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[2019] ZAFSHC 33
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Rapodile v S (A209/2018) [2019] ZAFSHC 33 (1 March 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
CASE
NO: A209/2018
In
the matter between
MOEKETSI
ERNEST
RAPODILE APPLICANT
And
THE
STATE RESPONDENT
CORAM:
MATHEBULA,
J
et
CHESIWE,
J
JUDGMENT
BY:
CHESIWE,
J
HEARD
ON
:
10 DECEMBER 2018
DELIVERED
:
01 MARCH 2019
[1]
The Appellant was convicted in the Regional Court Welkom on a count
of murder and was sentenced to twelve years imprisonment.
[2]
The Appellant’s application for leave to appeal against the
conviction and sentence was dismissed by the trial court.
The
Appellant petitioned the Judge President of this Honourable Court.
The petition for leave to appeal was granted against
the sentence
only. However, the respondent in the written heads of arguments
is of the view that the conviction on a count
of murder is not
supported by evidence and that the appellant should have been
convicted on a charge of Culpable Homicide.
[3]
The background of the matter is briefly as follows: On the night of
the incident, 21st May 2016, the Appellant and the deceased
were
involved in a physical fight. The record shows that the
Appellant was approached by the deceased and the second witness
who
requested a cigarette from him. The Appellant told the deceased
that the cigarette was
almost
finished
.
According to the second state witness the deceased held the
Appellant with his belt and instructed the second state witness
to
search the Appellant whereby they found only R8.00 in his pocket and
it was taken by the second state witness. The deceased
punched the
Appellant with a fist on the left side of his face. The second
state witness,
Levuyi
Sonkwala
also
punched the Appellant with a fist. According to him the
deceased was a bit rough with the Appellant and he had a broken
beer
bottle in his possession when he confronted the Appellant. The
deceased assaulted the Appellant on the head with the
broken beer
bottle. The Appellant corroborated this version and testified
that the deceased attempted to stab him
with
the broken beer bottle. The Appellant picked up stones and
threw them
at
the deceased and two of the stones hit the deceased on his head. The
deceased fell down and the Appellant ran to a nearby garage
to ask
for help. According to the Appellant he only wanted to stop the
deceased from assaulting him but he did not intend to kill
him.
[4]
The Appellant throughout the trial in the Regional Court was legally
represented. He pleaded not guilty to the charge.
His attorney
tendered a plea explanation as follows:-
“
That
on the day in question the accused did meet with the deceased who was
in the company of another male person and both the deceased
and the
other male person robbed the accused and assaulted him. And the
accused admit that he hit the other male person with a
fist in
defending himself, and also hit the deceased with a stone to defend
himself.”
[5]
In respect of conviction the version of the state was narrated by two
witnesses, namely Wendi Ndabeni and Levuyi Sonkwala.
The
version of the defence was narrated by the Appellant.
[6]
Notwithstanding the Appellant’s not guilty plea, he was found
guilty by the Presiding Officer and convicted on 27 September
2016.
[7]
During
oral arguments by
Mr
Mille on behalf of the Appellant submitted before us
that
the Appellant was indeed threatened by two individuals and the
incident happened at night and that provocation on the part
of the
deceased played a role as well as the consumption of alcohol by the
deceased and the two state witnesses. Mr Mile
submitted that
the Appellant did exceed the boundaries of self-defence. He
requested
tha
t
the court to take into consideration the circumstances of the night
in question and that the Appellant be sentenced to five
years
imprisonment in terms of s276(1)(i) of the Criminal Procedure Act 51
of 1977 (the CPA), alternatively, correctional supervision.
[8]
Advocate Pretorius on behalf of the State conceded that the Appellant
should have been found guilty of culpable homicide, as
the Medical
Doctor was not called to testify and only
the
post
mortem
report was handed in as an Exhibit A and thus the appellant’s
version stand unchallenged. He submitted that direct
imprisonment would be appropriate and that there is no need for the
court to implement Section
276(1)(i)
of
the
CPA.
Ad
conviction
[9]
It is trite that the State must prove its case against an accused
person beyond reasonable doubt. The state witness, Levuyi
at
the trial court testified that he and the deceased approached the
Appellant and the deceased was in possession of a broken beer
bottle
and wanted to stab the Appellant. The deceased went further in
instructing Levuyi to check if the Appellant had any
valuables.
The Appellant also testified that the deceased threatened the
Appellant. The Appellant clearly testified
that the deceased
was the aggressor and the Appellant in attempting to defend himself
exceeded the boundaries of self-defence.
[10]
Adv. Pretorius at the appeal proceedings conceded that the state
should have put charges of culpable homicide against the Appellant
and further state that the court of appeal has the authority and
discretion to make an order as justice may require to change
the conviction by substituting it with a competent verdict (see
Kruger: Hiemstra’s Criminal Procedure Second issue 2 p31-39).
[11]
Where
the accused is charged with the offence of murder, the provisions of
section 258 of the CPA find application and provide as
follows:
“
if
the evidence on a charge of murder or attempted murder does not prove
the offence of murder or as the case may be attempted murder
by
(a)
the
offence of culpable homicide
…
...the
accused may be found guilty of the offence so proved.”
