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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)   REPORTABLE: NO

(2)   OF INTEREST TO OTHER JUDGES: NO

(3)   REVISED.  

                                                                                                   CASE NO:  A256/19

 

In the matter between:

 

GODFREY MASHUDU TSHIGAMA                                                                    Appellant

 

and

 

THE STATE                                                                                                             Respondent

 

J U D G M E N T

 

 

TEFFO, J:

Introduction

[1]          This is an appeal against conviction and sentence.  On 26 March 2018, a Regional Court sitting at Pretoria, convicted the appellant of attempted murder and sentenced him to 8 years imprisonment, plus a further 5 years imprisonment wholly suspended for a period of 5 years on condition that he is not found guilty of a similar offence.

[2]          The allegations against the appellant in the court a quo were that on 27 November 2016, and at or near Mamelodi, in the Regional Division of Gauteng, the appellant had wrongfully and intentionally attempted to kill one Colin Munyai (the complainant) by stabbing him with a broken bottle.  The appellant enjoyed legal representation in the court a quo.  He pleaded not guilty to the charge against him and gave a plea explanation that he acted in self-defence.

[3]          The court a quo was satisfied that the State had proved its case beyond a reasonable doubt.  It accepted the State’s evidence and rejected the appellant’s version.  It convicted the appellant accordingly and sentenced him as I have indicated above.  The appellant now appeals to this Court, with the leave of the court a quo against both conviction and sentence on the various grounds set out in his application for leave to appeal.

The grounds of appeal

[4]            When the matter was argued, Ms Moloi on behalf of the appellant submitted that the only ground that was being pursued in respect of the conviction of the appellant was that the court a quo misdirected itself in convicting the appellant.  The appellant acted in self-defence.  The complainant took his cell phone.  He slapped him with an open hand.  The appellant felt threatened and because of his previous encounter with the complainant where the complainant produced a knife, he assumed that the complainant was going to attack him.

[5]          With regard to sentence, it was contended that the sentence of the appellant was shockingly harsh and disproportionate with the offence committed.

The evidence

[6]          In the court a quo, the State led the evidence of the complainant and six more witnesses, three police officers (Captain Moeng, Constable Makhulu and Warrant Officer Ratsheke), Mr Boitumelo Tendani Tshigama (Tendani), Mr David Tshabalala (David) and Dr Fernandez. The appellant testified in defence of his case and also called two witnesses, Mr Mukine Michael Tshigama (Michael) and Mr Jimmy Nkwashu (Jimmy).

[7]          The complainant testified that the appellant owed him R200,00.  He met him a Friday prior to the incident and demanded his money.  The appellant promised to pay him on Saturday, 26 November 2016 (the weekend).  That did not happen.  On the morning of 27 November 2016 as he was driving around Mamelodi, he spotted the appellant at Masea tavern.  The appellant was sitting down and there was a bottle of beer next to him.  He was busy on a cell phone using earphones.

[8]          He approached him and started talking to him.  The appellant could not hear him.  He removed the earphones from the appellant to draw his attention to him.  Immediately thereafter the appellant stood up, broke a bottle of beer and said “today I want to kill the dog”.  He stabbed the complainant with the broken bottle.  The appellant continued stabbing him on the neck and head several times and repeatedly saying he wants to kill the dog.  He fell to the ground.  He later regained consciousness, stood up and went to his car.  He drove straight to the police station.

[9]           He was bleeding profusely when he arrived at the police station and collapsed again.  An ambulance was called and he was transported to the hospital.  He sustained open wounds on the neck and head.  He was operated on the neck and had more than 30 stitches on the head.  He also lost a tooth.  He was in ICU (Intensive Care Unit) for a week and in the surgical ward for another week.  He was still on medication when he was testifying.

[10]       He conceded under cross-examination that he met the appellant at an eating place (Tshisanyama) on a Thursday prior to the incident and not on a Friday and enquired from him when was he going to repay him.  The appellant said he should come and collect the money on Saturday, 26 November 2016.  He denied producing a knife and that the appellant told him he did not have the money to pay him.  He denied that he wanted to stab the appellant and that his friend, Jimmy, intervened.  He also denied that he wanted to take the appellant’s phone on that day.  He denied that he was a money-lender and that he took another cell phone of the appellant prior to the incident.

[11]       He conceded that on the day of the incident before the appellant stood up and broke the bottle which he used to stab him, he also took the appellant’s cell phone after removing his earphones.  After the appellant had stabbed him, he gave back his cell phone.  He threw it back to him when the appellant was busy stabbing him.

