Stuurman v S ([2009] ZAECGHC 23) [2009] ZAECGHC 94 (7 April 2009)

FORM AFILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENTECJ:PARTIES: EMMANUEL STUURMANAndTHE STATERegistrar:CA 242/08Magistrate:High Court:EASTERN CAPE HIGH COURT, GRAHAMSTOWNDATE HEARD:30/03/09DATE DELIVERED:07/04/09JUDGE(S):KROON J, JONES J, DAMBUZA JLEGAL REPRESENTATIVES –Appearances:for the Appellant(s):ADV: G.J. Cilliersfor the Respondent(s):ADV: M.M. SandanInstructing attorneys:for the Appellant(s):PORT

ELIZABETHJUSTICE CENTREfor the Respondent(s):DIRECTOR OF PUBLIC PROSECUTION (P.E)CASE INFORMATION -Nature of proceedings:APPEALNot reportableTHE HIGH COURT OF SOUTH AFRICAIn the Eastern Cape High CourtGrahamstown CA 242/08In the matter betweenEMMANUEL STUURMANAppellantandTHE STATE RespondentCoram KROON, JONES, and DAMBUZA JJSummaryAppeal – against conviction of murder and sentence of the 15 years’ imprisonment prescribed by s 51 of Act No 105 of 1997 – single witness identification – no misdirection – no basis for departing from the trial court’s evaluation of the oral evidence before him – conviction confirmed – sentence not an unjust or inappropriate sentence in all the circumstances – no basis for departing from the trial court’s finding that there were no substantial and compelling circumstances in terms of section 51(3) justifying the imposition of a lesser sentence than the prescribed sentence – no basis for holding that trial judge did not exercise his discretion on sentence properly in a judicial manner.JUDGMENTJONES J[1]On 8 November 2008 one "J J", a young man of 18 years whom I shall call the deceased, was shot a number of times in the upper body in a street called Friendship Street in Kleinskool, Port Elizabeth. He died in hospital the following day. As a result, the appellant was charged with murder, and with two additional counts relating to

the unlawful possession of a firearm and ammunition. The murder charge alleged the murder was committed in circumstances which made the provisions ofs. 51of theCriminal Law Amendment Act No 105of 1997applicable. That Act prescribes the imposition of a compulsory minimum sentence of 15 years’ imprisonment. The appellant appeared before Plasket J in the Port Elizabeth High Court on 17 March 2008. He pleaded not guilty but was found guilty as charged on all counts. Plasket J imposed the compulsory sentence of 15 years’ imprisonment for the murder, and a further 3 years’ and 2 years’ imprisonment for the unlawful possession of a firearm and ammunition. He ordered that these two sentences were to be served concurrently with the sentence on the murder count. The appellant now appeals to the full court of the Eastern Cape High Court, with the leave of the courta quo, against his conviction and sentences.[2] The appeal against the conviction is grounded on a single issue – the sufficiency of the evidence identifying the appellant as the person who shot and killed the deceased. The Statewas ultimately compelled to rely on the evidence of a single identifying eye-witness to implicate the appellant. I say ultimately because the State also adduced hearsay evidence at the trial of a declaration by the deceased to his father as he lay injured in the street afterwards that it was

the appellant who had shot him. The learned trial judge ruled that this evidence was inadmissible hearsay within the meaning ofs. 3of theLaw of Evidence Amendment Act No 45 of 1988, and he excluded it. The upshot was that the State had no alternative but to rely solely on the eye-witness testimony of Ms Michelle Roy who was the deceased’s girlfriend and who was with him when he was shot down in the street. The acceptability of her evidence beyond reasonable doubt was central both to the appellant’s guilt and to the rejection of the defence case as not reasonably possibly true. The defence was an alibi that at the time of the murder the appellant was watching television with his brother at his mother’s home in Zwide, a township an appreciable distance from Kleinskool.[3] Themain argument on behalf of the appellant, therefore, was that the identifying evidence of Ms Roy was insufficient for proof of the

appellant’s guilt beyond reasonable doubt. MrCillier’s submitted on his behalf that despite the fact that the witness knew the appellant from before, her identification of the appellant was unsatisfactory becauseher previous knowledge of him was limited;her opportunityfor observation in the circumstances of this case was so short-livedand so limited in time and space that her identification of him in the dark of night with only limited lighting must be questionable;that is particularly so by reason of the impairment of her capacity for accurate observation and recall because she had smoked dagga earlier on the evening in question.It is necessary to consider thisargument in the light of all the facts and circumstances of the case as whole.[4]Ms Roy described how she and the deceased spent the evening of 8 November 2008 in each other’s company, and ended up in Friendship

