About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2015
>>
[2015] ZAKZPHC 14
|
|
Hlongwane v S (AR243/09) [2015] ZAKZPHC 14 (3 March 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR243/09
In
the matter between:
LUCKY
SIPHIWE
HLONGWANE
........................................................................................
Appellant
and
THE
STATE
.........................................................................................................................
Respondent
JUDGMENT
Vahed
J
(Kruger
et
Chetty JJ concurring):
[1] The
appellant was arraigned on a charge of murder in the Regional Court,
Camperdown and on 20 August 2008 he was convicted thereof.
On the
same day he was sentenced to serve a term of imprisonment of 18
years. A subsequent application for leave to appeal against
both
conviction and sentence was refused by the learned Regional
Magistrate. Thereafter, on petition to the Judge President of
this
division, his application for leave to appeal was again refused. His
appeal serves before us as a result of leave to appeal
having been
granted to this court by the Supreme Court of Appeal on 22 November
2013.
[2] The
appellant’s heads of argument were due on or before 02 January
2015. When they were not forthcoming the respondent,
on 15 January
2015, gave notice that it intended, at the hearing of the appeal,
applying for the appeal to be struck from the roll.
The appellant’s
heads of argument were delivered later that same day. On 26 January
2015 the appellant delivered an application
for condonation for the
late delivery of the heads of argument. It was opposed by the
respondent. When the appeal was called on
30 January 2015 we first
heard argument on the application for condonation.
[3] The
appellant’s attorney deposed to the affidavit delivered in
support of the application. It was remarkably short, extending
to
only 4 typed, double-spaced pages. The affidavit attempts to explain
that the reason for the delay was the fact that his firm
had not been
placed in funds. He says that he made contact with the appellant and
his wife during June 2014 when he handed to them
a statement of
account and discussed the early settlement thereof. When he received
the Notice of Set Down of the appeal during
July 2014 he again
reminded the appellant and his wife to attend to early payment of the
fees.
[4] The next event occurred
in November 2014 when he received a report from the appellant that
raising the required funds was a
struggle, accompanied by a promise
to pay, which did not eventuate. The appellant’s attorney then
indicates that his office
was closed for the December recess from 12
December 2014 until 12 January 2015. However, he says that on 3
January 2015 he held
and urgent meeting with the appellant’s
wife who indicated to him that she had failed to raise the agreed sum
and that she
would not be able to raise that sum by the date of the
appeal.
[5] The
attorney then goes on to say that when counsel of choice returned to
chambers after his break he negotiated with counsel
to prepare the
heads of argument at a reduced fee. He thereafter approached another
junior advocate to take over the argument at
a reduced fee.
[6] Before analysing that
explanation it would be useful to recall the remarks of Heher JA at
paragraph 6 of
Uitenhage Transitional Local Council v SA Revenue
Services
2004 (1) SA 292
(SCA).
“
One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be
trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to
be had merely
for the asking; a full, detailed and accurate account of the causes
of the delay and their effects must be furnished
so as to enable the
Court to understand clearly the reasons and to assess the
responsibility. It must be obvious that, if
the non-compliance
is time related then the date, duration and extent of any obstacle on
which reliance is placed must be spelled
out.”
[7] I
am also reminded that in
Blumenthal and Another v Thomsom NO and
Another
[1993] ZASCA 190
;
1994 (2) SA 118
(A) at 121 I, Joubert JA said the
following:
“
This Court has often said that in a case of
flagrant breaches of the Rules, especially where there is no
acceptable explanation
therefor, the indulgence of condonation may be
refused whatever the merits of the appeal are; this applies even when
the blame
lies solely with the attorney (
Tshivhase Royal Council
and Another v Tshivhase and Another; Tshivhase and Another v
Tshivhase and Another
[1992] ZASCA 185
;
1992 (4) SA 852
(A) at 859 E-F)”
[8]
Does the explanation pass muster? I think not. Having said that I am
very aware that the appellant’s attorney is saying
that the
appellant was unable to raise sufficient funds to timeously prosecute
his appeal. However, in my view the affidavit falls
far short of what
could pass for a proper explanation. I highlight the deficiencies
that strike one on even a casual reading of
the affidavit:
a. It will be recalled that leave to appeal to this
Court was granted on 22 November 2013. No explanation is proffered
as to why
the attorney waited until June 2014 to begin his fee
gathering process.
