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[2011] ZAGPPHC 135
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Khubeka v S (A615/2010) [2011] ZAGPPHC 135 (29 July 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO: A615/2010
DATE:29/07/2011
In
the matter between:
MICHEAL
MTHOKOZISI
KHUBEKA
......................................................................
APPELLANT
And
THE
STATE
.........................................................................................................
RESPONDENT
MAVUNDLA
J;
[1]
The appellant, an adult male aged 27 years old, was on the October
2009 convicted at the Standerton Regional Court on one count
of
murder and was sentenced to 7 years imprisonment. Leave to appeal
against conviction and sentence was granted on petition.
[2]
The appellant was charged with murder, in that on or about 25
November 2005 at or near Sakhile in the regional district of
Mpumalanga, he unlawfully and intentionally killed Sibusiso Innocent
Khanyite by shooting him.
[3]
The appellant was duly legally represented through out the trial. He
pleaded not guilty. His defence was that he acted in self
-defence.
It was further admitted that the cause of death was a gun shot wound
in the stomach and that the deceased did not sustain
any other injury
from the scene of crime.
[4]
It is trite that the State bears the onus to prove the guilt of the
appellant beyond reasonable doubt. It is equally trite that
the
appellant bears no onus to prove his innocence. On the contrary, if
his version is reasonably possibly true, then he is entitled
to an
acquittal.
[5]
The only issue to be decided in casu, is whether the appellant acted
in self-defence when he shot and killed the deceased.
The
defence of the appellant needs to be considered in the background of
what was said by Holmes AJA in the matter of R vPatel
1
:
"The
general principles mentioned by Watermeyer C.J- in R. v. Attwood,
1946 AD. 331
t p. 340, are that an accused is entitled to an
acquittal on the ground that he was acting in self-defence if it
appears as a reasonable
possibility on the evidence—
"(a)
that he had been unlawfully attacked and a reasonable ground for
thinking that he was in danger of death or serious injury.
(Though
there may be cases of lawful self-defence where the accused was
originally the aggressor R.v. Ndara,
1955 (4) S.A. 182
(A.D.)at
184E.);
(B)
that the means of self-dence which he used were not excessive in
relation
to the danger;
(C)
that the means he used were the only or a least dangerous
means
whereby he could have avoided the danger."
In
considering these, the Court must be aware of being an arm-chair
critic, and must take into account the exigencies of the occasion.
Thus in Union Government (Minister of Railways & Harbours) v.
Buur,
1914 A.D. 273
at p. 286, Innes J.A. (as he then was) said
"
Men faced in moments of crisis with whole alternatives are not to be
judged as if they had had both tie and opportunity to
weigh the pro.
and cons. Allowance must be made for the circumstances, but it is
none the less applicable in cases such as the
present one."
In
the same line of thought Van Den Heever, J.A., in R. v. Zikalala
2
,
approved the following passage from Gardiner and Lansdown's Criminal
Law and Procedure:
"
Where a man can save himself by flight, he should flee rather than
kill his assailant........ But no one can be expected
to take flight
to avoid an attack, if flight does not afford him a safe way of
escape. A man is not bound to expose himself to
the risk of a stab in
the back, when by killing his assailant he can secure his own
safety....In considering the question of self-defence,
the jury must
endeavour to imagine itself in the position in which the accused
was."
[6]
However, since this matter comes to us by way of an appeal, this
Court must decide whether the magistrate misdirected himself
in
rejecting the version of the appellant as being reasonably possibly
true, bearing nonetheless the authority referred to herein
above.
[7]
In the matter of S v Francis
3
Smalberger continues to state that: "The Court's powers to
interfere on appeal with the findings of fact of trial Court are
limited (R v Dhlumayo and Another
1948 (2) SA 677
(A). In the absence
of any misdirection the trial Court's conclusion, including its
acceptance of the witness' evidence, is presumed
to be correct. In
order to succeed on appeal, the appellant must therefore convince the
Court of appeal on adequate grounds that
the trial Court was wrong in
accepting the witness' evidence-- a reasonable doubt will not suffice
to justify interference with
its findings. Bearing in mind the
advantage which the trial court has of seeing, hearing, and
appraising the witness, it is only
in exceptional circumstances that
the Court of appeal will be entitled to interfere with a trial
Court's evaluation of oral testimony."
[8]
The State's case was premised on the evidence of Mr. Lucy. Innocent
Kubheka, Bongani David Mchunu. The appellant testified in
his own
defence and called Mr. Mark Ray Maseko as a witness.
