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[2015] ZAWCHC 162
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Motumi v S (A224/2015) [2015] ZAWCHC 162 (21 August 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
CASE NUMBER: A224/2015
DATE:21 AUGUST 2015
In the matter between:
TOKELO
MOTUMI
.................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J U D G M E N T
RILEY, AJ:
[1] The appellant was charged in the
Regional Court, sitting at Wynberg, with murder, read with the
provisions of
section 51(2)
,
52
(2),
52A
and
52B
of the
Criminal Law
Amendment Act 105 of 1997
, and a count of robbery read with
sections
51(1)
and (2) of the
Criminal Law Amendment Act 105 of 1997
. In
regard to the count of robbery the State alleged that aggravating
circumstances were present as the appellant had used a knife
during
the commission of the robbery.
[2] On 16 August 2007 the appellant,
who was represented at all times, pleaded not guilty to both counts.
On 28 January 2008 the
appellant was convicted on both counts, and on
the same day sentenced to 15 years imprisonment on each count. The
court a quo
however ordered that seven years of the sentence on count
2 run concurrently with the sentence on count 1 which meant that the
appellant was effectively sentenced to 23 years imprisonment on both
counts. On 9 April 2015 the appellant was granted leave to
appeal
against both his conviction and sentence.
[3] It is common cause that the record
of the proceedings in this matter was missing and or was lost and
that the court a quo had
to reconstruct the record of the
proceedings. The reconstruction was done in open court with the aid
of the trial magistrate’s
contemporaneous notes that he had
kept during the trial, his ex tempore judgment on the merits, the
medico-legal post-mortem report,
the photos of the deceased at the
time that the post-mortem was conducted and written submissions made
by the appellant. All the
parties collaborated with the
reconstruction of the record and everyone was satisfied with the
reconstructed record.
[4] It is further common cause that the
judgment on sentence by the trial magistrate could not be
reconstructed and that the only
information of assistance in regard
to sentencing, is the notes of the submissions made by Mr Botman, the
appellant’s legal
representative and the prosecutor at the
trial at the time of sentencing.
[5] In this court, Ms De Jongh who
appeared on behalf of the appellant, contended that although there
was participation by the parties
in the reconstruction of the record,
that the appellant did not fully agree with the accuracy of the trial
magistrate’s contemporaneous
notes of the proceedings and that
the notes could therefore not be regarded as an accurate reflection
of what was said during
the proceedings. She submitted further that
the record was incomplete due to the fact that the sentence
proceedings could not
be perfectly reconstructed.
[6] In S v Chabedi
2005 (1) SACR 415
(SCA) at 417, Brand JA said the following regarding the record on
appeal:
“[5] On appeal, the record of the
proceedings in the trial court is of cardinal importance. After all,
that record forms
the whole basis of the hearing by the court of
appeal. If the record is inadequate for a proper consideration of
the appeal, it
will, as a rule, lead to the conviction and sentence
being set aside. However, the requirement is that the record must be
adequate
for proper consideration of the appeal, not that it must be
a perfect recordal of everything that was said at the trial. As has
been pointed out in previous cases, records of proceedings are often
still kept by hand, in which event a verbatim record is impossible,
(see, for example, S v Collier 1976 (2) SA 378 (C) at 379A-D and S v
S
1995
(2) SACR 420
(T) at 423b-f).
[6] The question whether defects in the
record are so serious that a proper consideration of the appeal is
not possible, cannot
be answered in the abstract. It depends, inter
alia on the nature of defects in the particular record and on the
nature of the
issues to be decided on appeal.”
In Machaba & Another v The State
(20401/2014)
[2015] ZASCA 60
(8 April 2015), the record of the
proceedings on appeal was not complete as the recording of the last
week of the recordings had
not been fully transcribed. The
recordings could not be traced. Attempts to reconstruct the portions
of the record were unsuccessful.
The record did not deal with the
evidence relating to a trial-within-a-trial in respect of the second
accused; the evidence relating
to the sentencing proceedings and part
of the judgment on the merits. On account of the paucity of the
information regarding the
appellant’s personal circumstances on
sentence, and the absence of that part of the record of the
proceedings, Schoeman AJA
placed reliance on the information relating
to the personal circumstances of the appellants in that matter in the
bail application
proceedings. In his view, the adjudication of that
appeal on the record as it stood, would not prejudice the appellants.
