IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
HIGH COURT CASE NO: A174/2024
LOWER COURT CASE NO: ORC78/2022
SET DOWN DATE: 13 SEPTEMBER 2024
DIVISION 1
In the appeal between
ELJU-NICK KOCK APPELLANT
And
THE STATE RESPONDENT
JUDGEMENT DELIVERED ELECTRONICALLY ON 24 OCTOBER 2024
1. The appellant appeals against his conviction on one count of murder as well
as the sentence of 15 (fifteen) years of direct imprisonment imposed by the Regional
Magistrate S Mandla of Oudtshoorn on 7 June 2023.
2. The tragic events leading to the appellant’s conviction illustrate the
unacceptably high rates of unlawfulness, violence and alcohol abuse that are
prevalent in many of our rural areas and townships.
THE CHARGE, CONVICTION AND PETITION
3. The charge against the appellant reads as follows:
“That the accused is guilty of the crime of Murder (read with the provisions of
section 51(2) of the Criminal Law Amendment Act 105 of 1997:
IN THAT upon (or about) the 25.12.2021 and (or near) OUDTSHOORN, in the
REGIONAL DIVISION OF THE CAPE, the accused did unlawfully and
intentionally assaulted ABRAHAM MAY , a male person, by HITTING HIM
WITH A SPADE as a result of which he died on 27.12.2021.”
4. The appellant pleaded not guilty and made the following formal admissions at
the commencement of the trial:
4.1. The appellant admitted that he hit the deceased once with a spade,
which resulted in the death of the deceased.
4.2. The accused alleged that he and his family were under attack and that
he defended himself and/or his family.
4.3. In the process, he accidentally hit the deceased, who was standing
next to him.
5. The accused, in addition to the formal admissions made, admitted E xhibit A
being the post-mortem report compiled by Dr Christa Hattingh reflecting the cau se of
death being a blunt force head injury. The main postmortem findings included:
“….Deep scalp bruising, intracranial haemorrhage, brain contusions and
intraventricular haemorrhage as well as brain swelling.”
6. The Court a quo convicted the appellant of murder in the form of dolus
eventualis on 31 May 2023 and , after hearing arguments by Counsel, found no
substantial and compelling circumstances justifying a deviation from the prescribed
minimum sentence of 15 (fifteen) years.
7. The appellant was sentence d on 7 June 2023 to 15 (fifteen) years
imprisonment. Leave to appeal was denied, but Justices Fortuin and Cloete granted
the appellant’s petition against his conviction and sentence on 25 March 2024.
EVIDENCE THE COURT A QUO - CHRISTMAS DAY 2021
8. The State presented only Ms Udene Campher's evidence, and the appellant
testified on his own behalf.
9. According to Ms Campher , she was at home on 25 December 2021, sitting
outside her house in the yard. Children were throwing stones at a house in Campher
Street. One of the children went to the deceased’s house , and he (the deceased)
came out of his house and went to the house from where the stones were being
thrown. A quarrel of sorts ensued between the deceased and the bystanders.
10. A neighbour, David Julies , came out of his house with a spade in his hand.
The deceased was standing on the street corner , talking to his son to stop throwing
stones at the houses. According to Ms Campher, the appellant walked up to David
Julies and the deceased from another street . The appellant took the spade from
David Julies and hit the deceased with the back of the spade. Ms Campher denied
that the deceased was struck with the spade by accident or that the deceased or the
bystanders were attacking the appellant.
11. After the de ceased fell to the ground , people started throwing stones at the
appellant, and a stone struck him on the right side of his head.
12. The appellant testified in his own de fence that he was returning from a local
tavern where he had at least 4 (four) beers and other liquor.
13. On his way home, he saw that some people were attacking his brother-in-law.
The appellant attempted to walk towards his brother-in-law but was attacked.
14. Under cross -examination, the appellant testified as follows regarding the
moments before he struck the deceased with the spade:
“PROSECUTOR: No, sir you already told us you saw David Julies standing
there, so your focus was on David at some stage. Ri ght next to David is a
man standing why did you not see that man?
TOLK: ..
BESKULDIGDE: Want is nie hy daar, hy was mos nie alleen daar nie, daar
was nog mense by, rondom ons almal daar.
INTERPRETER: Because it was not only he who was there, A YOUR
WORSHIP, there were also a lot of people around us, your worship.
