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[2008] ZAWCHC 117
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Karoles v S (A501/2004) [2008] ZAWCHC 117 (14 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE NO
:
A501/2004
DATE
:
14
NOVEMBER 2008
In
the matter between:
ROYEN
KAROLES
versus
THE
STATE
JUDGMENT
MOTAJANE.
A J:
The
appellant was charged in the Regional Court, Cape Town, with murder.
There he pleaded guilty and made a statement in explanation
of his
plea in terms of Section 112(2) of Act 51 of 1977, in which he set
out circumstances which culminated in the death of the
deceased.
The
statement was rejected by the State and it proceeded to lead evidence
of two witnesses and the accused testified in his defence.
The
accused was found guilty and was sentenced to 15 years imprisonment,
being the minimum sentence applicable.
With
the leave of the court
a
quo
he
now appeals to this Court 5 against conviction and sentence.
The
evidence on the merits was straightforward. The record reveals that
the appellant and his brothers went to the house of the
deceased's
brother where there was a party. An argument developed and the
appellant left the premises. The deceased followed
appellant in the
street and at some stage turned and ran back to the yard to set his
dogs loose on the appellant. As he was running
back to the gate,
appellant stabbed him with a knife in the shoulder and he died on
the
scene.
On
the State version, appellant insulted the deceased who was unarmed.
The deceased turned away from the appellant to go and unleash
his
dogs. The deceased fell and appellant then 20 took out his knife and
fatally stabbed the deceased whilst the deceased was
on the ground.
The
merits of the appeal. It has been submitted on behalf of the
appellant that he exceeded the bounds of self-defence in
averting the attack from the deceased and was accordingly negligent
and should have been convicted of culpable
homicide.
I do not agree. Appellant's version is that the deceased ran
away after he had dispossessed him of the knife.
He chased him and
stabbed him once in the shoulder. He admits that his life was
not in danger at the time he stabbed the
deceased and that he had
legal intention to kill him. Once these facts are accepted, as
they must be, the State has, in my
view, succeeded in proving the
appellant's guilt beyond
reasonable
doubt.
The
appeal against conviction must accordingly
FAIL
.
It
was further contended on behalf of the appellant that the
magistrate's finding that the contradictions between the State
witnesses
with regard to the number of times the appellant attempted to stab
the deceased and where he fell was material. On the
appellant's
version which, for the reasons advanced above is to be preferred,
these submissions are irrelevant, as the appellant
admits all the
elements of the offence of murder.
Counsel
for the appellant, correctly in my view, submitted that the
magistrate followed an incorrect approach in evaluating the
evidence
of the appellant. In
S
v Tuseni and Another
,
1053(4)
25 SALR 406
(A) at page 412,
De
Beer. A J A
held that:-
â
Where
a trial Court has committed a misdirection the Court of Appeal is
free to disregard the findings of fact that have been
made by the
trial Court and come to its own conclusions, but that in so doing it
must be alive to the limitations inherent in
the process of appeal.â
The
finding by the magistrate that there are no safeguards to rely on
the evidence of appellant as a reliable witness is a misdirection
that allows this Court to come to its conclusions on the
materials on record. The correct approach in evaluating
the
evidence of the accused is to determine whether the guilt of the
accused has been proved beyond reasonable doubt, which would
be so
only if there is at the same time no 15 reasonable possibility that
an innocent explanation which has been put forward
might be true.
See
S
v Van der Naiden
,
1999(2) SALR at page 79.
MATOJANE,
AJ