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[2018] ZAGPJHC 647
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Mgidi v S (A65/2018) [2018] ZAGPJHC 647 (6 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
A 65/2018
In
the matter between:
MGIDI,
PERTUS
ZWELAKHE Appellant
and
The
State Respondent
J
U D G M E N T
Windell
J
Badenhorst
AJ
[1]
The Appellant was charged in the Regional
Court sitting in Vosloorus on one count of arson and one count of
attempted murder.
[2]
He was convicted as charged on 31 July
2017.
[3]
On 7 August 2017 the Appellant was
sentenced to 12 years imprisonment on count 1 (arson) and 8 years
imprisonment on count 2 (attempted
murder). The court a quo directed
that the sentence on count 2 should run concurrently with the
sentence on count 1. Leave to appeal
was refused by the Court a quo.
Leave to appeal was subsequently granted by this Court on both the
conviction and sentence.
[4]
It is common cause that in the early hours
of 8 October 2016 the dwelling occupied by the appellant and his
wife, Irene Miya Duduzile
(Ms Duduzile), caught fire and was severely
damaged before help arrived. Ms Duduzile is the complainant. Both of
them were trapped
inside the house and faced in certain death if
their saviours did not manage to break down a locked burglar door and
pulled them
to safety. Two of the rescuers, Stanley Magwaza and
Kagiso Mopedi, gave evidence at the trial.
[5]
Ms Duduzile was called first. She testified
that she was woken by the appellant’s patting on her shoulder,
saying “
amen
”.
When she proposed that they go to sleep, the appellant was heard
“
clapping his hands hard …
(and)
saying
amen with a loud voice
”. When Ms
Duduzile was about to enquire from the appellant what caused him to
shout at her, she “
saw a huge
light emanating from the children’s bedroom
”.
She soon discovered that the house was on fire. Alarmed by her
discovery, she summoned the appellant’s help to find
the key to
the locked door so that they could exit and make efforts to
extinguish the fire.
[6]
She testified that he, ominously, refused
saying:
“
I
want us to die here me and you
.”
[7]
Pressed for a reason, he answered:
“
it
is because of your bitchiness
”.
[8]
When help eventually arrived in front of
the locked door, Ms Duduzile told the rescue party that she did not
have the key and that
the appellant (who was standing behind her) did
not want to give her the key and, she added, he wanted both of them
to die inside
the house.
[9]
After they were rescued, Ms Duduzile saw
the appellant making a call on his tablet.
[10]
She reported the matter to the police who
arrived on the scene.
[11]
Stanley Magwaza, the next witness for the
State, was one of those who rushed to the scene of the burning house.
He and others joined
in efforts to extinguish the fire. Once the two
occupants were rescued, the witness and his friends asked Ms Duduzile
what had
happened. She identified the appellant as the culprit.
They then asked him what the problem was and he then:
“
asked
as to why did we take them out we should have let them burn inside
the house
”.
Upon further inquiry, the
appellant said:
“
yes
indeed I burned it
”.
[12]
According to Mr Magwaza, the appellant then
proceeded to break a window of the house and retrieved his “
tablet
cell phone
”. He was overheard
talking over the telephone explaining what happened.
[13]
Kagiso Mopedi was the third, and last,
State witness. He was also one of the rescuers. When he arrived at
the scene, the burglar
door was still locked, trapping the two
occupants inside the burning house. He said that he saw the
appellant:
“
grabbing
(Ms Duduzile) from behind as if (he) was pulling her inside the
house
”.
Later
he also saw the appellant, pacing up and down, talking over the
phone. He confirmed that Ms Duduzile pointed out the appellant
as the
arsonist and when the angry onlookers confronted the appellant, he
said:
“
I
wanted us to burn inside the house
”.
[14]
The appellant testified in his defence. His
version is that he had been watching television and fell asleep. He
was woken by the
sound of windows breaking. He confirmed that the
burglar door trapped them inside the burning house and that Ms
Duduzile screamed
for help. He stated that he could not fetch the
keys, which he knew to be in the bedroom; but that it had been dark
and the house
filled with smoke. He denies touching Ms Duduzile, or
saying the ominous things the state witnesses attributed to him and
said
that he “
could not remember
talking to anyone on the scene
”.
Later he emphatically denied talking to anyone. He also denied being
dragged out of the house, as described by the state
witness, claiming
he managed to escape without assistance from anyone. When asked,
during cross examination, what he did to try
and help the situation,
he replied:
“
I
stood with her (Ms Duduzile) at the door because I was scared to go
back
”
.
[15]
Counsel for the appellant made the
following submissions:
15.1.
That the State’s evidence was
unreliable, particularly concerning what is referred to as “
the
confession or admission
”
allegedly made by the appellant that he is the one who set the house
alight.
15.2.
That it is improbable that the appellant
set the house alight, as there is no plausible reason furnished for
this on record. The
real cause of the fire was not established.
