About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 228
|
|
Mosia and Another v S (A63/2015) [2016] ZAFSHC 228 (8 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BL
OEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Case
No.: A63/2015
In
the matter between:
PAPI
SEPTEMBER
MOSIA
1st
Appellant
DANIEL
LOFI MOSIA
2
nd
Appellant
and
THE
STATE
Respondent
CORAM:
DAFFUE,
J
et
MBHELE, J
JUDGMENT
BY:
DAFFUE,
J
HEARD
ON:
28
NOVEMBER 2016
DELIVERED
ON:
8
DECEMBER 2016
I
INTRODUCTION
[1]
On 5 April 2011 the two appellants were convicted on a charge of
murder and sentenced to 15 years’ imprisonment each in
the
regional court held at Sasolburg.
[2]
On 25 April 2011 a notice for leave to appeal was filed on behalf of
appellants. They also filed an application for condonation
on
11 May 2011. The record shows that the application for leave to
appeal was postponed several times and even struck from
the roll more
than once, but eventually heard on 23 April 2012, i.e. more than a
year after convictions and sentences, whereupon
the court
a
quo
granted leave to appeal against convictions and sentences. The
delay herein cannot be regarded as in the interest of justice,
but
the further delay until the appeal was eventually heard on 28
November 2016, more than 4 years later, is really a travesty
of
justice.
[3]
It is not clear what transpired from April 2012 to 16 May 2016 when
this matter was to be heard for the first time by the High
Court.
It is however apparent that appellants’ representative
appointed by Legal Aid SA indicated before the first
appeal date that
he would be seeking a postponement in order for the trial record to
be fully transcribed and reconstructed.
[4]
The matter was again set down for hearing of the appeal on 25 July
2016, but postponed to 17 October 2016 as the record was
still
incomplete. The incomplete record was partially reconstructed,
but the magistrate’s full judgment with particular
reference to
his evaluation of the evidence and factual findings were not
recorded. Several attempts were made to have this
recorded, but
the magistrate was apparently seriously injured in a motor vehicle
collision and could not assist with the reconstruction
of his
judgment. He also left the service of the Department of
Justice.
[5]
On 17 October 2016 the matter was postponed to 24 October 2016, only
to again be postponed to 28 November 2016 with instructions
that
appellant and respondent’s heads of argument should be filed by
not later than 7 November and 14 November 2016 respectively.
II
GROUNDS OF APPEAL
[6]
Appellants rely on several grounds of appeal which can be summarised
as follows:
1.
The
first State witness, Mr Manenze could not be regarded as a reliable
witness as he was a former co-accused in respect of the
same crime.
Furthermore he testified that he was drunk at the stage when the
incident occurred and that he allegedly could
not see what was
transpiring. Mr Manenze is also accused of falsely implicating
first appellant as the two of them had a
quarrel over first
appellant’s girlfriend, Zodwa, earlier. Furthermore,
according to the evidence, second appellant
was not involved in the
stabbing of the deceased and could not be convicted on the count of
murder. The court
a
quo
was also wrong in finding that there were no improbabilities in the
State’s version, that the State witnesses gave their
evidence
in a satisfactory manner and in rejecting the evidence of the
appellants as not reasonably possibly true, holding against
them
contradictions between their own evidence and facts put to witnesses
on their behalf in cross-examination.
2.
Pertaining
to sentence it is alleged that the court
a
quo
erred
in disregarding the period of two years spent by appellants in
custody awaiting trial and in not taking into consideration
that they
did not have previous convictions; also that there was an absence of
any planning.
III
THE ARGUMENTS BEFORE US
[7]
Mr Van der Merwe on behalf of the appellants argued that the
convictions and sentences should be set aside due to the incomplete
record. He referred to three authorities, to wit
S
v S
1995 (2) SACR 420
(T);
S
v Van Wyngaardt
1965 (2) SA 319
(O) and
S
v Joubert
[1990] ZASCA 113
;
1991 (1) SA 119
(A). These judgments do not support the
appellants’ submissions at all. In all three instances
the records of
proceedings were incomplete and/or defective in that
material evidence was not recorded. It was not possible to
reconstruct
the records. As mentioned in
S
v Joubert
,
the reconstructed record could only be relied upon if it was in all
material respects a replica of the trial proceedings.
