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[2024] ZAKZPHC 33
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Dlamini v S (AR414/2022) [2024] ZAKZPHC 33 (22 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
AR414/2022
In the matter between:
JABULANI
DLAMINI
APPELLANT
Versus
THE
STATE
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J.
:
[1]
Appellant was charged with seven counts but was convicted on one
count of attempted
murder (count 1) and one count of breaching a
domestic violence interdict (count 4). He was sentenced to
undergo seven (7)
years imprisonment and four (4) years imprisonment
respectively. It was ordered that two (2) years of the sentence
of four
(4) years run concurrently with the sentence of seven (7)
years thus an effective sentence of nine (9) years imprisonment.
With the leave of this Court he now appeals against his convictions
and sentences on counts 1 and 4.
[2]
It was submitted on behalf of Appellant that the State had at its
disposal a witness
who was present at the scene according to the
evidence and that it failed to call this witness but relied on the
evidence of a
single witness, the complainant. According to the
complainant the person Mr Zangasi Mbheje was a passenger in
Appellants
vehicle at the time of the incident. It was
submitted that as the State did not call this witness the learned
Magistrate
ought to have done so as his evidence could have been
crucial in assisting the court to arrive at a just decision. In
this
regard we were referred to
section 186
of the
Criminal Procedure
Act 51 of 1977
which states:
“
The
state shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the court
essential to the just decision of the case.”
[3]
However this requires that the court, upon assessing the evidence,
must be satisfied
that unless it hears a particular witness justice
will not be done in the end. From page 156 of the record it
appears that
the said witness Mr Mbheje was at court on that day.
At page 159 of the record the prosecutor, when addressing the court,
stated the following:
“
The
state has resolved that it’s not going to call any further
witnesses. The witness that the state intended to call
next Mr
Mbheje, upon consulting with him, the state felt he is not going to
assist the state’s case. So, we are dispensing
with him.
If the defence wants to make use of him he is available to the
defence.”
It is also common cause
that the defence did not call Mr Mbheje as a witness although he was
the friend of the complainant and was
in the car with him.
[4]
In my view it cannot be said that the evidence of Mr Mbheje was so
crucial that the
court must have found that it could not do justice
if he was not called. Accordingly, in my view, no adverse
finding can
be made from the fact that he was not called as a
witness.
[5]
It was further contended that the learned Magistrate was incorrect in
preventing the
counsel of Appellant from putting to the complainant
what was stated in the affidavit of Mr Mbheje. In this regard
we were
referred to the matter of Wilfred Nuxmalo v The State
AR411/06 NPD where it was held that a legal representative is
entitled to
put such statement to a witness. I am in agreement
with this submission and indeed the learned Magistrate was incorrect
in
preventing counsel from doing so.
[6]
In respect of count 1 the charge of attempted murder it was contended
that Appellant
fired a shot with a 9mm pistol at the complainant
whilst she was seated in the vehicle and that the windscreen of the
vehicle was
struck. However the evidence of the complainant, in
this regard, was contradictory as she testified that he had come out
of the car and was firing straight at her. This evidence as to
the firing at her does not appear in her police statement and
that
she was fired at while seated in the vehicle. In the police
statement she stated that Appellant fired at the windscreen
after she
had left the vehicle and whilst she was inside Aloe Ridge Flats.
This accords with the evidence of Appellant.
Her evidence as to
how and when the shots were fired was contradictory and was also
contrary to that which she had stated in her
statement to the
police. It was also not stated in her statement to the police
that Appellant stated that he wanted to kill
her as she testified.
It was therefore submitted that Appellant was accordingly
wrongly convicted on the charge of attempted
murder.
[7]
It was recorded by the doctor who examined the complainant and
compiled the J88 at
St. Anne’s Hospital that the complainant
had stated that while sitting in a stationery car she was shot at by
Appellant but
not hit. She further informed the doctor that she
was assaulted by her husband and hit on the head with a firearm.
In the “conclusion” the doctor noted that it was an
assault allegedly by a handgun and punch to face and that the
clinical
findings could be caused by this mechanism. It is
indicated that there were lacerations to the head and bruises to the
face.
[8]
Ms Ngcobo who appeared on behalf of the State conceded that the
complainant exaggerated
her evidence as she was giving evidence and
also that her evidence was contradictory as to when the shots were
fired and the words
that were uttered. This also was not
contained in her police statement. She conceded and in my view
rightly so, that
it was not proved that Appellant was guilty of
attempted murder. It was only proved that he was guilty of
assault with intent
to do grievous bodily harm.
