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[2016] ZAGPPHC 511
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Zulu v S (A452.2015) [2016] ZAGPPHC 511 (24 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA
CASE NO:
A452/2015
Date of
Hearing:24/04/2016
Date of Judgment:27/05/2016
In
the matter between:
DERRICK ZWELETHU
ZULU
APPELLANT
and
THE STATE
RESPONDENT
J U D G M E N
T
KUBUSHI, J
INTRODUCTION
[1] The appellant was tried as
accused 1 in the regional division of Nigel on the following charges:
count 1 - murder read with
the provisions of s 51 (1) of the Criminal
Law Amendment Act 105 of 1997 ("the Act"); count 2 -
robbery with aggravating
circumstances read with the provisions of s
51 (2) of the Act; and count 3 - possession of an unlicensed firearm.
The respondent
informed the trial court that it will rely on the
doctrine of common purpose in order to prove its case against the
appellant
[2] The appellant pleaded not
guilty in respect of the three counts. He was acquitted on count 3
and found guilty in respect of
count 1 and count 2. The trial court
imposed the following sentences: count 1 - life imprisonment; and
count 2 - fifteen (15) years
imprisonment. The trial court ordered
the sentence in count 2 to run concurrently with the sentence in
count 1. The appellant was
further declared unfit to possess a
firearm in terms of
s 103
of the
Firearms Control Act 60 of 2000
.
[3]
The appellant has an automatic right of appeal in terms of s 10 of
the Judicial Amendment Act 42 of 2013. He is before us appealing
the
conviction and sentence imposed by the trial court.
[4]
At the hearing of the appeal the appellant applied for the
condonation for late filing of the heads of argument. There was no
objection to the application and we granted the condonation.
FACTUAL
MATRIX
[5]
The factual matrix is that on the day in question the deceased was
sitting with his girlfriend, Ms Mvulani in the deceased's
motor
vehicle, a maroon VW Polo, parked in the street. They were waiting
for the deceased's friend. It was late at night around
22h10. The two
were accosted by three men. One of the men, who Ms Mvulani identified
as the appellant, knocked on the window and
ordered the deceased and
Ms Mvulani to get out of the motor vehicle. The appellant pulled out
a firearm. One of the assailants,
who was the appellant's co-accused,
slapped the deceased with an open hand. Ms Mvulani opened the motor
vehicle's door and ran
away. As she was running she heard a gunshot
and after sometime she saw the motor vehicle drive away. Ms Mvulani
returned to where
the motor vehicle was to look for the deceased.
When she got there, the deceased was lying on the ground in a pool of
blood injured
and he died on the scene.
[6] Ms Mvulani's evidence is
that she was able to see their assailants very clearly because,
although it was dark outside, the street
lights were on. The lights
were about 25 meters from where the motor vehicle was parked. It took
her about ten (10) minutes within
which to observe their assailants.
She was able to identify the appellant in an identity parade.
[7]
The following documents were entered into evidence during the trial:
the identity parade form handed in as exhibit "E"
with the
consent of the appellant, the contents of which were admitted in
terms of s 220 of the Criminal Procedure Act 51of 1977
("the
Criminal Procedure Act"
;); and the photographs taken at the
identity parade depicting Ms Mvulani identifying the appellant were
admitted into the record
as exhibit "F". A further
admission placed on record was that the deceased was the owner of the
motor vehicle.
[8] The appellant was further
implicated in the commission of the offences when a police officer
found the deceased motor vehicle
parked on the premises where the
appellant resides together with the key and registration papers of
the motor vehicle which were
found in his possession. The print of
the appellant's ring finger was uplifted on the outside the right
front door window of the
deceased motor vehicle.
[9] The appellant denied that
he took part in the murder and robbery of the deceased. He also
denied that he was found in possession
of the deceased's motor
vehicle, keys and registration papers. His testimony was that he has
never been in Rathanda where the incident
took place.
AD CONVICTIONS
Grounds of
Appeal
[1O] The submission by the
appellant is that the trial court erred in finding that the
respondent proved its case against him beyond
reasonable doubt, in
that insufficient weight was attached to the following factors:
1. The complainant was a
single witness and her evidence should have been clear and
satisfactory in all material aspects. The submission
in this regard
is that the trial court did not treat the evidence of Ms Mvulani with
the necessary caution.
