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2004
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[2004] ZAFSHC 35
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S v Maleke (430/2003) [2004] ZAFSHC 35 (13 May 2004)
IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal
No.: 430/2003
In
the appeal between:
JAMES
MALEKE
Appellant
and
THE
STATE
Respondent
___________________________________________________________
CORAM:
RAMPAI
et
EBRAHIM, JJ
___________________________________________________________
HEARD
ON:
10 MAY 2004
___________________________________________________________
JUDGMENT
BY:
EBRAHIM, J
___________________________________________________________
DELIVERED
ON:
13 MAY 2004
___________________________________________________________
[1] The appellant was convicted in the Regional Court on
a charge of murder and sentenced to a term of 15 years imprisonment.
He
appeals against both his conviction and his sentence. During the
trial the appellant raised a plea of necessity as a defence, and
explained that the deceased had insulted him. As a result he attacked
the deceased by stabbing the deceased on his forehead.
[2] The State called the evidence of a single witness,
Thamsanqa Mlakalaka, who testified that whilst the appellant was busy
playing
snooker he, Thamsanqa, happened to accidentally bump the
appellantâs snooker stick. He apologised, but the appellant then
hit
out at him with a fist, twice. At that point the deceased
intervened and stopped any further fighting between the appellant and
the witness. The witness then left the particular room and went to
the toilet. He alleges, however, that the appellant also left
the
room at that point. When he returned from the toilet he heard
screams. He went into the room where the appellant had been playing
snooker and he saw the appellant going up to the deceased. The
appellant was in possession of a knife and the witness saw the
appellant
stabbing the deceased. The witness was vague as to exactly
what position the deceased and the appellant were in when the actual
stabbing took place. He also said that he did not see precisely where
the deceased was stabbed, but that he saw the deceasedâs
face and
head were full of blood.
[3] It was argued by counsel for the appellant that
Thamsanqaâs evidence ought to be rejected as being wholly
unreliable in view
of the fact that he testified that the appellant
had been standing behind the deceased at the point when he stabbed
him. It was
argued by Mrs Coetzee that this evidence was wholly
inconsistent with the medical evidence which showed that the deceased
had been
stabbed on his forehead and that he had died as a result of
a haematoma in the left cerebral hemisphere which was caused by a two
centimetre long stab wound to the left front of his head. This was
the only stab wound that the deceased sustained.
[4] I cannot agree with the submissions of Mrs Coetzee
in that it was the appellantâs own plea explanation that he did
stab the
deceased.
The only issue which needs to be addressed is whether
the appellant did in fact act out of a sense of necessity. On an
assessment
and examination of the evidence of Thamsanqa it is quite
clear that he was an excellent witness and that the trial Magistrate
found
him to be so after having applied the necessary cautionary
approach to an assessment of his evidence. He answered questions
that
were put to him spontaneously and without hesitation. He gave
his evidence in a systematic manner. There were no material
contradictions
in the evidence which he gave in chief and under
cross-examination. I can see no reason to discard the evidence of
Thamsanqa because
his evidence was that the appellant was standing
behind the deceased when he stabbed him. This, according to Mrs
Coetzee, taints
the entire veracity of Thamsanqaâs evidence. An
examination of the
post-mortem
report and more particularly the sketch attached to the
post-mortem
report indicates the position of the wound as being at the top left
front of the forehead, and it would seem to me quite possible
that if
the appellant was standing behind the deceased and more to the left
of the deceased, that he could have, using his left hand,
reached
around the deceased from behind, lifted up that hand and stabbed the
deceased at exactly the position indicated on the sketch.
There was
no evidence and nor was Thamsanqa questioned in cross-examination
about the exact manner in which the appellant, being
behind the
deceased, was able to stab the deceased on the left front side of his
head. And without Thamsanqa having been challenged
on this aspect,
I am loath to find that his evidence is improbable because of it.
The trial Magistrate properly examined the evidence of
Thamsanqa in its entirety and after proper consideration came to the
conclusion
that he was an honest and reliable witness on whose
evidence it was safe to convict the appellant because it was
satisfactory in
every material respect. I can find no reason to
upset that finding of the learned Magistrate.
[5] I turn now to the second ground of challenge, that
is the fact that the trial Magistrate drew a negative and adverse
inference
against the appellant for failing to testify in his own
defence. I have gone through the judgment of the learned Magistrate
and
I have not been able to find any reference in that judgment to
the fact that any adverse inference was drawn by him against the
appellant
for his silence. In fact, on the contrary, the court
a
quo
stressed that because the appellant had
not availed himself of the opportunity of testifying in his own
defence, the court had to
make a finding based exclusively on the
evidence tendered by the State. I have not been able to find any
reference whatsoever in
the judgment that the appellant was penalised
for his silence. In this regard it appears quite clear to me that
the court
a quo
was
conscious of every accused personâs right to a fair trial which
included the right to remain silent and not to testify during
proceedings. (See
S v THEBUS AND ANOTHER
[2003] ZACC 12
;
2003 (6) SA 505
(CC)
).
In my view, in coming to a conclusion in the case, the
learned trial Magistrate adopted the correct approach in having
regard exclusively
to the evidence tendered by the State, in
concluding that the State had proved its case beyond a reasonable
doubt and in convicting
the appellant.
I would accordingly confirm the conviction.
[6] As regards the appeal against the sentence, Mrs
Coetzee urged this Court to find that the fact that the learned trial
Magistrate
found that the appellant had the intention in the form of
dolus eventualis
rather than
dolus directus,
the appellant was a relatively young man and a first offender, that
there was no premeditation on his part and that at the date
of his
sentence he had already spent nine months awaiting trial,
cumulatively amounted to a substantial and compelling circumstance
which the court ought to have found justified a departure from the
prescribed minimum sentence. She therefore requests this Court
to
interfere and impose a lighter sentence. With this submission I must
agree. The factors I have mentioned do redound to the benefit
of the
appellant and do serve to distinguish him from the hardened criminal.
In the circumstances I would order the sentence of 15
years imprisonment be altered to one of 12 years imprisonment.
The order I would therefore make is that:
1. The appeal against the conviction is dismissed and
the conviction is confirmed.
2. The appeal against the sentence succeeds to the
extent that the sentence of 15 years imprisonment is set aside and
substituted
with a sentence of 12 years imprisonment.
______________
S.
EBRAHIM, J
I
CONCUR
________________
M.H.
RAMPAI, J
On behalf of Appellant:
Adv.
G. Coetzee
instructed by
Coetzees
Attorneys
On behalf of Respondent:
Adv.
D.J. Pretorius
instructed
by
Director: Public Prosecutions
/scd