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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case no: CA254/2016

Date heard: 19 February 2018

Date delivered: 22 February 2018

In the matter between

LUVUYO MBUYISELO SONAMZI                                                                        Appellant

vs

THE STATE                                                                                                       Respondent

 

JUDGMENT

 

PICKERING J:

[1] The appellant was charged in the High Court, Grahamstown, with rape (count 1) and murder (count 2), it being alleged that on 1 May 2015 and near Matyhantya Location, Tarkastad, appellant raped and murdered a 37 year old woman, Sanah Botha.  Despite his plea of not guilty he was convicted of murder as charged on count 2.  On count 1 he was convicted of attempted rape.

[2] In respect of count 1 he was sentenced to undergo 8 years imprisonment and in respect of count 2 he was sentenced to life imprisonment.  He appeals now against both the convictions as well as against the sentence of life imprisonment imposed on count 2.

[3] Ncamile Liwani testified that the deceased was his wife.  They had two children aged 5 and 3 years respectively.  On 30 April, at approximately 9 pm, he and deceased proceeded together to go and collect her government grant.  She had left her identity document and her bank card with a so-called loan shark.  She was going to go to the bank once her money had been deposited at 12 midnight.  Mr. Liwani went to wait for her at the bank but she never arrived.  He stated that he knew appellant by sight.  Appellant’s home was nearby to his home.  The appellant also knew the deceased.

[4] It appears from the evidence of the loan shark, one Mandla Price, that he was owed money by deceased and that he was in possession of her bank card.  On the night in question deceased arrived outside his homestead and shouted for him.  Because it was 10pm he did not respond.  Deceased left and he did not see her alive again. 

[5] Lusuko Maqina stated that he knew appellant and had a good relationship with him.  At approximately 9pm on 30 April he was at Eric’s Tavern drinking with a friend.  He and the friend shared seven Castle Light quarts.  He left the tavern when it closed at midnight and proceeded on foot through Matyhantya Location.  He was, so he said, a bit tipsy.  At a corner in the street near a Somali shop he saw appellant wrestling with a short coloured woman.  They were not far from the place where appellant lived.  A third person was also present but this person was not doing anything and had his back to him.  There were streetlights illuminating the scene as well as a light outside the shop and he accordingly had a clear view of appellant and the woman with whom he was wrestling.  They were no more than 10 metres away from him.

[6] He stated that the woman was screaming and crying out.  He passed them by without intervening because he thought that they might be in a relationship with each other and he was in any event afraid of getting too close because of the presence of the third person whom he could not identify.  He stated that he had not intervened because “most of the time when I intervene I am the one that gets injured.”

[7] In the morning he went to Cradock returning to Tarkastad at approximately midday.  He then heard a report concerning a coloured woman who had been killed in Matyhantya Location.  He accordingly phoned a policeman, Adonisi, and made a report to him about the fact that he had seen appellant wrestling with a short coloured woman.  He stated that he worked in the Tarkastad mortuary and, in the course of his duties, he saw the body of deceased in the mortuary and identified her as the woman with whom appellant had been wrestling.  Asked about his identification of appellant he stated that Tarkastad was a small community where everyone knew each other and that appellant “does not have a twin.”  He had known appellant for nearly seven years.

[8] Mxolisi Khondlo, a 44 year old man, stated that at approximately 8 am on 1 May 2015 he was at home cooking when he saw young children outside pointing at something. He proceeded to the place where the children were and noticed that there was blood on the ground as well as “skid marks there.”  It looked to him as if something had been dragged on the road towards an open field near to his house. 

[9] He followed the trail of blood and came across a single small takkie, panties and a bra.  He then saw the folded knee of a person.  This person was the deceased.  He called certain women seated in the vicinity and pointed out to them what he had seen.  They proceeded to the scene whilst he contacted the police.  When the police arrived he pointed out the blood trail.  There were also shoe prints on the ground.  It is not in dispute that those prints were made by so-called Parabellum shoes, also used by the police.  It is also not in dispute that the appellant owned a pair of these shoes at the time of the incident.

[10] The shoe prints led away from the scene.  They were followed by Khondlo together with the investigating officer.  According to Khondlo the prints led to the house of the appellant and “went inside his yard and ended at his door.”  The door was pushed open by the investigating officer who then entered the house.  Khondlo remained at the door but peeped through it and saw that appellant, who was wearing his clothes, was just waking up.  He then saw that the investigating officer had dagga in his hand and heard him telling appellant that he was arresting him for possession of dagga.

