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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA22/2007

ANSILO NINDANE MACAUCAU Appellant

and

THE STATE Respondent

FULL BENCH APPEAL

HENDRICKS J; LANDMAN J; MAKHAFOLA AJ

DATE OF HEARING : 01 JUNE 2007

DATE OF JUDGMENT : 02 AUGUST 2007

COUNSEL FOR THE APPELLANT : ADV C J ZWIEGELAAR

COUNSEL FOR THE RESPONDENT : ADV H R MOLEFE

JUDGMENT

HENDRICKS J:

[A] Introduction:-

[1] The Appellant (accused no. 1 in the court a quo) was together with his wife (accused no. 2) charged with and convicted of one count of murder and two counts of assault with intent to do grievous bodily harm (“assault GBH”).

[2] On the murder charge, the Appellant was sentenced to seventeen (17) years imprisonment and on the two counts of assault GBH he was sentenced to eight (08) months imprisonment and ten (10) months imprisonment respectively. The sentences on the two counts of assault GBH were ordered to run concurrently with the sentence on the murder charge.

[3] The Appellant appeals, with leave of the court a quo, against the convictions as well as the sentences imposed on him.

[B] The Convictions:-

[4] The evidence on record can be succinctly summarised as follows:-

The undisputed evidence by the Appellant and accused no. 2 is that a burglary occurred at their house between the 26^th and 27^th September 2002 whereupon certain goods were stolen.

[5] The Appellant managed to apprehend a certain lady who volunteered information about the involvement of Kabelo Johnson Seanne (the deceased in the murder count), Lollypop Mathe (the complainant in count 2) and Innocentia Khunou (the complainant in count 3) as well as Lesedi Makofela.

[6] The Appellant handed this lady over to the police and also conveyed the information and the names of the other suspects to the police. Despite doing so, the Appellant decided to apprehend the suspects himself. He was joined in his endeavour by accused no. 2 and others.

[7] Lollypop Mathe (“Lollypop”) was the first to be apprehended. She was taken to Appellant’s house where she was assaulted by inter alia accused no. 2 with an electric cable or cord in the presence of the Appellant.

[8] She was then forced to accompany them to look for the other suspects. They proceeded to the house of Lesedi Makofela (“Lesedi”), a friend to the deceased. Lesedi and his mother Nankie Mafokela (“Nankie”) boarded one of the two motor vehicles in an effort to locate the deceased. After the deceased was found, Lesedi and Nankie were taken back to their house.

[9] Whilst the deceased and Lollypop were present in the motor vehicle, Innocentia Khunou (“Innocentia”) was collected. Various assaults were perpetrated on these three persons, which ultimately led to the death of the deceased.

[10] In evaluating the evidence tendered the trial court made, amongst others, credibility findings. Lollypop was found to be an unsatisfactory witness and her evidence was therefore only accepted in as far as credible corroboration for it could be found. Innocentia, on the other hand, was found to be a credible and reliable witness.

[11] As a result of the credibility finding, Lollypop’s evidence needs to be carefully examined and thoroughly compared with the evidence of the other state witnesses in order to determine whether there is indeed credible corroboration for it. Upon careful consideration of the evidence of Innocentia, the following is found to be corroborative of the evidence of Lollypop:-

• the fact that when Innocentia was collected by the Appellant and his friend Justice, Lollypop and the deceased were already inside the motor vehicle;

• Lollypop was already assaulted and was bleeding from her mouth;

• the deceased was also already assaulted by then, and he was tied up;

• they were taken to the bush where Lollypop and the deceased were assaulted;

• the Appellant and one of his companions assaulted the deceased by among others kicking or trampling upon him;

• Appellant hit Innocentia with an electric cable or cord;

• Appellant was kicking the deceased on his ribs and hitting him with an electric cable or cord.

[12] Lesedi and Nankie corroborate the version of Lollypop that they were present when Appellant and the others went in search of the deceased. Their version differs from that of Lollypop with regard to the presence of accused no. 2 at that stage. According to Lollypop, accused no. 2 remained at her house whilst they testified that accused no. 2 was in one of the motor vehicles (the sedan). Their version that accused no. 2 was present, coincides with the evidence of Innocentia and was therefore accepted by the trial court.

[13] Lesedi’s evidence corroborates that of Lollypop in that she was in the bakkie and was swollen and bleeding from the mouth. Nankie did not go to the bakkie and that explains why she did not see Lollypop or even know her.

[14] The problem areas in Lollypop’s evidence relate to:-

• the iron rod that was used to assault the deceased on his head;

• the fact that accused no. 2 (on her version) remained at the house when they went to look for the deceased and during the assaults at the bush;

• the fact that the deceased was hit with a panga;

• the open wound on her head.

[15] Lollypop is a single witness with regard to the iron rod that was used to assault the deceased. Innocentia does not mention the presence of an iron rod nor that it was used to assault the deceased.

[16] However, in his evidence, Dr. Abba, who performed the post-mortem examination on the body of the deceased opined that a weapon was used to assault the deceased, which caused the fractures on both lower forearms of the deceased. The possibility that the deceased was assaulted with either the panga or an iron rod (or both) can therefore not be ruled out.

[17] The panga is depicted on one of the photographs which were handed in as an exhibit. Innocentia also mentioned the presence of a panga though she does not categorically state that the deceased was hit with it.

