THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable
Case No: 97/2015

In the matter between:

THOMAS RECKSON MUKONA                                    APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Mukona v The State (97/15) [2015] ZASCA 128 (28
September 2015)

Coram:

Leach, Willis and Mathopo JJA

Heard:

28 August 2015

Delivered:
28 September 2015

Summary: Criminal appeal against conviction and sentence ─ appellant
convicted of murder, arson and three counts of attempted murder ─
failure by appellant to refute State case ─ effect of failure by the
appellant to refute the State’s case ─ appellant also failing to give
evidence in mitigation of sentence ─ conviction upheld ─ sentences
ordered to run concurrently.

___________________________________________________________

ORDER

On appeal from: The Limpopo High Court, Thohoyandou (Hetisani J
sitting as court of first instance):

1. The appeal against convictions is dismissed.
2. The appeal against sentence in respect of counts 1, 2, 3 and 4 is
dismissed.
3. The appeal against the sentence in respect of count 5 is upheld. The
sentence imposed is set aside and replaced with the sentence of 15 years
imprisonment.
4. The sentences imposed in respect of counts 2, 3, 4 and 5 are ordered to
run concurrently with the sentence imposed in respect of count 1. The
total effective sentence is thus life imprisonment.

JUDGMENT

Mathopo JA (Leach and Willis JJA concurring):

[1] In October 2002, the appellant, Mr Mukona, was convicted of
murder, three counts of attempted murder and one count of arson in what
was then known as the Venda High Court (Hetisani J)1 on 22 October
2002. Having found that there were no substantial and compelling
circumstances justifying a deviation from the minimum sentence
prescribed under s 51(1) of the Criminal Law Amendment Act 105 of

1 That court was subsequently renamed the Limpopo High Court, Thohoyandou after 1 March 2009,
and it was again renamed the Limpopo Local Division from 23 August 2013. See Renaming of High
Courts 2014 (3) SA 319.

1997 (the Act), the trial court sentenced him to life imprisonment in
respect of the murder of his son (Moboya); ten years imprisonment in
respect of the arson count; ten years imprisonment on each of the
attempted murders of Mr Freddy Thagwana (Mr Thagwana) and his
former wife, Ms Reneth Mulondo (Ms Mulondo); and, lastly, 35 years
imprisonment in respect of the attempted murder of his daughter
Mulanda. The sentences in respect of the three counts of attempted
murder (counts 3, 4 and 5) were ordered to run concurrently with the
sentence in respect of murder (count 1). In the result, the total effective
sentence imposed on the appellant was life imprisonment. Kganyago AJ
who dealt with the application for leave to appeal against convictions and
sentences, granted leave to appeal to this court on 13 June 2012.

[2] The undisputed evidence of the State is that the appellant was
unhappy that his former wife, Ms Mulondo, had formed a relationship
with Mr Thagwana and that they were living together as husband and
wife. The evidence of Ms Mulondo is that the appellant tried on several
occasions to win her back but she declined his advances. This incensed
the appellant to the extent that he tried to influence Mr Thagwana to
break up with Ms Mulondo by suggesting that Ms Mulondo was only
interested in Mr Thagwana because of his money. There is also evidence
that the appellant visited Mr Thagwana’s workplace twice and tried to
influence him to terminate the relationship with Ms Mulondo.

[3] When all these attempts failed, jealousy got the better of the
appellant as the facts of this case will illustrate. At midnight on 20
October 2001 Mr Thagwana and Ms Mulondo were woken from their
sleep to find their house on fire. They tried to extinguish the blaze but to
no avail, and were only able to escape being burnt to death by escaping

from a window. Mr Thagwana sustained burns on the shoulders and Ms
Mulondo suffered burns on the arm and both required medical treatment
for their burns. After reporting the incident at the police station, they went
home and then noticed an open two litre petrol container and a small blue
shawl lying next to the entrance of the door. The shawl was folded and
soaked in petrol and had clearly been used to start the fire. Ms Mulondo
recognised the shawl as belonging to her daughter, Mulanda, who
together with her son, Moboya, was living with the appellant at the time.
She informed the police about her findings. According to her evidence,
this shawl was given to Mulanda by one of the appellant’s girlfriends, Ms
Elisa Netshiphugana (Ms Netshiphugana). Even though Ms Mulondo
could not explain with certainty how she identified the shawl, her
evidence that it belonged to her daughter and that the children had never
visited Mr Thagwana’s homestead was not challenged. The tenor of her
evidence is that the appellant must have brought the shawl to the scene.

