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[2017] ZAGPPHC 820
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Maya v S (A111/16) [2017] ZAGPPHC 820 (23 February 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, PRETORIA)
CASE
NO: A111/16
Date:
23/02/2017
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
JAMES
THABO MAYA
(Accused
2 in court a quo) APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
KHUMALOJ
INTRODUCTION
[1]
With leave granted by the Deputy Judge President (Ledwaba DJP), in
the absence of Nicholls J, Appellant is appealing against
his
conviction and sentence by Nicholls J in the Local Division of the
Vereeniging Circuit District. He was initially arraigned
in the
district with two other accused before Mbha J as Accused 3 on the
following charges:
[1.1.] Murder ("Count 1")
[1.2.] Attempted Murder ("Count
2");
[1.3.] Robbery with Aggravating
Circumstances ("Count 3");
[1.4.] Sexual Assault ("Count
4");
[1.5.] Attempted Murder,
alternatively, Malicious damage to property ("Counts")
[1.6.] Robbery with Aggravating
Circumstances ("Count 6");
[1.7.] Illegal Possession of Firearms
("Count 7");
[1.8.] Illegal Possession of
Ammunition ("Count 8").
[2]
Upon the accused pleading to the charges at the commencement of the
trial, one of Appellant's co-accused who was identified
as Accused 1
in the case, was declared a state patient and: his trial separated
from that of the Appellant and Accused 2. The latter's
trial
proceeded before Nicholls J and an assessor. Accused 2 became Accused
l and Appellant Accused 2.
[3]
At the end of the trial Nicholls J acquitted Accused l on all
charges. Whilst Appellant was convicted on all 8 counts and sentenced
as follows:
[3.1.] Count 1, Murder, life
Imprisonment;
[3.2.] Count 2, Attempted murder, 5
years imprisonment;
[3.3.] Count 3, Robbery with
aggravating circumstances, 15 years imprisonment;
[3.4.] Count 4, Sexual Assault, 8
years imprisonment;
[3.5.] Count 5, Malicious damage to
property, 3 years imprisonment;
[3.6.] Count 6, Robbery with
aggravating circumstances; 15 years imprisonment;
[3.7.] Count 7, Possession of a
Firearm, 3 years imprisonment;
[3.8.] Count 8, Possession of
Ammunition), 18 months imprisonment.
[4]
The sentences imposed on count 2 to 8 were to run
concurrently with the sentence of life Imprisonment imposed on count
1, the murder
charge.
[5]
The conviction and sentence of the Appellant follows an
incident that took place on the evening of 17 February at Plot 29
Voortrekker
Road, De Deur, the residence of the Langas. The Langas
and their extended family were attacked and robbed and several shots
were
fired. Mr Langa senior was fatally wounded, Tshidiso Motswane
("Tshidiso") was shot on his left thigh. Mr Langa's son,
Molea ("Moiea") and their cousins Potlako and Tshepo
Motswane ("Potlako") ;("Tshepo") were threatened
and assaulted and Molea's wife caroline Sella ("Sella")
sexually assaulted. They were robbed of cash, cellphones and
various
household items. Appellant and his co-accused were a few months after
the incident identified as the assailants at an identification
parade
by Molea, Sella, Tshepo and an employee of the Langas, namely Eric
Mnisi ("Mnisi"). The parade was held on 17
June 2009 after
Appellant's arrest on 29 May 2009.
[6]
Appellant was duly represented during the trial. He
pleaded not guilty to all the charges. He did not tender a statement
in explanation
of his Plea, opting to exercise his right to remain
silent. He was convicted on the evidence of Molea, Sella and their
cousins
who were in the bedroom inside the main house when the
robbery took place together with that of Mnisi who arrived at the
plot whilst
the robbery was still under way. They all testified as to
the involvement of the Appellant.
[7]
The appeal is therefore centered mainly on the issue of
identification. Appellant is challenging his conviction on the ground
that
his identification by the four key state witnesses, Molea,
Sello, Potlako and Tshepo, was flawed, in that the testimony could
not
be relied upon as:
[7.1.]
