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[2018] ZAGPJHC 643
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Matsoka and Others v S (A118/2018) [2018] ZAGPJHC 643 (12 November 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A118/2018
In
the matter between:
MATSOKA,
SELLO
First
appellant
MOYO,
NICHOLAS
Second
Appellant
MAFUTA,
TEBELLO
T
hird
Appellant
and
THE
STATE
Respondent
J U D G M E N T
MAIER-FRAWLEY
AJ:
1.
The appellants were each indicted in the
regional court, presiding at Newlands, on one count of murder. The
State averred that on
9 February 2014 and at or near Riverlea, the
appellants unlawfully and intentionally killed Sipho Mthetwa (‘the
deceased’)
by hitting him with bricks and sticks, acting
directly or in common purpose.
2.
The appellants were warned of the
statutorily prescribed minimum sentence that could be imposed upon
conviction, as envisaged in
section 51(1) of the Criminal Law
Amendment Act, 105 of 1997 (‘CLAA’).
3.
The appellants were legally represented
during their trial. They pleaded not guilty to the offence and
offered no plea explanation.
4.
The appellants however made certain
admissions, which were recorded in terms of section 220 of the
Criminal Procedure Act, 51 of
1997, amongst others, that the deceased
died as a result of blunt force injuries that he sustained in the
incident on 9 February
2014. It was not disputed that the deceased
was attacked by an armed group of men who hit him with sticks or that
the deceased
was trampled on and stoned with bricks and that he died
as a result of various injuries inflicted on his person as a result
thereof.
5.
Each of the appellants’ denied that
they were at the scene of the incident or that they participated in
the commission of
the offence on the night in question. In the
result, the trial turned primarily on the question of the identity of
the perpetrators
involved in the assault.
6.
The trial court convicted the appellants as
charged and sentenced each one to 12 years imprisonment. In addition,
all the appellants
were declared unfit to possess a firearm in terms
of
section 103(1)
of the
Firearms Control Act 60 of 2000
.
7.
The appellants’ appeal to this court
against both their conviction and sentence, with leave of the court a
quo.
8.
At
the trial, the state relied principally on the evidence of a single
eye-witness, the complainant, Ms. Daneu Modisi.
[1]
Conviction
9.
Briefly,
the State’s case was the following: On the night of the
incident the complainant was at her house in Zamambilo Informal
Settlement, Riverlea (“Zamambilo’), when she heard the
deceased screaming words to the effect that he was dying. The
screams
were coming from outside the house. She went towards the outside and
saw a group of about 18 men attacking the deceased
with sticks and
bricks and trampling on him whilst he was laying on the ground. A
brick was also placed on the deceased’s
neck. She observed the
incident for about 30 minutes whilst standing in a passage located
approximately 5 metres away from the
scene. Amongst this group, the
complainant was able to identify five men. Her evidence suggests that
her attention was drawn to
those
[2]
whom she was able to recognise from within the group.
[3]
The area was sufficiently lit by means of a light that shone from a
nearby Spaza shop situated about 6 metres away from the scene
of the
incident.
10.
The complainant knew each of the
appellants by sight prior to the incident. She saw them frequently,
as they lived in the same area
as the complainant in Zamambilo. More
specifically, she had known the first appellant for a period of two
to three months prior
to the incident. She would see him about twice
a week in the street and he would refer to her as ‘sister’
in greeting,
as they both hailed from Lesotho. The complainant knew
the second appellant for about a year prior to the incident, during
which
time she saw him frequently in the area. He used to live in the
same area as the complainant at Zamambilo before moving. The third
appellant resided in the same area as the complainant ‘for a
long time’ and she also saw him often in the street.
11.
The complainant testified that she saw
each of the appellants participating in the assault. She was able to
recount the role that
each appellant had played in the incident. For
example, she narrated that the first and second appellants were
carrying bricks
and that they stoned the deceased and trampled on him
whilst he was on the ground. The third appellant struck the deceased
many
times with a stick and a radio which he was carrying. This
ensued amidst the agonising cries of the deceased.
12.
The
first appellant conceded, when testifying, that he knew both the
complainant and deceased. He knew the complainant both by sight
and
by name. He referred to the complainant as ‘Sis Denau’
when testifying in his defence. As such, the complainant
was not
mistaken about his identity, rather, he suggested during his
testimony that she was lying about his presence at the scene
as well
as his participation in the incident.
[4]
The first appellant did not rely on an alibi defence.
13.
When testifying in their defence, the
second and third appellant’s confirmed that they knew both the
complainant and the deceased
prior to the incident. The second
appellant would see them at the dwellings in the informal settlement
whilst the third appellant
had known them since 2011.
14.
As
pointed out in
R
v Dladla and others,
[5]
one
of the factors which carries great importance in the case of
identification, is the witness’s previous knowledge of the
person sought to be identified. If the witness knows the person well
or has seen him frequently before, the probability that his
or her
identification will be accurate, is substantially increased.
15.
The
central issue requiring determination in the appeal is whether the
trial court erred in finding that the identity of the appellants
was
proven beyond a reasonable doubt, and, on the alibi defence, that the
alibi was false beyond a reasonable doubt.
