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[2015] ZASCA 41
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Seemela v S (20508/2014) [2015] ZASCA 41; 2016 (2) SACR 125 (SCA) (26 March 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 20508/2014
Reportable
In
the matter between:
JIMMY
SEBONE
SEEMELA
..........................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral
citation:
Jimmy Sebone Seemela v The
State
(20508/14)
[2015] ZASCA 41
(26
March 2015)
Bench:
Ponnan, Maya, Mhlantla and Zondi JJA
and Meyer AJA
Heard:
16 March 2015
Delivered:
26 March 2015
Summary
:
Evidence – s 3(1)
(c)
– Law of Evidence Act 45 of 1988 – admissibility of
hearsay evidence – murder – legal causation.
ORDER
On
appeal from
: North Gauteng High Court,
Pretoria (Claassen J, sitting as court of first instance):
The
appeal succeeds in part and the order of the court below is set aside
and replaced with the following:
‘
(a)
The appeal is upheld to the following extent:
(i)
The conviction of the appellant on count 1,
the murder of Jabu Heckson Mathebe, and the sentence of life
imprisonment imposed pursuant
to that conviction are set aside.
(ii)
The conviction of the appellant on count 2, the murder of Maggie
Rapao, and the sentence of life imprisonment
imposed pursuant to that conviction are set aside and replaced with
the following:
‘
On
count 2, the accused is convicted of attempted murder and sentenced
to imprisonment for a term of twelve years’.
(iii)
The appeal in respect of count 3, the unlawful possession of a
firearm, and count 4, the unlawful possession of ammunition,
in each
instance in contravention of the Arms and Ammunition Act 75 of 1969,
and the sentences of imprisonment for terms of 5 and
3 years imposed
respectively pursuant to those convictions, is dismissed.
(iv)
The sentences imposed on counts 3 and 4 are ordered to run
concurrently with that imposed on count 2.’
JUDGMENT
Ponnan
JA (Maya, Mhlantla and Zondi JJA and Meyer AJA concurring):
[1]
The appellant, Jimmy Sebone Seemela, was indicted before the North
Gauteng High Court (Claassen J, sitting on circuit at Polokwane),
on
two charges of murder, one of assault with intent to do grievous
bodily harm and one each of being in unlawful possession of
a firearm
and ammunition in contravention of the Arms and Ammunition Act 75 of
1969. He was acquitted on the assault and, despite
his denial that he
was the perpetrator, convicted on the remaining charges. He was
sentenced on each of the murder charges to life
imprisonment and to
imprisonment for terms of five and three years respectively in
respect of the unlawful possession of a firearm
and ammunition. His
appeal to the North Gauteng High Court, Pretoria (per Ledwaba J,
Makgoba J and Bam AJ concurring) against both
conviction and sentence
having failed, the further appeal is with the special leave of this
court.
[2]
Much in this matter remains unexplained and this is perhaps an object
lesson in how litigation, in particular criminal trials,
should not
be conducted. All of the offences were alleged by the State to have
been committed on 24 February 1998 in Makgofe Village
in the district
of Seshego. However, the record is silent as to why the trial only
commenced some 12 years later on 26 May 2010.
In the interim, several
crucial state witnesses died.
[3]
It is undisputed that the appellant, and Ms Maggie Rapao, the
deceased on count 2, who was approximately 20 years his junior,
had
been involved in a relationship. According to the State, that
relationship ended in 1997 when the appellant stabbed Ms Rapao
with
an okapi knife after learning that she had become involved in a
relationship with Mr Jabu Heckson Mathebe (the deceased on
count 1).
As a result of that stabbing, the appellant was charged with the
assault of Ms Rapao. On 24 February 1998 Ms Rapao testified
against
the appellant at the Seshego Magistrates’ Court in support of
that charge. At approximately 6 pm that very evening,
so the State
alleges, Mr Mathebe, a taxi driver, was busy offloading passengers
when he was approached by the appellant, who shot
him once in his
back whilst he was seated in the driver’s seat of his taxi.
After the shooting of Mr Mathebe the appellant
called on the home of
Ms Rapao. In that regard the indictment reads:
‘
2.2
The deceased was standing in front of her house and when he
approached her, she ran into the house. He shot at her, but missed.
He succeeded in forcing open the door which she had closed. When she
fled he followed her and shot at her again and succeeded in
shooting
her in the back.
3.1
The accused also went into the room where the latter deceased’s
father, the complainant in count 3, was and hit him with
the firearm
on his head and hand.
3.2
The complainant grabbed an ashtray and assaulted the accused
therewith. The firearm fell down and the accused ran away.’
