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[2017] ZAFSHC 94
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S v Morake (58/2017) [2017] ZAFSHC 94 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review No. :
58/2017
THE
STATE
versus
LOBISI
MORAKE
CORAM:
DAFFUE,
J
et
SNELLENBURG, AJ
JUDGMENT
BY:
SNELLENBURG, AJ
DELIVERED
ON:
15 JUNE 2017
[1]
Lobisi Morake, a 26 year old male, who was legally represented during
the trial, was convicted and sentenced in the Regional
Court on a
charge of murder. The accused was sentenced to 6 years imprisonment
in terms of the provisions of section 276(1)(
i
)
of the
Criminal Procedure Act, 51 of 1977
[CPA]. No order was made in
terms of
section 103(1)
of Act 60 of 2000.
[2]
On 15 December 2016 it came to the Magistrate’s attention that
she erroneously sentenced the accused in terms of the provisions
of
section 276(1)(i) whilst it was her intention to sentence the accused
in terms of the provisions of section 276(1)(
b
).
The sentence of 6 years imprisonment is not competent in terms of the
provisions of section 276(1)(
i
)
of the CPA, but it would be competent in terms of the provisions of
section 276(1)(
b
).
[3]
The Magistrate requested a review of the sentence in terms of the
provisions of section 304(4) of the CPA.
[4]
The review has become protracted as result of enquiries directed by
the reviewing Judge before whom the review initially served.
The
query was responded to and the review subsequently served before me.
In the reasons for the review the Magistrate indicated
that she had
some trouble reconstructing the record. When the record served before
me it was still not complete. It was further
reconstructed but, as it
turns out the evidence in chief of the accused’s witness, Ms
Khota, is still amiss.
[5]
It is necessary to deal with the matter, in light of the
aforementioned, as this Court needs to determine whether the
proceedings
as a whole were in accordance with justice, bearing in
mind the Magistrate’s erroneous application of section
276(1)(
i
)
of the CPA and the fact that the evidence in chief of Ms Khota is not
available.
[6]
The mere fact that the record is incomplete does not by necessary
implication lead to the conclusion that there was a failure
of
justice. It similarly does not imply that the review on the record as
it stands will prejudice the accused. To this end the
remarks of
Brand, JA in
S
v Chabedi
2005
(1) SACR 415
(SCA)
paras
5 and 6 are instructive:
“
[5]
On appeal, the record of the proceedings in the trial court is of
cardinal importance. After all, that record forms the whole
basis of
the rehearing by the Court of appeal. If the record is inadequate for
a proper consideration of the appeal, it will, as
a rule, lead to the
conviction and sentence being set aside. However, the requirement is
that the record must be adequate for proper
consideration of the
appeal; not that it must be a perfect recordal of everything that was
said at the trial. As has been pointed
out in previous cases, records
of proceedings are often still kept by hand, in which event a
verbatim record is impossible (see,
eg,
S
v Collier
1976 (2) SA 378
(C) at 379A - D and
S
v S
1995
(2) SACR 420
(T)
at
423
b
- f
).
[6]
The question whether defects in a record are so serious that a proper
consideration of the appeal is not possible, cannot be
answered in
the abstract. It depends,
inter
alia,
on the nature of the defects in the particular record and on the
nature of the issues to be decided on appeal.”
[1]
The
principles are equally applicable to these review proceedings. It
follows that the proceedings need to be considered in totality
to
determine whether the defects in the record result in the proceedings
not being in accordance with justice or having the result
that the
conviction and sentence should be set aside.
[7] The state’s
case can be summarised as follows:
7.1
Mrs Maarman testified that during the evening of 27 August 2011 at
about 19h00 she, her mother, her son-in-law,
youngest child and her
uncle, Mr Johnson Mvundle [the deceased] were underway in a motor
vehicle when they saw the accused in the
company of two ladies. The
accused was assaulting one of the ladies. The deceased
requested Mrs Maarman’s son-in-law,
who was driving the
vehicle, to stop the vehicle to enable the deceased to render
assistance to the woman being assaulted. The
deceased verbally
confronted the accused as to what he was doing. This aggravated the
accused who cursed at him and started to
approach the deceased. It
was clear that the accused intended to confront the deceased. The
occupants of the vehicle told the deceased
that they should rather
leave; they got back into the vehicle and started driving off. Whilst
driving away they heard what sounded
like stones hitting the vehicle.
