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[2015] ZAKZPHC 3
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Khomo and Another v S (AR55/11) [2015] ZAKZPHC 3 (6 January 2015)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO.: AR: 55/11
In
the matter between:
FRANCE
SIPHELELE
KHOMO
...............................................................................
1
st
Appellant
GODFREY
SANDILE
KHOMO
................................................................................
2
nd
Appellant
and
THE
STATE
....................................................................................................................
Respondent
J
U D G M E N T
Delivered
on : 06 JANUARY 2015
PATEL
JP
Introduction
[1]
The appellants were convicted by the trial court sitting at Ramsgate
of murder (count 1) and theft (count 2). They were
both
sentenced to life imprisonment for murder and seven years
imprisonment for theft. The appellants applied for leave to appeal
against their sentence and conviction on both counts. The trial court
granted the first appellant (France) leave to appeal only
against his
sentence on count 1. The second appellant (Godfrey) was granted leave
to appeal against his conviction on count 1.
France
subsequently petitioned the Supreme Court of Appeal (SCA) for leave
to appeal against his conviction. By order dated
21 October
2013, the SCA dismissed his petition.
Background
[2]
The appellants are biological brothers and were convicted of the
murder of Nomvula Ngubane, a policewoman (the deceased).
The
Respondent led the evidence of 14 witnesses whilst the appellants did
not call any witnesses but testified in their own defence.
The main
witnesses for the Respondent were Nomvula Mbutho (Nomvula) and
Captains Lockem, Bosman and Myburgh.
[3]
Nomvula was a Section 204 witness and pleaded guilty to theft and
fraud charges relating to this case. France had been her boyfriend
since 2003. She knew Godfrey from the time she began her relationship
with France. According to Nomvula, from March 2008 until
his arrest,
France was unemployed and he operated a taxi service with his car.
[4]
She testified that on 15 August 2008 France arrived home around
11:30pm wearing a white leather jacket. The next morning, being
the
16
th
August 2008, she was told to have a bath because Godfrey was coming
over. She was told that they were all going to the bank.
[5]
At 8:30am Godfrey arrived in a white VW Polo which Nomvula had never
seen before. Godfrey was carrying a white handbag, inside
which was a
brown purse. The purse contained clothing store cards, a union
membership card and a FNB credit card. France told her
that the items
belonged to Godfrey’s girlfriend. According to the appellants,
Godfrey’s girlfriend had gone overseas
and she had left all her
belongings with Godfrey. Nomvula was told by both the appellants that
she had to make an affidavit at
the police station stating that she
lost her bag in the Isipingo area. Once she obtained the
affidavit she would then be
able to go to the bank and collect a bank
card and would thereafter be able to withdraw money. According to the
appellants, the
Polo was broken and they needed money for it to be
fixed.
[6]
Nomvula, together with the appellants, proceeded to the Isipingo
Police Station. Godfrey drove the Polo. She told the police
that she
had lost her bag, as she had been instructed by the appellants. The
police asked for her identity document but she produced
the driver’s
licence which was in the bag, which belonged to the deceased. She
then obtained the affidavit.
[7]
They then drove to FNB in Isipingo. She went inside the bank while
the appellants waited outside. She was told by the teller
that she
had to go to the branch where she had opened her account in order to
get a new card. She handed the teller the deceased’s
drivers
licence to check where the account was opened. The teller then told
her that she had to go to Musgrave, Durban. They then
drove to
Musgrave. The teller at the bank requested her identity document but
she produced the deceased’s drivers licence
once again. The
teller also requested the address that she had used when opening the
account. She returned to the car and France
found a letter in the car
which reflected an Inanda address. She went back to the bank but the
security informed her that the bank
was closed and she had to go to
the Pavillion Shopping Centre (Pavillion).
[8]
They then proceeded to Pavillion. The appellants informed her that
she should tell the bank that her card had been stuck in
the ATM
machine, and not stolen. And she was further told to say that it was
her sister who was using the card, not her. She went
to the bank and
the appellants waited in the parking area. After being questioned by
the bank and producing the driver’s
licence, a new card was
given to her. She then went with the lady from the bank to the ATM,
checked the balance in the account
and had the pin code changed.
