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1990
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[1990] ZASCA 101
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S v Netshiavha (366/87) [1990] ZASCA 101 (25 September 1990)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
CASE NO: 366/87
In the appeal of:
NALEDZANI
PETRUS NETSHIAVHA
APPELLANT
and
THE STATE
RESPONDENT
Coram
: VAN HEERDEN et F H GROSSKOPF JJA; GOLDSTONE AJA
Date heard: Friday 14 September 1990 Date delivered: 25 Sept. 1990
2
JUDGMENT
GOLDSTONE
AJA:
The appellant was convicted of culpable homicide by Klopper ACJ in the
Supreme Court of Venda. He was sentenced to imprisonment for
ten years* With
leave of the Court
a quo
the appellant now appeals to this Court against
the sentence.
The trial was the sequel to events which occurred on 20 September 1985 in
consequence of which the appellant killed the deceased,
one Nephalama, by
striking him with an axe on the head and neck. The appellant pleaded guilty to
culpable homicide and in support
thereof his counsel handed in a written
3
statement. It reads as follows:
"I, the undersigned accused NALEDZANI PETRUS NETSHIAVHA plead not guilty to the
charge of murder. I deny that I unlawfully and intentionally
caused the death of
the said JOHN NEPHALAMA GUMANI. In terms of
s.258(a)
of the
Criminal Procedure
Act 51 of 1977
, I plead guilty to culpable homicide. In that I unlawfully and
negligently caused the death of the said deceased. I had mistaken
the deceased
to be a bat and it was only later that I realised that what I have struck was a
human being. The reasonable man would
have foreseen that it was a human being
and a reasonable man would have not killed the deceased. I did not comply with
the standard
of the reasonable man, thus I accept negligently.
(sic)."
4 Counsel for the State accepted the plea
and Klopper ACJ duly convicted him.
The appellant was called to testify in mitigation of sentence. He informed
the Court that he was 25 years old and married. Both he
and his wife were
unemployed and they had one child of the marriage. He said that he regretted
what he had done. No evidence was
led as to his standard of education. He added
that:
"My Lord, I did not have the intention to kill the deceased, I was only
frightened about what was happening."
He said also
that he and the deceased had no problems between them prior to the
accident.
5 In sentencing the appellant, Klopper ACJ in effect held that the
appellant did intend to kill the deceased and on that basis he
imposed what is
clearly a heavy sentence.
Almost two and a half years after the trial, an application was made to Le
Roux CJ in terms of
section 316
of the
Criminal Procedure Act, 51 of 1977
, for
leave to appeal against the sentence. In terms of the provisions of
section
316(3)
of
the Act, leave was also sought to lead further evidence relevant to
sentence.
Four witnesses were called to the witness stand. California Netshiavha, the
wife of the appellant, said that on the night in question
she heard a scratching
sound. She saw something like a bat hanging from the rafters. The appellant went
for his axe. She heard his
footsteps outside after which, in a state of fright,
she followed the appellant to his brother's
6 kraal. She knew of no ill
feelings between the appellant and the deceased.
The brother of the appellant, Mashonelo Netshiavha, testified that the
appellant arrived at his kraal on the night in question and
told him that he had
chopped a creature which resembled a bat. He returned with the appellant to his
kraal. The creature was not
there. However, he saw something like a small donkey
crossing a fence in the vicinity. The appellant followed the creature and
chopped
it with his axe. A short while later, their eldest brother, Gideon
Netshiavha, drove up in his motor car and in the reflection of
the vehicle's
lights they saw what looked like the body of a small child with the head of an
adult. The face was that of the deceased.
The body was dressed only in a vest
and underpants. This witness also said that he knew of no ill feelings between
the appellant
and the deceased.
7
Gideon Netshiavha described his journey home. Strange animals
were seen by him in the road. He drove into and killed two of them and
put them
into his motor car. One looked like a hyena and the other a pole-cat. He came
across his brothers standing next to a small
body with the head of the deceased.
He called the headman to the scene. When he arrived the body had transformed
itself into that
of the deceased. This shocked him. On the following day the
appellant and the police found the clothes of the deceased neatly wrapped
and
covered by a stone. A knife and money were found with the clothes. There was no
enmity between the appellant and the deceased
according to this witness.
Then there was the evidence of the investigating officer.
He found the
body of the deceased. Next to it were the bodies
of two wild animals. Gideon
Netshiavha explained to him what
8 had happened that night. He also confirmed
the discovery on the next day of the appellant's clothing.
In a report to this Court, Le Roux CJ refers to the difficulty which one has
in weighing up the evidence concerning what appears to
be a genuine belief in
witchcraft. He referred to the apparent absence of a motive for the killing of
the deceased. As I understand
his report, Le Roux CJ would not have rejected the
statement by the appellant that he did not intend to kill the deceased. I agree.
This approach differs from that of Klopper ACJ.
In any event, in terms of
section 316(4)
of Act 51 of 1977, the further
evidence received by Le Roux CJ is deemed, for the purposes of this appeal, to
be eyidence taken or
admitted at the trial. The result is that this Court is now
obliged to consider afresh the question of sentence in the light of
9 the
further evidence.
I agree with Le Roux CJ that there is no reason to reject the appellant's
stated deep belief in witchcraft or his disavowal of an
intention to kill the
deceased. Indeed, that was conceded by counsel for the State. That belief was
clearly and directly related
to the attack on the deceased. Objectively
speaking, the reasonable man so often postulated in our law does not believe in
witchcraft.
However, a subjective belief in witchcraft may be a factor which
may, depending on the circumstances, have a material bearing upon
the accused's
blamewocthiness:
S v Nxele
1973 (3) SA 753
(A) at 757 A. As such it may
be a relevant mitigating factor to be taken into account in the determination of
an appropriate sentence.
In my opinion, it is a relevant factor in the present
case and indeed it offers the only explanation for the appellant having killed
the deceased. As already mentioned, the evidence
10 disclosed that the
appellant and the deceased were neighbours who were on good terms with each
other. There was thus no objective
motive for the crime. On the other hand, if
one applies an objective test, the appellant acted grossly negligently in
striking out
with an axe at a person who in no way acted as a threat to his life
or property. Indeed, his negligence was admitted by him in his
statement to
which reference is made earlier in this judgment. That negligence resulted in
the most unfortunate death of an innocent
person. Such conduct merits a sentence
of imprisonment for a substantial period of time. Counsel for the State
submitted that an
effective sentence of four years' imprisonment would be
appropriate. He suggested also that in addition there should be a further
period
of imprisonment to be suspended on appropriate conditions. I agree with the
suggested effective sentence. However, I do not
regard this as an appropriate
case for imposing an additional suspended sentence.
11
The order of the Court is as follows:
The sentence of ten years' imprisonment imposed upon the appellant for his
conviction of culpable homicide is set aside and in place
thereof he is
sentenced to four years' imprisonment.
R.J GOLDSTONE VAN HEERDEN JA ) GROSSKOPF JA ) Concur