[12]       He denied the appellant’s version of how the events unfolded on the day of the incident and that he slapped him.

[13]       He testified that as the appellant was busy stabbing him, people screamed at him to stop.  The appellant said he was not dead, he wanted to kill him.  At that time, he had already sustained injuries.  He was bleeding.  The appellant stabbed him while he was standing.  He fell and the appellant continued stabbing him while he was on the ground.  He also hit him with empty bottles which were in the crates on the head many times.

[14]       He sustained more than one stab wound on the neck.  He had one healed scar on the left side of his neck.

[15]       Captain Moeng and Constable Makhulu confirmed that the complainant came to the police station.  He was bleeding and had injuries on the head and neck.  He collapsed at the police station and an ambulance was called.  He was transported to the hospital.  Before he collapsed, he told them his name and that he was stabbed on his neck by the appellant.

[16]       Mr Boitumelo Tendani Tshigama (Tendani) also testified.  He is the brother of the appellant.  He, the appellant and a certain David were at Masea tavern on the morning of the incident between 10:00 and 11:00.  The complainant arrived at the tavern in a car and went to the direction where the appellant was on the side of the tavern.  Shortly thereafter he realised that there was an argument between the complainant and the appellant.  He heard the appellant saying “bring back my phone”.  Subsequent thereto he heard the noise of broken bottles.  He stood up and went to them.  When he heard all this, he was sitting about 5-6 metres away from where the appellant and the complainant were.  He and David were sitting at the back of the tavern and the appellant was at the front where alcohol was being sold.  He saw the appellant holding the complainant’s hand and the complainant holding the appellant’s cell phone.

[17]       At first, he denied that he saw the appellant stabbing the complainant.  The State brought an application to declare him a hostile witness.  A trial-within-a-trial was held.  He was confronted with the statement he made to the police where he stated that he saw the appellant stabbing the complainant.  Warrant Officer Ratsheke who took the statement from him was called.  He testified that he and the witness understood each other and the witness read the statement after it was written.  The witness was satisfied with its contents.

[18]       Warrant Officer Ratsheke further testified that he was on duty at the police station when the complainant arrived on the day of the incident.  He saw him when he collapsed and there were people who were busy observing the complainant.  Tendani came in and went to the complainant.  He approached Tendani to find out if he knew the complainant and also enquired if he knew anything about the injuries the complainant sustained.  Tendani confirmed that he knew the complainant and further told him that they were together.

[19]       He requested Tendani to come to his office.  After explaining his position to him, he requested him to tell him what happened.  Tendani informed him that he together with the appellant and a certain David were at Masea tavern.  He and David were sitting at a certain side and the appellant was on the other side of the counter.  The complainant arrived there and went straight to the appellant.  Shortly thereafter, he heard the sound of broken bottles.  He went to the direction where the appellant was.  He found the appellant with a piece of a broken bottle in his hand.  The complainant was carrying a cell phone in his hand.  He heard the appellant pleading for his phone saying to the complainant “give me my phone”.  The appellant stabbed the complainant with the bottle on the neck.  He tried to separate them but the appellant was aggressive towards him.  When he saw that the appellant was aggressive towards him, he left the scene and went home to call his father.  He came back to the scene with his father and did not find the appellant and the complainant.  They were no longer there.

[20]       Tendani was thereafter recalled and he testified that he saw the appellant stabbing the complainant.  He admitted the contents of the statement he made to the police.  The application to declare him a hostile witness was subsequently withdrawn.

[21]       Under cross-examination, Tendani testified that he did not see the complainant removing the appellant’s earphones.  He did not see the complainant slapping the appellant.  The complainant and the appellant were holding each other by hand, wrestling for a phone before the stabbing.  He tried to separate them before the stabbing.

[22]       In reply to the court’s questions, he testified that when he tried to separate the appellant and the complainant, he did not observe any injuries on the complainant.  He was adamant that the stabbing took place in his presence.  The complainant was stabbed once on the neck.  He was standing.  When he was stabbed, the cell phone was in his hands.  The complainant did not have any weapon in his possession.  When he was trying to separate them, the appellant pushed him away and told him that was not his business.  Immediately he saw the appellant stabbing the complainant, he ran home to go and call his father.

