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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CA NO.: 48/04

In the matter between:

SELLO ABIA NTSIME Appellant

and

THE STATE Respondent

CRIMINAL APPEAL

MMABATHO

MOGOENG JP & MOKGOATLHENG AJ

_________

JUDGMENT

_____

MOKGOATLHENG AJ:

[1] The Appellant was arraigned in the Mogwase Regional Court on a charge of attempted murder, in that on or about the 3^rd November 2001 and at Tweelaagte in the district of Mankwe the Appellant unlawfully attempted to kill David Thipe by shooting him with a firearm with the intent to kill him.

Alternatively the Appellant was charged with contravening the provisions of Section 39(1) (a) (1) read with Section 39(1) (d) of the Arms and Ammunition Act 75 of 1969, in that on or about the date and place mentioned in the main count the said Appellant unlawfully discharged an arm and thereby negligently endangered the life and limb of David Thipe, or handled a firearm in a negligent manner.

[2] The Appellant was convicted of attempted murder and sentenced to twelve (12) years imprisonment.

[3] The Appellant now appeals against both the conviction and sentence.

Grounds of Appeal

[4] The grounds of appeal that the Appellant relied on are as follows:

(a) the Learned Magistrate erred in finding that the State had proven beyond a reasonable doubt that the Appellant has committed the crime; and

(b) the Learned Magistrate erred in finding that the State’s evidence was credible and reliable.

Ad Sentence

(a) the learned Magistrate erred by over emphasising the interests of the complainant and the community at the expense of the interests of the Appellant; and

(b) the learned Magistrate erred by imposing a sentence that is so harsh in the circumstances that it induces a sense of shock.

The Law

[5] It is trite law that the State bears the onus to prove its case beyond a reasonable doubt. There is no onus on the accused to prove his innocence. If the version of the accused is reasonably possibly true, then he is entitled to be acquitted.

See S v Mbuli 2003 (1) SACR 97 (SCA) at 110 d-e.

[6] To determine whether the State has discharged this onus, concomitantly to determine whether the grounds of appeal have merit, it is apposite to have recourse to the legal definition of attempted murder and thereafter, to consider the evidence adduced at the trial court. Our courts have defined attempted murder as follows:

In S v Ndlovu 1984 (3) SA 23(A) Joubert JA, at page 26I-27 said the following:

“Die bestanddele van poging tot moord wat per se ʼn misdaad is, is wederregtelikheid, opset en ʼn pogingshandeling. Die strafbedreiging is gerig teen die wederregtelike opsetlike bedreiging van die lewe van ʼn mens. Die beskermde regsbelang is die lewe van ʼn mens. ʼn Geykte voorbeeld van voltooide poging tot moord is waar A sy vuurwapen op B rig met die bedoeling om hom te dood, en die skoot afvuur wat B mis of verwond sodat B die wederregtelike aanslag op sy lewe oorleef. A het alles van sy kant gedoen om B te vermoor maar die moord is onvoltooid. Die opset om die slagoffer te vermoor kan afgelei word uit die pogingshandeling asook ander aanvaarbare bewysmateriaal. Die wederrregtelikheid van die pogingshandeling is geleë in die bedreiging van ʼn regsbelang, naamlik die lewe van ʼn mens”.

On page 28 A–C, the learned Judge states that:-

“Volgens verskeie Wes-Europse regstelsels, met die uitsondering van die van Nederland, is poging met ʼn absoluut ondeugdelike objek strafbaar. Die regverdeging vir hierdie benadering word onder andere in die openbare belang gesoek. Vergelyk prof M Cherif Bassiouni Substantive Criminal Law (1978) op 211:

“It is now generally accepted that a conviction for attempt will lie even when the act constituting the attempt is frustrated or rendered impossible by circumstances not within the contemplation of the perpetrator. Whenever the consummation of the crime is prevented by some misconception of fact on the part of the actor, the more modern view is that this would not constitute a defense of impossibility of fact. This view rests on the premise that criminal law has as its aim the protection public and social interests. Therefore, the question of the criminality of an attempt will depend in part on the actor’s intent and in part on the degree of actual danger to social or public interest arising from such acts.”

All of the above is aptly summed by C.R. Snyman, Criminal Law 4^th edition at page 282 when he says that a person is guilty of attempting to commit a crime if, intending to commit that crime, he/she unlawfully engages in conduct that is not merely preparatory but has reached at least commencement of the execution of the intended crime. He goes on to say that an attempt is completed where x has done everything he/she can to commit the crime, but for some reason the crime is not completed, as where x shoots at y but misses.