PROSECUTOR: Yes, there were people around you.
COURT: So you will be able to see even the people that were around there?
TOLK: So u kon die mense daar rondom ook sien?
BESKULDIGDE: Ja.
INTERPRETER: Yes your worship.
PROSECUTOR: But you did not see the deceased standi ng right next to
David?
TOLK: ...
BESKULDIGDE: Ek het die oorledene eers gesien toe hulle sê hy is
oorledene, maar ek het nie hom daar gesien of met hom gepraat of in kontak
gewees met hom of enigsins iets nie.
INTERPRETER: Yes your worship, I only s aw the deceased after I was told
that he is deceased. Your worship, I did not have any contact with him or see
him when I was there, your worship.
PROSECUTOR: I thin k, I think it is for the sake of convenience that you did
not see the deceased next to David.
TOLK: ..
PROSECUTOR: But let us, let us proceed. The deceased was standing next
to David, you might not have seen him.
TOLK: ...
PROSECUTOR: Now you are running away from people chasing you.
TOLK: ...
PROSECUTOR: They are pursuing you; t hey are following you; they are
about to corner you.
TOLK: ...
BESKULDIGDE: Ja, besig om te slaan en dan my vas ja sê maar ja.
INTERPRETER: Yes, your worship also hitting at me your worship.”1
15. And further,
“TOLK: Nou u vat die graaf by Dawid; jy draai om om die persone te slaan
wat jou agtervolg.
1 Record, pp 138, line 17 to 140, line 8
PROSECUTOR: So you hitting in the opposite direction of where Dawid is,
because these people are coming from behind.
TOLK: So u slaan nou in die teenoorgestelde rigting van wat Dawid is want
hierdie mense kom van agter af.
BESKULDIGDE: Ja.
“PROSECUTOR: Yet you missed all those people and connected with
someone standing right next to David who is now behind you.
TOLK: ...
PROSECUTOR: Next to David next to David.
TOLK: ...
BESKULDIGDE: Dit is , met die swing het ek nie, ek het mos net omgedraai
en geswing, ek het nie gekyk waar wie staan, waar wie is; ek het net die
swing gedoen, dit is al.
INTERPRETER: Your worship, I only swinged. I did not check as to where
who was standing, your worship.
PROSECUTOR: Yes, you only swung, but I mean you were not swinging in
David’s direction?
TOLK: ...
BESKULDIGDE: Presies.
INTERPRETER: Precisely your worship.
PROSECUTOR: But that is what happened sir, you must have swung in his
direction, because the deceased was standing right there next to him.
TOLK: ...
BESKULDIGDE: Kan dit wees dat die oorledene, soos hy ook gevra het,
miskien kan beweeg in die graaf in.
INTERPRETER: Now as the prosecutor also put it earlier, your worship, it
could also be that the deceased moved into the spade.
PROSECUTOR: You are a logical man, but the evidence suggest, the
witness who saw you hitting the deceased says the deceased did not move,
he was standing right next to David. You went to David; you took the spa de;
picked it up; and hit the deceased.
TOLK: ...
BESKULDIGDE: Dit is nie waar nie.
INTERPRETER: That is not true, your worship.
PROSECUTOR: But you, you will agree on your version it would have been
difficult to connect with someone standing next to David.
TOLK: ...
BESKULDIGDE: Ja.
INTERPRETER: Yes your worship.”2
22 Record pp140, line 9 to pp 143, line 4
16. The appellant embellished his version during cross -examination by alleging
that the bystanders cornered him and even attacked him with a knife , causing him to
act in self -defence. He moved away from the alleged attackers and turned to take
the “wild swing”.
COMMON CAUSE FACTS AND ALLEGED CONTRADICTIONS IN THE
EVIDENCE
17. The cause of death of the deceased after being struck with a spade against
the head by the appellant on 25 Decem ber 2021 is common cause. The deceased
was hospitalised on the same day and died on 27 December 2021. The cause of the
deceased death , as per the medico -legal postmor tem examination, is a further
common cause fact.
18. The appellant’s version that he took a “wild swing” with the spade in the
direction of unidentified persons (not the deceased) who were attacking him forms
the essential basis upon which the Court a quo rejected his version.
