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Jafta v S (34/2015) [2016] ZAECGHC 82 (6 September 2016)

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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

                                                                                                CASE NO 34/2015

                                                                                                DATE HEARD: 31/08/2016

                                                                                                DATE DELIVERED: 06/09/2016

In the matter between

AIDEN JAFTA                                                                                                        APPELLANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

ROBERSON J:-

[1] The appellant was convicted in the Regional Court, Port Elizabeth, of rape, robbery with aggravating circumstances, and murder.  He was sentenced to 10 years’ imprisonment for rape, 15 years’ imprisonment for robbery, and life imprisonment for murder.  The victim in all three charges was Mrs A. K., a 58 year old woman (the deceased).  An application for leave to appeal against the convictions and sentences for rape and robbery was refused by the trial court and refused on petition to the Judge President of this court.  The appellant enjoys an automatic right of appeal against the conviction and sentence for murder in terms of s 309 (1) (a) of the Criminal Procedure Act 51 of 1977.  This appeal is therefore before us only in respect of the murder conviction and sentence. 

Conviction

[2] The offences were committed at the same time and place and were closely linked and it is necessary to consider the murder conviction in the context of all the evidence led at the trial.

[3] In his plea statement, the appellant said that he had gone to the deceased’s house looking for her son R. K..  R. was not there and the deceased asked him for money to buy beer.  He bought beer, and returned to the deceased’s house where, at the deceased’s invitation, they consumed the beer together.  Later they twice had consensual sexual intercourse.  The deceased stood up and fell, striking her head on a cupboard.  The appellant looked for a cloth to wipe off the blood on the deceased, leaving her on the bed.  When he turned around, she was standing in front of him holding garden shears, intending to stab him with the shears.  He was unable to take the shears from the deceased and ran to the kitchen.  The deceased followed him, still intending to stab him.  He took hold of a knife and they returned to the bedroom.  There he became angry at her intended attack and stabbed her, as far as he could recall, twice in the back with the knife.  He decided to leave the house and on his way out took clothing, a DVD player and the remote control for the DVD player.  These were the items alleged to have been stolen in the robbery charge. 

[4] There were no eye witnesses to the crimes.  The deceased’s son, R. K., testified that the day before the crimes were committed, he met the appellant at the deceased’s home.  R. told the appellant that he and the deceased lived alone and that he, R., was mostly not at home.  The appellant asked for a place to sleep and R. told him that the deceased did not allow strangers into her home.  The next day R. left his home and only returned at about 10.30 pm.  He found his mother lying naked on her stomach on the floor in his bedroom, between the bed and a dressing table.  The next day he saw the appellant at the police station.  The appellant was wearing R.’s clothes, which were the clothes listed in the robbery charge.  R. identified a pair of garden shears in a photograph and said that they were always kept in the bathroom. 

[5] Evidence of a pointing out and statements made by the appellant was admitted.  The appellant took Captain Stephanus de Bruyn to the house of the deceased and pointed out the door through which he had entered.  The statements he made to de Bruyn were roughly in line with his plea explanation, with the difference being that he and the deceased had sexual intercourse once and that after they had sexual intercourse he had gone to the bathroom.  When he returned from the bathroom the deceased fell off the bed and hit her head on the dressing table.  He told de Bruyn that he had found the knife in a drawer in the kitchen.  He also told de Bruyn that he had left the knife in the sink in the kitchen, locked the back door and thrown the key through the toilet window.

[6] The appellant’s warning statement was admitted.  Again it roughly accorded with his plea explanation, including that he and the deceased had had sexual intercourse twice.  The second time they had intercourse the deceased was on top of him.  She moved off him and as he shifted his position she fell off the bed and hit her head on the dressing table.  He also added that after he had stabbed the deceased she fell and again hit her head on the same cupboard and that he had sold the DVD player and remote for R60.

