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[2015] ZAECMHC 78
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Mbekembe v S (CA&R38/2013) [2015] ZAECMHC 78 (19 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. : CA&R 38/2013
Heard
on :
23/10/2015
Date
delivered: 19/11/2015
In
the matter between:
MONWABISI
MBEKEMBE
Appellant
And
THE
STATE
Respondent
APPEAL
JUDGMENT
MAJIKI
J:
[1]
The appellant,
then
a
21 year old male member of the South African Police Service (SAPS),
set on a journey in a police van to collect the deceased,
according
to him, in a mission to deliver the deceased to an officer who was
investigating the appellant’s c
omplaint
about the
theft
of
his
netting
wire
s
.
Unfortunately, during the course of that fateful night, after
the appellant had dropped the deceased near his home,
the deceased
succumbed to his untimely death, from serious bodily injuries he
had
sustained
that night. The magistrate found that the appellant had
inflicted the injuries on the deceased and therefore caused
his
death. He sentenced the appellant to fifteen years imprisonment
in terms of section 51(2)(a) of Minimum Sentences Act
105 of 1997.
Five years of the said sentence w
as
suspended
for five years subject to specified conditions. The appellant
now appeals to this court against his conviction and
sentence
,
having been granted leave upon the petition to the Judge President.
[2]
The grounds of appeal against the convictions are:
2.1
The magistrate did not properly analyse and or evaluate evidence of
the state witnesses
which is
fraught
with material contradictions and inconsistencies.
2.2
The magistrate erred in admitting hearsay evidence as dying
declarations made by the deceased
and by not considering the
requirements of Section 3 of Law of Evidence Amendment Act 45/1988.
2.3
The magistrate failed to give regard to the fact that the deceased
was an interested party
in the case, when he made the oral statement,
admitted by the magistrate. He was a suspect in the case of
theft of the appellant’s
netting wires.
2.4
The magistrate erred by admitting evidence that the appellant’s
family members apologised
to the deceased’s family and that the
appellant paid for the deceased’s funeral expenses.
2.5
The magistrate erred in finding that the contradiction as to the
place of the deceased’s
assault was not a material.
2.6
The magistrate erred in not taking into account that there was a time
lapse between the
time the deceased was dropped by the appellant and
the time when he was found by the state witnesses in his injured
state.
2.7
The magistrate erred in finding that the appellant had the intention
to kill the deceased.
2.8
The magistrate erred in not accepting that the appellant’s
version could reasonable
be true.
2.9
The ground of appeal against sentence is that the magistrate erred in
not finding that substantial
and compelling circumstances exist which
justify departure from imposing the minimum sentence of fifteen
years. The
sentence is also shockingly inappropriate.
[3]
It is common cause that in the evening of 08 February 2010 after
19h00 the deceased was
fetched by the appellant who was driving a
police van in company of his colleagues Constable Melane and
Warrant Officer Ndamase.
The deceased left his house keys with
his neighbours when he was leaving with the police officers.
He
had no injuries at the time. Later on,
w
arrant
o
fficer
Ndamase was dropped
at
Bityi
Police Station. The two other police officers drove with the
deceased, the deceased loaded alone at the back of the
police van.
They were to attend a complaint at an area called Bukicini.
[4]
On their way back from Bukicini they passed the deceased homestead
,
they
also
did not go to the police station
instead
they
headed
for an area that did not have homesteads. During the course of
the journey the appellant alighted from the vehicle
a few times
together with the deceased for few minutes at a time. Finally,
they dropped the deceased.
[5]
The deceased was later found by his neighbours beaten up and severely
injured. They
took him to his house and laid him
i
n
his bed where he was discovered around 06h00, the next morning
,
having
died due to
injuries he had sustained. The findings of the post mortem
examination recorded his death to have resulted from
multiple
fractured ribs, raptured liver and severe blood loss consistent with
blunt trauma. He also had multiple bruises
on his body and was
swollen.
