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[2011] ZAFSHC 74
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Lechamo v S (A171/2010) [2011] ZAFSHC 74 (12 May 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A171/2010
In
the appeal between:
DANIEL
MANYAKE LECHAMO
…...........................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM
:
MUSI, JP
et
JORDAAN, J
et
KUBUSHI, AJ
HEARD
ON:
21 FEBRUARY 2011
_____________________________________________________
DELIVERED ON:
12
MAY 2011
KUBUSHI, AJ
[1] This is a full bench
appeal against the judgment of Van Zyl, J. The appellant was
convicted of murder and rape and sentenced
to life imprisonment in
respect of the murder and to ten years imprisonment in respect of the
rape. Both sentences were to run
concurrently. The appellant is now,
with leave of the court
a quo
, appealing against the
convictions and the imposed sentences.
[2] The facts of the case
are as follows: During the early hours of the 16 June 2008 and at or
near Odendaalsrus a body of an unknown
woman was found at the back of
a business complex at which the appellant was seen leaving earlier
that day at about 5h00 by one
of the State witnesses. Another State
witness testified that the appellant confessed to him to the effect
that he (the appellant)
raped a certain woman and murdered her by
hitting her on the head with bricks because she had seen his face.
[3] The night before the
body was discovered the deceased and the appellant, though not in
each other’s company were seen
at a tavern. The deceased came
in the tavern looking for someone and did not talk to the appellant.
A DNA sample taken from the
deceased positively linked the appellant
to the deceased.
[4] Appellant’s
story is that the deceased was his girlfriend and that they had had
consensual sex during the day of the 15
June 2008 and denied having
murdered her.
[5] The appellant’s
legal representative argued at the appeal hearing that the trial
court misdirected itself by accepting
the evidence of the State
witnesses Sebata Mahloane (Sebata) in respect of the confession made
to him by the appellant and that
of Vincent Pakiso Malete (KD) in
respect of identification of appellant.
[6] In the Heads of
Argument it was argued on behalf of the respondent in support of the
conviction. With regard to sentence it
was argued that there were no
substantial and compelling circumstances which justified the
imposition of a lesser sentence than
the prescribed minimum sentence
of life imprisonment. This was on the gravity of the two offences and
in particular the manner
in which the deceased was murdered.
[7] The issue to be
decided by this court is whether the trial court misdirected itself
by finding the evidence of the appellant
not reasonably possibly
true, and if not, whether the sentences imposed were appropriate
under the circumstances of the case.
[8] It is established law
that a court of appeal rarely interferes with the credibility and
factual findings of a trial court. As
it was stated in
S v
Francis
1991 (1) SACR 198
(A) the powers of the court of
appeal to interfere with the findings of fact of a trial court are
limited. In the absence of any
misdirection the trial court’s
conclusion, including the acceptance of a witness’ evidence, is
presumed to be correct
on the basis that the trial court had the
advantage of seeing, hearing and appraising a witness.
[9] Having studied the
record I find no evidence that indicates that the trial court
misdirected itself in any way in its credibility
and factual findings
and my view is that such findings must stand. I am guided in my
conclusion by the
S v Francis
-case above wherein it was
stated that in the absence of any misdirection the trial court’s
factual and credibility findings
must stand.
[10] In terms of
section
208
of the
Criminal Procedure Act 51 of 1977
an accused may be
convicted on the evidence of a single competent witness. In
S v
Sauls & Others
1981 (3) SA 172
(A) it was noted that
there is no rule of thumb test or formula to apply when it comes to
the consideration of the credibility
of a single witness. The
Appellate Division in
S v Francis
above voiced a
reminder that the test in the final analysis is whether the court
after proper consideration of the evidence with
the caution required
in law is beyond all reasonable doubt satisfied that the story told
is essentially true.
[11] The trial court
relied on the evidence of two cardinal State witnesses each one of
whom it regarded as a single witness for
the purpose of this case,
and thus applied the cautionary rule. The two State witnesses were
Sebata in respect of the appellant’s
confession and KD in
respect of the identification of the appellant.
[12] The objective
correctness of the content of the confession supports the
truthfulness of Sebata’s evidence. The confession
by the
appellant tied with all the facts of the commission of the offences
and confirms that Sebata was telling the truth. Appellant
confessed
to Sebata that he killed the deceased by hitting her with bricks
after raping her and the injuries the deceased sustained
were similar
to the wounds that could have been inflicted by bricks. Indeed bricks
were found lying around the scene of the crime.
The DNA results
confirmed that he had sexual relations with the deceased which fact
the appellant explained by saying the deceased
was his girlfriend and
he had consensual sex with her. The only reasonable inference, which
I support, the trial court could come
to was that the appellant
murdered the deceased after raping her because she had seen his face,
as he in fact confessed to Sebata.
Sebata testified that appellant
had threatened to implicate KD should KD tell that he saw him and
indeed that is what happened.
