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2024
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[2024] ZANCHC 65
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Mphetsheni v S (CA & R 57/2023) [2024] ZANCHC 65 (26 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
Case No:
CA & R 57/2023
Heard on:
03/06/2024
Delivered on:
26/07/2024
Reportable:
YES / NO
Circulate to
Judges:
YES / NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional Magistrates: YES
/ NO
In
the matter between:
MBUYISELO
ASHLEY MPHETSHENI
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mamosebo J et Lever
J
JUDGMENT
MAMOSEBO
J
[1]
The appellant stood trial in the Regional Court, Postmasburg on three
counts. Count
1 was that of murder r/w s 51 of Act 105 of 1997
which prescribes a minimum sentence of not less than 15 years unless
the Court
has found that there are substantial and compelling
circumstances justifying the imposition of a lesser sentence. In
Count
2 the appellant was charged with attempted murder where the
complainant, Keolebogile Priscilla Mooki, was knocked down by the
appellant’s
motor vehicle. Count 3 was a contravention of
s 16(1)(c) of the Road Traffic Act 93 of 1996 namely, failing to
render assistance
to the deceased, Motse Mooki, and the complainant.
Whilst in count 4 the charge comprised failing to bring a motor
vehicle
to a halt, failing to ascertain the injuries and failing to
report an accident within 24 hours.
[2]
On 28 October 2020 the Regional Magistrate, Mr Viewe, convicted the
appellant on counts
1, 2 and 3 and acquitted him on count 4. The
trial Court took counts 1 to 3 as one for purposes of sentence
thereby sentencing
him to an effective 17 years of direct
imprisonment. Mr Viewe passed on before an application for
leave to appeal could be
brought. On 13 November 2023 another
Regional Court Magistrate, Mr Hinana, granted the appellant leave to
appeal his conviction
and sentence. The record before us is
incomplete. However, Mr Nel, for the appellant and Ms Krüger,
for the respondent,
agreed that it is adequate to enable this appeal
to be heard.
[3]
The issues that stand for determination in this appeal are the
following:
3.1
Whether there had been compliance with s 93
ter
(1) of the
Magistrates’ Court Act 32 of 1944 (the MCA) by the trial Court;
3.2
Whether there was any misdirection by the trial Court in its findings
of fact;
3.3
Whether the trial Court had erred in convicting the appellant of
murder and attempted murder;
and
3.4
Whether the trial Court had erred in imposing a globular sentence of
17 years.
Section 93
ter
(1) of the MCA
[4]
The appellant contends that the trial Court had failed to comply with
the peremptory
provisions of s 93
ter
(1) of the MCA in that it
did not enquire from the appellant if he was aware of the provisions
of the section and for the mere fact
that the trial Court explained
in detail the provisions of s 51 (1) of the Criminal Law Amendment
Act to the appellant, it ought
to have similarly explained the
provisions of s 93
ter
(1) and on this ground alone the
conviction should be set aside.
[5]
Evidently, this ground demands a proper interpretation and
application of s 93
ter
(1) of the MCA. It is trite that
the correct approach to the interpretation of any document, including
statutes, is among
others, as espoused by the Supreme Court of Appeal
(SCA) in
Natal Joint Municipal Pension Fund v Endumeni
Municipality
2012 (4) SA 593
(SCA) at para 18.
[6]
Section 93
ter
(1)
[1]
provides that:
“
(1)
The judicial officer presiding at any trial may, if he deems it
expedient for the administration
of justice-
(a) before any
evidence has been led; or
(b)
in considering a community-based punishment in respect of any person
who has been convicted of any offence,
[2]
summon to his or her assistance any one or two persons who, in his or
her opinion, may be of assistance at the trial of the case
or in the
determination of a proper sentence, as the case may be, to sit with
him or her as assessor or assessors.”
