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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE – GRAHAMSTOWN)

	Case No.: CA&R 17/2010
Date heard: 13 October 2010
Date delivered: 8 November 2010
In the matter between:
XHANTI MATINISI	Appellant
and
THE STATE	Respondent

Summary

– evidence of single witness, when sufficient to constitute proof beyond reasonable doubt – proof of possession of fire-arm where firearm is missing – sentence – whether youth constitutes compelling and substantial circumstances.

J U D G M E N T

DAMBUZA, J:

1. The appellant was convicted by the Magistrate Port Elizabeth on a count of murder and a count of possession of a firearm. He was sentenced to 15 years imprisonment for the murder and to 4 years for possession of a firearm. He now appeals, with leave of the trial Court, against conviction on both counts and against the sentences imposed in respect thereof.

2. The appeal against the murder conviction stands on four legs, being that the trial court erred:

1. in convicting the appellant on the evidence of a single witness who had a motive to falsely implicate the appellant;

2. in finding that two state witnesses, Noyo, and Godlo, were credible witnesses when these witnesses only divulged their knowledge of the offences committed when they were confronted by the police;

3. in convicting the appellant of unlawful possession of a firearm when no firearm was recovered from him; and

4. in rejecting the appellants version.

3. Regarding the sentences imposed, the appellant contends that the trial Court erred in failing to find substantial and compelling circumstances, given that the appellant is a young first offender. The appellant contends that the trial court overemphasized the seriousness of the offence and consequently imposed a severe and shockingly inappropriate sentence.

4. A summary of the facts which were common cause or undisputed before the trial Court were that during the night of 23 February 2008 the deceased was shot and killed at Ramaphosa Informal Settlement Area in Kwazakhele, Port Elizabeth. At the time, the deceased and appellant were lovers. They had a child together and were expecting a second child; the deceased’s pregnancy was at “full term”. The cause of death was a gunshot wound to the head. No firearm licence had ever been issued to the appellant. The firearm which killed the deceased was never found.

5. Of the five state witnesses whose evidence was led in the trial Court only the evidence of Xolelwa Mgxekwa, a sister to the deceased, directly implicated the appellant in the murder of the deceased. The trial Court accepted her evidence and found that it, together with other relevant evidence, constituted proof beyond reasonable doubt that it is the appellant who killed the deceased.

6. Mgxekwa’s evidence was that at about nine on the night of the murder, whilst at a tavern, she was alerted to a quarrel between the appellant and the deceased by the deceased screaming from the street outside the tavern. On exiting the tavern Mgxekwa saw the deceased lying on the ground a short distance from where she (Mgxekwa) was. The appellant who had a firearm in on hand, was assaulting the deceased with fists and kicking her. The appellant then dragged the deceased in the direction of the appellant’s home. Mgxekwa followed them to the appellant’s home where they entered the appellant’s room, an outbuilding at the homestead. The quarrel and physical assault continued inside the room and the screams by the deceased continued. At some stage the appellant’s father, Sebenzile Matinisi, and another neighbour Mhlongo went to the appellant’s room to intervene. The door was eventually opened and the appellant and the deceased went out. Mgxekwa observed all this from a distance.

7. On the road the appellant, still carrying a firearm, followed the deceased and shot her. In response to the gunshot members of the community, including the appellant’s father and Mhlongo, came to the scene. The appellant left the scene.

8. The evidence by the appellant’s father was that he was only alerted to the quarrel by the gunshot which he heard whilst asleep. He then rushed to the scene of the shooting and, as he approached the scene he saw the appellant running away. He called out to him but the latter continued running away. The magistrate rejected his evidence that he never intervened when the appellant assaulted the deceased prior to the shooting and preferred Mgxekwa’s evidence on this issue.

