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[2014] ZASCA 52
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Mkhize v S (16/2013) [2014] ZASCA 52 (14 April 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 16/2013
In
the matter between:
SIXTUS
NHLANHLA
MKHIZE
............................................................................
APPELLANT
and
THE
STATE
….......................................................................................................
RESPONDENT
Neutral
citation:
Mkhize v S
(16/2013)
[2014] ZASCA 52
(14 April 2014)
Coram:
Maya, Shongwe, Willis and Saldulker JJA
and Mocumie AJA
Heard:
27 February 2014
Delivered:
14 April 2014
Summary:
Murder - test for putative private
defence restated– conviction on murder set aside and appellant
convicted of culpable homicide.
ORDER
On
appeal from:
Kwazulu-Natal High Court,
Pietermaritzburg (Swain and
Mnguni
JJ sitting as the court of appeal):
1
The appeal is upheld.
2
The order of the court a quo is set aside and replaced with the
following:
‘
(a)
The appellant is found guilty of culpable homicide.
(b)
The appellant is sentenced to five years’ imprisonment wholly
suspended for five years on condition that he is not convicted
of
culpable homicide or any competent verdict of culpable homicide, and
for which he is sentenced to a term of imprisonment without
the
option of a fine, committed during the period of suspension.
(c)
The sentence imposed is antedated to 19 January 2009.’
JUDGMENT
Mocumie
AJA (Maya, Shongwe, Willis and Saldulker JJA concurring):
[1]
This appeal arises from events which occurred in the early hours of
17 May 2003 during which the appellant shot and killed the
deceased,
Mr Denzil Edward Tatchell. Mr Dennis Erick Peter (Dennis), the
deceased’s uncle, was also shot and left severely
injured. The
appellant appeared in the regional court, Ixopo, on one count of
murder and one of attempted murder. At the end of
the trial the
regional magistrate, Mr Sihlahla, convicted him of murder and
discharged him in respect of attempted murder. He was
sentenced to
undergo 12 years’ imprisonment. On appeal to the KwaZulu-Natal
High Court, Pietermaritzburg (Swain and Mnguni
JJ) against his
conviction and sentence, the appeal was dismissed. This appeal is
with the leave of this court.
[2]
The main attack against the appeal was that the trial court erred in
convicting the appellant of murder as the State had failed
to prove
its case beyond reasonable doubt considering the material
inconsistencies and improbabilities in the evidence of the State
witnesses.
[3]
The State led evidence of, among others, Mrs Brenda Charlotte
Tatchell (Brenda), the deceased’s wife; Mrs Lorna Emelda
Peter
(Lorna), Dennis’ sister-law; Mr Lawrence Mboneni Zondi (Zondi);
Mr Sifiso Innocent Mbanjwa (Mbanjwa); Superintendent
Zibuse Leonard
Gwala (Gwala); and Mr Siphiwe Jeffrey Nene (Nene).
[4]
Brenda testified that she, the deceased, Dennis and Lorna arrived at
Off Saddle Action Bar in Ixopo between 1h00 1h30. They
had been at a
wedding in Ixopo earlier in the day and were on the way home in
Durban. They decided to buy alcohol at the bar, which
was still open.
There, they found Mr Mbanjwa (Mbanjwa), the bartender; Mr Camane, the
security guard on duty that night and the
appellant. They placed an
order, sat down and chatted with everybody, including the appellant.
For some inexplicable reason the
appellant started to assault Dennis.
The deceased intervened. Thereafter, he walked back to the bar
counter where he had left his
drink, lit a cigarette and smoked. At
that moment the appellant started to shoot at the deceased. The
deceased ran out of the bar
and fell outside. Peter was found
unconscious on the floor inside the bar and was rushed to the
hospital where he was admitted.
His injuries left him permanently
disabled.
[5]
Lorna did not say much except to confirm that there was a fracas that
ensued between the deceased, Dennis, the security guard
and the
appellant which nobody could stop. She went outside the bar and
waited next to the car. After some time Brenda came out
running out
of the bar to report that the deceased and Dennis had been shot by
the appellant. Lorna did not witness the shooting.
[6]
Mbanjwa testified that around 1h30 he informed the group that he was
closing up as it was late, and requested them to finish
drinking. The
deceased and his party refused to leave. A scuffle broke out between
Dennis and the security guard. Dennis manhandled
the security guard
and shunted him out of the bar, but the security guard re-entered the
bar. The deceased and Dennis started to
hit the security guard with
fists and kicked him. The appellant intervened by pulling the
security guard away. The two assailants
turned on the appellant and
assaulted him with fists and kicked him repeatedly until he fell to
the floor. Mbanjwa intervened.
