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[2021] ZANCHC 24
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Xelesile v S (K/S/ 39/2018) [2021] ZANCHC 24 (4 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: K/S/ 39/2018
In
the matter between:
FREDDY
XELESILE
Applicant (Third
Respondent)
And
THE
STATE
Respondent
JUDGMENT
ON APPLICATION FOR LEAVE TO APPEAL
Mamosebo
J
[1]
On 01 March 2021 the applicant and his three co-accused were
convicted of murder dolus eventualis,
committed with a common
purpose, and assault with intent to do grievous bodily harm (assault
GBH). He was sentenced to 18 years'
imprisonment for murder and five
years for assault GBH, on 29 April 2021. The sentences were ordered
to run concurrently. He now
applies that leave be granted to the Full
Bench of the Northern Cape Division against his conviction. For the
applicant appears Mr
H Steynberg, from Legal Aid South Africa while
Adv. R Makhaga represents the State. The parties have agreed that the
application
can be determined merely on the papers.
[2]
Since
the coming into operation of the Superior Courts Act,
[1]
an
application for leave to appeal is governed by section 17, which
stipulates:
"17(1) Leave to
appeal may only be given where the judge or judges concerned are of
the opinion that â
(a)
(i)
The appeal would have a reasonable prospect
of success; or
(ii) There is some
other compelling reason why the appeal should be heard, including
conflicting judgements on a matter under consideration;
(b) The decision
sought on appeal does not fall within the ambit of section 16(2)(a);
and
(c) â¦â¦..â
[3]
It is
now trite that since the enactment of section 17(1)(a) of the
Superior Courts Act, the threshold for determining whether to
grant
leave to appeal is higher and more stringent
[2]
.
Our courts have interpreted the word "would", found in
section 17(1)(a)(i) of the Act as indicative of some form of
certainty
or realistic chance of success. See The Mont Chevaux Trust
v Tina Goosen & 18 Others
[3]
and
MEC for Health, Eastern Cape v Mkhitha and Another
[4]
.
[4]
The application is premised on the grounds that the Court had
erred:
4.1.
In not evaluating all the evidence with regard to the identity of the
perpetrators;
4.2.
In finding that the applicant was part of the group who had assaulted
the deceased
and the complainant;
4.3.
In finding that the applicant had acted in concert with his
co-accused in killing
the deceased;
4.4
In finding that the applicant had had the requisite intent, in the
form of dolus
eventualllis
, land thus convicting him of
murder; and
4.5
In erroneously applying the test relating to murder
dolus
eventualis
as form of intent.
Ad
ground 1: Identity of the applicant:
[5]
The identity of the accused was never placed into dispute. He,
the
deceased and the complainant, Mr David Tsotetsi, were friends who
lived together at accused 2's place. They knew each other well.
They
were all patrons at the shebeen during the day of the incident. The
same protagonists were later in each other's presence outside
accused
2's house around the fire. They later entered the house and into
accused 2's bedroom which was well illuminated.
[6]
Mr
Steynberg, referring to the Court's finding in respect of accused I's
evidence, that although he placed the applicant on the scene,
the
Court has rejected his evidence stating at para 45 of the judgment
"His version, however, is porous and fabricated. It is
in fact,
blatantly false and I reject it
in
as far as it is in conflict with that of the State.
"
The fact that accused 1 has placed the applicant and his co-accused
on the scene was not rejected because it was congruent
with the
evidence of the State. The issue of identity relied on by Mr
Steynberg invoking the facts in S v Charzen
[5]
is
distinguishable in as far as the facts in this case are concerned.
The four accused were not strangers to the deceased and the
complainant. Mr Tsotetsi's evidence was credible and unassailable in
as far as the identity of the accused from the shebeen, to around
the
fire and in the bedroom where the offences were committed is
concerned. Accused 3 failed to testify. The State's evidence was
supported by accused I's on this aspect.
[7] Mr
Steynberg submitted that there was an error made in the evaluation of
the evidence. That cannot be so. The Court evaluated
the evidence in
its entirety. See S v Chabalala
[6]
on
the correct approach in evaluating evidence. The contradictions in
the evidence of the state witnesses as far as they went, were
not of
a material nature. It therefore follows that the submission in
respect of the identity of the applicant and the evaluation
of the
evidence stands to fail.
Ad
grounds 2 and 3 of common purpose in respect of the assault GBH and
murder counts.
[8]
Paras 37 and 38 dealt with the doctrine of common purpose as
articulated by the Constitutional Court. Para 5 of the judgment
clarifies
the roles each accused played in acting in concert. This
aspect is explained at para 38 with reference to S v Mgedezi
[7]
.
The applicant was with the other three accused when they poured water
over the complainant and the deceased, dragged them inside
the house
and into the bedroom where the offences were committed. The applicant
and his co-accused's intention was to extract a confession
from the
deceased through severe assault hence the finding that there was no
direct intention to kill the deceased. I therefore find
that the
contention by the applicant of not being part of the group does not
have merit and stands to fail
Ad
grounds 4 and 5 of dolus eventualis as a form of intent relates to
the murder charge.
[9]
Paras
39, 40 and 41 deal with the aspect with specific reference to
Director of Public Prosecutions, Gauteng v Pistorius
[8]
pertaining
to the pronouncements by Leach JA. The submission by Mr Steynberg is
unclear and unnecessarily conflates issues. He argues
that because
the State had alleged that the accused had murdered the deceased and
attempted to murder the complainant, they had acted
with the same
intent. However, the court convicted them of murder dolus eventua/is
and assault GBH. Which means the accused had two
different forms of
intent. The injuries that the accused sustained were not life
threatening; nonetheless, they were inflicted with
intent and not
negligently as contended on behalf of the applicant. See para 43 of
the main judgment.
[10]
Paras
39, 40 and 41 of the main judgment clearly followed the
pronouncements in the Pistorius
[9]
case
when determining the form of intent associated with the murder.
Undoubtedly, the applicant and his co-accused foresaw the possibility
of death resulting, I base that on the following, which are already
dealt with in the main judgment
10.1
First, the deceased and the complainant were stripped
naked before
the assault, consequently allowing the whipping to be in direct
contact with their skin;
10.2
Secondly, the assault was not fleeting in nature, as
testified to by
the complainant and confirmed by Dr Tebogo
Kanaomang, the
forensic pathologist;
10.3
Thirdly, the assault was carried out by a group of people
on
defenceless victims (the applicant and his co-accused);
10.4
Fourthly, the injuries sustained by the deceased were very serious
and, as opined by Dr Kanaomang,
the deceased's life could not be
saved through any form of medical intervention. The doctor expressed
the opinion, that was not contested,
that extensive force was used to
carry out the assault; and
10.5 Fifthly, and
more importantly, the accused's cries and pleas that 'they are
killing him' did not deter the applicant and his
co-accused from
further beating.
[11]
The aforementioned taken together and the utterances by accused 2
after their severe
beating calling them to stop until the following
day, indicates that they foresaw the possibility that death may
result. Further,
they reconciled themselves with that possibility.
None of them disassociated themselves from the incident before,
during or after
the beating. There can therefore be no gainsaying
that the form of intent was do/us eventua/is.
[12]
Mr
Steynberg seems to downplay the insightful remarks by the
Constitutional Court in S v Boesak
[10]
pertaining
to the right to remain silent. The following comments by Langa DP are
worth repeating:
"The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to
a decision to
remain silent during the trial"; [in the face of prima facie
implicatory evidence, it must be added].
[13]
I have dispassionately considered each ground raised by the applicant
in an effort to consider whether there are reasonable
prospects that
another court would come to a different finding than this court whose
judgment is sought to be appealed against. I
have deemed none. In the
result, the application for leave to appeal stands to fail.
[14]
The following order is made:
The
application for leave to appeal is dismissed.
M.C.
MAMOSEBO
JUDGE
OF THE HIGH COURT
DATE
OF HEARING: The
application for leave to appeal was considered on papers following
an
agreement between the parties
DATE
OF JUDGMENT: 04 June 2021
Counsel
for the Applicant: Mr H Steynberg
Instructed
by: Legal
Aid South Africa
Counsel
for the Respondent: Adv. R Makhaga
Instructed
by: Office
of the Prosecutions
[1]
Act 10 of 2013
[2]
See Notshokovu v S
[2016] ZASCA 112
(7 September 2016) at para 2
[3]
2014 JDR 2325 (LCC) at para 6
[4]
[2016] ZASCA 176
(25 November 2016) at paras 16-17
[5]
2006 (2) SACR 143
(SCA)
[6]
2003 (1) SACR 134 (SCA)
[7]
1989 (1) SA 687
(A) at 705I â 706C
[8]
2016 (2) SA 317
(SCA) at para 26
[9]
Director of Public Prosecutions, Gauteng v Pistorius
[10]
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) para 24