[7] Dr Prudent Mgobo performed the post mortem examination on the deceased and compiled the medico-legal report.  The chief post mortem findings were:

1.          Bruised scalp diffusely.

2.            Fractured skull in the left and right temporal areas.

3.            Hinge fracture base of skull.

4.            Epidural haemorrhage involving the left temporal area.

5.            Diffuse subdural and subarachnoid haemorrhage.

6.            Blood in trachea.

7.            Stab left penetrated through the left 8th intercostal space posteriorly into the left lower lobe.

8.            500ml blood in the left chest cavity.

9.            Fractured 5th rib on the right anteriorly.”        

Dr Mgobo said that a considerable degree of force would have been used in inflicting the head injuries.

[8] Under the heading “External appearance of the body and condition of the limbs” the following observations were recorded:

-            Bruised on the left temple with 1cm laceration on the left supra orbital area.

-             Left raccoon eye.

-             Bruising on the left lower cheek.

-             Bruising right face and ear.

-             Bruised both shoulders.

-             Bruised posterior aspects of both arms.

1.           1,2cm penetrating stab on the left back 2cm from the posterior midline and 11cm below the shoulder.

2.           2cm stab on posterior midline 9cm below shoulder line.

3.           0,5cm stab wound 5cm from the midline and 16 cm below right shoulder.

4.           1,5cm stab right back midline 4.4cm above the shoulder line.”

[9] The cause of the deceased’s death was:

1.     Head injury due to blunt force.

2.      Stabbed left chest.”

According to Dr Mgobo both these injuries could have caused the death.

[10] Dr Mgobo disagreed that the injuries on the deceased’s scalp were caused by her falling and hitting her head twice.  If she had, he would have expected two areas of bruising, not bruising on the whole scalp.  In his experience the bruising on the whole of the scalp was caused by multiple blunt force applications to different areas.  The bruising on the temple, the cheek, face, ear, and shoulders, the racoon eye and the fractured rib were caused by the application of blunt force.  It was put to Dr Mgobo in cross-examination that the appellant had accidentally pushed the deceased off the bed.  He said that the deceased would have had to fall against a hard object at a reasonable speed to cause blood vessels to break.  If she merely rolled off the bed he would have expected bruising on one part of the head, and not on the whole head.  If the deceased had fallen off the bed and had come into contact with the cupboard next to the bed he would have expected bruising on her back or shoulders.  It was also put to Dr Mgobo that the deceased had fallen on her side against the dressing table.  Dr Mgobo pointed out that the deceased had injuries on both sides.

[11] Dr Mgobo took a blood sample from the deceased in order for her blood to be tested for the presence of alcohol.  It was not in dispute that the test result indicated that there was no alcohol detected in the deceased’s blood sample.

[12] Warrant Officer Sherwin Walsh is stationed at the provincial crime scene laboratory of the South African Police Service.  He is employed inter alia as a forensic analyst and crime scene investigator.  He testified that he attended the crime scene on the evening the offences were committed.  He confirmed the position of the deceased as he found her as depicted in a photograph.  The photograph showed her lying between the bed and a wooden dressing table.  Her head was about 30 cm from the dressing table.  Walsh said that if she had hit her head on the dressing table he would have expected to find blood and hair samples on the corner of the dressing table.  There were some blood droplets on the side of the dressing table but there was nothing which indicated impact with the dressing table.  There were blood spatters on objects near the deceased which would have been caused when a main artery was cut.  He concluded from the position of the blood spatters that the injuries were inflicted on the deceased at the place where she was found.

[13] The appellant testified that on the day the deceased died he went to her house looking for R. but he was not there.  He left but the deceased called him back.  This was the first time that he had ever seen the deceased.  She asked him to buy beer for her.  He did not ask her if she was going to pay for the beers because he did not think to do so.  When he was reminded that he had said in his warning statement that the deceased had asked him if he had money to buy beer, he said this was correct.  He bought two beers and returned to the house.  It was not his intention that he and the deceased would drink together.  The deceased told him to come in and sit down and they drank the beer together.    He left to buy two more beers and returned and they drank further.  He left yet again to buy two more beers and returned and they continued to drink.  They were both a little drunk. Some physical intimacy took place and they proceeded to R.’s bedroom where they sat on the bed.  The deceased was the first to start undressing.  They had sexual intercourse after which the appellant fell asleep on the bed.  He denied that he had gone to the bathroom, as he had told de Bruyn.  When he was asked why he had said in his warning statement that he and the deceased had twice had sexual intercourse, he was unable to answer. 

