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S v Rhaleni and Another (55/2015) [2015] ZAECGHC 128 (15 October 2015)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.:  55/2015                  

DATE:  15 OCTOBER 2015

In the matter between:

THE STATE

versus

ATHULE RHALENI                                                                                                    ACCUSED NO.1

AYANDA QAYI                                                                                                             ACCUSED NO.2

JUDGMENT

TSHIKI J

 

The two Accused appeared before me facing two charges which are:

 

Count 1 - Robbery with aggravating circumstances as defined in Section (1)(b)(i)-(iii) of the Criminal Procedure Act 51 of 1977, in that on or about 11th July, 2014, and at or near Vincent Park Location, in the district of Maclear, the Accused did unlawfully and with intent to rob, take by force from the possession of Hartley Chithani, an adult male, the sum of R20.00 cash and a pair of Grasshopper shoes, his property or the property in his lawful possession.  And that aggravating circumstances were present in that the Accused inflicted grievous bodily harm on the occasion when the offence was committed whether before or during or after the commission of the offence. 

 

Count 2 - Murder.  In that on the date and place referred to in Count 1, the Accused did unlawfully and intentionally kill the deceased, Hartley Chithani, an adult male.

 

In the event of a conviction, the said Director of Public Prosecutions requests sentence against the Accused according to law, with specific reference to the provisions of Section 51(1) of the Criminal Law Amendment Act 105 of 1997, which prescribes for a discretionary minimum sentence of life imprisonment in that the murder was planned or premeditated and/or the two Accused acted in the execution of a common purpose to kill and/or the death of the deceased was caused by the Accused persons in committing or after having committed robbery.  Regarding the charge of robbery, the provisions of Section 51(2) of the said Act will apply, to wit 15 years' imprisonment in that the Accused committed robbery with aggravating circumstances.

 

Both Accused pleaded not guilty to Count 1, that is robbery with aggravating circumstances, but guilty to robbery.  They both pleaded not guilty to murder which is Count 2.  In support of their pleas of guilty to robbery, both Accused submitted statements in terms of Section 112(2) of the Criminal Procedure Act 51 of 1977.  According to their statements in terms of Section 112(2), both stated that on the 11th July, 2014, they were at Crossroads Tavern in Vincent Location, Maclear, which is situated within the jurisdiction of this Court.  And they were both drinking liquor in this tavern, however they were still able to distinguish between right and wrong.  Accused No.1 had noticed the deceased who was sitting with a group of friends drinking liquor.  He could see that he was heavily intoxicated.  The two Accused decided to rob the deceased taking advantage of his state of inebriation.  When the deceased left the tavern, they targeted him because he was so heavily intoxicated.  When he left the tavern they approached him and robbed him of his property, that is a R20.00 note and his shoes.  One of them, that is no.1, pushed the deceased into the river and the deceased swam to the other side of the river.  He left him there when he was still alive.  The deceased's shoes were later identified by the deceased's brother who confronted Accused No.1.  The Police were called, and the two Accused were arrested.  They both denied murdering the deceased or killing him in any manner whatsoever, and that they never carried weapons at any stage. 

 

The State did not accept the Accuseds' pleas of not guilty to murder and robbery with aggravating circumstances.  The State did not accept the Accuseds' pleas and this necessitated the calling of evidence in its attempt to prove the charges against the Accused.  The State called four witnesses who are Lulama Munyu, Siphamandla Chithani, Songezo Tsheleza and Dr. Lungile Mjamba.  None of the witnesses implicated the Accused in the commission of the offences.  The evidence of Siphamandla was to inform the Court that he last saw the deceased on the 11th July, 2014.  I must say, though, that the initial date of the commission of the offence was stated in the Charge Sheet as the 18th July, 2014, and was amended on the date of trial to read 11th July, 2014.  The evidence of this witness never implicated the Accused persons.  This also was the case with the other three witnesses. 

 

However, the evidence of Constable Songezo Tsheleza was that he is the person who arrested the two Accused.  There was an occasion when he was summoned to a scene where the deceased was found.  He confirmed that the 'photos showed to him had acutely depicted the deceased’.  He confirmed that the deceased's body was discovered on the other side of the river, but not on the tavern side.  There were strange marks found on the area where the deceased's body was.  The deceased's body had marks showing that it had been dragged up to where it was found. 

