S v Tshosane
| Jurisdiction | South Africa |
| Judge | Southwood J |
| Judgment Date | 06 February 2009 |
| Docket Number | A306/2007 |
| Hearing Date | 04 February 2009 |
| Court | Transvaal Provincial Division |
| Citation | 2009 JDR 0078 (T) |
Southwood J:
On 10 June 1998 the appellant, and his co-accused, Lucas Kgotsatso Mokoena ('Mokoena'), respectively accused no 1 and accused no 2 in the court a quo, were each convicted in the Vereeniging Circuit Court (per J.C. Claassen J sitting with an assessor) of murder, contravening section 2 of Act 75 of 1969 (unlawful possession of a firearm) and contravening section 36 of Act 75 of 1969 (unlawful possession of ammunition). The court a quo sentenced the appellant and Mokoena each to 25 years imprisonment for the murder, 3 years imprisonment for the unlawful possession of the firearms and 2 years imprisonment
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Southwood J
for the unlawful possession of the ammunition: i.e. an effective sentence of 30 years imprisonment. With the leave of the court a quo, granted on 5 September 2006, the appellant appeals against both the convictions and the sentences.
On appeal, the appellant contends that the State failed to prove beyond a reasonable doubt that it was the appellant and Mokoena who shot and killed the deceased. With reference to S v Mafaladiso en Andere 2003 (1) SACR 583 (SCA) at 593e-594h, the appellant has highlighted the contradictions in the evidence of the two state witnesses, Mmbathu Phyllis Kolobe ('Ms Kolobe') and Michael Potswane Mofokeng ('Mofokeng'), and contends that because of the contradictions the appellant's version should have been accepted as reasonably possibly true. The appellant contends that if the convictions are confirmed the sentences should be ordered to run concurrently. He submits that the three counts arose out of the same incident and the sentences should have been ordered to be served concurrently to avoid the imposition of a disturbingly inappropriate sentence. The respondent supports the convictions but concedes that the convictions should have been taken as one for the purposes of sentence and submits that a sentence of 15 years imprisonment is appropriate.
It is common cause that at about 15h00 on Sunday 2 March 1997 and at the shebeen operated by the second state witness, Michael Mofokeng, two men shot and killed Leonard Tshepo Marvel Khabi
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Southwood J
('the deceased') and that he died on the scene from a bullet wound in the heart. It is also common cause that at the time of the murder, the deceased's girlfriend, Ms Kolobe, who was also the first state witness, was sitting at a table in the shebeen with the deceased. It is further common cause that the appellant and Mokoena were present in the shebeen, in the same room as the deceased and Kolobe, when the murder was committed.
The issue before the court a quo...
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