[11] The investigating officer, Warrant Officer Mafaesa, confirmed that he had attended the scene where deceased’s body was found.  She had been viciously assaulted on the face to the extent that her teeth had come out of her nose.  He observed a large amount of blood on the road near her body as well as prints of a pair of Parabellum shoes. 

[12] He initially stated that he had met Khondlo at the latter’s house and that from there they had followed a trail of blood droplets and shoe prints up to appellant’s house.  Under cross-examination, however, he stated that he could well be mistaken as to where he had met Khondlo because of the time which had passed since the incident occurred.  He stated that in any event the trail of blood and prints had led them to appellant’s house.  The door was not properly closed.  He entered the house and found appellant, fully clothed, lying asleep on the bed.  Appellant woke up with a start.  He began shivering and sweating after Mafaesa questioned him.  There was dagga on top of a table and Mafaesa told appellant that he was arresting him for possession thereof.  He did not arrest him for deceased’s murder because at that time there was no concrete evidence linking appellant to the death of deceased.

[13] Later that day he received information from Maqina to the effect that he had seen appellant wrestling with deceased.  He then arrested appellant for the murder of deceased.

[14] A post-mortem examination was performed upon the body of the deceased by Dr. Mbotya.  He also testified.  The chief post-mortem finding made by him were as follows:

“1. External viewing done – showed crushed face.

2. Bruising and laceration on the face.

3. Lacerated lips exposing broken teeth.”

 

The cause of death was described as being “crushed face no signs of injury on the genital organ.”

[15] In his evidence Dr. Mbotya expanded upon his findings.  He stated that deceased’s skull was completely crushed.  Her upper lip was lacerated to the extent that her teeth were protruding, indicating that her upper jaw was also crushed.  In his opinion the injuries to the head had been occasioned by the application of “tremendous” blunt force.  She would have died a painful death.

[16] Dr. Mbotya stated further that there were no injuries to deceased’s private parts.  Given that she was a married woman aged 37 years the absence of injury did not exclude penetration.

[17] Appellant testified in his defence.  His defence was that of an alibi.  He stated that he had been at a shebeen until 9pm whereafter he had returned directly home; smoked dagga and gone to sleep.  He accordingly denied having been in the company of deceased as alleged by Maqina and alleged therefore that Maqina’s identification of him was mistaken.  He conceded, however, that he knew Maqina; that there was no bad blood between them; and that the lightning in the area where Maqina allegedly saw him was sufficient for Maqina to have observed him properly.  Under cross-examination he conceded that Maqina’s identification of him could in the circumstances not be mistaken and he accused him of lying.

[18] The learned trial Judge accepted the evidence of Maqina as being “clear, honest and credible”.  She criticised the evidence of appellant as being unconvincing, stating further that he “had a shaky voice and seldom looked up when he was giving evidence”  She stated further that although Maqina’s evidence was compelling “there was also the evidence of Mafaesa and Khondlo.”  She accepted therefore that the State had discharged the onus upon it of proving its case beyond reasonable doubt.

[19] In S v Leve 2011 (1) SACR 87 (ECG) the following was stated by Jones J with whom Liebenberg and Van Zyl JJ concurred.  At paragraph 8 the learned Judge stated as follows:

“The fundamental rule to be applied by a court of appeal is that, while the appellant is entitled to a rehearing, because otherwise the right of appeal becomes illusory, a court of appeal is not at liberty to depart from the trial court’s findings of fact and credibility, unless they are vitiated by irregularity, or unless an examination of the record of evidence reveals that those findings are patently wrong.  The trial court’s findings of fact and credibility are presumed to be correct, because the trial court, and not the court of appeal, has had the advantage of seeing and hearing the witnesses, and is in the best position to determine where the truth lies.  See the well-known cases of R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705 and the passages which follow; S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645 e; and S v Francis 1991 (1) SACR 198 (A) at 204c – f.  These principles are no less applicable in cases involving the application of a cautionary rule.  If the trial judge does not misdirect himself on the facts or the law in relation to the application of a cautionary rule, but, instead, demonstrably subjects the evidence to careful scrutiny, a court of appeal will not readily depart from his conclusions.”

[20] It will be convenient to deal at the outset with the finding by the learned trial Judge as to Maqina’s credibility.  Mr. van der Spuy, who appeared for appellant at the hearing of the appeal, did not assail his credibility, and correctly so.  In my view the finding that Maqina was an honest witness cannot be faulted.  That finding is entirely in accordance with the evidence.

[21] The only issue is the reliability of his identification of appellant and whether he might have been bona fide mistaken in his identification of appellant in the light of appellant’s denial that he had been present at the scene witnessed by Maqina.