Street where they both lived. She was his girlfriend. Earlier, she, the deceased and other young people had smoked dagga. She had had only about two puffs of a dagga cigarette, and because she was used to smoking dagga regularly, an intake as small as that had had no effect upon her. Shortly before the shooting the deceased was in the shadow of a large tree at the side of the street in the near vicinity of his home. She was in the street some two metres away from him. It was after dark, about 10:00 p.m. She says that the lighting in the street was relatively good, good enough for people to have been able to see each other. It is common cause that there was high mast lighting from a pole in the next street, not more than about 50 metres away and possibly less, and lighting from nearby houses, one of which was across the street from where the shooting occurred with its lights shining on to the street. According to her she was readily visible where she was standing, and the deceased was also visible, but in shadow. In her opinion it was possible to identify a person by features or clothing at a distance of about 10 metres. She noticed two people coming towards them. She looked at them when they were 4 or 5 metres away. It was the appellant and one Daylin. They were wearing dark clothing. The appellant walked between her and the deceased. He was about 2 metres from the deceased and

a metre from her. She saw the appellant take a firearm from his right side with his right hand, aim it at the deceased, and fire a shot. She shut her eyes. Further shots rang out. When she opened her eyes she saw the deceased lying on the ground and the two men running away. They were then about 26 metres from her. She ran to the deceased’s father’s house, which was four houses away, for help. She took the deceased’s father and mother to the scene. She did not hear the conversation between the deceased and his father when the deceased named the appellant as his killer. The ambulance and the police were called. The police did not come. But the ambulance arrived and the deceased was taken to hospital. He died of his injuries the following day.[5] It is common cause that the appellant and Ms Roy are distantly related. They went to the same school as children, although not in same class because he was older, and for the past two years the appellant had lived with relatives in a house in the same street as her home. She would see him in the street, and he came to her home to visit members of her family. The deceased was a friend of her brother’s. She knew that at one time the appellant and the deceased were good friends who had spent a lot of time together, but that they seemed to have fallen out recently. According to the appellant, the witness knew him very well, too

well, in fact, to make a mistake about his identity (assuming, of course, that she had had an adequate opportunity of observing him). That was, indeed, also the finding of the courta quo.[6] That, briefly, was the evidence before the learned trial judge about the identity of the perpetrator. It had to be considered in the light of the alibi evidence of the defence witnesses. The trial judge made unfavourable demeanour

findings in respect of both the appellant and his brother as witnesses, and his criticisms of the content of their evidence are

borne out by a reading of the evidence. He rejected their evidence, and, ‘on a consideration of all the evidence’ (SvVan der Meyden1999 (1) SACR 447(W) 448h) concluded that the defence version was not reasonably possibly true and that the State had proved the guilt of the appellant beyond reasonable doubt.[7] The judgment by the learned trial judge is based upon his findings of fact and credibility. It is well known that on appeal a trial court’s findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (per Marais JAin the judgment ofSvHadebe1997 2 SACR 641SCA 645e-f,1998 (1) SACR 422SCA). InSvFrancis1991 (1) SACR 198(A) 204C-F Smalberger JA 204C-F puts it a little more fully:This Court's powers to interfere on appeal with the findings of fact of a trial Court are limited (RvDhlumayo and Another1948 (2) SA 677(A)). Accused No 5's complaint is that the trial Court failed to evaluate D's evidence properly. It is not suggested that the Court misdirected itself in any respect. In the absence of any misdirection the trial Court's conclusion, including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused No 5 must therefore convince us on adequate grounds that the trial Court was wrong in accepting D's evidence - a reasonable doubt will not suffice to justify interference with its

findings (RvDhlumayo(supra);TaljaardvSentrale Raad vir Koöperatiewe Assuransie Bpk1974 (2) SA 450E (A) at 452A-B). Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial Court's evaluation of oral testimony (SvRobinson and Others1968 (1) SA 666(A) at 675G-H).[8] Plasket J committed no misdirection in his approach to the identifying evidence of a single witness. He properly applied the principles set out in the leading cases ofSvSauls1981 (3) SA 172(A) 180E-G andSvMthetwa1972 (3) SA 766(A) 768A-B which deal with the evidence of a single witness and evidence of identification.Francis’scase says that we cannot depart from his findings of fact in the absence of a misdirection unless we are convinced that this is an exceptional case where we are able to conclude that his evaluation of theviva voceevidence was defective and his acceptance of Ms Roy’s evidence was clearly wrong. It is not possible to come to such a conclusion. The trial judge was fully alive to the need for caution in his approach to the evidence of a single identifying witness, and that it is not enough for the identification of such a witness to be honest; the reliability of her observations is also of paramount importance. Ms Roy created a favourable impression upon him as a

witness. He found, further, that the evidence she gave was satisfactory in every material respect, and that the cautionary rule in respect of her single witness identification had been satisfied. The judgment gives full reasons, and these are borne out by a reading of the evidence. MrCillier’s argument that the Ms Roy’s previous knowledge of appellant was limited is based upon certain isolated pieces of her evidence and disregards the totality of the evidence, and particularly the evidence of the appellant himself who, as I have said, conceded that she knew him too well to have made a mistake. There was no motive for her to have implicated him falsely, and deliberately false implication is in any event excluded by the finding, which was not challenged, that she was an honest witness. With regard to motive, the appellant’s version was that the deceased had fired shots at him about six weeks before in an attempt to kill him and that the police had taken no action against the deceased despite a charge having been laid. This provides an understandable reason for the appellant to take the law into his own hands by shooting the deceased, particularly in the light of the background evidence that lawlessness, violence and shootings were not uncommon in that area. No other motive for shooting the deceased is suggested by the evidence. MrCillier’s argument about the inadequacy of

