IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) CASE NO.: CA 85/05 In the matter between: JOEL LATHA APPELLANT AND THE STATE RESPONDENT CRIMINAL APPEAL HENDRICKS J & LANDMAN J JUDGMENT LANDMAN J: [1] The appellant, Mr Joel Latha, was convicted by the Regional Court held at Taung on a charge of attempted murder on 21 September 2004 and sentenced to 7 years imprisonment. The appellant appeals to this Court, with leave of the Court a quo, against his conviction and sentence. [2] Mr W.A.F Strydom, who appeared for the appellant, submitted that the learned Regional Magistrate misdirected 1

2 himself as regards several important aspects of the evidence. This was a result of the considerable number of adjournments. [3] The record shows that the learned Magistrate: (a) misdirected himself in holding that the appellant was the only person who mentioned several persons sitting in the sitting room. Ms Theodora Mojanaga, a State witness, mentioned the same persons. (b) misdirected himself, relying on the evidence of the complainant, by finding that the appellant was a jealous lover. The complainant did not say so. (c) misdirected himself in holding that the appellant was not hit over the head with a broken bottle. This is correct the appellant did not say so. But he did say he was hit with a bottle on his back. (d) misdirected himself by finding that the police found the appellant on the scene. This was not the evidence. (e) misdirected himself by finding that the appellant could not remember whether he produced the knife to the police. The record is clear the appellant reported the incident to the police and at the same time he handed over the knife. (f) misdirected himself by taking into account that, as the complainant s right hand was dysfunctional, it justified a finding of attempted murder. The medical evidence does not show any injury to the complainant s right hand. The evidence was that the complainant was shot in the arm after the incident. [4] The misdirections are such that this Court is entitled to interfere with the findings of the learned Magistrate and replace them with its own findings based on the record. 2

3 [5] The complainant s version is the following: It was on Saturday. It was in the evening between 19:00 and 20:00 at Manokwane. I had visited my girlfriend at Mojanaga s place, by the name of Theodora Mojanaga. Om my arrival I did not find her, she was at the salon. I found her elder sister. She told me to wait for her, she will just come after a while. On her arrival, I was already tired. I then asked her to sleep. She then went into the bedroom and made a bed to prepare to sleep. As she was preparing the bed, a certain man arrived. He just slammed the door open. He was holding a baby. I did not know him. I only learned afterwards that it was Joel Latha. On his arrival he slapped my girlfriend with an open hand. He threw the baby against the wall, on the bed and hit Theodora, my girlfriend, with an open hand. He did not say anything, he just kicked the door open and threw the child against the wall and hit my girlfriend with an open hand. After hitting my girlfriend with an open hand, he then produced a knife. When my girlfriend tried to block the blow, the knife then scratched her on the finger. He produced the knife from his trouser pocket. I then said to him that, Do not like that, why do we not sit down and talk. He then threatened me. I ducked. As I ducked, he then stabbed me between the shoulders. My girlfriend was not there. I do not know where she had gone, whether through the window or the door, but she was not there. The child was also not there. It was me and the accused only. I then left, I ran away. As I ran away he then stabbed me again on the back, at the side of the ribs, in the left side. I was running out of the room, going outside. He then chased me again outside. I then ran into the room again. I tried to close myself in. I got into the house. He then got in. As he was coming running I then held him. As I held him he then stabbed me on my upper left arm. I then fell to the ground. He then said to me that he will kill me. We were inside the house, in the sitting room. Then a voice came out of a certain boy. He then said, Leave him, you can see that you have already killed him. By then he had already disappeared. I did not see him. Then the police came and took me. They then took me to the Taung hospital. 3