b. There is no explanation as to what transpired between
July 2014 and November 2014.
c. The appellant’s attorney indicated that his
offices were closed for a whole month for the December recess. The
significance
of this is unexplained, particularly when he says that
he met with the appellant’s wife on 3 January 2015.
d. The information relating to how much was in fact
raised by the appellant’s wife, if anything at all, is
extremely sketchy.
e. The date when contact was made with counsel of
choice, and when he agreed to prepare the heads of argument at a
reduced fee,
is not revealed.
f. The date when the services of alternate counsel were
secured is not revealed.
[9] A
properly motivated application for condonation ought to have covered
all of those factors.
[10] We however proceeded to hear argument on the merits
of the appeal.
[11]
At the trial in the court
a quo
it was common cause that the
appellant shot the deceased thereby causing his death. The plea
tendered by the appellant was in essence
one of self-defence.
[12] It
was also common cause that there was an altercation between the
appellant and the deceased on the day in question. That
altercation
occurred in two distinct phases some hours apart.
[13] It
was common cause that during the first phase the appellant came upon
the deceased who was urinating at the time. The dispute
during this
phase centred around whether the deceased was standing on the road or
next to the road while urinating and whether
the deceased was under
the influence of alcohol. As the evidence unfolded the extent of the
altercation between the appellant and
the deceased during the first
phase also widened as an issue.
[14]
It was common cause that during the second phase the deceased and the
appellant encountered each other at or near a container
that was
utilised as a payphone facility. It was common cause that the
appellant utilised the facilities of the payphone at this
container
and then moved towards his motor vehicle which was parked nearby. It
was during this phase that the appellant produced
his firearm and
shot the deceased, thereby inflicting the injuries which resulted in
the deceased’s death. Those injuries
were described in a
post-mortem report which was also admitted into evidence without
challenge. The issues during the second phase,
and which were in
dispute in the court a quo, included whether the deceased was alone
as alleged by the State or whether he was
part of a group of persons
which accosted the appellant. Also in issue during this second phase
was whether the appellant reached
into his motor car to retrieve the
firearm from the vicinity of the dash-board of the vehicle or whether
he had it on his person
and whether the appellant shot the deceased
without provocation and for no reason or whether that took place
during a struggle
as contended for by the appellant.
[15] Three witnesses testified for the State.
[16]
Skumbuzo Mabaso (“Mabaso”) was the deceased’s
brother and an eyewitness to both phases of the altercation.
On 11
November 2006 he and the deceased were visiting their sister, Nomusa
Queen Hlengwa (“Hlengwa”) at her home which
was situated
near the container. This was in the Emalangeni Area, Mpumalanga,
KwaZulu-Natal.
[17]
At some time during that morning Mabaso and the deceased left
Hlengwa’s home and proceeded to the vicinity of the container
in order to smoke a cigarette. Whilst the deceased was urinating next
to the road, the appellant drove past and stopped.The appellant
asked
the deceased why he was urinating next to the road and the deceased
thereupon enquired of the appellant whether this had
caused him i.e.
the appellant, a disturbance. The appellant threatened to shoot the
deceased who apologised to the appellant. Hlengwa
was reasonably
close by and witnessed this conversation. Moving closer and joining
the parties it was clear to Mabaso that she
overheard what was said
and she also apologised to the appellant on the deceased’s
behalf. The appellant did not respond
but simply drove away. Turning
to the second phase Mabaso said that later that afternoon he and the
deceased again left Hlengwa’s
residence. As they were near the
container the appellant was noticed walking away from the container
down some steps towards his
motor vehicle. The appellant summoned the
deceased who went to him. They leaned against the bonnet of the
appellant’s motor
vehicle on the driver’s side. They
spoke for a brief while after which the appellant retrieved his
firearm from inside the
motor vehicle on or near the dash-board
through the open driver’s side window.
