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[2018] ZAFSHC 113
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Tatz v S (A272/2017) [2018] ZAFSHC 113 (5 July 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE
DIVISION, BLOEMFONTEIN
Appeal
Case No:
A272/2017
In
the appeal between:
TSHWANELO
TATZ
and
THE STATE
Appellant
Respondent
CORAM:
RAMPAI J, MOLITSOANE J, et NULLIAH, AJ
JUDGMENT
BY: NULLIAH AJ
HEARD
ON: 26 FEBRUARY 2018
DELIVERED
ON: 5 JULY 2018
[1]
These are appeal proceedings. The appellant, in the court a quo, was
convicted and sentenced on a charge of robbery with aggravating
circumstances and murder. He was tried with Mr. Lebohang Mosia. The
latter is not before us on appeal. He was aggrieved by his
convictions and sentences – hence the appeal. He comes on
appeal with leave of the trial court.
[2]
The appeal against both of the convictions is premised on the grounds
that the trial court erred in the following respects:
Firstly,
by failing to approach the evidence of Mr Lipholo, the accomplice,
with the necessary caution; secondly, by failing to
treat the
evidence of the same witness with caution seeing that he was a single
witness; thirdly, by rejecting the version of the
appellant, which
version was reasonably true and fourthly and lastly, by finding that
the respondent had proved its case against
the appellant beyond a
reasonable doubt.
[3]
The late Taole Hosea Masienyane, hereinafter, referred to as the
deceased, was employed by his brother in Bloemfontein as a
taxi
driver. He was on duty in the city during the night of 27
th
November 2015. The next morning he was reported missing.
The taxi was traced by the crew of Netstar at Meloding, Virginia
later the same morning. The trackers and the police spotted the taxi
in the vicinity of a certain service station where the seller,
in
other words the accomplice, and the prospective buyer of the taxi,
one Mr Naidoo, had arranged to meet. When the occupants
of the
taxi saw the police, the taxi sped away. The police and the trackers
pursued the fugitive taxi and forced it to stop.
[4]
There were four occupants found in the taxi. Among them were
the appellant and Mr Lipholo. The victim was not one of the
occupants. The four suspects were apprehended by the police
with the aid of the trackers. The police searched the suspects.
One
cellular phone was found in the possession of the appellant another
in the possession of Mr Mosia. The two phones were later
positively
identified as that of the victim and his employer. At the time the
suspects were arrested, the taxi was driven by the
accomplice, Mr
Lipholo.
[5]
The suspects were questioned about the whereabouts of the victim.
Acting on the strength of the information they obtained from
the
accomplice, the police proceeded to Farm Pitsalong district
Koffiefontein. There the victim was found floating in the river,
his
upper limbs were handcuffed. He was already dead when found.
[6]
Initially the three gentlemen, Mr Lipholo, Mr Mosia and Mr Tatz, were
jointly charged. However, they were not jointly prosecuted
seeing
that Mr Lipholo pleaded guilty whereas his two co-accused pleaded not
guilty. In view of the pleading patterns, the trials
were separated
in terms of section 157 of the Criminal Procedure Act, Act No 51 of
1977. Mr Lipholo was subsequently convicted
on his plea and
sentenced.
[7]
In a separate trial of the appellant and Mr Mosia, Mr Lipholo
testified against them. In brief his testimony was as follows:
One
Mr Naidoo propositioned him to procure a motor vehicle for someone.
The prospective purchaser was prepared to pay R30 000.
The
understanding was that he would have to steal a car. Following that
agreement to steal, he proceeded from Virginia to Bloemfontein
on 27
November 2015. He whiled away time at Pitseng Tavern. He told the
appellant and his co-accused about his mission. He did
not thereby
recruit them. He decided to go to the Tourism Centre for the purpose
of executing the stealing plan.
