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IN THE REPUBLIC OF SOUTH AFRICA

CASE NO:A248/2015

THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

 

CASE NO: A37/2019

SAMMY SANI SKHOSANA                                                                         APPELLANT

and

STATE                                                                                                          RESPONDENT

JUDGMENT

KHUMALO J (COLLIS J concurring)

INTRODUCTION

[1]          The Appellant, with leave of this court, is appealing his conviction by the Regional Court Cullinan, on 20 August 2012, on a charge of murder, read with the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997, as amended, (CLAA) and s 258 of the Criminal Procedure Act (CPA) and the sentence of 15 years’ imprisonment subsequently imposed by the court on 27 August 2012.

[2]               The charge as per charge sheet is that on or about 1 October 2011 at or near Elandshoek in the Regional Division of Gauteng the Appellant unlawfully and intentionally killed one Leonard Ghandi (“the deceased”) by stabbing him with a knife.

[3]               The salient facts are that the Appellant and two of his friends were visiting a friend who works at one of the plots around Elandshoek when the deceased arrived with his girlfriend. After a while an argument ensued between the deceased and the Appellant. The deceased was stabbed by the Appellant who fought back with a bicycle and thereafter collapsed at the door whilst trying to leave.

[4]               The Appellant pleaded self – defence admitting that he stabbed the deceased twice but denying that he did that intentionally or wrongfully. He tendered a plea of not guilty that was confirmed by his legal representative. He made the following concessions in terms of s 220 of the CPA ad verbatim:

“I admit that one Leornard Ghandi, an adult male, whose full identity is unknown, was stabbed by me twice with a knife on 1 October 2011 at Elandspahoek in the Regional Division of Gauteng but will dispute the unlawfulness of the stabbing.

I admit that the body of the deceased was thereafter transported to the Medico-Legal laboratory in Bronkorspruit without the deceased sustaining any further injuries subsequent to the abovementioned stabbing.

I admit that a post-mortem was performed on the body of the deceased by Dr Lombard on 3 October 2011.

I admit that the truth of the contents of the post mortem report of Dr Lombard including the nature, extent and location of the abovementioned stab wounds and that the cause of death of the deceased was a stab wound to the neck of the deceased as indicated.

I admit the truth and the contents of the key photos as well as the photos taken after the abovementioned stabbing of the scene, the position of the deceased before being transported from the scene as well as the knife used in the abovementioned stabbing.

I admit that when the abovementioned stabbing occurred although being under the influence of alcohol, I was still able to appreciate the wrongfulness of the act and able to act in accordance with my position thereof”

[5]               The court a quo however found that the state proved beyond reasonable doubt (his guilt) that the Appellant had intentionally committed the murder reliant on the evidence of the two state witnesses who were on the scene when the incident took place, that is Piet Modise (“Modise”) and Tolla Tshabalala (“Tshabalala”).

[6]                 According to Modise he together with the Appellant and other two friends were visiting a friend at his workplace at a plot in Elandshoek when at about 15h00, the deceased arrived with his girlfriend. The Appellant stood up and approached the deceased. He heard the deceased telling the Appellant that he should not talk to him about past things (that happened yesterday). He fetched the Appellant and told him to leave the deceased alone. Next, the deceased was standing in front of them when he was stabbed by the Appellant on the neck. He could not see what was used by the Appellant to stab the deceased. After the deceased had sustained the injury he tried to hit the Appellant. He took a bicycle and hit the Appellant with it. He then walked away a few footsteps and collapsed at the door. The deceased was stabbed twice on the right side of his neck. The Appellant ran away. A knife was found at the scene.

[7]               He further under cross examination confirmed that he has stated in his police statement that when the Appellant approached the deceased an argument ensued between them and he went to them and stopped the argument. He was not sure of his statement that another argument ensued between the two whereupon he told the Appellant to leave the deceased. He stood up and tried to intervene after the stabbing, when the deceased was hitting the Appellant with the bicycle. At the time the deceased was bleeding. He tried to intervene but did not have to because by then the fight had stopped. When the deceased was stabbed he was standing. He confirmed having been asked about a cellphone by the Appellant and that it made him cross, he however denied that it led to a fight. It was put to him that the Appellant was tripped twice by the deceased and hit with a bicycle when his ribs were broken and the deceased got on top of the Appellant again hitting him with fists and that is when the Appellant took out a knife from his pocket and stabbed the deceased twice. He restated that he did not see where the knife came from.