[7]
Pre- and Post
S v Gayiya
2016 (2) SACR 165
(SCA) there were
conflicting judgments where in some instances it was found that a
Regional Magistrate sitting without assessors
in a murder trial was
an irregularity fatal to the proceedings and in other cases the
failure could be condoned if the interests
of justice so permitted.
In
Gayiya,
the SCA, having found that s 93
ter(1)
is
peremptory and that the Regional Magistrate had to, before
commencement of the proceedings, inform the accused that he or she
must be assisted by assessors unless the accused requests that the
trial proceed without the assessors. The accused was
unrepresented. He did not make the request for the trial to
proceed without assessors. Further, he was only informed
of the
right to assessors after the guilty verdicts and it is only then that
he made his election to dispense with assessors. It
is for this
reason that
Gayiya’s
appeal was upheld.
[8]
Mpati P in
Gayiya
pronounced:
“
[8]
In my view the issue in the appeal is the proper constitution of the
court before which
the accused stood trial. The section is
peremptory. It ordains that the judicial officer presiding in a
regional court
before which an accused is charged with murder (as in
this case) shall be assisted by two assessors at the trial, unless
the accused
requests that the trial proceed without assessors. It
is only where the accused makes such a request that the judicial
officer
becomes clothed with a discretion either to summon one or two
assessors to assist him or to sit without an assessor. The
starting point, therefore, is for the regional magistrate to inform
the accused, before the commencement of the trial, that it is
a
requirement of the law that he or she must be assisted by two
assessors, unless he (the accused) requests that the trial proceed
without assessors.”
[9]
In the recent SCA majority judgment
Director of Public
Prosecutions, Kwazulu-Natal v Pillay
2023 (2) SACR 254
(SCA) at
paras 21 and 22, the Court considered the various decisions involving
s 93
ter
(1), where the accused was legally represented, as
follows:
“
[21]
On 29 July 2022 the judgment in S v Green (Green) was delivered.
Green marked a departure from the
approach adopted in the earlier
judgments. In that matter the minute of a pretrial conference
recorded that 'no lay assessors [are]
required'. Dumisa AJ, who wrote
the main judgment, accepted that the requirements of s 93ter(1) were
met. He held that there was
no reason to doubt the competence of the
legal representative, and that the court was entitled to assume that
the accused had made
his election with the benefit of advice.
[22]
In a concurring judgment, Olsen J addressed the conflict between
Ngomane and Langalitshoni. In
relation to the judgments of Nxumalo,
Hlatshwayo and Zulu, Olsen J stated:
'I have not found a report of any
case in this division in which it was held, before the judgment in
Langalitshoni was handed down,
that a simple record of a request by
an accused (conveyed by his legal representative) that the magistrate
sit alone is inadequate
to establish the proper constitution of a
court presided over by a magistrate alone. That accords with my
understanding of the
attitude of this court at the time, that a
record of the choice alone is sufficient. I have found three
judgments which post-date
Langalitshoni in which that case was
followed in this division without comment. [References to Nxumalo,
Hlatshwayo and Zulu omitted.]
Despite the fact that Ngomane was
published in 2021, the judgment was not drawn to the attention of the
judges who presided in
the three cases just mentioned. Being unaware
of the conflict, they did not deal with it. In the circumstances I do
not believe
that in this appeal we are bound to follow the three
decisions.'”
[10] In
S v Langalitshoni
2020 (2) SACR 65
(ECM) the Full Bench in the
Eastern Cape Division set aside the conviction by a Regional Court of
a legally represented accused
on the basis that the trial Court had
failed to comply with s 93
ter
(1). In
S v Ngomane and
Another
2021 (2) SACR 654
(GP) the accused was legally
represented but, the Court was alive to the issue of assessors and
addressed it on two occasions.
Similarly, unlike in
Gayiya
,
the accused was legally represented in
Ngomane
.
[11] The
salutary remarks by the Goosen JA in
Pillay
at para 34 bear
repeating:
“
[34]
'Representation' in this sense is not confined to the conduct of the
trial. A legal representative,
who is engaged to represent an
accused, is obliged to act in the best interests of their client.
