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[2014] ZAGPPHC 123
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Ngwenya v S (A366/13) [2014] ZAGPPHC 123 (1 April 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A366/13
DATE:
1 APRIL 2014
SIBUSISO
MICHAEL
NGWENYA
.....................................................................
APPELLANT
and
THE
STATE
.......................................................................................................
RESPONDENT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
On
31 October 2010 at Barberton, Mlondolozi Shongwe ("the
Complainant"), an 18 year old Grade 10 pupil at Barberton Senior
Secondary School was shot and wounded on the head. Appellant was
arraigned and convicted in the Barberton Regional Court for attempted
murder of the complainant and sentenced on 25 September 2012 to 10
years imprisonment. On petition to this court, having been refused
leave by the magistrate, Appellant is appealing against both the
conviction and sentence.
[2]
His
appeal is based on allegations that the learned magistrate erred:
[2.1]
in
his finding on the evidence of the state witnesses as he did not
demonstrate the required degree of analysis in his approach
to the
inconsistencies and contradictions in the witnesses' evidence; and
[2.2]
in
placing undue emphasis on the element of deterrence, failing to
consider a sentence in terms of s 276 (1) of the Criminal Procedure
Act 51 of 1977 ("the Act"), take into account that the
participants to the fight were drunk, complainant provoked the
accused and was the initiator of the fight and that Appellant reached
the age of 34 without committing a crime. As a result the
sentence
was shockingly inappropriate.
[3]
The
state opposes the appeal.
BACKGROUND
FACTS
[4]
Appellant
and his friend Thulane Hlophe
("Thulane"),
were
involved in an argument with the complainant and his sister, Buyisile
Shongwe, ("Buyisile) when the complainant was shot
on the head.
The former duo had earlier on that day clashed with the complainant
at a place called Chicago. They blocked the road
and prevented the
complainant who was in his brother's car from leaving the venue.
Complainant left the car and instead walked
to his mother's home. In
the meanwhile a fight broke out at Chicago involving the
complainant's brothers and the Appellant and
his friend.
[5]
Later
Thulane arrived at another drinking spot at Rockerfeller called Dukes
Place, looking for the complainant. He confronted Buyisile
who was
standing outside with a friend, and dragged Buyisile's friend from
the back of a bakkie, to the ground. At that time an
argument ensued
at the scene between the complainant and Appellant. The complainant
was shot and Thulane and the Appellant ran
away.
[6]
Appellant
was arrested. At trial he pleaded not guilty and was convicted on the
evidence led by Buyisile and the complainant that
the court a quo
accepted to be reliable. The defence's evidence was rejected as
unreliable and improbable.
STATE'S
EVIDENCE
[7]
According
to Buyisile, she was standing outside at Rockerfeller with her friend
who was at the back of a bakkie when Appellant and
Thulane arrived
looking for the complainant whom they alleged was disrespectful.
Thulane dragged her friend off the bakkie and
she fell to the ground.
At that time the complainant was confronted by the Appellant who had
a gun in his right hand that he then
put in his right pocket. Whilst
they were arguing, she tried to pull the complainant away but
Appellant pulled him back by his
hand. Appellant pointed the gun to
the complainant's head, shot him and together with Thulane ran away.
The complainant was taken
to hospital. Visibility was good and the
place had a spotlight and a street light on. She denied that she was
drinking that night.
On being cross- examined on her police statement
that says the contrary, she persisted to deny that she was drinking
her reason
being that she was going to a funeral the next day.
[8]
The
Complainant testified that when he came back to Chicago, from his
mother's place, he found his brothers being assaulted and
decided to
go to Rockerfeller at Dukes place. The Appellant also arrived at
Dukes holding a gun in his right hand. Appellant accused
him of being
disrespectful whilst he asked for forgiveness. As they were still
talking his sister Buyisile pulled him away, telling
him to walk
away. During that time he was shot and he woke up at the hospital
with a gun wound on his head. The last time he was
conscious of what
was happening was when the Appellant was pointing the firearm at him
and threatening to shoot him. He did not
see or hear the gun go off.
Buyisile told him that Appellant shot him.
DEFENCE'S
EVIDENCE.
