S v Asele

• Jurisdiction: South Africa
• Citation: 2016 (1) SACR 13 (NCK)

S v Asele
2016 (1) SACR 13 (NCK)

2016 (1) SACR p13

Citation	2016 (1) SACR 13 (NCK)
Case No	K/S 12/12
Court	Northern Cape Division, Kimberley
Judge	Kgomo JP, Olivier J and Mamosebo AJ
Heard	June 1, 2015
Judgment	July 3, 2015
Counsel	VZ Nel for the appellant, instructed by the Justice Centre, Kimberley.; JJ Rosenberg for the state.

Flynote : Sleutelwoorde

Plea — Plea of guilty — Written statement in terms of s 112(2) of CPA — Concession by state that statement correct — Effect of — Accused conceding he had dolus eventualis but claiming he lacked intention to kill — Court inferring dolus directus, despite state's concession accused had only dolus eventualis — Court not bound by statement — Inference that E accused had dolus directus only reasonable inference to be drawn in circumstances.

Headnote : Kopnota

The appellant was convicted in the High Court on his plea of guilty to charges F of kidnapping, robbery with aggravating circumstances, and murder. He was sentenced to 10 years' imprisonment for the kidnapping; 15 years' imprisonment for the robbery; and to life imprisonment for the murder. The sentences were ordered to run concurrently. He appealed only against the sentence of life imprisonment. The evidence was to the effect that the appellant and three other men were hitchhiking when they saw the deceased alight from his vehicle to relieve himself. They decided to rob the deceased. G The deceased tried to escape but fell and was kicked against the head by his attackers, one of whom produced a knife (of which the appellant until then had been unaware), and stabbed him. They bound the deceased's arms and feet and loaded him into the trunk of his vehicle which they then drove off in. They stopped a while later and the attacker with the knife took the deceased and stabbed him in his chest. He fell down and lay there while the H four of them took all his belongings from the vehicle and left the scene. They returned later to take his vehicle, at which stage the deceased was still where they had left him. His body was only found sometime later in an advanced state of decomposition. It was contended for the appellant on appeal that the trial judge had misdirected herself in that, in his statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977, the I appellant denied having had the direct intention to kill the deceased but admitted having foreseen that the kick to the head and the stab wounds could result in the death of the deceased, and that he had nevertheless assisted in taking the deceased and associated himself with the knife attack. The prosecutor had accepted the appellant's plea of guilty, together with his factual version in his statement, and the trial judge therefore had no right to J

2016 (1) SACR p14

A find that the appellant had formed the direct intent to kill the deceased. It was contended that the trial judge had furthermore misdirected herself in finding that she was not convinced that the appellant had not promised to cooperate with the prosecution and to testify against his brother and one other accused in the trial, with the ulterior motive of actually eventually helping his brother. In these circumstances the trial judge had erred in B imposing a sentence of life imprisonment in respect of the murder.

Held, per the majority, that the fact that state counsel admitted the appellant's plea as it stood did not assist the appellant. The trial court did not read into the plea more than what the appellant admitted. His statement that he was guilty of dolus eventualis was a legal conclusion which he was not competent to make. That fell within the competency of the court and, to the C extent that state counsel conceded that only dolus eventualis had been established, that erroneous concession did not bind the court on appeal. (Paragraph [12] at 19d–e.)

Held, further, on the evidence, the appellant already knew one of his colleagues was armed with a knife and was bloodthirsty, and the irresistible inference, which was the only one on the facts, was that the deceased must have died almost instantly when he was stabbed. By leaving him bound, it fortified the D conclusion that the appellant and his partners in crime desired the deceased's death. How it could be suggested or argued that there was no premeditation or direct intention to murder the deceased was difficult to fathom. (Paragraph [10] at 18g–h.) The appeal was dismissed.

Cases cited

Director of Public Prosecutions v Mngoma 2010 (1) SACR 427 (SCA): compared E

Government of the Republic of South Africa and Others v Von Abo 2011 (5) SA 262 (SCA): referred to

Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47 (CC) (2006 (5) BCLR 622; [2006] ZACC 2): dicta at 69B – D applied F

Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 (A): referred to

S v EB 2010 (2) SACR 524 (SCA): referred to

S v Jaftha 2010 (1) SACR 136 (SCA) ([2010] 1 All SA 403; [2009] ZASCA 117): referred to

