is regrettable that with the elimination of the first four suspects,
Detective sergeant Du
Plessis, who was in charge of the parade and
who completed the SAP 329 form, did not specify thereon June’s
remarks, namely:
“no, no it is not him” or “not
him, take him away”. He was in hospital at the time the trial
proceeded
and did not testify.
Notwithstanding this, I am of the view
that the trial Court correctly accepted her credible explanation as
to the process of elimination
that she embarked upon. There is
nothing whatsoever to suggest that her identification of the
Appellant reflected any doubt or
uncertainty on her part.
The Appellant’s counsel conceded
that the contradiction he refers to in June’s evidence was
immaterial in nature and
further, that there was nothing
intrinsically wrong with her process of elimination.
8.4 Maggy pointed out only the
Appellant, and in a matter of 45 seconds. She testified that she did
not call the Appellant out immediately
as she wanted to look at the
face of each suspect in order to ensure that her identification of
the Appellant was correct/accurate,
hence the 45 second period before
she called him forward. She, too, had to request, on more than one
occasion, that the Appellant
lift his head.
Counsel for the Appellant conceded
that her description of the perpetrator as skinny and small in build
was subjective and that
there is no evidence or even a suggestion
that she discussed June’s pointing out of the Appellant prior
to her doing so.
The argument that the subsequent
identification of the Appellant by Maggy was coincidental is, in the
circumstances, untenable and
devoid of any merit.
9. A further argument raised was that
the copy of the photograph of the Appellant, allegedly taken at the
time of his arrest,
See Record Vol 7 p 498
reflected that the Appellant had
facial hair and that this contradicted the evidence of both June and
Maggy that the perpetrator
was clean shaven.
The Appellant’s counsel conceded
in argument that having regard to the extremely poor quality of the
copy, coupled with the
shadows and marks reflected thereon, and the
fact that the alleged facial hair on the Appellant’s left cheek
does not reflect
what is on the right cheek, does not support such
argument and involves sheer speculation.
Obviously, if the original photograph
was found and did reflect that the Appellant had a beard and/or
moustache the day following
the incident, there would indeed have
been merit in such argument.
I am of the view that both June and
Maggy were credible and impressive witnesses and that the trial Court
correctly accepted their
evidence and identification and that same
constituted proof beyond reasonable doubt that the Appellant was, in
fact, the perpetrator
of these offences.
10. The Appellant, on the contrary,
was an unimpressive witness, to say the least.
His version was that he was at his
father’s residence on the day of the incident from 10h00 until
18h00, at the request of
his father and assisted his father to clean
the yard. At 18h00 he left to meet his girlfriend. His siblings
reside at this residence
with his father. There were also other
people who rented shacks there in the yard, who would have seen him
leaving his father’s
residence at 18h00. Whilst it is trite
that where an alibi is raised, there is no burden on an accused to
prove his alibi
S v Shabalala
1986 (4) SA 734
(A),
it is surprising that none of these
people were called to corroborate his version and nothing was stated
as to their unavailability.
It was never disputed that he was
arrested at the bar the day after the incident for unlawful
possession of a firearm, yet he denied
this in his evidence, stating
that he had been arrested for drinking in public.
The Appellant was extremely evasive,
contradicted his version in material respects, and his evidence was
so unconvincing that the
trial Court, correctly, rejected same.
D.
AD SENTENCE
11. Counsel for the Appellant, wisely
in my view, did not vigorously pursue the appeal on sentence.
The trial Court properly considered
sentence. This was a careless and brutal series of offences and if
any criticism is to be levelled
thereat, it may be that the
imposition of only 5 years imprisonment for the attempted murder of
Tim, in the circumstances, may
be viewed as startlingly lenient.
The Appellant can further consider
himself fortunate in not having been charged with the attempted
murder of Tim’s son.
The trial Court correctly found no
substantial and compelling circumstances to be present in the
imposition of the 15 years sentence
in respect of the robbery of
Tim’s vehicle and the sentence of life imprisonment for the
murder of the deceased.
ORDER
Accordingly, I am of the view that
there is no merit whatsoever in this matter and that the appeal be
dismissed in respect of both
conviction and sentence.
______________________
KARAM
AJ
ACTING JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I agree.
______________________
JOHNSON
AJ
ACTING JUDGE
OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I
agree and it is so ordered
.
______________________
MSIMEKI J
JUDGE OF THE
HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
COUNSEL FOR
APPELLANT: Adv Robbertse.
INSTRUCTED
BY: Legal Aid SA.
COUNSEL FOR
RESPONDENT : Adv Makua.
INSTRUCTED
BY: DPP GLD.
DATE
OF HEARING: 3 September 2018
DATE
OF JUDGMENT: