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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)    REPORTABLE: YES/NO

(2)    OF INTEREST TO OTHER JUDGES: YES/NO

(3)    REVISED

 

Case Number: A608/2017

10/12/2019

 

In the matter between:

 

SAMSON MAZARIRE                                                                                APPELLANT

 

and

 
THE STATE                                                                                                 RESPONDENT

JUDGMENT

 

Maluleke AJ:

1.         This is an appeal against the conviction and sentence of the Regional court, Pretoria. The appellant was convicted of murder, read with the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997. He was sentenced to 15 years' imprisonment for murder. The appeal comes with leave of that Court.

 

Ad Conviction

2.        The Applicant was represented throughout trial. He pleaded not guilty to the count of murder. The state called Focus Mukanga, Boitumelo Mokwaphe, Yusi Walter Mhlongo, Constable Masilela Louis Matsoeng and Dr Ryan Blumenthal as witnesses. Appellant was the only one who testified in his own defence.

3.        The facts in this case were briefly that on 17 November 2013 at Girly's tavern in Salvokop, a number of people were drinking alcohol while enjoying the music when a group of men, some Venda and some Zimbabwean arrived at different intervals. That five Zimbabwean guys arrived and went to the counter to buy alcohol as the tavern did not have waiters. A man tried to make advances on a certain witness (Boitumelo) who was dancing by grabbing her hair and forcing her to leave with him. It appears that their advances were rejected and that this was not received well. That person was wearing red T-shirt and black trouser. An altercation apparently ensued between some Venda guys who were three in number and the five Zimbabwean men. At the same time there was a squabble between the Zimbabweans and certain gay persons who were also dancing. It appears that the situation got a bit out of control and bottles were thrown around. The DJs who were Venda speaking attempted to separate the group of Zimbabweans who were forcing themselves on the witness and her friends. During the fight two Zimbabweans fled the scene and three remained behind. It appears that one of the remaining Zimbabwean men wearing a T-shirt took out a knife and stabbed the deceased, Luvani Muvamba a 29 year old male, in his back with a knife killing him.

4.        It is common cause between the parties that the deceased was a DJ at Girly's tavern. That certain formal admissions were made in terms of section 220 of the Criminal Procedure Act. These were:

•          The findings of the post-mortem report of Dr Blumenthal, Exhibit "A";

•           Cause of death being a "stab to chest";

•           The identification of the deceased;

•           That the deceased sustained no further injuries from the date and time upon which the injuries were inflicted until the post-mortem examination was conducted;

•           The crime scene photos as well as the identification parade photos taken by Constable Lebogang Petrus Hadebe, Exhibit "B"

 

5.        It was further not disputed that in the early hours of the 18th November 2013, an altercation between a group of "gay" friends and Zimbabweans friends occurred at the tavern. That the Appellant was in the company of Zimbabwean friends on this evening. It is not in dispute that the deceased was one of the people who intervened to stop the fight. That the deceased was stabbed once with a knife in the back and that Appellant was wearing a black track suit pants and a red T-shirt on the day of the incident and that evidence in this regard is uncontested.

6.       This court is required to determine whether the state proved its case beyond reasonable doubt in respect of the identity of the person who stabbed the deceased thereby causing his death. In doing so it is convenient that we briefly analyse the evidence of the various witnesses.

7.        The first witness for the state Focus Mokanga testified that on 17 November 2013 he was at Girly's tavern in Salvokop at about 03h00am with the Appellant and 2 other people. That he Met the Appellant at Girlies tavern and left him there when he went to his place. He named the people as Samson (Appellant), Randy, Chamu, Mabusane and Adonis (Also known as Mapapo) as people who were at Girly's tavern. He stated that he went to Girly's to collect keys from someone who was there. Although he saw the other guys drink beers, he never took any alcohol. As it was very late, he went back to his place to sleep. In about 30 minutes to an hour of him sleeping, the Appellant came to his house calling his name.

