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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: A147/19

In the matter between:

BRENDEN STEPHEN GILCHRIST                                                                 Appellant

and

THE STATE                                                                                                     Respondent

JUDGMENT

MAKHUBELE J

Introduction

[1] This appeal is against the conviction and sentence that was imposed on the appellant by the Regional Court at Benoni where he was arraigned on two counts. Count one is murder, read with the provisions of Section 51 of the Criminal Law Amendment Act 105 of 1977, where it is alleged that on or about 26 January 2016, he unlawfully and intentionally killed one Thulani Peter Khuzwayo (the deceased) by shooting him with a firearm.

In count two, he was charged with unlawful possession of a 9mm Parabellum Caliber Firearm without holding a licence, permit or authorization issued in terms of Firearms Control Act, 60 of 2000.

[2] He pleaded not guilty. He denied all allegations against him. In his plea explanation, he raised a defence of alibi which was put in the very wide terms that 'depending on the exact time the offence was committed, the accused was present at his place of residence, which is Reiger Park, and thereafter he went to his mother's place of residence which is also in Reiger Park and at no stage was he in the area of Etwatwa'.

[3] It appears from the transcript of the record of proceedings that the appellant was legally represented throughout the trial. It is also evident that he had a fair trial in that he was advised about the minimum sentencing regime.

Relevant background facts leading to the conviction and sentence

[4] The circumstances under which the deceased died appear from the evidence of the two witnesses that testified on behalf of the State who were at the scene of crime. The appellant testified and also called one witness, his mother, to confirm his alleged alibi.

[5] The following facts are common cause;

[5.1] The appellant and Analize Lindiwe Motaung (known as 'Malindi') have known each other for about 10-11 years and were live-in lovers with two children, a boy and a girl aged eleven (11) and five (5) years respectively.

[5.2] Malindi left the appellant with their children at their common residence situated at Reiger Park on Sunday, 24 January 2016 after a quarell and went to her grandparents' house at Daveyton, Etwatwa Township. Although the deceased was her step-grandfather, both he and her maternal grandmother raised her, hence she considered him her grandfather.

[5.3] The appellant and Malindi worked for the same company until he left. There were allegations that staff were stealing from the company and both he and Malindi were implicated. Malindi admitted that she did steal.

[5.5] The appellant stayed with the Motaung family for an undefined period at their home at some point when he had problems at his own home.

[5.7] The Motaung's home was a one room shack. They used a thin curtain to divide the room into two areas, one a bedroom and the other a kitchen/living area.

[5.8] The appellant's mother lived about two houses from where he lived. She is wheelchair bound.

The State's case

[6] The first witness was Analize Lindiwe Motaung (Malindi). She testified that:

[6.1] On Tuesday, 26 January 2016 the appellant called her and requested a meeting to talk about their children. She suggested that they should meet at Golden Walk, which is a public place. At the meeting, the appellant informed her that he understood that she no longer loved him and wanted to know when she would fetch the children that she had left with him. They agreed that she would fetch them after she had received her salary.

[6.2] He called her again in the evening and told her not to attend a meeting that was going to take place on the next day at her workplace because there was going to be trouble. She did not agree with his suggestion.

[6.3] Her grandparents' home is a shack which has been divided by a curtain into two rooms. One is used as a bedroom and the other one is a kitchen/living area.

[6.4] When she arrived home, she cooked dinner for all three of them. They sat down in the kitchen area which has a table with four chairs, two benches, one next to the door and the other one opposite the table. She sat on the table, her grandmother on the bench opposite the table whilst her grandfather sat on the one next to the only door that is used to enter and exit the shack. They use candles as the source of light.

[6.5] The time was about 21:00. There was a knock at the door. The deceased asked who it was and a voice replied that it was Stephen'. They all at the same time answered 'come in'.

[6.6] The appellant pushed open the door and went in. He did not greet or say anything. The deceased asked him 'so son-in-law, why do you have a gun, coming inside the house?'. He did not respond, but lifted his right hand with the gun and cocked and fired a single shot with the left one. The deceased stood up and walked towards his wife and fell on her. She in turn fell on the floor.

[6.7] Malindi jumped and pushed the appellant outside the door whilst he still had the firearm in his hand. She asked him why he shot her grandfather and not her, because she is the one he had problems with. A man that she knew as 'Jigga' appeared on the scene. He asked the appellant what he was doing. The appellant replied in Afrikaans that Jigga should take the firearm, which he did.