[8]
On their own accord, the appellant and his companion volunteered to
go with him. On their arrival the appellant identified a
taxi. They
approached the taxi driver under the pretext that they wanted to be
taxied to Kellysview on the western outskirts of
the city. On the way
they turned against the victim, overpowered him, handcuffed him,
dispossessed him of the taxi, placed him
in the boot of the taxi,
took control of the taxi and drove away. On the way the appellant
mooted out the idea that the victim
be killed in order to permanently
silence him. He was against the idea. They ultimately stopped at a
secluded spot on the farm
Pitsalong district Koffiefontein. There the
appellant and Mr Mosia took the victim out of the car. Instead of
releasing him they
marched him on a lonely footpath down to the
river. He was still handcuffed.
He
remained behind in the car.
[9]
Upon their return from the river to the car, he established from them
that they had thrown the victim into the river at the
weir. He
confirmed that he realized that his companions had intended throwing
the victim into the river and that he appreciated
that the victim
would inevitably drown.
[10]
He testified further that they then drove from Koffiefontein to
Virginia in order to meet one Naidoo and to deliver the car
to him.
At Virginia he drove around in search of Mr Naidoo. All along the
accused were with him. They were arrested at Virginia
before they met
the Mr Naidoo. He voluntarily accounted to the police how the
incident unfolded. He was aware that cellular
phones were
handed in at the police station but he was uncertain as to whom they
belonged.
[11]
The appellant denied the above account given by the accomplice. He
specifically denied the allegations that the witness knew
him; that
he accompanied the witness to the Tourism Centre; that he
participated in the” hijacking” of the victim there;
that
he travelled in the same car with the victim to Koffiefontein; that
he came up with the idea that the victim be killed; that
he
participated in the actual throwing of the victim into the river;
that he travelled from Koffiefontein to Virginia with the
accused. In
short he strongly denied any involvement in the entire episode.
[12]
He asserted that he met the witness, Mr Lipholo, at Pitseng Tavern on
the night in question; that they were strangers to each
other;
that he was employed at the particular tavern; that he asked the
witness to give him a lift because he was going to
Welkom; that they
left Bloemfontein at or about 03h00 on 28 November 2015; that they
arrived at Virginia at or about 07h00; that
they spent some time at
Virginia with the witness because the witness was looking for someone
before he could take them to Welkom;
that they were arrested at
Virginia and that a Nokia Hasha cellular phone was found in his
possession by the police; that he picked
such phone up in the
witness’s car, a white Renault Sandero.
[13]
The following facts appear to me to be common cause:
13.1 That the victim was
robbed of the motor vehicle;
13.2
That he was found floating in the Riet River on the farm Pitsalong
district Koffiefontein the next day;
13.3 That fairly shortly
after the victim had been robbed and thrown into the river, the
appellant, the witness, Mr Lipholo, were
apprehended together with
two other suspects at Meloding Virginia; That they were all occupants
of the taxi, the victim was using
before he went missing and
13.4
That the appellant was found in possession of a cellular phone
(exhibit 2) belonging to the victim.
[14]
The dominant and central core of the grounds of appeal indicates that
the issue on appeal was whether the version of the appellant
was
reasonably true or not. On the one hand Mr Nel, counsel for the
appellant, urged us to determine the issue in favour of the
appellant. On the other hand Ms Moroka, counsel for the respondent,
implored us to determine the issue in favour of the respondent.
[15]
It is a well-established principle that the onus is on the state to
prove the guilt of an accused beyond a reasonable doubt.
It is also
accepted that there exists no burden on the accused to prove his
innocence. The version of the accused only has to be
reasonably true
or possibly true - as some would prefer to say.
[
S v V
2000(1) SACR 453 (SCA);
see also
S
v Van den Meyden
1999 (10) SACR 447
(W)]
[16]
In arriving at its conclusion, it is accepted that
“
[t]he
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 the 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”
(
S v Chabalala
2003(1) SACR(134(SCA)
at
139
i- j
[17]
In attacking the finding of the court
a quo
it
was contended on behalf of the appellant that the trial court failed
to approach the evidence of Lipholo, who was both a single
witness
and an accomplice with the necessary caution regarding the robbery
and murder.
[18]
A conviction may follow on the evidence of a single competent
witness. Such evidence should, however, be approached with caution.[
See
Stevens
v S
2005[1] All SA
1 (SCA); S v Sauls and others 1981(3) SA 172(A) at 180E-G].