That means, inter alia,
to act according to the highest
standards of professional ethics; to advise the client of their
rights fully and properly; and
to guide and advise the client in
exercising those rights. The legal representative must prepare
thoroughly and properly
on all aspects of the case. This
includes advising the client about s 93ter(1), where it applies,
informing the magistrate
of the process and whether a request is made
to proceed without assessors.”
Following the doctrine of precedent,
Pillay
is the most recent SCA matter and the fact that the SCA
has endorsed
Green,
marking a departure from the previous
judgments, the law is now settled. It follows, therefore, that
the election made by
the appellant before us regarding the use of the
assessors, was with the benefit of advice and the appeal on this
ground should
fail.
Whether or not the trial Court had
erred in its findings of fact and whether or not the court had erred
in convicting the appellant
of murder and attempted murder
[12]
These two grounds are considered together. It was contended on
behalf of the appellant
that the trial Court had erred in its
evaluation of the evidence and had wrongly concluded that the guilt
of the accused had been
proved beyond reasonable doubt.
[13]
Four people testified on behalf of the State and their evidence is
summarised to this effect.
Earlier on the day of the incident,
the appellant’s son, whose age is not specified, was involved
in a fight with another
boy on the street. Mr Thobile Winston
Peter, who testified for the State, informed the Court that he found
two boys fighting,
one was known to him but the other, who later
became known as the appellant’s son, were fighting on the
street. He
told the one he knew to go home and he, Peter, went
to the shops. On his return he found the two boys still at each
other.
The appellant’s son was assaulting the other boy.
When Peter tried to intervene, the appellant’s son swore
at him and Peter regrettably slapped him once and immediately
apologised to him and left them. The appellant’s son
was
bragging about the fact that they do not know his father who was
apparently well known in that community. Mr Peter did
not know
who the boy was referring to.
[14]
Later, as Peter watched a game of soccer at his wife’s parental
home, the furious appellant
confronted them accompanied by his son,
standing in the lounge, demanding to know who, among them, slapped
his son. His son
pointed out Peter. The appellant was
enraged and in a fighting mood. Peter stood up and Peter’s
wife, the complainant
in count 2, intervened by standing between the
appellant and Peter. They suggested to the appellant that he
should rather
return the following day for them to address the matter
when he was calmer. He ignored them. He insulted Peter’s
wife. Their mother ordered the appellant to leave her home.
[15]
Appellant left the house and boarded his vehicle. All the
witnesses testified that he revved
the vehicle, changed direction of
the vehicle and the tyres were spinning. The one witness
testified that the tyre marks
were visible. The appellant could
have simply proceeded straight to join the public road but the change
in direction resulted
in the vehicle injuring the complainant in
count 2 and killing the deceased who took refuge in front of a tree.
As the appellant
sped off, Eugene Mooki, ran behind his vehicle
flagging him to stop but he just continued driving. Poppy
Thonyane is a neighbour
who heard the appellant insulting the
complainant. She also corroborated the other witnesses that the
vehicle first reversed
before it drove over the complainant’s
leg and reversed again and knocked down the deceased who was next to
a tree before
speeding off. The trial Court clarified the
aspect of the differences between the witnesses’ versions in as
far as
whether the appellant had reversed once or twice and whether
he had made a U-turn before reaching the deceased.
[16] The
uncontroverted evidence of the witnesses as to how the deceased and
the complainant were
knocked down by the motor vehicle was that the
appellant boarded his vehicle, struggled to put it in the right gear,
revved it,
slightly reversed and turned the wheels slightly to the
right. This resulted in the appellant’s vehicle injuring
the
complainant on her right leg and thereafter colliding with the
deceased who had sought refuge from a small tree. The appellant
did not even stop to ascertain if there were any injuries. Despite
one witness pursuing appellant’s vehicle in an attempt
to stop
him he sped off. They summoned the ambulance which did not
arrive. The family then arranged private transport
to take the
deceased and Ms Mooki to hospital for medical treatment. The
deceased was certified dead on arrival. Ms
Mooki was treated
and discharged. Mr Nel conceded that the witnesses corroborated
each other in material aspects.
