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[2023] ZAECMKHC 138
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Mshumpela v S - Appeal (CA & R 36/2022) [2023] ZAECMKHC 138 (8 November 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE DIVISION,
MAKHANDA)
CASE
NO.: CA & R 36/2022
In
the matter between:
BONGILE
MSHUMPELA
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
GQAMANA J
[1]
This is an appeal against both the conviction and sentence of the
appellant by the Regional Court,
East London (“the court
a
quo
”). The appellant was arraigned before the court
a
quo
on a charge of murder, read with the provisions of section
51(2) of Act 105 of 1997 and was sentenced to 15 years’
imprisonment.
[2]
Briefly, the State’s case was that, on or about 23 September
2017, the appellant unlawfully
and intentionally killed Mr Simphiwe
Maxusi (hereinafter referred to as “the deceased”), by
assaulting him with a plank
on his body and stomping on his head and
body with booted feet while he was lying on the ground. The deceased
died few days later
at Frere Hospital. According to the postmortem
report the cause of death was a head injury.
[3]
The State called three witnesses in order to prove its case against
the appellant. Only
one eyewitness, Ms Sinazo Marhewu that saw
the incident. The deceased was her uncle. According to
her evidence, she
was alerted by a neighbour that the appellant was
assaulting the deceased. She went to the place where the alleged
assault was
taking place. Upon her arrival at the scene she saw the
appellant stomping on the deceased’s head with booted feet and
also
hitting him with a plank on his body. The size of this plank was
less than a metre. The deceased was lying on the ground
helpless as the appellant was assaulting him. She watched the assault
which took place for a while. After a few minutes the
appellant
stopped assaulting the deceased and left him still lying on the
ground. She approached the deceased, lifted him
up and took him
home. The deceased had a bruise on his face. She was uncertain
on whether the assault occurred on 23 or 24
September 2017.
Further, she did not know what triggered the whole incident because
on her arrival at the scene, the appellant
was already assaulting the
deceased. She reported the incident to her mother, Mrs Qasho the same
evening.
[4]
Mrs Qasho confirmed that, she received a report from the witness
mentioned above. When the report
was given to her the deceased was
asleep, but she saw that he had an injury on his face. In the
middle of the night, the
deceased woke up complaining of headache.
Her first thought was that he had a hangover and she instructed him
to go back
to sleep. In the early hours of the day while they
were asleep, she saw something like a foam exuding out of the
deceased’s
mouth. At that moment the deceased was also
making abnormal symptoms (like someone who is gasping) and sweating.
Frantically
she woke him up, and after a while the deceased looked at
her confused without uttering a word. Concerned of his wellbeing she
suggested to the deceased that an ambulance be summoned to take him
to hospital, but he declined.
[5]
In the morning before leaving for work, she repeated her suggestion
that the deceased should go
to the hospital. The deceased acceded to
her suggestion and he was taken to a day hospital by his mother. She
was informed that
the deceased refused treatment and discharged
himself from hospital.
[6]
On her return from work, later the same day, she again saw a
discharge like a foam coming out
the deceased’s mouth and his
whole body was stiff. She decided to summon an ambulance to
take the deceased to hospital.
The deceased was then admitted at
Frere hospital. He died few days later while still in hospital.
[7]
The district surgeon, Dr Matrose gave evidence and confirmed that he
conducted a postmortem on
the deceased’s body. The only
abnormalities he could find on his examination were on the head.
When he opened the deceased’s
scalp, he saw bruises under the
under the skin which on his opinion were caused by a blunt trauma.
The skull was not fractured
but when he opened it, he discovered the
subdural hemorrhage, meaning that, there was blood under the membrane
which divides the
skull and the brain. His postmortem report
was admitted and handed in as an exhibit at the trial. The cause of
death was
the head injury.
[8]
The appellant in his defence testified and denied that he assaulted
the deceased on the 23
rd
September 2017. On his version,
the assault incident happened on 2
nd
September 2017 and it
was the deceased who assaulted him first and as result he had to
defend himself. Further after the incident
of 2
nd
September, the deceased and he reconciled and he never assaulted the
deceased again. In addition, his evidence was that on 23 September,
he met the deceased at a place where they were drinking traditional
beer and there was no fight between them, instead their relationship
was good. He only became aware on 25 September that the deceased was
admitted in hospital.
[9]
The court a quo accepted the evidence of Ms Marhewu and concluded
that the State proved its case beyond reasonable
doubt. It is evident
from the judgment that the court
a quo
approached the evidence
of Ms Marhewu with caution because she was a single witness. It was
satisfied that although she was a single
witness, but her evidence
was corroborated by the other objective facts in particular the
injuries recorded in the postmortem reported
and the evidence of the
district surgeon, Dr Matrose. The court
a quo
rejected the
appellant’s version as a not reasonably possibly true. It
concluded that the assault occurred between
22 and 23 September. The
appellant does not take issue with such findings. We, also
cannot fault such findings by the court
a quo
.
[10]
The nub of this appeal is whether the appellant acted with
dolus
eventualis
when he caused the death of the deceased.
[11]
It is trite principles that, the test for
dolus eventualis
is
two-fold:
(a) Did the appellant
subjectively foresee the possibility of the deceased’s death
ensuing from his conduct; and
(b)
did he reconcile himself with that possibility.