[8]               Mr Tolla Tshabalala testified that he was present at the plot on day with his girlfriend, sitting and drinking with the Appellant and other people. He left with his girlfriend to go and buy more beer. When he came back he saw people fighting near the gate which was a meter away from him. He could see that the deceased was hitting the Appellant with a chair and a crate. The deceased was losing strength as he was approaching. The deceased walked away towards the other place nearby where they sell liquor. He just fell down. When he arrived he found that the deceased has passed away. The Appellant went back to his workplace and after that he wanted to go to his brother. He stopped the Appellant and made him wait for the police. He did not see the Appellant stabbing the deceased.

[9]               In his testimony, the Appellant denied starting the fight. His version is that the deceased arrived at the plot whilst he was already there sitting on a bench alone. He spoke to somebody else asking that person to buy him beer. That person pointed to him saying he does not have money but that fool is the one who has got money and you can go and get his beer. The deceased walked straight to him, took his beer and drank it. When he enquired why he was doing that the deceased told him that he was the only one there he has never assaulted. Everybody there has been assaulted by him. The deceased started assaulting him with his fists. He stood up, tried to run away but the deceased tripped him and he fell. The deceased kicked and assaulted him whilst he was on the floor. The deceased sat on top of him and continued to assault him. He told the deceased that he was killing him but the deceased said he wanted to kill him. The deceased left him, grabbed a bicycle and started hitting him with it. He tried to push him away but the deceased did not stop. He then was trying to grab him whilst he was trying to stand up, when he noticed a knife next to him. He took it and stabbed the deceased in self – defence. His explanation as to how he got to be in possession of the knife was that he was cooking in the house when he saw his boss’ horses passing. He followed them. He met Modise on the road and asked him about his cellphone. He denied that he spoke to the deceased when he was there as was alleged by Modise.

[10]           His evidence under cross examination was that the deceased was known to him prior the accident and there was no animosity between them. He confirmed to have had about two beers prior the incident. Modise also joined them. The deceased found them there. He was not sitting with them. Tshabalala who once worked with him at the same place was also there drinking. Regarding the alleged fight, he said the deceased hit him with a bicycle whilst he was lying on the floor with the knife next to him. He tried to stand up but the deceased, kept on hitting him with the bicycle. The deceased threw the bicycle at him and it hit his back. He stood up and ran away to his workplace. He tried to run away but felt his back being hurt. He stood up and actually walked away, not run. He stabbed the deceased when the deceased was hitting him with a bicycle preventing him from running away. He was lying on the floor and the deceased was on top of him hitting him when he noticed the knife next to him. He grabbed the knife and stabbed the deceased. On the second occasion when the deceased was hitting him after he took the bicycle away, he said to the deceased “you are killing me” and took the knife next to him and stabbed the deceased twice. He had seen the knife for the first time when the deceased was hitting him, before he hit him with the bicycle. The next time, the deceased hit him only once with the bicycle and sat on top of him. He pushed the bicycle away and the deceased remained on top of him. The deceased was continuing to hit him when he realised that the knife was next to him. The deceased only hit him once with the bicycle. He did not stab the deceased with the knife in the first instance they started fighting, instead he tried to run away but the deceased sat on top of him. He stabbed him once and the deceased said to him “you are stabbing me” and then he stabbed the deceased for the second time when he realised that the deceased did not want to let him go. The deceased only threw the bicycle at him once. After the second stabbing the deceased stood up and let him go.

[11]             In relation to the fight between him and Modise he said Modise was lying as Modise was the first one who hit him. Their fight was about the phone on the same day. That is why he left Modise, Tshabalala and the others and sat alone. The deceased later arrived there with his girlfriend. The deceased greeted Modise and his friends, that is when he asked for a beer and they said he can get it from him.

[12]           The post mortem report indicated that the deceased did not have any defensive injuries on his arms or hands.