The
Appellant was unknown to them.
[7.2.]
They
had little time to observe the features of the said suspect when they
were robbed and shots fired.
[7.3.]
They
were
engaged
in a
highly mobile and fragile situation with shots fired.
[7.4.]
The
alleged suspect had dreadlocks during the incidents, Appellant had no
dreadlocks soon thereafter at the identification parade.
[7.5.]
They
were ordered to lie down before they could see the person they
thought was the Appellant whilst Sello was lying on the bed
her face
covered with her hands before she could see the person she thought
was the Appellant.
[7.6.]
Sello
and Molea did not have a receptive memory and could not even identify
the Appellant by any specific feature. Each one of them
also made a
mistake at the identification parade pointing out a person who was
not a suspect.
and
the sentence imposed upon him shockingly inappropriate.
[8]
The following evidence was led by Molea, Sello, Potlako, Tshepo,
Tshidlso and Mnisi an employee of the Langas. Tshldiso
lived on the
plot with the Langas In a room that is situated outside the main
residence. He testified that he heard shots and came
out of his room
to investigate. He was shot at and injured on his leg. He retreated
back into his room and phoned his grandfather
who reported the matter
to the police. Mnisi testified that he arrived at the plot at about
20h00, at the same time as the robbery
was going on. As he was
driving through the gate the windscreen of his car was shattered
apparently by a gunshot. He stopped the1
vehicle and saw Appellant
pointing a long firearm at his vehicle. He was coming from the
direction of the house. Him and Mr Hillary
Shumba ("Shumba")
who was a passenger in his car bent down inside the vehicle. They
heard more shots and then Appellant
opened the door of the vehicle
and demanded guns and cellphones. They
gave
Appellant their
cellphones. Appellant then turned and stood in front of Mnisi. At
that time he heard a noise coming frorn the house
and saw Accused l
walking behind Sello carrying her baby and pointing a gun at her.
Sello shouted at him to
give
the assailants the money. They
came and stood next to the vehicle. Appellant ordered him and Shumba
to come out of the vehicle and
lie down. He told them the money was
in the dash board. Accused l took the money but proceeded to search
him and found more money
in his pants. That infuriated Appellant who
suggested that he be killed for lying. Accused 1 persuaded him not to
do it. Accused
1 left and Appellant remained behind with him. He
identified both Appellant and Accused 1 at the identification parade.
According
to him he could see Appellant because his car lights
remained lit when he drove through the gate. He only switched them
off when
Accused was approaching him.
[9]
The other group Molea, Sello, Potlako and Tshepo all testified to the
fact that when the incident occurred, they were
in Caroline and
Molea's bedroom watching "TV. Molea and the 7 months pregnant
Sello were sitting on the bed with their 18
month old daughter
sitting between them. Potlako and Tshepo were sitting on the floor at
the foot of the bed. The TV was placed
a short distance from them at
the bottom of the bed on the chest of drawers. According to their
testimony, three assailants came
into the bedroom. The first to come
in was carrying a pistol. He was later identified as Accused 1. He
was followed later by another
assailant carrying a rifle whom they
identified as the Appellant. A third assailant walked in carrying a
pistol, he could not be
identified. When Accused 1 entered the room
he demanded money, cellphones and jewellery. He fired a shot at the
floor where Potlako
and Tshepo were sitting. Appellant came into the
room and also demanded money and cellphones. Molea was also assaulted
by the Appellant
and Sello struck on the stomach with thebutt of his
rifle. They were made to lie on the floor face down. Sello remained
on the
bed with her daughter clinging on to her. Sello testified that
Accused 2 sexually assaulted her by pulling down her pants and
putting
the rifle into her vagina. Guns were demanded, and from Molea
and Sello car keys. At various stages Sello and Molea were taken out
of the room to fetch car keys. There was contradiction on their
statement as to who was taken out first. At that time Langa senior
came out into the passage to see what the commotion was about and he
was shot in front of Molea and died.
