About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2018
>>
[2018] ZAECPEHC 46
|
|
S v Mabope (CC40/2017) [2018] ZAECPEHC 46 (21 August 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
In
the matter
between:
Case
No: CC40/2017
THE
STATE
And
PHUMZILE
MABOPE
Accused
Coram:
Chetty J
Heard:
17 August 2018
Delivered:
21 August 2018
JUDGMENT
Chetty
J:
[1]
The accused stands arraigned on a multiplicity of charges committed
during the period October 2015 to February 2017. At the
commencement
of the trial he pleaded guilty to counts 1, 2, 3 and 6 (Housebreaking
with intent to steal and theft), 7 (Theft),
10 (Murder) and 11
(Housebreaking with intent to steal and theft) and not guilty to the
remaining counts. In amplification thereof
a written plea explanation
was handed in pursuant to the provisions of sec. 112 (2) of the
Criminal
Procedure Act
[1]
(the Act) as exhibit “A” wherein the factual basis
underlying the individual pleas was succinctly tabulated. Mrs
September
,
who appears on behalf of the State, accepted the pleas tendered only
in respect of counts 1, 2, 3, 6, 7, 10 and 11 but joined
issue with
the factual matrix proffered underpinning the remaining counts. It is
consequently wholly unnecessary to regurgitate
the aforesaid content
save to emphasize that extant the plea, they constitute an admission
of all the essential elements in respect
of those charges and
warrants a finding of guilt thereanent. I turn thus to consider those
to which the accused pleaded not guilty,
viz, counts 4, 5, 8 and 9.
[2]
Counts 4 and 5 are interrelated and allege that –
“
4.
Housebreaking
with intent to rob
IN THAT upon or about 22
January 2017 and at or near no. […] V. Street, Central,
Uitenhage, in the district of Uitenhage,
the said accused did
unlawfully and intentionally break open and enter the house of
ELIZABETH COETZER
with the intention to commit robbery.
5.
Robbery
with aggravating circumstances
IN THAT
upon
or about the date and place mentioned in count 4, the accused did
unlawfully and with the intent to induce her to submit, do
violence
to
ELIZABETH COETZER
,
and 86 year old female person, and did then and there by means of
such force, and with intent to steal, take from the possession
of the
said
ELIZABETH COETZER
,
cash in the amount of R400-00, her property in her lawful possession,
and did rob her of same.
Aggravating circumstances
being present in that the accused, during the commission of the
robbery wielded a knife and threatened
to stab
ELIZABETH
COETZER
.”
[3]
The accused, in amplification of his not guilty plea, delineated its
factual basis as follows –
“
3.4
Counts
4 and 5: Housebreaking with the intent to steal and theft and Assault
(g) The incident occurred
on 22 January 2017 in the afternoon at […] V. Street, Central,
Uitenhage, in the district of Uitenhage.
I unlawfully and with the
intent to steal broke into and entered the house situated at the
above address by breaking the window
above the back door. I noticed
the owner of the house was at home and sitting in the living room.
(h) I was in the kitchen
stealing food and I then decided to leave it in the kitchen and
proceeded to the bedroom. Whilst I was
in the bedroom trying to open
the drawers I heard the owner of the house moving to her bedroom. I
decided to run away but as I
left the bedroom she was about to enter
the bedroom and she found me in the entrance of her room. She asked
me not to hurt her.
I demanded money from her. She proceeded to her
room and I followed her. She handed me cash to the value of R400.00.
(i) She then enquired
where I entered her house and wanted to follow me to see where I came
in. I then aggressively pushed her to
the ground and she fell. I then
ran away.
(j) I further admit that
the house and the property inside the house as well as the money that
was handed to me was in the lawful
possession of Elizabeth Coetzer
and that I stole from her R400.00.”
The
rubric prefacing the accused’s narrative of the circumstances
under which these offences were committed is at variance
with the
plea tendered
viva
voce
but the conflict is of no real consequence. It is apparent from that
chronology that whilst admitting having unlawfully and intentionally
breaking into the complainant’s home with the intent to steal
he seeks to avoid culpability on the robbery with aggravating
circumstances charge (count 5). By his own admission he broke into
the complainant’s home with the intent to steal and having
achieved his goal, perfected that crime. A conviction with intent to
commit a crime other than that specified in the indictment
is
entirely permissible and an accused may be found guilty of the
offence so proved.
[2]
However,
in the absence of any evidence by the state to prove that the accused
was armed in the manner detailed in the indictment,
I am unable to
conclude that aggravating circumstances were indeed present. That she
was robbed admits of no doubt whatsoever and
he is clearly guilty of
robbery on count 5, albeit not with aggravating circumstances.