[4]
After having been shot, Mr Mathebe was admitted to the Seshego
Hospital. He was later transferred to the Pietersburg Provincial
Hospital. On 12 March 1998 Mr Mathebe was discharged from the latter
hospital and admitted to the Baragwanath Hospital, where he
died on
16 May 1998. The medical records of Ms Rapao reveal that she was
admitted to the Pietersburg Provincial Hospital after
the shooting,
where she was initially treated as an in-patient until her discharge
on the 1
st
June of that year. She thereafter continued to visit the hospital
until 4 August, which is her last documented treatment as an
out-patient. She was re-admitted on 10 November 1998 and died some 10
months after the shooting on the 17
th
of that month.
[5]
The only witness called by the State in respect of count 1, the
murder of Mr Mathebe, was Mr Lediwana Shadung. He testified:
‘
Even
though it is quite a long time ago I will start on that day, the date
mentioned on 24 February 1998 I was on the day in question
from town
on my way to Motuong. I arrived in Bloodriver and found Sebone there
as a person who was waiting for a taxi.
Sebone
you are referring to the accused? --- Yes.
.
. .
I
then picked him up, up until Motuong, that is where our routes end.
Did
you talk to one another the minute he boarded into your taxi? --- He
greeted me and sat down.
.
. .
‘
He
alighted from the taxi at Motuong and then what happened? --- Yes,
that is the spot where . . . the taxis ends, everybody
alights
there. I then made a U-turn. I came back to town. As I was busy
leaving after having made a U-turn there was another vehicle
which
was approaching coming to drop people . . . (intervenes)
You
are referring to another taxi? --- Yes.
Who
was the driver? --- Jabu.
That
would be the deceased, the Jabu Mathebe, the deceased in count 1? ---
Yes.
Yes.
--- After having left the spot having driven or travelled for quite
some time, a number of metres I heard a gunshot.
Yes.
--- I looked into my rear view mirror, I saw Jabu’s vehicle
crossing the road slowly. I stopped.
Did
you drive back? --- Yes, I stopped and made a U-turn, I went back.
You
arrived there, what happened? --- I found Jabu seated between the two
seats.
Yes.
--- Busy screaming.
Did
you talk to him? --- I was trying to talk to him, but he was not
talking, he was just screaming.
Yes
okay, then what happened? --- Somebody else, another guy came
running.
Who
is that? --- I have forgotten his name.
Okay.
--- It is a long time ago. The person arrived there and said lets
take him to the hospital, he had been shot at.
Yes.
--- I just got into Jabu’s motor vehicle, reversed and rushed
him to the hospital.
COURT
:
Ja.
MR
MUDAU
: Did you see the accused
when you drove back to the scene? --- No.’
[6]
Mr Kleinboy Rapao, the brother of Ms Rapao, was the only eye witness
in respect of the remaining counts. Although aged 27 at
the time of
the trial, he was only 15 when his sister was shot. He testified:
‘
Who
were you with on that day at the particular time? --- I was in the
company of my mother, Mmalehu Sarah Rapao who unfortunately
passed
away in the meantime as well as the deceased. One Mogale David was
also present, but he also unfortunately passed away.
Do
you perhaps still remember around what time of the day did the
incident took place? If you do not, it is okay. --- It was, it
happened at night, but I cannot recall the time.
.
. .
On
the night in question we were seated outside. It was just after we
had our supper. As we were seated there I heard a gunshot.
Immediately after hearing that gunshot we all jumped and ran into the
house. I then saw the accused coming into the house shooting
my
sister three times. (
INTERPRETER
: the witness is showing on
her body).
COURT
:
On the right chest. When he came into the house you say you saw the
accused shooting your sister? --- Three times on her
body as
indicated.
Right
side of torso. Ja? --- I succeeded in pushing the door open, got out
of the house and started shouting for help, calling for
help.
People
came to the scene and helped. That is what happened.
Can
I just understand, you first heard a shot, you all jumped up and went
inside and then you saw the accused shooting your sister
three times,
is that correct? --- Yes.
.
. .
After
the arrival of the community they were the ones who came to help,
that is the community, my mother also succeeded in coming
out of the
house. She had a struggle with the accused, that is my mother up
until she succeeded in taking the firearm from him.
Okay.
--- Mr Mogale also tried to help. During that he hit the accused with
an ashtray.
COURT
:
Ja.
MR
MUDAU
: Where was the accused at that
time? --- If I remember well he tried to get into the house in which
Mr Mogale was, that is at that
stage where Mr Mogale hit him with
that ashtray.
How
did this accused leave the scene of the crime? --- In an ambulance.
