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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 243/2004

In the matter between:-

FRANS KGANYE ….......................................................................Applicant

and

THE STATE …...........................................................................Respondent

DATE OF HEARING : 20 APRIL 2012

DATE OF JUDGMENT : 26 APRIL 2012

COUNSEL FOR THE APPLICANT : ADV SKIBI

COUNSEL FOR THE RESPONDENT : ADV RANTSANE

APPLICATION FOR LEAVE TO APPEAL

JUDGMENT

HENDRICKS J

Introduction:-

[1] This is an application for leave to appeal to the Full Bench of this division against the conviction as well as the sentence imposed upon the Appellant on 18 November 2004. Coupled with this application is also an application for condonation for the late prosecution of the appeal.

[2] At the hearing of this matter, after listening to the submissions by both counsel, I granted the requisite condonation. It was quite apparent that the Appellant was all along desirous to prosecute his appeal but was frustrated due to the delay in the transcription of the record.

The Facts:-

[3] It is common cause that on the 25^th July 2003, Sello Vincent Mashaba was in the company of the deceased [Jerry Lusanga], when they met the Applicant/Appellant, Bauwe Zothi and William, at a tuck shop in the vicinity where they reside. The Applicant/Appellant confronted the deceased about a firearm. The deceased responded by saying that he does not have a firearm which belongs to the Applicant/Appellant. The latter then requested two bullets from the deceased. The deceased refused. The Applicant/Appellant then took out a firearm and shot the deceased approximately four or five times, whereupon Bauwe Zothi grabbed hold of Mashaba.

[4] The Applicant/Appellant refused to shoot Mashaba on the instruction of Bauwe and said instead to Bauwe that he should search the deceased, who had fallen. Mashaba then managed to escape and went to the house of the deceased and made a report. He returned to the scene in the company of the relatives of the deceased. There was no fight between the Applicant/Appellant and the deceased and at no stage was the life of the Applicant/Appellant threatened by the deceased.

[5] This whole incident was witnessed by Doctor Masuku who was seated inside his car in front of the tuck shop. He confirmed that the company of the Applicant/Appellant consisted of five young men. The Applicant/Appellant made a gesture with his hand and he then heard many sounds of gunfire. By then, the deceased had both his hands in his pockets. He did not see who fired the shots.

[6] The Applicant’s version is to the effect that on the day of the incident, he was confronted by William, the deceased, Vincent and Lebo and asked why he told the police where William reside. They took him along. Along the way, they met Bauwe to whom the Applicant/Appellant made a report. He said that he was threatened by those in his company and that they wanted to kill him because he is an informer. William and the deceased were in possession of firearms. They informed the Applicant/Appellant that he has a choice to either rob the tuck shop or be killed. He opted for the first. The deceased handed a firearm to him which he hid underneath his T-shirt. The deceased was walking in front of the Applicant/Appellant so that he could conceal the firearm from being detected. When the deceased proceeded towards the tuck shop, the Applicant/Appellant did not follow but remained standing. When the deceased realized that the Applicant/Appellant was not following him, he turned around and saw that the Applicant/Appellant pointed him with a firearm. The deceased then made a movement as though he wanted to take out his firearm. Without affording him any chance to do so, the Applicant/Appellant opened fire in quick succession. He fired four or five shots at the deceased. The deceased fell down. The Applicant/Appellant admitted that he was in the unlawful possession of the firearm and ammunition. He raised the defence of self-defence.

[7] He was convicted of murder, the unlawful possession of a firearm and the unlawful possession of ammunition. He was sentenced to twenty five (25) years; three (03) years and two (02) years imprisonment on the respective charges. It was ordered that the sentences should run concurrently. It is against the conviction and sentence that the Applicant/Appellant now seek leave to appeal as aforementioned.

Grounds of Appeal:-

Conviction:-

[8] The following grounds of appeal were raised by the Applicant/Appellant:-

“1. In convicting the Appellant the Court erred in making the following findings:

1.1 That the State proved the guilty of the Appellant beyond a reasonable doubt;

1.2 That there are no improbabilities in the State’s version;

1.3 That the State witness can be criticized on matter of detail only, whereas the evidence was contradictory in material aspect;

1.4 That the evidence of State witnesses can be criticized on matter of detail only, whereas the evidence was contradictory in material respects;

1.5 That the minor differences between the evidence of the Appellant and the defence witness/es were sufficient to reject the Appellant’s evidence.

2. In convincing the Appellant, the Court erred in failing to:

2.1 Properly analyses or evaluate the evidence of the State witnesses;

2.2 Properly consider the improbabilities inherent in the State’s version.

3. In convincing the Appellant the Court further erred in the following respects:

3.1 Rejecting the evidence of the Appellant as not being reasonable possibly true;

3.2 Accepting the evidence of the State witness/es and rejecting that of the defence witness/es;

3.3 Holding against the Appellant contradictions between his/her own evidence and the fact put to the witness/es in cross-examination.

