About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 379
|
|
Khumalo v S (A226/2013) [2013] ZAGPPHC 379 (19 November 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT: PRETORIA)
CASE NO: A226/2013
DATE: 19 NOVEMBER 2013
NOT REPORTABLE NOT OF
INTEREST
TO OTHER JUDGES
In the matter between:
DAVID KHUMALO
…................................................................
APPELLANT
VS
THE
STATE
.................................................................................
RESPONDENT
JUDGEMENT
MAKHAFOLA J
INTRODUCTION
The appellant stood trial in the
regional court sitting in Nigel for assault on a 50 year old MONTO
ISIAH MAHLANGU with intent to
do grievous bodily harm by stabbing him
with a knife on his back. The appellant pleaded not guilty to the
charge and did not tender
any plea-explanation.
He was found guilty as charged and
sentenced to 30 months imprisonment in terms of Section 276(1)(i) of
the Criminal Procedure Act.
The appellant was legally represented
throughout his trial.
He has approached this court on appeal
against both the conviction and sentence after having been granted
leave by the court a quo.
Ad Conviction
The complainant’s evidence
relating to his stabbing by the applicant was corroborated by
Bosisiwe. The evidence by Dr Hleza
is that of an expert and it
confirms that the complainant was stabbed viciously with a sharp
instrument causing sensory loss on
the legs. The complainant had a
paralysis of the lower limbs. This explains the fragment which
actually touched the spinal cord.
He testified further that the
complainant may recover if his spine is not completely “transacted”
severed. The sharp
instrument used to stab the complainant broke the
bone which punctured the lung from the back. The doctor was
extensively cross-examined
but he stuck to his medical findings.
On the other hand the appellant raised
a lousy defence to say that the complainant just came picked up some
bricks and hit him on
the right side of his face. He was told by the
complainant in a hospital ward that people were fighting he (the
complainant) fell
on top of an old plank with nails that stabbed him.
This conflicts with the evidence of the
doctor who testified about a clean cut. A pertinent question by the
appellant’s counsel
was: “did you at any stage stab Mr.
Mahlangu with a knife or any other object”? the answer was: “no
I do not
remember”.
The answer is strange in the face of a
serious charge the appellant is facing. If he did not remember that
does not amount to a
denial of the stabbing. After all evidence by
the state point to him as the stabber. The appellant’s witness
(his girlfriend/wife)
did not take the appellant’s case any
further. She was involved in attacking the appellant.
From the record it is clear that the
complainant’s evidence is corroborated.
Vide: “THE SOUTH AFRICAN LAW
OF EVIDENCE “by DT ZEFFERT, AP PAIZES and A ST Q SKEEN 2007
Edition
where it is stated: “corroboration
is independent evidence which confirms the testimony of a witness”.
Page 810 C.
The appellant during the trial did not
raise a defence that can be taken seriously. He failed to raise any
self-defence to justify
his attack of the complainant.
Vide:
SCAGELL AND OTHERS v ATTORNEY
- GENERAL, WESTERNCAPE 1997(2) SA368 (cc)
I cannot fault the court a quo in the
manner it went about to analyse and accept the state evidence as
constituting a proof beyond
a reasonable doubt.
Vide:
S v RAMA 1966(2) SA 395 (A).
The appellant bears no onus to prove
his innocence until he is proved guilty.
Vide:
R v DIFFORD
1937 AD 370
at
373, 381 and 383
The magistrate’s findings of
guilty are in accordance with justice. His rejection of the
appellant’s defence is justified
regard being had to his and
the state evidence.
Ad Sentence
It is trite that in the absence of
misdirection the court of appeal will not interfere in the
sentence of a lower court or any other
court of first instance.
Vide: R v Mapumulo & Other 1920 56
at 57 which states:
“Imposition of punishment is
pre-eminently a matter for the discretion of the trial court”.
I cannot find any misdirection on the
part of the magistrate. He did apply his mind properly to the facts
raised during the mitigation
of sentence.
Vide: S v Juta 1988(4) SA 926 (TK).
The sentence is proportionate to the
offence committed, taking into account very serious and permanent
injuries the appellant had
inflicted on the complainant.
The sentence of 30 months imprisonment
is not shocking in the circumstances of this case.
CONCLUSION
The appeal against both the conviction
and sentence falls to be rejected. In the result, I pronounce the
following order:
ORDER
The appeal is dismissed.
MAKHAFOLA J
JUDGE OF NORTH AND SOUTH
GAUTENG HIGH COURT
I AGREE,
FOURIE J
JUDGE OF NORTH AND SOUTH
GAUTENG HIGH COURT
ON BEHALF OF THE PLAINTIFF :
ON BEHALF OF THE DEFENDANT :
DATE OF HEARING :
DATE OF JUDGMENT :