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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:  A118/2018

In the matter between:

MATSOKA, SELLO                                                                                         First appellant

MOYO, NICHOLAS                                                                                    Second Appellant

MAFUTA, TEBELLO                                                                                      Third Appellant

and

THE STATE                                                                                                         Respondent

 

J U D G M E N T

MAIER-FRAWLEY AJ:

1. The appellants were each indicted in the regional court, presiding at Newlands, on one count of murder. The State averred that on 9 February 2014 and at or near Riverlea, the appellants unlawfully and intentionally killed Sipho Mthetwa (‘the deceased’) by hitting him with bricks and sticks, acting directly or in common purpose.

2. The appellants were warned of the statutorily prescribed minimum sentence that could be imposed upon conviction, as envisaged in section 51(1) of the Criminal Law Amendment Act, 105 of 1997 (‘CLAA’).

3. The appellants were legally represented during their trial. They pleaded not guilty to the offence and offered no plea explanation.

4. The appellants however made certain admissions, which were recorded in terms of section 220 of the Criminal Procedure Act, 51 of 1997, amongst others, that the deceased died as a result of blunt force injuries that he sustained in the incident on 9 February 2014. It was not disputed that the deceased was attacked by an armed group of men who hit him with sticks or that the deceased was trampled on and stoned with bricks and that he died as a result of various injuries inflicted on his person as a result thereof.

5. Each of the appellants’ denied that they were at the scene of the incident or that they participated in the commission of the offence on the night in question. In the result, the trial turned primarily on the question of the identity of the perpetrators involved in the assault.

6. The trial court convicted the appellants as charged and sentenced each one to 12 years imprisonment. In addition, all the appellants were declared unfit to possess a firearm in terms of section 103(1) of the Firearms Control Act 60 of 2000.

7. The appellants’ appeal to this court against both their conviction and sentence, with leave of the court a quo.

8. At the trial, the state relied principally on the evidence of a single eye-witness, the complainant, Ms. Daneu Modisi.[1]

 

Conviction

9. Briefly, the State’s case was the following: On the night of the incident the complainant was at her house in Zamambilo Informal Settlement, Riverlea (“Zamambilo’), when she heard the deceased screaming words to the effect that he was dying. The screams were coming from outside the house. She went towards the outside and saw a group of about 18 men attacking the deceased with sticks and bricks and trampling on him whilst he was laying on the ground. A brick was also placed on the deceased’s neck. She observed the incident for about 30 minutes whilst standing in a passage located approximately 5 metres away from the scene. Amongst this group, the complainant was able to identify five men. Her evidence suggests that her attention was drawn to those[2] whom she was able to recognise from within the group.[3] The area was sufficiently lit by means of a light that shone from a nearby Spaza shop situated about 6 metres away from the scene of the incident.

10. The complainant knew each of the appellants by sight prior to the incident. She saw them frequently, as they lived in the same area as the complainant in Zamambilo. More specifically, she had known the first appellant for a period of two to three months prior to the incident. She would see him about twice a week in the street and he would refer to her as ‘sister’ in greeting, as they both hailed from Lesotho. The complainant knew the second appellant for about a year prior to the incident, during which time she saw him frequently in the area. He used to live in the same area as the complainant at Zamambilo before moving. The third appellant resided in the same area as the complainant ‘for a long time’ and she also saw him often in the street.

11. The complainant testified that she saw each of the appellants participating in the assault. She was able to recount the role that each appellant had played in the incident. For example, she narrated that the first and second appellants were carrying bricks and that they stoned the deceased and trampled on him whilst he was on the ground. The third appellant struck the deceased many times with a stick and a radio which he was carrying. This ensued amidst the agonising cries of the deceased.

12. The first appellant conceded, when testifying, that he knew both the complainant and deceased. He knew the complainant both by sight and by name. He referred to the complainant as ‘Sis Denau’ when testifying in his defence. As such, the complainant was not mistaken about his identity, rather, he suggested during his testimony that she was lying about his presence at the scene as well as his participation in the incident.[4]  The first appellant did not rely on an alibi defence.

13. When testifying in their defence, the second and third appellant’s confirmed that they knew both the complainant and the deceased prior to the incident. The second appellant would see them at the dwellings in the informal settlement whilst the third appellant had known them since 2011.

14. As pointed out in R v Dladla and others,[5] one of the factors which carries great importance in the case of identification, is the witness’s previous knowledge of the person sought to be identified. If the witness knows the person well or has seen him frequently before, the probability that his or her identification will be accurate, is substantially increased.

15. The central issue requiring determination in the appeal is whether the trial court erred in finding that the identity of the appellants was proven beyond a reasonable doubt, and, on the alibi defence, that the alibi was false beyond a reasonable doubt. All the evidence must be considered. See S v Van Der Meyden.[6]

16. In my view, the trial court correctly evaluated the evidence on the basis propounded in Van Der Meyden supra. The learned magistrate, in a detailed judgment, carefully analysed the evidence of all the witnesses and left none of the material evidence out of account.

