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2015
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[2015] ZANCHC 51
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Mosata v S (CA&R02/15) [2015] ZANCHC 51 (27 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
YES
Case
No: CA&R 02/15
Heard:
23/03/2014
Delivered:
27/03/2015
In
the matter between:
TEBOGO
MOSATA
Applicant
v
THE
STATE
Respondent
Coram:
Kgomo JP et Phatshoane J
JUDGMENT
ON APPEAL
ORDER
A:
The appeal succeeds in part as follows: The conviction on
attempted murder and the sentence of
six (6) years imprisonment are
set aside.
B:
The following order is made in their place:
“
1.
The accused is found guilty of assault with the intent to do grievous
bodily harm.
2.
The accused is sentenced to 4
(four) years imprisonment.
3.
In terms of
s282
of the
Criminal
Procedure Act, 51 of 1977
, the sentence is antedated to 18 February
2014.”
KGOMO
JP
[1]
The appellant, Mr
Tebogo Mosata, appeared before the Regional Magistrate, Mr V Smith,
on one count of an attempt to steal the motor
vehicle of the
complainant, Mr Kabelo Lekgetho, and a second charge of attempting to
murder the same complainant. These incidents
are alleged to
have taken place on the night of 09 December 2012 in Galeshewe,
Kimberley. The Magistrate acquitted the appellant
on the
attempted theft charge but convicted him of the attempted murder and
sentenced him to six (6) years imprisonment.
The appellant
sought but was denied leave to appeal by the trial Court. Leave
was granted in respect of both the conviction
and sentence on
petition to this Court.
[2]
The appellant, duly
legally represented, pleaded not guilty. In mounting his
defence he placed himself on the scene of crime
but denied any
involvement in the attack on the complainant. On the contrary
he seems to implicate his friend, Mr Kgomotso
Cedras, whom he called
as his witness. He says he saw Cedras with an unfolded knife
when he (appellant) intervened by removing
his friend from the scene
of the fracas and later saw him still clutching the open knife when
they had left the scene.
[3]
The complainant and his
sister, Didimalang, visited a tavern/”
chesa
nyama”
entertainment
place looking for their friends, whom they found inside the
premises. The siblings then went to their locked
car, the
subject-matter of the attempted theft charge, to retrieve their
cooler-bag from. This is when they caught the appellant
attempting to break into the car. In fact it was later
discovered that one of the handles of the car-door was broken.
They accosted him. He retaliated by slapping and stabbing the
complainant, an off-duty police officer, with a sharp instrument.
Didimalang saw the stabbing but the complainant missed it.
According to the siblings it was only the three of them on that
spot
at that juncture. If, therefore, their evidence is accepted
only the appellant could have been the assailant.
[4]
Ms Mazubukwana, for the
appellant, instructed by Legal Aid South Africa (LASA), argued in her
written submissions that:
4.1
The visibility was poor and the identification of the appellant was
unreliable;
4.2
The siblings have recited their evidence in a conspiracy to implicate
the appellant falsely;
4.3
The siblings contradicted each other materially notwithstanding the
fact that they were throughout in each
other’s presence; and
4.4
If it is nevertheless found that the appellant inflicted the
stab-wound, which I will come to, then, at best
for the state the
appellant rendered himself guilty of assault with intent to do
grievous bodily harm, and that the attempted murder
verdict was a
material misdirection by the Magistrate.
THE
IDENTIFICATORY EVIDENCE
[5]
According to the
complainant there were street lights where their car was parked but
visibility was not very good (“
die
sigbaarheid was nie so baie duidelik nie”
).
However, he maintains that he managed to identify the appellant whom
he had known for the past three years.
[6]
Didimalang knew the
appellant even better than her brother. She knew him as
Rabbit. The illumination was good, she says,
because there are
streetlights and “
ook
flashlight was daar.”
By
“
flashlight”
she meant a high-mast light. She could even see the knife that
the appellant used and the blood oozing from the complainant’s
stab-wound.
