lefaso v S [2007] ZAFSHC 119 (25 October 2007)

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[2007] ZAFSHC 119
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lefaso v S [2007] ZAFSHC 119 (25 October 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No. : A261/06
In the appeal between:-
SABATA
LEFASO
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
VAN
ZYL, J
et
VOGES,
AJ
_____________________________________________________
JUDGMENT:
VOGES,
AJ
_____________________________________________________
HEARD:
22
OCTOBER 2007
_____________________________________________________
DELIVERED:
25
OCTOBER 2007
_____________________________________________________
[1] On
15 November 2004 the appellant pleaded guilty to a charge of culpable
homicide in the regional court, Ficksburg. As the trial
court was
of the opinion that the appellant might have had a valid defence to
the charge, a plea of not guilty was recorded.
[2] Thereafter
the public prosecutor put a charge of murder to the accused, to which
he pleaded not guilty and raised a defence of
self-defence.
[3] The
appellant was subsequently convicted of murder and sentenced to 12
years imprisonment.
[4] With
leave of the court
a
quo
he appeals to this court against both the conviction and the
sentence.
[5] It
was argued before this court that the appellant could not have been
convicted of murder and should have been convicted of culpable
homicide and that the regional magistrate erred in:
“
Questioning” the
appellant in respect of the Section 112 statement; and that
“
It was not necessary
for the presiding officer to make an enquiry” as the State
accepted the guilty plea on a lesser charge.
This argument is clearly
without substance, as section 112(2), Act 51 of 1977, permits
“
that the court may in its
discretion put any question to the accused in order to clarify any
matter raised in the statement.”
No
irregularity occurred in this regard.
[6] Based
on
S
v MOKOENA EN ‘N ANDER
1981 (1) SA 148
(O) Mr. Skibi, for the appellant, further argued
that, after a plea of not guilty was recorded, the trial should have
proceeded on
the charge of culpable homicide, it being the charge to
which the appellant had pleaded.
[7] The
record is not clear as to what charge(s) were originally put to the
appellant. The charge sheet reflects both murder and
culpable
homicide and the public prosecutor referred to “charges” prior to
the appellant’s plea.
It is also not clear if
the charges were put in the alternative or as two separate counts.
From
her judgement it seems as if the trial magistrate was under the
impression that culpable homicide was an alternative charge to
murder.
If that was indeed the
position, it was not irregular to allow the prosecution to proceed on
the main count as section
113 (2), Act 51
of 1977 stipulates
“
If the court records a plea of not
guilty under subsection (1) before any evidence has been led, the
prosecution shall proceed on
the original charge laid against the
accused, unless the prosecutor explicitly indicates otherwise.”
(This
sub-section was added by section 8 of Act 5 of 1991 and commenced on
23 December 1991).
[8] The
prosecutor, however, indicated after the plea of not guilty was
recorded, that “the State would like to put
another
charge to the accused”, where after the murder charge was put and
the appellant pleaded not guilty.
Although
this was somewhat peculiar, it is not irregular as a prosecutor is in
terms of section 81 of the Criminal Procedure Act
entitled to join
any number of charges at any stage before evidence has been led.
Bound by the record, this
court has to accept that the two counts, murder and culpable
homicide, were separate counts.
[9] Properly
done, the murder charge should have been the main count and culpable
homicide an alternative thereto. The plea of the
accused should then
have been recorded as “Not guilty to the main count; guilty to the
alternative count.”
As
pointed out
supra
,
the fact that it had not been done in this manner did not result in a
failure of justice. The appellant was properly informed of
the
charges against him and pleaded to both counts.
[10] AD MERITS:
It is common cause that
the deceased was killed on 18 October 1998 at Kommandonek farm in the
district of Ficksburg by a shot fired
by the appellant.
[11] According to the
state witnesses an argument ensued between the appellant and the
first state witness after the witness accidentally
hit the appellant
with the door on entering a garage where a concert was held.
The
appellant then invited the witness outside for a fight. The deceased
tried to separate the two. The appellant then took out
a fire arm,
cocked it and fired two or three shots in the direction of the
deceased and the witness.
[12] It is the
appellant’s version that he was accused by an unknown person of not
paying his entrance fee to the concert. He was
slapped by someone
and a group of people approached him, armed with long ‘kierie-like’
objects. He sensed that he was in danger,
pulled out his fire arm,
cocked it and fired six shots in the direction of the approaching
group.
[13] The
trial court accepted the evidence of the two state witnesses as their
evidence was found to be convincing and not biased
nor contradictory.
This finding was not challenged in this court.
[14] The accused was
found to be not an impressive witness, he contradicted himself and
his version was “not favoured by the probabilities”.
[15] These
findings by the trial court cannot be faulted. It does indeed seem
improbable that a crowd would gather and threaten/attack/assault
the
appellant for not paying his entrance fee.
The
version of the two state witnesses was correctly found to be more
probable than that of the accused.
[16] The totality of the
evidence does not support a finding that the appellant acted in self
defence, nor can it be said that he
acted negligently. He pulled a
fire arm and fired shots towards a group of people with no regard as
to who might be hit. He eventually
conceded in cross examination
that his conduct was “wrong”.
In
the statement in terms of section
112, Act 51
of 1977 it was also
stated
“
I admit further that at the time
when I was shooting at the crowd I did foresee the possibility that a
person may be hit by a bullet
but despite this I proceeded shooting
at the crowd.”
[17] It
has been proved beyond reasonable doubt that the appellant had the
necessary
mens
rea
,
in the form of
dolus
eventualis
,
when firing at and killing the deceased. This court is accordingly
not convinced that the appellant should have been convicted
of
culpable homicide.
[18] The
appeal against the conviction of murder can therefore not succeed.
[19] As the appellant was
charged with two separate offences, he was entitled to judgement on
both. In the circumstances of this
case he could not have been
convicted of both murder and culpable homicide.
This court has the power
in terms of section 309(3), read with section 304(2), Act 51 of 1977
to hand down the judgement that should
have been given by the trial
court.
[20] AD
SENTENCE
The
trial court found that substantial and compelling circumstances was
proved and sentenced the appellant to a lesser sentence than
the
prescribed minimum of 15 years imprisonment.
Aggravating and
mitigating factors were properly weighed and no misdirections that
warrant interference by this court could be found.
The sentence of
12 years imprisonment is not shockingly inappropriate in the
circumstances of this case.
[21] The
following order is made:
1. The appeal is
dismissed.
2. The conviction of
murder and the imposed sentence are confirmed.
3. The
appellant is acquitted on the charge of culpable homicide.
____________
M. VOGES, AJ
I concur.
____________
C. VAN ZYL, J
On behalf of
appellant: Adv. N.L. Skibi
Instructed
by:
Bloemfontein
Justice Centre
113
St Andrew Street
BLOEMFONTEIN
On behalf of
respondent: Adv. J.B.K. Swanepoel
Instructed by:
Director
Public Relations
BLOEMFONTEIN
MV/sp