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2015
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[2015] ZAGPPHC 48
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Raletsoho v S (A1043/2013) [2015] ZAGPPHC 48 (6 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER:
A1043/2013
DATE: 6 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between: —
ABIEL
THABISO
RALETSOHO
................................................................................
Appellant
And
THE
STATE
................................................................................................................
Respondent
JUDGMENT
JANSEN J
[1] This appeal is
against the conviction and sentence of the appellant by the
Standerton magistrate’s court on the count
of murder. The
appellant was convicted and sentenced to a prison term of ten years
in terms of section 52(1) of Act 105 of 1997
on 16 October 2012. He
was also held to be unfit to possess a firearm in terms of section
103 of Act 60 of 2000.
[2] It was alleged
in the charge sheet that upon or about 17 July 2010 and near Sakhile
in the regional district of Mpumalanga,
the appellant unlawfully and
intentionally killed a certain Mr Vincent Sipho Hlatshwayo.
[3] The magistrate
refused leave to appeal in respect of the conviction and sentence,
but such leave was granted on petition to
this court.
[4] At the outset it
is important to emphasise that the appellant is a forty year old
reservist in the South African Police Service.
He pleaded not guilty.
[5] The state called
three witnesses. The first witness was Mr Pontsho Mofokeng. Mr
Mofokeng testified that on 17 July at 03h30
in the morning he was
attending a family gathering at the home of Ms June Sithole. He
further testified that Ms Sithole’s
home was situated at
Sakhile in Standerton. He stated that they had slaughtered some
cattle and they had sat around a “konka”
which was still
burning. He went to his home to fetch a cigarette and upon his return
to Ms Sithole’s home she told him that
she had seen people at
the residence of person named Thato. He testified that they then
phoned Thato to find out whether the people
that were at his house
were perhaps Thato and his girlfriend but it transpired that Thato
was not at his house but at Embalenhle.
[6] Thato instructed
them to find out who the people were and what they were doing on his
property. Mr Mofokeng testified that they
shouted at the intruders
that they could see what they were doing although they could not see
who they were.
[7] Mr Mofokeng
testified that there were two people removing things from Thato’s
yard and throwing the items over the fence.
He testified that the two
suspects split up and that he chased the one with Ms Sithole lagging
behind him. He testified that the
one suspect that he chased ran to a
certain yard with dongas and then disappeared around a house and hid
in a toilet. Mr Mofokeng
cornered him only to see that it was a
person he knew very well. He asked him what he thought he was doing
and the suspect (Mr
Vincent Sipho Hlatshwayo) responded that he was
only trying to make a living.
[8] Mr Mofokeng said
he panicked and was shocked because he knew
7
Mr Hlatshwayo
so well, and as a result decided to let him contact Thato upon
Thato’s return from Embalenhle. Mr Mofokeng
further testified
that Mr Raletsoho, the appellant, who is Thato’s brother,
arrived at the house and asked him (Mr Mofokeng)
whether he was the
person committing an offence. Mr Mofokeng testified that he answered
in the negative and stated that it was
Mr Hlatshwayo (hereinafter
referred to as the deceased) who was committing an offence and who
was now hiding in the toilet.
[9] Mr Mofokeng
explained that even though the appellant was Thato’s brother,
he also referred to the appellant as his brother,
because he
respected him. Mr Mofokeng testified that the appellant then took the
deceased out of the toilet by holding onto the
front of his clothes
and slapped him with the palm of his hands. The deceased fell as a
result. Mr Mofokeng told the appellant
that they should remove the
deceased from the yard before the people woke up and wanted to start
fighting. Hence the appellant
took the deceased by his belt and they
left the yard. Mr Mofokeng testified that he and the appellant walked
with the deceased
along the street and met up with Ms Sithole, and
they all proceeded to return to Ms Sithole’s yard where they
had been sitting
prior to the incident. He testified that he and Ms
Sithole told the appellant as they had to work in the morning they
were leaving
and because the appellant w
r
as a policeman,
they trusted him and left the deceased in his care and control. The
appellant told them that he would lock the deceased
in the garage and
call the police, whereupon Mr Mofokeng and Ms Sithole left, only to
hear the next morning that the deceased was
in the Intensive Care
Unit of the hospital. Mr Mofokeng testified that when he left the
deceased that night it was the last time
that he saw him.
