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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

APPEAL NO: A317/2016

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

DATE:14 September 2018

In the matter between:

PAOLUS THOBILE SHONGWE                                                        Appellant

And

THE STATE                                                                                     Respondent

JUDGMENT

PETERSEN AJ:

[1]    The appellant was tried in the Springs Regional Court on charges of Arson (Count 1) and Murder (Count 2). He pleaded not guilty to the charges on 20 February 2013, tendered no plea explanation and was convicted on both counts on 30 May 2014. The court a quo found no substantial and compelling circumstances and sentenced the appellant to fifteen (15) years' imprisonment in terms of section 51(2) of the Criminal Law Amendment Act, Act 105 of 1997 as amended on count 2 and five (5) years' imprisonment on count 1. The sentences were ordered to run concurrently in terms of section 280(2) of the Criminal Procedure Act, Act 51 of 1977. The appellant was therefore sentenced to an effective fifteen (15) years' imprisonment.

[2]    This appeal is against conviction and sentence with leave of the court a quo.

[3]    The appellant appeals the convictionon the following grounds:

3.1.   that there is no direct evidence linking him to the commission of the offences;

3.2.   the State's case was based on circumstantial evidence and there was no basis to reject his version of events as to what transpired;

3.3 the State's case was wrought with improbabilities and inconsistencies.

[4]     Johanna Nkosi and Lindiwe Khumalo were tenants at the same premises where the deceased resided. On 17 October 2011, whilst in the main house Nkosi heard Khumalo screaming that the deceased is burnt. She ran from the main house accompanied by her son and encountered the deceased as she came running from her room on fire. The flames which engulfed the deceased were quelled with water by her and other tenants. The deceased walked off in the direction of the hospital with Khumalo following her. Nkosi later learnt that the deceased died. Once the deceased and Khumalo left the appellant was found lying unconscious at the door of the deceased's room overcome by smoke inhalation.

[5]     Khumalo, in turn, heard the deceased screaming for help from her room. She accompanied Nkosi to the deceased's room to investigate what was happening. As they pushed the door, the appellant opened the door, swore at them and threatened to assault them. They ran off to their rooms, heard the deceased scream and when they emerged from their rooms again they saw smoke bellowing from the deceased's room. Nkosi went to seek help at the main house and came back with a hosepipe. They pushed the door and the deceased emerged with her clothing engulfed in flames. The accused continued pushing the door closed. She eventually left and accompanied the deceased to hospital.

[6]    Sophie Catherine Masithla, the mother of the deceased testified that she spoke to the appellant when he was admitted at hospital. She asked him why he killed the deceased and what he had used to assault her. He initially told her that he used petrol and later said he used paraffin. He did not, hoever, explain what transpired between himself and the deceased.

[7]  Doctor Mandisa Nkuna's evidence regarding a report made to her by the deceased was ruled inadmissible. The remainder of her evidence sets out what she recorded in a J88 in respect of the deceased. Doctor Fortonato Besha, a district surgeon who performed the post mortem examination of the deceased confirmed the contents of the post mortem report and cause of death. Nothing contentious was raised in his evidence.

[8]     The appellant testified in his defence and a J88 in respect of the appellant was handed in by consent. According to the appellant the deceased was the mother of his child and they were in a relationship. On 17 October 2011 at around 09h00am to 1OhOOam, he arrived at the deceased's residence, she allowed him in, closed the door and used a hook to lock the door. The deceased was cooking on an electric two plate stove at the time, which was on a table with a single plate paraffin stove. After enquiring why he arrived unannounced and his explanation that he had called but her cellphone was off an argument ensued. The argument escalated with the deceased pushing him to the table where she was cooking causing him to fall to the ground. The pots on the electric stove fell from the table including the two stoves. As he stood up a fight ensued. At this point a fire was blazing. The deceased took a big photo frame hit him against the head and he fell with his back against the door. Having fallen against the door it could not open. He has no idea how the deceased thereafter managed to get out of the room. The door was later broken open from outside he was removed from the room and taken to hospital by ambulance. He disputes ever having spoken to the deceased's mother whilst in hospital and making any report to her about using either petrol or paraffin to set the deceased alight. In the J88, Dr K.M. Tau noted that the appellant had healing superficial burns on his mouth, right hand and left calf and left bilateral ankle. He further noted that appellant explained that he sustained the burns on 17 October 2011 when a stove fell and lit the house during a family quarrel.

[9]    In S v Francis 1991 (1) SACR 198 (A) at 198j-199a it was held that-

 

"The powers of a court of appeal to interfere with the findings of fact of a trial court are limited. In the absence of any misdirection the trial court's conclusion, including its acceptance of a witness' evidence is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the court of appeal on adequate grounds that the trial court was wrong in accepting the witness' evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional circumstances that the court of appeal will be entitled to interfere with a trial court's evaluation of oral testimony."