[13]           Having taken into consideration Modise’s evidence and acknowledged that it was not flawless but with some contradictions when compared with his police statement, the court a quo concluded that the contradictions were not material. They were about what exactly happened prior the fight and the stabbing of the deceased. Also about the intensity of the fight. Neither was Modise’s credibility affected nor did that make him a liar. Modise was adamant that when the Appellant stabbed the deceased, he was not provoked and there was no physical fight between them but quarrelling. The court found that Tshabalala corroborated Modise’s evidence as he saw the deceased hit the Appellant with the crates and chair and thereafter collapsing. The deceased was already stabbed, which incident Tshabalala did not see (the stabbing). Therefore, the Appellant was hit by the deceased with a bicycle after he has stabbed the deceased. The court found that for that reason it could not be true that the Appellant stabbed the deceased after he was hit with a bicycle by the deceased.

[14]           The court on that basis rejected the version of the Appellant finding it not to have been reasonably possible true that he stabbed the deceased in self-defence whilst he was on the ground with the deceased on top of him after the deceased has hit him with the bicycle.

The learned magistrate opined that Tshabalala would have seen the stabbing. However, Tshabalala’s evidence is that when the deceased hit the Appellant with crates, which is what he saw, the deceased already had a stab wound and he thereafter collapsed and died. The court found that when Appellant stabbed the deceased it was with intent to kill as he not only stabbed him once but instead twice.

Ad conviction

[15]             It is the Appellant’s contention that the learned magistrate erred in rejecting the version of the Appellant for the reason that:

[15.1] the absence of defensive injuries indicate that the Appellant stabbed the deceased whilst the deceased was hitting him with a bicycle, thus in self-defence. Modise did not dispute the version that was put to him that Appellant suffered broken ribs.

[15.2] Tshabalala’s evidence was used as a yardstick to evaluate the version of the Appellant when Tshabalala did not witness the stabbing of the deceased or the assault on the Appellant with the bicycle. He witnessed the end of the fight.

[15.3] The injuries suffered by the deceased supports the version of the Appellant of self-defence in that the one wound was a superficial laceration of a right deltoid muscle and the other a wide sharp edged wound that severed the common carotid artery and puncturing the right lung.

[16]             The Appellant alleges that as a result the court a quo did not properly evaluate all the evidence.

[17]             It is a well-established legal principle that the trial court’s factual findings are presumed to be correct and will only be disregarded if the recorded evidence shows a clear misdirection of a material nature, bearing in mind that the trial court had the advantage of seeing, hearing and appraising a witness. It would therefore be in exceptional cases that an appeal court will be entitled to interfere with the trial court’s valuation of the oral testimony of witnesses, its powers being limited in that regard. Therefore in order to succeed, the Appellant will have to convince the Appeal Court that the trial court was wrong in accepting the evidence of the state and rejecting his version, in so far as it was in conflict with that of the state, as being reasonably possibly true, hence a reasonable doubt will not suffice to justify interference with such findings; see R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705-706; S v Francis 1991 (1) SACR 198 (A) at 204c-e; S v Monyane and Others 2008 (1) SACR 543 (SCA) at para [15]. There should therefore be a demonstrable and material misdirection.

[18]           I am convinced that the trial court holistically considered all the evidence that was submitted. The learned magistrate weighed Tshabalala’s evidence of having seen only the deceased hitting the Appellant with a crate or chairs, stabbed already and thereafter collapsing together with that of Modise who had testified that it was the Appellant that approached the deceased and stabbed him without a fight and that the deceased was reacting to the stabbing when he hit the Appellant, to find that the evidence of the Appellant that he was acting in self -defence and was hit with the bicycle whilst he was lying on the ground to have been therefore not reasonable probably true.

 

[19]           In addition, the assertions made that the absence of defensive injuries indicate that the Appellant stabbed the deceased whilst the deceased was hitting him with a bicycle, and that Modise did not dispute the version that was put to him that Appellant suffered broken ribs proves self-defence has no merit.

[20]           According to Modise the deceased was stabbed by the Appellant unprovoked and without a fight. The fight broke after the deceased was stabbed and he was trying to retaliate using the bicycle or the chair. The latter part of the retaliation being witnessed by Tshabalala. Consequently, the deceased would not have been expected to have been in a position to defend himself prior or during the stabbing and guard against it. It is therefore reasonable that he would not have any defensive injuries. He only tried to defend himself after he was stabbed using the bicycle and or chairs and the crate.