9. In his judgment, the magistrate made certain credibility findings. I do not understand the appellant’s case before us to be that such credibility findings were wrong. The magistrate found Mgxekwa’s evidence to have been “clear and satisfactory despite her young age”. He was mindful of the fact that regarding the identity of the killer and the quarrel preceding the shooting, Mgxekwa was a single witness. He acknowledged that she was emotional about her sister’s death. On appeal, apart from the general submission, on behalf of the appellant, that the evidence of a single witness should be approached with caution, no particular inconsistencies, contradictions or other demerits in Mgxekwa’s evidence were raised. I am satisfied that the acceptance by the magistrate of Mgxekwa’s evidence over that of the appellant’s father, where the evidence of the two witnesses was contradictory, was correct. Limitations on powers of a Court on appeal to interfer with factual findings of the trial Court are a matter of trite law. In the absence of misdirection on facts, the perception is that the trial Court’s evaluation of factual evidence is correct, and the Court of Appeal is entitled to interfere with the trial Court’s evaluation of oral evidence only in exceptional cases.¹ I find no basis, in this case to interfere with the factual and credibility findings made by the magistrate.

10. The concern on the part of the appellant’s father on hearing the gunshot which caused him to rush outside to investigate, rather confirms Mgxekwa’s version, that the appellant’s father was already aware of the fight between the appellant and the deceased. His conduct supports the version that he had been aware of the fight between the appellant and the deceased before the shooting. Mgxekwa’s detailed evidence of the earlier quarrel and fighting between the appellant and the deceased was simple and uncomplicated. I do not intend to speculate on why the appellant’s father would lie about his involvement or even knowledge of the earlier quarrel in the appellant’s room.

11. Regarding the submission, on behalf of the appellant, that the Magistrate erred in accepting the evidence of Spelo Noyo and his girlfriend Siyanda Godlo, indeed, Noyo was warned and subsequently granted indemnity by the trial Court in terms of section 204 of the Criminal Procedure Act with regard to the offence of being an accessory after the fact to murder and unlawful possession of a firearm. The essence of Noyo’s evidence (together with the evidence of Godlo) was that shortly after the shooting, the appellant came to Noyo’s home and asked him to help hide a firearm. Although there is no direct evidence in the record, it would seem that Noyo acceded to the appellant’s request. Later that same night the appellant returned with two other people to fetch the firearm. Apart from the criticism that Noyo and Godlo only divulged what they knew when they were confronted, once again nothing in their evidence indicates that they lied and conspired or even had motive to falsely implicate the appellant. Their evidence is mutually supportive. Although Godlo heard the conversation between the appellant and Noyo whilst she was inside the house and they were talking outside, her evidence corroborates Noyo’s evidence in material respects.

12. Regarding the submission that the appellant was never found in possession of an unlicensed firearm, as I have stated, the record reveals that the firearm that was used to kill the deceased was never found, either on the appellant or anywhere else. But my view is that once the evidence of Mgxekwa, Noyo and Godlo was accepted, together with the common cause fact that no firearm licence had ever been issued to the appellant, such evidence constituted conclusive proof that the appellant was, at the time of the shooting at the deceased, in “actual” possession of a firearm and that the firearm with which he shot the deceased was a firearm as defined in the Firearms Control Act.² The trial Court correctly found that the person who killed the deceased must have been in possession of a firearm.

13. I do not agree with the submission by Ms McCullum, on behalf of the appellant that the magistrate erred in accepting the evidence of Noyo as Noyo had “something” to hide and consequently a motive to falsely implicate the appellant. Once more the submission is not founded on any improbability or demerits in Noyo’s evidence. Although the magistrate made no credibility findings with regard to the witness Noyo and Godlo their evidence supports the evidence of Mgxekwa and is confirmed, indirectly, by the evidence of the appellant’s father.

14. Mgxekwa’s evidence therefore finds support in the evidence of the appellant’s father regarding the appellant’s presence near or at the scene of the shooting at the time of the shooting and shortly thereafter and in the evidence of Noyo and Godlo on the appellant’s possession of a firearm on the evening in question.