[9]
According to Mr Khubeka, on the unfortunate day, he was with the
deceased and Mr. Mchunu travelling in a motor vehicle which
the
deceased was driving. They came to a stationary bakkie along which
the deceased, for unknown reasons, abruptly applied his
brakes and
stopped his motor vehicle next to. The deceased alighted and went
towards the bakkie next to which two male were standing.
It looked as
if there was an argument between the deceased and one of the two men
whom the former slapped on the cheek. Thereafter,
it seemed as if the
deceased was arguing with the second person. The second man pulled a
firearm from underneath his clothes, extended
his gun-holding hand
towards the deceased, fired a shot but missed him. The appellant
fired a second shot and the deceased fell.
The appellant and the
other man jumped into their bakkie and raced away.
[10]
Under cross examination Mr. Kubeka said that the head lights of both
motor vehicles were off but there was an Apollo light
that
illuminated the area and he could see clearly. He did not know
whether the deceased was cross or not when he exited from his
motor
vehicle. Both motor vehicles had stopped on the side of the road
facing each other. The appellant's motor vehicle had stopped
on its
wrong side, in relation to its path of travel, and off the shoulder
of the road, with the deceased's motor vehicle on its
correct side of
travel, but off the road. He also stated that the outside mirror of
their vehicle was damaged as the result of
the shot that missed the
deceased. He denied that the deceased assaulted the appellant with a
fist. He further said that because
the windows of their motor vehicle
were closed, he did not hear what was said outside between the
appellant and the deceased. He
conceded that he saw the deceased from
the back. It was further put to him that the deceased pulled a
firearm from underneath his
jacket. He disputed that the deceased had
a jacket on. He also disputed the version of the appellant, put to
him, that he fired
a warning shot into the ground.
[11]
The second State witnesses, Mr. Mchunu, substantially confirmed the
evidence of the first State witness, in so far as the fact
that their
motor vehicle stopped and the deceased climbed out and approached the
two men. According to him, when the deceased slapped
one of the two
men, Mr. Mchunu climbed out of their motor vehicle and tried to
intervene. The deceased slapped one of the men.
[12]
The evidence of Captain M. J. Moloi, relates to the arrest of the
appellant and the handing in of his firearm and one round
of a live
bullet. I deem it not necessary, for purposes of this appeal, to
chronicle his evidence. It needs mentioning that at
closure of the
State's case, the defence applied in terms of section 174 for the
discharge of the appellant which was, however,
in my view, quite
correctly turned down.
[13]
The appellant testified that he shot the deceased in self defence.
According to the appellant, he and his friend, on the day
in
question, had parked outside the road when a silver LTW motor vehicle
stopped near their vehicle. The left passenger window
was opened. The
driver then asked whether they still recognized him. His friend
responded that they did not know him. The driver
then said to them
that they are forward. The driver then alighted from his motor
vehicle, approached them
and
assaulted his friend with an open hand and a fist without any
provocation.
[14]
The appellant further testified that when the deceased alighted from
his motor vehicle, it was only then that he recognized
him as the
person, a week earlier, he had some incident with, the details of
which, for purposes of this appeal, It suffices to
state that during
the said incident, according to the appellant, the deceased called
him names, inter alia, a dog.
[15]
According to the appellant, the deceased, after assaulting his
friend, said that he must finish these dogs, referring to the
appellant and his friends, and that he should shoot them. The
deceased charged towards him. He saw the deceased having a firearm.
The appellant retreated backwards. He warned the deceased to stand
still as he too had a firearm with him. As he was retreating
backwards, the appellant drew his firearm from its holster. He
further said that the deceased pulled his firearm from somewhere
underneath his clothes.
4
The appellant further said that the deceased pulled his firearm and
pointed it towards him. According to the appellant, it was
at that
stage that he fired a warning shot in the ground to show the
appellant that he too had a firearm. The appellant further
said that
the deceased was still far when he, the appellant, fired the warning
shot. The second shot he directed it towards the
deceased. He further
said that he warned the deceased to stand still or else he would
shoot him.
5
When the deceased did not stop after the warning, the appellant
realised that he is not safe he then shot the deceased as he had
no
choice.
6
[16]
Under cross examination, according to the appellant, before the
deceased assaulted his friend, the appellant said that: "This
dog, let me shoot this dog."
7
He further said "Let me shoot these dogs and be done with
them."
