About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 79
|
|
Masilela and Others v State (A750/14) [2016] ZAGPPHC 79 (22 January 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION. PRETORIA)
CASE
NO: A750/14
DATE:
22 JANUARY 2016
IN THE MATTER
BETWEEN
PM
MASILELA
....................................................................................................
FIRST
APPELLANT
AT
SEOPELA
...................................................................................................
SECOND
APPELLANT
SM
MASINGA
.....................................................................................................
THIRD
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
LEGODI J
[1] This matter came
on appeal before this court against the convictions of and sentences
imposed upon the three appellants in the
High Court circuit division
for the Lydenburg district respectively on 15 April 2013 and 11 June
2013.
[2] The appellants
were charged with three counts namely murder, robbery with
aggravating circumstances and kidnapping. All three
appellants were
convicted in respect of all three counts. Appellants 1 and 2 were
each sentenced to 20 years’ imprisonment
on count one (murder),
10 years' imprisonment on count two (robbery with aggravating
circumstances); and 3 years' imprisonment
on count three
(kidnapping). Appellant 3 was sentenced to 10 years' imprisonment on
count one, five years' imprisonment on count
two and 3 years'
imprisonment on count three. The court ordered in respect of all the
three appellants that the sentences on all
counts be served
concurrently.
[3] The appellants
were represented by Adv Kgagara. On their behalf he, inter alia,
submitted the following: The main witness on
behalf of the
prosecution relating to the events in question as well as the three
appellants were all found by the court a quo
to be unreliable
witnesses. Consequently, so it was argued, the prosecution has failed
to prove its case beyond a reasonable doubt
and the appellants should
have been acquitted. In respect of sentence it was submitted that
although the court found substantial
and compelling circumstances to
be present, the sentences were still harsh and disproportionate to
the circumstances of the offences.
It was further submitted that the
trial court erred in over-emphasising the seriousness of the offences
and the interest of society
whilst the personal circumstances of the
appellants were under-emphasised. Lastly, it was submitted that the
sentences imposed
were shockingly harsh and induced a sense of shock.
[4] On behalf of the
prosecution Adv GJC Maritz submitted that the approach and findings
of the court a quo cannot be faulted and
that both the conviction and
sentence should be upheld.
[5] I shall briefly
refer to the events of the night of 17 July 2009 and the early hours
of the next day which led to the charges
against the appellants.
After work on 17 July 2009 Mr Lalifa Shumba ("the deceased"),
left his home in Lydenburg to go
to a tavern in town. He used the red
Nissan double cab vehicle belonging to his employer. He probably
remained at the tavern the
whole evening until closing time at
approximately 02:00 on 18 July 2009. In the next few hours the
deceased was kidnapped, brutally
murdered and his car taken. The
court a quo found that the three appellants were guilty of all the
charges levelled againgst them.
[6] It is not
possible to establish exactly the finer details of the events that
followed the deceased leaving the tavern and this
was due to the
three appellants, and the one state witness who were present at all
times and testified about the events, lying
about what exactly
happened. Each tried to exonerate himself and to blame the others.
Despite being unable to come to a definite
conclusion as to the role
played by each of the appellants, the court a quo found them to have
acted with a common purpose in respect
of all the charges levelled
against them and accordingly convicted them.
[7] To continue with
the events during the early morning hours of 18 July 2009: The
deceased was apparently very drunk when he left
the Tavern in the
company of at least some of the appellants and was possibly too drunk
to drive his own vehicle. There was no
evidence that he was carried
to the vehicle nor that there was any struggle between him and the
appellants. It must therefore be
assumed that he voluntarily got into
his vehicle and handed the keys of the vehicle over to one of the
appellants. Appellants 1,
2 and 3 were in the vehicle. So was the
state witness Mr Elmond Kganane and possibly a fifth person by the
name of Tsietsi. Mr
Kganane was initially also charged with the
appellants but the charges were withdrawn against him and eventually
he testified as
a state witness in terms of section 204 of the
Criminal Procedure Act.
[8] As far as
Tsietsi was concerned, Mr Kganane denied that he was present during
the night in question. The three appellants, however,
said that
Tsietsi was present and in fact placed most of the blame of what
occured, on him. Tsietsi, if he was present, was never
arrested and
prosecuted.