S v Karolia 2006 (2) SACR 75 (SCA) ([2004] 3 All SA 298): referred to G

S v Kgosimore 1999 (2) SACR 238 (SCA) ([1999] ZASCA 63): applied

S v Khumalo 2013 (1) SACR 96 (KZP): compared

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122): compared

S v Magano 2014 (2) SACR 423 (GP): referred to H

S v Magwaza 2013 JDR 2095 (KZP): referred to

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220; [2001] ZASCA 30): applied

S v Matyityi 2011 (1) SACR 40 (SCA) ([2010] 2 All SA 424; [2010] ZASCA 127): compared

S v Mgedezi and Others 1989 (1) SA 687 (A): dicta at 705I – 706C applied I

S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) ([1997] 2 All SA 185): referred to

S v Michele and Another 2010 (1) SACR 131 (SCA) ([2010] 1 All SA 446; [2009] ZASCA 116): referred to

S v Nemutandani 2014 JDR 1898 (SCA): referred to

S v PB 2013 (2) SACR 533 (SCA) ([2012] ZASCA 154): referred to J

2016 (1) SACR p15

S v Raath 2009 (2) SACR 46 (C): referred to A

S v Radebe 2011 JDR 0926 (FB): referred to

S v September 2014 JDR 1105 (ECG): referred to

S v Spangenberg (case No CA&R 54/14, 29 August 2014): referred to

S v Streak (case No CA&R 21/2009, 18 September 2009): applied

S v Williams en 'n Ander 1980 (1) SA 60 (A): referred to. B

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 112(2): see Juta's Statutes of South Africa 2014/15 vol 1 at 2-366.

Case Information

VZ Nel for the appellant, instructed by the Justice Centre, Kimberley. C

JJ Rosenberg for the state.

An appeal against a sentence of life imprisonment imposed in the Northern Cape High Court, Kimberley (Hughes AJ).

Order

1.

The appeal on sentence is dismissed. D

2.

The registrar of this court is directed to forward a copy of this judgment specifically to the Northern Cape Director of Public Prosecutions and the Provincial Commissioner of Police.

Judgment

Kgomo JP (Mamosebo AJ concurring):

[1] I have read the judgment of my brother Olivier J and disagree, with E respect, with his approach, his conclusion and some of his findings and assessments.

[2] The appellant, 23 years of age, appeared before Madame Justice Hughes AJ (as she then was), along with his brother Peace Kagisho Asele, F who was two years younger than he, and Ishmael Boitumelo Keohitletse, who was the youngest at age 20. A fourth alleged accomplice, Olebogeng, evaded arrest. The three co-accused were charged with:

[2.1]

Kidnapping: Count 1;

[2.2]

robbery with aggravating circumstances as contemplated in G s 1 of the Criminal Procedure Act 51 of 1977 (the CPA) and read with s 51 of the Criminal Law Amendment Act 105 of 1997: Count 2; and

[2.3]

murder, read with s 51(1) of the Criminal Law Amendment Act: Count 3. H

[3] The appellant pleaded guilty to all aforementioned charges as described in the indictment. The trial judge was satisfied that he admitted all the elements of the offence with which he was charged and convicted him accordingly. He was then sentenced as follows:

[3.1]

For the kidnapping: 10 years' imprisonment; I

[3.2]

for the robbery: 15 years' imprisonment; and

[3.3]

for the murder: Life imprisonment.

These sentences were ordered to run concurrently. The appeal, in respect of the life imprisonment only, is with leave of the trial court.

[4] In summary Olivier J is of the view that the trial court misdirected itself in the following respects: J

2016 (1) SACR p16

Kgomo JP (Mamosebo AJ concurring)

[4.1]

A That the facts admitted by the appellant neither establish that he had the intention to murder nor was the murder premeditated as the trial judge found.

[4.2]

That the appellant declared that he foresaw the possibility of the attack culminating in the death of the deceased but was reckless B to the consequences of whether the death ensued or not, and that such conduct constitutes dolus eventualis; but that, in any event, the appellant specifically pleaded guilty to murder with dolus eventualis as the form of intent and that is in fact what state counsel, Mr Rosenberg, accepted before the trial court.

[4.3]

That the fact that the appellant pleaded guilty, co-operated with C the police and expressed regret was a manifestation of remorse and that he was a good candidate for rehabilitation.

[4.4]

That the factors in [4.1], [4.2] and [4.3], together with the appellant's youthfulness (he was 21 years old when the offences were committed), constitute substantial and compelling circumstances which should have persuaded the trial court to deviate D from the ordained life imprisonment sentence. Olivier J accordingly proposes that a sentence of 20 years' imprisonment would be appropriate.

[5] The learned trial judge expressed herself in these terms on how the E murder was...