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[2018] ZAGPJHC 603
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Mvana v S (A93/2018) [2018] ZAGPJHC 603 (2 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER: A93/2018
In
the matter between:
MVANA
LUVUNO APPELLANT
And
THE
STATE RESPONDENT
JUDGMENT
WINDELL,
J:
INTRODUCTION
[1]
The appellant stood accused in the Protea Regional Court on a
charge of murder read with section 51(2) of the Criminal Law
Amendment
Act 105 of 1997 (Count 1); unlawful possession of a
semi-automatic firearm (Count 2); unlawful possession of ammunition
(Count
3) and intimidation (Count 4) .
[2]
He was convicted on all counts and the counts were taken together for
purposes of sentencing. The appellant was sentenced to
life
imprisonment.
[3]
In terms of
section 309(1)(a)
of the
Criminal Procedure Act, 51 of
1977
, the appellant is before this court by way of automatic right of
appeal on both conviction and sentence on the murder charge.
[4]
It is common cause that Christopher Dlamini (“the deceased”)
was killed on 30 September 2015 after he was shot with
a
semi-automatic firearm. The appellant alleged that the deceased was
accidentally shot after a struggle for the firearm ensued
between
himself and the deceased’s brother, Mr Mzwandile Dlamini
(“Dlamini”). The State alleged that the appellant
shot
and killed the deceased and that the murder was premeditated.
[5]
The State’s case is based on circumstantial evidence. It
mainly relied on the evidence of Dlamini whose evidence
was the
following: On 30 September 2015, at around 14h30, Dlamini and the
deceased were inside their house when the appellant arrived
in a
motor vehicle with two men. The appellant was their neighbour. The
appellant entered the kitchen and requested to have a word
with the
deceased in private. The deceased got up and followed the appellant
outside. He noticed the other two men were seated
outside and were
having a drink. Shortly after, the deceased came back to fetch a
bench from the kitchen and said to Dlamini that
‘he was still
having a conversation with the accused outside’. Dlamini
remained inside the kitchen. After approximately
ten minutes he heard
the deceased screaming and calling out the appellant’s name
saying “
how Mvana”.
A shot was fired. He
rushed outside and found the appellant in possession of a firearm, a
‘9 shots’, standing
next to the deceased. The other two
men had also gotten up from where they were seated. The appellant
then pointed the firearm
to him and said “
You want to die
like your brother has just died? Voetsek get back into the house”.
He went back inside the house, locked the door and ran to his
bedroom. He noticed the appellant at the window of the bedroom.
The appellant was pointing the gun at him. He retreated and the
appellant broke the window. He ran to the other bedroom and hid
underneath the bed. The appellant came to the window of this bedroom
and broke it as well. He feared for his life and in the process
wet
himself. He stayed hidden underneath the bed until he heard the sound
of a motor vehicle starting. He peeped through the window
and noticed
the appellant leaving with the motor vehicle in the company of the
other two men. He went outside and noticed that
the deceased had
passed away. He also noticed that the deceased was shot in his chest
close to his heart. The police was called
and photos were taken of
the body, two spilled cartridges found near the body and the broken
windows. Warrant Officer Sithole,
a forensic ballistic expert
was asked to investigate the two fired cartridge cases as both
Dlamini and appellant only recalled
one shot being fired. She was
unable to determine if the cartridge cases were fired, or were not
fired from the same firearm.
[6]
The appellant testified that on the day of the incident he was seated
outside the deceased’s house drinking alcohol with
the
deceased, who was his friend. Dlamini approached them and asked why
he was allowing his brother to drink alcohol. He told Dlamini
that
his brother was old enough to make his own decisions after which
Dlamini took out a firearm from his waist. He managed to
grab hold of
the firearm and a struggle for the firearm ensued. A shot was fired
and it hit the deceased. Dlamini let go of the
firearm and it
remained in the appellants’ possession. Dlamini then ran away.
He dropped the firearm and went to his room.
He confirmed in cross
examination that he did not phone an ambulance or contacted the
police to report the incident. He testified
that he had no problem
with the deceased and denied that he called him on the day of the
incident to have a private word with him.
He also denied breaking the
window and said it was broken long before this incident.
[7]
The court
a
quo
took into consideration that Dlamini was a single witness. It
is trite that the evidence of a single witness should always
be
treated with caution. A conviction will normally follow only if the
evidence is substantially satisfactorily in every material
respect or
if there is corroboration. A court is tasked to consider all the
particular facts of the case to determine whether the
single witness
is credible. The exercise of caution must however not be
allowed to displace the exercise of common sense
[1]
.
The court
a
quo
,
with reference to
S
v Sauls
and
S v
Aartman
,
found that Dlamini was a credible and honest witness and rejected the
appellant’s version as improbable.
[8]
The magistrate stated in his judgment that he had the opportunity to
observe Dlamini during his testimony. He therefore noticed
that he
was visibly shocked when it was put to him that there was a scuffle
between him and the appellant. He also avoided eye
contact with the
appellant when he testified. The magistrate found that Dlamini’s
evidence was not challenged on several
material aspects. He also
found that the appellant was unable to explain why Dlamini, on
the appellant’s version, would
have had an issue with the fact
that the deceased was drinking with the appellant as they had drank
together on numerous occasions
before.
