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[2016] ZAFSHC 53
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Thakeli and Another v S (A205/2015) [2016] ZAFSHC 53 (23 March 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
number: A205/2015
In
the matter between:
SENTE
JOSEF THAKELI
1
st
Applicant
SAMUEL
ZAMBUK
MARUMO
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
MOCUMIE,
J et CHESIWE, AJ
HEARD
ON:
29 FEBRUARY 2016
JUDGMENT
BY:
CHESIWE, AJ
DELIVERED
ON:
23 MARCH 2016
CHESIWE,
AJ
[1]
The appellants, (accused No. 1 and accused No. 4 in the trial court)
were convicted for murder in the Regional Court Division
of Welkom on
23 August 2011. The appellants were sentenced to 28 (twenty
eight) years imprisonment in terms of section 276(1)
(b) of the
Criminal Procedure Act 51 of 1977 (the CPA). The appellants
applied for leave to appeal in the trial court against
their
conviction and sentence. The application for leave to appeal
was denied. The appellants petitioned the Judge
President of
this High Court for leave to appeal against the sentence and
conviction. The leave to appeal was granted on
August 2015.
[2]
The grounds of appeal are as follows: the trial court erred in
finding that appellants, are correctly identified by the
state
witness as the perpetrators; the trial court erred in amending
the charge sheet in terms of section 86(4) of the CPA,
as the
appellants were unduly prejudiced by this amendment; due to
this amendment the appellants were not properly warned
about the
applicable sentencing regime; that the 28 years term of
imprisonment is shockingly harsh and disturbing.
[3]
The facts of the matter are briefly as follows: On the 3 July
2009 at about 19:00 the appellants approached Mr Ivan Motlatsi
Mokhele (Mokhele) to enquire about a certain person and he told them
he does not know the person. Immediately after talking to
the
appellants Mokhele ran away, because the appellants had a garden
fork, a beer bottle and knives. Mokhele ran to his house
and
later heard a confusion in the street not far from where he saw the
appellants. He then saw the deceased running into
a shack and
at the same time also saw the appellants, but he was unable to see
who stabbed the deceased. Ms Dimakatso Mathejane
(Dimakatso)
testified that on the mentioned day she saw the appellants holding
the deceased and they had knives in their hands;
one of them was
holding a garden fork. Dimakatso testified that two of the
accused stabbed the deceased; she was unable to
see if the one
holding the garden fork also stabbed the deceased. Ms Sidiapelo
Angelina Mathejane (Angelina) on the same
date of 3 July 2009 saw the
appellants at the deceased door. They asked the deceased about
Molafei and at the same time,
they started to stab the deceased.
The appellants were charged with the murder of Paseka Godfrey Manyane
(the deceased).
[4]
Ms. Kruger, on behalf of the appellants submitted in her heads of
argument and oral submissions, that the trial court did not
prove the
appellants’ identification beyond reasonable doubt. She
argued that the three state witnesses were all unable
to properly
identify the appellants. In the heads of argument she submitted
that Mokhele, testified that the appellants were
unknown to him that
is why he could not provide a description of their facial features.
In
Magadla
v S
(80/2011)
[2011] ZASCA 195
(unreported) the court was of the view that:
“
The
fact that a witness failed to provide a description of the accused
does not always assist him or her, in the event where the
witness was
in a situation where he or she had ample opportunity to make a proper
and reliable observation of the perpetrator,
especially where the
witness did not have any reason to falsely implicate the
perpetrator.”
The
trial court record shows that during examination-in-chief, Mokhele
testified that: (page 9)
“
Prosecutor:
These three guys that you saw there were the same as the one that
approached you before? Yes”
“
Now
what makes you to come into that conclusion that these three guys
that you saw 500 meters away are the ones that approach you
earlier?
Your
worship the reason why I am saying this is because when I went passed
the house those three gentlemen or guys as the witness
put it, went
into the yard it’s them.”
[5]
Dimakatso testified that she does not know the appellants, nor could
she recognise them as she was scared because they were
holding
knives. Molafei Solomon Mathejane (Molafei) also testified that he
knew the appellants from a long time ago. This
is noted from
the records of the trial court on what he said during examination
in-chief:
“
How
do you know the accused?”
“
Your
worship I know them from long ago, we meet each other very often.”
