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[2006] ZASCA 113
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S v Monyane and Others (160/01) [2006] ZASCA 113; [2006] SCA 141 (RSA) ; 2008 (1) SACR 543 (SCA) (23 November 2006)
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REPUBLIC
OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case Number : 160 / 01
In the matter between
PIET STORK MONYANE FIRST APPELLANT
SIMON
NTOHROANE MOKOENA SECOND APPELLANT
WONDER
SIDNEY MTSHIXA THIRD APPELLANT
PIETER
NTSIZWA MOKOENA FOURTH APPELLANT
and
THE STATE RESPONDENT
Coram
: BRAND, LEWIS et PONNAN JJA
Date of hearing
: 14 NOVEMBER 2006
Date of delivery
: 23 NOVEMBER 2006
SUMMARY
Appeal â generally â evaluation of evidence and
trial court's findings.
Sentence â power of court on appeal to interfere.
Neutral citation: This judgment may be referred to
as
Monyane and Others v The State
[2006] SCA 141
(RSA)
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
PONNAN JA
[1] The present three appellants were convicted in the Pretoria High
Court (Borchers J, sitting with assessors) on two counts of
murder.
The fourth, the erstwhile first appellant, who has since died (I will
continue for convenience to refer to him as the first
appellant), was
in addition to those two charges also convicted of contraventions of
the Arms and Ammunitions Act 75 of 1969. Each
was sentenced to
imprisonment for a term of 25 years in respect of each of the murder
counts. Ten years of the sentence in respect
of the second count
were ordered to run concurrently with the sentence on the first in
respect of the second and fourth appellants,
and 12 years of the
sentence on the second count was ordered to run concurrently with the
first in respect of the third appellant.
The effective sentence was
thus 40 years in respect of the former two and 38 years in respect of
the latter. They appeal, with
leave of the learned trial judge,
against those convictions as well as the sentences imposed pursuant
thereto.
[2] At
approximately 5.05 pm on 6 June 1995, Mr Isaac Hlope was seated at
the front door of his property, Plot 1 Linkholm, in Vanderbijlpark
when he observed a white Toyota Corolla. The vehicle appeared to
stall. The occupants, all men, who alighted from the vehicle,
succeeded in restarting it. The vehicle travelled approximately 100
metres before coming to a halt in front of his gate. Once again,
the
occupants of the vehicle succeeded in restarting it. The vehicle then
drove off in the direction of Plot 26. Thirty minutes later
Hlope
noticed the vehicle once again. This time it drove past his house in
the opposite direction.
[3] The
movements of that vehicle and its occupants during the intervening
thirty minutes is to be found in the evidence of Agnes
Tsoletsi and
Anna Ramoletse. Agnes was making her way on foot in the company of
12 year old Anna to Plot 26, the home of Jacobus
Frederick Pieter van
Zyl and his wife Carolina, to purchase paraffin, when they noticed
three men. Those three men preceded Agnes
and Anna onto Plot 26.
Agnes remained at the gate whilst Anna made her way with an empty
container and cash to the Van Zyl's kitchen
door to acquire the
paraffin. On her way to the kitchen door Anna passed one of the
three men who had positioned himself about 32
paces from the gate.
Although she took no particular notice of him she observed, as she
later testified, that he was tall and light-skinned.
From her
vantage point, the other two men were no longer visible to Agnes.
She thus assumed that they had entered the house. She
did, however,
have ample opportunity to observe the person who had remained
outside. He was, according to her, dressed in a pair
of red trousers
and a skipper.
[4] As
Anna approached the kitchen door she noticed a second person whom she
described as a short, dark man. According to her, he
had concealed
himself so that he was not visible to Van Zyl. Van Zyl was then
standing in the alcove of the kitchen door. The short,
dark man
advanced stealthily on Van Zyl who was then engaged in a conversation
with the third of the group. What followed happened
very quickly.
