September v S (A442/2007) [2008] ZAWCHC 288 (7 November 2008)

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[2008] ZAWCHC 288
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September v S (A442/2007) [2008] ZAWCHC 288 (7 November 2008)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
A442/2007
DATE
:
7
NOVEMBER 2008
In
the matter between:
EDWARD
SEPTEMBER
versus
THE
STATE
JUDGMENT
ERASMUS,
J
:
The
appellant was on 16 January 2002 convicted in the Regional Court,
Cape Town, on two counts:-
1. Murder
of one Hennie Kemp, 31 December 1998.
The
murder of Gert Samuels on 26 January 2000.
He
was sentenced to 10 years imprisonment on the first count and 15
years imprisonment on the second count. It was ordered that
five
years of the 10 years Imprisonment imposed in respect of the first
count be served concurrently with the 15 years
Em
posed
in respect of count 2. The appellant accordingly has to serve an
effective term of 20 years imprisonment.
On
7 May 2007 the appellant was granted leave to appeal against the
conviction and the sentence in respect of count 1 From at least
as
early as 23 January 2003 the appellant tried to set proceedings in
motion for lodging an application for leave to appeal. The
appellant
i
s
illiterate
and therefore dependent upon the assistance of others. The matter
dragged on and on, though discussed by many people,
including a
representative of the office of the Director of Public Prosecutions.
Eventually the matter landed on the desk of the
Public Protector. In
a letter dated 14 December 2006, the subject matter of which is
"Final report alleged undue delay regarding
aopeal complaint, Mr
M D September", it is stated
inter
alia
that
the record had got lost and an apology is given to Mr September for
the delay and the inconvenience he suffered. One can only
express the
hope that improvement of the filing system at the Wynberg Regional
Court has in fact been implemented. An apology for
delay and
inconvenience caused cannot compensate for the five years spent in
jail awaiting an application for leave to appeal to
be processed and
determined. In the end, the delay does not materially affect the
position of the appellant, he still has to serve
a large part of the
sentence imposed in respect of the second count, leave to appeal
against the conviction and sentence on that
count having been
refused. It might have been different, leave to appeal in respect of
both counts might have been granted and
the appeal against both
counts might have been successful, after spending five years in
prison.
The
record which was eventually found is incomplete. The exhibits have
apparently disappeared forever. The typed record is replete
with the
transcriber's comment "onduidelik" or "indistinct".
This situation is aggravated by the tendency of
the prosecutor to
constantly interrupt the appellant during cross-examination. However,
in view of the lengthy delay which has
beset the matter, this appeal
must now be dealt with on the record as it stands.
On
appeal,
Mr
Theunissen
,
who appeared for the appellant, rightly submitted that the appeal
turns on the question whether the appellant's contention that
he had
acted in self-defence or "noodweer" can be sustained.
It
is common cause that the appellant and his companions on the night in
question, 31 December 1998, drank wine and they all became

intoxicated. They went to sleep in the open veld n the vicinity of
Kromboom Road. During the course of the night, the appellant
woke
up and went in search for more wine. An altercation ensued between
the deceased, Hennie Kemp, and the appellant, Sophie Koertes