[9]
They then drove to the Sasol garage in Isipingo. France took the bank
card and went into the garage and withdrew R300. They
then proceeded
to Umlazi. Godfrey left the Polo at France’s home.
[10]
On 29 August 2008 France went to the airport to check if there was
money in the account. There was money but he could not withdraw
it
from the machine. The next day, on the instructions from France,
Nomvula went to FNB in Amanzimtoti and advised them that there
was a
problem with the card. A new card was issued to her. She withdrew
R1000 from the outside ATM and from inside the bank she
withdrew
R5000. France phoned her and told her to meet him in Isipingo. She
met him and gave him the money that she had withdrawn.
They went back
to Umlazi whereupon Godfrey arrived. She did not know what France had
done with the money she had given him. Neither
did she know whether
France had told Godfrey about the money.
[11]
According to Nomvula the Polo was parked in the yard until France’s
arrest. France did use the car after Godfrey had
left it there on 16
August 2008. Godfrey, on the other hand, did not use the car after he
had left it with France.
[12]
As for the deceased’s retail cards, Nomvula admitted to having
used the Edgars and Hub cards. France was with her when
she made
purchases using these cards. France told her to flush them down the
toilet after his arrest. But when the police arrived
she handed over
the cards. During cross-examination it was put to her that France
knew nothing about the purchases made on the
deceased’s cards
and the money withdrawals. She replied that he was fully aware of it.
[13]
France had given her a Vodafone 225. She did not know who it belonged
to but France was seen using it on the 16
th
August. She used the phone but lent the phone to her friend Busisiwe
Blose from whom the phone was subsequently recovered.
[14]
Nomvula handed over the handbag and purse to the police. The police
also took possession of the radio and some clothing items.
She had
been instructed by France, after his arrest, to take items to his
aunt’s house in eMalukazi. A number of items were
subsequently
recovered from France’s aunt’s residence.
[15]
During cross-examination Nomvula stated that she visited France once
after her release. She denied visiting him on several
occasions in
prison. According to her their relationship ended after his arrest.
[16]
Captain Lockem who was attached to the Organised Crime Unit and part
of its Detective Unit, testified as follows: on 10 September
2008 he
was introduced to France by Captain Brown; he conducted an interview
with France through an interpreter, Warrant Officer
Makhanya; prior
to the interview France was informed of his rights; France said he
did not need legal representation at that stage;
he made a report to
Captain Lockem that the deceased was held captive in the eMaghabeni
area and that she was later strangled and
dumped in the Craigieburn
area; he, Godfrey, and two friends Sikhumbuzo Ndlovu and Tiwiwi
were present when she was killed;
France said that he could take
Captain Lockem to the place where the deceased’s body was
dumped.
[17]
They then proceeded to the Craigieburn area. France was giving the
police directions. France said that the deceased was killed
and
dumped near a drain pipe. Upon inspection nothing was found near the
drain pipe. Captain Lockem assumed that the body had been
recovered
by the police. France informed Captain Lockem that some of the
deceased’s property could be found with Godfrey.
Godfrey’s home was approximately within a 10 to 15 kilometres
radius from the murder scene.
[18]
A search of Godfrey’s house was undertaken. The police found
various items, including a pair of spectacles, a Samsung
camera
inside a bag, a red kit bag and a blue camping chair. Nkululeko
Khoza, the deceased’s boyfriend, was present when
these items
were recovered. He identified the red kitbag as belonging to him but
that it had been in the possession of the deceased.
He also
identified the other items which were recovered from Godfrey’s
house as belonging to the deceased. He went
on to later
identify other items that had been recovered during the course of the
investigation which included a cooler bag, pepper
spray, a vacuum
cleaner and its bag.
