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[2013] ZASCA 41
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Mnisi v S (531/2012) [2013] ZASCA 41 (28 March 2013)
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 531/2012
Not Reportable
In the matter between:
ALFRED MBALAKWA MNISI
........................................................................
APPELLANT
and
THE STATE
.................................................................................................
RESPONDENT
Neutral citation:
Alfred Mnisi v The State
(531/12)
[2012] ZASCA 41
(28 March 2013).
Coram:
Mpati P, Tshiqi,
Pillay JJA et Southwood, Mbha AJJA
Heard:
5 March 2013
Delivered:
28 March 2013
Summary: Criminal law – murder - appeal on fact
– defence of self-defence rejected.
ORDER
On appeal from:
Transvaal Provincial Division
(now North Gauteng High Court, per Du Plessis J and Hassim AJ sitting
as court of appeal):
The appeal dismissed.
JUDGMENT
MBHA AJA (MPATI P, TSHIQI, PILLAY JJA ET SOUTHWOOD
AJA CONCURRING)
[1] On 5 March 2002, the appellant was convicted by the
regional court, Benoni (the trial court) on a charge of murder and
sentenced
to imprisonment for a term of 15 years. His appeal to the
Transvaal Provincial Division (now North Gauteng High Court, per Du
Plessis
J and Hassim AJ) against both the conviction and sentence,
was dismissed. This appeal, with the leave of that court, is against
both the conviction and sentence.
[2] The charge sheet alleged that on or about 21 January
2001 and at Daveyton, the appellant wrongfully and intentionally
killed
Daniel Mwale (the deceased), by shooting him with a firearm.
[3] It is common cause that the incident happened at a
taxi rank in Daveyton, where the appellant fired one fatal shot at
the deceased.
The issue for determination by the trial court, and
which is the subject of this appeal, was whether or not the appellant
acted
in self-defence when he shot and killed the deceased. It thus
became important to determine whether or not the deceased had himself
drawn a firearm with which he threatened to shoot the appellant, as
the appellant alleges.
[4] The circumstances surrounding the shooting of the
deceased can be gleaned from the evidence of the two state witnesses,
Wandi
Floyd Masuku (Masuku), who testified as an eyewitness to the
shooting, and Richard Masombuka (Masombuka), who corroborated
Masuku’s
evidence insofar as it related to the events
immediately prior to and after the shooting. Masombuka did not
witness the actual
shooting of the deceased. It also bears mention
that the recordings of an inspection in loco by the trial court,
which depict the
scene at the taxi rank where the shooting occurred,
and inter alia, where Masuku had stood and observed the shooting, the
position
of the deceased’s combi and where the deceased was
shot and where he fell after the shooting, were admitted into
evidence.
[5] Masuku testified that shortly before the shooting
both the deceased and the appellant were inside the deceased’s
stationary
combi which was parked at an Engen Garage at the taxi
rank. The brakes of the taxi were being repaired. After the repairs
had been
effected, the deceased drove the taxi to a washing bay to
have it washed. The deceased alighted from the driver’s door
and
proceeded to the back of the combi, whilst carrying wheelcaps.
After he had opened the boot and put in the wheelcaps, the appellant
got out of the deceased’s taxi using its sliding door on the
left. The appellant approached the deceased and when he was
approximately three metres from him, he produced a pistol from his
waist, pointed it at the deceased who was now facing him, and
shot
him. The deceased fell at the spot where he was shot behind his taxi.
A crowd, obviously attracted by the sound of gunfire,
came and chased
after the appellant, who fired a further shot as he ran away. Masuku,
who witnessed the shooting incident from
a distance of approximately
30 metres, disputed a proposition put to him in cross-examination
that the deceased had produced a
firearm which he pointed at the
appellant shortly before the latter produced his and shot the
deceased. Masuku thus disputed the
further proposition that in
shooting the deceased the appellant was acting in self-defence. He
said that from where he stood, he
had a clear, unobstructed view of
the shooting. Furthermore, his attention at the time was focused on
the deceased’s taxi
as he was supposed to drive and operate it
on behalf of the deceased after it had been washed. He was adamant
that as he was a
close friend of the deceased they would meet
regularly, and he therefore well knew that the deceased had never
owned any firearm.
[6] Masombuka, who did odd jobs washing cars at the taxi
rank, confirmed that shortly before the shooting the deceased arrived
at
the washing bay driving his combi and asked him to wash it. The
appellant was a passenger in the deceased’s taxi at the time.
Masombuka saw the deceased alight and proceed to the boot of the
combi at the back, where he put in some wheelcaps that he was
carrying. He also observed the appellant getting out of the taxi and
follow the deceased to the back. Masombuka testified that
he took a
bucket to go and fetch water approximately 100 metres away. As he was
walking back to the deceased’s taxi, he suddenly
heard a
gunshot. When he got to the combi he saw the deceased lying on the
ground behind his vehicle and realised that he had been
shot. He
never saw the actual shooting of the deceased. He was adamant that
there was no firearm lying near the body of the deceased.
