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[2012] ZASCA 2
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S v Cloete (317/11) [2012] ZASCA 2 (2 March 2012)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 317/11
In the matter between:
FRANCOIS STEPHANUS
CLOETE
…..............................................................
Appellant
and
THE STATE
…...............................................................................................
Respondent
Neutral
citation:
Francois Stephanus Cloete v The
State
(317/11)
[2011] ZASCA 02(2 March 2012)
Coram:
MTHIYANE DP, MAYA, MALAN,
WALLIS JJA and PETSE AJA
Heard:
23
November 2011
Delivered:
2 March 2012
Summary:
Murder – what constitutes –
whether appellant under legal duty to prevent death – cause of
death and common purpose
not proved – Appellant’s actions
amounting to assault with intent to do grievous bodily harm –
sentence –
imposition of – factors to be taken into
account – appellant dragging the deceased on the road for 50 to
70
metres
causing him severe injuries – wanton disregard of the victim’s
rights to physical integrity and privacy a relevant
factor.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (Ledwaba, Msimeki and Tlhapi JJ, sitting
as a court of appeal):
The appeal is upheld and
the order of the court below dismissing the appeal is set aside
and replaced with the
following:
‘
1
The appeal is upheld.
2 The appellant’s
conviction for murder is set aside and replaced by a conviction for
assault with intent to commit grievous
bodily harm.
3 The appellant’s
sentence is set aside and replaced by a sentence of four years’
imprisonment.’
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
PETSE AJA (MTHIYANE
DP, MAYA, MALAN, and WALLIS JJA CONCURRING):
Introduction
[1] On 11 May 2007 the
appellant was convicted in the Regional Court sitting in
Schweizer-Reneke on a charge of murder. On 8 November
2007 he was
sentenced to ten
years’
imprisonment.
[2] Disenchanted with his
conviction and sentence he appealed against both to the North Gauteng
High Court, Pretoria – with
leave granted by it on petition.
That court subsequently dismissed the appeal in a judgment by Ledwaba
J, with Msimeki and Tlhapi
JJ concurring. He now appeals to this
court with leave granted by the court below on 12 November 2010.
[3] The deceased,
Thulasizwe Hlatswayo, died on 13 February 2006 from the consequences
of a subdural haemorrhage. Prior to that
he had been subjected to
various assaults by different people including the appellant. The
problem, however, is that the medical
evidence is insufficient to
establish beyond a reasonable doubt which of these assaults caused
his death. The factual circumstances
in which this arises are set out
below.
[4] In convicting the
appellant the trial court found that he was under a legal duty to
protect the deceased – whom he had
earlier arrested by way of a
citizen’s arrest – from being harmed by others whilst he
(the deceased) was under his
care. In other words the conviction was
said to be based not on his own conduct in assaulting the deceased,
but on his failure
to protect him from an assault by others. That
conclusion raises a number of difficulties that will be dealt with
below, both as
to the cause of death and as to the implications of
this approach.
[5] It must be mentioned
at the outset that the charge sheet contained no allegation that the
appellant was being charged on the
basis of his alleged failure to
discharge the legal duty to protect the deceased from harm by others.
Nor did it allege that the
appellant had acted with a common purpose
with the persons who assaulted the deceased, and probably caused his
death. That raises
a further technical question whether the charge
sheet properly reflected the case that the appellant was being called
upon to meet
but again it is unnecessary to decide this.
[6] At his trial the
appellant pleaded not guilty. He nonetheless admitted that: (a) the
deceased was the person reflected in the
charge; (b) the deceased
died on 13 February 2006 at or near The Bullet’s Pub,
Schweizer-Reneke; (c) the deceased died as
a result of the injuries
sustained at the place of assault; (d) the content of the post-mortem
report; and (e) that the blood stain
found on his shirt was the blood
of the deceased.
Evidence
[7] Mr Tshekoemang Freddy
Kit was the first witness to testify on behalf of the State. His
evidence is as follows. On the night
of the murder, he was at
Bullet’s Pub restaurant where he was employed. At about 22h00
he stepped out of the building to
relieve himself at the outside
toilet whereupon he saw a red BMW motor vehicle pulling up near the
restaurant. A short while later
a red Toyota van left the premises.