Mrs Maarman recognised the accused, in the company of another
gentleman, throwing stones at the
vehicle.
7.2
Mrs Maarman then requested her son-in-law to stop the vehicle; she
got out and asked the accused what he wanted.
The accused responded
that he did not want trouble with her, but wanted the driver of the
vehicle. At that stage she noticed a
group of boys, numbering 7 to 8,
approaching them. The deceased had in the meantime joined her. The
group of boys grabbed the deceased
and started to assault him. The
accused hit the deceased repeatedly with an object which looked like
a knopkierie or iron rod or
something of that sort. Mrs Maarman could
not see exactly where the deceased was being hit, but she saw the
accused hitting the
deceased with this object whilst the group of
boys also assaulted the deceased. Mrs Maarman hid at a nearby church
from where she
observed the assault. She was approximately 8 to 10
metres away. She focussed on the accused and clearly saw him
repeatedly hit
the deceased with the object he was wielding. There
was sufficient lighting. Mrs Maarman last saw the group dragging the
deceased
to a veld. She could hear the deceased crying and screaming.
Her son-in-law and the remainder of the occupants had by that time
left. She assumed that they had gone to the police station to seek
help. This turned out to be a correct assumption.
7.3
Mrs Maarman left the scene and ran to the ‘township’ to
seek help. On her way she met the lady
the accused had assaulted
earlier and she asked her who the accused was. The lady identified
him as Lobise. She then went home
to seek assistance from the
gentleman with whom she resided. When she reached her home she met
two off-duty police officials. One
of them, Mr Elias Smith, was well
known to her. She asked them to accompany her to where her uncle was
being assaulted, but when
they reached the place where she had last
seen him neither the deceased nor the persons who had assaulted him
were there. On their
way back, at the exact place where she had met
the lady who had been assaulted by the accused she saw the accused.
7.4
Mrs Maarman pointed out the accused to Constable Smith as one of the
people that had assaulted her uncle.
Constable Smith approached the
accused and asked him where Mrs Maarman’s uncle was. The
accused responded by pointing and
saying “
I
left that guy there
”
.
The accused pulled a knife from his jacket but Constable Smith told
him that they were not there to fight him, they were only
interested
in finding Mrs Maarman’s uncle. The accused then repeated that
“
he had left him
there”
.
7.5
In the meantime Mrs Maarman’s mother and son-in-law accompanied
the police to the place where they had
last witnessed the assault.
Mrs Maarman’s mother informed her by means of cellular phone
that they were with the police pursuant
to which she went back to the
place. She saw police vehicles and an ambulance. The deceased was
already in the ambulance. The deceased
succumbed away from his
injuries two to three days after the assault.
7.6
Mrs Maarman’s mother had in the meantime suffered a stroke and
can no longer speak or walk. Her daughter
and son-in-law had
relocated to the Eastern Cape and was separated at the time of the
trial and she lost contact with her son-in-law.
7.7
It would not be unfair to remark that the cross-examination did not
yield any material contradictions or deviations
in her testimony.
7.8
Constable Smith testified that he and a colleague went to Mrs
Maarman’s house to borrow money. It was
well-known that Mrs
Maarman conducted a small shop from her home. She was not home. As
they were leaving her yard they saw her
approaching. He understood
from Mrs Maarman that people had taken her uncle and were fighting
him. They accompanied her to the
place where she believed the assault
was taking place, but there was nobody at that place. On their way
back she pointed out the
accused as one of the persons who assaulted
the deceased. Constable Smith knew the accused and recognised him.
They approached
the accused and asked him where Mrs Maarman’s
uncle was. The accused pointed with his arm and said “
we
had left that guy there
”
.