the lighting and about Ms Roy’s limited opportunity for making a reliable observation of the attacker is also unsound. The learned trial judge considered both of these points in depth, and was satisfied that the lighting, though deficient, was nevertheless sufficient in the circumstances and so was Ms Roy’s opportunity to make a reliable identification, in the light of the time available, her close proximity to the appellant and the deceased at the crucial moment, and the fact that she knew the appellant well. There is no reason to doubt that conclusion, and,a fortiori,no basis to justify a conviction in the mind of a court of appeal that it was clearly wrong. The suggestion that Ms Roy’s powers of observation were impaired by smoking dagga may, on the evidence, be dismissed out of hand. There is also no proper basis for departing from the trial judge’s rejection of the alibi defence.[9] In the result the appeal against the conviction must fail. I turn to the appeal on sentence. This also involves an appeal against the trial judge’s finding of fact that there were no substantial and compelling circumstances to justify the imposition of a lesser sentence than the sentence of 15 years’ imprisonment prescribed by statute. Because the inquiry into substantial and compelling

circumstances goes to sentence and involves a value judgment, the finding is part of the exercise of the learned trial judge’s

discretion on sentence. It is well known that this imposes limitations on an appeal court’s power to interfere on sentence (SvGlannoulis1975 (4) SA 867(A)perHolmes JA 868E;SvKgosimore1999 (2) SACR 238(SCA)perScott JA at 241 para 10). Once again there is no suggestion that the learned trial judge has misdirected himself on the law or the facts. The argument on appeal was directed at the weight to be attached to the relevant considerations. The features advanced in the appellant’s favour are that he is a 26 year old first offender who is educated to the level of matriculation and who is good material for rehabilitation. These are important considerations. But I do not believe that they provide sufficiently weighty justification for departing from the sentence prescribed by law. They must be looked at in the light of the serious nature of this offence. Murder is always serious. In this case its seriousness is aggravated because it was committed with an unlicensed firearm, because it was committed with a direct intent to kill, because the killing was cold blooded, and because the deceased was defenceless, posed no threat at the time of the commission of the offence and could offer no resistance. The serious nature of this offence and the interests of society outweigh the personal circumstances of the offender. In the circumstances of this case I am of the view that any sentence

less than 15 years’ imprisonment would not reflect the seriousness of the crime and would not meet the concerns of society in the prevention of crime, the protection of citizens, the deterrence of offenders, and a proper measure of retribution. A lesser term would not be an adequate sentence. Further, a term of 15 years’ imprisonment shows a proper measure of compassion and mercy, and so does the decision to make the other sentences run concurrently. In the circumstances the seriousness of the crime and the interests of society have not been exaggerated at the expense of the interests of the offender. To borrow the language of Marais JA inSvMalgas2001 (1) SACR 469(SCA) para 25 I at 482, I am not satisfied that the prescribed sentence of 15 years imprisonment is unjust because it is disproportionate to the crime, the criminal and the needs of society, and I do not believe that an injustice has been done by imposing that sentence.[10] The result is that in my view we are not justified in concluding that the learned trial judge should have found that the personal circumstances of the appellant amount to substantial and compelling circumstances; or that the sentence of 15 years’ imprisonment was an unjustly disproportionate sentence. There are no grounds for concluding that the learned judge did not apply his mind to the question of sentence in a proper judicial manner. There is no basis for interfering with the sentence on appeal.[11] The appeal is dismissed.RJW JONESJudge of the High Court31March 2009KROON JI agree.F KROONJudge of the High CourtDAMBUZA J I agreeNDAMBUZAJudge of the High Court

FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES:

EMMANUEL STUURMAN

PARTIES

:

EMMANUEL STUURMAN

And

THE STATE

Registrar:CA 242/08Magistrate:High Court:EASTERN CAPE HIGH COURT, GRAHAMSTOWN

Registrar:CA 242/08

Registrar:

CA 242/08

Magistrate:High Court:EASTERN CAPE HIGH COURT, GRAHAMSTOWN

Magistrate:

High Court:EASTERN CAPE HIGH COURT, GRAHAMSTOWN

High Court:

EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD:30/03/09

DATE HEARD:

30/03/09

DATE DELIVERED:07/04/09

DATE DELIVERED:

07/04/09

JUDGE(S):KROON J, JONES J, DAMBUZA J

JUDGE(S):

KROON J, JONES J, DAMBUZA J

LEGAL REPRESENTATIVES –

Appearances:

for the Appellant(s):ADV: G.J. Cilliersfor the Respondent(s):ADV: M.M. Sandan

for the Appellant(s):ADV: G.J. Cilliers

for the Appellant(s):

ADV: G.J. Cilliers

for the Respondent(s):ADV: M.M. Sandan

for the Respondent(s):

ADV: M.M. Sandan

Instructing attorneys:

for the Appellant(s):PORT

ELIZABETHJUSTICE CENTREfor the Respondent(s):DIRECTOR OF PUBLIC PROSECUTION (P.E)

for the Appellant(s):PORT

ELIZABETHJUSTICE

CENTRE

for the Appellant

(s):

PORT

ELIZABETH

JUSTICE

CENTRE

for the Respondent(s):DIRECTOR OF PUBLIC PROSECUTION (P.E)

for the Respondent

DIRECTOR OF PUBLIC PROSECUTION (P.E)

CASE INFORMATION -

Nature of proceedings:APPEAL

Nature of proceedings

:

