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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                                CASE NO CA&R 186/2015

                                                                                                DATE HEARD: 22/08/2016

                                                                                                DATE DELIVERED: 21/09/2016

In the matter between

NYAMEKO GEBENGWANA                                                                           1^ST APPELLANT

BATHANDA JASON NGQONGA                                                                   2^ND APPELLANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

ROBERSON J:-

[1] The two appellants were convicted by the High Court, Port Elizabeth, of robbery with aggravating circumstances and murder.  They were sentenced to 15 years’ imprisonment for the robbery and life imprisonment for the murder.  This appeal lies against the convictions and sentences, with the leave of the trial court.

[2] It was not in dispute at the trial that on 29 May 2011 at about half past seven in the evening, three men entered the home of Mr Vuyisile Koom (the deceased) and his wife Mrs Cynthia Koom, a school teacher.  The deceased was severely assaulted and died at the scene.  Two cellphones, a television set, a DSTV remote control device, a wallet and a bag containing a bible and a prayer book were stolen from the house.

[3] The appellants were originally charged with a third man, Mbulelo Mbulali, but he died before the trial commenced.  The appellants’ defence, which emerged during cross-examination of Mrs Koom, was a denial that they were ever at the Kooms’ home and a denial that they committed the offences.

[4] Mrs Koom testified that she and the deceased were watching television in the TV room when there was a knock on the front door.  The deceased opened the door and three men pushed their way in.  The first to enter held what Mrs Koom thought was a firearm against her side and made her sit on the armrest of a couch.  This man stood on her right hand side and told her that if she made a noise he would shoot her.  She was too scared to look at his face.  The deceased struggled with the second man who entered and managed to force him into a chair.  The struggle between the deceased and the second person continued and it appeared as though the deceased was trying to immobilise the arm of this person, who was holding what appeared to be a firearm.  The third person, who was behind the deceased, told the person who was struggling with the deceased to shoot the deceased and to give him a knife so that he could stab the deceased.  

[5] Mrs Koom was not certain if the light in the TV room was on when the men entered but the light in the lounge leading off from the TV room was on.  This light provided sufficient light for her to see clearly in the TV room.  She was seated about the length of a two seater couch from the chair where the struggle was taking place and her attention was focused on the person who was struggling with the deceased.  She did not note any special facial features or marks other than that he had a long face.  He was wearing a white cap and a white lumber jacket from which a grey collar was protruding.   

[6] When the man next to her moved away, Mrs Koom took the opportunity to escape and ran out of the house and alerted her neighbours, Reverend and Mrs Hoyi.  She estimated that about five to seven minutes had passed between the men’s arrival and her escape.  Reverend Hoyi called the police.  Mrs Hoyi opened her front door and told Mrs Koom that there were people in Mrs Koom’s yard.  Mrs Koom looked through the grill in the door and saw someone running from the side of the street where her house was to a black Golf motor vehicle (the Golf) which was parked across the street.  She could not remember if the street lights were on but there were two bright lights on her verandah which were on.  This person, who was the person with whom the deceased had struggled, was holding a television set under his arm.  When he ran across the road with the television set she recognised him by his clothing and his long face.  He put the television set into the back of the Golf, climbed into the back of the Golf, and the Golf was driven away.  Mrs Koom agreed that there was very little time to observe this person when he ran across the street and got into the Golf. 

[7] When she returned to her house she found her husband lying on the floor of the lounge with part of his pyjamas covering his face.  When she uncovered his face she saw that it was full of blood.

[8] In the early hours of the next morning she was informed by her brother-in-law that people had been arrested at a petrol station and that she should go to the New Brighton police station in order for her to see whether or not they were the persons who had entered her house.  On the counter at the police station she saw a Nokia Navigator cellphone and a Nokia E63 cellphone which had belonged to the deceased, as well as a DSTV remote device which was her and the deceased’s property.  A police officer said “here are these people at the back” and she followed him to have a look at the people to whom he was referring.  She saw three men in an area enclosed by bars and saw that one of them was wearing the same clothes she had described as worn by the person who had struggled with her husband.  She identified him as one of the perpetrators and as she was walking away she thought that she knew him.  She turned back and saw that he was someone she had taught as a child in 2003 or 2004.  It was the first appellant.  She asked him by his name, Gebengwana, if it was he who had murdered the deceased and he denied that he had.  When asked why she had not recognised him as her former pupil at the time he was in the house and when he crossed the road with the television set, she said at that stage she had just had a “mere look” at him. 