[10]
Sello, further testified that after being taken out of the room to
fetch car keys of the various cars that were demanded, she
was taken
outside at gunpoint by Accused 1 who was also holding her baby. At
that stage Mnisi was driving into the plot with Shumba
coming back
from town. Mnisi was coming back from his earlier tripto cash a
cheque. She shouted at Mnlsl to hand over the money.
Appellant and
Accused 1 took the money and Mnisi and Shumba were made to lie face
down on the ground. Mnisi said when the police
arrived on the scene.
Accused 1 whistled to warn the others some of whom were loading their
belongings onto a bakkie and they started
to flee. Mr Shumba
confirmed that the car was shot at and that he was a passenger but he
could not identify any of the assailants.
[11]
The court a quo held an Inspection
In loco
at the plot.
Outside In the yard Mnisi pointed out various points including where
his car was parked at the second gate when the
windscreen was shot
at. He also pointed out the lighting outside which consisted of three
light bulbs mounted on trees next to
the gate. They were mounted
lights in the garden. The branch closest to the gate had been cut
down according to Mnisi and the light
that was there has therefore
been removed. The light mounted above the door on the side was also
pointed out. Inside Sello pointed
out the bedroom where they were
watching television and where she had been taken to fetch the car
keys. She also pointed where
she has been taken out of the house to
where Mnisi's car was parked. Later that night the two counsels for
the state and defence
attended at the property at 20h00 to check the
visibility at night. It was agreed that (1) visibility Inside the
bedroom was extremely
good (2) Outside, there is only one light
switch for all the exterior lights (3) visibility outside where
Mnisi's car was parked
was disputed because the exact lighting
situation could not be constructed the court could not make a finding
In that regard. A
Constable Mkhwanazi who took photos of the place on
that date after the Incident testified that visibility was good
outside, however
she still had to use her torch when taking pictures
of the vehicles.
[12]
The Appellant testified in his own defence. He denied he was ever
present on the plot. His testimony was that he lives in Lenasia
South. At the time the Incident is alleged to have taken place he was
building extensions to his home. He was arrested In May 2009
and was
familiar with De Deur.
[13]
Accused 1 also denied any involvement In the Incident. He indicated
that he stays and works in Germiston and has never been
to
Vereeniging or know De Deur. He was arrested at the Germiston Court
when he went to attend a court hearing of a relative charged
with an
unrelated offence. Two men approached him when he was leaving court.
They asked him what he was running away from. He denied
running away
from anything and produced his identity document. He was then
approached by two men including the investigation officer
constable
Ngoma ("Ngoma")-who told him that he has been pointed out
by the CID.
[14]
Accused 1 was actually pointed out at the Germiston court by Potlako
whom Ngoma had brought along to attend court in an unrelated
matter
to see if he could identify a suspect, one Shavani, whose
fingerprints were found on the scene. Accused 1 was sitting in
the
public gallery when he caught the attention of Potlako. Potlako was
not able to identify anyone from the suspects that appeared
in court
that day but for Accused 1. Mnisi also subsequently Identified'
Accused 1 at an identification parade. Potlako did not
attend the
Identification parade.
[15]
The essence of Appellant's contention about his Identification is
that it was flawed since the witnesses who pointed him out
were
involved In a highly mobile and fragile situation with shorts fired.
He was unknown to them and they had little time to observe
the
features of the said suspects when they were robbed and shots fired.
[16]
The
onus
of proof in a criminal case is discharged by the
State if the evidence establishes the guilt of the accused beyond
reasonable doubt.
In
S v Van Der Meyden
1999 12) SA 79
(WLDJ at 80H-81C it was held that
”
t
he
corollary Is that he Is entitled to be acquitted
if
it is reasonably possible
that he might be innocent
(see,
for example,
R v Difford
1937 AD 370
especially at 373,383).