The following is a summary of the evidence adduced at the trial.

Evidence of David Thipe

[7] The Complainant David Thipe testified that on the 3^rd November 2001 between 3am and 4am in the morning he was in the company of his girlfriend and friends, at My-Boys tavern at Tweelaagte. He partook of liquor at the tavern. He and his friend Azaka were playing and chasing each other outside the tavern premises. The Appellant’s motor vehicle was parked next to the tavern. They were joined by a certain Bushy. The Appellant was sitting in his motor vehicle. The Complainant pushed Bushy who lost his balance and collided with the Appellant’s motor vehicle. The motor vehicle was not dented. The Appellant alighted from his motor vehicle. He asked the Complainant and his friends what they wanted from his motor vehicle. The Appellant swore at them and drew a firearm.

[8] The Appellant pointed the firearm at the Complainant and fired two shots. These shots missed the Complainant. The Appellant then assaulted the Complainant three times on the head with the butt of the firearm. The Complainant grabbed the Appellant, wrestled with him and they both fell to the ground. The Complainant’s friends Thabo and Eric, who were at the scene, kicked the Appellant. The Complainant disarmed the Appellant of his firearm and handed same over to his girlfriend who fled the scene therewith.

[9] The scene was illuminated by an electric light from the tavern. The Appellant produced the firearm from his waist when he was alighting from the motor vehicle. The Complainant was close to the Appellant, about a pace away when he produced the firearm and started firing shots. The Complainant was standing still when the first and second shots were fired. He requested the Appellant not to shoot at him. He was frightened. None of the bullets struck any person. The Appellant was drunk, aggressive and abusive. The Complainant received medical attention for the injuries on his head.

[10] The Complainant denies that a shot went off when he and the Appellant were grappling for possession of the firearm. He says that the Appellant fired the shots intentionally and not accidentally.

[11] Under cross-examination the Complainant stated that he did not know why the Appellant missed shooting him at such a close range, only the Appellant can explain that. The Complainant did not see any person firing a shot which went through My-Boys tavern’s window, which struck and injured the Appellant on his left arm.

Evidence of M G Tshweu

[12] Ms Tshweu, the Complainant’s girlfriend confirms his evidence in all material respects. Although she states that the Appellant fired three shot at the Complainant. She was not inebriated. She further stated that no other person discharged a firearm at the scene except the Appellant. She denies that My-Boy’s tavern’s window panes were damaged by a gun shot.

Evidence of E Segoala

[13] E Segoala testified that he was inside the tavern when he heard two gunshots. He went outside, and it was at that stage that he heard a third shot and saw that the Appellant was fighting with the Complainant. The Appellant was assaulting the Complainant on his head with a firearm. The Complainant grabbed the Appellant, and they fell to the ground. He kicked the firearm out of the Appellant’s hand. The Complainant picked up the firearm and handed it to Tshweu. He was not drunk. He could appreciate what was happening.

[14] Although the Appellant was under the influence of alcohol when he fired the third shot, the Appellant was pointing the firearm at the Complainant’s head. No person was struck by the shots. The Complainant sustained injuries on his head, and was bleeding.

[15] Under cross-examination he stated that when the Appellant was close to the Complainant there was no one else standing next to the Complainant. The Appellant was close to the Complainant when he fired the shot. He does not know whether the Appellant aimed to shoot at the Complainant’s head or not, but he states that the bullets flew just near the Complainant’s head. He does not know why the bullets did not strike the Complainant. He attributes this to the Appellant’s hand being controlled by the firearm. He did not hear any other gunshots being fired except those fired by the Appellant.

Evidence of T Mokone

[16] T. Mokone testified that on the day in question he was inside the tavern when he was told that someone was shooting at the Complainant. He went outside and saw the Appellant shooting at the Complainant. The Appellant fired three shots. The Appellant was at an arm’s length from the Complainant when he fired the shots. He says that he was three paces away from the Appellant and the Complainant. The Appellant was pointing the firearm at the Complainant’s shoulders. The Appellant primed his firearm to shoot at the Complainant for the fourth time, but his firearm jammed. The Complainant grabbed him and they both fell to the ground. He did not hear the firearm go off when the Appellant and Complainant were fighting for possession thereof.

[17] Under cross-examination he states that the Appellant shot over the Complainant’s shoulders and missed striking him. He did not see the Appellant assault the Complainant on his head with the butt of the firearm. He saw Complainant bleeding. The firearm was kicked out of the Appellant’s hand by Eric.

