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[2013] ZAECBHC 5
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Maneli v S - Appeal Judgment (CA&R 04/2012) [2013] ZAECBHC 5 (27 May 2013)
IN THE HIGH COURT OF SOUTH
AFRICA
EASTERN CAPE DIVISION –
BISHO
CASE NO: CA&R 04/2012
Heard:
17 May 2013
Delivered: 27 May 2013
In
the matter between
:
THULANI
ROZA MANELI
APPELLANT
And
THE
STATE
RESPONDENT
Nature
of matter:
Appeal judgment;
12 year lapse between date of appellant’s sentencing pursuant
to conviction; appeal successful
Order:
The appeal in respect of the
convictions on Counts 3 and 4 is upheld. The convictions and
sentences on counts 3 and 4 are
set aside.
2.
The appeal in respect of the convictions on counts 1, 2 and 15 is
dismissed.
3.
The appeal in respect of the sentences on counts 1 and 2 is upheld.
The sentences of
life imprisonment and 15 years’ imprisonment
respectively are set aside and substituted as follows:
“
Count
1: The accused is sentenced to eighteen
(18) years’ imprisonment.
Count 2:
The accused is sentenced to ten (10) years’ imprisonment. The
sentences on counts
1, 2 and 15 are to run concurrently.”
APPEAL JUDGMENT
MAGEZA AJ
On Friday 17 May 2013, the appeal
herein was heard by the Full Bench of this Court and in the interests
of justice and for reasons
more fully set out hereunder, the Order
outlined herein was made.
The Order issued was the following:
“
1.
The appeal in respect of the convictions on Counts 3 and 4 is
upheld. The convictions and
sentences on counts 3 and 4 are set
aside.
2.
The appeal in respect of the convictions on counts 1, 2 and 15 is
dismissed.
3.
The appeal in respect of the sentences on counts 1 and 2 is upheld.
The sentences of
life imprisonment and 15 years’ imprisonment
respectively are set aside and substituted as follows:
“
Count
1: The accused is sentenced to eighteen
(18) years’ imprisonment.
Count 2:
The accused is sentenced to ten (10) years’ imprisonment.
The sentences on counts 1, 2 and 15
are to run concurrently.”
4.
The sentences are antedated to 5 February 2001.”
Unconscionable delays in the
appeal.
[1]
There is a distressing feature in this appeal in that, between the
date of appellant’s sentencing
pursuant to conviction and the
hearing of the appeal, a period of some 12 years has elapsed. Despite
appellant having been found
guilty and sentenced in February 2001,
the application for leave to appeal was only issued out of this Court
in March of 2012 and
leave to appeal finally granted in this Court on
30 November 2012.
[2] In
his affidavit in support of the consequent application for
condonation, appellant details the
extensive efforts he embarked on
to secure the assistance of the Legal Aid Board since commencing
serving his sentence, this from
as long ago as February 2001. He had
the misfortune of having his first and timeous application misplaced
and was advised to complete
a second in 2004, but was thereafter
informed that he had applied later than 6 months after the date of
his sentence. There is
a catalogue of names of persons associated
with the Board’s offices stretching between East London,
Zwelitsha and Port Elizabeth,
all of whom presented him thereafter
with various ‘reasons’ why he could not be assisted, the
often repeated reason
being, late lodgement and/or institutional
budget constraints.
[3] In
exasperation, appellant took the matter up with the Human Rights
Commission who, on 18 April
2006, advised him to contact the National
office of the Legal Aid Board. He did so and his application was for
once successful
and a legal representative was appointed by the
Board. The representative informed him that he was awaiting a copy of
a transcript
of the record but that this would require appellant to
pay some R18 000.00 (eighteen thousand rands) for the said
transcript. Having
communicated his inability to raise this sum, more
difficulties arose after which he was once more informed that he had
been allocated
yet another new legal representative in April 2007.
Sadly he never heard anything further from the Board and in November
2008 he
approached the Equality Court but in March 2009, his matter
was struck-off off the roll on the basis that, that Court had no
jurisdiction
over the said matter.
