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2014
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[2014] ZAFSHC 12
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Donda v S (A165/2013) [2014] ZAFSHC 12 (17 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A165/2013
In
the matter between:
THEMBINKOSI
RICHARD DONDA
........................................
Appellant
and
THE
STATE
.......................................................................
Respondent
CORAM:
VAN
ZYL, J
et
LEKALE,
J
HEARD
ON:
17
FEBRUARY 2014
JUDGMENT
BY:
LEKALE,
J
DELIVERED
ON:
20
FEBRUARY 2014
[1]
The appellant, who was legally represented, appeared before the
regional court at Zastron on the 25
th
October 2011 on the
charge of murder and was convicted, on his plea, of culpable homicide
and, thereupon, sentenced to eight years
imprisonment. He feels
aggrieved by the sentence and now approaches us on appeal against the
same with leave granted by the trial
court.
[2]
The assertions against him were that on or about the 6
th
September 2010 and at or near Zastron he unlawfully and intentionally
killed one Francinah Lisebo Manele, who happened to be his
common law
wife. He tendered a plea of guilty to culpable homicide, which
was duly accepted by the State. In a statement
signed by the
appellant and submitted for and on his behalf to the trial court in
terms of
section 112(2)
of the
Criminal Procedure Act No 51 of 1977
,
as amended(the CPA) he admitted that he caused the death of the
deceased unlawfully by punching her several times in the face
with
fists and, further, declared
inter alia
that
“
I
admit that a reasonable person in the circumstances would not have
acted the way I did.
”
[3]
On perusing the record we were left in doubt as to whether or not the
appellant, in fact, admitted the element of culpability
to render
himself guilty of the crime of culpable homicide insofar as it is not
apparent
ex facie
the
section 112(2)
statement that he could
and should have foreseen the possibility of death resulting from his
actions and taken steps to guard against
such a possibility, but
failed to do so.
(See
Minister of Safety and Security v Mohofe
2007 (2) SACR
92
(SCA) at par [5].)
[4]
We, thereupon, invoked our inherent powers so as to ensure that
justice prevailed and directed counsel on both sides to address
the
issue notwithstanding the limited nature of the appeal before us.
The parties are correctly
ad idem
that the
section 112(2)
statement does not disclose an admission of any negligence on the
part of the appellant and that the court
a quo
would, as such,
not have been satisfied that the appellant was guilty of culpable
homicide. The court below should, therefore,
have drawn the attention
of the appellant and his legal representative to that deficiency and
directed questions to the appellant
to obtain elucidation on the
relevant aspect.
(See
Stefaans
Toso v S
- Case No A136/2013 – an unreported decision of the Free State
Division delivered on 24 December 2013,
section 112(2)
of
Criminal
Procedure Act and
S
v B
1991 (1) SACR 405
(N).)
[5]
The conviction and sentence are, thus, not in compliance with the
provisions of
section 112(2)
of the CPA and fall to be set aside on
that ground. In order to afford the court below an opportunity
to comply with the
provisions of
section 112(2)
of CPA by asking
elucidating questions with regard to negligence, the case falls to be
remitted to the trial court in terms of
section 312(1)
of CPA.
In the event of the court
a quo
not being satisfied as to the
guilt of the appellant after directing clarifying questions to him
with regard to negligence, the
trial court would have to invoke the
provisions of
section 113
of the CPA and proceed with the matter as a
defended trial.
[6]
We are, further, mindful of the fact that the appellant has been in
prison since the 25
th
October 2011 and that it is in the interests of justice that the
matter be finalised expeditiously. I am, further, alive
to the
appellant’s contentions against the sentence imposed in the
instant matter. It is possible from his tilt against
the
sentence that, in the event of a conviction and a similar sentence
being imposed, he would feel aggrieved and be inclined to
take the
same on appeal with attendant costs and time consuming efforts.
In an attempt to obviate possible delay, inconvenience
and costs on
his part in that eventuality, I can only urge the trial court to
consider an appropriate sentence in the light of,
inter
alia
,
the circumstances under which the crime was committed such as the
fact that it is not in dispute that both the appellant and the
deceased were under the influence of alcohol at the relevant time and
that the deceased was also belligerent, probably because
of her state
of inebriation, insofar as it was not disputed that she wanted to
fight with the appellant.
ORDER
[7]
In the result the conviction and sentence are set aside.
[8]
The matter is remitted to the trial court which is directed to
proceed to enquire, by way of verbal questions addressed to the
appellant, into whether or not he admits that a reasonable man in his
position would have foreseen the possibility of death resulting
from
his actions
vis-a-vis
the deceased and would have taken steps,
which the appellant failed to take, to guard against such an
eventuality.
[9]
In the event of the appellant not satisfying the trial court as to
negligence, the court
a quo
is directed to enter a plea of not
guilty in terms of
section 113
of Act 51 of 1977 and to proceed to
hear the matter on a defended basis.
[10]
In the event of the court below returning a verdict of guilty against
the appellant, it is directed to deduct the period which
the
appellant shall have already spent in jail since the 25
th
October 2011 until the date of his release therefrom from any
sentence which the court
a quo
may consider appropriate in the
circumstances of the matter.
[11]
The appellant shall immediately be taken to the court below where the
said court shall determine whether he shall remain in
custody as
awaiting trial inmate, or whether he shall be released on bail or
warning pending finalisation of the matter by the
trial court.
L.
J. LEKALE, J
I concur.
____________
C. VAN ZYL, J
On behalf of appellant:
Mr P Nel
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv R. Hoffman
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/spieterse