[19]
As alluded to above, the evidence of Lipholo had to be approached
with caution not only because he was a single witness but
also
because he was an accomplice inextricably involved in the commission
of these offences.
[20]
The trial judge’s evaluation of the evidence indicates that she
was alive to the fact that the witness, MrLipholo, was
a single
witness to the commission of the crimes and that she was further
alive to the applicable cautionary rule. The record also
clearly
shows that the trial court scrutinised Lipholo’s evidence with
utmost caution seeing that he was also an accomplice
in the execution
of the offences. It is also patent that the trial court was indeed
sentient to the fact that an accomplice may
be predisposed to
fashioning his evidence to suit his purpose.
[21]
In considering the reliability of the evidence given by an
accomplice, the ultimate test, after cautious consideration of such
evidence, is whether the trial court is beyond reasonable doubt
satisfied that the story told by an accomplice, in its essential
features, is true notwithstanding its apparent shortcomings.
S
v
Francis
1990(1) SACR 998 (A) at
205f.
[22]
The trial judge was impressed by the accomplice as a witness. She
evaluated him as follows, albeit from a negative angle:
“……
Mr
Lipholo
did not make an unfavourable impression on me
in
the witness stand.
He spoke confidently, did not evade
questions and gave a clear exposition of the events that unfolded
before and on the 27 and 28
November 2015 in the planning and
execution of the alleged crimes.”
It
is clear, therefore, that the trial court made positive credibility
findings in respect of Lipholo. We are bound by the credibility
findings made by the trial court unless such findings are clearly
wrong. [
See J v S All SA
267(A) at 271(C)]
I
can find no reason whatsoever to depart from the credibility findings
made by the court
a quo. I am not persuaded that the trial
court committed any material misdirection in considering the evidence
of Mr Lipholo as
an accomplice or as a single witness. Consequently
the first and the second grounds of the appeal were devoid of any
substance.
[23]
The trial court correctly found Lipholo’s evidence to be
satisfactory in material respect to the extent that his evidence
disclosed that he acted in concert with the appellant in furtherance
of a common criminal enterprise. The salient aspects of the
witness’
evidence demonstrated that he readily admitted he masterminded the
plan and that he spontaneously admitted his involvement
in the entire
criminal venture to the police. It was indeed so that, at one stage
he tried to diminish the extent of his participation.
However, that
untruthful aspect of his evidence and others did not render his
entire evidence about the involvement of the appellant
untrue.
[24]
Contrary to the contention that his evidence was improbable and that
it stood to be rejected on that basis alone, there was
no substance
in the submission. It was indeed so that the accomplice first drove
to Koffiefontein in the opposite direction to
Virginia where the car
had to be ultimately delivered. In my view there was nothing
improbable about that. On the face of it that
might well have seemed
strange but he explained why he drove the other way. He was looking
for a safe place where he could get
rid of the highly incriminating
cargo in the boot. He knew the Koffiefontein route better than the
Virginia route. Moreover, that
particular route was quieter than the
route to Virginia. His plan was to drop the victim as far as possible
from Virginia where
he was going to deliver the car. The farmers who
were patrolling the rural roads at Petrusburg made it unsafe and
unwise to drop
the victim there. Those then were the reasons why he
dropped the victim on a remote farm on the other side of
Koffiefonrein on
the road to De Aar.
[25]
As the victim was marched down the footpath towards the river, the
witness knew that his life was delicately hanging in the
balance. The
victim was in great danger of being killed. Notwithstanding his
knowledge and appreciation of the possible deadly
consequences, he
did nothing of any practical significance to avert such danger. By
doing nothing to save the victim’s life,
he tacitly associated
himself with the appellant’s plan to kill. Although he did not
actually push the victim into the river
to drown him to death, he
participated in his killing. The principle of
commissio per
ommisionem
applies
.
His
conviction on a charge of murder was grounded on this legal
foundation.
[26]
The conviction and sentence
generally reduce the possible risk of the temptation on the part of
an accomplice to underplay the extent
of his criminal role at the
expense of another in the hope that he would be benevolently
rewarded
.
