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[2013] ZAGPPHC 203
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Mapulane v S (A 856/2012) [2013] ZAGPPHC 203 (4 April 2013)
REPORTABLE
IN THE HIGH COURT (NORTH GAUTENG,
PRETORIA)
CASE
NR: A 856/2012
DATE:11/04/2013
In
the matter between;
MPHELA
BILLY
MAPULANE
..........................................................................
APPELLANT
AND
THE
STATE
.......................................................................................................
RESPONDENT
JUDGEMENT
JANSE
VAN NIEUWENHUIZEN. AJ
[1]
The appellant was found guilty of two counts of attempted murder on 2
February 2011 in the Regional Court for the Regional Division
of
Mpumalanga, held at Standerton. The court a quo imposed a sentence of
10 years imprisonment.
[2]
The first count relates to the first complainant and the second count
to the second complainant.
[3]
The appellant launched an application for leave to appeal against the
conviction and sentence in the court a quo. The application
was
dismissed on 10 June 2011,
[4]
The appeal is presently before Court by leave of the Court.
Point
in limine
[5]
At the inception of the hearing of the appeal, the State requested
that the appeal be struck from the roll due to non-compliance
with
the provisions of
section 309B(3)(a)
of the
Criminal Procedure Act,
No 51 of 1977
.
[6]
The relevant section reads as follows:
"
Every application for leave to appeal must set forth dearly and
specifically the grounds upon which the accused desires to
appeal."
[7]
The underlying rational for the requirements contained in
section
309B(3)(a)
is well established and with reference to rule 67 of the
Magistrates' Court Rules, was explained by Mahomed J (as he then was)
in S v Maritz
1994 (1) SACR 456
T at 458 e, as follows:
"Rule
67 of the Magistrates' Court Rules undoubtedly provides that the
notice of appeal shall set out clearly and specifically
the grounds,
whether of fact or law or both fact and law, on which the appeal Is
based. What is the object of this provision? it
seems to me that the
ultimate object must be to ensure that the real issues arising on any
appeal are properly ventilated, with
full opportunity of all
Interested parties to properly apply their minds to these issues and
to make an informed contribution to
the resolution thereof The notice
of appeal must therefore be such as to-
(1)
enable the Court to ascertain the grounds of fact and law on which
the appeal is based;
(2)
to give the representative for the State a fair opportunity to
prepare for and to anticipate the grounds on which the appellant
seeks to attack the judgment of the court a quo; and
(3)
to enable the magistrate to properly react to such grounds and to
furnish to the Court the benefit of such reaction."
[8]
Mr Maritz, appearing on behalf of the appellant, submitted that the
appeal is before this court in terms of the provisions of
section
309C and consequently, once leave to appeal has been granted by this
court, it is not necessary to file a further notice
of appeal. Mr
Maritz contended that the grounds for the appeal are succinctly set
out in the petition.
[9]
Section 309C deals with the procedure to be followed in a petition to
this court and sub-section (3) provides that the petition
must be
served on the clerk of the lower court.
[10]
Section 309C(4) provides that the court a quo must furnish reasons
for the refusal of the application for leave to appeal in
the lower
court.
[11]
In this instance, the appellant’s petition was served on the
clerk of the court a quo on 1 October 2012.
[12]
in an undated notice, the presiding Magistrate, indicated that he had
nothing further to add to the reasons contained in his
ex tempore
judgment.
[13]
In the premises and having regard to the principles contained in the
Maritz judgment supra, this court was satisfied that justice
will not
be impeded if the hearing of the appeal proceeded and gave an order
to that effect.
Facts:
[14]
The following facts are common cause between the parties:
14.1
Two rival groups attended a club in Meyerville, Standerton. During
the course of the evening a brawl erupted between the two
groups,
which resulted in a physical fight outside the club.
14.2
The appellant was not present and/or involved in this skirmish
between the two groups.