[8]
An appeal is a re-hearing of the matter subject to the limitations
contained in the grounds of appeal. Courts of appeal
find from
time to time that trial courts have committed serious misdirections
to such an extent that the evidence may be evaluated
afresh for the
courts of appeal to come to their own conclusions. I refer to
the following
dicta
of Davis AJA in
R
v Dhlumayo and Another
1948 (2) SA 677
(AD) at 706:
“
10.
There may be a misdirection on fact by the trial Judge where
the reasons are either on their face unsatisfactory or where
the
record shows them to be such; there may be such a misdirection also
where, though the reasons as far as they go are satisfactory,
he is
shown to have overlooked other facts or probabilities.
11. The appellate court
is then at large to disregard his findings on fact, even though based
on credibility, in whole
or in part according to the nature of the
misdirection and the circumstances of the particular case, and so
come to its own conclusion
on the matter.”
[9]
In
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another
2002 (4) SA 408
(SCA) at para [24], referred to with approval in
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) at para [14], the court found that a court of
appeal may often be in a better position to draw inferences,
particularly in
regard to secondary facts, bearing in mind the
benefit of an overall conspectus of the full record. See also
Schmidt and
Rademeyer,
Law
of Evidence
,
issue 14 at 3-40 for a detailed assessment of evidence on appeal and
in particular
S
v Chabedi
2005 (1) SACR 415
(SCA) at para [13].
[10]
Insofar as Mr Van der Merwe decided to follow the aforesaid cause of
action, he did not attempt to deal at all with the evidence
and the
merits of the appeal in his written heads of argument. During
oral argument and upon invitation to deal with the
merits of the
appeal, he failed to present persuasive submissions why the appeal
against convictions should succeed. However,
he argued that the
the sentences of 15 years’ imprisonment should be interfered
with and suggested that sentences between
10 and 13 years would be
more appropriate.
[11]
Mr Hoffman on behalf of the State dealt with the merits of the appeal
in his heads of argument as well as during oral argument.
He
submitted that although the record is incomplete, this court is still
in a position to properly deal with the appeal with reference
to the
following
dictum
in
S
v Chabedi
supra
at para [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.”
Consequently
he submitted that the evidence of all the State witnesses and
appellants was properly and adequately recorded to the
extent that
the material aspects relating to whether the crime was committed or
not, appear from the record.
[12]
Mr Hoffman also submitted that although Mr Manenze was a single
witness and initially also a co-accused and that his evidence
had to
be treated with caution, his evidence overcame the applicable
caution. His version was reliable and credible and should
be
accepted. See
Stevens v S
2005 (1) All SA 1
(SCA)
at 5d-e. The evidence of Captain Gift Matseka, who corroborated
Mr Manenze in material respects, could not be faulted.
[13]
Insofar as their sentences are concerned, Mr Hoffman initially
supported the sentences in his heads of argument. However
before us he changed tack and submitted that a more appropriate
sentence would be 13 years’ imprisonment, bearing in mind
the
fact that appellants spent two years in custody awaiting trial.
IV
ASSESSMENT OF THE EVIDENCE
[14]
As indicated
supra
the court
a
quo
’s
assessment of the evidence does not form part of the record and could
not be obtained notwithstanding diligent efforts
from the personnel
of the High Court, Legal Aid SA and the regional court in Sasolburg.
This court is therefore obliged to
assess the evidence based on the
record which is complete insofar as the evidence has been transcribed
properly. In the ultimate
analysis we have to look at the
evidence holistically in order to determine whether the appellants’
guilt was proved beyond
reasonable doubt.
