in the high court of south africa (bophuthatswana … · 2020-05-25 · “i thought he was...
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IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
CASE NO: CC 47/2005
In the matter between:
ALFRED MOPHATLANE Appellant
and
THE STATE Respondent
FULL BENCH
HENDRICKS J; LANDMAN J; GURA J
DATE OF HEARING : 02 DECEMBER 2005
DATE OF JUDGMENT: 22 DECEMBER 2005
COUNSEL FOR THE APPELLANT : ADV C J ZWIEGELAAR
COUNSEL FOR THE RESPONDENT : ADV E D REYNIERSE
JUDGMENT
HENDRICKS J:
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A. Introduction :
[1] The Appellant, Alfred Mophatlane, was convicted on a
charge of murder on the 24th February 2000 and was
sentenced to thirty (30) years imprisonment, by Hendler J.
[2] An Application for leave to appeal against the conviction and
sentence was made on behalf of the Appellant on the 20th
September 2001, which was refused by Hendler J.
[3] The Appellant successfully applied for leave to appeal to the
Supreme Court of Appeal, which leave to appeal was
granted on the 6th April 2005 to the Full Bench of this
Division. Hence, this appeal.
B. Background:
[4] It is common cause between the State and the defence that
on the day of the incident, the Appellant, accompanied by his
friend John Chauke, were on their way home in the early
hours of the morning. Whilst driving his motor vehicle, the
Appellant drove past one of his other friends, namely Victor
Mashaba, who by flickering the lights of his motor vehicle,
indicated that Appellant should stop.
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[5] The Appellant then stopped his motor vehicle on the side of
the road in the yellow line.
[6] Victor Mashaba, who was driving his motor vehicle in the
opposite direction, made a Uturn with his motor vehicle and
parked parallel next to Appellant’s motor vehicle, in order for
them to communicate.
[7] Whilst still seated inside their respective motor vehicles,
Victor Mashaba realized that another motor vehicle was
approaching from behind. In order to avoid a collision, he
moved his motor vehicle out of the road and parked it in front
of Appellant’s motor vehicle. The approaching motor vehicle
collided with the Appellant’s motor vehicle from behind.
[8] The Appellant alighted and approached the driver of the
motor vehicle who collided with his. It is common cause that
the deceased was the driver of that motor vehicle. As to what
happened thereafter, there are different versions.
[9] The first State witness that testified was John Chauke.
According to him, the Appellant and deceased had
discussions away from where he and the others were
standing, more or less to the back of the motor vehicle of the
deceased. He could hear how the Appellant told the
deceased that they should proceed to the police station but
the deceased refused. Shortly thereafter, the deceased fell
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to the ground. He then saw the Appellant firing two shots at
the head of the deceased. The Appellant then left on foot to
the police station.
[10] There are some discrepancies between this witness’ viva
voce evidence and what is contained in the two statements
he made to the police.
[11] In his first statement it is stated that he accompanied the Appellant to the police station but in his evidence in court, he stated that Appellant went alone, on foot, to the police station.
[12] Furthermore, it is stated in this statement that he never saw the shooting because he was seated inside the motor vehicle. However, during his testimony in court, he stated that he alighted and saw the shooting incident.
[13] Hendler J dealt with these contradictions in his judgment and
came to the conclusion that it does not cause any doubt to
the veracity of the witness. I am of the view that these strong
credibility findings cannot be faulted. More so, because of
the improbability that exists that this witness, as a friend to
the Appellant, and being on good terms, has no reason to
falsely implicate the Appellant.
[14] It is also apparent from the second statement that the
Appellant told this witness after the shooting, that he “cannot
do otherwise, he (deceased) damaged my car”. This witness
also confirmed this.
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[15] Victor Mashaba is a friend and colleague of Appellant. His
evidence corroborates the viva voce evidence of John
Chauke, that they were standing outside the motor vehicles
when the shooting incident occurred. He however did not
see the shooting incident.
[16] Sergeant Stephens Legodi testified that he attended the
scene and found the body of the deceased and three spent
cartridges next to it. He did not find any firearm on the
deceased nor in the motor vehicle of the deceased. The
Appellant also never reported to him that the deceased had a
firearm.