He also saw two men pushing a dark blue BMW motor vehicle which
belonged to one of the patrons.
Upon witnessing these two incidents
he raised the alarm by telephoning the owner of the restaurant, Mr
Genade, and reported what
he had seen.
[8] The owner responded
immediately and upon his arrival at the restaurant fired a warning
shot into the air. He (the owner) then
enquired from Kit as to the
direction which the red Toyota van had taken. The owner, Kit and
another man unknown to Kit, boarded
the owner’s motor vehicle
and drove in hot pursuit of the Toyota van. As the owner, Kit and the
unknown man were driving
along they came upon a Toyota Tazz motor
vehicle parked on the side of the road next to which there were a
number of people standing.
The unknown man who was also a passenger
in the owner’s vehicle alighted at that spot whereafter Kit and
the owner drove
away. Further on, they came upon the red Toyota van
that was abandoned on the road. The owner then telephoned his wife
and asked
her to arrange for someone to bring the keys for the van.
They eventually returned to the restaurant. On their arrival there
they
found the police present. Kit also saw the deceased lying on his
back with his pair of trousers pulled down to his knees and next
to
him was his T-shirt. Kit then returned to his workplace where he
remained until he knocked off after which he went to bed. He
testified that he knew the appellant by sight only, having seen him
on various occasions when the appellant visited the restaurant.
[9] Ms Kornelia
Petronella Genade was the second witness called by the State. She
testified that she co-owned the Bullet’s
Pub restaurant with
her husband. On the fateful night she was together with her husband
who received a telephone call which prompted
him to leave, saying
that there were people stealing cars. He took his shotgun with him.
As her husband left she peeped through
the window after which she
also went out. When she came outside she saw a group of people
milling around and joined them. She then
observed two human figures
across the road about one hundred metres away kicking something on
the ground. She then left that spot
where she was and returned to her
residence. After seeing a police van present outside she went out
again. She enquired from one
of the police officers as to what they
had come there for. The policeman pointed to a person who was lying
on the ground across
the road. Next to him were the appellant and his
former co-accused. She said that she overheard the appellant telling
his former
co-accused that he (the appellant) ‘will hit the
black to death’. This was a translation from a more idiomatic
expression
in Afrikaans (‘ek sal hom dood poes’). The
appellant had placed his foot on the person lying on the ground.
Under cross-examination
she confirmed that it was possible she had
heard some discussion between the appellant and his co-accused about
his chasing the
man on the ground. It was put to her that the accused
denied saying that he would kill the deceased and she accepted that
he might
have said something like ‘here lies the poes who
steals cars’. The appellant and his former co-accused stood
next to
a Toyota Tazz motor-vehicle. She could not say whether the
appellant had in fact said that the deceased could ‘stand up
now’
as the police were present.
[10] The appellant
testified that at approximately 21h30 on the night the deceased died
he arrived at Bullet’s Pub travelling
in a BMW motor vehicle
together with his erstwhile co-accused to ‘enjoy a few drinks’
thereat. As they were about to
leave they saw the BMW motor vehicle
being pushed in reverse by two persons with a third person seated on
the driver’s seat.
When they shouted at these persons they
abandoned the vehicle and fled the scene in different directions.
They gave chase, with
him pursuing one of the culprits for
approximately seventy to one hundred metres. He gave up the chase
when the culprit he was
pursuing disappeared into the darkness. He
was then making his way back to Bullet’s Pub when someone
unexpectedly emerged
in front of him. He wrestled with this person
and eventually subdued him and dispossessed him of an object that he
was carrying
in his hand which turned out to be a cellular telephone.
[11] The appellant stated
that he thereafter pulled the man through a barbed wire fence taking
him back to the restaurant. As he
was tired he paused to take a
breather whilst the person he apprehended lay on the ground. At this
juncture a Toyota Tazz motor
vehicle with four occupants pulled up
next to him. The four occupants then assaulted the deceased by
kicking, stamping on him and
striking him with some object whilst the
appellant was busy trying to telephone his erstwhile co-accused to
arrange a bakkie to
convey the deceased to the police. But he was
unsuccessful in his endeavours. He then returned to the spot where he
had left the
deceased and found him seated on the ground
with his head leaning
against his raised knees. At that stage the four men who assaulted
the deceased had left with three of them
returning to the pub. As no
vehicle was available to convey the deceased the appellant, assisted
by one of the four assailants,
held the deceased by his shoulders and
pulled him, taking him to the pub. The deceased, however, was
wrestling and kicking in an
attempt to free himself. Because the
deceased was resisting they decided to pull him by his feet –
whilst he lay on his back
– across the tarred road back to the
pub.
