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[2017] ZAFSHC 106
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Menyatso v S (A153/2016) [2017] ZAFSHC 106 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A153/2016
In
the matter between:
SAMUEL
MENYATSO
Appellant
and
THE
STATE
Respondent
CORAM:
LEKALE, J
et
MHLAMBI,
J
HEARD
ON:
12 JUNE 2017
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
15 JUNE 2017
SUMMARY:
Criminal law- Common purpose and inferential reasoning- Two witnesses
effectively corroborating each other on identity
and complicity of
appellant in murder- One witness seeing appellant in a group which
chased and followed the deceased into the
street leading to his
residence- The other witness shortly thereafter witnessing appellant
among a group of people attacking the
deceased at his residence.
Deceased later dying from injuries sustained in the attack - That
appellant either attacked or made
cause with actual perpetrators to
murder deceased the only reasonable inference to draw from the facts
- No cause shown to interfere
with life imprisonment as prescribed
minimum sentence. Appeal dismissed.
[1]
On 8 June 2014 and in the early hours of the morning, one Matshediso
Moshoaesi (the deceased) sustained 43 stab or chop wounds
around the
head and upper body, which eventually claimed his life, when he was
attacked by between 12 and 20 men in the yard of
his residential home
at Kutlwanong Odendaalsrus. The appellant was, thereafter,
arrested and identified at an identification
parade as one of the
culprits by the deceased’s cousin sister. He was charged
with murder read with the provisions
of section 51(1) of the Criminal
Law Amendment Act 105 of 1997 (Minimum Sentences Act).
[2]
About 17 months after his arrest and on 2 November 2015 the
appellant, who was legally represented, was convicted and sentenced
to imprisonment for life by the Regional Court sitting at
Odendaalsrus. He feels aggrieved by that state of affairs and
now exercises his automatic right of appeal against both the
conviction and sentence before us.
[3]
On returning the guilty verdict the trial court rejected the
appellant’s version as being devoid of any truth. The
court below, further, accepted the State’s version of events
and concluded therefrom that the appellant acted in concert
with a
group of some 20 people to stab the deceased 43 times.
[4]
On the papers and in argument before us, Mr Reyneke for the appellant
submits,
inter
alia,
to the effect that his instructions are that the trial court should
have accepted the appellant’s version as reasonably possibly
true regard being had to the fact that the eye witness was, in fact,
a single witness on the actual attack of the deceased.
According to his instructions the sentence is shockingly harsh and
the court below erred in not finding cause to deviate from life
imprisonment as the prescribed minimum sentence.
[5]
On its part the State supports both the conviction and sentence with
Mr Simpson contending,
inter
alia,
to the effect that the eye witness’ evidence was satisfactory
in all material respects insofar as she did not contradict
herself
and the trial court, correctly, applied caution in dealing with her
evidence both as a single witness and an identification
witness.
In his view the sentence imposed is not shockingly inappropriate and
there existed no irregularity or misdirection
on the part of the
trial court with regard to the sentence imposed.
[6]
The factual basis for the conviction is apparent from the evidence of
the deceased’s cousin sister, one
Dikeledi
Moshoaesi
(Dikeledi) and his friend and one of his companions when he met his
assailants one
Moahlodi
Sefotlheho
(Moahlodi).
6.1
Dikeledi
testified
to,
inter
alia,
the effect that in the early hours of the fateful morning she became
aware of a group of between 12 and 20 people in the yard attacking
the deceased with pangas. She switched on the kitchen lights
and went to her father’s bedroom to alert him. She
proceeded to the kitchen and drew the curtains whereupon she saw the
appellant about 2 metres from the kitchen window. She
looked at
him for about 2 minutes and was able to see his face. Although
it was the first time she saw him, she was able
to recognise him by
his complexion, height and pimple-like bulge on the right side of his
face. Under cross examination she
testified that she did not
see any weapons in the appellant’s possession and she, further,
did not see him stab or attack
the deceased. The appellant was
the last one to walk away from the deceased when she drew the
curtains while others immediately
ran away. She confirmed that
visibility was good as the lights outside the house were one and
there was a high mass light
(the so called apollo light) some 100
metres from the house. The deceased had sustained many stab
wounds all over the body
including the head. She identified the
appellant at the identification parade.
6.2
Moahlodi,
on
his part, testified to,
inter
alia,
the
effect that on 7 June 2014 he met the deceased at a tavern in
Kutlwanong
Odendaalsrus after 8:00 in the morning and they remained in
each other’s company, enjoying alcohol from one
tavern to the
other together with other people until about 02:00AM on the 8
th
June 2014. On their way from a tavern at Block 5 Kutlwanong,
while trying to locate a battery for his cellphone which he
had
thrown to the ground, the deceased alerted them to a group of people
which was approaching them. The appellant, who was
at the
forefront of the group in question, started calling out at him and
the deceased accusing them of being FBI members and insulting
them by
referring to their mothers’ private parts. Visibility was
good as they were in close vicinity of the apollo
light. He
knew the appellant very well as they grew up together playing street
soccer and stayed in the same area at Block
7. The group
consisted of more than 12 people who had dangerous objects in their
possession. They turned and ran away
with the group very close
on their heels as he could see the shadows of the objects in their
possession which were shining.
