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[2011] ZAFSHC 106
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Jopson v S [2011] ZAFSHC 106 (30 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A19/2011
In the appeal between:
BRENDAN JOPSON
….................................................................
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM:
VAN
ZYL, J
et
LEKALE, AJ
_______________________________________________________
JUDGEMENT:
LEKALE, AJ
_______________________________________________________
HEARD ON:
6
JUNE 2011
_______________________________________________________
DELIVERED ON:
30 JUNE 2011
_______________________________________________________
[1] The appellant was
convicted of culpable homicide by the regional court sitting at
Sasolburg and was, eventually, sentenced on
the 1
st
July
2010 to 7 years imprisonment of which two years imprisonment was
conditionally suspended.
[2] The appellant now
approaches this court on appeal against both the conviction and the
sentence, having successfully petitioned
this court for leave to
appeal in terms of
section 309C
of the
Criminal Procedure Act, no. 51
of 1977
as amended (the “CPA”).
[3] On the date of the
incident which gave cause to the trial, the appellant visited an
automatic teller machine (ATM) located inside
the shop at the filling
station in Deneysville to draw cash. He was in a hurry as he needed
to settle his bill with the restaurant
where he had had dinner. The
deceased was ahead of him at the ATM. The deceased delayed for some
considerable time in finalizing
his transaction on the ATM. An
argument eventually broke out between the appellant and the deceased
which deteriorated into a physical
altercation. The appellant,
eventually, knocked the deceased down with fists. The deceased fell
on his back and fractured his skull.
He later died in his bed that
night and the post mortem report attributed his death to brain or
subdural hemorrhage due to head
injury.
[4] The trial court based
its findings of fact mainly on the video footage depicting the
altercation between the appellant and the
deceased. The said footage
was also made available to us for assistance in determining the
appeal.
[5] In returning a
verdict of guilty the court below found, on the basis of the video
footage, that the appellant was the one who
was aggressive and that
the deceased did not hit or attempt to hit him. The trial court,
further, found that the deceased died
as a result of the punches
directed at his body by the appellant and that there was nothing to
indicate that the deceased was aggressive
or that he directed any
punches at the appellant.
[6] In the Heads of
Argument and verbal submissions made before us, Mr Van Wyk, appearing
for the appellant, takes issue with the
observations made by the
trial court. He submits that it is clear from the footage that the
deceased directed a blow at the appellant
and that the appellant
actually struck the deceased once in the chest and the nose.
[7] A look at the video
footage reveals that the deceased was talkative and playful to the
extent of being obnoxious when he transacted
at the ATM. The deceased
is further depicted gesticulating in the direction of the appellant
and extending his hand towards him
as if pushing him. He is also
shown throwing blows, which do not reach the target, at the appellant
while being agile on his feet
contrary to the findings of the court a
quo
. The video footage shows that the deceased taunted the
appellant to the extent of being provocative by
, inter alia,
talking into his face.
[8] The video footage
furthermore shows the appellant reacting to the deceased’s
moves with kicks to the deceased’s
feet and three fast and
stinging punches with his left hand. The deceased, on his part, tries
to hit the appellant without success
as the latter appears to be
faster and more accurate in his deliveries. The interaction between
the two resembles a kickboxing
match with the parties exchanging
blows. The footage is not audio-visual and, as such, the only
evidence pertaining to verbal exchanges
between the deceased and the
appellant emanates from the appellant.
[9] Mr Van Wyk further
contends that the deceased’s death was not reasonably
foreseeable and that the appellant is, at the
very most, guilty of
common assault because he exceeded the bounds of self-defence.
[10] The question, on a
charge of culpable homicide based on unlawful assault, is whether or
not the accused, in the position of
the appellant, reasonably ought
to have foreseen death ensuing as a result of the assault. (See
S
v VAN AS
1976 (2) SA 921
at 92H).
[11] In
casu
the
question is whether or not a reasonable man in the position of the
appellant would have foreseen that the deceased would fall
on his
back and hit his head against the hard ceramic floor, thereby,
injuring his head with the result that he would sustain fatal
brain
hemorrhage.
[12] The evidence of the
pathologist who performed the post mortem is apposite on this
question as correctly submitted by Mr Van
Wyk. Dr Humphries, an
experienced district surgeon of more than 30 years, conceded under
cross examination that, although the punch
which the appellant
delivered to the deceased’s nose was heavy enough to fracture
the bone, it was most probably not reasonably
foreseeable that the
deceased would die. He further volunteered that a closer look at the
video footage gives the impression that
“
the fall was more
on the shoulders but there was a whiplash on the ground”
.
[13] The cashier who
testified before the trial court and witnessed the encounter between
the deceased and the appellant, as correctly
pointed out by Mr Van
Wyk, also did not see the urgency of intervening immediately after
the deceased fell to be ground. If the
assault was vicious and brutal
one would reasonably have expected her to have intervened sooner
rather than later.
[14] In the present
matter the possibility of death ensuing appears, in our view, to have
been so remote that it could not have
reasonably possibly been
foreseeable to a reasonable man in the appellant’s position
regard being had to human experience.
Fist fights similar to the one
depicted on the video footage do not normally result in death.
[15] Mr Mohlala, for the
state, contends that assault with intent to do grievous bodily harm,
not common assault, would be a competent
verdict in the event of the
court finding cause to interfere with the conviction. Mr Van Wyk does
not quarrel with this contention
and concedes that fists may be used
and are, actually, known to cause serious bodily harm.
[16] The court is
satisfied from the video footage that the appellant, most probably,
intended to injure the deceased “
really seriously”
regard being had to the kicks executed and the successive punches to
the deceased’s upper body inclusive of the head. In
our view
the appellant probably wanted to neutralize the deceased so as to
ensure that he left the shop safely without fear of
further attacks
from the deceased. In this regard it should be noted that the
appellant testified that the deceased threatened
him with violence by
saying that he should wait until they got outside. (Compare
S v
DIPHOLO
1983 (4) SA 757
(T) at 760.)
[17] On sentence the
parties are in agreement that a prison sentence without an option of
a fine is not appropriate in the circumstances
of the present matter.
Mr Van Wyk, further, submits that the 70 days that the appellant
served in prison before he was released
on bail pending appeal should
be taken into consideration by antedating the sentence to run from
the 1
st
July 2010.
[18] We are in respectful
agreement with the parties regard being had to the appellant’s
personal circumstances and the circumstances
surrounding the
commission of the crime herein inclusive of the measure of
provocation evident from the video footage.
ORDER:
[19] In the result the
appeal succeeds and the judgment and sentence of the court below are
set aside and replaced with the following:
“
1. The accused
is found guilty of assault with intent to cause grievous bodily harm
in terms of
section 259(a)
of Act no. 51 of 1977 as amended;
2. The accused is
sentenced to R6 000,00 fine or 9 months imprisonment of which R4
000,00 or 7 months imprisonment is suspended
for 5 years on condition
that the accused is not found guilty of assault with intent to do
grievous bodily harm committed during
the period of suspension.”
[20] The above sentence
is antedated to run with effect from the 1
st
July 2010.
_________________
L. J. LEKALE, AJ
I concur.
________________
C. VAN ZYL, J
On
behalf of the appellant: Mr. R van Wyk
Instructed
by:
SASOLBURG
On
behalf of the respondent: Adv. M A Mohlala
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/eb