S v Swiya and Another (A296/2005) [2007] ZAGPHC 278 (21 November 2007)

S v Swiya and Another (A296/2005) [2007] ZAGPHC 278 (21 November 2007)

The court found that the State failed to prove beyond reasonable doubt that Mogane died as a result of the appellants' actions, as there was a reasonable possibility that he survived and went into hiding. However, the evidence established that the appellants intended to kill Mogane and acted with dolus eventualis, making them guilty of attempted murder. The conviction for murder was set aside and substituted with attempted murder. The conviction for kidnapping was upheld, as the circumstances indicated Mogane did not leave voluntarily. The sentences for both offences were reconsidered and reduced to 10 years for attempted murder and 3 years for kidnapping, to be served concurrently.

Citation
[2007] ZAGPHC 278
Parties
Appellant: Fedelis Mapeu Swiya; Appellant: Pierre Walter Maritz; Respondent: The State
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
21 November 2007
Case Number
A296/2005
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against murder conviction and sentence upheld; conviction and sentence substituted with attempted murder and 10 years imprisonment. Appeal against kidnapping conviction dismissed; sentence reduced to 3 years imprisonment. Sentences to run concurrently.
Judges
B.R. Southwood, E. Bertelsmann, T. Makgoka
Legal Topics
Attempted Murder, Kidnapping, Dolus Eventualis, Admissibility of Evidence, Competent Verdict
Criminal Law Attempted Murder Kidnapping Dolus Eventualis Admissibility of Evidence Competent Verdict

Case Brief

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Parties

Fedelis Mapeu Swiya

Appellant

Pierre Walter Maritz

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants were guilty of murder or only attempted murder of Enock Morune Mogane.
  2. 2 Whether the appellants were guilty of kidnapping Mogane.
  3. 3 Whether the trial was fair in terms of section 35(3) of the Constitution.

Ratio Decidendi

The court found that the State failed to prove beyond reasonable doubt that Mogane died as a result of the appellants' actions, as there was a reasonable possibility that he survived and went into hiding. However, the evidence established that the appellants intended to kill Mogane and acted with dolus eventualis, making them guilty of attempted murder. The conviction for murder was set aside and substituted with attempted murder. The conviction for kidnapping was upheld, as the circumstances indicated Mogane did not leave voluntarily. The sentences for both offences were reconsidered and reduced to 10 years for attempted murder and 3 years for kidnapping, to be served concurrently.

Court Disposition

Appeal against murder conviction and sentence upheld; conviction and sentence substituted with attempted murder and 10 years imprisonment. Appeal against kidnapping conviction dismissed; sentence reduced to 3 years imprisonment. Sentences to run concurrently.

Orders

  • The appellants' convictions and sentences for murder are set aside and substituted with convictions and sentences for attempted murder: 10 years imprisonment each.
  • The substituted sentences of 10 years imprisonment are deemed to have been imposed on 24 May 2002.