17. The trial court found the complainant to be a credible, honest and reliable witness, whose testimony appeared to be truthful ‘beyond the slightest shred of doubt.’[7] Proper regard was also had to the fact that it had not been suggested on behalf of the appellants during cross-examination of the complainant that she was misleading the court or that she was giving false evidence or that she had a motive falsely to implicate the appellants. There were, in my view, no material contradictions or inconsistencies in her evidence. She stood steadfast on the essential aspects of her evidence against the appellants and her evidence regarding the identity of the assailants was clear and unwavering.

18. The Supreme Court of Appeal held as follows in S v Pistorius 2014(2) SACR 315 (SCA) para 30:

“It is a time-honoured principle that once a trial court has made credibility findings, an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong. R v Dhlumayo and Another 1948 (2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310 (SCA) para 12. As the saying goes, he was steeped in the atmosphere of the trial. Absent any positive finding that he was wrong, this court is not at liberty to interfere with his findings.”

19. The trial court found, correctly so my view, that the complainant’s identification of the appellants was reliable and sound[8] and that her evidence was clear and satisfactory in all material respects. In so doing, it evaluated her evidence, as a single witness, with the necessary caution as it was enjoined to do. See: S v Mthetwa.[9]

20. As regards the alibis of the second and third appellants, the second appellant testified that he was at his rented accommodation in Braam Fisher on the day of the incident, watching television, and that his landlord was present. The third appellant testified that he was at home on the date of the incident, doing laundry with one, ‘Dahesh,’ who lived with him in a dwelling in the informal settlement.

21. The alibi defence relied on by the second and third appellants, was disclosed for the first time during the presentation of the defence cases.[10] In Thebus and another v S,[11] the Constitutional Court affirmed the rule of evidence that the late disclosure of an alibi defence affects the weight to be placed on the evidence supporting the alibi. In my view, the trial court was correct in not placing credence on the alibi evidence in the light of the totality of the evidence presented at the trial. [12]  The trial court concluded that there was no reasonable possibility that the complainant’s identification could be mistaken vis-a-vis the second and third appellants;[13] that her identification of all three appellants was beyond reproach and that her evidence was reliable and compelling. At the end of the day, the undisputed evidence was that the complainant stood and watched how the appellants and other assailants beat the deceased to the point of death amidst his pleading cries that they were killing him.

22. The trial court correctly considered the probabilities against the facts of the case in concluding that the state had proven the guilt of the appellants beyond a reasonable doubt. In this regard, see: S v Chabalala 2003 (1) SACR 134 (SCA) at para 15[14] and S v Phallo & Others 1999(2) SACR 558 (SCA) at 562, para 10.[15]

23. Having regard to the aforegoing, I am satisfied that the appellants have been correctly convicted and I would recommend that the appeal against conviction be dismissed.

 

Sentence

24. The imposition of sentence is pre-eminently a matter falling within the discretion of the trial court and a court of appeal will only interfere with that exercise of discretion where it is convincingly shown that it has not been properly or judicially exercised[16] or where the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.[17]

25. The learned magistrate carefully considered all relevant factors in deciding on sentence, as foreshadowed in S v Zinn.[18] The offence with which the appellants were convicted carried a minimum statutorily prescribed sentence of life imprisonment in terms of section 51(1) of the CLAA.

26. The trial court, however, found that there were substantial and compelling circumstances that justified the imposition of a lesser sentence than the prescribed minimum sentence. Inter alia, the trial court considered that long term imprisonment would have exceedingly adverse effects on the appellants, who were first offenders and that the likelihood was strong that the minimum sentence, if imposed, would serve to destroy the appellants. The trial court also considered the fact that the appellants had spent a period of 2 years in custody before they were sentenced.

27. In S v Malgas, at para 22,the SCA reasoned as follows:

“…The greater 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 the 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 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.”

28. A healthy dose of mercy was factored into the sentences, considering the brutality of the murder of the deceased, and the utter havoc that it wreaked upon the lives of his dependants, including the complainant.

29. It cannot be said that the learned magistrate misdirected himself in any shape, form or manner or that the sentence is disturbingly inappropriate, such that it would justify this court in interfering therewith.

30. Accordingly, the appeal against sentence should also be dismissed.

 

 

_________________

MAIER-FRAWLEY AJ

 

I agree:

 

_________________

FISHER J

 

 

Date of hearing: 25 October 2018

Judgment delivered: 12 November 2018

 

APPEARANCES:

Counsel for Appellants: Mr. A. Mavatha

Attorneys for Applicant: Johannesburg Justice Centre.

Counsel for Respondent: Mr. M. Mashego

c/o Office of the Director of Public Prosecutions

Gauteng Local Division

 

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