2. The identity of the
appellant was not proven beyond reasonable doubt;
The explanation given by the
appellant for the finger print lifted on the outside of the motor
vehicle; and
3. The version of the
appellant as reasonably possibly true.
The Issue
[11] The crux of the issue
before us is whether the trial court erred in concluding that the
respondent has proved its case beyond
reasonable doubt. Ancillary to
the main issue, are the following issues: whether the evidence of Ms
Mvulani, as a single witness,
was not clear and satisfactory in all
material aspects; whether Ms Mvulani's testimony was not treated with
the necessary caution
required in law; whether the identity of the
appellant was proved beyond reasonable doubt; whether the explanation
given by the
appellant in respect of his finger print lifted from the
motor vehicle was reasonable; and whether the appellant's version is
reasonably
possibly true.
The
Law
[12] It is established law
that a court of appeal rarely interferes with the credibility
findings of a trial court. The powers of
a court of appeal to
interfere with
the
credibility findings of a trial court are limited. In the absence of
any misdirection the trial court's conclusion, including
the
acceptance of a witness' evidence, is presumed to be correct on the
basis that the trial court had the advantage of seeing,
hearing and
appraising a
witness.
[1]
Analysis of Evidence
[13] The appellant's
contention is that the trial court did not approach the evidence of
Ms Mvulani, as single witness, with the
caution required in law.
[14] It is trite that a court may
convict on the evidence of a single witness as
is provided for in
s 208
of the
Criminal Procedure Act. It
is also established judicial
practice for trial courts to apply cautionary rules when evaluating
the testimony
of
such single witnesses. The purpose of the cautionary rules is said to
be to assist
the
court in
deciding
whether or not guilt has been proved beyond reasonable doubt.
[2]
[15] The cautionary rule does not
require that triers of fact should be told, or should warn themselves
about the application of
the rules. What is required is for
a court to look
for a safeguard which
would reduce the risk of wrongful conviction.
[3]
[16]
The best indication that there was proper appreciation of the risks
is naturally to be found in the reasons furnished by the
trial court.
The trial court
must
demonstrate that it has in fact heeded the warning and that it was
well aware of the dangers of
wrong conviction by its
treatment of the
evidence.
[4]
[17]
In this instance, the trial court convicted the appellant mainly
because it found the evidence of Ms Mvulani in respect of
the
identity of the appellant as one of the perpetrators to be truthful
and as such rejected that of the appellant as being not
reasonably
possibly true.
[18]
It is common cause that in accepting the respondent's version, the
trial court relied on the evidence of Ms Mvulani in identifying
the
appellant as one of the perpetrators in this instance. In this regard
Ms Mvulani was a single witness. The trial court was
therefore
enjoined to approach her evidence with the necessary caution required
in law.
[19] From the trial court's
reasons for judgment, it is apparent that it was aware that Ms
Mvulani was a single witness and that
it ought to approach her
evidence with caution. As an indication that it approached Ms
Mvulani's evidence with caution, the following
is stated in the trial
court's judgment:
'So nou moet die hof kyk na, en
soek na, betroubaarheidswaarborge vir die getuie, Me Cindie Mvelani,
sy uitwysing: 1) dit was danker,
2) die voorval het vining gebeur, 3)
sy het weliswaar waargeneem dat daar in die mate van straatlig en
nabye huise se ligte was.
Maar, is die beligting nie van so ' helder
aard gewees nie, maar kon sy sien, en is die hof tevrede dat daar in
haar uitkenning
met betrekking beskuldigde 1 [appellant] vele
betroubaarheidswaarborge bestaan'
[20] The trial court, as such,
sought and found a safeguard against wrong conviction in the evidence
of Ms Mvulani, herself. It
found such safeguard in the truthfulness
of Ms Mvulani's testimony. When assessing the evidence in its
totality, it satisfied itself,
correctly so in my view, that Ms
Mvulani was a credible and reliable witness and accepted her version
as truthful. This is so because
it found the evidence of Ms Mvulani
to be straight forward, clear and satisfactory in all material
respects.
[21] The appellant, however,
contends that Ms Mvulani's evidence was not clear and satisfactory in
all material respects because
of the material contradiction between
her evidence and that of Constable Motatenyane, who attended to the
scene of crime, as to
the illumination on the scene of crime. It is
Ms Mvulani's testimony that she could clearly see their assailants
because the street
lights were on. To the contrary, Constable
Motatenyane's evidence is that they could not see clearly and had to
illuminate the
scene by means of the lights of their motor vehicle.
