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[2018] ZAFSHC 64
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Radebe and Others v S (A227/2012) [2018] ZAFSHC 64; 2019 (1) SACR 565 (FB) (24 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES
Of
Interest to other Judges: YES
Circulate
to Magistrates: NO
Appeal
number: A227/2012
In
the Appeal between:
CHEMANE
PIET
RADEBE
1
st
Appellant
PITSO
JEREMIAH
MATHABATHE
2
nd
Appellant
THABO
PHILLIP
MOKOENA
3
rd
Appellant
JOSEPH
SEUN
SELEPE
4
th
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, ADJP
et
REINDERS, J
et
ZIETSMAN,
AJ
HEARD
ON:
21
MAY 2018
JUDGMENT
BY:
LEKALE, ADJP
DELIVERED
ON:
24
MAY 2018
SUMMARY:
Criminal law and Procedure – Unfair and impermissible to
convict an accused person of a charge never put to him and
not
competent, as a verdict, on a charge preferred against him -
Common purpose to commit assault not established where
the accused
did not make common cause with perpetrators by actively associating
with them – Effective sentences too harsh
where the accused
were motivated by genuine belief that they were acting in the
interests of the society – Convictions on
assault GBH set aside
and effective sentences reduced.
[1]
The four appellants, who were all legally represented, were arraigned
before a single judge in this division together with some
two other
accused and were, on 13 June 2012 convicted of housebreaking with
intent to murder and murder as count 1 and public violence
as count
5. Appellants 1, 2 and 4 were, further, convicted of kidnapping
as count 2, two counts of assault with intent to
cause grievous
bodily harm (assault GBH) as counts 3 and 4 after the two other
accused were discharged at the close of the State’s
case.
On 14 June 2012 the first, second and fourth appellants were
sentenced to 25 years imprisonment on counts 1 and 2 taken
together,
five years imprisonment on counts 3 and 4 also taken together for
sentence purposes and 10 years imprisonment on the
public violence
count. Some of the sentences were directed to run concurrently
with the effect that they
were each sentenced to
effective 30 years imprisonment. The third appellant, on his
part, was sentenced to an effective 20
years imprisonment after he
was sentenced to 20 years on the murder count and 10 years on the
public violence count which were
directed to run concurrently.
[2]
The appellants feel aggrieved by the convictions on count 4 and the
sentences on all counts. They now approach us on appeal
against
the same with leave of the trial court.
[3]
On returning the guilty verdicts relating to assault GBH on count 4
as opposed to common assault as the preferred
charge the
trial court found that
“
maar
ten aansien van daardie aanklag en aanklag 4 is hierdie hof van
mening dat gevaarlike wapens gebruik was, ‘n panga en
‘n
bottel bier. En die hof in belang van reg en geregtigheid is
van mening dat die gebruik van daardie tipe voorwerpe
die opset
aandui om ernstig te beseer.”
[4]
On finding cause to deviate from
life
imprisonment as the prescribed minimum sentence for murder in the
circumstances of the instant matter the trial court took
into
consideration the very close relationship the appellants had with one
Mbangiso who was killed by the victim of murder
in
casu
,
incitement from and moral decline on the part of the community
leading the appellants to feel like heroes in their dastardly deeds
as well as the fact that some of the appellants consumed some
alcoholic beverages before participating in the unlawful activities.
[5]
In argument on papers and before us, Mr Nel,
inter
alia
,
submits to the effect that the totality of evidence before the trial
court did not implicate the appellants on count 4 and, further,
that
in any event the court
a
quo
erred in convicting the appellants of assault GBH when they were
indicted for common assault on the relevant count. The
sentences on count 1 should be 18 years and 15 years respectively
while the sentences imposed for counts 2 to and including 5 should
run concurrently with the sentences on count 1.
[6]
On its part the State, through Ms Moroka initially stood by the heads
filed by her colleague Advocate Bester and,
inter
alia
,
conceded that the appellants were guilty of common assault on count 4
and not assault GBH insofar as the latter is not a competent
verdict
on the former charge. In argument before us she correctly
conceded that there was no evidence whatsoever before the
trial court
to show that any of the appellants made common cause with the
attackers on count 4. Some may have been present but
there was no
evidence to prove that they associated themselves actively with the
actual perpetrators. On the sentences Ms Moroka
correctly and
laudably conceded that the sentences imposed are too harsh regard
being had to the factors found by the trial court
as justifying a
departure from the ultimate sentence prescribed for murder in the
instant matter.
[7]
It is correct that in line with the our criminal justice system only
verdicts that are competent on the charge preferred against
the
accused can be returned if the evidence before the court establishes
the same as opposed to the preferred charge. (See
Section
267 of
Criminal Procedure Act 51 of 1977
and
S
v F
1975 (3) SA 167
(T)).
[8]
It is, further, correct that the powers of a court of appeal are
limited when it comes to sentences insofar as it can only interfere
with the same if the sentencing court did not exercise its discretion
properly or at all by failing to strike a healthy balance
between the
Zinn
-triad.
(See
S
v Pieters
1987 (3) SA 717
(A)).
[9]
The parties are correctly in agreement that the trial court erred in
returning guilty verdicts on assault GBH on count 4 as
opposed to
common assault which was the preferred charge to which they pleaded.
They never faced the risk of being convicted of
assault GBH on the
relevant count and were, as such, not on their guard in that regard.
It was simply not fair to convict them
of the charge they never
faced.
[10]
The parties are, correctly
ad
idem
before
us that the recorded evidence before the trial do not establish the
guilt of appellants 1, 2 and 4 on count 4.