He held,
at paragraph 5 that:
“The appellants’
convictions and sentences can therefore not be set aside merely on
the basis of the record being incomplete.”
[7] In my view the only material
shortcoming in the reconstruction of the record in the present matter
is the absence of the judgment
on sentence. Without it one is unable
to determine the magistrate’s reasons for the sentence imposed,
what factors he took
into account and what weight he gave them. This
in turn effectively deprives the right of the appellant to challenge
the magistrate’s
reasoning and approach and without which his
right of appeal is stripped of much of its content. It goes without
saying that the
right of appeal forms an important element of an
accused’s constitutional right to a fair trial. See S v
Zenzeli
2009 (2) SACR 407
(WCC) and S v Gora
2010 (1) SACR 159
(WCC).
[8] It follows from what I have said
that the appellant has been prejudiced by the partial reconstruction
of the sentencing proceedings.
I consider however, that such
prejudice can be completely met by notionally ignoring the sentence
imposed by the trial magistrate
and considering sentence afresh on
appeal. In other words this Court regards itself as having, within
the constraints of the statutory
sentencing framework and bearing in
mind that there is no cross-appeal, an unfettered discretion to
sentence afresh. The same considerations
and facts as were before the
magistrate are before us now and the appellant’s counsel took
up the invitation to address us
fully on an appropriate sentence. In
my view such an approach pays full regard to the appellant’s
right to a fair trial
including his right to an appeal. At the same
time it also has regard to the interest of justice in the wider sense
of the criminal
justice system serving the interests of the community
as well and not lending itself too readily to the overturning of
convictions
and sentences for reasons of a purely technical nature.
The merits of the Appeal:
[9] The evidence of the state witnesses
can be summarised as follows. On 17 March 2006 at about midnight,
they were walking the
appellant home after they had been drinking at
a shebeen. It is common cause that they were all under the influence
of intoxicating
liquor. En route they came upon the deceased, an
elderly man, whose estimated age according to the medico-legal
post-mortem examination,
was 59. The appellant then grabbed hold of
the deceased, demanded that he hand over his valuables and even
though the deceased
agreed that the appellant could take his
valuables, the appellant nevertheless stabbed the deceased with a
knife and took the deceased’s
wallet containing R30,00. The
appellant threw the wallet away and suggested that the witnesses, who
were his friends, accompany
him to a shebeen to spend the R30,00 but
they declined.
[10] According to the medico-legal
post-mortem examination report which was formally admitted by the
appellant in terms of section
220 of the Criminal Procedure Act, 51
0f 1977, the deceased died as a result of stab wounds to the chest.
The chief post-mortem
findings were as follows:
1. There was a penetrating stab wound
on the left anterior chest wall with a wound track going through the
blood vessels and the
trachea.
2. A penetrating stab wound on the left
anterior chest wall with a wound track going through the left lung.
3. Blood aspiration.
[11] The appellant raised an alibi and
testified that at the time that the murder occurred he was at his
aunt’s house at Khayelitsha
where he had slept over. He denied
any knowledge of the murder and averred that the state witnesses had
conspired against him
and had falsely accused him due to the fact
that they had an argument with him the previous day when they told
him that they would
show him what they would do to him.
[12] In a well reasoned and detailed
judgment, the magistrate summarised and critically evaluated the
evidence of the state witnesses
and concluded that although there
were contradictions between the evidence of the different state
witnesses, that the contradictions
were not of a material nature.
The court found that on the whole the three state witnesses
corroborated each other materially
in that they were all in agreement
that:
1. They were walking home with the
appellant.
2. They met up with the deceased.
3. The appellant went to the deceased
and demanded his property.
4. The appellant stabbed the deceased.
5. The appellant robbed the deceased of
R30,00.
6. Some of the witnesses were still on
the scene when the police and ambulance services arrived on the
scene.
7. The deceased died on the scene.
[13] It is trite law that where two or
three witnesses contradict each other on a particular aspect it does
not follow that the
witnesses are not telling the truth or that the
aspect does not exist. See S v Mokoena
1978 (1) SA 229
(O) at 232F.