[9] Mrs Koom did not identify the other two men in the cell.  It was common cause that they were the second appellant and Mbulali.  She denied having said to the police that the three men in the cell were not the perpetrators because they were too young.

[10] During cross-examination she was shown photographs of the first appellant in which he was wearing the clothing he would say he was wearing at the time of his arrest.  The photographs showed that he was wearing a checked shirt and not a white lumber jacket or white cap.  She said that she was certain that he was wearing the clothes she had described when she saw him in the cell.  

[11] Mrs Koom’s son, Luyanda Koom, testified that he arrived home that evening to discover that his father had been murdered.  He accompanied his mother and his uncle to the police station and was present when his mother identified the first appellant.  Amongst a number of cellphones shown to him, he identified two as having belonged to the deceased.  He also identified the DSTV remote as being similar to the one which had been taken from the house.

[12] Constable Elizabeth Fortuin was on duty on 29 May 2011.  She testified that at about 20h00 she received a complaint of a house robbery at the Kooms’ home.  She was told there were three isiXhosa speaking suspects who had left the scene in a black Golf.  She proceeded with her duties and just after midnight she spotted a black Golf with three occupants.  It was not in dispute that the occupants of the Golf were the appellants and Mbulali, and that the second appellant was the driver of the Golf.  While waiting for backup, Fortuin saw the three occupants alight from the Golf, which by now had been driven into an Engen garage, and move towards the shop at the garage.  She denied that the second appellant had remained near the Golf. 

[13] The dog unit arrived and Fortuin and Constable Luphuwana of the dog unit drove into the garage and alighted from their vehicles.  Luphuwana asked who the driver of the Golf was and the second appellant approached and said that he was the driver.  The other two men also approached.  Luphuwana told the men to lie down whereafter he searched them.  Fortuin did not notice that the appellants had sustained any injuries at this stage.  Luphuwana retrieved five cellphones from the three men.  The Golf was searched and Fortuin saw clothes in the boot and a DSTV remote control.  She took possession of the remote, as well as the cellphones.  Fortuin informed the three men that they were suspects and they were taken to the New Brighton Police station.

[14] When Fortuin entered the police station she heard Mrs Koom saying “here is the person that was in my house with the robbery”.  Mrs Koom mentioned the name Nyameko.  Fortuin placed the cellphones and the DSTV remote on a table and Mrs Koom and her son identified the deceased’s cellphones.  The three suspects were then arrested and charged.

[15] Dr Greg Ochabski performed the post mortem examination on the deceased.  He found bruises and lacerations on the head, multiple fractures of the skull and facial bones, and aspiration of blood into the airways.  He testified that major force must have been used to cause the fractures and judging from the number of bruises and lacerations there must have been multiple blows.  The cause of death was blunt force injury to the head.  Dr Ochabski took a blood sample from the deceased for DNA testing and sealed it in a kit which he received from the investigating officer.  It was not in dispute that the sealed kit was properly handled and eventually arrived at the Western Cape forensic laboratories where DNA testing was performed on the deceased’s blood sample.

[16] Constable Pieter de Wal is employed by the South African Police Service as an official photographer, draftsman, forensic field worker and fingerprint expert.  When he testified he referred to an affidavit to which he had deposed.  He attended the crime scene at the Kooms’ house about an hour after the offences were committed.  He took photographs of the scene and pointed out in two of the photographs what he said were partial footprints on the floor of the Kooms’ house.  He gathered a number of exhibits and placed them in evidence bags.  These exhibits included swabs of blood found at various places in the house, and a T-shirt found in the bedroom with possible blood stains.  In the early hours of 30 May 2011 at New Brighton police station he photographed the appellants and Mbulali and collected their shoes.  He put each pair of shoes into a separate evidence bag, which had a unique seal number.  An envelope containing a shirt with possible blood stains taken from the first appellant was also placed in the evidence bag with his shoes.  Although De Wal indicated in his affidavit that he had sealed the bags containing the shoes, he did not seal the bags.  He said that the bags have a flap similar to that of an envelope and although the bags were not sealed, the flap was closed.  He kept the bags on the back seat of his vehicle which was locked and to which no-one else had access. 