[4] No
doubt in resigned despair, he finally approached one of the now
retired Judges of this Division
who assisted by galvanising some of
this Court’s administrative staff to assist, after which the
current legal advisor was
appointed by the Legal Aid Board.
[5] This
delay is enormously regrettable, singularly unusual and constitutes a
disturbing systemic
failure of procedural and substantive justice.
The definition of Justice must never vary from one individual to
another depending
on their economic condition. The Legal Aid Board
serves to bridge this ever yawning gap in our society and has
commendably over
the last fifteen years or so, been a sterling
success. This instance in my estimation and experience constitutes an
undeserved
blemish.
[6] The
proverb ‘Justice delayed is justice denied’ is no mere
cliché and our Courts
have repeatedly pronounced that the
Constitutional obligations of those representing our first-world
institutions serving those
who are (at all stages) arrested, charged
and sentenced must anxiously and diligently exhort punctual
compliance. Since 27 April
1994, all criminal trials and appeals are
expected to be conducted according to “notions of basic
fairness and justice”
– Section 35(3) of the
Constitution;
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC)
. Appellant’s
right to appeal or review to a higher Court is governed by section
35(3)(o) of the Constitution. Regrettably,
he was not afforded timely
assistance and this has resulted in him not having had the benefit of
an earlier adequate re-appraisal
of his case. – See
Qhinga
and Others v State
2011 (9) BCLR 980
(CC)
.
The appeal.
[7]
Appellant was one of five accused (aged between 16 and 18) first
arraigned for trial on 23 October
2000 in the Bisho High Court on
some 17 counts including 5 counts of murder, 2 counts of attempted
murder, 6 counts of robbery
with aggravating circumstances, 3 counts
of unlawful possession of firearms and 1 count of pointing a firearm.
All these offences
were alleged in the Indictment to have been
committed at NU1 and NU2 in Mdantsane Township at several different
taverns over a
period of some 20 days between 28 November and 17
December 1998. In all instances bar one, the deceased were shot at
shebeens to
rob them of firearms.
[8] The
accused pleaded not guilty to all the charges and after conclusion of
the State’s case,
all the accused applied for their discharge
in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
. Two
(accused numbers 1 and 3) were successful in their application and
those in respect of three of the accused, inclusive of
appellant,
were dismissed by the trial Judge. Appellant who was legally
represented throughout the trial, elected to thereafter
close his
case without testifying. He was in due course found guilty by the
trial Judge on two counts of murder; two of robbery
with aggravating
circumstances; and on one count of unlawful possession of a firearm.
He was sentenced to life imprisonment on
the murder convictions; 15
years on the robbery charges and 2 years in respect of the unlawful
possession of a firearm. He now
appeals against the convictions and
sentences imposed by the trial Court.
[9]
Lightening the appellant’s burden somewhat, the Respondent
represented by Mrs Tokota before
us conceded that the murder and
robbery convictions in counts 3 and 4 are not supported by the
available evidence and are liable
to being set aside. This court
agrees.
[10] The sole
witness to implicate appellant directly on counts 1 and 2 was an
accomplice and
section 204
witness, Mr Buntu George, who testified
that he personally handed over the offending firearm on that day to
appellant at a shebeen
(tavern) named Ma Ellie in NU2 Mdantsane on 28
November 1998 and had thereafter accompanied the appellant to the
site where, according
to him, appellant had proceeded to shoot and
murder the deceased. They then took the deceased’s firearm. I
will revert to
the testimony of Buntu George.
[11] A summary of
counsel for appellant’s submissions before us in respect of
count 1 and 2 is the following,
that:
The court a quo misdirected itself in
the following regards:
a.
The court erred in relying on the evidence of the
section 204
witness.
b.
The court failed to give reasons why it found the
evidence of the witness credible without furnishing reasons for the
conclusion
reached.
c.
The admission of hearsay evidence was fatal to the
State’s case since hearsay evidence is highly prejudicial where
it goes
towards proof of guilt and in this case should have been
admitted only if there were compelling reasons.
d.