Molafei
further states that on the 3 July 2009, the appellants came down the
street some distance ahead of him and they had knives
and were
scaring the people with those knives.
[6]
Our courts have repeatedly stated that evidence of identification
must be approached with caution. There is no doubt that
honest
witnesses may make mistakes because of the fallibility of human
observation and therefore the various factors set out in
S
v Mthetwa
1972 (3) SA 766
(A) at 768 A-E are applicable
[MM1]
All
these factors need to be considered and should be weighed one against
the other in the light of the totality of evidence
and the
probabilities. The three witnesses support each other on the
aspect that there were three boys that entered the yard
of the
deceased. They also support each other on the time frame when
the incident took place and the fact that one of them
was carrying a
garden fork. The trial court took cognisance of the fact that
there were three witnesses. Sidiapelo
was able to identify the
appellants, her evidence with regard to the identification of the
appellants was reliable. The trial
court found that although
Sidiapelo was a single witness, her evidence on the identification
was reliable. (S
v
Khumalo en andere
[1991] ZASCA 70
;
1991 (4) SA 310(A)
at 328 E-G.
S
v Mlati
1984 SA 629
(A) at 632 F- 633 C;
Isaacs
and another v S
2006 (2) All SA 163
(C) para 4.
[MM2]
[7]
Adv. Liebenberg on behalf of the State in her heads of argument and
oral submissions submitted that the trial court made no
mistake with
regard to the identity of the appellants. She argued that the
witnesses all placed the appellants shortly before
the incident in
the vicinity of the murder scene; that the witnesses corroborate each
other, that the appellants had knives and
one of them was in
possession of a garden fork. The appellants were seen by
Mokhele. Molafei indicated that he knew
the appellants well and
often met them.
[8]
The issue with regard to the identity of the appellants was settled
by the trial court. The trial court was satisfied
that the
witnesses were able to place the appellants at the scene of the
crime.
[9]
Ms Kruger submitted in the heads of argument that the appellants
denied any involvement in the incident and were each other’s
alibi witnesses. The version of the appellants is fraught with
improbabilities and inconsistencies. The records of the trial
court show that, on their own version the appellants placed
themselves together at the night of the incident. The first
appellant testified that:
“
I
was alone when arrived at the tavern, I was joined by Zamback.”
(second
appellant)
When
the first appellant was asked during examination-in-chief, if he was
on the 3 July 2009 in the company of accused no. 2, he
denied it.
(page 76 of the records)
[10]
The second appellant during examination-in-chief when asked if he
knew accused 1 and 4, also denied he knew them, but testified
he knew
them only from prison. A false alibi is one of the factors to
be considered when weighing the evidence as a whole
and to consider
(
S
v Khumalo en andere
[1991] ZASCA 70
;
1991 (4) SA 310
(A) at 328 G). The State has the duty to prove
that the accused committed the crime and it must therefore disprove
the alibi.
The trial court disproved the alibi of the
appellants. The court was able to show that the appellants’
alibi for each
other was improbable and inconsistent (
R
v Hlongwane
1959 (3) SA 337(A)
at 341 A
[MM3]
).
[11]
The appellants’ version in the trial court was inconsistent and
unconvincing. The magistrate could safely reject
their evidence
as not being reasonably or possibly true. The witnesses for the
state all corroborated each other’s
evidence. The trial
court was satisfied with the witnesses’ evidence. The
court was further satisfied that there
was a common purpose between
the appellants. Consequently all accused persons were found
guilty on murder and sentenced to
28 years each.
[12]
In my view, the appellants were correctly convicted by the trial
court, It evaluated the evidence properly and did not commit
any
material misdirection on the evidence presented in court which
warrants a no-interference by this court.
S
v Malgas
2001(1) SACR 469 (SCA) at 478 D-E.
[13]
The prescribed minimum sentence in terms of section 51 of
Criminal
Law Amendment Act No 105 of 1997
, for murder, where the offence was
committed by a person or a group of persons acting in the execution
or furtherance of a common
purpose or conspiracy is life imprisonment
(part 1
, schedule 2). In the instant case, murder was the
common purpose of the accused persons. All the witnesses
testified
that they saw the accused persons walking together in the
street welding dangerous weapons and scared the people. The
requirements
for common purpose are clearly stated in (
S
v Nooroodien en andere
1998
(2) SACR 510
(NC)). In sentencing the appellants, the trial
court found that there were substantial and compelling circumstances
to justify
the sentence it imposed in respect of murder, which was
less than the prescribed minimum sentence. The sentencing of an
offender
is primarily the discretion of the court of first instance.