What
was wrong with him? --- Because the community arrived after having
been called and they were the ones who assaulted him, injured
him
that is why he was removed in an ambulance.’
[7]
For the rest, the State case rested on hearsay evidence adduced in
terms of s 3 (1)
(c)
of the Law of Evidence Amendment Act 45 of
1988 (the Act). Counsel for the State had applied, during the course
of the evidence
of the investigating officer, Warrant Officer
Matlala, for various statements to be received into evidence in terms
of that section.
In that regard the record reads:
‘
MR
MUDAU
: Perhaps before he, before
he even takes the oath there will be an application by the state
during the testimony of this
witness to bring an application for
acceptance of hearsay evidence.
COURT
:
To tender hearsay evidence?
MR
MUDAU
: Yes, with regard to the
statement that he took from the deceased in count 1 and the deceased
in count 2 and with regard
to the statement that he also took from
the mother to the deceased in count 2 and also with regard to the
statement that he took
from Mr David Mogale, he is the initial
investigator and he is the one who collected all these four
statements from these four
people who have since died. So I think it
will be best M’Lord, for me to first deal with that formal
application.’
[8]
Warrant Officer Matlala’s evidence then ran thus:
‘
There
is a statement before you there, can you quickly go to the last page.
Who is the commissioner in that statement? --- Myself.
Was
it signed by . . . (intervenes)
COURT
:
Anyone.
MR
MUDAU
: The deponent. --- That is
so.
This
honourable court has ruled that the reading of this statement will be
accepted as evidence for these proceedings. Can you then
go to the
statement and read it for the record of these proceedings?’
Warrant
Officer Matlala then read the statement of Ms Rapao into the record.
The same course followed in respect of the statement
of Mr Jabu
Mathebe, Mr David Mogale and Ms Sarah Rapao – the latter two
being respectively the stepfather and mother of Ms
Rapao.
In
respect of the statement of Ms Sarah Rapao, Warrant Officer Matlala
added:
‘
Ja,
I see the handwriting of EXHIBIT L is different to that of H, J and
K. Can you explain that? --- That is true, it differs.
Why
would that be? --- Ja, the one handwriting which differs with the
others is that of Warrant Officer Galane.
Ja.
--- The reason why I was the one who commissioned that statement is
because I am the one who had send him to take down that
statement.
So
you did not take it yourself? --- That is quite so.
Ja,
Mr Mudau, what do I make of that statement? It was not taken by him.
It was . . . (intervenes)
MR
MUDAU
: M’Lord . . .
(intervenes)
COURT
:
It was presented as if it was his statement, but it is not.
MR
MUDAU
: The state is well aware of
that and we are still in the, in the state case and a gap to have
that covered is not closed,
M’Lord. I interviewed him with
respect to that. Perhaps my omission was not to make it clear to this
court that he was the
commissioning officer and the court can decide
once the state has closed its case as to whether to take the
statement as of any
value or not, because Warrant Officer Galane is
still a police officer in the police service and at any time he can
clear that
up for the purpose of these proceedings.’
[9]
The appellant testified in his defence and was rightly found by the
trial court to be an unimpressive witness. The high court
accepted
that the appellant was in fact the perpetrator in both instances. It
held:
‘
From
their statements it is very clear that it was the accused who came
and shot them. Mr Mathebe says he was sitting in his taxi
and the
accused came up, pulled out a gun and shot him. The other statements
referred to the incident at Maggie’s place.
They were all
sitting inside just after dark. They heard a shot. Maggie and her
brother Kleinboy ran into the house and the accused
came in and shot
the deceased 3 times. He was assaulted and the accused lost
consciousness on the scene. Both were eventually taken
to hospital.
Mr Mathebe never left the hospital and he died there. Maggie Rapao
was discharged at some stage but had to go back
to hospital and died
of septicaemia and bedsores, as [Dr D’Souza] testified in his
report, due to the gunshot wounds. . .
’
.
. .
‘
The
state witnesses all made a good impression on the court and
especially so, Kleinboy Rapao. It is so that he was 15 years at
the
time of the incident. His statement for purposes of prosecution was
only obtained a year ago. That apparently is because so
many of the
state witnesses died that the evidence of a young boy had to be
relied on to get the prosecution going. He was very
forthright in his
evidence. He was well cross-examined and he answered these questions
clearly and forthrightly. The other witnesses
gave more neutral
evidence and their evidence was not really challenged in any way.
There is no reason not to accept their evidence.’