The appellant then managed to rise to
his feet and retreated towards the pool table but was pursued by the
assailants. As he, Mbanjwa,
turned his back on them to get behind the
bar counter, he heard several gun shots. He turned only to see the
appellant shooting
at his assailants. The deceased was struck by the
bullets, stumbled out of the bar and fell outside the bar where he
was certified
dead by the paramedics some three hours later.
[7]
Gwala testified that he arrived at the scene of crime around 3h45 and
found the deceased still lying outside the bar wounded.
The deceased
was lying with his face to the ground and had a cigarette between his
fore finger and middle finger.
[8]
The appellant testified that the deceased and his group found him at
the bar. A scuffle erupted between Dennis and the security
guard on
duty. He intervened. The deceased and Dennis turned on him and
assaulted him severely. Whilst he was on the floor the
deceased
approached him, with his hand in his pocket, uttering the words ‘let
us kill this bastard’. As he got up from
the floor, with the
deceased more or less ten metres from him, he pulled out his firearm
and shot the deceased in quick succession
until the latter turned
around and fled out of the bar. As he was in a state of shock,
confusion and drunkenness he fled the scene.
Later, he handed himself
over to the police at the local police station. His version was
supported in all its material details
by Mbanjwa.
[9]
The defence also adduced evidence of an ex-police officer and a
ballistics expert, Mr Jacobus Steyl. Steyl testified that the
deceased was within very close proximity to the appellant when he
shot him. He based this on the gun powder residue found on the
deceased’s body. He testified further that, given the
circumstances the appellant could not have had time to reflect on his
actions once he started to shoot. According to Steyl, a Z88 9mm
Parabellum expels bullets in rapid succession. Once the trigger
is
pressed, the pistol will fire after which the recoil operation
automatically extracts, ejects and reloads the chamber until
all
rounds are fired.
[1]
Thus the
appellant could not have paused in between the shots to deliberately
and intentionally shoot the deceased.
[10]
Medical evidence led by the State established that the deceased
sustained three gunshot wounds (a) two perforating gunshot
wounds on
the chest, one which shows features of intermediate range, with
lacerations of the heart and both lungs, (b) a perforating
gunshot
wound of the left thigh; (c) generalised visceral pallor; and (d)
subendocardial haemorrhage in the heart. According to
the specialist
forensic pathologist, Dr Kirk, the special features of (i) the wound
on the left lateral aspect of the chest were
consistent with an entry
gunshot wound. The direction of the wound track which perforates the
chest, lacerating the lungs and heart,
is from left to right and
forwards; (ii) the wound on the left upper back were consistent with
entry gunshot wound of intermediate
range. The direction of the wound
track, which perforates the chest lacerating the lungs and heart, is
from left to right and forwards;
and (iii) the wound on the anterior
aspect of the proximal left thigh, 910 mm above the heel, the
features are consistent with
an entry gunshot wound. The direction of
the wound track, which perforates the left thigh lateral to the
femur, is backwards. Each
entry wound had features which are
consistent with exit gunshot wounds.
[11]
The trial court found that the appellant shot the deceased out of
revenge taking into account the gunshot wound on his back,
from which
it inferred that it struck the deceased after he turned his back to
flee. The court a quo found that the trial court
could not be faulted
on this finding.
[12]
Before us, it was contended that the regional magistrate and the
court a quo erred in (a) concluding that the only inference
it could
draw from the circumstances of the case was that the appellant
intentionally and unlawfully killed the deceased and (b)
rejecting
the appellant’s contention that the worst he could be guilty of
on the evidence is culpable homicide.
[13]
To secure a conviction, the State had to prove beyond a reasonable
doubt that the appellant unlawfully and intentionally killed
the
deceased. The State must show that he did not act in private defence
or in terms of a putative private defence. The distinction
between
the two defences has been accepted by our courts. In
S
v De Oliveira
[2]
this court said the following:
‘
The
test for private defence is objective - would a reasonable man in the
position of the accused have acted in the same way (
S
v Ntuli
1975 (1) SA 429
(A) at 436E).
In putative private defence it is not lawfulness that is in issue but
culpability (“skuld”). If an accused
honestly believes
his life or property to be in danger, but objectively viewed they are
not, the defensive steps he takes cannot
constitute private defence.
If in those circumstances he kills someone his conduct is unlawful.
