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[2015] ZAWCHC 40
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Nigel v S (A326/2014) [2015] ZAWCHC 40 (13 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER: A326/2014
DATE: 13 FEBRUARY 2015
In the matter between:
NIGEL
GEORGE
......................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J U D G M E N T
RILEY, AJ:
The appellant was convicted in the
Regional Court at Wynberg on 1 count of murder and 3 counts of
attempted murder and sentenced
on 20 August 2013 as follows:
On count 1, 15 years imprisonment and
on the remaining counts of attempted murder, 5 years imprisonment on
each of the 3 counts.
The court a quo ordered that the half of the
sentences imposed on counts 2, 3 and 4 run concurrently with the
sentence imposed
on count 1, which resulted in an effective term of
22 years and 6 months imprisonment being imposed upon the appellant.
The court
a quo granted appellant leave to appeal against his
conviction and sentence. The main thrust of the appellant’s
appeal against
his conviction is that the State had failed to prove
the identity of the perpetrator of the crimes beyond a reasonable
doubt.
The appellant denied that he was on the scene at the time
that the crimes were perpetrated and raised an alibi. The
appellant’s
grounds of appeal in respect of sentence can be
summarised as follows:
(1) That the sentence imposed was
shocking, startling and disturbingly inappropriate considering its
cumulative effect.
(2) That the court a quo erred and
misdirected itself by not finding that substantial and compelling
circumstances existed which
necessitated a departure from the
prescribed minimum sentence in respect of count 1.
The backdrop to the events that
resulted in the fatal shooting of the deceased and the attempted
murder of three others are the
ever present gang wars that exist
between opposing gangs in the Manenberg area. In the present matter
the opposing gangs involved
are the Americans and the Junky Funky
Kids. It is necessary to mention at the outset that the appellant
was at the time of the
incident a member of the Junky Funky Kids and
that two of the persons who were shot at were members of the
Americans gang.
The following facts are common cause
and not in dispute: that between 21h00 and 22h00 on 9 August 2007,
the deceased, Andrew Phillips
(‘Phillips’), Denzil Jeremy
Morris (‘Morris’) and Stanley Hector (‘Hector’)
were sitting in
a shack in the backyard of the premises at 1 Letaba
Road, Manenberg, where they were smoking dagga. A person entered the
shack
and fired several shots at them. As a result of the shooting
the deceased suffered a penetrating wound to the head and was killed.
The State witness, Phillips, sustained a gunshot wound to his right
upper arm. Morris and Hector narrowly escaped death.
The State called Phillips, Constable
Ashley Conradie (‘Conradie’), and Constable Jeffrey
Martin Witbooi (‘Witbooi’)
whereafter it closed its case.
The State successfully applied to re-open its case after the
appellant and his defence witnesses,
Morris and Hector testified. I
pause to mention that both Morris and Hector had made statements to
the police about the incident
and that they were in fact initially
State witnesses. They were however not called to testify due to
inter alia the fact that
the prosecutor in the court a quo had great
difficulty in getting them to court to testify.
After the defence closed its case, the
State re-called Witbooi who was the investigating officer in the
matter and in addition called
Wayne Malcolm Beukes (‘Beukes’),
a detective, to testify about the circumstances surrounding the
taking of the witness
statements of Morris and Hector. Phillips
testified that on the night of the incident he was in the shack in
the backyard with
the deceased, Morris and Hector, where they were
smoking dagga.
Neither he nor the deceased were
gangsters but Morris and Hector were members of the Americans gang.
The appellant entered the
shack and proceeded to fire shots at them.
The deceased was struck in the head and he was wounded in the right
arm. Morris and
Hector managed to flee from the shack. While
Phillip was lying on the floor the appellant came up to him, pointed
the gun at him
and pulled the trigger but no shot was discharged,
presumably because there were no rounds left in the gun.
He heard a ‘click’ sound as
the trigger was pulled. He lay there pretending that he was dead.