[12] When the police
arrived the appellant informed them that ‘hier lê die
bliksem … hier lê die bliksem
wat die karre gesteel het
en weggehardloop’ (‘here lies the bliksem who stole cars
and [then] ran away’) referring
to the deceased. The appellant
accepted that the peeling of the skin on the deceased’s back,
skull and buttocks was directly
attributable to his dragging the
deceased across the road to the pub. In cross-examination he conceded
that the superficial injuries
that he sustained on the fateful night
were not caused by the deceased. He also said that he struck the
deceased on his chest with
his elbow and kicked him on his legs as he
lay on the ground subdued. The four persons who assaulted the
deceased whilst he lay
on his stomach kicked him on his face and body
and also hit him on the head with an object he subsequently learnt
was a plank.
The assault of the deceased lasted about fifteen
minutes. Although he could have remonstrated with the perpetrators of
this assault
he did not do so for he believed that they would not
have listened to him. Nor could he have intervened as he was tired.
When the
four persons stopped assaulting the deceased he found him
bleeding from his head and face with his clothes drenched in blood.
As
he dragged the deceased from that spot over a distance of fifty to
seventy metres the deceased’s buttocks, back and head were
rubbing against the surface of the ground. He confirmed, that when he
dragged the deceased it was with full appreciation that his
conduct
might cause the deceased bodily injuries.
[13] Two witnesses were
called by the trial court in terms of s 186 of the Criminal Procedure
Act 51 of 1977 (the Act). They were
Constable Jan Segopotso Peo and
Dr Moorad who were, respectively, the police officer who attended at
the crime scene and the pathologist
who performed the post-mortem
examination of the deceased.
[14] Peo testified that
he met the appellant’s erstwhile accused outside the pub. The
latter
reported to him that there had been an attempt to steal his car. The
appellant called out to him to ‘Come and see.
Here lies the
person who wanted to steal the car. I chased him and caught him in
the veld’.
1
He then approached the appellant and observed that the
latter had his one foot on the head of the deceased who lay on the
ground.
He asked the appellant if he knew the deceased and the
appellant answered in the negative. The appellant then spilt the
contents
of the glass he had in his hand on the deceased. He then
asked his colleague Constable Galai to call an ambulance and request
Inspector
Nthele to come to the scene. He left the scene upon
Inspector Nthele’s arrival.
[15] In cross-examination
it was put to Peo that the appellant told the deceased to get up now
that the police were there and said
to him that there had been
nothing wrong with him when the police came. Peo did not accept this
proposition and said that the appellant
had said to the deceased –
in his presence – that ‘he must get up and try to run
away as he did before the police
came’.
[16] Dr Moorad testified
that he conducted the post-mortem examination of the deceased and
compiled the post-mortem report. He confirmed
his finding that the
deceased suffered a left side subdural haemorrhage and swelling of
the brain due to a blunt force head injury.
Although he confirmed
that the death of the deceased was not instantaneous he could not say
with any degree of certainty what the
length of the period of
survival after the initial head injury would have been. But he stated
that once the brain started to swell
it could no longer control
pressure with the result that all systems within the brain would fail
following the initial haemorrhage,
the swelling and the contusions
that the deceased had on the brain. Under examination by the court
the doctor accepted the proposition
put to him that it is quite
possible that the deceased was already fatally injured, when he was
dragged by the appellant, after
the intervening assault by the four
occupants of the Tazz motor vehicle. His evidence requires
repetition:
‘
Court:
Now would you say that, being dragged on a tarred road for that
distance, which we estimate between 70 and 100 metres, could
also
fall within that blunt force head injury?
Witness:
It could fall within the blunt force injury, but what is difficult
for me to offer an opinion based on the pathological
findings is
that, a subdural haemorrhage which is the haemorrhage on the left
side which I was talking about, occurs often in assaults,
but it can
also occur in falls. So if one is given a scenario of the deceased
being dragged by his feet, presumably it is a gravel
road, with the
head bumping.
