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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, UPINGTON
Case No:
In the matter between:
EDWARD DE BRUIN
and YES/ NO
YES/ NO
YES/ NO
YES/ NO
KS 20/2024
Applicant
THE ST ATE Respondent
Heard: Determined on the papers
Delivered on: 23 May 2025
Summary: Application for leave to appeal against his conviction and
sentence.
ORDER
The application for leave to appeal is dismissed.
JUDGMENT
Mamosebo ADJP
2
[1] On 06 May 2024 the applicant was convicted of the following: Count
1: Murder read with the provisions of s 51(1) of the Criminal Law
Amendment Act, 105 of 1997 (CLLA) ; Count 2: kidnapping read
with s 51(2) of the CLLA; Count 3: Assault with intent to do grievous
bodily harm; Count 4: Contravention of s 3(1) read with sections 1,
120(1 ), and 121 of the Firearms Control Act, 60 of 2000 (FCA) and
Count 5: contravent ion of s 90 read with sections 1 , 120( 1 ) and 121
of the FCA. He was ·sentenced in respect of all counts (1 -5),
respectively , as follows: 25 years, 10 years, 3 years, 5 years and 12
months imprisonment. The sentences were ordered to run
concurrently with the sentence in Count 1.
[2] The applicant now seeks leave to appeal against his conviction and
sentence in Count 1 . (murder) to the Supreme Court of Appeal,
alternatively , to the Full Court of this Division. The application is
opposed. The parties have agreed that this application be
adjudicated on the papers and have also filed heads of argument.
The hearing of oral argument as contemplated in s 17(2)(d) of the
Superior Courts Act is therefore dispensed with. The Notice for
Application for Leave to Appeal was filed on 27 November 2024 and
the administrative glitches caused a delay in the adjudication of this
matter, which is regrettable .
[3] The following are the grounds upon which the applicant relies to
substantiate his application for leave:
Ad conviction
3
3.1 That another court may find that the state failed to prove
beyond reasonable doubt that the applicant had the
intention to murder the deceased;
3.2 That on all the evidence considered holistically , the
applicant acted negligently in killing the deceased and that
-another court may find that the applicant should have been
convicted of culpable homicide.
Ad sentence
3.3 That another court may find that the sentence of 25 years
imprisonment imposed on the applicant is shocking and
inappropriate taking into account the applicant's personal
circumstances.
[4] Cachalia JA, writing for a unanimous court in Caratco1, on the
threshold to be met, made these-instructive remarks:
'In order to be granted leave to appeal in terms of s 17(1 )(a)(i) and s 17(1 )(a)(ii)
of the Superior Courts Act2 an applicant for leave must satisfy the court that the
appeal would have a reasonable prospect of success or that there is some other
compelling reason why the appeal should be heard. If the court is unpersuaded
of the prospects of success, it must still enquire into whether there is a
compelling reason to entertain the appeal. A compelling reason includes an
important question of law or a discrete issue of public importance that will have
1 Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd 2020 (5) SA 35 (SCA) para 2
2 Section 17 of the Superior Courts Act, 10 of 2013: Leave to appeal
(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that
(a)(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including conflicting
judgments n the matter under consideration .
4
an effect on future disputes. But here too, the merits remain vitally important
and are often decisive.'
[5] The first ground claims that the state has failed to prove intention
beyond a reasonable doubt and, if granted leave, another court
would find that the applicant _acted negligently , and would convict
him of culpable homicide.
[6] The uncontroverted evidence before the court was that the applicant
was armed with a loaded and unlicenced firearm which he used to
fire several shots aimed at the deceased resultantly causing his
death: The test to determine intention is subjective and the test to
determine negligence is objective.
[7] Snyman defines dolus eventualis 3 as follows:
'A person acts with intention in the form of do/us eventualis if the commission
of the unlawful act or the causing of the unlawful result is not his main aim, but:
(a) He subjectively foresees the possibility that, in striving towards his main
aim, the unlawful act may be committed or the unlawful result may be
caused.and
(b) He reconciles himself to this possibility .'
[8] The eyewitness Chico Patrick Mtuyedwa's evidence appears at
paras 11 to 15 of the main judgment. It was highlighted in the
judgment that Mtuyedwa's evidence does not stand alone but was
corroborated to a great extent by Aobakwe , Dr Fouche, and Sgt
Pico. I found Mtuyedwa to be a credible witness. Having assessed
3 CR Snyman, updated by SV Hoctor, Criminal Law , 7th Edition, 2020, at 161
5
the evidence in totality in conformity with the correct approach
enunciated in Chaba/ala 4 I rejected the version of the applicant as
palpably false where it differed with the state's version. I particularly
rejected the allegation that the deceased was armed with a knife.
Para 66 of the main judgment deals with the contradictions taking
cue from Mkohle 5 and Mafa/adiso 6 and find it unnecessary to repeat
them here.
[9] The contention that the applicant be found guilty of culpable
homicide was also dealt with as the state had urged the court to find
the form· of intent to be do/us directus in the main judgment paras
71 -76. The court's reasoning why the applicant, and his co
accused were convicted of murder (do/us eventua/is) with a
common purpose is that the applicant foresaw the possibility of the
result and reconciled himself with the possibility that firing several
shots at the deceased could result in his death but persisted in not
only chasing him but also firing shots at him. If I erred at all it would
be that I should have found that the applicant had direct intent to
murder.
[1 O] Counsel argues that a term of imprisonment of 25 years is
shockingly inappropriate. Murder is unquestionably a heinous
offence and there must be a balancing act when imposing sentence.
But this court had considered the applicant's personal and mitigating
circumstances, the issue of remorse, age and rehabilitation
prospects of the applicant. Para 22 of the judgment on sentence
4 S v Chabalala 2003 (1) SACR 134 (SCA) para 15
5 S v Mkohle 1990 (1) SACR 95 (A) at 98f -g
6 S v Mafaladiso 2003 (1) SACR 583 (SCA) at 593j -594e
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carefully explains why the court deviated from imposing the
prescribed minimum sentence of life imprisonment.
[11] Having dispassionately considered the grounds raised by the
applicant in an effort to determine whether there are reasonable
prospects that anoth~r court would come to a different finding than
this court whose judgment is sought to be appealed against, I have
not found any. In the result, the application for leave to appeal
stands to fail.
[12] The following order is made:
The application for leave to appeal is dismissed.
(f-M.C.MAMOSEBO
ACTING DEPUTY JUDGE PRESIDENT
NORTHERN CAPE DIVISION
For the Applicant:
Instructed by:
For the Respondent:
Instructed by: Adv RJ Pieterse (Judi care)
Justice Centre (Kimberley)
Adv. JJD Rosenberg
Office of the Director Public Prosecutions