[17] The version of the Appellant with regard to the shooting
incident is that he and the deceased had discussions. The
deceased threatened to assault him and the deceased then
went to the driver’s side of his (the deceased’s) motor
vehicle. The Appellant went to the passenger side of
deceased motor vehicle, in order to speak to the passenger
and to ask him to intervene. He then realized that the
deceased had again alighted from his motor vehicle and that
he was armed with a firearm.
[18] Appellant testified that when the deceased:
“was just about to reach the boot on the other side,
as I realised that he was having a firearm I shot at
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him because he was just close to me.”
[19] Apparently, after the deceased fell to the ground, he shot the
deceased in the head for the second time because as he
testified:
“I thought he was stretching his arm to reach the fire
arm, I did not know at that stage that he was dead.”
[20] The following is the further evidence of Appellant during his
evidence in chief:
“ADV MOLOELANG: When did you realise for the
first time that you had struck him on the head?
ACCUSED: At the position where he was I aimed at the head by then when I fired the shot.ADV MOLOELANG: But my question is when did you for the first time realise that you had shot him on the head?ACCUSED: After he fell to the ground.ADV MOLOELANG: So, when he stretch for the gun when he was on the ground there, at that time you knew that you had shot him on the head?ACCUSED: Yes, I knew that my Lord.
[21] Although conceding that he fired a third shot, he stated that it
was fired unintentionally or accidentally.
[22] It is contended by Mrs Zwiegelaar, on behalf of the
Appellant, that the trial judge erred in failing to appreciate
that Nico, who was apparently with the Appellant and whom
the Appellant initially indicated that he will call as a witness,
“could have shed some light not only on the question
whether the deceased had a firearm or not but also
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about the shooting incident as such.”
It was submitted by her that the trial judge hindered the
Appellant to adduce the evidence of Nico by giving him the
assurance that he accepted that the Appellant went to the
police station.
[23] This needs to be put in proper perspective. Hendler J did
indicate that he will accept that Appellant went to the police
station to report the incident because it was never disputed
by the State and it appeared to be common cause. It was
never indicated to the trial court that Nico is also going to
testify about whether or not the deceased had a firearm and
about the shooting incident as such. The trial court allowed
the Appellant the opportunity to consult with his legal
representative whether to call Nico or not, by postponing the
matter for two (2) days. There is, with respect, no indication
that the Appellant was prohibited or hindered to call Nico.
[24] When the trial resumed two (2) days later, Adv Moloelang,
who appeared on behalf of the Appellant, stated the
following:
“I have had a word with the accused this morning and he
has indicated to me that he does not wish to call the
witness he intended to call him on the last time when the
Court adjourned, this matter adjourned for today.
Thanks your Honour.”
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[25] It is clear that the opportunity was afforded to the Appellant to get hold of and to call his witness, Nico, but he decided otherwise.
[26] It was also submitted on behalf of the Appellant that it is
reasonably impossible that the deceased could have been
armed on the night in question and that his firearm had been
removed in the aftermath of the shooting incident, not only to
destroy evidence, but also because it was an unlicensed fire
arm or because somebody else decided to seize it. This
submission amounts, with respect, to speculation or
conjecture.
[27] It is clear from the evidence of the State witnesses, who
were at the scene, that they did not see a firearm in the
possession of the deceased. Sergeant Legodi was also not
informed by anybody that the deceased had a firearm nor
did he find any firearm on the person of the deceased or in
his motor vehicle. According to Legodi, whose testimony the
court a quo correctly accepted as being truthful, the
Appellant never reported to him that the deceased was
armed with a firearm. There is no evidence on record to
substantiate a finding that the deceased’s firearm was
removed in the aftermath of the shooting incident in order to
destroy evidence nor is there any room for the possible
suggestion that the deceased had an unlicensed firearm
and that somebody else decided to seized it.
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[28] The Appellant raised selfdefence or private defence as a
defence. It was submitted that, in the absence of medical
evidence regarding the exact nature and extent of the first
gunshot wound sustained by the deceased in his head, and
whether he could have been able to carry out movements
such as searching for his firearm, the possibility that that
could have been the position, cannot be ruled out. Thus, so
it was submitted, the version of the Appellant is reasonably
possibly true.
[29] The onus on the State is to prove the guilt of an accused
person beyond reasonable doubt and not beyond any
shadow of a doubt. It is also not incumbent on the State to
close every possible avenue open to the accused person. It
is true that the version of the accused needs only be
reasonably possibly true in order to be accepted by a court.
