---

IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CAF 06/2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

CIRCULATE TO OTHER MAGISTRATES: NO

CIRCULATE TO REGIONAL MAGISTRATES: NO

In the matter between:

SIPHO BUTI NDLOVU                                                                       Appellant

and

THE STATE                                                                                    Respondent

 

LEEUW JP, HENDRICKS J & CHWARO AJ

DATE OF HEARING: 01 SEPTEMBER 2017

DATE OF JUDGMENT: 30 NOVEMBER 2017

COUNSEL FOR APPELLANT: MR. BABANE

COUNSEL FOR THE RESPONDENT: ADV. NONTENJWA

JUDGMENT

HENDRICKS J

Introduction

[1] The Appellant was indicted and stood trial on four counts, namely murder (count 1), robbery with aggravating circumstances (count 2), unlawful possession of ammunition (count 3) and unlawful possession of a fire-arm (count 4). He was convicted on all four counts. In respect of count 1 (murder) he was sentenced to life imprisonment. On count 2 (robbery with aggravating circumstances) he was sentenced to fifteen (15) years imprisonment. Counts 3 and 4 (unlawful possession of ammunition and unlawful possession of a fire-arm) were taken together for the purpose of sentence and he was sentenced to three (3) years imprisonment. The sentences on counts 2,3 and 4 were ordered to run concurrently with the sentence on count 1.

[2] The appellant applied for leave to appeal from the trial court. The application was made in respect of the conviction and sentence with regard to counts 1 and 2 only. Leave to appeal was granted to the Full Bench of this division against both the conviction and sentence in respect of counts 1 and 2, hence the present appeal.

[3] The salient facts of this case are as follows. On the evening of the 10^th March 2005 Sibongile Makgopa and David Dikokwe (“deceased”) were in their shop. When they were about to close the shop, a man entered to buy cigarettes. After Sibongile served him, the man left. That very same evening, approximately one-and-a-half hours later, Sibongile and the deceased were in their house, watching television. The deceased went out of the house to attend to the dog puppies because it was raining. Whilst the deceased was outside, Sibongile heard the sound of a fire-arm being discharged outside the house.

[4] She ran to a storeroom to take cover and she switched off the lights in the storeroom. She looked outside through the window. The area outside was illuminated by electric bulbs. She saw a man hiding something underneath his clothes in front around the area of his stomach. This man then tampered with the door of the motorvehicle which was parked next to the house. She recognized him as the same man who earlier on that same evening bought cigarettes. She identified him by his facial appearance and the clothes he was wearing. The man then pulled the deceased into the house. She managed to run to the deceased’s parental home to report.

[5] Upon returning to their house, she discovered that jewelry, a cellular phone, a fire-arm and the money, which was the proceeds of sales from the shop and tavern, were missing. The deceased, who was still alive by then, was transported to the hospital for treatment. He subsequently died. Sibongile was summoned to the police station where she positively identified a cellular phone as her property. This cellular phone went missing on the evening of the shooting incident. She was adamant about the identity of the appellant as the man she saw on the evening of the incident. He was also the only one that she saw on the premises after the firing of the gunshot.

[6] A week before the date of the incident, Marvin Kekara (Marvin) approached Benny Mokoena (Benny) with a plan to commit an armed robbery at the shop and tavern of the deceased. On the day of the incident, Marvin again approached Benny. It was agreed that they would use Benny’s motorvehicle as a get-away car. They proceeded to a garage where they picked up the appellant. They drove to the place of the deceased to execute their plan of robbery. Marvin and the appellant, both armed with fire-arms, alighted from the motorvehicle and proceeded on foot to the shop and tavern. Benny remained in the motorvehicle. After some time Marvin and the appellant returned. Marvin had a plastic bag which contained money in his possession. Marvin gave Benny a cellular phone and R150.00 cash. Benny sold the cellular phone to Elias Nkosiyedwa.

[7] Inspector Letshwene of the South African Police Services (SAPS) was the investigating officer of this case. He received information from Benny which led to the arrest of the appellant. The appellant was taken to the police station for questioning. Whist being interviewed,  he phoned Collins in the presence of Inspector Letshwene and told him that he is on his way to collect his fire-arm. The appellant led the police officers to a certain house where Collins produced a fire-arm. Collins was also arrested.