[27]
On the other hand the version of the appellant was saturated with
contradictions and improbabilities. His evidence that he
was working
on the night in question is contradicted by the owner of the tavern
where he alleged that he was working at the time
of incident.
According to the tavern owner he was no longer in his employment at
the time of this incident. It is noteworthy
that the tavern owner
corroborated the accomplice, Mr Lipholo in that regard. The appellant
wanted the trial court to believe that
the witness stole the car in
Bloemfontein; that he travelled a considerable distance to
Koffiefontein and that he then drove back
to Bloemfontein only to
have some alcoholic beverages at a tavern. The allegation
was very improbable.
[28]
According to the appellant, they departed from Bloemfontein at 03h00
and travelled straight to Virginia where they arrived
at 07h00. The
evidence also stands to be rejected. It was highly improbable they
would have travelled for 4 hours to cover the
distance. A thief or a
robber driving a stolen car would most certainly not have driven at a
snail’s pace on the road.
[29]
The version of the appellant was that he picked up the cell phone in
the vehicle driven by Lipholo. It is not in keeping
with
ordinary human experience for people to give valuable gifts to
strangers. Since the driver did not give the phone to
him,
after all they were strangers to each other; the appellant thereby
implicitly acknowledged that he stole from the driver,
Mr Lipholo.
Now stealing was what this case was all about. Obviously if he could
steal from the kind driver who had agreed to give
him a lift free of
charge, he would not hesitate to steal from any other stranger such
as the victim. That was precisely what Mr
Lipholo said they
collaboratively did. The appellant’s self-incriminating
evidence, therefore, tended to corroborate the
evidence of the
witness that he was involved when the victim was robbed.
[30]
It must be borne in mind that the occupants of the victim’s car
were arrested at or about 14h35. In other words, the
appellant spent
about hours at Virginia with Mr Lipholo, a highly implicated man, a
self-confessed robber who was a total stranger
to him. The
length of time he spent with the driver strongly militates against
his claim that he did not have any previous
knowledge of the driver
who gave him a lift. On the contrary the time he alleged they arrived
at Virginia was consistent with the
evidence of the driver save that
according to the driver they were from Koffiefontein and not
Bloemfontein. From all these considerations,
it can be fairly deduced
that the appellant falsely tried to distance himself from the
witness. The finding of the trial court
that the appellant’s
version was not possibly true is one which cannot be objectively
disturbed on appeal.
[31]
When the police emerged on scene the driver sped away. There was no
evidence that the appellant ever confronted the fugitive
driver as to
why he was speeding away from the police. It does not seem to be
unfair to impute guilty knowledge from his conduct.
Therefore, it can
be adversely deduced that he condoned the abortive attempt to flee
because he knew his hands, just like those
of the driver, were not
clean. He knew they had something to hide. We know the driver wasted
no time to throw in the towel. He
spontaneously acknowledged the
crimes to the police. On the contrary, the appellant did not
spontaneously give his exculpatory
explanation to the police - not
that he was obliged to do so. However, it generally recognised that
spontaneous explanations often
have the hallmarks of been potentially
true or reliable.
[32]
On behalf of the appellant, Mr Nel submitted that the version of the
appellant was reasonably true and that the court a quo
erred in
rejecting it. The submission was in line with the third ground of
appeal. I am satisfied that the version of the
appellant was
correctly rejected by the court
a quo
. Hardly a day
after the victim had been robbed, the appellant was found in his
stolen car. He was a passenger. Above that,
he was also found in
possession of the victim’s cellular phone. As if that was not
enough, another cellular phone belonging
to the victim’s
employer was found in the possession of another passenger. Unlike the
driver whose relationship was disputed
by the appellant, the latter
passenger was admittedly the appellant’s friend. All these
considerations were telling against
the appellant.
[33]
When a person is found in possession of recently stolen goods, (s)he
is presumed to have acquired such possession through direct
participation in the actual stealing of such goods unless (s)he can
give a reasonably innocent explanation for the
possession
of such incriminating goods.
S v Rama
1966(2)
SA
395 (AD) at 400C- D
per Rumpff CJ. Applying the
doctrine of recent possession to the facts in this instance, it
cannot be convincingly argued that
the appellant has rebutted the
legal presumption. If that is the case, then the inevitable
conclusion must be that his exculpatory
version was not reasonably
true. Therefore, the appeal cannot be upheld based on the third
ground of the appeal.