These are not separate and independent tests, but the expression of
the same test when viewed from opposite
perspectives.
(my
emphasis)
[17]
Identity is a highly contentious issue and should be treated with a
considerable measure of caution, especially where there
is nothing
more to corroborate the evidence of identification or substantiate
the possible involvement of the identified Accused.
The issue to be
determined in that context would be whether the State has acquitted
itself
of
the
anus
resting on it to prove the guilt of
the appellant beyond reasonable doubt. The exercise of caution when
determining the- adequacy
of identification evidence, was enunciated
by Holmes J in
S v Mthethwa
1972(3) SA 766 (A) at 768 C
stating that:
"It is not enough for the
Identifying witness to be honest, the reliability of his observation
must also be tested.
This depends on various factors, such as
lighting, visibility, and eyesight, the proximity of the witness, his
opportunity for observation,
both as to time and situation, the
extent of his prior knowledge of the accused, the mobility of the
scene, corroboration, suggestibility;
the accused's face, voice,
build, gait, and dress, the result of the identification parades, if
any, and of course, the evidence
by or on behalf of the accused. The
list is not exhaustive.
These factors, or such of them as are
applicable in a particular case, are not
i
ndividually
decisive, but must be weighed one against the other,
In the light
of totality of
the evidence and the probabilities."
(my
emphasis)
[18]
It is further recognized that on the question of identification, the
confidence and sincerity of the witness are not enough;
see in
S v
Mehfape
1963 (2) SA 29
(A) where Williamson JA stated that:
"The often patent honesty,
sincerity and conviction of an identifying witness remain, however,
ever a snare to the judicial
officer who does not constantly remind
himself of the necessity of dissipating any danger of error in such
evidence."
[19]
That understanding is clearly outlined and approved in
S v Miggel
2007(1) SA 675 IC) at 678e citing
S v Mlati
1984 (4) 629
(a) at 632H-I, where the court stated that
"a witness'
honesty and own conviction as to the correctness of his or her
Identification can never be allowed to take the
place of an
Independent enquiry into the reliability of the identification
itself
."
[20]
The trial court was very much alive of the challenge of having to
determine the adequacy of the victims' identification evidence,
the
only link of both Accused 1 and the Appellant to the crime, there
being no other independent corroborative evidence. The reliability
of
their observation had to be put to the test. Therefore carefully
considering the pitfalls of subjective identification, the
trial
court painstakingly weighed the pertinent factors to be taken into
account in the case of both Accused, conducting a comprehensive
assessment of the evidence.
[21]
It found the identification of Accused 1 by Mnisi and Potlako
inadmissible. Potlako and Tshepo who were with Molea and Sello
in
their bedroom when the assailants came in, could not provide reliable
direct identification evidence of Accused 1 whom they
alleged was the
first assailant to come into the bedroom. Notwithstanding their
proximity to Accused 1, the room well lit, the
exchanges between them
and there being enough opportunity to observe the Accused, none of
them could provide a cogent description
of Accused 1's
distinguishable facial features except to say that he was wearing a
cap with a hoody, a beige drymac and all
star shoes. Potlako
alleged to have observed Accused 1 for 12 minutes. He could only
describe him as having small eyes, lips that
are dark like those of a
smoker and wrinkles on his forehead, nothing distinct. Accused 1 was
said to have shot at the floor near
where Potiako and Tshldi were
sitting. He then took away their cellphones. Potlako was not called
to attend the identification
parade. Sello; Molea and Tshidl failed
to identify Accused 1 at an identification parade. The court regarded
both incidents as
negative factors. Therefore the only evidence that
was left, likely to directly implicate Accused 1 was his separate
identification
by Mnisi and Potlako.
[22]
Mnisi who had testified that he saw Accused 1 walking behind Sello
carrying a baby, identified Ac used 1 at the ID parade.
