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[2020] ZALMPPHC 19
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Malakalaka v S (AA05/2019) [2020] ZALMPPHC 19 (6 May 2020)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED
CASE
NUMBER: AA05/2019
6/5/2020
In
the matter between:
MATOME LAZARUS
MALAKALAKA
APPELLANT
AND
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO J
[1]
The
appellant and his 3 co-accused appeared before AML Phatudi Jon two
counts of kidnapping, one count of murder read with the provisions
of
section 51 (1) of the Criminal Law Amendment Act
[1]
(the CLAA), and one count of assault with intent to do grievous
bodily harm (GBH). The State relied on the doctrine of common
purpose.
[2]
The
appellant and two of his co-accused were found guilty on all the
counts, whilst the fourth accused was found not guilty and
discharged
on all the counts. On each count of kidnapping, the appellant was
sentenced to 10 years imprisonment of which half was
suspended for a
period of 5 years on certain conditions; on the count of murder he
was sentenced to life imprisonment; and on the
count of assault GBH
he was sentenced to 10 years imprisonment of which half was suspended
for a period of 5 years on certain conditions.
[3]
The
background facts are as follows. On the night of the 31
st
July 2015, the appellant and his co-accused apprehended Nkholo
Makhubela and Albert Malete (deceased) and took them to the
appellant's
homestead where they assaulted them. Mr Makhubela and the
deceased were suspected of having stolen the appellant's bag. Mr
Makhubela
and the deceased were released from the appellant's
homestead after the assault. Later that night the deceased was found
lying
on the street not far from the appellant's homestead after he
had collapsed. He was taken to hospital where he died on- arrival.
[4]
Mr
Makhubela who was also the complainant in the assault GBH charge,
testified for the State and stated that on the 31
st
July 2015 whilst he was on his way to the laundromat, he met the
appellant driving a motor vehicle in the company of another accused.
The appellant stopped his vehicle and asked him to board it. After he
had boarded the vehicle, the appellant handcuffed him. From
there
they went to the deceased homestead. On arrival at the deceased
homestead, the appellant alighted from the vehicle and went
to fetch
the deceased. The deceased was brought into the vehicle and he and
the deceased were jointly handcuffed. They then drove
to the
appellant's homestead.
[5]
On
arrival at the appellant homestead, the appellant and his co-accused
started assaulting him and the deceased with a sjambok and
a
broomstick until it broke into pieces. They were assaulted all over
their bodies. They were exchanging amongst themselves in
assaulting
them. They were assaulted over a long period of time. When they were
being assaulted, they were accused of having stolen
the appellant's
bag. At some stage one of the accused came with bucket of water and
poured them with it. One of the accused was
assaulting them with
bricks on their feet and toes. As they were being assaulted the
deceased said the bag was at Ghiba's homestead.
They were also
assaulted with an object which looked like a pick handle.
[6]
The
appellant and the other accused left to go and fetch Ghiba. When
Ghiba arrived at the appellant's homestead, the deceased told
her
that he just mentioned her name as he was in pains as a result of the
assault. Ghiba was then taken back to her homestead.
After some time,
the appellant released Mr Makhubela and the deceased from his
homestead. By then the deceased was struggling to
stand up. When he
tried to pick up the deceased he was just falling. The deceased would
take a few steps and fall. He left the
deceased at the appellant's
gate and went home. As he was walking, when he looked back he saw the
appellant falling next to the
appellant's gate.
[7]
Maria
Ngobeni testified for the State. She testified that she is also known
as Ghiba which is her nickname. She stated that on the
31st July 2015
around 22h00 she was at her home when the appellant arrived. On
arrival the appellant told her that the deceased
had told him that he
had left a bag at her homestead. She told the appellant that she knew
nothing about the bag. The appellant
told her that the deceased was
at the police station. She left with the appellant with the intention
of going to see the deceased
at the police station. She was surprised
when they ended up at the appellant's homestead and not going to the
police station.
[8]
On
entering the appellant's homestead, she found two people sitting down
behind the house with their heads covered with plastic
bags. After
they were uncovered, the deceased told her that he only mentioned her
name so that she can come to his rescue, and
that he never left any
bag at her homestead. After that the appellant wanted to pepper spray
the deceased and she reprimanded him.
The appellant then fetched a
bucket of water and poured it onto the deceased. There were other two
people who were also assaulting
the deceased and another person who
was unknown to her.
