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[2022] ZAMPMBHC 28
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S v Dube (CC03/22) [2022] ZAMPMBHC 28; 2023 (1) SACR 513 (MM) (3 May 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION (MAIN SEAT)
Case
Number: CC03/22
REPORTABLE:
YES/
NO
OF
INTEREST TO OTHER JUDGES: YES/
NO
REVISED.
3
MAY 2022
In
the matter between:
THE
STATE
and
CELUMUSA
DUBE
JUDGMENT
Roelofse
AJ:
[1]
A intends, decides and plans to
assault B. A assaults B. B dies as a result of the assault. Did A
commit premeditated murder if
his plan was only to assault B but as a
result of the assault, B died?
[2]
In my view, the only manner in which
this question can be unravelled is to revisit the basics in respect
of the crimes of assault
and murder with a specific focus on
intention as one of the essential elements of both crimes as well as
the concept of premeditation.
Assault
and murder
[3]
Assault
consists the unlawful and intentional: (a) applying force to the
person of another directly or indirectly; or (b) threatening
another
with immediate personal violence in circumstances which lead the
threatened person to believe that the other intends and
has the power
to carry out the threat.
[1]
[4]
Murder
is the unlawful and intentional causing of the death of another human
being.
[2]
Intention
[5]
Intention is one of the elements of
the crimes of assault and murder.
[6]
INNES CJ, in R. v. Jolly and Others,
1923 A.D. 176
at pages. 181, 182 concluded that intention may be
inferred from the intrinsically probable consequences of an act,
whatever intentions
the doer may profess.
[7]
Culpability
in the case of assault and murder is either
dolus
directus
or,
dolus
indirectus
or,
dolus
eventualis
and
dolus
indeterminatus or generalis.
Other descriptions of
dolus
eventualis
are “constructive”
[3]
or “legal” intention and employs a technical and
artificial meaning of the word “intention”.
[4]
[8]
In S v Pistorius
2016 (1) SACR 431
(SCA), the Supreme Court of Appeal articulated the concept of
dolus
eventualis
in murder cases as follows
at paragraph 26:
‘
In
cases of murder, there are principally two forms of dolus which
arise: dolus directus and dolus eventualis. These terms are nothing
more than labels used by lawyers to connote a particular form of
intention on the part of a person who commits a criminal act.
In the
case of murder, a person acts with dolus directus if he or she
committed the offence with the object and purpose of killing
the
deceased. Dolus eventualis, on the other hand, although a relatively
straightforward concept, is somewhat different. In contrast
to dolus
directus, in a case of murder where the object and purpose of the
perpetrator is specifically to cause death, a person’s
intention in the form of dolus eventualis arises if the perpetrator
foresees the risk of death occurring, but nevertheless continues
to
act appreciating that death might well occur, therefore ‘gambling’
as it were with the life of the person against
whom the act is
directed. It therefore consists of two parts: (1) foresight of the
possibility of death occurring, and (2) reconciliation
with that
foreseen possibility. This second element has been expressed in
various ways. For example, it has been said that the
person must act
‘reckless as to the consequences’ (a phrase that has
caused some confusion as some have interpreted
it to mean with gross
negligence) or must have been ‘reconciled’ with the
foreseeable outcome. Terminology aside, it
is necessary to stress
that the wrongdoer does not have to foresee death as a probable
consequence of his or her actions. It is
sufficient that the
possibility of death is foreseen which, coupled with a disregard of
that consequence, is sufficient to constitute
the necessary criminal
intent.’
[9]
The Supreme Court of appeal
confirmed that the foreseeability test to be applied is subjective.
The Supreme Court of Appeal says
in this regard as follows at
paragraph 29:
‘
Furthermore,
the finding that the accused had not subjectively foreseen that he
would kill whoever was behind the door and that
if he had he intended
to do so he would have aimed higher than he did, conflates the test
of what is required to establish dolus
directus with the assessment
of dolus eventualis. The issue was not whether the accused had as his
direct objective the death of
the person behind the door. What was
required in considering the presence or otherwise of dolus eventualis
was whether he had foreseen
the possible death of the person behind
the door and reconciled himself with that event.’
