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[2008] ZAWCHC 45
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Mbanyaru and Another v S (A271/2007) [2008] ZAWCHC 45; 2009 (1) SACR 631 (C) (11 August 2008)
Republic
of South Africa
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
No: A 271/2007
In the matter of
MNYAMEZELI MICHAEL
MBANYARU First Appellant
LUSINDISO MBANYARU Second Appellant
versus
THE STATE
_______________________________________________________________________
JUDGMENT
DELIVERED : 11 AUGUST 2008
________________________________________________________________________
MOOSA, J:
Introduction
The
appellants were convicted on 21 August 2006 on one count each of
murder, of attempted murder and of the unlawful possession
of a
firearm. On 18 October 2006, first and second appellants were
sentenced to 18 and 14 years imprisonment respectively; on
the
count of attempted murder they were each sentenced to five years
imprisonment and on the count of unlawful possession of a
firearm
they were each sentenced to three years imprisonment. The court
further ordered that the sentences imposed in respect
of the
attempted murder and the unlawful possession of firearm counts shall
run concurrently with the sentence imposed in respect
of the murder
count. The effective sentences of first and second appellants were
accordingly 18 and 14 years imprisonment respectively.
The
appellants, with the leave of the trial court, come on appeal to
this court against their convictions and sentences.
Despite
the fact that only second appellant formally applied for leave to
appeal, the trial court granted both appellants leave
to appeal.
First appellant did not file his grounds of appeal. Second
appellantâs grounds of appeal are contained in his application
for
leave to appeal. Adv
Burgers
, who appeared before us for
both first and second appellants, was instructed by the legal aid
board. He informed us that he had
instructions to appear for both
appellants and, despite the fact that no grounds of appeal had been
filed for first appellant,
he has instructions to pursue the appeal
in respect of him also. He indicated that the grounds of appeal in
respect of both appellants
are substantially similar and he is in a
position to argue the appeal in respect of both of them. Adv
Raphels
, for the State, had no objection thereto and the
court allowed Adv
Burgers
to put the case to us for both of
the appellants.
Grounds of
Appeal
The
grounds of appeal on the merits of the convictions are substantially
threefold. Firstly, that the trial court erred in accepting
the
identification evidence of the State and rejecting the alibi of the
appellants and concluding that the evidence, as a whole,
established
the guilt of the appellants beyond reasonable doubt. Secondly, that
the trial court erred in not rejecting the evidence
of Nomasibongwe
Patricia Hlobo (âHloboâ) and Phazamile Patrick Dyonase
(âDyonaseâ) because of the material discrepancy
in their
evidence as to whether or not they saw second appellant in
possession of a firearm at the time they were seen running
away from
the crime scene. Thirdly, that the trial court erred in holding
that the crime was executed by the appellants in pursuance
of a
common purpose. The court will deal with each of these grounds in
turn.
The
Facts
It is
common cause that on 13 February 2004 and at Old Faure Road,
Khayelitsha, one Nasir Frieslaar (âthe deceasedâ) was shot
and
killed and one, David John Van der Westhuizen (âVan der
Westhuizenâ) was shot and injured. The undisputed evidence is
that on the particular day and place the deceased was sitting in the
driver side of his stationary bakkie and Van der Westhuizen
in the
passenger side of the bakkie. The deceased had hooted to indicate
to his workmen, who were living in the vicinity, that
he had arrived
to transport them to their work place. While they were waiting in
the bakkie, an assailant appeared at the driver
side of the bakkie
and, without saying a word, shot the deceased. The deceased slumped
forward and later died as a result of shot
wounds to the neck and
chest. Van der Westhuizen who saw the assailant shooting, crouched
in the bakkie to avoid being shot, but
discovered later that he had
been shot in the chest. He also noticed another person standing
behind the assailant. After the
deceased was shot, the bakkie which
was idling, began careening out of control across the road, while
the assailant was hanging
on to the steering wheel. In the process
the bakkie crashed against another vehicle and came to rest against
the wall on the opposite
side of the road.
