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[1992] ZASCA 30
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S v Makuhula (377/90) [1992] ZASCA 30 (19 March 1992)
Case No 377/90 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
PETER MAKUHULA
Appellant
and
THE STATE
Respondent
CORAM
: NESTADT, MILNE JJA et HOWIE AJA
DATE OF HEARING
: 12 March 1992
DATE OF JUDGMENT
: 19 March
1992
J U D G M E N T
/MILNE JA
2
MILNE JA:
The appellant and four others were charged with two counts of murder and one
count of malicious injury to property before Van Schalkwyk
AJ sitting with two
assessors. The appellant was Accused No 5 at the trial. The first murder charge
related to the killing of one
Colin Duncan and the second murder charge related
to the killing of one Christopher Cozette. All the accused were acquitted on the
second murder charge and the charge of malicious injury to property, but Accused
No 4 and the appellant were found guilty on the
first murder charge of murder
with extenuating circumstances and each of them was sentenced to 12 years'
imprisonment.
With leave of the court a quo the appellant appeals against his conviction of
murder.
The evidence for the State relating to the
3
murder of Colin Duncan was summarized by the trial court
as follows:
"... Daar was gedurende die namiddag 'n bakleiery in the omgewing van
beskuldigde 3 se huis. Dit het blykbaar ontstaan nadat ene
Adam, wat voor die
huis gesit het, die oorledene Cozette se bril afgeneem het toe hy by die huis
verbygeloop het. Blykbaar het die
oorledene se familie sowel as die oorledene
Duncan na die toneel gegaan as gevolg van die bril insident. Hulle het daar
verskeie
persone aangerand. Volgens die getuienis, was die oorledene Duncan met
'n piksteel bewapen die middag.
Daardie aand tussen 8 en 9 namiddag het die vyf beskuldigdes hul opwagting
gemaak by die huis'van ene Maureen Adams in Vrygrond.
Al vyf die beskuldigdes
was gewapen. Beskuldigdes 1, 2, 3 and 5 het in die omgewing van die agterdeur
van Maureen Adams se huis stelling
ingeneem terwyl beskuldigde 4, wat luidens
die getuienis in 'n jas gekleed was, by 'n vuur voor die huis van die bure, by
name Carelse,
gaan staan het. Beskuldigde 1 het blykbaar aan Maureen Adams
gesê hulle kom om verskoning te kom vra. Hulle het haar ook uitgevra
oor
wat gebeur het die middag. In daardie stadium het die oorledene Duncan uit die
Carelse se huis gekom en gestap in die rigting
van Maureen Adams en die vier
beskuldigdes wat met haar staan en praat het. Toe die oorledene feitlik by hulle
is, kom beskuldigde
4 van die vuur voor die Carelse se huis aangehardloop en kap
die oorledene met 'n byl teen die kop. Die oorledene het as gevolg van
hierdie
hou feitlik in die agterdeur van Maureen Adams se
huis
4
neergeval.
Toe beskuldigde 4 die oorledene slaan, het ene Denise geskree
en dit het veroorsaak dat sekere ander manspersone, Richard Marten,
Rodney Adams
en Barend Adams, uit die Carelse se huis kom en Maureen Adams se huis binnegaan.
Die oorledene Duncan is intussen in
die huis geneem waar hy verpleeg is. In
hierdie stadium was die deure van Maureen Adams se huis toegemaak en een of meer
van die
beskuldigdes, dit is nie duidelik wie nie, het toe die vensters van die
huis stukkend geslaan. Die mans in die huis, insluitende
die oorledene Duncan,
het toe wapens soos stokke en ' n hark en pikstele gegryp. Hulle is uit die huis
om die beskuldigdes die stryd
aan te sê. Hulle het die beskuldigdes gejaag
en in 'n stadium, blyk dit, het die beskuldigdes omgedraai, die oorledene Duncan
het geval en beskuldigde 4 het op sy rug gaan sit en het hom met die byl oor die
kop begin slaan. Luidens die getuienis het beskuldigde
5 (appellant) kom hand
bysit deur na die oorledene te slaan met 'n voorwerp wat soos 'n pange of sabel
gelyk het. Die ander beskuldigdes,
1, 2 en 3, was nie by hierdie aanval betrokke
nie. Die oorledene Duncan is later na die hospitaal vervoer waar hy aan sy wonde
beswyk
het.