The evidence being hearsay, no reasonable court
could have convicted thereon and same could not constitute proof
beyond a reasonable
doubt. As such, it was not necessary for the
appellant to have testified in his defence. An inference of guilt
could thus not in
the circumstances have been justified.
e.
The conviction in respect of the possession, based
on a pointing out, should have been the subject of a trial within a
trial.
[12] Buntu George
was warned in terms of section 204 of the Criminal Procedure Act 51
of 1977 (the Act) as an
accomplice witness. On his own admission, he
was implicated in the (Count 1 and 2) murder and robbery charges
relating to deceased
Mvuyisi Qegu’s murder on the evening of 28
November 1998, for which appellant was found guilty by the trial
Judge.
[13] He testified
that he grew up with accused number 1 in NU2 Mdantsane. He went to
circumcision school with
accused number 3. Accused number 5
(appellant) lived at accused number 3’s home in NU2. On 28
November 1998 at about 21h00,
accused numbers 2 to 5 found him at a
shebeen known as Ma Ellie in NU2. He was there with two of his
friends Qavi and Thembinkosi.
He does not drink liquor and his two
friends were seated inside the shebeen drinking whilst he was “in
front of the shebeen”
and appellant had come to him and told
him he had heard that he had a firearm with him to which he responded
by telling appellant
that it belonged to his friend, Thembinkosi.
Appellant had then approached Thembinkosi inside the house and
Thembinkosi thereafter
came to him (Buntu) and instructed him to hand
the firearm to appellant. Thembinkosi also instructed him to
accompany appellant
and to bring back the firearm once the ‘job’
was completed. He did not know what this ‘job’ was, but
went
along nonetheless. He admitted to being aware that whatever
‘job’ this was, it would needless to say entail the
undertaking
of a criminal act. He accompanied accused 2 to 5 and as
they were walking along the street, not far from Ma Ellie, he saw a
young
man carrying an empty bottle in his hand in the vicinity of the
gate of another house also situate close to Ma Ellie. It appeared
that the man was about to enter the gate of the said house. He said
appellant cocked the firearm he had handed to him, approached
this
man, pointed the firearm at him and pulled the trigger. The man fell.
Appellant, accused number 3 and himself approached the
dying man and
accused number 3 removed a gun from the inside pocket of the man’s
jacket and they fled the scene. Later appellant
handed Thembinkosi’s
firearm back to him. The deceased it later turned out, was one
Mvuyisi Qegu.
[14] Cross-examined
(briefly) first by Miss Ntobe for accused number 3, she put to the
witness that accused number
3’s version was that he, the
witness, was in fact the one who shot this man, a suggestion he
denied. It was further put by
Miss Ntobe to the witness that he had
arrived at the shebeen in the company of accused number 4 and that
when he left, he left
with all the accused, they met the deceased
outside and the witness had then shot the deceased. This he denied.
Miss Ntobe put
it to the witness that he is the one who took the
deceased’s firearm. This the witness also disputed.
[15] Mr Sigabi for
appellant in cross-examination put it to the witness that according
to his instructions, he
had been drinking contrary to his assertion
that he did not drink. The witness disputed this assertion. Mr Sigabi
then questioned
the witness on a discrepancy between a police
statement he had deposed to in which he had said appellant had
grabbed the firearm
from him. He denied having said so. He admitted
to having signed the statement but denied that he said appellant had
forcefully
taken the same from him. It later emerged that the
statement had not been commissioned.
Having testified that Thembinkosi had
instructed him to hand over the firearm, Mr Sigabi proceeded to
question the witness as follows:
“
Mr Sigabi-
Sorry, when you said accused NO.5 borrowed the gun you said it
belonged to Thembinkosi right? --- Yes.
And after that you approached
Thembinkosi for permission to hand over the gun? --- Yes I went to
him.
And then you handed over the firearm?
--- Yes I gave him the gun.
...
And who else was present when you
handed it over to accused No. 5 the firearm? --- Thembinkosi was
present Qavi was also present
accused No’s 2, 3 and 4 were also
present.
