South Africa: Eastern Cape High Court, Grahamstown

You are here:
SAFLII >>
Databases >>
South Africa: Eastern Cape High Court, Grahamstown >>
2015 >>
[2015] ZAECGHC 84
| Noteup
| LawCite
Botha v S (322/2014) [2015] ZAECGHC 84 (27 August 2015)
Download original files |
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy |
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN
C.A. & R.: 322/2014
DATE: 27 AUGUST 2015
In the matter between:
JOHANNES BOTHA................................................................................................................Appellant
And
THE STATE............................................................................................................................Respondent
JUDGMENT
EKSTEEN J:
[1] The appellant was convicted in the Regional Court for Port Elizabeth on one count of murder (count 1) and one count of robbery with aggravating circumstances (count 2). In respect of the murder he was sentenced to life imprisonment and in respect of robbery with aggravating circumstances a sentence of 15 years imprisonment was imposed. In respect of count 1 the appellant has an automatic right of appeal. In respect of count 2 he brought and application for leave to appeal which the magistrate refused. He thereafter petitioned the Judge President for leave to appeal. The petition too was unsuccessful. In circumstances this appeal is directed solely against his conviction and sentence for murder.
[2] At the hearing of the appeal Mr Charles, who appeared on behalf of the appellant contented himself with the heads of argument filed in respect of the conviction. He restricted his argument to the sentence imposed.
[3] It is not in dispute that on 12 June 2012 Nomalanga Mabedla (herein “the deceased”) was murdered at her place of employment at 3…… T…… Street, B…... P……….. She was employed as a domestic servant for one Hayward. On the said morning she was overpowered and she was stabbed 18 times on various parts of her body which resulted in her death. She was a trusted employee and carried with her the keys to the house and a remote sensor affording access to the exterior gates to the property. These were taken from her during the events and formed the subject matter of the robbery.
[4] It is not in dispute that the appellant was known to Mr Hayward and had been to the property on numerous occasions. He, however, denied any participation in the events and denied that he was present at the property on the day in question. Although he was arrested in T…….. S…. shortly after the incident the appellant contends that he was en route to another house at the time.
[5] In the appeal before us the sole argument raised in the heads of argument in respect of the conviction was that the appellant’s identity had not been proven beyond reasonable doubt and that the State witnesses erred in identifying him.
[6] The first insurmountable difficulty which arises for the appellant in this regard is his conviction on count 2. The judgment in respect of his conviction for robbery is final and no further appeal is pending in that regard. His presence on the scene of the crime and his guilt in respect of the robbery has therefore been established. For purposes of this judgment, however, I shall nevertheless, in favour of the appellant, have no regard to this consideration.
[7] One N…., resident at 2…… T…… S…… testified that on the morning at approximately 08h30 he heard the deceased screaming. He proceeded to the boundary wall between his property and that of Mr H…….. and looked over the wall. There he saw the deceased struggling with the appellant near the swimming pool. The appellant stabbed her with a knife. N….. states that he recognised the appellant by his grey hair and beard and also by his jersey which was depicted on a photograph before court. N….. ran straight to T……. S….. where the Atlas Security officers ordinarily take up their position. There he met one Vincent Schutte, to whom he reported the incident. Schutte, a security officer, entered the property and shortly thereafter, N…… says, he saw the appellant jumping over the boundary wall between no. 3….. And 3…… T…… S…….t. At this stage, N…. states that the appellant no longer had his jersey on but a grey T-shirt with black stripes. He immediately entered the property to see where the appellant sought to flee. When he returned to T…… S……. the police had already arrived.
[8] Schutte confirmed that N….. had reported to him that he had heard a scream. His evidence differs, however, from that of N……. in that he states that N…. had reported to him that he had heard screaming but was unable to determine from where it had come. This, inevitably, casts considerable doubt on N….’s observation of the appellant’s grey hair and beard. Indeed the photographs of the appellant reveal that he has a short beard which is partially grey although the hair on his head is predominantly black. The magistrate, correctly in my view, recognised the difficulties which arise from these discrepancies and he did not place reliance upon the identification of the appellant by N…..
[9] Schutte confirmed, however, that he entered the property of 3…. T……. S……. and went around the rear of the house where he noted the deceased lying in a pool of blood. The back door of the property, he says, was open and he could hear a noise inside the house. He immediately contacted his colleagues on his radio. Whilst doing so a man emerged from the house and preceded to the boundary wall of 3…. T….. S……. He could only see the back of the person and noted that he was wearing a grey T-shirt with red and white stripes, navy blue trousers with a light pinstripe and brown boots. The man proceeded to jump over the wall into 3…. T……… S……... At this stage he noted certain of his colleagues had arrived and they gave chase. The police too had already arrived at the scene. Schutte reported to the police what had occurred and gave a description of the dress of the person whom he had seen jumping over the wall after emerging from the house at 3….. T…… S……. On hearing the description the police officer indicated that he had just passed a person in Tobias Street whose clothing conformed with the description given. The police therefore turned around and drove back down T…… S……. Approximately five minutes later they arrived back at the scene and he noted the appellant in the rear of the police van.