The short, dark man produced a firearm and shot Van Zyl. Overcome by
fear, Anna ran back to the gate where, without
any explanation, she
discarded the empty container and money and fled in the direction of
her home. After retrieving the container
and money, Agnes, believing
that Anna had been unable to acquire the paraffin at the Van Zyls,
made her way to Hlope's place with
the intention of purchasing the
paraffin there. On her way she was passed by the three men. She saw
them approach a white sedan
which was parked under some trees. As
they approached the vehicle she heard them say 'Start! Start!'.
[5] It
must have been at about that stage when Susanna Nel received a
telephone call from her brother, Van Zyl. It was then 5.30
pm. She
was able to fix the time with such precision by reference to a TV
programme that had just commenced, which she viewed on
a daily basis.
[6] Ben
Mokwoena, who lived in between the homes of Isaac Hlope and the Van
Zyl's, at Plot 20, was with one Nathaniel when he observed
a
stationary white vehicle. Three men, one of whom was wearing a pair
of red trousers, came running from Plot 26. As they ran past
him and
approached the vehicle they shouted 'Start! Start!'. The driver was
unable to start the vehicle which had to be pushed before
the engine
ignited. The three men boarded the vehicle, which then drove off.
[7] Inspector
Steyn was at his home, which is fairly close to Linkholm, when he
received a report over his radio. In consequence
of that report he
drove to Linkholm. On his way he observed a white Toyota Corolla
parked alongside the road. Three men were standing
behind the
vehicle. He took little notice of them and continued on his journey.
About 100 metres from Plot 26 he received a report
which caused him
to turn his vehicle around. When he returned to the white Toyota
Corolla some ten minutes later the vehicle was
abandoned and its
occupants had disappeared. He secured the vehicle which later had to
be towed to the police station because its
starter mechanism was
damaged.
[8] Sergeant
du Toit, a fingerprint expert, who examined the white Toyota Corolla
at the police station, found certain prints on the
bonnet of the
vehicle as also on a beer bottle under the front passenger seat and
the rear view mirror of the vehicle. All of those
prints, according
to him, were no older than two days.
[9] Ms van
Zyl, the deceased in count two, died at the scene as a result of a
gunshot wound. The bullet had entered her body behind
her left ear
and caused injury to her skull and brain. Mr van Zyl, the deceased
on count one, died on 23 June 1995 as a result of
multiple organ
failure in consequence of gunshot wounds sustained by him to his
abdomen on the day of the incident.
[10] It is
obvious that the three men encountered by Agnes and Anna had gone to
Plot 26 for some nefarious purpose. They had been
conveyed there by
a fourth person, the driver of the white Toyota Corolla. The
light-skinned person in the red trousers had positioned
himself as a
sentry. It was his duty it would appear, to serve as a lookout.
Whilst the third member of the group had engaged Van
Zyl in a
conversation the short, dark-skinned person had initially concealed
himself and thereafter with his firearm at the ready
stealthily
approached the doorway. The trio then fled as one, but not before
both deceased had been dealt fatal injuries. At the
ready was the
fourth person, the driver, who had conveyed them to the scene and
thereafter remained in the vehicle to facilitate
a speedy getaway.
He responded to their exhortation to start the vehicle. All four
then sought to make good their escape in the
white Toyota Corolla,
which was ultimately abandoned some one-and-a-half kilometres from
Plot 26 on account of mechanical failure.
[11] On
those facts the inference that the group had acted in concert is
inescapable. The trial court's conclusion to that effect,
it must
follow, cannot be assailed. It thus matters not who fired, in each
instance, the fatal shot. Given the movements of the
vehicle and of
the three men as already alluded to, there was little, if any, time
or opportunity for the composition of the group
to have changed from
the time the vehicle was first spotted by Hlope shortly after 5 pm
until it was abandoned some thirty minutes
later a distance of
approximately one-and-a-half kilometres from the crime scene.
[12] It
follows, on the facts outlined above, all of which were either common
cause or undisputed, that each of those who were proved
to be a
member of that group fell to be convicted of the murders as charged.
The only issue therefore that confronted the trial court
was the
identity of the members of the group. Appellants one, two and three
testified during the trial. The fourth appellant did
not.