[9]
The appellant testified that it was in fact Dlamini that shot the
deceased and that he did not threaten Dlamini after the incident
or
that he broke any windows. In his judgment the magistrate
specifically made mention of the photos that were taken immediately
after the incident that showed that the windows were broken. This is
a clear indication that Dlamini gave the same version about
the
appellant’s actions and threats after the event to the police,
within hours after the incident, as that he gave in court.
In
my view credence can be found in the photos in that Dlamini did not
fabricate his version later in an attempt to shift the blame
to the
appellant.
[10]
The appellant fled the scene of the murder and was only arrested 17
months later. He left the firearm on the scene and it is
common cause
that the firearm was never found. The appellant was unable to explain
why, if he was innocent, he not reported the
shooting to the police
or why he did not hand in the firearm for safekeeping. This was after
all, on his version, his friend that
was shot and killed. This is not
the behaviour of a person that has nothing to hide.
[11]
The State has to prove beyond reasonable doubt that it was the
appellant who committed the crime. A court may only reject
the
evidence of an accused if it is satisfied that in the light of all
the evidence that their version is so untrue and improbable
that
there is no reasonable possibility of it being true. In analyzing the
judgment and the evidence I am satisfied that the magistrate
had not
misdirected himself and consequently I am not at liberty to interfere
with the court a quo’s finding. The appellant’s
appeal
against the conviction is dismissed.
[12]
The court
a quo
found that the murder was pre-meditated. In
his reasoning the magistrate held that it was pre-meditated because
the appellant did
not assist the deceased after he was shot; that he
ran away to Tembisa; and that he threatened Dlamini the following
day. None
of these reasons justifies a finding of pre-meditated
murder. The State clearly stated at the start of the trial that it
will prove
pre-meditated murder based on the fact that the appellant
arranged the firearm which was used to shoot the deceased with and
thereafter
proceeded to the deceased’s house to commit the
offence. No such evidence was led. The court a quo misdirected itself
in
finding that the murder was pre-meditated.
SENTENCE
[13]
As stated the court
a
quo
misdirected itself in finding that the murder was pre-meditated and
the sentence of life imprisonment must be set aside. The Minimum
Sentences Act
[2]
provides for a
minimum sentence of 15 years for murder.
[14]
A court is compelled to impose the minimum sentence unless
substantial and compelling circumstances exist justifying a lesser
sentence. The legislature had deliberately left it to the courts to
determine whether any circumstances specific to a particular
case are
substantial and compelling enough to warrant a departure from the
prescribed sentences. The court
a quo
did not find any
substantial or compelling circumstances present and counsel for the
appellant was unable to point us to any.
[15]
It is trite that the minimum sentence should not be deviated from for
flimsy reasons
[3]
. In
S
v Dodo
[4]
it was however held that to justify any period of imprisonment
without enquiring into the proportionality of the offence and period
of imprisonment, would be to offend human dignity.
[16]
In the consideration of an appropriate sentence a
court is enjoined to carefully and dispassionately consider and
balance the gravity
of the offenses, the personal circumstances of
the accused and the interests of society. On the other hand the
interests of the
victims are equally relevant and should not be
overlooked.
The appellant is a first offender, is unmarried
and has three children. He was employed at the time of the incident
and earned approximately
R 2000 per month. The court
a quo
found that the appellant killed the deceased in cold blood and that
he showed no remorse. The family of the deceased and the complainant
have been left traumatized.
[17]
Having weighed the mitigating and the aggravating factors I am
of the view that the appellant’s personal circumstances in
light of the specific circumstances of this case do not on their own
or cumulatively amount to compelling and substantial circumstances
which justifies a deviation from the prescribed sentence. Taking into
consideration the spesific facts present in this matter,
I find that
the imposition of the prescribed minimum sentence is not
disproportionate to the offence.
[18]
In the result the following order is made:
[18.1] The appeal against
the conviction on the murder charge is dismissed.
[18.2] The appeal against
sentence is upheld.
[18.3] The sentence of
life imprisonment is set aside and replaced with the following order:
[18.3.1]The charges are
taken together for purposes of sentencing.
[18.3.2] The appellant is
sentenced to fifteen (15) years imprisonment.
[18.3.3] The sentence is
antedated to 16 November 2017.
……………………………………………………
L. WINDELL
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
I
agree and it is so ordered
……………………………………………………
A.P. BEZUIDENHOUT
ACTING JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel
for the Appellant: Advocate A.J. Greyling
Instructed
by: Legal Aid South Africa, Johannesburg
Counsel
for the Respondent: Advocate H.H.P. Mkhari
Instructed
by: Office of the State Attorney, Johannesburg
Date
heard: 30 October 2018
Date
of judgment: 2 November 2018
[1]
S v
Snyman
1968 2 SA 582(A).
[2]
Act 105 of 1997
[3]
S v
Malgas
2001 (1) SACR 25,
[4]
2001 (1)SACR 594 (CC