[6.8] After Jigga left with the firearm, the appellant and Malindi wrestled each other. He throttled her. She lost her balance and fell on the ground. He continued to throttle her but she managed to wriggle herself out of his clutches. Her grandmother came out of the shack and asked him what he was doing. He left her and ran away.

[6.9] Her grandmother told her that the deceased had stopped breathing. She shouted for help but none of the neighbours came out.

[6.10] The next day she heard from her boss that he had called him and alleged that she was falsely accusing him of having killed her grandfather. He was traced by the number that he called her boss from and was ultimately found at a club/brothel in Commissioner Street and was then arrested.

[6.11] On how she identified the appellant, she testified that she knew him because they have been together for years. She knows his voice. When he came to their home that evening he was still wearing the same clothes he had on when they met earlier, which was a Pirates t­ shirt, a Soviet blue chino trousers, black and white sneakers and a gray cap with a purple and pink pattern design in front. He wore the cap straight and it did not hide his face. She later learnt from her grandmother that she found the cap outside and handed it to the police.

[6.12] Although there was no lighting outside where they wrestled each other, she was adamant that it is the appellant because she knows him.

[7] Cross examination mainly focused on reasons why Malindi and her grandmother would falsely implicate the appellant in the commission of the crimes. Malindi denied that they had any ulterior motives for pointing him out as the person that killed the deceased.

[8] She admitted that;

[8.1] Her grandmother did not like the appellant, for reasons she did not specify. Her grandfather did not have problems with him.

[8.2] She also stole from the company they were working for, however, her anger towards the appellant had nothing to do with his intentions to expose her to the employees during the meeting that had been arranged for the next day after the shooting incident.

[8.3] Her grandmother does smoke dagga, but it was not a problem and her issues with the appellant had nothing to do with his alleged refusal to give her money to sustain her substance dependence .

[8.4] She is aware of rumours about her grandparents' marital problems and that her grandmother was about to chase him out of the house.

[8.5] She had a lot of problems with the appellant arising from his abusive behaviour towards her and the fact that she was confined to his home and not allowed to work, go out and have fun or even visit her family. She looked after the appellant's mother who is wheelchair bound. Her grandmother only saw her five year old daughter about twice. 

[8.6] She called the appellant's cousin immediately after the shooting because she was concerned about her children's safety.

[9] The second witness for the State was Matshidiso Motaung. She is the deceased's wife and Malindi's maternal grandmother. Her testimony in the main confirms that of Malindi. However they differed in the following respects;

[9.1] According to Malindi, the deceased asked the appellant why he entered their house with a firearm, whereas according to the grandmother, she is the one who asked this question.

[9.2] She was standing when the appellant entered, but Malindi testified that she was seated on the bench as they were eating.

[9.3] She denied that there were problems between her and the appellant or that she did not like him. She gave him accomodation one time after his mother had kicked him out of her house.

[9.4] She denied smoking dagga. She confirmed Malindi's evidence that the appellant did not give her money. She went on to state that she spent money on him, which he enjoyed.

[10] The State also handed in the post-mortem report and other documents relating to identification of the deceased and hospital records. These were admitted into the record by agreement between the parties

Defence case

[11] The appellant testified in his own defence and disputed the version of the State witnesses. His account of the events of date on which he is alleged to have killed the deceased is as follows:

[11.1] He called Malindi at around 09:00 and requested to meet with her in Germiston. They agreed to meet closer to his workplace at 12:00. He wanted the children to remain with him whereas she wanted to stay with them. They argued about it but ended up agreeing that she would fetch them.

[11.2] He arrived home at about 13:00 and found his children playing in the yard. His friend, Vasco Cloete, was also at his place, playing games with the Playstation.

[11.3] He wanted to relieve stress, and as usual, he bought alcohol next door. He spent the entire afternoon until about 19:00 moving between his house and the neighbours where he was buying alcohol. Sometimes he would drink inside his house or just standing outside.

[11.4] He took his children to his mother's house, three houses away, at about 20:00 because he did not want his daughter to sleep in the house whilst he has a male friend visiting.

[11.5] He bought some more alcohol when he returned from his mother's house, which he consumed whilst standing outside his house.

[11.6] He denied going to Etwatwa at 21:00 or at any other time on that day.

[11.7] According to him, the problems he has with Malindi's grandmother are probably due to his 'race' or the fact that he has not paid lobola or damages for her. She encouraged Malindi to date other men the last time they broke up. Apparently the man had promised to pay lobola for her but it did not happen because they reconciled.

[11.8] When they met that afternoon, other than discussing the children's future place of residence, he also alerted Malindi to the fact that his former boss had asked him to take out the people that were stealing from the company. Malindi is one of them. He warned her not to go to work because he cared for her. She became furious and shouted at him in public. He took out his cigarettes and smoked, waiting for her to calm down.