8.        Appellant had jumped over the boundary wall and was now inside the yard. Appellant requested a place to sleep while holding a knife with blood stains on it. He had put the knife into a plastic bag when he got into his room. He stated that Appellant told him that he had stabbed someone; and this information was freely and voluntarily shared. He allowed Appellant to sleep for a while. He testified that Appellant spoke very loudly due to alcohol consumption such that other people staying there heard him. He testified that the Appellant had worn a red T-shirt with black pants and cavela shoes on that fateful day. He stated that the Appellant's T-shirt had blood stains and a bit of mud because it appeared like there was some rolling on the ground when the fight was ongoing. That a group of people came and stood by the gate in the morning, one of them was the deceased girlfriend/wife. When the latter fell down and fainted the Appellant took Mukanga's overcoat (black leather jacket) and the knife in the plastic bag, put it in his pants in front below the belt and left his place. The Appellant then came to his place two days later in the company of an investigating officer and they went to Girly's tavern where the incident took place. He confirmed that he did not witness the stabbing of the deceased.

9.        During cross examination he testified that he did know where the Appellant stayed. He confirmed that he went to the tavern to collect his keys and went back to his room to sleep. He also confirmed that the Appellant jumped a palisade fence with sharp spikes into the yard. He denied ever opening the gate for the Appellant and stated that it was the first time the Appellant came to his room. He further denied that the accused did not sleep at his place and that he asked for his jacket because it was hanged by the wall and he took it of his own accord without asking. He testified that the knife that the Appellant was carrying was about 20 centimetres and was foldable. He confirmed that he knew the Appellant was at Home Affairs at Magogo's place and directed the police there as the place where they will find him. There was some contradictions that were pointed out as being at odds with his testimony in court and his written statement to the police. He stuck to his guns about the version he provided in Court. He testified that the accused version as put to him by his legal representative was all lies.

10.     Boiturnelo Mokwaphe's testimony was that on 17 November 2013 she was at Girly's tavern at Salvokop with her 3(three) gay friends. That 5 (five Zimbabwean guys tried to propose to them, and they rejected those advances. She was not under the influence of alcohol on the day in question. A fight then ensued between 3 Venda guys and 5 Zimbabwean guys and the DJ's intervened but that the fight continued outside the yard. The light was good She testified that some people then fled the scene and a Zimbabwean person remained behind took out a knife and stabbed the deceased. That person was wearing a red T-shirt and black trousers. That she observed the stabbing as she was within a close distance from the incident. She saw the Appellant pull out a knife from his hip and that knife was between 15 to 20 centimetres. The victim uttered words of him being stabbed while holding his back in an unstable movement. She testified that she remembered the Appellant as the person who was at Girly's tavern wearing a red T-shirt with black trousers and as the person who pulled out a knife and stabbed the victim at the tavern.

11.      In cross examination she testified that she only started drinking after eating somewhere around 22h00pm and that the stabbing incident took place around 03h00am and she had stopped drinking at that time. After he stabbed the deceased, she went to wake the owner up who came with a sjambok. She persisted that the Appellant was the one who had committed the crime and described him with reference to his height as being taller than the other people.

12.      Another witness for the state was Yusi Walter Mhlongo who testified that he knew the deceased who was his friend for about 2 years prior to his passing. He testified that he was at Girly's tavern on the date of the crime with the deceased. The deceased was playing music as DJ, certain people started pulling some gay patrons by their hair and they ran to the deceased for help. When the deceased was trying to separate them 3 of those people fought him. After that commotion they ran away, but one came back, he had a knife and stabbed the deceased once on his back and also ran away. He remembered the Appellant as the person who stabbed the deceased and pointed him out during the proceedings; and also, that the Appellant was wearing a red T-shirt and black trousers. He testified that he did not take any alcohol on that night.

13.      The state also called Malesela Louis Matsaong to testify in the matter. His testimony was that he is a police officer occupying the rank of constable for 8 years. He was the investigating officer in the matter who received the docket in this case in respect of a murder that took place at Girly's tavern in Salvokop. He obtained statements from Vusi Mhlongo and Boitumelo Mokoape. That on 19 November 2013 he received a call from Focus Mukanga saying he knows where the suspect was in Pretoria west. He and a colleague then proceeded to Salvokop to collect Focus and then headed to Pretoria West. On arrival Focus identified/pointed out the Appellant as the person who stabbed the deceased. The Appellant was then approached and informed that he was being arrested for a case of murder that took place on 17 November 2013. The Appellant was then read his constitutional rights. He testified that the Appellant confirmed to having been at the crime scene but denied stabbing anyone. When asked what clothes he was wearing on the day in question he showed the witness black track suit pants and a red T-shirt. Those clothing items were then taken and booked at Pretoria central SAPS where the Appellant was then detained. On 20 November 2013 he went to the mortuary to take blood samples from the deceased. He then took the Appellant's clothes that have been booked together with the deceased blood sample to the forensic laboratory for analysis. He testified that the report came back as they did not find any blood on the clothes that matched the sample obtained from the deceased. The clothes had mud consistent with the testimony that there was a bit of rain on the day of the crime. Despite searching the place of the Appellant, he could not find any murder weapon.