Volgens die getuienis van die Staats-patoloog, dr Fosseus, wat 'n
regsgeneeskundige lykskouing op die lyk van die oorledene uitge-voer
het, was
die oorsaak van sy dood kopbeserings. Die beserings het uit veel-vuldige kap-
en/of snywonde bestaan en het hy getuig dat
'n groot mate van geweld gebruik is
om die wonde toe te dien. Hy het die belangrikste wonde soos volg beskrywe in sy
verslag wat
ingehandig is:
5
'1. In the right side of the head above and in front of the ear was an extensive
area of criss-crossing sutured lacerated wounds
ranging in size from 2 cm - 5
cm. The underlying temporal bone was extensively fractured, there were large
contusions of the right
temporal lobe of the brain, the brain was oedematous and
extensive pontine haemorrhages were present.
2. In the right forehead was a 4 cm oblique lacerated wound with underlying
depressed fracture. The fracture in the outer table of
the skull was roughly
triangular in shape, the inner fracture was circular in
shape.'"
Subject to what is said below with regard
to the medical
evidence, this correctly summarized the evidence of
Maureen
Adams and her daughter, Kashiefa, and Dr Fosseus,
the State Pathologist.
Both Accused 4 and the appellant advanced the
defence of an alibi but the court rejected their evidence
as false and was
satisfied
"... dat die beskuldigdes (referring to Accused 4 and 5) die oorledene aangerand
het soos beskryf deur Maureen Adams en haar dogter
Kashiefa."
The finding of the trial court that
the
6
evidence of Maureen Adams and her daughter and Dr Fosseus
was truthful and accurate was not challenged.
The sole attack upon the conviction of the appellant was that, on the
evidence of the State, it was not proved beyond reasonable doubt
either (a) that
the deceased was alive at the time the assault was perpetrated upon him by the
appellant, alternatively, (b) that
the injuries sustained by the deceased prior
to the assault by the appellant were not fatal or that the appellant's
participation
had expedited the death of the deceased. In the light of the
judgment in S v Motaung and Others 1990(4) SA 485 (A) it was conceded
by the
State that if it was reasonably possible that the deceased was already dead when
the appellant joined in the attack upon him
or that the deceased had already
been fatally injured when the appellant commenced his attack and that the
appellant's conduct did
not hasten the deceased's death, then the conviction for
murder could
7 not stand and would have to be replaced by a conviction
of attempted murder. This concession assumed of course
the absence of proof of a prior common purpose.
As already mentioned, the trial court found that the deceased died in
hospital. The State Pathologist was able to say from his own
examination of the
body of the deceased that the deceased had received extensive hospital
treatment. The possibility that such treatment
would have been administered to a
corpse is so remote that it can be excluded. It follows that the deceased was
alive at the time
the appellant joined in the attack on him, and indeed the
appellant's counsel virtually abandoned this point.
The second leg of the argument, however, raises serious problems for the
State. It is apparent that there were two separate attacks
on the deceased. The
first occurred when Accused No 4 hit him on the head with
8
an axe. No one else was found to have participated in
this
attack. On the contrary, the trial court found that there was no evidence of a
common purpose to attack the deceased at that
stage. It follows that if the blow
which Accused No 4 struck him at that stage ("the first wound") was the cause of
death and it
was not proved that any subsequent blows struck by the appellant
had hastened or contributed to the death of the deceased, the appellant
could
not have been convicted of murder. I shall return to this aspect of the matter
in a moment. The second attack took place at
a later stage. The deceased had
recovered from the first wound sufficiently to launch an attack in company with
Richard Marten, and
Rodney and Barend Adams on the appellant and the other
accused. During the course of the pursuit however, the appellant and the other
accused suddenly turned round and chased the deceased and the other members of
his party. The deceased then fell. Why he fell is
unknown - conceivably because
the first wound was taking its toll. Be that as
9
it may, when the deceased fell, Accused No 4 then having
caught up with him, straddled the deceased or sat on him and again hit him on
the head with the axe ("the second attack"). The appellant
joined in the second
attack. Counsel for the State submitted that the appellant's participation in
the second attack commenced, for
all practical purposes, simultaneously with
Accused No 4's attack. It followed, so he argued, that the appellant must have
formed
a common purpose to murder the deceased either before or, at the latest,
simultaneously with Accused No 4's commencement of the second
attack.