[17] At about 04h00 he assisted in taking the Golf to Mount Road police station and there he took the exhibits from his vehicle to his office.  At about 07h30, he took the shoes out of the bags and performed presumptive tests on the shoes.  All the shoes tested positive for possible blood.  Swabs taken from each shoe (six shoes), were placed in six separate boxes which were placed in a swabbing kit.  After swabs were taken from a pair of shoes, that pair would be placed back in the bag and there was no contamination with the other pairs of shoes.  The three pairs of shoes were handed to Warrant Officer Le Vack for further investigation.  De Wal had no independent recollection of having sealed the bags but said that when he hands over a bag to another investigator the bag will be sealed.  Hair samples, seat covers and clothing taken from the Golf were also placed in evidence bags.  De Wal took all the evidence bags to the forensic science laboratory in Port Elizabeth.

[18] Warrant Officer Le Vack testified that he is employed, inter alia, as a fingerprint expert at the provincial crime scene processing team in Port Elizabeth.  On 29 May 2011 at 21h50 he attended the crime scene and there lifted a number of fingerprints and a palm print.  The next morning he lifted a number of fingerprints and palm prints from the Golf.  One of the palm prints on the passenger door of the Golf corresponded with that of the first appellant.  Two finger prints and two palm prints found on the exterior of the Golf corresponded with those of Mbulali.  A fingerprint and a palm print found on the driver’s window of the Golf and a palm print found on the right back door of the Golf corresponded with those of the second appellant.

[19] On 30 May 2011 Le Vack was informed by De Wal that he had collected shoes from the suspects.  In De Wal’s office Le Vack saw three pairs of shoes, which as far as he could recall, were in separate evidence bags.  He advised De Wal to take swabs from underneath the shoes and thereafter to hand the shoes to him in sealed exhibit bags.  According to Le Vack, De Wal worked separately with each pair of shoes.  De Wal sealed the bags and handed Le Vack the three sealed bags each containing a pair of shoes.  The bags were booked into the SAP 459 exhibit register.  Other items booked into the register were keys, “bible documents” and clothing.  Le Vack said that these items were found by him inside the Golf.  All the exhibits were then put in one exhibit bag and entered into the SAP 13 register. 

[20] Warrant Officer Philip Bekker is a crime scene investigator with extensive qualifications and experience.  In particular he has undergone courses in blood pattern analysis, bloodstain pattern recognition and classification, and crime scene reconstruction.  He is also qualified as a shoeprint expert.  He testified with regard to the possibility of contamination, in the event that the shoes of the appellants and Mbulali were transported in unsealed bags from New Brighton police station to De Wal’s office at the Mount Road criminal record centre, where the shoes were subjected to presumptive tests.  In order to qualify himself to testify, he relied on the following information:  a briefing by the prosecutor concerning the origin and context of the exhibits; an interview with De Wal; the photographic and forensic docket compiled by De Wal; and the electronic report of the movements of De Wal’s vehicle.

[21] Bekker said that it is standard procedure for a forensic fieldworker to transport exhibits collected at a crime scene to an office or laboratory in order to conduct tests on the exhibit.  He acknowledged that if an exhibit is collected it should be sealed at the scene where it is collected.  De Wal did not do this when he collected the shoes from the suspects.  This was a breach of protocol.  Bekker agreed that the purpose in sealing a bag is to prevent deliberate or accidental contamination of exhibits and to preserve the integrity of the chain of evidence from collection to eventual analysis.  He went further and said that the integrity of the chain of evidence mostly depends on the integrity of the forensic fieldworker who collects the exhibits.  When Bekker interviewed De Wal, he relied on De Wal’s integrity in handling the exhibits. 

[22] In his investigation Bekker concentrated on the first appellant’s pair of shoes depicted in De Wal’s photographs, which he enlarged.  He did not request the shoes themselves, because with the passing of years the bloodstains on them would not have had the same characteristics as they did when they were photographed.  He considered the photographs to be the truest reflection of the characteristics of the bloodstains.  He studied the bloodstain patterns on the shoes in order to determine whether or not there was deliberate or accidental contamination.  He identified various types of stains on the shoes.  The first type were mud covered contact stains, which occur when blood is transferred from one object to another, through physical contact.  The next type were saturation stains, which result from an accumulation of liquid blood in an absorbent material.  The next type were impact stains, which occur when blood is dispersed by force from a point or which result from blood which has been put in free flight and subsequently impacted a surface.  The last type were “voids”, which means a lack of bloodstains in an area with a continuous blood stain pattern.