14.      The last witness who testified for the state was DR Ryan Blumenthal who testified that he is the senior state pathologist. He mentioned his qualifications and he is quite an accomplished person in his field. He confirmed that he performed a post-mortem and compiled a medical legal autopsy in respect of the deceased. His report stated the cause of death as a stabbed chest which contradicts the photographs before court showing that the deceased's injury is actually at the back. He confirmed that in medical terms a chest means the entire thorax or entire rib cage. He further confirmed that the wound was coming from the back to the front downwards into the left angle and consistent with a weapon that would be long-ish along the 15 to 20 centimetres the Prosecutor alluded to.

15.      The Appellant testified in his own defence. His evidence was that he arrived at Girly's tavern around 23h00pm or 00h00am with some colleagues whose name he could not remember. They bought beers and sat down. His so-called colleagues went dancing and then there was a problem with the gays that were dancing. He stood up and tried to separate them. During that time a lady came out with a sjambok and the gays started throwing bottles. He then ran to Focus Mukanga's place and knocked at the gate and Focus came to open for him. He was cold he borrowed a jacket. He was wearing a red T­ shirt and black track suit pants. That he never went into Focus's room. He denied ever jumping through the fence, sleeping in Focus' room and telling Focus that he actually stabbed someone with a knife, having a blood stain on his T-shirt or even carrying a knife.

16.        He confirmed that Focus was at Girly's, came with a beer but never drank it. He stated that a few days later Focus came to his place to inform him that the other guys had run away and that he is the only one left and must also run away. He confirmed that there were about 100 people at Girly's on the fateful night. He testified that Focus is the one who pointed him to the police. During cross examination he contradicted himself with regard to his time or arrival at Girly's tavern and stated that Chamu who when his attorney, put it to Focus when testifying that the Appellant will testify, that Chamu was Focus's brother and the person who actually stabbed the deceased was in fact not Focus's brother.

17.        However, Appellant testified that Focus was implicating him in order to protect his family. That gays were outnumbering them and throwing bottles around. He also testified that he and other guys all ran away leaving that place. He denies witnessing any stabbing of anybody on the day in question. He denied ever seeing a lady with a sjambok during cross examination. He also denied ever carrying a knife or even going around with one in his possession. He was surprised that the two state witnesses both testified about a knife they saw on him on the day in question. He could not explain the many contradictions between his version and that offered by the other witness as regards the events of the night at Girly's tavern. He denied all evidence of Boitumelo about his identity, making advances on her and that she saw him stab the deceased from the back.

18.        Counsel for the Appellant argued that Focus Mukanga was clear that he was not present when the deceased was stabbed. He cannot say whose blood was on the T-shirt which the Appellant wore. That the testimony of· Boitumelo should also be rejected as she did not attend an identity parade and because her testimony was given two years after the incident. It was further argued that her testimony about the scar the appellant had must be rejected because she was never asked for a facial description and the state did not cover the question whether she had seen the Appellant after the incident before her testimony at court, arguing that he sustained the scar while in prison after his arrest. Counsel also pointed out that the other people who were at Girly's tavern were tall or taller that the Appe11ant suggesting that the witness did not correctly identify the Appe11ant. They took issue with the fact that the two witnesses who c1aimed to have witnessed the incident were not tested on the question why they said it was the appe11ant. Their testimony was not satisfactory and basically amounted to a dock identification, Counsel argued. It was submitted that the Appellant's version had substance in view of the criticism which was suggested or submitted towards the evidence of the identifying witness and the single witness who claimed that the appel1ant admitted to him to have stabbed the deceased.

