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[2010] ZAGPPHC 291
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Makgatho v S (A815/08) [2010] ZAGPPHC 291 (12 January 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
DIVISION)
CASE
NO.: A815/08
DATE:
12 JANUARY 2010
In the matter
between
NELSON SEPURU
MAKGATHO
............................................................
Appellant
And
THE
STATE
............................................................................................
Respondent
CORAM: MAVUNDLA J
et EBERSOHN AJ
DATE HEARD: 14
September 2009
JUDGMENT HANDED
DOWN ON: 1 JANUARY 2010
JUDGMENT
MAVUNDLA J:
[1] The appellant
was arraigned on a charge of murder before the magistrate. The
accused pleaded not guilty.
(2] The usual formal
admissions were made by the appellants’ counsel. It was also
admitted that the death of the deceased
was caused by a gunshot fired
by the gun of the appellant but the appellant denied that it was
aimed at the deceased. His defense
was that he and other state
witnesses were wrestling over the gun and that a shot went off
hitting the deceased.
[3] The state
witness Stanley Phuti testified that the appellant was the aggressor,
that the appellant on that day came twice to
have a woman by the name
of Daphne accompany him but she refused. On the second occasion,
after she refused again, the appellant
slapped her in front of the
witnesses. The appellant then assaulted one Nico and also the witness
Phuti.
[4] The appellant
then produced a firearm. The appellant grabbed the witness by the
hand and fired a shot into the air and then
fired a nother shot in
the general direction of the people in front of him. The appellant
then left.
[5] It was later
found that the second shot tired by the appellant hit the deceased.
Other w itnesses also testified and they corroborated
the version of
Stanley Phuti. The appellant testified and stated that when he spoke
to Dapline the bystanders anacked him and he
took out his gun. There
was then a scuffle over the gun and 4 shots went off.
[6] The magistrate
very carefully analysed the evidence and concluded that there was
dolus eventualis present on the part of the
appellant and he
convicted the appellant. The evidence and the reasoning of the
magistrate was carefully considered. The magistrate
did not err and
the conviction is in order.
[7] Regarding the
appeal against sentence the magistrate duly considered the crime, the
interest of society and the particular personal
circumstances of the
appellant when sentencing the appellant. The appellant didn’t
succeed to convince this court that the
magistrate erred in this
regard.
[8] It is clear that
the appeal cannot succeed.
[9] I accordingly
make the follow ing order:
1. The conviction
and sentence of the appellant is confirmed.
2. The appeal
against the conviction and sentence is dismissed.
JUDGE OF THE HIGH
COURT
P.Z EBERSOHN AJ
ACTING JUDGE OF
THE HIGH COURT