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[2013] ZAECBHC 9
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Monqo v S (CAR 7/11) [2013] ZAECBHC 9 (1 August 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION
- BISHO
CASE NO. CAR 7/11
WANGA
MONQO
Appellant
vs
THE
STATE
Respondent
JUDGMENT
MGXAJI AJ;
INTRODUCTION
1.
The
appellants were convicted on the 06 June 2010 by the Regional Court
sitting at Peddie.
2.
On the 29 November 2010 the appellants were
sentenced to 28 years imprisonment. The Magistrate found there
to be existing
substantial and compelling circumstances and deviated
from applying the minimum sentences in terms of the
Criminal Law
Amendment Act 105 of 1997
.
3.
In the Court a quo there were three accused
persons who were convicted as charged having pleaded not guilty to
the charges at the
commencement of their trial. Of the three of them
only accused 1 and 2 appealed their conviction and sentence.
4.
On the 6 December 2012, the appellants were
granted Leave to Appeal their conviction and sentence.
5.
The deceased, Boniswa Mafani, an aunt to
the first appellant by virtue of being born in the same clan with the
appellant’s
father, had been sleeping together with the 1
st
appellant’s father Fanelekile Monqo and her sister Vuyiswa of
the same clan in the rondavel at the first appellant’s
home. In
this rondavel there was a homebrewed Xhosa beer for a traditional
ceremony to take place the following day the 3 March
2007.
6.
At about 21h00 the appellants arrived at
this rondavel and woke up the deceased and her sister, the said
Vuyiswa, accusing them
of being naked as well as questioning them for
sleeping at the house where the traditional beer was kept.
7.
The deceased’s sister, after being
woken by the appellants and physically confronted, ran away
while the deceased was
left cornered by the appellants to meet her
fate that night. The deceased was found dead in the morning
with her throat slit.
The appellants denied responsibility for her
death with the 1
st
appellant admitting only to assaulting the deceased twice with a
stick and the third blow landing on the 2
nd
appellant’s hand who according to the latter’s evidence
at court was intervening on behalf of the deceased. The 2
nd
appellant corroborates this version under chief examination by his
attorney but under cross examination admit the deceased having
been
assaulted with heavy blows by the 1
st
appellant even when the deceased was outside to where she had run to
chased by the appellants from the hut. This assault outside
is much
corroborated by the 3
rd
accused and it is this commotion that woke the witness Mzwamadoda
Manqo in his sleep to find the deceased lying down motionless
with
the appellants and the 3
rd
accused standing over her body.
8.
Arguing on behalf of the appellants Mr
Price contended that the death of the deceased was caused by the 3
rd
accused in the absence of the appellants at the time, possibly the
deceased was left by the appellants lying on the ground outside
infront of the hut where the deceased had been sleeping with the 1
st
appellant’s father being also whereat Beer was kept.
Hence, so the argument goes, the deceased was found in the morning
beyond the kraal being not where the appellants had left her at
night. Furthermore the 3
rd
accused, who according to the appellants entered the hut into which
they were called by Mzwamadoda Manqo after he had found them
standing
outside the hut over the deceased lying body, must have, after having
been expelled from the house, killed the deceased
because when the
appellants followed Mzwamadoda Manqo to sleep at the hut the latter
and his father were sleeping at, they no longer
saw the deceased
where they had left her lying when they entered the hut.
APPEAL AGAINST
CONVICTION
9.
The guiding legal principle in appeal
considerations is whether the court against whose finding the appeal
is, misdirected itself
on material facts in arriving at its
decision. Inescapably such material misdirection has to be
demonstrated sufficiently
by traversing the facts and the reasons on
which the trial Court based the decision appealed against. In
this regard the
often quoted
S v
Hadebe & others
1997 (2) SACR 641
(SCA)
at page 645 e-f case is salutary…:
“
there
are well-established principles governing the hearing of appeals
against findings of fact. 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 the appellate courts to factual
findings of the trial court are so well known that a statement is
unnecessary”. This affirmed the principles set out and
established in
R v Dhlumayo
1948 (2)
SA 677(A)
.
10.
Mere allegations of contradictions less
material in the evidence conspectus considered upon which the trial
court based its findings
will not be enough for the appeal court to
assess as having been erroneous the trial court’s evaluation of
evidence.
The evidence in the record must be of such a nature
that materially the State failed to prove its case beyond reasonable
doubt
for the trial court to have convicted the appellants.