[23]       Mr David Tshabalala (David) corroborated the evidence of Tendani regarding the fact that they were together at Masea tavern on the day of the incident, the appellant was also at the tavern, where they were sitting and how the complainant approached the appellant when he arrived at the tavern.  The complainant grabbed the appellant’s cell phone. He asked the appellant when he was going to pay back his money.  The appellant said “can you not see that I am talking to my girlfriend”.  They argued.  He does not know what they were arguing about.  The appellant took a bottle, broke it and stabbed the complainant on the neck twice.  The complainant fell.

[24]       There were crates of bottles where the complainant and the appellant were.  The appellant went to the fridge.  He took out the bottles, one by one, and hit the complainant with them.  He went out, picked up a brick and smashed the rear window of the complainant’s motor vehicle.

[25]       After the appellant had left, the complainant stood up and drove to the police station.

[26]       The appellant was the aggressor.  He also hit the complainant with bottles on the head.  He corroborated the evidence of Tendani that he tried to separate the appellant and the complainant but the appellant told him to leave him alone.

[27]       Under cross-examination he testified that he saw everything that happened.  He was standing at the back.  He did not approach the complainant and the appellant.  He was not too far from them.  He could hear what they were saying.  When the appellant demanded his cell phone from the complainant, the complainant asked him when he was going to repay him.  The appellant did not take the appellant’s earphones.  He only took the cell phone.  The appellant never stopped assaulting the complainant.  The assault stopped when the appellant went home.  The appellant stabbed the complainant, the cell phone fell down and the appellant picked it up.  When the complainant was down on the ground, the witness tried to intervene but the appellant told him to go away.

[28]       People were watching when the appellant was stabbing the complainant.  The complainant stood up after the appellant had left and drove to the police station.  Although he testified that Tendani was present during the second stabbing, under cross-examination he testified he was concentrating on the complainant and the appellant.  He did not see how Tendani left the scene.

[29]       The complainant was angry before the assault.

[30]       In reply to the court’s questions, he testified that after the appellant had stabbed the complainant, he also hit him with the empty bottles that were there several times on the head.  The complainant was sitting on the chair and he fell.

[31]       Dr Fernandez testified about the injuries the complainant sustained as a result of the stabbing.  He is a vascular surgeon.  He completed the J88 medical report of the complainant on 12 December 2016.  The complainant was initially seen in Wilgers Hospital Casualty.  The witness was contacted to come and see the complainant urgently as he had sustained multiple stab injuries to the neck and head.  The main injury that he observed on the complainant was to the left side of the neck.  The complainant also had multiple lacerations to the scalp of the head in excess of 15.  At the time he saw the complainant, the complainant was incubated and ventilated.  He could not tell him what had happened to him.  He was taken to theatre as an emergency at Wilgers hospital.  He was in shock and had bled significantly.

[32]       They opened the complainant’s neck and found that his internal jugular vein was completely cut off and there were multiple side branches of the artery that were bleeding.  The vein that was lacerated was repaired.  All the other bleeders were tied off and all the multiple lacerations on his head were suited with a clip applicator.  The complainant was then admitted into ICU for further care.  He was in ICU for about 3 days.  He was handed over to a physician and he does not know when he was discharged from hospital.

[33]       The complainant had one major stab wound to the left side of the neck and more than 19 holes on the head.  All the wounds on the head were stitched and closed.  He was stabbed on the arteries.  The wounds were severe and the patient could die or bleed to death as a result thereof.

[34]       Under cross-examination, he testified that the injuries sustained by the complainant were not caused by the falling down and rolling on the floor where there were broken bottles.  They were lacerations.  There was no glass anywhere in the wounds and there were no associated abrasions on the head to suggest that the complainant fell on the floor and rubbed it.  The location of the injuries was on the side and on top of his head.  The complainant would have had to be held upside down to sustain a laceration on his head from a glass bottle.  The neck injury that the complainant sustained was exceptionally deep.  The wound was jagged.  The knife would have had to enter the wound and be pulled out, and completely lacerate the vessel up to the level of the voice box.  There was no evidence of glass in the wound on the neck.

[35]       In reply to the court’s questions, he testified that a broken bottle can be used as a knife equivalent that is possible to use a sharp glass edge as a stab instrument. That concluded the state’s case.