[17]
According to the evidence before the Magistrate, which in our view is
material, the appellant
changed direction by turning the vehicle to
the right without following a public road when he could have just
gone straight. But
for the change of direction, there would not
have been a collision which would lead to one person dead and the
other injured. The
change in direction, coupled with his rage
for an earlier assault on his son, marks his intention when he
confronted the Mooki
family. It remains inexplicable why the
appellant elected to confront the family instead of bringing charges
at the police
station directly.
[18] It
is settled that the correct approach to be followed when analysing
the evidence is espoused
in
S v Chabalala
2003 (1) SACR 134
(SCA) at para 15
.
Of further significance are what
Molemela JA, then, elucidated in
Haarhoff and Another v Director
of Public Prosecutions, Eastern Cape
2019 (1) SACR 371
(SCA) at
389d – e:
“
[42]
…It behoves the courts to keep in mind that not every error by
a witness and not every contradiction
or deviation affects the
credibility of a witness. Contradictory versions must be
considered and evaluated on a holistic
basis. Furthermore, the
circumstances under which the versions were made, the proven reasons
for the contradictions, the
actual effect of the contradictions with
regard to the reliability and credibility of the witness, the
question whether the witness
was given a sufficient opportunity to
explain the contradictions, the quality of the explanations and the
connection between the
contradictions and the rest of the witness's
evidence are among other factors to be taken into consideration and
weighed up.”
[19]
There are contradictions in the versions of the respondent’s
evidence, however, such contradictions,
in my view, were not material
to affect the witnesses’ credibility or reliability. In
the main, the witnesses’
version assessed as a whole, confirm
the rage displayed by the appellant coupled with the fact that he had
swerved the vehicle
towards the complainant and the deceased as
factors substantiating his form of intent. It must also be
borne in mind that
the appellant’s reason for being at the
witnesses’ residence was to avenge his son. That does not
support the
averment that he went there merely to talk about the
assault on his son. Absent his explanation under oath which is
not borne
out by the facts there is nothing to corroborate his
version.
[20] The
appellant failed to testify, as correctly conceded by his legal
representative, Mr Nel, even
in the face of damning evidence against
him. There is no credible explanation by the appellant as to
how the incident occurred.
See
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at para 24
where Langa DP held:
“
[24]
The right to remain silent has application at different stages of a
criminal prosecution. An
arrested person is entitled to remain
silent and may not be compelled to make any confession or admission
that could be used in
evidence against that person. It arises
again at the trial stage when an accused has the right to be presumed
innocent, to
remain silent, and not to testify during the
proceedings. The fact that an accused person is under no
obligation to testify
does not mean that there are no consequences
attaching to a decision to remain silent during the trial. If
there is evidence
calling for an answer, and an accused person
chooses to remain silent in the face of such evidence, a court may
well be entitled
to conclude that the evidence is sufficient in the
absence of an explanation to prove the guilt of the accused. Whether
such
a conclusion is justified will depend on the weight of the
evidence. What is stated above is consistent with the remarks
of Madala J, writing for the Court, in Osman and Another v
Attorney-General, Transvaal when he said the following:
'Our
legal system is an adversarial one. Once the prosecution has
produced evidence sufficient to establish a prima facie
case, an
accused who fails to produce evidence to rebut that case is at risk.
The failure to testify does not relieve the
prosecution of its
duty to prove guilt beyond reasonable doubt. An accused,
however, always runs the risk that, absent any
rebuttal, the
prosecution's case may be sufficient to prove the elements of the
offence. The fact that an accused has to
make such an election
is not a breach of the right to silence. If the right to
silence were to be so interpreted, it would
destroy the fundamental
nature of our adversarial system of criminal justice.'”
