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[2014] ZAFSHC 215
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Mafoyane and Others v S (A92/14) [2014] ZAFSHC 215 (14 November 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: A92/14
In
the matter between:-
PULE
JOHN MAFOYANE
…..............................................................................
1
st
Appellant
JEFREY
SINDEPHI MAZETE
…......................................................................
2
nd
Appellant
BOITUMELO
SYLVESTER
MAKOKO
............................................................
3
rd
Appellant
and
THE
STATE
….......................................................................................................
Respondent
CORAM:
MOLEMELA, J
et
TSATSI, AJ
JUDGMENT
BY:
TSATSI,
AJ
HEARD
ON:
11
AUGUST 2014
DELIVERED
ON:
14
NOVEMBER 2014
INTRODUCTION
[1]
This is an appeal against the conviction and sentence of the Regional
Court, Welkom. The appellants together with two co-accused
were
charged with murder and attempted murder respectively.
The appellants were convicted on the murder charge and
were sentenced
to life imprisonment. They were found not guilty and discharged of
attempted murder. The third appellant was, however,
convicted of
assault with intent to do grievous bodily harm and was sentenced to
two years imprisonment. The three appellants’
former
co-accused were discharged by the trial court in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
. The appeal against the
three appellants’ conviction and sentence are with leave of
this court. The regional court found
no substantial and compelling
circumstances that warranted a sentence less than the prescribed
sentence of life imprisonment.
[2]
The submission on behalf of the appellant was that the court a quo
erred in finding no substantial and compelling circumstances
in the
case of the appellant. The respondent supported the conviction and
sentences imposed on the appellants.
[3]
The events giving rise to the charges upon which the appellants were
convicted and sentenced are summarized thus: On 31
December
2012 Moeketsi Ezekiel Polori (“Polori”) went to the tuck
shop to buy cigarettes. He was accompanied
by his brother (“the
deceased”), and one Neo. Whilst the deceased was making
the purchase, the complainant, met
with his sister Martha and
Martha’s friend. Polori hugged them and wished them a
happy new year. As he hugged
them he felt a blow behind his
neck, because someone hit him at the back. He was corroborated in
this regard by his sister Martha
Mabele who also testified that the
lighting was good and she could see clearly at the tuck shop and
surroundings. As he turned
around he found himself surrounded
by one Whitey and appellants one and two.
[4] As Polori looked on
he saw one Tablet and the third appellant. They had knives on them.
Tablet was the closest to Polori.
Tablet pulled out a knife.
Polori saw appellants one, two and Whitey stabbing the deceased.
The third appellant and
Tablet went to the crime scene where the
deceased was stabbed. Polori tried to go past them, at which
stage the third appellant
stabbed him under his armpit.
[5]
Polori noticed that the deceased was surrounded by a group of
people who kicked and stabbed the deceased with knives.
Polori
picked up stones and threw same at the said group of people,
whereupon the first and third appellants as well as Whitey
chased
after him until he reached his home. Once the people dispersed,
Polori went to have a look at the deceased and discovered
that he had
passed away. Polori identified all three appellants. He knew
all the three appellants very well before the incident
in question.
[6]
Under cross-examination he testified that there was no animosity
between him, the first and second appellants but there was
“bad
blood” between him and the third appellant. Some of the
problems ensued way back when the third appellant
wanted Polori to
buy him a drink. The incident that took place on 31 December
2012 was directly linked to what occurred between
him (Polori) and
the third appellant previously between Christmas and New Year of the
same year in an incident in which he (Polori)
ended up stabbing the
third appellant with a screwdriver. The reason for the fight
between the third appellant and Polori
emanated from the fact that
third appellant was a member of a gang. The way the gang
operated was that if anyone fought
with one member of this
gang, then the whole gang would go after that person. The first,
second and third appellants belonged to
the same gang. He knew that
the deceased, who was his brother, together with appellants’
former two accused were members
of another gang.
[7]
One of the state witnesses was Anna Makole who lived near the
tuck-shop where the incident happened. At the time of the
incident she was sitting on the veranda in front of her house. It was
about 22h00. She saw Katie and the deceased at the shop.
She then saw
boys who were armed with knives. These boys went straight to Polori.