[18]
Mabaso testified that the appellant grabbed at the deceased at the
back of his neck and fired shots injuring him in the groin
and thigh
areas. The deceased fell to the ground and whilst lying on his
stomach the appellant shot him again in the back. The
appellant left
the scene in his motor vehicle and the deceased was thereafter
conveyed to a nearby clinic. He succumbed to his
injuries about a
week later and died.
[19]
Mabaso was cross-examined and during such cross-examination disputed
the following propositions put to him:
a. That both he and the deceased were intoxicated on the
day in question;
b. That after the appellant made a telephone call at the
container a group of men, including Mabaso and the deceased,
surrounded
the appellant;
c. That the deceased attempted to snatch or grab the
appellant’s cellular telephone;
d. That a struggle ensued between the deceased and the
appellant over that cellular telephone;
e. That a number of men tried to grab at the appellant’s
body;
f. That the appellant thereafter reached for his
firearm, which was in a holster on his hip, as a result of which the
cellular telephone
fell to the ground;
g. That the struggle continued over the appellant’s
firearm;
h. That during that process shots were fired;
i. That the deceased grabbed at the appellant’s
legs trying to bring him down;
j. That the appellant did not shoot at the deceased
while the latter was lying on his stomach on the ground.
[20]
Hlengwa testified that she was the sister of the deceased and also an
eyewitness to both phases of the incident. She corroborated
Mabaso in
all material respects.
[21] During her cross-examination it emerged that:-
a. The deceased had been urinating on the side of the
road (i.e. not while standing in the roadway itself);
b. That the deceased apologised to the appellant if he
had disturbed his driving by urinating next to the road;
c. That the appellant said to the deceased that he would
strike him with a bullet;
d. That she was uncertain whether the deceased, Mabaso
and others were under the influence of alcohol on the day in
question;
e. That after the appellant had summoned the deceased at
the container during the second phase, they were leaning against the
bonnet
of the appellant’s car and spoke for a while;
f. That the appellant grabbed the deceased around the
latter’s neck, reached for his firearm from within the vehicle,
and
commenced shooting at the deceased. After having released the
deceased the appellant shot him on his shoulder;
g. That she disputed the appellant’s version
entirely.
[22]
Mzwake Bhekani Chonco (“Chonco”) testified that he was
related to Hlengwa in that he and her husband were cousins.
He was an
eyewitness to the second phase of the interaction between the
deceased and the appellant.
[23]
Chonco corroborated the evidence of Mabaso and Hlengwa insofar as the
shooting incident at the container is concerned. His
corroboration
extended to all the material aspects testified to by both Mabaso and
Hlengwa.
[24]
He was the person that took the deceased to the clinic and he
confirmed that the deceased died after spending approximately
a week
in hospital.
[25] Under cross-examination Chonco:-
a. Denied having been under the influence of alcohol on
the day of the incident;
b. Indicated that he did not see the deceased and Mabaso
consume any alcohol on that day. However, he assumed that they were
slightly
intoxicated as they appeared to be, as he termed it,
“happy”;
c. He confirmed that after Hlengwa testified she had
told him that it had transpired during her evidence at court that two
gunshots
were fired whereas in actual fact the appellant had shot the
deceased repeatedly;
d. That a person by the name of Similo Gumbi (“Similo”)
was present and with Mabaso at the container across the road
from
where the appellant was shooting at the deceased;
e. Disputed the appellant’s version entirely.
