{tc \l1 "NOT REPORTABLE}
{tc \l1 "}
REPUBLIC OF SOUTH AFRICA
{tc \l1 "REPUBLIC OF SOUTH AFRICA}
REPORTABLE
{tc \l1 "}                                                                          CASE NO: 203/2000
IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
{tc \l3 "IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA}
In the matter between:
J P FOURIE                                                                    APPELLANT
and
THE STATE                                                                  RESPONDENT
{tc \l1 "}CORAM:
HARMS, SCOTT and MTHIYANE JJA
DATE OF HEARING:
22 MAY 2001
DELIVERY DATE:
1 JUNE 2001
Summary:
Petition - whether scope of appeal can be extended to deal with matters finally determined on petition i t o
s 316(a) of Act 51 of 1977
JUDGMENT
. . . MTHIYANE JA
MTHIYANE JA:
[1] The appellant was arraigned before the Witwatersrand Local Division (Nugent J sitting
with one assessor) on charges of kidnapping, rape and murder.  He was found guilty of kidnapping

and attempted rape and of culpable homicide and sentenced to 12 years' imprisonment for the first
two (they were taken as one for the purposes of sentence) and 16 years for culpable homicide.
The sentences were ordered to run concurrently.  Leave was given to appeal against the
conviction of culpable homicide on a limited basis, and against the sentences in respect of all the
charges.  The appellant however was refused leave to appeal against his conviction for kidnapping
and attempted rape.  A subsequent petition for leave to appeal against his convictions for
kidnapping and attempted rape was dismissed by this Court.  He did not petition for leave in relation
to the culpable homicide conviction on a wider basis as that granted by Nugent J.
[2] The events which gave rise to the appellant's convictions occurred on 6 October 1997 in
an office building in Bedfordview.  The deceased was a married woman, aged 26 years and
employed on the first floor of the building.  The appellant worked in the same building.
[3] The evidence was that the deceased arrived at the building at about 7:42am.   Some two
hours or so later her brutally battered body was found in a cubicle on the second floor of the
building, lying face down in a patch of blood on the concrete floor.   She was dressed in a short
black skirt but was stripped from the waist up.  Her brassiére had been ripped apart and her panties
were torn.   Her white T-shirt type blouse was lying crumpled near her right shoulder.  A strip of
felt material was wound loosely around her neck and shoulders while the rest was draped across

her back and trailed onto the floor.  She had a shoe on her right foot and the other shoe was lying
in the corner.
[4] An examination revealed a number of injuries to her head and body indicative of an
attempted rape.  The cause of her death was attributed to either a broken neck, suffocation or head
injuries.
[5] There is no evidence as to when and how the deceased left her office on the first floor and
ended up on the second floor.  A Mrs Malherbe who worked for an attorney on the same floor as
the deceased, testified that she found the door to the deceased's office wide open.  Her handbag,
keys, cell phone, lunch box, cheque book and other personal belongings were on her desk and the
radio was on.  This struck Mrs Malherbe as unusual and caused her some concern because the
deceased was not the type who would  leave her personal belongings lying about.
[6] The case against the appellant was that shortly after the deceased arrived at work, he
abducted her from the first floor and took her to the second floor.  Along the wall of the passage
on the first floor some black marks were found, which the State alleged to be shoe marks.  One
of her earrings was found on the landing.  There were no eyewitnesses to the commission of the
offences and the case against the appellant rested to an extent on circumstantial evidence.

[7] The appellant's version was that he had on the previous Friday arranged to meet the
deceased on the second floor on the Monday.  She had been his casual lover for three months prior
to her death.  When he reached the second floor the deceased was waiting for him in a room next
to the cubicle where her body had been found.  They kissed.  He suddenly told her that their love
relationship should come to an end.  The deceased was upset, became violent and started to attack
him.  He then pushed her away, causing her to stagger backwards (for over 2 to 3 metres) and hit
the back of her head against the wall.  As a consequence she fell and lost consciousness.  He
approached her, shook her by the shoulders and when he got no response, and believing her to be
unconscious but alive, he panicked, ran out of the room onto the balcony, dropped onto the ground
and fled the scene.   He denied having caused her injuries or having attempted to rape her and
furthermore denied that he had met her in or thrown her body into the cubicle.
[8] He raised the possibility that after he had fled from the scene another unknown person may
have stumbled upon her, attacked her and attempted to rape her and then dumped her body in the
cubicle.  For this supposition much was made of a semen stain found on the deceased's blouse.
It was common cause that the DNA tests performed on the stain established that it was not from
the appellant or the deceased's husband or, for that matter, another suspect.  The stain was visible

