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[2015] ZAGPPHC 103
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Ntholeng v S (A713/09) [2015] ZAGPPHC 103 (18 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: A713/99
In the matter
between:
THABO ANTHONY
NTHOLENG
.........................................................................................
APPELLANT
and
THE
STATE
............................................................................................................................
RESPONDENT
JUDGMENT
HEARD ON: 12
FEBRUARY 2015
JUDGMENT ON: 18
FEBRUARY 2015
KUBUSHI, J
[1] The appellant
was, together with Oupa Mofehachane convicted on a charge of
attempted murder. The appellant was accused 2 in
the trial and Oupa
Mofehachane was accused 1. I shall for convenience, in this judgment,
refer to Oupa Mokhachane as accused 1.
Both the appellant and accused
1 were sentenced to 15 years imprisonment. The appellant is with
leave of the trial court appealing
both the conviction and sentence.
[2] The common cause
facts in this appeal is that the complainant, Mr George Letsweyu,
gave two people (unknown to him) a lift and
he was shot at the time
these two people alighted from his motor vehicle. The bullet grazed
his forehead and he was seriously injured
and had to undergo two
operations to his forehead.
[3] The complainant
did not identify his assailants. The incident happened at night and
at a place where it was dark. The only evidence
that linked his
assailants, namely, the appellant and accused 1 to the offence was
the presence of the finger prints lifted by
the police on the body of
the complainant’s motor vehicle and the testimony of accused 1.
The appellant’s finger print
was lifted on the left front
passenger door of the complainant’s motor vehicle. The trial
court convicted the appellant and
accused 1 on the strength of this
evidence.
AD CONVICTION
[4] The appellant is
appealing the conviction and contends that even if this court can
find the evidence of the finger print to
be in order, the presence of
such finger print does not prove the guilt of the appellant beyond
reasonable doubt.
[5] I do not
understand the appellant to be contensting that the finger print in
question does not belong to him, what he places
in issue is that the
evidence of the finger print does not prove the states case beyond
reasonable doubt. This is so, according
to the appellant, because the
age of the finger print was not placed on record and the finger print
was found outside the motor
vehicle as such the appellant may have
unintentionally touched the motor vehicle.
[6] The trial court
is correct to have concluded that the finger print found on the left
front passenger door of the complainant’s
motor vehicle is that
of the appellant. Although, the appellant denied that it was his
finger print, he was, however, not able
to call any credible evidence
to discredit the evidence of the state in that regard. It is my view
that the only inference that
can be drawn is that the appellant's
finger print landed on the complainant's motor vehicle at the time of
the incident. The evidence
shows that the appellant was not known to
the complainant before the incident and there is as such no way that
he could have come
into contact with the motor vehicle except at the
time of the incident. The submission by the appellant’s counsel
that he
could have touched it in parking lots in the vicinity where
both the appellant and the complainant stay, is far-fetched and is
mere speculation as it does not form part of the evidence tendered in
court. Moreover, according to the complainant’s evidence,
on
the day in question he personally washed the car at around 17h00 and
from there parked it in the garage. He later left in it
to go to town
and that is when he encountered the appellant and accused 1. The
finger print therefore places the appellant on the
scene of crime at
the time of the commission of that crime.
[7] The appellant's
counsel when arguing before us, correctly so, abandoned the
appellant's contention that the age of the print
was not placed on
record and that the print was lifted after 12 hours. The evidence in
respect of this issue is clear from the
record. Captain Adriaan
Harold, the finger print expert, conceded under cross-examination
that he lifted the finger print the following
morning after the day
of the incident, that is, on 15 November 2004 at approximately 9h20.
This was of course, longer than twelve
hours after the incident had
occurred. The fact that the finger print was lifted after 12 hours
does not take the argument any
further.
[8] Another
contention by the appellant is that the trial court erred in
accepting the evidence of accused 1 which implicated the
appellant in
the commission of the offence and resulted in the trial court
concluding that the complainant was shot by the appellant.
According
to the appellant's counsel, the trial court should not have relied on
this evidence because accused 1 had a motive to
implicate the
appellant. I am in agreement with the appellant in this regard.
[9] Accused 1 was an
accomplice to the commission of the offence and his evidence ought to
have been approached with caution by
the trial court. There is no
indication in the trial court’s judgment that it approached
accused 1’s evidence with
the necessary caution required in
law. I am also prepared to accept the appellant’s contention
that accused 1 had a motive
to implicate the appellant. On those
basis, in my opinion, the trial court should not have accepted this
evidence and in doing
so it erred.