He said
Accused 1 demanded money from him after Sello had told him to give it
to them. Although he told Accused 1 the money was
in the dash board,
Accused 1 searched him and found more money in his pants. Appellant
who was Infuriated because of the money
found In Mnisi 's pants,
suggested that he be killed for lying but Accused 1 persuaded
Appellant not to do so. According to Mnisi
he could see Accused 1
because his vehicle lights were on until he switched them off when
Appellant was approaching his vehicle.
For the reason that visibility
outside the house remained an issue, there being one switch that
operates all the lights with things
reconstructed and Constable
Mkhwanazl (who took photographs on the night of the incident) having
testified that even though the
light outside was sufficient she
nonetheless had to use a torch to take photographs of the vehicle,
the trial court did not accept
that the illumination outside was
enough for Mnisi to be able to see. Mnisi had also said he was made
to lie face down on the floor,
which was regarded by the trial court
to have further impaired his ability to observe Accused 1. A decision
I agree with since
counsel for both state and defence agreed after
their
inspection in loco
that as the lighting outside has been
tempered with, the exact illumination on the date of the incident
could not be reconstructed.
The court did not make a finding in that
regard. As a result Accused 1's allegation of innocence remained
reasonably possibly true.
So, taking all these factors into
consideration the court a quo fairly gave Accused 1 the benefit of
doubt with regard to the reliability
of his identification and
acquitted him.
[23]
In Appellant's instance, all the complainants who were in the bedroom
identified him at the identification parade including
Mnisi. Molea
took 30 seconds, Tshepo 10 seconds, Sello 18 seconds. It is their
version that Appellant is the second assailant who
came into the
bedroom holding a rifle. Sello said she saw him through her fingers
even though she had her hands covering her face.
She was struck on
the stomach by Appellant. He also pulled off her pants and assaulted
her with the butt of the rifle on her private
parts. Appellant also
held her child and took her out of the bedroom at gunpoint to get the
car keys from the other room. She had
looked at Appellant when he
assaulted her with the gun and whilst he touched her baby when she
was crying. She observed him for
approximately 8 minutes when they
were in the bedroom. She mentioned that Appellant had a small scar on
the side of one of his
ears. Appellant's counsel denied to Sello that
Appellant has the scar. Tshepo and Potlaki also testified to
Appellant's presence
in the bedroom, taking Molea's wallet and
mentioned the scar. Furthermore, all the witnesses from the bedroom
mentioned that he
had dreadlocks. Even though he appeared at the
identification parade without the dreadlocks or beard the witnesses
were able to
point him out. It turned out that 2 days before the
parade the Appellant had shaved his dreadlocks and beard off. Mnisi
who took
15 minutes to identify the Appellant at the parade also
mentioned to have noticed Appellant's dreadlocks during his encounter
with
him. He said he had his headlights on when he drove into the
yard and the Appellant was standing in front of the car. He switched
the lights off when the windscreen was shattered by gunshots. He also
said Appellant opened the door and told him and Shumba to
get out.
[24]
The scar and the dreadlocks are the two distinguishing features by
which the Appellant was identifiable. To counter the identification
by the dreadlocks, the Appellant alleged to have grown dreadlocks
only In March 2009. The court took into consideration that he
could
not remember the significance of remembering that particular date.
The Appellant in his application for leave took issue
with the lower
court taking into consideration that he shaved off his dreadlocks two
days before the parade. The complainants had
alleged to have been
robbed by somebody who had dreadlocks. For that reason that issue had
to be considered to determine the veracity
of the allegations. It
therefore matters that the Appellant indeed had dreadlocks on his
arrest which he shaved off Just before
the identification parade. It
is also significant that notwithstanding the Appellant appearing
without dreadlocks at the identification
parade the witnesses were
still able to identify him.
[25]
Appellant's challenge of the state witnesses' ability to see the scar
behind the Appellant's ear despite him having dreadlocks
that was
raised on leave to appeal was not raised during trial. Therefore the
resolution of that question is not supposed to be
an issue of appeal.
