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[2024] ZAKZPHC 26
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S v Dlamini (CCD09/2024) [2024] ZAKZPHC 26 (26 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, NORTH EASTERN CIRCUIT
Case
no:
CCD09/2024
In
the matter between:
THE
STATE
and
SIFISO
NKOSINATHI
DLAMINI
ACCUSED
JUDGMENT
MOSSOP
J
:
[1]
It is common cause that Ms Nothando Shelembe (Ms Shelembe) was
involved in a love relationship with the accused. After a year, she
broke the relationship off but, according to Ms Shelembe, the accused
would not accept that fact. She acquired a new boyfriend
with some
rapidity after terminating her relationship with the accused and a
week after that new relationship commenced, on 22
September 2023, the
state alleges that the accused stabbed Ms Shelembe’s new
boyfriend, Mr Phakamani Sanele Shabalala (the
deceased), to death in
front of her early in the morning of that day.
[2]
The accused consequently stands charged with a single count of
murder, to which he pleaded not guilty. It is alleged by the state
that the murder was premeditated and thus the provisions of s 51(1)
of the Criminal Law Amendment Act 105 of 1997 (the Act), read
with
part 1 of schedule 2 to that Act, are applicable. The accused’s
legal representative, Mr Mkhwanazi (Mr Mkhwanazi), tendered
no
written plea explanation on his behalf when the accused pleaded but
stated orally from the bar that the accused’s defence
would be
that of self-defence.
[3]
The accused indicated, initially, that he
would make certain admissions and set out those admissions in a
document that he signed
(the admissions document) and which was
subsequently read out in open court. However, immediately after it
was read out, the accused
indicated that he declined to admit that
the deceased was known as ‘Phakamani Sanele Shabalala’,
saying that he knew
him as ‘Dlamini’, not ‘Shabalala’.
It was recorded therefore that he did not admit the name of the
deceased
and paragraph one, in which that admission was contained,
was struck from the admissions document. This was a momentary state
of
affairs, for the deceased’s identity was quickly resolved,
apparently to the accused’s satisfaction.
[4]
The accused was prepared, however, to make
other admissions mentioned in the admissions document, namely that
the deceased was stabbed
on 22 September 2023, and died as a
consequence, the cause of his death being ‘stab wounds –
chest and abdomen’.
He admitted that no further injuries were
occasioned to the body of the deceased between the moment of his
death and the post-mortem
examination carried out on his body by Dr F
A van Niekerk (Dr van Niekerk) on 26 September 2023. He also accepted
the post-mortem
report prepared by Dr van Niekerk, which identified
two stab wounds to the deceased’s chest and one to his right
lower abdominal
area, and he did not dispute the contents of a
photographic album that had been prepared depicting the scene of the
crime and the
deceased’s body.
[5]
The accused’s apparent uncertainty
over the identity of the deceased was the first issue addressed by
the state and was conclusively
resolved by the evidence of Ms
Thembani Shabalala, the deceased’s aunt (Ms Shabalala). Ms
Shabalala saw the deceased’s
body at the scene where he died
and again immediately before he was buried a few days later. She also
observed the photographic
album in court as well, in which
photographs of a body are depicted. She confirmed that the body that
she saw in all three instances,
was that of the deceased. She
explained that the deceased had used both his mother’s surname,
‘Shabalala’, and
his father’s surname, ‘Dlamini’,
which explained the accused’s confusion over his identity. Ms
Shabalala’s
evidence was not challenged by Mr Mkhwanazi and the
deceased is thus the person with the name alleged in the indictment.
[6]
To fully explain what occurred it is
necessary to commence with the evidence of Ms Mbali Gumbi (Ms Gumbi).
She was not the second
witness called by the state, but the third. It
seems to me that her evidence sets the basis for what later followed
and should
first be considered. Ms Gumbi worked at a Total petrol
station in Empangeni (the petrol station) at which the deceased and
Ms Shelembe
also worked. She knew both of them. On the morning of 19
September 2023, her night shift at the petrol station came to an end
and
she knocked off at about 06h30 and went home. At around 08h00 or
09h00 that morning, someone knocked at her front door and when
she
opened it, she was told by the person who had knocked that there was
another person outside looking for her. She went out and
saw the
accused.
[7]
The
accused said to her: ‘Hey, I have found you’. She asked
him how he had done this, as no-one knew where she lived
as she had
only been working at the petrol station for a short while.
[1]
He said that he ‘had his ways’. He said that he was
actually searching for the deceased. She asked why, and he said
that
he had a ‘surprise’ for him, but that he did not know
where he stayed. Ms Gumbi said that she also did not know
where he
stayed and added that he did not stay with her. The accused asked her
to telephone the deceased and ask him where he lived
but not to let
on to him that he was with her. Ms Gumbi agreed to do so. She
contacted the deceased on her cellular telephone,
and he informed her
that he stayed opposite the KwaThabeni church. She ended the call and
told the accused what she had been informed
by the deceased. He
thanked her and said that she had helped him a lot and then left.
[8]
Mr Mkhwanazi cross examined Ms Gumbi and
put it to her that the accused denied that he had gone to her home or
that she had told
him where the deceased resided. This was soundly
rejected by Ms Gumbi. She said that there was ample evidence that
would confirm
that what she had said was the truth: the person who
knocked on her door to tell her that the accused was looking for her
could
be called to verify her version; when she had gone to work that
evening, she had repeated to her colleagues what had transpired
earlier that morning and those persons could also be called to
testify as to what she had told them; and, finally, she indicated
that her cellular telephone could be examined to prove that she had
called the deceased.