[1]
[12]
In
S
v Makgatho
,
[2]
Shongwe
JA held that:
“
A
person acts with intention, in the form of
dolus
eventualis
, if the commission of the
unlawful act or the causing of the unlawful result is not his main
aim, but he subjectively foresees
the possibility that in striving
towards his main aim, the unlawful act may be committed or the
unlawful result may ensue, and
he reconciles himself to this
possibility.”
[13]
The court
a quo
in convicting the appellant made the following
findings:
“
The
evidence accepted by the court which was adduced by the State through
Sinazo Marhewu is that the assault on the deceased was
sustained by
the accused, it took place over a period of time. He had
stomped on him on his head, on his body with booted
feet and had
assaulted him with a stick on his head. And it is the accused’s
evidence that he left him lying there. He never
arranged any form of
transportation for him to be taken to hospital or to receive any
medical attendance or treatment. He must
have known that if the
deceased lay there without being attended then he would possible die
from the injuries that he had sustained.
And that when he left him
lying there he must have reconciled himself with the eventual
occurrence of the death of the deceased.
I am, therefore satisfied
that at least the intention was there in the form of
dolus
eventualis
and the accused is subsequently found GUILTY of murder
where the intention was in the form of
dolus eventualis
.”
[14]
Firstly, the court
a quo
committed a misdirection in its
finding that, the appellant assaulted the deceased with a stick/
plank on his head. Such
conclusion is not borne out of the
evidence of Ms Marhewu. Her evidence was that, the appellant
assaulted the deceased on
his body with a plank and stomped on his
head and body with booted feet. Nowhere in her evidence did she
mention that the appellant
assaulted the deceased on his head with a
stick/plank.
[15]
The test in respect of intention is subjective and not objective.
The objective test is applicable
for negligence and not
intention.
[3]
The
State conceded that in light of the misdirection by the court
a
quo
on
the evidence of Ms Marhewu, its conclusion on
dolus
eventualis
is
unsustainable. From the evidence it cannot be said that the
appellant foresaw that, by stomping on the deceased’s
head with
booted feet and assaulting him with a plank on his body could cause
the death of the deceased and that he reconciled
himself with that.
According to the postmortem report and the evidence of the district
surgeon, the deceased died as a result
of the head injury which was
caused by a blunt trauma. In light of such evidence, the injury
must have been caused by the
appellant stomping on the deceased’s
head with booted feet.
[16]
Secondly, it is evident from the judgment that the court
a quo
in arriving at its conclusion on
dolus eventualis
, took into
consideration the appellant’s conduct after the assault, that
is, his failure to arrange medical treatment for
the deceased soon
after the assault, despite the fact that the deceased had sustained
injuries and also the fact that he left the
deceased lying
unattended. The appellant’s conduct after the assault are
irrelevant to establish
dolus eventualis
.
[17]
In the circumstances, the conviction on murder ought to be set aside
because the State did not establish
the requisite intent to cause the
death of the deceased. However, we are satisfied there is sufficient
evidence to justify a conviction
for culpable homicide.
[18]
In light of our findings
above,
some adjustment of the sentence would be required. The
appellant was sentenced to 15 years’ imprisonment in accordance
with the provisions of section 51 (2) of Act 105 of 1997.
The appellant’s personal circumstances are
the following; he was 46 years of age at the time of his conviction
on 12 September
2018. He was self-employed as a “moneylender”.
His highest standard of education was standard 10 which he passed
in
1993. He was unmarried, but was residing with his partner. He has
four children from different mothers. He had one previous
conviction
of assault with intent to cause grievous bodily harm dated 10 October
2015 which he was sentenced 24 months’ correctional
supervision. He was in custody for 11months awaiting trial. Not much
was said about the deceased and the impact of his death to
his
family.
[19]
In consideration of the sentence, the court must take into account
that punishment should fit the criminal
as well as the crime, be fair
to the accused and to society and be blended with a measure of
mercy. Although the appellant
is not found guilty of murder but
the deceased lost his life because of the appellant’s conduct.
It is not clear from the
evidence what triggered this incident and as
result we are unable to understand the motive behind the entire
incident. However,
the society deserve protection from violent
persons like the appellant. The appellant had a previous conviction
which also involved
violence. He showed no remorse, instead he
concocted a false version that, he did not assault the deceased on
the day in question.
Having considered all the facts herein and
for purposes of rehabilitation, a lengthy sentence of direct
imprisonment would be appropriate.
[20]
In the results, the following order is issue:
1.
The conviction of murder is altered to guilty of “culpable
homicide”.
2.
The sentence of 15 years’ imprisonment is reduced to 6 years
imprisonment, antedated
to 12 September 2018.
N
GQAMANA
JUDGE
OF THE HIGH COURT
I
agree:
I
BANDS
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
for the Appellant
Adv
K. M. Kgatwe
Instructed
by
Director
of Public Prosecutions
Makhanda
Counsel
for the Respondent
Mr
V M Sojada
Instructed
by
Legal
Aid
Makhanda
Heard
on
11
October 2023
Judgment
Delivered on
08
November 2023
[1]
S
v De Oliviera
1993 (2) SACR 59
(A) at 65 i-j; S v Humphrey
2013 (2)
SACR 1
(SCA) at 8a-b.
[2]
2013
(2) SACR 13
(SCA).
[3]
S
v Ngubane
1985 (3) SA 677
(A) at 685 D-F.