The next thing she saw Polori falling on the
ground. She
screamed and shouted, “Wat maak julle?” Polori
stood up and ran away. The said boys ran
after him and chased
him up to his house. The boys came back and joined a group of people
who surrounded the deceased and attacked
him. Appellants one,
three and Whitey were part of the group. She testified that both
appellants one and three grew up in
front of her and she knew them
well. She testified that she had not observed whether the second
appellant was part of that group.
[8]
Anna Makole further testified under cross-examination that she knew
the third appellant, Whitey and Polori from Mahlakeng.
She further
testified that after the deceased was stabbed, he fell on the
ground. The deceased tried to rise up but fell
again. She
further said that she witnessed Polori bleeding after he was stabbed.
[9]
Martha Mabele, in addition to her evidence where she corroborated
Polori as indicated above, she testified
that her brother Polori was
in the company of the deceased and a cousin’s child. While the
deceased was waiting to be served
at the window of the tuck-shop,
Polori went to her, embraced her and wished her a happy new year.
All of a sudden a group
of people approached them, shouting that they
must leave. She ran away from the scene and then stood aside so as to
see what was
going on. She noticed that the deceased was being
attacked by members of that group. As she was terrified, she managed
to identify
only one of the deceased’s attackers, namely
Tablet. She ran home and did not witness the attack on Polori.
[10]
She added that she went home and told her mother about the incident.
Both Martha and her mother stood next to the gate, where
they saw
Polori running towards the house while being pursued by his
assailants. Martha Mabele’s testimony was not shaken
under
cross examination.
[11]
The first appellant testified as follows:
He
denied that he was at the scene of the crime on the day when the
incident happened. He alleged that he was in a tavern called
Bone
Shaka around 18h00. The police arrested him between 21h00 and 22h00
on 31 December 2012. He also denied that he was
a member of the
same gang as the second appellant. He was in the same gang as
the deceased. He knew nothing about the
deceased’s
murder. He denied that he stabbed the deceased with a knife. Under
cross examination he testified that the
police told him at the police
station that he was arrested for the murder of Maruping, the
deceased. The first appellant’s
evidence was disputed by the
prosecutor, when the latter told the first appellant that he was
arrested on 2 January 2013, not 31
December 2012 as previously
alleged by the first appellant. The prosecutor told the first
appellant that he was trying to mislead
the court.
[12]
The first appellant told the court that he did not understand why
Anna Makole and Martha Mabele told the court that they saw
him at the
crime scene. The first appellant further testified that he and
his deceased friend owed Anna Makole, the second
state witness money.
Ms Makole opened a case against the first appellant and his deceased
friend. The first appellant told the
court that Ms Makole was told
that she could not lend money to the first appellant and his
deceased friend at the same time
charge ineptest on it. It is
not clear from the record who told the first appellant all this. It
seems as if the first appellant
was referring to the same authorities
to whom Ms Makole reported the matter to. According to the first
appellant Ms Makole threatened
the first appellant and his deceased
friend. She told them that she was going to get them, meaning
that she was going to
avenge herself one way or the other. The
first appellant knew Anna Makole from 2001, which was more than ten
years.
[13]
The first appellant further stated under cross-examination that
Polori’s brother was married to the first appellant’s
niece. He testified that he was a member of a criminal gang
called 28: He stated that the deceased was the member of gang
28
also. The first appellant denied that he knew Tablet.
[14]
The second appellant denied that he was at the scene of the crime. He
testified that he never left his parental home on 31
December 2012.
He testified that he was at his parental home when the deceased was
murdered. He denied that he was in the
same gang as the first
appellant. He testified that he was in a different gang. He
told the court that the police came to
his house and asked him about
Polori. Under cross-examination he could not explain why he
decided to stay at home on 31 December,
the day when people enjoyed
themselves.
[15]
Under cross-examination the second appellant testified that he was
not acquainted with Polori but knew him from long ago.
The
reason why he did not go out on 31 December 2012 was because he did
not have money to enjoy himself. He denied that Polori
saw him
at the crime scene. He added that since Polori himself
testified that everything happened so fast and in a matter
of
seconds, therefore it would not have been possible for him to see the
second appellant. He pointed out that Polori
could not
describe the clothes that he was wearing on the night in
question and suggested that there was a possibility
that Polori
confused him with somebody else. He denied that he assaulted
Polori.
