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[2015] ZAFSHC 11
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Thebe v S (A190/2014) [2015] ZAFSHC 11 (29 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A190/2014
In
the Appeal of:
TAHLEHO
JOSEPH THEBE
…..........................................................................
Appellant
and
THE
STATE
…....................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
MURRAY, AJ
JUDGMENT
BY:
RAMPAI, AJP
HEARD
ON:
8 DECEMBER 2015
DELIVERED
ON:
29 JANUARY 2015
[1
]
These were appeal proceedings. The appellant was convicted in the
regional court on a charge of murder. He was then sentenced
to 15
years imprisonment. He was aggrieved by the conviction and the
sentence. The respondent opposed the appeal on both fronts.
[2]
An incident occurred at Kroonstad on 1 May 2011. The victim, Mpho
Gerald Mphore, a 16 year old teenager, was stabbed to death.
Two days
later, on 3 May 2011 to be precise, the appellant was arrested.
[3]
The incident precipitated criminal proceedings which culminated in
the current appeal. The appellant was charged with the murder
of the
victim. The prosecution alleged that he intentionally and unlawfully
killed Mpho Gerald Mphore at Kroonstad on 1 May
2011.
[4]
The appellant was tried in the Kroonstad Regional Court. On 8 June
2014 he pleaded not guilty to the charge. He did not disclose
the
basis of his defence. However, he made certain admissions which were
formally noted as such in terms of
section 220
of the
Criminal
Procedure Act 51 of 1977
. Mr I R Smith presided. Mr Campher appeared
for the appellant and Mr Wiegand for the respondent.
[5]
Notwithstanding his plea, the appellant was found guilty on 23
November 2012. On the same day a custodial sentence of 15 years
imprisonment was imposed on him. He was aggrieved by the conviction
as well as the sentence.
[6]
On 2 May 2014 the appellant applied for leave to appeal against the
conviction as well as the sentence. His application in the
regional
court was unsuccessful.
[7]
On the 22 May 2014 the appellant petitioned the judge president of
this division. His petition for leave against the conviction
and
sentence was favourably considered. He therefore came to us with the
leave of this court granted by Kruger J
et
Wright AJ on 14
August 2014.
[8]
As regards the substantive merits, the trial court found:
“
Teen
die geloofwaardigheid en betroubaarheid van die getuies Modiko en
Moolla Moolla se getuienis kan geen kritiek uitgespreek word
nie.
Trouens die hof is tevrede dat hulle getuienis wesenlik die stempel
van die waarheid dra.”
[9]
On behalf of the appellant it was contended that the aforesaid
finding by the trial court was against the weight of the evidence.
Accordingly, counsel submitted that the trial court committed a
misdirection in finding that the appellant had inflicted the fatal
actus reus
on the victim.
[10]
On behalf of the respondent it was contended that the aforesaid
finding by the trial court was, on the strength of the evidence,
justified. Therefore, Ms Liebenberg, counsel for the respondent,
submitted that the trial court committed no misdirection as regards
the identity of the perpetrator criminally responsible for the
infliction of the fatal
actus reus
.
[11]
The issue in the case was whether the evidence established, beyond
reasonable doubt, the identity of the perpetrator who fatally
stabbed
the victim.
[12]
On the one hand, the appellant contended that one Bonolo stabbed the
victim. On the other hand the respondent contended that
the
appellant, and nobody else, stabbed the victim.
[13]
The version of the respondent was narrated by two witnesses namely:
Mr
Pule Vincent Modiko, and
Mr
Lehlohonolo Ephraim Moolla.
[14]
Mr Modiko testified that he knew the victim, Mpho Gerald Mphore. On 1
May 2011 he met Mpho and Ponzaat at a certain shop. From
there he
accompanied them to a certain house. They went over there because
there were suspects whom Mpho wanted to question about
his robbery
the previous night. During that previous incident Mpho was robbed of
his shoes and hat.
[15]
On their arrival at the house, there was a ceremony of some sort
going on. Mr Modiko entered the premises and proceeded
to the
tent. Mpho remained outside. Mr Modiko found the appellant in
the tent. Later on the appellant went outside.
