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[2018] ZAGPJHC 681
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Hartney v S (A133/2018) [2018] ZAGPJHC 681 (27 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A133/2018
In
the matter between:
HARTNEY
BOBBY JACK
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MATSEMELA
AJ
[1]
The appellant was arraigned in the Randfontein Regional Court on the
following counts:
Count
One: In that he killed one Moade Kwenyana by stabbing him with a
knife.
Count
2: In that he assaulted one William Kaalse with fist with the intent
to cause him grievous bodily harm.
Count
3: In that he assaulted one Ms Lee-Ann Kwenyana by stabbing her with
a knife with the intent to cause her grievous bodily
harm.
[2]
On the 26 February 2015 he was found guilty on count 1 and 2, and
acquitted on count 3.
[3]
On the 29
th
July 2016 he was sentenced as follows:
On
count 1
In
terms of section 279(1) of the criminal procedure Act read with the
provisions of section 51(2) part 2 of schedule 2 of the criminal
law
amendment act 105, he was sentenced to 20 years imprisonment.
On
count 2
12
months imprisonment
Both
sentences were ordered to run concurrently.
[4]
The appellant applied for condonation in that the heads of argument
were filed late. The condonation was granted.
AD
CONVICTION
[5]
This matter emanates from an incident that occurred on the 25
December 2014. It’s not in disputes that the appellant stabbed
the deceased twice. It’s also not in dispute that the appellant
assaulted William Kaalse. What is in dispute is that he acted
in
self-defence.
[6]
The evidence before court is that Lee-Ann Kwenyana was asleep with
her husband (the deceased) in their bedroom at about 22h00
on that
day. They were awakened by the noise made by the appellant who was
enquiring with William Kaalse in that other bedroom.
William Kaalse
is the father of Lee-Ann Kwenyama.
[7]
Lee-Ann and the deceased went to investigate because they heard that
there was an argument between the Appellant and his girlfriend.
They
saw the Appellant coming out of William Kaalse’s bedroom. When
he came out he had already assaulted William Kaalse with
a fist on
his forehead. Mr Kaalse did testify later on that the Appellant came
to his bedroom opened his blankets and punched him
on his face. When
he came out of the bedroom the deceased was standing in the entrance
of the kitchen. The Appellant was swearing
at Lee-Ann Kwenyana, her
father and the deceased. The Appellant was asked to leave the house.
The appellant indicated that he wanted
to put on a top as in jacket
or jumper. He suddenly turned around and stabbed the deceased twice.
He thereafter jumped the fence
and escaped.
ISSUES
SELF
DEFENCE
[8]
The appellant raised the defence of self-defence. In his testimony he
said the deceased hit him with a fist on his mouth, he
fell down. The
deceased continued to assault him by jumping over him and kicking
him. Lee Ann and the father came to join in the
attack. He fell on
the ground and tried to get up. However he fell against the sink and
saw a knife. He took it. He warned them
to move away but they
refused, he then stabbed the deceased. The court a qou rejected his
defence of self-defence and correctly
so.
[9]
In R.Snyman Criminal Law Fourth edition at page 102 says:
“
a
person acts in private defence and the act is therefore lawful if she
uses force to repel unlawful attack which has commenced
or eminently
threatening upon her or somebody else’s life, bodily integrity,
property or other interests which deserves to
be protected provided
the defensive act is necessary to protect the interest threatening
and directed against the attacker than
necessary towards to ward off
the attack.”
[10]
Evidence from the record shows that the appellant was the aggressor
when the incident took place. The Appellant and his girlfriend
Olive
had a quarrel in their bedroom. This caused the Olive to leave the
room. This made the Appellant very angry. He started to
look for
Olive in the other rooms. He went into the room of Mr William Kaalse
and when he did not find her he took out his frustrations
on Mr
Kaalse. Then he came to passage where he met the deceased and his
wife. They asked him to leave the house and he stabbed
the deceased.