[11.9] Malindi called his cousins after 21:00 on that day and told them that he had shot her grandfather. They (his cousins) came looking for him and found him drinking alcohol outside his house. Malindi called again. He answered the phone but she refused to speak with him and put the phone down on him.

[11.10] Malindi and her grandmother want him out of their and his children's lives. He once slept with a colleague's sister and Malindi found out about it. She and his brother fetched him from this woman's place and Malindi beat him up. She later found out that the woman he slept with was HIV positive.

[11.11] He confirmed that he was wearing the clothing that Malindi described, except for the cap. He does not wear caps because he takes pride in his haircuts. Malindi came with the police to his house whilst he was not there and and she took some clothing. The cap probably belongs to his cousin who was sleeping in his house.

[11.12] He did not have problems with the deceased.

[12] Under cross examination, he testified that:

[12.1] Malindi and the police did not find him at his house because he went out to look for more alcohol because the neighbour's closes around 22:00.

[12.2] He left Vasco Cloete in his house and he did not tell him where he was going. His family would have known that he was not home because he saw them after Malindi's calls, and they stay in the vicinity. The houses make an L-shape.

[12.3] Malindi is not making a mistake about his identity but she is falsely and intentionally implicating him in the commission of the crime.

[13] The appellant's mother, Joyce Gilchrist, testified as a defence witness. She testified that between 20:30 and 21:00 on the day in question the appellant was at her house, checking on her to ascertain if she wanted coffee or to use the loo. The times that he left her house he was at the main house.

[13.1] She denied that he went to Daveyton at any time between 21:00 and 21:10.

[14] During cross examination, she explained that the appellant did not leave her house for more than 30 minutes at a time. He came back, they drank coffee and watched television. When he left, she knew he was with his cousins close by because she could hear them talking and laughing.

[14.1] She denied that he was drinking alcohol that evening or that he smelt of alohol.

[14.2] When Adina (the appellant's cousin) received a call from Malindi at about 21:00 to inform them about her grandfather's shooting, the appellant was in the yard and she could see him because her window is facing her brother's yard.

[15] The other defence witness, the appellant's cousin who was due to testify, was not called because, as his counsel indicated, 'she would not be able to take the matter any further'.

He then closed his case.

Ad conviction: Findings and reasons

[16] The only issue in dispute was the identity of the person that shot and killed the deceased. The identifying witnesses are Malindi and her grandmother. The Magistrate applied the cautionary rules applicable to the evidence of an identifying witnesses and in this regard took into account the circumstances under which the appellant arrived at the residence and the fact that both witnesses' testimony corroborated each other.

[17] He also took into account the fact that Malindi and the appellant had been in a relationship for more than a decade, and that he was known to the deceased and his wife. The appellant and Malindi wrestled each other outside the shack after he had handed the the firearm to one Jigga, his friend, who is well known to both Malindi and the appellant.

[18] The Magistrate concluded that the visibility inside and outside the shack was of such a nature that the witnesses, who knew the appellant were in a position to make a reliable identification.

[19] The appellant's alibi was rejected because of the apparent contradictions between his evidence and that of his mother. The other contradiction relates to how the cap came to be in possession of Malindi. He initially said that it was probably one of the clothing items he had left there whilst he was staying there. He then changed this version and denied that he wore caps and that it probably belongs to his cousin who was sleeping in his house when Malindi came with the police to fetch clothes.

[20] On the other hand, the evidence of the Motaungs was found to be reliable and that they did not contradict each other in any material respect.

[21] The evidence relating to the alleged motives for implicating him was rejected.

[22] The presence of the cartridge casing confirmed that the deceased was shot with a firearm of the caliber indicated in the chargesheet.

[23] The appellant was according found guilty as charged in both counts.

Ad sentence: reasons

[24] Both representatives for the State and defence were requested to make submissions with regard to whether the murder was premeditated or not. The Magistrate ruled that it was not premeditated.

[25] His personal circumstances and the impact of the crime on the victim (grandmother), his girlfriend and their children were taken into account.

[26] The legal representatives were also asked to make submissions with regard to the discretion of the trial court to increase the minimum sentence of fifteen years by a further five years. The court made a finding that there are no substantial and compelling circumstances to deviate from the minimum sentence of, and furthermore, that on the facts, there were circumstances that warranted an increased sentence.

[27] The Magistrate ruled that imposing a minimum sentence of fifteen years in the second count would induce a sense of shock and that this was a substantial and compelling factor that allowed deviation from imposing the minimum sentence.