[22] In this regard Mr. van der Spuy submitted that the criticism of appellant’s evidence by the trial Judge as being “unconvincing” was unjustified. 

[23] The learned Judge did not specify in what respects she found his evidence to be unconvincing.  The criticism appears to have been largely founded upon what she considered to be his unsatisfactory demeanour in the witness box.  In my view, with respect, she erred in this regard.  As was stated in S v Kelly 1980 (3) SA 301 (A) at 308 B – G, “demeanour is a tricky horse to ride.”  In S v V 2000 (1) SACR 453 (SCA) the following was stated at 455 f – g:

“It is of little value to judge an accused on his demeanour in the witness box and to convict on this ground.  In this regard the magistrate states that ‘the accused was ill at ease when testifying.’  Such conduct is not unusual nor surprising amongst accused persons or indeed witnesses generally who may be afraid or even overwhelmed at the experience of giving evidence in a court, possibly for the first time.”

[24] It can be accepted therefore that no real criticism of appellant’s alibi evidence can be advanced.  That evidence, however, must not be viewed in isolation.  An alibi defence is not a separate issue to the issue of identification.  As stated in S v Ngcina 2007 (1) SACR 19 (SCA) such a defence is essentially a denial of the prosecution’s case on the issue of identification.  In an assessment of the evidence in its totality the fact that an accused’s evidence, when viewed in isolation, cannot be criticised, does not mean that there can be no question of a positive rejection of his evidence.  The quality and weight of the opposing evidence may be so persuasive that the Court is compelled to eliminate the possibility that an accused’s evidence may be true.  Compare S v Van Tellingen 1992 (2) SACR 104 (C).

[25] I turn then to consider the reliability of the identification of appellant by Maqina.  It is clear that he had a proper and sufficient opportunity to identify appellant.  As conceded by appellant himself the lighting in the area was excellent.  Maqina passed by appellant at a distance of no more than 7 – 10 paces.  He did not have a mere fleeting glimpse of appellant but was able to observe him as he approached him and as he walked past.  He knew appellant very well having known him for close on 7 years.  As he put it, Tarkastad is a small place and appellant does not have a twin. 

[26] I am well aware of the need to approach evidence of identification with caution.  Having regard to the factors set out in particular in the well-known case of S v Mthetwa 1972 (3) SA 766 (A) at 768 I am satisfied that Maqina’s evidence is sufficiently reliable as to justify the rejection of appellant’s denial that he was present as being clearly false.

[27] I am aware of what was stated in S v Mtsweni 1985 (1) SA 590 (A) to the effect that the conclusion that because an accused is untruthful he is therefore probably guilty must be guarded against and that the weight to be attached to an accused’s false testimony must be related to the circumstances of each case.  In the present matter appellant has lied in material respects about having been in the company of deceased at midnight and, moreover, having been wrestling with her whilst she was screaming.

[28] These lies must be seen in the context of the circumstantial evidence relating to the blood trail and shoe prints as testified to by Khondlo and Mafaesa.  With regard to this evidence Mr. van der Spuy submitted that even were it to be accepted without reservation it did not assist the State.  He submitted further that what they described as being “blood spatter” was, in the absence of DNA evidence, not proven to be blood, much less the blood of the deceased.  In my view these submissions cannot be sustained.  The evidence of the witnesses that what they observed was indeed blood was never challenged under cross-examination. 

[29] Secondly, so Mr. van der Spuy submitted with regard to the shoe prints, it was common cause that Parabellum shoes were freely available in the area, both to police and civilians.  Although appellant admitted to owning a pair of Parabellums his shoes were not confiscated and no evidence was led linking his shoes to the spoor found in the vicinity where deceased’s body was lying.

[30] Again, in my view, this submission cannot be upheld.  The unshaken evidence of Khondlo and Mafaesa was that the trail made by the Parabellum prints led from the scene where deceased was killed directly into the yard of appellant and to his door.

[31] In S v Reddy and Others 1996 (2) SACR 1 (A) the following was stated at 8c – g:

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is only then that one can apply the oft quoted dictum in Rex v Blom  1939 AD 188 at 202–203 where reference is made to two cardinal rules of logic which cannot be ignored. These are firstly, that the inference sought to be drawn must be consistent with all the proved facts and secondly, the proved facts should be such "that they exclude every reasonable inference from them save the one sought to be drawn". The matter is well put in the following remarks of Davis AJA in R v De Villiers  1944 AD 493 at 508–9:–

‘The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another way; the Crown 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.’”

