Durban — A bid to appeal against the sentencing and conviction of three men for murder, attempted murder and robbery with aggravating circumstances was dismissed in the Durban High Court.
The three, Philani Velemseni Khwanazi, Thabani Sithole, and Christopher Chili are each serving life terms for murder, 15 years for robbery and another 15 for attempted murder.
They were sentenced and convicted in 2014 on the charges arising from an attack on the Vulindlela Liquor Bar in Mtunzini in 2012.
The trio attacked the tavern where the owner, Mduduzi Innocent Nzimande was stabbed to death. His security guard and friend (Bonginkosi Gina) and tenant were shot twice in the chest.
They had pleaded guilty to the charges against them, but made no statements in amplifying their pleas, and instructed their defence to make a statement that they had alibis.
Judge Mohini Moodley in dismissing the appeal explained that the main issue for determination was whether or not the court was correct in holding that the identification of the trio as the assailants was reliable, finding that the state proved beyond reasonable doubt that the men committed the offences they were convicted of.
She said P Mkumbuzi of the Durban Justice Centre who represented the men in the appeal, submitted that Khwanazi had his face covered showing only his eyes and mouth and that since the scene was progressive there might not have been sufficient lighting for Gina to positively identify the men.
“He emphasised that because the assailants were armed, and Gina, in particular, was injured and in pain… Mr Mkumbuzi submitted that the court erred by finding that the appellants (the three men) were correctly identified.”
This was while senior State advocate Khatija Essack argued that the appeal be dismissed due to the State’s strong evidence, adding that the appellants acted in concert as a gang.
“The respondent (the State), represented by K Essack and in the heads of argument prepared by the prosecutor in the trial before the court, Mr D Paver, submitted that the appellants were properly and reliably identified by three of the witnesses, particularly as they were well known as customers of the tavern and specifically known to the witnesses… Further, the alibis of the appellants were tendered late and proved to be unsustainable or false…”
Judge Moodley also explained that it was trite that a court of appeal will not interfere with the findings of fact and credibility of the trial court unless it was apparent from the record that the court either materially misdirected itself or erred to the extent that its findings were vitiated.
“The alibis of the appellants were clearly fabricated and correctly rejected as being not reasonably possibly true. In the premises, I am unable to find that the learned judge erred or misdirected herself in her findings on the facts or on legal principles applied, and the appeal against the convictions must fail,” ordered Judge Moodley.
On the sentencing appeal, Judge Moodley said that she was satisfied that the judge who had sentenced the men exercised her discretion properly.
“She imposed sentences which are neither shockingly inappropriate nor excessive given the circumstances of the appellants and the seriousness of the offences they committed. This court is therefore not at liberty to interfere with the sentence imposed.”
Daily News