[6]
The state had called 5 witnesses
,
I
will
focus on their evidence in as far as it relates to facts that are not
common cause. Ms Nobulelo Balasane was deceased’s
neighbour. At about 22h00 she saw a police van and a person
getting into the police van. At about 24 hours they heard
the
deceased shouting calling h
er
son
's
name
Bulelani.
They found him lying on the ground in pains. He was moving
sideways on the ground and uneasy. Upon enquiring
as to what
had happened to him, he told them that he was beaten by the
appellant, asking him to tell the truth about the
whereabouts of his
missing netting wires. He was beaten with bare hands and the
appellant was also wearing shoes. The appellant
was with two police
officers in the police van.
The
deceased had earlier
dropped
him
next to
Lukwetu bridge and later dropped next to his homestead.
He then rolled down towards his homestead and started
calling for
Bulelani.
[7]
Mr Ncedo Mfenguza a relative of the deceased, testified about a
delegation that visited
them saying they were sent to come and
apologise on behalf of the appellant because the appellant had killed
the deceased.
They offered and paid the costs of the
funeral
undertakers
and contributed 5 sheep towards the expenses of the funeral.
[8]
Warrant Officer Ndamase testified that on the day of the incident he
reported on duty at
18h45 for 19h00. He went to fetch the
appellant together with constable Melane. He allowed the
appellant to pass by
the deceased
's
home
after 19h00
,
the appellant
had told him that he wanted to find out something from the deceased
about his lost netting wires, the deceased was
also engaged in
fencing. They left with the deceased. He remained at the
police station. The appellant left with
the deceased, on their
way to attend to a complaint at Bukicini. The police officers
came back between 24h00 and 01h00 and
the deceased was not in their
company.
[9]
Constable Melane corroborated the e
vidence
of Warrant
Officer Ndamase. On their way back from Bukicini the appellant
did not go back to the police station. At
a place where there
were no homestead
s,
the appellant
had alighted
a
few
times
from the van. Each time he would open for the deceased to also
alight from the back of the vehicle. They never
reached Lukwetu
Bridge, they stopped about 350 to 500 metres away from the bridge.
She never saw what
had
happen
ed
on
each occasion. Those moments would not take a very long time
but just about two to three minutes. The appellant at
some
stage drove leaving the deceased
.
After some distance he
loaded
the
deceased
again.
They eventually dropped the deceased
adjacent
to his home,
the
appellant told the deceased to go fast
to
his homestead.
They
probably dropped the appellant around 21h30. Her evidence
differed from that of Warrant Officer Ndamase in relation
to the time
they were back at the police station.
She
said they arrived there around 22h00 as opposed to 23h00 to 01h00
testified to by Warrant Officer Ndamase.
[10]
The last state witness was Inga Macala (Macala). He testified
that two days before the incident
of the deceased being taken away by
the police van
and
injured
,
the deceased arrived at his homestead with the appellant and another
police officer. The appellant enquired about
his
netting
wire
s
.
When he was not able to give information about it, the appellant
assaulted
him
and
the
deceased with a stick. They were not severely injured.
He then heard 3 days later that the deceased had died.
[11]
The appellant had testified that Macala and the deceased had
approached him borrowing a bricklaying
machine. After their
visit he discovered that his netting wires were missing. He and
late Warrant Officer Zote proceeded
to enquire from the
deceased about the netting wires. The deceased told them he had
no knowledge of the whereabouts of the
same. The deceased
suggested that they enquire from Macala who also said he had no
knowledge of the same.
[12]
He denied that
on
the day
he
had
sent his
colleague,
moreover that officer was
senior
to
him,
to
fetch a stick from the car
.
He
denied
assaultin
g
Macala
and the deceased that day. Two days later wh
en
he was
preparing to go to work, Warrant Officer Zote informed him that he
should bring the deceased for interrogation for his case
of theft of
netting wires. Warrant Officer Ndamase and constable Melane
indeed fetched the deceased around 19h20 and loaded
him at the back
of the police van. They could not find Warrant Officer Zote at
the station
.
