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2024
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[2024] ZAFSHC 307
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Sehloho and Another v S (A194/2023) [2024] ZAFSHC 307 (3 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: A194/2023
In
the matter between
NKARENG
DAVID SEHLOHO
FIRST
APPELLANT
OFENTSE
JOHANNES SEKGAPANE
SECOND
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
NAIDOO J,
et
GROENEWALD AJ
Heard:
27
MAY 2024
Delivered:
03
OCTOBER
2024
ORDER
1.
The appeal on both the conviction and sentence is dismissed.
2.
The conviction of and sentence imposed
on each appellant is confirmed.
JUDGMENT
Groenewald
AJ (Naidoo J concurring)
[1]
On 31 May 2023 the appellants were convicted by the Regional
Court in Theunissen of murder read with the provisions of s 51(1) of
the Criminal Law Amendment Act 105 of 1997 (the Act). The appellants
were subsequently both sentenced to life imprisonment. The
appellants
have, as a result of the imposed sentence, an automatic right of
appeal in terms of
s 309(1)
(a)
of the
Criminal Procedure Act
51 of 1977
. The appeal is directed against both the conviction and
the sentence.
The
Conviction
[2]
Mr Paseka Kevin Motlolisi (Mr Motlolisi) testified on behalf
of the State. Mr Motlolisi was a friend of the deceased and he knows
the appellants. On 4 June 2020, the deceased asked Mr Motlolisi to
accompany him to the first appellant’s home. Upon their
arrival, they met the appellants and consumed liquor together.
However, after an argument between the deceased and the first
appellant,
the deceased left announced. After the deceased left, the
first appellant noticed that his wallet was missing.
[3]
According to Mr Motlolisi, he and the appellants went looking
for the deceased. They arrived at a certain Moshanyana’s place
where they were informed that the deceased was at the RDP house close
by, where they found him around midnight. The first appellant
asked
the deceased where his wallet was, and deceased said that he did not
take the wallet. When the appellants endeavoured to
search the
deceased, he ran away. Mr Motlolisi and the appellants chased after
the deceased, but the deceased accidentally ran
into a wire fence and
fell on the ground.
[4]
Mr Motlolisi testified that the appellants proceeded to
assault the deceased while he was on the ground by kicking and
stamping
on him and hitting him. The deceased was screaming while he
was being assaulted and begged the appellants to stop. Mr Motlolisi
also tried to intervene, but he was forcefully prevented from doing
so by the appellants. After the assault, the appellants dragged
the
deceased away into the darkness. Mr Motlolisi went to the police and
was told upon his arrival that the police will search
for the
deceased, but they only had one vehicle available at the time. Mr
Motlolisi then left the police station and later learned
that the
deceased passed away.
[5]
Mr Khotso Eddie Phara (Mr Phara) was a further witness for the
State. Mr Phara testified that he knows the appellants because they
used to be members of the same gang. He also knew the deceased.
On the day of the incident, he was sitting at his parental
home with
one of his friends. The two appellants passed by the place where they
were sitting, carrying the deceased. The appellants
stopped for a
while and Mr Phara had a discussion with them. According to Mr
Phara, he inspected the deceased and found him
snoring.
[6]
Dr Thulani Lancelot Nkosi (Dr Nkosi) also testified on behalf
of the State. He is a medical practitioner who specialises in
forensic pathology. Dr Nkosi conducted a post-mortem on the deceased
and found that the deceased suffered multiple blunt force
injuries
consistent with that sustained during an assault. The deceased
suffered from head injuries, blunt neck trauma and had
abrasions on
his face, back, torso and buttocks. According to Dr Nkosi, the
cause of death of the deceased was on account
of his head injuries
and blunt neck trauma.
[7]
During cross-examination Dr Nkosi was asked whether the wire
which the deceased ran into could cause the injuries. Dr Nkosi
testified that, if one has regard to the nature and the extent of the
injuries, it is unlikely that the injuries were caused by
the wire
fence.
[8]
According to the appellants the court
a quo
erred in
finding that Mr Motlolisi, who according to the appellants, was a
single witness, was a credible witness. According
to the
appellants the court
a quo
did also not duly consider the
‘inherent improbabilities’ in the State’s case. I
disagree with the appellants.
The court
a quo
duly found that
Mr Motlolisi’s version of events was corroborated by Mr Phara
who confirmed that the two accused carried
the deceased in an
unconscious state. The
post mortem
report of Dr Nkosi also
revealed various injuries which, according to the court
a quo
,
correlated with the observation of Mr Motlolisi that the deceased was
indeed assaulted. The version of the State was not improbable
and
there was no reason for the court
a quo
to reject the version
of Mr Motlolisi and the other state witnesses.