Mrs Maarman was upset and wanted to confront the accused who then
pulled a knife. Constable Smith stopped Mrs Maarman and
advised her
to report her uncle as a missing person and to lay charges with the
police if he had been injured.
7.9
The identification of the deceased, transport of his body without
further injuries to the corpse and post
mortem report were admitted
by the defence. Suffice it to say that the post mortem confirms that
the deceased suffered a brutal
assault. The post-mortem shows amongst
other injuries, that the deceased had numerous abrasions and
lacerations to the head and
face; massive deep scalp haemorrhages
presented over most of the left and left-frontal parts of the skull
and a shallow stab wound
on the right side of his back. The cause of
death was head injuries.
[8]
The defence case can be summarised as follows:
8.1
The accused testified that on the evening in question he was on his
way home with a friend. He had to pass
the home of one Boniwe, who
was standing outside her house with his partner, Letsego when they
approached. The ladies asked him
to buy them cold drinks whereupon he
informed them that he had money at home. They accompanied him to his
home. When they approached
his house a vehicle was parked in front of
his gate. He was unable to gain entrance to his yard because the
vehicle obstructed
his access. He knocked on the passenger side
window and when it was lowered he requested the occupants to move the
vehicle away
from his gate. The occupants ignored him and he repeated
his request. The driver of the vehicle then insulted him. The accused
responded by returning an insult to the driver of the vehicle. The
occupants of the vehicle, four gentlemen and two ladies alighted
from
the vehicle. The driver assaulted him by using his hands whilst the
two ladies who were in his company were assaulted by the
female
occupants of the car. He testified that Mrs Maarman was one of the
occupants of the vehicle who assaulted them. He started
throwing
stones at the people who were assaulting them. The assailants at a
stage realised that the accused was back in his yard,
whereupon they
got into the vehicle whilst he was throwing stones at them and drove
off. He chased after them but could not catch
up with the vehicle.
8.2
The accused testified that Boniwe had a blue eye as a result of the
assault and some of Letsego’s hair
had been pulled out. He gave
the ladies the money they had requested to buy cold drinks and told
them he was going to watch a soccer
game. As he was locking his
house, Boniwe asked that he rather stay with her because she was
afraid after the assault. He accompanied
them to her house to watch
the soccer game there. During the second half he heard people calling
him. He saw that it was Constable
Smith. He went outside to speak to
Constable Smith. After they had greeted each other Mrs Maarman
approached him aggressively and
said to Constable Smith “
here
is Lobise
”
.
She asked him where her uncle (the deceased) was. The fight earlier
was fresh in his memory and he went into Boniwe’s house
to
fetch a knife. When he walked out with the knife in his hand Letsego,
Boniwe and Constable Smith “apprehended” him.
He reported
the fight to Constable Smith and requested him and Mrs Maarman to
leave, which they did.
8.3
Letsego Khota, the accused’s partner also testified on his
behalf. Her evidence-in-chief is amiss from
the record. From the
cross-examination it is evident that she gave a very similar
recollection of events pertaining to the reason
for the fight and the
fight itself as well as how they ended up at her house. Ms Khota
refused to concede that the accused at any
time had a knife in his
possession and was selective regarding what she could hear of the
conversation between the accused and
Constable Smith. Suffice it to
say that she denied that the accused would have admitted that he left
Mrs Maarman’s uncle
(the deceased) somewhere. In
cross-examination Ms Khota was taken to task about the fact that if
the events she was testifying
to truly transpired as she wanted the
court to believe it was inconceivable that she would not have heard
the accused admitting
that he “
left
that guy there
”
.
She was also confronted with the fact that even the accused admitted
fetching the knife and that her sole purpose was to promote
the
accused’s version at any costs, not to be truthful regarding
what truly transpired.
[9]
The Magistrate was alive to the fact that the totality of evidence
needs to be evaluated.
[2]
She was alive to the fact
that there were contradictions in both the State and defence cases
and what the correct approach to such
contradictions were
[3]
.