It is further accepted law that there “…is no reason in
logic why the mere fact of a contradiction or
several contradictions,
necessarily leads to the rejection of the whole of the evidence of a
witness.” See S v Oosthuizen
1982 (3) SA 571
(T) at 576.
[14] In my view, the trial magistrate
correctly found that the
“… minor contractions is
an indication that there were [sic] no conspiracy amongst the
witnesses to falsely implicate
the accused. This is also not the
evidence of a witness who wants to falsely implicate the accused. Mr
Tomsana is related to
the accused and it is common cause that there
were no problems between them. Accused was not able to give the
court reason why
the witness could falsely implicate him.”
In my view the allegation by the
appellant that the State witnesses, i.e. his friends, had falsely
implicated him to protect someone
else, was but a last ditch attempt
on the part of the appellant to escape blame in circumstances where
the totality of the evidence
pointed overwhelmingly to his guilt.
The trial magistrate correctly rejected his evidence in this regard
as being without merit.
The trial magistrate correctly found that
where an alibi is raised there is no onus on the accused to establish
it and that if
it might reasonably be true he must be acquitted. See
R v Hlongwane
1959 (3) SA 337
AD at page 340H. Placing reliance on
Hlongwane (supra) the trial magistrate correctly held that the alibi
of an accused should
not be considered in isolation but should be
viewed in the light of the totality of the evidence of the particular
matter and the
court’s impression of the witnesses. The trial
magistrate found that when the accused’s alibi was assessed
against
the totality of the evidence presented by the state it could
not stand and accordingly rejected it. The court found the state
witnesses were generally honest and reliable and that the
overwhelming weight of the evidence supported a finding that the
state
had proved beyond a reasonable doubt that the appellant had
murdered and robbed the deceased. See S v Malefo & Others 1998
(1) SACR (W) at 157(i)-158(d).
[15] On a consideration of the totality
of the evidence led at the trial, there is no basis to find that the
trial courts’
evaluation of the evidence is not correct. I am
satisfied that the trial magistrate correctly rejected the
appellant’s alibi
defence and correctly found on the totality
of the evidence, that the State had proved the guilt of the appellant
beyond a reasonable
doubt. In the result I consider that the appeal
against the conviction must fail.
[16] Although the appellant’s
heads of argument are silent on the issue of sentence, Ms De Jongh
made the following submissions
to us during argument. She submitted
that substantial and compelling circumstances were present in this
matter, in that the appellant
was 20 years old at the time of the
sentencing. When the incident occurred in 2006 he was 19 years old.
He was accordingly relatively
young, a first offender, intoxicating
liquor played a role at the time of the commission of the offences
and the appellant had
spent almost two years in custody. She
submitted that these factors should be viewed cumulatively in
deciding on an appropriate
sentence. She conceded that although long
term imprisonment was a reality, that the court should not lose sight
of the fact that
rehabilitation should also be considered. She
submitted that a sentence of between 15 to 20 years would be
appropriate in the
circumstances of this particular case.
[17] Ms Erasmus, who appeared for the
respondent, contended that considering the circumstances of this
particular case that although
she ultimately had to concede that
substantial and compelling circumstances are indeed present, that in
her view, an effective
sentence of 18 years imprisonment was
appropriate.
[18] The appellant’s personal
circumstances are favourable. He was 19 years old when the offence
was committed. He was 20
years old at the time of sentencing. He
was unmarried, had no children and had been employed as a grouter,
earning R750,00 per
week. On the face of it he was a first offender.
It appears further that the appellant had spent approximately two
years in custody
before the finalisation of the matter.
[19] The provisions of
Section 51
of
the
Criminal Law Amendment Act 105 of 1997
would ordinarily apply to
the sentencing regime. In the present matter the murder was
committed during an armed robbery and would
attract a prescribed
minimum sentence of life imprisonment, unless substantial and
compelling circumstances exist to justify the
imposition of a lesser
sentence. The prescribed sentence for robbery with aggravating
circumstances is 15 years imprisonment unless
substantial and
compelling circumstances exist to justify the imposition of a lesser
sentence.