[14] When he woke up he found the deceased standing on the bed naked and holding garden shears.  He managed to take the shears from her and threw them to one side.  At this stage he wanted to get away.  The deceased slipped off the bed and he tried to grab her but she fell, hitting her head on the corner of the dressing table.  She bled slightly and he picked her up, put her on the bed and went to fetch a cloth to wipe the blood.  When he turned around he found the deceased standing behind him, again holding the shears.  They struggled and she hit him on the back of his head with the shears.  He pushed her against the wall, holding her by her upper arms, and asked her why she was behaving in this manner.  The shears fell and she ran to the front room.  He ran after her, and asked her to open the door for him so that he could leave, but it seemed she was not prepared to do so.  They struggled and she appeared to be angry.  At this stage she was wearing clothing on her upper body only.  The appellant went to the kitchen to look for the key to the door but could not find it.    He took hold of a knife which he found lying on a cupboard in the kitchen.  When he was referred to what he told de Bruyn about finding the knife in a drawer, he said he had opened the drawers in the kitchen and taken the knife from the drawer. 

[15] He returned to the bedroom and when he turned around the deceased was behind him.  She was naked again and was not in possession of a weapon.  They both slipped and fell.  He did not run away at this stage because he had already looked for the key and he was drunk.  He picked the deceased up and she hit him in the face.  He then accidentally stabbed her twice in the back when she broke free from him and turned around.  A little later in his evidence he said he did not know that he had stabbed her a second time and that he was too drunk.  He did not intend to stab her the first time.  He said that his hand holding the knife was in the air and fell downwards.  He was angry at this stage because he did not get the key from her so that he could leave.  During cross-examination he said he remembered stabbing the deceased the second time.  The deceased ran around the bed and fell in the same place where she fell the first time.  He went to her to see if she was still alive.  He left her lying on her stomach in the room as shown in the photographs of her body. 

[16] The appellant put the knife in the kitchen sink.  He found the key and opened the door and the outer gate.  He took the clothing from the room where the deceased lay.  He turned her over slightly and saw that she was no longer alive.  He took the DVD player as well, locked the door behind him and threw the key through the bathroom window.  He sold the DVD player the same evening.  He was arrested the following day.  He had planned to hand himself over to the police that evening but the alcohol he had consumed led him astray.     

[17] It is important to bear in mind that this appeal is in respect of the murder conviction and sentence only.  The magistrate’s findings and conclusions in respect of the rape and robbery charges cannot be revisited.  However, as already mentioned, the offences were closely linked and the findings of the magistrate, particularly in relation to the rape charge, have a bearing on the murder conviction.

[18] In his judgment the magistrate said that the state witnesses impressed him as honest witnesses and pointed out that their evidence had scarcely been challenged.  With regard to the appellant, he said he was one of the poorest witnesses he had observed in a long time.  He was evasive, he repeatedly had to be told to answer questions, and was often unable to answer a simple question.  The record amply confirms this evaluation.  The magistrate pointed out numerous contradictions between the appellant’s plea statement and his evidence.  These too are apparent from the record, as are differences between the plea statement, the pointing out statement, the warning statement, and the appellant’s evidence.

[19] This adverse credibility finding is further strengthened by the appellant’s version that he and the deceased drank alcohol together that evening, yet there was no alcohol found in the deceased’s blood.  The adverse credibility finding is relevant to the evaluation of the appellant’s version as to how the deceased suffered all the injuries observed by Dr Mgobo and how the appellant came to stab the deceased.

[20] The magistrate found it highly improbable that the deceased would suddenly want to stab the appellant with the shears, when earlier he had bought beers for her and they had had consensual sex.  This finding, which was made in relation to whether or not the sex was consensual, is also relevant to the appellant’s version of how the deceased was injured and why he stabbed her.  According to him she was the initial aggressor and the resulting struggle between them culminated in the stabbing.  If the appellant’s evidence that the deceased attacked him with the shears is rejected, as it must be, one is left with a scenario where an unarmed much older woman sustained severe injuries culminating in death.