4 Yes, I was injured because I could not board a vehicle by myself. I was loaded into the vehicle. I bled profusely, even the room I was collected from was full of blood. I was bleeding from where I was stabbed, in between my shoulders and the ribs and my arm. I was examined and stitched by the doctors at the hospital. I was given medication. I was admitted on Saturday, then discharged on Monday at 12:00. I was taking the treatment after my discharge, then I was referred to Klerksdorp hospital the following year, 2003, after my injury in I was admitted at Klerksdorp hospital where I was taken for operation for the arm. The doctor did not inform me as to how long will I take the treatment. He only told me that if my arm was well, I will stop taking treatment. He even assigned me to get the pension. Disability pension as my hand is no longer functioning. [6] The complainant s evidence is not entirely satisfactory. (a) The complainant changed the sequence of the events concerning what happened in the bedroom and the opening of the door by the appellant. (b) Complainant s evidence concerning the second stab wound is contradicted by the J88. He states that he was stabbed on the side of the ribs, on the left side. The J88 form shows he was stabbed on the right hand side. No wounds were found on the left hand side. (c) The third stab wound according to the complainant was on his left upper hand as shown by the J88. But he told the Court a quo that he was assigned for pension because he cannot use his right hand. (d) Complainant s evidence how appellant s hand got injured is highly improbable, viz, kicking open the door 4

5 while holding the child in his arms. (e) Complainant on various occasions avoided answering questions. (f) Complainant contradicted himself as to when he went down, viz, after the first stab wound or the third stab wound. (g) Complainant s evidence about running around outside the house for 5 minutes without being caught or screaming for help is highly improbable. (h) The complainant s evidence, when the Court a quo asked him about Theodora s whereabouts, confirms the appellant s evidence that when the door was slammed open by the complainant, the child was lying on the floor crying and that it is the complainant who forcefully opened the door and not the appellant. (i) The complainant s evidence as to who was first in the bedroom with Theodora is very unsatisfactory. (j) The complainant gives no reason at all as to what started the fight that evening, while the appellant gave a probable reason. 5

6 [8] Ms Mojanaga s testimony was to the following effect: I know the accused. He is the father to my child. I was no longer having an affair with him. The relationship terminated in June The accused arrived, it could be before or after 20:00. He found me with my family and my boyfriend. On his arrival he greeted. He then went outside with my elder sister, he called my elder sister and they went outside. They conversed outside and the accused have taken the child from my aunt s child. On his return from outside, after conversing with elder sister, as I no longer have an affair with him, he found me with my boyfriend at the bedroom. As he did not find us where we were seated, he went to my bedroom and kicked it. By then he was having the baby. After he kicked the door he entered into the room and hit the child against the wall. He slapped me with and open hand. He then produced a knife and he tried to stab me. I then blocked it. It then stabbed me on my finger. My boyfriend then held a knife from him and said to him, after he stabbed me, why do we not sit down and talk. The accused pulled the knife as the complainant was holding the knife. I then fled. I fled through a window to my aunt. I did not see what happened afterwards. [9] Ms Mojanaga s testimony substantiates the complainant s evidence in some respects but contradicts his evidence on material aspects. (a) Theodora Mojanaga contradicts the evidence of the complainant as to the fact that appellant found her and the complainant in the sitting room on the appellant s arrival. (b) Ms Mojanaga contradicts the evidence of complainant. She said he was holding the knife of the appellant and 6

7 his fingers were cut. incident. He did not mentioned this (c) Ms Mojanaga states that at a time she removed the knife from the appellant. The complainant did not mentioned this in his evidence. She contradicts herself about the complainant s holding of the knife; as to when she left the scene and whether she saw when his fingers were cut. (d) Ms Mojanaga contradicts the complainant with regard to whether the bedroom door was locked or not. (e) Ms Mojanaga contradicts herself and the complainant about how the child hit the wall. (f) Ms Mojanaga s evidence contradicts her previous statement, to the police concerning the presence of her sister pulling her and the state of the knife, which the appellant had. (g) Ms Mojanaga is further contradicted by both the complainant and the appellant concerning the appellant s injury on his pulse or hand. Neither the complainant nor appellant mentioned the fact that complainant grabbed the knife from the appellant. 7

