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2013
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[2013] ZAFSHC 173
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Modise v S (A24/2013) [2013] ZAFSHC 173 (26 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A24/2013
In the matter between:
SABATA MOSES MODISE
...........................................................
Appellant
and
THE STATE
...............................................................................
Respondent
_______________________________________________________
CORAM:
DAFFUE, J
et
LEKALE, J
_______________________________________________________
HEARD ON:
16 SEPTEMBER 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
DELIVERED ON:
26 SEPTEMBER 2013
_______________________________________________________
[1] On the 13
th
June 2012 the appellant, who was legally represented, was convicted
on 2 counts of attempted murder by the Regional Court at
Bloemfontein.
He was, thereupon, sentenced to 6 years direct
imprisonment on the first charge and 3 years, which was conditionally
suspended
in whole, on the 2
nd
count. He feels aggrieved
by the convictions and sentences and now approaches us on appeal
against the same with leave granted
by the trial court.
[2] On convicting the
appellant on the 1
st
charge the court below accepted the
complainant’s version and rejected the appellant’s
version as improbable, fabricated
and not reasonably possible. The
trial court, further,
inter alia
, found that the wounds
inflicted on the complainant as a victim were so placed that they
were potentially life threatening. In
respect of the 2
nd
charge the trial court accepted the evidence of the complainant and
her nephew as credible, reliable and satisfactory and rejected
the
appellant’s version as well as the evidence of his witness as
not acceptable.
[3] When imposing the
impugned sentences the court below found that the offences were of
such a serious nature as to warrant a deterrent
and preventive
sentence which ensures the removal of the appellant from society
while, at the same time, allowing him to rehabilitate.
[4] In the notice of
appeal and the heads of argument filed for and on his behalf, the
appellant assails the conviction on the first
charge on the ground
that he only exceeded the bounds of self-defence and is, as such,
only guilty of assault with intent to cause
grievous bodily harm. In
respect of the second charge the appellant contends that the
complainant contradicted her nephew and that
the court below erred in
finding that the wound she sustained was life threatening without any
admissible evidence to that effect
being before her. It is, further,
submitted by Mr Bantjes on behalf of the appellant that the trial
court erred in finding that
the appellant had the intention to kill
the complainant and, further, in not accepting the appellant’s
version as reasonably
possibly true.
[5] The state supports
the conviction on charge no 1 as well as the sentences but submits
that the conviction on the 2
nd
charge cannot be sustained
in the light of the injuries sustained, among others. In Ms Bester’s
view the available evidence
established assault with intent to cause
grievous bodily harm as opposed to attempted murder. She submits that
the relevant conviction
should be changed accordingly while the
sentence should be confirmed as being appropriate for assault with
intent to cause grievous
bodily harm.
[6] The nature and
gravity of the crimes involved are apparent from the evidence of the
complainant and her nephew who corroborated
her evidence in material
respects with regard to the second charge. The complainant testified
that following years of turbulent,
violent and abusive love
relationship with the appellant, on the morning of the incident
giving cause to the first charge viz.
10 February 2011, she called
the appellant to inform him that she was terminating the relationship
and the latter was not happy
therewith although he only mumbled that
they would meet. She, later that morning, accompanied the police to
the appellant to serve
an interim protection order on him. Later that
very day, the appellant accosted her in the street on her way home
from the shop
and stabbed her with a kind of hunting knife, some 20 –
25cm in length, 5 times, once at the back of the neck, the forehead,
in the chest, on the shoulder and on the forearm without any cause
therefor. She received medical attention at the hospital as
an
outpatient and the stab wounds were sutured. She laid a charge
against the appellant but he was not arrested until the 21st
August
2011 with the police maintaining that they could not get hold of him.
On the 19
th
August 2011 she was in the company of her
nephew, on her way home from the family planning clinic at Pelonomi
Hospital, when they
came across the appellant in the street. The
appellant requested to talk to her and required her nephew to step
aside for that
purpose. She responded in the negative, whereupon, the
appellant pulled out the very same knife with which he earlier
stabbed her
and wanted to attack her but she retreated. Her nephew,
thereupon, intervened pointing out that he was aware of the
appellant’s
belligerent disposition and advised her to oblige
and accompany the appellant to his place. En route to the appellant’s
residence
she attempted to run away but her nephew once again
cautioned her against doing so. Inside the appellant’s home the
latter
subjected her to questioning about her alleged love
relationship with one Shadrack and, when she disputed the existence
of such
a relationship he got angry and pulled out the knife and
stabbed her on the forehead. Her nephew intervened successfully.
[7] The appellant’s
version on the first charge was that after service of the protection
order on him the complainant called
him to a clandestine meeting at
which they, eventually, struggled over her cell phone after she had
acted suspiciously while talking
to someone over the same. The
complainant grabbed him by the private parts demanding that he let go
of the mobile phone but he
resisted. The pain got unbearable and he
pulled out his pocket knife and scratched the complainant on the
neck, hand and shoulder
all in endeavour to ward off the attack on
his private parts. He knows nothing about the alleged attempt on the
complainant’s
life on the second occasion because on that day
he only accompanied the complainant to the family planning clinic and
her nephew
was not with them. No violent interaction took place
between them and, after the altercation in charge number 1, they had
a normal
intimate relationship and even exchanged sexual favours.
