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[2013] ZAGPPHC 481
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Khumalo v S (A226/2013) [2013] ZAGPPHC 481 (19 November 2013)
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG
HIGH COURT: PRETORIA)
CASE
NO: A226/2013
DATE:
19 NOVEMBER 2013
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.
MAKHAFOLAJ
JUDGE OF NORTH
AND SOUTH GAUTENG HIGH COURT
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