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[2012] ZAGPPHC 303
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S v Tsotetsi (A196/12) [2012] ZAGPPHC 303 (19 November 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NUMBER:A196/12
Date
Heard:01 October 2012
Date
of Judgement: 19/11/2012
In
the matter between:
TAPELO
JACOB TSOTETSI
............................
APPELLANT
and
THE
STATE
….....................................................
RESPONDENT
JUDGEMENT
MOLEFE
AJ:
[1]
The appellant was the second of the two accused who were charged and
convicted in the High Court (Circuit Local Division) of
the Eastern
Circuit District held at Secunda of: Count 1 murder and Count 2
attempted robbery with aggravating circumstances.
[2]
On 21 June 2004 before Motata J, the appellant was sentenced to life
imprisonment for the murder charge and to 15 years' imprisonment
for
the attempted robbery with aggravating circumstances. It was ordered
that the sentence of 15 years should run concurrently
with the
sentence of life imprisonment.
1
[3]
The appellant brought an application for leave to appeal against the
two convictions and the sentences imposed in respect of
them. Leave
to appeal was granted by Van der Merwe J, on the 10 August 2010.
[4]
The appellant’s counsel
2
submitted that the crux of the appeal on conviction was the
establishment and proof of the identity of the perpetrator(s) as well
as the establishment and proof of common purpose and the
perpetrator’s (or perpetrators’) intent. It was the
appellant’s
counsel’s contention that the State’s
case stood and fell on the establishment of common purpose and intent
as it relied
on the evidence of the section 204 witness’s
testimony as its core.
[5]
According to the appellant’s counsel the evidence did not
establish any intent or planning or premeditation by the appellant
to
kill.. In addition it was contended that the section 204 witness did
not witness the stabbing and had not established that their
plan
(i.e. first accused, the appellant and the Section 204 witness) was
to rob the deceased after tying him up. The appellant’s
counsel
relied in this regard on the decision in S v Nango 1990 (2) SACR 450(
A) that murder and attempted robbery were not the
only inferences
that stood to be drawn, to the exclusion of any other while
accounting for all the facts.
[6]
Counsel for the appellant submitted that the trial court had to
subjectively ascertain who did the stabbing and whether the
stabber
foresaw that his actions could result in the death and wounding of
the deceased. The facts showed that the plan was only
to tie the
deceased in order to rob him. Accused one played a leading role in
the planning and in the execution of the plan and
it was he who was
in possession of the rope and knife, before, during and after the
stabbing. Testimony also repeatedly referred
to a single person
stabbing the deceased. Appellant’s counsel’s submission
was that from the record it was clear that
the appellant was not the
stabber and that the person who stabbed the deceased was the first
accused.
[7]
The submission by the appellant’s counsel was that the State
had failed to prove the identity of the stabber and the trial
court
relied on the doctrine of common purpose to convict the appellant
although the facts and evidence pointed to accused one
acting solo,
without common purpose and not following the plan that had been
agreed upon. Liability because of common purpose arises
on proof
beyond reasonable doubt of either a prior agreement or active
association where after the conduct of the participants
in the
execution of their joint deed could be imputed to the appellant. The
appellant’s counsel was adamant that there was
no prior
agreement among the accused persons to stab the deceased as the plan
was to tie him up and rob him. He also submitted
that the evidence
was that the appellant was only holding the deceased down when the
deceased was being stabbed, that the appellant
ran away in fear after
the stabbing and that he was petrified and visibly shaken when
approached by the police. Therefore he submitted
that no active
association on the part of the appellant was established by the
State.
[8]
The appellant’s counsel’s submission was that the
conviction for attempted robbery ought to be set aside as nothing
was
taken from the deceased, nor was there any attempt to assume control
over anything belonging to the deceased. Nothing belonging
to the
deceased was found in any of the three perpetrators’
possession. Counsel argued that the conviction and sentence for
attempted robbery ought to be set aside as there was no evidence to
support the conviction
3
.
[9]
Counsel for the appellant argued that the trial court did not find
substantial and compelling circumstances present in deciding
the
imposition of a sentence and that the life imprisonment and the 15
years’ imprisonment which were to run concurrently,
culminating
in an effective sentence of life imprisonment was shockingly
disproportionate, warranting interference on appeal. It
was counsel’s
submission that the appellant only held the deceased down and fled
after the stabbing and that this lessened
his moral blameworthiness
and ought to reflect in the sentence to be imposed.