3.4 Holding against the Appellant matters which were not put to witness/es.” [sic]

[9] With due respect to the Applicant/Appellant not all of these grounds of appeal are applicable in this case. This is the difficulty that is experienced when a notice of appeal is drawn without the record of the proceedings first being transcribed. For example, there was no defence witness called in this matter to testify on behalf of őr in defence of the Applicant/Appellant. Grounds of appeal numbers 1.5 and 3.2 do not find application in this matter.

[10] The bulk of the remaining grounds of appeal concerns the fact that the trial Court accepted the version of the State witnesses as honest, truthful and reliable and rejecting the evidence tendered by the Applicant/Appellant as not being reasonably possibly true. The Court made strong credibility findings in favour of the State witness which cannot be faulted.

[11] The version of the Applicant/Appellant cannot be reasonably possibly true. It is highly improbable, to say the least, that the deceased who was angry at the Applicant/Appellant for leaking information to the police about William, would hand a loaded firearm to him and even walk in front of him. This, minutes after the deceased threatened to kill him. It defies all logic that the deceased would act in this manner.

[12] On his own version, it is clear that the Applicant/Appellant never acted in self-defence. He testified:-

“I told the deceased to walk in front of me so that the firearm can be concealed. The deceased walked and I remained standing. When the deceased turned and look backwards, he saw that I was pointing him with the firearm. I ordered him to stop and I said we are not going in there. He took an action as to drawing his firearm. I did not give him the chance to take out the firearm. I shot him. He reversed into the shop. I fired several times – about four or five times. At no stage did he took out his firearm.”

[13] In his heads of argument, counsel acting on behalf of the Applicant/Appellant stated:-

“From the summary and evaluation of the evidence by the court, it appears that the conviction cannot be faulted. However, our instruction are that we must ask this Honourable Court to grant leave to appeal against conviction.”

This contention was repeated by counsel during argument. In my view, the concession that the conviction cannot be faulted was indeed well made. I need not comment however on the execution of his mandate to ask for leave to appeal despite the concession.

[14] Having revisited the record and the judgment on the merits, I am convinced that no other court would, on the facts presented in this matter, come to a different decision on appeal than what this Court had arrived at. I therefore find that there are no reasonable prospects of success on appeal as far as conviction is concerned.

Sentence:-

[15] It is submitted by the Applicant/Appellant that the indictment does not refer to murder read with the provisions of Schedule 2 Part 1 of Act 105 of 1997. As such, so the submission goes, the Applicant/Appellant should have been warned that the offence of murder is a Schedule 2 Part 2 offence which has a prescribed minimum sentence of fifteen (15) years for a first offender, if there are no substantial and compelling circumstances.

[16] Furthermore, the following grounds of appeal were listed:-

“5. An effective terms of 25 years imprisonment is strikingly inappropriate. Schedule 2 Part 2 of Act 105 of 1997 prescribes minimum of 15 years for first time offenders of which is the case in this matter.

5.1 Is out of proportion to the totally of the accepted facts in mitigation.

5.2 In effect disregards the period of time, which the Appellant spent in custody awaiting trial.

6. The Court erred by not imposing a shorter sentence of imprisonment, coupled with community service and/or a suspended part of the sentence, more particularly in view of the following factors:

6.1 The absence of the previous convictions;

6.2 The absence of planning;

6.3 The age and personal circumstances of the Appellant;

6.4 The rehabilitation element;

6.5 The mitigating factors inherent in the facts found proved.

7. The court further erred in over-emphasizing the following:

7.1 The seriousness of the offence;

7.2 The interest of society;

7.3 The prevalence of the offence;

7.4 The deterrent effect of the sentence;

7.5 The retributive element of sentencing.

It is further submitted that the court erred in not taking the traditional mitigating factors cumulatively to be substantial and compelling circumstances to deviate from the prescribed minimum sentence.”

[17] The word “minimum” in Act 105 of 1997 bears exactly the ordinary meaning as the word indicates. Minimum means minimum. The court is not obliged to impose only the minimum sentence prescribed although the facts and circumstances of the case cries out that a sentence in excess of the prescribed minimum sentence needs to be imposed in the interest of justice. All the facts relevant for the impositioning of an appropriate sentence were indeed carefully considered and balanced. None of these factors were either over- or under-emphasized at the expense of the other.

[18] To guard against imposing too a severe sentence that might have been grossly excessive and disproportionate to the crimes committed, the court ordered that the sentences should run concurrently and not consecutively. After having carefully reconsidered the sentence imposed, I am of the view that there are no reasonable prospects of success on appeal also against the sentence.

Order:-

[19] Consequently, the following order is made:-

[i] Leave to appeal to the Full Bench of this division against both the conviction as well as the sentence is refused.

R D HENDRICKS

JUDGE OF THE HIGH COURT

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