8
Immediately thereafter the deceased pulled something from underneath
his clothes, but the appellant did not see precisely wherefrom
and
what it was the deceased pulled because he was afraid. Because the
the deceased pulled because he was afraid. Because the deceased
had
just assaulted his friend, the appellant was afraid and scared.
9
He was unable to see what type and colour of the firearm because it
was dark. The place was illuminated by an Apollo light. The
deceased
was about 31/2 metres away from him. According to the appellant, when
the deceased approached him, it was not safe. The
appellant further
said that he fired the warning shot to the ground to the side of the
deceased.
10
[17]
During cross examination, it was further pointed out to the appellant
that the outside mirror of the motor vehicle of the deceased
was
damaged during the shooting. The appellant was asked to explain and
to demonstrate the position of the deceased's motor vehicle
when he
fired the warning shot. It would seem that according to his
demonstration, the motor vehicle would have been at 90% angle
with
him, to be in a position to struck the mirror. It was further pointed
out to the him that whereas it was put to the State
witnesses that,
according to him, the projectile that struck the mirror had
ricocheted. The appellant responded by saying that
he knew nothing
thereof as the police never told him thereof. Further the appellant
said that he could not dispute that the deceased
did not have a
jacket on. He further said that he did not have time to observe what
the colour of the clothes the deceased had
on.
[18]
The appellant further said that the deceased produced his firearm,
and he, the appellant, warned him verbally and shot him.
He further
said that he could not shoot the deceased on the leg because the
deceased would then have shot him on the head. He further
sad that he
did not intend to kill the deceased. He said that he shot the
deceased at the vital part so as to warn him
11
.
[19]
To the court's questions, the appellant said that the deceased was
the first to draw his firearm and pointed it at him. The
appellant
drew his firearm and released the safety pin. He fired the warning
shot and then fired the second shot that killed the
deceased. He
further said that he does not know why the deceased did not shoot him
first. He further said that when he saw the
deceased lifting his hand
which had the firearm, he warned him that he too has a firearm and
should stop, as he was advancing towards
him, and he then shot the
deceased.
[20]
Mr. Mark Ray Maseko testified on behalf of the appellant. According
to him, he was seated in the appellant's motor vehicle
when another
motor vehicle stopped next to theirs. The appellant at that moment
was outside their motor vehicle. The driver of
the other motor
vehicle that stopped there said something. Because he could not hear
what he was saying, he then got out of their
motor vehicle so that he
could hear what the other person was saying. The driver of the other
motor vehicle started screaming at
them. The deceased got out of his
motor vehicle and slapped him in the face twice. The deceased then
advanced towards the appellant.
According to Mr. Maseko, the deceased
leaned into his motor vehicle, returned tucking something or his
shirt into his pants. As
Mr. Maseko was talking to one of the men, he
heard a shot being fired. Immediately thereafter he heard the second
shot.
Under
cross examination Mr Maseko said that the deceased assaulted him with
an open hand and on the second occasion with a fist.
After the
intervention of his legal representative, Mr. Maseko then said that
at first, the deceased hit him with his fist and
with an open hand on
the second occasion. He further said that the deceased mentioned that
he must go back to his motor vehicle
to collect his gun. He however
said that he did not see any gun in the hands of the deceased when he
returned from his motor vehicle
but charging at the appellant. He
conceded that in his statement to the police he said nothing about
being assaulted nor about
the shots. Mr. Maseko further said that he
did not focus on the deceased because he was talking to Mr. Dlamini
who was admonishing
him to get into his motor vehicle. He further
said that he could not say anything about the deceased having a
firearm. Neither
does he know whether the appellant fired a warning
shot. The appellant told him after they got into their motor vehicle
that he
was the one who fired a
shot.
12
[22]
The Magistrate found that the deceased was the aggressor.
The
Magistrate rejected the version of the appellant that he fired a
warning shot. He found that it is not reasonably possible that,
if he
shot into the ground on the side of the deceased, he could also have
struck the mirror of the deceased's motor vehicle. The
Magistrate
also found that the appellant had the requisite to kill the deceased
when he fired at him. In this regard he took into
account that the
appellant had said that he decided not to shoot on the deceased's leg
but the vital parts. The Magistrate rejected
the version of the
appellant that he was acting in self-defence.