The next witness was Dr. Mjamba who conducted a post-mortem on the body of the deceased.  That was on the 22nd July, 2014.  He observed that the body had a swelling on the frontal part of the neck.  It had bruises on the legs and buttocks.  He found the following injuries on the deceased's body.  The deceased's body appeared to have been assaulted and throttled.  It had a fracture on the [inaudible], multiple bruises on the buttocks and both legs, the deceased's lungs were normal.  There was swelling on the anterior aspect of the neck.  The death of the deceased was caused by the airway obstruction caused by the throttling.  Other than those injuries there were no injuries consistent with assault on the body of the deceased.  The drag marks on the deceased's body showed that the deceased had been dragged for about 20meters.  The doctor also confirmed that it is not always that a person dragged by a scarf would sustain injuries consistent with strangulation.  According to the doctor, the injuries would just consist of dislocation.  The doctor also testified that it was not even easy to determine when the deceased was killed or died. 

 

After the evidence of this witness, the State closed its case followed by the closure of both Accused's cases without evidence from the Accused.  It is clear from the evidence led so far that the State relies solely on circumstantial evidence, that is insofar as the murder of the deceased as well as the robbery with aggravating circumstances.  I must say at this stage that when the Accused were asked to plead to the charges, they pleaded guilty to robbery. 

 

In the case of R vs Bloem, 1939 AD188 at 203, it was stated that -

 

"The reasoning by inference as it is the case when dealing with circumstantial evidence in criminal cases, there are two cardinal rules of logic which cannot be ignored.  The first rule is that the inference sought to be drawn must be consistent with all the proven facts.  If it is not, the inference cannot be drawn.  The second rule being that the proven facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.  If these proven facts do not exclude all other reasonable inferences, then there must be a doubt whether the inference to be drawn is correct."

 

See also S vs Reddy & Others, 1996 Vol. 2 SACR at page 1, Appellate Division.  

 

In order for circumstantial evidence to be reliable, it must be supported by reliable facts which support its cogency.  This should be so according to "Best on Evidence", 10th Edition, 297 at 261, when he says -

"The elements or links which compose a chain of presumptive proof are certain moral and physical coincidences which individually indicate the principal fact and the probative force of the whole depends on the number, weight, independence and consistency of those elementary circumstances."

 

The State therefore must satisfy the Court not that each separate fact is inconsistent with the innocence of the Accused, but that the evidence as a whole is beyond reasonable doubt, inconsistent with such innocence.  In the present case, the Accused do not deny that they had at some stage during the day in question dealt with the deceased by robbing him of his money and shoes.  After stealing his money and shoes, they left him.  The problem we have is that no-one knows when the deceased died.  Neither is there evidence to show whether another person or persons had dealt with the deceased by way of assaulting him after he had been robbed by the two Accused.  I am also aware of the fact that the Accused have not given evidence, but the Accused have no burden to give evidence where there is no evidence implicating them in the commission of the offence.  The evidence led by the State does not, in my view, amount to such evidence.  The mere admissions made by the two Accused in their plea explanations are not sufficient.  More was required from the State's side as the party which has a burden of proof.  There was no such evidence in this case.  The last time when both Accused dealt with the deceased, the latter was still alive and had not been injured in any manner other than what the two Accused had done to him.  That the deceased died after the Accused had robbed him of his property does not mean that the Accused have a burden to give evidence.  As I said earlier, the burden of proof in a criminal case lies with the State and not with the Accused.  The State has had to prove that the Accused had assaulted the deceased to death, but no such evidence has been led by the State.  The fact that it could have been the Accused who killed the deceased is not the only reasonable inference, in my view, which could be drawn to conclude that the two Accused murdered the deceased. 

 

There are other many reasonable inferences that can be drawn.  The injuries which were found to have been inflicted on the deceased could also have reasonably been inflicted by other people.  In the absence of reliable evidence, I cannot conclude that the State has proved its case beyond reasonable doubt that the two Accused murdered the deceased. 