[26]
The appellant testified that whilst driving near the container on the
day in question he noticed some men standing around.
He saw the
deceased urinating in the middle of the road. He stopped and asked
the deceased if he was aware that it was wrong to
urinate on the
road. The deceased enquired as to whether he had disturbed the
appellant by doing so and indicated that there was
sufficient space
for him to drive past. The appellant indicated that he noted that the
deceased and his companions were drunk and
accordingly he simply
drove on past them. He denied that the deceased had apologised to him
or that he had threatened to shoot
the deceased. He testified further
that later that day he returned to the container to make a telephone
call from one of the payphones
located there. Again he noticed that
the deceased and his companions were present. They were still
intoxicated. As the appellant
was leaving the container the deceased
and his companions approached him after which the deceased attempted
to grab hold of his
cellular telephone which he said was in his left
hand. The deceased’s companions attempted to assist the
deceased in dispossessing
the appellant of his cellular telephone.
[27]
The appellant testified that he remembered that he had his licenced
firearm in a holster tucked into the waistband of his trousers.
He
pulled out his firearm after which the deceased let go of the
cellular telephone and grabbed hold of the barrel of the firearm.
In
so doing he held onto the deceased’s hand. The deceased’s
companions came to the deceased’s assistance. The
appellant
testified that he then reached for the trigger and a shot or shots
went off, as he put it “uncontrollably”.
He indicated
that he was unaware as to which parts of the deceased’s body
were struck as he was unable to control the firearm
as a result of
the deceased holding on to its barrel. At some point during the
struggle the deceased let go of the firearm and
bent down in an
attempt to grab hold of the appellant’s legs. At this point he
shot the deceased in the deceased’s
shoulder. The appellant
testified that he thereafter retrieved his cellular telephone and
drove to the nearby police station to
report the attempted robbery.
[28] He
denied that he beckoned the deceased to him before shooting at him,
that he retrieved his firearm from the dash-board of
his motor
vehicle and that he shot at the deceased while the deceased was
falling to the ground.
[29] During cross-examination it emerged that:-
a. The deceased was rude to the appellant and that he
was upset and disgusted by the behaviour of the deceased earlier that
day
(i.e. during the first phase);
b. That he did not see Hlengwa at the point where he
came across the deceased when he was urinating in the roadway during
the first
phase;
c. That he knew Similo prior to the incident and that
he, Similo, was in Mabaso’s company during both phases on the
day in
question. According to him Similo played an active role in
assisting the deceased to deprive him of his cellular telephone.
d. That the deceased’s companions assisted the
deceased in attempting to rob the appellant. In this regard he
testified that
while the deceased grabbed the cellular telephone in
the appellant’s left hand, Similo grabbed the appellant’s
right
hand. During that stage Mabaso was assisting an unknown person
from behind the appellant, to search the appellant’s rear
trouser pockets;
e. That about ten assailants accosted the appellant when
the deceased, Similo, Mabaso and the other unknown person were
attempting
to rob him;
f. That after the first shot was fired, the struggle
over the firearm continued and the appellant fired further shots at
the deceased.
It was at this stage that the appellant testified that
the deceased’s finger also entered the enclosed space of the
trigger
guard of the firearm;
g. That the deceased’s finger could have pushed
his finger which would have led to the trigger being pulled while
they were
struggling over the posession of the firearm;
h. That the deceased let go of the barrel after several
shots had been fired and bent down to hold the appellant’s
feet. The
latter then shot the deceased in the back (i.e. the
shoulder);
i. That while the allegation of murder was being
investigated against the appellant, he was informed of his
constitutional rights
and afforded an opportunity to make a statement
but nevertheless elected to remain silent.