And you did not know what they were
going to do with the firearm? --- No.
Now after handing over the firearm let
me put it this way you were never informed what was to be done with
this firearm, at no stage
were you ever informed as what was going to
be done with this firearm? --- Thembinkosi said they were going to do
a job around
there.
And you said you left with accused
No.5 after handing over the firearm? --- Yes.
And later,
“
You knew
these people were going to commit a crime whatever it was? --- Yes I
knew that they were going to do something untoward.
Accused No.5 will come and tell this
Court that at all times you were in possession of this firearm he
never took possession of
it at any stage from you? --- No he is
telling lies.”
At no stage during this exchange or
immediately thereafter did Mr Sigabi object to the exchange between
the witness and Thembinkosi
as amounting to hearsay. The sole purpose
of his cross-examination was to show that the witness’s
evidence was simply improbable
and possibly a fabrication. Aside from
the aforegoing, the cross-examination was uneventful and from the
record, elicited little
else to trouble the witness.
[16] Mr Sigabi went
on to confirm that Thembinkosi was indeed with the witness on that
day when he put this version
to the witness:
“
My
instructions from accused No.5 is that he first met you on that day
in the street you in the company of Mhlankosi who is accused
No.2 ---
And with you there was also Qavi and Thembinkosi --- Yes of course in
my company were Qavi and Thembinkosi.”
Finally, Mr Sigabi proceeded to put to
the witness that it was in fact him who had shot the deceased and
that he had thereafter
taken the deceased’s firearm and handed
it to one Mzimazi Zongelwa. This Mzimasi Zongelwa according to
appellant’s
instructions to Mr Sigabi had moved to Cape Town.
This last suggestion made by counsel at the trial, appears strange in
light of
the fact that the deceased’s firearm was found by the
investigating officer Sergeant Mqombothi in appellant’s own
possession
on 17 December 1998.
[17] Sergeant
Vusumzi Mqombothi testified that on 17 December 1998 he visited the
appellant in prison where he
was held in connection with a different
matter and there he questioned appellant about the whereabouts of the
deceased Mvuyisi
Qeku’s fire-arm. Appellant voluntarily offered
to point out the firearm and informed the investigating officer that
the firearm
was stored at his home. He booked appellant out of prison
and went with him to his home and on arrival there, appellant
furnished
him explicit and voluntary instructions as to where in the
house the firearm was hidden. He found it with ease hidden under some
clothing in a wardrobe. This evidence was not challenged by the
defence.
[18] The State
closed its case and the trial Court having dismissed his application
for a discharge in terms of
section 174 of the Act, appellant, still
represented by Mr Sigabi, elected to close his case without
challenging the evidence of
the accomplice witness, and without
testifying to the version suggested in cross-examination that it was
in fact Buntu George who
had shot the deceased and taken his firearm.
In this sense the evidence of Buntu George and Sergeant Mqombothi
against appellant
remained wholly unchallenged. The Court a quo did
not have the benefit of hearing appellant testify in his own defence.
Despite
bold and robust suggestions being put by counsel to Buntu
George that he shot the deceased Mvuyisi Qegu and took his firearm as
he lay on the ground, appellant waived the opportunity to share these
details with the Court under oath and have the veracity thereof
tested through cross-examination.
[19] The judgment of
the Court a quo does not dwell on a full examination of the
credibility of Buntu George and
this may well have been so in light
of the fact that his evidence stood alone and there was little else
that the learned Judge
could have tested this evidence against. The
Court’s judgment is detailed in the manner in which the
evidence of all the
witnesses was restated and covered. Having
analysed the available evidence implicating the remaining accused,
the Court found that:
“
The pattern
of analysis of the evidence in the case of Accused No’s 3 and 5
is the same as I have done with accused No. 1.
I will therefore not
make a detailed analysis of their cases as I have done in the case of
Accused No.1. Accused No’s 3 and
5 were implicated in counts
one and two by the accomplice witness. The evidence of the accomplice
witness is further corroborated
by the finding of the deceased
firearm in the possession of Accused No.5. It is clear from the
evidence that Accused No’s
3 and 5 shared a common purpose in
the commission of the offences referred to in counts one and two.”