[8] The factual findings
of the trial court are presumed to be correct unless and until they
are shown, with reference to recorded
evidence, to be wrong. The
acceptance, by the trial court, of the evidence of a witness and its
conclusions on the same are presumed
to be correct absent
misdirection on its part. The appellant must convince the court of
appeal that such acceptance and conclusions
are wrong on adequate
grounds and not merely by showing that there was a reasonable doubt
that the trial court was correct. (See
S v Hadebe and Others
1997 (2) SA 641
(A) and
S v Francis
1991 (1) SACR 198
(A) at 204c – e.)
[9] Counsel on both sides
are correctly in agreement that reliance by the trial court on
evidence based on medical notes which were
not before the court is
misplaced and the state, through Ms Bester, contends that the
location of the various injuries on the complainant’s
person
and the nature of the weapon used to inflict them clearly indicate
that the appellant was intent on killing the complainant.
[10] A perusal of the
record confirms the trial court’s finding that the appellant
was self-contradictory and that he, further,
contradicted his
plea-explanation. We are, further, convinced
ex facie
the
record that the appellant’s version on the 1
st
count
was inherently improbable and defied human experience. It is simply
alien to human experience that a person experiencing
excruciating
pain associated with hostile pressure to his private parts would have
the time and comfort to weigh up the pros and
cons of his reaction to
such an attack by deliberately selecting weapons with which to meet
such an attack, choosing areas at which
to strike and measuring the
force with which to meet such an attack in order to protect himself.
One reasonably expects a victim
of such attack to react
instinctively, trying to rid himself of the cause of the pain and not
to look around intent on reaching
the nearest stone in order to use
it as a weapon against his attacker.
[11] We are, further, not
persuaded that the contradictions relied upon to assail the
conviction on the second count are material.
It is clear from the
record that the complainant’s nephew corroborated her evidence
with regard to how, when and where the
appellant struck her with a
knife. As correctly conceded for the state, the totality of evidence,
however, does not sustain the
conclusion that the appellant had the
intention to kill the complainant when he stabbed her once in the
head. To this extent the
court below misdirected herself in returning
a verdict of guilty to attempted murder when the evidence established
an intent to
cause grievous bodily harm.
[12] There is nothing
before us to show that the trial court misdirected herself in her
factual findings and in her evaluation of
the evidence as well as her
conclusions with regard to the witnesses on both counts. We are
convinced that the appellant’s
versions on both counts were
correctly rejected as not reasonably possibly true.
[13] The appellant,
further, effectively attacks the sentence imposed with regard to the
1
st
count on the basis that he is a father of four
dependent children, had a good income at the time of his arrest,
spent considerable
time in custody as awaiting trial inmate and his
last brush with the law was in 1988.
[14] The state, on its
part, maintains that the sentences are appropriate regard being had
to,
inter alia
, the gravity of the offences concerned and the
fact that the complainant had secured a protection order against the
appellant which
did not scare him off. Ms Bester, further, points out
that the sentence in respect of the 2
nd
count creates the
impression that the court
a quo
moved from the footing that it
was punishing the appellant for assault with intent to cause grievous
bodily harm as opposed to
attempted murder. She, thus, submits that
the sentence in question remains appropriate even in the event of the
verdict being changed
to guilty to assault with intent to cause
grievous bodily harm.
[15] Sentencing is the
preserve of the trial court and we, sitting in the appellate mode,
can only interfere with the sentence imposed
where the trial court
did not exercise its discretion reasonably or the sentence is grossly
inappropriate or disproportionate.
(See
S v Pieters
1987 (3) SA 717
(AD).)
[16] We are not persuaded
by the material before us that the trial court did not strike a
healthy balance between the personal circumstances
of the appellant
as the accused, the gravity of the offences and the interests of the
society. In fact we are in effective agreement
with the state that
the fact that the offence in charge number 1 was committed shortly
after the appellant was served with the
protection order is
aggravating and deserved special attention, in the form of stiff
sentence, from the trial court. The offences
in the instant matter
make a mockery of such a protection order and are, in fact,
indicative of the contempt the appellant has
for the law.
ORDER
[17] The conviction in
respect of charge number 1 and the sentences are confirmed.
[18] The conviction in
respect of charge number 2 is set aside and in its place and stead is
substituted the following:
“
Ad
charge number 2:
The accused is found
guilty of assault with intent to cause grievous bodily harm.”
______________
L. J. LEKALE, J
I
concur.
________________
J. P. DAFFUE, J
On behalf of appellant:
Adv. B. L. Bantjes
Instructed by:
Kramer Weihmann &
Joubert Inc
BLOEMFONTEIN
On behalf of respondent:
Adv. A. Bester
Instructed by:
The Director: Public
Prosecutions
BLOEMFONTEIN
/eb