[10] It was put to
Mr Mofokeng that when the appellant arrived the deceased was severely
injured which he denied categorically.
This version of the appellant
was put to him thrice, and he denied it each time. It was also put to
Mr Mofokeng that after Mr Mofokeng
had caught the deceased he stated
that people from a tavern which was close to Ms Sithole’s house
had assaulted the deceased
which fact Mr Mofokeng denied. It was also
put to Mr Mofokeng that the appellant denied that he slapped the
deceased, and that
he had put him (the deceased) in the garage
because the deceased was bleeding severely. This was also denied by
Mr Mofokeng. Mr
Mofokeng testified that the appellant informed him
that he was going to lock the deceased in his garage and call the
police. Mr
Mofokeng also emphasised that had the deceased indeed been
injured he would not have been as callous as to leave the deceased
because
he knew the deceased very well.
[11] Ms June
Sithole, who was called as the third state witness, corroborated the
evidence of Mr Mofokeng in all respects. She stated
that Mr Mofokeng
left her behind when chasing the deceased and returned with appellant
and the deceased. She confirmed that the
appellant was known to them
as Thabiso and was thankful that the deceased had been caught because
initially the appellant believed
that she and Mr Mofokeng were the
thieves. She confirmed that the appellant said he would take the
deceased to his garage.
[12] Whilst under
cross-examination, Ms Sithole stated that when chasing the deceased
the appellant had passed her and she thought
he might have been
phoned by his brother Thato due her calling Thato. She assumed that
the appellant arrived because Thato had
phoned him. This corroborated
the evidence of Mr Mofokeng who stated that he did not know how the
appellant arrived on the scene,
but that it was possible that Thato
had phoned him. (In any event the appellant had told Mr Mofokeng that
he had heard that a housebreaking
was taking place at his parental
home.)
[13] It was also put
to Ms Sithole that she and Mr Mofokeng had caught the deceased and
that the deceased had said that the people
at the tavern (which was
close by) had assaulted him, upon which she answered that he was not
injured. Ms Sithole confirmed that
the deceased was in a normal
condition and not bleeding in the slightest when she saw him and that
he was walking by himself although
the appellant was firmly gripping
him. She confirmed that they left the deceased in the appellant’s
custody and control since
he had said that he was going to take the
deceased to his house which was only about only two houses from her
home. Ms Sithole
stated in cross-examination that the appellant said
that he would call the police but did not know whether he called an
ambulance.
[14] Ms June Sithole
confirmed that she never saw the deceased thereafter and later heard
that the deceased had passed away.
[15] The second
witness called by the state was Ms Sindisile Poisa Xindi. Ms Xindi
testified that she was sleeping when her grandmother
woke her and
told her to open the door for her grandfather who was outside the
house. She testified that upon opening the door
her grandfather
stated that she must go with him as he had heard that there was a
child of Hlatswayo who had committed a crime.
[16] Ms Xindi
testified that they proceeded to the appellant’s house. She
testified that when they were in close proximity
of the appellant’s
house she saw what looked like water coming from the appellant’s
garage but that upon closer inspection
she saw it was water mixed
with blood. She testified that some of the water had already turned
into ice because it was so cold.
When asked at approximately which
distance she could see the water coming from the garage, she stated
that she saw the water as
she entered the gate to the yard. She
further testified that the garage was closed and she saw the
appellant sitting in his vehicle,
a “Kombi” which was
parked inside the yard. She then said she saw the deceased’s
shoes lying on the ground next
to the garage door but on the outside
of the garage door. She said she was not sure but thought that there
were other taxi drivers
there and that they were there to collect
taxis. She testified that when the appellant saw her he alighted from
his vehicle and
came towards her. She was asked if the appellant
spoke or said anything to her and she answered in the negative. She
testified
that the garage door was then opened but she could not
remember by whom.
[17] Ms Xindi then
testified that when she entered the garage she saw the deceased and
could see that he was injured. She testified
that she saw he had
injuries on his head and face and that his face was covered in blood
and that he was naked. She testified that
she saw his clothes and
that they were wet. She then testified that when the deceased saw her
he tried to stand up but fell which
she believed was due to the fact
that he no strength to stand up. She testified that she asked the
deceased why he was in such
a condition and said that the deceased
did not or could not answer her as he was in the process of falling
to the ground. She stated
that she then told her grandfather to close
the garage door. When asked if the appellant said anything to her she
replied in the
negative.
