Lala and Others v S (A314/2015) [2017] ZAGPPHC 996 (7 September 2017)

REPUBLIC

OF SOUTH AFRICA

IN

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:A314/2015

7 September 2017

(1) NOT REPORTABLE.

(2) NOT OF INTEREST TO OTHER JUDGES.

(3) REVISED.

In the matter between:

PAPILE

THEMBILE LALA 1st Appellant

SHIMANE

TIMOTHY MSIBI 2nd Appellant

MATHEWS

MATEAS LOUW 3rd Appellant

and

THE STATE Respondent

JUDGMENT

MATOJANE J

[1] The appellants were convicted in the Vereeniging Regional Court for murder and robbery with aggravating circumstances. The first appellant was additionally convicted for possession of an unlicensed firearm as well as the unlawful possession of ammunition. The state's case was that the appellants conspired and acted in common purpose to commit the offences. They were all convicted as charged.

[2] On 5 August 2014 the appellants were each sentenced to life imprisonment on the charge of murder, as well as 18 years imprisonment for robbery with aggravating circumstances. The first appellant was furthermore sentenced on counts 3 and 4 to 4 years and 18 months imprisonment respectively.

[3] Since the Appellants were sentenced to imprisonment for life under section 51(1) of Act 105 of 1997, they are in terms of section 309(1)(a) of Act 51 of 1977 entitled to note an appeal without filing prior applications for leave to appeal.

[4] It was not dispute in the trial that at approximately 20:30 on 3 February 2011, the deceased Ernest Hlatywayo was at his house with his friend, Moses Shongwe at Sharpeville, Vereeniging. They saw a male person entering the yard. Inside the yard there is a tuck shop which is operated by other people. This person went to stand next to the door of the tuckshop .

[5] The deceased approached this person to enquire from him what he was doing in his yard, the man told the deceased that he was looking for his girlfriend. Suddenly this person fired two shots at the deceased. Shongwe and the deceased ran into the house and a third shot was fired. The second and third appellant's who confessed to have been at the scene, entered the tuckshop and robbed the owner of cash in the amount of R500.00 and two packets of cigarettes.

[6] Two days later, a witness to the murder and robbery came across the appellants at Leeuhof train station. He informed the police who came and arrested the first and second appellant, the third appellant managed to escape. The third appellant was arrested on 6 February 2011 at sharpeville police station after being identified by the witness as one of the person who was involved in the murder and robbery at the tuckshop.

[7] It was submitted on behalf of the appellants that the learned magistrate misdirected himself by accepting that the guilt of the first appellant was proved beyond reasonable doubt, firstly because, the police failed to hold an identification parade at which the witnesses identification of the appellant could have been properly tested and secondly, no evidence was led about where and when the murder weapon was found.

[8] This submission concerns the magistrate's assessment of the evidence and his findings of fact. In such a case, and this is trite in law, a Court of appeals power of interference with the trial court's findings of fact is limited as there is a presumption that the trial court's evaluation of the evidence as to the facts is correct and that a Court of Appeal will interfere therewith only if it is convinced that this assessment is wrong . See S v Barley[1]

[8] The first issue that arises for decision is whether the magistrate assessed the evidence of the state witnesses with the necessary caution.

[9] According to the first state witness , Tebogo Tshabala on 3 February 2011 at about 19:40 he was at Roy's groceries tuckshop with his friends Tele Tele and Tsietsi when he saw the three appellants. The third appellant approached Tshabalala and asked for a match for his cigarette. They both smoked and Tshabalala saw the first appellant walking past him directly towards the flower stand. He had with him a rolled up windbreaker which he placed on the flowers . The lighting

at the scene and the distance from the appellant were sufficient to identify him. There was light outside the tuckshop as well as an Apollo light.

[10] The third appellant then requested Tshabalala and his two friends to leave the scene which they did. Tshabalala testified that he was seeing the first and second appellants for the first time, but he knew the third appellant very well. He has known him since 2006.

[11] The three appellants were the only people remaining in the tuckshop. When the witnesses were about 12m away, they heard gunshots and saw the three appellants running away from the scene. On their return to the scene, they found a woman crying and her husband lying on the floor shot.