[7]
The visibility could
not have been that bad because appellant also says he saw the blood
on the complainant. Someone must
have managed to recognise the
appellant because he says someone called out his name. The
siblings only saw the appellant
at the car where the confrontation
took place, and not inside the better lit house. More
importantly the appellant also says
he managed to identify Kabelo
(the complainant) who was involved in a scuffle.
[8]
The approach that our
Courts adopt where the identifying witness knew an accused before an
incident has been set out as follows
in
R
v Dladla and Others
1962(1) SA 307(A) at 310B - E:
“
One
of the factors which in our view is of the greatest importance in a
case of identification, is the witness’ previous knowledge
of
the person sought to be identified. If the witness knows the
person well or has seen him frequently before, the probability
that
his identification will be accurate is substantially increased.
Even in the case when a witness has some difficulty
in the
witness-box in giving an accurate description of a facial
characteristics and clothes of the person whom he has identified,
the
very fact that he knows him provides him with a picture of the person
in the round which is a summary of all his observations
of the
person’s physiognomy, physique and gait, and this fact will
greatly heighten the probability of an accurate
identification
… In a case where the witness has known the person previously,
questions of identification marks, facial
characteristics, and of
clothing are in our view of much less importance than in cases where
there was no previous acquaintance
with the person sought to be
identified. What is important is to test the degree of previous
knowledge and the opportunity
for a correct identification, having
regard to the circumstances in which it was made.”
See
also
S v Mthetwa
1972(3) SA 766 (A) at 768A-C.
[9]
From the aforegoing I
am satisfied that the appellant was properly identified as the
assailant of the complainant. When it
comes to the description
of the lighting there was in reality no contradiction between the
evidence of Didimalang and her brother.
It appears to me that
Didimalang’s powers of observation outstrips that of her
brother. This explains, in all probability,
why he did not even
notice when he was stabbed and also that there was a high-mast light
in addition to the street lights.
Significantly, neither the
appellant nor his witness claimed that the visibility was poor and
hampered identification. Ms
Mazibukwana, faced with this
mountain of evidence against the appellant was constrained to concede
during oral argument, correctly
in my view, that the evidence of
identification of the appellant as the culprit was reliable.
WAS THE APPELLANT
CORRECTLY CONVICTED OF ATTEMPTED MURDER?
[10]
The Magistrate said the
following in his judgment on concluding that attempted murder was
committed:
“
Whether
on the version of the State if the Accused is guilty of attempted
murder or a less serious offence of assault with the intent
to do
grievously bodily harm. I have to accept that in this case a
knife was used. I have to accept that the Accused
recklessly
stabbed the complainant in this case whilst his sister was in between
himself and the Accused. I have to accept
that an amount of
force was used, and I have to accept that the wound was inflicted on
the upper body part of the complainant
.
I have to accept that there was no intention that the Accused aimed
for the arm, and it was a rather reckless stab
towards the
complainant.
If I accept all this, those factors, I come to only one conclusion
that the Accused did foresee that he could kill somebody
if he
stabbed a person so recklessly and onto that direction of the body.
So I find that the Accused is guilty of attempted
murder as charged.”
[11]
The complainant was
medically examined by Dr Assegaai on 09 December 2012. The
doctor was not called as a witness.
However his
medico-legal examination certificate (J88) was handed in by consent.
The appellant admitted the correctness of
its contents as exhibiting
the findings of the doctor. The findings are:
11.1 “
Patient
allegedly stabbed with a knife. Presenting with a +/- 3cm deep
laceration to medial aspect of (R) upper arm with severed
(R)
brachial artery.”
11.2 The doctor
then comment under conclusions that:
“
Injuries
very serious and life-threatening. Patient could have died due
to exsanguination from the laceration to his brachial
artery.”
[12]
Didimalang who
witnessed the stabbing says that her brother shouted at the appellant
and enquired what he was doing to his car.