but its age could not be established. The argument was therefore that the stain did not exclude the
possibility that its depositor was the person who had attempted to rape her and who killed her.
[9] Nugent J, in a detailed judgment, rejected the evidence of the appellant.  He relied on a
number of incontrovertible objective facts for his conclusion concerning his guilt: a blood stain
emanating from the deceased was found on one of the appellant's shoes, a bite and a number of
scratch marks found on the accused, his admission that he had “killed” her shortly after the event
without any excuse or explanation tendered , and the clear indications that she was forcibly
removed from her office (the earring lost along the way and the marks against the wall seen with
the fact that the bite mark on the appellant suggests that she was at that stage over his shoulder.
[10] The presence of the semen stain did not cause Nugent J that much of a  problem.  The
aforementioned facts, he held, are conclusive of the appellant's involvement in the attack.  The
semen stain does not exclude the appellant from the scene.  It does no more than to exclude him
from having deposited it.  It is highly improbable that another person may have stumbled upon the
deceased as suggested.  However, the stain may be consistent with the presence of an accomplice
in the attack.  The possibility that an accomplice was involved does not affect the appellant's guilt
which would then be based upon a common purpose.

[11] As alluded to, the appellant was granted leave to appeal against the conviction for culpable
homicide on a limited basis.  In granting leave, Nugent J had regard to the fact that the cause of
death may have been either the broken neck, a throttling or the head injuries.  He said there was
a reasonable prospect that another court might find (assuming that there was an accomplice) that
the evidence was not sufficient to justify the inference that the act which caused the death of the
deceased must necessarily have fallen within the terms of the common purpose.
[12] As to the kidnapping and attempted rape charges, one would have thought that with the
petition for leave to appeal against the conviction on the kidnapping and attempted rape charges
having failed, this appeal would now focus only on the appeal against the conviction for culpable
homicide and against sentence.  Not so, contended counsel for the appellant.  Relying on Ngqumba
& 'n Ander v Staatspresident en Andere 1988(4) SA 224 (A), he submitted that the appeal should
be dealt with on a wider basis and urged us to extend its scope so as to allow the appellant to
attack, not only the conviction of culpable homicide, but also the convictions on the kidnapping and
attempted rape charges.  It was submitted that if the scope of the appeal is not extended an
injustice might occur.  Counsel reminded us of this Court's "inherent reservoir of power" to regulate
procedure in the interests of the proper administration of justice.  See S v Malinde and Others

1990(1) SA 57 (A) at 67 B; Sefatsa and Others v Attorney-General, Transvaal and Another
1989(1) SA 821 (A) at 834 E.
[13] The power to regulate its procedure does not include the power to hear a matter which is
not the proper subject of an appeal.  This is simply because this Court's appellate jurisdiction is not
an inherent jurisdiction (S v Mamkeli 1992 (2) SACR 5 (A)).  Section 168 of the Constitution did
not change the position.  Ngqumba is authority for the proposition that even in a criminal case the
leave to appeal may be limited to one or more grounds in the case and if the trial court did so, this
Court has the power to extend the scope of the appeal to cover other grounds.  But, as was pointed
out in Mamkeli at 7f-i:
“An appeal under s 316 [of the Criminal Procedure Act] could, depending on the extent of the leave
granted, be against the conviction or against the sentence (or both) or any order following thereon.
Where leave had been granted to appeal against sentence only, the Court was not competent to
consider the merits of the conviction (S v Matshoba and Another 1977 (2) SA 671 (A) at 677G-H;
S v Cassidy 1978 (1) SA 687 (A);  S  v Langa en Andere 1981 (3) SA 186 (A) at 189H). Where it
emerged in such a case that there were reasonable prospects of a successful appeal against the
conviction, the only available remedy was to postpone the appeal against sentence with a view to
affording the appellant an opportunity to bring an application for leave to appeal against his conviction

as well. (Compare Matshoba's case at 678H.) Naturally, had an application to do so already been
refused by the trial Judge and by the Chief Justice, this course was no longer available.”
The consequence of the refusal of a petition is that the decision taken, becomes final.  Sections
316(9)(a) of the Criminal Procedure Act 51 of 1977 reads:
"The decision of the Appellate Division or of the Judges thereof considering the petition, as
the case may be, to grant or refuse any application, shall be final."
[Emphasis added.]
It therefore follows that the conviction of the appellant on the kidnapping and attempted rape
charges was finally decided when the petition for leave to appeal was refused.  I may, however,
add that having studied the whole record and counsel having been given full opportunity to argue
the case on the merits, I am satisfied that no injustice has occurred in this case.
[14] On the basis of  Ngqumba is it however possible to reconsider the scope of the appeal
relating to culpable homicide, and to permit the appellant to argue other issues in this regard.   But
the facts of the present case do not permit us to do so because this could lead to inconsistent
conclusions in one and the same case.  To illustrate the point.  The conviction on the charges of
kidnapping and attempted rape were predicated on the finding by the trial court (and this Court
when considering the petition) that the appellant was involved in those crimes.  These findings
place him on the scene, attacking the deceased.   If the scope of the appeal is widened in the

