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[2013] ZASCA 34
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Makgatho v S (732/12) [2013] ZASCA 34; 2013 (2) SACR 13 (SCA) (28 March 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
REPORTABLE
Case no: 732/12
In
the matter between:
NELSON
SEPURU MAKGATHO
....................................................................
Appellant
and
THE
STATE
.................................................................................................
Respondent
Neutral
citation:
Makgatho v S
(732/12)
[2013] ZASCA 34
(28 March
2013)
Coram:
MAYA, MALAN, SHONGWE, MAJIEDT JJA and MBHA AJA
Heard:
11 March 2013
Delivered:
28 March 2013
Summary: Criminal Law –
murder – mens rea – intention to kill – dolus
eventualis – test subjective
– discharging firearm fully
aware and reckless of the danger posed to those in vicinity and
deceased in particular.
ORDER
___________________________________________________________________
On appeal from:
North Gauteng
High Court (Pretoria) (Mavundla J and Ebersohn AJ) sitting as court
of appeal):
The appeal against conviction and
sentence is dismissed.
JUDGMENT
___________________________________________________________________
SHONGWE JA (MAYA, MALAN, MAJIEDT
JJA, MBHA AJA concurring)
[1] This appeal arises from the
conviction and sentence on a charge of murder by the regional court
magistrate (Polokwane). The
conviction and sentence were confirmed by
the Gauteng High Court, Pretoria (Mavundla J and Ebersohn AJ
concurring). The appeal
is before this court with leave of the court
below.
[2] The regional court magistrate came
to the conclusion that the appellant was guilty of murder on the
basis of dolus eventualis
in that:
‘
he
foresaw that what he did would cause an accident, but he decided to
adopt an: (sic!) “I do not care” attitude, and
that
attitude of his that he did not care of what was going to happen when
he shot in the air in the presence of other people,
resulted in the
death of the deceased.
’
[3] The appellant was legally
represented in the courts below but due to lack of resources he
approached the legal aid board for
assistance and they entered the
fray only at a later stage. Perhaps that is why no notice of appeal
was filed. Be that as it may,
counsel for the appellant raised the
following questions in his heads of argument.
(a) Whether the evidence presented by
the State is reliable enough for a court to find that the appellant’s
conduct evidenced
an intention in the form of dolus eventualis, or
whether the appellant should be convicted of another offence, for
example, culpable
homicide.
(b) The failure of the court below to
provide full reasons why it agreed with the regional court
magistrate.
(c) Regarding sentence, the appellant
contended that the court below should have found substantial and
compelling circumstances
to justify a lesser sentence than the
prescribed 15 years’ imprisonment on the grounds that there was
no pre-planning of
the offence; the appellant was convicted on the
basis of dolus eventualis, which, on its own is a substantial and
compelling circumstance;
and the fact that the incident took place at
a tavern where some of the witnesses were under the influence of
alcohol.
[4] The respondent, on the other hand,
contended that the main issue is whether the trial court correctly
accepted the evidence
of the state witnesses as being trustworthy on
the question whether or not it was the appellant who fired the fatal
shot without
any struggle over the firearm. The other issue was
whether the State succeeded in proving that the appellant had the
necessary
intention in the form of dolus eventualis. The respondent
contended that the trial court correctly convicted the appellant and
that the sentence imposed was proper.
[5] A brief review of the facts is
necessary. The incident occurred on 20 February 2004, between 20:00
and 21:00 in the evening,
at a tavern in Senobarana in Limpopo, where
the state witnesses, Stanley Maloba, Daphne Madibane, Jeanette and
Nicholas Maloba
were seated and drinking alcohol. Apparently other
people were also sitting and drinking there. The appellant arrived in
a bakkie
and went straight to where the state witnesses were seated
and called Daphne, who refused to go to him. The appellant returned
to his vehicle and came back to the state witnesses and pulled
Daphne. The others stood up and objected to the appellant’s
conduct. The appellant slapped Daphne on her face. He also slapped
Nicholas and slapped Stanley twice. When the appellant was asked
if
he came to fight, he took out a firearm and grabbed Stanley with one
hand and fired a shot up in the air. Nicholas, Daphne and
Jeanette,
ran away. Stanley said that the appellant then pointed the firearm to
the front and fired a second shot. He then let
go of Stanley and left
for his vehicle.
[6] The appellant’s version is
that he did arrive at the tavern on the day in question and called
Daphne who stood up and
went to him. While he was talking to her one
of the men (apparently it was Stanley) came up and pulled Daphne away
from him. When
he enquired what was going on, Stanley slapped him
with an open hand. There was an exchange of slapping between them. He
said that,
while this was taking place, Nicholas and Jeanette
approached him wanting to attack him. He then pulled a firearm and
fired one
shot into the ground. They pleaded with him to put the
firearm away so that they could talk, which he did. Suddenly they
dragged
him in an attempt to take the firearm away. A struggle over
the firearm ensued and four shots went off. He overpowered them and
managed to take control of the firearm. He said he did not know who
pulled the trigger.
