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[2013] ZAGPPHC 127
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Maseko v S (A354/12) [2013] ZAGPPHC 127 (17 May 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: A345/12
DATE:17/05/2013
In
the matter between:
SIBUSISO
CHRISTOPHER
MASEKO
......................................................
Appellant
and
THE
STATE
…...........................................................................................
Respondent
JUDGMENT
OF THE COURT
MAKGOKA
J et LAKA AJ:
[1]
The appellant was arraigned in the regional Court, Ermelo, on a
charge of murder, read with the provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of 1997
. The deceased died of injuries
sustained on 25 December 2003. The cause of death was noted in the
post-mortem report as 'skull
and brain injury’. The trial
culminated in the conviction of the appellant, upon which he was
sentenced to 8 (eight) years’
imprisonment. Leave to appeal
having been refused by the trial court, the appellant appeals against
the conviction, with leave
of this court.
[2]
The State led the evidence of two witnesses, Mr. Sibusiso Kenneth
Zulu (Zulu) and Constable Willie Alfred Makwakwa (Makwakwa).
The
appellant testified and closed his case without calling any further
witnesses. Zulu testified that he was walking with the
appellant from
a tavern. They were approached by the deceased in an aggressive
manner. The appellant pushed the deceased away.
The deceased hit the
appellant with a fist. The appellant retaliated by hitting the
deceased with a fist. According to Zulu, this
was a hard blow and the
deceased fell backwards on the tarred road.
[3]
The appellant continued to hit and kick the deceased whilst the
latter was lying on the ground. The police arrived at the scene.
This
did not deter the appellant from assaulting the deceased. The
appellant was arrested. Makwakwa, a constable in the South African
Police Service (SAPS), was patrolling the area when he observed the
deceased lying on the ground and the appellant standing over,
and
assaulting the deceased. He arrested the appellant.
[4]
The appellant testified that on the night of the incident he was at a
tavern drinking liquor. Later he left for his girlfriend’s
place. Zulu joined him on the way, but he was going to another
tavern. Along the way, they encountered the deceased lying in the
street. He then noticed a vehicle coming and tried to move the
deceased from the middle of the street. The vehicle happened to
be a
police van. The police accused him of having assaulted the deceased,
which he denied.
[5]
The appellant attacks the conviction on the basis that the evidence
does not sustain a conviction of murder. At worst for the
appellant,
so is the argument, he should have been convicted of assault with
intent to do grievous bodily harm. The State supports
the conviction.
[6]
Before we consider the submissions in this regard, it is necessary to
restate the approach to be adopted by a court of appeal
when it deals
with the factual findings of a trial court. The proper approach is
found in the following principles laid down in
R v Dhlumayo.
1
A court of appeal will not disturb the factual finding of a trial
court unless the latter had committed a misdirection. Where there
has
been no misdirection on fact by the trial Judge, the presumption is
that his conclusion is correct. The appeal court will only
reverse it
where it is convinced that it is wrong. In such a case, if the appeal
court is merely left in doubt as to the correctness
of the
conclusion, then it will uphold it.
[7]
The issues for determination in this appeal are these:
(a)
whether or not the appellant assaulted the deceased, and if so
(b)
whether or not he did so in self-defence;
(a)
whether or not the appellant’s assault on the deceased (if
established) caused the fatal injuries to the deceased;
(b)
whether the evidence established murder or only
(i)
culpable homicide; or
(ii)
assault with intent to do grievous bodily harm.
[8]
We now consider the above, in turn, starting with whether or not the
appellant assaulted the deceased. It would be recalled
that the
appellant’s version was that no fight occurred between him and
the deceased, and therefore denied assaulting the
deceased. In this
regard the trial court relied on the evidence of Zulu, who was
walking with the appellant. Zulu was a single
witness.
[9]
In terms of
s 208
of the
Criminal Procedure Act, 51 of 1977
, an
accused may be convicted of any offence on the single evidence of any
competent witness. The court can base its findings on
the evidence of
a single witness, as long as such evidence is substantially
satisfactory in every material respect (R v Mokoena
1932 OPD 79
at
80) or if there is corroboration (S v Gentle
2005 (1) SACR 420
(SCA)). See further, R v Mokoena
1956 (3) SA 81
(A) at 85; S v T
1958
(2) SA 676
(A) at 678; S v Sauls and Others
1981 (3) SA 172
(A) at
180E-G; and Sv Banana
2000 (2) SACR 1
(ZSC).
[10]
In the present case, there is no suggestion that Zulu’s
evidence was not satisfactory in all respects. Even before us,
the
appellant’s attorney, quite correctly, did not argue otherwise.
The trial court’s finding in this regard (that
the appellant
assaulted the deceased in response to the deceased’s initial
aggression towards him) is therefore unassailable.
[11]
That brings us to the next enquiry, whether the appellant, in
assaulting the deceased in those circumstances, did not exceed
the
boundaries of private defence. It should be noted that during the
trial, the appellant did not raise private defence, given
his version
that there was no fight between him and the deceased, and therefore,
no assault occurred. As stated in para 10 above,
in this court, his
attorney disavowed any reliance on that version of the appellant, and
pinned his argument on private defence.
