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2024
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[2024] ZAFSHC 29
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Sello v S (A19/2023) [2024] ZAFSHC 29 (1 February 2024)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case Number: A19/2023
In
the matter between:
SELLO
LUCAS SELLO
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, ADJP
et
CHESIWE, J
JUDGMENT
BY:
REINDERS, ADJP
HEARD
ON:
1 NOVEMBER 2023
DELIVERED
ON:
1 FEBRUARY 2024
[1]
On Christmas evening 2021 a young man aged 16 (hereafter the
deceased) tragically
met with his untimely demise as a result of a
stab wound inflicted to his neck. Subsequently the appellant was
arraigned in the
Regional Court in Welkom on a charge of murder
read
with the provisions of
s51(2)
of the Criminal Law Amendment Act.
[1]
[2]
Appellant pleaded not guilty
but, having heard the evidence of the two state witnesses
and the
appellant (who also called his wife as a witness), the trial court on
26 August 2022 convicted him of the murder of the
deceased and
subsequently sentenced him to imprisonment for fifteen years on 2
September 2022.
[3]
Leave to appeal against both his
conviction and sentence was refused by the trial court
but granted by
this court on petition. Mr Van Rensburg appeared on behalf of the
appellant whilst the state was represented by
Mr Lencoe. Counsel not
only provided us with comprehensive and able heads of argument
(including subsequent supplementary heads
of argument) for which we
are indebted, but advanced thorough submissions during oral argument.
[4]
From the record it would appear
that on that specific evening the appellant visited Welkom
from
Kempton Park. Whilst visiting someone broke into his motor vehicle
(the bakkie) and stole some of his personal items. A local
informed
his aunt that this was committed by one Papa, where after his aunt
proceeded to lead the way to an unknown property, with
his wife and
him and their child following. At the initial address his aunt
was directed to another address, where his wife
and an occupant at
the said premises got involved in a verbal argument. From there
evidence adduced by the state and that of the
accused and his wife,
differs. According to the first state witness (Ms Vanessa Ndiamane)
the appellant started chasing the deceased
around. The appellant on
the other hand testified that the deceased alighted from a vehicle
and started assaulting his wife and
aunt where after he acted in
defence of his family members by taking a multi-tool out of his
pocket to stop the attack on not only
his wife, but also himself. The
second witness called by the state (the mother of Vanessa) testified
she never saw any chasing
around, neither did she witness the
stabbing.
[5]
The learned magistrate accepted the
states version and rejected the testimony
of
the appellant, as supported by wife.
[6]
The appellant’s grounds of appeal against his conviction (as
contained in the
appellant’s application for leave to
appeal
[2]
), read as follows:
“
1.1
The Learned Magistrate erred in finding that the State proved its
case beyond reasonable doubt;
1.2
The Learned Magistrate erred in rejecting the version of the
Appellant, as not being reasonably
possibly true;
1.3
The Learned Magistrate erred in finding that the Appellant did not
act in defence of his
wife – who was being assaulted;
1.4
The learned Magistrate erred in failing to attach adequate weight to
the various contradictions
and improbabilities in the evidence of the
State witnesses;
1.5
The Learned Magistrate failed to apply the cautionary rule, regarding
the single witness,
Vanessa Ndiamane, by not taking into account the
contradictions and improbabilities in her evidence;
1.6
The Learned Magistrate erred in finding that the version of the
Appellant is not reasonably
possibly true – as corroborated by
the witness on behalf of the Defence.”
[7]
At the heart of this appeal lies the question of the trial court’s
evaluation
of the evidence of a single witness and the principles
applicable to a plea of private-defence.
[8]
In terms of s208 of the Criminal Procedure Act (CPA)
[3]
a court can convict an accused on the evidence of a single competent
witness. Recently in
Michael
Jantjies v The State
[4]
the Supreme Court of Appeal confirmed the principles applicable in
respect of a single witness’ evidence. It was held
[5]
:
“…
When
assessing the credibility of a single witness, it is crucial to
understand that there is no one-size-fits-all approach. The
evidence
presented by such a witness must undergo the same rigorous scrutiny
as any other evidence. The trial court is tasked with
meticulously
evaluating the evidence, taking into account both its strong points
and shortcomings. After this thorough examination,
the court must
then determine whether, despite potential flaws or inconsistencies in
the testimony, it is convinced of the truthfulness
of the witness's
account
[6]
. This careful and
balanced evaluation is fundamental to ensuring a fair and just legal
process.”
