IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between: 
EDWARD SEPTEMBER 
versus 
THE STATE

JUDGMENT

The appellant was on 16 January 2002 convicted in the Regional Court, Cape Town, on two counts:-
1.	Murder of one Hennie Kemp, 31 December 1998.
2.	The murder of Gert Samuels on 26 January 2000.

The record which was eventually found is incomplete. The exhibits have apparently disappeared forever. The typed record is replete with the transcriber's comment "onduidelik" or "indistinct". This situation is aggravated by the tendency of the prosecutor to constantly interrupt the appellant during cross-examination. However, in view of the lengthy delay which has beset the matter, this appeal must now be dealt with on the record as it stands.

It is common cause that the appellant and his companions on the night in question, 31 December 1998, drank wine and they all became intoxicated. They went to sleep in the open veld n the vicinity of Kromboom Road.     During the course of the night, the appellant woke up and went in search for more wine. An altercation ensued between the deceased, Hennie Kemp, and the appellant, Sophie Koertes witnessed the altercation. She saw the appellant being hit with a bottle, but she did not see the actual stabbing. Joseph Arnolds also witnessed the altercation. He also saw the deceased hitting the appellant with a bottle, but he did not see the stabbing. Sophie Koeries also saw the deceased throttling the appellant, and at one stage the deceased was on top of the appellant as they wrestled. While the two eye witnesses did not see any stabbing, the appellant admits to stabbing the deceased only once, while at the post-mortem two stab wounds were found on the body of the deceased. The trial magistrate held that the appellant was deliberately lying when he testified that he had stabbed only once.

Perhaps a somewhat more generous approach should be adopted in evaluating the evidence of the witnesses. It was at night, it was dark, they were intoxicated- Even a sober person who dispassionately observes the altercation would not be able to give an accurate, step by step description of the wrestling match. The appellant, moreover, was involved in that wrestling match, being hit with a bottle, being throttled, and at one stage of the wrestling having the deceased on top of him.
The appellant said in evidence that he does not know why the deceased was fighting with him, adding that he, the appellant:-

"Ek het seker te vinnig kwaad geraak".

Upon being asked what he thought when the deceased was throttling him, the appellant said:-

"Hy was besig om my seker dood te wil wurg, of so aan, want ek het mos gestoei om horn af te kry en ek kry horn nie van my af."
And then the question was asked:-
“So u het gedink hy gaan vir u doodmaak?" and he said:-
“Ja”

The following evidence on pages 72 to 73 of the record is important, and I quote from the record:-

" U se mos sy vrou was die een wat die aggressor was, nie die oorledene nie, sy wou met u baktef, sy wou u beseer net, hy net eintEik probeer om dit te stop, is dit reg so? — Ja, maar toe het hy ook maar baklei met my, hy het geslaan en toe sit hy bo op my, dis toe wat ek hom gesteek het. Ek het mos nie bedoel om hom te steek nie.

U het gesien dit is ook die gevolge van u steek die aand, die man is oorlede as gevolg van u stekery? — Dit is so, ja.
Maar u het mos geweet op daardie stadium dat u vir hom steek dat hy kan doodgaan.   U se dan nou vir die Hof u was so kwaad gewees want hulle is mos   nou   daar   weg   met   die   drank   sonder   u toestemmlng? — Dit is so, ja."

If I may interpose here, this is a typical example of a double-barrelled question which leaves an answer which is neither here nor there. It is also a feature of the cross-examination. The record continues:-

" So u het geweet, ek ste! dit aan u, u het dit geweet en u gaan nou die stone stop en u gaan hom nou wys, 'n les leer, en dit is hoekom u vir hom gesteek het, nie een keer nie, twee keer, so u het bedoe! om horn daar, om horn dood te maak?"

Again a question containing many elements.   The answer is:-

"Nee, ek weet net van een hou af wat ek horn gesteek het.
U kan nie vir die Hof verduidelik waar die ander hou vandaan kom nie?"

The answer:-

"Nee, ek kan nie die hou verduidelik nie, ek weet ek het horn net een hou in die bors..."

And then he is interrupted by the prosecutor and the question remains in the air and they don't return to it. This is also a most unsatisfactory aspect of the cross-examination.

“Op die keper beskou daar nie eintlik sprake van 'n noodweer situasie was nie."

And that the appellant in that passage conceded that "opset by moontiikheid bewussyn aanwesig was."

"The test to be applied when the limits of private defence are exceeded is now the same as the ordinary test for culpability for murder and culpable homicide."

"Was he guilty of culpable homicide? I think so. For although he acted in self-defence he ought reasonably to have realised that he was acting precipitately and using excessive force, and that by stabbing the deceased with such a lethal weapon on the upper part of his body he might unnecessarily kill him.''

The fact that in my view the conviction of murder should be altered to a conviction of culpable homicide should be reflected in the sentence that is imposed. The sentence in respect of the first count must be reduced to reflect the conviction on a lesser charge.

3.	
4.	

ERASMUS,J

I agree.