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[2008] ZAWCHC 142
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Ndawule v S (A543/2007) [2008] ZAWCHC 142 (22 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A543/2007
DATE
: 22
FEBRUARY 2008
In
the matter between:
GOSPEL
NDAWULE
Appellant
and
THE
STATE
Respondent
JUDGMENT
DE
SWARDT, AJ
:
[1]
The appellant in this matter stood trial in the Regional
Court
at Strand on a charge of murder. The trial was held on 26 May and he
was convicted on the same day, not on a charge of murder
but on a
charge of culpable homicide. The appellant initially pleaded guilty
but after certain questions had been put to him the
magistrate
changed the plea to one of not guilty. Having found the appellant
guilty of culpable homicide, the magistrate sentenced
him to six
years' imprisonment.
[2]
The appeal before us was origin a! fy brought against the sentence in
the matter. However, once we had perused the record, we
had certain
concerns in regard to the conviction. Acting in terms of our inherent
powers of review, we have accordingly also dealt
with the conviction
of the appellant. We are satisfied that it will serve no purpose, in
the particular circumstances of this case,
to remit the matter to the
magistrate for comment, inasmuch as the all of the evidence is before
us on the record.
[3]
The evidence which was proffered by the State was sparse to say the
least. Certain admissions were made at the commencement
of the
proceedings and these are noted at page 8 of the record These
included an admission as to the identity of the deceased -
that she
was the person who was referred to in the charge sheet and the place
where the incident had occurred. The appellant also
admitted the
contents of the post-mortem report and that the report referred to
the deceased in the matter. Other usual admissions
were made, such as
that the deceased had not sustained any further injuries between the
time that she died and was removed from
the place where she had died
untif such time as the postmortem had been performed.
[4]
The only oral evidence that was proffered by the State in this matter
was that of a Mr Thomas Ndawule who said that he was the
brother of
the appellant. In short, if one had to summarise his evidence, it
amounts to the fact that the appellant woke him up
during the course
of the night and made a report to him. As a result, he accompanied
the appellant to the latter's house but when
they arrived there it
was evident that the deceased had already died. The appellant then
said to the witness that he had hit the
deceased with a stick. That
was the sum total of the evidence that was tendered by the State.
[5]
The appellant, on the other hand, testified that he and the deceased
had spent the day at a place where they had consumed alcohol.
He and
the deceased subsequently left and he went to his home and she went
to hers. Some time later she came back to the appellant's
home,
accompanied by a friend. The three of them went to another shebeen.
Eventually they left there and the appellant and the
deceased
returned to the appellant's home.
[6]
The appellant decided to go to sleep but woke up during the course of
the night and remembered that he never received his change
after he
had paid for the dnnks at the place where they had been that evening.
He asked the deceased to give him the money, an
argument ensued, they
commenced hitting each other and he apparently retrieved a stick or
"kierie" from under his bed
and proceeded to assault the
deceased He said that he hit her on her legs. It appears that he must
have hit her quite hard, because
he conceded in cross-examination
that the stick broke. The appellant testified that in the course of
the fight he and the deceased
had ended up on the floor f(hulle) het
mekaar op die vloer gegooi"). Eventually, after this
altercation, appellant went to
sleep and when he woke up again the
deceased was dead.
[7]
If one looks at the post-mortem report which was prepared by the
district surgeon in this matter, Dr van ZyI
r
he lists the following injuries which had been sustained by the
deceased:
"1.
Oppervlakke laserasie linker agterkop.
2.
Veelvuldige kneusplekke oor die hele liggaam.
3. Onderhuidse
bloeding frontaal, regs temporaal en oksipitaal.
It
is accordingly clear that there were bruises over the entire body and
that there also had been an injury to the head. However,
when the
district surgeon had to express an opinion as regards the cause of
death, he merely noted "word ondersoek".
In other words, he
was unable to find what the cause of death was and had to make
further investigations in this regard.