[23]
From the evidence of both the State and the defence, it is clear that
the deceased was bellicose on this particular date and
time in
question. He approached the appellant aggressively, after assaulting
Mr. Maseko. The Magistrate correctly found that the
deceased was the
aggressor. The appellant said that he was afraid that the deceased
was going to assault him. Such belief is subjective.
In the
circumstances that prevailed, it is reasonably possible that the
appellant believed that the deceased was going to assault
him. He was
therefore justified in defending himself, in the circumstances.
[24]
The fact that the appellant was justified in defending himself, does
not necessarily mean that he should therefore have been
acquitted.
The measures employed to defend one self must be commensurate with
the force or threat to be repelled.
[25]
Mr. Maseko's evidence is that the appellant told him when they were
in their motor vehicle that he is the one who fired the
shot. It is
strange that the appellant would mention only one shot, if there were
two shots fired. The State witnesses said that
there was only one
shot fired.
[26]
The State witnesses denied that the deceased was armed. There was no
firearm found at the scene. Mr. Maseko was not helpful
on the aspect
whether the deceased had a firearm. The appellant himself was unable
to give much detail about the alleged firearm
of the deceased. He
claimed that it was dark and could not see clearly.
[27]
The appellant contradicted himself in various ways, inter alia,
whether the deceased had a jacket on. He could not say wherefrom
the
deceased drew the firearm. His evidence does not accord with that of
Mr. Maseko who said that the deceased fetched a firearm
from his
motor vehicle. Whether the deceased was armed, cannot be determined
on the unsatisfactory evidence of appellant. The State
witnesses said
that the deceased was not armed.
[28]
The appellant's evidence regarding the firing of the warning shot is
equally unsatisfactory. The magistrate rejected the version
of the
appellant on this aspect. I am unable to find fault on the
Magistrate's finding that the deceased was not armed.
Magistrate
was steeped with the atmosphere that prevailed and as Court of
appeal, I cannot interfere with such findings.
[30]
In as much as the deceased was the aggressor, the appellant was not
entitled to employ force that was not commensurate with
the threat.
He exceeded the bounds of self defence in shooting the unarmed
deceased. Besides, the appellant, on his own admission,
decided not
to shoot the deceased on the leg, but at his vital parts, the
stomach.
[31]
I do accept that the deceased was not armed. The Magistrate concluded
that the appellant had the necessary
mens rea
to kill the
deceased. He further held that the appellant could have shot the
deceased on the leg, which would have been enough
to immobilize the
deceased from assaulting him. I am unable to fault the Magistrate's
finding and conclusion in this regard.
[32]
The appellant was sentenced to 7 (seven) years imprisonment. In
imposing this sentence, the Magistrate took into account the
fact
that the deceased was the aggressor. Further taken into
[32]
The appellant was sentenced to 7 (seven) years imprisonment. In
imposing this sentence, the Magistrate took into account the
fact
that the deceased was the aggressor. Further taken into account were
the youthfulness of the appellant, the fact that he is
breadwinner
and a first offender.
[33]
The Magistrate exercised his judicial discretion in imposing the
sentence. A judicial discretion cannot be tempered with on
appeal,
unless the sentence is shockingly inappropriate. Life is a most
precious commodity to be taken away from a person. A sentence
of 7
(seven) years imprisonment in this case can hardly be said to be
inappropriate. In the circumstances, I am unable to find
that the
Magistrate misdirected himself in imposing the sentence appealed
against.
[34]
Consequently, I am of the view that both the appeal on the conviction
and sentence must fail.
[35]
In the result, I make the following order:
1.
That the appeal against both conviction and sentence is dismissed and
both are confirmed.
N.M
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
S
POTTERILL
JUDGE
OF THE HIGH COURT
Date
of Judgment : 29/07/2011
appellant's
att : G.F. Botha & Van Dyk Inc.
appellant's's
adv : Mjungbluth
respondent's
att : Director of Public Prosecutions
respondent's
adv : Mr C.P.Harmzen
1
1959
(3) SA 122
(AD) at 123A-E.
2
1953
(2) S.A. 568
(A.D.)atp. 572.
3
1991(1)
SACR 198 at 204c-e.
4
Paginated
page 62 lines 23-24.
5
Paginated
page 64 lines 15 -20.
6
Paginated
page 65 lines 1-l0.
7
Paginated
page 68 lines 18-19.
8
Paginated
page 69 lines 9-10.
9
Paginated
page 69 lines 11 -18
10
0
Paginated
page 75 lines 7-10.
11
Paginated page 80.
12
Paginated page 110 lines 12-24