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[2014] ZAFSHC 149
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Makau v S (A106/2014) [2014] ZAFSHC 149 (28 August 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No: A106/2014
In
the matter between:
JOHN
DINTOE
MAKAU
..........................................................................................................
Appellant
and
THE
STATE
.............................................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
JORDAAN, J
et
WRIGHT, AJ
JUDGMENT
BY
: JORDAAN, J
DELIVERED
ON
: 28 AUGUST 2014
[1]
The appellant, as accused number 3, stood trial in this division
together with two other accused. They were charged with
robbery
with aggravating circumstances as well as murder.
[2]
After a full trial, the 3 accused, including the appellant, were
convicted on both counts and the appellant was sentenced, on
the
charge of robbery with aggravating circumstances to 15 years
imprisonment and on the charge of murder to life imprisonment.
Both sentences were imposed in terms of the provisions of section 51
of Act 105 of 1997, providing for minimum sentences.
The court
a quo
found no substantial or compelling circumstances justifying a
deviation from the prescribed minimum sentences.
[3]
As far as the convictions are concerned the appeal centres around the
question whether the trial court was correct in accepting
the
evidence of the single eye witness, one Sewelo, and convicting the
accused on the strength of such evidence. More particularly,
the question arose as to the reliability of his observations made at
the time and his identification of the accused, including
the
appellant.
[4]
According to his evidence he looked out of the window of his home
towards where the incident took place and saw the three accused
and a
fourth person, which he did not recognise, busy attacking the
deceased in the street right in front of his house. The
area
was well lit and he could see what happened,
inter
alia
seeing all 4 of the attackers
assaulting the deceased until the deceased was lying on the ground
whereafter they searched his body
and then went off leaving the
deceased lying there. He described the clothes worn by the 3
accused but was not able to describe
the clothes worn by the fourth
attacker. It appeared from the evidence as a whole that his
description of the clothes worn
by the accused was indeed correct and
the said clothes were found with the accused, including the
appellant.
[5]
His evidence was corroborated to a large extent by other evidence,
inter alia
the fact that a cellphone belonging to the victim was found and was
obviously in the possession of the second accused. The
fact
that the deceased’s body was found at the spot where he saw the
attack was also proven by other evidence. The
shoes of the
deceased, which were removed during or after the attack, were also
pointed out by accused number 1 and retrieved.
Most
importantly, the fact that the body of the deceased was found at the
scene of the attack is directly contradictory to the
appellant’s
evidence that the deceased walked away from the scene after the
alleged incident.
[6]
In view of all the above corroborating evidence, Mr Pretorius
responsibly conceded that he did not have any valid grounds to
criticise the finding of the trial court as far as the convictions
were concerned. He was bound to concede that the convictions
cannot be faulted and that the verdicts were correctly pronounced.
[7]
As far as the sentences are concerned, it appeared that the appellant
was a man of 35 years of age who has attained grade 12
scholastically, his wife was deceased and he was suffering from HIV
positive infection. He only did some part-time work previously
and he was in custody awaiting trial for about 15 months. He
had a long and extensive list of previous convictions ranging
from
1990 up to 1998. Three of such convictions concerned theft, two
of housebreaking with intent to steal and theft or robbery
and the
last one a conviction of robbery committed during 1998 for which he
was sentenced to 5 years imprisonment.
[8]
The court
a quo
found that there were insufficient mitigating circumstances to make
any finding that there are substantial and compelling circumstances
justifying a deviation from the prescribed minimum sentence.
There is nothing substantially compelling in the personal
circumstances
of the appellant. The attack on the deceased was
executed by a group of 4 people, acting with a common purpose.
The
deceased was brutally stabbed and murdered by the group including
the appellant. Again, Mr Pretorius on behalf of the appellant
was bound to concede that he cannot fault the finding of the trial
court to the effect that there were insufficient reasons to
deviate
from the prescribed minimum sentence. I respectfully agree with
the trial court’s findings in this regard as
well.
[9]
In the result the appeal against both convictions and sentences
cannot succeed. I am of the view that the appeal against both
convictions and sentences stands to be dismissed.
________________
A.
F. JORDAAN, J
I
concur.
__________________
G.
J. M. WRIGHT, AJ
I
concur.
_________________
M.
H. RAMPAI, AJP
The
appeal against both convictions and sentences are dismissed.
On
behalf of appellant: Mr. K. Pretorius
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. M. Strauss
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN