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[2020] ZAGPJHC 13
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A G v S (A135/2019) [2020] ZAGPJHC 13 (30 January 2020)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBERS: A135/2019
In the
appeal of:
G,
A
Appellant
and
THE
STATE
Respondent
Coram:
Wepener et Mudau JJ
Heard
:
30 January 2020
Delivered
:
30 January 2020
JUDGMENT
Wepener
et Mudau JJ:
[1]
The appellant was convicted on a charge of attempted murder and
sentenced to 12 years imprisonment of which four years were
conditionally suspended for a period of five years. Further orders
were also issued. Although a portion of the regional magistrate’s
judgment on conviction is not in the record the full record of the
evidence upon which the conviction and sentence were based,
is before
this court. In S v Chabedi
[1]
it was said:
‘
The contention on behalf
of the appellant that the shortcomings in the record rendered a
proper consideration of the appeal impossible,
was based on the
submission that we are dependent on the magistrate’s judgment
on conviction to assess his evaluation of
the evidence. I do not
agree with this submission. As indicated the matter can, in my view,
be decided on the inherent probabilities,
which can in turn be
determined on the record as it stands. If the magistrate based any
credibility findings on the demeanour of
the respective witnesses,
those findings could, in the circumstances, only have been adverse to
the appellant. Logic therefore
dictates that the appellant could
suffer no prejudice through this Court’s lack of knowledge
whether demeanour findings were
indeed made by the trial court.’
[2]
The first aspect to be dealt with is the conviction of the appellant.
Despite the heads of argument on behalf of the appellant
dealing with
the evaluation of the evidence in para 23-32, regard must be had to
the appellant’s notice of appeal. Regarding
conviction, it
reads
[2]
:
‘
1. The learned Magistrate
erred in finding that the State proved its case beyond reasonable
doubt.
2. The learned Magistrate had
not properly evaluated or analyse the evidence of the witnesses.
3. The learned Magistrate erred
in finding that the appellant was not acting in self-defence when he
stabbed the complainant.
4. The learned Magistrate erred
in rejecting the evidence of the defence that the complainant was the
aggressor when he was stabbed
by the appellant.’
[3] It
has long been established practice that a notice of appeal should not
be generally framed but that it should contain such
detail as to
enable the magistrate to respond properly to the grounds and alert
the State to the issues on appeal. Grounds of appeal
will be bad if
they are so widely expressed that it leaves the appellant free to
canvass every finding of fact and every ruling
made by the court a
quo or if they are too vague to be of no value or if they are general
and fail to specify clearly and unambiguously
the exact case which it
makes. The grounds set out above are so vague and generalised that it
is not possible to determine the
precise ambit of the notice of
appeal. It, in my view, is a nullity and this court should not
entertain any argument regarding
the conviction of the appellant.
Nevertheless, I regard is had to the heads of argument not much more
is said than that which is
contained in the notice of appeal. On this
basis alone the appeal against conviction should be dismissed.
[4] If
I am wrong in this approach I am prepared to look at the evidence as
a whole. The appellant relied on private defence, and
more
particularly a defence necessary to avert an attack. A person relying
on such a defence must not only show that the force
was necessary but
also that the gravity of the attack and the style and extent of the
defence against the attack was more or less
proportional. See ‘Grigor
v S
[2012] ZASCA 95
para 10 where the Supreme Court of Appeal dealing
with a road rage in situation held that there was an imbalance (or
disproportion)
between the alleged attack and the defence. It was
held that in this case the appellant had exceeded the bounds of
self-defence
by inflicting severe injuries (amounting to attempted
murder) on the complainant with a knife. See also A Ashworth ‘Self
Defence and the Right to life’
[1975] Camb LJ 282
at 296 and
the remarks of the Royal Commission (n 47):
We
take one great principle of the common law to be, that though it
sanctions the defence of a man’s person, liberty and property
.
. . this is subject to the restriction that . . . the mischief
done by . . . the force used is not disproportionate to
the injury or
mischief which it is intended to prevent’.
[3]
Also in
S v Steyn,
[4]
Leach AJA said:
‘
. . .
every case must be determined in the light of its own particular
circumstances and it is impossible to devise a precise test
to
determine the legality or otherwise of the actions of a person who
relies upon private defence. However, there should be a reasonable
balance between the attack and the defensive act as one may not shoot
to kill another who attacks you with a flyswatter’.
[5] I am of the view that the evidence shows that the complainant was
not the aggressor but that the appellant had a score to settle
as a
result of an incident that occurred the previous night. The
complainant had on the state’s version the previous day
confronted the appellant as he was assaulting his girlfriend. The
appellant on the version of the state which the trial court logically
must have accepted, held the appellant and the girlfriend managed to
escape. The independent evidence of Mr. Silwane was that the
complainant’s arms were being lifted above his head. This was
at the time when the complainant was being stabbed. There are
also a
number of improbabilities in the version of the evidence of the
appellant a highlighted by the State in its heads of argument.