[28] He was sentenced to twenty (20) and five (5) years imprisonment in respect of count 1 and count 2 respectively. He was also declared unfit to possess a firearm licence.

[29] The sentences were ordered not to run concurrently.

The grounds of appeal and submissions

[30] In his heads of argument, the appellant's counsel argued the merits of the conviction on two grounds, namely,

[30.1] that the Magistrate misdirected himself in finding that the appellant was properly charged in terms of the Criminal Law Amendment Act, 105 of 1997 because the State did not specify the mimimum sentencing regime applicable on the murder charge.

[30.2] The evidence regarding the identification of the appellant is not satisfactory because the incident happened very fast, the lighting in the room was not bright and the witnesses were shocked at the sight of the firearm.

[31] During oral argument Counsel for the appellant conceded that the witnesses had properly identified the appellant and as such, this ground of appeal was abandoned.

[32] The ground relating to minimum sentence turned out to be a lack of understanding of the record. The argument was that the trial court did not give the appellant an opportunity to make representations on whether the murder was premeditated or not, as well as on the increased sentence. As indicated above, the record clearly shows that both the state and the appellant were asked to make submissions in this regard.

[33] The appeal on sentence is premised on three grounds, namely;

[33.1] The increased sentence.

[33.2] Failure to order that the sentences should run concurrently; and

[33.3] Failure to find that there are compelling and substantial circumstances to justify deviation from the minimum sentence.

The respondent's response to the grounds of appeal

[34] The State's submissions are in line with the reasons for conviction and sentence as I have summed up above and as such there is no need for me to repeat them.

[35] A concession was made by counsel for the respondent that the State did not advise the appellant either in the charge sheet nor when charges were put to him that the minimum sentences applied in count 2 (possession of a firearm). However, the court was urged to uphold the sentence imposed because it is not disproportionate.

Evaluation of the evidence and applicable legal principles

[36] The issue of alibi and identity of the person that shot the deceased are intertwined.

[37] The principles that guide resolution of identity dispute are as follows:

[37.1] Due to the fallibility of human observation, courts normally approach the evidence of identification with some caution.[1]

[37.2] The identifying witnesses must be honest. The reliability of their observations must be tested bearing in mind factors such as lighting, visibility, eyesight, the proximity of the witness, her opportunity for observation both as to time and situation, the extent of her prior knowledge of the accused, the mobility of the scene, corroboration, suggestibility, the accused's face, voice, build, gait and dress as well as the evidence by or on behalf of the accused. These factors must be weighed one against the other, in light of the totality of the evidence and the probabilities.

[38] The appellant has been in a relationship with the deceased's granddaughter for more than a decade and they have children. He was known to the grandmother and has stayed with the family at some point. The Magistrate has carefully weighed the evidence and applied the necessary cautionary rules. There is sufficient corroboratory evidence with regard to material issues that are in dispute, namely, the identity of the person that shot the deceased.

[39] It is clear from a reading of the record that the appellant's girlfriend had serious problems with him, such as abuse, both physical and emotional, betrayal and being isolated from her own family. The appellant revealed that a woman he slept with is HIV positive. His girlfriend (Malindi) conceded that they stole from the company they were employed by and that this was just one of the things they did together. His mother also confirmed the instability in their relationship. The grandparents would naturally be concerned about this type of union.

[40] Despite all these problems, which his girlfriend readily conceded, she maintained that she did not falsely accuse him of killing her grandfather. She acknowledged the faults in the appellant, but maintained that they had both agreed to raise their children together and she could not just wish him out of their lives. The evidence pertaining to motive would carry weight if there was no direct evidence linking the appellant to the commission of the crimes. People that knew him very well saw him. His defence was an alibi. The motive allegations were thrown in here and there and the Magistrate correctly reigned in his legal representative when it became apparent that the intention was to damage the character of the State witnesses, particularly the grandmother.

[41] The contradictions in the State's case that I have highlighted have no bearing on the material issue of whether the appellant is the person that shot the deceased. Whether it is the deceased or his wife who asked the appellant about coming into their house with a gun is immaterial, and so is the issue of whether the grandmother smokes dagga or whether they had family or marital problems. These are immaterial. The principles in this regard were established in the instructive case of S v Mafaladiso  and others   2003 (1) SACR 583 (SCA), that has been followed in many subsequent cases.

Whether there is any misdirection on the sentence imposed

[42] It is trite that the appeal court can only interfere with the discretion of the lower courts to impose sentences only if:

[42.1] There was an irregularity during the trial or sentencing of an accused person.