[34]
The evidence justified the following findings:
That
the appellant and the accomplice knew each other before the incident;
that the appellant accompanied the accomplice to the
Tourism Centre ;
that he initiated the attack by throttling the victim on the way to
Kellys view; that he participated in
the “hijacking”
of the victim; that he, together with the accomplice, took the
victim to Koffiefontein; that
the accomplice did not initially
contemplate the killing of the victim; that the idea of killing
the victim came from him;
that he robbed the victim of his cellular
phone; that he actively participated in the actual throwing of
the victim into
the river and that the accomplice was not involved
the execution of that final
actus reus.
[35]
Consequently the conclusion of the court a quo that the evidence as a
whole established the guilt of the appellant beyond a
reasonable
doubt appears to be correct. I am not persuaded that a case has been
made out to justify any interference with that
conclusion. In the
absence of any material misdirection, the appellant’s
conviction in respect of each charge has to stand.
[36]
The grounds of appeal with regard to sentence can be summarised as
follows:
36.1 The trial court
erred by failing to find the existence of substantial and compelling
circumstances;
36.2 It erred by not
aligning the sentence of the appellant with the sentence
imposed on Lipholo;
[37]
It is trite that a court of appeal will only in limited circumstances
interfere with a sentence .It is also fundamental law
that sentencing
is pre-eminently the terrain of the trial court. The appellate court
should be extremely reticent to usurp and
interfere with such
discretion unless it is convinced that it was not exercised
judicially and properly or there exists a marked
disparity between
the sentence imposed by the trial court and the sentence that the
court with appellate jurisdiction would have
imposed had it been the
trial court.
[38]
The court in
S v Malgas
2001(1) SACR 469(SCA) at 478
d-h said the following:
“
A court exercising
appellate jurisdiction cannot, in the absence of material
misdirection by the trial court, approach the question
of sentence as
if it were the trial court and then substitute the sentence arrived
at by it simply because it prefers it. To do
so would be to usurp the
sentencing discretion of the trial court. Where material misdirection
by the trial court vitiates the
exercise of that discretion, an
appellate court is of course entitled to consider the question of
sentence afresh. In doing so,
it assesses the sentence as if it were
a court of first instance and the sentence imposed by the trial court
has no relevance.
As it is said, an appellate court is at large.
However, even in the absence of material misdirection, an appellate
court may yet
be justified in interfering with the sentence imposed
by the trial court. It may do so when the disparity between the
sentence
of the trial court and the sentence which the appellate
court would have imposed had it been the trial court is so marked
that
it can be that it properly be described as ‘shocking’,
‘startling’, or ‘disturbingly inappropriate’.
It must be emphasised that in the latter situation the appellate
court is not at large in the sense in which it is at large in
the
former. In the latter situation, it may not substitute the sentence
which it thinks appropriate merely because it does not
accord with
the sentence imposed by the trial court or because it prefers it to
that sentence. It may only do so where the difference
is so
substantial that it attracts epithets of the kind I mentioned.”
[39]
The offences that the appellant has been convicted fall within the
ambit of s51 of the Criminal Law Amendment Act 105 of 1997.The
court
is obliged to impose the prescribed minimum sentences unless the
court finds that there are substantial and compelling circumstances
warranting it to deviate the said prescribed sentences.[
see
s51(3) of Act 105 of 1997].
[40]
It is putative that the ultimate impact of all the circumstances
relevant to sentencing must be such as to cumulatively justify
a
departure from the prescribed minimum sentence. A careful reading of
the sentence reveals that the trial court could not find
the
existence of substantial and compelling circumstances.
[41]
With regard to the personal circumstances the court into account that
the appellant was 30 years old at the time of his sentencing.
That he
was unmarried with no children to support. He did grade 10 at school
and was unemployed. That he had been in custody for
a period of 18
months at the time of sentencing.
[42]
With regard to the period spent in prison prior to sentencing the
trial court correctly pointed out that this factor was but
one of the
factors to be taken into account in balancing ‘
all the
mitigating and aggravating factors in order to come to a just
sentence.’
