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[2014] ZAGPJHC 215
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Mosolopane v S (A10/2014) [2014] ZAGPJHC 215 (25 June 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: A10/2014
DATE:
25 JUNE 2014
In the matter
between:
PAULOS SKHUMBUZO
MOSOLOPANE
.....................................
APPELANT
And
THE
STATE
..............................................................................
RESPONDENT
JUDGMENT
Coram Nicholls,
Monama, JJ and Reyneke AJ:
[1] The appellant,
Paulos Skhumbuzo Mosolopane, 33 years old at time of sentencing, was
arraigned in this court on one charge of
murder, one charge of
attempted rape and one charge of assault with intention to do
grievous bodily harm. All of these charges
have to be read together
with the provisions of
sections 51
and
52
of the
Criminal Law
Amendment Act 105 of 1997
. The appellant was convicted as charged
and sentenced on 2 September 2011 as follows:
a) Count 1: Murder:
18 years imprisonment;
b) Count 2:
Attempted Rape: 5 years imprisonment; and
c) Count 3: Assault
with intention to do grievous bodily harm: 2 years imprisonment.
[2] It was ordered
that the sentences on counts 1 and 2 should run concurrently. The
effective term of direct imprisonment is twenty
years.
[3] On 17 February
2012 the trial court granted leave to appeal to the Full Court of the
South Gauteng High Court against the conviction
and sentence on all
three counts.
[4] The charges
against the appellant arose from an incident that happened on 1
January 2011. The deceased is the mother of the
complaint, Wandile
Makgate. The deceased, the complainant and the accused, all three in
their own separate ways, celebrated and
drank the old year away.
Early New Year’s morning the complainant arrived at his home
which he shared with his mother.
He found the appellant in the
bedroom of the deceased. The deceased was motionless, lying down with
her short denim pants partially
pulled down and her mouth foaming.
The appellant was in the process of standing up from the deceased,
pulling up his pants. The
complainant pulled the appellant away from
the deceased and a struggle ensued. during which the complainant got
hold of an ashtray.
He hit the appellant on the head. The fight
continued until they ended up outside. While they were struggling
the appellant pinned
the complainant to the ground, throttled him
with his hands and applied pressure to his neck. A tenant on the
same premises, Twice
Bogatsu, arrived. She called her husband,
Samuel Mjali. Mjali pulled the complainant from the appellant. The
complainant grabbed
the appellant and slapped him. Mjali separated
them where after the appellant ran away.
[5] Dr Klepp, who
performed the post-mortem, was not informed about the circumstances
at time of death. During the post-mortem
it was discovered that the
deceased had an underlying ischaemic disease. She had found that the
deceased died of pathology of
her heart. She testified that the
deceased, who was more susceptible to pressure applied to the neck,
could die instantly as
a result of pressure applied to her neck by
the appellant with his hands.
[6] The appellant
testified that he went to the deceased to report to that his
girlfriend was going to press charges against the
complainant in
regards to an incident which happened earlier that morning. On his
arrival at the house he knocked and was invited
to enter into the
dining room. The deceased turned her back to him, while he was
talking to her. She then hit him with something
on his head, causing
him to bleed. He cannot identify the object as it happened
unexpectedly, although the visibility was good;
the sun already
shining. The deceased jumped on the deceased and throttled her.
They both felt into the bedroom. The deceased
felt on her back and
he felt on his side. He was holding on to her neck all the time,
adding pressure. They fought until the
complainant entered. The
complainant kicked him. While he and the complainant were fighting
in the bedroom Mr Mjali entered and
separated them. The accused
denied the allegations that he was throttling the complainant, that
the complainant hit him on the
head with an ashtray, that he and
complainant were fighting outside and that he was pulling up his
pants. He cannot explain how
it came that the pants of the deceased
were lowered. He had never met Mr Mjali before.