[23] Bekker also had regard to photographs of the floor of the Kooms’ house, next to the body of the deceased.  He said that these photographs depicted a contact stain which according to its pattern was made by the outer sole of a shoe, which corresponded with the sole of the first appellant’s shoes.  Bekker also noted what he described as a complex stain on the floor, which is a stain consisting of more than one bloodstain pattern which overlap on a target surface.  The two stains in this instance were pooling, which is a stain formed by blood which accumulates on a surface, and a smear stain, which is a stain or pattern created when an object moves through a pre-existing bloodstain on another surface.

[24] Bekker concluded that the bloodstains on the first appellant’s shoes were consistent with stains deposited in a large volume under the shoes during contact with a large pool of blood.  There was a large pool of blood next to the deceased which could have been transferred to the shoes.  The shoes were then subjected to normal walking which removed some of the blood under the shoes.  This walking created “voids” in areas where there should have been blood. 

[25] Bekker ruled out deliberate contamination of the shoes.    Blood can only be transferred when it is wet and can create a pattern.  Deliberate contamination would have been achieved by using a swab or other object to smear wet blood on the shoes. There was no single smear pattern on the shoes.  All the patterns on the shoes and at the crime scene were consistent with the scenario which had been explained to Bekker.  Further, if there had been deliberate contamination, Bekker would not have expected to find mud on top of the blood on the shoes.

[26] Bekker also ruled out accidental contamination of the shoes.  He said that if the blood on the shoes was still wet it would have left smear patterns on the inside of the bag and at the top of the bag which was visible in the photograph of the shoes.  He was therefore of the opinion that the blood on the shoes was dry or dry enough not to leave a smear, when the shoes were put by De Wal into the bag.

[27] Bekker acknowledged that it was possible to fabricate the bloodstains on the shoes but it would take an expert in bloodstains to do so.  Further De Wal would have had to have access to a large amount of the deceased’s blood.  De Wal did not collect a large amount of blood at the crime scene nor, according to his vehicle log, did he return to the crime scene.

[28] Lieutenant Ridwaan Boltman is a reporting officer at the Western Cape forensic science laboratory.  He testified with reference to a statement he had prepared in terms of s 212 of the Criminal Procedure Act 51 of 1977.  He evaluated the results from various samples which were subjected to DNA analysis.  The DNA extracted from the deceased’s reference blood sample matched the DNA obtained on the swab from one of the first appellant’s shoes and the DNA on the T-shirt found in the deceased’s bedroom.  The DNA obtained on the swab of the first appellant’s other shoe did not match the DNA from the reference samples of the deceased, the appellants, or Mbulali.  (The appellants admitted that their reference blood samples were properly taken, sealed, and received at the Western Cape forensic laboratory.)  Insufficient DNA was obtained from the swab taken from one of the second appellant’s shoes and from the swabs taken from Mbulali’s shoes.  However the DNA which was obtained, although insufficient, was from human blood. 

[29] Warrant Officer Sibusiso Zungu is a forensic analyst at the biology unit of the forensic science laboratory.  He received from the administrative component at the Port Elizabeth laboratory, inter alia, a sealed evidence bag containing the sealed swab guard holders containing the swabs taken from the three pairs of shoes.  The swab guard holders were each marked with the exhibit numbers allocated by De Wal.

[30] The rest of the evidence on behalf of the state was by way of s 212 affidavits relating to the treatment of the various exhibits at the laboratories.

[31] The first appellant testified and denied that he had ever been to the Kooms’ house.  He denied that when he was arrested he was wearing a white cap and a white lumber jacket and said he was wearing the clothes which he had put on that morning, which included a checked grey shirt, as depicted in the photographs taken of him after his arrest. 

[32] He explained how he came to be at the Engen garage where he was arrested.  Earlier in the evening he met Mbulali at a tavern.  They moved from one tavern to another and at the last one Mbulali told him that two young men there were offering two cellphones for sale.  One was a Nokia Navigator and the other an E63.  The first appellant did not know these young men.  He bought the Navigator for R150 because it was new on the market.  He was also at the time in possession of his own cellphone.  He left Mbulali with the young men and did not notice what happened further between them.  Later Mbulali suggested that they should go to the Engen garage.  On their way there a black Golf passed them.  Mbulali said that it was the second appellant, who he referred to by his nickname.  The first appellant did not know the second appellant at that stage.  He and Mbulali whistled to the second appellant who stopped and Mbulali asked him for a lift.  The second appellant said he was on his way to put in petrol at the garage and the first appellant and Mbulali got into the Golf.  At the garage they alighted from the Golf and went to stand in the queue for the shop to buy something to eat.  The first appellant did not notice where the second appellant was at this stage. 