I return now to the cause of death. The State Pathologist in his post mortem
report gave the cause of death as "head injuries" (my
emphasis). In
cross-examination, however, he said that any one of the head injuries which he
observed could have caused death. He
included the first wound despite the fact
that between receiving it and the injuries received in the second
10
attack he, the deceased, had himself launched an attack
on the appellant and the other accused. It was put to him that this was "very
unlikely" but he declined to agree, saying "Well, one
often, one sees of course
one sêes patients come wandering in with severe head injuries. I mean it
does happen and they presumably
are conscious enough to get to hospital". He
also conceded that any one pf the wounds he saw could have been the first wound
and,
as I have already mentioned, that that wound may have caused the death of
the deceased. There is no evidential basis for finding
it proved that the wounds
which were inflicted subsequent to the first wound hastened or in any way
contributed to the death of the
deceased. On this ground alone thé trial
court should, with respect, have found that the charge of murder had not been
proved
against the appellant.
In any event, assuming in favour of the State that it was proved that the
first wound was not the fatal
11
wound or that it was proved that the wounds inflicted by
the appellant did hasten the death of the deceased the
result is the same. The trial court did not find that at
the time he assaulted the deceased the appellant had a
common purpose to murder. In fact it seems that the
matter was not approached from this angle at all. What
the learned Judge said was the following:
"Die Hof is gevolglik oortuig dat beskuldigdes 4 en 5 (the appellant) die
oorledene aangerand het, dat hulle moes besef het dat die
aanranding die dood
van die oorledene kon veroorsaak, dat hulle nietemin met die aanranding volhard
het en dat die oorledene as gevolg
van die aanranding dood
is."
One must bear in mind that at that stage the case of S
v
Motaung & Others, supra, had not yet been decided.
Indeed the remarks of the learned Judge dealing with
sentence indicate that he found that there was no common
purpose to murder
until Accused No 4 had commenced the
second attack. What he said was
this:
"Ten gunste van beskuldigde 5 (appellant) kan daar darem gesê word dat hy
eers reageer het nadat beskuldigde 4 blykbaar
op eie houtnie
al die
aanranding begin het." (My emphasis).
12
In the absence of a finding of common purpose at the relevant
stage it is difficult for this court to arrive at such a conclusion.
It may be
that on a balance of probabilities such common purpose was established. It must
be borne in mind, however, that the trial
court expressly found that the
appellant's attack did not commence until after Accused No 4 had sat astride the
deceased and commenced
his second attack. One certainly gains the impression
from the evidence that the appellant's attack followed almost immediately on
Accused No 4's attack. The evidence is however not sufficiently clear to exclude
the reasonable possibility that when the appellant
joined in the chase of the
deceased and his party he intended to do no more than to chase them away and
that he formed the intent
to kill only after Accused No 4 had already commenced
the second attack. Assuming in favour of the State that it was not the first
wound alone that caused the death of the deceased then it may
13
well have been Accused No 4' s f irst blow in the second
attack that did. A common purpose to murder on the appellant's part at that
stage was not proved beyond reasonable doubt.
In the result the conviction of murder cannot
stand. It was common cause, and rightly so, that the
evidence clearly warrants a conviction of attempted
murder.
I deal now with the guestion of sentence. The appellant has a wife and two
children and also a child in Transkei, whom he supports.
What counts against him
is the fact that some four and a half years before he committed this particular
offence he was convicted
of culpable homicide involving the use of a knife in
respect of which he was sentenced to 3 years' imprisonment of which half was
suspended conditionally. He also has a conviction for escaping in March 1983. In
all the
14 circumstances I consider that a sentence of 8 years'
imprisonment would have been an appropriate sentence had
it been imposed on 3 June 1988 (which was when the trial
court sentenced the appellant). Since then the appellant
has served close on four years of his sentence and as
this court's sentence cannot be antedated I shall deduct
that period of four years from the sentence which I would
have imposed. See Motaung's case, supra, at 527 J -
528C.
The appeal is allowed to the following extent. The conviction of the
appellant for murder is altered to a conviction for attempted
murder. A sentence
of 4 years' imprisonment is substituted and this period of 4 years will run from
the date on which this judgment
is delivered.
A J MILNE
Judge of Appeal
NESTADT JA ]
] CONCUR HOWIE AJA ]