[9]
She
stated that she is having a problem with her eye sight. Even though
she is having a problem with her eye sight, she could see
that these
people were using heavy objects to assault the deceased and this
other person. These objects were making sound when
the two were
assaulted. She could not see where on their bodies they were being
assaulted. The two looked to be in pains and seriously
injured. At
some stage the deceased was called by one of the assailant to stand
up, but was struggling to do so. The deceased tried
to skip and hop
but was unable to do so. From there she was transported back to her
homestead.
[10]
Archie Mabotja, the paramedic who
attended the deceased, testified for the State. He testified that on
the 31st July 2015 around
2h00 he was called to the scene. On arrival
at the scene he found a young man lying on the ground who was wet all
over the body.
He was not responding to any command. He loaded him
into the ambulance and transported him to the nearest health
facility. When
he examined him he found that he was having a head
injury, and struggling to breath. There was also some foam which was
coming
out of his mouth. He was very cold. When he examined the wound
on his head it looked like a stab wound. He passed away on arrival
at
the hospital.
[11]
Constable Hanetjie Bezeidenhout
testified for the State. He testified that he had reconstructed the
scene where the deceased was
found lying. That where the deceased was
found lying was 114 metres from the appellant's homestead.
[12]
The appellant also testified. He
testified that on the 31st July 2015 he took his dirty clothes to the
laundromat. After dropping
the dirty clothes, he went back to work
and continued working as usual. Around 13h00 when he opened the boot
of his car he realised
that his bag which was in the boot and was
containing R15 000-00 was missing. He went back to the laundromat as
he suspected that
Mr Makhubela might have taken it. He and others
started looking for Mr Makhubela.
[13]
They found Mr Makhubela on the street
and requested him to board their vehicle. Mr Makhubela told them that
he is the one who took
the bag from the boot of the car and handed it
over to the deceased. Mr Makhubela took them to the deceased
homestead. They found
the deceased and requested him to board their
vehicle. When they told the deceased that they were looking for a
bag, the deceased
started hitting Mr Makhubela with fists. He then
handcuffed them together so that they may not injure each other or
jump out of
the vehicle. He then drove to his homestead.
[14]
On arrival at his homestead, he asked
them about the whereabouts of the bag. Then one of the people who was
accompanying the appellant
said it seems as if the deceased and his
companion were heavily under the influence of drugs and that they
needed to be poured
with water for them to be a little bit sober.
This person poured them with water. According to the appellant, no
one was assaulted
and he would never have allowed anyone to assault
them in his homestead.
[15]
After being poured with water the two
started to talk. That is when the deceased told them that he had left
the bag at Ghiba's homestead.
They went to fetch Ghiba at her
homestead. On arrival at his homestead with Ghiba, she disputed that
the deceased had left a bag
at her homestead. After that they took
Ghiba back to her homestead.
[16]
After Ghiba has left, they told the two
that since they were refusing to give them the bag, they were now
taking them to the police
station. The two pleaded with them to give
them two days and that they will talk to Ghiba and will bring back
the bag, and they
released them. According to the appellant, the two
seemed to fine when they left his homestead. When they left his
homestead they
took the direction of the shop and he was walking
behind them.
[17]
The appellant is appealing against both
conviction and sentence on count 3 only, which is the murder charge.
The appeal on conviction
is with the leave of this court, whilst on
sentence is with the leave of the Supreme Court of Appeal.
[18]
On conviction, the appellant's grounds
of appeal are that the learned Judge erred in finding that the
appellant and his co-accused
had the required intention to cause the
death of the deceased; the trial Judge erred and misdirected himself
in finding that there
was no evidence that the deceased could have
been fatally assaulted elsewhere; and that the trial Judge erred and
misdirected himself
in drawing the inference, as the only reasonable
inference that the appellant caused the injuries leading to the death
of the deceased.
He further submitted that there is no evidence that
the deceased was stabbed with a knife.
[19]
With regard to the sentence, the
appellant first ground of appeal is that the trial Judge erred and
misdirected himself in finding
that the appellant acted in common
purpose with the other accused to murder the deceased, and that the
provisions of section 51(1)
of the CLAA was applicable. The second
ground is that the trial Judge erred and misdirected himself in
failing to find that the
appellant was convicted of murder on the
basis of
dolus enventualis
rather
than
dolus directus,
and
that this form of intention would constitute substantial and
compelling circumstances to impose a lesser sentence than life
imprisonment.