 

For the above reasons, the two Accused are found not guilty and discharged on the count of robbery with aggravating circumstances.  They are also not guilty and discharged on the charge of murder.  They are, however, found guilty of robbery as they had pleaded.

 

…………………………………..

P.W TSHIKI

JUDGE OF THE HIGH COURT

 

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO.:  55/2015                  

DATE:  15 OCTOBER, 2015

In the matter between:

THE STATE

versus

ATHULE RHALENI                                                                                                    ACCUSED NO.1

AYANDA QAYI                                                                                                             ACCUSED NO.2

SENTENCE

TSHIKI J



The two Accused have been found guilty as pleaded on a charge of robbery. They had both robbed the deceased, Hartley Chitani, an adult male person, of his R20.00 as well as his pair of shoes, the offence, having been committed at Vincent Park Location in the District of Maclear.  It was committed on the 11th July, 2014.  At the time of the commission of the offence, Accused No.1 was 19 years old as well as Accused No.2 was of the same age.  Both Accused elected not to give evidence in mitigation or aggravation of sentence.  They have pleaded guilty to robbery of R20.00 and the shoes of the deceased. 

 

Accused No.1, who is now 20 years, is staying with his family at his home in Vincent Park Location, Maclear.  He has been employed cutting wood at a timber factory in Maclear.  He went to school as far as Standard 7 which is now called Grade 9.  He's a first offender and had co-operated with the authorities right from the outset until today, and has not avoided the trial throughout until today when he was convicted. 

 

Both Accused were under the influence of liquor when they committed the offence.  It has been submitted that when considering the appropriate sentence the Court has to consider the fact that the Accused did not inflict injuries on the person of the deceased. 

 

Accused No.2 is said to have spent 3 months in custody before paying bail.  Mr. Riley, for Accused No.1, urged the Court to impose a non-custodial sentence on No.1, however should the Court decide that a non-custodial sentence is not the only suitable sentence, it should consider a sentence not more than 4 years, half of which would be suspended. 

 

Mr. Solani for Accused No.2 has informed the Court that Accused No.2 was not to give evidence.  He also stays at No. 2221 Vincent Park in Maclear.  He stays with his cousin. Both Accused herein are single and are not married.  Accused No.2 has no children and does not know his father.  His mother stays in Johannesburg.  His maternal aunt is running a shop in Maclear.  Accused No.2 is not employed.  He left school in Grade 8.  He has no previous convictions.  He has been in custody in this case for 2 months. 

 

Both Accused had been under the influence of liquor when they committed the offences.  Mr. Solani urged the Court to impose a sentence with a fine of about R2,000.00.  He submitted that Accused No.2 was also very drunk when he committed the offences. 

 

Counsel for the State has emphasised the seriousness of the offence committed by the two Accused.  He has suggested a custodial sentence of 8 years' imprisonment which he submitted would serve the purposes of the interest of society. 

 

When considering sentence, I have to take into account all the circumstances of the offence, including the interests of society, especially those of the victim.  The two Accused took advantage of the drunken state of their victim.  I have heard Counsel for both Accused suggest that the Accused did not commit any violence when they committed the offence.  I do not agree.  They both have pleaded guilty to the offence whose element is violence which is the robbery.  It could be that they took advantage of the error I made about violence when I was addressing the Court, and decided to climb into the wagon.  Both Accused have admitted to have used violence, especially that they acted in concert.  In such a case, they were acting in concert and in the commission of a common purpose.  This is revealed by their statements in terms of Section 112(2) of the Criminal Procedure Act.  As already been submitted by Counsel for the State, robbery is one of the prevalent and serious offences throughout the country.  The deceased lost his money through violence.  This will be taken into account when the Court imposes the appropriate sentence. 

 

The Accused are to stand up.

 

Having considered all the circumstances of the case, I am of the view that the appropriate sentence to be imposed herein is 2 years' imprisonment.  Therefore, each Accused is hereby sentenced to undergo 2 years' imprisonment.  I hand down the sentence.

………………………………………

P.W. TSHIKI

JUDGE OF THE HIGH COURT