[16]
The third appellant also denied that he was at the scene of the crime
on 31 December 2012. The third appellant testified
that there
was bad blood between him and Polori. As a result the third
appellant and his other friends assaulted Polori.
None of the
appellants were involved in that fight. Those friends were all in
jail at the time of the incident. Polori then
retaliated and stabbed
the third appellant in the right eye and robbed him. All this
happened before the incident in question.
He denied that
he stabbed Polori under his armpit.
[17]
Under cross-examination the third appellant denied that he was
a member of a gang. He testified that he had a tattoo
of Humble
Africa gang. He testified that he knew Polori from prison but
did not know him that well. He told the
court that the
stab wound under Polori’s armpit was from a previous
altercation with Polori and not from the events of 31
December 2012.
He could not furnish a plausible reason why this was not put to
Polori that, Polori misled the court by saying
that the third
appellant stabbed him under the armpit on 31 December 2012.
[18]
The third appellant further testified that he knew Anna Makole very
well and they lived in the same area. However he
denied that
Anna Makole saw him at the crime scene as he was not there.
[19]
The
crux
of this matter is whether or not the learned magistrate misdirected
himself when he found that the state had proven its case beyond
reasonable doubt. The other issue is whether or not the magistrate
erred in finding that there were no substantial and compelling
circumstances when sentencing the appellants as envisaged by
section
51
of the
Criminal Law Amendment Act 105 of 1997
.
[20]
It was submitted on behalf of the appellants that the conviction was
bad in law and against the weight of evidence. It
was further
submitted that the sentence was excessive in the circumstances.
The appellants contended that they were wrongly
convicted as they had
nothing to do with the murder of the deceased at all on 31 December
2012. It was submitted on behalf
of the appellants that the
court
a quo
erred in finding no substantial and compelling circumstances in the
case of the appellants.
[21]
Submissions on behalf of the respondent were that the imposed
sentence was fully supported. The sentencing discretion lies
primarily with the trial court. It is the duty of the trial
court to determine which factors will influence the sentence
(
S
v Kibido
1998 (2) SACR 207
(SCA) at 216g – h. Counsel
for the respondent stated in his heads of argument that by referring
to the judgment if
S v Ntuli
2003 (1) SACR 613
(W
),
counsel for the appellants indirectly conceded, correctly, so that
the trial court was correct in convicting the appellants.
[22]
In
S v Mthethwa
1972 (3) SA 766
(A) at 766 at 768 A-C
Holmes JA
said the following regarding the testimony of identifying witnesses:
“Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It is not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends
on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation,
both as to time and
situation, the extent of his prior knowledge of the accused, the
mobility of the scene; corroboration; suggestibility,
the accused
face, voice, build, gait, and dress; the result of identification
parades, if any; and of course the evidence by or
on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case, are
not individually
decisive, but must be weighed one against the other, in the light of
the evidence, and the probabilities”.
[23]
The appellants were convicted of murder on the basis of having acted
with common purpose. It is trite that the doctrine of
common purpose
in the case of murder is the following: where a number of
persons have a common purpose to commit a crime
and they assist one
another in the commission of that crime, all are guilty of murder if
someone is killed in the process, and
if one had intent to kill
whether the conduct of each is causally connected with the victim’s
death is not considered (
S v
Khambule and Others 2
001
(3) All SA 274
(A). The reason why the requirement of causality
is not set for the culpability of each participant in the commission
of
the crime is because the actions of the participants are imputed
to one another on the ground of the common purpose. This was
confirmed
in
S v Sefatsa
[1987] ZASCA 150
;
1988 4 All SA 239
(A), Where it was held that active association was
sufficient to sustain a conviction of murder.
[24]
If the state relies on common purpose it must prove beyond reasonable
doubt that each accused person had the requisite
mens
rea
concerning the unlawful outcome at
the time of when the offence was committed. The accused must
have foreseen the possibility
of the criminal result ensuing and
nonetheless actively associated himself or herself recklessly as to
whether the result was to
ensue.
(
R
v Blom
1939 (AD) 188at 202 - 203).
Based on the evidence placed before us and submissions made, I am
satisfied that the conduct
of the appellants complied with the
requirements of common purpose.