[18] Neither Innocentia nor Lesedi made mention of the fact that Lollypop had an open wound on her head when they saw her. Her evidence in this regard is uncorroborated and must be rejected.

[19] The trial court made the following finding:-

“I am satisfied that accused 1 assaulted Ms Mathe with an electric cable and a panga, as Ms Khunou testified, with the intent to do her grievous bodily harm.”

[20] Innocentia testified that Appellant was armed with a panga and an electric cable at the bush. After Lollypop and the deceased were instructed to alight from the motor vehicle

“they then hit Lollypop and the deceased, KB”.

[21] Though Innocentia did not specifically mention that Appellant hit Lollypop with the panga and the electric cable, it lends credence to the version of Lollypop that

“they (including herself) were severely hit at the bush”.

[22] Lollypop testified that she was hit with ropes, a long iron rod and a panga. She testified that it was the child of the Appellant that hit her by then.

[23] It is clear from the evidence by the State that the Appellant and his companions acted in concert with one another in the commission of these offences. They shared a common goal. Where common purpose is found to be present it is not necessary to look at the acts of each of the participants individually. The act of one participant is imputed on the other.

[24] The finding by the trial court that Innocentia testified that the Appellant assaulted Lollypop with a panga and an electric cable is not entirely correct, because she did not testify to that effect. However, the conclusion reached by the trial court that Lollypop was indeed assaulted with a panga and an electric cable is correct on the basis of the common purpose principle.

[25] The evidence of Lollypop that Innocentia was assaulted by the Appellant at his house was what she was told by Innocentia. However, Innocentia herself testified that the Appellant assaulted her with an electric cable four times on her thigh, though according to her it happened at the bush and not at Appellant’s house.

[26] The trial court correctly found that the Appellant did assault Innocentia four times with an electric cable. Even if the hearsay evidence of Lollypop is ignored, the accepted credible evidence of Innocentia is the basis for such finding. The conclusion reached by the trial court is therefore correct.

[27] No medical evidence has been adduced to corroborate and substantiate the evidence of Innocentia about the assaults perpetrated upon her. It does however not mean that she was not assaulted. Medical evidence need not be presented in each and every case before a finding that an assault had been perpetrated can be made.

[28] The trial court was aware of the shortcomings in the evidence of Innocentia but despite that, made a favourable credibility finding which cannot be said to be incorrect. The trial court was satisfied that Innocentia told the truth. The approach adopted by the trial court is indeed correct.

[29] There are differences in the evidence of Lollypop and Innocentia as already alluded to. Sight should not be lost of the fact that Lollypop’s evidence is only accepted in as far as it is corroborated. It is not that her evidence was rejected in toto – only the uncorroborated parts thereof were rejected.

[30] Having regard to the manner in which the assaults were perpetrated on the accused, the multiplicity and seriousness of the injuries on the chest wall of the deceased, the fractured lower forearms which caused the paleness of the heart due to the shock and the prolonged and persistent brutal assaults on the deceased, the trial court was correct in finding that the Appellant must have had the intention to kill the deceased in the form of dolus eventualis. In my view, the Appellant must have foreseen and in fact did foresee that death may ensue as a result of the assaults and he acted recklessly with regard thereto.

[31] That is also the reason why he took the deceased to the hospital because he realised in what state or condition the deceased was. The fact that he took the deceased to the hospital after the brutal assaults does not negate the intention he had whilst he assaulted the deceased.

[32] In my view, this is not a case where the Appellant acted negligently with regard to the ensuing death of the deceased. The trial court, correctly in my view, convicted the Appellant on all three counts. The appeal against the convictions must therefore fail.

[C] Sentence:-

[33] It is trite law that sentence is in the discretion of the trial court. A court of appeal will not lightly interfere with the discretion of the trial court unless it is found that the discretion was not judicially exercised or that the sentence imposed is shockingly severe, inappropriate or even disproportionate to the crimes committed.

[34] In granting leave to appeal the trial court said that although the sentence of seventeen (17) years imprisonment for murder (count 1) does not induce a sense of shock, it may well be that a court of appeal might find that there is a vast difference between the sentence imposed and that which the court of appeal would have imposed if it was seized with the matter during trial.

[35] I am of the view that, having regard to all the personal circumstances of the Appellant, the fact that he was a victim of a burglary and the other facts of this case, the sentence of seventeen (17) years imprisonment on count 1 (murder) is significantly different from what I would have imposed.

[36] In my view an effective term of twelve (12) years imprisonment will be an appropriate sentence under the circumstances of this case.

[37] The appeal against the sentence on count 1 (murder) must be upheld.

[38] In my view, the sentences on counts 2 and 3 are appropriate and should not be interfered with. There is also no misdirection committed by the trial court. The appeal against these two sentences (counts 2 and 3) should therefore fail.

[D] Conclusion:-

[39] Consequently, I make the following order:-

[i] The appeal against the convictions is dismissed.

[ii] The appeal against the sentence on count 1 (murder) succeeds. The sentence of seventeen (17) years imprisonment is set aside and is substituted with the following sentence:-

“Twelve (12) years imprisonment.”

[iii] The appeal against the sentences on counts 2 and 3 is dismissed and it is ordered that the sentences on these two counts should run concurrently with the sentence on count 1 (murder).

R D HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

A A LANDMAN

JUDGE OF THE HIGH COURT

I agree.

KHAMI MAKHAFOLA

ACTING JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPELLANT: HERMAN SCHOLTZ ATTORNEYS

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