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[2013] ZAGPPHC 177
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Zakwe v S (A60/2012) [2013] ZAGPPHC 177 (14 June 2013)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: A60/2012
DATE:14/06/2013
In
the matter between:
MUZOMUSHA
MZOZOZAKWE
ZAKWE
................................................................
APPELLANT
And
STATE
..........................................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1]
The appellant, an adult male aged 29 years old, was convicted on one
count of murder read with
section 51(2)
of the
Criminal Law Amendment
Act 105 of 1997
and sentenced to 15 years imprisonment by the Benoni
Regional Court on the 09 June 2011.
[2]
The appellant is now appealing with the leave of the presiding
Magistrate against both the conviction and sentence.
[3]
The charge against the accused was murder read with
section 51(2)
of
the
Criminal Law Amendment Act 105of 1997
: in that upon or about 2011
and at Benoni in the Regional Division of Gauteng the appellant did
unlawfully and intentionally kill
Sibongole Msimang a female person
by hitting her with fists and further kicked her with booted feet.
[4]
The appellant was dully represented throughout the trial. He pleaded
not guilty and denied any knowledge of the murder. His
legal
representative confirmed the plea to be in accordance with his
instructions and recorded that there defence will not tender
any plea
explanation.
[5]
The following admissions were made and recorded in terms of terms of
s220
of CPA: That the identity of the deceased was Sibongile Msimang;
that that the cause of death was due to or caused by a head injury
and that she is the person depicted in certain photo album compiled
by Sergeant Elsi Durandt. The post mortem was admitted as exhibit
A
and the album was as exhibit Exhibit B.
[6]
The conviction of appellant is premised on the aforesaid admissions
and the evidence of the following witnesses: The Investigating
Officer Sipho Camalon Nkabane; Ms. Rebecca Mofokeng; Mr. Jeremiah De
Necker and Ms Alice Poppie Mokoena.
[7]
Mr. Sipho Camelon Nkabinde testified that he knew the appellant as
well as the deceased. He testified that he was not aware
of any
problems between the appellant and the deceased. He testified that on
the 5th February 2011 he was in the company of Rebecca
as well as the
deceased. They were at the hostel and were drinking home-brewed beer.
[8]
Mr. Nkabinde further testified that the appellant was hitting and
kicking the deceased all over her body. They left the appellant
and
the deceased, at approximately 14h00 while the appellant was still
assaulting the deceased. The following day he found that
the deceased
had passed away. He did not know why the appellant assaulted the
deceased. He further testified that that they were
drunk. They had
consumed approximately 6 or 7 two litters home brewed beer.
[9]
Ms Rebecca Mofokeng testified that the deceased was found on the 06th
of February 2011. The deceased was in her and Mr. Nkabinde’s
company the previous day. The appellant arrived and took the
deceased. The appellant assaulted the deceased by punching and
kicking
the deceased. The appellant kicked the deceased several
times. As she and Mr. Nkabinde attempted to intervene, they were
chased
by the appellant.
[10]
Mr. Jeremiah de Necker testified that the deceased was found dead on
06 of February 2011. The previous night at approximately
21h00 he
heard the deceased crying and screaming. He went to sleep. He further
testified that he could tell from the screams that
the deceased was
being assaulted.
[11]
Ms Alice Poppie Mokoena on 06 of February 2011 she was on her way to
use the bathroom when she noticed a basin filled with
blooded water
near the shacks of the deceased. At some later stage she went back to
check on the deceased. She found that the deceased
was lying outside
the shack. The appellant was forcing a tablet into her mouth of the
deceased. The deceased was only mumbling
at the time. The appellant
requested Mrs Mokoena to call an ambulance. When she returned from
the police, the deceased had already
passed away.
[12]
The appellant testified in his own defence and did not call any
witness to testify on his own behalf. The appellant testified
that he
had a love relationship with the deceased. He said that the day
before the deceased died, he found her injured. He further
said that
on the same day Poppie had called an ambulance for the deceased who
had fallen where they were drinking. The deceased
refused to get into
the ambulance. Poppie had said that the ambulance was called on
Sunday, but the appellant insisted that it
was called on Saturday. He
subsequently heard that the ambulance also came on Sunday when the
deceased was really bad. He further
testified that on Saturday, the
deceased was bleeding from her face. She had abrasions; her skin had
slightly peeled off, bruised
eyes, black eye and swollen lips.
[13]
The appellant further testified that on Sunday the deceased could
still speak and informed him that she had an epileptic attack.
