S v Leballo

• Jurisdiction: South Africa
• Judge: Stewart CJ
• Judgment Date: 26 September 1988
• Citation: 1991 (1) SACR 398 (BA)
• Hearing Date: 15 September 1988
• Counsel: W W P Moyses for the appellant L Els for the State
• Court: Bophuthatswana Appellate Division

Stewart CJ:

The appellant was charged with one count of murder and two counts of attempted murder. He was duly found guilty of three counts of assault with intent to do grievous bodily harm. He was sentenced to imprisonment for eight years on the first count. On each of the second F and third counts he was sentenced to imprisonment for three years, these sentences being ordered to run concurrently with the sentence on the first count.

He failed in an application for leave to appeal against his convictions and sentences, but a petition for leave to appeal succeeded so far as the sentences alone are concerned.

G The facts of the case are as follows:

The appellant is the proprietor of a restaurant and shop at Rooifontein in the district of Moretele, in the Republic of Bophuthatswana. Shortly before February 1987 this business was broken into and various articles were stolen. On 1 February 1987 tribal police from Kwa-Ndebele arrived at the business with three youths aged between 17 and 19 years. They had arrested the youths and had taken possession H of articles which the appellant identified as having been stolen from his business. These articles were apparently found in the possession of the youths.

The appellant, wishing, it seems, to punish the youths for having broken into his business and having stolen the goods, tied them together with rope and, with the help of his brother, forced them to lie under his four ton diesel truck. Appellant then drove over the three youths. I The wheels of the truck went over portions of their bodies, causing them injuries.

He then loaded them on to the back of the truck and drove them to a Bophuthatswana Police station.

On arrival at the police station one of the youths died from the injuries he had sustained to his head. The other two required J hospitalisation for some two days and conservative treatment.

Stewart CJ

A In coming to its conclusion that the appellant was guilty of assault with intent to do grievous bodily harm and not of a more serious offence the trial Court found, by a majority, that the appellant had put the youths under the truck in such a way that their heads were not in the path of the wheels. Further, that they were capable of limited movement while under the truck and thus could have been expected to avoid being B injured and, finally, that the appellant's intention was to punish them by frightening them, and not to injure them.

The dissenting member of the Court was of the view that the appellant was guilty of murder. His reasons for this view were not placed on record.

In passing sentence, the learned trial Judge recorded that he had discussed the matter with a Deputy Judge President of the Transvaal Provincial Division of the Republic of South Africa, who had proposed a C sentence which...