[8] The version of the appellant is a denial of the events and an alibi. He admitted that he socialized with Benny and Collins. He denied that he was involved in the murder and the robbery of the deceased. He testified that Collins approached him for a fire-arm and that he bought the fire-arm from Benny and sold it to Collins. His alibi is that he was at home with his mother and his two nephews. He was never at the scene on the day in question.

[9] The issue which the trial court had to decide was whether the appellant participated in the commission of the offences proffered against him. In a well-reasoned and detailed judgment the trail court evaluated the evidence. Sibongile is a single witness with regard to the robbery and shooting of the deceased. The trial court cautioned itself about the acceptance of her evidence especially insofar as it relates to the identity of the person she saw at the scene.

[10] In S v Mthetwa 1972 (3) SA 766 (AD) at 768 A the following is stated.

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting visibility, and eyesight; the proximity of the witness; his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait, and dress; the result of identification parades, if any; and, of course , the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities, see cases such as R v Masemang, 1980 (2) SA 488 (A.D); R v Dladla and Others, 1962 (1) SA 307 (A.D) at p. 310 C; S v Mehlape, 1963 (2) SA 29 (A.D).”

[11] The trial court also made strong credibility findings in favour of Sibongile. The following is stated in the judgment:

“She gave a clear and coherent account of what happened on the night in question. She acquitted herself very well in the witness stand. She stood a lengthy and probing cross-examination very well. She answered all questions very well. She was not evasive or irrelevant. She answered all questions without hesitation. She never contradicted herself in evidence-in-chief or under cross-examination. I cannot find any improbability in the evidence of Sibongile which affected her credibility.”

The trial court was best suited to make such credibility findings because it was stooped in the atmosphere of the trial. It observed the witnesses at first hand and is able to identify any shortcomings in their testimonies. These credibility findings of the trial court cannot be faulted.

[12] Sibongile’s evidence about the robbery is corroborated by the evidence of Benny who testified that they embarked on a mission to rob the shop and tavern of the deceased. Benny was an accomplice. The court a quo approached the evidence of Benny with caution. It reminded itself about the dictum in S v Hlapezulu and others 1965 (4) SA 439 (A) at page 440 where the following is stated:

“First, he is a self-confessed criminal. Second, various  E considerations may lead him falsely to implicate the accused, for example, a desire to shield a culprit or, particularly where he has not been sentenced, the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing description - his only fiction being the substitution of the accused for the culprit.”

[13] The trial court thereafter remarked:

“After recognising the aforegoing dangers inherent in relying on the evidence of an accomplice, a Court must seek safeguard of some fact reducing the risk of a wrong conviction. Corroboration which actually implicates the accused on the commission of the offence is the most obvious safeguard.

Other assurance that the evidence of an accomplice is reliable may be found where the accused is a lying witness, and where the accomplice implicates a friend or someone near or closely associated to him, against whom he has no ground for ranker.

It is competent to convict on the evidence of an accomplice where the merits of the accomplice as a witness, and the demerits of the accused as a witness are beyond question.”

The trial court, in evaluating the evidence of Benny, stated:

“Benny is an accomplice in this, case. His evidence must be approached with utmost caution Benny gave his evidence with confidence and in a coherent manner. His conduct and appearance in the witness stand created a good impression. However, the demeanour of a witness will not be a sole ground for decision in this case. The reason being, that a crafty witness may simulate the demeanour of an honest witness.

I cannot find any material contradiction in the evidence of Benny.”

[14] It was furthermore contended that there are material contradictions between the evidence of Benny and the statements that he deposed to. The trial court carefully and meticulously evaluated the contradictions and concluded that these contradictions are not material. They do not relate to the crux of the matter. They relate to collateral issues. The statements were not handed in as exhibits but were merely used in cross-examination of Benny. The trial court was alive to the dictum on S v Mkohle 1990 (1) SACR 95 (A) where the following is stated at page 98:

“Contradictions per se do not lead to the rejection of a witness' evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B-C, they may simply be indicative of an error. And (at 576G-H) it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness' evidence.”

The trial court correctly in my view found that the contradictions are not material.