[13] All
of the appellants were arrested on 13 July 1995. The next day they
appeared at an identification parade at which Anna identified
the
first appellant and Agnes the third appellant. In addition, it came
to be admitted during the course of the trial that the palm
prints
found on the bonnet of the vehicle and the fingerprint on the beer
bottle inside the vehicle belonged respectively to the
first and
second appellants. Furthermore, it also came to be admitted that the
fourth appellant, whose fingerprint, it should be
added, was found on
the rear view mirror, was the owner of the white Toyota Corolla.
[14] In
short, there was thus incriminating evidence, either direct or
circumstantial, which placed each of the appellants in Linkholm
Park
on the day of the incident. Those of the appellants who testified
denied any involvement in the offences charged. The trial
court
delivered a careful and well-reasoned judgment. The evidence was
fairly and accurately summarised in the judgment. Attention
was
given to the criticisms levelled at the evidence of each of the
witnesses who testified for the State. The evidence of those
witnesses was evaluated in the context of the entire body of
evidence. After a comprehensive review of the evidence the learned
trial
Judge concluded that the evidence against the appellants was so
compelling and the evidence of those appellants who testified so
unimpressive that a conviction on each of the two counts of murder
was justified.
[15] This
court's powers to interfere on appeal with the findings of fact of a
trial court are limited. It has not been suggested
that the trial
court misdirected itself in any respect. In the absence of
demonstrable and material misdirection by the trial court,
its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong
(
S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645e-f).
This, in my view, is certainly not a case in which a thorough reading
of the record leaves me in any doubt as to
the correctness of the
trial court's factual findings. Bearing in mind the advantage that a
trial court has of seeing, hearing and
appraising a witness, it is
only in exceptional cases that this court will be entitled to
interfere with a trial court's evaluation
of oral testimony (
S v
Francis
1991 (1) SACR 198
(A) at 204e).
[16] The
attack on the identifying witnesses is that they had an opportunity
to see appellants one and three in advance when they
were exhibited
to them by the police at the crime scene on the day preceding the
identification parade. Implicit in that rather
bold proposition is
the suggestion that Anna and Agnes who did not know the appellants
and had no quarrel with them had conspired
together with each other
and the police to falsely implicate some of them. That proposition is
so far-fetched and fanciful that it
was rightly rejected by the trial
court. Furthermore, why, it must be asked, did the conspiracy extend
to only two of the four suspects,
each of whom, it must be added, was
identified by a single witness? Surely a conspiracy, if there was
one, would have aspired for
more compelling and cogent incrimination.
[17] The
trial court's primary findings of fact remain undisturbed â as
indeed it must. The inference that each of the appellants
was
knowingly a party to a common purpose to kill the deceased is
inescapable. That being the case it is perhaps unnecessary to discuss
the evidence in any great detail. Ultimately, however, one draws
comfort from the following additional features that the convictions
were indeed justified. First, the evidence of appellant two, far from
detracting from the state case actually bolsters it in certain
material respects. He testified that on what can only be the day in
question he travelled, from a stokvel which had been hosted by
the
first appellant, to his home, in the white Toyota Corolla which was
then driven by the fourth appellant, whom he had met for
the first
time. To get the vehicle started when they left the stokvel at
around 5 pm, the vehicle had to be pushed.
En route
the
vehicle stalled on the Golden Highway. The fourth appellant advised
him that he would get someone to assist to tow the vehicle.
Both of
them parted company. The second appellant made his way across the
street and secured conveyance on a taxi.
[18] His
evidence corroborates the state case not only to the extent that the
vehicle stalled and had to be abandoned at the side
of the road, but
also that the fourth appellant and he were in the vehicle shortly
after 5 pm on the day in question. He lied,
however, in a rather
inept manner as to where the car came to be abandoned. If, according
to him, he was on an innocent sojourn,
it is incomprehensible that
both he and the fourth appellant would simply have abandoned the
vehicle without first attempting to
kick-start it as they had earlier
done. The eagerness of both to put distance between themselves and
the vehicle would only have
manifested itself if they had indeed been
involved, as the state suggests, in the unlawful attack on the
deceased.