However for finality the contention is considered. The court has as a
result taken into account that Sello
had, in her evidence in chief,
mentioned that Appellant had “dreadlocks, shorter dreadlocks”
see p 92 line 2-3 of the
record. Potlako and Tshldl as well. It would
therefore have been possible to see the scar. When Sello mentioned
the scar, Appellant's
counsel denied that Appellant has a scar, even
after Counsel has had an opportunity to inspect the Appellant's ears
during an adjournment.
Appellant's counsel actually put it to Sello
and likewise to Tshepo that such a scar does not exist. At the time
Appellant did
not try to refute his counsel's denial even when the
denial was repeated by his counsel after he has been inspected by
him. Appellant's
counsel confirmed the existence of the scar only
after he had inspected Appellant's ear for the second time, In the
presence of
the state's counsels. This indicates the insincerity of
the contention.
[26]
The argument therefore by the Appellant in his appeal that the
witnesses did not have a receptive memory and could not even
identify
the Appellant by any specific feature has no merit. Besides, Sello
repeatedly mentioned during her evidence that because
of what
Appellant did to her she will not forget his face.
[27]
Appellant alleges further that Sello and Molea also made a mistake at
the identification parade pointing out 1 other person
who was not a
suspect. I fail to see how that advances the Appellant's contention
on the reliability of his identification by the
two witnesses. There
is sufficient evidence that implicates him to the commission of
offences beyond reasonable doubt, which is
what matters.
[28]
Appellant's final contention on his identification is that Molea
junior was ordered to lie down before he could see the person
he
thought was the Appellant whilst Sella was lying on the bed her face
covered with her hands before she could see the person
she thought
was the Appellant. This contention is also devoid of any truth as it
was the state witnesses' evidence that the Appellant
entered the
bedroom after the first assailant and demanded money and cellphones.
He was answered by Molea who informed him that
cellphones have
already been taken. He then hit Molea with an open hand. Molea had
also told Appellant that he has money in his
pants. Appellant then
took out the wallet from the pants, whereupon Appellant ordered them
to lie down. So there was an exchange
between Molea and Appellant
before he was ordered to lie down which he alleges, gave him an
opportunity to observe the Appellant
before he could lie down.
According to all the complainants in the bedroom, Sello and Molea
were taken out of the bedroom by Accused
1 and Appellant several
times to get the car keys. They allege also that Appellant touched
the child when she was crying. Hence
there were more instances for
Molea and Sello to observe the Appellant. Sello had a further
opportunity when Appellant took off
her pants and assaulted her with
a rifle. This further contention by Appellant also lacks any merit.
[29]
The Identification evidence against the Appellant therefore,
sufficiently formed the factual matrix for his conviction. A very
dim
view should be cast on Appellant and his counsel' for falling to
independently confirm that Appellant has a scar, especially
his
counsel's persistence with the denial after he had inspected
Appellant's ear. They also failed to offer an explanation when
they
later conceded as to why they denied that previously. It is also
significant that Appellant cut his dreadlocks two days before
the
identification parade was held. His conduct indicate an attempt to
conceal his involvement, which nevertheless. In the light
of the
totality of the evidence, his version that he was not involved is not
reasonably possible. The trial court had correctly
found that the
state had proven his guilt beyond reasonable doubt.
[30]
Appellant further challenges the sentence imposed upon him on the
ground that it is shockingly inappropriate and therefore
seeks the
appeal court's interference.
[31]
The general principle is that sentencing is within the trial court's
province subject to interference only If the court has
failed to
exercise the discretion properly and judiciously; see
S v Rabie
1975 i41 SA 855 (
A) at 857D-F. The power of the appeal
court' s interference only arises if the trial court' sentence is
vitiated by irregularity
or misdirection, in the absence thereof the
test often applied is whether the sentence appears to be disturbingly
inappropriate;
see
S v Narker and Another
1975 (1) SA 583
(A.O.) at p. 585C.