[10]
Appellant’s counsel argued that common purpose was not proven
and that the murder could not be attributed to the appellant.
He
argued that the prescribed minimum sentence of life imprisonment
could only be imposed where common purpose was proven. He submitted
that life imprisonment should be imposed with care and after thorough
consideration and in this regard he referred and quoted the
following
statement in S v GN 2010(1) SACR 93T at 97 (110) “.................
...even where imprisonment for life is prescribed
as a minimum
sentence a court must bear in mind that it is the ultimate penalty
that the courts in this country can impose. As
such, it must not be
imposed tightly, even when it is a prescribed minimum sentence”.
[11]
Regarding the sentence of 15 years’ imprisonment for attempted
robbery, it was the submission of the appellant’s
counsel that
the 15 years sentence was shockingly inappropriate and
disproportionate to the interests of the appellant if the conviction
was to be confirmed. The prospect of rehabilitation should play a
prominent role on appeal he argued in the case where the appellant
is
a 20 year old first offender there is hardly a person of whom it can
be said that there is no prospect of rehabilitation
4
.
He further argued that the appellant was suffering mental anguish
because to the undue delay from 21 June 2004 to the date of
appeal
(in excess of 8 years 3 month) as since he was sentenced he had no
clarity to his future. Appellant’s counsel referred
to S v
Roberts 2000 (2) SACR522 (SCA) and Michele v S (477/2008) [2009]
ZASCA 116 AT [13] where the following was stated “In
my view,
it is a factor to which this court should have regard in the
assessment of an appropriate sentence” Appellant’s
counsel requested that this was to be taken into consideration on the
appeal. The appeal court should also take into consideration
that the
appellant spent 16 months in custody awaiting trial
5
[12]
The counsel for the State
6
submitted that the appellant denied knowing the section 204 witness,
accused 1 or having been involved in the crimes in casu
7
He denied being called Sibusiso yet this was never denied or put to
the section 204 witness.
8
He could however not provide any reason why the section 204 witness
would falsely implicate him.
[13]
The appellant and accused 1 raised an alibi as a defence and
testified that they were both at home at the time of the commission
of the offences. The trial court found that their version was not
reasonably possibly true in the light of all the evidence.
9
[14]
The respondent’s counsel also submitted that the appellant and
accused 1 had a common purpose to kill the deceased because
this
could be inferred from the facts and by implication, this was the
finding of the trial court. It was the appellant who replied
to
section 204 witness’s question why the deceased was stabbed in
saying: “this was done to the
white
man because he did not give a hearing and that he was cheeky.”
10
The appellant did not run away when the stabbing started or complain
about the stabbing nor did he attempt to prevent the stabbing.
In
fact he stayed near the body of the deceased with accused 1 until the
section 204 witness returned with a rope and he chose
to explain why
the deceased had been stabbed. It was submitted that both his words
and actions manifested his sharing of a common
purpose in that he
performed some act of association with the conduct of accused 1, if
indeed is was accused 1, and not the appellant,
that stabbed the
deceased.
[15]
It was the respondent’s counsel’s submission that the
fact that the deceased was stabbed with a knife in his back,
seven
times, with various degrees of force and on extremely life
threatening parts of his body, the intention to kill must be inferred
from the facts of the matter. Such an intention is the only
reasonable inference consistent with the proven facts.
11
Regarding
the count of attempted robbery with aggravating circumstances,
counsel for the respondent submitted that it was the declared
and
planned intention of the three accused to rob the deceased of money
he was suspected to have had, by reason of him having been
the
paymaster of the local municipality. A knife and rope were taken
along for this purpose. It was also his submission that violence
was
directed at the deceased with the intention to take his property.
There was therefore a completed attempt to rob the deceased
and the
attempt at robbery was completed. The appellant was correctly
convicted of murder and attempted murder attempted robbery
with
aggravating circumstances by the trial court.
[16]
Ad sentence: the respondent’s counsel submitted that it is
trite law that sentence is a matter of discretion of the trial
court.
