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[2017] ZAGPPHC 308
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Nkosi and Another v S (A347/2015) [2017] ZAGPPHC 308 (2 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: A347/2015
Date
of Appeal: 31 January 2016
Revised
Judgment
2/5/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED:
YES
In
the matter between
NKOSI,
SABELO First
Appellant
MYENI,
WANDILE Second
Appellant
and
THE
STATE
Respondent
JUDGMENT
MADIMA,AJ
[1]
The First Appellant was convicted in the Benoni Regional Court
on 4 February 2014, on the following counts:
Count 1
- robbery
with aggravating circumstances.
Count 2
- murder.
Count
3
- pointing of a firearm.
Count 4
- unlawful
possession of a firearm;
alternative to Count 4
-
unlawful possession of a prohibited firearm.
Count 5
- unlawful possession of ammunition.
[2]
The First Appellant was sentenced to 15 years imprisonment
with respect to
Count
1. Life imprisonment with respect to
Count 2
. 6 months imprisonment with respect to
Count 3,
which was to run concurrently with the sentence imposed with respect
to
Count 2
. 5 years imprisonment with respect to
Count 4,
2 years of which was to run concurrently with the sentence imposed
with respect to
Count 2,
and 6 months imprisonment with
respect to
Count 5,
which was to run concurrently with the
sentence imposed with respect to
Count 4
.
[3]
The Second Appellant was convicted in the same trial on the
following counts:
Count 2.
relating to murder.
Count 3,
relating to the pointing of a firearm;
alternative to Count 4,
relating to unlawful possession of a prohibited firearm.
Count
5,
relating to unlawful possession of ammunition.
[4]
The Second Appellant was sentenced to 18 years imprisonment
with respect to Count 1. 6 months imprisonment with respect to
Count 3,
which was to run concurrently with the sentence
imposed with respect to
Count 2
. 5 years with respect to
alternative to Count 4,
2 years of which was to run
concurrently with the sentence imposed with respect to
Count 2,
and 6 months with respect to
Count 5,
which was to run
concurrently with the sentence imposed with respect to
Count 4
.
[5]
The First and Second Appellants are to serve an effective
sentence of life and 21 years in prison respectively. Both the First
and
Third Appellants were represented at the hearing. The
appellants were represented at the trial. They are both appealing
their
conviction and sentence with leave of the court a
quo.
[6]
The appellants submit that Mr. Virk, the store-owner, was not
able to identify the person that allegedly robbed him of 17 cell
phones
from his store. The only link between the First Appellant and
the cell phone stand in the shop is the presence of his fingerprints
thereon. The First Appellant offered two explanations - first, he
stated that he did not know how his fingerprints ended up where
they
were found; second, he stated that the fingerprints were not his.
[7]
A further explanation was that the First
Appellant resided in the area of Mr. Virk's store.
He often
visited the store when he wanted to buy appliances or a cell
phone. Buyers were not allowed to touch the cell phones, and could
only touch the cell phone stands. Mr. Virk's evidence was that cell
phones are indeed handed over to customers who wished to purchase
them. There can be no other credible explanation how the First
Appellant's prints came to be present on the phones. The three
different versions that the First Appellant offers in this regard
point in one direction only - that he is the culprit.
[8]
Regarding the charge of pointing a firearm and murder charge,
the Magistrate is said to have erred by finding that Mr. Zwane and
Mr. Gwebu had had ample opportunity to see the perpetrators. The
issue in this instance is again one of identity. The evidence
tendered is that the incident happened around 18.00. There was ample
light and therefore visibility was good. Mr. Zwane and Mr.
Gwebu had
more than enough opportunity to observe the First and Second
Appellants run away after Mr. Zwane had witnessed the First
Appellant
shooting the deceased. Mr. Zwane was able to point out
the First and Second Appellants at an identification
parade.
[9]
The guidelines regarding whether the issue of identity
has been proven beyond a reasonable doubt are set out in
S. v.
Mthetwa,
1972 (3) SA 766
(A), where the Court held that
"..
.because of fallibility of human observation, evidence
of identification is approached by the court
with caution. It is not enough
for
the
identifying witness to be
honest: the reliability of this observation must also be
tested.
This
depends on various factors such as lighting, visibility, eyesight,
the proximity of the witness, his opportunity for observation,
both
as to time and situation, mobility of the scene, corroboration
evidence by or on behalf of the accused."