Court:
It is a tar road.
Witness:
Is it a tar road? Then, still I am assuming the head would be
subjected to a fair amount of bouncing. A subdural haemorrhage
is
basically caused, it is velocity injury, which causes the brain, or
the head being moved in an anti-postural direction. And
what happens
is the veins which insert into the surface of the brain, because of
the velocity injury therefore get ruptured and
that leads to the
haemorrhage. But, as I said, it could also happen by being punched
against a hard surface so that, the head is
moving forward and
backward as well.
.
. .
Cross-examination:
. . . Doctor, a blunt force head injury is a type of injury which one
normally gets when a person is hit several
times with an object? Is
that correct? – It is one of the findings you could get, yes.
It
often occurs when a person has been hit with a stick or a knobkierie
several times or even with a fist or kicked on the face
or on the
head? – Yes.
And
after several of these blows have been administered, to put it that
way, death does not occur instantaneously, because sometimes
people
die two days after the application of such force. Is that correct? –
That is correct.
Even
longer sometimes? – That is correct.
Now
you do agree, the scenario as put to you by the Court, this man was
hit several times, kicked in the face, hit with some or
other object
as well. He was basically hit into submission after some time he was
dragged. You would agree with me that, it is
quite possible and
likely that, at that stage, he had been fatally injured already? You
cannot
say
(inaudible)? – No, I
cannot, and certainly after
an
assault that
(inaudible)
severe, judging by the external injuries and the photographs, it is
quite likely, yes.’
(Counsel were agreed
that the words I have inserted and italicised accurately convey the
gist of what the typist found inaudible.)
[17] Having summarised
the evidence adduced at the trial, the trial court stated that as the
appellant was charged with murder it
was incumbent upon the State,
which bore the
onus, to prove that the
deceased died as a result of the injuries unlawfully and
intentionally
inflicted on him by the
appellant. Accepting that the deceased had earlier been assaulted by
four men before the appellant dragged
him on the ground for fifty to
seventy metres it proceeded to ask itself whether the death of the
deceased was brought about by
the dragging to which the appellant had
admitted or the earlier beating to which the appellant was not a
party.
[18] In the event the
trial court found that if regard was had to the fact that the
appellant: (a) had earlier apprehended the deceased
to bring him to
justice; and (b) that the deceased was – having been
apprehended – in the control and custody of the
appellant, the
appellant was under a legal duty to protect the deceased from attacks
by others which the appellant failed to do.
Consequently the trial
court found that the death of the deceased was caused by the
appellant’s omission.
[19] I should, however,
say that the concluding statement in the judgment of the trial court
is ambivalent as to the actual basis
for the appellant’s
conviction. It said:
‘
In
the result I hold that the accused person is because of the death of
the deceased by his omission he also conceded that during
this
dragging he foresaw also that the deceased could suffer the injuries
he sustained and that as I have submitted, the injuries
which he has
sustained, they were fatal.’
I shall return to this
aspect later.
[20] The
court below, as I have already stated, dismissed the appeal against
both the conviction and sentence. In dismissing the
appeal against
conviction, it found support in the decision of this court in
S
v Musingadi & others
2005 (1) SACR 395
(SCA) in which the decision in
S v Chimbamba &
another
1977 (4) SA 803
(RA) was relied upon.
In
Musingadi
this
court in dismissing the appellants’ appeal against their
conviction for murder had regard to the fact that: (a) the appellants
were responsible for the deceased’s captive state as part of
the joint enterprise to rob; (b) when they departed, they left
the
deceased trussed up and helpless; (c) the appellants knew, when they
departed, that no 2 [accused] was intent on killing the
deceased; and
(d) the appellants must have known, and therefore knew, that the
deceased was powerless to resist or withstand no
2’s [accused]
murderous intent.