[15]
Inherent probabilities and improbabilities may be considered in
evaluating the evidence in totality. See
S
v Chabalala
2003 (1) SACR 134
(SCA) at para [15]. It is permissible to test
the appellants’ versions against the inherent probabilities,
but it cannot
be rejected merely because it is improbable. It
can only be rejected on the basis of the inherent probabilities if it
can
be said to be so improbable that it cannot reasonably possibly be
true. See
S
v Shackell
2001 (2) SA (CR) 185 (SCA) at para [30].
[16]
Section 208
of the
Criminal Procedure Act, 51 of 1977
provides that
an accused may be convicted of any offence on the single evidence of
any competent witness. There is no magic
formula to apply when
it comes to the consideration of the credibility of a single
witness. The trial court should weigh
the evidence of a single
witness and consider its merits and having done so decide whether it
is satisfied that the truth has been
told despite any shortcomings or
defects in the evidence. See
S
v Sauls
1981 (3) SA 172
(AD) at 108E-G and
Stevens
v S
supra
.
Where the evidence of a single witness is corroborated in any way the
caution enjoined may be overcome and acceptance facilitated,
but
corroboration is not essential. Any other feature which
increases the confidence of the court in the reliability of the
single witness may also overcome the caution.
[17]
The State witness, Mr Manenze was a co-accused initially, but there
is nothing to indicate that he was an accomplice to the
murder.
Even if it could be argued that his evidence should be considered
with caution for these reasons as well, which I
doubt, I am satisfied
that the truth has been spoken and there is no reason to reject his
version. See:
S
v Francis
1991 (1) SACR 198
(A) at 205f and
S
v Johannes
1980 (1) SA 531
(A) at 533.
[18]
The appellants were represented by an experienced attorney and it was
expected of him to put the material aspects of his clients’
versions to the State witnesses. He failed to do so as will be
shown
infra
.
[19]
Mr Maneneze knows appellants. First appellant went to school
with him and the second appellant was known to him as first
appellant’s brother. On the night of the murder, 24 May
2009, he met the two appellants at Steve’s tavern.
On
their way to first appellant’s residential home he stayed
behind to urinate. When he approached his friends again
he
noticed a person lying on his back with second appellant on top of
him, busy searching him. First appellant was standing
at the
head of the victim and he was hitting the victim with a panga to his
upper body. He can’t say exactly where
the blows landed,
but he saw blood oozing from an open wound to the victim’s
head. He managed to separate the two appellants
from the victim
whereafter they left the scene and eventually went to Mankola’s
place. Mr Manenze did not report the
incident to the SAPS as he
was very scared and believed that the two appellants might be able to
kill him in the same way.
They warned him not to
“
let
the cat out of the bag”
.
At a later stage he confided to a friend, one Sediso as to what the
appellants had done. He was later approached and
arrested by
members of the SAPS. There was no bad blood between him and the
two appellants.
[21]
During cross-examination it came out that he knew the deceased to
whom he at a stage referred as his grandfather. The
deceased
apparently merely married into his grandmother’s family.
When he was apprehended he voluntarily handed his
blood-stained
trousers, which he had washed in the meantime, as well as his knife
to the SAPS. He admitted that he was drunk
at the time of the
attack, but on a question of the court
a
quo
he
said in this regard
“
the
evidence that I gave is solid your Worship, it is something that I
saw”
and
further on that he was drunk, but
“
I
could walk and I could see”
.
[22]
It was merely put to the witness in cross-examination that the two
appellants denied being in his company that particular night.
It was never put to the witness that first appellant knew him for a
few months only and that they did not go to school together.
Also, that second appellant met him for the first time after the
murder when they were in custody. It was never put to the
witness that the two appellants, they being brothers, never go out at
night together. Although reference was made to the
lady, Zodwa,
it was merely put to the witness that he had a problem with first
appellant regarding Zodwa which was denied.
This matter was not
taken any further and it was never put to the witness that he had
reason to falsely incriminate first appellant.