[32]
It is trite that the purpose of sentence is deterrence, retribution,
rehabilitation and prevention. Also that in determining
the
appropriate sentence to impose, a court should take cognizance of the
Zian triad that constitutes the three aspects upon which
an
appropriat
e
sentence is established, that is the offender, the
offence/s committed and the interest of society; see
S v Zinn
1969
(20 SA 537
(A).
In all three aspects their nature and the
surrounding circumstances play a vital role in determining the
appropriate sentence.
[33]
A sentence is therefore shockingly inappropriate if it does not
accord with the circumstances of the commission of the crime,
the
personal characteristics of the Accused and does not protect the
interest of society. It is therefore for the Appellant to
convince
the court that the sentence appealed falls short on these elements
and therefore shockingly inappropriate.
[34]
According to the record, for purposes of sentencing it was submitted
on behalf of Appellant that he has no previous conviction
and has
been in custody for 2 years before his sentencing. He Is a family man
with 5 children and supported his wife, mother and
children prior his
arrest. His father passed away when he was 10 years old. He has a
standard 7 education and 35 years of age.
He therefore could not be
regarded as youthful.
[35]
In Appellant's heads of arguments he has also indicated that the
sentence is shockingly appropriate because by the time he
is
considered for parole which would be 25 years from date of conviction
he will be 59 years old, anold man. He did not benefit
much from the
crime and some of the stolen items could not be moved. Lastly that he
is the only one taking the rap for the offences
when about 7 others
are free.
[36]
The Appellant had not only terrified, assaulted, robbed and wounded
his victims but mercilessly killed an unarmed deceased
when there was
no threat posed to him and his accomplices. The victims were very
scared and had all submitted to Appellant and
his co-assailants'
demands, there was no reason for the use of guns or any kind of
violence. Worse cruel is that not withstanding
being persuaded and
pleaded to by his co perpetrators not to kill or rape, he went ahead
to sexually assault the highly pregnant
Sello and heartlessly
murdered the deceased, showing that he is an unreasonable and a cold-
blooded killer. The character he has
shown when committing this
crimes outstrips the compelling weight his personal circumstances
might have carried for sentencing.
[37]
The victims were in the sanctity of their home where their safety and
privacy was violated by the Appellants and his co-assailants.
They
had to move as a result of those crimes that were committed against
them that day. The sentence imposed should carry a preventative
measure against the recurrence of such crimes in the interest of
society. Since guarding each and every family and citizen to ensure
their safety and security is not feasible, the least that can be done
is for the courts to ensure that appropriate sentences that
would
discourage likeminded persons to commit such crime are imposed.
[38]
The nature of the offence committed on count 1 brought the matter
within the purview of s 51 of the Criminal Law Amendment
Act 105 of
1997 (“the Act"), as amended, whereupon the legislature
had ordained certain sentences in these type of crimes
because of
their seriousness and prevalence in our society. The ordained minimum
sentences are to be imposed even when the offender
is a first
offender. The scourge of such crimes in our society have reached an
alarming proportion that the legislature deemed
it fit to interfere.
Therefore the offender does not start on a clean slate on which the
court can inscribe its own sentence but
from a premise that a murder
committed during a robbery with aggravating circumstances attracts
the Imposition of a life sentence,
unless substantial and compelling
circumstances are found to exist. Courts have been warned not to lose
sight that the primary
concern of the legislature is to make sure
that deterrence and retribution come to the fore as these crimes are
regarded to be
more against the Interest of society and therefore
obliged to Impose these sentences unless there are truly convincing
reasons
from departing from them; see
S v Matyityi
(2011]
2
All SA 424
(SCA).
[39]
Appellant could have avoided the killing of the deceased had he
listened to his co assailants. He displayed a degree of
inhumaneness, aggressiveness and a total disregard for life. There
was no explanation why he found it necessary to kill the deceased.