[12] On 5 February 2011, the day of which the first and second appellants were arrested, Tshabalala came across the three appellants at Leeuhof train station, he recognised the first appellant by his face, light complexion and his build. The third appellant managed to evade arrest and ran away. He was only arrested the following day at the police station still wearing the same black leather trousers he wore at the time of the robbery and murder.

[13] The second state witness Innocent Celo corroborated the evidence of Tshabalala that the three appellants were at the scene of the crime. The third state witness, Moses Shongwe testified that on 3 February 2011 about 20:30 he was with the deceased at his house when they saw the first appellant entering the deceased premises. He was about 4m away from the first appellant when he heard someone shouting "Skiet daardie mense" he then saw the first appellant shooting at the

deceased. He never saw the second and third appellant.

[14] The magistrate found them to be good witnesses . That finding is borne out by the record, and the magistrate carinot be fa and ulted in any respect, and there is no basis upon which this conclusion can be upset. The witnesses corroborate each other in a material respect.

[15] In my view, the magistrate was aware of the dangers inherent in relying on the evidence of identification. The magistrate accepted that the light in the area was sufficient to make an identification and was satisfied that the evidence is both honest and reliable. See S v Mthetwa[2]

[16] All factors point to a proper assessment of the evidence relating to the identification of the suspect.

[17] It was submitted on behalf of the second and third appellants that, apart from their confessions, which were admitted only after a trial-within-a trial was held, as well as a pointing out by the second appellant to prove his involvement in the crimes, the state failed to submit any aliunde evidence that the robbery did in fact occur. Counsel argued that none of the witnesses testified about the robbery and no one from the tuckshop was called as a witness to confirm that violence was used to steal property from the tuckshop.

[18] I disagree, evidence aliunde the confession was given by the three state witnesses who identified all the appellants. While smoking with the third appellant, Tshabalala saw first appellant walking past him towards the flower stand and the second applicant was standing next to a red car. In circumstances like these where Tshabalala has known the third appellant for a long period the probability that the identification will be reliable is greatly increased - and the corresponding risk of an erroneous identification reduced. See R v Dladla & others[3]

[19] The second and third appellant have admitted in their confessions that they had a prior agreement between them to rob the tuckshop. The magistrate was correct in his finding that they acted in common purpose and has correctly convicted them.

[20] The common purpose test in S v Mgedezi and Others[4]requires that where there is no prior agreement, whether express or implied, to commit a crime, an element of "active association" must be present. "Active association" common purpose requires that all accused must: be present at the scene of the violence; aware of the crime; intend to make common cause with those who were actually perpetrating the crime; manifestation of the sharing of a common purpose with the perpetrators of the crime by performing some act of association with the conduct of the others; and possession of the requisite mens rea.

[21] On the "prior agreement" construction of the common purpose doctrine, it is clear that the appellants acted with common purpose. Prior agreement, whether express or implied, makes the act of the principal offender the act of all. This ground of appeal has no merits. The appeal against conviction is falls to be dismissed.

Sentence

[22] The infliction of an appropriate punishment is pre-eminently a matter for the discretion of the trial court. The test is not whether the appellate tribunal would have imposed another form of punishment or not, but rather whether the trial Court exercised its discretion properly and reasonably in imposing the sentence it imposed. An appellate court will only interfere if there was some substantial misdirection as to law or fact, or if the sentence is manifestly inappropriate. See: R v Mapumulo and Others[5]; S v Rabie[6] .

[23] The trial court carefully considered the personal circumstances of the appellants, the seriousness of the offences, the prevalence of the crime and the interest of society who must be protected from criminals.

[24] The trial court found that there were no substantial and compelling circumstances to depart from the prescribed minimum sentence . The murder of the deceased at his house was in vain as he did not own the tuckshop that was robbed. The appellants were motivated by greed and the murder and robbery was planned.

[25] I agree with the argument by the state that the sentence imposed does not invoke a sense of shock, is not disproportionate to the crime and no irregularities can be found on the part of the magistrate.

[26] That being so, the appeal against sentence cannot succeed

Order

I would make the following order

The appeal is dismissed

I agree and it is so ordered

I agree

TONJENI AJ

[1] 2007(2) SACR 1 (C) at para 16.

[2] 1972 (3) SA 766 (A) at 768A.

[3] 1962(1) SA 307 (A) at 310C.

[4] 1999 (3) SA 667 (A).

[5] 1020 AD56 at 57

[6] 1975 (4) SA 855 (A) at 857 D.A