19.        On the other hand, it was argued for the Respondent that evaluation of the trial court in respect of evidence led by the witnesses who testified for the state must be accepted in that these witnesses were found to be honest and truthful. Their version makes sense, it explains in basic narration what occurred on the fatal evening and made a favourable impression to the court, Counsel for the Respondent submitted. Counsel argued that these witnesses lacked any motivation to falsely implicate the appellant in a crime he didn't commit and that the absence of prior animosity makes their testimony compelling to accept. On the contrary the version of the appellant was found to be riddled with many inconsistencies, contradictions and improbabilities, they argued. It was argued that the proof of identification has been evaluated by the trial court in respect of the opportunity of the witnesses to observe, the visibility, the proximity of the events as well as the corroborating information and details witnesses were able to provide. In addition, the identification parade was formally admitted which corroborated the evidence of Boitumelo Mokoape. That the latter's testimony was further corroborated by Focus Mukanga and the appellant placing himself on the scene, wearing the same clothes further supporting her evidence towards identification. It was submitted that Boitumelo's evidence can therefore never be considered to be "single evidence of a competent witness". Consequently, Counsel submitted that there is no material misdirection by the trial court in that the appellant offered no version that was reasonably possibly true and argued that the appeal against conviction was void of all merit and should be dismissed.

20.        It is trite law that the duty of the State is to prove the guilt of the accused beyond reasonable doubt and not beyond a shadow of doubt.

21.        A court of appeal will be hesitant to interfere with the factual findings and evaluation of the evidence by a trial court and will only interfere where the trial court misdirects itself insofar as its factual and credibility findings are concerned.

22.        Based on the evidence presented in this case. I cannot find any misdirection by the Magistrate based on his reasoning and conclusion at the trial court. I find that the sum total of all the evidence points to the appellant as the person who murdered the deceased. Apart from offering no version that is reasonably possibly true, he tried very hard to extricate himself from this murder by means of a mere denial. Consequently, I am satisfied that the appellant was correctly identified as the person who stabbed the deceased and that his guilt was proved beyond reasonable doubt, and that the conviction of murder must not be interfered with.

 

AD SENTENCE

23.      The appellant was charged under section 51(2) of the Criminal Law Amendment Act I 05 of 1997, which makes 15 years direct imprisonment the prescribed minimum sentence applicable for murder. The trial court took into account factors normally taken into account for purposes of determining appropriate sentence. Substantial and compelling circumstances were found to exist in the case of the appellant which prompted the trial court to deviate from the minimum prescribed sentence of 15 years direct imprisonment and ordered a reduced sentence of 8 years imprisonment instead.

24.      It is appropriate to mention the established principles that govern an appeal court's power to interfere in the sentence imposed by a trial court. The imposition of sentence is pre­ eminently a matter within the judicious discretion of a trial court. The appeal court's power to interfere with a sentence is limited to instances where the sentence is vitiated by an irregularity, misdirection or where there is a striking disparity between the sentence and that which the appeal court would have imposed had it been the trial court.

25.      I am not convinced that the sentence imposed is shockingly inappropriate and induces a sense of shock. On the contrary I find that the trial court was very lenient in ordering the sentence it has imposed in light of fact that a life was lost. By mentioning this I am not elevating the seriousness of the offence above the other factors that the court ought to take into consideration when deciding on an appropriate sentence. Evidently, I find the sentence to be appropriate and shall not interfere with the discretion of the trial court in sentencing the appellant as there is no justification for doing so on the facts and reasoning of the court aquo. The appeal against sentence must therefore also fail.

26.        In the premises I make the following order:

26.1     The appeals against both conviction and sentence are dismissed.

 

 

 

MJ MALULEKE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

I AGREE

 

 

 

N KOLLPEN

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

 

 

Date of hearing: 29 July 2019

Date of delivery: 10 December 2020

 

Representation for Appellant

Counsel         :          Adv. AC KLOPPER

Instructed by :           MKHABELA ATTORNEYS

 

Representation for the Respondent:

Counsel         :          Adv. M MARRIOTT

Instructed by :           THE DIRECTOR OF PUBLIC PROSECUTIONS

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