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[2009] ZAGPPHC 230
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Hlatswayo v S (A657/08) [2009] ZAGPPHC 230 (27 March 2009)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT PRETORIA
DATE:
27/3/2009
CASE
NR: A657/08
NOT
REPORTABLE
In the
matter between:
JABULANI
ROBERT HLATSWAYO
APPELLANT
Versus
THE
STATE
RESPONDENT
JUDGMENT
MAKHAFOLA.
AJ:
INTRODUCTION:
[1]
The appellant stood trial on 12 August 2002 in the Regional Court
sitting in Pretoria North on one count of murder and one count
of
attempted murder allegedly committed on or about 30 September 1999 at
MP motors at or along the old Warmbaths Road.
[2]
He was represented by an attorney throughout the trial. He pleaded
not guilty to both charges. The appellant further made admissions
which were recorded in terms of SECTION 220 of ACT 51 of 1977.
[3]
He was convicted on both counts and sentenced to 15 years
imprisonment in terms of SECTION 51 (2) (a) (i) of ACT 105 of 1997
on
count 1 and was further sentenced to 5 years imprisonment on count 2
and the sentence in count 2 was made to run concurrently
with the
sentence in count 1 in terms of SECTION 280 (2) of ACT 51 of 1977.
The appellant was sentenced to serve an effective 15
years
imprisonment. The trial court had also found that there were no
substantial and compelling circumstances.
[4]
The appellant approaches this court on appeal against both the
conviction and the sentence after leave was granted on petition
on 23
March 2008.
[5]
The State called the following witnesses: F [....] J [....] D [....],
J [....] J [....] D [....], W [....] S [....] J [....]
D [....] and H
[....] T [....] B [....]. Their evidence will not be rehearsed except
where specific aspects are materially relevant
to a point to be
decided upon.
[6]
According to the first witness three persons came in a tow-truck at
MP Motors: Dingaan, the appellant and another person he
totally does
not know. He was sitting in his motor vehicle because he was not
feeling well. Dingaan is the owner of Mercedes Benz
which had came
for repairs.
[7]
It was reported to him by one Ephraim that the driver of the
tow-truck has taken something, an alternator. Ephraim and the
appellant had a verbal fracas and the appellant took out a pistol. He
said he was going to shoot them all At that time Dingaan was
boarding
the “breakdown”. This witness was at a distance of about
4 to 5 meters away from the red tow-truck. He saw
the appellant
taking out his hand through the window and he shot at him because he
felt a burn pain and blood oozed from his hands.
He was shot on his
hand on the little finger and in the face.
[8]
Then there was a scream that Kareltjie was shot and had been standing
right behing him. When he shouted that his car be brought
to him then
the red tow-truck drove away. The appellant had fired more or less
seven shots. When his father came out of the office,
he and Kareltjie
were already shot. His father D [....] senior stood there and shot at
the appellant.
[9]
The evidence of the appellant is exculpatory. He had conceded having
fired shots in the air. During the mitigation of sentence
under
cross-examination he answers to the following question as follows:
“Meneer, is u jammer dat u die jong seun dood geskiet
het? ...
Ja, want ek het, dit was nie my plan om in enige bakleiery betrokke
te raak nie.” Vide:
Record:
Page 184 lines 14-16.
Immediately
after admitting shooting the young boy he contradicts himself in
answering the following question: “So u erken
u het hom
geskiet? ... Nee, dit erken ek nie.”
Vide:
Record: Page 184
line 17.
[10]
The state bears the onus of proving its case beyond a reasonable and
not beyond every doubt.
Vide:
R V MLAMBO
1957 (4)
SA 727
(A)
S
V PHALLO AND OTHERS
1999 (2) SACR 558
(SCA).
In
the absence of any misdirection on the part of the trial court it
must be presumed that the Magistrate’s finding of fact
is
correct and the appeal court will not, without justification,
interfere with it.
[11]
I cannot fault the manner in which the trial court went about to find
that the state witnesses had corroborated themselves.
In rejecting
the appellant’s version, the Magistrate made a factual finding
after considering the totality of the evidence
before court. The
State has proved the case against the appellant beyond a reasonable
doubt.
[12]
I turn to deal with the sentence briefly. The sentencing powers are
pre-eminently within the judicial discretion of the court
that tries
the accused. Unless there is a misdirection in the manner in which
the trial court had evaluated and assessed the facts
or has relied on
incorrect facts to sentence the accused the appeal court will not be
competent to interfere with sentence.
Vide:
R V MAPUMULO &
OTHERS
1920 AD 56
at 57.
[13]
It cannot be said that the sentence is shocking or inappropriate. In
my view, the sentence is proportionate to the crimes on
which the
appellant had been convicted.
There
are no substantial and compelling circumstances as the trial court
has correctly found. In the circumstances, I suggest that
the appeal
should fail and the convictions and the sentences be confirmed.
[14]
A point in limine taken by the appellant relating to assessors is
dealt with in terms of SECTION 93 ter of ACT 32 of 1944 which
states:
"The Magistrate may be assisted by assessors.” Therefore,
this point does not stand, because the section gives
the trial court
a discretion. The point in limine is dismissed.
[15]
In the result, the following order is given: The appeal on the
convictions and sentences is dismissed.
K
MAKHAFOLA
ACTING
JUDGE OF THE HIGH COURT
I agree,
and it is so ordered
AP
LEDWABA
JUDGE OF
THE HIGH COURT
Advocate
for Applicant: Adv. S van Rooyen
Mnr JH
van Rooyen
Advocate
for Respondent: Adv. SF Klein