[33] Police vehicles then arrived and the second appellant, accompanied by a policeman, approached him and pointed him out.  He was then put down on the ground and when he asked what was going on, he was struck with a machine gun causing a wound which bled.  Mbulali was also on the ground.    He and Mbulali were searched and the Navigator was found on him.  The E63 cellphone that he had seen at the tavern was found on Mbulali.  The first appellant did not see the Golf being searched. 

[34] The three of them were taken to the police station and entered through the back door.  When they were in their cell four persons approached and a policeman said “here are the killers”.  At that stage the first appellant did not know any of the four people.  A female police officer asked the older woman in the group three or four times if she knew any of the three of them and she said that she did not.  She looked at the first appellant, looked away, looked at him again and said “Gebengwana is that you who killed my husband?”  The first appellant said that he did not and then realised the woman was Mrs Koom who had been his school teacher in 2001 and 2002.  Mrs Koom was again asked if she could identify any one of them and she said that it was not them but that she knew Gebengwana.

[35] A police officer showed the group the items which had been taken from the scene and the young man in the group identified the E63 cellphone.  The first appellant also saw a DSTV remote at the police station.

[36] After the group left, a policeman arrived and photographed the three of them.  The policeman took the second appellant’s and Mbulali’s shoes.  The first appellant did not see what he did with those shoes.  The policeman also took the first appellant’s shoes and his checked shirt.  The policeman put the shoes under his arm and left.  The first appellant said that the blood found on his shoes was his blood because he was bleeding.  He said that the shoes he was wearing were stocked at several shops and were fashionable in the township.

[37] The second appellant testified that he was the owner of the Golf which he was driving on the night of 29/30 May 2011.  At the time he used it as a “jikileza” taxi.  On 29 May 2011 he worked on the Golf for the whole day.  That evening, while he was on his way to the Engen garage to fill up with petrol, he heard people whistling.  He stopped and saw Mbulali, an acquaintance, and the first appellant, who he did not know.  He agreed to give them a lift and they proceeded to the garage.  He stopped next to the petrol pump and his two passengers alighted and went to stand in the queue for the shop.  While he was urinating on the grass a police vehicle arrived at the garage and Luphuwana asked the petrol attendant who the driver of the Golf was.  The second appellant said that he was the driver.  Luphuwana said to him that “you boys” had committed a robbery and when the second appellant denied knowledge of a robbery, Luphuwana smacked him a few times on his face.    Luphuwana asked the whereabouts of the two persons to whom he had given a lift.  He told Luphuwana that they were in the queue and pointed them out.  Luphuwana searched the second appellant and the Golf.  A white DVD or television remote was found in the cubbyhole of the Golf and clothes and other items were found in the boot.    The second appellant said that when he first took possession of the Golf there were items in the car, one of which was the remote.  Because it was small, he left it in the Golf.  He denied that a black remote was found in the boot.  Luphuwana put the white remote in his pocket.  After the search the second appellant was tripped by another policeman and fell face forward.  The policeman trampled on him causing an injury to his forehead.

[38] The three of them were then taken to the police station and placed in the cell.  A group of four persons approached and a policeman said “here are these boys who are killers, we have caught them”.  The older woman in the group looked at them one by one and said it was not them because they were too young.  She was told not to be in a hurry and to have a proper look.  She looked at them for the third time and turned away.  She then said “Gebengwana is that you who killed my husband” and the first appellant denied doing so.  The woman said that if it was them she would have been able to identify them, because she knew Gebengwana.  When the cellphones were displayed for identification the second appellant did not see a DSTV remote among them, white or otherwise.

[39] The second appellant denied being at the Kooms’ home that night and said that he knew nothing about the presence of human blood on his shoes.

[40] In convicting the appellants, the learned trial judge accepted Mrs Koom’s identification of the first appellant.  She was alive to the caution required in evaluating evidence of identification, as expressed in the well known passage in S v Mthetwa 1972 (3) SA 766 (A) at 768A-D.  She took into account the lighting in the house, the length of time during which Mrs Koom had the opportunity to observe the scene of the attack, the short distance between her and the perpetrators, and the fact that there were only three other persons in the room besides her and the deceased.  I would add to these factors Mrs Koom’s evidence that she concentrated on the person with whom the deceased was struggling.