[21]           On the allegation of Appellant sustaining injuries on his ribs. It was only put to a witness but was never led as evidence or proven by the Appellant. It therefore never formed part of the Appellant’s version and does not have any probative value. In addition, you would expect a party charged of a criminal act who is seeking to justify a lapse in his conduct to be quick to point out anything that proves justification of his conduct. In self- defence injuries sustained during an attack would be of uttermost importance to prove that there was indeed an attack and or imminent danger that the Appellant was averting. A mere allegation put to a witness does not suffice. It was not Appellant’s testimony that he had any injuries on his ribs or broken ribs. He instead testified about his back being hurt.

[22]             The Appellant does not indicate why the injuries he inflicted on the deceased would be proof of the deceased having been the aggressor.

[23]             The Appellant therefore failed to establish the learned magistrate’s misdirection that justifies interference by this court. In S v Pistorius 2014 (2) SACR 314 (SCA) at [30] Bosielo J for the court articulated that:

“It is a time-honoured principle that once a trial court has made credibility findings an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong”

Ad sentence

[24]           The Appellant also contends that the magistrate misdirected himself when he imposed the minimum sentence of 15 years of imprisonment given the circumstances of the matter that the Appellant may have only exceeded the boundaries of self- defence and was also assaulted by the deceased.

[20]             As it has been indicated the court a quo found that the Appellant had the intention to kill the deceased and his defence of self- defence not upheld, the sentence that would therefore be appropriate under the circumstances falls squarely within the realm of the minimum sentence regime that prescribes the imposition of 15 years imprisonment.

[21]             The Appellant has conceded that there were no specific substantial and compelling circumstances that were addressed on his behalf in the court a quo. The court also looked at all the submissions that have been made on behalf of the Appellant by his employer and legal representative, which were mainly on his personal circumstances, emphasis being put on how his children would be affected since he was the breadwinner. The Appellant was not staying with his children. It is also noted that the magistrate considered that there was no remorse shown by the Appellant, which relates to his attitude. It is difficult for an offender that does not appreciate the gravity of his action to respond positively to rehabilitation. The court could not find anything substantial and compelling to deviate from the prescribed minimum sentence.

[22]           The approach to sentencing has been eloquently explained in S v M 2007 (2) SACR 539 (CC) (2008 (3) SA 232; 2007 (12) BCLR 1312; [2007] ZACC 18) par 10 it is said:

“Sentencing is innately controversial. However, all the parties to this matter agreed that the classic Zinn triad is the paradigm from which to proceed when embarking on “the lonely and onerous task” of passing sentence. According to the triad the nature of the crime, the personal circumstances of the criminal and the interests of the community are the relevant factors that are determinative of an appropriate sentence. In Banda Friedman J explained that:

“The elements of the triad contain an equilibrium and a tension. A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of the exclusion of the others. This is not merely a formula, nor a judicial incantation, the mere stating whereof satisfies the requirement. What is necessary is that the court shall consider, and try to balance evenly, the nature and the circumstances of the offence, the characteristics of the offender and his circumstances and the impact of the crime on the community, its welfare and concern.”

[23]             The Appellant committed a serious crime, under circumstances that are very senseless. It does not make sense that a person was killed so casually because of a pointless disagreement. Also very absurd for any person to think that the only way to deal with a person they don’t get along with is to kill them. Society needs to be protected from such dangerous thinking and harmful conduct. The courts must also not show any tolerance to such behaviour and mete out sentence that is in proportion with the severity of the crime committed. Hence in S v Rabie 1975 (4) SA 855 (A) the court implores that the imposition of a suitable sentence must have regard to the nature of the crime, individualise the offender by having regard to his or her personal circumstances and take into account the interests of society. It is sufficient to consider also the impact to the victims and their families.

[24]           The Appellant has failed to show any misdirection by the court a quo that justifies this court’s interference with the court’s findings that no substantial or compelling circumstances could be found obviating the imposition of the prescribed minimum sentence.

[25]             Under the circumstances the following order is made.

1.      The appeal against conviction is dismissed.

2.      The appeal against sentence is dismissed. 

N V KHUMALO J

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA

I concur

C J COLLIS

JUDGE OF THE HIGH COURT GAUTENG DIVISION, PRETORIA

For the Appellant:       L A VAN WYK

Instructed by:              LEGAL AID SA

Tell: 082 308 5567

email: LillianV@legal-aid.co.za

For Respondent:          Adv Wolmarans

Instructed by:              The Director of Public Prosecutions

pvorster@npa.gov.za Tel: 012 3516700 Ref: PA5/2019

Heard: 28 November 2019

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