The appeal court cannot merely interfere with the sentence because
it
has the jurisdiction to do so (
S
v Malgas
2001
(1) SACR 469
(SCA) at 478D-G or para 12.;
S
v
Botha
1998 (2) 206 (SCA).
[14]
The appellants could not show any misdirection which the trial court
committed; or if the trial court did not take into
account all
the factors (mitigating and aggravating). There is therefore no
justification to interfere with the conviction
of the trial court.
It is clear that the trial court correctly considered all relevant
factors before it, in concluding that
there were no substantial and
compelling circumstances. In my view, I am not persuaded that
the court misdirected itself
or that the sentence is shockingly
inappropriate.
[15]
Lastly Ms. Kruger further submitted that the trial court changed the
sentencing regime at the end of the proceedings.
She argued
that the appellants were not informed in time that the sentence
regime had changed. As a result thereof the appellants’
rights to a fair trial have been infringed. Adv. Liebenberg
conceded that the amendment may have been unconstitutional, but
the
appellants suffered no harm. The trial court in terms of
section 86
of the CPA made the following amendments:. The first
amendment :
“
On
the annexure to the charge sheet on the annexure that specifies the
change it’s written murder that the accused is or are,
so is,
is replaced with
are
.”
Second
amendment:
“
are
guilty of the crime of murder”
Read
with the provisions of
section 51
, its written, section 51 (2) of the
Criminal Amendment Act 105/1997, the amendment there is read with
provisions of section 51
of the Amendment Act 105/1997.
Third
amendment:
“
In
that upon or about 3
rd
of July 2009 and near Thabong in the regional division it is written
presently of Welkom. That is amended to say Regional
Division
of the Free State.”
[16]
Section 86(1)
of the
Criminal Procedure Act 51/1977 provides
that:
“
Where
a charge is defective for the want of any essential averment therein,
or where there appears to be any variance between the
averment in a
charge and the evidence adduced in proof of such averment, or where
it appears that words or particulars that ought
to have been inserted
in the charge have been omitted therefrom, or where any words or
particulars that ought to have been omitted
from the charge have been
inserted therein, or where there is any other error in the charge,
the court may, at any time before
judgment, if it considers that the
making of the relevant amendment will not prejudice the accused in
this defence, order that
the charge, whether it discloses an offence
or not, be amended, so far as it is necessary, both in that part
thereof where the
defect, variance, omission, insertion or error
occurs and in any other part thereof which it may become necessary to
amend.”
[17]
The trial court did not infringe on the appellants’
constitutional rights to a fair trial. This was more of a
typing error which did not go to the substance of the charge
preferred against the appellants nor the sentence regime. The
defence also concedes that the appellant suffered no harm due to the
amendment. In terms of section 35 (3) of the South
African Constitution, every accused person has a right to a fair
trial. Of all the factors included in section 35, none of
these
factors were infringed. The appellants’ trial was handled
fairly and the appellants were legally represented
at all times.
The trial court record show that the magistrate even gave the defence
and the prosecutor an opportunity to
address him on the amendments
and none had any objections.
[18]
Accordingly, I would make the following order.
ORDER
‘
The
appeal against conviction and sentence is dismissed.’
______________
S.
CHESIWE, AJ
I
concur
_______________
B.C.
MOCUMIE, J
On
behalf of 1
st
& 2
nd
applicant:
S. Kruger
Instructed
by:
Bloemfontein Justice Centre
Bloemfontein
On
behalf of respondent:
Adv. E. Liebenberg
Instructed
by:
Office of the Director Public Prosecutions:
Free
State
Bloemfontein
/pc
[MM1]
It
would put more emphasis and clarity to mention these factors in the
Judgment so that it follows holistically with the sentence
following
that. the factors are as follows:
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 identification parades, if any; and, of course,
the
evidence by or on behalf of the accused
[MM2]
This
case makes no reference to identification specifically but para 4
does refer to circumstantial evidence as a whole.
[MM3]
For
emphasis, the Judge can mention exactly what was said in that case,
which is:
The
correct approach is to consider the alibi in the light of the
totality of the evidence in the case, and the Court's impressions
of
the witnesses.