See: S v Mafaladiso 2003 (1) SACR 583 (SCA)

[15] In the light thereof, the conviction of the appellant on both counts 1 and 2 cannot be faulted and it must be confirmed. The appeal against conviction on these counts should fail.

[16] With regard to sentence, it was contended that the trial court erred in not finding that there are substantial and compelling circumstances present in this case that warrant a deviation from imposing the prescribed sentence on counts 1 and 2.

[17] In S v Malgas 2001 (1) SACR 469 (SCA) Marais JA, in discussing the meaning of the phrase, ‘substantial and compelling circumstances’ in paragraph [22] said:

“[22] What that something more must be it is not possible to express in precise, accurate and all-embracing language. The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once a court reaches the point where unease has hardened into a conviction that an injustice will be done, that can only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterise them as substantial and compelling and such as to justify the imposition of a lesser sentence.”

and

“[25] What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed. In summary -

A. Section 51 has limited but not eliminated the courts' discretion in imposing sentence in respect of offences referred to in Part I of Schedule 2 (or imprisonment for other specified periods for offences listed in other parts of Schedule 2).

B. Courts are required to approach the imposition of sentence conscious that the Legislature has ordained life imprisonment (or the particular prescribed period of imprisonment) as the sentence that should ordinarily and in the absence of weighty justification be imposed for the listed crimes in the specified circumstances.

C. Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.

E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.

F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.

G. The ultimate impact of all the circumstances relevant to sentencing must be measured against the composite yardstick ('substantial and compelling') and must be such as cumulatively justify a departure from the standardised response that the Legislature has ordained.

H. In applying the statutory provisions, it is inappropriately constricting to use the concepts developed in dealing with appeals against sentence as the sole criterion.

I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.

J. In so doing, account must be taken of the fact that crime of that particular kind has been singled out for severe punishment and that the sentence to be imposed in lieu of the prescribed sentence should be assessed paying due regard to the bench mark which the Legislature has provided.”

[18] The following personal circumstances of the appellant were placed on record: The appellant was a first offender at the age of thirty (30) years; he had three minor children and his girlfriend was expecting a baby; he was a vendor selling food and drinks making a profit of approximately R2500.00 per month, which he would share with his sister.

[19] It was stated in S v Matyityi 2001 (1) SACR 40 SCA:

“[23] Despite certain limited successes there has been no real let-up in the crime pandemic that engulfs our country. The situation continues to be alarming. It follows that, to borrow from Malgas, it still is 'no longer business as usual'. And yet one notices all too frequently a willingness on the part of sentencing courts to deviate from the minimum sentences prescribed by the legislature for the flimsiest of reasons - reasons, as here, that do not survive scrutiny. As Malgas makes plain, courts have a duty, despite any personal doubts about the efficacy of the policy or personal aversion to it, to implement those sentences. Our courts derive their power from the Constitution and, like other arms of State, owe their fealty to it. Our constitutional order can hardly survive if courts fail to properly patrol the boundaries of their own power by showing due deference to the legitimate domains of power of the other arms of State. Here Parliament has spoken. It has ordained minimum sentences for certain specified offences. Courts are obliged to impose those sentences unless there are truly convincing reasons for departing from them. Courts are not free to subvert the will of the legislature by resort to vague, ill-defined concepts such as 'relative youthfulness' or other equally vague and ill-founded hypotheses that appear to fit the particular sentencing officer's personal notion of fairness. Predictable outcomes, not outcomes based on the whim of an individual judicial officer, is foundational to the rule of law which lies at the heart of our constitutional order. 

[24] In this case the respondent and his cohorts conducted themselves with a flagrant disregard for the sanctity of human life or individual physical integrity.”

[20] I am of the view that there are no substantial and compelling circumstances present in this case that warrant a deviation from the prescribed sentence. The trial court correctly in my view imposed the prescribed sentence and in so doing cannot be faulted. The appeal against the sentence on counts 1 and 2 should therefore fail.

 

Order

[21] Consequently, the following order is made:

(1) The appeal against both conviction and sentence on counts 1 and 2 fail.

(2) The conviction and sentence on counts 1 and 2 are confirmed.

 

 

___________________

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

 

 

I agree

 

 

___________________

M M LEEUW

JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

 

 

I agree

 

___________________

O.K CHWARO

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

---