11.
In the record the only person who hit the
deceased and manhandled her dragging her outside the hut in which she
and the 1
st
appellant and Vuyiswa had been sleeping before being rudely and
disrespectfully awoken up by the appellants is the first appellant.
Not only did this unprovoked assault by the 1
st
appellant prompt intervention in vain by the 1
st
appellant’s father, it also induced him to leave
the appellants for another hut. The 1
st
appellant admit in chief having manhandled the deceased so that she
could return her into the hut to lock her in so that the deceased
could repeat the following day the witchcraft things she had said
about the 1
st
appellant.
12.
The witness Mzwamadoda Monqo in his sleep
reacted to a noise outside where he found the appellants and the 3
rd
Accused in the court a quo standing over the motionless lying down
body of the deceased with the 1
st
appellant only responding to his explanation seeking questions on the
factual occurrence. The Magistrate considered the evidence
of
the 3
rd
Accused and that of Dr Wingreen on the nature of the injuries on the
hands , body and as well the throat of the deceased and found
them
consistent with the assault admitted by the 1
st
appellant albeit the latter admitting to only two stick blows on the
deceased body.
13.
The summary of evidence by the magistrate
of the appellants’ testimony, the 3
rd
Accused and of Mzwamadoda Monqo accurately reflects the testimony as
given by them at court and renders it unnecessary to regurgitate
such
evidence here.
14.
Mr Price argued before this court that the
appellants had unfair trial on the basis that the appellants’
own attorney asked
dangerous questions to the 1
st
appellant. Not only was this not the ground of the appeal but also in
itself the argument that mere dangerous questions and answers
elicited by the 1
st
appellant’s own Attorney from the 1
st
appellant render unfair the trial without violating the appellant’s
own case presentation ,in my view, lacks substance. Not
only was the
1
st
appellant’s attorney properly qualified, the 1
st
appellant in the court record as well showed no discomfort let alone
objection or reluctance to answer questions by his own attorney
to
whom they had given instructions on their defence case. In any
event this aspect was pointed out in argument but was not
pursued.
15.
It is not substantiated how answers given
under chief examination by the 1
st
appellant that may be against his own interests put by his own legal
representative in the same way the appellant could give answers
under
cross examination that are against his own interests in the trial do
render unfair the trial. Such argument, in my
view, is
erroneous and strange. It renders hollow the very legal trial
machinery that where there are no irregularities vitiating
the trial
the mere answers volunteered or elicited from an accused which assist
the State in its case ipso facto render unfair
the trial. In short
where an accused who has pleaded not guilty to a charge and in his
defence case presentation legally represented
proffers answers which
prove his role in the offence commission or assist the State case
does not, in my view, by any means render,
without anything further,
his trial unfair.
16.
The first appellant admits hitting the
deceased and dragging her with 2
nd
appellant outside the house with a view to detain her and to compel
her to repeat her statements to the elders the following day.
17.
It is argued by Mr Price that the 3
rd
Accused, who testified having arrived joining the appellants while
assaulting the deceased who was lying down on the ground beseeching
him to finish off the killing of the witch which accused no3 did with
his knife, was a poor witness without any basis advanced
on the
critical aspect of assault and stabbing perpetrated upon the deceased
at the 1
st
appellants homestead on that night. The appellants fail to
attribute the assault on the deceased, which the 1
st
appellant admit to, to any other person other than them however
minimal the assault they admit to. What reflects clearly
in the
record is that the motionless lying state in which the deceased was
when found by the witness Mzwamadoda Monqo and over
whose body the
appellants and the 3
rd
Accused stood was lifeless at the time and when Mzwamadoda Monqo in
his investigation ordered the appellants and the 3
rd
Accused into the hut where the traditional beer was kept, the
deceased was already dead.
18.
I am satisfied on my examination of the
recorded evidence that there was no misdirection by the magistrate in
her finding that the
State proved its case beyond reasonable doubt.
Her rejection of the applicants’ evidence who even deny the 3
rd
Accused was with them when the witness Mzwamadoda Monqo found them
when confronting them for an explanation on the deceased is
well
made. The Appellants were just pathetic contrary to the
submission on their behalf that they were good witnesses.
