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[2012] ZAFSHC 22
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Thupudi v S (A50/11) [2012] ZAFSHC 22 (23 February 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A50/11
In the appeal between:-
MOILOA THUPUDI
…...............................................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
VAN DER MERWE
et
MOCUMIE, JJ
_____________________________________________________
HEARD
ON:
20 FEBRUARY 2012
_____________________________________________________
DELIVERED
ON:
23 FEBRUARY 2012
_____________________________________________________
MOCUMIE, J
[1] This is an appeal
against sentence from the Regional Court, Welkom with leave of the
court
a quo
. The appellant was charged with murder read with
the provisions of
section 51
of the
Criminal Law Amendment Act 105 of
1997
. He was convicted as charged on 10 March 2006 and was sentenced
to fifteen years imprisonment on the same day,
[2] The salient facts of
this case are as follows. The accused and the deceased were with
other patrons at a tavern in Thabong,
Welkom on the night of 2 May
2005. The deceased assaulted the appellant with open hands and
continued to harass him during the
night to the point that a fight
broke out between them. During the fight the appellant stabbed the
deceased with a knife once on
the shoulder. The deceased died as a
result of the stab wound.
[3] The appellant’s
defence was that of private defence. He alleged that the deceased was
armed and wanted to stab him. He
stabbed the deceased before the
latter could stab him. The trial court, on the basis of the evidence
presented, correctly rejected
the appellant’s defence and found
him guilty as charged.
[4] In her judgment at p.
116 line 13 – 16 the magistrate held:
“
Therefore
the only reasonable inference that can be drawn from the proven
facts, is that the accused had the
direct
intention
to kill the deceased whether in the form of
dolus
directus
or
dolus
eventualis
.”
[5] It is correct as
submitted on behalf of the appellant and conceded by the State that
the trial court erred by finding these
two forms of intention to have
been proven by the State. The State suggested that this was what
generally known as the proverbial
“
lapsus
linguae/slip of the tongue.”
It seems
that there is no need to belabour this point except to say that in
looking at the circumstances of the case, there is no
evidence that
the appellant had the direct intention to cause death i.e. looking at
the area on which the deceased was stabbed
and the number of times he
was stabbed. The only inference that can be drawn is that the
appellant is guilty of murder with
dolus
eventualis
.
[6] This, however, cannot
justify any interference with the conviction, suffice to correct the
verdict to read
“guilty as charged: with
dolus
eventualis
”
, in which instance then the
conviction ought to stand.
[7] The appellant was 20
years at the time of the commission of the offence. He has two
previous convictions: one of robbery for
which he was sentenced to
three months on 30 August 2002 and one of theft for which he was
sentenced to six months imprisonment
on 9 December 2012. The only one
which may be relevant in that it has an element of violence is that
of robbery committed during
2002. But this was committed when the
appellant was at least 15 years of age as the State correctly pointed
out which can be safely
ignored. The appellant was a second year
student at a Technical College. At the time of the conviction and
sentence his girlfriend
was pregnant with their child. As the
evidence indicated he does not drink alcohol or at least he was not
under the influence of
alcohol on this fateful night which shows that
he is a good person who can do without drugs and their negative
effects on society
in general.
[8] It was submitted on
behalf of the appellant, that all these factors taken cumulatively
were compelling and substantial circumstances
which justified the
imposition of a lesser sentence than the prescribed fifteen years.
The State conceded that much. I agree with
both counsel.
[9] The appellant was
convicted and sentenced on 10 March 2006. He has to date already
served five years of the fifteen years imposed.
In my view, as
suggested by the State and accepted on behalf of the appellant, a
term of imprisonment of eight years will be appropriate
and just in
the circumstances.
[10] In the light of the
conclusion I have come to in the above paragraph, the appeal ought to
succeed.
[11] In the circumstances
the following order is made:
ORDER:
The appeal on
sentence succeeds.
The sentence of the
Regional Court dated 10 March 2006 is set aside and substituted with
the following:
“
The
accused is sentenced to 8 (eight) years imprisonment”.
3. In terms of section
282 of the Criminal Procedure Act sentence is antedated to 10 March
2006.
_______________
B.C.
MOCUMIE, J
I
concur.
_______________________
C.H.G.
VAN DER MERWE, J
On behalf of appellant:
Adv. J.S. Makhene
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
On behalf of respondent:
Adv. J.H.S. Hiemstra SC
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
BCM/sp