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[2018] ZAFSHC 141
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Tlali and Others v The State (A93/18) [2018] ZAFSHC 141 (1 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
APPEAL
NUMBER:
A93/18
In
the matter between:
TSELA
PEACEMAKER TLALI
APPELLANT 1
MOJALEFA
ELIAS MAKAU
APPELLANT 2
TSEPISHSO
CHARLES SEBILOANE APPELLANT
3
Versus
THE STATE
CORAM:
REINDERS, J
et
,
CHESIWE, J
JUDGMENT
BY:
CHESIWE, J
DELIVERED
ON:
SEPTEMBER 2018
JUDGEMENT
[1]
The appellants (accused 1, 2 and 3 at the trial court) were
convicted in the regional magistrate
court in Botshabelo on
COUNT
1- MURDER and
COUNT 2- THEFT
All
three pleaded not guilty and were sentenced to life imprisonment in
respect of count 1 and 4 years imprisonment in respect of
count 2.
[2] The
appellants have an automatic right to appeal a sentence of life
imprisonment.
The appellants were legally represented at the
trial court.
[3] The
appeal lies against conviction and sentence.
[4] The
issue is whether the appellants are the perpetrators who who murdered
the deceased
and stole the items of the deceased and
pertinently if their identification was proven beyond reasonable
doubt by the State (respondent) at the trial court.
[5] The
background of this matter is that the appellants on the night of 18
May 2013 the
appellants followed Moeketsi Godfrey Hlalele (the
deceased) into his yard and went into the house were the
deceased
was stabbed and killed and they stole items of the deceased
to the value of R3298.08. Two of the State
witnesses
testified that Appellant 2 told them he killed because the
deceased knew them.
[5] The
grounds of appeal in this matter is that the trial court erred to the
extent
that material contradictions between the evidence of the State
and the appellants was not taken into account, that there is no
direct evidence as to what happened in the house as circumstantial
evidence before the court that the items stolen did not have
the
finger prints of the appellants. That the identification
of the appellants was not proven beyond reasonable
doubt
and the State did not present any DNA in the form of finger prints of
the appellants. In respect of sentence the appellants
are of
the view that the sentence is shockingly harsh and inappropriate.
That appellant 2 and 3 are first offenders.
[6] Mr
Van der Merwe on behalf of the appellants in oral submission stated
that the
version of Molapo contradicts the version of the first two
State witnesses and that this contradiction is a major contradiction,
thus it is a misdirection by the trial court to have accepted two
contradicting version of the State witnesses. He submitted
that
it is probable that the two witnesses made up their own stories to
implicate the appellants.
[7] Mr
Botha on behalf of the respondent submitted in oral argument that
the issue of
identity of the appellants was not really an issue as
the trial court cannot be faulted in respect of identity of the
appellants as the State has proven the identity of the appellants at
the trial court beyond reasonable doubt. He further
submitted
that the appellants went into the deceased house, they came out
carrying a hifi and tv, the State witnesses saw the appellants.
The contradiction by the third state witnesses does not take the case
any further as the people who chased the deceased were the
three
appellants. Mr Botha submitted that the conviction and sentence
must stand and that the appeal be dismissed.
[8] The
dangers of incorrect identification are well known.
Section
37 (1) (2) of the CPA of 1971 provides that:
“
any
police official may make a person referred to on paragraph
(a)
(i)
available or cause such a person to be made available for
identification in such conditions, positions or apparel as the police
may determine.”
[9]
In this matter an identity parade was not held, nor any fingerprints
of the appellants except
the testimony of Constable TP
Makhothi, who testified that appellant 1 (accused 1) refused
for his finger prints to
be taken. The appellants were
identified by the first two State witnesses who knew them very
well as Mzwane
was with the appellants on the night of the
incident. According to Mzwane’s testimony the record shows
that appellant
2 said to him:
“
He said I have
killed someone and I then became frightened, that they killed
someone”
page
7 line 20 the record shows further on page 8 line 24,
“
and he said if I
can say anything or if I can talk he is going to kill me. I
then told my mother but was afraid of reporting
to the police because
he said he will kill me
.”
[10] Ndaga
the second state witness
testified
that he knew Tsela, appellant 1 and Mojalefa appellant 2 as he
was also with the appellants on the night of the
incident and
confirmed that he walked with appellant 1 and 2 from the tavern
towards the direction
of
the deceased’s house. He even pointed the appellants 1 and 2
in the dock at the trial court.
[11] The
dangers of incorrect identification are well known. The pointing
out of a wrong
person by witnesses who act in good faith has led to
notorious cases of injustice. The evidence of identifying the
appellants,
because of the ever present possibility of honest mistake
being made by witness’s evidence of identification
has to be treated with caution. In this regard I aligned
myself with what Holmes JA said in
S v Mthethwa
1972
(3) SA 766
A at 786 A-C.
[12] Identification
is often the central question in a trial. An identity parade
is a
safety mechanism. The danger of identification in the dock are
compounded when witnesses are asked to point out an accused in
court. In
S v Maradu
, the court said:
“
Dock
identification may be relevant evidence, but generally unless it is
shown to be sourced in an independent preceding identification,
it
carries weight.”