[20]
In this court counsel for the appellant
argued that according to the State case, there were no open wounds
when the deceased left
the premises of the appellant, but yet he had
a stab wound when he was found by the paramedic personnel. The
appellant's counsel
correctly conceded that the deceased and his
friend were assaulted by the appellant and his co-accused acting in
common purpose,
but submitted that their intention for assaulting the
deceased was to persuade him to point out the stolen goods. He
further submitted
that the appellant should have been found guilty of
assault with intent to do grievous bodily harm, alternatively of
murder in
terms of
dolus enventualis.
[21]
The State submitted that the trial Judge
has correctly convicted the appellant, but conceded that
jurisdictional facts to sentence
the appellant in terms of section
51(1) of the CLAA have not been established.
[22]
The appellant and his co-accused were
charged with murder read with the provisions of section 51(1) of the
CLAA, and further that
they have acted in common purpose in killing
the deceased. The sentence which ordinarily should be imposed was
life imprisonment
unless the court find substantial and compelling
circumstances to exist which will justify a deviation from the
prescribed minimum
sentences.
[23]
The facts of this case are mostly common
cause since the appellant does not dispute that he and his co-accused
have apprehended
the deceased and his friend, took them to his
homestead where they assaulted them in order to persuade them to
point out the whereabouts
of the stolen bag. The appellant denies
that the injuries which the deceased had sustained during the assault
led to his death.
According to the appellant, the deceased could have
been assaulted somewhere after the first assault, and that the second
assault
could have led to his death since the deceased was found to
have had a stab wound on his head, which he did not have when he left
his homestead.
[24]
What the appeal court must determine is
whether the trial court was correct in finding that the appellant and
his co-accused had
the required intention to cause the death of the
deceased, or whether there was a
novus
actus interveniens
after the assault
by the appellant and his co-accused. In case it is found that the
appellant and his co-accused are liable for
the death of the
deceased, the appeal court must determine whether there are
jurisdictional facts which calls for a minimum sentence
as prescribed
under section 51(1) of the CLAA have been established.
[25]
The appellant does not dispute he had
acted in common purpose with his co- accused when assaulting the
deceased. What he disputes
is that the death of the deceased was as a
result of their assault. The appellant's contention is that the
deceased might have
been assaulted somewhere after they have
assaulted him, and that is what might have caused his death. In
S
v Lungile
[2]
Olivier JA said:
"In
our law, a
novus actus interveniens
is an event which is, in
the context of the act that was committed, abnormal, and completely
independent of the acts of the accused."
[26]
According to the appellant, when the
deceased left his homestead he was walking properly and did not have
any head injuries. The
evidence that the deceased had what looked
like a stab wound on his head was testified by Mr Mabotja the
paramedic. He did not
say that the deceased had a stab wound, but
that it looked like a stab wound, which was his observation. The
pathologist who conducted
the post mortem examination had recorded
his chief post mortem findings as (i) scalp laceration; (ii)
cranio-cervical dislocation
and; (iii) ponto medullary rent. He
concluded that the cause of death was blunt force trauma to head.
There is nowhere he recorded
a stab wound. The appellant in his
section 220 admissions has admitted that the pathologist has noted
his findings and facts correctly,
and that the cause of the death was
blunt force trauma to the head. Mr Mabotja had just made an
observation and not an examination.
Therefore, his observation will
remain his observation and not a fact.
[27]
Mr Makhubela testified that he and the
deceased were assaulted over a long period of time with a sjambok,
broom stick which got
shattered into pieces during the assault, pick
handle, bricks and, at some stage they were poured with cold water.
After they were
released from the appellant's homestead, the deceased
tried to stand up, but was unable to do so. He tried to pick up the
deceased
so that he could stand up, but just fell down. He
(Makhubela) walked out of the yard. As he was walking he looked back
and saw
the deceased trying to stand up, taking a few steps but fell
next to the appellant's gate. He also testified that they were
assaulted
all over their bodies.
[28]
Ms Ngobeni testified that when she
arrived at the appellant's homestead, she found that the deceased and
Mr Makhubela were covered
with plastic bags on their heads. They were
being assaulted with heavy objects which made sound when they were
being assaulted,
and they were also poured with water. She could see
that they were really in pains and seriously injured. When the
deceased was
calling her to come to them, she could see that he was
struggling to stand up. The deceased tried to skip and hop, but was
unable
to do so.
[29]
The evidence of Ms Ngobeni is that of an
eye witness. It corroborates the evidence of Mr Makhubela. According
to the evidence of
Mr Makhubela and Ms Ngobeni the deceased was
injured to the extent that he was struggling to stand up and walk. It
was not surprising
that he was found lying 114 meters from the
appellant's homestead. That confirms the version of Mr Makhubela that
when he left
the appellant's homestead he saw the deceased taking a
few steps and falling. His body could only carry him up to 114 meters
from
the appellant's homestead. Mr Makhubela cannot be criticized for
having not noticed any head injuries on the deceased. The incident
occurred at night and it could not have been expected of him to
examine the deceased before he left him. He testified that they
were
assaulted all over their bodies, which will not exclude their heads.
