SA HC | Discernment of a trial court not to be altered unless justified

South Africa High Court, Free State Division, Bloemfontein: A Division Bench of Mathebula and Chesiwe, JJ. dismissed the present appeal against convictions and sentences.

On 23-11-2012, the deceased and his friends arrived at Mahlomola’s Tavern, Welkom to have drinks but they were not allowed entry. After persuading the in-charge they bought beers. The moment they started to leave, an altercation erupted and the second appellant stabbed at the back of the deceased, Mokhele Thys Thebeladi. This led to the other two appellants also stabbing the deceased.

Counsel for the appellants, L. Tshabalala and P.P. Mile denied any involvement with the events leading to the death of the deceased. All the three had their own defenses; the first left the tavern before the fight started, the second saw him lying on the ground and the third neither participated nor saw anything.

The trial court (Regional Magistrate, Welkom) convicted all the appellants with murder under Section 51(2) of Act 105 of 1997 and sentenced to fifteen years imprisonment. The second appellant was convicted with a further charge of assault with intent to do grievous bodily harm and a further sentence of three years.

Aggrieved with both conviction and sentence the appellant appealed.

The Court observed that the findings of a trial court are credible and anyone even a Court of Appeal with a contrary opinion should support with sufficient reasons. S. v. Chabalala, 2003 (1) SACR 134 (SCA) a case based on ‘guilt to be proved beyond reasonable doubt’ was cited. It laid down that “The correct approach is to weigh up all elements which point towards the guilt of the accused against all those which are indicative of his innocence… to decide whether the balance weighs so heavily in favour of the State as to exclude reasonable doubt about the accused’s guilt.”

In addition, according to the post-mortem report, the deceased sustained multiple stab wounds, caused by the three appellants. The trial court took the right approach as stated in the case and concluded rightly that this was an attack. The trial court has not faulted in any way whatsoever. Therefore, the convictions and sentences are not to be altered.[Andile Cofa v. State, Case number: A132/2017, decided on 22-03-2019]

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