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1991
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[1991] ZASCA 141
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S v Khuduga (325/90) [1991] ZASCA 141 (30 September 1991)
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the appeal of:
SAMUEL KHUDUGA
Appellant
and
THE STATE
Respondent
CORAM
: CORBETT CJ, VIVIER JA,
et VAN DEN HEEVER AJA.
DATE OP HEARING
: 13 September 1991
DATE OF JUDGMENT
: 30
September 1991
JUDGMENT
CORBETT
CJ:
1
CORBETT
CJ:
This is an appeal against sentence. The
appellant was arraigned before Solomon AJ and assessors in the Witwatersrand
Local Division
on the charge of having murdered one Silas Megale ("the
deceased") on 19 April 1988. Appellant pleaded not guilty, claiming that
he had
acted in self-defence. The Court a quo found him guilty of culpable homicide and
he was sentenced to 8 years imprisonment,
of which 3 years were suspended for 5
years on condition that during the period of suspension the accused was not
found guilty of
an offence involving violence for which a term of imprisonment
was imposed without the option of a fine. With the leave of this Court
the
appellant now appeals against the sentence imposed on him.
The deceased met his death as a result of loss of blood through having been
stabbed in the vicinity of his right shoulder. There appear
to have been three
stab
2
wounds. At the time of the stabbing he was working at his place
of employment, i e Ziman's clothing shop in Luipaardsvlei, in the
district of
Krugersdorp. It is not disputed that the appellant was the person who inflicted
the stab wounds, using a large knife
(blade 18 cm in length). There were several
persons in the shop at the time of the stabbing and four of them (including the
proprietor)
were called to give evidence. None of them, however, was able to
give a coherent account of what immediately preceded the stabbing.
The account given in evidence by the appellant was shortly to the following
effect. For more than a year prior to this occurrence
the appellant and his wife
had been estranged and early in 1988 she left him and instituted proceedings for
divorce. He ascertained
that she had formed a relationship with the deceased and
on being served with the divorce papers he decided to go to speak to the
3
deceased about the matter. He spoke to the deceased on the
telephone and the latter suggested that they meet at the shop, the deceased's
place of employment. The appellant went to the shop at about 13h00 on 19 April,
but the deceased was busy and it was agreed that
appellant should return the
same day at about the time when the shop was due to close and the deceased about
to go off duty. This
the appellant did, arriving back at the shop at about
17hl5. He entered the shop and stood by one of the counters. The deceased came
straight to him. The deceased had in his hand a folded newspaper which he placed
on the counter. A short altercation followed. The
appellant then noticed that
"something sharp" was protruding from the newspaper. His evidence
continued:-
"After seeing this I looked at him quickly,
from there it was when I saw his eyes running
round. From there he moved his hand to the direction of the
paper. Well, I had
4
concluded in my mind, that what was in the paper was a weapon. Then both of us
went for the knife. I took my hand - I moved my hand
towards the knife. Well, I
am not quite sure as to what happened at the time, but I think something could
have unfolded this paper.
That is when I found it is my hand holding the handle
of the knife, and he was holding the blade. And then a struggle ensued, it
was
something that happened quickly, and I found myself in possession of the knife.
The deceased then advanced towards me as a person
that was going to hit me with
a karate blow."
The deceased aimed such
a blow at the appellant; the appellant blocked the blow and "swung" with his
right hand in which he was holding
the knife. In so doing he stabbed the
deceased. He could remember only one blow on the deceased's right shoulder. He
stated that
he was frightened when the deceased aimed the karate-type blow at
him because -
5
" .... he could have hit mé with that blow, and maybe taken the knife out
of my hand."
He then turned to go.
There were two men standing between him and the entrance to the shop. He felt
that he was possibly in a trap.
He "scared" them with the knife and fled. He ran
to the nearest police station where he reported the incident and handed over the
knife.
An important issue was whether the folded newspaper
containing the knife was produced at the scene of the
stabbing by the deceased, as alleged by the appellant, or
whether it was brought to the shop by the appellant, as
suggested in the
State evidence. The trial Court was
unable to make a definite finding on this
issue and
conseguently gave the appellant the benefit of the doubt
and
proceeded on the basis that the appellant's version was the
correct
one. The Court, though indicating certain doubts
about the appellant's
evidence, held that in the absence of
6 explicit State evidence regarding the
stabbing and the reason therefor the account and explanation given by the
appellant, which
could "reasonably possibly be true", had to be accepted.
On this basis there was, so held the Court, no evidence of an intention to
kill and the appellant was not guilty of murder. The Court's
judgment
proceeded:
"The question is, is he guilty of any crime? Undoubtedly, if he saw and believed
that the deceased was going to use this weapon on
him, he could and should have
tried to get away. He did not do so. Instead he grabbed the weapon himself and
he must have used it
to some effect, although, as he claims, he may not have
intended to do so.
In our view he was responsible for the death of the deceased and is therefore
guilty of culpable homicide."
The basis
of the verdict of culpable homicide would thus
7 seem to be that the
appellant exceeded the bounds of self-defence, but did not subjectively have the
intention to kill.
With regard to the question of sentence the following personal and other
factors seem to be of relevance. At the time appellant was
42 years of age and
had no previous convictions. After his wife left him, the three children of the
marriage remained in his care
and he was supporting them. He was at the time an
insurance salesman with a stable work record. Clearly at the time the offence
was
committed he was emotionally upset. And immediately thereafter he went to
the police and handed himself over.
In his judgment on sentence Solomon AJ rightly emphasized the fact that as a
result of the appellant's action a man had lost his life
and stated:
8
" and the public expects that any person
who caused another man to lose his life, either deliberately or negligently,
must be properly punished......"
The
learned Judge concluded that he would not be doing justice if he did not send
the appellant to gaol.
I agree that in all the circumstances a wholly suspended prison sentence
would not be appropriate, but at the same time I consider
that the ef fective
sentence of 5 years in gaol is far too severe. Having regard to the cogent
mitigating factors arising from the
appellant's personal circumstances and from
the unusual circumstances under which, according to the findings of the trial
Court,
the crime was committed, I am of the view that a proper sentence would be
5 years imprisonment of which three years are suspended:
in other words, an
effective prison sentence of 2 years. The disparity between this sentence and
that imposed by the trial Judge
is sufficient to warrant
9 interference by
this Court. I shall also modify the terms of the suspension.
The appeal against sentence is accordingly allowed and the sentence of the
Court a quo is altered to read:
"Five years imprisonment, of which three years are suspended for a period of
five years on condition that the accused is not found
guilty of an offence
involving physical violence towards another person committed during the period
of suspension and for which the
accused is sentenced to a term of imprisonment
of six months or more without the option of a fine."
M M CORBETT
VIVIER JA) CONCUR
VAN DEN HEEVER AJA)