NOT REPORABLE

IN THE EASTERN CAPE HIGH COURT, GRAHAMSTOWN			
CASE NO: CA&R 26/2012

In the matter between

SIYABONGA QONONO 				APPELLANT

versus

THE STATE						RESPONDENT

 
APPEAL JUDGMENT

HARTLE J

1.	The appellant was granted leave to appeal upon petition to this court against both his conviction for murder and the sentence of fifteen years’ imprisonment imposed in respect thereof by a magistrate of the regional court, Port Elizabeth.

2.	Ad conviction it was argued by Mr Geldenhuys on his behalf that the trial court erred in not accepting his version as reasonably possibly true and by accepting the evidence of two of the state witnesses insofar as it conflicted with his own testimony.

3.	He submitted that the appellant’s version – which he defended on several bases – was not improbable, at least not to the extent that it could not be said to be reasonable possibly true.  

4.	At the outset of the proceedings in the trial court the appellant made certain admissions in terms of section 220 of the Criminal Procedure Act, No. 51 of 1977 which related inter alia to the nature of the injuries sustained by the deceased as confirmed in the post mortem report compiled pursuant to such examination.

5.	Most notably the chief findings in the report were that the deceased had sustained four wounds to the head, jaw, chest and abdomen respectively, the cause of death being “multiple stab wounds”.

6.	The state adduced the evidence firstly of the deceased’s brother, Simpiwe Finye, who happened to be present at the same filling station where the deceased was killed.  Whilst standing talking to the owner of the petrol station awaiting his turn to fill his vehicle, her screams drew his attention to a stabbing taking place in the forecourt.  When he went closer he observed the appellant stabbing the deceased.  The latter was lying on the ground while the appellant was on his feet.  He only saw him stab the deceased once – (“bolangs”, he surmised (“vermoed”) on his head), whereupon he fled the scene in a cream coloured motor vehicle which he knew to belong to the appellant’s family and was in use as a taxi.  The vehicle was driven by another person.  There were no other persons involved in the incident neither did he see anyone in the deceased’s motor vehicle.  The deceased was also found to be unarmed when searched by the police who later arrived on the scene.  He acknowledged that he did not see how the altercation had first begun neither could he advance a reason for the stabbing.  He conceded having knowledge of a previous altercation which had taken place between the appellant’s father and the deceased at a taxi rank, but he understood that the parties’ differences had been resolved at the police station at the time.

7.	The state also called Luzoko Soka, a petrol pump attendant who had been on duty on the fateful night, but had not witnessed anything.  He said he was focused on his work.  When he returned to the forecourt after taking a patron’s payment to the cashier he noted a crowd which had gathered plus police members who were on the scene.  He saw a man lying on the ground.  Prior to this he had not seen nor heard any arguments taking place.  

8.	Finally, the state called Ncumisa Headbush, the owner of the petrol station who Mr Geldenhuys accepted was an independent witness.  She testified that on 7 February 2010 she was standing outside on the side on her business premises speaking to a man – who, it seems fair to assume ex post facto, was Finye.  At an angle ahead of her she noticed a man struggle and fall.  She thought he might be drunk.  He turned from his side on to his back.  Another man appeared and stabbed him on his left side. She screamed.  The latter pulled the knife out of the man lying down and she observed its sharp blade.  He leaned in again and made a cutting motion toward the man’s throat.  She screamed again.  He retreated backwards and ran away from the scene followed by a second man.  Although the incident before this happened in an instant, she did not observe any group of people encircling anyone.  She could not identify either man involved, although it was accepted for purposes of argument that they were the appellant and deceased respectively.  She said that certain observations had been made to her by Soka who had been attending on the deceased’s motor vehicle before the stabbing, but the extent of these were not traversed in her testimony either in chief or under cross examination.

9.	In brief the appellant’s evidence was that on the day of the incident he approached the petrol station because he saw a known motor vehicle there.  He asked the driver of the vehicle, who turned out to be the deceased, to take him to his home.  However, the passengers of the vehicle reacted by accusing the appellant of seeking revenge against the deceased for something the latter had done previously.  One of the passengers attempted to hand a knife to the deceased.  The appellant grabbed the knife instead and then remembered that there had been a previous acrimonious incident involving the deceased and the appellant’s father.  The passengers then went to the boot of the vehicle to take out weapons and the deceased advanced towards the appellant.  The deceased and the passengers formed a circle around the appellant, and he, much afraid at this point, made stabbing motions towards the deceased who was also armed and was trying to strike him with an iron object. It was during these stabbing motions by the appellant that he must have struck the deceased.