[10] Be as it may,
this however, does not exculpate the appellant from the commission of
the offence.
[11] In terms of the
doctrine of common purpose, an accused may be found guilty of the
offence he or she is charged with if the
following requirements have
been complied with:
(a) He must be
present at the scene where the offence was being committed;
(b) He must have
been aware of the commission of the offence;
(c) He must have
intended to make common cause with those committing the offence;
(d) He must have
manifested his sharing of a common purpose by himself performing some
act of association with the conduct of the
others;
(e)
He must have intended to commit the offence or to contribute to the
commission of the offence.
1
[12] It is common
cause that the complainant was shot on the day in question. Either
the appellant or accused 1 shot the complainant.
My view is that
based on the doctrine of common purpose it is irrelevant who of the
two shot the complainant. Both of them were
at the scene of the crime
at the time the complainant was shot. The evidence show that the
appellant is the one who stopped the
complainant and asked for a lift
under false pretence that he had difficulty with his leg or feet (he
appeared to be limping) and
that his friend, accused 1, had blisters
on his feet. The appellant ran away together with accused 1 after the
complainant was
shot. On that basis the argument that the complainant
might have been shot by accused t cannot be sustained. If it is
accused 1
who shot the complainant it is my view that, the appellant
associated himself with the commission of that offence and is
therefore
guilty.
[13]
The
appeal on conviction must therefore fail.
AD SENTENCE
[14]
The offence for which the appellant
has been convicted, falls under the provisions of Part IV of Schedule
2 of s
51
(2)
(c) of the Criminal Law Amendment Act. In terms of this section a
person who is a first offender in the circumstances where
a firearm
was used to inflict serious bodily harm, shall be sentenced to
imprisonment for a period of not less than
5
years.
[15]
The
appellant’s assertion in respect of the appeal on sentence is
that, in sentencing the appellant to an effective term of
15
years
imprisonment, the trial court erred in over-emphasising the
seriousness of the offence and the interest of the society over
the
personal circumstances of the appellant and resulted in imposing a
sentence which is shockingly harsh and induces a sense of
shock.
[16]
It
is trite that a court exercising appellate jurisdiction cannot, in
the absence of material misdirection by the trial court, approach
the
question of sentence as if it were the trial court and then
substitute the sentence arrived at simply because it prefers it.
To
do so would be to usurp the sentencing discretion of the trial court.
Where material misdirection by the trial court vitiates
its exercise
of that discretion, the appellate court is of course entitled to
consider the question of sentence afresh.
2
[17] It is my view
that although the offence with which the appellant has been convicted
is serious enough to be met with a term
of imprisonment, the term
imposed in the circumstances of this case is not proportionate to the
offence committed. In that sense
the sentence is shockingly harsh and
induces a sense of shock and this court is thus entitled to
interfere.
[18] The appellant
suggests that a term of eight years imprisonment would be just and
appropriate in the circumstances of this case.
The respondent’s
counsel is also of the view that an effective period of not more than
eight years should have been imposed
in this matter. My view
therefore is that the sentence imposed by the trial court should in
the interest of justice be reduced
to eight years imprisonment.
[19] In the premises
I would propose the following order:
1. The conviction
is confirmed.
2. The appeal on
sentence succeeds.
3. The sentence
imposed by the trial court is set aside and substituted by the
following sentence:
“
Accused
2 is sentenced to eight (8) years imprisonment.”
E. M. KUBUSHI
JUDGE OF THE HIGH
COURT
I concur and it
is so ordered
J W LOUW
JUDGE OF THE HIGH
COURT
Appearances:
On behalf of the
appellant: Adv. S MOENG
Instructed by:
PRETORIA JUSTICE
CENTRE
2
nd
Floor
FNB Building
206 Church Street
PRETORIA 0001
On behalf of the
respondent: Adv M D MATJOKANA
Instructed by:
DIRECTOR OF
PUBLIC PROSECUTIONS
Presidential
Building
28 Church Square
PRETORIA
0001
1
See S v Mgedezi 1989 (1) 7051 706C
2
S v Malgas
2001 (1) SACR 469
(SCA) at 478 par 12 d - g and S v Blank
1995 (1) SACR 62
(A) at 86i