A little
while later Mr Modiko also went outside. Mpho confronted the
appellant and accused him as one of his robbers.
Mpho demanded
his shoes from the appellant. Mr Modiko begged the appellant to
give Mpho’s shoes back. However,
his plea fell on deaf
ears.
[16]
During the course of the argument, another young man called Shimmy
appeared on the scene wearing Mpho’s stolen hat. The
focus shifted to Shimmy who was carrying a bag. Mr Modiko
became suspicious. He asked Shimmy to open his bag because, so
it
seemed to me, he suspected that the victim’s stolen shoes might
be in Shimmy’s bag. But Shimmy refused to
open his bag.
Mr Modiko gave up. He walked away from the volatile situation
and went back into the tent.
[17]
A short while later Mr Modiko went outside again. In front of the
garage he met a traditional healer. The healer asked him
about the
commotion at the gate. The next moment he heard someone behind
him exclaiming: ‘Eina!’, in other words,
‘Ouch!’.
He turned around and saw that the person who exclaimed was
Mpho. Mpho was retreating. He then
saw a knife in the
appellant’s hand. The next moment Mpho ran away from the scene.
The appellant pursued him. Mpho
ran into a certain residential
property where he collapsed. He was later picked up by an
ambulance crew.
[18]
On the appellant’s behalf the following suggestions were put to
Mr Modiko:
that
a certain Bonolo was on the scene;
that
the appellant was not with Mpho but rather with Mr Modiko himself at
the time Mpho painfully exclaimed;
that
Bonolo and not the appellant chased Mpho from the scene;
that
Mr Modiko was prompted by a personal vendetta to falsely implicate
the appellant; and
that
he and the appellant were enemies.
Mr
Modiko denied all those allegations as untrue.
[19]
The gist of Mr Moolla’s evidence was that he saw how the
appellant stabbed Mpho in the neck with a knife. He denied
the
allegations that he falsely implicated the appellant because he and
the appellant belonged to rival gangs; that the appellant
was a
passive bystander at the time Mpho was stabbed; that a certain Bonolo
was the person who actually stabbed Mpho and that the
alleged Bonolo
even chased the wounded Mpho as he was running away from the scene.
[20]
The version of the defence was narrated by the appellant himself, Mr
Tahleho Joseph Thebe aka Thako. He admitted that
he was on the
scene. He also admitted that Mpho confronted him and accused him of
being one of the persons who robbed him the night
before. While
he was telling Tsekiso, in other words Mr P V Modiko, about Mpho’s
accusations, he saw a certain Bonolo
chasing Mpho. He saw that Bonolo
was armed with a knife. He heard from Tsietsi Edwin Noge aka Shimmy,
that Mpho was stabbed by
Bonolo. The state witnesses falsely
incriminated him because he was not on good terms with them.
[21]
The trial magistrate was impressed by the two prosecution witnesses
and accepted their evidence as credible and reliable. He
found no
inherent improbabilities in their evidence. Both saw the appellant on
the scene armed with a knife; both saw the victim
retreating from the
armed appellant and both saw the armed appellant chasing the wounded
victim. Unlike Mr Modiko, Mr Moolla saw
the actual stabbing of the
victim. According to him the appellant, and not Bonolo, knived
the victim. Both state witnesses
testified that the appellant pursued
the wounded victim and that he was armed with a knife. It must
also be kept in mind
that the victim confronted the appellant of all
the people attending the ceremony. That much the appellant admitted.
It appeared
unlikely that Bonolo, a person who was not
confronted and accused of having robbed the victim, would have
attacked, stabbed and
chased the victim for no apparent reason.
However, there was a proven motive for the appellant to carry
out all those acts
of aggression against the victim.
[22]
There were contradictions between the two prosecution witnesses. For
instance, according to Mr Modiko, the victim confronted
the appellant
about his stolen shoes only. However, according to Mr Moolla,
the victim confronted the appellant about his
stolen hat as well. In
considering these contradictions and other apparent discrepancies, it
must be kept in mind that Mr
Moolla was in a more privileged position
to make reliable observations than Mr Modiko. He was very close
to the action outside
whereas the latter kept on walking in and out
of the tent.