8 (h) She is also biased against the appellant. She says that he lies even if she was not present. (i) The witnesses also contradicted each other as to whether the appellant spoke at all during the fight in their presence. (j) Ms Mojanaga gave evidence that appellant took the knife from his right front pocket. Later on she says that she did not see from where he got the knife from. [10] The appellant testified as follows: It was on the 7 th day of September I left my parental home to come and board taxis at the hospital, herding to town. I went to buy clothing. I went to Down shop where I bought some clothes. After finishing I went to pool zone where I relaxed. I played snooker. Whilst at pool zone playing snooker, I consumed about three beers of Hansa. Later I went home where I hitchhiked. I left town round about 19:00 where I alighted at the hospital. I footed to go home. On my way to my parental home I passed Theodora Mojanaga s place whom I fathered her child. When I entered the premises, her room is close when you gain entry. When I passed by she was speaking to her sister. I stood still because I overheard when she conversed with her sister to the effect that I was refusing to maintain our child. I went to the front door where I knocked. I was permitted to enter. After gaining entry I greeted. I found people seated. I took the child from one woman who was seated there. I held her. Whilst so holding the baby, her sister emerged from the bedroom. She went outside. I went with her outside. I asked her as to why was Theodora saying I was refusing to maintain our child. She made a simple response. She said she did not want to get involved in our matters. Then 8

9 I entered, that I was going to ask her as to why was she saying this. When I passed inside Moleko was also seated there. I went to Theodora s bedroom whilst so holding the baby. When I entered her bedroom, she was seated on the bed. It is not a big bed. I greeted her. I asked as to what has she been saying to her sister because I overheard the conversation. She then started to make noise. She made negative remarks to me to the effect that I was nothing, that I was a gemors. Whilst so scolding with her, one man entered, by the name of Matlhoateng. He was emerging from a chair which he was seated in at the sitting room. I was standing behind the door which was slightly opened. He pushed the door. Then the door bumped against me. The bed was about 1m from the wall. The child fell on top of the bed then the child rolled and bumped against the wall. Then I pushed this Moleko Matlhoateng. I pushed him outside. I asked him why did he cause me to bump the child s head against the wall. After pushing him outside, he came with a clenched fist. He hit me on the mouth. After hitting me, I retaliated with a clenched fist. After hitting him, Theodora came with an empty bottle. She hit me on my back. After hitting me I pushed her inside. I then further pushed her inside the bedroom. Then I hit her with an open hand. When I turned I saw Moleko. When he came he was possessing an okapi knife which had opened. When he was about to stab me with it, I tried to block it. Then it stabbed me on my hand. Then I managed to get hold of his hand. Then we wrestled over the knife. I overpowered him and then managed to get hold of the knife. After possessing the said knife, as he was holding me, I pulled him with my left arm. Then I stabbed him, I was intending to stab Theodora, then she fled. After stabbing this Moleko Matlhoateng for the third time, it is then that he bended. Then he fell to the ground. I stood up and observed him and at that stage Theodora had already left. A certain boy entered. He ordered me to leave this person and I told him that I was fighting. Then I took the knife and I told him that I was going to report this matter. Then I came to the police station to make a report. I came with the said okapi and handed it over to the police. The police then went to Theodora s place. [11] The version of the appellant is in my view is more probable than that of the State witnesses. The complainant and the appellant were still holding each other and wrestling over the knife. The appellant, to free himself from the complainant, stabbed him over his shoulders twice. He did not stab any 9

10 vital organs. But on his own version it is clear, considered objectively, that he exceeded the bounds of self defence. He is guilty of assault with intent to do grievous bodily harm. [12] This Court is at large to impose a suitable sentence. The facts and circumstances relevant to sentence are the following: (a) The appellant is 36 years old. (b) He is not married. (c) He has three children of the ages of 4, 8 and 13, two are attending school and he is supporting all three of them. (d) He also lives with his five brothers and sisters and he is also helping to support them. (e) Only the accused and one of his brothers has work. (f) The accused is one of twenty one people who, with the help of the state, applied for a subsidy and bought a farm in Hartswater and will start farming in the near future. (g) The appellant was earning R per month. I am of the view that a suspended sentence of 18 months would be appropriate. [13] In the result the conviction and sentence is set aside and replaced with a conviction of assault with intent to do grievous bodily harm. He is sentence to 18 months imprisonment suspended for 3 years on condition that he is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension. 10

11 A A LANDMAN JUDGE OF THE HIGH COURT I agree R D HENDRICKS JUDGE OF THE HIGH COURT Appearances: For the Appellant : Adv Strydom For the Respondent : Adv Mogale Attorneys for the Appellant : Van Rooyen Tlhapi & Wessels Attorneys for the Respondent: State Attorney Date of Hearing : 18 November 2005 Date of Judgment : December