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[2008] ZAWCHC 150
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Bakumeni v S (A40/2006) [2008] ZAWCHC 150 (29 February 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAFE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
A40/2006
DATE:
29
FEBRUARY 2008
In
the matter between:
LINGELETHU
BAKUMENI
Appellant
and
THE
STATE
Respondent
JUDGMENT
DUMINY,
AJ
:
[1]
The appellant was tried in the Cape Town Regional Court on one
charge of common assault, one of assault with the intent to
do
grievous bodily harm to one Henry Martin and four counts of
attempted murder. The details of those charges are set out in
the
record.
[2]
The charges arose from the events that took place at Bandas Tavern
in Westlake, a suburb of Cape Town, on the night of 3-4
October
2003, to which I shall revert. The trial in this matter commenced
on 4 August 2005 and judgment was given on 13 October
2005, more
than two years after the events in question. The appellant was found
not guilty on the charge of common assault and
two of the charges of
attempted murder. On the charge of assault with intent to do
grievous bodily harm he was found guilty of
common assault and he
was also found guilty on two of the charges of attempted murder. On
the conviction of common assault the
appellant was cautioned and
discharged. On the two counts of attempted murder, which were taken
together for purposes of sentence,
he was sentenced to five years
imprisonment of which one half was suspended for five years on
appropriate conditions, and declared
unfit to possess a firearm. The
appellant appeals against the convictions and sentence with the
leave of the magistrate.
[3]
The precise course of events of the night in question is not clear.
There was, however, concurrence amongst the State witnesses
who were
on the scene and the appellant on a number of the main features, I
summarise the evidence, mainly from the perspective
of the
appellant's version.
[4]
Banda's Tavern
is
a
place of recreation where people go to drink and socialise. The
appellant attended there after going off duty at 11pm on 3 October
2003. At the time, the tavern was full of people, The evidence as to
how many patrons there were differs from something of the
order of
20 to 30, to the appellant's version of 50 people who were present
at the time. His evidence of his reason for having
gone there was
not clear. At first he said he went there to play pool but later
said he went there to gather certain (unspecified)
information in
relation to a matter he was investigating, and yet later he
testified that he was there simply to relax,
[5]
Appellant paid R10 to get to the front of the queue for the poof
game and started to play. I point out that no attempt was
made to
reconcile this part of his version with his claim that he was there
to gather evidence in some kind of semi-official
capacity. In the
latter regard his evidence was exceedingly vague; it was not
substantiated or supported in any way. I say this
without implying
that there is any
onus
on
the appellant. However, this version is something of which he alone
had knowledge and why there was no effort on his part to
substantiate it in the least, remains a mystery.
[6]
In any event, it is common cause that the appellant did play pool.
He became irritated by the behaviour of one of the State
witnesses,
one Lydia Fredericks, according to the record a slightly built
woman, who bumped into him a couple of times while
he was playing
pool and seemed to have gotten in the appellant's way. This made the
appellant "angry" to use his own
word. What happened
thereafter remains in issue, but it is common cause that an
altercation ensued between the appellant and
Ms Fredericks.
Precisely who struck whom first and precisely how hard each blow
was, is in issue but it is quite cEear that the
two of them got into
some kind of scuffle with each other.
[7]
The appellant's version was that he pushed her because he was angry
with her; she pushed him back; at some point he claims
she smacked
him and swore at him and he slapped her in the face, which made her
fall to the ground. Ms Fredericks' companions
did not take kindly to
this treatment of her. They advanced on him, He retreated through
the door to the yard outside the tavern.
At some point he kicked a
State witness Mr Henry Martin, either in the groin according to
Martin, or on the thigh according to
the appellant. Outside the
tavern he was hit by an empty beer bottle thrown at him from behind.
He withdrew his service pistol
and cocked it. A round fell to the
ground whereupon he says he fired two shots, on his version into the
sand, to ward off a life-threatening
attack on him by unnamed
persons who followed him from the interior of the tavern and others
who happened to be outside the tavern.