[19] Secondly,
somewhat surprisingly the fourth appellant did not testify. The
presence of his vehicle and the evidence of the second
appellant
linked him to the crime scene. In those circumstances, a reasonable
expectation existed that if there was an explanation
consistent with
his innocence, it would have been proffered. He, however, refused to
rise to the challenge. For him to have remained
silent in the face
of the evidence was nothing short of damning (
Osman and Another v
Attorney General, Transvaa
l
[1998] ZACC 14
;
1998 (4) SA 1224
(CC);
1998 (2) SACR
493
(CC);
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) SACR 1
(CC);
S v Thebus and Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (2)
SACR 319
(CC)). Moreover, if indeed the vehicle came to be innocently
abandoned on the Golden Highway as the second appellant testified, it
is surprising that the fourth appellant did not report the vehicle
missing or cause any enquiries to be made to ascertain the
whereabouts
of what, undoubtedly for him, must have been a valuable
asset. Even the most perfunctory enquiry would have revealed that the
vehicle
was in the possession of the police, and if minded to, he
could easily have tracked it down. If innocent, that he did not do so
is
incomprehensible.
[20] Thirdly,
the second and third appellants are friends who live in close
proximity to each other. Both were arrested on 13 July
1995 at the
home of the former. When questioned, at the time of their arrest,
about the white Toyota Corolla they directed the police
to the first
appellant, who, according to them would have known where to find the
fourth appellant, the owner of the vehicle. The
first and third
appellants were positively linked by eye witness testimony to the
scene of the crime. The second and fourth appellants
were linked, by
the evidence of the former as also the finger print evidence and the
latterâs ownership, to the white Toyota Corolla.
The evidence of
several witnesses, as also, its proximity to Plot 26, when found
abandoned, in turn, linked the white Toyota Corolla
to the crime
scene. The four appellants thus came to be linked by disparate pieces
of evidence to the crime scene. That four individuals
who were known
to each other beforehand came to be linked to a crime scene some
distance from their respective homes does more than
merely excite
suspicion: it leads irresistibly, in my view, to the conclusion that
the venture was pre-planned.
[21] Approaching
the matter holistically, as indeed one must, one is bound to conclude
that the totality of the evidences excludes
any doubt about the guilt
of any one of the appellants. It follows that the appeal of the
appellants against their convictions must
therefore fail.
[22] As to
sentence. The learned trial judge did not consider the appellantsâ
crimes to be deserving of the custodial sentence of
the utmost
severity â life imprisonment. Nor, for that matter did she believe
that they should be permanently removed from society.
When sentenced
in 2000 the appellants were in their mid to late twenties. Each had
obtained a level of formal education of between
standards five to
seven. The second appellant, unlike the other two, both of whom had
no dependants, was married with one young
child. He had been
convicted in 1991 of an armed robbery as well as the unlawful
possession of a firearm and ammunition. The fourth
appellant had been
convicted in 1994 of the theft of a motor vehicle and was on parole
when these offences were committed. The third
appellant was the only
one with an unblemished record, a consideration that received
appropriate recognition in the lesser punishment
meted out to him.
All three had spent a period of three years in custody awaiting trial
and each was convicted on the basis of dolus
eventualis, the trial
court having concluded that it was the first appellant who had shot
and killed each of the deceased.
[23] It
has not been suggested that the sentence was vitiated by any
misdirection. The argument advanced on behalf of the appellants
is
that the degree of disparity between the sentence imposed and that
which this court would have imposed is such that interference
is
competent and required. The crucial factor which allows for the
applicability of that approach is the appellate courtâs being
able
to arrive at a definite view as to what sentence it would have
imposed (
S v Matlala
2003 (1) SACR 80
(SCA) para 10). In the
present matter such a view, I believe, can be formed.
[24] By
way of example, in the
Bull
case (see
S v Bull and Another;
S v Chavulla and Others
2001 (2) SACR 681
(SCA)) the two
appellants had been convicted on two counts of murder, one count of
robbery, one count of attempted robbery and one
count each of the
illegal possession of a firearm and ammunition. The charges all arose
out of an attack on a bakery. The appellants
were declared to be
dangerous criminals and each was sentenced to imprisonment for an
indefinite period. In terms of s 286(1)(
b
) the trial court
directed that they again be brought before the court upon the
expiration of a period of 35 years for the reconsideration
of their
sentences. The appellants were a 20-year-old first offender and a
21-year-old with previous convictions but no record of
serious
violence. This court set aside the sentence and imposed in its stead
a sentence of 25 yearsâ imprisonment on each appellant.