They entered the street leading
to the deceased’s residence and, when they felt that it was
safe to pause and look back,
they noticed that the group and the
deceased were no longer following them. He could see the
appellant’s dress code.
They then went home to sleep and
he later learnt that the deceased was murdered. He was once a
member of FBI gang but resigned
therefrom between 2007 and 2008 after
he was stabbed in the neck.
[7]
In our law the factual findings of the trial court, its acceptance of
oral evidence and conclusions thereon are presumed to
be correct
unless and until they are shown to be wrong on adequate grounds. (See
S v
Francis
1991 (1) SA SACR 198 (A)).
[8]
When confronted with conflicting versions which cannot be reconciled
the court adopts a holistic approach towards the totality
of
available evidence and has regard to probabilities. (See
S
v Guess
1976(4)
SA 715 (A) at 718E-H).
[9]
The application of cautionary rule to the evidence of a single
witness requires of the trial court to accept the same only if
it is
satisfied that the truth has been told, despite its shortcomings or
defects or contradictions, after weighing up its merits
and
demerits. (See
S
v Carolus
208(2)
SACR 207 (SCA) at
par
[15]).
[10]
In dealing with circumstantial evidence in criminal matters the court
reasons by inference and has regard to the two cardinal
rules of
logic demanding that the inference sought to be drawn be consistent
with the facts proved and be the only reasonable inference
that can
be drawn therefrom. (See
R
v Blom
1939 AD 188).
[11]
The test for determining whether or not cause, in the form of
substantial circumstances compelling a departure from prescribed
minimum sentences, exists is whether or not the cumulative impact of
mitigating factors on aggravating factors, inclusive of the
interests
of society, renders such a sentence unjust. (See
S
v Malgas
2001(1) SACR 469 (SCA)).
[12]
It is true that state witnesses did not contradict themselves or each
other in material respects and that the trial court applied
cautionary rules when dealing the relevant evidence. It is,
further, apparent
ex
facie
the record that the trial court had regard to probabilities when it,
inter
alia
,
rejected the appellant’s version as false.
[13]
There is nothing before us to suggest that the trial court’s
factual findings and acceptance of the evidence of the two
State’s
witnesses were demonstrably wrong. As correctly found by the
court below, the eye witness who was also the
deceased’s cousin
sister did not exaggerate the facts and was honest insofar as she
admitted that she did not see any weapons
in the appellant’s
possession and, further, that she did not see him stab the deceased.
If she had wanted to incriminate
the appellant falsely she had all
the opportunity to do so and could have easily said that she saw him
stab or chop the deceased.
[14]
It is clear from the totality of evidence before the court
a
quo
that
the two witnesses in question corroborated each other, to
a material extent, on the identity of the appellant
as one of the
deceased’s attackers as correctly and effectively found by the
trial court. The preceding finding is, in my
view, borne out by the
fact that, if the appellant, on Moahlodi’s evidence, led the
group that pursued the deceased-them
in the early hours of the
fateful morning until they entered the street leading to the
deceased’s residence and was later,
during the same early
morning hours, seen among the group attacking him at his residence,
then he, by necessary and the only reasonable
conclusion flowing from
the aforegoing, was either one of the attackers or made
common enterprise with the actual perpetrators
to murder the
deceased. In my judgment the conviction can, therefore, not be
faulted at all.
[15]
It is true that the powers of the court of appeal are limited when it
comes to a sentence. It can only interfere with
the same if the
sentencing court did not exercise its discretion properly or at all.
(See
S
v Pieters
1987 (3) SA 717
(A)).
[16]
There is nothing
ex
facie
the record to suggest that the trial court did not exercise its
sentencing discretion properly insofar as it considered the
appellant’s
personal circumstances as against the aggravating
circumstances, inclusive of the interests of society, and, in the
end, found
no cause whatsoever to depart from
life imprisonment as
the prescribed minimum sentence. In our view the court below struck a
healthy balance between the triad in question.
[17]
We are, therefore, not persuaded by the material serving before the
trial court to interfere with the sentence imposed.
ORDER
[18]
In the result the appeal is dismissed.
[19]
The conviction and sentence are confirmed.
____________
LJ LEKALE, J
I
concur
_____________
JJ MHLAMBI, J
On
behalf of appellant: Mr JD
Reyneke
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Mr A Simpson
Instructed by:
Office of Director of
Public Prosecutions
Bloemfontein