[41] Criticism was levelled at the identification of the first appellant because Mrs Koom did not immediately recognise him as one of her former pupils.  I am of the view that there is little merit in this criticism.  Mrs Koom had taught the first appellant some nine years before.  Taking into account the change in appearance which takes place between childhood and adulthood, the years which had passed, the number of pupils she must have taught during her career, and the traumatic events taking place in her home, it is not at all surprising that she did not immediately recognise the first appellant.

[42] Criticism was also levelled at her identification of the first appellant because the photographs of the first appellant taken at the police station showed that he was not wearing the white cap and white lumber jacket.  He was however wearing a grey checked shirt, and Mrs Koom saw the collar of a grey shirt above the lumber jacket.

[43] The appellants’ version that Mrs Koom did not identify any of the three men at the police station could not be sustained.  If she had not identified the first appellant as one of the perpetrators, it makes absolutely no sense that she would thereafter ask the first appellant if he had murdered the deceased.

[44] I can find no reason to disagree with the trial court’s acceptance of Mrs Koom’s evidence of identification of the first appellant.  In any event, even if there were grounds to doubt the reliability of this evidence (but not Mrs Koom’s honesty), there was in my view considerable circumstantial evidence implicating both appellants.

[45] I deal firstly with the evidence that the deceased’s blood was found on the first appellant’s shoe.  The learned judge accepted this evidence.  The evidence of De Wal was the subject of much criticism in this appeal, on the grounds that he had misled the court when testifying and also in his affidavit.  These grounds related to his evidence that he had put the shoes in bags and sealed them before taking them out again and performing the presumptive tests and taking the swabs.  While there was no criticism of Bekker’s evidence, in my view correctly so, it was submitted that Bekker had to rely on the word of De Wal, who, so it was submitted, had lied and misled the court.

[46] In my view De Wal’s conduct in not following protocol and in initially creating a false impression that he had sealed the bags before taking the shoes out for testing, is not as damaging to the State case as was submitted.  If the first appellant did not tread in the deceased’s blood at the scene, then the deceased’s blood would have had to be put on the first appellant’s shoe after he took his shoes off at the police station and gave them to De Wal.  This means that the deceased’s blood would have had to be taken from the crime scene and later come into contact with the first appellant’s shoe.  Bekker convincingly explained that this could not have been done either accidentally or deliberately, even if he relied on what De Wal told him.  The blood patterns on the shoes were, according to Bekker, consistent with what happened at the crime scene.  It is in my view highly improbable that De Wal deliberately planted blood on the first appellant’s shoe in such a manner that the blood patterns on the shoes accorded with the crime scene.  Bekker said it would take an expert to do so.  Even if the blood of the deceased was accidentally introduced onto the appellant’s shoe, it is in my view also highly improbable that it would be distributed on the shoe in patterns which accorded with the crime scene.  Moreover Bekker said that the blood was dry or dry enough not to leave a smear when the shoes were placed in the bag. 

[48] The trial court was therefore correct in accepting that the deceased’s blood was found on the first appellant’s shoe.  It appeared not to be in dispute that human blood was found on one of the second appellant’s shoes.

[49] In addition to the evidence of the presence of the deceased’s blood on the first appellant’s shoe and human blood on the second appellant’s shoe there was further circumstantial evidence implicating the appellants.

[50] It was not in dispute that three men entered the Kooms’ home.  Mrs Koom saw a black Golf at the scene and that, leaving identification aside, a person carrying a television got into the Golf.  Only a few hours later the police came across three men, namely the appellants and Mbulali, travelling in a black Golf.  The first appellant and Mbulali were in possession of the deceased’s cellphones.  A DVD remote, later identified by Luyanda Koom, was in the boot of the Golf.  The Golf was admittedly owned by the second appellant and had been in his possession for the whole of 29 May 2011.  The second appellant denied that there was a remote in the boot, but it was not in dispute that a remote was identified at the police station together with the cellphones.  Even the first appellant said that there was a remote at the police station.  It was not in dispute that a DVD remote was stolen from the house.  Even if the remote was not something easily identifiable as belonging to the Kooms, the fact that it was found at the same time as the cellphones is convincing evidence that it was the remote which was stolen.