[36]       The appellant, Mr Mashudu Godfrey Tshigama also testified.  He corroborated the evidence of the complainant and the state witnesses regarding his presence at Masea tavern on the day of the incident and what he was doing when the complainant approached him.  The complainant stood in front of him and said he was thinking that he would not find him.  Before he could respond, the complainant grabbed the cell phone from his hand.  He stood up and told the complainant that the previous week he took his other cell phone (a Samsung) and said he will get it back after he had repaid his money.  The complainant said he was crazy and not telling him anything.

[37]       They had an argument.  At that time his cell phone was in the complainant’s hand.  He grabbed the complainant’s hand and as the complainant was in the process of leaving, he grabbed him back.  The complainant slapped him on his face and he hit him back with a fist on his mouth.  They started fighting.  Previously when the complainant took his other phone, he had a knife with him.  As they were fighting, the complainant put his hand in his pocket as if he was looking for something.  He then picked up a bottle and broke it. He grabbed the complainant by hand while holding a broken bottle in his other hand.  He wanted to grab the cell phone and told the complainant he cannot take two of his cell phones for only R200,00. The complainant said he did not only owe him R200,00.  It was more with interest as he was owing the money for two months.

[38]       He hit the complainant with the broken bottle on the head.  The complainant then threw the cell phone back.  They grabbed each other by clothes.  He tripped the complainant and they both fell on the ground.  He heard some voices of people screaming around them saying “he just left, he threw your phone, there it is”.  There were bottles on the ground. He and the complainant both fell on top of them. The bottles also injured him.  He stood up, picked up his phone and left.  The complainant also stood up and went to his car.  He then drove away.  As he was picking up his cell phone from the ground, he saw Tendani leaving.  He went home where he met Tendani and their father.

[39]       He denied the complainant’s version.  He was adamant that the two were fighting and the complainant was injured by the bottles that were on the ground where they fell.  He only realised that he injured the complainant when he hit him with a fist on his mouth and with a broken bottle on his head.

[40]       elHeHe denied that Tendani and David saw the fight.  He maintained that when Tendani and David arrived at the scene, he and the complainant were already on the ground.

[41]       He denied stabbing the complainant.  He maintained that he was fighting for his cell phone.  Immediately after the cell phone was thrown on the ground, he picked it up and left.  He did not continue to assault the complainant further.

[42]       He confirmed that when the complainant arrived at the tavern, he was not in possession of any weapon.

[43]       He also testified about an earlier incident that happened on Thursday prior to the incident at Tshisanyama.  The complainant asked him when he was going to pay back his money.  He told him that he stopped working and that he would resume work in January.  The complainant said he was talking nonsense.  He opened his car and produced a knife.  He approached him and a certain Jimmy with whom he was, intervened.  The complainant left and told him they were going to fight.

[44]       In reply to the court’s questions, he testified that he assaulted the complainant with a bottle because he asked him to give back his phone, instead the complainant slapped him.  Had the complainant not slapped him, he would not have assaulted him with a bottle.  After assaulting him with a bottle, he grabbed the complainant’s hand and the complainant threw the cell phone on the ground.  The complainant grabbed him and held him on his chest with his hands.  They wrestled and the bottle broke.  As they were wrestling, the crates fell down. He also sustained cuts on his right-hand side from the leg to his upper shoulder.  He was treated at the clinic a day following the incident but he was not given proof.

[45]       Mr Mukine Michael Tshigama (Michael), another brother of the appellant testified that he did not witness the incident.  The complainant is close to his siblings, the appellant and Tendani.  The complainant is a money lender.  Sometime in October the previous year, the appellant loaned some money from the complainant.  He could not repay it.  The complainant met the appellant at a drinking place and took away a cell phone from the appellant which he kept as security for a debt.  The cell phone belonged to his mother.  When you owe the complainant money, he comes to your house and take your properties.

[46]        There was another incident where the complainant took away a cell phone from the appellant after he had produced a knife although he did not witness it.

[47]       Mr Jimmy Nkwashu (Jimmy) testified in support of the appellant’s version regarding what happened at Tshisanyama on Thursday prior to the incident.

The applicable legal principles

[48]       The approach that this appeal court should adopt in a matter of this nature has been properly set out by Greenberg JA, as he then was, in R v Dlhumayo and Another[1].  The approach is captured aptly by the learned author, A Kruger in Hiemstra’s Criminal Procedure.  He states on pages 30.45 as follows:

“A court of appeal must bear in mind that a trial court saw the witnesses in person and could assess their demeanour.  If there was no misdirection of facts by the trial court, the point of departure is that its conclusion was correct.  The court of appeal will only reject a trial court’s assessment of evidence if it is convinced that the assessment is wrong.  If the court is in doubt, the trial court’s judgment must remain in place (S v Robbinson 1968 (1) SA 666 (A) at 675H).  The court of appeal does not zealously look for points upon which to contradict the trial court’s conclusions, and the fact that something has not been mentioned does not in itself mean that it has been overlooked.”