What is clear is that he was the
driver of the vehicle that caused the death of the deceased and the
complainant’s injuries.
The only reasonable inference is
that the appellant foresaw that either injuries or death could
result. Absent any explanation
from him, the element of intent
has been established.
[21]
Jafta AJA in
S v Katoo
2005 (1) SACR 522
at para 19 made these
insightful remarks pertaining to the weight to be attached by the
Court to the evidence where the accused
failed testify:
“
[19]
The other issue relates to the weight attached by the trial Judge to
the defence version which was
put to State witnesses under
cross-examination. It was treated as if it were evidence when the
trial Court considered its verdict
on the merits. As the respondent
failed to place any version before the Court by means of evidence,
the Court's verdict should
have been based on the evidence led by the
prosecution only.”
[22] It
is inexplicable why the appellant did not testify when damning
evidence presented before the
trial Court called for an answer.
According to the evidence there were other occupants in his
vehicle when the incident occurred,
including his son who was brought
along to point out the person who had assaulted him. Although
the age of the son and his
level of maturity is not known, we do not
know if he would have been a competent witness. It follows that
the failure by
the appellant to testify has strengthened the State’s
case resultantly becoming conclusive proof of his guilt beyond
reasonable
doubt. The submission by Mr Nel that the appellant
should have been convicted of culpable homicide is also not borne out
by any facts. There was no misdirection by the trial Court when
it convicted the appellant of murder and attempted murder.
More
so, because we have already made a finding regarding his intent when
he swerved the vehicle to the right instead of
proceeding straight.
His counsel conceded that he changed direction instead of proceeding
straight. This change in
direction also remains inexplicable.
It follows that the attack that there was a misdirection in the
Regional Magistrate’s
findings of fact as well as the
evaluation of his evidence, are without merit and stand to be
dismissed.
On Sentence
[23] The
last aspect to consider is whether or not the trial Court had erred
in imposing an incompetent
sentence by taking counts 1, 2, and 3 as
one for purposes of sentence and imposing an effective imprisonment
term of 17
years.
[24]
Counsel for the respondent, Ms Krüger, correctly conceded that
the trial Court should not
have taken the three counts together for
purposes of sentence, and that 17 years’ imprisonment in
respect of count 3, which
is a statutory offence with a prescribed
maximum sentence of nine years as contemplated by the
National Road
Traffic Act, 93 of 1996
, is an incompetent sentence.
[25] I
align with the elucidation by Corbett J, then, in
S v Leith
1972
(4) SA 262
(C) at 262H – 263B that:
“
W
hen
a court imposes such a globular sentence it is in effect decreeing
that the single sentence imposed is to be regarded as the
punishment
for each of the singular offences of which the accused is convicted.
If that be so, then it would seem to follow
that is not
competent to impose such a sentence where the severity thereof is
such that it exceeds the jurisdiction of the court
in respect of one
or more of the counts which have been taken together for purposes of
sentence.”
[26] It
is trite that sentencing is pre-eminently within the discretion of a
Court. An appeal
Court can only interfere if there is a clear
misdirection on the part of the trial Court, or the sentence is
shockingly severe.
See
Haarhoff and Another v Director of
Public Prosecutions, Eastern Cape
2019 (1) SACR 371
(SCA). It
follows therefore that the trial Court misdirected itself in its
approach to sentencing in count 3. In setting
aside the
sentence, it would mean that the 17 years’ imprisonment term
also imposed in counts 1 and 2 would also be affected.
As a
consequence, it therefore means that the imposition of a globular
sentence leaves this Court at large to sentence the
appellant afresh.
It would not serve any purpose to remit the case to the trial
Court to sentence afresh, more so, that the
Regional Magistrate who
convicted the appellant has since passed on and it would have to be
dealt with by an available Regional
Court Magistrate. There is
sufficient information on the record to place this Court in the same
position as the trial Court
to reconsider sentence.