The appellant said:
“
Hey man, is
dit u kar, is dit u voertuig.”
A quarrel ensued. The appellant slapped her brother with an
open hand, but before he could retaliate “
toe
steek hy (the appellant) hom op die hand, op die arm, toe hardloop hy
(the appellant) weg.”
There
is no evidence that the appellant aimed at the complainant’s
chest. If I understand the Magistrate correct he
states that he
accepts that there is no gainsaying the inference that appellant in
fact meant to stab the complainant on the arm.
There is also no
evidence that the complainant tried to evade being stabbed or parried
the blow.
[13]
The Magistrate found
the siblings to have been impressive witnesses who gave reliable and
credible evidence. On the other
hand he found the appellant’s
version not to be reasonably possibly true and rejected it. I
can find no fault with
such rejection. See
S
v Chabalala
2003(1) SACR 134 (SCA) at 139i-140b (para 15) where the Court stated:
“
[15]
The trial court's approach to the case was, however, holistic and in
this it was undoubtedly right: S v Van Aswegen2001 (2)
SACR 97 (SCA).
The correct approach is to weigh up all the elements which
point towards the guilt of the accused against
all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and
improbabilities on both
sides and, having done so, to decide whether the balance weighs so
heavily in favour of the State
as to exclude any reasonable
doubt about the accused's guilt. The result may prove that one
scrap of evidence or one defect
in the case for either party (such as
the failure to call a material witness concerning an identity parade)
was decisive but that
can only be an ex post facto determination and
a trial court (and counsel) should avoid the temptation to latch on
to one (apparently)
obvious aspect without assessing it in the
context of the full picture presented in evidence. Once that
approach is applied
to the evidence in the present matter the
solution becomes clear.”
[14]
The Magistrate
correctly found that the appellant was a poor witness who falsely
implicated Cedras, his friend. The defence,
strange enough,
adduced Cedras’ evidence notwithstanding the impending, if not
looming, contradiction. Cedras
denied any participation
in the fight with the complainant and weakened the appellant’s
defence even further.
[15]
The crucial question is
whether the evidence adduced by the State establish an attempt to
murder or merely an assault with intent
to cause grievous bodily
harm. State counsel, Mr Barnard, sougt to persuade us that the
Magistrate committed no misdirection
in concluding that the appellant
attempted to murder the complainant. However, he had a
“
hard row to
hoe.”
[16]
See
S
v Sigwahla
1967(4) SA 566(a) at 569H-570E where Homes JA gave this salutary
exposition:
“
Stabbing
cases are usually a matter of degree, and intention must not be
inferred by hindsight from the fact of death. The part
of the body
injured is relevant, but in the present case the deceased was walking
and the appellant jumped forward as he struck.
Hence it cannot be
inferred beyond reasonable doubt that he actually aimed at the heart,
as distinct from the general area of the
upper body. Accordingly, the
fact that the thrust did land with fatal consequences above the heart
does not, in all the circumstances,
necessarily give rise to the
inevitable inference that the appellant intended to kill, in the
sense of directing his will toward
the bringing about of the death of
the deceased.
B
That, however, does not conclude the enquiry because the following
propositions are well settled in this
country:
1.
The expression 'intention to kill' does not, in law, necessarily
require that the accused should have applied his
will to compassing
the death of the deceased. It is sufficient if the accused
subjectively foresaw the possibility of his act causing
death and was
reckless of such result. This form of intention is known as dolus
eventualis, as distinct from dolus directus.
2. The
fact that objectively the accused ought reasonably have foreseen such
possibility is not sufficient. The distinction
must be observed
between what actually went on in the mind of the accused and what
would have gone on in the mind of a bonus paterfamilias
in the
position of the accused. In other words, the distinction between
subjective foresight and objective foreseeability must
not become
blurred. The factum probandum is dolus, not culpa. These two
different concepts never coincide.