The
deceased could still take tablets herself. He had to give her more
tablets. The deceased complained of headache. The appellant
further
stated that Rebecca would falsely implicate him because she had
always wanted the deceased not to have a relationship with
him but
with Rebecca’s brother. He further testified that he found the
deceased injured when he arrived at the shacks. Rebecca
had informed
the appellant that the deceased had fallen where she had been
drinking with Rebecca and Sipho. The appellant had spoken
to the
deceased before she died. She informed him that she had had an
epileptic attack. The appellant closed his case without calling
any
witness.
[14]
The trial court found that the State witness to be satisfactory and
reliable. The trial court also took into account that whereas
Mr.
Sipho NKabinde had initially created the impression that the
appellant was armed with a panga and a rod when he attacked the
deceased, he subsequently stated that he heard this from Ms Poppie
Mokoena. The latter was, however, contradicted on this aspect
by
Rebbecca. He also found that the accused also corroborated the state
witnesses that he joined them where they were drinking
with the
deceased on Saturday. The appellant also corroborated Mr. De Necker
that he would have heard the deceased screaming throughout
the night,
although according to the appellant she would have been screaming
from pain. I must hasten to state that it is not reasonably
possibly
true that the screaming would have been as the result of mere bodily
pain either than because of an assault.
[15]
The magistrate found the State witness, notwithstanding the
contradictions, to be satisfactory and reliable. The magistrate
found
the appellant to be unreliable and contradicted himself in various
respects. He rejected the version of the appellant that
the ambulance
was called on Saturday. The magistrate also found that the appellant
also corroborated the evidence of Sipho and
Rebecca that he did turn
up where they were drinking. The trial Court further found that at
the time, the deceased did not have
the injuries depicted in the
photographs. The trial court in rejecting the version of the
appellant that the deceased sustained
her injuries from falling, as
not reasonable possibly true when regard is had to the extent of the
injuries as reflected in the
photographs.
[16]
Counsel for the appellant, forcefully submitted that the magistrate
erred in convicting the appellant on murder. It was further
submitted
that the State called two witnesses who were under the influence of
liquor at the relevant time. They had consumed a
considerable
quantity of beer. Their evidence that the deceased was hit and kicked
all over her body is not supported by the Post
Mortem. The injuries
were limited to the head of the deceased.
[17]
It was further submitted that the State failed to prove any form of
intent. The State merely proved that the appellant was
negligent. It
was put to Mrs Mokoena that the appellant was scared to call the
ambulance himself, as they asked why he took so
long to call them. It
was further submitted that there was no evidence presented to justify
the conclusion that it was the intention
of the appellant to murder
the deceased. When the principles, as set out in R v Blom are
applied, the intent cannot be found to
be the only inference to be
drawn. The inference sought to be drawn must be consistent with all
the proved facts. If it is not,
then the inference cannot be drawn.
The proved 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 inference, then there must be a doubt
whether the inference
sought to be drawn is correct.
[18]
It was submitted that the State did not prove any requisite intent on
the part of the appellant, be it dolus directus or indirectus.
It was
contended that the trial court misdirected itself in convicting the
appellant on murder instead of culpable homicide.
[19]
The first issue to be considered in this appeal is whether the
version of the appellant is reasonably possibly true. If it
is found
to be reasonably possibly true then the appellant is entitled to be
acquitted, if not then the second question that arises
is whether the
State has acquitted its onus of proving the requisite intent to
murder or should the court have convicted the appellant
on culpable
homicide.
[20]
In the matter of Sithole v S
[2012] JOL 29181
(SCA) Reported in:
Judgments Online, Southwood AJA held that the state bears the onus of
establishing the guilt of an accused beyond
reasonable doubt and he
is entitled to be acquitted if there is a reasonable doubt that he
might be innocent. The onus has to be
discharged upon a consideration
of all the evidence. A court does not look at the evidence
implicating the accused in isolation
to determine whether there is
proof beyond reasonable doubt nor does it look at the exculpatory
evidence in isolation to determine
whether it is reasonably possible
that it might be true.
[21]
It is trite that the trial court’s conclusion and acceptance of
the evidence of witnesses is presumed to be correct and
would not be
readily disturbed on appeal, unless it is demonstrably clear from the
record that the trial court has erred in that
regard.
[22]
According to the appellant, on the Sunday morning, he even spoke to
the deceased and she even prepared tea for him. He left
the deceased
shortly thereafter .Vide Mokean’s evidence at page 27.
According to Ms Mokoena, the morning of Sunday morning,
she found the
deceased lying on a blanket outside, with the appellant kneeling next
to her. The appellant was forcing tablets in
the mouth of the
deceased. The deceased could not even talk. The appellant remarked
that the deceased irritates him because she
does not open her mouth.