The
Identification
Van
der Westhuizen was unable to identify the assailant or the person
standing behind him. Gobodo Tom (âTomâ) who was present
at the
scene near the bakkie, during the shooting, was likewise unable to
identify the assailant with the firearm. He did not
see a person
standing behind the armed assailant as testified to by Van der
Westhuizen. He, however, saw two persons standing
at the passenger
side of the bakkie. He could not say whether they were involved or
not with the armed assailant. He, however,
testified that they did
not run away when other members of the public ran away while the
shooting was in progress. Two State witnesses,
namely Hlobo and
Dyonase, saw two persons running away from the direction of the
crime scene soon after they had heard shots being
fired. The two
persons ran past them. According to Hlobo one was armed, but
according to Dyonase both were armed. I will return
to this issue
later. Hlobo and Dyonase identified the first and second appellants
as the persons who had run past them. Dyonase
testified that
although it was not daylight, the street lights were still on. The
street lighting was good. He had no difficulty
in seeing their
faces as they ran past him. Hlobo testified that they ran behind
each other towards her from the scene of the
crime. She had enough
time to look at them when they came running towards her and passed a
few meters away from her. Van der
Westrhuizen testified that when
he alighted from the bakkie after the shooting, he saw the assailant
and the person standing behind
him disappear down the embankment
towards the informal settlement.
Hlobo
knew both the appellants prior to the incident and also knew their
nicknames and where they lived. Both appellants confirmed
this in
their evidence. First appellant testified that he had a love
relationship with Hlobo from 1998 till the end of 1999.
Dyonase
knew first appellant by sight prior to the incident. This was
confirmed by first appellant under cross-examination. However,
second appellant testified that he also knew Dyonase by sight.
Hlobo and Dyonase attended an identification parade and positively
identified both appellants as the two persons who ran past them on
the day of the incident. The identification of the appellants
is
strengthened by the fact that both appellants were known to Hlobo
prior to the incident and first appellant was also seen by
Dyonase
in the area prior to the incident. Hlobo informed the police of the
involvement of the appellants and went with them to
point out where
the appellants lived. In pursuance thereto the appellants were
arrested.
Alibi
The
appellants denied that they were at the scene of the crime or ran
away as testified to by Hlobo and Dyonase. The appellants,
in their
plea explanation, said that they were at home on the morning of the
incident. They testified that on the morning they
woke about 07:00
and went to work as usual, at the business of first
appellantâs brother and second appellantâs uncle, namely
Mzwandile Mbanyaru (âMbanyaruâ). They testified that they were
not at the scene of the crime. They were busy helping Mbanyaru in
the business the whole day. This was confirmed by Mbanyaru
who was
called by first appellant to testify for him.
The
principal reason the trial court gave for rejecting the alibi
defence of the appellants, is
âthat it cannot reasonably
possibly true in the light of the evidence of Hlobo and Dyonase to
the effect that they, quite independently,
saw the accused running
from the bridge that morningâ.
The trial court came to that
conclusion after making a credibility finding in respect of the
appellants and Mbanyaru. The trial
court said:
âIn
considering the alibi defence of the accused, I must immediately
point out neither one of them made a very good impression
on me, nor
did Mzwandile Mbanyaru, who was apparently related to both of them,
although differentlyâ.
It is a trite principle of our law
that a court of appeal will not easily interfere with the
credibility findings of a trial court
which sees and hears the
witnesses in person, is steeped in the atmosphere of the trial and
is furthermore in an advantageous position
to observe their
demeanour (
R v Dhlumayo and Another
1948 (2) SA 677
(A) at
677-678).
It is
improbable that Hlobo could have made a mistake with regard to the
identification of the appellants. They lived in the same
area. She
knew where they lived. She knew their nicknames. She volunteered
the information of their possible involvement immediately
after the
incident and pointed out to the police where the appellants lived.
She is corroborated by the appellants that they are
known to her.