[11]
In S v De Oliveira the court said the following:
“
a
person who acts in private defence acts lawfully, provided his
conduct satisfy the requirements laid down for such a defence and
does not exceed its limits. The test for private defence is
objective. Would a reasonable man in the position of the accused have
acted the same way (S v Ntuli
1975 (1) SA 429
(A) at 436 E). If an
accused honestly believes his life or property to be in danger, but
objectively viewed they are not, the defensive
steps he takes cannot
constitute private defence. If in those circumstances, he kills
someone his conduct is unlawful.
[12]
In Papu and two others vs State
2015 (2) SA CR 313
the following was
said:
“
The
appellant reliance on private defence rejected by the final court
after an holistic examination and appraisal of the evidence
concerning the sequence of events which preceded the stabbing of the
deceased”
[13]
In the present case the learned magistrate reasoned as follows:
“
According
to him [Appellant} he was jointly assaulted by three of them whilst
he was inside the kitchen. He tried to get up and
fell against the
sink. He took a knife on the sink and screamed at them to move away.
When they failed to move away he stabbed
the complainant. He does not
know if they knew that he had a knife. If the deceased was in fact in
front of him and Lee-Ann and
her father on either side what would
have prevented them from seeing him grab a knife” How can the
people attack you when
you armed and they are not.
[14]
Under cross examination the Appellant said he does not know what
caused the injury on Mr Kaalse’s forehead. According
to him he
was acting in self-defence. Remember that Mr Kaalse testified that
the Appellant came into his room looking for Olive.
When he could not
find her he opened the blanket and hit him in the face. I submit that
the trial court correctly convicted the
Appellant on assault with the
intention to do grievous bodily harm.
SINGLE
WITNESS
[15]
It was argued on behalf of the Appellant that the complainant is a
single witness in so far as the incident of stabbing is
concerned and
that the cautionary rule should apply when assessing her
evidence relating to the stabbing of the deceased.
I do not think
that this court should even consider this aspect because it is
common cause that the Appellant stabbed the
deceased. The issue was
whether he acted in self-defence.
SENTENCE
[19]
Sentencing falls exclusively within the discretion of the trial. The
appeal court will only interfere with the sentence where
the trial,
exercised its discretion improperly or unreasonable or misinformed
itself as to the facts which resulted in the shockingly
inappropriate
sentence. See S v ANDARSON
1964 (3) SA 494
(A)
[20]
As it was adumbrated in the case of S V Zinn, the triad must be taken
into account when sentencing. The following were put
before court a
quo:
Personal
circumstances of the accused
1.
He is 34 years of age.
2.
He was unemployed
3.
He is the father of two minor children.
4.
He has previous convictions. He was convicted of
assault.
SERIOUNESS
OF THE OFFENCE
[23]
The appellant was convicted of a serious offence. The offence was
committed in a vicious and callous manner. The brutality
of the
appellant indeed showed that he attaches no value to human life.
INTEREST
OF THE COMMUNITY
[24]
The offence of which the appellant was convicted of is very serious.
The community needs to be protected against such violent
attacks. The
message must be sent out there that there would be criminals are
discouraged from committing such offences.
[25]
The trial court correctly imposed a minimum sentence in regard to the
count of murder. There was nothing that was placed before
it , to
persuade it to deviate from the minimum sentence. There were no
substantial and compelling circumstances. There is nothing
shocking
and inappropriate about the sentence which was imposed by the trial
court.
I
therefore make the following order:
Appeal
against both the sentence and conviction is dismissed.
-----------------------------------
MOLEFE
MATSEMELA
ACTING
JUDGE IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
--------------------------------------------
FISHER
J
JUDGE
INTHE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
FOT
THE APPELLANT: S NOBANGULE
INSTRUCTED
BY: LEGAL AID SOUTH AFRICA
011870
1480
FOR
THE RESPONDENT: ADV ZINN
INSTRUCTED
BY: DIRECTOR OF PUBLIC PROSECUTIONS
0760887801