[23]
Captain Gift Matseka corroborated Mr Manenze’s version in all
material aspects. According to him Mr Manenze informed
him that
the person who stabbed the deceased was Papiki, the name of first
appellant, and that his brother, the second appellant,
was the one
who searched the deceased. Captain Matseka also testified that
Mr Manenze had given his co-operation from the
beginning, but
contrary thereto, he had difficulty finding first appellant to such
an extent that he believed that his family was
warning him of the
SAPS’ endeavours to find him. First appellant was
eventually found hiding. He found a T-shirt
and trousers
belonging to first appellant in his shack which appeared to be
containing blood stains. These clothing as well
as a knife and
clothing belonging to Mr Manenze were sent for forensic evaluation,
but could not be positively linked to the DNA
obtained from the
deceased.
[24]
The usual admissions were made and recorded in terms of
s 220
of the
Criminal Procedure Act before
the State closed its case.
Appellants admitted the findings of Dr Humphreys in his post mortem
report handed in as exhibit
“C”, the photo album, exhibit
“D”, the identification of the body of the deceased,
exhibit “E”,
and that the deceased died as a result of
the injuries sustained during the attack.
[25]
First appellant testified that Mr Manenze became known to him during
January 2009, four months before the deceased was killed.
This
is in direct contradiction with Mr Manenze’s undisputed
testimony that they knew each other since attending school together.
According to first appellant he visited a shebeen called Sam’s
Place at the night of the incident where he enjoyed one beer
whereafter he went home. He was never in the company of second
appellant or Mr Manenze that particular night. First
appellant
testified, contrary to what was put to Mr Manenze, that they
“
fought
for Zodwa when Zodwa was coming to fetch me.”
According
to him Mr Manenze had an affair with his girlfriend at the time, a
point that was never raised in cross-examination to
that extent.
First appellant more than once used the words
“
I
do not remember”
,
for example he did not remember having a weapon with him the
particular day that the deceased was murdered and he did not remember
that he and his brother threatened to kill Mr Manenze. When he
was taken on in this regard in cross-examination his evidence
was
really confusing to say the least. First appellant indicated
that he did not have any contact with Zodwa as he was in
custody
awaiting trial and she also never came to visit him. However he
believed that she would corroborate his version,
but strangely enough
when the court
a
quo
raised
the matter he said the following:
“
So
are you saying that you do not intent calling her as a witness? --- I
do not
want
to call her because I cannot found her.”
(emphasis
added).
Although
he did not remember her address he mentioned that he would be able to
point out her residential address to the SAPS.
Hereupon the
court
a
quo
indicated
that it would like to call Zodwa as a court witness and the necessary
arrangements were made to trace her. It was
eventually placed
on record that she had been located, but was unwilling to come to
court to testify.
[26]
Second appellant told the court that he did not know Mr Manenze, that
he was not his friend and that he was never in his company
when a
robbery was committed. He met Mr Manenze in the Sasolburg
prison when Mr Manenze and first appellant arrived there.
At
that stage he, second appellant, had already been incarcerated.
When asked whether he had told his lawyer about
this, he remarked as
follows:
“
Yes,
I did tell Mr Tselondo just a little.”
This
is obviously no explanation as to why the lawyer never put it to Mr
Manenze that they were not known to each other and only
met after
commission of the murder.
[27]
Second appellant denied that he normally went out with his brother as
he was staying with his grandmother and mentioned that
she
“
is
too old and needs to be taken care of.”
He
never told his lawyer that he and his brother didn’t go out
together because of the illness of his grandmother. According
to him first appellant was staying with his mother whilst he was
staying with his grandmother at the time. Another reason
why he
did not go out with his brother was that his brother is older than he
and they had separate circles of friends. Although
he alleged that he
had informed his lawyer accordingly, this crucial aspect was never
put to Mr Manenze in cross-examination.
[28]
The DNA results were negative, but this is a neutral factor and
cannot assist the appellants and first appellant in particular.