[32] The proven facts are therefore that appellant was seen to be wrestling with deceased at approximately midnight.  From the place where her body was found a trail of blood spots together with shoe prints led to the door of appellant’s house.  The shoe prints were made by a pair of Parabellum shoes.  Appellant owned such a pair.  Confronted with the allegations against him he proffered a false alibi.

[33] In my view, the cumulative effect of these circumstances is such that the only reasonable inference to be drawn therefrom is that appellant killed the deceased.  Any other inference is, in my view, speculative and fanciful.  It is furthermore clear from the medical evidence that he intended to kill her.  He was therefore correctly convicted of murder on count 2.  In her judgment on the merits the learned Judge made no finding to the effect that the murder was planned or premeditated nor does the evidence support any such conclusion.  I will return hereunder to this issue in relation to sentence.

[34] I turn then to consider the appeal against appellant’s conviction of attempted rape on count 1.

[35] At the trial it was conceded by Mr. Mtsila, who appeared for the State, that the evidence adduced by the State was insufficient to found a conviction on the charge of rape.  He submitted, however, that in the light of the evidence with regard to deceased’s bra and panties the only reasonable inference to be drawn was that appellant had attempted to rape her.  Unfortunately, in convicting appellant of attempted rape the learned Judge gave no reasons at all for her conclusion.  It can only be surmised that she agreed with the submission by Mr. Mtsila. 

[36] In my view the learned Judge erred in this regard.  It is indeed a reasonable inference to be drawn from the evidence that appellant attempted to rape deceased.  It is not, however, the only reasonable inference to be drawn therefrom.  As was submitted by Mr. van der Spuy, one can only speculate in the absence of genital injuries as to what may have occurred.  Appellant may have attempted to rape her but he may, equally, have only indecently assaulted her.  At the hearing of this appeal Mr. Mtsila conceded as much. 

[37] In the circumstances the State has failed to prove appellant’s guilt beyond reasonable doubt.  The appeal against conviction on count 1 must accordingly succeed and the conviction and sentence must be set aside.

[38] I turn to consider the appeal against the sentence on count 2.

[39] In the indictment reference was made to the provisions of s 51(1) of Act 105 of 1997 which prescribe a discretionary minimum sentence of life imprisonment “in that the death of the victim was caused by the accused after having committed rape.”  It appears from the judgment, however, that in sentencing appellant to life imprisonment the learned Judge relied on the provisions of Part 1 of Schedule 2 of the Act, namely, that the murder was planned or premeditated.  As stated above, no finding to this effect was made in her judgment on the merits nor does the evidence support any such finding.  In the light of this misdirection the sentence imposed on count 2 falls to be set aside and we are at large to consider the question of an appropriate sentence afresh.

[40] Because the conviction on count 1 has been set aside, the provisions of s 51 of Act 105 of 1997 relating to the imposition of a minimum sentence of life imprisonment are no longer of application.  The minimum sentence applicable in the circumstances is one of 15 years imprisonment.

[41] Appellant was, at the time of the incident 37 years of age.  He has a 9 year old daughter whom he was supporting.  He was employed on a farm earning R600 per week.  Although he has previous convictions none of these were for offences involving violence.  He was in custody awaiting trial for 10 months before being released on bail.

[42] Regard must also be had to the nature of the offence committed by appellant and the interests of the community.  The attack by appellant on the defenceless deceased was callous and brutal.  Appellant has shown no remorse for his actions.

[43] In my view in the circumstances of this case a sentence of imprisonment in excess of the prescribed minimum sentence is called for.  I am of the view that an appropriate sentence would be one of 18 years imprisonment.

[44] Accordingly the following order will issue:

1. The appeal against conviction and sentence on count 1 succeeds and the conviction and sentence are set aside.

2. The appeal against conviction on count 2 is dismissed.

3. The appeal against sentence on count 2 succeeds.  The sentence imposed on count 2 is set aside and substituted with the following sentence backdated to 18 August 2016:

“18 years imprisonment”

 

_______________

J.D. PICKERING

JUDGE OF THE HIGH COURT

 

 

I agree,

 

________________

E. REVELAS

JUDGE OF THE HIGH COURT

 

 

I agree,

 

_______________

J. SMITH

JUDGE OF THE HIGH COURT

 

 

Appearing on behalf of Appellant: Adv. Van der Spuy

Instructed by: Legal Aid Board, South Africa

 

Appearing on behalf of Respodnent: Adv. Mtsila

Instructed by: Director of Public Prosecutions, Grahamstown

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