[9] It is common
cause that appellant 1 was the driver of the vehicle when they left
the tavern. Instead of going to the house of
the deceased in
Lydenburg, they drove in a south-westerly direction towards the towns
of Dullstroom, Belfast and Middelburg. According
to the appellants
they did so because Tsietsi told them that they were on their way to
Middelburg to drop the deceased off at his
house.
[10] They stopped at
the town of Dullstroom, some 58 km from Lydenburg, where they poured
in petrol at the Engen filling station.
They drove further in the
direction of Belfast. At some point they stopped the vehicle next to
the road. The deceased was attacked
and dragged from the vehicle and
brutally assaulted until he was dead. His body was dragged through
the veldt and left tangled
in a wire fence. The appellants drove back
and stopped again at the Engen filling station on the way back to
Lydenburg.
[11] In Lydenburg,
and apparently on the way to Burgersfort, which is to the north of
Lydenburg, the vehicle for some reason left
the road and one of the
tyres sustained a puncture in the process. Whilst still standing
around the vehicle, the police arrived.
It was approximately 05:00 on
the morning of 18 July 2009, some three hours after they had left the
tavern. The police enquired
whether anybody had been injured but they
were reassured by the appellants that everybody was in good health
and that the owner
had left for his home to fetch a wheel spanner to
fix the flat tire. Shortly afterwards a tow truck also arrived. The
driver of
the tow truck was given the same information and eventually
both the police and the tow truck left the scene. The next day,
appellant
1 told the driver of the tow truck, who was known to him,
that a man was assaulted and left on the road between Dullstroom and
Belfast. The tow truck driver informed his employer of these facts
and eventually the police were contacted.
[12] The cause of
death of the deceased was, according to a report on the post-mortem
examination, head injuries and a broken neck.
A bit more should be
said about the deceased and the injuries which he sustained during
the attack on him. He was not a big man
being only 1,64 metre tall
and weighing 61 kilograms. He was 33 years of age. His injuries were
the following: Two deep lacerations
on the back of his head of
respectively
6,3 cm and 2,1 cm;
crumbling fractures of the back of the head; brain bleeding and brain
oedema with serious brain injury; a deep
wound on his left forehead;
a deep bruise with haematoma of the chest; contusion of both lungs;
fractures of the 5th, 6th and 7th
ribs on the right side and of the
3rd, 4th and 5th ribs on the left side; 895 ml of blood was found in
the chest cavity; a broken
neck with fractures of the C6 and C7
vertebrae; bleeding in the structure of the neck. The report also
noted that the trousers
and underpants of the deceased were pulled
down to underneath the knees. This can in fact also be seen on the
photograph taken
from the body at the scene where it was left in the
veldt.
[13] In his
judgement Hiemstra AJ, as he then was, referred in quite some detail
to the evidence of each of the witnesses. In my
view he gave a fair
reflection of their evidence and it is not necessary to go through
the same exercise. I agree with his acceptance
of the evidence of all
the prosecution witnesses except for the evidence of Mr Kganane. Mr
Kganane gave a full and detailed version
of the events which
implicated all the three appellants but, in respect of his own
actions, he exonerated himself completely. This
part of his evidence
was clearly false. According to Mr Kganane, the vehicle came to a
stop next to the road whereupon appellant
1 dragged the deceased from
the vehicle and trampled him on the head and kicked him on the head
with his boots. Appellant 3 also
kicked him and hit him with a bottle
on the back of his head. Appellant 2 hit the deceased on the back of
his head with a brick
or a stone of approximately 45 cm in length.
Appellant 3 eventually grabbed the deceased and pulled him into the
grass where he
was left. According to Mr Kganane he had nothing to do
with the assault on the deceased.
[14] Although the
evidence of Mr Kganane was found not to be credible by the trial
court, his description of the assault on the
deceased finds
remarkable support in the post-mortem examination report as well as
some of the photographs taken of the scene and
of the deceased's
body. Firstly, the fractures of the two neck vertebrae and of the
ribs on both sides of the chest and the resultant
bleeding in
different parts of the body, could, on the probabilities, only have
come from attackers kicking and jumping on the
deceased as testified
by Mr Kganane. The wounds on the front and back of the head were deep
and serious and would seem to be more
compatible with the use of
shoes or other blunt instruments, than the hands. One of the
photographs also shows a brick with blood
on, lying in the grass next
to the road, which is similar to the object which Mr Kganane
described.