They were behind him and he
could not identify them.
[8]
According to the State witnesses, at least three shots were fired
and some mentioned a fourth one. Four persons suffered gunshot
wounds in the incident.
[9]
Soon thereafter a police officer arrived on the scene; he found the
appellant and a number of the tavern-goers standing outside
in the
yard. They were not fighting or arguing but he perceived that there
had been some friction. The appellant told him he
had been attacked
but did not say that his life had been in danger.
[10]
The appellant's defence is that he fired his weapon in self-defence.
In this regard, the theme of the statements put on his
behalf to the
State witnesses was that he was the intended victim of an attack on
him and that he feared for his life.
[11]
The exact nature of this attack or perceived attack was not
explained. The appellant claims that an empty beer bottle was
thrown
at him and that a "mob" was advancing on him with the
intention of taking his firearm. On other occasions he
said that a
particular statement was made by one of the State witnesses that his
firearm should be taken from his sfde and so
he concluded that the
intention was to use his own firearm to kill him. With due respect,
these explanations are fanciful and
they were rejected, in my view
correctly, by the trial magistrate.
[12]
J am satisfied
that
the
appellant's evidence of the extent and the seriousness of this
attack on him was exaggerated and not reasonably possibly true.
His
evidence in chief was inconsistent with the statements put to Mr
Martin. In cross-examination it was put to the latter that
the
appellant had kicked him because Martin had tried to take the
appellant's firearm. In his own evidence the appellant said
that he
kicked Martin because the latter was trying to grab him, not the
firearm. His alleged assailants were unarmed, indeed
not one of
them, save the hapless Ms Fredericks who was not on the scene when
the shots were fired, laid a hand on him.
[13]
There is no support at all for the appellant's version of the
alleged threat on his fife in anything said by any of the State
witnesses who were present on the scene. I say this without
confusing the incidence of the
onus
in
matters of this kind. We are, however, dealing with a version by the
appellant of his own internal and subjective state of
mind and in
that regard it is justified, in my view, to test what he says
against what one can establish from the objective facts
drawn from a
totality of the evidence.
[14]
In addition, it is plain that the appellant played no small part in
bringing about the confrontation of whatever intensity
it had that
he now relies upon as his defence. When the police arrived on the
scene the appellant did not identify anyone as
his alleged attacker
and did not ask that anyone be arrested for threatening or
assaulting him or, for that matter, for trying
to take his service
pistol. In the end one is left only with the appellants say-so as to
the alleged attack on him and his own
perceptions In that regard.
[15]
When deciding whether his version is reasonably possibly true the
Court should not consider it in isolation and ask whether,
taken on
its own, it is plausible The evidence must be considered in whole
and the plausibility of the appellant's version considered
in the
full context of that totality. The well known authorities in this
regard are
S
v Snvman
1968(2) SA 582 (A) at 588G;
R
v Mfambo
1957(4)
SA 727 at 738A-D and a case relied upon in the heads of argument on
behalf of the appellant, and rightly so,
S
v Van der Mevden
1999(1) SACR 447 (W) at 448f-g where the following was said:
uln
whichever form the test is expressed ft must be satisfied upon a
consideration of all the evidence, A court does not look
at the
evidence implicating the accused in isolation in order to determine
whether there is proof beyond reasonable doubt and
so too does it
not look at the exculpatory evidence in isolation in order to
determine whether it is reasonably possible that
it might be true".
[16]
Following this approach I respectfully agree with the trial
magistrate who found that it was highly unlikely that there had
been
an attack on the appellant or any threats to take his firearm. I
also agree with him that when the appellant fired the shots
on the
night he was not acting in self-defence and that his actions were
unlawful. I n relation to the number of shots fired,
the learned
magistrate gave the appellant the benefit of the doubt and based his
findings on there having been only two shots.
