S v Mophatlane (CC 47/2005) [2005] ZANWHC 105 (22 December 2005)

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:

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.

[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 U-turn 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 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.

[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 fire-arm on the deceased nor in the motor vehicle of the deceased. The Appellant also never reported to him that the deceased had a fire-arm.

[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 fire-arm.

[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 fire-arm I shot at 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 fire-arm or not but also 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 fire-arm 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.”

[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 fire-arm 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 fire-arm in the possession of the deceased. Sergeant Legodi was also not informed by anybody that the deceased had a fire-arm nor did he find any fire-arm 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 fire-arm. There is no evidence on record to substantiate a finding that the deceased’s fire-arm 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 fire-arm and that somebody else decided to seized it.

[28] The Appellant raised self-defence 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 fire-arm, 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 fire-arm, I did not know at that stage he was dead”. (My underlining.)

[32] It is clear from Appellant’s own version that he did not act in self-defence 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 self-defence is concerned, it is clear from Appellant’s own version, that he exceeded the bounds of self-defence. 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 self-defence, Snyman in Criminal Law, Fourth Edition on page 101 states the following:-

“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 so-called “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).”

[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” 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 fire-arm, not that the deceased actually stretched his fire-arm 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 self-defence (private defence). Putative self-defence (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 self-defence (private defence).

[44] No possibility exists on the evidence tendered that Appellant exceeded the bounds of self-defence, because the Appellant never acted in self-defence. 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 so-called “road rage”. It was not premeditated but 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 i-j 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 b-c:-

“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 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 Sehlako-case, 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:-

[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 HENDRICKS

JUDGE OF THE HIGH COURT

I agree.

A

A LANDMAN

SAMKELO GURA

Attorneys for the Appellant: H J Groenewald Attorney.