14.3
The appellant transported certain people to their homes and upon his
return, found his friends, Xolani, Magwegwe (second complainant)
and
Phumlani fighting. He requested them to leave with him, which they
did. The appellant was driving a Golf motor vehicle at the
time.
14.4
The appellant proceeded to an Engen Filling Station across the road
from the club.
14.5
Whilst at the Filling Station a second fight erupted and the
appellant fired a single shot, which shot hit the second complainant
in his lower stomach. The injury was serious and the second
complainant spend two months in hospital.
States
witnesses
[15]
Although six witnesses testified on behalf of the State, I will only
refer to the evidence of the witnesses relevant to charges
on which
the appellant was convicted.
Mthkoza
Shabalaia (first complainant)
[16]
The first complainant testified that he was present during the first
fight at the club. He decided to run away from the fight
and ended up
at the Engen Filling Station across the street from the club, where
he hid in the petrol attendant's rest room.
[17]
A Golf motor vehicle stopped at the Filling Station and the
occupants of the vehicle rushed to the rest room and dragged him
outside. He was thereupon assaulted by the occupants of the Golf.
[18]
During the assault Sifiso Welcome Vilakazi (the second complainant)
endeavoured to stop the assault on him. The first complainant
was at
that stage lying on the ground and the second complainant was
standing in front of him.
[19]
According to the evidence of the first complainant, a person with a
fire arm walked towards them and fired a shot at him. The
shot,
however, missed him and hit the second complainant.
[20]
Already during evidence in chief, the first complainant testified
that he did not see the person who fired the shot.
[21]
During cross examination, the first complainant made the following
admission:
"Verstaan
ek u reg dat u dan getuig in piaas dat hy u raak geskiet het, toe
skiet hierdie ander persoon Magwegwe (second complainant)
in sy maag?
- Ja.
Nou
was dit 'n direkte skoot volgens u van at daardie ander persoon wat
Magwegwe in sy maag getref het? — Meneer kan nie se
of dit was
op my gerig of aan Magwegwe gerig, ek weet nie." (court’s
emphasis)
Mkhulu-Amos
Shabalala
[22]
Mr Shabalala worked at a kiosk on the premises of the Filling Station
on the night of the incident.
[23]
He testified that he could observe the events taking place from the
kiosk.
[24]
According to his evidence, the first complainant came running towards
the Filling Station and disappeared from his view. The
next moment a
Golf arrived
at
the Filling Station and the passengers alighted from the vehicle. It
was clear to him that they were chasing the first complainant.
[25]
He saw the group fighting with the first complainant and further more
saw that the appellant had alighted from the Golf with
a firearm in
his hand.
[26]
The appellant approached the first and second complainants and
although the appellant wanted to shoot the first complainant,
the
shot missed and hit the second complainant.
[27]
He testified that the appellant pointed the firearm downwards and
therefore accepted that the appellant wanted to shoot the
first
complainant who was still lying on the ground.
[28]
When being confronted with the appellant's version, he reacted as
follows:
"As
die Beskuldige nou byvoorbeeid vir die Hof sal se hy het net 'n
waarskuvsings skoot afgevuur, hy wou nie vir TK (first
complainant)
skiet nie, wat sou u kommentaar wees daarop? ~ Ek sal niks kan se
daaroor nie."
and
Toe
die Staat vir u gevra het, as die Beskuldigde vir die Hof sou kom se
hy het 'n waarskuwings skoot geskiet, toe het u vir die
Hofgese u sal
nie, u kan nie daaroor u opinie uitspreek nie, u kan nie se nie, dit
is met anderwoorde moontlik.—AI wat ek
se Edelagbare is ek het
nie die woorde, die spraak wat hy gese as hy geskiet het; hy het
geskiet as waarskuwing geskiet, skoot,
of wat hy gedoen het
Edelagbare - ek kon nie hoor nie ek het net die aksie gesien."