[10]
The Magistrate is further said to have erred by convicting the
Appellants on the evidence of a single witness. The arresting officer
stated in his evidence that he was not alone when he effected the
arrest. However, no other person was called to corroborate that
testimony. Thus the evidence of the arresting officer was unreliable,
so the argument went.
[11]
The Respondent's version is that the Appellants and one other
person were inside a Quantum motor vehicle when they were arrested.
The evidence of Constable Sibeko was that indeed the three
accused were in the vehicle. This, despite the fact
that
the Second Appellant denies it.
[12]
Regarding sentence, the Magistrate is said to have erred when
he did not find that there were compelling circumstances to deviate
from imposing life imprisonment with respect to the First Appellant.
These circumstances are that the First Appellant was 27 years
old at
the time of the incident. He has two minor children. He has been in
custody awaiting trial for 22 months. He was employed
by the Taxi
Association as part of the patrol crew. He earned R250,00 per week.
[13]
The Respondent's case on sentence is that the Court took all
of the personal circumstances of the Appellants, the nature of the
crimes, the seriousness and prevalence of the offences, as well as
the interests of society, into account when considering an
appropriate
sentence. The First Appellant, for his part, has a long
list of previous convictions, some of which indicate his propensity
for
violence.
[14]
It is trite that issues of sentence are best left to the
sentencing Court. A Court on appeal should only interfere where the
Court
a
quo's
discretion was not exercised judicially. A
misdirection by the Court a
quo
should not be
de minimis,
but should be of a particular degree of seriousness that it shows
that the Court did not exercise its
discretion
at all, or it exercised it improperly or unreasonably:
S.
v.
Barnard,
200 (1)
SACR
191 (SCA) at 194 C-D.
[15]
The Court a
quo
considered the personal circumstances
of the Appellants, as well as the prevalence of this type of crime
within the community. Our
Courts have also considered the question of
mercy in sentencing. In
State v. V,
1972 (3) SA at page 614,
the Court held that:
"The element of
mercy, a hallmark of civilized and enlightened administration, should
not be overlooked lest the court be in
danger of reducing itself to
the plane of the criminal."
[16]
In
State v. Van Westhuizen,
1974 (4) SA at page 66 D-E,
the Court stated that:
"What we mean
when we talk of a criminal court extending mercy is really this, that
justice must be done but it must be done
with compassion and
humanity, not by rule of thumb,
and that a sentence
must be
assessed
not callously or arbitrarily or vindictively,
but with due regard to the weaknesses of human beings and their
propensity for succumbing
to temptation."
[17]
The death of any human being in the hands of violent criminals
should attract a fitting sentence. The accused needs to demonstrate
substantial and compelling circumstances in mitigation if he is to
escape a sentence of life in prison. In this case, the First
Appellant shot to death an innocent person without regard to the very
same considerations that he seeks this Court to afford him,
namely,
that he has children to look after. The deceased was shot eight
times. It does not get more violent and barbaric than that.
[18]
There is little doubt that the community at-large is
sick-and-tired of the criminal behaviour of people like the
Appellants. The
Magistrate cannot be faulted for the sentence that he
imposed on the Appellants.
[19]
The Second Appellant is equally a violent man. Although he did not
pull the trigger, he acted in common purpose
with the First
Appellant. 18 years is a fair sanction with regard to him. The
Court a
quo
cannot be criticized for the sentence. I see no
misdirection on the part of the trial court in the imposition of the
sentence imposed
on the Second Appellant. It is similarly my view as
the court held in
S v Khumalo
1973 (3)
Sa
697
(A) at
698A,
that
"Punishment must fit the
criminal as well as the crime, be
fair
to
society,
and
be
blended
with
a
measure
of
mercy
according
to
the
circumstances."
[20]
The Court a
quo
cannot be faulted in any way in its findings
and sentence. In the circumstances, I make the following Order:
1.
The appeal on conviction is dismissed;
2.
The appeal on sentence is dismissed.
…
.........................................
T.
S. MADIMA
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
I
concur
…
.........................................
N.
V. KHUMALO
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
On
behalf of the Appellants:
Adv. M.C.
Ndalane
Instructed
by:
Legal Aid South Africa
On
behalf of the Respondent:
Adv. J.P. Van derWesthuizen
Date
of Hearing:
31 May, 2016
Date
of Judgment:
31 May, 2016
Date
of Request for
Revised
Judgment
13 March 2017
Date
of Revised Judgment
2 May 2017