The stains found by Captain Matseka on the clothing of Mr Manenze and
first appellant, which appeared to be blood stains, serve
as
corroboration for Mr Manenze’s version that first appellant was
the aggressor who hit the deceased with a panga, causing
open wounds
from which blood was oozing, whilst he (Mr Manenze) eventually
separated the aggressors from the victim. The
severity of the
wounds appears from the photographs of the deceased’s body
handed in as exhibit “D”. Appellants’
lawyer is
apparently an experienced lawyer. He even boasted that he was
always fully prepared when conducting trials.
The failure to
put crucial statements to Mr Manenze leads one to the inescapable
inference that the two appellants changed their
versions as time went
by.
[29]
Although it was dark and Mr Manenze was under the influence of
alcohol to a certain extent, there can be no uncertainty about
his
identification of the perpetrators. He and the two appellants
were at the same tavern before the murder and were on their
way to
first appellant’s residential home when the incident occurred.
He was a reliable and credible witness who had
sufficient time to
make proper observations.
[30]
I accept that Mr Manenze caused confusion about the relationship
between him and the deceased and even gave contradictory versions
in
this regard. It took some time to establish that there was
indeed no blood relationship between the two. Mr Manenze
may
also be blamed for not informing the SAPS immediately of the murder
which he witnessed, but bearing in mind the threat and
the belief
that he might be killed, his version cannot be rejected. He
apparently decided to inform a friend of the murder,
but it is not
clear what led to his arrest. Thereafter he gave full
co-operation to the SAPS and his version is, as mentioned,
materially
corroborated by Captain Matseka. I am satisfied that Mr
Manenze’s version is reliable as well as credible
and although
he was a single witness, I am prepared to accept that he has spoken
the truth notwithstanding the defects referred
to. In any
event, as mentioned, he is corroborated in material respects by the
Captain.
[31]
The two appellants put up a poor show. Their testimony differs
from what was put to Mr Manenze. I also find it
strange and
inherently improbable that they would never be going out together
merely because they had their own circle of friends
and the one was
staying with their mother and the other with the grandmother.
Insofar as the credibility and reliability
of identification was of
utmost importance, I find it improbable that it would not have been
put to Mr Manenze that first appellant
knew him for a couple of
months only, whilst second appellant met him for the first time in
the Sasolburg prison after the murder.
[32]
There is no onus on an accused to prove his defence and in this case
his alibi. If the two appellants’ versions
are to be
accepted, first appellant would be at home with his mother and second
appellant would be at home with his grandmother.
These two
ladies were not called to testify in support of appellants’
versions.
[33]
I have considered the evidence in compartments, but when standing
back and evaluating the evidence in totality, I am satisfied
that the
appellants’ versions are so improbable and far-fetched that it
cannot be regarded as reasonably possibly true.
In fact, I am
satisfied that the appellants’ versions are false and that the
State has proven its case beyond reasonable
doubt.
V
SENTENCE
[34]
The Supreme Court of Appeal has emphasised in a number of judgments
that prescribed minimum sentences should not be departed
from lightly
or for flimsy reasons. See
S
v PB
2013 (2) SACR 533
(SCA) at [20] and
S
v Matyityi
2011 (1) SACR 40
(SCA) at para [23].
[35]
The determination of a sentence in a criminal case is pre-eminently a
matter for the discretion of the trial court. In
the exercise
of this function the trial court has a wide discretion in deciding
which factors should be allowed to influence the
court in determining
the measure of punishment and the value to attach to each factor
taken into account. A failure to take
certain factors into
account or an improper determination of the value of such factors
amounts to a misdirection, but only when
the dictates of justice
carry clear conviction that an error has been committed in this
regard. A mere misdirection is not
by itself sufficient to
entitle the court of appeal to interfere with the sentence as the
misdirection must be of such a degree
or seriousness that it shows
that the trial court did not exercise its discretion at all or
exercised it improperly or unreasonably.
