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[2024] ZAECMKHC 34
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Wildschut v S (CA & R98/2022) [2024] ZAECMKHC 34 (20 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION,
MAKHANDA
Case no: CA & R
98/2022
In the matter between:
JUSTIN
WILDSCHUT
APPELANT
and
THE
STATE
RESPONDENT
JUDGMENT
Zilwa AJ
[1]
The
Appellant was arraigned in the Regional Court of Willowmore with one
count of murder read with the provisions of section 51(2)
of the
Criminal Law Amendment Act
[1]
.
The appellant was represented throughout the proceedings.
[2]
The
Appellant pleaded not guilty to the charge and gave no plea
explanation as contemplated in section 115 of the Criminal Procedure
Act (‘CPA’)
[2]
[3]
On
10 May 2022 the Appellant was convicted and on 11 May 2022 he was
sentenced to 10 years imprisonment. Application for leave to
appeal
against conviction was made and it was refused on 7 June 2022. On 17
June 2022 a petition as contemplated in section 309C(1)
of the CPA
was launched and leave to appeal was granted against conviction on 3
October 2022 by the Judge President.
Facts
[4]
The
common cause facts are briefly that on 8 June
2020,
the deceased (who had a child with Michaela Wildschut, the
Appellant’s sister) brought a cake to his son’s home
since it was the latter’s birthday. He later came back to fetch
the container that had the cake. While the deceased was talking
to
one Chantelle (the Appellant’s girlfriend) a war of words
ensued and that resulted to the latter calling her boyfriend,
the
Appellant. The deceased was given the container and was requested to
leave by Michaela since he was drunk and because there
was a
protection order in operation between him and the Appellant. She took
the deceased out of the gate, and returned to the house
with her son.
It transpired later that the deceased did not leave as he came back
to the yard. That further resulted to an altercation
between him and
the Appellant. Michaela requested the deceased once again to leave.
The deceased refused and tried to force his
way through by pushing
the gate which separated them (i.e. him and the Appellant). The
Appellant took out a knife and stabbed the
deceased on the hands
preventing him from pushing it open. A struggle ensued which
ultimately resulted in the gate opening.
They both fell to the ground
with the deceased trying to dispossess the Appellant of the knife. It
transpired that during the struggle
the deceased sustained fatal
wounds which led to his death. Later on, the Appellant alleged that
he also got stabbed on the thigh
during the scuffle. The deceased
stood up and fell on the ground and ultimately died. The Appellant
though, testified that the
deceased did not manage to dispossess him
of the knife.
[5]
On
a conspectus, the appeal is predicated mainly on the grounds that:
5.1
The
Magistrate erred in not, apart from the documentary evidence
[3]
,
calling the doctor who compiled the report to testify, as his
evidence would have eliminated any future speculation of the
possibility
of the wounds being sustained or not in the manner
testified by the Appellant.
5.2
The
Magistrate erred in not calling Chantelle to testify as the fight was
about her and as such her evidence could have been of
help as she was
present.
5.3
The
Magistrate erred in accepting some of Michaela’s evidence and
rejecting a certain portion of her evidence.
Analysis
[6]
Circumstantial
evidence suggests that the death of the deceased points to one
direction only, namely, the Appellant. Nowhere has
it been suggested
that the deceased’s fatal wounds would have been sustained
through other means. The deceased did not have
any sharp object to
harm himself and the only sharp object was the knife carried by the
Appellant.
[7]
The
oral evidence of the doctor, who prepared a post-mortem report, could
not have changed the picture, neither the evidence of
Chantelle nor
Michaela.
[8]
This
is a serious case of murder. The Appellant knew that the knife is a
dangerous object and, by pulling it out, he acted in a
manner that is
unacceptable in any civilised society that ought to be committed to
the protection of the rights of all persons.
[9]
There
is also an issue of the stab wound on the Appellant’s thigh
which calls for comment. His version is that he noticed
after 7 hours
whilst he was at his aunt’s place that he has sustained this
wound. This is highly improbable. How can one
sustain a wound in the
thigh and go on with his life for a period of 7 hours without feeling
pain and noticing it. A temptation
is there that this wound was
self-inflicted as a way of covering up and creating an impression
that the deceased also stabbed him.
This notwithstanding, the
concession was made that the knife had always been in the Appellant’s
possession at all material
times. It is clear from the evidence as a
whole that the version proffered by the Appellant was untrue.
[10]
In
R
v Blom
[4]
,
Watermeyer JA said that, in reasoning by inference, there are
two cardinal rules of logic which cannot be ignored namely:
(i)
that
the inference sought to be drawn must be consistent with all proved
facts and that, if not, the inference cannot be drawn.
(ii)
that
the proved facts should be such that they exclude every reasonable
inference from them except the one sought to be drawn and
that if
they do not exclude other reasonable inferences there must be a doubt
whether the inference sought to be drawn is correct.