[10]     The court a quo reminded itself of the onus on the state to prove the guilt of the appellant beyond a reasonable doubt and the fact that no onus rests on the accused (S v Chaba/ala 2003 (1) SACR 134 (SCA)). The evidence of the state witnesses Nkosi, Khumalo and Mosethla was found to be reliable and satisfactory in material respects.

[11]     Whilst the court a quo did not deal with the contradictions or inconsistencies in the evidence of Nkosi and Khumalo, it is trite that not every error or mistake on the part of a witness should lead to the rejection of their evidence. In S v Sithole 2006 JDR 0739 (SCA), [2006] ZASCA 173 (28 September 2006) at para [7] Theron AJA with reference to previously decided cases restated the approach to contradictions

and inconsistencies:

"7 It is trite that not every error made by a witness will affect his or her credibility. It is the duty of the trier of fact to weigh up and assess all contradictions, discrepancies and other defects in the evidence and, in the end, to decide whether on the totality of the evidence the state has proved the guilt of the accused beyond reasonable doubt. The trier of fact also has to take into account the circumstances under which the observations were made and the different vantage points of witnesses, the reasons for the contradictions and the effect of the contradictions with regard to the reliability and credibility of the witnesses."[1]

[12]   The inconsistency in the evidence of Khumalo and Nkosi relates to the first occasion they proceeded to the deceased's room to investigate the cause of the screams. There the appellant is said to have blocked entry into the room, had sworn at and threatened them with assault. The witnesses were not confronted with this inconsistency in the evidence and it cannot be said to impact in any way on the reliability of their evidence or their credibility, when one considers the volatile nature of the scene at the time. It may simply be attributed imperfect recollection on the part of Nkosi. The witnesses were confronted about the presence of a primus stove in the deceased's room and remained adamant that there was no primus stove in the room. It cannot therefore be said that the evidence of Khumalo and Nkosi was riddled with improbabilities.

[13]     The court a quo found that Mrs Masithla had no motive to falsely implicate the appellant as she admitted that she was angered by the death of the deceased and readily conceded that she had taken his cellphone as she wanted to extract information from it. The appellant conceded that he had no problems with Mrs Masithla prior to the incident. The evidence of Mrs Masithla that the appellant in response to a question on what he had used to burn the deceased, first said that he used petrol and then changed to paraffin, was in my view correctly accepted by the court a quo. The absence of any motive to falsely implicate the appellant is strengthened by the fact that on her evidence the appellant did not explain how he had burnt the deceased. At most he had admitted using paraffin.

[14]   The court a quo rejected the version of the appellant, highlighting the improbability of his version. The nub being the cross examination of the state witnesses on the presence of a primus stove in the room, which had caught alight and caused the fire, whilst the appellant testified that he had no idea what caused the fire. In addition the appellant's version that Mrs Masithla and Khumalo and Nkosi who had harbored no ill feelings towards him had lied was correctly rejected. On the whole the factual findings rejecting the appellant's evidence cannot be faulted.

[15]    The finding by the court a quo in convicting the appellant bears closer scrutiny, where it was said:

"...The Court accepts the evidence of the State and the Court finds that the proven facts prove that the accused set alight the room of the complainant. Now the setting alight of the room, which is a fixed structure, clearly proves count 1- arson. As far as count 2, the murder, is concerned to prove murder the State must prove the following:

1. An appreciation by the wrongdoer that his act entails a risk to life and secondly recklessness on his part whether death ensues or not.

The Court finds that by him lighting the room of the deceased he appreciated that his act entails a risk to life and secondly at best he was reckless whether the death of the deceased ensues or not. The accused is convicted on both counts as charged".

[16]    The evidence of the state was accepted but the proven facts were not identified pertinently by the court a quo. The proven facts, save for the admissions made in respect of the cause of death, in light of the acceptance of the state's evidence must be: 1. that the deceased and appellant were in her room alone, 2. Khumalo and Nkosi investigated the cause of screams emerging from the deceased's room; 3. they were prevented from entering the room and by implication the deceased from leaving the room by the appellant, who threatened them with harm; 4. upon emerging from their rooms a second time, the deceased too emerged from the room engulfed in flames; 5. the room was on fire; 6. the appellant was found at the door of the room unconscious; and 7. the appellant had used either paraffin or petrol as a propellant which played a role in the deceased emerging from the room engulfed in flames.

[17]      The court a quo's findings essentially equates to the drawing as the only reasonable inference that the appellant set the room alight, appreciating a risk to life and is so doing acted reckless as to the consequences thereof, which consequence was the death of the deceased. Inferences can only be drawn from proven facts and in this regard the locus classicus is R v Blom 1939 AD 188 at 202 to 203 is apposite:

"In reasoning by inference there are two cardinal rules of logic which cannot  be

ignored

1.     The inference sought to be drawn must be consistent with all the proved facts. If it  is not, the inference cannot be drawn.