[19]
It was put to Captain Lockem that Godfrey had explained to him
(Lockem) that the reason he was in possession of the abovementioned
items was because he and the deceased were romantically involved and
the deceased had left them with him. Captain Lockem
denied that
Godfrey had offered him any explanation.
[20]
Godfrey denied that the deceased’s spectacles were found in his
room. He also alleged that the camping chair belonged
to him.
[21]
Captain Lockem informed Godfrey of his rights, through an
interpreter, and then placed him under arrest. They thereafter
proceeded
to Sikhumbuzo Ndlovu’s house and arrested him.
Tiwiwi was not at home. They then proceeded back to the Cato Manor
Police
Station. Godfrey was informed of his rights and was then
interviewed by Captain Lockem. Godfrey made an admission to Captain
Lockem
that he and the three others strangled the deceased.
[22]
Captain Lockem began to make enquiries at the various mortuaries in
the South Coast as to whether a female body had been recovered.
On
11
th
September 2008 Captain Lockem was informed that the body of an
unidentified female had been found. An identification of the body
was
then made. The matter was then handed over to Captain Myburgh who
became the investigating officer in the case.
[23]
During cross-examination by Mr
Shange
who represented
Godfrey, Captain Lockem stated that he did not take down any
statements from Godfrey because Captain Myburgh took
over the
investigation and said he would arrange for the taking down of
statements and confessions. Further he did not think it
was proper to
take down a statement because he was the arresting officer. It was
put to Captain Lockem that Godfrey denied making
any
statement/confession to him to which Captain Lockem replied that it
was not true.
[24]
At all times Warrant Office Makhanya acted as interpreter. He was
later called as a witness and corroborated the evidence of
Captain
Lockem.
[25]
Captain Myburgh gave evidence that on 22 January 2009 France’s
attorney contacted him and asked him to interview France.
On 6
February 2009 he interviewed France and asked him whether he would do
a pointing out. France agreed. He contacted France’s
attorney
on 11 February 2009, advising that France wanted to do a pointing out
and enquired whether he would want to be present.
The attorney said
it was not necessary. He then contacted Captain Bosman to
conduct the pointing out. Captain Myburgh also
informed France that
he could have his attorney present, but France said he did not need
his attorney present for the pointing
out.
[26]
The next witness’s evidence which must be considered is that of
Captain Bosman. On 12 February 2009 he found France in
the Scottburgh
cells and proceeded to a private room in the station to interview
France in the presence of an interpreter [Warrant
Officer Mbhele].
Captain Bosman used a prescribed form called “notes on the
pointing out of scenes or points”. The
form had questions which
were completed by himself. After the interview France read the
statement. France even added his own note
on the form in isiZulu. The
statement was signed by France, the interpreter (Warrant Officer
Mbhele) and himself. Photographs of
France were taken by Captain
Mthembu before the pointing out to ensure that there were no signs of
injury.
[27]
Captain Bosman then took France to do the pointing out. He made notes
himself. France directed them to a burnt house in eMaghabeni
and
stated that this was where Godfrey got the rope from whilst he and
the deceased were waiting outside in the Polo. France mentioned
that
Godfrey and the deceased had been fighting with each other. They then
drove towards Craigieburn on a small road where France
directed the
police towards a tree from which he stated the deceased was hanged.
France stated that “
myself
and my brother dragged her down to that tree by her arms
”.
He even showed the police the branch on which the rope was tied. He
explained how they hanged the deceased. Godfrey was
tall so he tied
the rope around the deceased’s neck whilst he held the deceased
upright. Photographs of everything that was
pointed out were taken.
[28]
After the pointing out they returned to the private room in
Scottburgh Police Station where France was asked questions about
his
satisfaction regarding the pointing out. Photographs were taken again
of France to indicate that there were no signs of injuries.
[29]
During cross-examination by Ms Singh, counsel for France, it was put
to Captain Bosman that France lied to the police because
he was in a
state of panic. Captain Bosman denied this and said that France was
at ease. The admissibility of the pointing out
was not challenged in
the trial court.