[11]
The
court should not consider each circumstance in isolation but should
consider the cumulative effect of all the items of circumstantial
evidence.
[5]
[12]
An
inference cannot be drawn unless there are objective facts from which
to infer the other fact which it is sought to be established.
[6]
Conclusion
[13]
After
careful analysis of the above principles I am satisfied that the only
inference that can be drawn, based on circumstantial
evidence, is
that the Appellant is the one who was responsible for the deceased
death. My finding is also based on the fact that
that the Appellant
was the only one with a knife during that scuffle and it is a proven
fact that all the wounds in the deceased
body were sustained during
the scuffle.
[14]
The
post-mortem findings to the effect that the deceased had stab wounds
and that he died as a result of a stab wound on the neck
were
admitted in the court
a quo
and the Magistrate’s finding
was that it was clear that the deceased’s body was penetrated
with a sharp object at close
range, as per the definition of
stabbing. The wounds were described to be a deep stab wound on the
neck below the chin, 1 centimetre
wound on his arms, a stab wound on
the chest, incised wounds on the fingers, a stab wound at the back.
The Magistrate’s findings,
which I am in full agreement, are
that it is improbable that all these injuries could have been
accidentally caused during a struggle
over a knife. These were deep
penetrating wounds, not cuts, and that shows that a force was used to
penetrate the deceased’s
body with a knife. The Magistrate
further reasoned that the way the wounds were positioned is
inconsistent with the version that
there was a scuffle, especially
the stab wound on the back. He went on to reason that the wound on
the side of the arm towards
the back is consistent with the defensive
wound when the deceased was preventing the accused from stabbing him.
His conclusion
was that the possibility is that he used his arm to
block the knife and whilst doing so, he got stabbed. There is no way
that the
deceased would have carried on struggling over a knife after
sustaining such serious injuries that resulted to his death. What
makes the Appellant’s version to more improbable is that the
deceased never got hold of the knife and it is the Appellant
who ran
away with the same knife. The Magistrate further reasoned that it
does not make sense that the deceased would continue
to lie on top of
the Appellant, yet he was being injured, instead of standing up and
run away. What is strange is that the Appellant,
who was said to be
underneath the deceased, could have managed to get lose and run away
from the deceased. Quite noteworthy is
the fact that, since the
deceased was on top, as per the Appellant’s version, the former
could have managed to run away but
what prevented him was the fact
that he was the one who was mostly injured by this knife that was
always in the Appellant’s
possession. The Magistrate further
remarked that it is even doubtful whether they were really on the
ground when this stabbing
took place if regard is had to the
Appellant’s version.
[15]
The
Magistrate further found that the incised wounds inside the
deceased’s fingers are also not consistent with the Appellant’s
version – that he stabbed the deceased on the hands whilst
holding onto the gate. If that version would be correct, the deceased
was expected to have injuries on top of his hands on the outer side
of his fingers or hands, not inside or in-between the fingers.
On the
contrary, the injuries sustained are consistent with Michaela’s
version that the deceased was trying to disarm the
Appellant of the
knife he was holding. The injuries paint a different picture that the
deceased grabbed the blade side of the knife
and it cut him inside
the fingers as the Appellant was pulling the knife away.
[16]
It
is trite that a court of appeal will be hesitant to interfere with
the factual findings and evaluation of the evidence by a trial
court
and will only interfere where the trial court misdirects itself
insofar as its factual and credibility findings are concerned.
In
casu
I find no basis for interference.
[17]
Based
on the evidence presented in this case. I cannot find any
misdirection by the Magistrate based on his reasoning and conclusion.
l find that the sum total of all the evidence points to the Appellant
as the person who murdered the deceased. Apart from offering
no
version that is reasonably possibly true, he tried very hard to
extricate himself from this murder by means of a mere denial.
Each
time he was asked as to what caused the deceased’s death, he
responded by saying ‘
I do not know. I cannot explain because
everything happened so fast
’. Consequently, I am satisfied
that the Appellant was the person who stabbed the deceased and that
his guilt was proved beyond
reasonable doubt, and that the conviction
of murder must not be interfered with. Accordingly the appeal must
fail
[18]
In
the result, the appeal is dismissed.
H ZILWA
ACTING JUDGE OF THE
HIGH COURT
I agree.
M. MAKAULA
JUDGE OF THE HIGH
COURT
APPEARANCES:
For Appellant : Mr
Charles
Instructed by: Legal Aid,
Makhanda
For Respondent: Mr Vena
Instructed by: National
Director of Public Prosecutions
Date Heard: 15 November
2023
Date Delivered: 20 March
2024
[1]
105
of 1997
[2]
51
of 1977
[3]
Post
mortem report, photo album etc
[4]
R v
Blom
1939
AD 188
at 202 to 203
[5]
See:
R
v De Villiers
1944 AD 493
at 508-9
[6]
See:
S
v Essack and Another
1974 (1) SA 1
(A) at 16D