[20] Our courts have repeatedly held
that society demands that persons who make themselves guilty of
crimes of this nature must
be severely dealt with. In cases such as
the present the element of retribution and deterrence rather than the
interest of the
offender come to the fore in the assessment of an
appropriate sentence. See S v Vilakazi
2012 (6) SA 353
;
[2008] ZASCA
87
(SCA) para [58]. The attack by the appellant on the deceased was
utterly callous. The deceased was an elderly man who had readily
agreed that the appellant could take whatever valuables he had in his
possession. The appellant’s friends tried to dissuade
him from
stabbing the deceased but he nevertheless proceeded to do so. At the
time of the commission of the offence and at the
sentencing stage,
the appellant was very young.
[21] Our courts have consistently
emphasised the importance of obtaining pre-sentence reports in the
case of juvenile offenders,
even if the offender was over the age of
18 years at the time of the commission of the offence. See S v Van
Rooyen
2002 (1) SACR 608
(C) 611i-612b. Regrettably that was not
done in the present instance. On appeal, more than seven years later
the importance of
such a report has, however, substantially
diminished. In dealing with juveniles or persons of relative young
age as in the present
matter, courts must “…ensure that
whatsoever sentence he or she decided to impose will promote the
rehabilitation
of that particular offender and have its priority the
reintegration of the youthful offender back into his or her family,
and of
course the community.” See Brandt v
S
2005
(2) ALL SA 1
(SCA).
[22] Our courts have also consistently
held that where a court has to impose a sentence for multiple
offences, as in the present
matter, the court has to seek an
appropriate sentence for all offences taken together. Accordingly
when dealing with multiple
offences the court must not lose sight of
the fact that the aggregate penalty must not be unduly severe. See S
v Moswathupa
2012 (1) SACR 259
at para [8], page 263g and S v Mabunda
2013 (2) SACR 161
(SCA).
[23] Although this is a case where the
counts are closely connected in time, place and circumstances this is
not necessarily an
appropriate case for them to be taken together for
the purpose of sentence and treated as one since each one is subject
to its
own statutory sentencing structure and such an approach would
arguably limit the Court to the sentence already imposed on count
1.
Nonetheless, in the present matter the evidence shows that the murder
and the robbery are “inextricably linked in terms
of locality,
time, protagonist and importantly the fact that they were committed
with one common intent.” See S v Mokela
2012 (1) SACR 431
(SCA) at para [11].
[24] I am satisfied that the principles
referred to hereinbefore find equal application in the present
matter. In my view, notwithstanding
the appellant’s youthful
age at the time, the seriousness of the offence and the callousness
of the murder dictate that a
sentence of no less than 15 years direct
imprisonment on the murder conviction will meet the requirements of a
fair and balanced
sentence. The appellants’ youthfulness, the
role alcohol played in the offence, the fact that he acted on the
spur of the
moment and his favourable personal circumstances
constitutes substantial and compelling circumstances which permit the
court to
deviate from the prescribed minimum sentence in respect of
both convictions.
[25] As regards sentence for the
robbery conviction, as I have indicated, the robbery was closely tied
to the murder and to impose
a further lengthy term of imprisonment on
this count, would in effect, punish the appellant twice over for the
same conduct. The
robbery was, however the motive for the
appellant’s murderous attack upon the deceased and for this and
the further reasons
set out above should be separately sentenced. In
my view a sentence of FIVE (5) YEARS IMPRISONMENT on this count would
be appropriate,
but that it should run concurrently with the sentence
on count 1.
[26] In the result I propose the
following order:
(i) The appeal against the conviction
is dismissed.
(ii) The appeal against the sentence
succeeds in part.
(iii) The sentence of 15 years
imprisonment on count 2 is set aside and substituted with a sentence
of five years imprisonment.
(iv) It is ordered that the sentence
imposed on count 2 will run concurrently with the sentence of 15
years imprisonment imposed
on count 1.
(v) The new effective sentence of 15
years imprisonment is antedated to the date upon which sentence was
originally imposed by the
trial court, i.e. 28 January 2008.
RILEY, AJ
I agree and it is so ordered.
BOZALEK, J