APPEAL

Not reportable

THE HIGH COURT OF SOUTH AFRICA

In the Eastern Cape High Court

Grahamstown CA 242/08

Grahamstown CA 242

/08

In the matter between

EMMANUEL STUURMANAppellant

EMMANUEL

STUURMAN

Appellant

and

THE STATE Respondent

Coram KROON, JONES, and DAMBUZA JJ

Coram KROON

, JONES, and DAMBUZA JJ

SummaryAppeal – against conviction of murder and sentence of the 15 years’ imprisonment prescribed by s 51 of Act No 105 of 1997 – single witness identification – no misdirection – no basis for departing from the trial court’s evaluation of the oral evidence before him – conviction confirmed – sentence not an unjust or inappropriate sentence in all the circumstances – no basis for departing from the trial court’s finding that there were no substantial and compelling circumstances in terms of section 51(3) justifying the imposition of a lesser sentence than the prescribed sentence – no basis for holding that trial judge did not exercise his discretion on sentence properly in a judicial manner.

Summary

Appeal – against conviction of murder and sentence of the 15 years’ imprisonment prescribed by s 51 of Act No 105 of 1997 – single witness identification – no misdirection – no basis for departing from the trial court’s evaluation of the oral evidence before him – conviction confirmed – sentence not an unjust or inappropriate sentence in all the circumstances – no basis for departing from the trial court’s finding that there were no substantial and compelling circumstances in terms of section 51(3) justifying the imposition of a lesser sentence than the prescribed sentence – no basis for holding that trial judge did not exercise his discretion on sentence properly in a judicial manner.

JUDGMENT

JONES J

[1]On 8 November 2008 one "J J", a young man of 18 years whom I shall call the deceased, was shot a number of times in the upper body in a street called Friendship Street in Kleinskool, Port Elizabeth. He died in hospital the following day. As a result, the appellant was charged with murder, and with two additional counts relating to the unlawful possession of a firearm and ammunition. The murder charge alleged the murder was committed in circumstances which made the provisions ofs. 51of theCriminal Law Amendment Act No 105of 1997applicable. That Act prescribes the imposition of a compulsory minimum sentence of 15 years’ imprisonment. The appellant appeared before Plasket J in the Port Elizabeth High Court on 17 March 2008. He pleaded not guilty but was found guilty as charged on all counts. Plasket J imposed the compulsory sentence of 15 years’ imprisonment for the murder, and a further 3 years’ and 2 years’ imprisonment for the unlawful possession of a firearm and ammunition. He ordered that these two sentences were to be served concurrently with the sentence on the murder count. The appellant now appeals to the full court of the Eastern Cape High Court, with the leave of the courta quo, against his conviction and sentences.

[1]

On 8 November 2008 one "J J", a young man of 18 years whom I shall call the deceased, was shot a number of times in the upper body in a street called Friendship Street in Kleinskool, Port Elizabeth. He died in hospital the following day. As a result, the appellant was charged with murder, and with two additional counts relating to the unlawful possession of a firearm and ammunition. The murder charge alleged the murder was committed in circumstances which made the provisions ofs. 51of theCriminal Law Amendment Act No 105of 1997applicable. That Act prescribes the imposition of a compulsory minimum sentence of 15 years’ imprisonment. The appellant appeared before Plasket J in the Port Elizabeth High Court on 17 March 2008. He pleaded not guilty but was found guilty as charged on all counts. Plasket J imposed the compulsory sentence of 15 years’ imprisonment for the murder, and a further 3 years’ and 2 years’ imprisonment for the unlawful possession of a firearm and ammunition. He ordered that these two sentences were to be served concurrently with the sentence on the murder count. The appellant now appeals to the full court of the Eastern Cape High Court, with the leave of the court

s. 51

Criminal Law Amendment Act No 105

of 1997

a quo

, against his conviction and sentences.

[2] The appeal against the conviction is grounded on a single issue – the sufficiency of the evidence identifying the appellant as the person who shot and killed the deceased. The Statewas ultimately compelled to rely on the evidence of a single identifying eye-witness to implicate the appellant. I say ultimately because the State also adduced hearsay evidence at the trial of a declaration by the deceased to his father as he lay injured in the street afterwards that it was the appellant who had shot him. The learned trial judge ruled that this evidence was inadmissible hearsay within the meaning ofs. 3of theLaw of Evidence Amendment Act No 45 of 1988, and he excluded it. The upshot was that the State had no alternative but to rely solely on the eye-witness testimony of Ms Michelle Roy who was the deceased’s girlfriend and who was with him when he was shot down in the street. The acceptability of her evidence beyond reasonable doubt was central both to the appellant’s guilt and to the rejection of the defence case as not reasonably possibly true. The defence was an alibi that at the time of the murder the appellant was watching television with his brother at his mother’s home in Zwide, a township an appreciable distance from Kleinskool.