[4] Ms Netshiphugana, a former lover of the appellant, testified that
Mulanda had stayed with her for a long period of time and that she gave
the shawl to her to carry her toys. When she was shown the photographs
of the shawl in court, she without hesitation stated that it was indeed the
same shawl that she had given Mulanda. In cross-examination she readily
conceded that she could not identify any distinguishing features of the
shawl, but was adamant that this was the shawl which she had given to
Mulanda. Ms Netshiphugana’s evidence in essence corroborated to a
large extent the evidence of Ms Mulondo.

[5] As a result of this shawl, Inspector Makungo and his colleague
Nemabolo went to the appellant’s house, travelling in a marked police
vehicle. After asking for directions to the appellant’s home they

eventually saw him coming out his house. They called him but he ignored
them and ran away towards and disappeared into the bush. Nemabolo
knew the appellant very well. It was broad daylight, visibility was good,
and there is no possibility of mistaken identity.

[6] At the time the police had a suspect in another case in their vehicle.
They took this person to the police station and then returned to the
appellant’s home. In a rondavel, they found the appellant’s two children,
both of whom had been chopped in the head with an axe. The son,
Moboya was dead but Mulanda, although grievously injured, was alive
and was moving her hand. Paramedics and a fingerprint expert and
photographer were also called to the scene.

[7] Nelson Nematshema, a police officer, photographer and fingerprint
expert testified that, at the scene of the arson, he took photographs of the
shawl as well as a two litre container which was containing petrol. At the
appellant’s homestead she found two children one deceased and the other
alive. Next to the children was an axe. He uplifted the fingerprints from
the left-hand side of the handle of the axe and the fingerprints were later
found to match that of the appellant.

[8] Very little, if any, is in dispute between the State and the defence
with regard to the facts and circumstances surrounding the burning down
of Mr Thagwana’s homestead. More especially is this the case because
the appellant elected not to testify and thus did not materially dispute the
State’s case.

[9] The State’s case in respect of the arson and attempted murders of
Mr Thagwana and Ms Mulondo rested on the inferences to be drawn from

the evidence of the two complainants as well as that of Ms Netshiphugana
and the police officers who attended the scene of the arson, where the
shawl was found. The uncontroverted evidence of Mr Thagwana and Ms
Mulondo is that the children of the latter had never visited the former’s
homestead. Indeed, the appellant refused them permission to visit their
mother at Mr Thagwana’s homestead. Ms Netshiphugana, the appellant’s
former girlfriend testified that she gave the shawl to the appellant’s
daughter. She gave a general description of the shawl but in essence she
was adamant that the shawl found at Mr Thagwana’s homestead, was
identical to the one she had given to the appellant’s child. Despite this,
the appellant elected not to take the stand and refute the allegations.

[10] We were urged to accept that, once the State witnesses conceded
that they could not say with certainty that the shawl found at the scene
was the same shawl as the one belonging to Mulanda, the inference as to
the guilt of the appellant could not be drawn and that there was no case
for the appellant to answer. When assessing circumstantial evidence, a
court needs, however, to be careful not to approach such evidence on a
piecemeal basis but to consider the evidence in its totality. (See S v Reddy
1996 (2) SACR (A) at 8C.) In this regard the two cardinal rules of logic
in the often quoted the dictum of R v Blom2 must be borne in mind. In the
present matter, each separate piece of evidence linking the appellant to
the burning down of Mr Thagwana’s homestead viewed on its own and
analysed in isolation may not be sufficient for a conviction. However,
approaching the evidence holistically, as one must, the totality of the
evidence against the appellant that pointed towards him being the person