He then heard police
sirens. The appellant fled the scene. The
police and ambulance arrived and he was taken to hospital where he
remained for a week.
Phillips testified that he knew the
appellant very well, as the appellant had grown up before him and
they had socialised together
before the incident. According to him
the shack was lit by an electric globe and the lighting was good.
After the incident he
went to live in George as he feared for his
life. He testified that sometime after the incident the appellant
asked him to forgive
him for what he had done. During
cross-examination he was adamant that he could see properly in the
shack at the time of the shooting,
that he could not think of a
reason why the appellant had shot him and that he had no reason to
falsely implicate the appellant.
Although the appellant had a ‘Pagad
scarf’ over his mouth, he could see the appellant’s face.
He was certain
that the person who shot him was the appellant.
Conradie testified that he attended at
the scene of the shooting at about 21h50. On his arrival he found a
person who had been
shot in the head and another who had been shot in
the upper right arm. Neither of these persons could explain who had
shot them.
He later established that there had been another shooting
in close proximity to the scene of this shooting. According to him
there was gang warfare at the time accompanied by shooting.
Conradie was not surprised that no
witnesses came to the fore on the night in question. He testified
that although he could see
inside the shack, the lighting was poor
and that they had to make use of a torch when they were looking for
evidence. He was not
sure whether or not the room was lit by a
candle at the time that he was there. Witbooi testified that after
the incident he had
taken the witness statements of Morris and Hector
and that what was contained in their statements was the correct
version of what
they had told him.
Beukes, who was also stationed at
Manenberg SAPS at the time, was responsible for taking the further
witness statement of Morris.
He testified that the contents of
Morris’ statement was the correct version of what the witness
had told him. In his evidence
in the court a quo the appellant
denied shooting the deceased and the others. He testified that on
the date that the shooting
occurred he had been at home the whole
day. He confirmed that he knew Phillips, respected him and that
Phillips had seen him grow
up. He did not know why Phillips was
falsely implicating him in the commission of these crimes. He
testified that at a stage
prior to the incident he had had an affair
with Phillips’ girlfriend (whilst Phillips had been in a
relationship with her)
and that this was in all likelihood the reason
why Phillips had testified against him. In short, that Phillips had a
grudge against
him because of this.
Morris, who was called as a defence
witness, confirmed that he was in the shack with the deceased and
others where the shooting
incident took place. He confirmed that
they were busy smoking dagga when he heard shots being fired and that
the deceased and
Phillips were struck by bullets. He did not see who
fired the shots. He denied that it was the appellant who fired the
shots.
Hector, who was also called as a
defence witness, essentially confirmed the version of Morris.
According to him he knew the appellant
as they had gone to school
together. He testified further that whilst they were in the shack
smoking dagga, he heard the sound
of gunshots coming from a road
close to where they were. They left the shack to investigate and
resumed smoking thereafter. Approximately
ten minutes thereafter the
door of the shack opened. He saw someone standing in the door and
then heard gunshots.
The person who shot into the shack then
fled. He also fled. He did not see the person who fired the shots
at them. He denied
making a statement to the police and testified
that the police came to him with a prepared statement. He further
denied that he
told the police that the appellant was the shooter.
On a consideration of the evidence, I
am satisfied that the trial magistrate was alive to the fact that he
was dealing with the
evidence of a single witness and that the
witness was testifying in regard to the identity of the perpetrator,
and that there was
accordingly a need for caution when evaluating the
evidence of such witness. After a thorough and critical analysis of
the evidence
of Phillips the trial magistrate came to the following
conclusion:
“Daar is niks in Mnr Phillips se
getuienis wat aanduidend is dat hy nie die waarheid praat nie. Daar
is genoegsame korroborasie
en stawing van sy getuienis te vind in die
ander getuies se getuienis. Daar is ook geen aanduiding in sy
getuienis dat hy enige
motief sal hê om die beskuldigde valslik
te inkrimineer nie. Hy ken die beskuldigde goed, beskuldigde het
voor hom groot
geword. Beskuldigde kan ook aanvanklik geen rede gee
waarom die getuie hom valslik inkrimineer nie. Die beskuldigde wil
later
‘n basis vir die motief probeer opper deur te sê
dat hy en die getuie, Mnr Phillips, met dieselfde meisie op dieselfde
tyd ʼn verhouding gehad het. Die hof kom later hierna terug.