Immediately
after the shooting he saw the appellant run away from the scene
whilst being chased by a crowd of people consisting
mainly of other
taxi drivers and owners.
[7] The appellant’s version was, briefly, that on
21 January 2001 he went to meet with the deceased at the taxi rank.
There
was a problem between them relating to a sum of money the
deceased allegedly owed to him. The deceased had not, according to
him,
accounted to him for, or rendered takings from, the usage of the
taxi concerned over the past four weeks. He said whilst they were
inside the deceased’s combi discussing the problem, an argument
ensued and the deceased swore at him, threatening to kill
him.
Immediately thereafter, the deceased alighted and went to the back of
the combi. He also alighted and followed the deceased
to the back of
the combi. When he got to the deceased, the latter produced a gun
from his waist and pointed it at him. However,
he was quicker and
managed to pull out his gun and shoot the deceased. He said other
taxi drivers came to the scene and fired shots
at him. An unknown
male, whom he had seen walking slowly up behind the deceased with a
firearm in his hand, also fired shots at
him.
[8] The trial court, in a detailed analysis of the
evidence, found that Masuku, though a single witness regarding the
shooting incident,
was a credible and trustworthy witness whose
testimony could be relied upon. It rejected the accused’s
version that the deceased
had produced a firearm and threatened to
shoot him as being untrue and found that the appellant’s
explanation that he acted
in self defence when he shot the deceased,
was not reasonably possibly true. The trial court accepted Masuku’s
evidence that
the deceased did not produce any gun on the scene as
alleged by the appellant.
[9] In this court Masuku was criticized by counsel for
the appellant for being biased against the appellant because of his
close
friendship with the deceased; that they had grown up together;
that he was aggrieved by the deceased’s death and that all
he
wished for was to see the appellant behind bars. In my view this
criticism is unjustified. It is so that Masuku was adamant
that he
wanted the appellant to be punished for the wrong he had committed,
but the fact that he might have been biased against
the appellant is
not the sole criterion for rejecting his evidence. In
S
v Webber
1
,
this court, in laying down the correct approach when
assessing the evidence of a single witness, stated that the evidence
of a single
witness ought not necessarily to be regarded as not being
credible merely because he ‘has an interest or bias adverse to
the accused’, and that it is necessary to assess the intensity
of the bias and to determine the importance thereof in the
light of
the evidence as a whole.
[10] The appellant on the other hand contradicted
himself and gave different versions on the important aspect about
when exactly
did the deceased produce his firearm. At first he said
the deceased already had his firearm in his hand when he got outside
the
taxi. He later changed this, saying the deceased only produced
his firearm when he was at the back of the taxi. Upon being asked
to
explain this contradiction, he tried to wriggle his way out of the
conundrum by stating that he meant to say the deceased had
his
firearm in his waist when he alighted from the taxi. The appellant
could not furnish any reasons as to why he followed the
deceased to
the back of the combi after the deceased had allegedly threatened to
kill him whilst they were still inside the combi.
It needs to be
mentioned, in any case, that the allegation that the deceased
threatened the appellant with death whilst they were
inside the combi
was never put to Masuku during cross-examination. Nor was it even put
to Masuku, who appeared to have been at
a good vantage point, that,
either immediately before, or after the shooting an unknown person,
armed with a gun, was walking slowly
up behind the deceased and
allegedly fired at the appellant from a distance of two to three
meters.
[11] It is trite that an appeal court can only interfere
with the factual findings of a trial court where it finds that the
trial
court misdirected itself on questions of facts. In
R
v Dhlumayo
2
the court had occasion to set guidelines for an appeal
court when it is considering an appeal on the facts. Davis AJA quoted
with
approval the statement of Lord Buckmaster in
Clarke
v Edinburgh & District Tramways Company
(1919
S.C. (H.L.), 35) that ‘[c]ourts of appeal should not seek
anxiously to discover reasons adverse to the conclusions of
the
learned Judge who has seen and heard the witnesses and determined the
case on the comparison of their evidence’.
3
Davis AJA thus held that where there has been no
misdirection on fact by the trial judge, the presumption is that his
conclusion
is correct and the appellate court will only reverse it
where it is convinced that it is wrong.
4
[12] I am unable to fault the trial court’s
finding and conclusion. Masuku’s honesty and openness with the
court cannot
be questioned. It is noteworthy that he was even
prepared to freely disclose certain unlawful conduct in which his
friend, the
deceased, was involved pertaining to his combi. He said
that the deceased had illegally utilized documents of a stolen car in
order
to register his own vehicle. The deceased had also been
arrested for being in illegal possession of the combi and bribed
traffic
officers in order to secure his release. Masuku also freely
disclosed that he worked as a taxi driver even though he was not in
possession of a public driver’s permit, which was a
requirement, but which he could not procure because he had a previous
criminal record for rape.
