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[2016] ZAGPPHC 729
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Toe and Others v S (A164/2015) [2016] ZAGPPHC 729 (19 August 2016)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
CASE
NO A164/15
DATE:
19/8/2016
In
the matter between
KESELEPHILE
REGINAH TOE
FIRST
APPELLANT
THATO
DEPHNEY
TOE SECOND
APPELLANT
KEBODIHILE
DOREEN
KGAMELO THIRD
APPELLANT
and
THE
STATE
FIRST RESPONDENT
J
U D G M E N T
CORAM:
MAKUME
J
AND MOOSA AJ MOOSA:
AJ
(MAKUME,
J
CONCURRI
NG):
[1]The
Appellants were tried in the Regional Court Benoni before the learned
Magistrate S Makamu in respect of the following charges:
[1.1]First
Appellant - Murder.
[1.2]
Second Appellant - Murder and two counts of assault with intent to
cause grievous bodily harm.
[1.3]
Third Appellant - Murder.
[2]
All three Appellants pleaded not guilty on all charges and were
sentenced as follows:
[2.1]
First Appellant - 10 years imprisonment
[2.2]
Second Appellant - 10 years imprisonment. (The counts of assault were
taken together with the murder charge for sentencing
purposes.
[2.3]
Third Appellant - 10 years imprisonment.
[3]
The Appellants were granted leave to appeal against conviction and
sentence
[4]
The common cause issues are:
[4.1]
That the Second Appellant armed herself with a knife. and stabbed the
deceased with it,
as a
result
the deceased died.
[4.2]
That all three Appellants and the two sate witnesses, Dumisa Bentele
and Noxolo Bentele were on their way to the police station
when the
deceased was stabbed.
[5]
The facts which are in dispute are whether:
[5.1]
The First and Third Appellant held the deceased in order for the
Second Appellant to stab her thus acting in common purpose
with the
Second Appellant.
[5.2]
The deceased attacked the Second Appellanfrequiri ng the Second
Appellant to defend herself.
[5.3]
The Second Appellant stabbed the deceased in self-defence, and if so,
did she exceed the boundaries of self-defence or not.
[6]The
State's first witness Dumisa Bentele "Dumisa in examination in
chief testified that the deceased ''was held on both
sides by, on the
one
side
by accused number 1
and on the
other side by accused number 3 and accused number 2
was
standing in
front of
the deceased.
[1]
[7]Under
cross examination she changed her evidence and testified that the
Second Appellant was on her knees and the deceased bending
over the
Second Appellant at the time of the stabbing. This is also the
version of the Appellants.
[8]
This version was also corroborated by
the State's
second witness Noxolo
Bentele
"Noxolo".
[2]
[9]
"Dumisa" further testified that she did not see any blood
on the First Appellant's face even though she was the one
who stabbed
the First Appellant.
[1O]
Both the state's witnesses did not see the stabbing as they testified
that they were walking single file to the police station
and were
concentrating on the traffic around them, they only realised that
something had happened when the deceased screamed that
she had been
stabbed.
[11]
Noxolo contradicted the evidence of Dumisa and when confronted with
the contradictions in her evidence she stated that she
could not
remember.
[12]
Noxolo then testified that she could not give any reason as to why
they had followed the Appellants into their home and why
the Second
Appellant would have stabbed the deceased out of the blue and without
any reason.
[13]
Under further cross examination, Noxolo further conceded that it was
probable that the First and Third Appellants were holding
the
deceased in order to possibly keep her up or stop the fight and not
to aid the Second Appellant to stab the deceased.
[14]
The Appellant's versions are summarised as follows:
[14.1]
The deceased and the eye witnesses were the aggressors that evening.
[14.2]
The deceased was drunk
[14.3]
The police officers and/or paramedics who attended the scene did not
find any weapons.
[14.4]
According to the police officers who attended the scene neither of
the two eye witnesses was present at the scene.
[14.5]
The First Appellant was indeed injured and Constable Tshabalala
confirmed that he saw a lot of blood on the face of the First
Appellant.
[14.6]
During the stabbing of the deceased, there was a commotion, that it
is not quite clear as to what transpired however it is
clear that the
deceased and the Second Appellant were engaged in a fight.
[14.7]
The visibility at the scene where the deceased was stabbed was not
every good.
