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2024
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[2024] ZAFSHC 158
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Adoons v S (A141/2023) [2024] ZAFSHC 158 (23 May 2024)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
FREE
STATE
DIVISION,
BLOEMFONTEIN
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no:
A141/2023
In
the matter between:
MZWAKHE
ADOONS
Appellant
And
THE
STATE
Respondent
CORAM:
M OPPERMAN J
et
MB
NEMAVHIDI AJ
HEARD
ON:
06 MAY 2024
DELIVERED
ON:
23
MAY 2024
JUDGMENT
BY:
MB NEMAVHIDI AJ
Introduction
[1]
The
appellant was tried and convicted on a charge of murder read with the
provisions of Section 51(2) of Act 105 of 1997 and was
sentenced to
15 years' imprisonment. The murder was committed by appellant and his
two brothers. This crime was committed on the
14
th
of
April 2019 and all three brothers were sentenced on the 30
th
of November 2022. The appellant's application for leave to appeal was
granted by the court a
quo.
He
is appealing against both conviction and sentence.
[2]
The appellant avers in the notice of appeal
that the court
a quo
erred
in convicting him of murder and stated the following:
(a)
The court erred in finding that the
State proved the case against him beyond reasonable doubt whereas the
evidence of the state
witnesses was contradictory
in material respects.
(b)
The court erred in finding that the
contradiction of the state witnesses were justified by the fact that
they were hiding in different
places and were
running away.
(c)
The court erred in finding that on
that day the BTK (Born to kill) gang, which deceased belonged to,
confirmed the identity of the
appellant as the one who stabbed the
deceased.
(d)
The court erred in rejecting his
evidence as not being reasonably possibly true.
Background Facts
[3]
The
deceased
was
in
the
company
of
Lebohang
Lemelwane,
Andile
Tini and Nkosinathi
Bujeje
at
Pitseng
Tavern
after
midnight
on the 14
th
of
April
2019.
[4]
They were consuming a quart of beer when
appellant approach them, a while later he looked
at them in a demeaning
manner
and
then entered the tavern.
[5]
He came back with an empty beer bottle
banged it against the wall and continued banging it against the door
and until it broke.
[6]
The
deceased
then
stated
that
they
should
move
out
of
the
premises
of
the
tavern.
[7]
As they moved out, they noticed the
presence of accused 2 and 3.
Accused
3 emptied the school bag which he was carrying and three knives fell
on the ground. Each one was given a knife by accused
3.
Once they were outside
the gate appellant and his two co-accused approached them while
holding their knives.
It was at that time that
the deceased threw a bottle at them in order to prevent the appellant
and his two brothers from reaching
them.
[8]
The
three
started
running
while
the
appellant
and
his
cohort
pursued them. Deceased fell and accused 3
stabbed him on the back of his neck. There was a flood light outside
the tavern and as
such visibility
was
good.
[9]
Deceased got up and tried to run and fell
again. Appellant then started stabbing the deceased on his chest
while sitting on his
stomach. Accused 2 held the deceased's feet
while chopping him with a panga. Accused 3 also stabbed him on his
head.
At the time the appellant
and his brothers were stabbing the deceased, Lemelwane picked up two
stones and threw the assailants with
it.
Appellant and his cohort
were stating that the accused must die. They appeared to be enjoying
the situation in that they celebrated
the death of the deceased by
singing that they must tell deceased's friend, Reddison, that they
are ready to kill him.
Appeal on merits
[10]
The ground of the appeal is premised mainly on the identity of the
appellant. Case law:
See S v Mthetwa
1972 (3) SA 766
A on 768 A - C
where Holmes JA stated that:
"Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution.
It is not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested. This depends
on various factors,
such as lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation,
both as to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused's
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against
the other, in the light of the totality of the evidence, and the
probabilities; see cases
such as R v Masemang,
1950 (2) SA 488
(AD);
R. v Dladla and Others,
1962 (1) SA 307
(AD) at p. 310C; S v Mehlape,
1963 (2) SA 29
(AD)."
[11]
The court
a
quo
found that the three State witness
gave their testimony in a satisfactory manner without any material
contradiction. They
testified
on
what
happened
on that
night and what caused the death of the deceased. They did not know
the appellant and they were adamant that they were not
mistaken about
what they saw on that night.
[12]
The appellant placed himself on the scene
but denied any involvement in the attack.
[13]
The court
a
quo
found that the appellant and his
two brothers stabbed the deceased jointly. Accused 3 was the one who
stabbed the deceased when
he first fell down. After he rose, ran and
fell again,
appellant
sat
on
his
stomach
and proceeded to stab him on his chest several times. Accused 2 and 3
joined him in the attack
by
stabbing
and
chopping
him with
a panga.
[14]
The area was well lit with an Apollo light, which helped the state
witnesses to correctly
see and identify all assailants.