manner sought by the appellant, it would mean that the matter will have to be approached on the
basis that the appellant may not have been present at all, thus creating the potential of findings
inconsistent with the final and binding rulings.   That approach would fly in the face of the
elementary principles of res judicata.  A court cannot make conflicting findings in the same
proceedings. There is only one possibility: the appellant was either involved or he was not involved.
[15] It follows that the appeal can only be dealt with on the limited ground on which leave was
granted, namely whether, on the assumption that there may have been an accomplice, an inference
can be drawn that the act which caused the death of the deceased fell within the common purpose
between the appellant and the accomplice.
[16] Accepting Nugent J's finding that there was no latecomer (as I am bound to do), I have
some difficulty with accepting the possibility of the appellant having had an accomplice.  His own
version excludes the possibility of there being any other person who participated in the assault, the
attempted rape and the killing of the deceased.  Only one person jumped from the balcony.  But
even if there were an accomplice, I do not believe that there is merit in the argument that the
whichever act  caused the death, it was not within the contemplation of the appellant.  The very
nature of the sexual attack proves the opposite.  Had there been a concerted attack in order to
rape, it would merely aggravate the position of the appellant.  The deceased was slightly built.  The

appellant was described as a 1.93 metre tall man weighing 97 kilograms.  The trial judge noted that,
when standing alongside the appellant, the top of the deceased's head would have reached no
higher than his armpit.  The scratch marks and the other injuries on the appellant and deceased's
blood on his shoe confirm that she tried to defend herself.  The appellant was unable to offer a
satisfactory explanation for these scratch marks and in particular the fresh scratch mark in the
pubic area.  He was unable to explain satisfactorily how he got the blood on his shoe, why he fled
the scene, why he had to jump over the balcony, and why he admitted without qualification that he
had killed the deceased.
[17] Having regard to all these factors I am satisfied that the appellant's guilt on the charge of
culpable homicide was proved beyond a reasonable doubt and that he was correctly convicted.
[18] It remains to consider the question of sentence.  Counsel for the appellant submitted that the
sentence of 16 years' imprisonment for culpable homicide was harsh in the extreme and does not
fall within the accepted range of sentences for this type of crime.  Counsel for the State did not
disagree but contended that the 16 year sentence was justified in the circumstances.   It was not
submitted that the sentence for the other crimes was out of order.

[19] Although Nugent J did not misdirect himself on the facts, I am satisfied that the sixteen
years for the culpable homicide, taken in isolation, cannot be justified.  We are therefore at large
to interfere and to impose what we consider to be the appropriate sentence.
[20] In considering the question of sentence afresh I bear in mind that the crimes for which the
appellant was convicted were committed at the same time and place, and in a single, unbroken
sequence.  In those circumstances I am of the view that justice demands that the incident be
viewed as one whole and, in order to avoid any duplication and any resultant undue harshness, that
a composite sentence be imposed (cf S v Young 1977 (1) SA 602 (A) 610 G).  This will mean that
the appeal against the twelve years' imprisonment must also succeed, albeit on pragmatic grounds.
[21] It cannot be overlooked that the appellant committed a savage attack on a defenceless
woman.  Society and women, in particular, need to be protected from people of the appellant's ilk.
This Court will be failing in its duty if the appellant were not removed from society for a long time.
Taking all the relevant factors into account, a composite sentence of 15 years' imprisonment on
all the charges would be appropriate.  It will suffice, I believe, to bring home to the appellant and
to anyone who may be tempted to follow his example the seriousness of the matter.
In the result the following order is made:
1.
The appeal against the conviction of culpable homicide is dismissed.

2.
The appeal against the sentences imposed in respect of attempted rape, kidnapping
and culpable homicide, succeeds.
3.
The sentences imposed in respect of kidnapping,  attempted rape and culpable
homicide are set aside.  A sentence of 15 years' imprisonment is imposed.
_______________
K K MTHIYANE
JUDGE OF APPEAL

HARMS JA)Concur
SCOTT JA
)