[8]
Apropos this post-mortem report, it appears that the matter was then
forwarded to the office of the state pathologist. It came
before a Dr
Basson, one of the state pathologists, who filed a which dealt with
the cause of death. In doing so, she had regard
to the post-mortem
report which had been prepared
by
the
district surgeon and certain other evidence such as a witness
statement which had been placed before her. In dealing with the
cause
of death, she found that she could also not say definitively what the
cause of death in this particular instance was. She
referred to
various possibilities, listed at page 35 of the record of
proceedings, one of which was that the deceased could have
suffered a
bilateral pneumothorax. She could not determine, however, whether or
not this had occurred, because it was not apparent
from the
post-mortem report prepared by Or van Zyl whether or not he had
performed any investigation to ascertain whether the deceased
had
suffered a bilateral pneumothorax when he performed the post-mortem
examination,
[9]
The significant portion of Dr Basson's report, however, to my mind
is the following extract where she refers to the following
potential
cause of death:
'Die
moontlikheid van kortstondige bewussyns-onderdrukking na trauma aan
die kop met posisionering van die lyf en liggaam op die
grond met die
neus en lyf wat op die grond te en die persoon 'n suurstof tekort
kry. Weer eens is sekere infigting van die beskuldigde
belangrik,
naamlik of die oorEedene te enige tyd met die mond en die neus
bewusteloos op die grond
ge\e
het.'
She
then concludes at the foot of the page:
Na
bestudering van die dokumente en ander artikefs soos genoem kan ek
dus nie met sekerheid se presies wat die oorsaak van dood
was nie,
maar ek gee dan dus wel my bogenoemde opinie oor moonttikhede/
[10]
I have referred to the evidence of the appellant to the effect that
when he and the deceased had been engaged in a fight, they
in fact
had fallen onto the fEoor. It is not clear from the evidence whether
the deceased remained on the floor. It is also not
clear exactly what
position she was lying in on the floor. However, when one looks at
the totality of the evidence, it would appear
to me that one cannot
say with any degree of certainty what the cause of the deceased's
death was. It could have been the result
of the assault which had
been perpetrated on her but she could also have lost her fife, as the
pathologist said, because she was
lying in a position in which she
could not breathe; she might have been lying on her face.
[11]
In these circumstances I am satisfied that the State has not proved
beyond reasonable doubt that the deceased lost her life
as a result
of the assault which the appellant perpetrated upon her. It is
accordingly clear to me that the conviction of culpable
homicide
cannot stand,
[12]
What is equally clear, however, is that on the appellant's own
admission he had assaulted the deceased and that he had assaulted
her
with a stick or a "kierie". I am satisfied that in these
circumstances the appellant, on his own evidence, is guilty
of
assauft with intent to do grievous bodily harm.
[13]
That leaves the issue relative to sentence. Assault with intent to do
grievous bodily harm is indeed a serious offence, but
there are also
circumstances to be taken into account in favour of the appellant.
It was clear from the evidence that both he
and the deceased had been
drinking for a substantial portion of the day and alcohol, it would
appear, played a very large role
in the events which occurred on this
day and which resulted in the deceased losing her life. By far the
most important aspect,
which has to be given sufficient weight in
dealing with the sentence in this matter, is that the appellant is a
person with a clean
record at the age of 62 years (his age when he
was convicted). In other words, he appears to be a person who has
been an upstanding
citizen in society. It is also clear that he has
had substantial remorse. He has tried to make restitution to the
family of the
deceased and has paid certain damages to them.
[14]
On a conspectus of all of the relevant factors to sentence in this
matter, I am satisfied that the appellant ought not to serve
any more
time in jail. He has already served a period of one year and nine
months' imprisonment and that would appear to me to
be a fair
sentence in these circumstances.
[15]
I would accordingly uphold the appeal in the matter. Both the
conviction and sentence of the magistrate are set aside and the
conviction is substituted with the conviction of the appellant on a
charge of assault with intent to do grievous bodily harm. In
respect
of that conviction
f
the appellant is sentenced to imprisonment equal to one year and nine
months.
DE
SWARDT, AJ
CLEAVER,
J
:
I agree and it is so ordered.
CLEAVER,
J