[23]
Consequently, I am of the view that where the evidence of Mr Modiko
differs from that of Mr Moolla, the latter’s evidence
must be
preferred. Mr Moolla was an impressive witness. He gave a credible
and reliable account of what took place on the scene.
The victim’s
stolen shoes were recovered. With those shoes in his hands, he
ran behind the man who was chasing the
victim. He identified that man
as the appellant and not Bonolo. It was his evidence that
Bonolo was not even on the scene.
Notwithstanding those
contradictions and other unfavourable aspects of the prosection
evidence, I am not persuaded that the
trial court materially erred in
convicting the appellant.
[24]
The case of the appellant was that a certain Bonolo stabbed the
victim. His own evidence suggested that he did not personally
witness
the stabbing by Bonolo. He exonerated himself and blamed Bonolo on
the strength of what he allegedly heard from a certain
Tsietsi. The
foundation of the appellant’s defence was virtually destroyed
on 23 November 2012. On that day the gentleman,
Mr Tsietsi Edwin Noge
aka Shimmy attended the court hearing as a defence witness. The
appellant’s legal representative, Mr
Campher, did not actually
call him. Instead he informed the trial court that Mr Noge’s
evidence would not advance the defence
case. From that it could
be deduced that the gentleman could not support the important
exculpatory statement the appellant
attributed to him. Therefore, the
evidence of the appellant about Bonolo’s alleged involvement
was not confirmed by its alleged
original source, Mr Noge, who
appeared to be the appellant’s friend. Accordingly the
appellant’s evidence concerning
the alleged role of Bonolo was
inadmissible hearsay. Such evidence by the appellant was probably
untrue which was why his friend
could not testify to confirm it.
[25]
Sitting as we are in an appellate mode, we cannot lightly interfere
with the trial magistrate’s observations and his
evaluation of
the oral evidence because he was in a privileged position to observe
all the witnesses. (See
S v Francis
1991(1) SACR 198
(A) at 204C-E and
S v Abels
1948 (1) SA 706
(O)).
[26]
The trial magistrate concluded that the version of the appellant was
not reasonably true and rejected it, as false beyond reasonable
doubt, to the extent that it differed with the version of the
prosecution.
[27]
The conclusion of the trial court that the guilt of the appellant was
established beyond reasonable doubt was correct. I
cannot, on
appeal, hold that conclusion to be wrong. In coming to this
conclusion I was fortified by the implicit concession made
by the
appellant’s counsel, Mr Tshabalala, in the appellant’s
written heads of argument and Ms Smith during the course
of her oral
argument.
[28]
There being no material misdirection, no appellate interference is
justified. I would, therefore, dismiss the appeal and confirm
the
conviction.
This
completes the first leg of the appeal. Now I proceed to consider the
second leg.
[29]
As regards sentence, the court found that there were no substantial
and compelling circumstances to justify the imposition
of a sentence
less severe than the prescribed minimum sentence. In my view,
that finding was correct.
The
appellant was born on 20 June 1991. He was 19 years of age at the
time he committed murder. The mere fact that he was relatively
young
did not, without more, substantially compel the conclusion that
imposing the prescribed minimum sentence would render the
punishment
unjust. In my view the appellant has not shown that his
relative youth so impaired his judgment that he failed
to act
rationally like a 19 year old youth but instead acted immaturely like
a child far younger with immature intellect. (See
S v Matyityi
2011 (1) SACR 40
(SCA) par. 14 per Ponnan JA.)
[30]
I was not persuaded by the appellant’s further contention that
he was provoked by the victim to act as he did. The evidence
showed
that the victim confronted the appellant because he reasonably
suspected that the appellant was among the persons who robbed
him of
his belongings the night before the incident. The victim’s
suspicion was seemingly well-grounded. Firstly, the appellant’s
friend, Shimmy, was seen wearing the victim’s stolen hat.