[10]
The Supreme Court of Appeal
proceeded to analyse the facts of the case and found that the accused
was guilty of murder,
culpa
being
dolus eventualis
.
[11]
Therefore, in our law,
dolus
eventualis
in relation to murder is
present where the accused, while subjectively foreseeing the
possibility that his or her act may cause
the death to another,
nevertheless persists in the act while reconciling himself or herself
with the outcome.
[12]
A premeditates to kill B by
assaulting B. A follows through with the act. A assaults B. B dies as
a result of the assault. A’s
plan and his direct intention was
to kill B. A’s premeditation and direct intention therefore
coincide. What if A did not
plan or premeditate to kill B but only to
cause B bodily harm? A assaults B so severely that B dies. A knew
that B may die as a
result of the extent of the assault. A reconciles
with that possibility. A thus committed murder where his plan was to
cause B
bodily harm and not to kill B. A premeditated assault but
committed murder. This is where the difficulty lies. What if
intention
in the form of
dolus
eventualis
is proven together with
premeditation?
Premeditated
Murder
[13]
The concepts of premeditation and
intention are different. Premeditation involves a thought process
that contemplates a certain
outcome and the means to achieve that
outcome. Intention in all of its forms (
dolus
directus, dolus indirectus
and
dolus
eventualis
) involves the perpetrator’s
state of mind before and while the criminal act is being committed.
[14]
Premeditated murder is more
blameworthy than a murder committed at the spur of the moment or when
death results after an assault.
Premeditated murder remains the crime
of murder. It does not constitute a special species of murder. The
circumstances under which
the murder was committed must show that the
murder was premeditated so that the court is able consider an
appropriate sentence.
If premeditated murder is proven a court is
obliged to impose a minimum sentence of life imprisonment unless
exceptional circumstances
exist to deviate from that sentence. This
is prescribed in section 51(1) of the Criminal Law Amendment Act 105
of 1997 (“the
Minimum Sentence Act”).
The
Minimum Sentences Act
[15]
The Minimum Sentences Act does not
create statutory crimes. The aim of the Act is to lay down minimum
sentences for certain serious
crimes after having regard to the
crime, the circumstances under which it was committed, the victim of
the crime and the circumstances
of the perpetrator. The requirements
for a conviction of a crime mentioned in the Act must be proven
during the merits stage of
the trial and not during the sentencing
stage. For example, if the State wishes to rely upon section 51(1) of
the Act for the minimum
sentence of life imprisonment to apply, the
State must prove that the murder was premeditated.
[16]
In
S
v Raath
2009
(2) SACR 46
(CPD), the Full Court had to decide on appeal, whether
the murder committed by the accused upon his wife constituted
premeditated
murder. The accused was prone to violent and aggressive
behaviour towards the deceased and also abused alcohol. At the night
of
the incident, the accused had gone out drinking. The evidence
showed that the accused decided that he wanted to kill his wife and
within a few minutes carried out the murder. The accused was heavily
intoxicated when he shot his wife. The court had to decide
whether
the murder was premeditated or not. The time lapse between the
accused deciding that he was going to shoot his wife and
the time of
the actual murder became a prominent factor in deciding the issue of
premeditation. The court said at paragraph 16
as follows:
‘
Planning
and premeditation have long been recognised as aggravating factors in
the case of murder. See S v Khiba
1993 (2) SACR 1
(A) at 4 and S v
Malgas
2001 (1) SACR 469
(SCA) at para 34. As Terblanche, Guide to
Sentencing in South Africa, Lexis Nexis, 2nd edition 6.2.2 states,
planned criminality
is more reprehensible that unplanned, impulsive
acts. However, there must be evidence that the murder was indeed
premeditated or
planned. See e.g. S v Makatu
2006 (2) SACR 582
(SCA)
at paras 12 – 14. The concept of a planned or premeditated
murder is not statutorily defined. We were not referred
to, and nor
was I able to find, any authoritative pronouncement in our case law
concerning this concept. By and large it would
seem that the question
of whether a murder was planned or premeditated has been dealt with
by the court on a casuistic basis. The
Concise Oxford English
Dictionary, 10th edition, revised, gives the meaning of premeditated
as to “think out or plan beforehand”
whilst “to
plan” is given as meaning “to decide on, arrange in
advance, make preparations for an anticipated
event or time”.