At some stage plastic bags were placed over their heads
and would
therefore not have seen where the deceased was actually assaulted.
The appellant's defence of
novus
actus intervenes
was therefore
correctly rejected by the trial court.
[30]
Taking into consideration the prolonged
assault on the deceased and Mr Makhubela, the assortment of objects
that were used to assault
them, that the deceased was struggling to
walk when he left the appellant's homestead, and that he was found
lying 114 meters from
the appellant's homestead, the only reasonable
inference to be drawn is that the deceased died as a result of the
injuries he sustained
during the assault by the appellant and his
co-accused. The appellant and his co-accused are therefore
responsible for the deceased
death.
[31]
What must be determined now is whether
it was murder in the form of
dolus
directus
or
dolus
eventualis.
The trial court has
found that it was murder in terms of
dolus
eventualis.
Murder in the form of
dolus eventualis
consists
in (i) foresight of the possibility of death occurring, and (ii)
reconciliation with that possibility. (See
Director
of Public Prosecutions Gauteng v Pistorius
[3]
and S v Nkosi
[4]
)
[32]
The intention of the appellant and his
co-accused when they assaulted the deceased and Mr Mkhubela was to
extract information about
the bag that was stolen from the appellant.
With the assortment of the objects that they used to assault the
deceased and Mr Makhubela,
that the assault was for a prolonged
period of time, and that the deceased was seriously injured and
struggled to stand up even
at the time he was being assaulted, in my
view, the appellant and his co- accused have foreseen the possibility
of death occurring,
and despite that, reconciled themselves with that
foreseen possibility. The trial court has therefore correctly
convicted them
of murder in the form of
dolus
eventualis.
[33]
With regard to sentence, the charge
which the appellant was charged with, was classified as murder
falling under section 51(1) Part
I of Schedule 2 of the CLAA. The
provisions of Part I of Schedule 2 prescribe the sentence of life
imprisonment when murder is
committed when (a) it was planned; (b)
the victim was (i) a law enforcement officer performing his or her
functions as such, whether
on duty or not; (ii) or a person who has
given or was likely to give material evidence which to any offence
referred to in terms
Schedule 1 of Criminal Procedure Act, 1977 (Act
51 of 1977) at criminal proceedings in any court; (c) the death of
the deceased
was caused by the accused in committing or attempting to
commit or after having committed or attempted to commit one of the
following
offences: (i) rape or compelled rape as contemplated in
section 3 or 4 of the Criminal Law (Sexual Offences and R lated
Matters)
Amendment Act, 2007, respectively; or (ii) robbery with
aggravating circumstances as defined in section 1 of the Criminal
Procedure
Act, 1977; (d) the offence was committed by a person, group
of person or syndicate acting in the execution or furtherance of
common
purpose or conspiracy; (e) the victim was killed in order to
unlawfully remove any body part of the victim; or (f) the death of
the victim resulted from, or is directly related to, any offence
contemplated in section 1 (a) to (e) of the Witchcraft Suppression
Act, 1957 (Act 3 of 1957).
[34]
Ordinarily murder in terms of
dolus
eventualis
fall within the ambit of
section 51 (2) of the CLAA where the minimum sentence to be imposed
is 15 years imprisonment. In this case
murder was committed in the
furtherance of a common purpose. The question which must be
determined is whether the sentence to be
imposed is life imprisonment
or minimum of 15 years imprisonment. In my view, the mere fact that
the accused have been found to
have committed murder in the
furtherance of a common purpose, but in the form of
dolus
eventualis,
will not automatically
invoke the sentence of life imprisonment. By convicting them on basis
of
dolus eventualis
is
an indication that no jurisdictional factors have been established to
convict them on the basis of section 51(1) of the CLAA.
Section 51(1)
of the CLAA is ordinarily applicable where there is direct intention.
[35]
There is nothing preventing the trial
court from sentencing the appellant beyond the prescribed minimum
sentence of 15 years which
may include life imprisonment. However,
the trial court should provide the basis for sentencing the appellant
beyond 15 years.
The reasons for increasing the minimum sentence of
15 years must be clear and not leave one to speculate.
