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[2018] ZAFSHC 127
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Ntja v S (A324/2017) [2018] ZAFSHC 127 (16 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number:
A324/2017
In
the Appeal between:
BOYKIE
GIDEON
NTJA
APPELLANT
and
THE
STATE
RESPONDENT
CORAM:
NAIDOO, J
et
MOLITSOANE
J
JUDGMENT
BY:
NAIDOO J
HEARD ON:
13
AUGUST 2018
DELIVERED ON:
16 AUGUST 2018
INTRODUCTION
[1]
The appellant was convicted of one count of Murder (Count 1) and one
count of Assault with Intent to do Grievous Bodily Harm
(Count 2) in
the Regional Court, Welkom. He pleaded not guilty to the charges, but
was convicted on both counts. He was sentenced
to Twelve (12) years’
imprisonment on Count 1 and Two (2) years’ imprisonment in
respect of Count 2. The court a quo
refused leave to appeal and the
appellant comes before us, having successfully petitioned the Judge
President for leave to appeal
against his conviction only. Mr LM
Tshabalala represented the appellant in this court and Mr E Van
Rensburg represented the respondent,
being the state.
BACKGROUND
[2]
Tsietse Edwin Moshe (Moshe) testified that he was at a tavern on the
night of the incident on 28 January 2013, in the company
of the
deceased, Pule Simon Molete and another person, Matshidiso Mogase
(Mogase). They were there from 6 or 7 o’clock the
previous
evening until the early hours of the following morning, which he
estimated to be about 1h00. The 3 of them drank beers
the whole
evening and in total drank approximately 5 quarts of beer. This was
shared amongst the 3 of them so that each of them
drank approximately
1.250 litres over a period of 7–8 hours. Moshe, the deceased
and Mogase then left the tavern. When they
were outside, Moshe
noticed the appellant approaching the deceased with a knife in his
hand. The appellant then stabbed at the
deceased in the region of the
upper body several times. The deceased ran away and was pursued by
the appellant, who Moshe assumes
did not catch up with the deceased.
A few minutes later the appellant returned to where Moshe and Mogase
were standing. He then
pulled out the knife that he had earlier had
in his possession. Moshe and Mogase then ran away and were pursued by
the appellant.
Mogase managed to escape but the appellant then caught
up to with Moshe and stabbed him in the back. Moshe fell but he
managed
to get up and run away. He however became weak, and stopped.
He then offered the appellant money in order to stop him from
attacking
him any further. By this time several people had arrived on
the scene and Moshe used this opportunity to run away.
[3]
Moshe was taken to the police station where a case was opened. He was
there after taken to hospital where he was treated for
his injuries
and he was admitted to hospital where he stayed overnight. Although
he testified that he was stabbed once, it turned
out that he
sustained two stab wounds. It was also established that the deceased
had sustained a stab wound to the chest, which
pierced his heart and
lung and he had in fact died. There was also a stab wound on his
forearm. The appellant admitted that the
injuries the deceased
sustained caused his death.
[4]
Moshe testified that lighting in the area of the tavern was very good
as there were two Apollo lights in the area, one approximately
a
hundred metres away and the other approximately 50 m away. He
indicated that the lighting was as good as daylight and that he
had a
clear view of the appellant and was able to see everything that
occurred at the time. He also testified that he knew the
appellant
prior to this incident as he had seen him on several occasions at the
tavern for a week prior to the incident. Moshe
also pointed out the
appellant in an identification parade
[5]
The appellant elected not to testify and closed his case without
leading any evidence. The court
a quo
,
therefore, had only the version of the state to consider when
formulating its judgment. Under cross examination, it was suggested
to Moshe that he was under the influence of alcohol and therefore was
mistaken as to what he observed on the night in question.
It was
specifically suggested to him that he was mistaken about the identity
of the person who stabbed the deceased and him. Moshe
was adamant
that although he had been drinking he was not drunk and was able to
see everything that occurred. He specifically testified
that he was
not mistaken as to identity of the appellant as he knew him and was
able to see him very clearly at the time.
[6]
There were no inherent improbabilities in Moshe’s evidence, and
he clearly made a good impression on the trial court.
There was no
evidence to gainsay Moshe’s evidence, and it must therefore be
accepted that the sequence of events as he had
narrated it, is in
fact what happened on the night in question. This was the reasoning
of the trial court, and we cannot fault
such reasoning, nor can we
fault the conclusions of the court regarding the guilt of the
appellant. This is particularly so as
the appellant did not testify
and therefore the trial court had nothing other than the evidence of
the state upon which to base
its conclusions.
[7]
An appeal court will not lightly interfere with the findings of the
trial court especially as the latter had the benefit of
observing
witnesses and being steeped in the atmosphere of the trial. The trial
court is in the best position to make findings
as to such matters as
credibility, demeanour and reliability. An appeal court will only
interfere if there is a misdirection on
the part of the trial court
in the application of the law or the facts. In this case we can find
neither, and, as indicated previously,
we are unable to fault the
reasoning of the trial court.
[8]
In the circumstances, the following order is made:
8.1 The appeal against
the convictions is dismissed.
8.2 The convictions and
sentences in this matter are, therefore, confirmed
____________________
S.
NAIDOO, J
I
Concur
____________________
P
MOLITSOANE J
On
behalf of Appellant: Adv. LM Tshabalala
Instructed
by: The Justice Centre
Bloemfontein
On
behalf of Respondent: Adv. E Van Rensburg
Instructed
by: The State