En
Beskuldigde gaan vir die Hof kom se hy het die grond, hy het 'n skoot
in die grcnd geskiet of in die plaveise!. Hy het glad nie
'n
vuurwapen op 'n persoon gerig nie. —Soos hy se hy het op die
grond geskiet. Nou hy het iemand geskiet.
U
het nie gesien waarna het hy geskiet nie, het u? - Ek het gesien wat
hy die vuutwapen so hou en skiet en toe val Magwegwe op die
grond."
Sifiso
Welcome Vilakazi (second complainant)
[29]
The second complainant was with the appellant in the Golf. He
testified that they chased the rival group to the Engen Filling
Station where the first complainant was pulled from a double cab
bakkie.
[30]
The first complainant was thrown on the ground. Whilst lying on the
ground, the appellant with a firearm in his hand walked
towards the
first complainant and uttered the following words "ek maak
hierdie hond dood".
[31]
Immediately thereafter the appellant fired a shot, which shot hit him
because he was standing in front of the first complainant.
[32]
Throughout his testimony he insisted that the appellant wanted to
shoot the first complainant.
The
Appellant's version
[33]
The appellant was not an impressive witness. It is clear from his
evidence that he endeavoured to justify his conduct on the
evening of
the incident.
[34]
The appellant, a police officer, testified that, in an attempt to
stop the second fight at the Filling Station he fired a warning
shot
into the ground.
[35]
He testified that the bullet must have ricocheted in order to hit the
second complainant in the stomach.
[36]
When confronted with the fact that the firing of a shot in a built up
area is extremely dangerous and should only be resorted
to if one's
life is in danger, he insisted that his actions at the time of the
incident, giving the specific circumstances, were
justified.
Intention
to murder
[37]
The State has the onus to proof that the appellant intended to murder
both the first and second complainant's. Intention can
manifest in
three forms to wit: dolus directus (direct intention), dolus
indirectus (indirect intention) and dolus eventualis (foreseeing
the
result).
[38]
The State readily conceded that there was no evidence to proof that
the appellant intended to murder the second complainant.
[39]
The only remaining question is therefore, whether the appellant
intended to murder the first complainant.
[40]
The second complainant is the only State witness who testified to the
fact that the appellant intended to murder the first
complainant.
[41]
I agree with Mr Maritz that the version of the first and second
complainants is mutually destructive to such an extent that
their
evidence should be rejected out of hand.
[42]
But even if the court has regard to the evidence of the second
complainant, his evidence as to the events that unfolded on
the night
in question, is so improbable that it should in any event be
rejected.
[43]
Why would the appellant, who at no stage during the evening
participated in the fighting, suddenly want to murder the first
complainant? The first complainant was lying on the ground, was being
assaulted and posed no risk to the appellant whatsoever.
[44]
I am satisfied that the State did not proof beyond a reasonable doubt
that the appellant had the necessary intention, in any
of its forms,
to murder the first complainant.
[45]
The finding supra is, however, not the end of the matter. The
appellant was also charged with contravening the provisions of
section 120(3)(a)
of the
Firearms Control Act, No 60 of 2000
, to wit,
to cause bodily injury to a person by negligently using a firearm.
[46]
The question then arises whether the appellant was negligent in
firing a shot on the evening of the incident.
Negligence
[47]
In order to determine whether the appellant was negligent the Court
needs to apply the following test:
"A
person's conduct is negligent if
1.
the reasonable person in the same circumstances would have foreseen
the possibility
(a)
that the particular circumstance might exist; or
(b)
that his conduct might bring about the particular result;
2.
the reasonable person would have taken steps to guard against such a
possibility; and
3.
the conduct of the person whose negligence has to be determined
differed from the conduct expected of the reasonable person."
(See: Criminal Law, Snyman, fifth edition at p. 210)
[48]
Being a police officer in possession of a firearm, the appellant
should have been particularly cautious in the handling of
the
firearm. Due to his training and vocation the appellant is naturally
aware of the inherent risk in firing a firearm in close
proximity of
people in a built up area.