[17]
To summarise thus far, in my view, the trial magistrate was correct
in finding that the appellant fired at least two shots
on the night
of 3 to 4 October 2003 and that his actions in doing so were not
justified by self-defence. There is no gainsaying
that four people
were injured by the shots. Precisely how that happened is a matter
which was not exptored or explained during
the trial. Whether the
shots ricocheted or whether the bullets disintegrated into shrapnel
fall into the realms of speculation.
That the injuries occurred and
were caused by the shots was, however, not put in issue. No other
explanation for them comes readily
to mind.
[18]
Concerning the element of
mens
rea,
I
also agree with the finding of the learned magistrate that the State
did not establish direct intent on the part of the appellant
and
that
dolus
eventualis
was
the form of
mens
rea
which
was present on this occasion. He was also correct in finding that
that is a sufficient basis upon which a conviction of
attempted
murder can be sustained and in this regard I would refer to the
decisions in
S
v Sethoga
1990(1)
SA 270 (A) at 275i-276b. The way it is put there is that:
"The
State must prove that the appellant had the subjective foresight
of the possibility, however remote, of the
appellant's unlawful
conduct causing death to others and persisted in such conduct with a
reckless disregard for the possible
consequences" (
S
v De Bruin
1968(4) SA 498 (A) at 510G-H).
[19]
Although the appellant did not make any concessions in this regard,
given the fact that he was at the time a member of the
South African
Police Service who had undergone firearm training, the conclusion is
inescapable that he must have fired the shots
with the foresight
requisite for
dolus
eventuatis
to
be present.
[20]
In the circumstances, the elements of the offence of attempted
murder were all established in this case. The appellant's
self-defence version was rightly rejected. In my view, the
conviction of attempted murder must therefore stand. Regarding the
conviction of common assault on Mr Martin, I can find no basis for
interfering with the conviction.
[21]
Concerning sentence, the test was set out in the heads of argument
on behalf of the appellant. One way of putting the question
is
whether the sentence that was imposed engendered a sense of shock.
In my view, the basic sentence imposed by the magistrate
of
five years' imprisonment does not give rise to a sense of shock
and was justified.
[22]
The crime was very serious. The appellant was a police officer. In
whatever capacity he attended at Banda's Tavern, he had
his service
pistol with him. My view is that he went for his service pistol far
too readily and that he allowed himself to become
involved in this
fracas in the most irresponsible manner. The seriousness of the
offence and the position occupied by the appellant
at the time, in
my view, justify a heavy sentence, and the one of five years
1
imprisonment was quite appropriate.
[23]
However, the appellant's personal circumstances as they are today
and as they were at the time, in my view, also justify
a different
approach to that taken by the magistrate in relation to the question
of suspension. It does induce some sense of
shock in me to visualize
the appellant in this case as a first offender serving a sentence of
imprisonment without the chance
of responding to the potentially
rehabilitative effect (or the potential Sword of Damocles, as it has
been put), of a complete
suspension of this sentence. In this
assessment I give much weight to his personal circumstances, which
are that he is a 32 year
old male married person, he has a two and a
half year old child, he holds down fixed employment of a responsible
nature and he
was a first offender. In my view the entire sentence
of five years' imprisonment should be suspended. The conditions the
Magistrate
imposed in respect of the suspension of half of the
sentence were appropriate and should still apply.
[24]
To summarise, I would therefore uphold the conviction. In relation
to sentence I woutd uphold the sentence of five years'
imprisonment,
however I would suspend the entire five years' imprisonment for 5
years on condition that the appellant is not
convicted of murder,
culpable homicide or assault with intent to do grievous bodily harm
where a firearm is involved during the
period of suspension.
[25]
Finally,
the
Learned Magistrate's declaration
that the appellant is not fit to possess a firearm was entirely
appropriate, and is confirmed.
DUMINY,
A J
I
concur, and it is so ordered.
D.
H. VAN ZYL, J