S v Nyathi (K/S 58/08) [2009] ZANCHC 1 (3 February 2009)

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[2009] ZANCHC 1
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S v Nyathi (K/S 58/08) [2009] ZANCHC 1 (3 February 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: K/S 58/08
Delivered:
03-02-09
In
the matter between:
STATE
VERSUS
FREDDIE
BOITUMELO NYATHI
JUDGMENT
Tlaletsi
J:
Introdudction
[1]
The
accused in this matter is Freddy Boitumelo Nyathi an adult male aged
21 years and a resident of No:, Mataleng, Barkly-West.
[2]
The
accused is arraigned before this court on a charge of murder. The
allegations in the charge are that the accused on 9 September
2008,
at Barkly-West, wrongfully and intentionally killed P L who was at
the time a minor woman. It is not clear whether the deceased
was a
minor in terms of the old legal regime or the new legal position.
The charge of murder is read with the provisions of sec
51 of Act 105
of 1997.
[3]
To
the charge of murder, the accused pleaded guilty. He is represented
by Mr Cloete. A written plea explanation was read into
the record.
In terms of the explanation, the accused admitted that he stabbed the
deceased several times with a knife and that
he caused her death.
He
explained that he had a love relationship with the deceased for the
three (3) years preceding the incident. The Sunday preceding
the day
of the incident he saw the deceased walking with a man on the street.
The accused became angry, aggressive and jealous
as a result as he
really loved the deceased. The accused went to them intending to
speak to her. She did not want to speak to
him and continued
walking. He says that he was hurt to see them together.
[4]
The
accused states that later during the night, the deceased phoned him
and asked him to forgive her for having been with another
man. On
the day of the incident he went to her home to speak to her about the
incident. As he was still at her home the man who
she was with
before arrived. The deceased asked the accused to leave. He refused.
[5]
The
accused states further that the deceased went to the neighbour and he
followed her. Because he was angry and jealous as she
wanted to send
him away after the arrival of this other man, the accused stabbed her
several times with a knife out of anger and
jealousy. He says that
he really loved her and was unhappy about what she had done.
[6]
After
stabbing her he went to a police officer’s house and reported to
him what happened and also asked him to call the police.
The police
officer took him to the police station and he was arrested. He
states that he regrets what he has done and is remorseful
and he as a
result pleads guilty.
[7]
The
plea explanation was explained and interpreted fully to the accused.
He confirmed it as correct and adhered to the contents
thereof. The
documents was accepted as exhibit “A”
[8]
Ms
Louw, on behalf of the state indicated that the state does not accept
the plea of guilty as presented by the accused. She indicated
that
the state’s case would be that when the deceased was killed the
accused’s intention was in the form of “
dolus
directus
”
and not “
dolus
eventualis
”.
She further informed the court that the state does not accept the
explanation by the accused regarding how the incident happened.
[9]
At
this stage the Court entered a plea of not guilty and explained to
the accused the issues placed in dispute and further that
the
admissions made on other aspects which are not indispute would remain
as common cause.
[10]
The
State called Dr Adin Don Surtie. He holds an MBCHB degree as well as
a Dip.Om from the University of Stellenbosch. He is
employed by the
Province as a Medical Officer in Forensic pathology and is stationed
in Kimberley. He testified that on 10 September
2008 from 9:00 he
examined the body of the deceased. Her estimated age was 16 years.
He conducted an autopsy on the said body
and recorded his findings on
document GW 7/15. This document was admitted as exhibit “B” with
the consent of the accused.
[11]
Dr
‘Surtie read his findings onto the record. Of significance is that
there were several stab wounds, totalling 12 in number,
which were
discovered on the body of the deceased. These wounds were on the
neck, cheeks, spine and shoulders. According to him
not all of these
wounds were fatal. He testified that only two were fatal and were
the cause of the deceased’s death.
These were:
40mm
incision right posterior neck 30mm from midline and 25 mm above
spinous process of 7
th
cervical vertebra with tract anteriorly with insision of internal
jugular vein, and
18mm
incision right back 115mm from midline and 25, below spinous process
of 7
th
cervical vertebra entering chest.
[12]
According
to Dr Surtie, all these wounds were fresh and were inflicted at the
same time. On completion of his evidence the defence
indicated that
they do not have any question to put to him. He was as a result not
cross-examined.