[9]
Appellant's
testimony in- chief was a bare denial of all the allegations made by
the state's witnesses save for admitting to being
present at the
scene and being next to the complainant when he was shot. He denied
that he is the one who shot the complainant
and did not proffer any
explanation until under cross examination,
[10]
In
the course of cross examination he confirmed that Thulane wrestled
with Buyisile's friend in a bakkie, who then fell down and
that the
first disagreement at Chicago was resolved. He alleged that the
complainant confronted Thulane carrying a beer bottle
and an
altercation followed. He did not hear what they were saying to each
other as he was still approaching the scene. The altercation
continued in his presence and they retreated for about 20 metres with
complainant advancing at a distance of 1,5 metres threatening
to
assault Thulane with a beer bottle. Buyisile dragged the complainant
away telling him to leave them alone. At that time they
heard some
noise like a cricket or firearm and the next thing the complainant
was laying on the ground, his sister, Buyisile next
to him. They
started running away because there were people chasing them. The
place had lights. He gave his age as 34 and Thulane's
to be between
32 and 34 years old.
[11]
According
to Thulane he was there when complainant was shot, but he did not see
the person who fired the shot or was holding a firearm
and Appellant
did not shoot the complainant or have a firearm. Appellant and
himself were standing not far from the complainant
since they were
arguing with him whilst Buyisile was trying to pull the complainant
away who had nothing in his hands. The complainant
fell down after a
bang. There were many people around at the scene. He could see them
as the place was lit. He could have seen
also if somebody was
carrying a firearm. He cannot say he had an altercation but the
complainant was the aggressor so he demanded
to know from him why he
was accusing or quarrelling with him. When he confronted the
complainant his friends threw bottles at him.
Appellant intervened to
try and calm the situation but the quarrel continued that is when the
loud bang was heard and they fled
the scene. His car was set alight.
He admitted being aggressive towards the complainant's sister and
pulling her friend off the
bakkie. The Appellant came to assist him
adding manpower also by asking them why they were fighting him.
[12]
Only
under cross examination did he confirm to have dragged the
complainant's sister from the bakkie as she was not paying attention
to him. He alleged that he was angry after being assaulted so, he
lost his temper and his aim was to confront the complainant.
He did
not dispute that complainant was actually unarmed. He further
admitted that complainant arrived after he had dragged the
sister but
denied that the earlier incident at Chicago was resolved as alleged
by Appellant. He then again alleged that complainant
and his friends
pushed him and threw bottles at him and Appellant came to resolve the
situation. Immediately after Appellant had
asked them why they were
fighting him, there was a loud bang and complainant fell. He was
standing a metre and a half from the
complainant.
[13]
The
version that was put to the state's witnesses during cross
examination and alleged to be the Appellants version was not led
by
any of the witnesses on behalf of the Appellant. It was about the
alleged attack on Thulane and that when complainant came back
he
confronted them complaining that his mother died because of them
blocking him.
[14]
From
the record it is evident that when assessing the state's evidence,
the learned magistrate took into consideration the totality
of the
evidence to find that Buyisile was impressive as a witness and her
facts carefully marshalled, having given a comprehensive
and detailed
version of what transpired. The court was also mindful that she was a
single witness on the firing of the shot, which
fact was placed in
issue and therefore it was to exercise caution. On the other hand it
acknowledged that the complainant was drinking
and his evidence was
short with minor shortcomings but pointed out that his version was
corroborated by Buyisile's clear and structural
evidence. After
analysing the discrepancies some of them as perceived by the
Appellant, the learned magistrate concluded that their
evidence was
truthful, reliable and bona fide. He recognised that complainant
could have lied about the shooting but he was honest,
He admitted to
not seeing the Appellant when fired the gun.
CONTENTION
ON CONVICTION
[15]
Appellant
contests that the learned magistrate demonstrated the required degree
of analysis in his approach to the inconsistencies
and contradictions
in the witnesses' evidence and he details in his heads of argument
each and every specific incident and utterings
in the record by the
Appellant and Buyisile that it regards as inconsistent, discrepant or
in conflict and should have been mentioned
and commented upon by the
court in its analysis, somehow in exaggerated form. The court is
accused of only paying lip service to
the applicable approach.
[16]
Basically,
the Appellant is challenging the court's analysis of the facts and
its factual findings. Trite is that the Appeal court's
power to
interfere with the factual findings of a trial court are limited to
instances where the Appellant proves a discernible
and material
misdirection by the court a quo. The appeal court will therefore only
reject the trial court's
assessment of the
evidence if it is convinced that the assessment is materially
incorrect, not merely on the findings of facts but
also in its
reasons. It is therefore the duty of the Appeal court, if convinced
that a distinct and material misdirection has been
proven, to
consider the record as a source of insight to the proceedings to
ascertain if indeed the findings on facts are supported
by the
evidence or the probabilities and what is the relevance or
materiality of the inconsistent statements to the facts in issue;
See
5
v
Tshoko
1988
(1) SA 139
(A) at 142F-143A.
