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[2012] ZAFSHC 97
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Marais v S (A32/11) [2012] ZAFSHC 97 (17 May 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A32/11
In the appeal between:-
MICHAEL MARAIS
…...............................................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
MOLEMELA, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
7
MAY 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
17 MAY 2012
_____________________________________________________
[1] On 13 January 2010,
the appellant was convicted by the Magistrate in the Regional Court
held in Bloemfontein, on a charge of
murder.
[2] On 22 April 2010 the
appellant was sentenced to 15 (fifteen) years imprisonment by the
same court.
[3] The appellant then
applied for leave to appeal only against sentence, which application
was dismissed by the Court
a quo
.
[4] On petition to the
Judge President of the Free State High Court, the appellant having
petitioned the High Court for leave to
appeal against sentence only,
was duly granted such leave.
[5] After having read the
record, we informed both Mr. Harrington, on behalf of the State and
Mr. Tshabalala, on behalf of the appellant,
to also prepare arguments
on whether the conviction of the appellant on a charge of murder, is
a proper conviction.
[6] During argument, both
legal representatives argued that the conviction of the appellant on
murder could not be supported and
that at the very least, the
appellant should have been convicted of culpable homicide. They,
however, differed as to how the court
should come to such a
conclusion.
[7] In the light of the
above, it was not in dispute that the court should exercise its
review powers in terms of
section 304(4)
of the
Criminal Procedure
Act 51 of 1977
to also consider whether the conviction was proper.
[8] It is evident from
the record that, at the commencement of the proceedings in the Court
a quo
, the appellant through his legal representative, made a
plea explanation in terms of
Section 115
of the Criminal procedure
Act, where he raised private defence as his defence.
[9] The State led the
evidence of three witnesses, being Eddie Pietersen, Yvonne Morgan and
Vanessa Talmakis.
[10] The common
characteristic of the evidence of all three state witnesses is that
none of them saw what happened at the time when
the appellant stabbed
the deceased and that Eddie, the deceased and the appellant were all
drunk.
[11] The only evidence is
that of the appellant, who testified as follows:
11.1 Briefly, he stated
that he had an argument with a certain Eddie Pietersen, which let to
both of them fighting in the street.
The deceased grabbed both his
arms from behind and he was stabbed on the back of his right shoulder
with a broken bottle. He ran
away from the scene to his parental home
and both Eddie and the deceased chased him. He went into the house
and took a knife. When
he went out, Eddie, the deceased, the
appellant’s cousin, Yvonne, and a lot of other people were at
the gate. He went to
the gate and whilst trying to explain to his
cousin what happened to him, the deceased tried to stab him again
with a broken bottle
and he stabbed the deceased once with his knife
and the deceased fell down.
[12] Under
cross-examination the appellant made the following concessions:
12.1 That he stabbed the
deceased with his knife, because he was angry and he wanted to take
revenge on being stabbed with a broken
bottle.
12.2 That there was no
need for him to go out of the house after taking a knife.
12.3 That his life was
not in danger at the time that he stabbed the deceased.
12.4 That he wanted to
stab the deceased in the face, but the deceased shifted and he
stabbed him on the chest.
12.5 That he could have
pushed the deceased’s hand and ran away, as an alternative to
stabbing the deceased.
12.6 That he ought to
have foreseen that when he stabbed someone in the direction of his
upper body, it could cause his death.
12.7 That he felt bad
about the whole incident as he did not know that he would stab him at
such a delicate part of the body.
[13] The learned writer,
Jonathan Burchell, in his book,
Principles of Criminal Law
,
Third Edition, defines private defence as follows at p. 233:
“
A person who
is the victim of an unlawful attack upon person, property or another
recognised legal interest may resort to force
to repel such attack.
Any harm or damage inflicted upon an aggressor in the course of such
private defence is not unlawful.”
The elements of private
defence arising therefrom are that the attack must be imminent,
unlawful and must not have been completed.
The defence must be
necessary to avert the attack, a reasonable response to the attack
and directed against the attacker.
[14] Now, the first
question to be decided is whether, in the light of the appellant’s
own evidence, it can be said that he
acted in private defence.
14.1 The evidence of the
appellant negates the basis of private defence on the following
grounds:
14.1.1 The evidence that
he stabbed the deceased because he was angry clearly negates the fact
that he was responding to the attack.
14.1.2 His evidence that
he had pushed the deceased’s hand at the time that he stabbed
him, negates the fact that the attack
was imminent. He had already
succeeded in warding off the attack.
I consequently cannot
find that the appellant succeeded in his defence, namely, private
defence.
[15] The next question to
be determined is whether the appellant should have been convicted on
a charge of murder or culpable homicide.
15.1 On the evidence
before the court, there is nothing that suggests that the appellant
had the intention (whether in the form
of
dolus directus
,
dolus indirectus
or
dolus eventualis
) to cause the
death of the deceased.
15.2 Indeed, his own
evidence is that he never intended to stab him on the chest, but was
aiming for his face. What led him to stab
in the chest is that the
deceased took an evasive step when he stabbed him.
15.3 He also conceded
that he ought to have foreseen that when he stabbed him in the
direction of his upper body, that could cause
his death. This clearly
illustrates that he acted negligently and not intentionally.
In the premises, I find
that the appellant should have been found guilty of culpable
homicide.
SENTENCE
[16] Both legal
representatives conceded that, should the appellant be convicted of
culpable homicide, the appropriate sentence
to impose is that of 3
(three) years imprisonment.
[17] The mitigating
factors in this matter are the following:
17.1 The extreme
provocation of the appellant by both Eddie and the deceased, who
stabbed and chased him up to his home.
17.2 The intake and
effect of alcohol on both the appellant, the deceased and Eddie.
17.3 The youthfulness of
the appellant. On the date of the incident, it was his 21
st
birthday.
17.4 The appellant is a
first offender.
17.5 The appellant showed
some measure of remorse and he testified that he felt very bad about
what had happened.
17.6 The appellant spent
some time in custody awaiting trial.
I, however, find that,
weighing the above factors against the seriousness of the crime, the
prevalence thereof and the interests
of the community, the
appropriate sentence should be 4 (four) years imprisonment.
[18] I would therefore
make the following order:
18.1 The appeal succeeds.
18.2 The order of the
Court
a quo
is set aside and substituted with the following
order:
18.2.1 The accused is
found guilty of culpable homicide.
18.2.2 The accused is
sentenced to 4 (four) years imprisonment.
18.3 The said sentence is
antedated to 22 April 2010, being the date on which the sentence was
passed in the Court
a quo
.
_________________
N.W. PHALATSI, AJ
I concur and it is so
ordered.
_________________
M.B. MOLEMELA, J
On
behalf of appellant: Mr. L.M. Tshabalala
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. W.J. Harrington
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
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