19. The only issue to be decided regarding the appellant’s conviction is if the
State proved murder in the form of dolus eventualis beyond a reasonable doubt. In
S v Naidoo3 the emphasised that a Court of Appeal does not overturn a Trial Court’s
findings of fact unless they are shown to be vitiated by material misdirection o r are
shown by the record to be wrong. In this regard , it was argued on behalf of the
appellant that the Regional Magistrate misdirected herself in not recognising that the
single State witness, Ms Campher, made material concessions during cross -
examination.
20. I cannot agree with the appellant’s submissions. The concessions, if they are
indeed concessions, were correctly made and pertained to aspects that neither
disproved the state’s case nor supported the appellant’s version.
3 2003 (1) SACR 347 (SCA) at para 26
21. Regardless of any criticism against the State witness , the appellant’s
testimony was even more dissatisfactory. The conspectus of the evidence indicates
that the bystanders did not attack the appellant before he hit the deceased with the
spade; the appellant could not recall the number of attackers and their identities. The
appellant could not provide the Court with any corroborating evidence.
22. It may be that some children were throwing stones at houses, but this does
not constitute circumstances under which the appellant could have acted in self -
defence by “swinging wildly” with a spade at a person who posed no threat. The
appellant never claimed that the deceased had threatened him, participated in
throwing stones, or pursued him. The deceased stood beside the man from whom
the app ellant took the spade. Neither one of these men posed a threat to the
appellant, yet he decided to swing the spade wildly in their direction. He missed
David Julies, fr om whom he took the spade, but hit the deceased against the head.
This is not a case of a mere mistake.
DOLUS EVENTUALIS AND SELF-DEFENCE
23. The first question to be determined is whether the State has shown beyond a
reasonable doubt that the accused did not believe that he was lawfully entitled to
strike the deceased with the spade in self -defence. In S v Naidoo 4 the Court held
that if death results from an accused’s negligence, i.e. culpa and not from an
unlawful intention, i.e. dolus, it cannot be said that he was unlawfully intending to use
such excessive force. However, this defence should not be taken further and applied
in circumstances where a person is not under attack and does not need to defend
himself but genuinely and reasonably believes that he is under attack. In the Naidoo
matter, the accused shot his own father mistakenly. He thought his father was a
burglar who attempted to access a kitchen back door.
24. In S v M aarohanye and another 5 the Full Court of the Gauteng Division
affirmed that t he determination of dolus eventualis was, in essence, a subjective
value judgment that w as reliant on inferential reasoning and based on what the
4 [1998] JOL 1958 (TK) at pp 12
5 2015 (2) SA 73 (GJ)
person thought, not on what he should have foreseen. The Court confirmed the
comment by Holmes JA in S v De Bruin & Another regarding the distinction
between objective foreseeability ( culpa) and su bjective foresight ( dolus eventualis),
as follows:
“The fact that objectively the accused ought reasonably to have foreseen such
possibility is not sufficient. The di stinction must be observed between what
actually went on in the mind of the accused and what would have gone on in
the mind of a bonus paterfamilias in the position of the accused. In other
words, the distinction between subjective foresight and objective foreseeability
must not become blurred. The factum probanda is dolus not culpa. These
two different concepts never coincide.”6
25. The state of mind relevant to determining dolus must not be confused with
motive. If an accused person honestly but erroneous ly believed that his conduct in
killing another was justified, then dolus is excluded7.
26. There are no grounds for this Court to reject the findings of the Court a quo.
The deceased posed no threat to the appellant. The accused intentionally took the
spade from David Julies , and he offers no explanation for why he did not see the
deceased s tanding next to Mr Julies. Taking account of the consequence of the
blow, namely that death ensued, the evidence does not support the appellant’s
version of merely tak ing a “wild swing” at perceived attackers . He intentionally took
the spade and hit the appellant, demonstrating dolus. The Court a quo’s conviction of
murder with dolus eventualis does not fall to be rejected, and the conviction should
stand.
THE APPELLANT’S PERSONAL CIRCUMSTANCES
27. The appellant was 27 years of age at the time of his arres t. He is not married
but in a relationship with his girlfriend of 6 years. They have a 2-year-old son, but
the appellant also supported 2 (two) children of his girlfr iend from a previous
6 S v Maarohanye 2015 (2) SA 73 (GJ) at [16] 79I to 80C
7 S v Dougherty 2003 (4) SA 229 (WLD) at p240, para 34
relationship. The appellant attained Grade 12 and was employed as a barber at the
time of the offence. He has no previous convictions.