Their
forlon exculpatory attempt to attribute the assault causing the death
of the deceased exclusively to the 3
rd
Accused whom they claim must have arrived long after they had entered
the hut in which traditional Beer was kept after Mzwamadoda
had
summoned them into, is such a fanciful footwork bereft of any sense
imaginable in this world. So callous was the appellants’
assault and murder of the deceased who they had awaken in her
peaceful sleep at her brother’s homestead unanticipatingly
relaxed and unapprehensive of any harm that could befall her.
19.
In the record there is no evidence that the
deceased was ever with accused no 3 only at any stage save when the
accused no 3 joined
the appellants when assaulting the deceased to
her death. The argument on behalf of the appellants that the deceased
was, possibly,
killed only by the 3
rd
accused after the appellants had gone to sleep has no factual and
evidential basis at all.
20.
The appellants noted their appeal and
advanced in such notice of appeal the ground that the Regional court
Magistrate erred in accepting
the evidence of Mzwamadoda Manqo and
Fanekile Manqo in the light of the observations set out in Paragraphs
2.1 to 2.9 of the application
for Leave to Appeal. It is, however,
not clearly set out on what basis the Magistrate is said to have
erred in accepting the evidence
of Mzwamadoda Manqo who testified
that he was not himself drunk, an assertion that was not never
contested by the defence attorney,
neither the gist of his evidence
on what he observed and was told by the accused when he found them
standing over the lying body
of the deceased, was it refuted as being
inaccurate for whatever reason conceivable. As for the
appellants, specifically
the first appellant, on the aspect of
drunkenness they admitted to having been drunk but not too drunk not
to have known what they
were doing.
21.
It is not in dispute that Mzwamadoda Manqo
quizzed the accused when he found them standing over the deceased
body after having been
woken up by what he heard as happening outside
infront of the houses. It is not denied still that at that
moment it was the
deceased who was lying down not reacting to
anything. Infact the identity of the appellants and accused no3
standing over the lying
body of the deceased as testified by
Mzwamadoda Manqo is not denied .It therefore cannot be argued to the
contrary that the appellants
and accused no 3 were the last persons
to physically handle the deceased as testified by Mzwamadoda Manqo as
at the time the deceased
was lying motionless with the appellants and
accused no3 standing over her body albeit the witness Mzwamadoda
Manqo testifies not
having noticed any wound or blood in the
deceased. The appellants do not dispute that at that moment the
deceased was lying motionless.
22.
From the record there is no evidence of the
deceased being alive after the Appellants and accused no 3 were found
standing over
her lying body. It is also not the evidence of the
accused that the deceased was alive at the time Mzwamadoda Manqo
intervened.
Infact the deceased at this moment was lying
down on her side and motionless not even reacting to intervention
by Mzwamadoda
Manqo which was to her rescue in the circumstances.
23.
The inference drawn by the Regional
Magistrate that the deceased was dead, at the time Mzwamadoda Manqo
arrived at them is the only
reasonable inference that could be drawn
which is consistent with the facts and possibilities, and how much
such possibilities
may be have no material bearing.
24.
On these facts nothing prevents an
inference from being drawn. See in this regard
S
v Reddy & Others
1996 (2) SACR 1
at 8c-d.
There
is no evidence of any person who interacted with the deceased save
the appellants and accused no 3 at the time Mzwamadoda
Manqo found
the deceased lying down still. The argument that the death of
the deceased could be attributed to any stage
but not when
the motionless body of the deceased was seen with the appellants and
accused no 3 standing over it as was found
by the Witness Mr
Mzwamadoda Manqo ,is more creative thinking without factual basis.
The Appellants themselves
did not give evidence to that effect but only contended with casting
suspicion on accused no3 as a possible
person who might have killed
the deceased without any factual evidentiary basis. The 1
st
Appellant admits as much that the state witness Mzwamadoda Manqo
found them standing outside when he confronted them on what was
happening and only after did they enter the hut out of which the
deceased had been chased. Infact the idea of the 1
st
Appellant was to force the deceased back into the hut for her to
explain her weird statements to the elders the following day.
As to when the 1
st
Appellant abandoned that idea and
decide to leave the deceased lying down on the ground remains
unexplained by the Appellants.
Logically the 1
st
Appellant would not have pursued that resolve of forcing the
deceased back into the hut if she had died at the time the 1
st
Appellant directed the witness Mzwamadoda Manqo to enter into the hut
for an explanation by the Appellants on the scuffle.
25.