[4]
Counts 8, 9 and 10 relate to events which culminated in the death of
the deceased on 23 February 2017. As adumbrated, the accused
pleaded
guilty to the charge of murder (count 10) but denied culpability in
respect of counts 8 and 9. The factual basis underpinning
his defence
appears thus. I interpolate to say that whilst the plea is similarly
in conflict with that tendered in answer to the
specific charges, the
conflict is of no real moment -
“
3.7
Counts
8 and 10: Housebreaking with the intent to Steal and Theft and Murder
(r) The incident occurred
on23 February 2017 in the afternoon at […] L. Street, Canon
Hill, Uitenhage, in the district of
Uitenhage. I unlawfully and with
the intent to steal broke into and entered the house situated at the
above address.
(s) I went to the house
with the intention to steal avocados from the avocado tree situate at
the house. I climbed over the back
wall. Once on the property I
decided to go to the house and noticed that the back door was
standing slightly ajar and I opened
it further and entered the
property. I then decided to go to the bedroom in search of items that
I could steal. I found nothing
worth stealing.
(t) I then went to the
kitchen in order to steal food items but the owner of the house, that
I now know to be M V, entered the front
door. I then hid under a bed
in a bedroom. She again left the house and I returned to the kitchen.
As I opened her food cupboards
she again returned to the house. She
opened the door to a room when I unlawfully and intentionally
assaulted her by grabbing her
around the neck and strangled her with
my hands where after she fell to the ground. I then took the
telephone cord and strangled
her further with the intention to kill
her. Eventually it appeared as if she was not breathing anymore and
that I had indeed killed
her. I then left the house and committed the
offence as described in count 11 below. After committing the
particular offence, I
returned to the house situated at the
abovementioned address and I again entered the house and searched the
house for food items
which I then also placed in plastic bags. Before
I placed the further food items in the plastic bags I noticed that
the deceased
was still laying on the floor in the same position and
it still appeared to me that she was not breathing. I thought that
she was
dead. I then decided to have sexual intercourse with the
deceased by penetrating her vagina. My intention was to have sex with
a corpse.
(u) I then left and hid
the plastic bags containing the stolen groceries in the bushy garden
of the deceased’s property with
the intention to later return
and collect it.
(v) I knew that it was
wrong to kill someone.
(w) I further admit that
the house and the property contained therein was the property or in
the lawful possession of the deceased
M V.”
[5]
What clearly emerges herefrom is that the sole purpose of entering
the erf was to steal avocados. The intention to kill the
deceased
manifested itself only after he gained entry to the house and there
is no evidence to justify the inference that he broke
into and
entered the home with the intent to rape. However, the supposition
advanced that the admitted sexual intercourse was merely
a
necrophiliac aberration and not rape, is entirely contrived. Dr
Anthonie De Beer
(Dr
De Beer
) conducted a
post-mortem examination on the cadaver on 27 February 2017. The
correctness of his report was not placed in issue
and was received in
evidence as exhibit “B”. His clinical examination
established that there was bruising present
“
in
entrance to vagina anterior on left and right”
.
His uncontroverted testimony establishes the falsity of the accused’s
narrative concerning the events which transpired in
the deceased’s
home. The medical evidence not merely debunks the contrived assertion
but moreover proves the falsity of the
alleged strangulation. Dr
De
Beer
iterated that the marks to the
deceased’s neck were caused by blow(s) and not as a result of
any manual strangulation. I
am satisfied that the deceased was, to
the knowledge of the accused alive when he raped her and that his
denial to the contrary
can summarily be rejected. In the result the
accused is found guilty as follows -
Count 1
-
Housebreaking
with intent to steal and theft;
Count 2
-
Housebreaking
with intent to steal and theft;
Count 3
-
Housebreaking
with intent to steal and theft;
Count 4
-
Housebreaking
with intent to steal and theft;
Count 5
-
Robbery;
Count 6
-
Housebreaking
with intent to steal and theft;
Count 7
- Theft;
Count 8
-
Housebreaking
with intent to steal and theft;
Count 9
- Rape;
Count 10
- Murder;
Count 11
-
Housebreaking with
intent to steal and theft.
________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State: Adv September
NDPP,
Uitenhage Road, North End, Port Elizabeth
Tel:
(012) 842 1400
Obo
the Defence: Adv J. Coertzen
Legal-Aid,
South Africa, Uitenhage Road, North End, Port Elizabeth
Tel:
(041) 408 2800
[1]
Act No, 51 of 1977
[2]
See
sec 262(1)
of the
Criminal Procedure Act, No 51 of 1977
.