[30]
Counsel for Godfrey then made an application in terms of s 174 of the
Criminal Procedure Act 51 of 1977 (‘the CPA’)
for the
discharge of Godfrey on the murder count. The application was refused
by the trial court and Godfrey went on to testify.
[31]
Godfrey testified that he had been in a relationship with the
deceased for three months prior to her death. During this period
he
had only seen the deceased three of four times. He had never been to
her home or her work. She told him that she lived in Inanda
and
worked for the Social Welfare Department. He had last seen her on the
15
th
August 2008 while at France’s house at eMalukazi. The deceased
had asked him to spend the weekend with her at South Coast
but he
said he could not at that stage.
[32]
The deceased had also told him that her car needed a service. He had
suggested that she leave her car behind and use his car,
a Golf. She
then told him to ask France to keep her vehicle. France agreed but
asked whether he could use the vehicle, to which
the deceased
answered “yes” but that the car could only be used for
short distances. He stated that the reason the
deceased did not leave
the Polo at his home was because his home was in eMaghabeni and
secondly, he did not want her to go to his
home because he was
married.
[33]
The appellants then accompanied the deceased to the garage, where
they got off. The deceased proceeded to the South Coast.
Godfrey went
back to France’s house and France took him to eMaghabeni later
that evening.
[34]
Godfrey told the deceased that she should contact him later that
evening to see if he could take time off work and join her
on the
South Coast. She did phone him later that evening. He told her he had
to work and could not join her. She told him
to ask France to
remove her handbag and identity document from the car. After that
evening he had no further communication with
the deceased. He had
tried calling her but could not get hold of her.
[35]
Godfrey confirmed that various items belonging to the deceased were
found in his house. He said the red bag was given to him
by the
deceased as she had asked him to use it to put his belongings which
he would need for the weekend. He confirmed that the
camera belonged
to the deceased. He did not know how the spectacles ended up in the
house. The blue camping chair belonged to him.
This chair was part of
a set of 4 which he purchased from Game stores. He was not asked by
the police why he had these items in
his possession.
[36]
Godfrey further stated that Captain Lockem lied when he testified
that Godfrey admitted to being a part of the murder and having
strangled the deceased. He could not recall if he even had an
interview with Captain Lockem. He went on to state that Officer
Makhanya lied that he was interpreting because he had spoken in
English to the police. He also denied making a statement (Exhibit
H).
[37]
Godfrey alleged that Nomvula lied when she gave evidence. He denied
having arrived at France’s house in the deceased’s
car
but stated that he had arrived on foot from his sister’s house.
He further stated that he did not give Nomvula a white
handbag and
denied knowledge of its contents.
[38]
He testified that he accompanied France and Nomvula on the Saturday
morning as they were going out. France informed him that
Nomvula was
going to town to withdraw money. He drove them because the deceased’s
Polo was being used. He denied that
he instructed Nomvula to
get a bank card and make withdrawals from the deceased’s
account.
[39]
According to Godfrey he purchased his Golf for R19 000 and still
owed the owner of it R5000. The car was still in the
name of its
owner, one Thomas Banda. The car was going to be transferred into his
name once he finished making payments. At no
stage did he think that
his car was missing and therefore there was no need to contact the
police.
[40]
The deceased was expected back from the South Coast on Monday, 18
August. But by
the 20
th
she had still not arrived. He stated that he did not worry
about his car because he had her car with him.
[41]
He described the first meeting between France and the deceased as
follows. He was going to meet the deceased at France’s
home.
The deceased did not know where France lived so he asked France to
fetch her from Muthwa’s garage in U Section, Umlazi.
He later
joined the deceased at France’s house. It was put to him that
France had earlier testified that the first time he
met the deceased
was when Godfrey himself brought her to his house. He replied that
there must be an explanation for that.
[42]
Godfrey stated that the deceased had made a booking for them to go
away for the weekend. When questioned as to the exact location
of the
weekend getaway in the South Coast, he replied that he did not know.
