De Bruin v S (Leave to Appeal) (KS21/2020) [2025] ZANCHC 43 (23 May 2025)
Latest
amended version: 27 May 2025
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, UPINGTON
Case No: KS 21/2020
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter between:
EDWARD
DE
BRUIN
Applicant
and
THE
STATE
Respondent
Heard:
Determined on the papers
Delivered on:
23 May 2025
Summary:
Application for leave to appeal against his conviction and sentence.
ORDER
The application for leave
to appeal is dismissed.
JUDGMENT
Mamosebo ADJP
[1]
On 06 May 2024 the applicant was convicted of the following: Count 1:
Murder read
with the provisions of s 51(1) of the Criminal Law
Amendment Act, 105 of 1997 (CLLA) ; Count 2: kidnapping read with s
51(2)
of the CLLA; Count 3: Assault with intent to do grievous bodily
harm; Count 4: Contravention of s 3(1) read with sections 1, 120(1),
and 121 of the Firearms Control Act, 60 of 2000 (FCA) and Count 5:
contravention of s 90 read with sections 1, 120(1) and 121 of
the
FCA. He was sentenced in respect of all counts (1 – 5),
respectively, as follows: 25 years, 10 years, 3 years, 5 years
and 12
months imprisonment. The sentences were ordered to run concurrently
with the sentence in Count 1.
[2]
The applicant now seeks leave to appeal against his conviction and
sentence in Count
1 (murder) to the Supreme Court of Appeal,
alternatively, to the Full Court of this Division. The application is
opposed. The parties
have agreed that this application be adjudicated
on the papers and have also filed heads of argument. The hearing of
oral argument
as contemplated in s 17(2)(d) of the Superior Courts
Act is therefore dispensed with. The Notice for Application for Leave
to Appeal
was filed on 27 November 2024 and the administrative
glitches caused a delay in the adjudication of this matter, which is
regrettable.
[3]
The following are the grounds upon which the applicant relies to
substantiate his
application for leave:
Ad
conviction
3.1
That another court may find that the state failed to prove beyond
reasonable doubt that the applicant had the intention to murder the
deceased;
3.2
That on all the evidence considered holistically, the applicant acted
negligently in killing the deceased and that another court may find
that the applicant should have been convicted of culpable homicide.
Ad
sentence
3.3
That another court may find that the sentence of 25 years
imprisonment
imposed on the applicant is shocking and inappropriate
taking into account the applicant’s personal circumstances.
[4]
Cachalia JA, writing for a unanimous court in Caratco[1],
on
the threshold to be met,
made
these instructive remarks:
‘In
order to be granted leave to appeal in terms of s 17(1)(a)(i) and s
17(1)(a)(ii) of the Superior Courts Act[2]
an applicant for leave must satisfy the court that the appeal would
have a reasonable prospect of success or that there is some
other
compelling reason why the appeal should be heard. If the court is
unpersuaded of the prospects of success, it must still
enquire into
whether there is a compelling reason to entertain the appeal. A
compelling reason includes an important question of
law or a discrete
issue of public importance that will have an effect on future
disputes. But here too, the merits remain vitally
important and are
often decisive.’
[5]
The first ground claims that the state has failed to prove intention
beyond
a reasonable doubt and, if granted leave, another court would
find that the applicant acted negligently, and would convict him of
culpable homicide.
[6]
The uncontroverted evidence before the court was that the applicant
was armed with
a loaded and unlicenced firearm which he used to fire
several shots aimed at the deceased resultantly causing his death.
The test
to determine intention is subjective and the test to
determine negligence is objective.
[7]
Snyman defines dolus eventualis
[3]
as follows:
‘A
person acts with intention in the form of dolus
eventualis if the commission of the
unlawful act or the causing of the unlawful result is not his main
aim, but:
(a)
He subjectively foresees the possibility
that, in striving towards his main aim, the unlawful act may be
committed or the unlawful
result may be caused, and
(b)
He reconciles himself to this possibility.’
[8]
The eyewitness Chico Patrick Mtuyedwa’s evidence appears at
paras 11 to 15 of
the main judgment. It was highlighted in the
judgment that Mtuyedwa’s evidence does not stand alone but was
corroborated
to a great extent by Aobakwe, Dr Fouché, and Sgt
Pico. I found Mtuyedwa to be a credible witness. Having assessed the
evidence
in totality in conformity with the correct approach
enunciated in Chabalala[4]
I
rejected the version of the applicant as palpably false where it
differed with the state’s version. I particularly rejected
the
allegation that the deceased was armed with a knife. Para 66 of the
main judgment deals with the contradictions taking cue
from Mkohle[5]
and Mafaladiso[6]
and
find it unnecessary to repeat them here.
[9]
The contention that the applicant be found guilty of culpable
homicide was also dealt
with as the state had urged the court to find
the form of intent to be dolus directus in the main judgment
paras 71 – 76. The court’s reasoning why the applicant,
and his co-accused were convicted of murder
(dolus eventualis)
with a common purpose is that the applicant foresaw the possibility
of the result and reconciled himself with the possibility
that firing
several shots at the deceased could result in his death but persisted
in not only chasing him but also firing shots
at him. If I erred at
all it would be that I should have found that the applicant had
direct intent to murder.
[10]
Counsel argues that a term of imprisonment of 25 years is shockingly
inappropriate. Murder is
unquestionably a heinous offence and there
must be a balancing act when imposing sentence. But this court had
considered the applicant’s
personal and mitigating
circumstances, the issue of remorse, age and rehabilitation prospects
of the applicant. Para 22 of the
judgment on sentence carefully
explains why the court deviated from imposing the prescribed minimum
sentence of life imprisonment.
[11]
Having dispassionately considered the grounds raised by the applicant
in an effort to determine
whether there are reasonable prospects that
another court would come to a different finding than this court whose
judgment is sought
to be appealed against, I have not found any. In
the result, the application for leave to appeal stands to fail.
[12]
The following order is made:
The
application for leave to appeal is dismissed.
M.C.MAMOSEBO
ACTING DEPUTY JUDGE
PRESIDENT
NORTHERN CAPE DIVISION
For the
Applicant:
Adv RJ Pieterse (Judi care)
Instructed
by:
Justice Centre (Kimberley)
For the
Respondent:
Adv. JJD Rosenberg
Instructed
by:
Office of the Director Public Prosecutions
[2]
Section
17
of the Superior Courts Act, 10 of 2013: Leave to appeal
(1)
Leave to appeal may only be given where
the judge or judges concerned are of the opinion that –
(a)(i) the appeal would
have a reasonable prospect of success; or
(ii)
there is some other compelling reason why the appeal should be
heard, including conflicting judgments n the matter under
consideration.
[3]
CR
Snyman, updated by SV Hoctor, Criminal Law , 7th
Edition, 2020, at 161
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