The period spent in detention is but one
of the factors that the sentencing court should take into
consideration “in
determining whether the effective period of
imprisonment to be imposed is justified: whether it is proportionate
to the crime committed”-
See S v Radebe and Another 2013(2)
SACR 165(SCA).
The
SCA proceeded further at [14] as follows:
Such an approach would
take into account the conditions affecting the accused in detention
and the reason for a prolonged period
of detention….(T)he test
is not whether on its own that period of detention constitutes a
substantial or compelling circumstance,
but whether the effective
sentence proposed is proportionate to the crime or crimes committed:
whether the sentence in all circumstances,
including the period spent
in detention prior to conviction and sentence, is a just one”.
[43]
The period spent in detention is, therefore, but one of the factors
to be taken into account in assessing if substantial and
compelling
circumstances exist to deviate from the prescribed sentences.The
trial court took into account that the appellant acted
in concert
with Lipholo and the former co-accused in furtherance of a common
purpose. It took into account the fact that the suggestion
to kill
emanated from the appellant. It further took into account that the
appellant was one of the people who placed the deceased
in the boot
of a vehicle and ultimately threw him into a river, while still
handcuffed, in order to kill him. The appellant did
not show any
inkling of remorse even in the face of overwhelming evidence against
him.
[44]
One of the gripes of the appellant arises out of the alleged
disparity in his sentence and that of Lipholo. Lipholo was sentenced
to 12 years imprisonment for robbery with aggravating circumstances
while on a charge of murder he was sentenced to 18 years
imprisonment.
On the other hand the appellant was sentenced to 15
years imprisonment on a charge of robbery with aggravating
circumstances and
on a charge of murder he was sentenced to life
imprisonment.
[45]
It is accepted that punishment must be meted in such a way that it is
individualised, for punishment must always fit the crime,
the
criminal and the circumstances of the particular case. To do
otherwise would constitute misdirection.The sentence discretion
is an
important aspect of our law of sentencing. Previous sentences like
the court gave two reasons for the existence of the sentence
discretion in
S v Toms; S v Bruce 1990(2) SA 802(A) 806;
“
Such a discretion
permits of balance and fair sentencing which is a hallmark of
enlightened criminal justice. The second and somewhat
related
principle is that of individualisation of punishment.”
[46]
At the onset it must be borne in mind that the circumstances relating
to the sentencing of Lipholo were unknown to the trial
court. Even if
those circumstances of Lipholo were known to the trial court, the
court
a quo
exercised its discretion independently in
sentencing the appellant. Of importance, it is not the case of the
appellant that the
trial court exercised its discretion wrongly.
Trying to match the facts of one case to another in order to find an
appropriate
sentence will be an ‘idle exercise’- See
S
v Francis
1987(2) 859(A) 863C-D.
[47]
Contrary to the appellant, Lipholo was instrumental in assisting the
police to recover the body of the deceased. It is clear
that he
cooperated with the police from the very day of arrest. He had been
against the killing of the deceased as proposed by
the appellant. He
pleaded guilty to the charges against him. He also testified against
the appellant and his former accused and
as a result in the most
painful way the family found closure in this sad incident. I found no
merit in the argument that the court
erred in failing to align the
sentence of Lipholo with that of the appellant.
[48]
It is my considered view that the mitigating factors in this case are
far outweighed by the aggravating factors. I am of the
view that the
trial court did not commit any misdirection when it found that there
were no substantial and compelling circumstances
warranting it to
deviate from imposing prescribed minimum sentences.
[49]
I accordingly propose the following order:
49.1 The appeal fails
in
toto.
49.2 The conviction and
the sentence in respect of each charge are confirmed.
_____________________
Q NULLIAH, AJ
_____________________
I
concur:
M.H.
RAMPAI, J
__________________
P.E.
MOLITSOANE, J
For
Appellant
: Adv.
P.W. Nel
Instructed
by
:
Legal Aid South Africa
Bloemfontein
For
Respondent
: Adv.
MMM Moroka
Instructed
by
:
Director of Public Prosecutions
Bloemfontein