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2024
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[2024] ZANCHC 55
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Majosi v S (K/S 16/17) [2024] ZANCHC 55 (7 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: K/S 16/17
Reportable:
YES/NO
Circulate
to Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Circulate
to Regional Magistrates:
YES/NO
In
the matter between:
MZWANDILE
MAJOSI
Applicant
And
The
State
Respondent
Coram: Lever J
JUDGMENT
Lever
J:
1.
This is an
application for leave to appeal. The applicant in this matter faced
three charges in the court
a
quo
.
Firstly, a charge of robbery with aggravating circumstances as read
with the minimum sentence provisions of the Criminal Law Amendment
Act
[1]
(CLAA also colloquially
known as the minimum sentencing Act) . Secondly, murder also read
with the minimum sentencing provisions
of the CLAA. Thirdly, certain
charges under the Drugs and Drugs Trafficking Act
[2]
.
2. The
applicant pleaded guilty and was found guilty on charge 3 being the
charges related to drugs. The applicant
pleaded not guilty to the
charges relating to the robbery with aggravating circumstances and
the murder charge.
3. The
applicant was found guilty on both the charge of robbery with
aggravating circumstances and the murder
charge. He was sentenced to
fifteen years and life imprisonment respectively. On the drugs
related conviction, the applicant
was sentenced to one year
imprisonment. The sentences on count 1 and count 3 were to run
concurrently with the life sentence imposed
on count 2. The applicant
was declared unfit to possess a firearm.
4. The
applicant seeks leave to appeal against the conviction and sentences
imposed in respect of the robbery
with aggravating circumstances
charge as well as the murder charge.
5. The
grounds of appeal as set out in the Notice of Application for Leave
to Appeal are set out in respect of
the convictions: “That
there exists a reasonable possibility that another court on appeal
may come to a different conclusion
on the evidence presented.”
In respect of the sentences imposed the grounds of appeal relied upon
read as follows: “That
there exists a reasonable possibility
that another court on appeal may find that there are substantial and
compelling circumstances
present which would justify the imposition
of a lesser sentence than that of life imprisonment.”
6. The
first thing to note about the grounds of appeal, both in respect of
the convictions and the sentencing,
is that they are broad and
general. No specified mis-directions or errors are referred to in
either the case of the convictions
or the sentences imposed.
7. The
evidence upon which the applicant was convicted is comprehensively
dealt with in the judgment. I will not
repeat my judgment. However, I
will summarise the salient points to the extent that it is necessary
to deal will this application
for leave to appeal.
8. The
State presented three types of evidence that implicated the
applicant. The first category of evidence adduced
by the State were
certain statements the applicant made to three different persons who
were known to him. The second category of
evidence was the fact that
certain of the deceased’s belongings were found in the
possession of the applicant shortly after
the body of the deceased
was discovered. The third category of evidence incudes DNA evidence
which corroborates the version of
one of the persons to whom certain
admissions were made by the applicant.
9. The
first person to whom admissions were made was a certain Mr Plaatjies.
The applicant took Mr Plaatjies to
a point in the veld where he said
that he had robbed and stabbed a person the night before. He also
told Mr Plaatjies that the
person was “hardegat” and
fought back to the extent that he broke a knife in the process and
had to use a second knife
he carried, to finish the job. Mr Plaatjies
took the Investigating Officer to the spot pointed out to him by the
applicant.
10. Mr Plaatjies’
evidence is supported and corroborated by the following facts: the
deceased’s body was found in that
general area; a broken knife
was found at the spot pointed out by Mr Plaatjies; there was blood at
the spot pointed out by Mr Plaatjies;
a sample of this blood was
taken and sent away for DNA testing; the DNA results confirmed that
such blood came from the deceased;
the applicant had a wound on his
hand, which was not adequately explained.
11. Then applicant’s
life partner who had two children with the applicant testified. The
life partner of the applicant whose
name is Lerato Betty Louw
testified that the applicant had informed her that he had fought with
the deceased. Ms Louw impressed
the court as a forthright and honest
witness. Her evidence dovetails with that of Mr Plaatjies and
provides support and corroboration
for his evidence.
12. Then Ms Williams gave
evidence that she and the applicant had struck up a conversation on
the night that the deceased was killed.
That the applicant had taken
her cell phone number. The following morning at 6 am applicant
contacted her and came to see her at
her flat. Ms Williams testified
that she noticed a fresh wound on the applicant. It was a fresh cut
on his right hand between the
thumb and the index finger. Ms Williams
testified that be informed her that he received that wound whilst
trying to protect the
deceased and that after he was wounded, he ran
away. This evidence places the applicant on the scene when the
deceased was attacked.
13. The applicant in his
evidence merely denied this and contended Ms Williams was lying. Ms
Williams had no reason to lie. She
had just met the applicant and the
deceased some hours before. She had no axe to grind with either of
them. Her evidence was not
undermined in any material respect.
14. The next category of
evidence were the personal items of the deceased found in the
applicant’s possession shortly after
the death of the deceased.
These items included a medical aid membership card, the deceased’s
shoes, the deceased’s
cell phone; an SAPS investigation diary
and certain store cards of the deceased. The applicant’s
explanation that the deceased
had given him these items was not
convincing. The deceased was a policeman he was a member of the GEMS
medical aid scheme. This
medical aid membership card is not something
that one would simply give away. Similarly, the deceased’s
shoes are such a
personal item that if given away there would be some
context or background to the fact that shoes would be given to
another person.
The applicant could not provide this context or
background. The evidence before the court showed that the deceased’s
body
was barefoot when it was discovered.
15. The wound to his
right hand was explained by applicant to have been inflicted by a
fall during a soccer match. At odds with
the explanation given to Ms
Williams. Also, applicant was given a postponement and other
assistance to place before the court evidence
to support his version.
Despite being afforded the opportunity to secure this evidence, it
was never forthcoming. As pointed out
in the judgment no onus was
placed on the applicant it is only mentioned to show that applicant
was given a fair opportunity to
place before the court evidence that
might support his version.
16. The final category of
evidence placed before the court was the DNA evidence already
referred to above. Nothing more needs to
be said about it.
17. All the evidence
placed before the court knits together to form a picture. Taking
account of all the evidence placed before
the court and viewing such
evidence holistically, I cannot come to any other conclusion than
that the applicant robbed and murdered
the deceased.
18. Having considered the
evidence again I cannot conclude that there is a reasonable
possibility that another court would come
to a different conclusion.
19. Similarly in respect
of the sentences imposed on the robbery and murder convictions, I
cannot find substantial and compelling
reasons to depart from the
prescribed minimum sentence. Nor can I find after reconsidering the
evidence placed before the court
that another court would reasonably
come to a different conclusion.
20. In respect of both
the convictions and sentences I must accordingly refuse leave to
appeal.
21. Both the applicant
and the respondent requested me to decide this application on the
papers before the court. After having read
the Heads of Argument
filed on behalf of the respective parties and after having read the
record I have acceded to this request.
Accordingly,
the following order is made:
1)
The application for leave to appeal in respect of both the
convictions and the sentences is refused.
Lawrence
Lever
Judge
Northern
Cape Division, Kimberley
REPRESENTATION:
Applicant:
Adv A
Van Tonder and Mr H Steynberg oio Legal Aid SA, Kimberley
Respondents:
Adv K
Ilanga and J Rosenberg oio The Director of Public Prosecutions,
Kimberley.
Date
of Judgment:
07
June 2024
[1]
Act 105 of 1997.
[2]
Act 140 of 1992.