The right of a court of appeal to interfere with the exercise of the
discretion is limited. The question is ultimately whether
there was
proper and reasonable exercise of discretion. In support of this he
referred to the decision of the Supreme Court of
Appeal in S v
Kgosimore 1999 (2) SACR ECG 238 (SCA) AT 241 PAR 10.
[17]
The respondent’s counsel referred to section 51 of Act 105 of
1997, which prescribes a sentence of life imprisonment
for murder. He
emphasized that it is clear that a knife was taken along with which
the deceased was stabbed. It is not known who
between accused 1 and
appellant did the stabbing, but that on the doctrine of common
purpose this is immaterial. In any event the
appellant had played a
role in the crime.
[18]
The respondent’s counsel argued that the fact that the
appellant was 20 years at the time of the commission of the crime
is
not a reason to find compelling and substantial circumstances. If he
had intended to persuade the court to impose a lesser sentence
he had
to raise the circumstances pertinently. This had not been done.
Respondent’s counsel referred in his argument to S
v Malgas
2001 (1) SACR 469 (SCA) at par [9] and S v Rosslee 2006 (1) SACR 537
SCA.
[19]
The aspect of awaiting trial period by the appellant was not raised
in the trial court or in the notice of appeal. It was the
respondent
counsel’s submission that there was no uniform approach to the
effect of the period awaiting trial on sentence.
It was also his
submission that it is of academic value in present case because the
trial court ordered that the sentence for attempted
robbery must run
concurrently with the sentence for murder namely, life imprisonment.
He submitted that the convictions and sentences
be confirmed.
Ad
Conviction
[20]
I agree with the respondent’s counsel that the appellant and
accused 1 had a common purpose to kill the deceased as was
inferred
from the facts and implications. The appellant was holding the
deceased down and was watching accused 1 stabbing the deceased
seven
(7) times. He failed to stop or attempt to stop the stabbing or
complain about it and did not even run away when the stabbing
was
being executed. He therefore performed some act of association with
the conduct of accused 1.
[21]
In Sefatsa 1988 (1) SA 868 A, in a unanimous judgment delivered by
Botha JA, the then Appellate Division confirmed the conviction
of the
six accused who had been convicted of murder. The Appellate Division
did so on the doctrine of common purpose. It found
that the accused
all had the common purpose to kill the deceased. The court rejected
the argument advanced on behalf of the accused
that they could be
convicted of murder only if a causal connection were proved between
the individual conduct of each of the accused
and deceased’s ’s
death.
12
The court in fact assumed that it had not been proved that the
individual conduct of any of the six accused contributed causally
to
deceased’s death.
13
It is sufficient that the individual participant actively associated
himself with the execution of the common purpose.
14
[22]
In Thebus
15
the Constitutional Court held that the common purpose doctrine is
compatible with the Constitution of the Republic of South. The
doctrine does not infringe an individual’s right to dignity and
freedom. It is according to the court rationally linked to
a lawful
aim, namely the combating of criminal activities by a number of
people acting together. If the doctrine did not exist
there would
have been the unacceptable situation that only the person who had
committed the principal act (in other words, who
actually stabbed the
deceased with a knife in his chest) would have been guilty, whereas
those who have intentionally contributed
to the commission of the
principal act would not have been guilty of the crime committed by
the principal perpetrator.
[23]
Regarding the attempted robbery with aggravating circumstances, I am
satisfied that there was a completed attempt to rob the
deceased of
money, and evidence showed that the accused persons had a knife and a
rope to execute their attempted robbery. The
deceased was tied with a
rope and stabbed seven times. Although nothing was taken from the
deceased, the appellant, accused land
the section 204 witness
intended to rob the deceased and engaged in conduct that was not
merely preparatory but had reached the
commencement of the execution
of the intended crime of robbery with aggravating circumstances. As a
general rule if the accused
persons had done everything they set out
to do in order to commit the crime but the crime was not completed,
they are guilty of
attempt.
[24]
Considering the evidence on both counts the appellant have been
convicted on I am satisfied that the State proved the case
against
the appellant beyond reasonable doubt and the convictions must stand.
Ad
Sentence
[25]
It is trite law that the appeal court’s powers to interfere
with the trial court’s sentence are circumscribed.
