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[2019] ZASCA 177
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Francis and Others v S (866/2018) [2019] ZASCA 177 (2 December 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 866/2018
In
the matter between:
RODERICK
BASIL
FRANCIS
FIRST APPELLANT
MOHAMED
SYD CHUNARA
SECOND APPELLANT
INDROOS
MEYER
THIRD APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Francis
& others v The State
(866/2018)
ZASCA 177 (2 December 2019)
Coram:
Ponnan, Mbha, Mocumie and Mbatha JJA
and Weiner AJA
Heard:
14 November 2019
Delivered:
2 December 2019
Summary:
Criminal law – murder committed with intent in the form of
dolus eventalis
– having regard to the nature, extent
and circumstances of assault on deceased – the only reasonable
inference to be
drawn is that appellants subjectively foresaw that
their conduct could result in the deceased’s death but were
reckless as
to such consequence – appeal dismissed.
ORDER
On
appeal from:
Witwatersrand Local
division, Johannesburg (Boruchowitz J sitting as court of first
instance):
The
appeal against conviction and sentence is dismissed.
JUDGMENT
Mbha
JA (Ponnan, Mocumie and Mbatha JJA and Weiner AJA concurring):
[1]
The three appellants
were convicted on 5 September 2007 in the Witwatersrand Local
Division, Johannesburg (the high court) (per
Boruchowitz J), of
murder read with the provisions of s 51(1) of the Criminal Law
Amendment Act 105 of 1997 (the Act). After
finding that there
were substantial and compelling circumstances present that justified
a departure from the prescribed minimum
sentence of life
imprisonment, the high court sentenced each appellant to a term of
ten years’ imprisonment, five years of
which was suspended on
certain conditions. They appeal with leave of the high court against
both conviction and sentence.
[2]
The factual background that gave rise to the conviction is largely
undisputed or common
cause. During the course of the evening of
21 January 2007, the deceased Stephen Peter Barnes, was brutally
assaulted and
subsequently died as a result of multiple blunt force
injuries to his head, chest and abdomen. Earlier that evening, at
approximately
20h30 to 21h30, the three appellants had travelled
together in a Mercedes Benz motor vehicle, driven by the second
appellant, and
which belonged to a client of the latter, to a block
of flats in Vrede Park, Johannesburg, known as Beech Court. At
the flat
they visited Ms Lavern Lyners who was with her sister,
Nazlee, and their cousin Chrystal. Whilst they were all seated in the
living
room consuming alcoholic beverages, a Mr Natalian Steward
arrived and reported that the deceased had broken into the Mercedes
Benz
motor vehicle and stolen a radio-tape from the instrument panel.
[3]
Upon receiving the report, the appellants and the three ladies went
out to inspect
the vehicle. Thereafter they went looking for the
deceased, who they later pursued and ultimately caught up with
outside number
5 Palm Court. When they caught up with the deceased
the first appellant struck him with a fist causing him to fall
heavily to the
ground. Thereafter, all three appellants –
individually and jointly – kicked, jumped and trampled upon the
deceased’s
head, chest and abdomen. After the assault, the
first and second appellants dragged the deceased from the point of
the assault
in front of number 5, Palm Court, for a distance of
approximately 20 metres towards another block of flats known as
Tambotji Court.
All three appellants thereafter returned to the
Mercedes Benz motor vehicle and drove away. The deceased died later
that same evening
of multiple blunt force injuries.
[4]
At the trial, although each of the appellants, who testified in their
defence, admitted
that they had assaulted the deceased, they stated
that it was far less severe than testified to by the state witnesses.
They denied
that in doing so they possessed the requisite
mens
rea
to cause the deceased’s
death. They accordingly contend that they should have been found
guilty on the lesser charge of culpable
homicide or perhaps even
assault with intent to commit grievous bodily harm or common assault.
[5]
Five witnesses testified on behalf of the State, namely Ms Lyners, Mr
Oren Virgil
Magascan and Ms Minie Janse Van Rensburg who were
eye-witnesses to the assault, as well as Mr Steward and Dr Annemarie
Louis Mattheus,
a pathologist who performed the autopsy on the
deceased. The court also called a further witness, Ms Thanya
Billings, in
terms of s 186 of the Criminal Procedure Act 51 of
1977(the CPA), who is the owner of number 5 Palm Court and who also
witnessed
the assault.
[6]
The high court, in analysing the totality of the evidence led at the
trial, found
that it had been established that each of
the appellants participated in the assault on the deceased by either
jumping
on or kicking him with their booted feet and by jumping and
trampling on his head, chest and abdomen after he had fallen to the
ground, thus inflicting the serious injuries which caused his death.
It found that this was the golden thread that ran through
the
evidence of each of the State witnesses who witnessed the assault.