[21] The court said:
‘
The
appellant’s conduct of leaving the deceased who was helpless
with the four men and did nothing to stop them from assaulting
the
deceased was unlawful. He clearly saw and has described how the
deceased was beaten. Even if his main aim was not to kill the
deceased there is no doubt that in exacerbating the deceased’s
injuries by dragging him he subjectively foresaw that death
may
possibly ensue and reconciled himself with the possibility. Appellant
under cross-examination said he foresaw that the dragging
would cause
bodily injuries to the deceased. In dragging him for a distance of
about fifty to seventy metres on tarred road he
definitely foresaw
that the unlawful result may ensue. Furthermore, the appellant’s
conduct and vile utterances at the pub
in the presence of the police
clearly show that he did not care about the wellbeing of the
deceased. The appellant was correctly
convicted of murder.’
[22] With respect, I find
myself unable to subscribe to the approach of the court below for
reasons that will become apparent later
in this judgment.
Argument
[23] In this court
counsel for the appellant mounted a three-pronged attack against the
conviction. He submitted that: (a) the appellant
was not under a
legal duty to prevent the assault on the deceased by the four persons
travelling in the Toyota Tazz and even if
it were found that he was
under such legal duty there was not even a shred of evidence –
let alone proof beyond reasonable
doubt – to controvert the
appellant’s assertion that he
could not have prevented
the assault; (b) there was no evidence beyond reasonable doubt to
prove that the assault attributed to
the appellant causally
contributed to the death of the deceased; and (c) the state failed to
allege, let alone prove beyond reasonable
doubt, that the appellant
acted in pursuance of a common purpose with the four assailants whom
he saw stamping on and kicking the
deceased. I hasten to deal with
each of these contentions in turn.
Legal duty
[24] The point relating
to the question whether the appellant was under a legal duty to
prevent the assault on the deceased by the
four occupants of the
Toyota Tazz can be disposed of on the basis of what the appellant
said at the trial when he testified in
his defence. His evidence was
that at that stage he was tired and realised that his intervention
would not have had any effect
as the four assailants would not have
listened to him. There was no evidence adduced by the State to
controvert this and it was
not challenged in cross-examination by the
prosecutor. This conclusion renders it unnecessary, in my view, to
consider the allied
question whether the fact that the appellant was
not alerted in the charge sheet or otherwise that this was the case
that he was
called upon to meet should have, in itself, led to the
acquittal of the appellant on the charge of murder.
Causal link
[25] The best that can be
said in favour of the State with regard to this point is that the
doctor who was called at the behest
of the trial court testified
that: (a) the assault on the deceased by the four persons did not
result in an instantaneous death;
(b) that the deceased would have
survived for a while after suffering a subdural haemorrhage. The
doctor was asked specifically
in cross-examination if the fatal
injury could have been caused by the prior assault by the men in the
Toyota Tazz and he said
that he thought that that was ‘quite
likely’. It therefore goes without saying that this shortcoming
in the State’s
case must redound to the benefit of the
appellant. On a proper reading of the doctor’s evidence it is
impossible to say with
the requisite degree of certainty that the
appellant’s conduct contributed causally to the death of the
deceased. The evidence
is at least consistent with the possibility
that the fatal injury was sustained by the deceased as a result of
the blows inflicted
by the four assailants from the Toyota Tazz motor
vehicle.
Common purpose
[26] With respect to
common purpose it was argued, with reference to an abundance of
judgments of this and other courts, that the
appellant could not have
been convicted of murder on two bases. First, it was submitted that
he was not charged on the basis that
he had acted in the furtherance
of a common purpose with the four assailants. Second, there was no
evidence adduced by the State
to prove the prerequisites for a
successful invocation of the doctrine of common purpose.
[27] I do not consider it
necessary to deal with this part of the appellant’s argument in
any great detail. Suffice
it to mention that it was, in any event, never part of the State’s
case that the appellant
in doing whatever he was alleged to have done acted in the
furtherance of a common purpose with anyone.
On the contrary the
charge sheet explicitly
stated that he was
charged with murder in that ‘upon or about 13 February 2006 and
at or near Schweizer-Reneke . . . the accused
did unlawfully and
intentionally kill Thulasizwe Hlatswayo’ and no less or more.
The witnesses who testified on behalf of
the State sought to support
the case that the appellant was called to meet and no more.
[28]
Moreover the evidence adduced by the State, such as it was, came
nowhere close to establishing any of the pre-requisites of
common
purpose.
2
The problems of the State were also compounded by the
absence of any countervailing evidence to that of the appellant which
militates
against the notion that the appellant acted with a common
purpose with the four assailants who assaulted the deceased.
