Mehloane v S [2009] ZAFSHC 39 (26 March 2009)

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[2009] ZAFSHC 39
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Mehloane v S [2009] ZAFSHC 39 (26 March 2009)

FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A113/07
In
the appeal between:
PHILLIP
XHALISILE MEHLOANE
Appellant
and
THE
STATE
Respondent
CORAM:
CILLIé,
J
et
VAN
ZYL, J
HEARD
ON:
23
FEBRUARY 2009
_____________________________________________________
JUDGMENT BY:
VAN
ZYL, J
DELIVERED ON:
26
MARCH 2009
[1] The appellant was
charged with culpable homicide in the Regional Court, Welkom. It is
alleged that he unlawfully assaulted
his wife, Maria Malefu Diphooko
(hereinafter referred to as “the deceased”) on 3 June 2000, as a
result of which assault she
died on 8 June 2000. He pleaded not
guilty, but was subsequently convicted and sentenced to five yeas
imprisonment.
[2] The appeal is
directed against both the conviction and the sentence.
[3] At the outset of the
trial, the appellant made the following formal admissions in terms of
section 220 of the Criminal Procedure
Act, 51 of 1977 (hereinafter
referred to as “the Act”):
3.1 He admitted the
identity of the deceased.
3.2 He admitted the
correctness of the contents of the post-mortem report, including the
cause of death as being a head injury.
3.3 He admitted that the
deceased did not suffer any further injuries from the scene of the
incident up until the post mortem was
performed.
3.4 He admitted that the
deceased died on 8 June 2000.
[4] The State presented
the evidence of two witnesses. Sagaria Phukuntsi, the appellant’s
brother-in-law, testified that on the
date of the incident he was
staying at the appellant’s house. The appellant left for work at
3h00 in the morning, but later
returned home at 04h00 the same
morning. The deceased opened the door for him. She enquired from
him why he did not go to work,
whereupon he responded by saying that
the car with which he was supposed to have travelled to work, left
him behind. An argument
ensued between the appellant and the
deceased, but eventually everybody went to sleep again. At 06h00 the
same morning, the witness
woke up and went to the outside toilet,
when he again heard an argument between the appellant and the
deceased. The deceased was
again enquiring from the appellant why he
did not go to work. Whilst the witness was still outside, the
deceased called him by
calling “Opodi”, which means “brother”.
When he entered the room in which the appellant and the deceased
were, the deceased
was lying on her back on the bed and she was
bleeding from her head. He enquired from the accused whether their
argument resulted
in the deceased being injured, but the appellant
did not respond. At the time when the witness entered the room, he
saw the accused
putting a spade under the bed. The witness formed
the impression that the appellant or the deceased had fallen on the
spade.
According to the witness, the appellant was sober. The
appellant then called an ambulance. The ambulance arrived and took
the
deceased to hospital, where she died five days later.
At the time of the
incident, the only other person in the house was a 10-year old child.
Three other ladies arrived after the
incident.
[5] Evodia Khumalo, one
of the neighbours of the appellant and the deceased, was the second
State witness. The morning of the incident
another neighbour came to
her and said that they should go to the deceased’s house. On their
arrival, they found the deceased
on the bed and there was blood on
her head and her chest. The appellant was also present. She asked
him what had happened, when
he responded that it was dark in front of
his eyes and that he injured her. The appellant appeared to be
shaken and scared. The
appellant told her that when he arrived at
his work that morning, he found that somebody had replaced him and he
was told to go
home. According to what the appellant told her, the
deceased did not believe him that he was in fact at his place of work
that
morning.
During cross-examination
it was put to the witness that the appellant denies her allegation
that he told her that he injured the
deceased. She, however,
confirmed that he had said it and she also confirmed that he said it
freely and voluntarily in response
to her question of what had
happened.
[6] After the closing of
the case for the State, the legal representative of the appellant
applied for his discharge in terms of
section 174 of the Act. This
application was refused. The defence case was then closed, without
the accused testifying.
[7] The Court
a
quo
found that it is the only reasonable inference that the appellant was
responsible for the death of the deceased and therefore concluded