 

[49]       It is not the duty of this Court to substitute the judgment of the court a quo with its own judgment.  An appeal court must decide the appeal on the facts before it as contained within the four corners of the record of appeal.  It is the duty of this Court to establish from the record of appeal firstly, if the court a quo has misdirected itself on the facts of the matter and secondly, to satisfy itself that the court a quo’s assessment of the evidence was not wrong.  Based on the authority of Pillay v Krishner and Another[2], there is a duty on the appellant to satisfy this Court that the court a quo misdirected itself in relation to the facts of the case and that the court a quo’s assessment of the evidence at the trial was wrong.

Discussion

The appeal against conviction

[50]       Ms Moloi submitted that the court a quo erred in rejecting the appellant’s version as not being reasonably possibly true.  Ms Roos for the respondent disagreed with the submissions on behalf of the appellant.  She submitted that the appellant was correctly convicted of attempted murder.

[51]       The issues in dispute in the court a quo were whether the appellant stabbed the complainant with a broken bottle, whether by so doing the appellant acted in self-defence and whether he intended to kill the complainant.

[52]       The court a quo had to establish whether the complainant was assaulted in the manner he had testified or in the manner the appellant had testified. In the determination of the issues, the court a quo correctly relied on the evidence of the complainant, Tendani and David who were at Masea tavern when the incident happened.  The police officers’ evidence (Captain Moeng and Constable Makhulu) only confirmed that the complainant immediately after the incident came to the police station to report the matter, his condition in relation to the injuries and the fact that he was rushed to the hospital.  These witnesses together with the two defence witnesses did not witness the incident.

[53]       Notwithstanding the discrepancies in the respondent’s witnesses’ evidence, the court a quo found them to have been credible witnesses.  It correctly found that the discrepancies in their evidence were not material.  The court a quo found that the evidence of Tendani which seemed less reliable was corroborated by that of the complainant and David.  It concluded that the three witnesses corroborated each other in all material respects.

[54]       The salient facts of Tendani’s evidence were that he saw when the appellant stabbed the complainant with a broken bottle on the neck.  He heard an argument between them where he was seated at a distance of about 5-6 metres away.  He heard the sound of broken bottles and the appellant saying “bring back my phone”.  When he got closer to them, he observed the appellant carrying a broken bottle in his hand and the complainant having the cell phone in his hand.  He tried to separate them but the appellant told him to mind his business.  The appellant stabbed the complainant with a broken bottle once on the neck.  Immediately he saw that, he ran home to call his father to intervene as he realised he had failed to separate them.

[55]       This evidence was indeed corroborated by David and the complainant.  Tendani was clear in his evidence that he did not see the complainant removing either the earphones or cell phone from the appellant and also slapping him.  David saw the complainant removing the cell phone from the appellant.  He did not observe him removing the earphones.  This makes sense taking into account that when the complainant approached the appellant, Tendani and David were seated at a certain place and the appellant was at another place.  They could not have seen everything that happened until they got closer.

[56]       David corroborated the complainant’s evidence regarding the fact that the appellant also hit the complainant with bottles from the crates on the head several times.

[57]       With regard to the discrepancies, the complainant testified that he was stabbed more than once on the neck and head. Tendani saw the complainant being stabbed on the neck once while David testified that the complainant was stabbed twice on the neck.  The complainant testified that he was shocked about the behaviour of the appellant on the day in question.  He was not angry and David testified that the complainant was angry before the assault.  According to David, the assault stopped when the appellant left the scene and the complainant stood up and left.  The complainant testified that he realised that the appellant was not going to stop assaulting him.  After he fell down, he stood up after regaining consciousness and drove to the police station.  It appears from this evidence that the complainant left the appellant at the scene.  The court a quo found these inconsistencies not to have been material.  There was also evidence by David that after the assault on the complainant, the appellant smashed the complainant’s car window with a brick.  I agree with the analysis of the court a quo’s evidence taking into account the following as was stated in S v Mkohle[3]:

“Contradictions per se do not lead to the rejection of a witness’s evidence.  As Nicolas J observed in S v Oosthuizen 1982 (3) SA 571 (TPD) at 576B-C, they may simply be indicative of an error.  And (at 576G-H) it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation,  taking into account such matters as the nature of the contradictions, their number of importance, and their bearing on other parts of the witness’ evidence indicative of an error.”