[17]
In
the instance of a court finding a discrepancy between the statement
and the evidence of a witness in court, only if the discrepancy
is
material that the appeal court will reassess. The scholarly approach
in S v
Mafatadiso
en Andere
[2002]
4 All SA 74
(SCA) referred to by the Respondent short of a citation,
articulately sets out the proper approach that:
"The mere fact
that it is evident that there are self-contradictions must be
approached with caution by a court. First, it
must be carefully
determined what the witnesses actually meant to say on each occasion,
in order to determine whether there is
an actual contradiction and
the precise nature thereof. In this regard, the adjudicator of fact
must keep in mind that a previous
statement is not taken down by
means of cross- examination, that they may be language and cultural
differences between the witness
and the person taking down the
statement which can stand in the way of what precisely was meant, and
that the person giving the
statement is seldom, if ever, asked by the
police officer to explain their statement in detail. Secondly, it
must be kept in mind
that not every error by a witness and not every
contradiction or deviation, affects the credibility of a witness. Non
material
deviations are not necessarily relevant. Thirdly, the
contradictory versions must be considered and evaluated on a holistic
basis.
The circumstances under which the versions were made, the
proven reasons for the contradictions with regard to the reliability
and credibility of the witness, the question whether the witness was
given a sufficient opportunity to explain the contradictions-and
the
connection between the contradictions and the rest of the witness'
evidence, amongst other factors, to be taken into consideration
and
weighed up. Lastly, there is the final task of the trial judge,
namely to weigh up the previous statement against the viva
voce
evidence and to decide whether it is reliable or not and to decide
whether the truth has been told, despite the shortcomings.'"
[18]
The
Appellant criticised Buyisile's testimony for its inconsistency with
the police statement regarding her drinking. Although she
gave an
explanation that her friends and everybody there was drinking
including the complainant. The statement to the police was
made in
that perspective but she, personally was not drinking as she was
going to a funeral the next day. She maintained that she
was sober
but her brother was drinking. The explanation, weighed against all
evidence and given her clear testimony, is plausible.
None of the
defence witnesses gave evidence about or challenged her
clear-headedness. The incongruence therefore does not cast
a doubt on
her credibility or the reliability of her evidence.
[19]
She
was also criticised for first saying that Pops was in possession of
the firearm and later saying that the Appellant had the
fire arm and
that he had it in his right hand and then again that he had it in his
pocket. However:
[19.1] Every time
she mentioned Pops, when asked "who?" she always answered
that “the Appellant" and at some
point it was accepted by
Appellant's Counsel that the name is mentioned in respect of the
Appellant. On the one occasion where
she mentioned "Pops and
Sibusiso" in the record, she was asked, who came? and she
stated, clearly, that Sibusiso came.
So her evidence in that regard
was indisputably in relation to the Appellant. In consideration with
the other evidence nothing
more could be read from that.
[19.2] during cross
examination she clarified that Appellant took out the firearm in
front of them, and at the time he was approaching
them he was holding
it in his hand. Then he put it in his pocket and had his hand always
inside his pocket. He took the firearm
out again after she pulled the
complainant away telling him to leave. She said she saw the Appellant
holding it in his right hand
and discharged it. There is no material
or any discrepancy in that evidence. It is also corroborated by the
complainant who saw
Appellant holding the gun in his right hand and
pointing it at his head.
Therefore there was
no discrepancy or inconsistency that called for a special attention
and evaluation by the court a quo.
[20]
The
complainant is criticised for failing to tell the court that Buyisile
stood on his right hand side even though he confirmed
that she was
next to him when he was shot, which is preposterous, The relevance of
such information is not stated, if that makes
any difference to the
facts that were in issue. Only an omission of a fact relevant to
proving or disproving the commission of
an offence as charged would
beaterial to such an extent that it would require the reassessment on
Appeal.
[21]
The
court a quo is also criticised for failing to analyse complainant's
evidence on his observation that Appellant held a firearm
in his
right hand and could not say what colour it was and also that he
could not remember if there were lights and later said
there were
street lights. The Appellant and other witnesses had testified that
the place was lit. So although he could see the
Appellant he was not
sure if there were street lights. Also it was not his evidence that
it was dark. He was frank to say he was
not sure of the colour of the
firearm. That does not mean he could not see the gun held by the
Appellant who was in such close
proximity as attested to by all the
witnesses hence making it probable that he could see if Appellant had
a firearm and if he was
holding it in his right hand. He also pointed
the firearm at him. The colour of the firearm might seem relevant but
is immaterial
since it was not put in issue nor could it prove or
disprove if Appellant shot the complainant. Appellant denies holding
the firearm
anyway. The learned magistrate did not have to labour the
point and the point on the Appellant's handling of the firearm was
adequately
addressed. The complainant not being sure of the colour
shows his honesty.