[22) The trial court was alive to
the contradictions in the version of the respondent but despite such
discrepancies it concluded
that the truth has been told. It stated
the following in respect of some of the contradictions in the
evidence of Ms Mvulani:
'Nau met betrekking tot die
getuienis van Cindie Mvulane het sy die hof oortuig as 'n eerlike en
geloofwaardige getuie. Sy slag
daarin om die gebeure op 'n logiese en
konsekwente wyse aan die hof oar te dra. Die enigste skadu wat op
haar getuienis gewerp
word is waar sy in die hoof getuienis meld dat
sy het nie gesien wie die vuurwapen het nie, en later in kruisverhoor
meld beskuldigde
1 [appellant] het die vuurwapen gehad.'
[23]
The contradiction the appellant is complaining about, might of
course, be a material contradiction that would go to the root
of the
identification of the appellant by Ms Mvulani, but, this discrepancy
is cured by the objective truthfulness of Ms Mvulani
in the positive
identification of the appellant at the identity parade as one of the
perpetrators on that fateful night.
[24]
The identity of the appellant as a perpetrator of the offences in
this instance was, in my opinion, proven beyond reasonable
doubt. The
trial court's finding in this respect which in my opinion is correct
is stated as follows in the judgment:
'Maar,
het sy volhard met haar getuienis en openbaar haar getuienis geen
inherente onwaarskynikhede nie, en is dit duidelik wanneer
haar
getuienis opweeg word, het sy 'n tydjie gehad om 'n waarneming te
doen en sy het daarna weggehardloop. 'n Tydjie is 'n paar
sekondes.'
[25] Ms Mvulani saw the
appellant for the first time on 11 June 2010 and was able to identify
him again on 19 July 2010 at the identification
parade. This is not
an unreasonably long time. This to me is an indication that within
the limited time Ms Mvulani saw the appellant
she was able to observe
him clearly. The truthfulness of Ms Mvulani's evidence that she
clearly saw the appellant by the help of
streets lights is
corroborated by her ability to have identified the appellant at the
identity parade. It is further corroborated
by the evidence of
Constable Whitman who found the deceased motor vehicle parked on the
premises where the appellant stayed together
with the keys and
registration documents of the deceased's motor vehicle which were
found in the possession of the appellant.
[26]
I, must also in passing, mention that Constable Whitman is also a
single witness in respect of the recovery of the deceased
motor
vehicle, the key and registration documents. Similarly, the trial
court, having declared him an independent witness, found
his evidence
to be satisfactory in all material respects.As an independent
witness, he had no reason and none was proffered, to
falsely
implicate the appellant.
[27]
The trial court having accepted the version of the respondent it had
to, correctly so, reject that of the appellant as not
reasonably
possibly true.
[28]
It is my view that the version of the appellant that he was not
involved in the murder and robbery of the deceased cannot be
reasonably possibly true. There are just too many coincidences.
[29]
Firstly, Ms Mvulani, whose testimony has been accepted as truthful,
testifies that she saw the appellant at the scene of crime.
According
to Ms Mvulani, the appellant is the one who knocked at the window of
the motor vehicle and ordered them to get out. She
saw him pull out
the firearm and point it at the deceased. She testified that she
could clearly see the appellant because the street
lights were on at
that time. Although the incident happened very quickly, she could
still positively identify the appellant at
the identity parade.
[30]
Secondly, the deceased' motor vehicle was found by the police parked
on the premises where the appellant is residing. The keys
of the
motor vehicle and its registration papers are found by the police in
his possession.
[31]
Lastly, a finger print is found on the outside right front door
window of the deceased motor vehicle whilst parked in the premises
where he resides and the finger print is positively identified as
his. Even though the explanation as to how the appellant's finger
print got to be found on the motor vehicle is accepted as reasonably
possibly true, it does not take his case any far, because,
the other
evidence against him is just too overwhelming.
[32]
It does not appear from the record that the trial court convicted the
appellant on the basis of the doctrine of common purpose.
The
appellant did not raise it as an issue, I, therefore do not intend
dealing with it in this judgment.