More
seriously, the stabbing of the complainant, twice with a knife, in my
view, far exceeds reasonable defensive action if that
had been true.
The defence can, in the circumstances, not be upheld. Due to the fact
that it is common cause that the appellant
stabbed the complainant
twice with a knife which could have led to the appellant’s
death was it not for medical intervention,
the charge of attempted
murder was proved against the appellant and the appeal against his
conviction cannot be upheld and falls
to be dismissed.
[6] As
to the appeal against sentence, the appellant, as gathered from his
pre-sentencing reports was born on 21 December 1999.
He was a little
over 17 years when the incident of crime was committed. He was one
month shy of 19 years of age, at the time of
his sentencing on the 28
November 2018 whilst out on bail. He was doing grade 11, having
repeated some grades. The appellant had
no records of previous
convictions. He had another sibling, an elder sister, albeit by a
different father. The appellant is without
dependents. The probation
officer and the correctional services officer were of the view that
the appellant was a candidate for
correctional supervision in terms
of s 276 (1)(h) of the Criminal Procedure Act
[5]
.
On the other hand the state presented a victim impact report in
which the complainant stressed the mental and emotional
effect the
incident had in his life over and above the physical injuries
sustained in his opposition to a noncustodial sentence.
[7] It
was contended on behalf of the appellant that the best interest of
the child as provided for in s 28 of the Constitution
were not taken
into consideration when the trial court imposed an effective sentence
of eight years imprisonment .The trial court
was alive to the
relevant provisions of the Child Justice Act
[6]
.The
trial court had regard to the presentencing reports. But was of the
view that the presentencing reports were skewed and biased,
in that
the emphasis was on the appellant’s personal circumstances
without due regard to the other elements of sentencing.
The trial
court guarded against imposing a warped sentence regard being had to
the totality of the facts and referred to
S v Lister
[7]
.
[8] It
is trite that it is important when sentencing, to bear in mind the
chief objectives of criminal punishment, namely retribution,
the
prevention of crime, the deterrence of criminals, and the reformation
of the offender. At the same time none of the elements
of proper
punishment must be over or under emphasised when considering an
appellant’s personal circumstances, the crime and
the interest
of society.
[8]
[9] It
is well established in our law that the introduction of correctional
supervision as a sentencing option has ushered in a
new phase, which
if used in appropriate cases and if applied to those who are likely
to respond positively to its regimen, can
serve to protect society
without destructive impact incarceration can have on a convicted
criminal’s innocent family members.
[9]
In
S v M
, in sentencing a primary caregiver, it was reiterated
that the Constitution requires that the child’s best interests
have
paramount importance in every matter concerning the child. Sachs
J, writing for the majority, noted that:
‘
the fact that the
best interests of the child are paramount does not mean that they are
absolute. Like all rights in the Bill of
Rights their operation has
to take account of the relationship to other rights, which might
require that their ambit be limited’.
[10]
However,
there are circumstances where correctional supervision as a
sentencing option would be improper and disproportionate to
the
gravity of the offence.
[11]
[10]
The trial court in this case was correct in its view that violent
related crimes in this country have reached astronomical
proportions.
Not only was the offence committed very serious, and the injuries
life-threatening, the complainant barely survived.
His spleen could
not be saved. Consequently, his health had been compromised severely.
Had it not been for the timeous intervention
of medical practitioners
the appellant would in all probabilities have faced a murder charge.
The offence had been pre-planned
in that the appellant carried a
knife to school although the incident occurred after ordinary school
hours outside the school premises.
The complainant had to run for his
life as the appellant wanted to kill him.
[11]
The sentence imposed can only be described as lenient. No
misdirection was seriously alluded to, none exists and there are
accordingly no reasons for this court to interfere with the sentence.
It accordingly follows that the appeal must fail.
[12]
In the result the appeal against conviction and sentence is
dismissed.
_________________
Wepener
J
I
agree.
__________________
Mudau J
Counsel
for Appellant: K.D Makakaba
Attorneys
for Appellant: Nhlapho Molopo Attorneys
Counsel
for the Respondent: N.P. Serepo
Attorneys
for the Respondent: State Attorneys
[1]
2005 (1) SACR 415
(SCA) para 13.
[2]
See page 311 of the Notice of Appeal in terms of
section 84 of the Child Justice Act read with
section 309*B)
of the
Criminal Procedure Act 51 of 1977
.
[3]
Burchell, Principles of Criminal Law (5
th
Ed) 127 n 48.
[4]
2010 (1) SACR 411
(SCA) at 417d-e.’
[5]
Act 51 of 1977.
[6]
Act 76 of 2008.
[7]
1993 (2) SACR 228 (A).
[8]
Tshoga v S
2017 (1) SACR 420
(SCA) para 28).
[9]
S v M (Centre For Child Law As Amicus Curiae)
2007 (2) SACR
539 (CC).
[10]
At para 26.
[11]
See
S v Mngoma
2009 (1) SACR 435
(E);
S v Maleka
2001
(2) SACR 366
(SCA).