[7] After the shooting, someone
reported that a person, who turned out to be the deceased had been
shot. Stanley went to the appellant
to inform him that he had shot
someone. The appellant went to see the victim, who was still alive
then. He saw that he was bleeding
and had a gunshot wound on the left
hand side of the neck. But because he was afraid that the people
might attack him, he drove
away.
[8] The nub of this appeal is whether
the appellant acted with dolus eventualis when he caused the death of
the deceased. Most of
the facts are common cause save for the
question of how the shots were fired and who fired them. The trial
court accepted the version
of the State and rejected that of the
appellant as not being reasonably possibly true. It is trite that the
State must prove its
case beyond reasonable doubt and that an accused
person is not obliged to give a version of events. However, if and
when he does
give a version, it must be reasonably possibly true for
it to be accepted by the court. The trial court must, of course,
examine
the totality of the particular facts, and any inferences to
be drawn, in considering its verdict. (See
R v Difford
1937 AD
370
at 373 and 383 and
S v van der Meyden
1999 (1) SACR 447
(W) at 448F-H – also reported as
1999 (2) SA 79
(W).
[9] A person acts with intention, in
the form of dolus eventualis, if the commission of the unlawful act
or the causing of the unlawful
result is not his main aim, but he
subjectively foresees the possibility that in striving towards his
main aim, the unlawful act
may be committed or the unlawful result
may ensue, and he reconciles himself to this possibility (see C R
Snyman
Criminal Law
5
th
ed (2008) at 184). E M
Burchell and P M A Hunt
South African Law and Criminal Procedure
1997, at 131 said:
‘
It
is sufficient if the accused, having foreseen the real possibility of
the existence of the circumstances in question, nevertheless
persisted in his conduct irrespective of whether it existed or not.’
(See also
Annual Survey of South
African Law
(1964) at 73). In other words, it must be shown that
a real – as opposed to a remote – possibility of that
consequence
resulting was foreseen. In
S v van Wyk
1992 (1)
SACR 147
(Nms) at 161b, Ackerman AJA expressed himself as follows:
‘…
I
am accordingly of the view that the subjective foresight required for
dolus
eventualis
is
the subjective appreciation that there is a reasonable possibility
that the proscribed consequence will ensue.
’
[10] The fundamental question is not
whether he should have accepted that the result would follow, but
whether in actual fact he
accepted that it would follow. The test in
respect of intention is subjective and not objective. The objective
test is applicable
in cases involving negligence and not intention
(see
S v Ngubane
1985 (3) SA 677
(A) at 685D-F;
S v Dladla
1980 (1) SA 1
(A) at 4A-B). There is a plethora of authorities
demonstrating the rule that murder is a crime requiring intention; it
cannot be
committed negligently. See, for example,
S v Qege
2012
(2) SACR 41
(ECG) at 48e-f where it was said that:
‘
Where
the accused performs an action knowing or foreseeing that somebody
may be killed, and yet, despite that knowledge and reckless
of the
eventuation of the possible result, persist with that action, the
form of intention is known as dolus eventualis.’
(See also
S v Swanepoel
1983
(1) SA 434
(A) at 440A-B;
S v Nhlapo
1981 (2) SA 744
(A) at
750H-751C;
S v Dube
1972 (4) SA 515
(W) at 520G-H).
[11] The question to be decided is
whether the State has proven beyond a doubt that the appellant
subjectively foresaw the possibility
that his actions would result in
the death of the deceased, and nevertheless persisted in his conduct.
I must state from the outset
that the appellant’s version was
correctly rejected by the trial as well as the court below. It is not
reasonably possibly
true. He contends that after Stanley and he
exchanged slaps, his life was in danger, in that the other persons
(Nicholas and Jeanette)
who were seated with Daphne, wanted to attack
him. He then fired the first shot into the ground. He was unable to
say how they
wanted to attack him, he simply said that they formed a
circle around him. Nothing was said about whether they carried any
weapons,
nothing said about what they actually did besides forming a
circle around him. All the witnesses for the State testified that the
appellant was the one who initiated the physical violence by slapping
Daphne, thereafter slapping Nicholas and then Stanley twice.
The
appellant did not know the persons who were seated with Daphne, and
they too, except for Daphne, did not know him. I find it
very strange
and unlikely that Stanley would slap him first, without a word. It is
more likely that the appellant was the aggressor.
He came to talk to
his so-called girlfriend, and a stranger tried to stop him from doing
so. I think that the appellant became
cross and slapped him,
thereafter produced a firearm and fired two shots. There was
absolutely no evidence of any imminent danger.
[12] The appellant came to a tavern
where there were many people seated around and drinking. He contends
that a struggle over the
firearm ensued and four gunshots went off
during the struggle. He contends that the firearm was in the holster
on his hip and that
he was holding the butt and the others were
holding the barrel. It seems to me that his hands were very close to
the trigger, comparatively
speaking, and if shots went off they would
have either injured him or one of the people involved in the
struggle. His version is
not only improbable, it is palpably false
and deserves to be rejected. What is even more crucial is that his
version of events
was never put to the state witnesses. It only came
up when the appellant testified.
[13] The State relied on the evidence
of Stanley, whose evidence was corroborated to some extent by Daphne,
Nicholas and Molokomme.
