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[2015] ZAECMHC 63
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Bam v S (CA15/2014) [2015] ZAECMHC 63 (20 August 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – MTHATHA
Case
no: CA15/2014
Date
Heard: 19/06/2015
Date Delivered:
20/08/2015
In
the matter between:
LULAMILE
BAM
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
SMITH
J:
[1]
The appellant and his two co-accused were charged in the Mthatha High
Court with murder and unlawful injury to property. They
initially
pleaded not guilty, but after the close of the state case they
tendered pleas of guilty on both counts. The appellant
was sentenced
to life imprisonment and his two co-accused to 15 years’
imprisonment each. He appeals against his sentence
with the leave of
the court a
quo
.
[2]
Mr
Halam
,
who represented the appellant at the appeal hearing, submitted that
the learned judge in the court
a
quo
(Pakade ADJP, as he then was) erred in not finding that there were
substantial and compelling circumstances present which justified
the
imposition of a lighter sentence than the statutory prescribed
minimum sentence in respect of the murder count. He relied for
his
submission in this regard in particular on the appellant’s
personal circumstances, the fact that he was a first offender,
that
he had submitted a letter of apology to the deceased’s mother,
had changed his plea to one of guilty, and had assisted
the family
financially with the deceased’s funeral arrangements. He
submitted that the cumulative effect of these factors
is sufficiently
weighty to establish substantial and compelling circumstances.
[3]
Significantly,
the state has, in comprehensive heads of argument, conceded that: the
evidence established
dolus
eventualis
as
opposed to the
dolus
directus
found
by the learned judge in the court a
quo
;
that the state had failed to prove common purpose; and that the court
a
quo
erred in finding that there were no substantial and compelling
circumstances present. The effect of the state’s concessions
in
respect of the issues of intention and common purpose is that it
accepted that the court a
quo
wrongly found that section 51(1) of Act 105 of 1997 (and thus life
imprisonment), instead of section 51(2) - and thus 15 years’
imprisonment - was applicable.
[4]
As
will appear from the discussion which follows below, these
concessions were correctly made.
[5]
The
state alleged that the appellant and his co-accused had wrongfully
and intentionally killed one Z. M. (“the deceased”),
at
his residence at Willow Locality on 15 February 2008, by pouring
petrol on him and setting him alight. In respect of the unlawful
injury to property count, it was alleged that at the same place and
time, they wrongfully, unlawfully and intentionally damaged
the
deceased’s property, namely a bed and a blanket.
[6]
The
evidence led by the state established that on the evening of the 15
th
of February 2008, the appellant and his co-accused went to the home
of the deceased with the view of questioning him about the
theft of
certain items from the appellant’s shop. They questioned the
deceased for some time, thereafter followed up information
that he
had provided; returned to his house, and poured petrol on him. The
appellant had apparently instructed one of his co-accused
to fetch
the petrol from his vehicle which was parked outside the deceased’s
residence at the time.
[7]
While
the appellant was busy pouring the petrol on the deceased, the latter
had lashed out with his arm, apparently an attempt to
deflect the
flow of the petrol. He, however, diverted the petrol in the direction
of a lit candle which caught fire, with dire
consequences for
everybody in the room.
[8]
The
flames rapidly engulfed the deceased. According to one of the eye
witnesses called by the state, Nolitha Makhwebile, the appellant
had
doused the flames with water and blankets. She also testified that
the appellant had driven the deceased, herself and others
injured in
the fire, to the hospital. The deceased sustained serious burn
wounds, from which he died nine days later. The appellant
and his
co-accused also suffered burn wounds about their bodies and faces. It
also emerged from the testimony of the deceased’s
mother that
the appellant had written a letter to her wherein he pleaded for her
forgiveness and stated that he did not intend
to kill the deceased.
She furthermore testified that the appellant had paid for the
deceased’s coffin and other funeral expenses.
[9]
The
relevant portions of the appellant’s section 112 statement read
as follows:
“
3.
I am aware of all charges against me, that of murder and that of
unlawful injury to property, in that on or about 15 February
2008 and
at or near Willow Locality in the district of Dutywa, I did
wrongfully and intentionally kill Z. M., an adult male by
pouring
petrol upon him which later caught fire, the fire caused by a candle
that was a source of light on the room also thereby
injuring property
which was in that room.
4. By pleading guilty
in these charges I am showing a sign of remorse for what I did.
5. I
know what I did was wrong in the circumstances.”
[10]
In
convicting the appellant after his change of plea, the learned judge
was constrained to have regards to both the evidence adduced
by the
state, as well as the contents of the appellant’s section 112
statement. (
S
v Olivier
2007
(2) SACR 596
(C)).