She is also corroborated by Dyonase who places both appellants at
the scene of the crime and who identified both
of the appellants at
an identification parade and in court. First appellant corroborates
the evidence of Dyonase that they knew
each other by sight.
Although Dyonase testified that he did not know second appellant
prior to the incident, the latter confirms
that he knew Dyonase by
sight. In my view the trial court correctly ruled out the question
of mistaken identity on the part of
both Hlobo and Dyonase in
respect of the appellants. In view thereof, the alibis of the
appellants, as the trial court correctly
found, could not be
reasonably possibly true. I am satisfied, on the totality of the
evidence, that the two persons running away
from the scene of the
crime, at the time of the incident, were the appellants as testified
to by Hlobo and Dyonase.
Were both
the appellants armed as alleged by Dyonase or only one as alleged by
Hlobo?
The
next question to be determined is whether both the appellants were
armed as alleged by Dyonase or only first appellant as alleged
by
Hlobo. This constitutes the second ground of appeal. Appellants
argued that the trial court erred in not rejecting the evidence
of
both Hlobo and Dyonase as they contradicted themselves on a material
point as to whether only first appellant was armed or both
were
armed. The trial court found that both the first and second
appellants were armed. The only eye witness who places the second
appellant in possession of a firearm at the time the appellants were
fleeing from the crime scene, is Dyonase. Hlobo did not see
the
second appellant in possession of a firearm at the time. The trial
court accepted the evidence of Dyonase that both were armed
at the
time. However, the trial court did not deal with the contradiction
in the evidence of Hlobo and Dyonase on this aspect.
In my view the
objective evidence and probabilities do not support the conclusion
of the trial court in respect thereof.
In
the first place the ballistic analysis performed on the fired
cartridges found at the crime scene and the fired bullets retrieved
from the deceasedâs body, confirm that the bullets were fired from
one and the same firearm. In the second place, Dr Brouwer,
who
performed the post-mortem examination on the body of the deceased,
confirmed that the shots were fired at the deceased at point-blank
range. In the third place, Van der Westhuizen testified that he saw
one person, at the half open window on the driver side of
the
bakkie, with a firearm; he saw the person putting the firearm
through the opening of the window and shooting at the deceased;
and
he noticed another person behind the assailant but did not observe
him shooting or noticed him being armed. In the fourth
place, Tom,
after hearing a bang, turned around and noticed a person at the
driver side of the bakkie with a firearm and, while
the bakkie was
moving towards him, the shooting continued; he also observed two
other persons on the passenger side of the bakkie,
but he did not
notice any firearms in their possession.
In
the fifth place, Willem Diederick Basson (âBassonâ) testified
that he spoke to two of the workers of the deceased at the
scene of
the crime. They informed him that soon after they heard shots, they
saw two men running down the bridge from the direction
of the bakkie
and past them, one of them had a firearm in his possession; under
cross-examination he identified the one of the
two workers he spoke
to, as Dyonase. In the sixth place, Themba Matwe (âMatweâ)
testified that he spoke to bystanders at the
scene of the crime who
told him that they saw two persons running away from the scene of
the crime and one of them was armed.
The evidence of both Basson
and Matwe, although hearsay, on the one hand, is in direct contrast
to the evidence of Dyonase and,
on the other hand, gives credence to
the evidence of Hlobo that only first appellant was armed. In the
seventh place, if two of
the assailants had firearms, it is probable
that the second assailant would have produced the firearm on the
bridge where the incident
took place and not when they were fleeing
from the scene of the crime. The overwhelming evidence, objective
facts and probabilities
point to the fact that only one firearm was
used. This is consistent with the evidence of Hlobo and
inconsistent with the evidence
of Dyonase. The possibility that he
could have been confused and made a
bona fide
mistake, by
testifying that the second appellant also had a firearm, cannot be
excluded.
In
the light of the objective evidence, I re-iterate that the persons
Hlobo and Dyonase saw running away from the scene of the crime
were
appellants as found by the trial court. I further find that only
first appellant was armed and second appellant was not armed.