His erroneous belief that his life
or property was in danger may well
(depending upon the precise circumstances) exclude
dolus
in which case liability for the person’s death based on
intention will also be excluded; at worst for him he can then be
convicted of culpable homicide.’
[14]
The approach to be adopted by a court of appeal when it deals with
the factual findings of a trial court is trite. A court
of appeal
will not disturb the factual findings of a trial court unless the
latter had committed a material misdirection. Where
there has been no
misdirection on fact by the trial Judge, the presumption is that his
conclusion is correct. The appeal court
will only reverse it where it
is convinced that it is wrong. In such a case, if the appeal court is
merely left in doubt as to
the correctness of the conclusion, then it
will uphold it.
[3]
This court in
S
v Naidoo & others
[4]
reiterated this principle as follows:
‘
In
the final analysis, a Court of appeal does not overturn a trial
Court’s findings of fact unless they are shown to be vitiated
by material misdirection or are shown by the record to be wrong.’
[15]
The test that applies, and what was required to be shown by the
appellant in order to avoid a conviction on culpable homicide
is that
a reasonable person in the same circumstances in which he found
himself would have believed that his life was in danger
and would
have acted as he did.
[5]
The
only issue was whether the State had proved beyond reasonable doubt
that the appellant did not, subjectively, entertain an
honest belief
that his life was in danger and thus not justified to act in putative
private defence.
[16]
Counsel for the appellant submitted that the appellant was confronted
by a set of circumstances which gave him reasonable grounds
for
believing that his life was in danger. Those circumstances were that:
(a) The deceased and Dennis were the aggressors and rowdy
from the
moment they came into the bar that night; (b) they assaulted the
security guard on duty and then turned their aggression
on him when
he tried to intervene in the fracas; (c) the deceased was approaching
him with his hand in his pocket uttering the
words ‘let us kill
the bastard’, which he genuinely believed the two would carry
out; (d) although he did not
know for a fact what the deceased
was armed with, the threat to his life had not ceased but was still
continuing; and (e) he was
under the influence of liquor and had
sustained a severe assault.
[17]
The trial court committed several material misdirections which, to my
mind, led to the wrong conclusion that the appellant
was guilty of
murder. These misdirections were, furthermore, completely overlooked
by the court a quo
.
Both
the trial court and the court a quo found Mbanjwa to be a neutral,
reliable witness. As stated above, his evidence was that
the assault
on the appellant did not stop; he merely freed himself from his
assailants. He stated further that the appellant
shot the
deceased at close range, within three to four metres, indicating that
the deceased was right in front of the appellant.
This was
corroborated by Steyl’s uncontradicted expert evidence that,
judging from the gun powder residue on the deceased’s
body; the
gunshots were at close range. This was supported by the doctor’s
findings in the post mortem report that the gunshots
were
intermediate. Both Steyl’s and the doctor’s findings
corroborated the appellant’s version that the deceased
was
within very close range to him as he turned his back to flee. This is
contrary to what both the trial court and the court a
quo found, that
the deceased was at the bar counter when he was shot.
[18]
The court a quo also inferred that the fact that the deceased still
had a cigarette between his fingers corroborated Brenda’s
evidence that the deceased was at the counter and had taken out a
cigarette to smoke when the appellant shot him. The issue of
the
cigarette is an unresolved mystery in this case. In my view, however,
the accepted evidence and the probabilities do not support
the court
a quo’s inference. One simply cannot be sure how it came to be
where it was found, hours after the deceased’s
death. And even
if one accepts that it was in the hand of the deceased at the time
that the deceased was killed, this does not
justify the conclusion
that the appellant was guilty of murder.
[19]
A further aspect that remains for determination is whether,
despite the appellant’s subjective belief that if he
did not
react as he did he would have been killed, it was necessary for him
to shoot the deceased three times. The first shot would,
in all
probability, have had the desired effect to ward off the unlawful
attack on him. In my view, the appellant, especially as
a long
serving police officer with considerable experience in handling
firearms, ought to reasonably have realised that he was
using
excessive force beyond the legitimate bounds of private defence. In
the circumstances, he should have been convicted of culpable
homicide. Counsel for the State fairly and correctly conceded that
the evidence viewed in its totality, failed to establish that
the
appellant had the requisite intention to kill the deceased. The
appeal against the conviction ought, for the aforesaid reasons,
to
succeed.
[20]
The alteration of the conviction from murder to culpable homicide
places this court at large to consider sentencing afresh.