Daar is geen redes vir hierdie Hof om
Mnr Phillips se getuienis te verwerp nie: hy het ʼn goeie indruk
op hierdie hof gemaak,
hy’s ʼn eerlike, geloofwaardige
getuie en ʼn getuie op wie se getuienis die hof kan staatmaak.”
I agree with the trial magistrate’s
assessment and the conclusions that he reached in regard to the
evidence of Phillips.
The evidence of the appellant that Phillips
had a motive to falsely incriminate him because he had a relationship
with his girlfriend,
that he therefore bore a grudge against the
appellant, and that he had been paid by the American gang to testify
against the appellant,
was correctly rejected by the trial magistrate
as false and a recent fabrication. I pause to mention that the
appellant’s
version that Phillips bore a grudge against him and
therefore falsely implicated him, and that he probably received money
from
the Americans gang to falsely testify against the appellant was
never put to Phillips during cross-examination.
In considering the weight to be
attached to the evidence of Hector and Morris, it must be borne in
mind that in their statements
made to the police they identified the
appellant as the person who shot at them. I am satisfied that at the
time they made their
statements, they did so freely and voluntarily
and that no irregularities occurred. The statements were therefore
properly taken.
The trial magistrate correctly rejected the
allegations by the witnesses that the police had out of their own
included in their
respective statements the portions where both
witnesses identified the appellant as the shooter.
I agree with the magistrate’s
evaluation of the evidence and with the approach adopted by him in
regard to the weight to be
attached to the statements made by them to
the police. The approach adopted by the trial magistrate in this
matter, is in line
with the approach of our courts when confronted
with this kind of situation. In S v Mafaladiso en Andere
2003 (1)
SACR 583
(SCA)
[2002] 4 All SA 74
at 584 (SACR), the court held that
where there were material differences between the witness’s
evidence and a prior statement,
the task of the trial court was to
weigh up the previous statement against the viva voce evidence, to
consider all the evidence
and to decide whether it was reliable or
not and whether the truth was told, despite any shortcomings.
In S v N
1979 (4) SA 632
(O), the State
witness had deviated from the sworn statement that he had made to the
police. The court held that the primary task
of the court is to find
the truth in the interest of justice. Striving to achieve that goal
may make it necessary to determine
whether the statement to the
police or the evidence in court reflects the truth. In S v Mathonsi
2012 (1) SACR 335
at 345, para [44] Madondo J, with reference to
section 35(3)(d) of the Constitution of the Republic of South Africa
and S v Mugudu
2008 (1) SACR 71
(N) at 77, held on page 345 at para
[46] that:
“Although the witness denied the
truth of the facts contained in the statement, the safeguards for
admitting the statement
as evidence existed. The witness had made
the statement under oath to the police. Also, as the declarant, be
the witness, testified
at the trial on the statement. He was
subjected to full and effective cross-examination by both the
prosecution and the defence.
He was thereby afforded an opportunity
to explain the inconsistencies in his prior statement and the truth
of the facts contained
therein. The purposes of cross-examination
are to elicit evidence which supports the cross-examiner’s case
and to cast doubt
upon the evidence given for the opposing party.
The police officer who took down the statement also testified as to
the circumstances
under which the statement was made and that the
witness had personal knowledge of the truth, of the facts therein.”