[30]
Sifiso Emmanuel Mthembu (“Mthembu”) also testified on the
appellant’s behalf. He was the owner of the container
from
where he conducted a public payphone business and sold cigarettes and
sweets. Although he was in the container at the time
of the incident
he was unable to see the appellant shoot the deceased because of the
elevated situation of the container. However,
during
crossexamination, he conceded that he could not see what had happened
in the vicinity of the front of the appellant’s
motor vehicle.
After he had heard shots, he took note of the deceased’s body
which was lying approximately three paces away
from the front of the
appellant’s motor vehicle.
[31]
After the defence closed its case the court
a quo
called (as a
“court witness”) a forensic analyst attached to the
ballistic section of the forensic science laboratory.
That evidence
did not take the case further.
[32] At
the conclusion of the evidence the court
a quo
in a carefully
reasoned judgment accepted the evidence tendered by the state and
rejected that of the appellant.
[33] On
my reading of the evidence it is clear that the appellant’s
version was riddled with inconsistencies, untruths and
contradictions. It was a tale that grew with the telling. I highlight
a few of these:
a. It was not put to any of the state witnesses that the
appellant had hooted at the deceased during the first phase of the
incident.
The appellant did not mention this during his evidence in
chief as well. This emerged for the first time during
cross-examination.
b. It was put to Mabaso that the appellant did not take
serious offence at the fact that the deceased was urinating in the
road
way. However, in crossexamination, he conceded that he was upset
and disgusted by the behaviour of the deceased that morning
c. The appellant did not challenge Hlengwa’s
evidence regarding her presence during phase one of the incident.
However, in
cross-examination, he said that he did not see her during
that first phase.
d. Mthembu, who was called to testify on the appellant’s
behalf, said that he had seen the deceased, Chonco and others
drinking
at Hlengwa’s house. He added that he had seen Mabaso
bringing quarts of beer to her house. At no stage was any of this put
to any of the state witnesses.
e. There were at least three different versions as to
how the deceased and others accosted the appellant during the second
phase.
Firstly, it was put to Mabaso that the appellant noticed a
group of males, including the deceased and Mabaso, surrounding him,
whereafter the deceased attempted to grab hold of the appellant’s
cellular telephone. Secondly, it was put to Hlengwa that
the
appellant noticed a group of black males including her two brothers,
who had the intention of robbing him of his cellular telephone.
Thereafter there was a struggle over the telephone and the deceased
was at the forefront of that group. Thirdly it was put to Chonco
that
the appellant suddenly noticed a group of black males approaching him
and that the deceased was at the forefront of that group.
As they were approaching, the deceased grabbed hold of
the appellant’s cellular telephone and there was a struggle
over the
telephone. The rest of the group assisted the deceased by
holding the appellant.
f. The proposition that Similo was part of the group
that approached the appellant and thereafter assisted the deceased in
holding
the appellant during the attempted robbery was put for the
first time to the State witnesses when Chonco testified. It was not
put to either Mabaso or Hlengwa when they were cross-examined. When
the appellant testified he indicated that not only was Similo
one of
the men present when the deceased was urinating in phase one but that
he noticed him again that afternoon with the others
when he
approached the container to make a telephone call. That aspect of his
version also grew with the telling because as his
cross-examination
unfolded the role attributed to Similo by the appellant became more
and more prominent and significant. As the
tale developed Similo was
now also one of the people who grabbed hold of the appellant’s
right hand in an effort to assist
the deceased to dispossess him of
his cellular telephone.
g. It was never put to any of the State witnesses that
while the appellant and the deceased struggled over the cellular
telephone
Mabaso and another unknown person had approached the
appellant from behind and one or both of them were searching his rear
trouser
pocket.
h. It was never put to any of the State witnesses that
the deceased was holding onto the appellant’s firearm by its
barrel
during the struggle. This only emerged during the appellant’s
evidence in chief. It was also never put to any of the State
witnesses that the deceased continued to hold onto the barrel while
the firearm went off more than once.
i. At no stage was it also put to any of the State
witnesses that the deceased’s finger was also in the space
within the trigger
guard while he and the appellant were struggling
over the firearm. This only emerged towards the very end of the
appellant’s
cross-examination.