[2] The appeal against the conviction is grounded on a single issue – the sufficiency of the evidence identifying the appellant as the person who shot and killed the deceased. The State

was ultimately compelled to rely on the evidence of a single identifying eye-witness to implicate the appellant. I say ultimately because the State also adduced hearsay evidence at the trial of a declaration by the deceased to his father as he lay injured in the street afterwards that it was the appellant who had shot him. The learned trial judge ruled that this evidence was inadmissible hearsay within the meaning ofs. 3of theLaw of Evidence Amendment Act No 45 of 1988, and he excluded it. The upshot was that the State had no alternative but to rely solely on the eye-witness testimony of Ms Michelle Roy who was the deceased’s girlfriend and who was with him when he was shot down in the street. The acceptability of her evidence beyond reasonable doubt was central both to the appellant’s guilt and to the rejection of the defence case as not reasonably possibly true. The defence was an alibi that at the time of the murder the appellant was watching television with his brother at his mother’s home in Zwide, a township an appreciable distance from Kleinskool.

s. 3

Law of Evidence Amendment Act No 45 of 1988

[3] Themain argument on behalf of the appellant, therefore, was that the identifying evidence of Ms Roy was insufficient for proof of the

appellant’s guilt beyond reasonable doubt. MrCillier’s submitted on his behalf that despite the fact that the witness knew the appellant from before, her identification of the appellant was unsatisfactory because

[3] The

main argument on behalf of the appellant, therefore, was that the identifying evidence of Ms Roy was insufficient for proof of the

appellant’s guilt beyond reasonable doubt. Mr

Cillier’

s submitted on his behalf that despite the fact that the witness knew the appellant from before, her identification of the appellant was unsatisfactory because

her previous knowledge of him was limited;her opportunityfor observation in the circumstances of this case was so short-livedand so limited in time and space that her identification of him in the dark of night with only limited lighting must be questionable;that is particularly so by reason of the impairment of her capacity for accurate observation and recall because she had smoked dagga earlier on the evening in question.

her previous knowledge of him was limited;

her opportunityfor observation in the circumstances of this case was so short-livedand so limited in time and space that her identification of him in the dark of night with only limited lighting must be questionable;that is particularly so by reason of the impairment of her capacity for accurate observation and recall because she had smoked dagga earlier on the evening in question.

her opportunityfor observation in the circumstances of this case was so short-livedand so limited in time and space that her identification of him in the dark of night with only limited lighting must be questionable;

her opportunity

for observation in the circumstances of this case was so short-lived

and so limited in time and space that her identification of him in the dark of night with only limited lighting must be questionable;

that is particularly so by reason of the impairment of her capacity for accurate observation and recall because she had smoked dagga earlier on the evening in question.

that i

s particularly so by reason of the impairment of her capacity for accurate observation and recall because she had smoked dagga earlier on the evening in question.

It is necessary to consider thisargument in the light of all the facts and circumstances of the case as whole.

It is necessary to consider this

argument in the light of all the facts and circumstances of the case as whole.

[4]Ms Roy described how she and the deceased spent the evening of 8 November 2008 in each other’s company, and ended up in Friendship

Street where they both lived. She was his girlfriend. Earlier, she, the deceased and other young people had smoked dagga. She had had only about two puffs of a dagga cigarette, and because she was used to smoking dagga regularly, an intake as small as that had had no effect upon her. Shortly before the shooting the deceased was in the shadow of a large tree at the side of the street in the near vicinity of his home. She was in the street some two metres away from him. It was after dark, about 10:00 p.m. She says that the lighting in the street was relatively good, good enough for people to have been able to see each other. It is common cause that there was high mast lighting from a pole in the next street, not more than about 50 metres away and possibly less, and lighting from nearby houses, one of which was across the street from where the shooting occurred with its lights shining on to the street. According to her she was readily visible where she was standing, and the deceased was also visible, but in shadow. In her opinion it was possible to identify a person by features or clothing at a distance of about 10 metres. She noticed two people coming towards them. She looked at them when they were 4 or 5 metres away. It was the appellant and one Daylin. They were wearing dark clothing. The appellant walked between her and the deceased. He was about 2 metres from the deceased and

a metre from her. She saw the appellant take a firearm from his right side with his right hand, aim it at the deceased, and fire a shot. She shut her eyes. Further shots rang out. When she opened her eyes she saw the deceased lying on the ground and the two men running away. They were then about 26 metres from her. She ran to the deceased’s father’s house, which was four houses away, for help. She took the deceased’s father and mother to the scene. She did not hear the conversation between the deceased and his father when the deceased named the appellant as his killer. The ambulance and the police were called. The police did not come. But the ambulance arrived and the deceased was taken to hospital. He died of his injuries the following day.

[4]

Ms Roy described how she and the deceased spent the evening of 8 November 2008 in each other’s company, and ended up in Friendship

Street where they both lived. She was his girlfriend. Earlier, she, the deceased and other young people had smoked dagga. She had had only about two puffs of a dagga cigarette, and because she was used to smoking dagga regularly, an intake as small as that had had no effect upon her. Shortly before the shooting the deceased was in the shadow of a large tree at the side of the street in the near vicinity of his home. She was in the street some two metres away from him. It was after dark, about 10:00 p.m. She says that the lighting in the street was relatively good, good enough for people to have been able to see each other. It is common cause that there was high mast lighting from a pole in the next street, not more than about 50 metres away and possibly less, and lighting from nearby houses, one of which was across the street from where the shooting occurred with its lights shining on to the street. According to her she was readily visible where she was standing, and the deceased was also visible, but in shadow. In her opinion it was possible to identify a person by features or clothing at a distance of about 10 metres. She noticed two people coming towards them. She looked at them when they were 4 or 5 metres away. It was the appellant and one Daylin. They were wearing dark clothing. The appellant walked between her and the deceased. He was about 2 metres from the deceased and

a metre from her. She saw the appellant take a firearm from his right side with his right hand, aim it at the deceased, and fire a shot. She shut her eyes. Further shots rang out. When she opened her eyes she saw the deceased lying on the ground and the two men running away. They were then about 26 metres from her. She ran to the deceased’s father’s house, which was four houses away, for help. She took the deceased’s father and mother to the scene. She did not hear the conversation between the deceased and his father when the deceased named the appellant as his killer. The ambulance and the police were called. The police did not come. But the ambulance arrived and the deceased was taken to hospital. He died of his injuries the following day.