[36]
In
S v
Msimango
[5]
Bosielo JA said:
"It remains a salutary principle of our
law that presiding officers should give reasons for every decision
which they make,
particularly if it has adverse consequences for the
accused. This principle was enunciated as follows by this court in S
v Mathebula
and Another
2012 (1) SACR 374
(SCA);
[2011] ZASCA 165)
at
para 10;
"A regional magistrate has discretion
to impose
a
sentence
exceeding the minimum sentence prescribed by the Act with an
additional five years as provided for in the provisions of
section
51(2). Such discretion must however, be exercised on judicially and
reasonable grounds. Where
a
regional
magistrate intends to depart from the prescribed minimum sentence, it
is proper and fair that the regional magistrate give
reasons for such
departure. Absent any such reasons, the conclusion becomes
inescapable that such
a
decision
is arbitrary or that the sentencing discretion was not exercised
judicially. It
is
not
proper for an appeal court to have to speculate about reasons which
motivated the regional magistrate to impose
a
sentence prescribed. Such an approach
cannot be countenanced
as
it
is
subversive
to the principles of openness, transparency, accountability and
fairness. It
is
trite
that judicial officers can only account for their decisions in court
through their judgment. It is through their judgments
which contain
reasons that judicial officers speaks to the public. Their reasons
are therefore the substance of the judicial actions.
Dealing with
a
similar matter this court enunciated
the principle
as
follows
in
S
v
Maake 2011(1)
SACR
263
(SCA) at para 19:
"It
is
not
a
salutary practice, but obligatory for
judicial officers to provide reasons to substantiate conclusions"
Thus the court went
on to state the following in para 20: "When
a
matter
is taken on appeal,
a
court
of appeal has
a
similar
interest in knowing why
a
judicial
officer who heard the matter made the order which he did. Broader
considerations came into play. It is the interest of
the open and
proper administration of justice that the court state publicly the
reasons for their decisions. A statement of reasons
give some
assurance that the court gave due consideration to the matter and did
not act arbitrarily. This is important in the maintenance
of public
confidence in the administration of justice"
[37]
The trial court has correctly balanced
all the factors that it considered to constitute substantial and
compelling factors against
all the factors that it considered to be
aggravating factors and concluded that there are no substantial and
compelling circumstances
justifying a deviation from the prescribed
minimum sentences. However, the trial court failed to identify and
record any facts
or circumstances which justify a sentence of
imprisonment in excess of 15 years since jurisdictional facts to
impose a sentence
within the ambit of section 51(1) have not been
established. The trial court's failure to identify and record facts
or circumstances
which justify a sentence in excess of 15 years
imprisonment entitles the appeal court to interfere and consider
sentencing afresh.
(See
Chonco v The
State
[6]
). Taking into consideration the
gravity of the offence, the circumstances under which the offence was
committed, the appellant's
personal circumstances, that the appellant
was a peace officer who was supposed to maintain law and order, and
that the appellant
did not show any remorse, this court does not find
any factors which could be considered as constituting substantial and
compelling
circumstances justifying a deviation from the prescribed
minimum sentence of 15 years imprisonment.
[38]
In the result I make the following order
38.1
The appeal against conviction on count 3
is dismissed.
38.2
The appeal against sentence on count 3
is upheld.
38.3
The sentence of life imprisonment
imposed by the trial court on count 3 is set aside and substituted
with the following:
"The accused is sentenced to 15 years
imprisonment."
38.4
Count 1, 2 and 4 to run concurrently
with count 3.
38.5
The effective period of imprisonment
will be 15 years.
38.6
The sentence is antedated to the 23rd
June 2016.
MF.
KGANYANGO J
JUDGE
OF HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
I
agree
EM
MAKGOBA JP
JUDGE
OF HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKW ANE
I
agree
MV
SEMENYA J
JUDGE
OF HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT : ADVOCATE
PJC KRIEL
INSTRUCTED
BY
:
BDK ATTORNEYS
E
COUNSEL FOR
RESPONDENTS
: ADVOCATE J KOTZE
INSTRUCTED
BY
: DIRECTOR OF PUBLIC
PROSECUTIONS, POLOKWANE
DATE OF
HEARING
:13 MARCH 2020
DATE
OF JUDGEMENT
: 06/05/2020
[1]
Act 105 of 1977
[2]
1999 (2) SACR 597(A)
at para 30
[3]
[2015] ZASCA 204
(3December 2015)
[4]
2016 (1)
SACR
301
(SCA)
[5]
2018 (1) SACR 276
(SCA) at para 25
[6]
[2019] ZASCA 75
(30 May 2019) at para 12