28. The traumatic and psychological impact of the deceased’s untimely demise on
his family cannot be understated. It is even more tragic when one considers that the
deceased was an elderly defenceless man who was busy attempting to stop children
from throwing stones on Christmas day at the surrounding houses.
EVALUATION OF THE LAW REGARDING SENTENCING
29. The court must consider the seriousness of the offence, the personal
circumstances of th e accused, and the interests of society when determining the
sentence. There must be compelling circumstances that warrant the deviation from
the prescribed sentence.8
30. In State v Kekana 9 The Supreme Court of Appeal held regarding the
deviation from minimu m sentences that, as a general proposition, an accused who
wishes for a lesser sentence to be considered must set out the facts on which such a
conclusion can be premised.
31. In the matter of State v SMM 2013 Vol. 2, SACR 292 SCA at paragraph 13
the following was stated:
“It is also self -evident that sentence must always be individualised, for
punishment must always fit the crime, the criminal and the circumstances of
the case. It is equally important to remind ourselves that sentencing should
always be co nsidered and passed dispassionately, objectively and upon a
careful consideration of all relevant factors. Public sentiment cannot be
ignored, but it can never be permi tted to displace the careful judgment and
fine balancing that are involved in arriving a t an appropriate sentence. Courts
must therefore always strive to arrive at a sentence which is just and fair to
both the victim and the perpetrator, has regard to the nature of the crime and
8 State v Zinn 1969 (2) SA 537 (A) at 540G
9 2019 (1) SACR 1 (SCCA) at para 19
takes account of the interests of society. Sentencing involves a very high
degree of responsibility which should be carried out with equanimity.”
32. Lastly, in State v Nkomo 2007 (2) SACR 198 SCA, the Court reaffirmed:
"In Malgas, ho wever, it was held that in determining whether there are
substantial and compelling ci rcumstances, a court must be conscious that
the Legislature has ordained a sentence that should ordinarily be imposed for
the crime specified, and that there should be truly convincing reasons for a
different response."
REGARDING THE PROPORTIONALITY OF THE SENTENCE IMPOSED
33. Sentencing is inherently within the discretion of a trial court. This Court's
powers to interfere with the trial court's discretion in imposing sentence are limited
unless the trial court's discretion was exercised wrongly or where the sentence is
shockingly disproportionate to the offence. T he essential enquiry in an appeal
against a sentence is not whether the sentence was right or wrong, but whether the
court exercised its discretion properly and judiciously. There must be either a
material misdirection by the trial court or a gross disparity between the sentence and
the nature of the offence. This Court can interfere with a trial court's sentenc e in a
case where the sentence imposed was disturbingly inappropriate10.
34. The appellant has shown no real or true remorse, and although he is young,
he was not a child or even a youth at the time of committing the murder. The Court a
quo highlighted the circumstances throughout why a deviation for a sentence less
than the prescribed minimum of 15 years was not justified.
35. There are no substantial and compelling circumstances which may
cumulatively justify a departure from the sentence prescribed by the Act. 11 The Court
a quo’s finding regarding the objectives of sentence, including reformation,
10 S v Salzwedel and others 1999 (2) SACR 586 at 588A-B [also reported at [1999] JOL
5809 (A); [2000] 1 All SA 229 (A)
11 S v Malgas 2001 (1) SACR 469 (SCA) para 25
rehabilitation, prevention, and deterrence, was correctly considered by not deviating
from imposing the prescribed minimum sentence.
36. The prescribed minimum sentence of 15 years undoubtedly reflects a
comprehensive, correct and careful balance between th e personal circumstances of
the appellant, the seriousness of the offence and the interest of the victim’s family
and community. No amount of sentence will bring the life of the deceased back. The
appellant should be confronted with the consequences of hi s crime and receive a
sentence that will deter other people from committing similar offences.
37. There is no gross disparity between the sentence which the appeal court
would have imposed had it been the trial court and that imposed by the Court a quo.
The sentence is not disturbingly inappropriate.
38. In the result, I propose that the following order is granted:
[1] The appeal is dismissed.
_________________
VAN DEN BERG AJ
ALLIE, J:
I concur.
__________________
ALLIE J