[43]
It was put to him that it was bizarre that the deceased would arrange
a weekend away when her car needed a service. Godfrey’s
reply
was that the deceased knew that he would use his car and must have
assumed that he would go with her for the weekend. It
was also put to
him that it was strange that the deceased would leave for the weekend
without her handbag. He replied that she
may have forgotten her
handbag when she changed cars.
[44]
It was further put to Godfrey that if the deceased gave him the
camera and red bag why did she not give him her jacket or handbag?
He replied that he did not know. He also did not have any idea
how her spectacles ended up on top of his dvd player.
[45]
During cross-examination by the State it was put to him that the
deceased’s car was valued at R80 000 and she was
still
paying for it. He was then asked why she would leave her car behind
and use his car. He replied that he did not know but
went on to state
that his car was more expensive as it had more expensive things in it
than the deceased’s car.
[46]
Upon questioning by the trial court as to when he was going to report
the deceased as missing because 23 days had already gone
by and he
had done nothing, his reply was that he was waiting for a further
week.
Appeal
on conviction
[47]
The trial court found that there was sufficient circumstantial
evidence, in the absence of an acceptable explanation, to come
to the
conclusion that Godfrey was involved in the killing of the deceased.
[48]
Godfrey admitted to Captain Lockem that he and three others had
strangled the deceased. During cross-examination Mr
Shange
put it to Captain Lockem that Godfrey denied making an admission,
because if he had it would have been reduced to writing. Conversely,
if it was not reduced to writing, it inevitably meant that an
admission was not made.
[49]
The trial court found that the statement made to Captain Lockem
amounted to an admission in terms of s 219A of the CPA and
therefore
did not need to be reduced to writing. All that was required
was that the admission needed to be made voluntarily.
[50]
A commissioned officer of the SAPS is a member holding the rank of
lieutenant or higher, and is in terms of s 4 of the Justices
of the
Peace and Commissioners of Oaths Act 16 of 1963 read with the First
Schedule to that Act,
ex
officio
, a justice
of the peace and therefore entitled to take a confession.
Section 217 (1) (a) of the CPA does not make it a requirement
for a
confession to be reduced to writing if it is made to a justice.
See
S v Gama
2013 JDR 2138 (SCA) para 8. As an officer holding the rank of a
Captain, Lockem was entitled to take a confession or admission
from
Godfrey. The fact that Captain Lockem was involved in the
initial investigation to which the confession ultimately relates,
does not constitute an irregularity. See
S
v Mavela
1990 (1)
SACR 582
(A).
[51]
Captain Lockem’s evidence was damning against Godfrey and
France. When Godfrey was cross-examined about what he
had told
Captain Lockem, he said that he did in fact make a statement to him,
but that whatever he told him was lies. Godfrey,
on the other
hand, simply denied that he had made such statements to Captain
Lockem. This does not add up with the sequence
of events that
had transpired. The police were not aware that the deceased had
been killed until France’s interview
with Captain Lockem.
Furthermore Captain Lockem’s search for the deceased’s
body only took place after Godfrey
admitted to having strangled the
deceased. Had Captain Lockem not been told about the
strangulation of the deceased, he would
not have made enquiries about
locating the body of the deceased. It must be further noted
that Warrant Officer Makhanya,
who acted as an interpreter for
Captain Lockem, confirmed the evidence of Captain Lockem regarding
Godfrey’s admission.
[52]
At the time of testifying in this case, Nomvula had pleaded guilty to
theft and fraud charges relating to this case.
She had taken
responsibility for her conduct and stood to gain nothing from giving
false evidence against the appellants.
[53]
A reading of the record indicates that neither Captain Lockem nor
Warrant Officer Makhanya was shaken in their testimony under
cross-examination. Their evidence was straightforward. They
came across as reliable witnesses.
[54]
Dr Alli, who conducted the post-mortem, opined that the deceased did
not commit suicide but died as a result of compression
of the neck
structures, which finding is consistent with the admissions that the
deceased was strangled, made by both Godfrey and
France to Lockem.
