S v Chauke

• Jurisdiction: South Africa
• Judge: Galgut AJA
• Judgment Date: 14 November 1990
• Citation: 1991 (2) SACR 251 (BA)
• Hearing Date: 14 November 1990
• Counsel: H Lever for the appellant J J Smit SC Attorney-General for the State
• Court: Bophuthatswana Appellate Division

Galgut AJA:

The appellant appeared before a Judge and two assessors in the Circuit Court of the General Division sitting at Moretele. He was J found guilty,

Galgut AJA

A on count 1, of murder with extenuating circumstances. The verdict was not unanimous. One member of the Court returned a finding of culpable homicide. The person killed was one Philip Mabene to whom I will refer as the deceased. The appellant was, on this count, sentenced to 10 years' imprisonment. He was also convicted of being in unlawful possession of a firearm in contravention of s 2, read with ss 1, 12, 39 and 40 of the Arms and Ammunition Act 75 of 1969. The sentence imposed on this count was 12 months' imprisonment. B

Appellant sought leave in the Court a quo to appeal only against the conviction and sentence on count 1. The learned Judge a quo, when granting leave, stated that there was no doubt that appellant had killed the deceased, but added that the appeal Court could possibly find that the conviction should be changed to culpable homicide. He granted leave on that limited basis, viz whether the verdict should have been murder C or culpable homicide. I pause to say I find this a strange suggested limitation of the powers of the Court of appeal. Where an accused has been found guilty of murder without extenuating circumstances, the grant of leave to appeal only against the finding that there are no extenuating circumstances is permissible. This results from the practice that in murder cases the issue of extenuating circumstances is usually dealt with separately and only after the verdict of guilty of murder has D been pronounced. There are thus two phases dealt with separately. That procedure does not apply in a case like the present. Where leave to appeal against a conviction is granted by a trial Judge, it is helpful if his reasons for so doing are briefly stated. It is, however, not proper for him to seek to limit the powers of the appeal Court.

Appellant's heads of argument were not filed timeously as required by Rule 8 of the Appeal Court Rules. Condonation of the late filing was E sought. The application was opposed by the State. Both sides had filed written submissions on the issue of condonation.

When the matter was called, this Court, having had the benefit of the written submissions, ordered that the appeal and the issue of condonation were to be argued simultaneously. Having heard the arguments, this Court reserved its judgment. There is no doubt that the F appellant, at all times, wished his appeal to proceed; that the late filing of the heads was not due to any fault on his part; that the explanation for the failure to file the heads was acceptable; that the appeal had reasonable prospects of success. Having had regard to the importance of the appeal to the appellant, this Court was of the view that the condonation sought should be granted.

G The credibility issues are such that it is necessary to set out the relevant evidence.

The doctor, Prof Bunge, who conducted the post mortem examination, testified that the deceased died as the result of a bullet wound. Summarised, his evidence is that the bullet entered at the mouth; that it damaged certain teeth; that it finally lodged at the end of the spinal vertebrae; that it caused a sudden pressure which, in turn, H caused haemorrhage which extended to the brain; that death resulted, in his opinion, in about four minutes. He further testified that the deceased was thin and frail and 'a weaker person than most people'; that the appellant was a fitter and stronger person than the deceased.

It is common cause that the bullet was from a firearm which belonged to appellant.

I Maria Mabena is the daughter of the deceased. She and the appellant had had a love relationship during which she had lived with the appellant. She testified that during this relationship he had at times beaten her; that because of this, she wrote a letter to her mother in Benoni asking that she be fetched; that she wrote to her mother because letters were not delivered in the Winterveld where her father lived; that the appellant intercepted the letter; that its contents angered him; that he then chased her away; that she then went to live with her J father, the

Galgut AJA

A deceased; that some days thereafter, viz on Friday, 14 March 1986, she and the deceased were asleep in separate rooms; that at about 9 pm there was a knock at the door; that the deceased called out asking who was...