[5] It is common cause that the appellant and Ms Roy are distantly related. They went to the same school as children, although not in same class because he was older, and for the past two years the appellant had lived with relatives in a house in the same street as her home. She would see him in the street, and he came to her home to visit members of her family. The deceased was a friend of her brother’s. She knew that at one time the appellant and the deceased were good friends who had spent a lot of time together, but that they seemed to have fallen out recently. According to the appellant, the witness knew him very well, too well, in fact, to make a mistake about his identity (assuming, of course, that she had had an adequate opportunity of observing him). That was, indeed, also the finding of the courta quo.

[5] It is common cause that the appellant and Ms Roy are distantly related. They went to the same school as children, although not in same class because he was older, and for the past two years the appellant had lived with relatives in a house in the same street as her home. She would see him in the street, and he came to her home to visit members of her family. The deceased was a friend of her brother’s. She knew that at one time the appellant and the deceased were good friends who had spent a lot of time together, but that they seemed to have fallen out recently. According to the appellant, the witness knew him very well, too well, in fact, to make a mistake about his identity (assuming, of course, that she had had an adequate opportunity of observing him). That was, indeed, also the finding of the court

.

[6] That, briefly, was the evidence before the learned trial judge about the identity of the perpetrator. It had to be considered in the light of the alibi evidence of the defence witnesses. The trial judge made unfavourable demeanour

findings in respect of both the appellant and his brother as witnesses, and his criticisms of the content of their evidence are

borne out by a reading of the evidence. He rejected their evidence, and, ‘on a consideration of all the evidence’ (SvVan der Meyden1999 (1) SACR 447(W) 448h) concluded that the defence version was not reasonably possibly true and that the State had proved the guilt of the appellant beyond reasonable doubt.

[6] That, briefly, was the evidence before the learned trial judge about the identity of the perpetra

tor. It had to be considered in the light of the alibi evidence of the defence witnesses. The trial judge made unfavourable demeanour

findings in respect of both the appellant and his brother as witnesses, and his criticisms of the content of their evidence are

borne out by a reading of the evidence. He rejected their evidence, and, ‘on a consideration of all the evidence’ (

S

v

Van der Meyden

1999 (1) SACR 447(W) 448h) concluded that the defence version was not reasonably possibly true and that the State had proved the guilt of the appellant beyond reasonable doubt.

1999 (1) SACR 447

[7] The judgment by the learned trial judge is based upon his findings of fact and credibility. It is well known that on appeal a trial court’s findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (per Marais JAin the judgment ofSvHadebe1997 2 SACR 641SCA 645e-f,1998 (1) SACR 422SCA). InSvFrancis1991 (1) SACR 198(A) 204C-F Smalberger JA 204C-F puts it a little more fully:

[7] The judgment by the learned trial judge is based upon his findings of fact and credibility. It is well known that on appeal a trial court’s findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (

per Marais JA

in the judgment of

Hadebe

1997 2 SACR 641SCA 645e-f,1998 (1) SACR 422SCA). In

1997 2 SACR 641

1998 (1) SACR 422

Francis

1991 (1) SACR 198(A) 204C-F Smalberger JA 204C-F puts it a little more fully:

1991 (1) SACR 198

This Court's powers to interfere on appeal with the findings of fact of a trial Court are limited (RvDhlumayo and Another1948 (2) SA 677(A)). Accused No 5's complaint is that the trial Court failed to evaluate D's evidence properly. It is not suggested that the Court misdirected itself in any respect. In the absence of any misdirection the trial Court's conclusion, including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused No 5 must therefore convince us on adequate grounds that the trial Court was wrong in accepting D's evidence - a reasonable doubt will not suffice to justify interference with its

findings (RvDhlumayo(supra);TaljaardvSentrale Raad vir Koöperatiewe Assuransie Bpk1974 (2) SA 450E (A) at 452A-B). Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial Court's evaluation of oral testimony (SvRobinson and Others1968 (1) SA 666(A) at 675G-H).

This Court's powers to interfere on appeal with the findings of fact of a trial Court are limited (

R

Dhlumayo and Another

1948 (2) SA 677(A)). Accused No 5's complaint is that the trial Court failed to evaluate D's evidence properly. It is not suggested that the Court misdirected itself in any respect. In the absence of any misdirection the trial Court's conclusion, including its acceptance of D's evidence, is presumed to be correct. In order to succeed on appeal accused No 5 must therefore convince us on adequate grounds that the trial Court was wrong in accepting D's evidence - a reasonable doubt will not suffice to justify interference with its

findings (

1948 (2) SA 677

Dhlumayo

(

supra

);

Taljaard

Sentrale Raad vir Koöperatiewe Assuransie Bpk

1974 (2) SA 450E (A) at 452A-B). Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this Court will be entitled to interfere with a trial Court's evaluation of oral testimony (

1974 (2) SA 450

Robinson and Others

1968 (1) SA 666(A) at 675G-H).