He and constable Melane
drove
with the deceased to attend to a complaint
,
with
with a view to ret
urn
the deceased.
[13]
On the way he stopped to urinate and also went to check the deceased
at the back. The deceased
asked him to check an unoccupied
house, next to Jabul
a
junction, if
the netting wires had not been dumped there. The deceased went
there alone, he went to the deceased at the back
of the motor vehicle
to get a report
about
his search
.
They could not find the wires. They dropped the deceased at his
home around about 21h00 and
they
reached the
police station around 22h00. He denied that he was ever near
Lukwetu bridge. He denied assaulting the deceased.
He
denied that he sent a delegation to go and apologise to the deceased
family on his behalf, and pay any contribution towards
the deceased’s
burial costs.
[14]
Mr Zwelitsha Nganyase testified that he was part of the delegation
that went to the deceased’s
home. They were sent by the
appellant’s uncle and not by the deceased. He did not
know who paid for the funeral
expenses and from whose kraal the
five
sheep
came from.
[15]
Firstly
,
the appellant
attacks the magistrate’s admission of the hearsay evidence,
with reference to what Mrs Balasane stated
to have heard from
the deceased. In my view
,
it is not
necessary to decide this aspect. My proposition is to deal with
this appeal on the basis of the
other
evidence that
was before court.
[16]
According to the appellant, he dropped the deceased around 21h00.
They were back at the police
station around 22h00. He only
stopped the vehicle to ask the deceased if he was fine and at the
time the deceased had gone
to look for the netting wire from an
unoccupied house. He never asked his relatives to go and
apologise for him and never
assaulted the deceased.
[17]
There is no direct evidence with regard to who assaulted the deceased
and inflicted injuries that led
to his death.
[18]
Proven or common cause facts so far are that the deceased was a
suspect in the case of theft of the
appellant’s netting wires.
The deceased was collected by the appellant around 19h15, he drove
with him, stopped to
go to him at the back more than once and
eventually dropped him
at
or near
his
home. The deceased was heard around 24h00 shouting and was
found to have been injured and in severe pains. The post
mortem
report confirmed that he had broken ribs, was swollen
and his liver
had
raptured. He died as a result of such
,
including
severe blood. His injuries were consisted with blunt trauma.
[19]
From the above, I am able to conclude that the deceased was assaulted
severely over a protracted period
of time that night. The issue
is whether it is the appellant who assaulted him.
[20]
There seems to be a contradiction on the evidence of the state
witnesses with regard to the time the
deceased was dropped by the
appellant. Constable Melane stated that they dropped him around
21h30 and were back at the station
around 22h00, which is consistent
with the appellant’s testimony. Warrant Officer
Ndamase stated that the police
officers arrived at the station around
24h00 to 01h00. Mrs Balasane seems to have miscalculated even
the pick up time as
she said it was around 22h00. I will accept
in
the
appellant’s favour that the deceased was dropped around 21h30.
According to Constable Melane he was not dropped
at his home, but
adjacent to it and he heard the appellant saying he must hurry up to
go home. In the state he was
in, according to Mrs Balasane
he
was
moving
side ways whilst on the ground, uneasy and in pain, it is clear that
he could not move fast. In fact he had to be carried
to his
homestead. I will also accept that if indeed
he
was
heard
around 24h00, the delay could well have been caused by his struggle
to try move closer to the homestead. He could not
walk.
[21]
There is no evidence about the deceased having gone anywhere else
after he was dropped by the appellant.
The last known person to
be with him at night was the appellant. When he picked the
deceased up, the deceased handed his
house keys to Mrs Balasane’s
children, he was not in pains. When he was found later that
night he was in that injured
state.