[9]
From the evidence and especially the J88 report which is not disputed
and the evidence
of the complainant I am satisfied that it was proved
beyond reasonable doubt that Appellant was guilty of the offence of
assault
with intent to do grievous bodily harm.
[10]
Count 4 relates to the breach of the protection order. It was
common cause that the parties
were in the process of divorcing each
other and that indeed the relationship was acrimonious at the time.
It was also not
in dispute that at the time there was an interim
protection order which was still in force. In terms of the
protection order
Appellant was not to commit acts of domestic
violence, sexual abuse, physical abuse, verbal abuse or
intimidation. It is
apparent from the evidence that on the day
in question the complainant and Appellant met each other along the
road and that an
altercation ensued between them. There is a
dispute as to what exactly transpired on the day in question but it
common cause
and admitted by Appellant that he did assault the
complainant, that he fired a shot at her car when she was not in the
car and
that he also crashed into her car. Accordingly on his
own evidence he is guilty of contravening the protection order.
[11]
As the conviction is to be changed to one of assault with intent to
do grievous bodily harm the
sentence would accordingly also have to
be adjusted and further the sentence in respect of the breach of the
protection order must
also be considered to see whether it was just
in the circumstances. It must be borne in mind that both
offences originate
from the one incident and due to the acrimonious
relationship between the parties at the time.
[12]
Appellant has no previous convictions, was 36 years of age, married
to the complainant and had
one child of 10 years old whom he
supported together with his wife and he also supported his mother.
He was employed by the
department of Safety and Liaison as a deputy
manager for 9 (nine) years earing a salary of R48 000.00 per month.
Due to this
incident he has also lost his employment. He spent
two (2) years in custody awaiting trial and after his conviction
spent
another year in custody before bail was granted to him after
his petition had succeeded. It was held in S v Kruger
2012 (1)
SACR 369
(SCA) that the period awaiting trial is to be taken into
account in determining a sentence. Considering the fact that he
has also been in custody for period of a year after his conviction
together with the awaiting trial period amounts to incarceration
for
a period of three (3) years.
[13]
In my view the learned Magistrate, in determining the sentence,
overemphasised the incident and
what transpired there at the expense
of considering the personal circumstances of Appellant and also the
relationship between the
complainant and Appellant at the time.
The sentence of four (4) years imprisonment in respect of count 4 is,
in my view,
severe in the circumstances.
[14]
A sentence of three (3) years imprisonment for the breach of the
protection order would in my
view be a sentence which would bring
home to Appellant the seriousness of his actions on the day in
question. In respect
of the assault with intent to do grievous
bodily harm it is indeed so that there were certain injuries
sustained by the complainant
but there is nothing to indicate that
any of them were very serious.
[15]
Taking into account that Appellant had been incarcerated for a period
of two (2) years awaiting
trial, the following sentence, in my view,
would be appropriate in the circumstances.
Order
The following order is
accordingly made.
1.
The appeal against the
conviction and sentence on count 1 is upheld and the conviction and
sentence is set aside. Appellant
is convicted on a count of
assault with intent to do grievous bodily harm and Appellant is
sentenced to one (1) year imprisonment.
2.
The appeal against the
conviction on count 4 is dismissed and the conviction is confirmed.
The appeal against the sentence
in respect of count 4 is upheld and
the sentence is set aside. Appellant is sentenced to one (1)
year imprisonment.
3.
It is further ordered
that the sentence in respect of count 4 is to run concurrently with
the sentence in respect of count 1 thus
an effective term of one (1)
year imprisonment.
4.
The sentences are ante
dated to 5 May 2022.
5.
In terms of
section 103
of Act 60 of 2000 Appellant is declared unfit to possess a firearm.
P C BEZUIDENHOUT J.
I agree.
MPONTSHANA A.J.
JUDGMENT
IS RESERVED:
1
MARCH 2024
JUDGMENT
HANDED DOWN:
22
MARCH 2024
COUNSEL
FOR APPELLANT:
ADV
D BARNARD
CHAMBERS
PIETERMARITZBURG
COUNSEL
FOR THE STATE:
ADV
P NGCOBO
DPP
PIETERMARITZBURG
KWAZULU-NATAL