1968 (1) SA 666

[8] Plasket J committed no misdirection in his approach to the identifying evidence of a single witness. He properly applied the principles set out in the leading cases ofSvSauls1981 (3) SA 172(A) 180E-G andSvMthetwa1972 (3) SA 766(A) 768A-B which deal with the evidence of a single witness and evidence of identification.Francis’scase says that we cannot depart from his findings of fact in the absence of a misdirection unless we are convinced that this is an exceptional case where we are able to conclude that his evaluation of theviva voceevidence was defective and his acceptance of Ms Roy’s evidence was clearly wrong. It is not possible to come to such a conclusion. The trial judge was fully alive to the need for caution in his approach to the evidence of a single identifying witness, and that it is not enough for the identification of such a witness to be honest; the reliability of her observations is also of paramount importance. Ms Roy created a favourable impression upon him as a witness. He found, further, that the evidence she gave was satisfactory in every material respect, and that the cautionary rule in respect of her single witness identification had been satisfied. The judgment gives full reasons, and these are borne out by a reading of the evidence. MrCillier’s argument that the Ms Roy’s previous knowledge of appellant was limited is based upon certain

isolated pieces of her evidence and disregards the totality of the evidence, and particularly the evidence of the appellant himself who, as I have said, conceded that she knew him too well to have made a mistake. There was no motive for her to have implicated him falsely, and deliberately false implication is in any event excluded by the finding, which was not challenged, that she was an honest witness. With regard to motive, the appellant’s version was that the deceased had fired shots at him about six weeks before in an attempt to kill him and that the police had taken no action against the deceased despite a charge having been laid. This provides an understandable reason for the appellant to take the law into his own hands by shooting the deceased, particularly in the light of the background evidence that lawlessness, violence and shootings were not uncommon in that area. No other motive for shooting the deceased is suggested by the evidence. MrCillier’s argument about the inadequacy of the lighting and about Ms Roy’s limited opportunity for making a reliable observation of the attacker is also unsound. The learned trial judge considered both of these points in depth, and was satisfied that the lighting, though deficient, was nevertheless sufficient in the circumstances and so was Ms Roy’s opportunity to make a reliable identification, in the light of the time

available, her close proximity to the appellant and the deceased at the crucial moment, and the fact that she knew the appellant well. There is no reason to doubt that conclusion, and,a fortiori,no basis to justify a conviction in the mind of a court of appeal that it was clearly wrong. The suggestion that Ms Roy’s powers of observation were impaired by smoking dagga may, on the evidence, be dismissed out of hand. There is also no proper basis for departing from the trial judge’s rejection of the alibi defence.

[8] Plasket J committed no misdirection in his approach to the identifying evidence of a single witness. He properly applied the principles set out in the leading cases of

Sauls

1981 (3) SA 172(A) 180E-G and

1981 (3) SA 172

Mthetwa

1972 (3) SA 766(A) 768A-B which deal with the evidence of a single witness and evidence of identification.

1972 (3) SA 766

Francis’s

case says that we cannot depart from his findings of fact in the absence of a misdirection unless we are convinced that this is an exceptional case where we are able to conclude that his evaluation of the

viva voce

evidence was defective and his acceptance of Ms Roy’s evidence was clearly wrong. It is not possible to come to such a conclusion. The trial judge was fully alive to the need for caution in his approach to the evidence of a single identifying witness, and that it is not enough for the identification of such a witness to be honest; the reliability of her observations is also of paramount importance. Ms Roy created a favourable impression upon him as a witness. He found, further, that the evidence she gave was satisfactory in every material respect, and that the cautionary rule in respect of her single witness identification had been satisfied. The judgment gives full reasons, and these are borne out by a reading of the evidence. Mr

Cillier

’s argument that the Ms Roy’s previous knowledge of appellant was limited is based upon certain isolated pieces of her evidence and disregards the totality of the evidence, and particularly the evidence of the appellant himself who, as I have said, conceded that she knew him too well to have made a mistake. There was no motive for her to have implicated him falsely, and deliberately false implication is in any event excluded by the finding, which was not challenged, that she was an honest witness. With regard to motive, the appellant’s version was that the deceased had fired shots at him about six weeks before in an attempt to kill him and that the police had taken no action against the deceased despite a charge having been laid. This provides an understandable reason for the appellant to take the law into his own hands by shooting the deceased, particularly in the light of the background evidence that lawlessness, violence and shootings were not uncommon in that area. No other motive for shooting the deceased is suggested by the evidence. Mr

’s argument about the inadequacy of the lighting and about Ms Roy’s limited opportunity for making a reliable observation of the attacker is also unsound. The learned trial judge considered both of these points in depth, and was satisfied that the lighting, though deficient, was nevertheless sufficient in the circumstances and so was Ms Roy’s opportunity to make a reliable identification, in the light of the time available, her close proximity to the appellant and the deceased at the crucial moment, and the fact that she knew the appellant well. There is no reason to doubt that conclusion, and,

a fortiori,

no basis to justify a conviction in the mind of a court of appeal that it was clearly wrong. The suggestion that Ms Roy’s powers of observation were impaired by smoking dagga may, on the evidence, be dismissed out of hand. There is also no proper basis for departing from the trial judge’s rejection of the alibi defence.