[7]
In arriving at the above conclusions, the high court found that the
evidence of the
eyewitnesses to the assault was consistent with the
medical evidence by the pathologist, Dr Mattheus. This evidence
established
that those who perpetrated the assault, applied blunt
force to the deceased’s head, that heavy blunt force was
applied to
the deceased’s chest resulting in the deceased
sustaining fractures to his ribs and to the abdomen, resulting in the
tearing
and laceration of his liver, mesentery and kidneys. Further,
that the sub-arachnoid haemorrhaging in the brain and the multiple
haemorrhages found on the deceased’s head were all indicative
of the infliction of heavy pressure, which was consistent with
what
Ms Lyners, Mr Magascan and Ms Van Rensburg had testified to. In the
latter regard, Mr Magascan and Ms Van Rensburg testified
in
particular, to the deliberate moving of the deceased’s head
after he had fallen, and the propping of his head against
the drain,
whereafter one or more of the appellants trampled upon and kicked
him.
[8]
The test for the element of intention in the form of
dolus
eventualis
required for murder, was described as follows by Holmes JA in
S
v Sigwahla:
[1]
‘
1.
The expression “intention to kill” does not, in law,
necessarily require that the accused should have applied his
will to
compassing the death of the deceased. It is sufficient if the accused
subjectively foresaw the possibility of his act causing
death and was
reckless of such result. This form of intention is known as
dolus
eventualis
as distinct from
dolus
directus
.
2. The fact that
objectively the accused ought reasonably [to] have foreseen such
possibility is not sufficient. The distinction
must be observed
between what actually went on in the mind of the accused and what
would have gone on in the mind of a
bonus paterfamilias
in the
position of the accused. In other words, the distinction between
subjective foresight and objective foreseeability must
not become
blurred. The
factum probandum
is
dolus
, not
culpa
.
These two different concepts never coincide.
3.
Subjective foresight, like any other factual issue may be proved by
inference. To constitute proof beyond reasonable doubt, the
inference
must be the only one which can reasonably be drawn. It cannot be so
drawn if there is a reasonable possibility that subjectively
the
accused did not foresee, even if he ought reasonably to have done so,
and even if he probably did do so.’
[9]
The chief post-mortem findings record that the deceased sustained 26
abrasions over
his body. It is significant that Dr Mattheus was of
the view that the injuries to either the head, the chest or abdomen
of the
deceased could have killed the deceased. Each of the
appellants sought to downplay their role in the assault on the
deceased. During
cross-examination of the state witnesses it was
sought to be suggested that other persons, who were present during
the assault
on the deceased, may have been responsible for the very
serious injuries inflicted upon the deceased. But, no evidence was
forthcoming
from any of the appellants, when they testified to
support such a proposition. On their own evidence, given the presence
of each
at different times during the assault of the deceased, it was
simply not possible for other persons to have inflicted such serious
injurious without them being aware of it. Clearly, the superficial
assaults that the appellants persist in saying they inflicted
on the
deceased cannot be accepted as true, in the light of the medical
evidence.
[10]
After appellant number one struck the deceased in his face with a
clenched fist causing him to
fall, the deceased remained in a prone
position on the ground. It must have been obvious to each of the
appellants that the deceased
was seriously injured. At least one of
the state witnesses testified to him snoring. This, Dr Mattheus
explained, would have been
as a result of his difficulty in breathing
on account of both his head and chest injuries. That notwithstanding,
each thereafter
participated, to a greater or lesser extent, in the
assault on the deceased, including jumping and trampling on him with
booted
feet. Following upon the assault, the deceased had to be
dragged by two of the appellants. It is difficult to conceive that
the
appellants could have been completely oblivious to the impact of
an attack as savage as described by Dr Mattheus on a defenceless
individual. Furthermore, it is clear that the assault was perpetrated
over a sustained period of time.
[11]
Ultimately, the high court cannot be faulted for concluding that the
test set out in
Sigwahla
for
dolus eventualis
was
satisfied in this case.
[12]
The appeal against conviction must accordingly fail.
[13]
Regarding sentence, the appellants’ counsel conceded that the
sentence imposed was rather
lenient given the circumstances of the
assault. The high court found there were substantial and compelling
circumstances in the
appellants’ case. If the judgment of the
high court on sentence can be criticised at all, in my view, it is
that it is far
too lenient. This was a brutal attack, for the most
part on a defenceless individual. Feeling that they had been wronged
by him,
they chose to take the law into their own hands.
[14]
The high court correctly took into consideration the appellants’
personal circumstances,
the interests of society and the seriousness
of the offence. Ultimately, it found that the imposition of a
custodial sentence was
warranted.
[15]
It has not been demonstrated that the high court misdirected itself
in any way, when it imposed
the sentence it did. In the circumstances
the following order is made:
‘
The
appeal against conviction and sentence is dismissed.’
_______________
B H Mbha
Judge
of Appeal
APPEARANCES:
For First Appellant:J
Henzen du Toit
Instructed by:
Johannesburg Justice Centre, Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For Second Appellant:
H L Alberts
Instructed
by:
Johannesburg Justice Centre,
Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For Third Appellant:
C Joubert
Instructed
by:
Johannesburg Justice Centre,
Johannesburg
Bloemfontein
Justice Centre, Bloemfontein
For Respondent:
V Maphiri
Instructed by:
DPP High Court, Johannesburg
DPP
High Court, Bloemfontein
[1]
S
v Sigwahla
1967 (4) SA 566
(A) at 570B-E.