[13]
The
state thereafter called Ms Leentjie Kassana Modise. She testified
that she is 56 years old and reside at Mataleng. Her home
is
opposite to the home of the deceased. She knew the deceased very
well as she grew up before her. She also knew the accused
by sight
and had seen him pass on the street before.
[14]
Ms
Modise testified that on 9 September 2008 she was at her home at
12:00 midday cleaning her house inside. The deceased called
her from
her house saying that she must come and see the accused who was
saying that he would take anything that he wanted from
the house.
She went outside and stood next to the deceased who was about 2 paces
from her. She said to the deceased that they
should wait and see
what would he come out with. The accused came out of the deceased’s
home, walked across the street and stood
next to the witness’ gate.
The accused then said to the deceased that he asked her for water
and she said that he must drink
from the tap and that he is not a
dog. The deceased said nothing.
[15]
The
witness then told the accused as a parent, that a person does not do
such things and that the parents of the deceased are at
work. The
accused said nothing. He entered her yard violently. She tried to
hold him and he pushed her aside. He ran towards
the deceased who
was trying to run away. He grabbed her on the back, threw her down
and started to stab her repeatedly. At this
stage the deceased was
sitting on the ground with her legs stretched. The accused mentioned
that he can go to jail. The witness
screamed for help. The deceased
then stood up and ran towards her. She grabbed the deceased and she
immediately fell down and
passed out. The accused then ran away. She
did not notice the direction he ran to. The deceased had no weapon
in her possession.
[16]
Under
cross-examination it was suggested that there was another man who was
in the house. She testified that she did not see or
know about what
happened in the deceased home. She saw nobody else other than the
accused. She did not hear any noise whilst
she was still inside her
house before the deceased called her.
[17]
At
the completion of Ms Modise’s evidence. The state handed up a
photo album containing pictures as well as a key thereto,
compiled by
constable Simon Morakanele. Mr Cloete together with the accused
confirmed that they do not dispute the contents as
well as the
correctness and accuracy thereof and that it can be accepted as
evidence. The document was accepted as exhibit C,
the affidavit
being exhibit C1, the key as Exhibit C2 and the photos as exhibit C
generally.
[18]
The
photos depicts house no:, point where the witness was standing, the
point where the deceased was stabbed and the place where
the deceased
had fallen. There are also photographs of the deceased with several
stab wounds and a picture of a knife used to
stab the deceased.
[19]
The
State closed its case. The defence also closed its case.
[20]
In
argument the state urged the Court to find that the accused’s
intention was in the form of
dolus
directus
in that , he was reprimanded but instead, pushed the witness aside
and chased the deceased, put her down and stabbed her and also
that
he stabbed her 12 times. She submitted that the Court should find
that there was no other person when the accused arrived
at the
witness’s gate only mentioned that he was told to drink from the
tap.
[21]
Mr
Cloete on the other hand submitted that the two points of dispute
have not been disproved by the two state witness and that
only the
accused’s version should be accepted, namely; that there was
another man, and that the accused stabbed the deceased
out of anger
and jealousy and as such he did not have direct intent to kill her.
[22]
As
the argument from both the state and the defence ensued there is no
dispute about the elements of the offence of murder. The
parties are
ad adem that the accused wrongfully and intentionally killed the
deceased by stabbing her several times with a knife,
and that she
died as a result of the two stab wounds on the right posterior neck
and the one on the right back. There is also
no dispute as to how
the deceased was stabbed. The full explanation emanated from the
evidence of Ms Modise that the deceased
ran away and the accused
caught up with her threw, her down and stabbed her several times.
Her evidence that the accused said
that he can go to jail as he was
stabbing her is not disputed.
[23]
What
seems to be disputed is the question whether there was another man
present as the accused says and what should the Court make
out of the
facts of the case, ie whether there was
dolus
eventualis
or
dolus
directus.
Put
differently, what conclusion should the court arrive at with regard
to the form of intention based on the undisputed and proven
facts.
[24]
As
a starting point I must mention that the principle enunciated in
S
v Francis
1991 (1) SACR 198
(A)
will be kept in mind when evaluating the evidence. The principle is
to the effect that while an accused person’s failure to
testify
may in appropriate circumstances be a factor in deciding whether his
/her guilt has been proved beyond all reasonable doubt,
this is only
so where the state has prima facie discharged the onus upon it. A
failure to testify will not remedy a deficiency
in the state case,
such as the absence of apparently credible implications against the
accused.