[20] In
S v
Hadebe & Others
1997 (2) SACR 641
(SCA)
at 645 e-f, the Court
set out the approach, on appeal, to a trial court’s findings of
fact in the following terms:
“
Before
considering the submissions it would be as well to recall yet again
that there are well – established principles governing
the
hearing of appeals against findings of facts. In short, 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.
The reasons why this deference is shown by appellate Courts to
factual findings of the trial court are so well known
that
restatement is unnecessary.”
The three complaints: Evidence of
Accomplice; Credibility and Hearsay.
Court’s approach to evidence
of accomplice.
[21] The reasons for
caution regarding such evidence was eloquently explained by Holmes JA
in
S v HLAPEZULA AND OTHERS
1965 (4) SA 439
(A) at 440D
as
follows
:-
“
First, he is
a self-confessed criminal. Second, various considerations may lead
him falsely to implicate the accused, for example,
a desire to shield
a culprit or, particularly where he has not been sentenced, the hope
of clemency. Third, by reason of his inside
knowledge, he has a
deceptive facility for convincing description - his only fiction
being the substitution of the accused for
the culprit”.
Relevant for us in the current matter
is what Schreiner JA said in
R v Ncanana
1948 (4) SA 399
(A) at p
405 - 406:
“
The cautious
Court or jury will often properly acquit in the absence of other
evidence connecting the accused with the crime, but
no rule of law or
practice requires it to do so. What is required is that the trier of
fact should warn himself, or if the trier
be a jury, that it should
be warned of the special danger of convicting on the evidence of an
accomplice; for an accomplice is
not merely a witness with a possible
motive to tell lies about an innocent accused but is such a witness
peculiarly equipped, by
reason of his inside knowledge of the crime,
to convince the unwary that his lies are the truth... The risk that
he may be convicted
wrongly although sec. 285 has been satisfied will
be reduced, and in the most satisfactory way,
if
there is corroboration implicating the accused.
But
it will also be reduced if the accused shows himself to be a lying
witness or
if he does not give evidence
to contradict or explain that of the accomplice
.
And it will also be reduced, even in the absence of these features,
if the trier of fact understands the peculiar danger inherent
in
accomplice evidence and appreciates that acceptance of the accomplice
and rejection of the accused is, in such circumstances,
only
permissible where the merits of the former as a witness and the
demerits of the latter are beyond question.” (my emphasis)
See also
- S v Zitha and Others
1965 (1) SA 166
(E)
at p.170 -
and -
S
v Avon Bottle Store (Pty) Ltd and Others
1963 (2) SA 389
(A)
which
in the headnote at 390 reads -
“
But this
so-called 'cautionary rule' requires no more than an appreciation by
the trier of fact of the risk of false incrimination
of an accused by
an accomplice, a risk which will be reduced by the presence of
certain features, such as corroboration of the
accomplice implicating
the accused. Moreover the absence of such features will not by itself
invalidate a conviction on accomplice
evidence if the trier of fact
appreciated the peculiar danger inherent in accomplice evidence, and
it is clear that he accepted
the evidence of the accomplice and
rejected that of the accused because the merits of the former as a
witness and the demerits
of the latter were beyond question.”
The Court
a
quo
was correct in convicting on the
evidence of Buntu George. From the record, his cross-examination
yielded little that caused the
trial Judge discomfort. To a large
degree the witness was only called upon to repeat what he had already
testified to. The uncommissioned
police statement contained little
else in dispute other than what is referred to herein. Appellant
freely and voluntarily offered
on the available and accepted evidence
to point out the deceased’s firearm to the investigating
officer. No objection was
raised by the defence when the
investigating officer tendered the evidence of the pointing out.
There was no dispute that the firearm
had belonged to the deceased.
Appellant must have been alive to the devastating consequences of
such a pointing out. To compound
his problems
appellant, perilously
as it turned out, decided not to testify in his own defence. These
attendant factors reduced the risk of a
wrong conviction.
