About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1993
>>
[1993] ZASCA 18
|
|
S v Nemasetoni (394/92) [1993] ZASCA 18 (5 March 1993)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
Case
No 394/92
/MC
IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the
matter between
MULATEDZI
MOSES NEMASETONI
Appellant
- and -
THE
STATE
Respondent
CORAM:
VIVIER,
F H GROSSKOPF et NIENABER
JJA.
HEARD:
5
March 1993.
DELIVERED:
5
March 1993.
TRANSCRIPT
OF REASONS ORALLY DELIVERED IN OPEN COURT ON
FRIDAY 5
MARCH 1993, BY VIVIER JA AND CONCURRED IN BY F H GROSSKOPF AND
NIENABER JJA.
2
VIVIER JA:
The appellant was convicted by VAN
DER WALT J and assessors in the Venda Supreme Court on one count each
of murder, attempted rape
and assault with intent to do grievous
bodily harm. On the murder count no extenuating circumstances were
found and under the then
prevailing law the appellant was sentenced
to death. On the attempted rape and assault charges he was sentenced
to three years'
and two months' imprisonment respectively which
sentences were ordered to run concurrently. Since the trial the
provisions of the
Criminal Law Amendment Act 107 of 1990 have been
adopted in Venda by the Venda Criminal Procedure Amendment
Proclamation 16 of
1991. In terms of
sec 316A
of the
Criminal
Procedure Act 51 of 1977
, as amended, the appellant appeals to this
Court against the sentence of death imposed in respect of the murder
count. Under the
new Legislation this Court has a
3
discretion to determine, with due
regard to the presence or absence of any mitigating or aggravating
factors, whether the sentence
of death was the only proper sentence.
The deceased, who was the
appellant's grandmother, was killed at Madombidzha in the district of
Tshilwavhusiku on 18 November 1989.
At about six o'clock that
afternoon the complainant on the attempted rape charge, E.S., was
accosted on her way home by the appellant
who stabbed her with a
knife on the forehead and on the top of the head and ordered her to
accompany him to his house where, he
said, he would sleep with her
for a whole month. On the way she managed to break lose and attempted
to seek refuge at the house
of one Ratshilavhi, who turned her away
after the appellant had threatened him. The appellant grabbed hold of
her again and, still
wielding a knife, dragged her to a tree next to
the road where he cut
4
open the front of her skirt and
blouse with the knife, and said that he would rape her there. She
pleaded with him to take her to
his house where she would submit to
him and he eventually agreed. Upon their arrival at the premises
where he lived with his father,
his sister Lucy and the deceased, E.
again managed to get away from the appellant. She ran into a room
where she found the appellant's
father Samuel, the deceased and some
other people. She told them what had happened. Samuel went to the
door and saw the appellant
outside with a piece of burning firewood
in his hand. When Samuel told him to go away the appellant hit him on
the hand with the
piece of wood. A scuffle ensued between the two men
and Samuel managed to take the piece of wood from the appellant and
throw it
away. They started hitting each other with their fists. The
deceased then came between them and pushed Samuel away. The appellant
took out his knife and
5
tried to stab Samuel but by
mistake stabbed the deceased instead. The appellant thereafter
inflicted three more stab wounds upon
the deceased who collapsed and
died shortly afterwards. Samuel, who had gone to search for a weapon,
came back and the appellant
said to him that he would kill him like
he had killed the deceased and that he would burn down his house and
outbuildings. The
police were summoned and the appellant was arrested
later the same evening.
The post-mortem examination of the
deceased's body revealed that she had sustained four stab wounds to
the front and back of the
chest of which two were to the mid upper
back. One of the wounds to her back penetrated the heart and left
lung and caused her
death. None of the other wounds penetrated into
the chest cavity.
The trial Court found that it had
not been established that the appellant had acted with dolus
6
directus in causing the death of
the deceased. It held that the first blow, aimed at Samuel, may
have
been the fatal one. The appellant was nevertheless guilty of
murder as he must have foreseen that he
could hit the deceased who
was in front of him and between him and Samuel.
He
nevertheless took the risk and used the knife and thus had the
required intention to kill in the form of dolus eyentualis. The
appellant's version, which was rejected as false by the trial Court,
amounted to a denial that he had assaulted either the deceased
or E..
In his evidence on the issue of
extenuating circumstances the appellant persisted in this denial. He
testified that his mother had
left his father when he was still a
young child and that he had been brought up by the deceased, whom he
loved very much. He was
taken out of school at an early age as he had
to look after Lucy. The appellant was 24 years
7
old at the time of the commission
of the offences. He admitted no fewer than nine previous convictions
of which four were for assault
with intent to do grievous bodily
harm. He is clearly a man given to violence and his prospects of
reform must be regarded as poor.
The fact that he killed an innocent,
defenceless old lady who had done him no harm and posed no threat to
him is an aggravating
factor.
An important mitigating factor in
the present case is that the appellant did not have the direct
intention to kill when he delivered
the blow which, it must be
assumed in his favour, caused the deceased's death. The State
evidence as to the exact positions of
the appellant, the deceased and
Samuel in relation to one another when the fatal blow was struck, is
not altogether clear. In my
view the State cannot be said to have
established that the risk involved was objectively high. Nor has it
been established that
8
the appellant subjectively
appreciated that there was a high risk of the deceased being killed
when he stabbed at Samuel. It is
true that the appellant continued to
stab the deceased three more times, but the exact position and nature
of these three stab
wounds are not clear. Dr Roubos, who conducted
the post-mortem examination of the deceased's body, was not available
to give evidence
at the trial, and his report which was placed before
the trial Court by agreement between the parties, merely described
these wounds
as three nonpenetrating cut wounds of the chest, of
which two were at the right armpit. Another mitigating factor is that
the murder was neither planned nor premeditated but was committed on
the spur of the moment while the appellant was provoked and
angered
by the fight with Samuel.
In all the circumstances I am of
the view that, while this remains a most serious case, it cannot
9
be placed in the category of the
exceptionally serious cases where the death sentence is imperatively
called for. Although the death
sentence may be a proper sentence, it
has not been shown to be the only proper sentence. In my view a
sentence of 20 years' imprisonment
would adequately serve the main
purposes of punishment.
In the result the appeal is
upheld. The death sentence is set aside and for it is substituted a
sentence of 20 years' imprisonment.
W. VIVIER JA.
F H GROSSKOPF JA)
NIENABER JA) Concurred.