[10]
As I understood the case sought to be advanced on appeal it was that
the trial court erred in: first, admitting and thereafter
founding
its conviction on inadmissible hearsay evidence; and, second,
concluding on the facts that the wounding could be regarded
as the
juridical cause in each instance of such deceased’s death for
the purposes of a charge of murder.
[11]
In dismissing the appellant’s appeal the full court stated:
‘
[13]
The legal position regarding the admissibility of hearsay evidence
was articulated in
S v Ndhlovu
2002 (2)
SACR 325
SCA
and
S
v Molimi
[2008] ZACC 2
;
2008 (2) SACR 76
CC.
The
Constitutional Court said hearsay evidence in terms of the Law of
Evidence Amendment Act 45 of 1988 (the Act), may be received
only if
interest of justice so require, (sec 3(d)). In considering the
admission of such evidence the court must have regard to
all the
factors mentioned in sec 3(1)(c) and must also ensure respect for
fair trial rights set out in sec 35(3) of the Constitution.
The
safeguards serve to ensure that the appellant experiences a fair
trial in accordance with section 35 (3) of the Constitution
See
Molimi
case at 95 par [36] And
Ndhlovu
case at 335 par [13] to par [17].’
The
full court added:
‘
[20]
The admissibility of the hearsay statements
in
casu
was considered by the Hono[u]rable
trial Judge in accordance with the provisions of section 3(c) of the
Act. The main consideration,
whether the admission of the hearsay
evidence was in the interest of justice, was also, in my view,
properly addressed by the trial
court.’
That
conclusion, with respect to the full court, is not supported by the
record. After hearing argument, and despite the obvious
complexities
of the matter, the trial judge ruled all too briefly I might add:
‘
Taking
the arguments of both sides into consideration and having said
already that there is corroborating evidence of the evidence
to be
led by way of hearsay evidence. I am inclined to allow the statements
to be introduced into evidence. It may then be given.’
[12]
For many years our law knew a rigid exclusionary rule which allowed
specific exceptions but no relaxation. Now there is no
exclusion as
such. Hearsay evidence may now be accepted subject to the broad,
almost limitless criteria set out in s 3(1). Of that
section, Schutz
JA (
S v Ramavhale
1996 (1) SACR 639
(A) at 647
d
) had
this to say:
‘
.
. . it is necessary to emphasise . . . that s 3(1) is an exclusionary
subsection and that the touchstone of admissibility is the
interest
of justice, as is made clear by the words: “. . . hearsay
evidence shall not be admitted as evidence . . . unless
- . . . the
court, having regard to (the considerations in ss (
c
))
is of the opinion that such evidence should be admitted in the
interests of justice.”’
The
trial court did not consider any of the matters listed in s 3(1)
(c)
,
namely:
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account.
[13]
Hearsay evidence has long been recognised to tend to be unreliable.
It has thus been said that a judge should hesitate long
in admitting
or relying on hearsay evidence which plays a decisive or even
significant part in convicting an accused, unless there
are
compelling justifications for doing so. To once again borrow from
Schutz JA ‘an accused person usually has enough to
contend with
without expecting him also to engage in mortal combat with the absent
witness’ (
Ramavhale
at
648
a
).
Hence the Court’s intuitive reluctance to permit untested
evidence to be used against an accused in a criminal case (
Metadad
v National Employers’ General Insurance Co Ltd
1992 (1) SA 494
(W)).
[14]
In respect of count 1, the murder of Mr Mathebe, the evidence of Mr
Shadung plainly did not incriminate the appellant. For
a conviction
one had to thus rely solely on the statement of Mr Mathebe. Given the
absence of any other incriminatory evidence,
I instinctively baulk at
founding a conviction solely on that statement.
I
consider that the trial judge seriously underestimated this factor
and was too easily persuaded to place weight on this evidence
for the
purpose of convicting the appellant. It seems to me that the trial
judge did not manifest a sufficient awareness of the
perils of
relying solely on that evidence to found a conviction. It follows, in
my view, that the conviction on count 1, namely
the murder of Mr
Mathebe, as also the sentence imposed pursuant thereto cannot stand
and accordingly falls to be set aside.
[15]
In as far as the remaining counts are concerned, the hearsay evidence
took the form of statements by Ms Rapao and her parents.
Ms Rapao’s
statement reads:
‘
2.
I was in love with Jimmy Seemela of Makgofe. I separate[d] with him
during 1996. The suspect Jimmy Seemela stabbed me with a
knife during
1997. I opened the case against him.
3.
On the 24.02.1998 the case was heard at Seshego Magistrate [Court]. I
testified. The case was further remanded to the 13.03.98.
After the
court I went home being with my uncle and mother.
4.