I am
satisfied that the trial court misdirected itself by holding that
second appellant was also armed. In this regard the trial
court,
for the purpose of its reasoning in the judgment, ignored the
evidence of Hlobo and assumed the correctness of Dyonaseâs
evidence to the effect
âthat each of the persons he saw running
from the bridge was carrying a firearmâ.
On the basis of such
assumption, the trial court concluded
âthat the two persons
seen running from the bridge by Dyonase perpetrated or were involved
in the attack on the deceased and Van
der Westhuizenâ.
In
coming to such conclusion, the trial court failed to evaluate an
important contradiction between the evidence of Hlobo and Dyonase
on
the basis of probabilities, regarding the question of whether second
appellant was armed or not. In my view the reasoning of
the trial
court was accordingly flawed and led to an incorrect finding of
fact.
Common
Purpose
I now
turn to the third ground of appeal namely, the question of common
purpose. It is common cause that the State relied on the
doctrine of
common cause to convict the appellants. The trial court correctly
found that the common purpose was not based on prior
agreement. It
is settled law that, in the absence of prior agreement, an accused
charged with murder based on common purpose and
whose actions are
not causally related to the death of the victim, can only be
convicted if certain prerequisites are met. They
are firstly that,
he must have been present at the scene of the crime; secondly, that
he must have been aware of the assault;
thirdly, he must have
intended to make common cause with the person or persons
perpetrating the assault; fourthly, that he must
have manifested
his sharing of the common purpose by himself performing some act of
association with the conduct of the perpetrator
or perpetrators and
lastly, he must have had the requisite intention ie the
mens rea
.
(
S v Mgedezi & Others
1989 (1) SA 687
(A) at 705
I
-706B.)
The court can only convict an accused for murder if he had formed
the common purpose before the fatal blow was delivered.
(
S v
Motaung and Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A) at 520G-521A.) No
liability in terms of the doctrine of common purpose can arise for
acts committed after the attainment of
the common purpose (
R v
Garnsworthy & Others
1923 WLD 17).
Where no common purpose
can be proved, no liability can arise in terms of the doctrine of
common purpose (
S v Petersen
1989 (3) SA 420
(A) at
425G-426A).
I
have earlier found that that the first appellant was armed and
second appellant was not armed at the time they were fleeing from
the scene of the crime. There is no direct evidence to link
appellants to the crime. Both Van der Westhuizen and Tom testified
that they saw a person at the driver side of the bakkie with a
firearm, shooting at the deceased. They were not able to identify
the person. Van der Westhuizen testified further that he saw
âthe
shooterâ
and a second person standing behind him, disappearing
down the embankment after the bakkie came to a standstill on the
opposite
side of the road. I have already found that the two
persons who disappeared down the embankment were the first and
second appellants.
Having found that only first appellant was
armed, the only reasonable inference the court can draw is firstly,
that first appellant
was the person who was seen by Van der
Westhuizen and Tom at the passenger side of the bakkie, shooting at
the deceased and Van
der Westhuizen in the bakkie and secondly, the
person standing behind him as testified to by Van der Westhuizen,
was second appellant.
(
R v Blom
1939 AD 188
at p 202-203.)
Because
of second appellantâs presence at the scene of the crime,, he must
have been aware of the shooting. There is, however,
no evidence
that he had intended to make common cause with first appellant or
had manifested a common purpose by performing some
act of
association with the conduct of first appellant or had the necessary
mens rea
. The only incriminating evidence against second
appellant is that, after the shooting, he ran away with first
appellant who was
armed. There is also evidence that many other
persons ran away from the scene after the shooting. In my view the
mere presence
and running away from the scene of the crime with the
perpetrator, do not meet the requisites of common purpose as set out
above.
(See
S v Petersen
(supra)
.) The trial court
held that the presence of second appellant on the facts of this case
âgo beyond mere presence and, in itself, constitutes an act or
acts of association that are sufficient to satisfy the requirements
for the establishment of a common purposeâ.