[13] The confession was
made voluntarily without any duress from any one and the trial court
was entitled to accept it. The court
in
S v Yolelo
1981
(1) SA 1002
(A) confirmed the common law rule as formulated in
R
v Barlin
1926 AD 459
that the common law allows no statement
made by an accused person to be given in evidence against himself
unless it is shown by
the prosecution to have been freely and
voluntarily made.
[14] The trial court
also, rightly so, accepted the evidence of KD in having correctly
identified the appellant. KD testified that
he saw the appellant near
the scene of the incident in the early hours of 16 June 2008. He
knows the appellant very well as they
grew up together and lived in
the same residential block. He played football with the appellant’s
brother. It was in the
early hours of the morning and KD must have
been in a good state of mind. There was enough light around the
complex and at a distance
of about 10 – 12 meters he was able
to clearly see the appellant’s face. He had visibility of his
face for about seven
seconds. Under these circumstances he could not
have mistakenly identified the appellant. The fact that KD was not
able to identify
him by his clothing or any other identifying mark or
characteristics, as suggested by appellant’s legal
representative, was
not important. In
R v Dladla & Others
1962 (1) SA 307
(A) the Appellate Division approved the following
remarks by the trial court:
“
in cases where the witness has
known the person previously, questions of identifying marks, of
facial characteristics and clothing
are in our view of much less
importance than in cases where there was no previous acquaintance
with the person sought to be identified.”
[15] The trial court
rejected out of hand the appellant’s suggestion that Sebata and
KD had a motive to falsely implicate
him because Sebata wanted
appellant’s girlfriend for himself and secondly that KD wanted
to get the money offered by the
police for information that would
lead to the arrest of the suspect. In the circumstances there is no
basis on which this court
can interfere with the credibility and
factual findings of the trial court.
[16] The trial court also
considered the probabilities of both the State’s evidence and
the defence’s evidence. See
S v Singh
1975 (1) SA
227
NPD at 228. I am convinced that there was no way in which the
trial court could have accepted appellant’s version as
reasonably
possibly true. If one is to consider the evidence of the
appellant: he alleges that the deceased was his girlfriend before he
went
to jail the first time. But nobody knows about her, even his
best friends do not know about her. He does not know where she stays.
They meet per chance after a long time and had sex but he does not
ask her where she stays, nor does he accompany her back to see
where
she stays. Another State witness, Mami Mponeng, testified that she
saw both the appellant and the deceased the same day that
appellant
alleges to have met the deceased, at the tavern. The deceased came
into the tavern apparently looking for someone and
she and the
appellant did not talk to each other. Nor was there any indication
that they knew each other. If his contention that
they had met and
had sex earlier that day is true surely the deceased could have gone
to him since he was already at the tavern.
I also find it odd that
the appellant did nothing to assist the police in their investigation
if the deceased was indeed his girlfriend.
He declined to give them
any information. This story cannot be regarded as reasonably possibly
true.
[17] As regards
sentences, appellant’s legal representative conceded, correctly
so, that the sentences imposed were appropriate
and just given the
seriousness of the offence as well as the appellant’s previous
convictions.
[18] The crimes of which
the appellant was convicted falls within the provisions of the
Criminal Law Amendment Act, 105 of 1997
as amended (“the Act”).
In terms of
section 51
(1) read with
part I
of schedule II, where a
murder was committed
inter alia
when the death of the victim
was caused by the accused in committing or attempting to commit rape
and in relation to the rape where
the rape involved the infliction of
grievous bodily harm, the sentence of life imprisonment must be
imposed unless there are substantial
and compelling circumstances
which will justify the imposition of a lesser sentence. The inquiry
therefore is whether there are
substantial and compelling
circumstances in this case.
[19] In determining
whether there are substantial and compelling circumstances which will
justify the imposition of a lesser sentence
a trial court must
consider the particular circumstances of the case in the well known
traditional triad of factors relevant to
sentence. The court in
S
v Malgas
2001 (1) SACR 469
(SCA) at 477 e – g made the
following observation:
“
There is no indication in the
language it (Parliament) has employed that it intended the enquiry
into the possible existence of
substantial and compelling
circumstances justifying a departure, to proceed on a radically
different way, namely, by eliminating
at the very threshold of the
enquiry one or more factors traditionally and rightly taken into
consideration when assessing sentence.”
[20] Guided by the
Malgas
case above the trial court considered the traditional triad of
sentencing, namely, the personal circumstances of the accused, the
nature and seriousness of the crime and the interests of society in
deciding whether there are substantial and compelling circumstances
justifying a deviation from the prescribed sentences.
[21] Firstly, the court
evaluated the personal circumstances of the appellant in great
detail. Appellant was 21 years old at the
time of the commission of
the offence. His mother died when he was 11 years and he was 14 years
when his father died. Since the
death of his father he has been
staying at his parents’ house with his younger sister, who is
19 years old. He passed grade
11 and attempted grade 12 but did not
pass it. At the time of his arrest he was busy with a course at
Prestige College. He did
piece jobs at a construction company where
he earned R850-00 per week. His sister is unemployed. During his
first arrest his grandmother
took care of his sister. Since his
current arrest his sister has been receiving assistance from her
girlfriend. He has a child
who he must maintain. He said that he
wanted to complete his matric and be an exemplary person in the
community. He wanted to go
back home and care for his sister who was
staying alone.
