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[2016] ZAKZPHC 111
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Mapete v S (AR140/2016) [2016] ZAKZPHC 111 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: AR140/2016
In
the matter between:
SIYABONGA
MAPETE APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
Delivered: 20 October
2016
MFAYELA
AJ
[1]
The appellant who was unrepresented at the trial was charged with two
(2) counts. Count 1 of attempted murder and count
2 escaping
from lawful custody in contravention of section 117(a) read with
section 1 of Act 111 of 1998.
Count
1
[2]
The facts briefly are as follows:
a) Mr Moses, the
complainant, a court orderly, was escorting the appellant inside
Durban Magistrate Court. Suddenly, the Appellant
strangled him
for about 15 to 20 minutes whilst uttering the words “
I want
to kill you
”. He continued to strangle him even when
the complainant pretended to be dead.
b) The appellant only
stopped when he heard another officer, Chiliza, approaching.
c) The complainant was a
single witness in so far as the attack is concerned.
[3]
The following is common cause:
a) The appellant, who was
in custody, was being escorted by the Court Orderly, who is the
complainant in this matter.
b) The complainant
sustained injuries as per Dr Singh’s evidence.
c) There was no one else
where this incident happened except the appellant and the
complainant.
[4]
The issue for determination is whether or not the appellant assaulted
the complainant on the day in question. There is
strong
corroboration that the complainant was attacked and assaulted by the
appellant.
[5]
The following militates against the appellant’s version:
a) When Chiliza came, the
appellant had no shirt on.
b) When Chiliza appeared
the appellant ran away from the scene. The appellant was not
rendering any assistance to the complainant.
c) The keys were found on
the spot where the appellant was apprehended.
d) The complainant told
Chiliza that the appellant strangled him.
e) The complainant had
blood stains on his shirt.
f) The Doctor noticed
that there was swelling on the neck of the complainant and his voice
was hoarse. He said that the injuries
are consistent with
strangulation.
g) The appellant stated
on numerous occasions that he wanted to kill the complainant.
The incident took about 15 to 20 minutes.
It
is clear that the appellant formed the intention to murder the
complainant and attempted to do so. The finding of the learned
Magistrate to this effect cannot be faulted.
[6]
The appellant’s version that he did not attack the complainant
was correctly rejected by the learned Magistrate as false
beyond a
reasonable doubt. His appeal against the count of attempted
murder must fail.
Count
2
[7]
It is common cause that the appellant was in lawful detention.
After a struggle, the complainant dropped the keys and
he told the
appellant to take the keys and escape. The appellant took the
keys and took a few steps but Chiliza appeared.
Cell keys were
found next to the appellant when he was handcuffed. The
appellant in fact did not escape but attempted to
escape. It
was conceded by the State in argument that the conviction of escaping
from custody could not stand.
[8]
The prosecutor does not have to list the competent verdicts in the
charge sheet if the accused is unrepresented. The presiding
officer is obliged to warn the accused that there are competent
verdicts. In this matter, competent verdicts were not explained
to the accused. It is imperative that competent verdicts be
explained to the lay person who is conducting his/her own
defence
[1]
.
[9]
In
S v
Fielies & another
[2]
,
Griesel J confirmed that the constitutional right embodied in section
35 (3)(a) of the Constitution includes the right to be informed
of
the competent verdicts, but that failure to explain competent
verdicts is not always a fatal irregularity. “Where
the
absence of warnings concerning competent verdicts creates the
situation where an undefended accused is left to flounder the
trial
would be unfair”
[3]
.
In this instance, the State correctly conceded in argument that a
conviction of attempted escape was not appropriate.
Sentence
[10]
The main purposes of punishment are deterrence, reformation
retribution and rehabilitation. The Court must also consider
the triad consisting of the offence, the offender and the interest of
the society
[4]
.
[11]
The appeal court can only interfere with sentence imposed if there is
a striking disparity between the sentence imposed and
the sentencing
court and the sentence the appeal court would have imposed
[5]
.
The
appellant is not remorseful. He has a previous conviction for
murder. This is a very serious offence. The officer
was
executing his duties. Months later the complainant’s
voice was still hoarse. The doctor indicated that the
injuries
were serious and he could have died.
[12]
However, the sentence of fifteen (15) years imposed by Court is
disturbingly inappropriate. The State counsel agreed
that
fifteen (15) years is harsh.
In
S v
Makhakha
[6]
the Accused who strangled the complainant with intent to rape was
sentenced to ten (10) years’ imprisonment.
[14]
I therefore make the following order.
a) The appeal
against conviction on count 1 is dismissed.
b) The appeal
against conviction and sentence on count 2 is upheld and the order of
the Magistrate is altered to one of not
guilty on count 2.
c) The appeal
against sentence on count 1 is upheld and the sentence of the
Magistrate on this count is set aside and substituted
by a sentence
of ten (10) years’ imprisonment, such sentence being backdated
to 30 September 2012.
__________
MFAYELA
AJ
__________
GORVEN
J
Date
of hearing:
11 October 2016
Date
of Judgment:
20 October 2016
For
the Appellant:
P. Marimuthu, instructed by the
Durban Justice
Centre.
For
the Respondent: C.
Radyn, instructed by the Director of Public
Prosecutions,
Pietermaritzburg, KwaZulu-Natal.
[1]
See S v Mofokeng 2013 (1) SACR 143 (FB).
[2]
2006 (1) SACR 302
(C) at para 9.
[3]
S v Dayimani
2006 (2) SACR 594
(E) at para 19.
[4]
See
S v Zinn
1969 (2) SA 537
(A) at 540 G.
[5]
See
S v Kgosimore
1999 (2) SACR 238
(SCA) at 241 e-f.
[6]
2014 (2) SACR 457
WC.