[The
numbering of these and all subsequent footnotes in case law referred
to, are adjusted to follow chronologically in this judgment.]
[9]
It is trite that in the absence of an irregularity or
misdirection by the trial
court, a court of appeal is bound by
credibility findings thereof, unless it is convinced that such
findings are clearly incorrect.
[7]
[10]
In
Rolston
Pillay v S
[8]
the Supreme Court of Appeal dealt with an appeal emanating from the
Full Bench, Gauteng South Division, in respect of the appellant’s
plea of self-defence:
‘
[15]
In matters of this nature, this Court is not at liberty to interfere
with the
findings
of fact made by the trial court unless the manner in which the
evidence was evaluated is proved to be wrong.
[9]
In determining the question of whether the full bench committed an
error, of fact or law, the findings of fact made by the trial
court
must be evaluated against the entire evidence that was led at the
trial. That much was stated by this Court in
S
v Trainor
.
[10]
That
exercise has to be undertaken against the legal principle that the
duty to prove that the accused is guilty lies squarely within
the
domain of the prosecution, and that duty does not shift to the
accused even if they have raised a private-defence
.
[11]
Where, in the performance of that exercise, it is found that it is
reasonably possible that
the
accused might be innocent, the accused must be
acquitted.
[12]
’
(emphasis
added)
[11]
The learned magistrate, after having found the appellant’s
version to be “inherently
improbable”, proceeded as
follows in her judgment:
“
He
(the accused) agreed …He conceded during cross-examination
that he exceeded the bounds of self-defence by doing that.
Hence the
Court does not have to go into the details of self-defence and
private defence pertaining to the law, because he –
he conceded
to same.”
[13]
‘…
At
the time he stabbed the deceased he said he did not aim to stab the
deceased on the neck. He agreed with the state that it was
a vital
organ, and it was a sensitive organ. He said he just tried to stop
him.
However,
when it was put to him during cross-examination that he exceeded the
bounds of self-defence, he said he agreed. He said
he agreed. He says
that is what it seems like. He did agree that he exceeded the bounds
of self-defence.
[14]
[12]
In assessing the version of the appellant and his wife that she had
sustained a laceration to
her face (upper lip) caused by the deceased
stabbing her, the learned magistrate held:
“
Now
indeed she was injured. The medic…The photograph indicates
some injuries. The state did not challenge that. But there
is no
medical evidence before this court to indicate that it was indeed
caused by a sharp object.
This,
the second state witness told the court that she assaulted the
deceased – the accused’s wife with a fist and as
the
Court has indicated, there is no medical evidence to that effect. But
on the face of it, from the photograph, it is just and
injury on the
lip and – and on the nose, a slight injury higher than the lip.
It cannot be said that it was indeed caused
by a sharp object. The
probability that it was caused by a fist does exist.
[15]
[13]
It appears from the record that the learned magistrate was appraised
thereof that Vanessa was
a single witness in respect of the actual
stabbing of the deceased by the appellant.
[16]
Reference was made to the well-known dicta in
S
v Sauls
supra, stating the manner in which a court should go about in
considering the credibility of a single witness. The learned
magistrate
held:
‘
And
yes, her version during cross-examination did bring out some
contradictions, as the Court mentioned earlier, but it was mostly
pertaining to the positioning of the bakkie, etcetera.
[17]
Ultimately,
the version of this witness was accepted by the learned magistrate
and it formed the basis of the conviction of the
appellant on a
charge of murder.
