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2012
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[2012] ZANCHC 24
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S v Bowale (K/S 47/07) [2012] ZANCHC 24 (25 May 2012)
Reportable: Yes / No
Circulate to Judges:
Yes /No
Circulate to
Magistrates:Yes / No
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
HIGHCOURT, KIMBERLEY
CASE NO: K/S 47/07
HEARD: 12/03/2012
DELIVERED:25/05/2012
In the matter
between:
HOSEA SHIMANYANA
BOWALE
…............................................
APPELLANT
and
THE STATE
….......................................................................
RESPONDENT
CORAM: WILLIAMS J,
PHATSHOANE J
et
HUGHES-MADONDO AJ
JUDGMENT
HUGHES-MADONDO AJ
The appellant Mr Hosea
ShimanyanaBowale, was charged as follows:
Count 1 - Robbery with
aggravating circumstances;
Count 2 - Attempted
Murder;
Count 3–
Kidnapping;
Count 4 and 5 - Illegal
possession of firearms and ammunition (respectively).
On 28 November 2007 he
was convicted in the Upington Circuit Court on all counts and was
sentenced to terms of imprisonment of fifteen
years on count 1, seven
years on count 2, five years on count 3 and four years each on counts
4 and 5. The sentences in count 3,
4 and 5 are to run concurrently
with the sentence in count 1, appellant would serve effectively a
term of 22 years imprisonment.
He applied for leave to appeal against
his convictions and sentences. Leave to appeal was granted by,Olivier
J of this Court, in
respect of the attempted murder conviction(count
2)but leave was refused in respect of the other counts.
On 19 October 1997 the
complainant, Johan George Abrahams Stadleraccompanied by Ivan
Strauss, were on their way to Stadler’shome
in Koms, Northern
Cape Province.They were returning from Keimoes.Plus minus 800meters
away from his home they encountered two
unknown menwho indicated
that Stadler (the driver) should stop, which he did. The men said
that they were looking for water as
the radiator of their vehicle
had overheated. The one closest to him grabbed him by the chest
through the open window of hisbakkie.
He managed to grab his
assailant’s hands and held them tightly. He asked what they
wanted of him but before they couldrespondone
of theassailants
managed to pull the keys from the ignition.
Mr Strauss had been
seated at the back of the bakkiebutwasbrought to the driver’s
side of the vehicle by the other assailant
who then hit Stadler with
a pistol on the left side of his head. The complainant sustained an
open wound to the head.Stadler
and Strauss were huddled in the front
of the single-cab bakkie together with the two assailants, one of
whom was driving. This
bakkiebelonged to a friend of his, Mr
Olivier. They drove for a short while and came across another two
men who joined them.
The victimswere ordered out of the bakkie in
afield. Stadler was made to sit against a tree, the assailants tied
his hands behind
his back with his tie, gagged him with a piece of
cloth torn from his pair of trouser, took a chain and tied him
against the
tree.He was then left in the care of one of the
assailants who was armed with a knife. The threeothers took Strauss
and proceededwith
the bakkiein the direction of Stadler’s
home.
After a while they
returned and Stadler was untiedfrom the tree. He was placed in the
bakkie and they drove along with him and
parked about 200 metres
away on a farm road.They were in possession of his bakkie which they
must have taken from his home. He
was taken to hisbakkie where he
noticed his safe at the back which was stolen from his home.They
demanded that he open the safe.
He told them that he had forgotten
the code.They nevertheless offloaded the safe and ordered that he
open it, which he failed
to do. As a result he was hit again on the
right side of his head with the firearm. This resulted in yet
another open wound.
In addition he was stabbed by one of the
assailants three times, twice on the back of his right shoulder.
These were not severe
wounds as the jacketthat he wore acted as a
buffer. He was also stabbed once on his left buttock. Stadler
conceded that these
wounds were not life threatening. He was again
instructed to open the safe butfailed. One of the robbers shot him
through the
foot.
As regards the
shooting in his foot the complainant proffered the following
explanation:
“
STADLER:
Nee die een wat- dis ‘n ander een wat my geskiet het, ek weet
ook nie, ek kan nie mooi gesien het nie want dis donker,
ek weet glad
nie wie het my geskiet. Maar dit was- dit was nie ‘n baie groot
pistol nie want hy het nie so ‘n vreeslikegroot
gat deur my
voet gemaak nie. ...Hy het my nou dwarsdeur die voetgeskiet.
MNR OLIVIER
[prosecutor]: Wat gebeur toe nou verder nadat hulle vir u deur die
voetgeskiet het?