 

[58]       The court a quo correctly found that the discrepancies were not material.

[59]       Self-defence or private defence takes place where a person uses force to repel an unlawful attack which has commenced or is imminently threatening upon their life, bodily integrity, property or other interest which deserves to be protected, provided that the act is necessary to protect the person or interest from the attacker and is reasonably proportionate to the attack[4].

[60]       In S v De Oliveira[5], Smallberger JA explained private defence as follows:

“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.”

 

[61]       The requirements for the attack are that:  the attack must be unlawful, it must be directed at an interest which legally deserves to be protected and the attack must be imminent but not yet completed.

[62]       The requirements for the defence of private defence are the following: (a) It must be directed against the attacker.  (b)  The defensive act must be necessary.  Here one considers whether there is a duty to flee and the defensive act must be the only way in which the attacked party can avert the threat to his/her rights or interest.  (c) There must be a reasonable relationship between the attack and the defensive act.  Here it is not necessary that there be a proportional relationship between the nature of the interest threatened and the nature of the interest impaired.  (d) The attacked person must be aware of the fact he/she is acting in private defence[6].

[63]       The appellant denied that he stabbed the complainant.  According to his evidence he only hit the complainant with a bottle on the head once and with a fist on his mouth.  He contended that the multiple injuries sustained by the complainant on the head and neck were caused by the rolling or falling down of him and the complainant on the bottles that were at the place where they were fighting.  He denied that he intended to kill the complainant.  This evidence was denied by the respondent’s witnesses.  The complainant and David’s evidence was to the effect that the complainant was stabbed more than once on the neck and several times on the head with a broken bottle and further hit with bottles from the crates on the head.  Dr Fernandez was clear in his evidence that the multiple injuries sustained by the complainant in the incident could not have been caused by the rolling and/or falling down on the broken bottles.  The complainant sustained lacerations and there was no glass on the wounds.  According to him a broken bottle can be used as knife equivalent.  The injuries were inflicted by a sharp instrument.  It is highly unlikely that by their nature and location, the complainant’s injuries could have been caused by only one blow from the appellant.

[64]       The court a quo correctly found that the injuries sustained by the complainant were serious and life threatening. Had the complainant not received urgent medical attention, he could have died.  These injuries accord with the evidence of the respondent’s witnesses that the appellant stabbed the complainant on the neck and head with a broken bottle.

[65]       According to the respondent’s witnesses, the appellant’s life was not in danger when he stabbed the complainant.  The complainant was not armed with any weapon when the appellant stabbed him.  The appellant supports this version. The appellant was aggressive. In his evidence-in-chief, he testified that as he was pleading with the complainant to give back his phone, the complainant slapped him on his face and he fought back by hitting him with a fist on his mouth.  They held each other by clothes.  He then saw the complainant putting his hand inside his pocket as if he was searching for something.  He thought of a previous incident where the complainant produced a knife and felt threatened.  That led to him breaking the beer bottle and hitting the complainant with it on the head.  When he was questioned by the court, he testified that he hit the complainant with a broken bottle because the complainant had slapped him on his face.

[66]       The appellant’s version kept on changing to suit him.  Initially he was threatened because he saw the complainant putting his hand in his pocket.  Then because of the slapping by the complainant, he hit him with the broken bottle. I agree with the finding of the Magistrate that the injuries that were inflicted on the complainant by the appellant clearly proves that he had an intention to kill the complainant.

[67]       The necessary facts to conclude that the appellant acted in self-defence are lacking.  Having regard to the respondent’s case, the nature and the seriousness of the injuries sustained by the complainant, the court a quo correctly rejected the appellant’s evidence as not being reasonably possibly true and found him guilty of attempted murder.  It follows, therefore, that the appeal against the conviction of the appellant should fail.

