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[2013] ZAGPPHC 252
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Moraoswi and Another v S (A293/12) [2013] ZAGPPHC 252 (16 August 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT OF
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A293/12
DATE:16/08/2013
CORAM
PHATUDI J, DE VRIES AJ AND LAMPRECHT AJ
In
the matter between:
DOCTOR
ALFRED
MORAOSW
........................................................
1ST
APPELLANT
LESIBA
DICK
MATSILELA
….............................................................
2nd
APPELLANT
and
THE
STATE
............................................................................................
RESPONDENT
JUDGMENT
A.
DEVRIES AJ
1.
This matter comes before us with leave of the Court a quo Pretorius
J. The 1st Appellant was accused number two and the 2nd Appellant
accused number one in the trial.
2.
On the 5th of March 2008 the Appellants were found guilty on the
following counts:
2.1.
Murder;
2.2.
Assault with intent to do grievous bodily harm;
2.3.
Robbery with aggravating circumstances.
3.
The accused were found not guilty on count four, attempted theft,
count five, a contravention of Section 3 of Act 60 of 2000
and count
six, a contravention of Section 90 of Act 60 of 2000.
4.
After having admitted their previous convictions and after having
heard argument in mitigation of sentence, the Court sentenced
the
accused to the following:
4.1.
On count one - 30 years imprisonment;
4.2.
On count two - 2 years imprisonment;
4.3.
On count three - 15 years imprisonment;
4.4.
On count five - 2 years imprisonment;
4.5.
On count six - 1 years imprisonment;
5.
The sentences imposed in respect of counts five and six are a
nullity, sentences having been imposed in respect of offences on
which the accused had been acquitted. These fall to be set aside.
AD CONVICTION:
6.
it was submitted on behalf of the accused that they should not have
been found guilty of assault with intent to do grievous bodily
harm
on the basis that the assaults took place during the course of the
robbery, and that this therefore amounted to a duplication
of
charges.
7.
It was further submitted that apart from this technical point, that
the accused should not have been convicted on the balance
of the
charges on the following basis:
7.1.
That the identification by Mrs. Van Deventer was a dock
identification and that no identity parade had been held;
7.2.
That no plaster casts had been made of the imprints of their
footsteps;
7.3.
That the accused had been arrested 12 kilometres away from the motor
vehicles, and that it was improbable that they could have
done so
without showing soiled shoes and the effects of tiredness after
travelling such a long distance on foot;
7.4.
That it was to be doubted that the accused had been found in
possession of comparatively worthless property as opposed to the
valuable
items left at the cars, in effect submitting that the evidence by the
arresting officer in this regard was false.
7.5.
That no fingerprints had been found at the scene;
7.6.
That there was no blood found on the Appellants clothes;
7.7.
The fact that the one was wearing safety boots and the other normal
shoes did not positively tie them to the crimes;
7.8.
That the tracts in similarity could not be evaluated because no
photographs had been taken thereof.
8.
The trial court found that the three police witnesses had been honest
and reliable witnesses, that Mrs. Van Deventer was a honest
and
truthful witness and rejected the evidence given by the accused. The
denial being in possession of a hunting knife and cell
phone by
accused number one, and the keys of Van Deventer by accused number
two, the latter indicating that the keys found were
in fact his own
keys, were rejected as false by the Court I a quo.
9.
Apart from the Court’s findings in regard to credibility the
appellants have the following difficulties on the evidence:
9.1.
The identification of the footprints found at the homestead, the
tracks leading away from the cars and the tracks left by the
Appellants when they were confronted were observed by constable
Engelbrecht, a specialist tracker with some 14 years’
experience.
His observations that the tracks were those of the
Appellants were confirmed by constable Pienaar who according to his
evidence
was also a specialist trained tracker with many years of
experience. The time frame within which the comparisons were done was
within hours. Despite the criticism of Appellants’ counsel of
the fact that casts were not made nor were photographs taken
of the
foot prints, the circumstances were such that there was little or no
chance of an error in identification.
9.2.
Although the identification by Mrs. Van Deventer was a dock
identification this is not a case where the witness was unable
to
identify the accused at the identity parade but later pointed them
out in the dock. The evidence was that due to her injuries
and mental
state she was unable to participate in such a parade shortly after
the incident. The Court a quo in any event treated
her evidence with
caution and considered it in the light of other corroborating
evidence.
9.3.
The distance from the scene of the crime where the appellants were
found (12 km) is not so great that they could not have travelled
that
distance on foot. The deceased and Mrs. Van Deventer were attacked at
18:30. Some distance had been travelled in the vehicles.
The
appellants were found some time after 03:30 of the following morning.
9.4.
No reasonable possible explanation for the appellants being found in
possession of the property of deceased and Mrs. Van Deventer
(comprising of cell phones and a driver’s licence) other than
the police had planted these items on them exists. This was
never put
to the state witnesses.
9.5.
The other points raised in the Appellants Heads as set out in
paragraphs 7.5 and 7.6 supra were not argued nor persevered with
during the appeal. Correctly so as the absence of blood or
fingerprints against the other evidence add little to cast doubt on
the guilt of the Appellants.
9.6
All of the evidence considered together establishes the guilt of the
appellants beyond reasonable doubt. (S V Mkhabela 1984
(1) S/4 556 A;
R v Dhllumayo and Another
1948 (2) SA 677
A; S v Francis
1991 (1)
SACR 198
A; S v Hadebe and Others
1997 (2) SACR 641
SCA.)
AD SENTENCE:
10.
In view of the error made by the Court a quo, the only aspects of
sentence which are germane to the appeal are, the 30 year
imprisonment sentence handed down in respect of murder, the 2 year
imprisonment sentence in respect of assault with intent to do
grievous bodily harm, and 15 years in respect of robbery.
11.
The Court a quo found that the ages of the accused were substantial
and compelling circumstances leading to the imposition of
a 30 year
jail sentence in respect of count one, instead of life imprisonment.
Having imposed a lighter sentence, in respect of
murder, then is
called for in terms of the appropriate legislation, the sentences do
not induce a sense of shock entitling the
Court of Appeal to
interfere therewith. S v Mafgas
2001 (1) SACR 469.
12.
I would make the following order:
12.1.
The Appeal in respect of conviction is dismissed;
12.2.
The Appeal in respect of sentence succeeds in respect of counts five
and six only, these sentences having been erroneously
imposed as set
out herein before.
12.3.
The Appeal against the imposition of 30 years imprisonment on murder,
2 years imprisonment on assault with intent to do grievous
bodily
harm, and of 15 years in respect of robbery is dismissed.
DE
VRIES AJ
AJ
ACTING JUDGE OF THE HIGH COURT, RETOR1A
I
agree
AML
PHATUDI J
JUDGE
OF THE HIGH COURT, PRETORIA
I
agree
LAMPRECHT AJ
ACTING
JUDGE OF THE HIGH COURT, PRETORIA
Representation
for the Appellants
Counsel
Instructed
by Attorneys:
Representation
for Respondents
Counsel
Instructed
by