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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

PARTIES:

JOSEPH NABO APPELLENT

and

THE STATE RESPONDENT

• Case Number: CA&R: 94/07

• High Court: EASTERN CAPE DIVISION

HEARD: 24/10/07

DATE DELIVERED: 24/10/07

JUDGE(S): PLASKET J

LEGAL REPRESENTATIVES -

Appearances

• For the Appellant(s): J.C. McConnachie

• for the respondent(s): J. Sesar

Instructing attorneys:

• Appellant(s): Legal Aid Board

• Respondent(s):

CASE INFORMATION -

• Nature of proceedings :

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CA&R: 94/07

DATE HEARD: 24/10/07

DATE DELIVERED: 24/10/07

NOT REPORTABLE

In the matter between:

JOSEPH NABO APPELLENT

and

THE STATE RESPONDENT

JUDGMENT

PLASKET J

[1] The appellant was convicted in the Regional Court, Port Elizabeth of attempted murder. He was sentence to 10 years imprisonment of which three years was conditionally suspended for five years. He appeals against both conviction and sentence.

[2] Before turning to the merits, it is necessary to deal briefly with a point taken in limine. It is that the conviction and sentence should be set aside because the record is inadequate and cannot be reconstructed to make it adequate. In my view, there is no merit in this point. While there are a number of places in the record where the word ‘indistinct’ appears, to indicate gaps in the transcription, this problem has not reached the degree of severity that would justify the drastic expedient of allowing the appeal on this basis.

[3] I turn now to the appeal against conviction. It is common cause that there was bad blood between the appellant and the complainant, Mr B.M Mange. On 6 April 2002 they had an altercation in the street. According to Mr Mange, the appellant attacked him with a knife, he defended himself with a knife and, in so doing, inflicted two wounds on the appellant. According to the appellant, Mr Mange threw stones at him, went home and returned with an assegai with which he wounded him three times.

[4] This incident forms the background to the charge of which the appellant was convicted. According to Mr Mange, he was, later that evening, returning from his mother-in-law’s house carrying his two year old child on his shoulders when the appellant hit him form behind on the shoulder. He turned to see the appellant, who stabbed at his chest with a knife. Mr Mange blocked the blow with his arm, suffering a wound to his forearm.

[5] He jumped to the side and in the process the child fell off his shoulders. The appellant then attacked Mr Mange as he lay on the ground but missed in his attempt to stab him. Mr Mange heard the child crying and got up to go to it. The appellant stabbed him repeatedly when he got up, causing him to fall again. The appellant said that he would kill Mr Mange, swore at him and ran away.

[6] The J88 form that was submitted by consent records that Mr Mange’s injuries were multiple deep lacerations on his hands and fore-arms, a stab wound to the left chest, a stab wound to the left lower abdomen and a stab wound to the back.

[7] The appellant’s version of events is that Mr Mange attacked him with a knife and he inflicted the wounds on Mr Mange in self defence.

[8] The magistrate rejected the version of the appellant principally because of the number, nature and location of the wounds inflicted on Mr Mange by the appellant. This medical evidence supported Mr Mange’s version and was at odds with the version of the appellant. He was, in particular, not able to explain the stab wound on Mr Mange’s back in a way that was consistent with his version that he had acted in self defence.

[9] I am of the view that the magistrate’s reasoning cannot be faulted and that she was correct in finding that the inference was inescapable from the indiscriminate way in which the appellant stabbed Mr Mange and the locality of the wounds that he intended to kill Mr Mange. The appeal against conviction consequently cannot succeed.

[10] I turn now to sentence. The magistrate imposed a sentence of 10 years imprisonment of which three years were suspended for five years on condition that the appellant is not convicted of murder, attempted murder or assault with intent to commit grievous bodily harm committed during the period of suspension.

[11] The appellant has a number of previous convictions. Most are old and are not relevant. One is relevant. He was convicted on 2 February 2002, two months before the offence was committed in this case, of assault with intent to commit grievous bodily harm. He was sentenced to 18 months imprisonment suspended conditionally for three years. He testified about this conviction stating that he had beaten his nine year old son with a sjambok, causing open wounds, because the child had not wanted to go to school and had tried to run away from home.

[12] The magistrate correctly found that this previous conviction weighed against the appellant. From her reasons for sentence, it appears to me that the magistrate considered and weighed appropriately all relevant factors, including the objective seriousness of the offence, particularly its severe consequences for the health and the career of the complainant. In imposing sentence therefore, it cannot be said that the magistrate misdirected herself. Given the appellant’s previous conviction for a serious crime of violence and the objective gravity of the offence it cannot be said that the sentence is shockingly inappropriate. The appeal against sentence must therefore fail.

[13] In the result, it is ordered that the appellant’s appeal against conviction and sentence is dismissed.

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C. PLASKET

JUDGE OF THE HIGH COURT

I agree:

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J. SMITH

ACTING JUDGE OF THE HIGH COURT

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