witnessed the altercation. She saw the appellant being hit with a
bottle, but she did not see the actual stabbing. Joseph Arnolds
also
witnessed the altercation. He also saw the deceased hitting the
appellant with a bottle, but he did not see the stabbing.
Sophie
Koeries also saw the deceased throttling the appellant, and at one
stage the deceased was on top of the appellant as they
wrestled.
While the two eye witnesses did not see any stabbing, the appellant
admits to stabbing the deceased only once, while
at the post-mortem
two stab wounds were found on the body of the deceased. The trial
magistrate held that the appellant was deliberately
lying when he
testified that he had stabbed only once.
Perhaps
a somewhat more generous approach should be adopted in evaluating the
evidence of the witnesses. It was at night, it was
dark, they were
intoxicated- Even a sober person who dispassionately observes the
altercation would not be able to give an accurate,
step by step
description of the wrestling match. The appellant, moreover, was
involved in that wrestling match, being hit with
a bottle, being
throttled, and at one stage of the wrestling having the deceased on
top of him.
The
appellant said in evidence that he does not know why the deceased was
fighting with him, adding that he, the appellant:-
"Ek
het seker te vinnig kwaad geraak".
Upon
being asked what he thought when the deceased was throttling him, the
appellant said:-
"Hy
was besig om my seker dood te wil wurg, of so aan, want ek het mos
gestoei om horn af te kry en ek kry horn nie van my
af."
And
then the question was asked:-
“
So
u het gedink hy gaan vir u doodmaak?" and he said:-
“
Ja”
The
following evidence on pages 72 to 73 of the record is important, and
I quote from the record:-
"
U se mos sy vrou was die een wat die aggressor was, nie die oorledene
nie, sy wou met u baktef, sy wou u beseer net, hy net
eintEik probeer
om dit te stop, is dit reg so? — Ja, maar toe het hy ook maar
baklei met my, hy het geslaan en toe sit hy bo
op my, dis toe wat ek
hom gesteek het. Ek het mos nie bedoel om hom te steek nie.
Maar
u weet mos nou as u iemand steek, dan kan
(
n
mens doodsteek, is dit reg so? — Dit is so, ja.
U
het gesien dit is ook die gevolge van u steek die aand, die man is
oorlede as gevolg van u stekery? — Dit is so, ja.
Maar
u het mos geweet op daardie stadium dat u vir hom steek dat hy kan
doodgaan. U se dan nou vir die Hof u was so kwaad gewees
want hulle
is mos nou daar weg met die drank sonder u
toestemmlng? — Dit is so, ja."
If
I may interpose here, this is a typical example of a double-barrelled
question which leaves an answer which is neither here nor
there. It
is also a feature of the cross-examination. The record continues:-
"
So u het geweet, ek ste! dit aan u, u het dit geweet en u gaan nou
die stone stop en u gaan hom nou wys, 'n les leer, en
dit is hoekom u
vir hom gesteek het, nie een keer nie, twee keer, so u het bedoe! om
horn daar, om horn dood te maak?"
Again
a question containing many elements. The answer is:-
"Nee,
ek weet net van een hou af wat ek horn gesteek het.
U
kan nie vir die Hof verduidelik waar die ander hou vandaan kom nie?"
The
answer:-
"Nee,
ek kan nie die hou verduidelik nie, ek weet ek het horn net een hou
in die bors..."
And
then he is interrupted by the prosecutor and the question remains in
the air and they don't return to it. This is also a most

unsatisfactory aspect of the cross-examination.
Mr
Maartens
,
who appeared for the State, with reference to the passage 1 have
read, submitted in the heads that:-
“
Op
die keper beskou daar nie eintlik sprake van 'n noodweer situasie was
nie."
And
that the appellant in that passage conceded that "opset by
moontiikheid bewussyn aanwesig was."
In
evaluating the situation, sight should not be lost of the fact that
there was a fight and that the appellant was not the original

aggressor. In the course of the fight, the deceased was on top of the
appellant and throttling him. In my view it cannot be said
that there
was not a "noodweer situasie". It is, however, clear that
the appellant exceeded the limits of private defence
by twice
stabbing the deceased. Snyman,
Criminal
Law, Fifth Edition
at page 114 says that:-
"The
test to be applied when the limits of private defence are exceeded is
now the same as the ordinary test for culpability
for murder and
culpable homicide."
The
words of the appellant, if construed within the context of the events
of that night, point to the conclusion that the appellant
while
stabbing the deceased ought reasonably to have foreseen that he might
exceed the bounds of private defence and he might kill
the deceased.
In that case
r
he is guilty of culpable homicide. In this regard I might refer to a
passage in the case of
S
v Nqomane
.
1979{3) SA 859 (A) at S63H:-
"Was
he guilty of culpable homicide? I think so. For although he acted in
self-defence he ought reasonably to have realised
that he was acting
precipitately and using excessive force, and that by stabbing the
deceased with such a lethal weapon on the
upper part of his body he
might unnecessarily kill him.''
There
follows a reference to the leading case of
S
v Ntuli
,
1975(1) SALR 429 (A) at 437.
The
fact that in my view the conviction of murder should be altered to a
conviction of culpable homicide should be reflected in
the sentence
that is imposed. The sentence in respect of the first count must be
reduced to reflect the conviction on a lesser
charge.
Having
regard to all relevant circumstances as reflected in the record an
appropriate sentence in respect of the altered conviction
on the
first count will be
FIVE
(5) YEARS IMPRISONMENT
.
I make the following order:-
1.
On count 1 the conviction of murder is
SET
ASIDE AND REPLACED BY A CONVICTION OF CULPABLE
HOMICIDE.
2. The
sentence of ten years imprisonment imposed in respect of count 1 is
SET
ASIDE AND REPLACED BY A
SENTENCE
OF FIVE (5) YEARS IMPRISONMENT
.
It
is ordered that
HALF,
(2%
YEARS)
OF THE SENTENCE IMPOSED ON COUNT 1 BE SERVED CONCURRENTLY WITH THE
SENTENCE OF 15 YEARS IMPRISONMENT WHICH WAS IMPOSED
IN RESPECT OF
COUNT 2
.
It
is ordered that
THE
ALTERATION OF THE CONVICTION AND SENTENCE AS SET OUT IN PARAGRAPHS 2
AND 3 ABOVE. BE DATED BACK AND BE EFFECTIVE AS FROM 16
JANUARY 2002.
ERASMUS,J
I
agree.
DICKER,
A J