The credibility findings.
[22] The second
ground of appeal is that the learned Judge failed to give reasons why
he found the evidence of
the witness credible without furnishing
reasons for the conclusion reached. The judgment of the Court
a
quo
spans some eighteen pages and covers an evaluation of the
evidence of each of the thirteen or so witnesses called by the State.
Only the accomplice and investigating officer’s testimony was
relevant in respect of the charges that led to appellant’s
conviction. The learned Judge traversed the evidence of these two
witnesses. He admittedly made no overt pronouncement on the
credibility of the section 204 witness. He may well have found it
unnecessary to do so in light of the corroboration and the fact
of
there being no evidence to gainsay the evidence of the witness. Save
for the one contradiction pointed out in cross-examination
between
his evidence and that portion contained in his police statement,
there was little else yielded by and revealing from the
cross-examination of the witness by Mr Singaphi. The trial Judge
certainly traversed the available evidence and did consider the
probabilities in light of what he had before him. Indeed - “an
assessment of evidence on the basis of demeanour ... without
regard
to the probabilities, (would) constitute a misdirection”. –
See
Medscheme Holdings (Pty) Ltd and Another v Bhamjee 2005(5) SA
339 (SCA)
at para 14.
The hearsay complaint.
[23] It is the duty
of a trial Judge to keep inadmissible evidence out, and not to listen
passively as the record
is turned into a papery sump of ‘evidence’.
–
S v Ramavhale
1996 (1) SACR 639
(A)
.
The present matter is however not such
a case. As outlined above, the defence cross-examined the witness at
some length on his evidence
concerning what Thembinkosi instructed
him to do. Thembinkosi instructed him to accompany the appellant and
to ensure that he brought
the firearm back once the ‘job’
(as he put it) was completed. Needless to say these statements are
material only in
so far as to how the firearm came to be in the
possession of the appellant. The crucial and direct evidence
implicating the appellant
in the death of the deceased emanates
solely from Buntu George who was available and cross-examined by
appellant’s counsel.
The witness testified that he himself is
the person who handed over the firearm to appellant. He saw and was
with appellant when,
he says, appellant shot the deceased. The fact
that the firearm belonged to Thembinkosi and that he was instructed
by him to hand
over the firearm is secondary and, in my view, is a
matter of little probative value and depends primarily on the
credibility of
the witness Buntu George and less so on Thembinkosi.
The exchange relating to this testimony is set out herein and Mr
Singaphi
cross-examined the witness thereon. There was also no formal
objection to the introduction thereof during the trial. This appears
to me to accord with the view that this piece of evidence was not
viewed in any way as introducing prejudicial hearsay material
that
needed to be tested by calling Thembinkosi.
Appellant’s failure to
testify.
[24]
The position with regard to a failure to rebut
prima
facie
evidence before a court has been
extensively dealt with by our courts for some time. The accused is a
competent but not compellable
witness. He or she can refuse to
testify and this right is now entrenched in terms of section 35(1) of
the Constitution. The decision
in
S v
Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC)
affirms
this right to silence. However, if a witness has given evidence
directly implicating the accused -
“
... the
accused can seldom afford to leave such testimony unanswered.
Although evidence does not have to be accepted merely because
it is
uncontradicted, the court is unlikely to reject credible evidence
which the accused himself has chosen not to deny...”
See
The South African Law of Evidence – 2
nd
Edition, Zeffert and Paizes at page 134
(Chapter 5)
.
[25] Moseneke J
remarked as follows in
S v Thebus
[2003] ZACC 12
;
2003 (6) SA 505
(CC)
para
56:
“
The fact
that she or he is not obliged to testify does not mean that no
consequences arise as a result. If there is evidence that
requires a
response and if no response is forthcoming, that is, if the accused
chooses to exercise her or his right to remain silent
in the face of
such evidence, the Court may, in the circumstances, be justified in
concluding that the evidence is sufficient,
in the absence of an
explanation, to prove the guilt of the accused. This will, of course,
depend on the quality of the evidence
and the weight given to that
evidence by the Court.”