[22]
On
the question of lights, Appellant and other witnesses had testified
that the place was lit. Although the complainant was not
sure if
there were street lights, it was not his evidence that it was dark
nor did he deny that there were lights outside, he first
could not
remember. However after a while in his evidence he confirmed that
there were street lights as in accordance with every
witness'
testimony. His sister in particular had confirmed that there were
street lights. The fact that in cross examination his
memory was
jolted and he could remember does not signify that he was being lying
or less credible, especially in the light of the
whole evidence. The
learned magistrate's acceptance of his version after taking into
consideration these factors is defensible.
[23]
It
is trite that not every error made by a witness will affect his or
her credibility, (t is the duty of the trier of fact to weigh
up and
assess all contradictions, discrepancies and other defects in the
evidence and, in the end, to decide whether on the totality
of the
evidence the state has proved the guilt of the accused beyond
reasonable doubt. The trier of fact also has to take into
account the
circumstances under which the observations were made and the
different advantage points of witnesses, the reasons for
the
contradictions and the effect of the contradictions with regard to
the reliability and credibility of the witnesses. S v Souls
1981 (3)
SA 172
(A) at 180E-F; 5 v Mkohle
1990 (1) SACR 95
(A) at 98f-g; 5 v
Jochems
1991 (1) SACR 208
(A) at 211g-j; 5 i/ Mafaladiso
2003
(l)SACR 583
(SCA) at 593f- 594h.
[24]
It
is trite as well as asserted in R v Dhlumayo and Another
1948 (2) SA
677
(A) at 706 that:
"an
appellate court should not seek anxiously to discover reasons adverse
to the conclusion of the trial judge. No judgment
can ever be perfect
and all-embracir.g, and it does not necessarily follow that, because
something has not been mentioned, therefore
it has not been
considered."
[25]
Furthermore,
in the light of Appellant's evidence in mitigation that he
overreacted to a situation where his friend was the aggressor
by
firing a shot, there is no doubt that the Appellant is the person who
shot the complainant. The tendered evidence is in line
with the
revelation by Thulane that he was angry and had lost his temper, the
manhandling of complainant's sister and her friend
and Appellant and
Thulane's conduct of confronting the complainant. In Hiemstra's
Criminal Procedure p30-46; it is stated that
what the accused said in
mitigation after conviction can be taken into consideration in an
appeal on the merits, either against
or in favour of the accused; See
5 v Mavhungu
1981 (1) SA 56
(A); such evidence may not be "further
evidence" strictly according to the intention of s 316
subsection (5) requiring
a formal application and prior notice -it is
part of the proceedings in the trial and as such can be taken into
consideration.
The evidence also negates Appellant's allegation in
his appeal that he was provoked.
[26]
It
follows that Appellant's criticism on the degree of analysis by the
learned magistrate is hypocritical. Frankly, there is no
reason to
disturb the credibility findings of the court a quo regarding the
complainant and Buyisile or its rejection of the Appellant
and
Thulane's evidence. The Appellant has, under the circumstances failed
to prove a material misdirection that merits the setting
aside of the
conviction.
ON
SENTENCE
[27]
It
is trite that pronouncement on sentence is within the trial court's
province and the Appeal court is not to interfere with such
discretion capriciously, unless if not exercised judiciously. The
trial court is to decide each case on its own merits giving proper
consideration to personal circumstances of the accused, the nature
and the circumstances surrounding the commission of the crime
and the
interest of society, S v Zinn
1969 (2) SA 537
(A), S v SMM and Others
2013 SACR 292
(SCA) ([2012] ZASCA 56; Therefore the appropriate
sentence imposed, is to be sensitive to the aim of sentencing with
the length
of sentence bearing relation to the gravity of the
offence, the person of the offender and the interest of society.
[28]
The
Appeal court will therefore interfere only if the trial court has
misdirected itself or if the sentence imposed is disturbingly
inappropriate to
warrant
its setting aside; See S
v Rabie
1975
(4) SA 855
(A) at 857D-F. A misdirection can occur if the court fails
when assessing an appropriate sentence to determine or applying the
facts judiciously. A mere misdirection is not by itself sufficient to
entitle interference with the sentence on appeal, it must
be of such
a serious nature or degree that it shows that the court did not
exercise its discretion or exercised it improperfy
or
unreasonably; See S
v Pillay
1977
(4) SA 531
(A) at 535E-F.