At home I cooked and there later stood outside with my mother. It was
at about something passed 19:00. I saw the suspect Jimmy
Seemela at
my place. I then stood up and ran away into the house.
5.
The suspect shot one bullet which missed me. I got into the house and
closed the door. The suspect pushed the door and g[o]t
inside. I
managed to get out of the house aiming to get into another one.
6.
The suspect followed me up. He shot me twice on the back and I fell
down. I was unable to stand up. My mother got hold of the
suspect.
More people gathered and the ambulance arrived and ferried me to the
hospital.
7.
The suspect did not say anything to me. He just fired at random. I
suspect that the cause might be that of the court. I do not
know what
transpired there later. My witness is Sarah Rapao, Mokgadi Rapao and
David Mogale.’
[16]
Despite counsel for the State intimating that Warrant Officer Galane
would testify in respect of Exhibit L, the statement of
Sarah Rapao,
that did not happen. In those circumstances that statement ought not
to have been admitted into evidence. Mr David
Mogale deposed to three
statements - the first on 17 April 1998, the second on 23 October
2003 and the third on 26 July 2005. And
whilst those statements may
have contained certain minor contradictions, they were consistent in
identifying the appellant as the
perpetrator. In his first statement
Mr Mogale stated:
‘
4.
Then the suspect Jimmy Seemela burst into my room. He was having a
gun in his hands. The suspect assaulted me with the firearm
on my
face and on the right hand.
5.
I grabbed an ashtray and assaulted him with it. The firearm fell down
and he ran away. I instructed Johannes Mogale to pick up
the firearm.
The complainant was lying down being unconscious. We called for
assistance from the community. All the people came
and arrested the
suspect. He was beaten and the police arrived. The ambulance also
arrived and took the complainant and the suspect
to the hospital.’
Mr
Mogale’s version finds corroboration in the evidence of: (a)
the police who attended on the scene – in that regard
Warrant
Officer Galane testified:
‘
After
both the deceased and the accused were removed in ambulances one Mr
Mogale approached me, gave me a firearm and said that
that was the
firearm used by the accused to shoot the deceased. . . .’; and
(b)
the evidence of the appellant himself, who testified:
‘
I
was still walking, approaching her parental home, it was starting to
be dark. I cannot tell in metres as to how far I was at that
stage
from her parental home when I heard a gunshot. I then took out my
cell phone, started phoning my girlfriend, the deceased,
still
approaching her gate that is the stage where I heard the gunshot. I
saw a certain young man coming out, running out of that
premises. . .
.
.
. .
MR
NONYANE
: Where was he running from? ---
Out of the girlfriend’s premises. Mr Mogale was chasing him.
Yes,
proceed sir. --- After he ran past Mr Mogale said here he is, he then
hit me with a stick . . .
On
the left jaw.
.
. .
I
fell to the ground as a result of the blow and everything was mixed
up, I could not understand what was going on. I became unconscious
as
a result.’
[17]
Ms Rapao and her parents knew the appellant well. That being so, the
possibility of a mistaken identification hardly enters
into the
reckoning. In any event on the appellant’s own version, he was
at their home that evening, where he was arrested,
albeit in an
unconscious state. The trial court rightly rejected his explanation
for his presence there. No motive was advanced
and none suggests
itself as to why each of those persons would want to falsely
implicate him at the expense of the real perpetrator.
Whilst each of
their statements, when taken individually may not have been
sufficiently weighty, cumulatively they are decisive.
To that must be
added the testimony of Kleinbooy Rapao, who also identified the
appellant. The trial court found him to be a good
witness and that
finding has not been assailed. It must follow that the trial court’s
conclusion that the appellant was the
perpetrator of counts 2, 4 and
5 cannot be faulted.
[18]
There remains the question of causation in so far as the murder of Ms
Rapao is concerned. The question, in essence, being whether
Ms
Rapao’s shooting and subsequent death has been proven to be
causally tied. As it was put in
Blaikie and Others v The British
Transport Commission
1961 SC 44
at 49:
‘
The
law has always had to come to some kind of compromise with the
doctrine of causation. The problem is a practical rather than
an
intellectual one. It is easy and usual to bedevil it with subtleties,
but the attitude of the law is that expediency and good
sense dictate
that for practical purposes a line has to be drawn somewhere, and
that, in drawing it, the court is to be guided
by the practical
experience of the reasonable man rather than by the theoretical
speculations of the philosopher.’