[30] Upon careful reading of the evidence tendered by the
Appellant, it is clear that the reason why Appellant shot the
deceased for the first time in the head was “because he was
just close at (him) me”, not because the deceased did
anything to him.
[31] As far as the second shot, which he fired at the head of the
deceased is concerned, Appellant testified: “I thought he
was stretching his arm to reach the firearm, I did not know at
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that stage he was dead”. (My underlining.)
[32] It is clear from Appellant’s own version that he did not act in selfdefence or private defence.
[33] It was further contended on behalf of the Appellant that he:
“Was entitled to his acquittal, either because of the
fact that he was not acting unlawfully, but in self
defence or because it is a case of putative self
defence and that he because he had at the relevant
time no knowledge of the unlawfulness of his conduct
lacked the required intention of dolus.”
[34] As far as selfdefence is concerned, it is clear from Appellant’s own version, that he exceeded the bounds of selfdefence. On his own version, the Appellant formulated an intention to kill the deceased by aiming and shooting the first shot at the head of the deceased, because the deceased was close to him.
[35] He realised for the first time that he shot the deceased in the
head after the deceased fell to the ground and that is before
he fired the second shot, also in the head of the deceased.
Under these circumstances, there is no doubt that the
Appellant intentionally shot the deceased. He fired the
second shot to the head of the deceased because he did not
know at that stage that the deceased had died, thereby
clearly indicating that he wanted to kill the deceased.
[36] With regard to putative selfdefence, Snyman in Criminal
Law, Fourth Edition on page 101 states the following:
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“No ground of justification can exist in the absence of
objective factors, and for this reason X’s conduct
remains unlawful if she subjectively thinks that there
is a ground for justification whereas in fact there is
none. A socalled “putative ground of justification” is
therefore in fact no ground of justification.”
[37] Jonathan Burchell in Principles of Criminal Law, Third Edition
on page 243 states as follows:
“A distinction must be drawn between private defence
as a defence excluding unlawfulness, which is judged
objectively, and ‘putative’ or ‘supposed’ private
defence which relates to the mental state of the
accused.
Where the accused raises the defence of private
defence, the judicial inquiry commences with an
examination of the unlawfulness or the lawfulness of
the accused’s conduct. If the conduct is lawful, then
an acquittal results. If the conduct is unlawful then
the inquiry might not end there. Provided a
foundation is laid for ‘putative’ private defence, then
the court proceeds to examine whether the accused
genuinely, albeit mistakenly, believed that he or she
was acting in lawful private defence (where the
charge requires intention to be proved) or whether
this belief was also held on reasonable grounds
(where negligence is sufficient for liability).”
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[38] In S v De Oliviera 1993 (2) SACR 59 (A) on page 63 h – 64
a, Smalberger JA drew a clear distinction between private
defence as a defence excluding unlawfulness, which is
judged objectively, and “putative” or “supposed” private
defence, which relates to the mental state of the accused
when he states as follows:
“From a juristic point of view the difference between these
two defences is significant. A person who acts in private
defence acts lawfully, provided his conduct satisfies the
requirements laid down for such a defence and does not
exceed its limits. The test for private defence is objective
– would a reasonable man in the position of the accused
have acted in the same way (S v Ntuli 1975 (1) SA 429
(A) at 436E). In putative private defence it is not
lawfulness that is in issue but culpability (‘skuld’). If
an accused honestly believes his life or property to be
in danger, but objectively viewed they are not, the
defensive steps he takes cannot constitute private
defence. If in those circumstances he kills someone
his conduct is unlawful. His erroneous belief that his
life or property was in danger may well (depending
upon the precise circumstances) exclude dolus in
which case liability for the person’s death based on
intention will also be excluded; at worst for him he
can then be convicted of culpable homicide.”
See: S v Joshua 2003 (1) SACR 1.
[39] Upon a careful analysis of the evidence of the Appellant it
emerges that there was no foundation laid for “putative”
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private defence.
[40] The evidence is clear. The Appellant shot the deceased in
the head for the first time because the deceased was close
to him. He aimed to shoot the deceased in the head. He did
so, not because he genuinely, albeit mistakenly, believed
that he was acting in lawful private defence, but because the
deceased was near to him.