The State
relied on common purpose in its case against the appellants.
It, as such, had to show beyond reasonable doubt not
only the
presence of the appellants when the crime was committed but also that
they acted through the actual perpetrators in that
they made common
cause with them by associating themselves actively with their acts
and omissions. (See
S
v Mgedezi
1989 (1) SA 687
(A)).
[11]
There was no evidence whatsoever before the trial court to show that
all the relevant appellants were present when the victim
was
assaulted or aware of and associated themselves with the assault on
her by showing solidarity with the perpetrators when the
assault took
place.
[12]
Direct evidence in support of count 4 was to the effect that on the
fateful morning after sunrise the complainant was sitting
around the
fire outside with,
inter
alia
,
the deceased on count 1 when a group of male persons showed up.
The deceased ran away and the group chased after him.
She could
identify accused 1 before the trial court as well as the second
appellant among the group. The group later returned
that night
and she saw the second appellant again. The deceased entered
the house shortly before the group could arrive.
There was a
knock at the door but they declined to open the door. A window
was broken whereafter they opened the door.
One Thabo, who was
not before the trial court, entered together with others and
proceeded to slab her in the face where she was
sitting next to the
heater. The group thereafter took one Ndade from the bedroom
and left the house with him. She was
also dragged out of the
house. She broke loose, ran into the bedroom and hid behind the
wardrobe. The first appellant
kicked the door open and
proceeded to lift the mattress from the bed, whereafter, he called
out to others to come as he had found
the deceased. They took
the deceased out of the bedroom leaving Thabo and accused 1 behind
but they also eventually left
shouting and accusing her of hiding
furtively in the room. She was also hit with a beer bottle by
someone who she believes
the first appellant should have seen as she
was standing next to him when she was assaulted. The deceased
was eventually
placed on a burning tyre and killed against the songs
and ululations of members of the community who appreciated what the
culprits
were doing.
[13]
It is not permissible to convict an accused of a charge more serious
than the one preferred against him by the State regard
being had to
the need to advise the accused adequately of the allegations against
him in order to enable him to prepare fully and
properly for the
trial. To do so is to prejudice them and to fly in the face of
the rule of law. The position is different
where it was not
possible to prefer more serious charges before such as where the
assault victim dies after the fact of a conviction
and the State
decides to bring murder charges against the accused on the same
factual matrix after the conclusion of the assault
trial. (See
Lelaka
v The State
[2015] ZASCA 169).
[15]
Relative youthfulness of the accused plays a significant role in the
determination of appropriate sentence and the sentencing
court is
generally obliged to ensure that it has all the relevant information
to assist in that regard. (See
Calvin
v The State
[2014] ZASCA 145
and
S
v Mabuza & Others
2009 (2) SACR 435
(SCA)) where the court held that youthfulness
entitles an accused person to human dignity of being considered
capable of redemption.
[16]
No pre-sentencing reports served before the trial court although some
of the accused were relatively young with the second
appellant being
19 years of age at the time he was sentenced. The trial court
found no reason to differentiate between first,
second and third
appellants for sentence purposes. In this regard the trial
judge specifically found that the second appellant
was already a
major at 18 years of age.
[17]
I am persuaded by the material properly before the trail court that
the appellants are not inherently wicked and that, as correctly
found
by the court
a
quo
,
were largely influenced by the community and thought that they were
actually serving the interests of the community when they
committed
the relevant crimes. Indeed they acted unlawfully and the trial
court was correct in expressing its disapproval
of their conduct by
imposing long term custodial sentences. I am, however, of the
view that the sentences so imposed are
out of proportion with the
personal circumstances of the appellants, the interests of society
and the crimes themselves and do
not, as such, strike a healthy
balance between the
Zinn-
triad. It was common cause before the trial court that the
community had lost confidence and trust in the police and the
appellants regarded themselves as heroes in the sense that they were
protecting the community. The appellants’ immediate
community
supported their actions and actually urged them on in their deeds.
[18]
Mr Nel is, therefore, correct in his submissions that 18 years in
respect of the first, second and fourth appellants would
be
appropriate while 15 years would be appropriate in respect of the
third appellant as effective custodial sentences.
ORDER
[19]
In the result the appeals against the convictions on count 4 as well
as against sentences succeed.
[20]
The convictions on count 4 are therefore set aside and so are the
sentences imposed on the first, second and fourth appellants
in
relation thereto.
[21]
The sentences imposed on the first, second and fourth appellants in
respect of counts 1 and 2 are set aside and in their place
and stead
are substituted 18 years imprisonment.
[22]
The sentences imposed on the first, second and fourth appellants in
respect of count 3 are set aside and in their place and
stead are
substituted 3 years imprisonment.
[23]
The sentences imposed on the first, second, third and fourth
appellants in respect of count 5 are set aside and in their place
and
stead are substituted five years imprisonment.
[24]
The sentence imposed on the third appellant in respect of count 1 is
set aside and in its place and stead is substituted 15
years
imprisonment.
[25]
The sentences are al directed to run concurrently with the effect
that first, second and fourth appellants shall serve an effective
18
years in prison while the third appellant shall serve 15 years
imprisonment.
[26]
The sentences are antedated to run from the 14 June 2012.
________________
LJ
LEKALE, ADJP
I
agree
________________
C REINDERS, J
I
concur
________________
P ZIETSMAN, AJ
On
behalf of appellant:
Adv. PW Nel
Instructed
by:
Legal Aid SA Bloemfontein Office
Bloemfontein
On
behalf of respondent: Ms MMM Moroka
Instructed
by:
Director of Public Prosecutions
Bloemfontein