[22] Appellant’s
legal representative argued that appellant’s youth should be
considered as a substantial and compelling
circumstance. The court,
correctly so in my view, rejected this argument on the basis that
youth per se is not a substantial and
compelling circumstance but
that a court should accept youth as a factor only where such youth is
still innocent and shows characteristics
of a person who can still be
rehabilitated. Appellant is not such a person. He has lost his
innocence and crime has become a way
of life for him. There are no
prospects of rehabilitation for him. It must also be noted that
violence remains an element in all
of his previous convictions and it
has escalated with each offence to the extent that he ended up
killing.
[23] Secondly, the trial
court also analysed the crime of which the appellant had been
convicted. The manner in which the offence
was executed was
absolutely horrendous and repugnant. As it appears from the
post-mortem report the deceased brain was squashed
in the process.
Her mutilated face and squashed brain are evident from the photos
handed in as annexure A and from the post-mortem
photos handed in as
annexure D of the record. The wounds were inflicted with bricks. As
the trial court stated, it is unthinkable
what degree of fear and
pain the deceased went through from the beginning of the attack until
she died. The murder was committed
with the intention to prevent the
deceased from identifying the appellant.
[24] Thirdly, the trial
court took the interests of society into account and commented that
in case of such serious offences the
interests of society comes
first. The community must be protected against persons like the
appellant and that the type of sentences
to be meted out in this case
must be a deterrent to other potential murderers and rapists.
[25] Lastly, the trial
court considered the aggravating factors which were the appellant’s
previous convictions. He was not
a first offender. In terms of his
previous convictions as per the SAP 69 handed in, he was convicted of
assault on the 19 February
2003 – at the time he was about 15
or 16 years old and was sentenced to six months imprisonment
suspended in whole for five
years. A year later he was found guilty
of robbery and sentenced to thirty months imprisonment. On the 27 May
2004 he was found
guilty of indecent assault and sentenced to two
years imprisonment. He was found guilty of two counts of robbery on
the 6 October
2004 and sentenced to three years imprisonment. He was
released on parole on the 17 March 2008. And three months later
whilst still
under correctional supervision he committed this
offence.
[26] Based on the above
evaluation the trial court concluded that there were no circumstances
justifying a deviation from the prescribed
minimum sentences. I agree
with this conclusion prescribed minimum sentences should not to be
departed from lightly and for flimsy
reasons which could not
withstand scrutiny such as in this case.
[27] As regards the
conviction of murder I am satisfied that an injustice will not be
done if the sentence of life imprisonment
is imposed. The brutality
of murder is regrettably too regularly a part of life in South
Africa. Courts are expected to send out
a clear message that such
behaviour will be met with the full force and effect of the law.
DPP,
Kwazulu – Natal v Ngcobo & Others
2009 (2) SACR 361
(SCA).
[28] In relation to the
rape the trial court imposed a sentence of ten years imprisonment. It
is not apparent from the record on
what basis was the sentence
imposed. At page 309 – 310 of the record the trial court made
the following comment:
“
In hierdie geval is daar egter
ook sekere voorgeskrywe minimum vonnisse wat opgele moet word
ooreenkomstig die bepalings van die
Strafregwysigingswet, Wet 105 van
1997. In terme van hierdie wetgewing is ek verplig om lewenslange
gevangenisstraf ten opsigte
van die aanklag van moord op te le en 10
jaar gevangenisstraf ten opsigte van die aanklag van verkraging tensy
daar wesenlike en
dwingende omstandighede bestaan wat die oplegging
van mindere vonnis regverdig en noodsaak.”
[29] In my view the trial
court misdirected itself in respect of the crime of rape. As stated
in para [18] above in terms of
section 51
(1) read with
part I
of
schedule II of the Act where the rape involved the infliction of
grievous bodily harm the sentence of life imprisonment must
be
imposed unless there are substantial and compelling circumstances
which will justify the imposition of a lesser sentence. This
point
was not picked up by both the legal representatives and was therefore
not argued. In the circumstances this court will not
temper with the
sentence.
[30] I am satisfied that
the trial court did not misdirect itself in concluding that there
were no substantial and compelling circumstances
which justified the
imposition of a lesser sentence in this case. I am also satisfied
that the sentences imposed are just and appropriate
in the
circumstances. The appeal on both the conviction and sentence must
not succeed.
[31] In the circumstances
I would make the following order:
The appeal is dismissed
and the sentences as imposed on both counts are confirmed.
________________
E.M.
KUBUSHI, AJ
I concur.
____________
H.M.
MUSI, JP
I
concur.
_______________
A.F.
JORDAAN, J
On
behalf of the
appellant: Mr. P.L. van der Merwe
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent
: Adv. S. Giorgi
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
EMK/sp