The appeal
court may interfere only when misdirection is found on the part of
the trial court or where the sentence imposed induces
the sense of
shock.
[26]
The charges put to the appellant are, as set out in the indictment,
not read with the provision of section 51 (1) of Criminal
Law
Amendment Act 105 of 1997 (CLAA). The application of the provisions
of the CLAA are first mentioned by the trial judge only
at sentence
stage when he said “the crime of murder is frowned upon by
everybody and to illustrate this, the parliament has
enacted the
Criminal Law Amendment Act 105 of 1997 and they said this crime is
one of the crimes that must be stamped out and the
purpose therefore
was that there must be uniformity in sentences which would obliterate
this type of crime.”
16
The
judge further said that in terms of the act (sic) I referred to, is
that there are no
substantial
and compelling factors, I should sentence you to life imprisonment
17
,
to which he did
18
[27]
In S v Makatu 2006 (2) SACR 582 (SCA) the court found a misdirection
to have been committed by the trial court when sentencing
a convict
to life imprisonment relying on the provisions of section 51(1) of
the CLAA while the indictment referred to section
51(2) of CLAA
respectively.
The principle was applied and followed most recently in S v Mashini
and another 2012(1) SACR 604 (SCA).
[28]
Considering the principles set out in the above mentioned cases,
I
am of the view that there was a misdirection on the part of the trial
court by sentencing the appellant to life imprisonment relying
on the
provisions of the CLAA. On this leg alone, the appeal on sentence
stands to be upheld. Considering the appellant’s
personal
circumstances placed on record in mitigation which I am not going to
repeat save to emphasise that the appellant is a
first offender. The
appellant’s youthfulness at the time of the commission of the
offence coupled with the period he spent
in custody while awaiting
trial should have been considered. In that light, I am of the view
that life imprisonment is indeed disproportionate
with the offence
committed. The sentence stands to be set aside.
[29]
I, in the result, make the following order:
(i)
The appeal against the convictions of murder and robbery with
aggravating circumstances is dismissed;
(ii)
The appeal against the sentence imposed on charge of murder is set
aside and replaced with the following:
“
Count
1: The accused is sentenced to 18 (eighteen) years imprisonment
Count
2: The accused is sentences to 15 years imprisonment The sentence in
count 2 is ordered to run concurrently with the sentence
on count 1”.
(iii)
In terms of section 282 of the Criminal Procedure Act 51 of 1977, the
sentence is antedated to 21 June 2004.
(iv)
The prison authorities are ordered to deduct the period already
served by the appellant while awaiting trial when calculating
the
date upon which the sentences imposed is to expire.
D.S.
Molefe
Acting
Judge of the High Court
I
agree.
A.M.L
PhatUDI
Judge
of the High Court
I
agree.
S.K.
Hassim
Acting
Judge of the High Court
Appearances:
On
Behalf of the Appellant: Pretoria Justice Centre
2nd
Floor FNB Building 262 Church Street PRETORIA
Mr
Jan Van Rooyen: Attorney
On
Behalf of the Respondent: Director Public Prosecution
Private
Bag x300
Pretoria
0001
Adv.
E Leonard SC
1
P
163 of record
2
Adv
J Van Rooyen
3
S V Nkosi 2012 (1)SACR 87 (GNP)
4
Sv
Nkomo 2007(2) SACR 198 (SCA) at 24, 30.
5
S
v
Ndlovu
2007 (1) SACR 535 (SCA) at 538 [12] to 535 (SCA) at 538 [12] to 539
[14]; Sv May 2005 (2) SACR 331 (SCA) ;Sv Bhengu 2011(1)
SACR 224
(KZP) 229j-230i.
6
Adv
F Leonard SC
7
Record
pi32
8
Record
pi33
9
Record
pi48
to
p
250
1.2
10
Record
p 79 1.2 etc
11
RvBlom
1939 AD 188 at 202 -20
12
At
896 E
13
At
894 F-G
14
At
901
15
2003
2 SACR 319 (CC) The judgement is also discussed by Reddi 2005 SALJ
96
16
Sentence
page 159 line 15-23
17
bid page 160 line 9-11
18
bid page 163 line 24