[25] In
Matlala
, the appellant had been convicted of murder, robbery
with aggravating circumstances, unlawful possession of a firearm and
ammunition.
He was sentenced to 40 yearsâ, 15 yearsâ, three
yearsâ and one yearsâ imprisonment respectively. The last three
sentences
were ordered to run concurrently with the sentence on the
murder charge. The offences occurred in the course of an armed
robbery.
The appellant and two other men waylaid a shopkeeper as the
latter was preparing to close his store. The shopkeeper who was shot
three times died in hospital some two weeks later. The appellant then
entered the shop carrying a firearm and held up the shopkeeperâs
assistant. He searched the premises for money eventually rifling the
till of the cash register. He was then 25 years of age, the
eldest of
six children, all of whom were dependent on their mother for support.
The appellant had been in temporary employment whilst
at school but
had been unemployed since then.
[26] After
referring to
Bullâs
case Howie JA stated (para 13):
'The
present case is one of considerable gravity and demands a sentence of
a similar order. I deliberately say "of a similar
order"
and not, "the same period" because, while courts, on the
strength of experience and precedent, can closely
enough assess cases
as falling within a particular narrowed down range when a long term
has to be imposed, opinions can, and indeed
do, differ as to
quantification even within that limitation. But it would suffice for
the required "definite view" that
such range can be
determined.â
[27] The
differentiation of two years drawn by the trial court between the
third appellant and the others was fully justified. His
unblemished
record was undoubtedly deserving of greater leniency and warranted
recognition in the determination of an appropriate
sentence. In my
view, the range appropriate to this case that would be fitting
punishment to impose upon the appellants is a sentence
of 30 years'
imprisonment in the case of appellants two and four; and 28 yearsâ
imprisonment in the case of appellant three. Plainly
the difference
between those sentences and that imposed by the trial court is
sufficiently striking as to oblige interference.
[28] One
final aspect requires comment. It does not appear from the record
that the trial judge considered whether leave to appeal
should have
been granted to the full court. In terms of s 315(2)(
a
) of
the
Criminal Procedure Act 51 of 1977
when an application for leave
to appeal in a criminal case heard by a single Judge is granted under
s 316
, the trial Judge shall, if satisfied that the questions of law
and of fact and the other considerations involved in the appeal are
of such a nature that the appeal does not require the attention of
the Supreme Court of Appeal, direct that the appeal be heard by
a
full court. The present appeal is a case in which the trial judge
should have been so satisfied. There were no questions of law
involved; the case raised no question of principle; and there were no
considerations which called for the attention of this court
(
S v
Myaka
1993 (2) SACR 660
(A) at 661i-662b). It frequently happens
that simple appeals have to be heard by this court. In order to
avoid the unnecessary
clogging of the roll of this court with matter
that does not require its attention, it is important that trial
judges should not
overlook the provisions of
s 315
(2) (
a
)
(
S v Sinama
1998 (1) SACR 255
(SCA)). The inappropriate
granting of leave to appeal to this court results in cases of greater
complexity and which are truly deserving
of the attention of this
court having to compete for a place on the court roll with a case
which is not (
Shoprite Checkers (Pty) Ltd v Bumpers Schwarmas CC
and Others
2003 (5) SA 354
(SCA) para 23).
[29] In
the result the appeal against sentence succeeds. The sentence imposed
by the trial court is set aside and the following is
substituted in
its place:
'Each of the three accused are sentenced to 25 yearsâ imprisonment
on each count. In the case of accused numbers 2 and 4, 20 years
of
the sentence on count 2 is ordered to run concurrently with the
sentence on count 1 and in the case of accused number 3, 22 years
of
the sentence on count 2 is ordered to run concurrently with the
sentence on count 1.'
V M PONNAN
JUDGE OF APPEAL
CONCUR:
BRAND
JA
LEWIS
JA