[14.8]
The Appellants went directly to the Police station in order to lay a
complaint immediately after the deceased was stabbed.
[14.9]
The Second Appellant testified that she fetched a knife from her home
to use as protection as the area heading to the police
station was
very dangerous, especially at night.
[14.10]
The Second Appellant's version was that in stabbing the deceased she
was acting in self-defence.
[15]
The learned Magistrate in convicting the Appellants said the
following:
"I
am not persuaded to believe that the evidence of the three accused
pertaining
to the manner in which the
deceased
was
stabbed
is true and as such
I
reject
their
version."
[3]
[16]
In so doing the learned Magistrate placed the onus on the Appellants,
the learned Magistrate did not give reasons for not accepting
their
versions as being reasonably possibly true and merely subjectively
took the versions of the State's witnesses to be true.
[17]
The learned Magistrate did not even deal with the testimony regarding
the two counts of assault against the Second Appellant.
If he had
done so then it would have. confirmed that there was acrimony between
the deceased, the witness and the Appellants prior
to the stabbing
and the deceased's part as an aggressor would be considered in
confirming that there was a reasonable probability
of self-defence.
[18]
In view of the aforegoing, Iam of the view that the learned
Magistrate
erred
in finding that the State had proved its case beyond a reasonable
doubt. See
SV Kubeka
1982 1 SA 534
(W)S37
where Solomon AJ
I
said the following:
"
Whether I subjectively
believe
him
is;
however,
not the test,
I
need not even
reject
the State's in order
to acquit him.
It is not
enough
that he contradicts other acceptable evidence. I am
bound to acquit him if
the
'
re exists
a
reasonable
possibility
that his evidence
may
be
true.
Such is the nature
of the
onus of the
State."
[19]
I accordingly find that there is insufficient evidence to prove that
the First and Third Appellants acted in common purpose
with the
Second Appellant at the time when the Second Appellant stabbed the
deceased.
[20]The
Second Appellant acted in self-defence, when she stabbed the
deceased. The question is whether in doing so she exceeded
the
boundaries of self-defence.
[21]The
Second Appellant was clearly aware that the deceased was drunk and
had been the aggressor all along. When she joined the
group on the
way to the Police Station it is the deceased who rushed to her and
they started pushing each other.
[22]
The fact that the Second Appellant was seen on her knees must
indicate that the deceased must have caused that and at that
time the
only thing that must have come to her mind was that the deceased was
about to hurt her that is when she decided to use
the knife to stab
the deceased. The deceased was not armed it was not necessary for the
Second Appellant tot have used a knife
to ward off further attack
from the deceased. She could have still used her hands!' I
accordingly find that in so doing she exceeded
the limits of self
defense.
[23]
In my view the State failed to prove that the Second Appellant had
the necessary intention to kill the deceased. The Second
Appellant by
her actions made herself guilty of culpable homicide.
[24]What
now remains is what an appropriate sentence should be now that the
count of murder is to be side aside. The Second Appellant
was a young
18 year old and is a first time offender, there is sufficient
evidence that the deceased and her family were the aggressors
from
the beginning of the whole episode. I do not think that the Second
Appellant need spend further time in prison.
[25]
In the result, I propose the following order be made:
[i]
The Appeal against conviction in respect of .First and Third
Appellants is upheld.
[ii]
The conviction on the count of murder is respect of the Second
Appellant is set aside and substituted by a conviction of culpable
homicide.
[iii]
The Second Appellant is sentenced to imprisonment for a period of 6
years which is wholly suspended, for a period of 5 years
on condition
that the Second Appellant is not found guilty of an offence of which
violence is an element
______________________________
T
MOOSA
ACTING
JUDGE OF THE HIGH COURT
I
agree
__________________________
MAKUME
J
JUDGE
OF THE HIGH COURT
COUNSEL/LEGAL
REPRESENTATIVE FOR THE
APPELLANTS:
ADV
M VAN WYNGAARD
COUNSEL/LEGAL
REPRESENTATIVE FOR THE
RESPONDENTS:
ADV.
M MOLATUDI
DATE/S
OF
HEARING:
15
August 2016
DATE
OF
JUDGMENT: 19 August 2016
[1]
Page
12
-
lines
5-10
-
typed
record.
[2]
Page 100
-
lines 6-17
typed record
[3]
Page 387 -
lines 9
-12 typed record