[11]
The
events which had caused the petrol poured on the deceased to ignite
were described as follows by Makhwebile:
Mr
van Drunick : He poured the petrol on him various
occasions. Then on the third time when he was busy pouring the
petrol
over him, he hit the petrol and it went to the candle.
Mr
van Drunick : Now who hit the petrol?
Witness
: it was the deceased, Zamile
Mr
van Drunick : Al right and then you say it went to
the candle, whilst in other words it then lit, is that right?
Witnes
: that it correct.”
[12]
Ms
Triesche,
who
appeared for the state, correctly conceded that the evidence
established intention in the form of
dolus
eventualis,
as
opposed to
dolus
directus
as
found by the court a
quo.
The ineluctable inference from the proved facts is that the appellant
had intended to threaten the deceased by pouring the petrol
on him,
and not to actually set him alight. There can nonetheless be no doubt
that he subjectively foresaw the possibility that
the petrol might
ignite, especially in view of the fact that the room had been lit by
an open flame candle, and that he had reconciled
himself to this
possibility.
[13]
The
state was also not assisted in this regard by the so-called letter of
apology which the appellant had written to the deceased’s
mother. It appears from his judgment that the learned judge in the
court
a
quo
had relied mainly on the contents of that letter for his conclusion
that the appellant had direct intention to kill the deceased.
The
state has correctly conceded that if anything, the contents of that
letter served to confirm that the appellant did not have
direct
intention to kill the deceased.
[14]
The
fact that the appellant had admitted in his plea that he had
“
intentionally”
killed
the deceased was, in the absence of further probing by the presiding
judge to determine the true meaning of the words, not
sufficient
proof of direct intention. While not impacting on the propriety of
the appellant’s conviction on the murder charge,
this finding
is exceedingly relevant insofar as sentencing is concerned.
[15]
The
state has also correctly conceded that the evidence did not establish
common purpose, or that the murder had been planned or
pre-meditated.
The evidence led by the state failed to establish that there had been
prior agreement or active association, which
are required to
establish the common purpose. The appellant also did not admit in his
plea that he had acted in common purpose
with his co-accused. The
state has thus correctly conceded that, the appellant having been a
first offender, section 51(2) of Act,
which prescribes a minimum
sentence of 15 years’ imprisonment, was of application.
[16]
We
are, in addition, of the view that the cumulative effect of the
mitigating circumstances mentioned above, indeed constitute
substantial and compelling circumstances which justify the imposition
of a lighter sentence.
[17]
The
appellant was [……] years old at the time of the
commission of the offences, was a first offender, a businessman
and
bread winner of his family. He is married with children. There can be
little doubt that the appellant’s remorse was immediate
and
genuine. It is common cause that he attempted to douse the flames
that had engulfed the deceased, had driven him and others
to the
hospital, had written a letter of apology to the deceased’s
mother, and contributed financially to the funeral. It
is significant
that the deceased’s mother also considered these acts of
contrition as genuine and heartfelt.
[18]
Under
these circumstances the imposition of the minimum prescribed sentence
would, in our view, amount to an injustice, and we are
consequently
constrained to impose a lighter sentence.
[19]
The
offences, however, remain serious, and Mr
Halam
has
conceded that they warrant a lengthy period of imprisonment. The
deceased suffered considerably before he died. He spent nine
days in
hospital, and must have endured unbearable pain as a consequence of
his serious burn wounds. An effective period of 10
years’
imprisonment, antedated to the date of sentencing by the court
a
quo
,
would, in our view, be fair and appropriate punishment in the
circumstances.
[20]
In
the result the appeal against sentence succeeds, and the following
order issues:
(a)
The
appellant’s sentence is set aside and there is substituted the
following sentence:
(i)
In
respect of count 1 the accused is sentenced to undergo 10 years’
imprisonment.
(ii)
In
respect of count 2 the accused is sentenced to 3 years’
imprisonment.
(iii)
The
sentences are antedated to the date of sentencing by the court
a
quo,
and
shall run concurrently.
_________________________
J.E
SMITH
JUDGE
OF THE HIGH COURT
I
AGREE:
________________________
F.
B. A. DAWOOD
JUDGE
OF THE HIGH COURT
I
AGREE:
________________________
NDZONDO
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel
for the Plaintiff
: Advocate Halam
Attorney
for the Plaintiff
: c/o MANTYI ATTORNEYS
1
ST
FLOOR, CLUBLINK BLD
28 MADEIRA STREET
MTHATHA
CELL NO: 082 558
2904
Counsel
for the Defendant : Ms
Triesch
Attorney
for the Defednant : The National
Director of Public
Prosecutions of South Africa
Broadcast house
94 Sissons Street
Fortgale
Mthatha
Date
Heard
: 19 JUNE 2015
Date
Delivered
: 20 AUGUST 2015