I am satisfied that the trial
magistrate had correctly applied the principles as outlined in the
authorities referred to herein
before in regard to the facts of the
present case. The trial magistrate also correctly found that he was
entitled to make ‘substantive’
use of the previous
inconsistent statements made by the witnesses and to give the
statements (as evidence) the appropriate weight,
after taking into
account all the circumstances. See S v Mathonsi supra, para [52].
It follows that the trial magistrate
correctly evaluated and weighed up the evidence in its totality in
order to come to the truth.
See S v Trainer
2003 (1) SACR 35
(SCA)
at 41b-c and S v Zitha
1993 (1) SACR 718
(A) at 720i-721a. On the
totality of the evidence presented in the court a quo, I am satisfied
that the State had proved beyond
a reasonable doubt that it was
indeed the appellant who murdered the deceased and attempted to
murder the others. Accordingly
the appellant was correctly convicted
of the murder and the 3 counts of attempted murder. In the premises
I do not find any merit
in the appeal against the conviction and the
appeal against the conviction is dismissed.
It is trite law that a court of appeal
will only interfere with the sentence of a lower court where that
court has not exercised
its discretion in regard to sentence properly
or judicially. In considering an appropriate sentence for the
appellant in this
matter the trial court took into account the
appellant’s personal circumstances, the gravity of the offences
and the interest
of the community. The trial court made a detailed
and thorough assessment of the existence of substantial and
compelling circumstances,
in considering whether or not it could
impose a lesser sentence, and in my view correctly came to the
conclusion that there were
no substantial and compelling
circumstances present which justified the imposition of a lesser
sentence to the one prescribed by
the Legislature on count 1.
It is clear that a trial court
considered the element of mercy and further considered the cumulative
effect of the sentences, by
ordering that part of the sentences
imposed on counts 2 to 4 run concurrently with the sentence in count
1. In my view the trial
court adopted a balanced approach in the
determination of what it thought to be an appropriate punishment,
taking into account
all relevant factors without over- or
underemphasising any of the relevant factors that have to be taken
into account in the determination
of an appropriate sentence.
The trial court correctly took into
account the following aggravating factors when considering sentence:
(1) That the murder and attempted
murders were committed in the context of opposing gangs fighting each
other.
(2) They were committed in
circumstances where the attack was pre-planned and was characterised
by revenge.
(3) Ordinary residents living in the
townships such as Manenberg and other townships on the Cape Flats
live in constant fear of
their lives being lost due to the gang
violence.
(4) Children and innocent victims, such
as the deceased and Phillips, are regularly caught in the crossfire
of these indiscriminate
and brazen attacks by gangs, which attacks
continue unabated.
(5) Parents are scared to send their
children to school due to the fear that they may be injured and / or
killed due to the gang
violence.
(6) The police have great difficulty in
combating gang violence and their task is made more difficult when
witnesses refuse to testify
in these matters for fear that they may
be killed, resulting in low conviction rates in matters of this
nature.
(7) Appellant had previous convictions
for offences containing elements of violence.
Violent crime of this nature is endemic
in this country and in an attempt to combat this kind of crime the
Legislature has provided
for a prescribed minimum sentence of 15
years for a first offender who commits murder. There can be no doubt
that in crimes like
the present punishment and deterrence are factors
that stand out in determining an appropriate sentence.
I am unable to find that the sentence
imposed by the trial court is so disproportionate to the nature of
the offences that it can
by typified as gross and thus
constitutionally offensive. See S v Vilakazi
2009 (1) SACR 552
(SCA)
at 560. Accordingly I am not persuaded that the sentences imposed by
the trial court are shocking, startling or disturbingly
inappropriate. There is no basis to interfere with the magistrate’s
exercise of his discretion and the appeal against the
sentence is
accordingly dismissed.
In the result I would make the
following order:
THE APPEAL AGAINST THE CONVICTION AND
THE SENTENCE IS DISMISSED.
RILEY, AJ
I agree. The convictions and sentences
of the court a quo are confirmed.
GAMBLE, J