[55]
The inherent improbabilities in Godfrey’s version include the
following :
The
deceased was missing for 23 days and he did nothing about it;
He
still owed money on his car and yet he did not search for it more
than three weeks after the deceased had taken it. In
addition,
he did not know where the deceased lived or worked. Why would
he trust a stranger with his property?;
Similarly,
why would the deceased leave an expensive and relatively new vehicle
with France, who was a stranger to her?;
Why
would the deceased leave her expensive motor vehicle worth R80 000
behind and take Godfrey’s car which was worth
R19 000?;
If
the deceased wanted to go away for the weekend with him, being aware
that he was having a problem getting time off work and
aware that
her car needed a service, why did the deceased proceed in Godfrey’s
vehicle without him;
Why
did the deceased leave for the weekend and leave behind her handbag
which contained her driver’s licence and bank cards?;
and
Why
would Godfrey and France have different versions of how the deceased
first met France?
[56]
I am prepared to accept that the very fact that Godfrey was in
possession of the deceased’s property justifies the inference
that he was involved in the deceased’s death. This is
compounded by the fact that he did not search for the deceased
for
three weeks after she had disappeared, implying that he knew she was
dead. In the circumstances of this case, these inferences
appear to be both reasonable and compelling. The trial Judge
was correct in rejecting Godfrey’s version as false.
Appeal
on Sentence
[57]
The murder in question, being premeditated, is subject to a
prescribed life sentence in terms of
section 51(1)
of the
Criminal
Law Amendment Act 105 of 1997
, unless the court is satisfied that
substantial and compelling circumstances exist which justify the
imposition of a lesser sentence
than the sentence prescribed.
Counsel for France argued that the trial court should have found that
substantial and compelling
circumstances existed and that it
therefore erred.
[58]
The Respondent, on the other hand, argued that sentencing is
pre-eminently a matter for the discretion of the sentencing court
and
that such discretion should not be lightly interfered with by a court
of appeal. It may only interfere if it finds that
the
sentencing court misdirected itself on the law or facts or the
factors relevant to sentencing.
[59]
The role to be played by an appeal court in terms of sentencing was
described as follows in
S v PB
2013 (2) SACR 533
(SCA) para
20:
‘
What
then is the correct approach by a court on appeal against a sentence
imposed in terms of the Act? Can the appellate court interfere
with
such a sentence imposed by the trial court's exercising its
discretion properly, simply because it is not the sentence which
it
would have imposed or that it finds shocking? The approach to an
appeal on sentence imposed in terms of the Act should, in my
view, be
different to an approach to other sentences imposed under the
ordinary sentencing regime. This, in my view, is so because
the
minimum sentences to be imposed are ordained by the Act. They cannot
be departed from lightly or for flimsy reasons. It follows
therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing court are substantial and
compelling, or
not.’
Bosielo
JA went on to explain the meaning of substantial and compelling
reasons as follows at para 21:
‘
The
most difficult question to answer is always: what are substantial and
compelling circumstances? The term is so elastic that
it can
accommodate even the ordinary mitigating circumstances. All I am
prepared to say is that it involves a value judgment on
the part of
the sentencing court. I have, however, found the following definition
in
S v Malgas
(above) para 22 to be both illuminating and helpful:
“
The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will be that
it may be
perpetrating an injustice. Once a court reaches the point where
unease has hastened into a conviction that an injustice
will be done,
that can only be because it is satisfied that the circumstances of
the particular case render the prescribed sentence
unjust, or as some
might prefer to put it, disproportionate to the crime, the criminal
and the legitimate needs of society. If
it is the result of a
consideration of circumstances the court is entitled to characterise
them as substantial and compelling and
such as to justify the
imposition of a lesser sentence.”’