[16]
With regard to counsel’s first
submission, there is of course a material difference in law between a
“confession”
and “an admission”. A confession
is defined as an admission of all the elements of the offence
charged, a full acknowledgment
of guilt, see R v Becker
1929 AD 167.
[17]
In S v Molimi
[2008] ZACC 2
;
2008 (3) SA 608
(CC) par
[28] the Court made the point that:
“
There
is no definition of 'confession' in the statute (the Law of Evidence
Amendment Act). However, courts define 'confession' narrowly
as 'an
unequivocal acknowledgment of guilt, the equivalent of a plea of
guilty before a court of law'. Du Toit et al [Service Issue
38, 2007
at 24-74] describe an admission 'as a statement or conduct adverse to
the person from whom it emanates'. Such admissions
are made out of
court and tendered in evidence against their maker. If made to a
magistrate and reduced to writing, they are admissible
upon their
mere production provided the legal requirements are met
.”
[18]
Section 219A of the Criminal Procedure Act
[CPA] 51 of 1977 provides, in relevant part, as follows for the
admissibility of any
admission:
“
219A
. Admissibility
of admission by accused.
—
(1) Evidence of
any admission made extra-judicially by any person in relation to the
commission of an offence shall,
if such admission does not constitute
a confession of that offence and is proved to have been voluntarily
made by that person,
be admissible in evidence against him at
criminal proceedings relating to that offence
:…”.
[19]
In this case, the appellant’s
statements constitute admissions. We are satisfied that these extra
judicial admissions by the
accused, if proved, satisfy the
requirements of Section 219A of the CPA and would be admissible.
[20]
We find that the admissions were proved
beyond a reasonable doubt and are entirely inconsistent with the
appellant’s belated
protestations of innocence. The appellant
was also unable to explain why the two state witnesses, who testified
about his admissions,
falsely implicated him to be the arsonist.
[21]
We do not agree that the “real cause”
of the fire was not established. Based on the overwhelming
circumstantial evidence,
the fire was started by the appellant with
the intention of killing Ms Duduzile and himself. This inference is,
in our view, consistent
with the proved facts (R v Blom
1939 AD 188
at 202 - 3), and even if it is not the only inference, we are
satisfied that on the probabilities it is certainly the more
plausible
or acceptable inference (Ocean Accident and Guarantee
Corporation Ltd v Koch
1963 (4) SA 147
(A) at 159B - D, and AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) at 614E - H).
[22]
We are accordingly in agreement with the
Judgement of the Court below. Ms Duduzile’s evidence was
corroborated by two independent
eye witnesses who had no reason
whatsoever to lie to the Court. The magistrate assessed the State’s
witnesses to be credible
and we have no reason to deviate from that
assessment. The appellant’s version, on the other hand, was
held to be highly
improbable. We agree. If he was innocent, why was
he not actively involved in the ongoing rescue effort. On his
version, he was
a passive observer throughout the crisis: standing
behind Ms Duduzile at the locked burglar door without engaging with
the rescuers
or lifting a finger to assist in any meaningful way. His
lack of action is entirely consistent with his admitted desire to
burn
inside that house with Ms Duduzile. It comes as no surprise that
he did not make a good impression on the Court
a
quo
and that his (continually shifting)
version was rejected by the magistrate as improbable and false beyond
a reasonable doubt.
[23]
In the result, the appeal against
conviction falls to be rejected.
[24]
The appellant was sentenced, effectively,
to 12 years imprisonment. We note, in particular, the consideration
given by the Court
below to the crimes involving domestic violence
which the magistrate said had “
reached
astronomical proportions
”
particularly in the area of Vosloorus. The Court a quo was correct to
apply the
dictum
in paragraph [6] of
Mudau v State
(547/13) [2014] ZASCA43 (31 March 2014). The full text thereof reads
as follows:
“
[6]
Domestic
violence has become a scourge in our society and should not be
treated lightly, but deplored and also severely punished.
Hardly a
day passes without a report in the media of a woman or child being
beaten, raped or even killed in this country. Many
women and children
live in constant fear. This is in some respects a negation of many of
their fundamental rights such as equality,
human dignity and bodily
integrity. This was well articulated in S v Chapman
[1997] ZASCA 45
;
1997 (3) SA 341
(SCA) at 345A-B when this Court said the following:
‘
Women
in this country have a legitimate claim to walk peacefully on the
streets to enjoy their shopping and their entertainment,
to go and
come from work, and to enjoy the peace and tranquillity of their
homes without the fear, the apprehension and the insecurity
which
constantly diminishes the quality and enjoyment of their lives
.’
See
also S v Baloyi
[1999] ZACC 19
;
2000 (1) SACR 81(CC)
at para 11.”
[25]
We do not find the sentence to be
shockingly inappropriate, considering the seriousness of the crimes
and the appellant’s
total lack of any signs of remorse.
[26]
The appeal is dismissed.
_______________________
L.
WINDELL J
Judge
of the High Court of South Africa,
Gauteng
Local Division
_______________________
C.
H. J. BADENHORST AJ
Acting
Judge of the High Court of South Africa,
Gauteng
Local Division
For
the appellant: Ms M Leoto
For
the respondent: Adv R Ndou
Date
of hearing: 6 December 2018
Date
of Judgment: 6 December 2018