Clearly the concept suggests a deliberate weighing up of the proposed
criminal conduct as opposed to the
commission of the crime on the
spur of the moment or in unexpected circumstances. There is, however,
a broad continuum between
the two poles of a murder committed in the
heat of the moment and a murder which may have been conceived and
planned over months
or even years before its execution. In my view
only an examination of all the circumstances surrounding any
particular murder,
including not least the accused’s state of
mind, will allow one to arrive at a conclusion as to whether a
particular murder
is “planned or premeditated”. In such
an evaluation the period of time between the accused forming the
intent to commit
the murder and carrying out this intention is
obviously of cardinal importance but, equally, does not at some
arbitrary point,
provide a ready-made answer to the question of
whether the murder was “planned or premeditated”.’
[17]
Ultimately the Full Court found that
even if the evidence suggested that the time between the accused
taking the decision to murder
his wife and the actual murder was no
more than a matter of a few seconds and that it was correct that ‘…
[f]rom the moment he appeared to
conceive the idea of shooting his wife the appellant brooked no
opposition and almost immediately
proceeded to carry out the terrible
deed.’
However the court held
that this did not ‘…
..[t]ransform
what appears to have been the deadly, but spur of the moment act or
acts of a man in an emotional rage, into a planned
and premeditated
murder.
’
[18]
In Kekana v The State (629/2013)
[2014] ZASCA 158
(1 October 2014), the Supreme Court of Appeal held
that it was not necessary that an accused should have thought or
planned his
action a long period of time in advance before carrying
out the plan. The court held that time is not the only consideration
because
even a few minutes are enough to carry out a premeditated
action.
[19]
In Francis & others v The State
(866/2018) ZASCA 177 (2 December 2019), the accused savagely
assaulted the deceased. It does
not appear from the judgment of the
Supreme Court of Appeal that it was proven by the State that the
accused had a direct intention
i.e.,
dolus
directus
, or that they premeditated to
murder the deceased. After considering the evidence, the trial court
convicted the accused of murder
in terms of the provisions of section
51(1) the Minimum Sentences Act. The Supreme Court of Appeal
considered the totality of the
evidence regarding the assault and the
injuries caused by the assault. It then confirmed the accused’s
conviction under section
51(1) of the Minimum Sentences Act on the
basis of intention in the form of
dolus
eventualis
.
[20]
How then is premeditated murder
reconciled with intention in the form of
dolus
eventualis
? In my view, it is not the
death that had to be premeditated or planned but rather the aim of
the criminal act. The aim that is
planned for, namely the causing of
bodily harm to another person should take prominence. If a
perpetrator carries through with
his plan to cause another person
bodily harm which ultimately results in that person’s death
where the death was foreseen
by the perpetrator, premeditated murder
is established. Therefore, if A premeditates an assault upon B,
carries out the assault
while foreseeing that the assault may cause
B’s death, B’s murder is premeditated despite that the
original plan was
only an assault.
[21]
I gather from Raath, Kekana, Francis
and Others and Pistorius that premeditation and the particular form
of intention must be considered
with reference to the facts and
circumstances of each case.
The
case before this court
[22]
I turn to the case before me.
[23]
The accused is Mr Celumusa Dube (“Mr
Dube”). Tragedy struck on the day Mr Dube’s turned 42. Mr
Dube’s girlfriend
(“the deceased”) died at his
hands on that day.