A ground of appeal
is that the trial court misdirected himself by rejecting the version
of the appellant. (footnote: Appellant;s
Heads of argument, par 7)
The approach to be
adopted by a court of appeal in dealing with the factual findings of
a trial court is found in R v Dhlumayo and
Another
1948 (2) SA 677
(A). A court of appeal will not disturb the factual finding of a
trial court, unless there was a misdirection. Where there has
been
no misdirection on fact by the trial judge, the presumption is that
his conclusion is correct. The appeal court will only
reverse it
where it is convinced that it is wrong. If the appeal court is
merely left in doubt as to the correctness of the conclusion,
then it
will uphold it.
There is no reason
to find that the trial court was misdirected in regards to the
factual findings or in rejecting the appellant’s
version as
false beyond reasonable doubt.
A further ground of
appeal is that the version proffered by the state does not postulate
the only reasonable inference that could
be drawn from the facts, but
that the version of the appellant in respect of all three counts
postulates a reasonable alternative.
(footnote Appellant’s
heads of argument, par 7)) In regards to the charge of attempted rape
it was contended on behalf of
the appellant that the proven facts
could also lead to the inference that the deceased had already passed
away at the stage when
the accused had attempted to have forced
sexual intercourse. The argument goes that such a situation leaves no
room for a conviction
on attempted rape, but rather calls for a
finding of necrophilia.
The trial court
found it to be common cause that the deceased was lying motionless
when the complainant had found her. (footnote:
Judgment, par 4.2) In
this regard, the complainant testified that he had found his mother
as depicted on photo 13, in a lying
position. (footnote P 28 line
23) The appellant’s version in this regard appears from his
answers in cross-examination:
“What were
you doing at the point when Wandile came into the room or you noticed
him? --- Wandile came in and kicked me on
my chest. At that time the
deceased was fighting whilst I was throttling her. … So when
Wandile came into the room his
mother according to you was still
alive, because she was still fighting with you. ---- Correct.”
P123 line 3-8
In S v Reddy and
Others
1996 (2) SACR 1
(A) the following was said regarding the
assessment of circumstantial evidence:
‘In assessing
circumstantial evidence one needs to be careful not to approach such
evidence upon a piece-meal basis and to
subject each individual piece
of evidence to a consideration of whether it excludes the reasonable
possibility that the explanation
given by an accused is true. The
evidence needs to be considered in its totality. It is only then
that one can apply the often-quoted
dictum in R v Blom
1939 AD 188
at
202-3, where reference is made to two cardinal rules of logic which
cannot be ignored. These are, firstly, that the inference
sought to
be drawn must be consistent with all the proved facts and, secondly,
the proved facts should be such “that they
exclude every
reasonable inference form them save the one sought to be drawn.”
‘
The possibilities
that could support other inferences to be drawn from the
circumstantial evidence were never put to any of the
witnesses. The
accused did not tender any plausible explanation for the lowered
pants of the deceased or the compromising position
in which he was
found. The finding ”that the accused had pulled down the pants
of the deceased, thrown her to the ground,
lowered his own pants and
was mounting her when he was interrupted by Wandile” (Footnote
Judgment, p 155, line 19-21) )
is consistent with all the proved
facts.
A further ground of
appeal is that, if the appellant’s version is found to be
correct, in the absence of dolus directus, a
competent verdict to the
one of murder should have followed; taking into account the
pre-existent heart condition. (footnote Appellant’s
heads of
argument, par 14, line 4) ) Counsel for appellant conceded that in
accepting the state’s version as factual correct,
the appellant
had, at the very least, dolus eventualis.
The appellant could
only be convicted of murder if he had foreseen the possibility of the
deceased’s death. The reasonable
man in the same circumstances
would have foreseen that the force he was applying to the neck of the
deceased would have caused
her death. The appellant testified that
the deceased was trying desperately to free herself as he was
throttling her and that he
wanted her to surrender. (FOOtnoe)
In order to find
liability, there should be a factual causation or nexus between the
act of strangulation and the cause of death.
The determination of a
factual causal connection is based on the conditio sine qua non test.
The question for decision is what
caused the death.