2 R v Blom 1939 AD 188 at 202-203.

responsible. (See S v Van der Meyden3 and S v Trainor.4)

[11] All that evidence called for an answer yet the appellant chose to
counter it with nothing preferring to shun the witness stand. The choice to
remain silent in the face of the weight of evidence implicating him in a
criminal conduct is suggestive of the fact that he had no answer for it.
The cumulative effect of the circumstantial evidence against the
appellant, coupled with his failure to testify, leads to the inescapable
inference being drawn that he was the person who set the homestead of
Mr Thagwana on fire. Any lingering doubt about this is dispelled by his
reaction of fleeing from the police when they wanted to talk to him
immediately after the event.

[12] In setting a fire of this nature, the inference is further inescapable
that the appellant’s sole purpose was to cause the death of those in the
house. He must have realised at that stage that prospects of reconciling
with Ms Mulondo were non-existent and for this reason he decided to try
and kill her and the new man in her life. Accordingly there is no merit in
the appeal against convictions for arson and attempted murders of Mr
Thagwana and Ms Mulondo.

[13] The evidence implicating the appellant to the murder and attempted
murder of his children is straightforward. An important fact which weighs
heavily against him is that shortly before the children were discovered he
was seen running away from his homestead by two police officers. When
they tried to chase him he disappeared into the bush or mountain. The
police officers later went to his house where they found the children in a

3 S v Van der Meyden 1999 (1) SACR 447 (W) at 449h-450b.
4 S V Trainor 2003 (1) SACR 35 (SCA) paras 8 and 9.

bloodied state, already dead at that time and next to them were an axe and
a brown rope. The other child was severely assaulted and was bleeding.
There was blood all over the floor and no one else in the house. The
fingerprints uplifted from the axe matched those of the appellant. Sight
must not be lost of the fact that the children were living with the
appellant. No one save for the appellant was seen leaving the homestead.
Despite all this strongly incriminating evidence, the appellant elected not
to testify to explain why he absconded. His version put in cross-
examination that he had left early for work that day cannot be accepted in
the light of the direct and undisputed evidence of the two police officers
who saw him running away from them at 10h30 in the morning. It also
does not explain why, on his own version put in cross-examination, he
would have left his two young children unattended for a month before he
was arrested. The submission by his counsel that the children could have
been attacked by an intruder was rightly rejected by the trial court. All
these factors ineluctably point towards the guilt of the appellant. The only
inference that could be drawn is that he was responsible for the murder
and attempted murder of his children. It follows that the appeal against
convictions must fail.

[14] In this court the sentence was attacked on two grounds. First, that
the court below applied the provisions of the Act without prior warning to
the appellant. Secondly, that the sentence imposed by the trial court was
shockingly inappropriate because the trial court relied on brief personal
information before sentencing the appellant and failed to direct that a
presentencing report be obtained. It was argued that, because of the
paucity of the information the trial court was in no position to properly
exercise its discretion in determining the appropriate sentence, and

misdirected itself in failing to call for more facts, including pre-
sentencing reports.

[15] There is no merit in this contention. The appellant’s personal
circumstances were adduced from the bar by his counsel as follows: (a)
He is 44 years old with four children, one of whom he has murdered; (b)
He is employed earning a salary of R90,00 per day. He was not a first
offender. He has three relevant previous convictions, one for murder
committed during 1991 (for which he was sentenced to 14 years’
imprisonment, four years of which were conditionally suspended) and
two for assault with intent to do grievous bodily harm committed during
1990 and 2001. All these offences indicate a propensity for violence. The
appellant was represented throughout the trial. The facts which were
submitted were those which counsel for the appellant deemed sufficient
to assist the court in mitigation. There is no evidence to suggest that other
relevant facts were suppressed by him or deliberately omitted. All that
was submitted adequately described the appellant personal circumstances
and there is no suggestion that more could have been added or rather that
he was denied an opportunity to do so. In my view there is no basis to
attack the trial court’s approach and conclusions on this ground.