[25]
An
accused person has a right to remain silent and not to testify in
criminal proceedings against him or her. The exercise of the
right
should in no way be used against him. I mention all this because the
accused in this case elected not to testify.
[26]
Dolus
directus
comprises of a person directing his will towards achieving the
prohibited result or towards performing the prohibited act. In
casu,
it must be shown that the accused had the direct intention to kill
the deceased.
Dolus
indirectus
consists of a person not intending the prohibited result as his or
her main goal but realizes that if he wants to achieve his/her
main
goal, the prohibited act or result will of necessity materialise.
[27]
Dolus
eventualis
will occur where a person directs his will towards a certain event or
result but forsees that if he wants to achieve this result
there is a
possibility that another event or result may ensue and he or she
nevertheless proceeds with his original plan to bring
about his event
or result, indifferent as to whether another event will ensue or not.
[28]
In
this case the first point of dispute relate to the fact as to whether
the deceased was on a previous occasion walking with another
man;
that she phoned the accused to apologise; whether on the day of the
incident this man found the accused with the deceased
and finally
whether the deceased had been in a relationship with the deceased for
a period of three years prior to the incident.
Clearly the state has
not tendered any evidence to gainsay what the accused has said in his
plea explanation and any doubt should
be to his favour. I say this
despite the fact that this person did not, present himself to the
second state witness when the unfortunate
event happened. One would
have expected him to go to the second state witness to explain what
happened. Secondly, according to
the second state witness the
accused only mentioned the incident about the water and not that he
had been instructed to leave the
deceased’s home because of the
arrival of this other man. This evidence by the second state witness
was not at all tested or
contradicted. As I said the benefit of
doubt in this regard will be infavour of the accused.
[29]
The
second point of dispute relating to the form of intention should be
considered from the objective proven facts of the case.
What I
gather from the accused’s plea explanation is that he loved the
deceased very much, and as a result of his jealousy and
anger and
because he was being told to leave because of the arrival of this
other man, he then decided to stab her several times
with a knife.
It is not at all mentioned in the plea explanation, what result the
accused desired to achieve, and that in achieving
that result, he
foresaw the possibility of the deceased dying in his endeavour to
achieve his intended result. Furthermore, the
fact that the accused
states that he acted “recklessly” by stabbing the deceased with a
knife whilst he appreciated the possibility
that he may seriously
injure her or kill her, is not on its own enough to establish the
form of intent. Put differently, his
ipse
dixit
that he was reckless does not suffice. One must look at the
objective proven facts.
[30] On this aspect,
the evidence of Ms Modise, who I found to be a reliable, truthful and
honest witness is of importance. In
fact there was no attempt by the
defence to discredit her or dispute any aspect of her evidence.
[31] It
must therefore be accepted that the deceased called Ms Modise from
her house and reported to her that the accused mentioned
that he
would take anything he liked from the house; that she told the
deceased that they should wait and see what he takes;
that the
accused walked up to her gate and complained that he is not a dog and
cannot drink water from the tap as the deceased
told him; that Ms
Modise somehow reprimanded the accused she being an elderly person
that he must not behave that way and that
the deceased’s parents
were at work; that the accused came into her yard through the gate;
that Ms Modise tried to stop the accused
and he pushed her aside and
chased the deceased; that he caught her and threw her down and that
he repeatedly stabbed her when
she was sitting flat on the ground;
and that Ms Modise screamed for help but to no avail.
[32] In
my view all that I have said is the only evidence before me about
the incident and serves as the facts upon which one should
consider
what form of intention the accused had, also being mindful of the
fact that one should not be an armchair critic considering
all the
circumstances with the benefit of hindsight.
[33] The
fact that the accused used a knife which is reflected on photo 19,
which is sharp and pointed, of the type of an oukapi,
that the
deceased presented no threat or danger at all that he chased and
threw her down and stabbed her atleast 12 times, all
of which
directed at the most sensitive parts of the body, whilst mentioning
that he can go to jail, only points to one direction,
that being that
he had the direct intent to kill the deceased. These are in my view
the objective facts that support my conclusion.
Without
saying more the accused is found guilty of Murder with direct intent.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
Appearance:
For
the State: Ms Louw
Instructed
by: Director of Public Prosecutions
For
the Accused: Mr Cloete
Instructed
by: Kimberley Justice Centre