[29]
I therefore
in turn consider the alleged misdirection of the trial court:
[30]
The
trial court took into consideration the personal circumstances of the
Appellant, that is his age, unmarried status, his 5 minor
children
that he said he was contributing towards their support and that he
had a monthly income. It is important to mention that
he did not
allege to be totally responsible or the primary care giver of the
children, which could have compelled the court to
reconsider if the
custodial sentence would be appropriate notwithstanding the
serio
usness
of the crime committed, S
v Plater
2013
(2) SACR 254
at 262; His evidence was instead that they are all
assisting to support the children and he only makes a contribution.
His incarceration
will therefore in reality have no serious impact on
the children. He did not mention the children when asked what is it
that he
requests from court but just wanted to be kept away from
prison.
[31]
The
fact that he was outright not remorseful and that he, notwithstanding
agreeing to compensate the complainant, proceeded to plead
not guilty
and insisted that the complainants were untruthful was properly
considered by the court to be aggravating. It is also
a fact that his
evidence was not that he was provoked or Thulane the aggressor as it
is now noted in his appeal. He actually denied
that he shot the
complainant, whilst the proven evidence confirmed that Appellant and
his friend, 34 and 32 years old, sought out
the complainant (a school
boy), who was unarmed, defenseless and not posing any threat and shot
him on the head (execution style)
for a trivial reason that he was
disrespectful, an irrational and repugnant behavior deservedly
considered aggravating by the court.
The penalty must be consistent
with the gravity of the offence. Appellant also admitted that his
friend was the aggressor and he
lost his temper. Under the
circumstances the court fittingly deemed Appellant a candidate for
long imprisonment; See S v Pillay
1977
(4) SA 531
(A) at 535E-F. In S
v
Karolia
2006
(2) SACR 75
, the sentence of correctional supervision was found to be
startlingly inappropriate and grossly lenient and a sentence of
imprisonment
warranted when accused deliberately and at close range
shot the victim whilst he was escaping. The conduct was regarded as a
serious
aggravating feature to be taken into consideration when
determining the appropriate period.
[32]
The
issue of Appellant's drinking or its extent did not arise as part of
the Appellant's evidence or in mitigation. Instead only
the
complainant admitted to drinking that night but denied that he was
drunk. Therefore no drunkenness was considered in attenuation
or
mitigation of the Appellant's moral blameworthiness.
[33]
Appellant's
insistence that a non- custodial sentence in terms of s 276 (1)
should have been imposed indicates his failure to understand
the
gravity of his criminal action. Such gravity and the circumstances
under which the offence was committed with total disregard
of the
young life and the legitimate interest and protection of society
together with his display of an uncaring attitude far outweighs
the
appellant's interest and those of his family who will not be at their
worst without him. Consequently imposing a noncustodial
sentence
of correctional supervision as envisaged in s 276 (1) is not only
disproportionate to the offence committed but would
result in the
travesty of justice. Under the circumstances the direct imprisonment
of the Appellant for a substantial period serves
completely the
purpose of punishment, (rehabilitation, deterrence, retribution and
prevention) given the aggravating circumstances
as considered in
respect of the nature and seriousness of the crime, his lack of
remorse, the surrounding circumstances, the victim,
the interests of
society that outweigh his personal circumstances.
[34]
It
is interesting that Appellant denies committing the offence and at
the same time justifies it on appeal by alleging provocation
that was
not pleaded nor proven during trial. The defence was also not raised
in mitigation and therefore consists of new evidence.
Nevertheless as
there was no evidence led or proven of Appellant alleged provocation
the court a quo did not misdirect itself when
it did not consider
such a defence or its mitigating factor. The plea is mentioned for
the first time on appeal. The learned magistrate
found him guilty
following on his guilt being proven beyond reasonable doubt and
imposed a sentence after proper consideration
of the sentencing
factors proven to exist.
[35]
Under
the circumstances and considering all the conspectus of this matter,
I could not find any evidence of the trial court's misdirection
or
disproportionality in the sentence imposed or a sentence vitiated by
irregularity justifying interference.
[36]
I
therefore make the following order:
[35.1]
The
appeal is dismissed.
For
the Appellant:
Instructed
by: Coert Jordaan Inc Attorneys
Nelspruit
For
the Respondent: Adv S Mahomed
Instructed
by: The Director of Public Prosecutions
North
Gauteng: Pretoria
N
V KHUMALO J
JUDGE
OF THE HIGH COURT GAUTENG DIVISION: PRETORIA
I
concur
MÚSHASHA
AJ
ACTING
JUDGE OF THE HJGH COURT GAUTENG DIVISION: PRETORIA