[41] The second shot was also aimed and directed at the head of
the deceased, when the deceased was lying on the ground
already shot in his head. The second shot to the head of the
deceased was because he “thought” he was stretching his
arm to reach the firearm, not that the deceased actually
stretched his firearm to get hold of it. This shot was fired
because he did not know at that stage that the deceased is
dead.
[42] In my view, Hendler J correctly rejected the version of the
Appellant that he was acting in selfdefence (private
defence). Putative selfdefence (private defence) is not a
defence, especially if no basis or foundation is laid, such as
in this case.
[43] It is clear from the evidence of the State witnesses that there is no room for any suggestion that Appellant acted in selfdefence (private defence).
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[44] No possibility exists on the evidence tendered that Appellant
exceeded the bounds of selfdefence, because the Appellant
never acted in selfdefence. On the evidence tendered on
behalf of the State, which was accepted by the trial court, the
Appellant was the aggressor who gunned down the
deceased because the deceased damaged his car, by
colliding with it and on top of it refused to go with the
Appellant to report the matter at the police station.
[45] It is for the abovementioned reasons that the appeal against conviction should fail.
C. Sentence:
[46] Sentence is entirely in the discretion of the trial court. Unless
it can be proved that the trial court did not exercise its
discretion judiciously or that the sentence imposed is
shockingly severe or excessive, a court of appeal will not
lightly interfere with the exercise of its discretion by the trial
court.
[47] Although conceding that a direct term of imprisonment is the
only appropriate sentence, it was submitted on behalf of the
Appellant, that the sentence of thirty (30) years imprisonment
is shockingly severe and inappropriate.
[48] Hendler J, quite correctly in my view, found that this is a case
of socalled “road rage”. It was not premeditated but
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happened at the spur of the moment.
[49] I can only echo the words of Borchers J in S v Sehlako 1999
(1) SACR (W) 67 at page 71 ij where she states the
following:
“As far as the offence is concerned, the murder can
on the facts before me, only be attributed to what has
come to be called ‘road rage’. It was obviously not
premeditated. It arose directly from the fact that the
accused believed that the deceased was responsible
for the collision which occurred between their
respective vehicles. It was however, a cold blooded
and wholly unnecessary killing. This country is
suffering from an epidemic of violence which cannot
be tolerated.”
and on page 72 bc:
“Society however is outraged when a crime of this nature
is committed. Each and every person who drives a vehicle
can expect to be involved in a collision at some or other
time. It is wholly unacceptable that such a person, even if
he is the cause of such collision, can be executed on the
scene by the other driver. In my view, even where an
accused’s personal circumstances are extremely
favourable, as they are in this case, they must yield to
society’s legitimate demand that its members be entitled to
drive the roads without risk. I would in my view fail to
send the necessary deterrent message to all members of
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society if I imposed any sentence other than one of long
term imprisonment.”
[50] The facts of this case are similar to that in the Sehlakocase,
supra. So too, are the personal circumstances more or less
similar.
[51] In his judgment on sentence, Hendler J stated:
“Because a person like you deserves no mercy.”
Without any stretch of the imagination, this indicates the
basis why a sentence of thirty (30) years was imposed. In
the mind of the trial judge, the Appellant was not deserving of
any mercy.
[52] This is in my view a serious misdirection. Mercy is an element to be considered in the impositioning of a suitable sentence.
[53] As a result of this misdirection, this court is entitled to interfere with the sentence imposed which in my view is harsh and extremely excessive.
[54] Having regard to the personal circumstances of the
Appellant, the seriousness of the crime and the interest of
society, I am of the view that a sentence of twenty (20) years
will be appropriate under the circumstances of this case.
[55] Consequently, I make the following order:
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[i] The appeal against conviction fails.
[ii] The appeal against sentence is upheld.
[iii] The sentence is set aside and substituted with the following sentence:
“Twenty (20) years imprisonment.”
[iv] This sentence runs from 24 February 2000.
R D HENDRICKSJUDGE OF THE HIGH COURT
I agree.
A A LANDMANJUDGE OF THE HIGH COURT
I agree.
SAMKELO GURA
JUDGE OF THE HIGH COURT
Attorneys for the Appellant: H J Groenewald Attorney.
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