[10] The police officer, Constable Nqambi confirms these events. He states that when he confronted the appellant the appellant had a black bag on his back. He noted that the appellant’s brown boots had what appeared to be blood splatters on and his T-shirt appeared to have a blood mark on. He immediately asked to search the appellant. In doing so, he found a cellphone and the keys and remote sensor of Mr H……. home in his pocket. In the bag on his back he found gloves, a black cap, a black jacket and a large panga. There was what appeared to be blood on the handle of the panga. The appellant’s shoes and the panga as well as other articles of clothing were taken for DNA tests. DNA results revealed overwhelmingly that it was indeed the deceased’s blood on the appellant’s boots and on the handle of the panga.
[11] The correctness of the DNA analysis is not challenged. In seeking to explain the blood on his clothing he states that he was taken back to 3….. T….. S…. after his arrest where the investigating officer, one Nyathi, took him to the scene where the deceased lay. The keys and remote sensor, he says, were lying on the ground and he was told by Nyathi to pick them up. When he observed a pool of blood near the kitchen door Nyathi kicked him in his back and he stumbled forward stepping into the pool of blood. As he lost his balance he pushed with his hand into the blood to prevent him from falling. He was thereafter further assaulted causing him to fall to the ground. There Nyathi pushed him to the ground causing his face to be pushed into a pool of blood. The black bag, he says was not found in his possession. It too lay on the ground at the scene of the crime. He says that the panga was not in the black bag. The panga he carried strapped to his back. The police dispossessed him of it and threw it to the ground. He was then instructed to pick it up and put it into the bag with his bloodied hands.
[12] It is not disputed that police from the Walmer Police Station attended the scene of the crime. Constable Nyathi is not stationed at the Walmer Police Station. He is stationed at the Walmer Detective Branch and holds office a considerable distance from the police station. He was not at the scene of the crime at all that morning. He was appointed as investigating officer some days later. The magistrate correctly, in my view, considered the appellant’s version fanciful. The appellant’s version of the events seeking to explain the blood on his clothing was accordingly, correctly, held to be not reasonably possibly true.
[13] The magistrate, as earlier eluded to, did not rely on N…….’s visual identification of the appellant for the conviction. On the conspectus of the evidence which was placed before the magistrate I think that there is an overwhelming volume of evidence linking the appellant conclusively to the scene of the crime. I am accordingly of the view that the magistrate has correctly convicted the appellant of murder.
[14] I turn to consider the appeal against sentence. The murder occurred whilst the appellant was committing or attempting to commit robbery with aggravated circumstances. By virtue of the provisions of section 51 of the Criminal Law Amendment Act 105 of 1997 a discretionary minimum sentence of life imprisonment is prescribed, unless the sentencing court is satisfied that substantial and compelling circumstances exist to justify the imposition of a lesser sentence than the sentence prescribed.
[15] In considering whether substantial and compelling circumstances exist all factors which traditionally play a role in the assessment of sentence are to be considered. If the sentencing court is satisfied upon a consideration thereof that an injustice would result from the imposition of the minimum sentence because the sentence is disproportionate to the crime, the criminal and the interests of society, the court is entitled to impose a lesser sentence. (Compare S v Malgas 2001 (1) SACR 469 (SCA).)
[16] In argument before us it is argued that the magistrate ought to have found substantial and compelling circumstances do exist. It is contended that the magistrate failed to properly consider the personal circumstances of the appellant and by so doing overemphasised the seriousness of the offence and the interests of society. There is no merit in this argument. The personal circumstances of the appellant were placed on record and the magistrate gave careful consideration thereto in his judgment. The appellant does not contend for any misdirection in the reasoning of the magistrate. Sadly, where one comes to consider serious offences such as those in issue in the present matter the personal circumstances of the accused person must necessarily yield to some extent to the interests of society. This, in my view, is indeed such a matter and I do not consider that any substantial and compelling circumstances emerge from the evidence in this matter which would justify a deviation from the prescribed sentence.
[17] In the result, the appeal is dismissed.
J W EKSTEEN
JUDGE OF THE HIGH COURT
SMITH J:
I agree.
J SMITH
JUDGE OF THE HIGH COURT
Appearances:
For Appellant: Mr H Charles instructed by Justice Centre, Grahamstown
For Respondent: Adv N Henning instructed by National Director of Public Prosecution, Grahamstown