[9]
After the close of the State’s case, both appellants
testified. The appellants admitted that Mr Motlolisi and the deceased
visited them at the home of the first appellant during the night of
the incident. According to their testimony, after the deceased
left
unannounced, the wallet of the first appellant was missing. The
appellants further admit that both of them and Mr Motlolisi
left the
home of the first appellant and found the deceased, whereupon they
confronted him and wanted to search him.
[10]
According to the appellants they arrived at Moshanyana’s
and were informed by someone at the door that the deceased was at
the
house next door. They went to the house next door and found the
deceased siting inside, along with approximately four other
people.
The appellants and the deceased went outside and an argument ensued
between them when the appellants wanted to search the
deceased. The
other people came out from the house and confronted them. These
people were armed with sticks and other weapons.
However, the
deceased started running and the appellants followed. After a while
the appellants realised that the people were no
longer chasing them
and they decided to go back to look for the deceased. They found the
deceased lying on the ground and he was
snoring.
[11]
In
the judgment of the court
a
quo
reference was made to
S
v Chabalala
[1]
where the Supreme Court of Appeal held the following:
‘
The correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.’
[12]
The court
a quo
rejected the evidence of the appellants
after evaluating it in its totality and found that their versions
cannot be considered
as reasonably and possibly be true. The court
a
quo
inter alia
questioned why the people would suddenly
chase the deceased if he was in fact sitting with them in the house
just prior to that.
[13]
Having considered the evidence and judgment of the court
a
quo
, I am unable to find that the court
a quo
erred in
convicting the appellants.
The
Sentence
[14]
In terms of s 51(1) of the Act, the
crime
of which the appellants were convicted carries a prescribed sentence
of life imprisonment,
unless
there are substantial and compelling circumstances present that
justify a departure from imposing the prescribed sentence.
[15]
In
Bailey v
S
[2]
the Supreme Court of appeal dealt with the approach to be followed by
a court on appeal when dealing with Act 105 of 1997:
‘
What then is the
correct approach by a court on appeal against a sentence imposed in
terms of the Act? Can the appellate court interfere
with such a
sentence imposed by the trial court’s exercising its discretion
properly, simply because it is not the sentence
which it would have
imposed or that it finds shocking? The approach to an appeal on
sentence imposed in terms of the Act should,
in my view, be different
to an approach to other sentences imposed under the ordinary
sentencing regime. This, in my view, is so
because the minimum
sentences to be imposed are ordained by the Act. They cannot be
departed from lightly or for flimsy reasons.
It follows therefore
that a proper enquiry on appeal is whether the facts which were
considered by the sentencing court are substantial
and compelling or
not.
’ (Emphasis added.)
[16]
The first appellant was previously convicted on 21 October
2009 of assault with the intent to do grievous bodily harm and was
sentenced
to 6 months’ imprisonment. He was also declared
unfit to possess a firearm. On 23 May 2013 the first appellant was
convicted of rape and was sentenced to 7 years’ imprisonment.
On 20 November 2016 the first appellant was again convicted
of
assault with the intent to do grievous bodily harm and was sentenced
to 24 months’ imprisonment.
[17]
The second appellant was convicted of assault on 3 May 2014
and paid an admission of guilt fine of
R100.00
. The
appellants did not present any evidence in mitigation of sentence.
There is, therefore, no evidence before Court
that the appellants had
any remorse for their crimes.
[18]
The court
a quo
considered that the age of the
appellants is 32 and 28 years respectively. The court
a quo
also duly considered the personal circumstances of the appellants and
found that there are no compelling circumstances to justify
a
departure from the prescribed sentence of life imprisonment.
[19]
Having considered the evidence and the judgment of the court
a
quo
, I am not persuaded that the Court erred by not deviating
from the prescribed minimum sentence of life imprisonment.
Order
[20]
In the result,
I propose that
the
following order is made:
20.1 The appeal on
both the conviction and sentence is dismissed.
20.2 The conviction
of and sentence imposed on each appellant is confirmed.
WJ
GROENEWALD, AJ
I
concur, and it is so ordered
NAIDOO,
J
Appearances
On
behalf of the Appellants:
Me. V
Abrahams
Legal
Aid
Bloemfontein
On
behalf of the Respondent:
Adv.
MS Matsoso
Office
of the Director of Public Prosecutions
Bloemfontein
[1]
S v
Chabalala
2003 (1) SACR 134
(SCA) para 15.
[2]
Bailey
v S
[2012] ZASCA 154
;
2013 (2) SACR 533
(SCA) para 20. See
also
Moraile
v S
[2022] ZAFSHC 138.