The
appellant was a first offender;
[6]
he is a widower with young children
[7]
and is the sole breadwinner of his extended family, being his
unemployed mother and sister; and he was in a stable employment as
is
evidenced by his employment record and his superior’s report to
the social worker that he was dedicated and committed
to his work.
[8]
When this incident occurred, the appellant was inebriated and had
been subjected to a severe assault, which included being kicked
in
the head and left him incapacitated for three weeks. In addition,
this incident has had a devastating effect on his personal
life since
he lost his employment.
[9]
The
deceased and his uncle were the authors of the tragic incident. Over
and above the seriousness of the offence, the appellant’s
blameworthiness in the circumstances must also be taken into
account.
[10]
[21]
In my view, correctional supervision, which was recommended by the
probation officer, although appropriate even in cases of
murder
[11]
in the right circumstances, would not be appropriate in this case.
The incident occurred some ten years ago. Thus, its rehabilitative
element of punishment is no longer relevant and would not serve any
purpose. A sentence based on principles of restorative justice,
supported by Brenda who asked the court to consider compensation for
the death of her husband, was also suggested. But much as
it has been
lauded and accepted in South Africa, albeit at a slow pace, to
consider it under the circumstances of this case, where
a life has
been lost, in a country where the level of violence is so high would
send the wrong message to society.
[12]
Furthermore, it would be hollow as the appellant
is
unemployed.
[22]
Taking into account all the mitigating factors enumerated above, a
term of imprisonment, wholly suspended on appropriate conditions
will
adequately serve the interests of justice. It will serve as a
deterrent on the appellant and hang over him like a sword of
Damocles.
[13]
[23]
In the result the following order is granted:
1
The appeal is upheld.
2
The order of the court a quo is aside and replaced with the
following:
‘
(a)
The appellant is found guilty of culpable homicide.
(b)
The appellant is sentenced to five years’ imprisonment wholly
suspended for five years on condition that he is not convicted
of
culpable homicide or any competent verdict of culpable homicide, and
for which he is sentenced to a term of imprisonment without
the
option of a fine, committed during the period of suspension.
(c)
The sentence imposed is antedated to 19 January 2009.’
B
C MOCUMIE
ACTING
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:
J E Howse
Instructed by:
Mbele, Dube &
Partners, UMzimkhulu
Mthembu & Van
Vuuren, Bloemfontein
For
Respondent:
Ms Dyasi
Instructed by:
The Director of
Public Prosecutions,
Pietermaritzburg
Deputy Director of
Public Prosecutions,
Bloemfontein
[1]
Report
by J Steyl, exhibit ‘H’, record
at
533.
[2]
S
v De Oliveira
1993
(2) SACR 59
(A) at 63I-64A. See also S
v
Joshua
2003 (1) SACR 1
(SCA) para 29;
S
v Pakane & others
2008 (1) SACR 518
(SCA) para 19.
[3]
R
v Dhlumayo
and
another
1948
(2) SA 677
(A) at 689-690.
[4]
S
v Naidoo & others
2003
(1) SACR 347
;
[2002] 4 All SA 710
(SCA) para 26. See also
S
v Makgatho
2013 (2) SACR 13
(SCA) para 17.
[5]
See
Coetzee
v Fourie & another
2005 (1) SACR 382
(SCA) para 7.
[6]
See
S
v Humphreys
2013 (2) SACR 1
(SCA) para 25.
[7]
S
v Shackell
2001 (2) SACR 185
(SCA) para 32;
S
v Humphreys
above para 25.
[8]
S
v Shackell
above para 32.
[9]
See
S
v Dougherty
2003 (4) SA 229
(W) para 42.
[10]
SS
Terblanche
The
Guide to Sentencing in South Africa
2
ed (2007
)
at 150
,
writes that: ‘The modern view of the seriousness of crime
generally also refers to the blameworthiness of the offender
. . .
[T]he seriousness of the offence is affected by the extent to which
the offender can be blamed or held accountable for
the harm caused
or risked by the [offence] . . . .’
[11]
See section 276(1)(
h
)
of the
Criminal Procedure Act 51 of 1977
, as explained in Du Toit et
al
Commentary
on the
Criminal Procedure Act
(2013
)
from 28-9
.
See
also
S
v R
1993 (1) SACR 209 (A).
[12]
See
S
v Maluleke
2008 (1) SACR 567
(SCA). Compare with
Director
of Public Prosecutions, North Gauteng v Thabethe
2011
(2) SACR 567 (SCA).
[13]
See
Persadh
v R
1944 NPD 357
at 358;
S
v Scheepers
2006 (1) SACR 72
(SCA) para 11.