[42.2] The lower court misdirected itself in respect of the imposition of the sentence.

[42.3] The sentence imposed by the court could be described as disturbingly or shockingly inappropriate.

[43] The question is not whether the sentence is right or wrong, but rather whether the lower court exercised its discretion properly and judicially.[2]

[44] The proper approach to sentencing under circumstances where the provisions that created a mandatory minimum sentencing regime, Section 51(3)(a) of Act 105 of 1997 are applicable, was formulated by Marais JA in the leading case of S v Ma/gas (11712000) [2001] ZASCA 30; [2001) 3 All SA 220 (A) (19 March 2001).[3]

[45] In Paragraph 25, Marais J summarized the proper approach by examining the provisions that created the minimum sentencing regime as well as the specific offences referred to in Part 1 of Schedule 2. With regard to the latter, the learned Judge stated that the court's discretion in imposing sentence has been limited, and not eliminated. The usual factors that a trial court would take into account when sentencing are still applicable, such as proportionality of the sentence to the crime, balancing the various competing interests, and the nature of the offence.

The cumulative effect or concurrent running of the sentences

[46] It is clear from the sentencing record that the Magistrate was alive to the cumulative effect of the sentences that he intended to impose. However, he did not give reasons for ordering that the sentences should not run concurrently.

" 280 Cumulative or concurrent sentences

(1) When a person is at any trial convicted of two or more offences or when a person under sentence or undergoing sentence is convicted of another offence, the court may sentence him to such several punishments for such offences or, as the case may be, to the punishment for such other offence, as the court is competent to impose.

(2) Such punishments, when consisting of imprisonment, shall commence the one after the expiration, setting aside or remission of

the other, in such order as the court may direct, unless the court directs that such sentences of imprisonment shall run concurrently. "

[47] The Magistrate clearly did not apply his mind to the provisions of this section because if he had, he should have considered and specifically made a ruling based on the circumstances under which the crimes were committed, particularly, as he correctly stated, the firearm charge relates to the fact that the deceased died from being shot.

Even though the make of the firearm was not known, the evidence from an examination of the cartridge found at the scene was sufficient to make that connection.

[48] Count 2 had a prescribed minimum sentence, and taking into account the fact that the offences occurred under one act and similar circumstances, it would have been desirable to make a specific order as provided for in Section 280(2) of the Criminal Procedure Act.

[49] In S v Motshathupa 2012 (1l SACR 259 (SCA), it was held[4] that a court must not lose sight of the fact that the aggregate penalty must not be unduly severe when dealing with multiple offences.

[50] I do not think that the aggregate penalty is unduly severe, however, and in view of the failure to warn the appellant about the minimum sentence and also the fact that the firearm was possessed for purposes of committing the act in count 1. I am of the view that the Magistrate misdirected himself by failing to make an order that the sentences should run concurrently. This entitles this court to intervene.

[51] Though the circumstances under which the offences were committed are repulsive, the possession of the firearm is, as correctly submitted by the counsel for the appellant intertwined to the facts that gave rise to the conviction and sentence in count 1.

[52] Consequently, the cumulative effect of the sentence imposed in both counts must be altered by making an order in terms of Section 280(2) of the Criminal Procedure Act to make the sentences imposed to run concurrently.

Conclusion

[53] There is no reason for this court to interfere with the conviction and sentence of the appellant, however, due to the misdirections that I have highlighted above, this court is entitled to interfere with the order pertaining to the cumulative effect and concurrent running of the sentences.

Order

[54] Accordingly, I make the following order,

[54.1] The appeal on conviction in both counts 1 and 2 is refused.

[54.2] The appeal against the sentence of 20 years imprisonment in count 1 is refused.

[54.3] The appeal against the sentence of 5 years imposed in count 2 is refused.

[54.4] The order of the Magistrate not to make the sentences in counts 1 and 2 to run concurrently is set aside and substituted as follows;

'In terms of Section 280(2) of the Criminal Procedure Act, 51 of 1977 , the sentence imposed in respect of count 2 is ordered to run concurrently with the sentence imposed in respect of count 1'

TAN MAKHUBELE

Judge of High Court

I agree, and it is so ordered,

D.S MOLEFE

Judge of the High Court

APPEARANCES:

Appellant: Advocate J.L Kgokane 

Instructed by Legal Aid South Africa

The State: Advocate S Mahomed

On behalf of the Office of the Director of Public Prosecututions, Pretoria.

Date heard: 13 November 2019

Judgment delivered on: 12 December 2019

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