[33]
However, in argument before us, the appellant wanted to raise an
issue of recent possession in respect of the offence of robbery
with
aggravating circumstances. I do not think that that doctrine finds
application in the circumstances of this matter and requires
no
further attention by us.
[34]
It is my view therefore that the appellant's version that he was not
involved in the commission of these offences is not reasonably
possibly true and the trial court was correct to have rejected it.
The respondent has proved its case beyond reasonable doubt and
the
appeal on the convictions must fail.
AD
SENTENCE
[35] The appellant has been
convicted of two offences where the prescribed minimum sentence is
applicable. In respect of count 1
of murder the applicable section is
s 51 (1) of the Act; and in respect of count 2 robbery with
aggravating circumstances s 51
(2) of the Act is applicable. The
minimum sentence applicable in count 1 is imprisonment for life since
the death of the deceased
was caused by the appellant in committing
an offence of robbery with aggravating circumstances; and the
sentence applicable in
count 2 is fifteen (15) years imprisonment
because the appellant was a first offender for purposes of this
offence.
[36]
The said sentences can only be imposed if there are no substantial
and compelling circumstances warranting deviation from the
sentence
prescribed to a lesser sentence. In determining whether there are
substantial and compelling circumstances to justify
deviation from
the imposition of the prescribed minimum sentence the trial court
must consider all the factors traditionally considered
when a
sentence is imposed. The trial court, in this instance, considered
all the factors, namely, the seriousness of the crime,
the interest
of society and the personal circumstances of the appellant, and found
that there are no substantial and compelling
factors and thus imposed
the prescribed minimum sentences in respect of both counts.
[37]
Before us the submission by the appellant is that the trial court
misdirected itself in not finding that the cumulative effect
of the
following factors as well as the personal circumstances of the
appellant amounts to substantial and compelling circumstances:
1.
The motor vehicle was recovered;
2.The appellant spent time in
custody awaiting trial; and
3.The appellant was the sole
breadwinner.
[38] Although in its heads of
argument the respondent argued for the dismissal of the appeal on
sentence, however, before us, the
respondent's counsel conceded that
the trial court should have considered the four (4) years the
appellant spent in custody awaiting
trial as substantial and
compelling circumstances.
[39]
The issue before us is whether the trial court erred in not finding
substantial and compelling circumstances warranting deviation
from
the prescribed minimum sentence.
[40]
The Supreme Court of Appeal in
Radebe
and Another v S,
[5]
stated the following in respect of time spent in custody awaiting
trial:
"(14] . . . a better
approach, in my view, is that the period in detention pre-sentencing
is but one of the factors that should
be taken into account in
determining whether the effective period of imprisonment to be
imposed is justified: whether it is proportionate
to the crime
committed. Such an approach would take into account the conditions
affecting the accused in detention and the reason
for a prolonged
period of detention. And accordingly, in determining, in respect of
the charge of robbery with aggravating circumstances,
whether
substantial and compelling circumstances warrant a lesser sentence
than that prescribed by the Criminal Law Amendment Act
105 of 1997
(15 years' imprisonment for robbery), the test is not whether on its
own that period of detention constitutes a substantial
or compelling
circumstance, but whether the effective sentence proposed is
proportionate to the crime or crimes committed: whether
the sentence
in all the circumstances, including the period spent in detention
prior to conviction and sentencing, is a just one."
[41] It is thus evident from the
aforesaid that the time spent in custody awaiting trial is only but
one of the factors that a trial
court should take into account in
determining whether an effective period of imprisonment to be imposed
is justified. In my opinion
it does not mean that once a person has
spent time in custody awaiting trial such a period should be
considered a substantial and
compelling circumstance warranting a
lesser sentence. The question is whether the sentence the trial court
intends meting out is
proportionate to the crime committed and
whether the sentence in all the circumstances, including the period
spent in detention
awaiting trial is a just one.
[42] My view is that, in the
matter before us, the sentence imposed is not proportionate to the
crimes the appellant has been convicted
of. This is mainly because
the appellant spent a period of four (4) years in prison prior to his
conviction and sentence. Four
(4) years in my view, is a long time to
be spent in custody awaiting trial. I am, therefore of the opinion
that the trial court
should have taken the period the appellant spent
in custody awaiting trial cumulatively with his other personal
circumstances and
found that there were substantial and compelling
circumstances warranting a deviation from the prescribed minimum
sentence and
imposed a lesser sentence.