[27] The
appellant’s personal circumstances which were addressed from
the Bar were the following:
He was 46 years old, born on 25
August 1974. He entered into a customary marriage. Three
children were born out
of that marriage aged 22, 16 and 10 years. He
was an independent contractor mainly with the local mines and on
average earned
about R5,000.00 per month. In mitigation it was
contended that the incident was not pre-meditated as it happened at
the spur
of the moment. It was also contended that the incident
was also fuelled by some degree of provocation. The submission
was for the Court to find that the mitigatory factors are in fact
substantial and compelling circumstances to warrant a deviation
from
the prescribed sentence. The Court was further asked to blend
the sentence with an element of mercy.
[28] The
trial Court had further established that the appellant was already
sentenced in another court
to 12 years imprisonment, of which two
years were suspended. Before the Appeal Court, Mr Nel asked the
Court to consider
the cumulative effect when considering sentence
afresh. The only information regarding this request made from
the Bar, without
any supporting documents, was that the appellant had
initially sought leave to appeal against the sentence which was
refused and
subsequently petitioned the Judge President of this
Division, but the petition is not finalised.
[29] The
prosecutor
a quo
, in countering the request made by the
defence for the appellant to be sentenced in terms of
s 276
of the
CPA, contended that the Court had already convicted him of a
contravention of the
Criminal Law Amendment Act, 105 of 1997
which
prescribes minimum sentences and the request should therefore fail.
The State asked the Court to impose direct imprisonment
and
that he be declared unfit to possess a firearm. The following
were the aggravating factors submitted by Ms Krüger:
that
the appellant used his vehicle as a weapon when he injured the
complainant and the deceased resultantly causing his death.
He
was convicted of murder with
dolus eventualis
as a form of
intent. The appellant took the law into his own hands when
confronting the witnesses instead of approaching the
police to lay a
charge of assault on his son. He insulted the complainant in
count 2. He was filled with rage when
he went to the witnesses’
place of abode. Counsel for the respondent maintains that there
are no substantial and compelling
circumstances to warrant a
deviation from the prescribed minimum sentences.
[30] A
mere reading of the record paints a picture of the appellant as the
Goliath who was seeking
to avenge the assault on his son. When
he confronted the witnesses, he was on a frolic of his own. He
proffered no
reason for not involving the police. I was unable
to find any substantial or compelling circumstances warranting a
deviation
from the prescribed minimum sentences. It is also
unclear how this Court would be expected to decide on the 12-year
sentence
already imposed on the appellant without any substantiating
documentation to that effect. That amounts to attaching weight
to hearsay evidence without any motivation. Mr Nel argued that
one cannot just ignore the fact that the appellant is serving
12 years imprisonment.
However, what counsel seems to ignore is the fact that this
Court has not been placed in possession of any details whatsoever
except for the say so of counsel. It is a quagmire that
does
not have to impede finalisation of this appeal. Should the
appellant’s appeal in that pending petition succeed,
the Court
hearing that appeal will be better placed to consider this sentence.
[31]
Regard being had to the absence of substantial and compelling
circumstances and the need to set
aside the globular sentence, the
following order is made:
1.
The appeal in respect of conviction is
dismissed.
2.
The appeal against sentence succeeds.
3.
The sentence of seventeen (17) years’
imprisonment is set aside and substituted with the following:
“
Count 1 of
murder read with the provisions of
s 51(2):
Fifteen (15) years’
imprisonment. Count 2: Attempted murder: Five (5) years’
imprisonment. Count
3 of failing to render assistance: Three
(3) years’ imprisonment. Counts 2 and 3 are ordered to
run concurrently with
count 1.”
MC MAMOSEBO
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
I concur
L LEVER
JUDGE OF THE HIGH COURT
NORTHERN CAPE DIVISION
For the Appellant
Adv. IJ Nel
For the Respondent:
Adv. E Krüger
Instructed by:
The Director Public Prosecutions
[1]
Para.
(b) substituted by
s. 2
of Act 15 of 2023 (wef 3 April 2024).