10.	The appellant also called his father who refuted that his cream motor vehicle had been in the appellant’s possession that night despite Finye’s evidence in this regard. What his testimony confirmed however  was that quite a serious altercation had taken place with the deceased involving the latter even assaulting him with a golf stick on his head aside from deliberately and provocatively bumping his motor vehicle with his own in retaliation for a minor accidental bump to the deceased’s vehicle which he had been responsible for. He was emphatic that the appellant was unaware of this incident yet could not account for the appellant’s sudden recall – midway into the supposed hostile ganging up of him by the deceased and group of three other armed men as testified to by him, of a prior incident between his father and the deceased which had taken place just a week before.

11.	The trial court found Ms Headbush to be a credible and reliable witness whose testimony carried no inherent improbabilities.  Her independence was a further positive factor which conduced to his acceptance of her evidence.  Although making the observation that Finye had an interest in the case since the deceased was his brother, the trial court was satisfied that his evidence too could be accepted particularly since it accorded with that of Ms Headbush.  The court was not concerned with the discrepancies between her evidence and that of Soka and rightly so in my view because the content of what he had conveyed to her was not disclosed or otherwise pursued when she testified.

12.	After examining several improbabilities in the appellant’s case, the trial court found that his version could not be reasonably possibly true.

13.	I cannot accept the submission made by Mr Geldenhuys on the appellant’s behalf that there were factors detracting from the reliability of the state’s case.  A careful study of the evidence as a whole confirms that the issues raised by him in this regard are without any merit.

14.	Firstly it was contended that Ms Headbush’s evidence that the last thing the appellant did to the deceased was to cut his throat – whereas Finye testified that the stabbing he saw was to the head of the deceased, was both inconsistent with Finye’s evidence and in contradiction with the medical evidence.  In the absence of any suggestion that Ms Headbush could not have personally witnessed the incident - despite the appellant having accepted under cross examination the possibility that she was indeed on the scene, or that she perhaps fabricated the evidence that she saw what she said she did, her knowledge of the exact place on the deceased’s body where blows were delivered is in my view of no moment since her limited observation in this regard was supplemented by the post mortem report.  Nothing she conveyed was in any event so dramatically opposed to the medical report.  She may have been mistaken - or even have forgotten with the passing of time, where the blows fell exactly, but then she was not pertinently drawn on any supposed inconsistency with the injuries specified in the post mortem report.  The second blow may, for example, have appeared to be delivered to the deceased’s throat from her vantage point, but her evidence in his regard was not challenged at the time.  The “jaw”, “head” and “chest” are in my view in close proximity to the throat area to perhaps have given the appearance of a blow being delivered there. The same applies to the “side” of the deceased being in proximity to his “abdomen”. 

15.	The contention that Finye’s evidence that the appellant climbed into a cream coloured car was inconsistent with the evidence of the latter’s father - who confirmed that this vehicle was his but negated that it was being used by the appellant on that day, does not necessarily operate in the appellant’s favour.  On the contrary the appellant’s father’s evidence supports the fact that the appellant co-incidentally had access to exactly such a getaway vehicle as described by the witness.  (But for the appellant placing himself on the scene this information appeared to be a vital fact confirming the identity of the deceased’s aggressor). His further evidence that the vehicle was driven by another person also fits in perfectly with Ms Headbush’s unchallenged evidence that the man who she saw stabbing on her forecourt fled the scene, followed by a second person.

16.	The concern that the magistrate paid lip service to his assessment of Ms Headbush’s testimony evidenced by his comment that it hardly needed a guarantee of reliability is allayed in my view by the trial court’s finding – amply evident from the record, that her and Finye’s testimony is corroborated in all material respects by each other’s; fits in comfortably with the objective medical evidence, and to an extent is even supported by the appellant’s own version that he was indeed on the scene and involved in an encounter with the deceased (albeit on his version the deceased was the aggressor), and that he left the scene in a hurry.

17.	The concern that Finye - because of his relationship to the deceased, may have had a motive to falsely implicate the appellant is also counter-balanced by the fact that Ms Headbush was an independent witness whose testimony co-incided in all material respects with his, most especially concerning the fact that the deceased was attacked whilst lying down and that no other persons were involved except the deceased and the appellant.