Secondly, the victim’s stolen shoes were recovered on the
scene
of the confrontation. It appeared, therefore, that there was probably
some substance in the accusation of robbery which the
victim levelled
against the appellant.
[31]
In the circumstances, there was no substance in the appellant’s
contention that he was provoked. The evidence indicated
that he
became extremely violent when the victim confronted him and his
friend Shimmy about his stolen goods and his assertion
that they had
robbed him the previous night. The guilty cannot fairly claim
provocation when the innocent confronts him about
the true facts.
Besides, mere provocation is not treated as a mitigating factor.
[32]
In his work: ‘Straf in Suid-Afrika’, the author, Etienne
du Toit comments on provocation as follows:
“
Provokasie
of uitlokking kan in gepaste gevalle as ‘n strafversagtende
faktor geld, veral waar dit uit die feite blyk dat
‘n opwelling
in die gemoed van die beskuldigde weens die uitlokking plaasgevind
het en ‘n rol by die pleging van die
misdryf gespeel het. Blote
provokasie of uitlokking is uiteraard nie voldoende nie ─ die
feite moet aantoon dat dit ‘n
emosie, ‘n reaksie by die
beskuldigde tot gevolg gehad het wat sy morele verwytbaarheid, die
laakbaarheid van sy daad verminder.”
There
was no concrete evidence to show that the appellant’s extremely
violent conduct towards the victim was an outward manifestation
of
emotional reaction triggered by the victim’s unfounded
accusation deliberately intended to provocatively enrage or to
irritate him for no good cause. The victim did not try to provoke the
appellant into losing his temper. He merely and peacefully
demanded
from the appellant what was lawfully his. In my view the victim
said and did nothing provocative at all. Yet
the appellant
decided to violently silence the victim forever.
[33]
About the gravity of the crime of murder the trial court correctly
said:
“
U
is skuldig bevind aan ‘n baie ernstige misdryf. U het die
betrokke dag op geslepe, brutale en durf die hof dit sê,
lafhartige wyse die jong oorledene se lot verseël deur hom van
agter met die mes te steek. Hy het nie eers die geleentheid
gehad om
sy aanvaller in die oë te kyk nie. Hy het hom eenvoudig van
agter betrek en op ‘n geslepe wyse doodgesteek.
Dit
is vir die hof duidelik dat in die geweldskultuur wat hom so stewig
hier in ons land gevestig het, die menslike lewe goedkoop
geword het.
Daar rus ‘n geweldige taak op hierdie hof en ander howe se
skouers om deur middel van die vonnisse wat hulle
oplê in
hierdie tipe van sake, aan te toon dat tenminste in die oë van
die reg, in die oë van howe die menslike
lewe nog waarde het. As
die hof in gebreke gaan bly om dit te doen, gaan hy sy plig gruwelik
versaak.”
I
am in respectful agreement.
[34]
About the interest of the community, the trial court correctly said:
“
Die
gemeenskapsbelang is ook ‘n faktor wat swaar weeg by
vonnisoplegging wat die tipe van misdrywe aan betref. Die gemeenskap
in die breë is siek en sat daarvoor dat geweld die norm geword
het aan die hand waarvan probleme opgelos word.”
I
share those sentiments.
[35]
I am not persuaded, and Ms Smith did not attempt to persuade us, that
the trial court materially erred in sentencing the appellant.
In my
view the trial court committed no material - and thus appealable -
misdirection either on any matter of fact or on any question
of law.
That being the case, we are not at liberty to interfere. Therefore, I
am inclined to dismiss the appeal as regards sentence
as well.
[36]
Accordingly, I make the following order:
36.1
The appeal fails in toto.
36.2
The conviction and the sentence are confirmed.
__________________
M.
H. RAMPAI, AJP
I
concur.
______________
H.
MURRAY, AJ
On
behalf of the appellant: Adv L Smith
Instructed
by:
Bloemfontein
Justice Centre
Bloemfontein
On
behalf of the respondent: Adv E Liebenberg
Instructed
by:
The
Director: Public Prosecutions
Bloemfontein