[14]
On a reading of the evidence I could not find any corroboration for
the evidence of the single
witness. It is of concern that the second
witness did not notice that the deceased was chased by the appellant
as the single witness
described. Neither the grandmother and/or
grandfather who were present during the incident according to the
state witnesses, were
called to testify. As mentioned, the learned
magistrate found as a fact that the appellant’s wife sustained
injuries during
the incident. It stood uncontested that after the
incident the appellant’s wife as well as the aunt were taken
for medical
assistance. The appellant and his wife testified that the
deceased was responsible for the injuries. The state version does not
really explain how appellant’s wife sustained the injuries. In
the absence of any corroboration for the single state witness,
I
therefore differ from the conclusions by the learned magistrate and
hold the view that the appellant’s version could not
and should
not have been rejected as not reasonably possibly true. Accepting
that the appellant’s version is reasonably possibly
true, the
matter had to be adjudicated on the appellant’s version as
supported by the evidence of his wife. In my view the
concession by
the appellant that he exceeded the bounds of self-defence and that
therefore the court “does not have to go
into the details of
self-defence and private defence pertaining to the law”, was an
incorrect approach. Notwithstanding the
concession, it is in my view
still necessary for the court to consider the facts as testified and
apply the legal principles thereto.
[15]
The Supreme Court of Appeal in
S
v Steyn
[18]
stated in respect of private
defence
the following:
‘
[19]
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… modern
legal systems
do not insist upon strict proportionality between the attack and
defence, believing rather that
the proper consideration is
whether, taking all the factors into account, the defender acted
reasonably in the manner in which he
defended himself or his
property
’. (emphasis added)
[16]
Recently in
Botha
v S
[19]
Tshiqi JA (Seriti and Zondi JJA and Mokgohloa concurring, Schippers
JA dissenting) set out the principles to be applied when a
defence of
self-defence is raised.
‘
[10]
In order to successfully raise self-defence, an accused must show the
following: (a) that it was necessary to avert the attack;
(b) that
the means used were a reasonable response to the attack; and (c) that
they were directed at the attacker. (See Jonathan
Burchell
Principles
of Criminal Law
5 ed (2016) at 125.)’
16.1
In dealing with these principles the court considered
whether the use of a knife in averting the attack was reasonable
in
that circumstances.
“
[12]
This enquiry is in practice more a question of fact than of law. (See
S v Trainor
2003 (1) SACR 35
(SCA) para 12). In C R Snyman
Criminal Law
6
ed (2014) at 110-111, the learned
author says:
‘
[T]here
should be a reasonable relationship between the attack and the
defensive act, in the light of the particular circumstances
in which
the events take place. In order to decide whether there was such a
reasonable relationship between the attack and defence,
the relative
strength of the parties, their sex and age, the means they have at
their disposal, the nature of the threat, the value
of the interest
threatened, and the persistence of the attack are all factors (among
others) which must be taken into consideration.
One must consider the
possible means or methods which the defending party had at her
disposal at the crucial moment. If she could
have averted the attack
by resorting to conduct which was less harmful than that actually
employed by her, and if she inflicted
injury or harm to the attacker
which was unnecessary to overcome the threat, her conduct does not
comply with this requirement
for private defence. (See also
S v
Ntuli
1975 (1) SA 429
(A),
S v Ngomane
1979 (3) SA 859
(A)
at 863A-C),
Grigor v S
[2012] ZASCA 95.)
”
16.2
In assessing whether the court a quo was correct in its finding of
that murder in the form of
dolus eventualis
was proved, the
Supreme Court dealt in para [14] of the judgment as follows:
“
In
S v Humphreys
[2013] ZASCA 20
;
2015 (1) SA 491
(SCA) paras 12-17 this court considered whether
murder in the form of
dolus eventualis
had been proved and
said:
‘…
In
accordance with trite principles, the test for
dolus
eventualis
form is twofold: (a) did the appellant subjectively
foresee the possibility of the death of his passengers ensuing from
his conduct;
and (b) did he reconcile himself with that possibility
...
…
For
the first component of
dolus eventualis
it is not enough that
the appellant should (objectively) have foreseen the possibility of
fatal injuries to his passengers as a
consequence of his conduct,
because those consequences. That would constitute negligence and not
dolus
in any form.