[18] Ms Xindi
testified that she then went home to inform her grandmother about
what had happened. She was asked what her relationship
with the
deceased was and she answered that the deceased was her cousin and
lived with her and their grandparents.
[19] When asked if
Ms Xindi asked the appellant about the deceased she testified that
she did not question him at all because she
was afraid of him.
[20] The state then
closed its case.
[21] Part of the
appellant’s counsel’s defence was the alleged
inadmissibility of a statement, exhibit “C”,
which the
appellant had made which was allegedly defective and completely at
odds with the appellant’s version in his trial
and which played
a role in the magistrate finding the appellant guilty. Given the fact
that the statement, exhibit “C”,
had been handed in by
consent it is difficult to follow this line of argument which is
clearly devoid of merit.
[22] The appellant’s
version was bizarre, to put it mildly. He testified that he was
sleeping but received a call from an
unknown source (later he found
out it was Thato’s friend) calling him to the scene of an
alleged crime. The appellant allegedly
then already phoned the
police, informing them of a housebreaking in progress at his parent’s
home. The appellant testified
that he went to his parent’s home
and found that things had been thrown out in the yard outside his
parent’s house.
He then testified that he saw three boys close
to a donga site. When asked if he knew who the three boys were he
answered that
he knew two of them, namely Mr Mofokeng and Ms Sithole
(who of course is not a boy). The appellant testified that he did not
know
who the deceased was as it was the first time he had ever seen
him. He further testified that he saw that the deceased was bleeding
from his head and testified that the deceased told him that people
had assaulted him at the tavern. This evidence is of course
a
contradiction of the evidence put to Mr Mofokeng that the appellant
would testify that the deceased was assaulted by people from
the
tavern after Mr Mofokeng had allegedly caught the deceased. The
appellant further contradicted the testimony of both Mr Mofokeng
and
Ms Sithole by stating that they all three put the deceased in his
garage at his home and that he telephoned the ambulance in
their
presence and that they then left. He further testified that the
ambulance did not arrive and he allegedly again phoned the
police. He
testified that he ran out of cellular phone airtime and left for
twenty to thirty minutes to go to the Shell garage
in order to
purchase airtime for his cellular phone. He testified that when he
arrived back at his house the brother of the deceased
arrived and
said that he had heard that his brother is at his house and that he
wants to see his brother. He testified that he
told the brother that
he did not know if the deceased was his brother and then said he
heard the brother say that their surname
is Hlatswayo. The appellant
further testified that the deceased's brother went into the garage
alone and came back to inform to
him that the deceased was badly
injured and that he would take his brother the hospital. Allegedly,
according to the appellant
the police then arrived after the deceased
had already been removed by his brother.
[23] The appellant
also alleged that he never assaulted the deceased; nor slapped him.
It was put to him that Ms Sithole and Mr
Mofokeng had testified that
the deceased was not injured at all, contrary to his evidence.
[24] When asked why
he had placed the deceased in the garage he testified that he placed
the deceased in the garage so that the
people who had assaulted him
could not get hold of him. Given the fact that the appellant also
testified that the deceased was
a suspect and that the garage was
unlocked, his version of the chain of events is highly improbable. He
testified that after buying
airtime he remained seated in his car.
(The question arises: If he were so concerned about the deceased why
did he remain in his
car instead of trying to assist him or check on
him?)
[25] The appellant
also testified, for the first time, that when he returned from buying
airtime there were people in his yard.
The appellant testified that
he yelled at the people in his yard, asking them what they wanted.
The appellant then changed his
version and stated that he could not
remember what happened when he returned after buying airtime but that
there were people outside
his house.
[26] According to
the appellant, when he was questioned why he did not place the
deceased under arrest, he stated that as he was
not on duty and he
was a reservist he could not arrest him. The absurdity of his version
was pointed out to him in cross-examination
- due to the fact that a
police officer is always on duty.
[27] The appellant
testified that he then laid a complaint with the police about
housebreaking in which he stated that he saw five
or six people
assaulting the deceased. This was included in a statement. The
appellant then denied that he ever made such a statement.
However,
the appellant then decided to state that he did not dispute the
statement, and did not know what had happened. He admitted
that the
deceased was severely injured but did not allegedly take him to the
hospital as he was allegedly not allowed to transport
injured people.
