About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 145
|
|
Louw v S (A650/2006) [2008] ZAWCHC 145 (22 February 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRiCA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A650/2006
DATE:
22
FEBRUARY 2008
In
the matter between:
COLIN
LOUW
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOTALA.
J:
[1]
Appellant was indicted in the Regional Court with one
count
of
murder
and one count of attempted murder. He pleaded not guilty on both
counts. He was found guilty on both counts and was sentenced
to 10
years
imprisonment
for the murder and to five years' imprisonment for the attempted
murder. He appeals against both the convictions and
the sentences.
[2]
It has been submitted by appellant's counsel that the appellant's
constitutional rights were violated by the refusal of the
trial
magistrate at the end of the State case to grant an application in
terms of section 174 of the Criminal Procedure Act for
the
appellant's discharge.
The
submission is based on the evidence of John Hendricks, the
complainant on the charge of attempted murder, towards the end of
his
cross-examination. Although some of his evidence was ambiguous, as
was submitted by Advocate
Tarental
who appears for the State, there is no doubt that he said that
appellant had defended himself. The issue is whether that concession
obliged the trial magistrate to discharge the appellant. In my view,
he was not so obliged.
[3j
In the first place, the concession by the witness was an expression
of opinion by a layman as to whether appellant was acting
in
self-defence. Such an opinion can carry Eittle, if any, weight. It
was for the trial magistrate to determine whether the appellant
acted
in self-defence.
[4]
Secondly, the evidence relied upon cannot be looked at in isolation.
The witness's other evidence must obviously be taken into
account.
The witness stated that while he and the appellant were wrestling
with each other, the appellant took a knife out of his
trousers'
pocket and repeatedly stabbed him. He himself was unarmed. Thirdly,
the evidence relied upon was quite insufficient in
the light of the
other evidence to even suggest that the appellant was in danger of
sustaining any significant injury.
[5]
In my view, the evidence of the complainant, looked at as a whole,
was sufficient to justify the refusal to discharge the appellant
on
the count of attempted murder.
[6]
On the charge of murder, Hendricks testified that he lost
consciousness after he was stabbed. He said that the last thing he
remembers was the deceased separating him and the appellant after he
had been stabbed. He said that the deceased was not armed
with a
knife. He did not see the deceased being stabbed.
[7]
I will assume in favour of the appellant that that evidence
considered alone obliged the trial magistrate to discharge the
appellant on the count of murder. But that evidence cannot be
considered in isolation. As part of his plea explanation the
appellant
made certain formal admissions in terms of section 220 of
the Criminal Procedure Act. He admitted,
inter
alia,
that
the deceased died as a result of a stab wound inflicted by the
appellant. Accordingly the trial magistrate had before him proof
in
terms of section 220 that the deceased died as a result of a stab
wound inflicted by the appellant and, according to Hendricks,
that
the appellant was not armed with a knife or any other weapon. In my
view, the application for discharge was correctly refused
on the
count of murder.
[8]
No other submissions have been made as regards the conviction of the
appellant. In my view, he was correctly convicted on both
counts.
[9]
I turn now to the appeal against sentence. In sentencing the
appellant, the magistrate has not, in my view, overemphasised
the seriousness of the offence or the interests of the community. At
a time when there is a wave of violent crime sweeping the
country it
is hardly possible to do so. However, in my view, he has not given
sufficient weight to certain mitigating factors.
As the magistrate
correctly found
r
the deceased and Hendricks initiated the incident. Indeed, they had
accosted the appellant more than once earlier that day and
the
appellant had walked away. They had humiliated him in public.
Appellant was angry and his anger was caused by the deceased
and
Hendricks.
[10]
In convicting the appellant, the magistrate relied on appellant's
version of what happened, that the deceased had a knife,
that
appellant succeeded in disarming the deceased and then stabbed him.
Clearly the finding that the deceased had a knife must
substantially
mitigate the gravity of appellant's conduct.
[11]
Appellant testified that he was under the influence of alcohol. That
evidence was not challenged materially by the State. It
seems more
than likely that he was under the influence of alcohol which, coupled
with the provocation he endured, must count as
a mitigating factor.
Appellant expressed his remorse before he was sentenced. It appears
to be genuine.
[12]
In the light of those mitigating factors, the cumulative effect of
the sentences must be considered. In my view, an effective
sentence
of 15 years' imprisonment is disturbingly inappropriate. However, a
substantial period of imprisonment is the only appropriate
sentence.
[13]
I would dismiss the appeal against the convictions. I would uphold
the appeal against the sentence, set aside the sentences
imposed and
substitute the following therefor:
"On
count
1
the
accused is sentenced to seven years imprisonment.
On
count 2 the accused is sentenced to three years' imprisonment".
BOTHA,
AJ
:
I agree.
BOTHA.
AJ
MOTALA,
J:
It
is so ordered.
MOTALA,
J