Sentence
[26] The Indictment
made no reference to the applicable minimum sentences set out in
section 51(1)
and (2) of the
Criminal Law Amendment Act 105 of 1997
.
The trial Judge passed a sentence of life imprisonment in respect of
the murder
(section 51(1)
read with Part 1 of Schedule) and 15 years
imprisonment in respect of the robbery
(section 51(2)
read with
Part
2
of Schedule), aggravating circumstances being present. Although
this is a material misdirection, the matter is one of substance
and
not form. In
S v Legoa
2003 (1) SACR 13
(SCA) ([2002]
4 All SA
373)
paras 20 and 21,
Cameron JA stated:
“
Under the
common-law it was (therefore) desirable that the charge sheet should
set out the facts the state intended to prove in
order to bring the
accused within the sentencing jurisdiction. It was not, however,
essential. The Constitutional Court has emphasised
that under the new
constitutional dispensation, the criterion for a just criminal trial
is a concept of substantive fairness which
is not to be equated with
what might have passed muster in our criminal courts before the
Constitution of the Republic of South
Africa Act 108 of 1996 came
into force. The Bill of Rights specifies that every accused has a
right to a fair trial... But under
the constitutional dispensation it
can certainly be no less desirable than under the common-law that the
facts the state intends
to prove to increase sentencing jurisdiction
under the 1997 statute should be clearly set out in the charge-sheet.
The matter is,
however one of substance and not form, and I would be
reluctant to lay down a general rule that the charge must in every
case recite
either the specific form of the scheduled offence with
which the accused is charged, or the facts the state intends to prove
to
establish it.”
Similarly in
S v
Ndlovu
2003 (1) SACR 331
(SCA) para 12,
Mpati JA commented
:
“
The enquiry,
therefore, is whether, on a vigilant examination of the relevant
circumstances, it can be said that an accused had
had a fair trial.
And I think it is implicit in these observations that where the state
intends to reply upon the sentencing
regime created by the Act a fair
trial will generally demand that its intention pertinently be brought
to the attention of the
accused at the outset of the trial, if not in
the charge-sheet then in some other form, so that the accused is
placed in a position
to appreciate properly in good time the charge
that he faces as well as its possible consequences. Whether, or
in what circumstances,
it might suffice if it brought to the
attention of the accused before the trial is not necessary to decide
in the present case.
It is sufficient to say that what will at
least be required is that the accused be given notice of the state’s
intention
to enable him to conduct his defence properly.’’
Finally in
S v Makatu
2006
(2) SACR 582
(SCA)
para 7, Lewis JA affirmed that:
“
As a general rule,
where the state charges an accused with an offence governed by s
51(1) of the Act, such as premeditated murder,
it should state this
in the indictment. This rule is clearly neither absolute nor
inflexible. However, an accused faced
with life imprisonment –
the most serious sentence that can be imposed – must from the
outset know what the implications
and consequences of the charge
are. Such knowledge inevitably dictates decisions made by an
accused, such as whether to conduct
his or her defence; whether to
apply for legal aid; whether to testify; what witnesses to call; and
any other factor that may affect
his or her right to a fair trial.
If during the course of a trial the state wishes to amend the
indictment it may apply to
do so, subject to the usual rules in
relation to prejudice.’’
[27] The sentence
handed down does not take into account the substantial and compelling
circumstances evident
from a perusal of the record and the
pre-sentence report admitted into evidence. Mrs Tokota for the
Respondent agreed with this
view and conceded the excessiveness
thereof. The appellant was a first offender at the time of his
conviction. He was only 18 years
of age when the offences were
committed. He spent two years in prison awaiting trial from December
1998 to February 2001 when his
trial was concluded. The pre-sentence
report states that his parents were not married and his paternal
family looked after him
only between 1982 and 1988. He dropped out of
school in standard five, months before these offences were committed.