[24]
Mr
Dube is being charged on counts of housebreaking with the intent to
murder, murder and a contravention of Immigration Act.
[5]
Upon his conviction, on murder, the State relies upon the provisions
of section 51(1) the Minimum Sentences Act. The State therefore
alleges that Mr Dube committed premeditated murder.
[25]
At
the commencement of the trial, Mr Dube handed in a statement in terms
of section 112(2) of the Criminal Procedure Act 51 of 1977
(“the
statement”). Mr Dube pleaded guilty to housebreaking with the
intention to assault and murder as contemplated
in section 51(2)
[6]
of the Minimum Sentences Act. The immigration charge was not dealt
with in the statement.
[7]
Mr
Dube pleaded not guilty to the immigration charge.
[26]
I entered a plea of not guilty on
the counts of housebreaking and murder for Mr Dube did not confess
all the elements of the charges.
In particular, Mr Dube did not admit
that he broke into the deceased’s home with the intention to
murder her and he did not
admit that the murder was premeditated.
[27]
The State only led the evidence of
Mr Dube’s brother. Mr Dube was the only witness to testify in
his defence.
[28]
Mr Dube’s criminal liability
therefore has to be determined by what is recorded in the statement,
the evidence of Mr Dube’s
brother and Mr Dube.
[29]
In the statement, Mr Dube alleges
that on the night in question, he was celebrating his birthday party
at a tavern. He received
a call from his brother, Njabulo Shongwe.
Njabulo wanted to know where Mr Dube was. Mr Dube told him that he
was at a tavern and
invited Njabulo to join him. Njabulo agreed.
However, when Mr Dube later called Njabulo, Njabulo’s cell
phone was off.
[30]
Mr. Dube continued the celebration
at the tavern with some of his friends. Mr Dube left the tavern to
return to his home. On his
way, he passed the deceased’s home.
Mr Dube attempted to phone the deceased. He could not get hold of
her. Mr Dube called
Njabulo. Njabulo confirmed that he was still
going to join him in celebrating his birthday.
[31]
Mr Dube went to the deceased’s
home. He was about to knock on the door when he heard the voices of a
male and female talking
inside. They mentioned Mr Dube’s name.
Mr Dube testified that he was standing close to the door and could
hear that the people
inside the home was having sexual intercourse.
[32]
Mr Dube knocked on the door. There
was no response. He heard sounds as if the people were dressing. He
knocked again. Yet again
there was no response. Mr Dube decided to
break into the home to assault the deceased. Mr Dube kicked the door
open. Mr Dube saw
that Njabulo attempted to run out of the dwelling.
Mr Dube attempted to block Njabulo but Mr Dube tripped and fell as he
was …
‘[u]
nder the
influence of alcohol.
’ Njabulo
jumped over Mr Dube and ran away. Mr Dube saw the deceased. According
to Mr Dube, the deceased had a knife but he
grabbed the knife from
her. The deceased apologised that she was with Njabulo. Mr Dube’s
states in the statement as follows:
‘[b]
ut
I was so angry I stabbed her several times with that knife. I was
under the influence of alcohol but not to the extent that I
didn’t
know what I was doing and could not act accordingly………..I
also
knew
that when one stabs a person with a knife several times that that
person could sustain serious injuries or even die as a result
of such
injuries.’
[Emphasis is mine].
[33]
Njabuo testified that he did
not know that the deceased was Mr Dube’s girlfriend. Njabulo
was with the deceased in the house
when he heard the neighbours’
dogs barking. A few minutes later, he heard a window breaking. The
next moment, the front door
of the house was broken open. Mr Dube
entered the house. Mr Dube asked Njabulo whether he knows what Mr
Dube is of the deceased.
Mr Dube took a knife from his pocked and
started stabbing the deceased. Njabulo tried to hold Mr Dube back but
Mr Dube pushed Njabulo
away and continued to stab the deceased.
Njabulo testified that the deceased attempted to defend herself.