[9] In the result the appeal against the conviction must fail. I turn to the appeal on sentence. This also involves an appeal against the trial judge’s finding of fact that there were no substantial and compelling circumstances to justify the imposition of a lesser sentence than the sentence of 15 years’ imprisonment prescribed by statute. Because the inquiry into substantial and compelling

circumstances goes to sentence and involves a value judgment, the finding is part of the exercise of the learned trial judge’s

discretion on sentence. It is well known that this imposes limitations on an appeal court’s power to interfere on sentence (SvGlannoulis1975 (4) SA 867(A)perHolmes JA 868E;SvKgosimore1999 (2) SACR 238(SCA)perScott JA at 241 para 10). Once again there is no suggestion that the learned trial judge has misdirected himself on the law or the facts. The argument on appeal was directed at the weight to be attached to the relevant considerations. The features advanced in the appellant’s favour are that he is a 26 year old first offender who is educated to the level of matriculation and who is good material for rehabilitation. These are important considerations. But I do not believe that they provide sufficiently weighty justification for departing from the sentence prescribed by law. They must be looked at in the light of the serious nature of this offence. Murder is always serious. In this case its seriousness is aggravated because it was committed with an unlicensed firearm, because it was committed with a direct intent to kill, because the killing was cold blooded, and because the deceased was defenceless, posed no threat at the time of the commission of the offence and could offer no resistance. The serious nature of this offence and the interests of society outweigh the personal circumstances of the offender. In the circumstances of this case I am of the view that any sentence

less than 15 years’ imprisonment would not reflect the seriousness of the crime and would not meet the concerns of society in the prevention of crime, the protection of citizens, the deterrence of offenders, and a proper measure of retribution. A lesser term would not be an adequate sentence. Further, a term of 15 years’ imprisonment shows a proper measure of compassion and mercy, and so does the decision to make the other sentences run concurrently. In the circumstances the seriousness of the crime and the interests of society have not been exaggerated at the expense of the interests of the offender. To borrow the language of Marais JA inSvMalgas2001 (1) SACR 469(SCA) para 25 I at 482, I am not satisfied that the prescribed sentence of 15 years imprisonment is unjust because it is disproportionate to the crime, the criminal and the needs of society, and I do not believe that an injustice has been done by imposing that sentence.

[

9] In the result the appeal against the conviction must fail. I turn to the appeal on sentence. This also involves an appeal against the trial judge’s finding of fact that there were no substantial and compelling circumstances to justify the imposition of a lesser sentence than the sentence of 15 years’ imprisonment prescribed by statute. Because the inquiry into substantial and compelling

circumstances goes to sentence and involves a value judgment, the finding is part of the exercise of the learned trial judge’s

discretion on sentence. It is well known that this imposes limitations on an appeal court’s power to interfere on sentence (

Glannoulis

1975 (4) SA 867(A)

1975 (4) SA 867

per

Holmes JA 868E;

Kgosimore

1999 (2) SACR 238(SCA)

1999 (2) SACR 238

Scott JA at 241 para 10). Once again there is no suggestion that the learned trial judge has misdirected himself on the law or the facts. The argument on appeal was directed at the weight to be attached to the relevant considerations. The features advanced in the appellant’s favour are that he is a 26 year old first offender who is educated to the level of matriculation and who is good material for rehabilitation. These are important considerations. But I do not believe that they provide sufficiently weighty justification for departing from the sentence prescribed by law. They must be looked at in the light of the serious nature of this offence. Murder is always serious. In this case its seriousness is aggravated because it was committed with an unlicensed firearm, because it was committed with a direct intent to kill, because the killing was cold blooded, and because the deceased was defenceless, posed no threat at the time of the commission of the offence and could offer no resistance. The serious nature of this offence and the interests of society outweigh the personal circumstances of the offender. In the circumstances of this case I am of the view that any sentence less than 15 years’ imprisonment would not reflect the seriousness of the crime and would not meet the concerns of society in the prevention of crime, the protection of citizens, the deterrence of offenders,

and a proper measure of retribution. A lesser term would not be an adequate sentence. Further, a term of 15 years’ imprisonment shows a proper measure of compassion and mercy, and so does the decision to make the other sentences run concurrently. In the circumstances the seriousness of the crime and the interests of society have not been exaggerated at the expense of the interests of the offender. To borrow the language of Marais JA in

Malgas

2001 (1) SACR 469

(SCA) para 25 I at 482, I am not satisfied that the prescribed sentence of 15 years imprisonment is unjust because it is disproportionate to the crime, the criminal and the needs of society, and I do not believe that an injustice has been done by imposing that sentence.

[10] The result is that in my view we are not justified in concluding that the learned trial judge should have found that the personal circumstances of the appellant amount to substantial and compelling circumstances; or that the sentence of 15 years’ imprisonment was an unjustly disproportionate sentence. There are no grounds for concluding that the learned judge did not apply his mind to the question of sentence in a proper judicial manner. There is no basis for interfering with the sentence on appeal.

[11] The appeal is dismissed.

[11

] The appeal is dismissed.

RJW JONES

Judge of the High Court

31March 2009

31

March 2009

KROON JI agree.

KROON J

I agree.

F KROON

DAMBUZA J I agree

NDAMBUZA

N

DAMBUZA