[19]
It is well established that a two-stage process is employed in our
law to determine whether a preceding act gives rise to criminal
responsibility for a subsequent condition (
S v Tembani
2007
(1) SACR 355
para 10). In
Minister of Police v Skosana
1977
(1) SA 31
(A) at 34E-G, albeit in the somewhat different context of
delict, Corbett JA had this to say:
‘
Causation
in the law of delict gives rise to two rather distinct problems. The
first is a factual one and relates to the question
as to whether the
negligent act or omission in question caused or materially
contributed to . . . the harm giving rise to the claim.
If it did
not, then no legal liability can arise and
cadit
quaestio
. If it did, then the second
problem becomes relevant, viz. whether the negligent act or omission
is linked to the harm sufficiently
closely or directly for legal
liability to ensue or whether, as it is said, the harm is too remote.
This is basically a juridical
problem, in which considerations of
legal policy may play a part.’
So,
in respect of the second of the two considerations alluded to by
Corbett JA, which presents as an issue of some complexity in
this
case,
‘
the inquiry must go on to
determine whether the act is linked to the death sufficiently closely
for it to be right to impose legal
liability’ (per Cameron JA,
Tembani
(para
10)).
[20]
Neither Dr D’Souza, the state pathologist, who performed the
post mortem examination on Ms Rapao, nor Professor G Saayman,
on whom
the trial court and full court placed great store, were called as
witnesses. The medico-legal post mortem report completed
by Dr
D’Souza, which was admitted by the defence in terms of
s 220
of
the
Criminal Procedure Act 51 of 1977
, recorded the cause of her
death as ‘septicaemia, disseminated intravascular
coagulopathy’. It added:
‘
According
to hospital records, deceased was discharged on 01/06/1998 and died
on 1998, November 17
th
.
She was earlier admitted on 24\02\98 with alleged gunshot. She became
paraplegic after the said incident. This information is
based on
hospital records. Cause of death given on the basis of history
hospital records and external examination of body.’
Prof
Saayman’s conclusion was: ‘Neither patient at any stage
recuperated from the initial injuries and their eventual
demise
represented the terminal outcome of a progressive clinical decline.’
Prof
Saayman, a Professor in Forensic Pathology at the University of
Pretoria, had prepared a report at the request of the Director
of
Public Prosecutions. When it was intimated by counsel for the State
that he will be called to testify, the trial judge made
plain that as
he had ‘said even in chambers’, ‘it is not
important for Professor Saayman to come and testify’.
The trial
judge also swept aside protestations by counsel for the appellant,
who wanted him to be called, because as counsel put
it ‘we have
got so many questions arising from that report’. In the event
the report was, without more, admitted into
evidence.
[21]
To the extent here relevant, Prof Saayman’s report reads:
‘
a.
. . . It appears that she may have improved initially and that she
was discharged on 01/06/1998. It is however not clear from
the
available documentation whether she had already developed bedsores at
that stage (although none such appear to be specifically
reported in
the clinical / nursing notes).
b.
She was followed up on an outpatient basis, but still had faecal and
urinary incontinence. Several outpatient visits between
01/06/1998
and 04/08/1998 are documented in this docket, but no bedsores are
recorded during these visits. It appears as if she
had
recurrent/constant urinary tract infection.
c.
No further notes are available for August and July 1998, until she
was re-admitted on 10/11/1998 with the diagnosis of septicaemia
due
to septic wounds. She was severely ill at the time of this last
admission and blood tests showed features consistent with septicaemia
(systemic spread of the infection) and diffuse intravascular
coagulation – a clotting abnormality sometimes seen as a
complication
associated with (amongst others) severe infection. At
this stage she had severe bedsores, but the onset of the latter
cannot be
ascertained from the available documentation. The patient
passed away on 17/11/1998.
d.
It is clear that a medico-legal autopsy should have been conducted on
the deceased, in view of the medical history that she had
sustained a
gunshot wound. However, it appears that only an external viewing /
examination (i.e. without formal dissection) of
the body of the
deceased was performed by dr MSR D/Souza, on 27/11/1998. Extensive
decubitus ulcers (bedsores) were recorded, together
with petechial
haemorrhages all over the body. The cause of death was stated as
septicaemia and disseminated intravascular coagulation.
.
. .
f.
It is indeed unfortunate, that a medico-legal post mortem examination
was not conducted in this particular instance. If dr MSR
D’Souza
can still be traced at this stage, it may be appropriate to obtain a
statement as to why a full dissection of this
body was not
undertaken. Enquiries may be made with the Health Professions Council
of South Africa, to establish the current whereabouts
of dr D’Souza.
It is however, unlikely, that dr D’Souza will retain (at this
late stage), individual or specific recollection
of this matter.
g.