 

The appeal against sentence

[68]       It is trite law that the infliction of punishment is pre-eminently a matter for the discretion of the trial court[7].  In determining an appropriate sentence regard must be had to the well-known triad factors, namely the seriousness of the crime, the offender’s personal circumstances, as well as the interests of society.  Equally important is the aspect of mercy which is a concomitant of justice.  Each sentence must be individualised.  Each case must be dealt with on its own peculiar facts[8].  A court of appeal does not have an unfettered discretion to interfere with the sentence imposed by a trial court[9].  It is only where it is clear that the discretion of the trial court was not exercised judicially or reasonably that a court of appeal will be entitled to interfere.  Where there is no clear misdirection, the remaining question is whether there exists such a striking disparity between the sentences imposed by the trial court and the sentences the appeal court would have imposed, as to warrant interference[10].

[69]       In mitigation of sentence, the following personal circumstances of the appellant were placed on record:  The appellant was 32 years old when he was sentenced.  He is married and is the father of two minor children.  At the time of sentence, he was expecting a third child.  He completed grade 12.  He holds a certificate in the security industry.  He was employed as a security officer and earned a salary of R2 800,00 per month.  He was a breadwinner in the family.  He was previously convicted of assault in 2013.

[70]       It was submitted in the heads of argument filed on behalf of the appellant that the court a quo erred in over-emphasising the seriousness of the offence and the interests of society and therefore under-emphasised the personal circumstances of the appellant.  It did not show mercy on the appellant.  The sentence imposed was only intended to break the appellant.

[71]       The following factors were placed on record in aggravation of sentence: The offence is serious.  A dangerous weapon, a broken bottle, was used in the commission of the offence.  Multiple blows were inflicted on the complainant.  The complainant was stabbed on the very delicate parts of his body, neck and head.  The injuries required urgent medical and surgical attention to prevent death.  The complainant was defenceless when the injuries were inflicted on him.

[72]       Ms Roos for the respondent further submitted that the injuries inflicted on the complainant were very severe.  He had to undergo surgery and spent more than a week in hospital.  After the complainant dropped the cell phone of the appellant on the ground, the appellant continued to assault him further.

[73]       Ms Roos placed reliance on the decision in Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others[11], and submitted that the sentence of the appellant is appropriate and just.

[74]       In Director of Public Prosecutions, KwaZulu-Natal v Ngcobo and Others[12] the court said the following:

“Traditional objectives of sentencing include retribution, deterrence and rehabilitation.  It does not necessarily follow that a shorter sentence will always have a greater rehabilitative effect.  Furthermore, the rehabilitation of the offender is but one of the considerations when sentencing is being imposed.  Surely, the nature of the offence related to the personality of the offender, the justifiable expectations of the community and the effect of a sentence on both the offender and society are all part of the equation?  Pre- and post-Malgas the essential question is whether the sentence imposed is in all the circumstances, just.”

 

[75]       Attempted murder cases are prevalent in South Africa.  They are a scourge in our society which should be combated in the interests of society.  However, in determining an appropriate sentence regard must be had to the triad factors, the seriousness of the crime, the offender’s personal circumstances as well as the interests of society which includes the victim.  All these factors have to be equally considered.  The court is aware that society demands that courts treat these perpetrators harshly but the courts do not cater exclusively for public opinion.

[76]       I have considered the totality of the evidence, the circumstances of the commission of the offence, the nature of the offence and the seriousness thereof, the interests of society and the personal circumstances of the appellant.  Having done so, the court finds that the sentence imposed is too harsh and disproportionate to the offence committed.  Underthe circumstances a sentence of 8 years imprisonment is deemed appropriate.

[77]       I accordingly propose the following order:

1.    The appeal against conviction is dismissed.

2.    The appeal against sentence is upheld and the sentence imposed by the Regional Court is set aside and the following sentence is substituted in its stead:

      “The accused is sentenced to 8 years imprisonment.’

3.    In terms of section 282 of the Criminal Procedure Act, the substituted sentence is antedated to 26 March 2016, being the date on which the appellant was sentenced.

4.    The order of the court a quo declaring the appellant unfit to possess a firearm is hereby confirmed.

 

                                                                          

                                                                                            M J TEFFO

                              JUDGE OF THE HIGH COURT

                            GAUTENG DIVISION, PRETORIA

 

 

I agree

           

                                                                         

                                                                                              A PRINSLOO

                              JUDGE OF THE HIGH COURT

                            GAUTENG DIVISION, PRETORIA

                                               

Appearances

For the appellant                                          M B Moloi

Instructed by                                                 Pretoria Justice Centre

For the respondent                                      A Roos

Instructed by                                               Director of Public Prosecutions

Heard on                                                     27 February 2020

Date of judgment                                        26 August 2020

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