[16] Regarding the trial court’s alleged failure to forewarn the appellant
of the applicability of the minimum sentencing provisions of the Act,
counsel for the state rightly contended that the appellant was legally
represented and he must have been aware of the provisions of the Act.
The reason is that, during the sentencing stage, his counsel alluded to the
provisions of the Act. In my view, there is nothing to show that the

appellant was prejudiced by the State’s failure to draw attention in the
charge sheet to the minimum sentences he faced. (See S v Ndlovu.5)

[17] In this court counsel for the appellant conceded, correctly in my
view, that the provisions of the Act are applicable. His argument that the
trial court should have found that substantial and compelling
circumstances existed is not supported by any evidence due to the
appellant’s reluctance to adduce any such evidence. As a result of that
approach, the trial judge had no option but to apply the provisions of the
Act and did not deviate therefrom for flimsy reasons. (See S v Malgas6
and S v Matyityi.7) The facts of the case in any event called out for the
imposition of life imprisonment on the charge of murder.

[18] There is no doubt that the offences were serious to the extreme.
What is aggravating is the fact that the arson, murder and attempted
murders were committed in the sanctity of the complainants’ homes. The
children had looked to the appellant for protection and guidance. Instead
he abused his position of trust, and killed and injured them. This must
have been emotional, traumatic and devastating for the young defenceless
children to have had to suffer at the hands of their father. As a result of
the assault, Mulanda has been semi-paralysed and been left mentally
impaired. She is probably fortunate to have survived but will forever live
with the fact that her condition was caused by her father. The appellant
showed no remorse for his actions and persisted on his innocence and did
not testify or adduce evidence aimed at demonstrating his remorse or
contrition.

5 S v Ndlovu 2003 (1) SACR 331 (SCA).
6 S v Malgas 2001 (2) SA 1222 (SCA).
7 S v Matyitya 2011 (1) SACR 40 (SCA).

[19] Even though the trial court ordered the sentences in count 1, 2, 3, 4
and 5 to run concurrently with the sentence imposed in count 1 (life
imprisonment), no explanation was given why a sentence of 35 years was
imposed in respect of the attempted murder of the appellant’s child
Mulanda. I am satisfied that although the appellant deserves a lengthy
period of imprisonment, 35 years imprisonment is totally out of
proportion to the nature of the offence, the interest of society and fails to
take into account the personal circumstances of the appellant. In my view
a sentence of 15 years imprisonment would give recognition to the
justifiable abhorrence invoked by the callousness of the deed whilst not
destroying the appellant on the altar of general deterrence. The appeal
against sentence therefore succeeds to this limited extent only.

[20] I therefore make the following order:
1. The appeal against convictions is dismissed.
2. The appeal against sentence in respect of counts 1, 2, 3 and 4 is
dismissed.
3. The appeal against the sentence in respect of count 5 is upheld. The
sentence imposed is set aside and replaced with the sentence of 15 years
imprisonment.
4. The sentences imposed in respect of counts 2, 3, 4 and 5 are ordered to
run concurrently with the sentence imposed in respect of count 1. The
total effective sentence is thus life imprisonment.

______________
R S Mathopo

Judge of Appeal

Appearances

For Appellant:

A L Thomu
Instructed by:
Bloemfontein Justice Centre, Bloemfontein

For Respondent:

R J Makhera

Instructed by:

Director of Public Prosecutions, Thohoyandou

Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

28 September 2015

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

Mukona v The State (97/15) [2015] ZASCA 128 (28 September 2015)

The Supreme Court of Appeal (SCA) today handed down judgment in a criminal appeal in which it
upheld the appellant’s conviction for murder, arson and three counts of attempted murder due to his
failure to refute the State’s case.

