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2015
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[2015] ZAFSHC 59
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Tsoaela v S (A156/2013) [2015] ZAFSHC 59 (26 March 2015)
THE HIGH COURT OF SOUTH
AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No. A156/2013
DATE: 26 MARCH 2015
In the matter between:
MOKETE PETRUS
TSOAELA
..............................................................................................
Appellant
versus
THE
STATE
............................................................................................................................
Respondent
CORAM:JORDAAN J, NAIDOO, J et
REINDERS, AJ
JUDGMENT BY:NAIDOO, J
HEARD ON:9 MARCH 2015
DELIVERED ON:26 MARCH 2015
NAIDOO, J
[1]The appellant and two other people
(accused 1 and 3) were indicted in the High Court, Bloemfontein as
follows:
Count 1: Robbery with Aggravating
Circumstances, as defined in section 1 of the Criminal Procedure Act
51 of 1977(the Act).
Count 2: Murder
Count 3: Unlawful Possession of a
Firearm
Count 4: Unlawful Possession of
Ammunition
Count 5: Pointing a Firearm
The appellant pleaded not guilty and
proffered an alibi defence and denied any involvement in the
commission of the offence. He
was found guilty on counts 1 and 2, and
acquitted on counts 3, 4 and 5. The appellant was sentenced on 17
September 2004 to 20
years’ imprisonment on count 1, being a
second offender in respect of such offence, and to life imprisonment
on count 2.
The appellant comes before us with the leave of the
Supreme Court of Appeal to appeal against his conviction and
sentence. Mr P
Nel appeared for the appellant in this court and Mr KG
Mashamaite appeared for the respondent.
[2] At approximately 4h00 on 24 July
2003, Sentoedi Ephraim Sentoedi (the deceased) exited his home in
Virginia, intending to leave
for his place employment in the company
vehicle that was parked in his yard, just outside his house. His
daughter, Puleng heard
an explosion-like sound and then heard her
father scream, and went out to investigate. She found him lying on
the ground and tried
to rouse him, but he did not respond. At that
moment someone ordered her to get into the house; she could not see
the person but
saw a hand holding a firearm. The firearm was pointed
at her face and head. The person had concealed himself around the
corner
of the house. She went back into the house and peeped through
the window, when she saw two people, with their faces covered, about
to drive off in her father’s vehicle, an Isuzu light delivery
motor vehicle, commonly referred to as a “bakkie”.
The
one was seated in the vehicle, and the other was outside the vehicle,
ostensibly directing the motor vehicle out of the gate.
They then
drove off. She went back outside and found that her father was
injured. When the medical staff arrived she saw further
injuries on
his body and he was taken to hospital. The deceased later passed
away. She was not able to identify the people who
drove away in the
bakkie.
[3] Later that morning the appellant
and his co-accused arrived at the home of two of the state witnesses,
Frank Mothae (Mothae)
and Mpo Leballo (Mpo) and they were in
possession of the bakkie that was taken from the deceased about three
to four hours earlier.
The evidence of these two witnesses directly
implicates the appellant, as both testified that he was one of the
three people that
arrived at their home that morning. It is not
necessary to deal in detail with the evidence of these two state
witnesses in respect
of the appellant’s co-accused, and
reference will be made to such evidence only where it is relevant to
the appellant. It
emerges that accused 1 and 3 made certain
statement/admissions to Mpo about the commission of an offence, which
aroused her suspicions,
leading her to arrange for the police to be
called, while the appellant and accused 3 were at her house. She had
at that stage
left with Frank and accused 1 to go to her parents’
home, while the appellant and accused 3 remained at her house. The
appellant
and accused 3 were arrested at the home of Mpo and Frank in
their absence, and the bakkie was seized. Sergeant Supeng Nicholas
was the police official who arrested the appellant and accused 3 at
the home of Mpo and Frank. He confirmed that he retrieved the
keys of
the deceased’s bakkie in the trouser pocket of the appellant
and that he successfully started the engine of the vehicle
using that
key.
[4] The trial court conducted a
comprehensive analysis of the evidence in respect of all the accused
persons, including the appellant,
in order to arrive at its decision
to convict the appellant and accused 1. The court dealt thoroughly
with the probabilities and
improbabilities of the appellant’s
version and it will serve little purpose to repeat such analysis
here. Mr Nel raised in
argument before us that the court a quo erred
in placing reliance on the extra curial statement of accused 1 when
in the course
of explaining his possession of the firearm with which
he shot the deceased, he said that he obtained the firearm from the
appellant.
In my view this is admissible against him, as he was
explaining his possession of the firearm. I also do not agree that
the court
took this statement into account in convicting the
appellant. The court’s analysis deals with the totality of the
evidence
against the appellant and even if that statement of accused
1 were left out of account, the rest of the evidence against the
appellant
was of sufficient cogency to justify the conclusions of the
court a quo. Mr Nel, furthermore, attacked the credibility and
reliability
of Mpo and Frank in that they made contradictory
statements and gave unsatisfactory evidence. I do not agree and
endorse the reasoning
of the trial court in this regard. Considering
the totality of evidence, I am satisfied that the appellant was
correctly convicted
on counts 1 and 2.
[5] With regard to sentence, Mr
Mashamaite for the state argued that the sentences imposed by the
court were in keeping with the
precepts of the law and that the court
correctly applied the provisions of Act 105 of 1997, popularly
referred to as the Minimum
Sentences Act. Mr Nel conceded in argument
before us that while he initially expressed the view that the trial
court had over-emphasised
the seriousness of the offence to the
detriment of the personal circumstances of the appellant, he had
since reconsidered and was
now of the view that there was not enough
in the appellant’s personal circumstances to hold that they
were substantial or
compelling.
[6] It is well settled in our law that
an appeal court should interfere with the sentence imposed by a trial
court only if the trial
court has misdirected itself in the
imposition of sentence, resulting in a sentence which is so
inappropriate that it induces a
sense of shock. In view of both
counsel in this matter being in agreement regarding the sentence,
therefore, it is not open to
this court to interfere in such
sentence. The trial court balanced the appellant’s personal
circumstances against what it
considered to be aggravating factors,
and I cannot fault the reasoning of the trial court with regard to
sentence. It is also apparent
that it gave proper consideration to
all pertinent circumstances for the purpose of sentencing,
and in the fine balancing
act that it was required to
perform, it imposed a sentence which took account of the
interests of society, the
seriousness of the crime and the
interests of the appellant.
[7] I am, therefore, unable to find any
misdirection on the part of the trial court to warrant the
interference of this court in
the sentence imposed in this matter.
In my view the sentences are appropriate to the circumstances of
the matter.
[8] In the circumstances, the following
order is made:
The appeal against the conviction and
sentence is dismissed.
NAIDOO, J
I agree
JORDAAN, J
I agree
REINDERS AJ
On behalf of the appellant: Mr. P.
Nel
Instructed by: Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of the respondent: Mr.
K.G. Mashamaite
Instructed by: The State
BLOEMFONTEIN