See
S
v Kubido
1998 (2) SACR 213
(SCA) at 216g-i.
[36]
It has also been stated that the court of appeal will not alter a
sentence imposed by the trial court, unless it is found that
no
reasonable person ought to have imposed such a sentence, or that the
sentence is totally out of proportion to the gravity or
magnitude of
the offence, or that the sentence evokes a feeling of shock or
outrage, or that the sentence is grossly excessive
or insufficient,
or that the trial court has not exercised its discretion properly.
See
S
v Fhetani
2007 (2) SACR 590
(SCA) at para [5];
S
v Bogaards
2013 (1) SACR 1
(CC) at para [41].
[37]
In
casu
the court
a quo
merely stated that no
substantial and compelling circumstances existed. It did not
refer to the personal circumstances of
the appellants or the
circumstances in which the murder was committed. The appellants
were in custody awaiting trial for
two years. This in itself is
not sufficient reason to deviate from a prescribed minimum sentence.
I always try to follow
the approach of Ponnan JA in para [23] of
S
v Matyityi
supra
and refuse to deviate from the
minimum sentences prescribed by the legislature for any flimsy
reason. Insofar as I have rejected
the appellants’
versions and accepted the State’s version I am duty-bound to
accept that appellants had been drinking
at Steve’s tavern,
that Mr Manenze was under the influence of alcohol and that his
drinking partners, first and second appellants,
were on all
probabilities to a certain extent under the influence of alcohol as
well. There is no evidence that the two appellants
were on the
lookout for victims to be robbed and possibly killed in the process.
In fact, they left Steve’s tavern
and were on their way to
first appellant’s residential home. It is also probable
that first appellant in particular
was incited by the fact that the
deceased fought back by using a knife and I quote the following from
Mr Manenze’s evidence:
“
As
I was listening I heard accused 2 saying do not stab me, this person
is stabbing me… Apparently accused 2 was telling
accused 1
that this person is stabbing him.”
[38]
In my view the court
a quo
did not follow a balanced
approached. The judgment on sentence does not even contain half
a page of the record and it was
merely recorded that no substantial
and compelling circumstances could be found. The cumulative
effect of the time spent
in custody, the fact that appellants were
probably under the influence of alcohol and that the attack took
place on the spur of
the moment, should have been regarded as
substantial and compelling circumstances. Therefore we are
entitled to reconsider
the sentence afresh. Bearing in mind
what I have mentioned
supra
, the court
a quo
should
have found that the following, cumulatively considered, constituted
substantial and compelling circumstances:
1.
Appellants
were on their way home after visiting a tavern, being intoxicated to
a degree;
2.
They
were not on the lookout to rob and/or to kill;
3.
Their
attack on the deceased must have occurred on the spur of the moment;
4.
The
deceased fought back and stabbed second appellant which incited first
appellant and caused him to assault the deceased with
a panga,
inflicting fatal wounds in the process;
5.
Appellants
were incarcerated for two years as awaiting-trial prisoners.
[39]
The substantial and compelling circumstances tabulated above are such
that a deviation from the minimum sentence of 15 years
is warranted.
Accordingly I am of the opinion that a lesser sentence, to wit 13
years’ imprisonment, is a more appropriate
sentence and
therefore the appeal against sentence should succeed.
VI
ORDERS
[40] Consequently the
following orders are made:
1.
First
and second appellants’ appeal against their convictions is
dismissed and their convictions are confirmed.
2.
First
and second appellants’ appeal against their sentences is upheld
and the sentences of the court
a
quo
are
set aside and replaced with the following:
“
Both
accused are each sentenced to 13 years’ imprisonment.”
3.
The
sentences are ante-dated to 5 April 2011.
_____________
J.P.
DAFFUE, J
I concur.
_______________
N.
M. MBHELE, J
On
behalf of the appellants:
P.L. van der Merwe
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of the respondents: Adv.
M. Lencoe
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN
/eb