I cannot agree.
In my opinion that finding is clearly wrong and a misdirection in
that it stretches the doctrine of common purpose
beyond reasonable
and legitimate boundaries.
Finding
Although
second appellant was at the scene of the crime, I am not satisfied
that the State has proved the guilt of the second appellant
beyond
reasonable doubt. He is, therefore, entitled to his acquittal on
all the charges. As far as the first appellant is concerned,
I am
satisfied that the trial court was correct in rejecting his alibi as
not reasonable possibly true and convicting him on counts
one, two
and three.
Sentence
I now
turn to consider the sentence of the first appellant. He was
sentenced to 18 years imprisonment on the murder charge (count
one),
five years on the attempted murder charge (count two) and three
years on the unlawful possession of the firearm (count three).
The
trial court further ordered that the sentences on counts two and
three run concurrently with the sentence imposed in respect
of count
one. He was effectively sentenced to 18 years imprisonment. It is
a trite principle of our law that the imposition of
sentence is
pre-eminently a matter for the discretion of the trial court. The
appeal court will only interfere with the sentencing
discretion of
the trial court, if it has misdirected itself in a material respect,
or if the sentence imposed was shockingly inappropriate
or that no
reasonable court would have imposed such sentence, or where the
discretion was not exercised reasonably or properly.
(
S v Rabie
1975 (4) SA 855
(A) at 857D-E;
S v Pieters
1987 (3) 717
(A) at 727F-H and
S v Malgas
2001 (2) SA 1222
(SCA) at para
12.)
The
first appellant was sentenced on the basis that he committed
the murder in the execution or furtherance of a common purpose as
envisaged
in terms of Section 51(1)(a) of the Criminal Law Amendment
Act, 105 of 1997, (âthe Actâ) which attracts life imprisonment
in
the absence of substantial and compelling circumstances. I have
found that the State has failed to prove common purpose. From
the
evidence it is quite clear that it was a cold, calculated and
callous murder perpetrated on a defenceless victim. The close
range
at which the shots were fired, shows that
dolus directus
or
direct intention to kill was present. I have found that while the
deceased was waiting for his workmen to arrive, first appellant
appeared and without saying a word, shot the deceased and then ran
away. The State did not advance any motive for the murder.
This
was conceded by Adv
Raphels
. From the circumstances, the
only reasonable inference I can draw is that the murder was planned
or premeditated as envisaged
in Section 51(1)(a) of the Act.
In
the light of all the circumstances and the facts found by me, I am
satisfied that there are substantial and compelling circumstances
not to impose the minimum sentence of life imprisonment. Although
the sentence, on the face of it, appears to be lenient and I
may
have considered imposing a heavier sentence sitting as a court of
first instance, I do not regard the sentence imposed by the
trial
court in respect of the three counts, as unreasonable or
inappropriate. I would accordingly exercise my discretion to impose
the same sentence. The only altered circumstances faced by this
court in relation to the trial court on the question of sentence,
is
the fact that this court specifically made a finding for reasons
given, that the first appellant was the actual perpetrator
whereas
the trial court did not make such a finding. The trial court found
that it was unable to make a finding as to who was
the actual
perpetrator.
Conclusion
In
the premises I am of the view
that
the appeal of second appellant should succeed, his conviction and
sentence on all counts should be set aside and he should
be
acquitted and
that
the appeal of first appellant should be dismissed and his conviction
and sentence on all counts should be confirmed.
......................................
E
MOOSA
BOZALEK,
J: I agree.
â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..
L BOZALEK
DLODLO, J:
I agree.
â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..
D V DLODLO
For
Appellants : Adv P J Burgers
Attorneys) : Cape Town Justice Centre
For Respondent : Adv S Raphels
Heard on 21 July 2008
Bench: Moosa, Bozalek et Dlodlo, JJ
MM & L
Mbanyaru v The State
Cont/â¦