[12]
Culpable homicide “is the unlawful negligent causing of the
death of another human being (
S
v Mtshisa
1970 (3) SA 747
(A) at 752
D
– E).
The question is whether there was negligence on the part of the
Appellant. It is clear that the deceased was the instigator
and
aggressor and the state witness wanted to rob the Appellant of any
valuables the Appellant had on him. The Appellant had no
weapon on
him. The Appellant instead picked-up a brick to ward off the
attackers. However, the post mortem report,
Exhibit
A p
104,
showed that the deceased had repeated trauma to the head.
Although
the
Medical Doctor who performed the post mortem was not called to
testify to confirm the injuries as sustained by the deceased,
but the
report shows that the injuries on the deceased were severe.
[13]
Indeed the Appellant exceeded the boundaries of self-defence and the
trial court erred as such. And this is also supported
by the
State in the appeal proceedings, as the record clearly showed that
the deceased was the instigator and aggressor.
The only way to
do justice to this appeal is to find the appellant guilty of culpable
homicide and this is solely based on the
evidence as a whole.
Evaluating the evidence in totality, without doubt, lead to the
conclusion that the Appellant is guilty
of culpable homicide.
Ad
Sentence
[14]
The trial court in sentencing the Appellant took the following
mitigating factors into consideration, that the Appellant was
28
years old, he is a first offender. He was employed as a
Security Officer, he has minor children, the deceased was the
instigator and the aggressor, the appellant supports his family and
has passed grade 10.
The
Appellant was defending himself against an attack and robbery with
aggravating circumstances in which the deceased wielded a
broken beer
bottle to commit the offence.
The
aggravating factors are the seriousness of the offence, the interests
of the community and that a human being
has
l
ost
his life, and whatever sentence is awarded
it
w
ill
not bring back the life that has been lost.
[15]
Both the Legal Representatives on behalf of the Appellant and the
State agreed that 12 years imprisonment be replaced with
a five year
imprisonment term in terms of Section 276 (1)((b) of CPA
alternatively 276(1)(i) of CPA.
[16]
The court must take into consideration the Appellant’s personal
circumstances, the nature and gravity of the offence
and the
interests of the community. These factors must be balanced
against each other in order for the court to reach an
appropriate
sentence. Both counsels were
ad
idem
that a sentence of five years imprisonment would be adequately
deterrent, rehabilitative and retributive. The Appellant has
been in custody from 27 September 2016 and that is two years already
spent in custody.
[17]
Indeed killing of another human being whether it was culpable
homicide
,
it is in
itself
serious by nature. It does not matter what punishment the
Appellant is going to serve, that will not bring back the
deceased.
However, in spite of the self-defence raised by the Appellant, the
court still has to give some form of punishment.
[18]
The
basic principle of sentencing is that punishment should fit the
criminal, the crime and must be fair to society. It must also
be
blended with an ingredient of mercy and that should be imposed
bearing in mind the peculiar circumstances of a particular case
at
hand (see
S
v Rabie
1975 (4) SA 855
(AD).
[19]
It is trite that a court of appeal should not replace the sentence
imposed by the trial court with its own, unless it is justified
to do
so. (See
S V Obisi
2015 (2) SACR 35
W at 35i-
j). The
State conceded that the trial court should have taken into
consideration that the deceased was the aggressor and it
therefore,
overemphasised the aggravating factors at the expense of the
mitigating factors, thus warranting this court to interfere
in the
sentence.
[20]
Following that the Appellant’s conviction was changed to a
competent verdict of culpable homicide, it therefore follows
that the
court has to interfere with the sentence as well. The material
misdirection of the trial court in respect of the
sentence of twelve
years
calls
f
or
appellate interference. The personal circumstances of the
appellant, inter alia, indicates that he is a first offender
and for
his age of twenty eight years he has not yet been in conflict with
the law. This cumulatively gives credit to the
Appellant.
Thus the Appellant’s appeal in respect of sentence should
succeed.
[21]
In view of the aforesaid, I am persuaded that the trial court
misdirected itself and that the sentence can be tampered with.
[22] Accordingly I
propose the following order:
1. The appeal against
conviction is upheld but is amended as follows:
1.1 The Appellant is
found guilty of culpable homicide.
2. The appeal against
sentence succeeds. The sentence of twelve years imprisonment
imposed on the appellant is set aside and
substituted as follows:-
2.1 The appellant is
sentenced to five years imprisonment.
2.2 The sentence is
deemed to have been imposed on 27 September 2016.
2.3
The
order in terms of s103(1) of the Firearms Control Act is
confirmed.
______________
S.
CHESIWE, J
I
concur and it is so ordered.
__________________
M.A.
MATHEBULA, J
On
behalf of the
Appellant:
Mr P.P. Mile
Instructed
by: PP Mile Attorneys
Welkom
On
behalf of the
Respondent:
Adv. D. Pretorius
Instructed
by: The Director of Public Prosecutor
Bloemfontein