[15] Unknown to the
appellant and even the complainant, the deceased had a potentially
dangerous pre- condition of the heart. Dr
Klepp testified that a
person with her condition was more susceptible to pressure being
applied to her neck. In other words, it
would take less pressure to
kill the deceased than it would a normal person with a normal heart.
[16] It is common
cause that the appellant indeed applied force to the neck of the
deceased. The strangulation caused her death.
It has long been the
law that those who use violence on other people must take their
victims as they find them. I am satisfied
that there is a legal
causation between the act of the accused and the consequent death of
the deceased.
[17] forward might
be true.’
(b) That the
appellant was acting in private defence; and
(c) That the
sentence should be re-visited on the grounds that not all
substantial and compelling circumstances were taken into
account,
with specific reference to the pre-existing heart condition of the
deceased.
[8]
[10] The trial court
quoted S v Van der Meyden
1999 (1) SACR 447
(WLD) at 448, referring
to the criminal standard of proof, to wit:
‘The onus of
proof in a criminal case is discharged by the state if the evidence
establishes the guilt of the accused beyond
reasonable doubt. The
corollary is that he is entitled to be acquitted it it is reasonably
possible that he may be innocent.
In order to convict, the evidence
must establish the guilt of the accused beyond reasonable doubt,
which will be so only if there
is at the same time no reasonably
possibility that an innocent explanation which ] The appellant’s
version that the complainant
and the deceased attacked him, thus he
was acting in private defence, was found to be inherently improbable.
The mere denial of
the charge of attempted rape was rejected. In
order to test the finding of the trail court, it is necessary to give
a summary
of the appelant’s version. has been put
[12]
[13
[14]
[18] In respect of
count 3 and the private defence, the trial court found that the
accused was the aggressor and that the complainant
was acting in
defence of his mother who was being assailed by the accused. It was
found that the accused had no legal interest
to protect and that the
attack on the complainant was unlawful and intentional assault. There
is no reason to depart from the above
finding.
[19] The remaining
matter is concerned with the sentence. In S v Pieters
1987 (3) SA 717
(A), at 734 D-F the decisive question facing a court of appeal on
sentence was formulated as ‘whether it was convinced that
the
court, which had imposed the sentence being adjudicated upon, had
exercised its discretion to do so unreasonably. If so, the
court of
appeal was entitled to interfere, and, if no, not. … (E)ven
if the court of appeal is of the view that it would
have imposed a
much lighter sentence, it would not be free to interfere if it were
not convinced that the court below could not
reasonably have imposed
the sentence which it determined.”
[20] The trial court
did not specifically mention that the heart condition of the deceased
was taken into account as a substantial
and compelling factor in
terms of
S51
of the
Criminal Law Amendment Act, Act
105 of 1997.
This factor was extensively canvassed in evidence. While this
condition certainly may impact on a sentence, a court
of appeal will
not lightly depart from specified sentences for flimsy reasons which
could not withstand scrutiny. (S v Malgas
2001 (1) SACR 469
(SCA) at
4S70I).
[21] The trial court
properly assessed the personal circumstances of the appellant. It
had regard to the guides and principles
as stated, inter alia, in
Malgas (supra), S v Dodo 2001 (C) SACR 594 (CC), S v Nkomo
2006 (2)
SACR 439
(SCA) and S v Vilakazi 2009 (1) 552 (SCA). The sentenced
imposed does not induce a sense of shock. I am not convinced that
the
trial court exercised its discretion in imposing a proper
sentence unreasonably.
ORDER
In the result, I
make the following order: The conviction and sentence are confirmed.
The appeal is dismissed.
C REYNEKE
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree.
CE NICHOLLS
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
I agree.
RE MONAMA
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances
Counsel for the
Applicant: Adv. Haram
Instructed by:
Leagal Aid SA
Counsel for the
Respondent: Adv. T. Byker
Instructed by:
Director of Public Prosecutions
Date of Hearing:
4 June 2014
Date of Judgment:
25 June 2014