STADLER: Toe het
daai- een het vir my gesê hy sal my kop afsny en hy sal my
doodskiet. Toe sê ek vir hulle maar dan
moet hulle maar
doodskiet of kop afsny en maak wat hulle wil, maar ek kan nie daardie
ding oopmaak nie. Nou ja toe het hulle my
daardie bakkie wat hulle
van my gevat het,..., toe het hulle my met ‘n nylon tou wat in
die bakkie was, het hulle my voor
aan die stuurwiel van daardie
bakkievasgemaak en toe het hulle die bakkie, die kluis op daardie
bakkiegelaai wat die kappie op
was, en toe het hulle vertrek
.
...en toe het ek gesukkel en toe het ek lateraan my touelosgekry
wat om my handewas. Nou ja toe het ek die bakkie, sy sleutels was
toe
in die bakkie gewees nog, toe het ek die bakkiegevat en toe het ek
gery tot in Keimoes. ...na ons Pastoor toe ...hom toe nou
gesê
wat gebeur het. ...en toe is ons daarvan af na die Polisiestasie toe
en daar verklarings afgelê en daarvan af
is ek na die hospital
toe waar hulle my opgeneem heten die wondetoegewerk het.... Keismoes
se hospital...”
The appellant who was
legally represented, pleaded not guilty and stated that he was not
in Koms or near Koms or in the Northern
Cape on the day in question,
that he was in fact in Warmbaths, Limpopo. However one of his
accomplices, who had already been
convicted and sentenced in a
separate trial,HermanusMalgas, placed the appellant on the scene of
the crime as a participant who
was armed with a firearm on the day
in question. Evidence by Captain Du Plessis of the SAPS, a
fingerprint expert, confirmed
that the appellant had been at
Stadler’s home as his fingerprint was lifted from a safe in
Stadler’s home. The trial
court therefore correctly concluded
that the appellant was part and parcel of the group that committed
the offences and that
they acted with a common purpose.
In the
appellant’sappeal papers in respect of the conviction on count
2, attempted murder, he states that he was convicted
without the
state adducing any evidence from the doctor who treated the
complainant to determine the severity of the injuries
and to infer
the intent. Incidentally, Olivier J granted the appellant leave to
appeal in respect of this specific count only,
his reasonsareset out
as follows:
“
[18]
I am, however, concerned about the conviction on count 2, that of
attempted murder. No medical evidence was presented. It appears
that
blunt force (two blows with a fire arm) to the side of the
complainant’s head necessitated stitches. The complainant
was
also stabbed, twice on the back of his shoulder and once on his
buttock. According to him his clothes prevented the stab-wound
on his
back from penetrating very deeply.
[19] Furthermore the
complainant was shot in the foot. The evidence appears to be that the
shot was aimed at complainant’s
foot.
[20] In my view
there is a reasonable possibility that a Court of appeal may find
that these actions [that is the injuries inflicted
on Stadler]
constituted an assault with intend to cause grievous bodily harm, but
not attempted murder.”
The trial court in
dealing with this count went on as followings:
“
(I)t
is argued by the state that the injuries thatStadler suffered were
not that serious, they were slight injuries. Stadler himself
testified that because he had a jacket on, probably that’s why
the knife could not penetrate him that much. I do not believe
that
it’s the injuries only that [have] to be taken into
consideration.”
The trial court then goes on to make mention of the fact that the
appellant and his accompliceswere armed two firearms and knives.
The
injuries so sustained are described and the court concludes:“
I
am satisfied that the assault on Mr Stadler was actually directed in
killing him. Further that they even [though] he was injured,
they
tiedhim to a car, to the steering wheel of the car, they did’nt
even leave him to maybe go and look for help.They wanted
him to stay
there, then if he bleeds, he bleeds to death. And I am satisfied that
really, the assault was intended to kill Mr Stadler.”
It is trite that a
person can be found guilty of attempting to commit a crime if he or
she had the intention to commit that particular
crime.
SEE S v Du
PLESSIS
1981 (3) SA 382
(A) at 400D
where the Court stated that
“
... to constitute an attempt, there must at the very least
have been a formulated intention on the part of the accused to
commit
the offence.”
In my view to support
a conviction for attempted murder in this matter, there needs to be
an appreciation that there is some risk
to life involved in the
action contemplated, coupled with recklessness as to whether or not
the risk is fulfilled in death.
SEE R v HUEBSCH
1953 (2) SA 561
(A) at 567H
.