[34]
Those few incidents that I have highlighted were crucial features of
the case and ought to have been put to one or other of
the State
witnesses. The failure to do so is significantly suggestive of a
version that was tailored to suit the State’s
case as it
unfolded.
[35] Against that background a number of improbabilities
emerge:-
a.
That the appellant, after becoming upset and disgusted during phase
one would not be harbouring a continued anger towards the
deceased
when he came across him for the second time that day.
b.
That the deceased would accost the appellant in the circumstances
described after having been threatened that he would be shot
during
phase one of the incident.
c.
That a group of persons would continue to attempt to dispossess the
appellant of his cellular telephone even after he produced
a firearm.
d.
That the deceased would still hold onto the barrel of the pistol
after the first shot had been discharged.
e.
That if the firearm went off in the struggle described by the
appellant, others in the crowd who had gathered around would not
also
have been injured.
f.
That given the description proffered by the appellant as to how the
deceased was holding onto the barrel of the firearm that
the
deceased’s hands remained uninjured and unblemished.
[36]
At the end of the day I cannot fault the learned Regional
Magistrate’s reasoning and neither can I find any misdirection
on his part. In my view the appellant was rightly convicted.
[37]
Insofar as the sentence is concerned, it would be recalled that the
learned Magistrate
a quo
sentenced the appellant to serve a
term of imprisonment of 18 years.
[38] In heads of argument
submitted on behalf of the appellant and during the course of oral
argument it was suggested that the
provisions of
section 51
of the
Criminal Law Amendment Act, 105 of 1997
were not explained to the
appellant. It was also suggested that this was not pertinently raised
in the charge sheet. I have had
regard to the original court file
and, contrary to that suggestion those provisions were indeed raised
as part of the charge and
a pertinent reference to the provisions of
that section are contained in the charge sheet. In addition, the
appellant was legally
represented in the court
a quo
and there
is no suggestion that that representation was inept or inadequate in
any manner. See generally in this regard
S v Mthembu
2012 (1)
SACR 517
(SCA)
[39] In mitigation of
sentence in the court
a quo
it was submitted that the
appellant was 34 year old self-employed plumber, earning an average
of R3 700,00 per month; that he contributed
to the support his eight
children (all from different mothers) who were at school ranging from
crèche up through to grade
7; that he had a grade 10 level of
education and that the incident involved the use of a licenced
firearm (this latter submission
intending to mean that he was not
some renegade with an unlicenced firearm). An admitted previous
conviction for assault some eight
years old was rightly ignored by
the court
a quo
.
[40]
None of those factors were considered by the court below to be
sufficiently substantial and compelling facilitating a deviation
from
the prescribed minimum sentence of 15 years imprisonment. On the
accepted version of the events the deceased was shot at least
twice
in the area of his groin. The court below regarded this as an
aggravating feature, indicative of the fact that the appellant
wanted
to punish the appellant for his disgusting behaviour. For that the
learned magistrate imposed a sentence 3 years in excess
of the
minimum, ie. 18 years imprisonment.
[41] I can find no
misdirection on the part of the learned Magistrate
a quo
during the sentencing phase of the trial and to my mind the sentence
imposed is not one that I would regard as being shocking,
startling
or disturbingly inappropriate. Accordingly the appeal against
sentence must fail as well. See
S v Malgas
2001 (1) SACR 469
(SCA).
[42]
In the result the appeal against both conviction and sentence is
dismissed.
_______________
Vahed J
_______________
Kruger J
_______________
Chetty J
Appearances
For the Appellant: B. Manyathi
(instructed by Mbele, Dube
& Partners)
For the Respondent: E. Smith
(Director of Public
Prosecutions, KZN)
Date of Hearing: 30 January 2015
Date of Judgment: 03 March 2015