Accordingly
the reliance by the court below on
Musingadi
must, with respect, be taken to be erroneous.
To sum up, there was no proof of any prior agreement between the
appellant and the
four assailants who assaulted the deceased. Nor was
there any proof that in dragging the deceased – after the four
assailants
had left – the appellant manifested an association
with or a sharing of a common purpose with those four assailants.
[29] I revert now to the
concluding paragraph of the judgment of the trial court quoted
earlier in this judgment. The comment I
wish to make in regard
thereto is that it is susceptible to the interpretation that the
appellant was convicted of murder on the
basis that he was either
under a legal duty to prevent the assault by the four assailants or
that in any event the injuries attributed
to the dragging of the
deceased by the appellant – which he admitted to have foreseen
– caused the death of the deceased.
In other words the cause of
death was irrelevant as on either basis the appellant was criminally
responsible therefor. It must
be said that on either basis the
conviction of the appellant for murder is, for the reasons already
stated, unsustainable. That
renders it unnecessary to consider
whether it can ever be permissible to seek a conviction on this
basis.
[30] Counsel for the
State initially sought to persuade us that the murder conviction of
the appellant was
supportable. But she soon realised that apart from all else there was
no evidence, which met the requisite threshold
in a criminal trial,
to sustain the verdict of the trial court.
[31] The
question that now arises for determination is what offence, if any,
is the appellant guilty of. Counsel for the appellant
at the outset
candidly accepted that the appellant could not escape a conviction of
assault. Nevertheless he initially argued that
the State failed to
prove beyond a reasonable doubt that the appellant had the requisite
intent to cause the deceased grievous
bodily harm. In elaboration he
submitted with reference to sound judicial authority that the nature
of the injuries suffered by
the deceased as a consequence of the
dragging is not the decisive factor in determining whether the
appellant had the requisite
intent to do grievous bodily harm.
3
[32] When it
was pointed out to counsel by this court that the appellant had
admitted under cross-examination that when he dragged
the deceased on
a hard surface (in this case being a tarred road and gravel) with his
back, head and buttocks rubbing on the hard
surface he foresaw that
the friction between the body and the ground would cause the deceased
grievous bodily harm, he was constrained
to concede that the evidence
established that the appellant had the requisite intent to cause the
deceased grievous bodily harm.
4
In any event it is apparent from the record that all the
constituent elements of the substantive crime of assault with intent
to
do grievous bodily harm were present.
5
With respect to the form of intent that the appellant
had it bears mention that
dolus eventualis
suffices.
6
Although the appellant
was charged with murder a verdict of assault
with intent
to do grievous bodily harm was, in terms of s 258
(b)
of the Act, competent.
7
[33] Following this
concession the question arose as to whether the matter should then be
remitted to the trial court for it to
consider sentence afresh in the
light of this judgment. Given the long passage of time and with a
view to avoiding further delay
in the disposal of the matter both
counsel were agreed that the interests of justice dictated that the
matter be dealt with to
finality in this court. In my view that
approach commends itself.
[34] As to
an appropriate sentence counsel for the appellant submitted that the
appellant has already served a period of about nine
months in jail.
Thus it was urged upon this court to consider a sentence of four
years imprisonment under correctional supervision
in terms of s
276(1)(
i
) of the Act.
Counsel for the State argued for a sentence of four years’
direct imprisonment or if this court were against
her on that score
she aligned herself with the argument advanced on behalf of the
appellant.
[35] The appellant’s
counsel drew our attention to the following mitigating factors in the
appellant’s favour: (a) he
is gainfully employed; (b) he has
three minor children one of whom has physical and mental
disabilities; (c) he was remorseful;
and (d) the occurrence has
caused him grave emotional upheavals to a point where his life nearly
fell apart. In addition, it was
submitted that the appellant acted in
the heat of a threatening car theft and without premeditation while
he was to some extent
under the influence of intoxicating liquor.
However, no matter how important these factors may be we do not have
the advantage
that a trial court would have of a current detailed
pre-sentencing report in which the advantages as well as the
disadvantages
of a sentence of correctional supervision would be
canvassed and the capacity of the relevant authorities to supervise
such a sentence.