The formulation of the cause of death, as supplied by dr D’Souza
(under Seshego Medico-legal post mortem report no 521/98),
should be
critically reviewed. Although the terminal
mechanism
of death
was that of septicaemia with
disseminated intravascular coagulopathy, due to underlying infection
(pressure sores and/or renal
tract infection), there is little doubt
that the primary medical cause of death (being the gunshot injury),
should also be incorporated
in the final formulation of the cause of
death. Unfortunately, the autopsy report makes no specific mention of
external injuries
or scars, suggestive of prior gunshot injury. It is
therefore essential, that due cognizance be taken of the clinical
history pertaining
to this patient – the latter having been
reasonably well documented.’
[22]
Precisely, on what basis, Prof Saayman’s report (which he
described as a ‘review . . . based on the available clinical
documentation’) was admitted into evidence does not emerge from
the record. But, whether it was indeed admissible need not
detain me
because even if it was admissible it hardly assists the State in
discharging the onus resting on it. Despite Prof Saayman’s
assertion that the clinical history of Ms Rapao was well documented,
there was, as reflected in his report, a significant lacuna
in
respect of a critical period, namely 4 August to 10 November 1998.
What is more is that he was sharply critical of Dr D’Souza
for
not having conducted a proper post mortem examination. In his report,
Dr D’Souza records ‘not opened due to lack
of electric
saw’. He thus contented himself with an external examination of
Ms Rapao’s body. In that, it would seem,
that Prof Saayman’s
criticism is justified. In those circumstances, why it was thought by
the trial judge that it was not
necessary for him to testify is lost
on me. For, in applying the applicable principles that I have set out
earlier in this judgment
to the evidence as it stands, it seems to
me, that the learned trial judge ought to have entertained grave
doubt as to whether
the wounding of Ms Rapao by the appellant could
have been regarded as the juridical cause of her death.
[23]
In
S v Mokgethi en Andere
1990
(1) SA 32
(A), a gunshot rendered the deceased a paraplegic. Despite
the injury he recovered well, and received instruction on the dangers
of pressure sores and their prevention. But he unreasonably failed to
apply proper self-care, and pressure sores developed that
led to
septicaemia from which he died six months later. The court held that
his assailants could not be held responsible for his
death. Although
the wound was initially mortally dangerous in that without medical
intervention the deceased would probably have
died as a result of it,
the threat to his life was eliminated by the proper medical care and
instruction he received. The eventually
fatal septicaemia was caused
not by the original wound, but by the deceased’s own
unreasonable failure to follow medical
instructions. Thus, although
the gunshot wound was an indispensable precondition of the death, the
trial court’s conviction
of murder was changed to attempted
murder. A conclusion, I daresay, that one is inexorably driven to
here as well. In the light
of this conclusion the appellant’s
conviction on count 2, the murder of Ms Rapao, must be set aside and
replaced with one
of attempted murder. The sentence of life
imprisonment imposed by the trial court pursuant to the conviction of
murder must likewise
be set aside.
[24]
As to sentence: There appears to be little to be said in favour
of the appellant. He was 35 years old at the time of
the commission
of the offences in question with two minor children who were
dependent on him. The appellant has an impressive array
of previous
convictions,
[1]
many
of which evidence a marked propensity to violence. His
propensity for violence appears to have characterised his
relationship
with Ms Rapao as well. By stabbing and thereafter
shooting her, because she dared to terminate their relationship, he
acted in
a manner that is unacceptable in any civilised society that
ought to be committed to the protection of the rights of all persons
including women. Intimate partner violence (IPV) is a serious social
problem about which, fortunately, we are at last becoming
concerned.
This form of violence against women is generally understood to
include physical, sexual, and psychological abuse by
intimate male
partners and in the last decade, IPV against women has finally come
to be recognized as an important public health
problem.
[2]
IPV
usually occurs within a broader context of relationships marked by
controlling behaviours by men and a pervasive sense of fear
in women.
More women are killed by their current or ex-intimate male partner in
South Africa than in any other country, with a
rate of 8.8 per
100 000 women.
[3]
In
1999 alone it is conservatively estimated that 1349 women died from
IPV in South Africa, which is generally regarded as a leading
cause
of morbidity and mortality for South African women.
[4]
In
a nationally representative study of 1 229 married and
cohabiting women, a prevalence of 31 per cent IPV was found, and
a
study on physical violence among South African men found that 27.5
per cent reported perpetration of violence in their current
or most
recent partnership.
[5]
In
some South African studies, more than 40 per cent of men have
disclosed having been physically violent to a partner and between
40
to 50 per cent of women have also reported experiencing such
violence.