Njabulo testified that
she was stabbed about five times. Mr Dube then
left the house but returned a short while later. Njabulo testified
that he wanted
to know why Mr Dube returned. Mr Dube said that is
what he wanted to do.
[34]
Mr Dube’s testimony accorded
with the statement and set out the facts recorded in paragraphs 23 to
27 above. I have to choose
between Mr Dube’s version as to
where he got the knife and the version of Njabulo. Whatever version
is true does not change
the fact that Mr Dube killed the deceased
with a knife. Whether Mr Dube had a knife on him and whether he did
not does not materially
influence the outcome of the ultimate
question to be answered.
[35]
The
post-mortem report records that the deceased died as a result of
‘HEAMORRHAGIC SHOCK DUE TO MULTIPLE SHARP PENETRATING
FORCE
TRAUMA TO THE CHEST AS PER SAPS 180’. The post-mortem report
reveals that the deceased was stabbed five times. Two
of the stab
wounds were on the arms of the deceased one of which was located over
the back of the of the left forearm and wrist.
The other was on the
deceased’s elbow. One stab wound was at the back of the
deceased’s hand. One stab wound was over
the deceased’s
left ear and auditory canal. The other stab wound was over the left
side of her neck penetrating the left
common carotid artery.
[8]
Analysis
Mr
Dube stood outside of the deceased’s house for long enough to
hear Njabulo and the deceased having intercourse and dressing.
Mr
Dube says in the statement that, although being under the influence
of alcohol, he still knew what he was doing and could act
accordingly. More importantly for purposes of determining Mr Dube’s
culpability, Mr Dubes states in the statement that he
also knew that
stabbing a person several times with a knife could lead to that
person’s death. Mr Dube reconciled himself
with that foresight
for he continued to stab the deceased five times, including severing
one of her main arteries.
[36]
Mr Dube broke into the deceased’s
home to cause her bodily harm. He carried out the assault upon the
deceased with a knife
while knowing that an assault with a knife may
cause the deceased’s death. Despite this knowledge, Mr Dube
continued with
the assault. Although the assault took place only
within moments after breaking the door and entering the house, the
evidence shows
premeditation to cause the deceased bodily harm by
assaulting her. The assault, unfortunately for Mr Dube, and more so
for the
deceased, led to the deceased’s death. Mr Dube
committed premeditated murder.
[37]
In the premises, I made the
following order:
(a)
The accused is found guilty of
housebreaking with the intention to assault.
(b)
The Accused is found guilty as charged on
Count 2, that is guilty of murder as contemplated in section 51(1) of
Act 105 of 1997.
(c)
The accused is found not guilty on Count 3.
Roelofse
AJ
Acting
Judge of the High Court
DATE
OF HEARING:
13 April 2022
DATE
OF JUDGMENT: 3 May
2022
APPEARANCES
FOR
THE STATE:
MR. MSIBI
FOR
THE ACCUSED:
MS. ERASMUS OF THE LEGAL AID BOARD
[1]
See:
The State v Marx [1962] 2 All SA 11 (N).
[2]
R
v Ndhlovu 1945 AD 369 373.
[3]
R
v Nsele
1955 2 SA 145
(A) 151B. Intention in the form of
dolus
eventualis
in the case of assault is sufficient – R v Basson [1961] 1 All
SA 91 (T).
[4]
R
v Huebsch
1953 2 SA 561
(A) 566–568.
[5]
Act 13 of 2002. The State alleged that Mr Dube, a citizen of the
Kingdom of Eswatini (formerly known as Swaziland).
[6]
The
section provides that the minimum sentence for a first offender in
the case of murder that is not premeditated is 15 years.
‘
[7]
The
State has lead no evidence in respect of this charge.
[8]
In
anatomy, the left and right common carotid arteries (carotids)
(English: /kəˈrɒtɪd/[1][2]) are arteries
that
supply the head and neck with oxygenated blood; they divide in the
neck to form the external and internal carotid arteries.
–
Wikipedia [https://en.wikipedia.org/wiki/Common_carotid_artery]