[13] The evidence of Masuku, considered together with
the evidence pertaining to the inspection in loco, which was not
disputed,
the other documentary evidence in the form of a photo album
which was admitted as evidence, depicting the scene of the crime,
leaves
one in no doubt that from where Masuku stood he had an
unobstructed view of the spot where the deceased was shot. He did not
contradict
himself in any material respect. In my view, the trial
court correctly accepted his evidence as both truthful and reliable.
It
follows that the appellant’s version that the deceased had
produced a firearm which he pointed at him cannot reasonably possibly
be true. It is in fact false beyond reasonable doubt. His defence of
self-defence must accordingly be rejected. Accordingly the
appeal
against conviction must fail.
[14] With regard to sentence, the appellant’s
counsel did not pursue the point raised in his heads of argument,
namely that
the trial court should have found that there were
substantial and compelling circumstances in the appellant’s
case justifying
a departure from the prescribed minimum sentence of
15 years’ imprisonment. Instead, a completely new ground of
appeal against
sentence was raised during argument, which was not
even contained in the heads, namely that the trial court never warned
the appellant
adequately, or at all, that he was liable upon
conviction to be sentenced in terms of the Criminal Law Amendment Act
105 of 1997
(the Act).
[15] It is so that the charge of murder for which the
appellant was convicted falls within the purview of s 52(2), read
with part
II of Schedule 2 of the Act, which prescribes a minimum
sentence of 15 years’ imprisonment for a first offender, unless
there
were substantial and compelling circumstances justifying the
imposition of a lesser sentence. I accept that no reference was made
to the Act either in the charge sheet or at the commencement of the
trial. This fact does not, however, on its own, render the
trial or
the sentencing part thereof at least, unfair. This court has on
various occasions held that although it was desirable
for a charge to
contain a reference to a penalty, this was not essential and that the
ultimate test was whether or not the accused
had had a fair trial.
Thus in
S v Legoa
5
Cameron JA said this of necessity entails a fact-based
enquiry into the entire proceedings of the trial. Mpati JA, in
S
v Ndlovu
,
6
endorsed this approach, saying:
‘
The enquiry, therefore,
is whether, on a vigilant examination of the relevant circumstances,
it can be said that an accused had
had a fair trial. And I think it
is implicit in these observations that where the State intends to
rely upon the sentencing regime
created by the Act a fair trial will
generally demand that its intention pertinently be brought to the
attention of the accused
at the outset of the trial, if not in the
charge-sheet then in some other form, so that the accused is placed
in a position to
appreciate properly in good time the charge that he
faces as well as its possible consequences.’
[16] There is no complaint that the appellant was in any
way prejudiced by the omission to refer to the sentencing regime
created
by the Act. On the contrary, appellant’s counsel, in
his address in mitigation to the trial court, confirmed in no
uncertain
terms that the Act was in fact applicable to the case. In
any event and even if one were to hold that the Act was not
applicable,
the sentence imposed on the appellant of 15 years’
imprisonment was within the ordinary jurisdiction of the trial court
and
is not, in my view, shockingly inappropriate in light of the
relevant facts and circumstances of this case.
[17] The trial court took into consideration the fact
that the appellant shot and killed the deceased in cold blood over a
dispute
involving money that the deceased allegedly owed to the
appellant. This is a serious offence but the trial court correctly
balanced
this against the personal circumstances of the appellant,
namely that he was 35 years old, married with five dependants, that
he
was gainfully employed and thus economically active, and that he
was a first offender.
[18] This court confirmed in
Malgas
v S
7
that an appeal court cannot, in the absence of a
material misdirection by the trial court, approach the question of
sentence as
if it were the trial court and then substitute the
sentence arrived at simply because it prefers to do so. To do so, so
the court
held, would be to usurp the sentencing discretion of the
trial court.
[19] In my view, it has not been demonstrated that the
trial court misdirected itself when it considered and imposed the
sentence
of 15 years’ imprisonment on the appellant. In the
circumstances the appeal against sentence likewise falls to be
dismissed.
[20] I accordingly make the following order:
The appeal is dismissed.
B H MBHA
ACTING JUDGE OF APPEAL
APEARANCES:
FOR APPELLANT: M VAN WYNGAARD
Instructed by:
A S Steijn Attorneys, Johannesburg;
Honey Attorneys, Bloemfontein
FOR RESPONDENT: J J JACOBS
Instructed by:
The National Director of Public Prosecutions, Pretoria
The National Director of Public Prosecutions,
Bloemfontein
1
1971
(3) SA 754(A)
2
R
v Dhlumayo
1948 (2) SA 677
(A).
3
At
702.
4
At
706
5
S
v Legoa
2003 (1) SACR 13
(SCA).
6
S
v Ndlovu
2003 (1) SACR 331
(SCA) para 12.
7
Malgas
v S
[
2001] 3 All SA 220
(A) para 12.