It does not appear in the record that the evidence of the state
witnesses Fumanekile Manqo, Thando Daso
and Macebo Kakancu ever
constituted material evidentiary basis upon which the Regional
Magistrate convicted the accused and
that was not the
argument even during the hearing of the appeal. For that reason
nothing much of value turns on their evidence
on the
crucial issues in this appeal in as much as their evidence was
considered, as it seems correctly
so, in the
general evaluation of the evidence of the State and defence
evidence.
26.
The material relevance of the evidence of accused no3 relates only to
the actual assault on the deceased.
Precisely to the time accused no3
finds the appellants with the deceased lying down outside the hut.
It seems the probative
value of his evidence is on the aspect which
the Regional Court Magistrate relied on in convicting the appellants
which is the
direct evidence on the murder of the deceased.
27.
Accused no 3’s testimony is that the appellants told him that
they were killing the witch. This
evidence of the deceased being the
witch and having to explain her unpalatable utterances that the 1
st
appellant is “
hard
’ corroborates the 1
st
appellant’s own evidence on the deceased’s evil acts,
hence the 1
st
appellant’s assault on the deceased
whilst inside the hut and following the deceased attempted escape,
and subsequent chase
to prevent the deceased from such escaping.
Otherwise nowhere else accused no 3 in the record obtained the 1
st
appellant’s witchcraft accusations against the deceased. On
this material evidentiary aspect which laid the basis for the
conviction of the appellants nothing is erred by the Regional
Magistrate in finding corroborative value in this evidence.
28.
The appellants attack the Regional Court Magistrate as having erred
in finding that accused no3 was
telling the truth to the court. From
the record it appears that the Regional Magistrate was alive to the
shortcomings in the evidence
of accused no3.Although the Regional
Magistrate erroneously categorised the accused no3 as an accomplice
instead of co-perpetrator,
it does seem that it was more with a sieve
that she assessed the evidence of accused no3 and accepted his
evidence on the material
aspect relative to the circumstances in
which the deceased met her fate. As a co-perpetrator aspects of
accused no3’s evidence
would expectedly have possible
intentional untruths but certainly it does not ordinarily follow that
all his evidence should be
rejected. It is salutary to indicate that
evidence that has mistakes or lies carries the same weight neither do
such mistakes or
lies in all circumstances render the entire evidence
suspect. See in this regard
S v Mkohle
1990 (1) SACR 95
at 98f-h.
29.
The conviction of the appellants flows from their participation in
the assault circumstances in which
the deceased died at 1
st
appellant’s home when she was assaulted admittedly by the 1
st
appellant when the latter wanted to force the deceased back into the
hut from which the deceased had escaped being assaulted by
the
appellants, an objective over which the appellants acted in
consonance, with accused no3 joining them outside that hut when
the
deceased was already floored lying on her side. Infact accused
no3 admits slitting the deceased neck after joining the
appellants at
a time when the deceased was already in a lying position and was no
longer physically reactive.
30.
It does not become necessary to deal with other grounds regarding the
reports by accused no3 to Thando
Dosa and Macebo Kakancu which could
only be extrajudicial admissions but not confessions, whether the
accused was instructed by
1
st
or 2
nd
appellant
since these grounds do not deal with the material evidence upon which
she convicted nor did the Regional Court Magistrate
in her judgement
attach too much evidentiary weight and therefore convicted on that
basis thereof.
31.
It is clear that the Regional Court Magistrate evaluated the entire
evidence in particular the improbabilities
in the appellants’
versions which render such versions substantially untrue. The
appellants, accused no3 and the witness
Mzwamadoda Manqo corroborate
each other that the deceased was lying motionless with accused no3
having joined the appellants who
were standing over the body of the
deceased Mzwamadoda Manqo as well testified confronting the
appellants who were with accused
no 3 standing over the lying
motionless body of the deceased. From these evidential facts
one inference is capable of being
drawn in the circumstances of this
matter and that is the deceased was motionless because she was dead
at the time. Hence
on the 1
st
appellant’s evidence they left
the deceased there lying still and entered the hut all of them
although he says accused no3
entered later when already they were in
the hut. As stated in
S v Sithole &
others
1999 (1) SACR 585(W)
at 590
the test was put as always to be
“
There
is only one test in a criminal case and that is whether the evidence
establishes the guilt of the accused beyond reasonable
doubt.
The corollary is that an accused is entitled to be acquitted if there
is a reasonable possibility that an innocent
explanation which he
proffered might be true. These are not two independent tests,
but rather the statement of one test,
viewed from two perspectives.