[15] The police
found evidence which indicated that the initial part of the assault
took place right on the edge of the tarred road
surface where blood
was found. More blood and the bloodied brick was found approximately
2 to 3 metres from the side of the road.
More blood was found further
into the veldt in the direction where the deceased's belt was found.
More blood was also found in
the direction of the place where the
body of the deceased was eventually found.
[16] The deceased's
belt was found approximately 17,7 metres further into the veldt which
must have come off during further assaults
and/or the dragging of his
body through the veldt. The numerous blood drops all the way from the
road up to where the body was
eventually found, which is a distance
of approximately 38,2 metres, is probably an indication that the
deceased finally passed
away at the place where he was left. This is
supported by the fact that on post-mortem examination a lot of blood
was found in
the lungs, the chest, the neck and the head areas.
[17] All the
appellants denied any knowledge of the kidnapping, robbery and murder
of the deceased. According to appellant 1, he
was simply the driver
who was asked to drive the vehicle to Middleburg and back in order to
take the deceased home. He denied any
knowledge of the attack on the
deceased. His version was that the moment he stopped on or beside the
road to allow some of them
to answer the call of nature, he fell
asleep and was unaware of anything until he heard the doors close
again and he was told to
drive off. According to appellant 2 he was
asleep from the moment they left the filling station in
Dullstroom on their
way to Middelburg until the accident when the accident occured back
in Lydenburg. According to appellant 3 he
was also asleep throughout
and knew nothing of any attack on the deceased.
[18] The trial court
considered the evidence of the appellants as well as the other
evidence presented at the trial. In rejecting
the evidence of the
appellants as untrue, especially as far as the attack on the
deceased, the robbery and kidnapping is concerned,
the court referred
to numerous examples of conflicting evidence and evidence which is so
improbable that it has to be rejected
as untrue. So, for example,
none of the appellants could explain why, drunk as they were, at
02:00 at night, in the middle of winter,
desperately wanting to go
home, they nevertheless were prepared to accompany an unknown man on
a trip of approximately 320 kilometres.
The evidence that they were
all asleep and totally unaware of the brutal and obviously prolonged
attack on the deceased, is so
improbable that it has to be rejected
out of hand. Incidentally, it was put to Mr Kganane during cross-
examination on behalf of
appellant 1 that it was not him, appellant
1, who had dragged the deceased from the vehicle but that it was Mr
Kganane himself
and Tsietsi who had done so. Such evidence on behalf
of appellant 1 is totally contradictory to his later version that he
was unaware
of anything that had happened at the roadside. The trial
court also remarked on the appellants being remarkably lucid
regarding
the details prior to the murder which does not support
their claim of such extreme inebriation that they fell asleep at the
roadside
and being unaware of what was happening. I agree with the
conclusion of the trial court that the appellants were not as drunk
as
they would have the court believe. They were simply lying and each
tried to exonerate himself and/or to blame the others.
[19] It is not
necessary to refer to the numerous other improbabilities and
contradictions in the evidence of the appellants nor
the effect of
the evidence of the other state witnesses on the versions of the
appellants. None of them survived cross-examination.
I agree with the
analysis of the evidence and the findings made by the trial court in
rejecting the evidence of the appellants
as untrue as far as the main
issues in dispute are concerned.
[20] I also agree
with the findings of the trial court that on the evidence the
deceased had ^fgiven no one permission to drive
his vehicle away from
his home in the direction of Middelburg. I consequently agree with
the finding that all the appellants embarked
on this journey for a
common purpose. They probably wanted to get as far away as possible
from
Lydenburg before
they left the deceased's body. That is why they drove past the next
town of Dullstroom before they stopped.
[21] The trial court
was aware that there was no clear evidence as to the role played by
each of the appellants in the crimes committed,
especially in respect
of the murder of the deceased, and that it had to rely on surrounding
circumstances and the proven or common
cause contingent facts. Since
there was no evidence of a prior agreement to commit the crimes, the
court had to decide whether
the appellants actively associated
themselves with the crimes committed. In this regard reference was
made to S v Mgedezi
1989 (1) SA 687
(A) paragraph 161 at p 705-706
and the requirements mentioned in order to find a common purpose.