On
the way the appellant had alighted at an isolated place, also
deceased alighted, dr
o
ve
for a short distance, stop
ped
the vehicle,
they
both
alighted
again.
The appellant
had an axe to grind with the deceased. Even though he denied
having assaulted him and
Macala
two
days before,
interrogati
ng
them
about
the
same
wires.
That evidence is consistent with the pick up of the deceased
the
travel
and
stopping
a number of times with him at night.
There
would have been no reason for the magistrate not to accept
Warrant
Officer Ndamase
's
testimony
that the
appellant had told him he wanted to find out something from the
deceased about his lost netting wires.
This
is also consistent with all other proven facts.
[22]
The magistrate found that the appellant assaulted and killed the
deceased. From the proved facts,
I am also persuaded that the
only inference to be drawn from the conduct of the appellant,
is that
he was
assaulting the deceased at the time he stopped the motor vehicle
when
Constable
Melane was left alone in the police van. In
R
v Blom 1939 AD 188 at 202 – 203
Watermeyer JA held that there are two cardinal rules of logic that
cannot be ignored when it comes to reasoning by inference:
“
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, then
the inference cannot be drawn.
(2)
The proven facts should be such that they exclude every reasonable
inference
from
them save the one sought to be drawn. If they do not exclude
other reasonable inferences, then there must be a doubt
whether the
inference sought to be drawn is correct.”
[23]
It
is trite that there is no onus resting on the accused to prove his
innocence, his version need only be reasonably possibly true.
The
state must prove its case beyond reasonable doubt. The magistrate
found,
correctly in
my view
,
that
the evidence
proving the appellant’s guilt was overwhelming.
I
am not able to fault the magistrate in his acceptance of the state
case. The inferential reasoning on circumstantial evidence
is
satisfactory that the state proved the guilt of the accused beyond
reasonable doubt. The magistrate correctly rejected the version
of
the appellant, it cannot be reasonably possibly true in the
circumstances of this case. He also correctly found that the defence
witness Nganyase, lied. Indeed his evidence was unreliable, he did
not assist the court at all, he denied knowledge of even simple
facts, for example, the knowledge of whose sheep they themselves
contributed towards the deceased's funeral.
[24]
The magistrate found that the appellant had direct intention to kill
the deceased. Mr Halam submitted
that
,
if it was
found that the appellant caused the death of the deceased, he caused
it negligently. I do not agree with
this.
The appellant
assaulted the deceased severely over a protracted period of time.
The evidence does not prove that he intended
to kill the deceased,
but by assaulting him as he did and leave him in the street, without
giving consideration to the fact that
the deceased needed medical
attention, he ought to have foreseen that the deceased’s death
could result
,
therefore he killed the deceased with dolus eventualis.
C
R Snyman
's
Criminal
Law
,
Fifth
Edition page 185
the
said authour
defines
dolus
eventualis
as follows:
“
A
person acts with intention in the form of dolus eventuslis if the
commission of the unlawful act or the causing of the unlawful
result
is not his main aim but:
(a)
He
subjectively
foresees
the
possibility that, in striving towards his main aim the unlawful act
may be committed or the unlawful result may be caused, and
(b)
He
reconciles himself to this possibility.
…
..
h
owever,
it does not matter whether component (b) is described in terms of
reconciliation with the possibility or in terms of recklessness;”
i.e.
persisting with the conduct reckless whether unlawful act could
result.
[25]
With regard to sentence both M
essrs
Halam
and
Joubert
who appeared for
the
state
,
submitted
that it ought to be interfered with. The magistrate sentenced
the appellant in terms of section 51(2) of the Minimum
Sentences Act
105 of 1997 (the Act)
,
to
15 years. He however ordered that five years of the sentence to
be suspended for five years. This constituted a misdirection
on
the part of the magistrate
,
which
warrants that this court considers the issue of sentence afresh.
[26]
In terms of section 51(2) of the Act when a person is convicted of
murder, the sentence imposed is
fifteen years imprisonment, unless
substantial and compelling circumstances exist which justify
imposition of a lesser sentence.