In order to convict there must be no reasonable doubt that the
evidence implicating the accused
is true, which can only be so if
there is at the same time no reasonable possibility that the evidence
exculpating him is not true.
The two conclusions go hand in
hand each one being corollary of the other. Thus in order for
there to be a reasonable possibility
that an innocent explanation
which has been proffered by the accused might be true ,there
must at the same time be a reasonable
possibility that the evidence
which implicates him might be false or mistaken”.
I therefore find that
there is no merit in the appeal against conviction and that the
appellants were properly convicted by the
magistrate.
APPEAL AGAINST
SENTENCE
32.
The appellants were charged with murder, an offence that in terms of
part 1
of schedule 2 of
section 51
(d) of Act 105 of 1997, attracts a
life imprisonment sentence unless justification for a lesser sentence
is found on grounds of
substantial and compelling circumstances.
The magistrate took the view that due to the drunkenness of the
appellants, the
circumstances and the manner the appellants handled
the deceased relatively constituted substantial and compelling
circumstances.
33.
It lies not with this court to traverse the cogency or paucity of
basis for the determination that the
appellants’ drunkenness,
the circumstances alluded to, but not specified, of the case and the
manner the magistrate found
the deceased was handled by the
appellants, constituted substantial and compelling circumstances in
this case as the appellant
have not appealed against this finding but
the actual sentence which the magistrate imposed. That the
appellants have not
challenged this conclusion that there were
substantial and compelling circumstances is not surprising.
34.
The magistrate, consistent with her finding of substantial and
compelling circumstances to be existing
justifying a lesser sentence
to be imposed in terms of section 51 of Act 105 of 1997, went on to
impose on each of the appellants
a 28 years imprisonment term.
35.
In terms of section 51 (3)(a) the magistrate is well within her
discretion, having found substantial
and compelling circumstances to
be existing for a lesser sentence, to sentence the appellants to a
term of imprisonment for a period
not exceeding 30 years.
36.
That appellants have not shown in what respect could there be a
misdirection in that sentence and none
has been pointed at by their
Counsel. The argument that life imprisonment is anyway not exceeding
25 years is merely an emotional
outpouring in view of the clear
legislative enactment on minimum sentence for Part 1 of schedule 2
offence for which the appellants
were convicted. Decrying the
28 year sentence on the basis of the 1
st
appellant being
the first offender is not sufficient a ground to argue for
interference with the sentence imposed by the magistrate
in as much
as that aspect of the 1
st
appellant being the first
offender remains a flimsy reason as categorised in
S v Malgas
2011(1) SACR 469 SCA
to be the basis to depart from the
prescribed sentences. This could as much be extended to the
sentence of 28 years imprisonment
imposed that it cannot be altered
on the basis only that the 1
st
appellant is the first
offender. Justice in its material sense is about the living as it is
about the dead.
37.
This court’s power to interfere with the discretion of the
court a quo on sentence is not untrammelled
and again S v Malgas case
quoted above is guiding on this aspect “A court exercising
appellate jurisdiction cannot, in the
absence of material
misdirection by the trial court, approach the question of sentence as
if it were the trial court and then substitute
the sentence arrived
at by it simply because it prefers it. To do so would be to
usurp the sentencing discretion of the trial
court. It
may do so when the disparity between the sentence which the appellate
court would have imposed had it been
the trial court is so marked
that it can properly be described as “shocking”,
“startling”, and disturbingly
inappropriate”….In
the latter situation it may not substitute the sentence which it
thinks appropriate merely because
it does not accord with the
sentence imposed by the trial court or because it prefers it to that
sentence. It may do so only
where the difference is so
substantial that it attracts epithets of the kind I have mentioned”.
38.
I do not find the 28year’s imprisonment imposed as constituting
a such sufficient substantial
disparity to the life imprisonment
prescribed in terms of the minimum sentences legislation as to prompt
interference by this court.
39.
In the result I make the following order that:
(a)
That the appeal against conviction and sentence is dismissed.
ACTING JUDGE OF THE
HIGH COURT
MGXAJI AJ
I agree: DUKADA J
JUDGE OF THE HIGH
COURT
DUKADAJ
Counsel
for the Appellant:
Adv
Price
Instructed
by
Changfoot
Van Breda Attorneys
East
London
Counsel
for the Respondent:
Adv
Kruger
Instructed
by
Director
of Public Prosecutions
Bisho
Appeal heard on: 23
November 2012
Judgment delivered on:
01 August 2013