[28] The
improbability of leaving him in the unlocked garage was also put to
him but he testified that he knew where the deceased
came from. (This
evidence he gave although he allegedly only ascertained the
deceased’s surname when the deceased’s
niece arrived at
his garage. (Of course, earlier the appellant had testified that it
was the deceased’s brother who arrived
at the garage.)
[29] The appellant
was asked that if the deceased were so severely injured and he, the
appellant, was allegedly so caring, why did
he leave him in the
garage, and not, for example, take him to his sitting room. The
appellant could not furnish any answer. It
was put to him that he
wanted the deceased to die because the deceased was a thief. The
appellant could also proffer no explanation
why the deceased was
naked and wet.
[30] The appellant
was taken back to his statement and had to admit, albeit reluctantly,
that he had told the police taking the
statement what to write. The
defence then closed its case.
[31] When assessing
the evidence, the appellant’s version (read with his
conflicting police statement) is so inherently improbable,
that the
appellant can clearly be branded a witness whose credibility is
questionable and whose evidence is false. The appellant’s
version cannot reasonably be true on any construction.
[32] The post mortem
report, which was admitted by consent as exhibit “A” and
the photographs which were admitted as
exhibit “B”,
clearly demonstrate that the deceased received multiple stab wounds
to his head and that there was also
evidence of blunt force trauma to
his head. All these injuries led to subdural haemorrhage and the
deceased passed away on 22 July
2010, five days later.
[33] The state
witnesses were credible and corroborated each other. Their version
was also inherently probable.
[34]
The appellant’s attempts to distance himself from the deceased,
his alleged absence to buy airtime, his alleged refusal
to enter the
garage, his lack of any explanation as to why the deceased was naked
and wet, his denial that there was a tap in the
garage, his denial
that he did not know who had thrown water on the deceased, his
conflicting versions and the absolute callousness
demonstrated by him
on his own version, are shocking.
Quis
custodiet custodes?
This
is a question which the magistrate asked. It is little wonder that
the magistrate found him guilty as charged.
[35] Even so, the
magistrate, in a very short sentence, did not give the appellant the
minimum sentence of fifteen years, but only
a sentence of ten years.
The magistrate failed to explain the substantial and compelling
reasons why he gave the appellant only
a ten year sentence instead of
the minimum fifteen year sentence.
[36] Factors which
were argued in mitigation of sentence before sentencing were that the
appellant had five children, had no previous
convictions, his
children ranged from four to 13 years and he was also the sole
caretaker of the children. Furthermore, it was
argued on behalf of
the appellant that he had been dismissed from his employment as a
result of what had transpired. He was also
a first offender and forty
years of age. In his short sentence, the magistrate stated that he
would send the relevant social workers
to investigate the children’s
situation. As aggravating circumstances, the magistrate took into
account that one could not
take the law into one’s own hands
and that the police should protect one, not harm one.
[37] However, the
magistrate erred in not explaining which factors he considered as
substantial and compelling in order to deviate
from the minimum
sentence.
One can only infer
that the facts set out above which were placed before the magistrate
by the defence, persuaded him that such
a deviation from the minimum
sentence was called for.
[38]
One is left with the sense that the magistrate might not have applied
his mind properly. But as was held by Botha JA in
S
v Pieters
1987 (3) SA
717
(A)
at
727F-H the discretion to impose a sentence belongs to the trial court
and can only be set aside when exercised improperly or
unreasonably.
Given the fact that the magistrate did not give a reasoned judgment
regarding sentencing, it is impossible to state
which misdirections,
if any, he committed. The magistrate also did not cite any case law
at all. However, as stated, various mitigating
factors were placed
before the magistrate which clearly persuaded him to exercise his
discretion in the manner which he did. In
the result that it cannot
be held that the magistrate misdirected himself.
Order
In the result, the
court holds as follows: —
1. The appeal in
respect of conviction and sentence is dismissed, and the convictions
are confirmed.
JANSEN J
JUDGE OF THE
HIGH COURT
I
agree
ISMAIL
J
JUDGE OF THE HIGH
COURT
For
the Appellant
Advocate
JP Marais
(084
288 5401)
Instructed
by
Makobe
& Associates (Ref: No: Mr Makobe/R504BSZ)
For
the Defendants
Advocate
JP van der Westhuysen (083 755 4265)
Instructed
by
The
State Attorney Pretoria (012 309 1563)