All
the
evidence must be considered. See
S
v Van Der Meyden.
[6]
16.
In my view, the trial court correctly evaluated the evidence
on the basis propounded in
Van Der Meyden supra.
The
learned magistrate, in a detailed judgment, carefully analysed the
evidence of
all
the witnesses
and left none of the material evidence
out of account.
17.
The
trial court found the complainant to be a credible, honest and
reliable witness, whose testimony appeared to be truthful ‘beyond
the slightest shred of doubt.’
[7]
Proper regard was also had to the fact that it had not been suggested
on behalf of the appellants during cross-examination of the
complainant that she was misleading the court or that she was giving
false evidence or that she had a motive falsely to implicate
the
appellants.
There
were, in my view, no material contradictions or inconsistencies in
her evidence. She stood steadfast on the essential aspects
of her
evidence against the appellants and h
er
evidence regarding the identity of the assailants was clear and
unwavering.
18.
The Supreme Court of Appeal held as
follows in
S v Pistorius
2014(2)
SACR 315 (SCA) para 30:
“
It
is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and
slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo and Another
1948
(2) SA 677
(A)
at 706;
S
v Kebana
[2010]
1 All SA 310
(SCA)
para 12. As the saying goes, he was steeped in the atmosphere of the
trial. Absent any positive finding that he was
wrong, this court is
not at liberty to interfere with his findings.”
19.
The
trial court found, correctly so my view, that the complainant’s
identification of the appellants was reliable and sound
[8]
and that her evidence was clear and satisfactory in all material
respects. In so doing, it evaluated her evidence, as a single
witness, with the necessary caution as it was enjoined to do. See:
S
v Mthetwa.
[9]
20.
As regards the alibis of the second and
third appellants, the second appellant testified that he was at his
rented accommodation
in Braam Fisher on the day of the incident,
watching television, and that his landlord was present. The third
appellant testified
that he was at home on the date of the incident,
doing laundry with one, ‘Dahesh,’ who lived with him in a
dwelling
in the informal settlement.
21.
The
alibi defence relied on by the second and third appellants, was
disclosed for the first time during the presentation of the
defence
cases.
[10]
In
Thebus
and another v S,
[11]
the Constitutional Court affirmed the rule of evidence that the late
disclosure of an alibi defence affects the weight to be placed
on the
evidence supporting the alibi. In my view, the trial court was
correct in not placing credence on the alibi evidence in
the light of
the totality of the evidence presented at the trial.
[12]
The trial court concluded that there was no reasonable
possibility that the complainant’s identification could be
mistaken vis-a-vis the second and third appellants;
[13]
that her identification of all three appellants was beyond reproach
and that her evidence was reliable and compelling. At the end
of the
day, the undisputed evidence was that the complainant stood and
watched how the appellants and other assailants beat the
deceased to
the point of death amidst his pleading cries that they were killing
him.
22.
The
trial court correctly considered the probabilities against the facts
of the case in concluding that the state had proven the
guilt of the
appellants beyond a reasonable doubt. In this regard, see:
S
v Chabalala
2003
(1) SACR 134
(SCA) at para 15
[14]
and
S
v Phallo
&
Others
1999(2)
SACR 558 (SCA) at 562, para 10.
[15]
23.
Having regard to the aforegoing, I am
satisfied that the appellants have been correctly convicted and I
would recommend that the
appeal against conviction be dismissed.
Sentence
24.
The
imposition of sentence is pre-eminently a matter falling within the
discretion of the trial court and a court of appeal will
only
interfere with that exercise of discretion where it is convincingly
shown that it has not been properly or judicially exercised
[16]
or where the sentence is vitiated by irregularity or misdirection or
is disturbingly inappropriate.
[17]
25.
The
learned magistrate carefully considered all relevant factors in
deciding on sentence, as foreshadowed in
S
v Zinn.
[18]
The offence with which the appellants were convicted carried a
minimum statutorily prescribed sentence of life imprisonment in
terms
of
section 51(1)
of the CLAA.
26.
The trial court, however, found that
there were substantial and compelling circumstances that justified
the imposition of a lesser
sentence than the prescribed minimum
sentence.
Inter alia,
the
trial court considered that long term imprisonment would have
exceedingly adverse effects on the appellants, who were first
offenders and that the likelihood was strong that the minimum
sentence, if imposed, would serve to destroy the appellants. The
trial court also considered the fact that the appellants had spent a
period of 2 years in custody before they were sentenced.
27.
In
S v
Malgas,
at para 22,the SCA reasoned
as follows:
“…
The
greater sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that it
may be
perpetrating an injustice. Once the court reaches the point where
unease has hardened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust or, as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
that the result of a
consideration of the circumstances the court is entitled to
characterise them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.”
28.
A healthy dose of mercy was factored
into the sentences, considering the brutality of the murder of the
deceased, and the utter
havoc that it wreaked upon the lives of his
dependants, including the complainant.
29.
It cannot be said that the learned
magistrate misdirected himself in any shape, form or manner or that
the sentence is disturbingly
inappropriate, such that it would
justify this court in interfering therewith.