So
even though I do not agree with the court a quo that the murder was
premediated and /or planned, however, due to the fact that
it was
committed during a violent robbery, taking into consideration all the
other factors I have already mentioned, I find no
substantial and
compelling circumstances that justifies a lesser effective sentence.
The sentence of life imprisonment is not shockingly
inappropriate but
proportionate with the character of the Appellant, the crimes he has
committed, the circumstances of the commission
of the crimes and the
society's Interest.
[40]
Courts have, in many instances were life imprisonment is imposed,
weighed the gravity or harshness of the sentence by referring
to the
age of an offender and adding the number of years he will have to
spend In custody before he is released or eligible for
parole to find
It shockingly inappropriate. Basing the reason barely on age
notwithstanding the heinousness of the crime committed
is unfair and
discriminatory. I do not agree with counsel's proposition. Even
though Appellant's counsel did not refer the court
to any authority
that will find favour with his proposition in that regard. I have
considered the recent matter of
Mvubu v s
2016 (518/2016)
2016
ZASCA 184
(29 November 2016). Accused were convicted of five
counts of attempted murder and four counts of robbery with
aggravating circumstances,
flowing from what is commonly known as a
'cash-In-transit heist'. The trial court imposed sentences equalling
205 years imprisonment
for the crimes committed by the Accused. They
were to serve effectively 95 years in prison considered cumulatively,
which sentence
agreeably was over the top. The sentence was reduced
to 45 years on appeal to the full court. On further appeal to the
SCA, since
there were no misdirection levelled against the trial
court, the court had to consider on the basis of the sentence being
shockingly
inappropriate If there was such a disparity between what
it could have imposed and what the trial court imposed, the crucial
issue
being whether the appellate court is able to arrive at a
definite view as to what sentence it would have imposed. It went on
to
state that:
"It has been accepted that life
imprisonment is the most severe sentence that can be imposed, and it
is the sentence that has
to be imposed if an offender needs to be
removed from society. The sentence of 45 years' imprisonment that was
imposed on appeal
would have the effect that the appellant, who was
around 28 years old at the time of the incident, would be some 80
years of age
at the time of his release. It is improper to take into
consideration any possibility of parole in determining a suitable and
proper
sentence. Thus, despite the aggravating circumstances I have
mentioned, the sentence imposed by the full court is effectively one
of life imprisonment and that is shockingly inappropriate. I am of
the view that the effective term of imprisonment in this Instance
should be 30 years. I am reinforced in that view by counsel for both
the appellant and the State agreeing that such a sentence
is
appropriate."
[41]
Although I agree with the court for discouraging the tendency to take
Into consideration the possibility of parole to determine
an
appropriate sentence, age seem to have played a significant role in
persuading the court to impose a lesser sentence. The accused
had
committed heinous crimes as it has also found. They shot at the
policemen, one of them now a paraplegic, the security guards
who were
trapped inside the money van that had overturned \'\!ere shot at and
robbed of the firearms, robbing and shooting members
of the public,
brazenly blocking the national road to execute the robbery. They were
not letting anything stand on their way. That
Appellant was 28 years
old should not have played such a strong persuasive role and must
have been the least of factors considered
where such abrasiveness was
displayed when committing the serious crimes. The character of the
offender as revealed by the circumstances
surrounding the commission
of the crime, the seriousness of the crimes committed and the
harmonious existence of society should
be paramount to the decision
of the court as it was in
casu.
Under
the circumstances, I propose the following order:
1.
Appellant's appeal against his conviction and sentence is dismissed
N V KHUMALOJ
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
concur and it is so ordered
WRC
PRJNSLOO J
JUDGE
OF THE HIGH COURT,
GAUTENG
DIVISION, PRETORIA
I
concur
For
the Appellant: ADV S MOENG
Pretoria
Justice Centre
Tel:
012 401-9200
Fax:
012103-8837
For
the Respondent: ADV A P WILSENACH
Director
of Public Prosecutions
Gauteng
Division, PRETORIA.
Date
heard: 16 September 2016
Date
delivered: 23 February 2017