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2014
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[2014] ZAFSHC 132
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Mgcina v S (A225/2013) [2014] ZAFSHC 132 (28 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A225/2013
In
the matter between:-
GODFREY
THABISO MGCINA
…........................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
WRIGHT, AJ
HEARD
ON:
4 AUGUST 2014
JUDGMENT
BY:
G.J.M. WRIGHT, AJ
DELIVERED
ON:
28 AUGUST 2014
[1]
The Appellant stood trial in the Regional Court in Bloemfontein on a
count of murder. He was found guilty as charged and sentenced
to 12
years imprisonment. The trial magistrate granted the Appellant leave
to appeal against both the conviction and sentence.
[2]
Mrs Smith from the Bloemfontein Justice Centre argued the appeal on
behalf of the Appellant. She correctly pointed out that
the
conviction was based on circumstantial evidence. She submitted that
the trial court erred in finding as only reasonable inference
that it
was indeed the Appellant who fatally stabbed the deceased. She based
her submission on the following:
(i)
No eyewitness testimony was led;
(ii) There is no
evidence that the Appellant was armed at any relevant stage;
(iii) No witness
could credibly testify that he saw the Appellant enter the saloon
where the deceased was stabbed;
(iv) There are two
businesses (a shop and a saloon) on the premises and people were
moving in and out of both;
(v)
The bystanders were consuming alcohol and this could have resulted in
altercations not involving the Appellant.
[3]
The first state witness, Sikumbule Phakatwane, testified that on the
day in question he was sitting with the deceased and some
friends
next to the house of the deceased. There was a fight between the
Appellant and someone called Moeketsi. The deceased intervened
and
proceeded to hit the Appellant with fists and an open hand in the
face. The Appellant lost the fight and he then ran away.
The witness
went home to fetch cigarettes. Whilst at home he was informed that
the Appellant is returning. He then noticed the
Appellant walking to
the saloon. He observed that the Appellant had changed his shirt.
The Appellant was talking with the
deceased and he was pointing to
the saloon. Phakatwane re-entered his house in order to look for a
weapon. When he left the house
he met with the second state witness,
Shuping Dibe, who then told him that the deceased had been stabbed.
[4]
Dibe testified that he also saw the fight between the Appellant and
Moeketsi. He confirms that the deceased intervened and that
the
Appellant ran away. According to Dibe, he and his friends then
continued to play soccer. The Appellant later returned and entered
the premises. The witness is not certain whether the Appellant
actually entered the saloon or whether he entered the shop next
to
the saloon. After a short period of time the Appellant left the
premises. Shortly after the Appellant exited the premises, the
deceased came out of the saloon, bleeding. He collapsed on the ground
and died there.
[5]
The post mortem report reveals that the deceased died from a stab
wound to the chest. No evidence was led as to what weapon
or type of
weapon was used to stab the deceased.
[6]
The Appellant denied stabbing the deceased. He admits that he had
fought with the deceased. According to the Appellant the deceased
belittled him. He also testified that the deceased’s brother
and friends wanted to assault him with
kieries
and iron rods. While the Appellant ran away, they threw stones at
him. He admits to throwing stones back at them. According to
the
Appellant he changed his shirt because it was soaked with blood from
the deceased’s assault on him. According to the
Appellant he
did not later return to the premises. He is of the opinion that
Shuping might have seen him walking in the vicinity
of the premises
and then mistakenly thought that he in fact entered the saloon.
[7]
Importantly, the witness Phakatwane testified that, as the Appellant
was running away from the altercation with the deceased
and his
friends, he shouted that he was coming back and that he was going to
stab them. This piece of evidence was never contradicted
by the
Appellant and his attorney did not cross-examine the witness in
regard to this alleged uttering.
[8]
The trial court made favourable credibility findings of both state
witnesses. On the other hand, the Appellant was found to
be “a
very untrustworthy witness” and his version was dismissed. As a
court of appeal we are depended on the trial
court’s assessment
of witnesses and its credibility findings. [
R
v Dhlumayo
1948 (2) SA 677
(A);
S
v Francis
1991 (1) SACR 198
(A)]
There appears to be no reason for interfering with the magistrate’s
credibility findings and no arguments were advanced
on this point.