The State presented evidence during the trial was that the appellant, Mr Mukona, was unhappy that
his former wife, Ms Mulondo, had formed a relationship with Mr Thagwana and that they were living
together as husband and wife. He had tried on several occasions to win Ms Mulondo back but she
declined his advances. When all these attempts failed, jealousy got the better of him and at midnight
on 20 October 2001, Mr Thagwana and Ms Mulondo were woken from their sleep to find their house
on fire. Mr Thagwana and Ms Mulondo suffered burns from the fire. They noticed an open two litre
petrol container and a small blue shawl lying next to the entrance of the house, soaked in petrol and
had been used to start the fire. Ms Mulondo recognised the shawl as belonging to her daughter,
Mulanda, who together with her son was living with the appellant at the time. She reported this to the
police. When the police went to the appellant’s house, they saw him coming out, and when they
called him he ran away and disappeared into the bush. One of them knew the appellant very well and
it was broad daylight and thus positively identified him. In the appellant’s home, they found the
appellant’s two children, both of whom had been hewn in the head with an axe. The son was dead
but Mulanda the daughter, although grievously injured, was alive and was moving her hand.
Fingerprints taken from the axe matched those of the appellant.

Despite this evidence, the appellant elected not to testify and thus did not materially dispute the
State’s case. Resultantly, the trial court convicted the appellant based on the evidence and inferences
drawn from it. The appellant further failed to testify in mitigation of sentence and the aforementioned
sentences were resultantly given. The court a quo found that there were no substantial and
compelling circumstances justifying a deviation from the prescribed minimum sentences under s
51(1) of the Criminal Law Amendment Act 105 of 1997 (the Act). It sentenced him to life
imprisonment in respect of the murder of his minor son; ten years’ imprisonment for arson; ten years’
imprisonment on each of the two counts of the attempted murder of his former wife Ms Mulondo and
of Mr Thagwana, the subsequent husband of Ms Mulondo. And, lastly, the court sentences the
appellant to 35 years’ imprisonment in respect of the attempted murder of his daughter Mulanda. The

sentences in respect of the three counts of attempted murder (counts 3, 4 and 5) were ordered to run
concurrently with the sentence in respect of murder (count 1). The total effective sentence imposed
by the court a quo on the appellant was life imprisonment. The appellant was granted leave to appeal
to the SCA by the court a quo against the convictions and sentences.

On appeal, the conviction was challenged on the basis of the inferences drawn by the trial court;
while the sentences were attacked on two grounds. First, that the court below applied the provisions
of the Act without prior warning to the appellant. Secondly, that the sentence imposed by the trial
court was shockingly inappropriate because the trial court relied on brief personal information before
sentencing the appellant and failed to direct that a presentencing report be obtained.

The SCA held in respect of the conviction that when assessing circumstantial evidence, courts need
to be careful not to approach such evidence on a piecemeal basis, but to consider it in its totality. In
this regard the SCA held that rules of logic must be borne in mind and it found that viewed holistically,
the evidence pointed toward him being perpetrator of the crimes, and it called for him to explain his
version, which he failed to do and leading to the negative inferences drawn against him.

The SCA held in respect of the sentences that:
(a) the appellant was represented and must have been aware of the provisions of the Act as his
counsel alluded to the provisions during sentencing and that nothing showed that the appellant
was prejudiced by the State’s failure to draw attention in the charge sheet to the minimum
sentences he faced.
(b) The appellant’s contention that there were substantial and compelling circumstances existed is not
supported by any evidence due to the appellant’s reluctance to adduce evidence and that in the
result the trial court was obliged to impose the minimum sentences.

The SCA found that no explanation was given why the trial court imposed a sentence of 35 years’
imprisonment in respect of appellant’s attempted murder of his daughter and that it was out of
proportion to the nature of the offence. The court found that a sentence of 15 years’ imprisonment
would be appropriate.

The SCA accordingly dismissed the appeal against the conviction and sentence of the appellant,
upheld the appeal against sentence in respect of the attempted murder of the appellant’s daughter
and ordered that the sentences run concurrently.

--- ends ---