[25]
I am of the view that the conviction is in order. The appellants
have in my view failed to establish that the magistrate erred
in
finding the identification of them by the two state witnesses to be
correct. Three
witnesses, Polori,
Anna Makole and Martha corroborated each other on the lighting at the
scene. All of the state witnesses
testified that the tuck
shop was well-lit. This lighting facilitated a positive
identification. Both Polori and Anna Makole identified
people that
were well-known to them. Although the third appellants suggested that
Polori might have falsely implicated him due
to a grudge that he held
against him, there was no plausible explanation why Anna Makole would
falsely implicate them. She knew
and identified first appellant,
third appellant and Whitey. She was honest enough to readily indicate
that she did not know the
other persons. Her evidence bore no
contradictions. It was clear that she was an honest and reliable
witness and the trial court
correctly accepted that she had made a
positive and reliable identification. Polori’s evidence also
bore no contradictions.
He readily related the prior incident between
him and third appellant. He readily stated that the appellants’
co-accused
(who were subsequently acquitted), were not present at the
scene. He did not try to falsely implicate them. He also readily
mentioned
that his brother, the deceased, also belonged to a gang and
did not try to hide this from the court. He was an honest and
reliable
witness. He decided to tell the truth. His evidence
about what happened at the scene is largely corroborated by two
witnesses.
He positively identified appellant one, two and three, who
were well known to him before the incident. His identification of
appellants
one and three was corroborated by Anna Makole. The
contradictions between his evidence and that of Martha Mabele were
not material.
[26]
Anna Makole
corroborated Polori’s testimony and told the court that the
area where the incident occurred was properly lit.
A person could
easily identify another. Anna Makole identified appellants one, three
and one Whitey. She testified that she knew
them as children who grew
up in her area of residence. The identification of the appellants by
the two state witnesses passed muster
when measured against the
well-known cautionary approach in
S
v Mthethwa (supra)
.
[27]
There is no merit in the appeal against
conviction. The appellants’ version that they were not at
the crime scene on
31 December 2012 when the deceased was murdered
and Polori stabbed is not reasonably possibly true. The appellants
had a motive
to murder the deceased and stab the complainant as these
fights were criminal gang related. The appellants knew Polori before
the
incident in question and there was “bad blood”
between the appellants, Polori and the deceased. Allegations that the
appellants were at the crime scene were reasonably possibly true.
[28]
The first appellant testified that he was at another Tavern between
21h00 and 22h00, where the police arrested him over the
death of the
deceased. The learned magistrate rightly indicated that it was
highly unlikely that the police would arrest
the first appellant for
the murder that had not yet occurred. He further stated that the
first appellant was with his friend when
he was arrested. Despite
this, the first appellant did not have the courage to call the said
friend as a witness. Therefore it
was the learned magistrate’s
view that the first appellant’s evidence weighed against that
of the state witnesses should
be rejected. As regards appellant
number two he raised an alibi defence. He told the court that he was
at home on the night
of the incident. He failed to call any witnesses
to corroborate his version. The learned magistrate correctly rejected
appellant
number two’s evidence as false. Appellant number
three also raised an alibi defence. He alleged that he was at his
home on
the day of the incident. He too failed to call any witnesses
to corroborate his evidence. The learned magistrate correctly
rejected
his evidence as false.
[29]
I am of the view that the
court
correctly rejected their versions as false beyond reasonable doubt
and correctly found that the state had discharged the onus
of proving
their guilt beyond reasonable doubt.
Based
on the evidence and the findings of the court below, I am satisfied
that the appellants’ convictions must stand and
the appeal
against the convictions fail.
[30]
Regarding sentence it was stated in
S
v Banda and Others
1991 (2) SA 352
(BGD) at 355A – D that: “The elements of the triad
contain an equilibrium and a tension. A court should, when
determining sentence, strive to accomplish and arrive at a judicious
counterbalance between these elements in order to ensure that
one
element is not unduly accentuated at the expense of and exclusion of
the others. This is not merely a formula, not a
judicial
incantation the mere stating whereof satisfies the requirements.
What is necessary is that the court shall consider,
and try and
balance evenly, the nature and circumstances of the offence, the
characteristics of the offender and his circumstances
and the impact
of the crime on the community, its welfare and concern. This
conception as expounded by the courts is sound
and incompatible with
anything less”.