[22] The trial court
found that all the requirements have been met and I agree. All the
appellants were present at the scene and
were clearly aware of of
what was being done to the deceased. As to the question whether the
appellants had the intention to make
common cause with whoever
perpetrated the deed, the court must decide the issue by inferences
drawn from the proven and undisputed
facts. Firstly, none of the
appellants disassociated himself from the deed. None of them reported
the matter to the police as they
said they wanted to do, despite
ample opportunity to do so. In fact, when the opportunity came when
the police arrived at the scene
of the accident and also when the
driver of the tow truck arrived later, they lied to the police and
the tow truck driver on separate
occasions by telling them that they
know the owner and that he had gone to fetch a wheel spanner to fix
the flat tire. It is obvious
why they told the lie about the owner of
the vehicle - it was to hide their crimes and to reassure the police
and to get them to
leave the scene.
[23] This was a
deliberate lie of a material fact and as such constitutes evidence of
a guilty conscience and a knowledge that the
truth will implicate
them. The only reasonable inference to be drawn in these
circumstances is that the appellants had inteded
to make common cause
in the commission of the offences. These actions by the appellants is
a manifestation of the sharing of a
common purpose. They all actively
lied to the police to protect themselves and to avoid exposure and by
doing so showed their association
with what had been done earlier
that night. I am therefore satisfied that the appellants were
correctly found guilty of kidnapping
and murder.
[24] As far as the
charge of robbery is concerned, I am not satisfied that the
appellants were correctly convicted. Robbery consists
of theft of
property by unlawfully and intentionally using:
(a) violence to take
the property from somebody else; or
(b) threats of
violence to induce the possessor of the property to submit to the
taking thereof. (See definitions in Hunt Milton
642 and Burchell and
Milton 817). It is customary to describe the crime briefly as 'theft
by violence’. (See R v De Jough
1959 (1) SA 234
(A) 238 C-D; S
i/ Benjamin
1950 (1) SA 950
(A) 958H). Therefore the elements of
robbery can be summed up as follows:
(a) the theft of
property;
(b) through the use
of either violence or threats of violence:
(c) a causal link
between the violence and taking of the property;
(d) unlawfulness;
(e) intention, (see
Criminal Law 5th Edition by CR Snyman at 517).
[25] The underlining
is my emphasis. The deceased was very drunk when he left the Tavern
in the company of at least some of the
appellants. He was possibly
too drunk to drive his own vehicle. There was no evidence that he was
carried to the vehicle nor was
there evidence that any struggle
ensued between him and the appellants.
[26] There is no
evidence that at the time the appellants left the tavern, they
intended to steal or rob the deceased of his vehicle.
There was a
suggestion in the course of the evidence during trial that the
appellants intended to take the deceased to his home
as he could not
drive. Instead of taking him to his home they drove towards the
direction of Dullstroom. It could well be that
they only decided to
steal the car when they took the direction towards Dullstroom.
[27] In this case,
it does not matter whether the vehicle was taken before or after the
murder. The one critical element of robbery
is the use of ‘violence
to take the property from somebody else’ or ‘the threats
of violence to induce the possessor
of the property to submit to the
taking of the property’. There was no evidence of violence used
to take the vehicle from
the deceased nor was there any evidence that
the deceased was threatened with violence to induce him to hand over
or submit to
the taking of the vehicle by the appellants.
[28] The trial court
seems to have relied on circumstantial evidence in convicting the
appellants on the robbery charge. Before
I deal with circumstantial
evidence in the present case, it is necessary to deal with the nature
and reliance on circumstantial
evidence generally. The living general
principle relating to circumstantial evidence was long stated in R v
Blom
1939 AD 188
at 202 and 203 as follows:
“a The
inference sought to be drawn must be consistent with all proven
facts. If it is not, the inference cannot be drawn,
b. The proven facts
should be such that they exclude every reasonably inference from them
save the one sought to be drawn. If they
do not exclude other
reasonable inference, then there must be a doubt whether the
inference sought to be drawn is correct’.
[29] In R v De
Villers
1944 AD 493
at 508 it was held that a court should not
consider each circumstance in isolation and draw inferences from each
single circumstance.
The onus on the state is not to prove that each
separate item of evidence is inconsistent with the involvement of the
accused,
but that taken as a whole, the evidence is beyond reasonable
doubt inconsistent with such innocence.
