S v Mmabatho

• Jurisdiction: South Africa
• Judge: Sandi J
• Judgment Date: 03 December 2004
• Docket Number: CA66/04
• Court: Bophuthatswana High Court
• Hearing Date: 16 November 2004
• Citation: 2005 JDR 0384 (BG)

Mokgoatlheng AJ:

[1]

The Appellants were arraigned in the Regional Court at Itsoseng on the 3 October 2003 on a charge of murder alternatively for contravening section 18 (2) (a) and (b) of the Riotous Assemblies Act No 17 of 1956. They were convicted of murder and sentenced to six (6) years imprisonment. The charge related to an incident which occurred on the 3 October 1995 at Doornlaagte Village, when the deceased, Jon Dintwe, was fatally assaulted. They now appeal against their convictions.

[2.]

The appeal is based on the grounds that:-

[2.1]

The learned magistrate erred in finding that the State proved its case beyond a reasonable doubt in particular, that -

[a]

the Learned Magistrate erred in finding that it was common cause that the deceased was assaulted on the 3 October

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1995; that he sustained multiple injuries as a result of such assault;

[b]

the State did not prove that the deceased died as a direct result of the injuries inflicted by the Appellants, as there was an actus novus interveniens in the form of bronchial pneumonia which interrupted the causal link ensuing from the infliction of the assault on the deceased and resulted in the deceased's death; and

[c]

the Learned Magistrate misdirected himself in finding that the Appellants assaulted the deceased in pursuance of a common purpose; in the absence of supporting evidence.

[2.2]

The Appellants' right to a fair trial was infringed in that, the Learned Magistrate failed to comply with the requirements of section 93 ter of the Magistrates Court Act 32 of 1944.

[3]

In order to determine the probity of the issues raised on appeal. A summary of the evidence adduced at the trial needs to be stated.

[4]

The State called two witnesses to testify. The first state witness called was Martha Dintwe whose testimony comes to the following: On the 3rd October 1995, she met the three Appellants. She was on her way to her parental home. Before entering her parental premises she exchanged words with the First Appellant. Present at her parental home was her father the deceased, her mother, her brother and his wife. The Appellants followed her into her parents

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yard. The deceased forbade Appellants from entering his yard. Appellants disregarded the deceased and entered his premises. Appellants thereafter threw stones at the house. She, her mother, her brother and his wife ran into the house. Initially she saw the deceased inside the house. Subsequently during the fighting she saw the deceased outside. She does not know when the deceased went outside. She saw the Second Appellant assaulting the deceased with a spade on his head and body. The deceased fell down. The Appellants were all involved in the fight against the deceased and his family.

[5]

Emily Dintwe

The second witness testified that on the day in question she was asleep. She heard footsteps. She woke up, and peeped through the window. She saw the Second Appellant assaulting the deceased with a spade on the head. The Third Appellant assaulted the deceased with a pick handle on his body. The deceased was lying on the ground. She heard objects hitting the wall. She did not see who was throwing stones. The deceased was not sickly but was an old person.

[6]

The First Appellant testified that on the 3 October 1995 he was with the Second and Third Appellants. They were on their way to her grandmother's home at Doornlaagte. They met Martha Dintwe. When she passed Martha Dintwe's parental home, she saw her standing with a certain Moshoeshoe. Martha Dintwe without

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provocation assaulted her. Moshoeshoe also assaulted her with a cable. She and the Third Appellant fought Martha Dintwe and Moshoeshoe. She did not see the deceased being assaulted. She denied pelting the deceased's house with stones. No person did so. The fight occurred outside the deceased's yard. She did not see the role played by the Second and Third Appellants during the fight. She does not know the reason why she was attacked.

[7]

The Second Appellant confirms that on the day in question he was in the company of the First and Third Appellants. He was not involved in any fight. He did not see any person fighting. He did not assault the deceased.

[8]

The Third Appellant testified that on the 3rd October 1995 he was in the company of the First Appellant. They were on their way to the First Appellant's parental home, when passing through the village Tholwana people came out of a yard. and assaulted the First Appellant. He was also assaulted. The Second Appellant arrived, tried to intervene but was also assaulted. He did not assault the deceased with a pick handle. No one threw stones. After the fight, Appellants left together.

[9]

Expert evidence admitted in terms of section 212 of Act 51 of 1977 includes the medical report (Ts B 20) , the medico legal post mortem examination report (Ts B 36E) .The medical report indicates that the deceased was admitted to hospital on the 4th October 1995 after

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sustaining injuries as a result of the assault on the 3rd October 1995. The medical report further indicates that the deceased was examined by a doctor on 17th October 1995. The medical examination revealed that the condition of the deceased's clothes was very poor and dirty. The deceased was generally in a poor state of health. He had sustained multiple lacerations on his head and limb. These lacerations were healing. The Post Mortem report states that the deceased sustained severe external injuries. The cause of death was due to head injuries complicated by bronchial pneumonia.

[10]

It is trite law that in order to obtain a conviction, the state must discharge the onus of proving its case beyond a reasonable doubt. The principles governing this approach are clearly expressed by Faber AJ in the case of S v Toubie 2004, (1) SACR 530 et seq;

The power of the appeal court to interfere with the findings of the trial court is strictly circumscribed. The court will rarely if ever interfere with the findings of a trial court unless there is a patent misdirection committed by such court, (See S v R Dlumayo and Another 1948 (2) SA 671 (A) at 705).

[11]

The thrust of Appellants attack on the evidence adduced is premised on the contention that the trial court misdirected itself in finding that the state had proved the guilt of the Appellants beyond a reasonable doubt. An evaluation of the evidence follows to

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determine whether the Appellants submissions have merit:

(i)

The First Appellant testified that on the day in question she was in the company of the Second and Third Appellants; that both were involved in a fight at the parental home of the first state witness Martha Dintwe.

(ii)

The Third Appellant places the Second Appellant on the scene.

(iii)

The Second Appellant testified in contradiction to both the First and Third Appellants that he was not present at the time when the fighting occurred.

[12]

The Appellants' evidence in distancing themselves from being present at the scene of the incident, and denying participating in or assaulting the deceased, does not accord with the proven facts and circumstances surrounding the incident. The proven facts are that on the day in question;

(a)

There was a fight at the...