[6]
For
the victim, it is a violation that is invasive and dehumanising. For
some the consequences are severe and can, as many of the
studies have
shown, be permanent. And given its alarming prevalence, such
mitigating factors as may exist in this case, pale into
insignificance when viewed against the objective gravity of the
offence. Plainly, for an offence such as this a long custodial
sentence is imperatively called for. I consider that a period of 12
years will be appropriate for the attempted murder. As all
of the
offences were part of the same criminal transaction, the sentences of
imprisonment for terms of 5 and 3 years imposed by
the trial court on
counts 3 (possession of a firearm) and 4 (possession of ammunition)
respectively, should be ordered to run concurrently
with that imposed
on count 2.
[25]
In the result:
(1)
The appeal succeeds in part and the order of the court below is set
aside and replaced with the following:
‘
(a)
The appeal is upheld to the following extent:
(i)
The conviction of the appellant on count 1,
the murder of Jabu Heckson Mathebe, and the sentence of life
imprisonment imposed pursuant
to that conviction are set aside.
(ii)
The conviction of the appellant on count 2, the murder of Maggie
Rapao, and the sentence of life imprisonment
imposed pursuant to that conviction are set aside and replaced with
the following:
‘
On
count 2, the accused is convicted of attempted murder and sentenced
to imprisonment for a term of twelve years’.
(iii)
The appeal in respect of count 3, the unlawful possession of a
firearm, and count 4, the unlawful possession of ammunition,
in each
instance in contravention of the Arms and Ammunition Act 75 of 1969,
and the sentences of imprisonment for terms of 5 and
3 years imposed
respectively pursuant to those convictions, is dismissed.
(iv)
The sentences imposed on counts 3 and 4 are ordered to run
concurrently with that imposed on count 2.’
_________________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For
Appellant: L M Manzini
Instructed
by:
Legal
Aid SA, Pretoria
Bloemfontein
Justice Centre, Bloemfontein
For
Respondent: M P Mudau
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein
[1]
On 16 February 1987 he was convicted of assault with intent to do
grievous bodily harm and sentenced to 7 cuts with a light cane.
On 8
April 1987 he was convicted of robbery and sentenced to 6 cuts with
a light cane. On 21 August 1987 he was convicted of
theft and
sentenced to 6 cuts with a light cane. On 3
May
1988 he was convicted of escaping or attempting to escape from
custody and sentenced to 12 months’ imprisonment. On
17 May
1988 he was convicted of assault with intent to do grievous bodily
harm and sentenced to R180 or 5 months’ imprisonment.
On 22
August 1988 he was convicted of 2 counts of assault and sentenced on
each count to 90 days’ imprisonment. On 16 September
1988 he
was convicted of 2 counts of theft and sentenced to 4 years’
imprisonment on each count which was ordered to run
concurrently. On
11 October 1988 he was convicted of robbery and sentenced to 8
months’ imprisonment. On 7 September 1989
he was convicted of
theft and sentenced to 4 years’ imprisonment, 3 of which was
suspended. On 16 February 1990 he was
convicted of possession of
dagga in contravention of the Drugs and Drug Trafficking Act and
sentenced to 60 days’ imprisonment.
On 11 February 1991 he was
convicted of 3 counts of theft and sentenced to an effective 4
years’ imprisonment. On 10 August
1999 he was convicted of
assault with intent to do grievous bodily harm and sentenced to 12
months’ imprisonment.
[2]
N
Abrahams et al ‘Intimate Partner Violence: Prevalence and Risk
Factors for Men in Cape Town, South Africa’ (2006)
Violence
and Victims Journal
Vol. 21, No. 2 at 247.
[3]
N
Abrahams et al ‘Mortality of women from intimate partner
violence in South Africa: A National Epidemiological Study’
(2009)
Violence
and Victims Journal
Vol. 24, No. 4 at 549.
[4]
J D Gass et al ‘Intimate partner violence, health behaviours,
and chronic physical illness among South African women’
(2010)
South
African Medical Journal
Vol.
100, No. 9 at 582.
[5]
K Peltzer and S Pengpid “The severity of violence against
women by intimate partners and associations with perpetrator
alcohol
and drug use in the Vhembe district, South Africa’ (2013)
African
Safety Promotion Journal
Vol.
11, No. 1 at 13.
[6]
Dr L Langa-Mlambo and Dr P Soma-Pillay ‘Violence against women
in South Africa’ (2014)
Obstetrics
& Gynaecology Forum
at
18.
See
also World Health Organization
Understanding
and addressing violence against women: Intimate partner violence
(2012)
and World Health Organization
Global
and regional estimates of violence against women: prevalence and
health effects of intimate partner violence and non-partner
sexual
violence
(2013).