[9]
The crucial question that needs to be answered is whether the
Appellant is the person who fatally stabbed the deceased. There
is
indeed only circumstantial evidence available. The important aspects
thereof are:
(i) The deceased
fought with the Appellant earlier in the day;
(ii) The Appellant
was again seen in the vicinity of the saloon where the deceased was
killed, shortly before the deceased was stabbed;
(iii)
The Appellant uttered a threat against the deceased and his friends
after he lost the fight.
[10]
Mrs Ferreira who argued the appeal on behalf of the State pointed out
that there were no other fights or altercations in the
vicinity other
than those involving the Appellant. After he initially left the
premises, the bystanders continued to play soccer.
The Appellant was
the only person who had a reason to be angry or upset with the
deceased.
[11]
The dicta in
R v Blom
1939 AD 188
at 202 – 203 regarding the approach to
circumstantial evidence is well known. It may be summarised in the
following manner:
“
The
Court cannot convict an accused unless, on the proved facts, the
inference of guilt is not alone a reasonable inference, but
is the
only reasonable inference.”
[See
R v Sole
2004 (2) SACR 599
(Les) at 666 h - i]
[12]
We are satisfied that the only reasonable inference to be made on all
the available evidence is that it was indeed the Appellant
who
fatally stabbed the deceased. On the day in question and prior to the
stabbing, the fight between the Appellant and Moeketsi,
and the
intervention from the deceased, was the only altercation. There is no
evidence that the group of people fought amongst
themselves or with
any other person. The Appellant was seen talking to the deceased near
the saloon, shortly before the deceased
emerged from the saloon
bleeding. If the Appellant is indeed innocent, why did he return
alone to the premises that he had just
fled from pursuant to an
assault?
[13]
The appeal against the conviction cannot be sustained and should be
dismissed.
[14]
The Appellant was convicted of an offence that falls within the
realms of the minimum sentencing regime. A minimum sentence
of 15
years imprisonment should be imposed unless substantial and
compelling circumstances are found to exist. The trial court
properly
considered all the available mitigating and aggravating circumstances
and concluded that substantial and compelling circumstances
indeed
exist. These are: the Appellant spent almost two years in custody
pending the finalization of the trial; he was only 21
years old at
the time of commission of the offence; there was a fight between the
Appellant and the deceased prior to the fatal
stabbing. The
magistrate took all the circumstances surrounding the particular
offence into account and decided that a term of
12 years imprisonment
is appropriate in the circumstances.
[15]
Mrs Smith for the Appellant put on record that she cannot argue that
the sentence is not in order. Her concession is appropriate
and
appreciated. The Appellant has been found guilty of a very serious
offence; the type of offence that is rife in our country.
His conduct
in returning to the scene after the fight in order to stab the
deceased was unnecessary. The attack on himself had
ended and he had
managed to safely flee the scene. The deceased’s intervention
earlier was in any event not such as to provide
an acceptable reason
or motive for the Appellant to end his life. The Appellant clearly
had no regard to the value of the deceased’s
life. He
considered revenge for his own humiliation at coming off second best
in a fight as more important.
[16]
There is no basis on which we should interfere with the sentence. The
sentence is not grossly disproportionate to the crime
and the trial
court took proper account of all relevant mitigating and aggravating
factors. The appeal against sentence should
therefore also fail.
[17]
In the result the appeal against conviction and sentence is
dismissed.
_________________
G.J.M.
WRIGHT, AJ
I
concur
_________________
M.B.
MOLEMELA, J
On
behalf of appellant: Mr K Pretorius
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
(REF:
K PRETORIUS/pl/x393614012)
On
behalf of respondent: Adv M. Lencoe
Instructed
by:
Office
of the Director of Public
Prosecutions
BLOEMFONTEIN