that the State proved its case beyond reasonable doubt.
[8] With regard to the
appeal against the conviction, Mr. Fourie, appearing on behalf of the
appellant, conceded that he cannot
advance any proper submissions in
favour of the merits thereof. This concession was, in my view,
correctly made. The Court
a
quo
found the state witnesses to be truthful and reliable witnesses, a
finding which cannot be faulted. The appellant was the only
person
in the presence of the deceased when she was injured, there was a
quarrel between them, the appellant was at the time in
possession of
a spade, he made an admission to the state witness that he injured
her and the nature of the deceased`s injury reflected
on the post
mortem report, corresponds with the type of injury one would expect
when inflicted by a spade. This clearly constituted
a
prima
facie
case against the appellant, despite which the appellant elected not
to testify. This was a very unfortunate choice. In the
circumstances
and in the absence of any explanation by the appellant
as to what had happened, the conviction was correctly made and has to
be
confirmed.
[9] The appellant elected
to testify under oath in mitigation of sentence. He testified that
he is 50 years of age and was married
to the deceased for
approximately 10 years. They had what he described as a “normal
marriage”. They had one child, born out
of wedlock, who was at the
time 17 years of age, attending grade 12 at school and staying with
his mother, although financially
he was caring for the child. He also
testified that should he be imprisoned, nobody else will care
financially for the child, as
his mother is only a pensioner. The
appellant is employed at a security firm, which employment he has
been holding for the past
three years. His gross income is R2 700,00
and his net income is R2 500,00.
The family of the
deceased does not bear a grudge against him as a result of the
deceased’s death. However, he himself feels
depressed as a result
of the death of the deceased. The appellant also testified that he is
remorseful about the death of the deceased.
He has since remarried
by means of a customary marriage and he testified that he received
the blessing of the deceased’s family
before he remarried. He does
not have any children with his new wife.
With the regard to the
possible imposition of a fine, he testified that his employer will
assist him with the payment of a fine
and that he foresees that he
will be able to collect R2 000,00.
This concluded his
evidence.
[10] The Court
a
quo
in
her judgment on sentence referred to the aforesaid personal
circumstances of the accused, the seriousness of the offence and
the
interest of the community. In her reference to the seriousness of
the offence, she described the offence as one of domestic
violence
and stated that domestic violence is increasing and that many women
are seriously abused or lose their lives as a result
of domestic
violence. She then also emphasized the rights of women and the
seriousness of an assault when it is committed on women.
The Court
a
quo
then concluded that a wholly suspended sentence will be too lenient,
that a fine cannot be equivalent to the loss of a life and
that
therefore a term of direct imprisonment is the only appropriate
sentence.
[11] Mrs. Mosetlha, on
behalf of the State, submitted that the trial Court considered all
relevant factors in respect of sentence
in a balanced way and that
considering this Court’s limited entitlement to interfere with an
imposed sentence on appeal , the
sentence should be confirmed.
[12] Mr. Fourie, on the
other hand, submitted that the Court
a
quo
overemphasised the fact that the deceased’s death was a result of
violence between a husband and his wife and that this resulted
in the
imposition of a sentence that is shockingly harsh and inappropriate.
He suggested that a wholly suspended sentence or a
fine coupled with
a suspended sentence, would be appropriate in the circumstances of
this case.
[13] The circumstances of
this matter are peculiar and quite unique. Although It is evident
that there in fact was an argument
between the appellant and the
deceased before she was injured, there is no apparent history of
violence between the two of them.
After the infliction of the injury,
the appellant was in fact the one who phoned the ambulance and who
was, according to the evidence,
shocked by the incident. It
therefore remains a mystery as to what really happened between them
that led to the appellant inflicting
the injury on the deceased.
[14] On the facts of this
matter, I have to agree with Mr. Fourie that the Court
a
quo
overemphasized the fact that the violence was inflicted by a husband
upon his wife. This appears to have been an isolated incidence
of
violence between them and we do not know what really happened that
led to the appellant turning to violence. Furthermore, it
appears
that the Court
a
quo
did
not attach any real or effective weight to the appellants remorse -
not only did he verbalise his remorse under oath, but his
conduct
after the incident is in my view also a reflection of his remorse.
[15] The aforesaid and
the fact that the appellant is a first offender, is in my view
indicative thereof that the appellant can
not be labelled as an
inherently violent person. This was clearly an isolated incident and
the appellant will probably never revert
to violence again. He
cannot be considered to be an evil and vicious person against whom
society should be protected. Even the
deceased’s family has
forgiven him. His personal circumstances also speak of a steadfast
way of living.
[16] Without at all
detracting from the seriousness of the offence and after a balanced
consideration of the elements of sentencing,
I am of the view that
the imposed sentence is in fact shockingly harsh and inappropriate
and justify interference.
[17] This matter appears
to be an appropriate instance where the appellant should be punished
without being taken out of society.
He is a useful and contributing
member of society. I am therefore of the view that a stiff fine as an
alternative to direct imprisonment,
is an appropriate sentence in
this instance. I am furthermore of the view that in order to ensure
that the appellant refrain from
similar conduct in future, a
suspended term of imprisonment should be imposed in order to serve as
a proverbial sword over the
appellant’s head.
[18] Accordingly the
following order is made:
1. The appeal against
the conviction is dismissed and the conviction is confirmed.
2. The appeal against
the sentence is upheld and the imposed sentence is set aside and
substituted by the following:
“
R5000,00
(five thousand rand) or 3 (three) years imprisonment. A further 5
(five) years imprisonment, wholly suspended for 5 (five)
years on
condition that the accused is not convicted of any crime which
involves violence against the body of another person committed
during
the period of suspension.”
The aforesaid sentence
should be considered to have been imposed on 22 January 2007.
____________
C. VAN ZYL, J
I
concur.
____________
C.B. CILLIé, J
On behalf of the
appellant: Adv. J.A. Fourie
Instructed by:
Vermaak en Dennis
BLOEMFONTEIN
On behalf of the
respondent: Adv. G.D. Mosetlha
Instructed by:
Director Public
Prosecutions
BLOEMFONTEIN
/sp