[13] The
State witnesses placed all three appellants on the scene to the
extent that appellant
2 forced Mzwane to carry the suitcase
whereby when he refused appellant 2 stabbed Mzwani on
the
right shoulder. The third State witness, Mpho Molapo
who was with the deceased on the day of the incident, he
testified that he saw a person going into the deceased’s
yard, he was able to identify this person as witness 1, Mzwane.
[14]
The inferences one can draw in that, the state witness were in the
company of the appellants on the
night of the incident. The
appellants were pointed out in the dock at the trial court.
Cumulatively all the factors
make identification of the
appellants stronger. In
Magadla v State
, the
court was of the view that:
“
Where
the witness was in a situation where he notice has ample
opportunity to make proper reliable observation of the
perpetrator, especially where the witness did not have any
reason to falsely implicate the perpetrator”
[15] The
trial court’s evaluation of the evidence demonstrates that it
was alive to the fact
that the state witnesses were reliable and and
truthful and had no reason to falsely implicate the appellants. As
state
witness 2 stated that appellant 2 told him the deceased was
killed because the deceased knew the perpetrators. The inference
drawn is that this was further done to prevent future
identification of the perpetrators.
[16]
Mzwane and Ndaga did not even know each other and therefore had no
time to conspire against the
appellants they met the first time at
the police station when they had to give the police their statements.
[17]
The trial court correctly concluded that the identification of the
appellants by the state witnesses
was truthful, reliable and credible
and nor did the State witness had any reason to implicate the
appellants falsely.
[18]
Therefore the State witnesses at the trial court correctly identified
the appellants. The witnesses
were credible and reliable.
Therefore the issue of identification of the appellants was settled
at the trial court. The
trial court was satisfied that the witnesses
were able to place the appellants in the vicinity of the crime
scene.
[19] I
agree with Mr Botha that the contradictions by the third state
witness do not take the matter any
further as the appellants were the
ones who were seen by the state witness chasing the deceased and
entered his house.
[20]
As it is trite law that a court of appeal will not tamper with the
trial courts credibility findings,
considering the advantage which
the trial court had of hearing and appraising the witnesses.
[21]
I am satisfied that the state at the trial court proved its case
beyond reasonable doubt though
no direct evidence was lead in to what
happened in the house as the evidence was circumstantial by nature.
[22]
In S v Reddy
1996 (2) SACR 8
paragraph C-Y the court said
“
In
answering circumstantial evidence one needs to be careful to approach
such
evidence upon piece meal basis, and to subject each individual piece
meal
of evidence to a consideration of whether it excludes the reasonable
possibility
that the explanation given
by
the accused is true.”
[23] Therefore
the trial court correctly found the appellants to be untruthful
witnesses and correctly
rejected their version as false beyond
reasonable doubt. Therefore the conviction stands.
[24]
As regards sentence, it is trite that a court with appellate
jurisdiction has limited powers
to interfere with the sentence
imposed by the trial court. The sentencing discretion lies with the
trial court and its sentence
will be interfered with on appeal only
if the discretion in question was not exercised judicially and
properly
[1]
, or if there is
disparity between the sentence imposed and the one that ought to be
imposed. In
S
v Malgas
[2]
the court stated as follows:-
“
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
its exercise
of that discretion, an appellate court is of course entitled to
consider the question of sentence afresh. In
doing so, it
assesses 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 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 do so only
where the difference is so substantial that it attracts epithets
of
the kind I have mentioned.”
[24]
It is evident from the record that the trial court properly
considered the triad of sentence.
The appellant’s
personal circumstances were considered by the trial court and their
circumstances are not exceptional. The
first appellants previous
convictions read like a book and second and third appellants are
first offenders. However, the aggravating
factor is that the offence
the appellants were convicted off was so brutal and merciless, that
according to the pathologist report
the deceased had 37 stab wounds
and was hacked on the head. The deceased was attacked in
the safety of his home. Therefore
the brutal and merciless manner in
which the deceased was killed outweighs the appellant’s
personal circumstance. To
the extent that the trial court made
mention about courts having to deal with many cases relating to the
“
BTK”
, though the appellants at the trial court
explained that it was “
Baby to Kiss
”.
The trial court took cognisance of the fact that it is the “
Born
to Kill”
gangs. I must admit that this court is also
aware of the “
BTK”
as it has done several cases of
the “
BTK
”
[25]
The trial court was thorough in its judgement and dealt
with all the issues comprehensibly.
It started by pointing out
that it was bound to evaluate all the evidence before it as a unit,
and patiently detailed each and
every witness’s testimony and
that of the appellants, and correctly concluded that there are no
compelling and substantial
circumstances to deviate from the
imposition of the prescribed sentence.
[26]
The aggravating factors far outweigh the mitigating factors. Having
considered all these circumstances,
I am satisfied that the trial
court did misdirect itself in in sentencing the appellants to life in
respect of count one. Therefore
this court will not tamper with the
imposed sentence of all three appellants.
[27]
In the result, the following order is granted:
1.
The
appeal is dismissed and the conviction and sentence is
confirmed
S.
CHESIWE, J
I
CONCUR
C REINDERS, J
On
behalf of appellants: Adv.
Van Der Merwe
Instructed
by
Legal Aid Bloemfontein
On
behalf of respondent: Adv. Botha
Instructed
by:
The DPP
BLOEMFONTEIN
[1]
S v Rabie
1975
(4) SA 875 (AD)
[2]
2001 (1) SACR 469
(SCA) at 478 d-h