[43] The appellant's personal
circumstances are: he was thirty five (35) years at the time of
sentencing; he was unmarried but had
a girlfriend; he had three (3)
children aged fourteen (14) years, eleven (11) years and seven (7)
years old; the children resided
in Kwazulu Natal; he attended school
until standard 7; he was employed as a taxi driver prior to his
arrest; he has four (4) sisters
that he was supporting; his father
and brother are deceased; and he was the sole breadwinner.
[44] In addition to the
appellant's personal circumstances the following further factors
should have been considered: the motor
vehicle was recovered and
there was no evidence led to the effect that it was not in good
condition when it was returned; the appellant
was arrested on 24 June
2010 and the matter was finalised on 2 June 2014. The record
indicates that he was in custody throughout
the trial proceedings -
and the time of four (4) years spent in custody should have been
considered; the appellant was not a first
offender.
[45] The trial court was
correct in finding that the crimes of which the appellant has been
convicted are serious because of their
nature and their prevalence.
The trial court, also, correctly so, considered the aggravating
factors which will continue playing
a role even though a lesser
sentence will be imposed, in that: the deceased was a young man in
the prime of his years and with
potential; the appellant is not a
first offender and has been involved in crimes where violence was a
factor; the appellant showed
no remorse; Ms Mvulani is traumatised
and might be so traumatised for a long time to come.
[46] It is trite that any
appeal against sentence whether imposed by the magistrate or Judge,
the
court
hearing the
appeal -
a)
should
be guided
by the
principle that punishment
is pre-eminently a matter for the discretion of the trial court; and
b) should be careful not
to erode such discretion: hence the further principle that the
sentence should only be altered if
the discretion has not
been 'judicially and properly exercised.' The test under b) is
whether the sentence is vitiated by irregularity
or misdirection
or
is
disturbingly
inappropriate.
[6]
[47] I am therefore of the
opinion that from the aforesaid, the trial court did not exercise its
discretion properly and that we
have to interfere with the sentences
it imposed.
[48] An appropriate sentence
should, as it is normally said, fit the offence, the offender and be
in the interest of the society.
It is my view that appropriate
sentences in the circumstances of this matter should be the
following: count 1 the
a
ppellant should be sentenced to
eighteen (18) years imprisonment; count 2 the appellant should be
sentenced to ten (10) years imprisonment;
and the sentence in count 2
should be ordered to run concurrently with that in count 1, the
effect thereof to be eighteen years
(18) imprisonment. In terms of
s
282
of the
Criminal Procedure Act, the
sentence should be ante dated
to 2 June 2014 being the date on which the trial court's sentences
were imposed.
[49] In the circumstances I
would grant the following order:
1. The appeal on conviction is
dismissed.
2. The appeal on sentence is
upheld. The sentences imposed by the trial court are set aside and
substituted by the following:
'1. Count 1 the accused is
sentenced to eighteen (18) years imprisonment;
2.
Count 2 the accused is sentenced to ten ( 10) years
imprisonment.
3.
The sentence in count 2 is ordered to run concurrently with
count1.
4.
The
sentences are ante-dated to 2 June 2014.
5.
The
accused is declared unfit to possess a firearm in terms of
section
103
of the
Firearms Control Act 60 of 2000
.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
I concur
T.A.N
MAKHUBELE
ACTING JUDGE OF THE HIGH COURT
Appearances:
On behalf of the appellant:
On behalf of the respondent:
Adv.
M.B. MOLOI
Instructed by:
PRETORIA JUSTICE
CENTRE
2nd Floor FNB Building 206
Church Street
PRETORIA 0001
Adv.
C. PRUIS
Instructed by:
DIRECTOR OF
PUBLIC
PROSECUTIONS
Presidential
Building 28 Church Square
PRETORIA 0001
[1]
See
S v Francis
1991 (1) SACR 198
(A).
[2]
See
S v Snyman
1968 (2) SA 582
(A)
at585C-G.
[3]
See
R v Mpompotshe
&
another
1958 (4) SA 471
(A) at 476E-F.
[4]
See
also R v Manda 1951 (3) SA 158 (AD).
[5]
(726/12)
[2013] ZASCA 31
(27 March 2013) at para [14]
[6]
See
S v Rabie
1975 (4) SA 855
(A).