3.
Subjective foresight, like any other factual issue, may be proved by
inference. To constitute proof beyond reasonable
doubt the inference
must be the only one which can reasonably be drawn. It cannot be so
drawn if there is a reasonable possibility
that subjectively the
accused did not foresee, even if he ought reasonably to have done so,
and even if he probably did do so.”
[17]
Not every stab-wound
inflicted with a sharp object on the upper body of a victim which is
not fatal, and where no self-defence is
involved, therefore amounts
to attempted murder. The highlighted portion of the quotation
in para 10 (above) shows that the
Magistrate throws concepts or
principles or the test to be applied around rather loosely. It
would be helpful if he referred
to Superior Court precedents in which
their formulation, if adhered to, would reduce the risk of
misdirections. See also
S
v Humpfreys
2013(2)
SACR 1 (SCA) at 7h-10h (paras 12-18).
[18]
I am satisfied that the
State had not proved beyond a reasonable doubt that the appellant
intended to murder the complainant.
The conviction on attempted
murder ought to be set aside and replaced with assault with intent to
do grievous bodily harm.
THE
SENTENCE
[19]
In light thereof that
the appellant is guilty of a lesser offence, which consequently
carries reduced moral turpitude we are at
large to impose sentence
afresh.
[20]
The appellant was 30
years old when he was sentenced on 18 February 2014. He is
unmarried and has a six-year-old son who is
staying with his mother.
He attained Grade 12 at school.
[21]
The appellant has the
following previous convictions:
21.1
He was convicted of theft on 24 April 2001 and was sentenced to eight
(8) months correctional supervision in terms of
s276(1)(h)
of the
Criminal Procedure Act, 51 of 1977
;
21.2
On 12 September 2002 he was convicted on two counts of robbery which
were taken together for purposes of sentence and
was sentenced to six
(6) years imprisonment. He was released on parole on 05 October
2005 which parole expired on 04 June
2008;
21.3
Before the parole expired he was found in possession of drugs on 29
February 2008 and sentenced on 15 July 2008 to pay
a fine of R1500-00
or in default of payment to serve four (4) months imprisonment.
The sentence was wholly suspended for
three years on certain
conditions.
21.4
On 10 December 2012 he was sentenced to three (3) years imprisonment
for theft which was committed on 22 September 2012.
The
appellant therefore committed the current offence less than three
months after he possessed the drugs illegally and a day before
he was
convicted for it. This explains why the investigating officer
only traced him to prison when he sought to arrest him
on the
attempted murder charge.
[22]
The appellant showed no
remorse and aggravated matters by falsely implicating Cedras for his
crime.
[23]
The assault was very
serious and nearly led to the complainant’s death, but for the
prompt medical intervention. The
appellant also has a
predisposition for violence.
[24]
Having regard to all
the factors, regard also being had to the fact that he attempted to
break into a locked car but was thwarted,
I am of the view that four
(4) years imprisonment would be an appropriate sentence.
ORDER
A:
The appeal succeeds in part as follows: The conviction on
attempted murder and the sentence of
six (6) years imprisonment are
set aside.
B:
The following order is made in their place:
“
1.
The accused is found guilty of assault with the intent to do grievous
bodily harm.
2.
The accused is sentenced to 4
(four) years imprisonment.
3.
In terms of
s282
of the
Criminal
Procedure Act, 51 of 1977
, the sentence is ante-dated to 18 February
2014.”
_____________________
F DIALE KGOMO
JUDGE PRESIDENT
High Court of South
Africa
Northern Cape Division
I concur.
_____________________
V M PHATSHOANE
JUDGE
High Court of South
Africa
Northern Cape Division
On
behalf of the Applicant
:
Adv
N. M MAZIBUKWANA
(LEGAL
AID BOARD, KIMBERLEY)
On
behalf of the Respondent:
Adv T. E
BARAND
(Director
Public Prosecutions)