Appellant’s Evidence

[18] The Appellant testified that he was at My-Boys tavern. He had his uncle’s firearm in his possession which was exposed when he was buying drinks. He went outside to his motor vehicle. He found two boys playfully hitting each other at or near his motor vehicle. He requested them not to play near his motor vehicle. These boys turned towards him. One tried to grab the firearm which was on his waist. He struggled with this person over the firearm. Shots were fired during the struggle and he was injured.

[19] A group of people came to the scene. Realising that the firearm may injure these people he surrendered the possession thereof. He could not get into his motor vehicle as his path was blocked. After a struggle, he managed to break loose and ran into My-Boys tavern. Whilst inside the premises a shot went off and he was struck on his hand. He went to the hospital, and was ultimately arrested.

[20] Under cross-examination he admits the firearm was on his waist when he went into the tavern. He denies being drunk. He was not angry at the Complainant and his friends who damaged his motor vehicle. He knows how to handle a firearm. He was an MK member and knows that one should not be temperamental when in possession of a firearm. This firearm was semi-automatic, one has to cock and unlock it before one can fire a shot. He did not check whether the firearm was cocked or had any ammunition in it. He just placed it on his waist. He was not going to use the firearm. He knows the rules pertaining to firearm safety. His companion Splash gave him the firearm. After the first shot went off he did not lock the firearm.

[21] During the struggle for the firearm the second bullet hit him. He was alone inside the tavern when he was shot. He conceded that the only object that could injure the Complainant when they were fighting for possession of the firearm was the firearm itself. He denies that he assaulted the complainant. If he intended to shoot the Complainant from the distance mentioned he would have killed him as he could not have missed. The firearm became visible when it fell to the ground at the time when Splash was pulling him.

Submissions

[22] The Appellant submits that the State witnesses contradicted themselves, with regard to:

1. the number of persons at the Appellant’s motor vehicle;

2. the number of shots fired; and

3. the sequence pertaining to whether the complainant was firstly assaulted by the Appellant with the butt of the firearm and thereafter shot at or vice-versa.

[23] The Appellant submits that the trial Court should not have accepted the evidence of the complainant and his companions as they were drunk. Their evidence is not credible and reliable.

[24] Counsel for the State supported the conviction.

Evaluation of Evidence

[25] It is evident from the proven facts that the genesis of the offence was triggered by the Complainant’s friend Bushy, who fell on and collided with the Appellant’s motor vehicle. The Appellant took umbrage and confronted complainant and his friends. He swore at them asked them what they wanted from his motor vehicle. The Appellant thereafter produced a firearm from his waist and pointed same at the Complainant, fired two shots at him but missed. The appellant thereafter assaulted the complainant thrice on his head with the butt of the firearm. The Complainant sustained cuts on his forehead and head and bled.

[26] Tshweu corroborates the Complainant’s evidence in all material respects. Segaole only corroborates the Complainant evidence regarding the assault and the struggle for the possession of the firearm. He arrived at the scene after the two shots had been fired. His evidence that he kicked the firearm out of the Appellant’s hand contradicts the version of the Complainant who stated that he disarmed the Accused; this contradiction is not material.

[27] Mokone corroborates the evidence of the Complainant. He testified that the Appellant shot at the Complainant three times, pointing the firearm at him. His evidence regarding the number of shots fired differs from that of the Complainant. This contradiction is not consequential.

[28] An analysis of the Appellant’s version reveals the following:-

(a) He states that the firearm was exposed when he went inside the tavern to buy alcohol. He did not dispute the complainant’s evidence that he took out the firearm from his waist. Under cross examination the Complainant stated that the firearm only became visible when his companion Splash pulled him, that the firearm fall through the leg of his jeans. He further stated that he did not have a waist belt on, that the firearm was held by a pin that became loose, that the buckle of the trousers became loose, resulting in the trouser also coming loose on his waist, consequently the firearm fell. This evidence was not mentioned in his evidence in chief and contradicts his earlier evidence relating to the position where he secured the firearm namely on his waist;

(b) He did not dispute the State’s version that he fired shots at the Complainant. Later, the Appellant testified that when the shots were fired he and the Complainant were struggling for possession of the firearm. This evidence is palpably a fabrication and does not accord with the proven facts;

(c) In cross-examining Tshweu the Appellant put it to her, that he produced a firearm. This assertion contradicts his evidence that when he was attacked by two boys, one of them grab the firearm which was on his waist.

[29] From the above analysis it is patent that the Appellant’s evidence is riddled with improbabilities and is palpably fabricated.