15. The Courts have, indeed, held that evidence of identification must be approached with caution as it is very easy for the identifying witness to be mistaken, S v Mthetwa 1972 (3) SA 766 (A) at 768. On the other hand Section 208 of the Criminal Procedure Act, Act 51 of 1977 (CPA) provides that an accused may be convicted of any offence on the single evidence of a competent witness. There is no prescribed formula in terms of which the credibility of every single witness can be determined and although it is essential to approach the evidence of a single witness with caution and to weigh up the good qualities of such a witness against all the factors which may diminish his or her credibility such caution is not, in my view, intended to replace or set a standard higher than the normal test for conviction in criminal cases, i.e. proof beyond a reasonable doubt. In S v Sauls 1981 (3) SA 172 A at 180 it was held that when considering the evidence of a single witness the trial court should weigh the evidence of the witness and consider its merits and demerits and, having done so, decide whether it is satisfied that the truth has been told despite the shortcomings or defects or contradictions in the evidence.

16. In this case it is evident that all the state witnesses referred to above knew the appellant very well at the time of the incident. On the night of the incident they (with the exception of Godlo) observed him from a relatively close range and the magistrate was satisfied that they spoke the truth. I find no basis for interfering with his finding that the appellant had shot the deceased.

17. Regarding sentence, the trial court considered the appellant’s personal circumstances, in particular that he was 24 years old at the time of the commission of the offence, that he was not married and had a two year old child with the deceased, that he worked for a scrap metal collector and earned R1,600.00 per month, that he went up to Standard 7 at school and that he was a first offender.

18. The magistrate considered to be an aggravating factor: the seriousness of the offence of murder, particularly in the light of the fact that the deceased was pregnant with the appellant’s child when she was killed. The magistrate remarked, correctly in my view, that the deceased would have expected that the appellant would have been her protector, rather than the one to inflict harm on her. He further took into account the prevalence of the offence of domestic violence. In my view the magistrate gave a carefully considered judgment, both on the merits and when sentencing the appellant and in the end, found no substantial or compelling circumstances justifying departure from the minimum prescribed sentence of 15 years imprisonment.

19. It is trite law that sentence is a matter essentially within the discretion of the trial Court and that such discretion ought not to be interfered with where the trial Court has properly and reasonably exercised its discretion in imposing sentence. It is only when the trial court has not exercised its discretion properly or when the sentence is disturbingly inappropriate or so totally out of proportion to the magnitude of the offence or sufficiently disparate or vitiated by misdirections showing that the trial Court exercised its discretion unreasonably that the appeal Court is entitled to interfere with the sentence imposed by the trial Court. S v Ncheche [2005] ZAGPHC 21; 2005 (2) SACR 386 (W); S v Salzwedel and Others 1999 (2) SACR 586 SCA.

20. Ms McCullum who appeared on behalf of the appellant submitted in argument that grounds exist in this case for us to interfere with the sentence imposed by the trial Court. I do not agree. Apart from the reasons given by the magistrate, with which I agree, none of the grounds set out in paragraph 19 above as justifying interference with a sentence imposed by a trial Court have been shown to exist in this case. The seriousness of the offences committed calls for severe sentences.

21. It is submitted, in the appellant’s Heads of Argument, that the appellant’s age justifies departure from the prescribed sentence. But the magistrate did have regard to the appellant’s age and the fact that he was a first offender and found that:³

“…he has displayed a lack of remorse that he has killed a person, who was his own girlfriend and mother of his own child, expecting another child, fully pregnant, expecting another child, shot at that person without any valid reasons. Even if there were reasons for the fight between the deceased and the accused, the evidence suggested that deceased had left accused’s shack. She had managed to leave accused’s shack, only to follow her and shoot her in the street, away from his shack.

The evidence – that has been accepted by this court, is to the effect that accused had assaulted, dragged/assaulted complainant before the shooting. He had all the chances and the opportunity to consider his actions and stop the abuse from getting fatal – as it had been.”

22. The aggravating factors, in my view, far outweigh the mitigating factors.

23. Consequently, I would dismiss the appeal.

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N. DAMBUZA

JUDGE OF THE HIGH COURT

CHETTY, J:

I agree. It is so ordered.

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D. CHETTY

JUDGE OF THE HIGH COURT

Appearances:

For the appellant: Adv M M Xozwa of Grahamstown Justice Centre

For the respondent: Adv M September of Director of Public Prosecutions, Grahamstown

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