2.    The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct."

[18]    In accepting the state's evidence and rejecting the evidence of the appellant, the court can find no fault with the inference which was drawn in respect of the arson as the only reasonable inference considering the extent of the fire which not only claimed the life of the deceased but destroyed the room.

[19]    The court a quo premised its conviction on the murder charge (count 2) on a finding that the appellant set the room alight. When applying the dictum in Blom supra, the following emerges, the appellant prevented Khumalo and Nkosi from entering the room and by implication the deceased who was screaming from leaving the room. The appellant used paraffin to set fire to the room which in some way resulted in the deceased being engulfed in flames. These facts logically lead to the only reasonable inference, that the appellant was intent on preventing the deceased from receiving any assistance when she was engulfed in the flames in the room. It is irrelevant in my view that he had no regard to his own life by blocking entrance and exit to the room.

[20]    The appeal against conviction on the charge of arson (count 1) and murder (count 2) must accordingly fail 

[21]     The approach to an appeal against sentence was re-affirmed in S v Ma/gas 2001 (1) SACR 469 (SCA) at 4780:

"A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court...However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as "shocking", "startling" or "disturbingly inappropriate"... In the latter situation... it may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned".

[22]      The appellant submits that the court a quo misdirected itself in finding no substantial and compelling circumstances to deviate from the mandated sentence of fifteen (15) years' imprisonment and that sentence is shockingly inappropriate and induces a sense of shock. The imposition of sentence is primarily a matter for the judicial discretion of the sentencing court. It requires a sentencing court to have regard to, inter alia, the peculiar facts of each case, the personal circumstances of the offender, the nature of the crime and the interests of society. The court a quo was alive to these factors and its approach to the imposition of minimum sentences.

[23]    The personal circumstances of the appellant set out in a pre-sentence report indicates that he was 32 years' old at the time of the commission of the crime, was unmarried, had an 8 year old daughter with the deceased, advanced as far as Grade 9, was unemployed doing part-time work and had no previous convictions. The only mitigating factors at sentence were that the appellant was a 32 year old first offender with one child whom it must be added is now without a mother. The appellant verbalized no remorse and maintained his innocence with no contrition for the brutal, callous and barbaric manner in which he ended the life of the deceased. The reformation of the appellant is a neutral factor when weighed up against the aggravating factors.

[24]   The deceased undoubtedly suffered a cruel, heartless and painful death. Murder is a serious crime involving the violation of the most primordial right inherent to every human being - life. Section 11 of the Constitution of the Republic of South Africa, 1996 enshrines that "Everyone has the right to life". In S v Makwanyane [1995] ZACC 3; 1995 (3) SA 391 (CC), Justice O'Regan said:

"...The right to life was included in the Constitution not simply to enshrine the right to existence..., but...to live as a human being, to be part of a broader community, to share in the experience of humanit.yThis concept of human life is at the centre of our constitutional values... The right to life is the most primordialright which humans have. If there is not life there is no human dignity."

[25]     In R v Karg 1961 (1) SA 231 (A) at 236 the court said:

"It is not wrong that the natural indignation of interested persons and of the community at large should receive some recognition in the sentence that courts impose, and it is not irrelevant to bear in mind that if sentences for serious crimes are too lenient, the administration of justice may fall into disrepute and injured parties may feel inclined to take the law into their own hands".

[26]    In Mashigo and another v The State (20108/2014) [2015] ZASCA 65 (14 May 2015), albeit in the context of a rape matter, but equally apt to the present matter, Bosielo JA remarked at par [31]:

"It is sad and a bad reflection on our society that 21 years into our nascent democracy underpinned by a Bill of Rights, which places a premium on the right to equality (s 9) and the right to human dignity (s 10), we are still grappling with what has now morphed into a scourge to our nation... Needless to state that courts across the country are dealing with instances of... abuse of women and children on a daily basis. Our media in general is replete with gruesome stories of ... women and child abuse on a daily basis."

In S v Kekana (629/2013) [2014] ZASCA 158 (1 October 2014) para [20] it was said:

"Domestic violence has become a scourge in our society and should not be treated lightly. It has to be deplored and also severely punished..."

[27]     The court a quo correctly found in my view that there were no substantial and compelling circumstances to deviate from the mandated sentence. The impact of the sentence was further ameliorated by the order of concurrency. The appeal against sentence must accordingly fail.

[28]     In the result the following order is made:

1. The appeal against conviction and sentence on counts 1 and 2 is dismissed.

AH PETERSEN

ACTING JUDGE, GAUTENG DIVISION

I agree

C.J. COLLIS

JUDGE, GAUTENG DIVISION

Appearances:

For the Appellant: Adv MMP Masete

Legal Aid South Africa

For the Respondent: Adv FW van der Merwe

Director of Public Prosecutions Pretoria

DATE HEARD: 23 August 2018

DATE OF JUDGMENT: 14 September 2018

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