[27]
The personal circumstances placed before the court a quo were that
the appellant was a 31 year old
first offender, he is married and his
wife is not employed. He was a breadwinner, gainfully employed
with the SAPS from 2008.
It was submitted that the sentence to
be imposed had to be blended with mercy.
[28]
In aggravation of sentence, the state argued that the offence was a
serious one, the injuries on the
deceased were serious. It is
prevalent. The appellant was a peace officer, a law enforcement
agent, but he took the
law into his own hands and did the opposite
of what was
expected of him.
[29]
Mr Halam submitted that there were substantial and compelling
circumstances justifying the imposition
of a lesser sentence.
He submitted further that an effective sentence of 10 years
imprisonment was not harsh. Mr Joubert
agreed that the court
may after finding substantial and compelling circumstances impose a
sentence of imprisonment part of which
can be suspended.
[30]
In
S
v Malgas
2001 (1) SACR 469
at 481 paragraph 25
Marais JA held that, it is the courts who are to judge whether or not
circumstances of any particular case are such
as to
justify a departure
from
imposing the minimum sentences
.
However, in doing so, they are to respect, and not merely pay lip
service to, the Legislature’s view that the prescribed
periods
of imprisonment are to be taken to be ordinarily appropriate when
specified crimes are committed. The specified sentences
are not
to be departed from lightly and for flimsy reasons. Speculative
hypotheses favourable to the offender, undue sympathy,
aversion to
imposing first offenders
,
for
example, are to be excluded. The ultimate impact of all
circumstances relevant to sentencing must be measured against
the
composite yardstick (substantial and compelling) and must be such as
cumulatively justify a departure from the standardised
response that
the Legislature has ordained.
[31]
The offence committed was serious. Even though there is no
evidence of
the
use of
a
weapon
on
the deceased
,
the assault was clearly severe and repeated,
so
as
to
fracture multiple ribs and rapture
the
liver.
It is surely not in the interests of the soci
e
t
y
,
for anyone,
in
particular, police officers to assault citizens and not bring
them to
the
j
ustice
s
ystem
in
order for them
to
answer for any offence they may be suspected of having committed.
However, when I balance all the factors relevant in this
matter I
find the fact that the appellant is a first offender, his age,
that
he
was gainfully employe
d,
married with children
and
had
harboured
strong suspicion that the deceased had stolen from him and
had
sought
the
truth
,
albeit
wrongly, taken cumulatively
,
do constitute
substantial and compelling circumstances that justify a departure
from the imposition of a lesser sentence.
Furthermore,
there is nothing which is indicative of a person with an offending
character in his previous conduct.
[32]
In the result the appeal against conviction succeeds to the extent
that the appellant is found guilty
of murder
,
without
direct intention but
with
dolus
eventualis.
The
appeal against sentence also succeeds
to
the extent of the period of imprisonment.
In
the result
,
the order of
the magistrate is hereby set aside and substituted as follows:
1.
The
appellant is found guilty of murder with
dolus
eventualis.
2.
The
appellant is sentenced to undergo 10 years imprisonment antedated to
12 December 2012.
3.
The
appellant is hereby ordered to be unfit to possess a firearm in terms
of
section 103
of the
Firearms Control Act, 60 of 2000
.
_________________________
B
Majiki
Judge
of the High Court
I
agree, it is so ordered.
______________________________
RWN
Brooks
Acting
Judge of the High Court
Counsel
for the appellant :
Mr Halam
Instructed
by
: Messrs Xolani Pangwa Attorneys
c/o
Mantyi Attorneys
Suite 203 -
206, 2
nd
Floor
Absa
Bank Building
MTHATHA
Counsel
for the respondent :
Mr Joubert
Instructed
by
: Director of Public
Prosecutions
Broadcast
House
Sissons
Street
Fortgale
MTHATHA