[30] Insofar as the
trial court appears to have made its finding based on the evidence of
the wife of the deceased, I find it necessary
to deal with her
evidence in the context of the proven facts:
(a) The deceased was
taken out of his vehicle at the road side between Dullstroom and
Belfast,
(b) Outside his
vehicle, the deceased was viciously assaulted by the appellants, and
sustained injuries as set out in paragraph
12 of this judgment,
(c) The police found
evidence which indicated that the initial part of the assault took
place right on the edge of the tarred road
surface where blood was
found,
(d) Blood and
bloodied brick was found approximately 2 to 3 metres from the side of
the road,
(e) More blood was
found further into the veldt in the direction where the deceased’s
belt was found; and
(f) More blood was
also found in the direction of the place where the body of the
deceased was eventually found.
[31] The description
of the blood and where it was found, as set out in paragraphs 15 and
16 of this judgment, is critical insofar
as the trial court might
have drawn an inference that the deceased was assaulted in the
vehicle based on the circumstantial evidence
of the deceased’s
wife. Her evidence was to this effect: At the scene where the
deceased’s vehicle was found, one of
the deceased’s shoes
was found inside the vehicle. The deceased’s jacket with blood
and his cap were also found a distance
away from the vehicle.
[32] The fact that
the deceased’s cap and one shoe were found around the scene
where the vehicle was found, does not prove
that the deceased was
ever assaulted inside the vehicle, and if so, assaulted with the
intention to take the vehicle from him by
force. He was at all
material times at the back seat of the vehicle. Furthermore, the fact
that a jacket with blood was found does
not prove that the deceased
sustained injuries and bled whilst inside the vehicle and before he
was taken out of the vehicle. It
could well be that the jacket was
taken off the deceased at the scene where his body was found and
took^t out of the vehicle after
the collision in order to conceal
blood on the jacket and the appellants’ involvement in the
murder of the deceased.
[33] Even if the
deceased was assaulted in the vehicle, without more, it cannot be
inferred that the intention for the assault was
to take the vehicle
by force or threat. There was no need to use force in order to take
the vehicle as the appellants were already
in control or possession
of the vehicle. In the absence of any reliable evidence pointing to
the deceased wanting to regain possession
of his vehicle, no
inference can be drawn that force was used. I would therefore uphold
the appeal on a charge of robbery with
aggravating circumstances and
substitute the conviction on count 2 with conviction on theft being a
competent verdict of robbery.
[35] Coming to the
appeal against sentence on charges of murder and kidnapping they were
each sentenced to 20 years and 3 years
respectively. Having regard to
the circumstances under which the offences were committed and having
regard to the personal circumstances
of each of the appellants as
alluded to in the trial court’s judgment, I find no merit in
the appeal against sentences imposed
on counts 1 and 3. The trial
court having found existence of compelling and substantial
circumstances had the discretion in imposing
any sentence it
considered to be an appropriate. A court of appeal will not easily
interfere with an exercise of discretion unless
it was improperly
exercised. As regards count 2, that is, robbery with aggravating
circumstances, each one of the appellant was
sentenced to 10 years
imprisonment, the trial court having found that there were compelling
and substantial circumstances. Upholding
the appeal on this charge
and substituting it with conviction on theft, makes it necessary to
reconsider the sentence of 10 years
imprisonment afresh. Having
regard to their personal circumstances and the circumstances under
which the offence was committed,
I find that 7 years imprisonment is
appropriate.
[36] Consequently an
order is hereby made as follows:
36.1 The appeals of
the appellants against conviction and sentence in count 1, (murder
charge); and count 3 (kidnapping charge),
are dismissed.
36.2 The appeal of
all the appellants in respect of conviction and sentence on count 2
(robbery with aggravating circumstances)
is hereby upheld and both
conviction and sentence on count 2 are set aside and substituted as
follows:
“36.2.1 The
accused are found guilty of theft on count 2 being a competent
verdict of robbery with aggravating circumstances;
36.2.2 On count 2
(Theft) the accused are hereby sentenced to seven years imprisonment.
36.2.3 The sentence
of 7 years on count 2 to run concurrently with the sentence on the
murder charge in
count 1.”
M F LEGODI
JUDGE OF THE HIGH
COURT
I agree
J RMURPHY
JUDGE OF THE HIGH
COURT
I agree
C P RABIE
JUDGE OF THE HIGH
COURT
FOR THE
APPELLANTS. PRETORIA JUSTICE CENTRE
2nd Floor, FNB
Building 206 Church Street PRETORIA TEL: 012 401 9200
FOR THE
RESPONDENT: DIRECTOR OF PUBLIC PROSECUTIONS
PRETORIA