[49]
The appellant did not act in self defence or in defence of the life
of another person. His intention to stop the fight is admirable,
but
there were various less drastic ways in which he could have obtained
the same resuit.
[50]
The appellant should have foreseen the possibility that a warning
shot fired into the pavement could ricochet and injure persons
in the
vicinity.
[51]
I am satisfied that a reasonable police officer, if confronted with
the same scenario as the appellant, would not have fired
a shot.
[52]
In view of the finding of negligence, the court a quo's conviction on
two counts of attempted murder should be set aside and
be replaced
with a finding that the appellant contravened the provisions of
section 120(3)(a)
of the
Firearms Control Act.
Sentence
[53]
In terms of
section 121
read with Schedule 4 of the Act, any person
convicted of a failure to comply with the provisions of
section
120(3)(a)
may be sentenced to a fine or to a term of imprisonment not
exceeding 5 years.
[54]
Having regard to the appellant's personal circumstances, the fact
that society expects police officers to protect rather than
injure
citizens and the serious injury sustained by the second complainant,
I am of the view that a term of imprisonment of 5 years
is justified.
[55]
The appellant is for present purposes a first offender and I deem it
fair that three years of the sentence be suspended for
a period of
five years on condition that the appellant does not contravene the
provisions of
section 120(3)(a)
of the Act during the time of
suspension.
Magistrate's
conduct during the trail
[56]
In the final instance, Mr Maritz urged this court to comment on the
conduct of the presiding Magistrate, Mr Hallet, during
the trail.
[57]
I must from the outset, express my absolute dismay at the treatment
not only the appellant, but also his legal representative
was
subjected to by Mr Hallet during the trail.
[58]
Mr Maritz has referred to various incidents where Mr Hallet
interrupted the attorney acting on behalf of the appellant during
cross-examination. On one occasion the Magistrate ordered the
appellant's attorney to finish his cross- examination, because it
was
the end of the court day and he will not allow the witness to testify
when the case resumes on another day.
[59]
The tone and manner in which Mr Hallet addressed the appellant's
attorney is indicative of a total lack of basic courtesy and
impartiality.
[60]
During the appellant's evidence Mr Hallet was irritable and treated
the appellant with absolute disdain.
[61]
The judgment is fraught with personal remarks that were totally
irrelevant to a judicial finding.
[62]
Mr Maritz referred to the following extract in S v Mlimo
[2008] ZASCA 7
;
2008 (2)
SACR 48
SCA at 51 i:
"Undue
impatience and irritability on the part of a judicial officer is
inappropriate and undesirable. A trial Judge or Magistrate
must
ensure that justice is done’. He or she should so conduct the
trial that his/her open-mindedness, impartiality and fairness
are
manifest to all those concerned in the trial and it’s outcome,
especially the accused. ”
[63]
Mr Mallet's conduct in the court a quo dismally failed to meet the
standards set out supra.
[64]
In order to prevent similar conduct in future, I am of the view that
the contents of this judgment should be brought to the
attention of
the Magistrate.
Order
I
propose that the following order should be made;
1.
The appeal against the conviction on two counts of attempted murder
and the sentence of 10 years imprisonment is upheld.
2.
The court a quo's order is replaced with the following order:
"The
accused is found guilty of contravening the provisions of
section
120(3)(a)
of the
Firearms Control Act, No 60 of 2000
and is sentenced
to a term of imprisonment of 5 years of which three years is
suspended on condition that the accused is not found
guilty of
contravening the provisions of
section 120(3)(a)
of the Act during
the period of suspension."
3.
The sentence is to run from 2 February 2011.
4.
It is ordered that the judgment be brought to the attention of the
Presiding Magistrate in the court a quo, Mr Haliet.
------------------------------------------------
VAN
NIEUWENHUIZEN, AJ
I
agree
KUBUSHI.J