[21] Dealing now specifically with the murder charge, the appellant gave different versions of how the deceased came to strike her head on the dressing table.  Such differences strongly suggest that his version in general that she struck her head on the dressing table was a fabrication.

[22] In my view the strongest evidence against the appellant and which belied his version, was that of Dr Mgobo and the undisputed injuries suffered by the deceased.  She had four stab wounds whereas the appellant admitted only two.  No-one else could have inflicted the other two stab wounds.  Dr Mgobo was firmly of the view that the head injuries could not have been caused by two falls against the dressing table.  All the injuries suffered by the deceased could only have been inflicted by the appellant.  No-one else entered the house after the appellant and the deceased was dead when he left the house.

[23] In my view the magistrate correctly rejected the appellant’s version that she fell off the bed and correctly found that he had inflicted the injuries on the deceased, after he raped her, with the intention to kill.

[24] The appeal against the conviction for murder therefore cannot succeed.

Sentence

[25] The charge sheet indicated that the murder charge was to be read with s 51 of the Criminal Law Amendment Act 105 of 1997.  The charge sheet did not distinguish whether the State relied on s 51 (1) or 51 (2).  There is a big difference between the two subsections, as read with Parts I and II of Schedule 2.  One refers to life imprisonment for murder and the other to 15 years’ imprisonment for a first conviction for murder.  It was only when the magistrate asked the prosecutor if life imprisonment was prescribed for any of the offences that the prosecutor said that the State would allege that it was applicable to the murder charge because the appellant had murdered the deceased “deurdat of om haar te beroof” (paragraph (c) (ii) of Part I of Schedule 2).  This is not the first time I have seen such a charge sheet in Regional Court matters.  In my view it is desirable that the charge sheet should specify which subsection of s 51 is relied upon and the grounds therefor, as is done in indictments drawn by the Director of Public Prosecutions for High Court matters.  It is at conviction stage that findings are made which trigger the application of a particular minimum sentence and it is important that an accused should be fully informed of what he or she faces.  Life imprisonment would also have been applicable in the present matter because the deceased was murdered after being raped (paragraph (c) (i) of Part 1 of Schedule 2).  The appellant’s attorney however confirmed that the appellant was aware of the prescribed minimum sentence for the murder charge and no prejudice was caused to him in this respect.

[26] The appellant was 31 years old at the time he committed the offences and a first offender.  He was not married and has two minor children.  At the time of his arrest he lived with the children and his girlfriend, the mother of the children.  He was employed as a taxi collector and occasionally as a painter and maintained his girlfriend, his children and his mother.  At the time of sentencing he had been in custody for about 18 months.

[27] The magistrate took into account the appellant’s personal circumstances, including that the appellant was a young man with responsibilities and a first offender.  The magistrate was aware that the appellant’s family would suffer if he went to prison.  However he did not regard these personal circumstances as amounting to substantial and compelling circumstances warranting a lesser sentence than that prescribed.  He referred to the gravity of the offence, namely the murder of a woman twice the appellant’s age in her own home and the grievous violence inflicted on her.  He also took into account the interests of society.

[28] I can find no misdirection in the magistrate’s judgment on sentence.  Nor do I think that the sentence is disproportionate or unjust.  The injuries described by Dr Mgobo speak for themselves.  This was a brutal murder of a defenceless older woman in her own home.  The gravity of the offence clearly outweighed the personal circumstances of the appellant.  It follows that the appeal against sentence also cannot succeed.

Order

[29] The appeal against the conviction and sentence for murder is dismissed. 


______________

J M ROBERSON

JUDGE OF THE HIGH COURT



MAKAULA J:-



I agree



___________

M MAKAULA

JUDGE OF THE HIGH COURT


Appearances:

For the Appellant: Adv H Charles, instructed by the Grahamstown Justice Centre

 

For the Respondent: Adv D Els, Director of Public Prosecutions, Grahamstown