30.
Accordingly, the appeal against sentence
should also be dismissed.
_________________
MAIER-FRAWLEY
AJ
I
agree:
_________________
FISHER
J
Date
of hearing: 25 October 2018
Judgment
delivered: 12 November 2018
APPEARANCES:
Counsel
for Appellants: Mr. A. Mavatha
Attorneys
for Applicant: Johannesburg Justice Centre.
Counsel
for Respondent: Mr. M. Mashego
c/o
Office of the Director of Public Prosecutions
Gauteng
Local Division
[1]
Ms.
Modisi and the deceased were
life partners. The deceased was the father of their minor children.
[2]
The
men whom she was able to identify by sight from amongst the mob of
attackers included the three appellants.
[3]
Or stated differently, the complainant recognised those who were
known to her amongst the group.
[4]
The first appellant contended that the complainant was lying because
she was ‘looking down on him’ and taking him
‘for
granted,’ although there had never been any friction between
them prior to the incident.
[5]
1962 (1) SA 307
(A) at 310C.
[6]
1999(1) SACR 447 (W) at 449J-450B, where the following was said:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and
the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which
is appropriate to the application of that test in any particular
case will depend on the nature of the evidence which the
court has
before it. 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 the 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 simply be ignored.
’
[7]
On a holistic approach, it cannot be said that the trial court was
wrong in this regard.
[8]
The
complainant
had
ample opportunity to observe the assailants of the deceased over a
30 minute period of observation, in which regard, see:
S
v Mehlape
1963
(2) SA 29
(A). She identified the assailants, not only because she
knew them but because she could see what they doing. The scene of
the
incident was sufficiently lit. And the complainant was standing
in close proximity to the scene. She was able to visualise what
each
assailant did during the course of the assault. It differed from
person to person. The probability that her identification
was
accurate was enhanced by her knowing the appellants prior to the
incident.
[9]
1972 (3) SA 766
(A) at 768A-C. See too:
Sv
Charzen and Another
2006
(2) SACR 143
(SCA at para 11.
[10]
As
regards the alibi witness called by the second appellant, such
witness could not account for the second appellant’s
whereabouts during the critical time at which the incident occurred
on that fateful night. The learned magistrate found the evidence
of
the third appellant’s alibi witness to be unimpressive in
certain respects, correctly so, in my view. In his judgment,
the
learned magistrate pointed to instances where the witness had
tendered confusing and contradictory evidence on critical aspects,
such that it could not be said to be supportive or corroborative of
the third appellant’s version, and thereby lacking
in
credence.
[11]
[2003] ZACC 12
;
2003
(6) SA 505
(CC) at para
[65]
. At para [68] the following was said:
“
The
failure to disclose an alibi timeoulsy is therefore not a neutral
factor. It may have consequences and can legitimately be
taken into
account in evaluating the evidence as a whole. In deciding what, if
any, those consequences are, it is relevant to
have regard to the
evidence of the accused, taken together with any explanation offered
by him or her for failing to disclose
the alibi timeously within the
factual context of the evidence as a whole.”
[12]
See fn 10 above.
[13]
As indicated earlier, the first appellant did not rely on ‘mistaken’
identity.
[14]
In
Chabalala,
the following was said: “
The
trial court's approach to the case was, however, holistic and in
this it was undoubtedly right: S v Van Aswegen
2001
(2) SACR 97
(SCA).
The correct approach is to weigh up all the elements which point
towards the guilt of the accused against all those which
are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities
on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused's guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such
as the
failure to call a material witness concerning an identity parade)
was decisive but that can only be an ex post
facto determination and a trial court (and counsel) should
avoid the temptation to latch on to one (apparently) obvious aspect
without assessing it in the context of the full picture presented in
evidence...
[15]
In
Phallo,
the following was said: “…
In
our law, the classic decision is that of Malan JA in R v Mlambo
1957
(4) SA 727
(A).
The
learned Judge deals, at 737F-H, with an argument (popular at the Bar
then) that proof beyond reasonable doubt requires the
prosecution to
eliminate every hypothesis
which
is inconsistent
with
the accused's guilt or which, as it is also expressed, is consistent
with his innocence.
’
Malan
JA rejected this approach, preferring to adhere to the approach
which
'at
one time found almost universal favour and which has served the
purpose so successfully for generations'
(at
738A). This approach was then formulated by the learned Judge as
follows (at 738A- C):
'In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such
a high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has
committed the crime
charged. He must, in other words, be morally certain of the guilt of
the accused
.
’…”
(own
emphasis)
[16]
See:
S
v Blank
1995 (1) SACR 62
(A) at p.65.See too:
S
v Malgas
2001 (1) SACR 461
(SCA).
[17]
See:
S
v Rabie
1975
(4) SA 855
(A) at 875 D-F;
See
S
v Rabie
1975
(3) SA 855
at 857 and
S
v Sadler
2000 (1) SACR 331
SCA;
S
v Kgosimore
1999 (2) SACR 28
SCA.
[18]
1969 (2) SA 537
(A).