[31]
In
S v Vilakazi
2009 (1) SACR 522
(SCA), para 15 the Supreme Court of Appeal per
Nugent JA dealt with the question determining of whether there
are substantial
and compelling circumstances as follows:
“
It
is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon consideration of all the
circumstances
of the particular case, whether the prescribed sentence
is indeed proportionate to the offence.”
[32]
The court further remarked as follows regarding personal
circumstances of an accused person:
“
Once
it becomes clear that the crime is deserving of a substantial period
of imprisonment the questions whether the accused is married
or
single, whether he has two children or three whether or not he is in
employment, are in themselves largely immaterial to what
that period
should be and those seems to be kind of flimsy grounds that Malgas
said should be avoided.”
[33]
Regarding the appeal against sentence, the sentencing discretion lies
primarily with the trial court. There is also no
merit in the
appeal against sentence. A court of appeal will be entitled to
interfere with the sentence imposed by the trial court
if the
sentence imposed by the trial court was not of proportion to
the seriousness of the offence or was vitiated by a misdirection
showing that the trial court exercised its discretion unreasonably (
S
v Romer
2011 (2) SACR 153
(SCA),
paragraph 22. I am satisfied that the court
a
quo
struck a balance between the
personal circumstances of the appellants and the present sentence.
Both mitigating and aggravating
factors of the appellants were taken
into account.
[34]
The offence the appellants were convicted of, warrants in terms of
the
Criminal Law Amendment Act, No 105 of 1997
, a minimum
sentence of life imprisonment, unless it can be shown that there are
factors which amounts to substantial and
compelling circumstances
justifying the court to deviate from imposing such a sentence.
[35]
The first appellant’s mitigating factors as presented in court
were that he was 25 years old at the time of the offences.
He
was self-employed and earned R280.00 per week before his arrest.
He was not married and he had a seven year old child.
He passed
grade 10. He had been in custody for the period of ten months
awaiting finalisation of the matter. He is
not a first time
offender as he had two previous convictions.
[36]
The mitigating factors of the second appellant as presented in court
were that he was 27 years old; employed by a construction
company and
he earned R1 850.00 per month. He passed standard 10, not
married and had no children. He has been
in custody for the
period of ten months awaiting finalisation of the matter. He
had one previous conviction.
[37]
The third appellant’s mitigating factors as presented in court
were that he was 24 years old, unemployed, not married
and had three
dependents. He passed grade 10 and has been in custody for the
period of ten months awaiting finalisation of
the matter. He
had no previous convictions.
[38]
Regarding aggravating circumstances, the appellants did not show any
remorse. When an accused person shows genuine remorse,
this
must be reflected in the sentence imposed by the court. Murder is a
serious offence and the court has to send out a clear
message to
would–be perpetrators that unlawful killing of another human
being will not be tolerated. The community
must be protected
against criminal gangs’ attacks. Counsel for the respondent
referred us to the case of
S v Jiminez
2003 (1) SACR
507
(SCA) at 522 f,
Olivier JA quoting with approval
S v
Lister
1993 (2) SACR 228
(A)
said the following:
“To focus
on the wellbeing of the accused at the expense of other aims of
sentencing such as the interest of the community,
is to distort the
process and to produce in all likelihood, a warped sentence”.
[39]
The appellants failed to meaningfully challenge the evidence of the
two state witnesses but opted to deny their involvement
in the murder
of the deceased and the assault of Polori. I am satisfied that the
trial magistrate was correct in finding that there
were no
substantial and compelling circumstances. The appellants have
been convicted of very serious offences and deserve
a sentence of
direct imprisonment. Communities have to be protected against
criminal gang violence. Having regard to all the relevant
factors, I
am of the considered view that the sentences imposed on all the
appellants are appropriate under the circumstances.
The appeal
against conviction and sentence was devoid of any merit and
should be dismissed.
ORDER
[40]
In the result, the following order is made:
40.1
The appeal against the conviction is dismissed and the conviction is
confirmed.
40.2
The appeal against sentence in respect of all the appellants is
dismissed.
40.3
The sentences imposed by the court
a quo
are confirmed, including the two years sentence
against the third appellant; the latter sentence is to run
concurrently
with the life imprisonment sentence.
______________
E.
K. TSATSI, AJ
I
agree.
_________________
M.B.
MOLEMELA, J
On
behalf of appellants: L. Tshabalala
Instructed
by:
Justice
Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. D.W. Bontes
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN