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2024
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[2024] ZAECMKHC 26
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S v Funaphi and Others (40/2023) [2024] ZAECMKHC 26 (28 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT
REPORTABLE
Case
no: 40/2023
In the matter between:
THE
STATE
and
YAMKELNI
FUNAPHI
Accused 1
THEMBELANI
MAZIBUKO
Accused 2
ANDILE LUCKY
DYANI
Accused 3
JUDGMENT
Govindjee J
Background
[1]
Mr Francis John Davidson was the victim of
housebreaking on or about 27 April 2023. The three accused gained
entry to his property
and subsequently assaulted him to the extent
that he passed away from his injuries on 30 May 2023.
[2]
The accused face charges of housebreaking
with the intent to commit robbery (count 1); robbery with aggravating
circumstances (count
2); murder (count 3) and attempting to defeat
the ends of justice (count 4). The state alleges that the accused
acted in the execution
of a common purpose or conspiracy in respect
of counts 2 and 3.
[3]
Pleas of not guilty were entered for all
counts in respect of each of the accused. Each made significant
written admissions in terms
of s 220 of the Criminal Procedure Act,
1977 (Act 55 of 1977) (‘the Act’). Mr Fanaphi (accused
no. 1) indicated that
he had gained entry into the house by kicking a
door open, for the purpose of stealing various items. While doing so,
the deceased
entered and a fight ensued. The co-accused admitted to
entering the fray. The accused admit assaulting the deceased with
fists,
during which time the deceased’s head repeatedly struck
a table, wooden chairs and a wall. It is admitted that the assault
was unlawful and absent any justification, and that the accused
foresaw that the deceased may possibly die as a result of the
assault, and reconciled themselves with that possibility. It is
further admitted that the deceased died as a result of the injuries
sustained during the assault.
[4]
Having assaulted the deceased in this
manner, the accused tied him up, took various items and loaded them
on his vehicle, dropped
the items at their homes and proceeded to
burn the vehicle to prevent fingerprint detection. It is admitted
that this was an unlawful
and intentional attempt to defeat or
obstruct the course of justice.
[5]
The accused aver, in their respective
admissions, that they were under the influence of drugs during the
incident, but not to the
extent that they did not know what was
occurring or could not distinguish between right and wrong. Leaving
aside count 1, the accused
admit to acting throughout with a common
purpose to commit the various offences.
The evidence
[6]
Dr Voster, a registered medical
practitioner in private practice, testified that he examined the
deceased at Maclear on 27 April
2023, recording various observations
on a J88 report, the contents of which he confirmed during evidence.
The deceased had been
his longstanding patient. Whereas he had
previously been healthy, the doctor recorded that the deceased was
confused and disorientated,
suffering from short-term memory loss and
complaining of deafness in his right ear, at the time of the
examination. Despite this
state of mind, the doctor had managed to
capture the history of the assault from the deceased, who indicated
that he had been assaulted
with blunt objects and broken bottles, and
had told him that he had been burnt with hot fluid, which had also
been put into his
ears.
[7]
Dr Voster had noted severe first- and
second-degree burns, particularly on the back, front and left side of
the chest, left side
of the face and on the left ear, approximately
15 percent in extent. There were also multiple bruises on his chest,
face and upper
limbs, and some abrasions. Superficial linear wounds,
not requiring suturing, were present on the deceased’s head,
which
was swollen, and right upper arm. There was haematoma between
his eyes and subconjunctival bleeding in the left eye. Dr Voster
explained that the linear wounds would have been caused by a sharp
object, such as a broken bottle, and that the bruising was consistent
with contact with fists, or objects such as tables, chairs or a wall.
The burns were consistent with injuries typically caused
by hot
liquid, and, given the wide spread of burns, unlikely to have been
caused by chemicals. Absent credible evidence to the
contrary, these
assessments, which accord with the probabilities, must be accepted.
[8]
Ms Mampantsha, a 19-year-old female,
testified that Mr Mazibuko, accused no. 2, was previously her
boyfriend. She knew the other
accused as his friends. The others had
arrived at Mr Mazibuko’s residence on Tuesday 25 April 2023.
She had been present,
sitting on a bed while the others sat in
chairs, and heard Mr Fanaphi explain to the other accused his plan to
burgle the home
of his former employer to obtain money. The accused
had smoked tik together. Mr Fanaphi had specifically indicated that
the homeowner
should not be killed.
[9]
When the witness visited Mr Mazibuko on
Thursday 27 April 2023, his residence was filled with various items,
including a flatscreen
television and a generator. Mr Mazibuko
explained to her that they had taken the items from the farm where Mr
Fanaphi had worked,
assaulting the farmer in the process. She
understood that Mr Mazibuko had stabbed the farmer on his head after
being told by Mr
Fanaphi that the man was to be killed because Mr
Dyani had uttered Mr Fanaphi’s name during the incident. She
was also told
that the accused had unsuccessfully attempted to sell
the deceased’s motor vehicle, before deciding to burn it.
[10]
Ms Mampantsha, despite being a
nervous-looking witness who spoke inaudibly at times, provided
context as to what had transpired.
She appeared to testify honestly
about what she overheard. She had not taken the accused seriously
when they discussed their plans
in her presence. They had been
smoking drugs and were under the influence at the time, so that she
ignored the contents of their
discussion. She herself had been sober
at the time.
[11]
The report of a post mortem
examination on the body of the deceased was handed in by consent
prior to the closure of the state’s
case. It reflects that the
cause of death was ‘traumatic brain injury due to blunt force
trauma to the head’. The defence
closed its case without
leading any evidence.
Analysis
[12]
It
is trite that a trial court must consider the totality of the
evidence led to determine whether the essential elements of a crime
have been proved.
[1]
Formal
admissions that remain at the end of a trial become ‘conclusive
proof’ in respect of the fact to which the admission
applies.
[2]
In addition to what
has been admitted by the accused, the court must consider the impact
of the testimony of Dr Voster and Ms Mampantsha.
[13]
It must be accepted that the deceased
passed away some four weeks after his assault at the hands of the
accused, and that the head
injuries he suffered during that assault
was the cause of his death. This after the accused entered his home
unlawfully. Having
assaulted him, and causing his head to repeatedly
strike a table, wooden chairs and a wall, the accused loaded various
items onto
the deceased’s vehicle and left the scene. They
later burnt the vehicle in an attempt to destroy the evidence against
them.
[14]
There is little that remains at issue in
this matter. It is convenient to consider the counts of murder and
robbery with aggravating
circumstances before the remaining counts.
Murder is the unlawful and intentional killing of another person. In
order to prove
the guilt of an accused on a charge of murder, the
state must establish that the perpetrator(s) committed the act that
led to the
death of the deceased with the necessary intention to
kill, known as
dolus
.
[15]
The
only real question is whether the accused acted with direct intent
(
dolus
directus
)
or so-called legal intent (
dolus
eventualis
).
As the SCA held in
S
v Pistorius
,
[3]
in the case of murder, a person acts with
dolus
directus
if they committed the offence with the object and purpose of killing
the deceased.
Dolus
eventualis
,
by contrast, arises when the perpetrator foresees the risk of death
occurring, but nevertheless continues to act appreciating
that death
might well occur, in a sense rolling the dice with the life of the
person concerned.
[16]
The state has, for the following reasons,
failed to prove
dolus directus
.
Ms Mampantsha’s evidence, which the court accepts in this
respect, was that the accused’s discussion in her presence
specifically made mention that the homeowner should not be killed. In
addition, it cannot be ignored that the deceased survived
for some
four weeks after the assault before passing away. Dr Voster’s
examination, shortly after the incident, makes mention
of the
deceased being able to conduct a ‘normal logic conversation’
at times during the examination. Despite the serious
injuries
suffered, all of this is inconsistent with the state’s averment
of
dolus directus
.
Ms Mampantsha’s single piece of evidence about what Mr Mazibuko
said to her after the incident is insufficient to alter
the position
considering the evidence in its entirety. As Mr
Geldenhuys
,
for the accused, pointed out, the proven facts are not such that they
exclude every reasonable inference other than that the accused
had
direct intention to kill the deceased.
[17]
The accused have admitted
dolus
eventualis
and, considering the
evidence led, must be convicted accordingly. I am satisfied that on
their own version, coupled with the medical
and post mortem reports
received into evidence, they each had foresight of the possibility of
death occurring as a result of their
joint assault, and proceeded
having reconciled themselves with this outcome. This is the only
reasonable inference to be drawn
from the proved facts.
[18]
There
can also be no doubt, both from what has been admitted and from the
inference to be drawn from the proven facts, that the
accused acted
with common purpose in proceeding with the assault that subsequently
caused the deceased’s death.
[4]
[19]
As
with the finding of common purpose to murder, the common purpose
liability of each of the accused in respect of count 2 arises
from
the active association and participation of these crimes as they
unfolded, with the necessary intention, rather than through
prior
agreement. All the elements of the crime of robbery with aggravating
circumstances have been established, the accused acting
in the
execution of a common purpose, so that a conviction must follow.
[5]
[20]
The state has also proved beyond reasonable
doubt that the accused attempted to defeat the ends of justice by
setting alight the
deceased’s vehicle, so that a conviction on
count 4 must follow in respect of each of the accused.
[21]
What remains is count 1. There is no
evidence before me to suggest that Mr Mazibuko committed the crime,
as he entered the homestead
after his co-accused had proceeded to
break the door. He was not charged with having committed this offence
with common purpose
and must be acquitted on this count.
[22]
I have considered the evidence of Ms
Mampantsha as to the intention of the accused in proceeding to the
home of the deceased. That
is the only evidence led by the state on
the point. Of significance is the witness’ recollection that
the farm owner was
not to be killed. Her evidence makes no mention of
any discussion as to what violence, or threats of violence, might be
necessary
to achieve the ultimate purpose, and housebreaking with
intent to commit robbery is not the only inference to be drawn from
the
facts. The state has failed to prove beyond reasonable doubt that
Mr Funaphi and Mr Dyani intended to break into the property in
order
to take the deceased’s property through the use of either
violence or threats of violence. What has been shown, as
is conceded
by these two accused, is that housebreaking was with the intention to
commit theft. Accused 1 and 3 must be convicted
of this offence,
which is a competent verdict in terms of s 260 of the CPA.
Order
[23]
I make the following order:
1.
Accused no. 1 is found guilty of counts 2,
3 and 4, as charged, and is found guilty of the crime of
housebreaking with the intent
to commit theft.
2.
Accused no. 2 is found guilty of counts 2,
3 and 4, as charged, and is acquitted and discharged on count 1.
3.
Accused no. 3 is found guilty of counts 2,
3 and 4, as charged, and is found guilty of the crime of
housebreaking with the intent
to commit theft.
_________________________
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
26, 27 February 2024
Delivered:
28 February 2024
Appearances:
For the
State:
Adv A Nohiya
Director
of Public Prosecutions
Makhanda
046 602
3000
For the
Accused:
Adv D Geldenhuys
Legal
Aid South Africa
Makhanda
046 622
9350
[1]
S
v Libazi and Another
2010
(2) SACR 233
(SCA) para 17.
[2]
S
v Sesetse
and
Another
1981 (3) SA 353 (A).
[3]
S
v Pistorius
[2015]
ZASCA 204
para 26.
[4]
S
v Mgedezi
1989
(1) SA 687
(A).
[5]
S
1 of the CPA; see
R
v Jacobs
1961
(1) SA 475
(A) at 484H.