S v Gaelejwe (CA 192/2003) [2005] ZANWHC 82 (3 November 2005)

IN THE HIGH COURT OF

SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA 192/2003

In the matter between:

PHILLIP

GAELEJWE APPELLANT

and

THE

STATE RESPONDENT

CRIMINAL

APPEAL

MMABATHO

DATE OF HEARING : 19 AUGUST 2005

DATE OF JUDGMENT : 03 NOVEMBER 2005

COUNSEL FOR APPELLANT : Mr Engelbrecht SC, with

him Mr Danie Prinsloo

COUNSEL FOR RESPONDENT : Mr Mooketsi

JUDGMENT

GURA J:

1. The appellant was convicted of murder and sentenced to ten years imprisonment by a Regional Court. Subsequent to an appeal to this court the conviction and sentence were altered to culpable homicide and six year imprisonment respectively.

The appellant now seeks leave to appeal against both conviction and sentence. As regards conviction his application is based on the following two grounds:-

- Did the assault which the appellant meted out on the deceased cause his death?

- If yes, could a reasonable person, acting carefully, have foreseen that such assault would be fatal?

Appellant bears the onus of convincing the court that he has a reasonable prospect of success on appeal (S v Ackerman en ń ander 1973 1 SA 765 (A) 767 G-H).

Causation

4. The post mortem report reflected the following injuries on the deceased:-

three abrasions of the occipital region;

two abrasions over the right temporal area;

an incised wound of the lower lip;

a skull fracture over the occipital area, left of the mid-line;

subdural and subarachnoid haemorrhages and

pulmonary oedema.

Mr Jobe, who witnessed the assault, did not testify about any injuries which the deceased sustained apart from the fact that he bled through the nose, ears and mouth. Mr Tshetlho testified that he found him lying in a pool of blood, bleeding from the mouth and ears and that he was unconscious. He was specifically asked if the deceased sustained any injuries and he stated that “I did not have much time to look at the injuries, there was just too much blood”. Sister Sephiri, who received the deceased from Messrs Jobe and Tshetlho, described his condition. She stated that he was unconscious, bleeding from the right ear, with blood on his nose; he could not talk and was vomiting a lot. He had no wounds or injuries. Mr Mangwegape transported the corpse from Batlharos hospital to the government mortuary at Vryburg on 21 August 2000. It sustained no further injuries.

Counsel for the appellant submitted that this court erred in finding that the injuries as reflected on the post mortem report represented the injuries which the deceased sustained during the assault. He found support for this view on the fact that the state did not lead any evidence to prove that after he left the clinic (in an ambulance) up to and including the date of his death, the deceased sustained no further injuries. At the trial, the applicant did not make any formal admissions that the deceased sustained no further injuries from the scene of crime up to the time of the performance of the post mortem examination.

It is true that the description of the injuries on the victim by the state witnesses, does not disclose any visible abrasions, lacerations or wounds. When these witnesses testified, they were not reading from any document like Dr Coetzee. The deceased was assaulted on 12 August 2000.

The witnesses testified from 26 May 2003, almost thirty four (34) months after the incident. Such contradictions may be due to the fallibility of human memory.

The description however, of the victim’s condition at the scene of crime, and at the clinic, clearly indicates that he had been injured. He was unconscious and could not talk. Even the nurse was not able to resuscitate him. He bled profusely at the scene, through his ears, nose and mouth. He vomited a lot. In my view, the above description fits a person who had been severely injured; whether externally or internally. One thing is crystal clear, none of the state witnesses except Dr Coetzee, would have observed a scull fracture, because there were no visible external injuries pertaining to the same fracture.

The Regional Court was satisfied, and so was the appeal court, that the injuries found at the post mortem examination, were consistent with the nature of the assault on the deceased. On this aspect, no other court may reach a different decision.

Fault

10. Counsel for the applicant argued that the state did not

prove that the accused ought to have foreseen that the assault which he meted out on the deceased would cause him to fall to the ground and bump his head, resulting in death. He referred this court to S v Van As 1976 2 SA 921 (A).

11. The facts of the case of Van As are clearly distinguishable. He hit his victim once with an open hand. The victim then fell down. In the present case the appellant held the deceased and knocked the right side of his head twice against the wall, bumped his head against the bumper of the car, kicked him with booted feet on the head and hit him with clenched fists on the head. In my view, any reasonable person would have foreseen that such force, directed especially to a delicate part like the head, would likely lead to death, be it by falling or any other means. My view also on this aspect is that there is no reasonable prospect of success on appeal.

12. No facts have been placed before this court to show that the sentence of six years is inappropriate. I am therefore satisfied that the appellant has failed to convince this court that another court may impose a different sentence.

13. In the result, the application for leave to appeal against the conviction and sentence is refused.

SAMKELO GURA

JUDGE

OF THE HIGH COURT

I agree

M.M. LEEUW