About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 123
|
|
Labone and Others v S (A302/2017) [2018] ZAFSHC 123 (7 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A302/2017
In
the Appeal between:
MOLAHLEHI
STEVEN
LABONE
1
ST
Appellant
MOSELE
BEAUTY
MOALOSI
2
ND
Appellant
GAUTA
JOEL
KOTOYI
3
RD
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J
et
MATHEBULA, J
JUDGMENT
BY:
MBHELE, J
HEARD
ON:
16 APRIL 2018
DELIVERED
ON:
07 AUGUST 2018
[1]
First, second and third appellant were accused no. 1, 5 and 9
respectively in the trial court. For the sake of convenience and
ease
of reference, parties are referred to as they were in the court
a
quo
. They were convicted on 10 January 2017
in the Regional court sitting at Welkom on a charge of murder. They
were each sentenced
to 15 years imprisonment. They are appealing
against both conviction and sentence.
[2]
In the notice of appeal, heads of argument as well as submissions
before us, the appellants assail the conviction on the basis
that the
trial court erred in finding that the state managed to prove its case
beyond reasonable and further that it erred by relying
on the
evidence of the two state witnesses in relation to the identity of
accused 1, 5 and 9 as attackers of the deceased.
[3]
The respondent supports both conviction and Mr. Hoffman, on behalf of
the respondent submitted that the court properly considered
all the
evidence and correctly rejected the version of the accused.
[4]
The evidence that led to the conviction of the appellants was as
follows:
Lehlohonolo
Thomas Labone (Lehohonolo) testified to the effect that on 16
September 2012 he was at Maite Street in Thabong, Welkom
at around
19h00. He was on his way from the shop when he saw two groups of
people belonging to TDK and FAG gangs arriving near
accused 5’s
house being ferried in two minibus taxis. Accused 11 in the
court a quo was the driver of one mini bus
while the second driver
was unknown to him. The people who alighted from the taxis chased
after the deceased until the deceased
got into a yard of a house
situated at the corner in the same street. The
deceased
immediately came out of that yard running, with the group chasing
him. He was kicked on the chest by someone from the group
and he fell
to the ground.
[5]
Whilst the deceased was on the ground he saw accused 1 stabbing the
deceased with a spade on his back about 5 times; accused
no 5, 9 and
13 had knives in their possession while accused 10 had a panga, which
he used to stab the deceased.
[6]
The group surrounded the deceased during the attack. They were armed
with a spade fork, a
spade, pangas and knives.
They were stabbing persistently and he did not see how many times
each of them stabbed the deceased.
[7]
The deceased’s attackers were surrounding him making it
difficult to see who the victim was. He later realised that the
victim was his brother, the deceased. He recognised him through a
bandana that he tied around his neck. He charged at the group
and
kicked accused 1 on the chest. The spade that
accused
1 had in his hand fell to the ground as they both fell.
[8]
Accused 1 told the group to leave after the deceased was stabbed and
left lying on the ground. He knew accused 1, 5, 9, 10,
11 and 13
before the incident. He knew accused 1 for over 20 years, they grew
up together.
He knew accused 5 for almost a year.
He knew accused 9 for 10 years, they were playing soccer
together.
[9]
He admitted that he and his brother, the deceased, belonged to a gang
called LKG. The two taxis that were carrying the people
who attacked
the deceased left the scene thereafter. He called the ambulance and
the deceased died at the
scene. His mother,
Lisebo Zuma was close by when the incident was unfolding.
[10]
Lisebo Zuma (Zuma) confirmed the evidence of her son Lehlohonolo in
relation to how the deceased was attacked. She further
testified that
there was a fight earlier in the day between the deceased and accused
1, 5 and 9. The accused arrived in the evening
driving in two kombis.
As soon as they arrived people ran away from the street.
[11]
During the fight earlier that morning the deceased and some community
members were threatening to burn accused 5’s house.
They were
angry at accused 5 whom they accused of housing and protecting a
criminal and gangster in the form of accused 1.
[12]
Accused 1, 5 and 9 simply denied involvement in the commission of the
crime. Accused 1 testified to the effect that he was
not at the scene
where the deceased was killed. His testimony was that he was inside
accused 5 and 9’s house when he witnessed
two groups fighting
against each other.
[13]
It was his testimony that earlier in the day members of the two gangs
were stabbing each other with knives. The deceased and
his gang
members went away only to come back later when they got inside
accused 5 and 9’s house. They started throwing bricks
at the
house, damaging windows and furniture inside the house. They went
further to remove valuable items from the house including
corrugated
iron sheets used to roof the house. In that incident the deceased
went away with his shoes.
[14]
Him and the two state witnesses knew each other before the incident.
He believes Zuma is implicating him falsely because he
once told his
friend to end a love relationship with Zuma because she was too old
for him.
[15]
Accused 5 testified that she was not involved in the killing of the
deceased and she was not at the scene where the deceased
was killed.
She confirmed that members of the deceased’s gang broke the
windows of her house and took furniture and
other valuables items
from the house. She left the house upon advice from the police
to accused 9’s parental home.
She did not see the
deceased nor his mother on that day. She was never at the scene
of crime. She was inside her house
when gang members vandalised
it earlier in the day. She was not there in the evening when the
deceased was killed.
[16]
Accused 9, confirms accused 5’s testimony that they were in the
house when they witnessed two gangs fighting near the
house in the
morning of the incident. Accused 5 was his girlfriend at the
time of the incident. The deceased and his gang
members started
pelting stones and bricks at accused 5’s house, breaking
windows, television set and some furniture. They
threatened to burn
down accused 5’s house. Accused 5, left the house to go to his
parental home on the advice from the police.