He is described
as an extrovert who is easily influenced by his
peers. Although he takes general responsibility for the offences he
does not overtly
take ownership and responsibility for the same. He
smoked dagga frequently and this could be related to his strange
behavioural
patterns. We are also informed, and we accept this, that
appellant has since his incarceration completed a Diploma in law with
Oxbridge College whilst in prison.
[28] Navsa JA
commented in
Director of Public Prosecutions, KwaZulu-Natal v
Ngcobo & others
2009 (2) SACR 361
(SCA)
at para 22. That:
“
Traditional
objectives of sentencing include retribution, deterrence and
rehabilitation. It does not necessarily follow that a shorter
sentence will always have a greater rehabilitative effect.
Furthermore, the rehabilitation of the offender is but one of the
considerations
when sentence is being imposed. Surely, the nature of
the offence related to the personality of the offender, the
justifiable expectations
of the community and the effect of a
sentence on both the offender and society are all part of the
equation. Pre and post
Malgas
the essential question is whether the sentence
imposed is in all the circumstances, just.”
[29] Courts will
always take into account that the foundations of proper sentencing
continue to require the traditional
cautions be observed. - See
S
v Khumalo
1973 (3) SA 697
(A);
S v Zinn
1969 (2) SA 537
(A);
S v Qamata
1997 (1) SACR 479
(E).
In addition what is also paramount is
the importance of the individualisation of sentence. –
See S
v Blank
1995 (1) SACR 62
(A) at 70f-71c.
[30] In a recent
unreported decision of the Supreme Court of Appeal, the value of
sentences cumulatively in excess
of 25 years imposed by trial Courts
was again considered. -
Zondo v S (627/12)
[2012] ZASCA 51
(28
March 2013).
Citing Harms JA in
S v Mhlakaza
1997 (1) SACR 515
(SCA) at 519
the Court commented that the learned Judge in
dealing with the element of deterrence, noted that although it
remained, according
to judicial precedent, an important consideration
when imposing sentence, its effectiveness in deterring others from
committing
the same offences was unclear. It further considered that
‘as far as deterring the accused is concerned, it should be
borne
in mind that that there is no reason to believe that the
deterrent effect of a prison sentence is always proportionate to its
length’
before going on to state that a lengthy term of
imprisonment would serve none of the purposes of punishment and would
simply serve
to appease public opinion. He pointed out that sentences
of imprisonment ought to be realistic and should not be open to
interpretation
that they are designed for public consumption. See
also:
S v Skenjana 1985 (3) SA (A) at 55 C; S v Silaule
1999 (2)
SACR 102
(SCA) at 106g; S v Chavulla
2001 (2) SACR 681
(SCA) para 22
and S v Matlala
2003 (1) SACR 80
(SCA).
[31] It is, in my
view important to take into account that whilst the offences for
which appellant was convicted
are most serious and were carried out
in a shockingly callous manner, these took place in a short period
between commission and
arrest. The evidence on record is that the
investigating officer Sergeant Mqombothi approached him in prison and
on enquiry as
to the whereabouts of deceased’s firearm, the
appellant co-operated fully and accompanied Sergeant Mqombothi to his
own home
where he took him directly to where he had concealed the
weapon. He admitted that it was that of the deceased, thereby
bringing
his own involvement to a close. There is no prior history of
criminal disposition and he was too young to be regarded as a
hardened
criminal but possessed instead, a character lending itself
to influence by his peers. He does have a family to go back to and
with
a Diploma in law (no doubt spurred by an effort to makes sense
of his existential predicament) all indications are that he is
bright,
full of warm promise, and could with inspiration achieve more
and be a model citizen and role model to others in the community from
within which he emanates.
[32] Taking all the
aforegoing into account, the above order was made on 17 May 2013.
MAGEZA AJ
ACTING JUDGE OF THE HIGH COURT
I AGREE
JM ROBERSON
JUDGE OF THE HIGH COURT
I AGREE
R GRIFFITHS
JUDGE OF THE COURT
FOR
APPELLANT:
MR
STAMPER
FOR
THE STATE:
MRS
TOKOTA