One should also avoid the flawed process
of deductive reasoning that, because the appellant should have
foreseen the consequences,
it can be concluded that he did. That
would conflate the different tests for
dolus
and
negligence…’
(emphasis added)
…
[15]
This brings me to the second element of
dolus
eventualis
,
namely that of reconciliation with the foreseen possibility. The
importance of this element was explained by Jansen JA in
S
v Ngubane
1985
(3) SA 677
(A) (
Ngubane
)
at 685A-F in the following way:
‘
A
man may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing
, eg by unreasonably underestimating
the degree of possibility or unreasonably failing to take steps to
avoid that possibility ....
The concept of conscious (advertent)
negligence (
luxuria
) is well known on the Continent and has in
recent times often been discussed by our writers…
Conscious
negligence is not to be equated with
dolus eventualis
. The
distinguishing feature of
dolus eventualis
is the volitional
component: the agent (the perpetrator) “consents” to the
consequence foreseen as a possibility, he
“reconciles himself”
to it, he “takes it into the bargain.”
The
true enquiry under this rubric is whether the appellant took the
consequences that he foresaw into the bargain; whether it can
be
inferred that it was immaterial to him whether these consequences
would flow from his actions. Conversely stated, the principle
is that
if it can reasonably be inferred that the appellant may have
thought that the possible collision he subjectively foresaw would not
actually occur, the second element of
dolus eventualis
would not have been established.’
[17]
Regarding the onus placed on the state to prove an
accused’s guilt beyond a reasonable doubt, the
following was
held in
Pillay
supra (at par [9]):
‘…
This
court stated in
S
v De
Oliveira
[20]
concerning
S
v Ntuli
[21]
,
that where the defence of self-defence has been specifically pleaded
by the accused or emanates from the evidence,
the
onus nevertheless remains on the State to prove beyond reasonable
doubt that the accused acted unlawfully and that he realised,
or
ought reasonably to have realised that he was exceeding the bounds of
self-defence.
The full bench ought to have found that the defence as pleaded by the
appellant was reasonably possibly true in its features.
The
appellant did not have a duty to convince the court of the
truthfulness of his version that he acted in self-defence.’
[18]
The appellant’s testimony throughout was that he did not intend
to kill the deceased, more specifically,
it was not his aim to stab
the deceased in his neck with the multi-tool. His evidence was that
“I just moved the hand towards
him. Unfortunately, it landed on
his neck.” On the same basis as in
Botha
supra [par 13] I am not persuaded that it was reasonable for the
appellant to merely direct a stab movement in the direction of
the
deceased, especially when facing the deceased. In this respect in my
view he did not act in the circumstances like the reasonable
person
in the same circumstances would have. I accept that in the heat of
the moment, he did not intend to kill the deceased but
rather that he
was negligent. In the circumstances I am of the view that he should
have been convicted of culpable homicide instead
of murder.
[19]
In the event of a conviction of culpable homicide, the imposed
sentence cannot stand and we are
to consider all the trite factors in
metering out a just and balanced sentence to be imposed.
19.1
The appellant is a first offender (at the time of his conviction aged
45). He is gainfully employed as a
fire-fighter and paramedic. He is
married and the biological father of two minors. Not only does he
financially support his wife
and children, but also his unemployed
family members.
19.2
There can be no dispute that the crime of which the appellant had
been convicted by us, namely culpable homicide,
is indeed of a very
serious nature. The deceased was a teenager who had barely begin to
live his life, but he lost his life at
the hands of the appellant. It
can be accepted that the collateral damage caused by his demise would
be devastating to his extended
family who lost a song, a grandson, a
cousin and a friend. It is indeed tragic that the deceased died in
the arms of his mother.
No sentence can ever return the deceased to
his family. The interest of society demands that an accused not be
punished too leniently
and the sentence imposed should serve as a
deterrent for would-be offenders. This factor should however be
balanced against all
other factors that we are to consider in
reaching a just sentence.
19.3
The learned magistrate in her consideration of the personal
circumstances of the appellant alluded (in our
view correctly so)
thereto that the appellant is “basically a good Samaritan and
an asset to society.”