Thus the question to
be addressed would be whether the appellant together with his
accomplicesin these circumstances had the intention
to kill the
complainant. Adv J Rosenberg, for the state, argued that yes indeed
their actions were such that the injuries inflicted
upon Stadler,
and I may add their location on the body,as well as the fact that
they left him tied to the steering wheel of the
bakkie, could only
be construed as an intentto leave him for dead. I disagree with this
proposition.
On examination as to
when exactly the injuries were inflicted, it is noted that the
initial blow with the firearm to Stadler’s
head was struck
whilst he was still in thebakkie having just tried to ward off an
attack by one of the assailants who had removed
the keys
fromthevehicle. This was done in an effort to subdue him. The second
blow to his head was inflicted when he was unable,or
maybe
unwilling, to open the safe. At that stage he was also stabbedthree
times and shot in his foot. Of significance is the
fact that
thereafter he was threatened by one of the assailants who said he
“
sal my kop afsny and hy sal my doodskiet
.” After
this threat though there were no further assaults. They tied him to
the steering wheel with the keys to the vehicle
still in the
ignition. The vehicle was parked 200 metres away on a farm road.
From the aforesaid
scenario I do not get the sense that the appellant and his
accomplices’quest was to kill Stadler. The
assault was clearly
inflicted to punish him as he had failed to accede to his
assailants’ demands to open the safe. Why
then would they
threaten to kill him after the assault and instead of following
through with their threat tie him to thesteering
wheel of his
vehicle with the keys in the ignition.
In the face of the
evidence before us I cannot agree with Mr Rosenberg’s
submission that the injuries were inflicted with
an intention to
result in Stadler’s death. No evidence,medical or otherwise,
was placed before the trial court from which
it could be inferred
that the injuries were severe and life threatening.The state in
argument also seemedto suggestthat the injuries
suffered by Stadler
were not serious. Stadler’s own testimony of the woundswas to
the effect that they could have been
worse, had he not had ajacket
on. In addition after he freed himself he drove to the pastor; went
to make statements at the SAPS;
then drove himself to Keismoes
hospital where he was eventually attended to.Clearly this conduct
cannot be construed as that
of a person who had sustained life
threatening injuries.
The conclusion that I
come to in these circumstances is that there was a lack of the
requisite intention to commit the crime of
attempted murder. This is
so even though the assault on Stadlerwas unlawful and done with the
clear intent to harm his body and
impair its integrity in a grievous
manner.
To summarise I make
the following observations; if the robbers wanted Mr Stadler dead
the following may have happened:
16.1 The shooter would
have shot him in his upper body and
nothis foot;
16.2 The opportunity
was there to inflict on him penetrating and life threatening injuries
with the knife but fortunately only superficial
injuries were
inflicted;
16.3 The criminals
could have taken him deeper into the field and tied him up in such a
way that he could not free himself and leave
him to die. Instead they
left him where he could be found, if he could not free himself, with
a means of transport readily available.
The benefit of the
doubt must accrue to the appellant. On the evidence,the state has
only proven that the complainant was assaulted
with the intent to do
grievous bodily harm.
Having come to the
conclusion that the appellant should have been convicted on count 2
of assault with the intent to do grievous
bodily harm, we are
entitled to interfere with the sentence imposed. The appellant’s
accomplice referred to herein above
was sentenced to four years
imprisonment for the exact same conviction. We are of the opinion
that four years imprisonment for
count 2, assault with intent to do
grievous bodily harm, would be appropriate in the circumstances
because their degree of participation
was the same and they acted
with a common purpose.Their personal circumstances are also more or
less the same.
In the circumstances
the following order is made:
The appeal against
the conviction and sentence in respect of count 2 (attempted murder)
is upheld.
The conviction and
sentence in respect of count 2 (attempted murder)areset aside and
replaced with the following:
“
The
accused is convicted of assault with intent to do grievous bodily
harm and sentenced to four (4) years imprisonment.”
In terms of
section
282
of the
Criminal Procedure Act, 51 of 1977
, this sentence is
antedated to 28 November 2007.
___________________________________
W HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT
osts of such procee
I concur
_________________________________
WILLIAMS
JUDGE
NORTHERN CAPE HIGH
COURT
I concur
_________________________________
PHATSHOANE
JUDGE
NORTHERN CAPE HIGH
COURT
On behalf of the
Appellant
: Adv PJ CLOETE (LEGAL AID BOARD)
On behalf of the
State
: Adv J ROSENBERG (DPP)