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[1991] ZASCA 6
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S v Dladla (622/89) [1991] ZASCA 6; [1991] 2 All SA 109 (A) (5 March 1991)
1.
Case no 622/89 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
Between
THEMBA RICHARD DLADLA
Appellant
and
THE
STATE
Respondent
CORAM:
HEFER, VIVIER et EKSTEEN JJA.
HEARD:
5 March 1991.
DELIVERED:
5 March 1991.
JUDGMENT
VIVIER JA:
The appellant, together with two others,
2/...
2.
appeared before HUGO J and assessors in the Natal Provincial Division on a
charge of murder, arising from the death of one Jabulani
Rodgers Dumakude ("the
deceased") on 21 February 1988. At the commencement of the trial the charge was
withdrawn agáinst the
appellant's co-accused, to whom I shall refer as
accused no's 2 and 3 respectively. At the conclusion of the trial the appellant
was convicted of murder with extenuating circumstances and he was sentenced to
eight years' imprisonment. The trial Judge granted
leave to appeal to this Court
against the conviction on the question whether or not the participation of the
appellant in the events
surrounding the death of the deceased amounted to
murder.
The facts as found by the trial Court may be summarised as follows: During
the afternoon of
3/...
3.
21 February 1988 the appellant and accused no's 2 and 3 were at a shebeen in
the Imbali township near Pietermaritzburg. An argument
started between accused
no 2 and the deceased with the result that the appellant and accused no's 2 and
3 left the shebeen. They
returned later and accused no 2 grabbed hold of the
deceased and stabbed him in the chest with a knife. The appellant thereupon hit
the deceased with a plank so that he would run outside. According to what the
appellant himself later told Colonel Beeslaar, he did
this in order to assist
accused no 2. The deceased ran out and was chased by the appellant and accused
no's 2 and 3. Outside the
shebeen accused no 2 caught up with the deceased and
inflicted another 15 stab wounds upon him until he was dead. The trial Court
found that there was a reasonable possibility that the
4/...
4.
first stab wound inflicted upon the deceased in the shebeen in itself had
caused his death and that the assault by the appellant did
not cause or
contribute to the death of the deceased. The trial Court also found that the
appellant had not formed a common purpose
with accused no 2 to bring about the
death of the deceased prior to the infliction of the fatal wound, but that he
subsequently formed
such common purpose with accused no 2.
The facts of the
present case are therefore that the appellant acceded to a common purpose to
kill the deceased at a stage when the
deceased was still alive but only after
the deceased had been fatally injured, and that nothing done by the appellant
thereafter
expedited the death of the deceased. On those facts the appellant
should have been found guilty
5/...
5.
of, at most, attempted murder. See
S v Motaung
1990(4) SA 485(A) at
521 B-C. This case was decided subsequent to the decision of the trial Court in
the present case. It is not necessary,
therefore, to say anything more about the
trial Court's reasoning or to refer to the decisions on which the trial Court's
judgment
was based and which were fully dealt with in the
Motaung
decision.
In my view the only inference which could be drawn from the conduct
of the appellant in hitting the deceased with the plank is that
he did so with
the intention of associating himself with no 2's attack on the deceased. At that
stage the deceased had already been
stabbed in the chest and the appellant's
statement to Colonel Beeslaar that he wanted to assist accused no 2 by forcing
the deceased
out of the house,
6/...
6.
can only mean that he thought that it would be easier to kill the deceased
once they were outside the house, whêre the deceased
would be alone and
unprotected. His further conduct in pursuing the deceased outside the house
until they caught up with him, and
he was killed, confirms that this was his
intention.
I am accordingly of the view that the appellant should have been found guilty
of attempted murder. In view of his age - he was between
18 and 19 years old
when the offence was committed - and the fact that he has no previous
convictions, a sentence of four years'
imprisonment would be an appropriate
sentence.
In the result the appeal succeeds. The appellant's conviction is altered to a
conviction of
7/...
7.
attempted murder. For the sentence imposed by the trial Judge a sentence of
four years' imprisonment will be substituted.
W. VIVIER JA.
J.J.F.
H
EFER JA. J.P.G. EKSTEEN JA.