[22]
We have also taken into account that the appellant all throughout is
testimony indicated that he is sorry for the crime that he
had
committed and the damage that he had caused to the deceased’s
family. Moreover, he contributed financially to the funeral
of the
deceased. After the deceased was stabbed the appellant attended to
the deceased by driving the deceased to hospital before
taking his
own family to another hospital. In our view these factors are indeed
indicative of remorse shown by the appellant. It
is trite that in
reaching a balanced and just sentence, the sentence must be “blended
with a measure of mercy according to
the circumstances”.
[23]
19.4
Counsel for appellant submitted that, in the event this court should
find appellant guilty of culpable homicide,
a totally suspended
sentence be considered. We are of the view that the circumstances of
this matter does not leave room for a
suspended sentence. As alluded
to, the crime is of a very serious nature. In the
Botha
matter
supra the Supreme Court deemed a sentence of 3 years’
imprisonment in terms of s 276(1)(i) of the CPA to be an appropriate
sentence. In view of paras 19.1-19.3 above, we are of the view that a
similar sentence should be imposed herein, but for a longer
period of
incarceration, namely 5 years.
[20]
The result therefore is that the appeal should
succeed.
[21]
Accordingly the following order is made:
21.1
The appeal is upheld to the extent set out below.
21.2
The conviction of murder and the sentence of 15 years’
imprisonment, are set aside and replaced with
the following:
‘
The
appellant is convicted of culpable homicide and is sentenced to five
years’ imprisonment subject to the provisions of
s 276(1)(i)
of
the
Criminal Procedure Act 51 of 1977
.’
21.3
The sentence should be deemed to have been imposed on 2 September
2022.
_________________
C
REINDERS, ADJP
I
concur.
_______________
S
CHESIWE, J
On
behalf of the Appellant: Adv GSJ van Rensburg
Instructed
by: Finger Attorneys
BLOEMFONTEIN
On
behalf of the Respondent: Adv M Lencoe
Instructed
by: Director of Public Prosecutions
BLOEMFONTEIN
[1]
105 of 1997.
[2]
Record
B1-B4.
[3]
51
of 1997.
[4]
(Case
no 532/2022)
[2023] ZASCA 3
(15 January 2024).
[5]
At
para [15].
[6]
S v
Sauls and Others
1981 (3) SA 172
(A) 180E-G.
[7]
See:
S
v Francis
1991 (1) SACR 198
(A) at 204c;
J
v S
[1998] 2 All SA 267
(A) at 271c.
[8]
(451/2022
[2023] ZASCA 3
(15 January 2024).
[9]
Rex
v Dhlumayo and Another
1948
(2) SA 677
(A) at 706;
S
v Francis
1991 (1) SACR 198
(A) at 204C-F;
S
v Hadebe
1997 (2) SACR 641
SCA at 645E-G.
10
S v Trainor
[2003]
1 All SA 435
(SCA) para 9.
11
S v De Oliveira
1993
(2) SACR 59
(A) at 63H-64A.
12
R v Difford
1937
AD 370
at 373 and 383.
[13]
Record:
p 232 lines 17-21.
[14]
See also:
Record
p 227 lines 17 to 24.
“
PROSECUTOR
:
And alternatively, Sir, I put it to you that you exceeded even if
you acted in self-defence like you are saying, you exceeded
the
bounds of self-defence.
ACCUSED
:
I may agree to that because my actions of that day in question as
per the law state that I am a murderer.
[15]
Record
p 233 lines 21-24
[16]
Record:
p 234 lines 21 - p 235 line 10
[17]
Record:
p 234 lines 21 - p 235 line 10
[18]
2010
(1) SACR 411 (SCA).
[19]
[2019]1 All SA 42 (SCA);
2019 (1) SACR 127
(SCA).
[20]
Supra.
[21]
1975
(1) SA 429
(A) at 436D-437G
[22]
Record
p 261 line 7.
[23]
S
v Rabie
1975
(4) SA 855
(AD) at 862.