18.	The discrepancy between the witnesses concerning the day of the week on which the incident happened is in my view entirely insignificant given the fact that this issue was not canvassed with Ms Headbush under cross examination. It appears that she simply mentioned in passing – in relation to her reflecting that the deceased may have fallen because he was drunk, that the incident took place on a Friday.  Plainly however both witnesses were speaking of the same unique incident. Ms Headbush also clarified in response to a question put to her by the trial court that only a single incident had happened during which someone was injured at her place of business.  In the absence of any suggestion therefore that she falsely placed herself on the scene or intentionally misled the court as to the relevant day of the week, this supposed inconsistency is in my view immaterial. 

19.	Turning to the appellant’s evidence, I am satisfied that the trial court subjected this to careful scrutiny and correctly found it to be patently false and improbable against the weight of all the evidence. Indeed the particular epithets used by the court to discount his testimony as improbable – namely that aspects thereof were nonsensical and laughable, were especially incisive.  His evidence was further inconsistent, both with his father’s testimony - which was critical to dispel any suggestion that he was executing a revenge attack; as well as his plea explanation   Further, the appellant never once factored into his account that not one but four serious wounds were inflicted on the deceased.  In this regard he vaguely asserted (in contradiction to his plea explanation that he stabbed the deceased twice) that he merely made stabbing motions toward the deceased which must have been how he came to strike him.  The serious nature of the wounds alone – on his version – called for an explanation to assess the issue of proportionality which was simply absent from his account.  So too his alleged state of intoxication, heralded by his plea explanation, was not given any context when he testified.

20.	In the premises I find no basis to interfere with the trial court’s conviction of the appellant.

21.	Ad sentence Mr Geldenhuys submitted that the appellant’s personal circumstances, i.e. that he had no prior convictions; was the main breadwinner of a number of dependents; that he was under the influence of alcohol at the time of the incident; and the fact that he felt remorse for the deceased’s death (seemingly expressed by a statement from the bar that he accepted the judgment of the court), ought to have operated in favour of constituting substantial and compelling circumstances warranting a deviation from the statutory minimum sentence of fifteen years’ imprisonment imposable in respect of his conviction.  He submitted further that the seriousness of the offence and the interests of society were over-emphasized at the expense of the appellant’s personal circumstances.

22.	There was however a number of aggravating factors in the matter which the trial court justifiably highlighted.  In this regard the appellant stabbed the deceased four times in vital parts of his body after he had fallen and was lying defenceless on the ground.  No reason was furnished for the particularly brutal, barbaric and cruel attack upon him. It appeared further from the established evidence that the motive for the attack was pointedly to revenge the altercation between the deceased and the father of the appellant a few days earlier.

23.	There was no evidence under oath that the appellant was under the influence of alcohol at the time of the attack. On the contrary, his actions during the incident give no indication of him being intoxicated.

24.	Further, although the appellant expressed remorse through his attorney in an attempt to mitigate the expected minimum sentence to be imposed upon sentence, Ms Obermeyer on behalf of the state correctly submitted that this was not genuine remorse, but rather regret at being found guilty.   For remorse to be a consideration the penitence must be sincere and the accused must take the court fully into his confidence. This the appellant failed to do; his offering of sorrow appearing to be no more than a perfunctory and empty gesture.

25.	I am satisfied that the trial court properly applied the sentencing guidelines in S v Malgas and carefully considered whether there were truly convincing reasons for departing from the prescribed minimum sentence in reaching its conclusion. Not surprisingly, the aggravating circumstances were found to outweigh the appellant’s personal circumstances.

26.	The imposition of the prescribed sentence of fifteen years was accordingly appropriate in the circumstances. 

27.	In the result the appeal against both conviction and sentence is dismissed.

_________________
HARTLE J
JUDGE OF THE HIGH COURT

I AGREE AND IT IS SO ORDERED:

_________________
GRIFFITHS J
JUDGE OF THE HIGH COURT

DATE OF APPEAL	:	29 August 2012

DATE OF JUDGMENT:	6 September 2012

Appearances:

For appellant:	Mr. D P Geldenhuys, Justice Centre, Grahamstown

For respondent: Ms H Obermeyer, Office of the Director of Public Prosecutions, Grahamstown