[36]
Nevertheless, as it behoves this court, these mitigating factors must
be weighed against the aggravating features of this case.
At the time
of conviction the appellant had a recent previous conviction for
assault in respect of which he paid a fine of R800.
The assault of
the deceased both at the time of his arrest and when he was dragged
on the ground, virtually naked, was gratuitous.
The appellant
accepted that after he had subdued
the deceased he struck
him with an elbow on his chest and kicked him on his legs. Again when
the deceased could barely walk on his
own – after an assault by
the four assailants – the appellant dragged him over a hard
surface for fifty to seventy
metres. He dragged a helpless person
who, on his own account, was severely injured and bleeding from the
head and face thus manifesting
callousness and utter insensitivity to
the plight of the deceased. He gratuitously violated the deceased’s
rights to privacy
and physical integrity. The skin on the deceased’s
back was virtually removed and he must have suffered agonising pain.
When
the deceased was found by the police he was virtually in a naked
state, severely battered and bruised. Unfazed by the presence of
the
police the appellant used derogatory terms in referring to the
deceased. He showed utter contempt for the dignity of the deceased
by
deliberately spilling liquor on him and placing his foot on his head.
Thus there can be no doubt that the deceased’s rights
were
gratuitously violated in many respects in a most callous, demeaning
and dehumanising manner.
[37] Accordingly such
conduct warrants recognition in the determination of an appropriate
sentence to reflect the natural indignation
that the community would
feel at conduct of that kind. This is all the more so if one has
regard to the fact that there are also
utterances attributed to the
appellant of and concerning the deceased which, on the face thereof,
had racial overtones. Given our
painful past such utterances are
inimical to the ethos of our Constitution and the attitude evinced
against the deceased aggravated
the assault. It also bears mention
that our Constitution firmly sets its face against all forms of
violence and seeks to create
a society in which a culture of respect
for human rights is inculcated.
[38] Having
regard to all the aforegoing factors and the submissions of counsel,
to which I have given anxious consideration, I
have no doubt that a
sentence of imprisonment is called for. That leaves the question
whether the appellant is a suitable candidate
for correctional
supervision. Rather than pre-empt that issue by exercising our powers
under s 276(1)(
i
) of
the Act I think it preferable to leave it in the hands of the
officials of the Department of Correctional Services who will
be
better situated to determine the relevant facts and assess the
suitability of the appellant for such a sentence. If appropriate
an
application can then be made in terms of s 276A(3) of the Act for the
conversion of his sentence into one of correctional supervision.
Order
[39] In the result the
following order is made:
The appeal is upheld and
the order of the court below dismissing the appeal is set aside
and replaced with the
following:
‘
1
The appeal is upheld.
2 The appellant’s
conviction for murder is set aside and replaced by a conviction for
assault with intent to commit grievous
bodily harm.
3 The appellant’s
sentence is set aside and replaced by a sentence of four years’
imprisonment.’
___________________
X M Petse
Acting Judge of Appeal
APPEARANCES
For
the Appellant: B Roux SC
Instructed
by: Couzyn Hertzog & Horak, Pretoria
Spangenberg, Zietsman &
Bloem, Bloemfontein
For
the Respondent : P du Plessis (Ms)
Instructed
by: Director of Public Prosecutions, Pretoria
Director of Public
Prosecutions, Bloemfontein
1
The
evidence was given in Afrikaans and this is a translation.
2
S
v Thebus & another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC)
; S v Mgedezi &
others
1989 (1) SA 687
(A) at 705–706C;
S v Musingadi &
others
2005 (1) SACR 395
(SCA);
S v Jiya & others
1991
(2) SA 52
(E);
S v Mzwempi
2011 (2) SACR 237
(ECM).
3
S
v R
1998 (1) SACR 166
(W) at 169f–170b.
4
S
v Erasmus
2005 (2) SACR 658
(SCA) para 10.
5
C
R Snyman
Criminal Law
5
th
ed 461-462.
6
R
v Basson
1961 (3) SA 279
(T) AT 282C–283C.
7
Section
258 reads: If the evidence on a charge of murder or attempted murder
does not prove the offence of murder or as the case
may be,
attempted murder, but –
. . .
(b) the offences of assault with intent to do grievous bodily harm;
. . .
the accused may be found guilty of the offence so proved.