(WESTERN CAPE HIGH COURT, CAPE TOWN)

							CASE NO: A363/10

In the matter between:

ANELE MACHANYANA						APPELLANT

and

THE STATE								RESPONDENT

JUDGMENT DELIVERED ON FRIDAY 12 NOVEMBER 2010

February 2008 on a charge of murder. He was convicted on 7 February 2008 and on 8 February 2008 he was sentenced to fifteen (15) years imprisonment.

successfully petitioning this court.

finding that there are no substantial and compelling circumstances in terms of Section 105 of 1997.

to the blood alcohol present in the body of the deceased and the post-mortem that was conducted was also admitted.

[6] The following seem to be common cause:

ii)	that he died of a perforating gunshot wound to the chest and the
consequences thereof.

Evidence for the State:

Thembelani Fatyela testified that on 20 January 2007, he, the deceased and another friend Bataneli Mlova sat under a tree. The appellant arrived and joined them.

Initially, appellant and the deceased were alone together and they were talking while the witness and Bataneli were on their own talking. From his observation, the discussion between the deceased and the appellant seemed to be a friendly one. A person with the name of Anderson also joined them, stood behind the deceased and the appellant. At that moment, the appellant took out a firearm and pointed it to Anderson and wanted to know why he was standing behind them. At that stage, Anderson moved away and later ran away.
The deceased reprimanded the appellant and told him to stop what he is doing. An argument ensued between the deceased and the appellant. The appellant then wanted to know if he wants him (appellant) to shoot him. The deceased moved back. The appellant thereafter asked the deceased for a second time if he must shoot him.

Appellant thereafter shot the deceased once. The deceased fell down and the appellant walked away. The second witness, Jeffrey Vumbe was asked to transport the deceased to hospital.

At the time the deceased was shot, he was not armed and he did not do anything to the deceased The witness denies that he was drunk or that he was drinking. He further denies that the appellant had left a bottle of brandy at the scene and that there was an argument between the deceased and the appellant about the bottle of brandy. He further denies that it was the deceased who took out a gun. He denies that there were a fight and a struggle to get hold of the gun between the appellant and the deceased. He denies that in the struggle for the gun a shot went off.

Jeffrey Vumbe testified that he was sitting in front of his house and he observed what happened on this particular day when the incident happened.
There is a public road between where he was sitting and the place where four persons including the appellant and the deceased, were sitting under a tree. At about 19h30 Vumbe saw two persons sitting under a tree, who were later joined by two other persons. The latter two persons initially had a discussion with the other two persons. The appellant then took out a firearm, pointed it at the deceased and shot him. He thereafter, walked away. Vumbe was requested to take the deceased to hospital.

He did not see appellant pointing the firearm at anyone other than the deceased.

He denies that there was any struggle between the deceased and the appellant to grab hold of the gun.

On a careful consideration of the evidence of the two state witnesses, it is clear that they observed the incident from two different vantage points.

The first witness, Thembelani Fatyela, because of his position, must have had more clearer and intimate knowledge of the incident, than the second witness, Jeffrey Vumbe who was positioned across the road.

Fatyela was also better placed because he was at the incident and closer involved. He was almost part of what transpired between the deceased and the appellant. Vumbe was not interested and was an independent observer.

There was initially no reason for him to be involved in the altercation and the happenings between the group of people on the opposite side of the road.
The evidence clearly paints a picture that his involvement in the whole incident was far less than that of Fatyela and would not have been so involved or observant than Fatyela.

It is clear from the evidence therefore that things that Fatyela observed and saw, Vumbe did not see or is not aware of.

It is not uncommon for witnesses especially in criminal trials who have seen the same incident, to give different accounts of their observations.

If one has to have regard to the merits of the evidence of each witness, both of them came across as honest and reliable. They were very adamant as to what they said.

Therefore on a conspectus of the evidence, I am in agreement with the findings of the trial magistrate where he accepted their version as to how the death of the deceased was caused, above the version of the appellant.

In my view, the trial magistrate correctly rejected his version.

[11] Therefore, for the reasons stated, the appeal against the conviction cannot succeed.

In Malgas it was further stated at 482 F:-

[13] The appellant at the time when he was sentenced, was 23 years of age. One of 13 children. The father of a one year old child. His level of education is standard 9 and he worked and earned R70.00 per week. The accused is also a first offender.

[15] In my view, the following circumstances should have been listed as substantial and compelling to deviate from the minimum sentence in terms of Section 51(3) of Act 105 of 1997:-

a)	the age (23 years) of the accused in relation to the number of years (15 years) he had to serve as a minimum sentence;
b)	the accused spent almost one year in custody awaiting trial; This was also not adequately addressed.
c)	the court failed to consider the element of leniency towards the accused;
d)	the fact that he was a first offender was not given due weight and consideration.

These factors together with the rest of the personal circumstances of the accused, accumulatively should have been regarded as substantial and compelling in order to justify a deviation from the prescribed minimum sentence.

[16]       A sentence of twelve (12) years imprisonment in my view, would have been fair and equitable.

In the result, I make the following order:

a)     the appeal against the conviction is dismissed;

(b)     the appeal against the sentence succeeds. The imposed sentence is set aside and substituted with the following:

Twelve (12) years imprisonment

(c)     It is ordered that in terms of Section 282 of Act 51 of 1977 (Criminal Procedure Act), that the sentence be antedated to the date of sentence in the Regional Court, being 8 February 2008

RCA HENNEY, AJ

I agree

AC OOSTHUIZEN, AJ

12 November 2010