Molokomme had been seated with the deceased.
He observed the appellant when he came to the tavern and when he
returned to the vehicle
to fetch the firearm. All the witnesses
testified that the appellant came, called Daphne and returned to the
bakkie, although they
could not say what he did at the bakkie. Only
Molokomme said that he fetched a firearm and returned to where
Stanley and the others
were seated.
[14] Counsel for the appellant
criticized Stanley’s evidence in that he admitted being under
the influence of alcohol, that
he contradicted Daphne when he said
they were all drinking alcohol and that he contradicted his statement
to the police. In my
view the criticism is ill-founded and
immaterial. There is no evidence that Stanley was so inebriated that
he could not remember
the incident. Whether Daphne had alcohol or
not, which she denied, is of no consequence and irrelevant. The
contradiction in Stanley’s
statement to the police is also
immaterial in that it refers to whether or not after the appellant
fired the first shot, he put
the firearm back in its holster. The
appellant himself was not sure whether he did so before the alleged
struggle over the firearm
broke out. It was put to Stanley that he
did not see the appellant pointing the firearm at the deceased.
However, counsel for the
appellant, conceded before us correctly so,
that the appellant did not have to know the whereabouts of the
deceased at the time
of the shooting.
[15] In the present case, the
appellant foresaw the possibility that his firing a shot, whether
into the ground or in the air, in
the presence of many people, would
result in harm and he reconciled himself to this possibility (see
S
v Sigwahla
1967 (4) SA 566
(A) at 570B-C;
S v van Zyl
1969
(1) SA 553
(A) at 557A-E;
S v Mtshiza
1970 (3) SA 747
(A) at
752A-H). As I have already mentioned, it is significant that the
defence at no stage put to the state witnesses the appellant’s
allegation that four shots went off during the struggle over the
firearm. The trial court accepted that two gun shots were fired
and
one of the bullets fatally wounded the deceased.
[16] The other witnesses ran away
after the first shot was fired, but as I said, they corroborated
Stanley’s evidence on what
happened before the first shot was
fired. The version of the State is fortified, to some extent, by the
behaviour of the appellant
after he was made aware that he had shot
someone. He did a noble thing by proceeding to the injured person but
did not offer assistance,
he simply walked away. One would have
expected him to give assistance, for example, to take him quickly to
a hospital. He said
that he got a fright, because he thought the
people might attack him, but he did not drive to the nearest police
station to report
this unfortunate happening. He left the scene
without uttering a word until he was arrested months later. His
actions after the
shooting are incongruous with his plea that it was
all an unfortunate accident.
[17] In
Rex v Dhlumayo
1948 (2)
SA 677
(A) at 702, Davis AJA remarked that:
‘
It
would be most unsafe invariably to conclude that everything that is
not mentioned [in a judgment] has been overlooked.
… Lord Wright cites with apparent approval … the
statement of Lord Buckmaster in
Clarke’s
case; [
Clarke
v Edinburgh and District Tramways Company
(1919
S.C (H. L.), 35] with which Lord Atkinson had expressly associated
himself, that
“
Courts
of appeal should not seek anxiously to discover reasons adverse to
the conclusions of the learned Judge who has seen and
heard the
witnesses and determined the case on the comparison of their
evidence.”’
Marais JA in
S v Naidoo
2003
(1) SACR 347
(SCA) para 26 also emphasized the above quotation by
saying the following:
‘
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be vitiated
by material misdirections or are shown by the record to be wrong.’
Counsel for the appellant, in this
case, did not suggest that the trial court’s conclusions were
vitiated by material misdirections
or were shown to be wrong.
[18] On the basis of the above reasons
I find that the appeal must fail. The trial court’s findings
were correct, unassailable
as confirmed by the court below. I now
turn to the question of sentence.
[19] It is trite that sentencing is
pre-eminently in the discretion of the trial court. The offence with
which the appellant has
been charged is unarguably a very serious
one. It is also common cause that it falls within the sentencing
regime of the
Criminal Law Amendment Act 105 of 1997
read with
Part
II
of Schedule 2 of the Act. The prescribed sentence is 15 years
imprisonment, unless substantial and compelling circumstances exist
to justify a lesser sentence. The trial court carefully considered
all the necessary factors and concluded, correctly so, that
no
substantial and compelling circumstances existed to justify a lesser
sentence. This court is therefore not at large to interfere
with the
sentence in the absence of a misdirection. Counsel for the appellant,
correctly so, in my view, conceded that he cannot
forcefully argue
against the sentence imposed. I find that the appeal against sentence
also cannot succeed.
[20] In the result the following order
is made:
The appeal against conviction and
sentence is dismissed.
________________________
J B Z SHONGWE
JUDGE OF APPEAL
APPEARANCES
FOR APPELLANT: L M Manzini
Instructed by:
Legal Aid Board, Pretoria;
Legal Aid Board, Bloemfontein.
FOR RESPONDENT: E V Sihlangu
Instructed by:
Director of Public Prosecutions,
Pretoria;
Director of Public
Prosecutions, Bloemfontein.