[30] The conclusion by the trial court that the appellant’s evidence is not reasonably possibly true that it is false beyond a reasonable doubt was correct. The evidence is conclusive that the Appellant pointed the firearm directly at the Complainant and fired two shots at him.

Application of the Law to the Facts

[31] In law there is a presumption that an accused person intends the natural and probable consequences of his act. The intention of the actual fact that entails a risk to life, and which brings about the intrinsic, probable consequence of such an act is inferred from all the necessary facts of the case.

[32] The Appellant was under the influence of alcohol although he was truculent and unreasonable as a result of the alcohol, he was still able to understand and appreciate his actions.

[33] In order to support a conviction for attempted murder it is sufficient if there is an appreciation that there is some risk to life involved in the action contemplated, coupled with recklessness as to whether or not the risk is fulfilled in death.

[34] The evidence proves that the Appellant pointed the firearm directly at the Complainant, and intentionally fired two shots at him. It is irrelevant that these shots missed the Complainant. The appellant foresaw the possibility that his action constituted a risk to the life of the Complainant.

[35] The actions of the Appellant prove that he was capable of forming and did form the intent requisite for the crime of attempted murder.

See Rex v Taylor 1949 (4) SA 702 at 712-713 (AD).

Consequently the appeal on conviction is dismissed.

Ad Sentence

[36] The general principle the court adopts in an appeal relating to sentence was stated by Nicholas J in S v Rabie 1975 (4) SA 855 (A) at 857 D – F as follows:

“1. In every appeal against sentence, whether imposed by a magistrate or a Judge, the Court hearing the appeal-

(a) should be guided by the principle that punishment is “pre-eminently a matter for the discretion of the trial Court”; and

(b) should be careful not to erode such discretion; hence the further principle that the sentence should only be altered if the discretion has not been “judicially and properly exercised”.

2. The test under (b) is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate”.

[37] The Appellant contends that the court acted unreasonably and improperly in imposing the sentence of (12) twelve years imprisonment.

[38] In my view, the trial court failed to take into consideration that alcohol played a large role in the commission of the offence, that there was some measure of provocation which prompted the Appellant’s actions.

[39] The trial court also failed to take into consideration that the Complainant sustained no gunshot injuries. The Appellant is a first offender with dependants attending school. The Appellant is employed and earns a salary of R 2 300-00 per month.

[40] The trial court in considering the imposition of sentence clearly misdirected itself. The trial court’s reasons for not imposing a suspended sentence or a sentence of imprisonment with the option of a fine, is premised on the following factors:-

(a) the Appellant is not licensed to possess a firearm;

(b) the Appellant is a former MK member with the result that he is aware of the rules and regulations pertaining to the handling of firearms but despite that, he carried a firearm into a shebeen;

(c) the firing of two or three bullets at the Complainant is a clear indication of the type of person the Appellant is, and what can happen if a firearm lands on his hands, and shows the intention with which the shooting was carried out;

(d) the Appellant was in his sober senses and his behaviour is quite shocking;

(e) the Legislature has deemed it necessary that those who possess unlicensed firearms, or commit offences with unlicensed firearms should be met with sufficient punishment in order to reduce their numbers; and

(f) the court has found that the only suitable sentence is imprisonment of an offence committed with this kind of brutality.

[41] The trial court did not exercise it’s discretion in the imposition of sentence in a proper judicial manner. The sentence is disturbingly inappropriate and completely out of all proportion with the offence committed.

[42] The appeal court because of the trial court’s patent misdirection and unjudicial application of its discretion is entitled to intervene in the interests of justice.

[43] The Appellant as rightly conceded by the State, showed a measure of remorse. He stated that the commission of the offence was spontaneous and not premeditated. The Appellant was provoked to conduct himself as he did, though his conduct is not condoned.

[44] It is patent that alcohol played a role in the commission of the offence, which in a sense reduces the moral blameworthiness of the Appellant.

[45] In the premises the following order is made:

(a) the appeal in respect of conviction is dismissed; and

(b) the appeal against sentence is upheld, accordingly the sentence of twelve years imprisonment is set aside and substituted with the following sentence:

“Five years imprisonment, two years one month thereof is suspended for a period of five years on condition that the Appellant is not found guilty of the offence of attempted murder committed during the period of suspension”.

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R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT

I agree

____________________

M T R MOGOENG

JUDGE PRESIDENT

Date of Hearing : 10 December 2004

Date of Judgment : 14 April 2005

Counsel for the Appellant : Adv I Miles

Counsel for the Respondent : Adv U Mokone

Attorney for the Appellant : M J Smuts

Attorney for the Respondent : State Attorney

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