[12]
The evidence is that the appellant struck a blow to the deceased, as
a result of which the latter fell. Once that happened,
the deceased
no longer posed any danger to the appellant. Despite that, the
appellant continued to assault the deceased while the
latter was
lying on the ground. In our view, the appellant exceeded the
boundaries of private defence. It was contended on behalf
of the
appellant that the first blow, which was in private defence and
therefore lawful, was probably the fatal one. We find no
merit in
this submission. The probabilities are that the appellant died from
the subsequent repeated assaults to the head.
[13]
Besides, there is no suggestion that the deceased’s initial
aggression towards the appellant posed any serious danger
to warrant
the blow described by Zulu as ‘heavy’. We therefore
conclude that the appellant’s reaction to the
deceased’s
attack on him was, in any event, disproportionate and overboard. With
this conclusion, we are satisfied that the
deceased died as a result
of the injuries sustained during the assault by the appellant.
[14]
Next must be considered whether the appellant was correctly convicted
of murder, which is the intentional killing of a human
being. The
attorney for the appellant argued that, at the very least, the
appellant should have been convicted of assault with
intent to do
grievous bodily harm. We do not agree. The repeated assault of the
deceased while lying on the ground, even after
the arrival of the
police, points away from the intention suggested.
[15]
We now consider the other competent verdict, culpable homicide, which
is the unlawful, negligent causing of the death of a
human being. It
follows that the causing of death, even as the result of an unlawful
act which is criminally punishable, is not
of itself sufficient to
constitute the crime of culpable homicide. There is the additional
requisite of the reasonably foreseeable
possibility of resultant
death. See S v Burgei
2
.
There is always a very thin line between murder based on dolus
eventualis and culpable homicide. In S v Bernadus
3
the following was said in this regard:
‘
(S)
erious injury and death are sombrely familiar as cause and effect in
the marks of human experience, for the vulnerabilities
of human body
are legion, and death may come to mortals through a variety of
corporeal hurts and derangements.’ See also
S v Thenkwa en 'n
Ander
4
.
[16]
Here an accused’s state of mind at the time of the incident is
important, as the element of subjectivity is important
in
distinguishing between murder and culpable homicide, where the
infliction of physical violence is involved. Subjective foresight
must be determined, as ‘a determination must be made as to what
actually went on in the mind of the appellant for the trial
court to
justifiably infer that the appellant ought reasonably to have
foreseen, and in fact did foresee the possibility of causing
the
deceased’s death’. See S v Campos
5
’,
and S v Mtshiza
6
.
[17]
In the present case, we doubt whether it can be said beyond
reasonable doubt that the appellant had the intention to kill the
deceased. From a consideration of all the evidence, we do not think
that intention, either in the form of dolus directus or dolus
eventualis, was established. Once intention is excluded, the question
is narrowed to a choice between culpable homicide and assault
with
intent to do grievous bodily harm.
[18]
In this regard, we consider the nature of the injuries set out in the
post-mortem report, from which it is clear that the deceased
was
severely assaulted. The injuries are such that a reasonable man in
the position of the appellant would have foreseen that death
could
result from the assault. The appellant should have appreciated the
possibility that assaulting the deceased with the intensity
he did,
might well cause serious injuries; and that such injuries could
result in death. By saying this, we do not lose sight of
the fact
that the appellant was under the influence of liquor. We therefore
conclude that the appellant should have been convicted
of culpable
homicide. The appeal should therefore succeed to the extent that the
conviction of murder should be set aside and replaced
with one of
culpable homicide.
[19]
Ordinarily, but not necessarily, this conclusion would affect the
sentence, even though leave was not granted to appeal against
the
sentence. The appellant was sentenced to 8 years imprisonment. In my
view, that sentence is in the range of sentences normally
imposed for
culpable homicide. Although the trial court misdirected itself in the
conviction, it did not do so with regard to the
sentence. There is
therefore no basis to interfere with the sentence imposed by the
trial court. In the end, the appellant’s
success in overturning
the murder conviction has turned out to be academic.
[20]
In the result the following order is made:
1.
The appeal is upheld to the extent that the conviction on the count
of murder is set aside and replaced with the following:
‘
The
accused is convicted of culpable homicide’
2.
The sentence of 8 years’ imprisonment imposed by the regional
court is confirmed.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
and
AP
LAKA
ACTING
JUDGE OF THE HIGH COURT
DATE
HEARD : 5 DECEMBER 2012
JUDGMENT
DELIVERED : 17 MAY 2013
FOR
THE APPELLANT : MR. M. JUNGBLUTH
INSTRUCTED
BY : BOTHA & VAN DYK INC
FOR
THE STATE : ADV PW COETZER
INSTRUCTED
BY : DIRECTOR OF PUBLIC PROSECUTIONS,
PRETORIA
1
1948
(2) SA 677
(A)
2
1975
(4) SA 886 (A) 879 B.
3
1965
(3) SA 287
(A) at 307 A-C.
4
1970
(3) SA 529
(A).
5
2002
(1) SACR 233
(SCA) paras 24,25,26,33 and 38.
6
1970
(3) SA 747
(A) at 751 D -752 E; 735 A-C, 754 A-B,