Applicable principle on
appeal
[15]
The approach adopted by a court of appeal when dealing with the
factual finding of a trial
court is guided by the collective
principles laid down in
Mkhize v S (16/2013)
[2014] ZASCA 52
(14
April 2014):
"A court of appeal
will not disturb the factual findings of a trial court unless the
latter had committed a material misdirection.
Where there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct. The appeal
court will only reverse it where it
is convinced that it is wrong. In such a case, if the appeal court is
merely left in doubt
as to the correctness of the conclusion, then it
will uphold it".
Just as Marais JA puts it
in
S v Hadebe
1997 (2) SACR 641
SCA at 654 E-F:
"Before
considering these submissions, it would be as well to recall yet
again that 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 appellate Courts to
factual findings of the trial court are so well known that
restatement is unnecessary".
In applying the principle
above, our call is to consider if there was any indication by the
court a
quo
to warrant our inference with its findings.
What appears to be contradictions were raised in this appeal. It is
important to highlight
at this stage that some of what was raised as
contradictions are not actually contradictions but different
observation by different
witnesses.
See
S v Liesching and
Others
2019 (4) SA 219
CC para 96
where the court stated: "Two
witnesses seldom give identical accounts of the same evidence so not
all errors or contradiction
between their evidence will affect their
credibility".
[16]
The findings by the court a
quo
that the evidence presented by the
appellant is improbable and not reasonably possibly true cannot,
therefore be faulted. The appeal
sho!,Jld therefore as a result be
dismissed.
Appeal on Sentence
[17]
As indicated above the appellant was
sentenced to a term of fifteen years' imprisonment
in terms of section 51(2) of Act 105 of
1997.
[18]
It is trite law that a court of appeal will
only interfere with a sentence if it is not suitable or if an
irregularity
occurred
during sentencing.
[19]
The appellant contends that the sentence is
inappropriate because of the following:
(a)
The sentence is shockingly
inappropriate
and
induces a sense of shock.
(b)
The severity of the offence was
overemphasized at the cost of his personal circumstances.
(c)
The court erred in finding that
there were no substantial and compelling circumstances present to
deviate from the imposition of
a minimum sentence.
[20]
Witness Andile Quinton Tini told the court
a quo
that
appellant was released from
jail
three
months
earlier
where
he
had
been
serving
a
15
-
years
term of imprisonment for rape. This conviction appears on the
appellant's SAP 69; which conviction the appellant confirmed.
Murder is a very serious
offence and the court a
quo
did not find the existence
of substantial and compelling circumstances.
[21]
Appellant did not show any remorse and he
was the principal aggressor on the night in question.
The appellant and his
brother celebrated after killing the deceased who they stated that he
was the boss of the BTK (Born to kill)
gang.
[22]
In
S v Hewitt
2017(1) SACR 309 (SCA) para 8
it
was held that:
"It
is a trite principle of our law that the imposition of sentence is
the prerogative of the trial court. An appellate court
may not
interfere with this discretion merely because it would have imposed a
different sentence. In other words, it is not enough
to conclude that
its own choice of penalty would have been
an
appropriate penalty. Something more is
required; it must conclude that its own
choice
of
penalty
is the
appropriate
penalty
and that the
penalty
chosen
by
the
trial court is not.
Thus,
the
appellate
court
must
be
satisfied
that
the
trial
court
committed
a
misdirection
of such a nature, degree and seriousness that shows that it did not
exercise its sentencing discretion at all or exercised
it improperly
or unreasonably
when
imposing it. So, interference is justified only where there exists a
'striking' or 'startling' or 'disturbing' disparity
between the trial court's sentence
and that which the appellate court
would have imposed. And in such instances
the trial court's discretion
is
regarded
as
having
been
unreasonably
exercised."
[23]
There was no finding of the presence of
substantial and compelling circumstances
in
favour
of
the
appellant
to
justify
the
imposition
of
a
lesser sentence.
[24]
Appellant
was
convicted
of
murder
read
with
the
provisions
of
section 51(2) of Act 105 of 1997, therefore
the court a
quo
was
bound to impose a minimum sentence in terms of Part 2 of Schedule 2
of not less than fifteen years' imprisonment.
[25]
Consequently,
the
following
order
is made:
Order
1.
The appeal
against both conviction
and sentence
is
dismissed.
MB
NEMAVHIDI AJ
I
concur
M
OPPERMAN J
On
behalf of the Appellant:
P.L
VAN DE MERWE
Instructed
by:
LEGAL
AID SOUTH AFRICA
BLOEMFONTEIN
On
behalf of the Respondent:
N.M
TSHEFUTA
Instructed
by:
DIRECTOR
OF PUBLIC PROSECUTIONS
BLOEMFONTEIN