The Magistrate did not merely recite the case law and pay lip service
to the principles enunciated. It appears from her judgment
that she
carefully evaluated the evidence and applied the legal principles
that she referred to. The Magistrate in my view correctly
concluded
that Mrs Maarman’s evidence, as single witness, was
satisfactory in all material aspects. Her evidence regarding
the
accused’s reaction when asked where the deceased was, was
collaborated by Constable Smith who, save for the fact that
he had
absolutely no reason to give false evidence, withstood the rigours of
cross-examination with distinction. Constable Smith
made all the
concessions one would expect from an objective witness, contrary to
Ms Khota who refused to make any concessions whilst
it is clear that
she should have made concessions. The Magistrate’s evaluation
of the evidence cannot be faulted. She of
course had the benefit of
being present when the witnesses testified in court. The record does
not reveal any material misdirection
in the evaluation of the
evidence.
[10]
I accept that Ms Khota confirmed the accused’s version
regarding the alleged altercation, save for the aspects that appear
from the cross-examination. The judgment notes a further
contradiction in Ms Khota’s evidence in chief regarding the
altercation,
namely that she testified that when the accused asked
the driver of the vehicle to back away from the gate, the driver got
out
and insulted the accused.
[11]
When considering the evidence it is clear that the accused’s
version was rightly rejected by the Magistrate or put differently
the
Magistrate’s finding that the State rebutted the presumption of
innocence by proving the accused’s guilt above
reasonable doubt
cannot be faulted. The Magistrate says that the accused made a poor
impression on her, was mendacious and that
his version was farfetched
and improbable. I agree.
[12]
The accused was the main instigator and participant in the assault.
Ms Maarman saw him repeatedly striking the deceased with
an object
which was described by Mrs Maarman as being the like of a knopkierie
or iron rod. The post-mortem shows that the majority
of injuries were
to the deceased’s face and head. The deceased passed away as
result of severe head trauma. The Magistrate
found that the accused
had common purpose with the group of boys that assaulted the
deceased. Even if there was no agreement, the
evidence clearly shows
that the accused was present at the scene where the acts of violence
were being committed; he knew or must
have been aware of the attack;
he intended to make common cause with the perpetrators of the violent
acts; and he manifested this
intention by himself performing acts of
association with the conduct of the others that assaulted the
deceased.
[4]
[11]
The incomplete record does not result in the inability to consider
the matter, nor does it result in the failure of justice.
I am
satisfied that the conviction must be confirmed.
[12]
As far as the sentence is concerned, I am satisfied that the
Magistrate intended to sentence the accused to 6 years imprisonment
and merely referenced the wrong subsection when sentencing the
accused. That stands to be corrected. The sentence itself appears
to
be very lenient if all the relevant facts are considered.
[13] I make the following
orders:
1.
The
conviction is confirmed.
2.
The
sentence, duly amended to read, “In terms of section 276(1)(
b
)
of the
Criminal Procedure Act, 51 of 1977
the accused is sentenced to
6 (six) years imprisonment”, is confirmed.
____________________
N. SNELLENBURG, AJ
I
concur.
______________
J.
P. DAFFUE, J
[1]
Also see
Machaba
& Another v The State
2016
(1) SACR 1
(SCA);
[2015] 2 ALL SA 552
(SCA) para 4 & 5.
[2]
DPP v Moloi
(1101/2015)
[2017] ZASCA 78
(2 June 2017).
The
Magistrate quoted passages from
S
v Van der Meyden
1999 (1) SACR 447
(W) where Nugent, J (as he then was) explaines the
correct approach at the end of the trial in order to determine
whether the
State has satisfied its onus, more specifically the
requirement that the trial court must never look at evidence
implicating
the accused in isolation in order to determine whether
there is proof of reasonable doubt. The Magistrate also referred to
the
judgment of
S
v V
2000 (1) SACR 543
(SCA) at 456a-c.
[3]
The Magistrate relied on
the dictum in
S
v Mkohle
1990 (1) SACR 95
(SCA) dealing with the evaluation by a trial court
of contradictions.
[4]
S v Mgedezi &
others
1989
(1) SA 687
(A) at 705I-706B.