The appellant denied this version of State witnesses. He wanted the
court to accept that the State witnesses
were falsely implicating
him. I am of the view that if indeed the State witnesses wanted to
falsely implicate him, Ms Mokoena could
have easily said that that
morning, she saw the appellant further assaulting the deceased. I
have been unable to find from the
record any indication that these
State witnesses wanted to do the accused in with false allegations.
The trial court found the
State witnesses to be reliably. It needs
mention that the fact that the witnesses have contrad icted
themselves in certain respects,
it does not mean that their whole
evidence should then be jettisoned out of the window. The trial court
recognised contradictions
on the part of the State witnesses, but
found their overall evidence to be credible. The trial court further
found that when the
appellant found the deceased on Saturday in the
company of Mr. Nkabinde and Ms Rebecca Mokoena, she was not injured.
The appellant
was seen assaulting the deceased. He took the deceased
with him. The deceased was heard screaming throughout the night. The
trial
court concluded that the injuries on the deceased were
inconsistent with falling. Taking all these aspects, in my view, the
trial
court cannot be faulted in its finding that the appellant was
the person who assaulted the deceased and caused the injuries she
sustained.
[23]
The colour photograph 11 of exhibit B clearly shows the swollen face
with one of the eyes almost closed and some bruises. The
post mortem
reveals that the deceased had subdural bleeding occipital, eye, nose
and earlobes, mouth and tong had bilateral peri
orbital bruising.
There were bruises on the head and bleeding underneath the head skin.
Having regard to the extent of the aforesaid
injuries, I am of the
view that the trial court quite correctly found that these injuries
were consistent with assault and not
with falling. I am of the view
that the trial court cannot be faulted in finding that the appellant
was the person who assaulted
the deceased.
[24]
In R v Blom it was held that the inference sought to be drawn must be
consistent with the facts and must be the only inference
to be made.
In my view, each and every case must be adjudged on its own peculiar
circumstances. The accused assaulted and kicked
the deceased from
when he found her sitting together with Mr. Mokoean and his
girlfriend Ms Rebecca Mokoena. The deceased was heard
screaming
throughout the night. The screaming could only have been as the
result of further assaults. She also had bruises and
bleeding
underneath the head skin. The extent of the injuries suggest that it
was not only a singular assault but a repeatedly
assault on the
deceased. The trial court concluded that the appellant assaulted the
deceased to an extent that she died.
[25]
In the totality of the accepted evidence and the rejected version of
the appellant with its improbabilities, I am of the view
that the
trial court correctly found that the appellant assaulted the deceased
and on inferential basis caused her eventual death.
It is clear that
the accused was found guilty, correctly so in my view, on murder
committed with dolus eventualis. In the premises
the appeal on
conviction should fail.
[26]
The magistrate found that there were no substantial and compelling
circumstances. In this regard he took into account the gravity,
the
fact that the deceased was assaulted over a lengthy period. The
magistrate found that the personal
circumstances
of the appellant did not amount to substantial and compelling
circumstances.
[27]
The appellant was 29 years old at the time of sentencing, had been in
custody for a year since his arrest. He has a wife and
a child in
Natal who was 2 years old at the time of sentencing. He never
attended school. He was earning R50. 00 to R60 .00 per
day depending
on the amount of boxes he would have picked up for recycling. He
would send R120. 00 to his family.
[28]
The appellant and the deceased were lovers staying in a make shift
tent. Although there is no evidence to what extent liquor
played on
the part of the appellant, I of the view that liquor must have played
an influence on the appellant. However, it was
for the appellant to
marshal facts which were in within his privy that could have been
considered whether they amount to substantial
and compelling
circumstances. In the circumstances, the magistrate cannot be faulted
in his finding that there were no substantial
and compelling
circumstances present in casu. In the premises, I am of the view that
the appeal on sentence must fail.
[29]
The appellant was incarcerated for a period of about one year before
he was convicted and sentenced. It is therefore necessary
that in
respect of sentence imposed, in accordance with the S v Vilakazi
2009
(1) SACR 552
SCA par [60]: “A period of one year is to be
deducted from the sentence of 15 years when calculating the date upon
which
the sentence is to expire.”
[30]
In the premises it is ordered as follows:
(i)
That the appeal on both conviction and sentence is dismissed and the
conviction and the sentence of 15 years imprisonment are
confirmed;
(ii)
. that a period of one year is to be deducted from the sentence of 15
years when calculating the date upon which the sentence
is to expire.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
A
J. BAM.
ACTING
JUDGE OF THE HIGH COURT
DATE
OF HEARING': 20/05/2013
DATE
OF JUDGMENT : 14/06/2013
APPELLANT'S
ATT: LEGAL AID S.A.
APPELLANT’S
S ADV : ADV L.A VAN WYK
RESPONDENT’S
ATT : DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT’S
ADV : ADV S. SHEEPERS