[60]
It was submitted on behalf of France that the role he played was not
great and that the trial court Judge did not give due
consideration
to the lesser role played by him. That the degree of
participation of an accused in a murder can, in a proper
case, be
taken into consideration as a mitigating factor is clear. See
S
v Dikgale
1965 (1) SA 209
(A) at 214E-F;
S v Sauls &
others
1981 (3) SA 172
(A) at 184F. However, I am mindful of the
following statement made by Smuts AJA in
S v Smith & others
1984 (1) SA 583
(A) at 618A-B:
‘
I
see no difference worth mentioning between the man who stabs and the
man who places a knife in the hand of the killer with
knowledge that
it will inevitably and immediately be used to kill the victim’.
[61]
The trial court found that France played an important role in the
commission of the crime. France could have changed his mind
and
withdrawn his participation at any time. At the stage when
Godfrey went to fetch the rope from his house, France was
alone with
the deceased. He had the power to help the deceased but he
chose to do nothing. This demonstrates a lack
of remorse on his
part and an intention to proceed with the murder.
[62]
The evidence revealed that the deceased had been kept captive for a
period of time before she was killed. France explained
how the
deceased was hung from the tree and the murder was staged to look
like a suicide. This clearly indicates premeditation
and that
considerable planning had taken place.
[63]
France’s role was not of someone that played a passive role.
From the evidence it is clear that France knew exactly
what was being
planned and assisted Godfrey to achieve the desired results.
[64]
The reason given by France for implicating himself in the murder so
as to get bail, is difficult to comprehend. He gave
evidence
that he believed that the more he implicated himself, the better his
chances were of getting bail. During the trial
he tried to
distance himself from the murder. He did this by first stating that
his report to Captain Lockem was made because of
information he had
received from one Pat Dlamini. Secondly, whatever he said during the
pointing out was done on the instructions
of Captains’ Myburgh
and Mthembu. The trial court was correct in its finding that France
was a blatant liar.
[65]
Assuming that the moral blameworthiness of France is diminished by
the fact that he became involved in Godfrey’s plan,
the extent
of that diminution is of so small a degree, when considered in the
light of the circumstances in which the crime was
committed, that it
does not justify a finding that it constitutes a substantial or
compelling reason.
[66]
The following emerges from the record with regard to the appellant’s
personal circumstances: at the time of the trial
he was 29 years old.
He had attained a standard 10 education and was a qualified welder;
and he had three children aged 8, 4 and
2.
[67]
Murder is unarguably a very serious crime. One must take into account
that this was a callous crime. The deceased died a horrible
and
violent death. Her child has been robbed of a mother. And to make
matters worse she was a policewoman. France on the other
hand,
enjoyed use of the deceased’s possessions which included her
vehicle, money, clothing and cell phone. This indicates
that
there was no remorse shown by him. A further aggravating factor
is that he had been convicted of being in possession
of a firearm and
ammunition and was out on bail when the murder was committed.
[68]
The trial court carefully considered all the necessary factors and
concluded, correctly so, that no substantial and compelling
circumstances existed to justify a lesser sentence. Nowhere in
imposing sentence on France did the trial court misdirect itself.
I find that the appeal against sentence cannot succeed.
Order
[69]
In the result, the following order is made:
1.
The appeal against the
first appellant’s sentence is dismissed and the sentence of
life imprisonment imposed by the trial
court is confirmed.
2.
The appeal against the
second appellant’s conviction is dismissed.
___________________
PATEL
JP
I
agree
____________________
MOODLEY
J
I
agree
_____________________
HENRIQUES
J
Date
of Hearing : Friday, 28 NOVEMBER 2014
Date
of Judgment : Tuesday, 06 JANUARY 2015
For
the 1
st
Appellant : Adv S Edwards (079 – 902 6312)
Instructed
by : M B Pedersen & Assoc.
Ground
Floor
159
Cowey Road
Morningside
Durban
(Tel.:
031 – 072 0324 / 082 – 469 5451)
For
the 2
nd
Appellant : Mr W C Maqutu
Instructed
by : Legal Aid Board
Otto
Street
Pietermaritzburg
(Tel
: 033 – 394 2190)
For
the Respondent: Adv C Kander
Instructed
by: The Director of Public Prosecutions
High
Court
301
Church Street
Pietermaritzburg
(Tel.:
033 - 8454400)