[51] The first appellant’s evidence that he bought the deceased’s cellphone at the tavern cannot be sustained.  It would be stretching coincidence too far that he and Mbulali, having purchased the deceased’s cellphones, would then by chance come across the second appellant who was driving a black Golf containing the stolen DVD remote.

[52] The dispute in this matter concerned the identity of the persons who robbed and murdered the deceased.  In my view, even leaving aside the identification of the first appellant by Mrs Koom, the cumulative effect of all the above circumstantial evidence was overwhelming proof that the appellants and Mbulali were the perpetrators.  Such an inference is consistent with all the common cause and proved facts and these facts exclude any other reasonable inference.  (R v Blom 1939 AD 188 at 202-203.)  The number of incriminating facts, seen in their totality, and especially seen in the context of the relatively short space of time between the commission of the offences and the arrest of the appellants, excludes the drawing of an inference that the crimes were committed by any persons other than the appellants and Mbulali. 

[53] The appeal against convictions therefore cannot succeed.

Sentence

[54] The approach to sentence by an appeal court was dealt with in S v Malgas 2001 (1) SACR 469 (SCA) at para [12] as follows:

“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 by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. Where material misdirection by the trial court vitiates its exercise of that discretion, an appellate Court is of course entitled to consider the question of sentence afresh. In doing so, it assesses sentence as if it were a court of first instance and the sentence imposed by the trial court has no relevance. As it is said, an appellate Court is at large. 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'. It must be emphasised that in the latter situation the appellate court is not at large in the sense in which it is at large in the former. In the latter situation it may not substitute the sentence which it thinks appropriate merely because it does not accord with the sentence imposed by the trial court or because it prefers it to that sentence. It may do so only where the difference is so substantial that it attracts epithets of the kind I have mentioned. No such limitation exists in the former situation.”

[55] The sentences imposed were the prescribed minimum sentences in terms of s 51 (1) and (2) of the Criminal Law Amendment Act 105 of 1997.  The trial court found no substantial and compelling circumstances justifying a lesser sentence.

[56] The first appellant was 25 years old when the offences were committed.  He left school after Grade 11 in order to find employment and to assist in the support of his siblings.  He found casual employment as a general labourer.  He had one previous conviction for attempted robbery committed on 21 October 2007, the sentence for which was reduced on appeal to five years’ imprisonment, ante-dated to 21 August 2008.  He must have been released on parole prior to the commission of the crimes in the present matter.

[57] The second appellant was 32 years old at the time the offences were committed.  He has two minor children.  He too left school after Grade 11 in order to support his siblings.  He had previous convictions for robbery committed on 14 August 1999 for which he was sentenced to nine years’ imprisonment, unlawful possession of a firearm committed on the same date, for which he was sentenced to two years’ imprisonment, and an unrelated traffic offence.

[58] Both appellants were in custody for three years awaiting trial. 

[59] The learned trial judge was of the view that there was nothing in their personal circumstances which warranted a departure from the prescribed minimum sentences.  I am in respectful agreement.  The appellants, both young men, took brutal and callous advantage of two vulnerable and older persons, who were peacefully watching television in the sanctity of their own home.  The deceased bravely fought back even though he was outnumbered.  The robbery must have been planned and the appellants must have known that the house was occupied.  The evidence of Dr Ochabski and the photographs of the deceased bear testimony to a very brutal assault.  The appellants were motivated by greed and showed no remorse.  They were not strangers to violent crime.  The grievous nature of the crimes clearly outweighed the personal circumstances of the appellants.  I can find no misdirection in the trial court’s judgment on sentence nor do the sentences strike me as disproportionate or unjust.  I respectfully agree with the trial court that the offences in this case were the type the Legislature had in mind when enacting the minimum sentencing legislation.

[60] It follows that the appeal against sentence also cannot succeed.

Order

[61] The following order is made:

The appeal by the first and second appellant against their convictions and sentences is dismissed.

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J M ROBERSON

JUDGE OF THE HIGH COURT

 

PLASKET J:-

I agree

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C M PLASKET

JUDGE OF THE HIGH COURT

 

BLOEM J:-

 

I agree

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G H BLOEM

JUDGE OF THE HIGH COURT

Appearances:

For the Appellants: Adv J van der Spuy, instructed by Legal Aid Board, Port Elizabeth

 

For the Respondent: Adv I C Loots, Director of Public Prosecutions, Port Elizabeth

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