[17]
The trial court evaluated the evidence and came to the conclusion
that the state witnesses were truthful and rejected the version
of
the appellants as improbable. It is trite that factual and
credibility findings of the trial court are presumed to be correct
unless they are shown to be wrong with reference to recorded
evidence. The acceptance by trial court of oral evidence and
conclusion thereon are presumed to be correct, absent misdirection.
(See
S v Francis
1991 (1) SACR 198
SCA at 204 e-d.) A court of appeal may only
interfere where it is satisfied that the trial court misdirected
itself or where it
is convinced that the trial court was wrong. (See
R v
Dhlumayo
&
another
1948
(2) SA 677
(A) at 705-706).
[18]
It is clear from the above that the powers to evaluate and appraise
evidence belong to a trial court which had an opportunity
to see and
hear witnesses and its conclusions cannot be interfered with simply
because a court of appeal would have come to a different
finding or
conclusion.
[19]
I am unable to find any demonstrable or clear error on the part of
the trial court to justify interference with its credibility
findings. The trial court was correct in its assessment of evidence
and credibility findings. I cannot find that the trial court
erred in
finding that the appellants’ version is inherently improbable
and fell to be rejected.
[20]
The trial court correctly found that the corroboratory evidence of
the two state witnesses was true, honest and reliable. The
argument
that the deceased’s attackers were not correctly identified
because of poor illumination in the area is without
basis. The two
state witnesses knew accused 1, 5 and 9 very well before the
incident. Under cross examination Lehlohonolo said
he initially did
not see that it was his brother who was being attacked because the
deceased was lying on the ground surrounded
by a mob. The minute he
saw a bandana around the deceased’s neck he was certain that it
was his brother who was being attacked
and immediately ran towards
the crowd and assaulted accused 1. He had all the opportunity to
observe the attackers. Zuma had an
interaction with accused 5 earlier
in the day when a fracas ensued and the community members threatened
to burn her house. The
state witnesses were honest even to a point of
admitting that the deceased provoked accused 1, 5 and 9 in the
morning of the date
of the incident. The appeal against conviction
must fail.
[21]
S
entencing is pre-eminently a
matter for the discretion of the trial court. An appeal court
is only entitled to interfere with
a sentence where there has been a
material misdirection by the trial court or when the sentence imposed
by the trial court is shocking
and startlingly inappropriate. In
determining an appropriate sentence, the court should pay attention
to the fundamental principles
of sentencing which are, that
“punishment should fit the criminal as well as the crime, be
fair to society, and be blended
with a measure of mercy.” The
court must not lose sight of the main purposes of punishment, which
are deterrent, preventive,
reformative and retributive. In
sentencing, one element must not be accentuated at the expense of and
to the exclusion of others,
the court must always strike a balance
between all relevant factors.
(See
S v Pieters
1987 (3)
SA 717
of 727.
See
S
v Malgas
2001 (1)
SACR 469
(SCA).
S
v Rabie
1975 (4) SA
855
(A)
R v
Swanepoel
1945 AD
444
at 455
. S v
Whitehead
1970 (4)
SA 424.
S v
Banda
1991 (2) SA
352
(B).
[22]
The sentence imposed must reflect the objective seriousness of the
offence and it must be reasonably proportional to the circumstances
surrounding the crime committed. The trial court correctly
found that there were substantial and compelling circumstances
warranting deviation from the prescribed minimum sentence of life
imprisonment. The trial court considered accused 1, 5 and 9’s
following personal circumstances before sentencing.
[23]
Accused 1 was 32 years old, unmarried and a father of 2 minor
children aged 3 and six years respectively. He was unemployed
at the
time of the offence but he was selling food in Thabong, generating an
income of R2 500. 00 per month.
[24]
Accused 5 was 27 years of age, unmarried and a mother of two minor
children aged 7 and 2 years respectively at the time of
sentencing.
She is a first offender. She was cohabiting with accused 9 and had
accused 1 as her tenant at her house. Her house
was burnt to the
ground after the death of the deceased. She lost everything on
the date of this offence.
[25]
The court correctly found that the deceased was murdered as a
retaliation to the attack that him and his gang members unleashed
on
accused 5’s property earlier on the day of the incident.
Accused
9 was 21 years at the time of the commission of the offence, he is a
first offender and a father of a six year old child.
At the time of
sentencing, his girlfriend was 10 weeks pregnant with his baby. He
went to school up to grade 12 and has never been
employed. He was in
custody for 3 and a half years awaiting trial before he was released
on bail.
[26]
Mr. Nel, on behalf of accused 1, 5 and 9 submitted that the sentence
imposed by the trial court is shockingly startling and
inappropriate.
[27]
The court
a quo
was
correct in imposing a sentence of fifteen (15) years imprisonment.
The taking of life is abhorrent in a democratic society
like ours.
The deceased must have suffered tremendously from the ferocious
attack by the accused. The court
a quo
took into consideration all the factors individually and cumulatively
before imposing the appropriate sentence. I cannot
find any
fault or misdirection in the reasoning provided thereof. This
appeal ought to fail.
[28]
The following order is made:
28.1
The appeal against both conviction and sentence is dismissed.
28.2
The conviction and sentence are confirmed.
______________
N.M.
MBHELE, J
I
concur
__________________
M.A. MATHEBULA, J
On
behalf of appellant: Adv. P. Nel
Instructed
by: Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent: Adv. R. Hoffman
Instructed
by: Office of the Director: Public Prosecutions
Bloemfontein