[9]
Ms Shelembe, as may be expected, was the
principal witness for the state. She testified that on 15 September
2023, being four days
before the incident described by Ms Gumbi in
her evidence, she had terminated her love relationship with the
accused. She had telephoned
him to tell him of her decision and had
advised him that she was going to continue with her own life. The
accused had said:
‘
That
will never happen.’
According to Ms Shelembe,
the accused apparently would not accept her decision to call time on
their relationship. True to her word
that she was intent on
continuing with her own life, she immediately commenced a new
relationship with the deceased.
[10]
Ms Shelembe testified that on the evening
of 21 September 2023 she had spent the night at the deceased’s
home. Early the next
morning, 22 September 2023, they had left his
home together at approximately 05h25 on their way to their common
place of employment
at the petrol station. They had scarcely walked
10 metres from his home, when the accused suddenly appeared in front
of them, walking
towards them holding an open Okapi knife. She stated
that the deceased was unarmed. Without uttering a single word, the
accused
came up to them and pushed the deceased with both of his
hands on his upper chest. Ms Shelembe said she was so close to what
then
happened that she could have touched the accused. The accused
then stabbed the deceased in the chest. The deceased did not fight
back or resist the attack of the accused but fell to the ground. The
accused then stabbed him for a second time as he lay on the
ground.
[11]
At that point, Ms Shelembe fled to try and
summon help, dropping her handbag as she did so. She ran to a house
next to the KwaThabeni
church but could not get anyone there to help
her. She explained that she was screaming and banging on the doors
and windows of
the house, desperately wanting help, but no one came
to her assistance. As she was leaving that house, the accused
appeared again,
still holding the knife, now bloodied, and her
handbag, both of which he held in his blood stained hands. Ms
Shelembe cried out
and the accused grabbed her hand and said that
they should run away together, pointing to a truck parked about 20
metres away.
[12]
Just then a minibus taxi drew up. The
driver observed what was happening and quickly resolved to intervene.
He and his single male
passenger alighted, and the accused took
fright and fled with Ms Shelembe’s handbag still in his
possession. In that handbag
was her cellular telephone and her bank
cards. The taxi driver declined to load the deceased into his taxi
but took Ms Shelembe
to the Ngwelezane police station. At the police
station, Ms Shelembe told a member of the South African Police
Services (the SAPS)
what had just happened and indicated that she
could identify who had committed the murder because she knew him. She
asked for an
ambulance to be sent to the scene.
[13]
When she later returned to the scene, the
deceased had already passed away, but his covered body was still
lying there. She identified
who he was to the SAPS members in
attendance and went with a policeman to the deceased’s nearby
home to locate his identity
document. She found it there and the SAPS
took possession of it.
[14]
Ms Shelembe stated that the accused was
originally from the Jozini area but, for work purposes, he resided at
uMhlathuze. She agreed
that the uMhlathuze area was approximately 25
kilometres from the place where the deceased was struck down.
She also stated
that she did not think that the accused knew that she
had a new boyfriend.
[15]
In his cross examination, Mr Mkhwanazi
proposed to Ms Shelembe that the accused did not have a knife and
asserted that the person
who did have a knife was the deceased. This
was categorically rejected by Ms Shelembe. She indicated that she
believed that the
deceased had seen that the accused was armed with a
knife, but she could not testify that he had definitely done so
because only
he would know what he had seen. With regards to the
truck that the accused had demanded that she get into, she stated
that it was
parked on a gravel road and not on the main road and that
it appeared to have been hidden as it was not easily observable.
[16]
Mr Mkhwanazi put it to Ms Shelembe that the
accused would testify that he had been driving along the main road
when he observed
her and had stopped his truck. Ms Shelembe rejected
this proposition, saying that she had barely walked ten metres from
the deceased’s
home before the accused, already on foot,
accosted them. Mr Mkhwanazi indicated that the accused’s
version would be that
he had approached her to retrieve his keys from
her. This was denied by the witness who said the accused did not
utter a word before
stabbing the deceased. Then, so the version
continued, the deceased had attacked the accused. The deceased was
stronger than the
accused and drew a knife. The accused, during a
struggle that then eventuated, managed to pry the knife away from the
deceased
and stabbed him. Having seen off the threat from the
deceased, the accused had followed Ms Shelembe, still intent on
retrieving
his keys. The court asked the witness if she knew what
keys were being referred to and she indicated that she did not. It
was explained
to her by Mr Mkhwanazi that these were the keys to the
accused’s front gate and his house. Ms Shelembe denied having
any
keys that belonged to the accused. The accused’s version
was completed by Mr Mkhwanazi informing the witness that the accused
became scared and took the truck to its owner’s place at
KwaMduku, where he was then arrested. Ms Shelembe stated that she
did
not know what the accused did, but when she and the SAPS went to his
place of employment, he was not there.
[17]
Mr Mkhwanazi said that the accused
regretted what had happened as he did not intend to stab the
deceased. Ms Shelembe scotched this
suggestion, saying that it was
his intention because he had approached them with the knife already
drawn.
She said:
‘
He
was ready for a fight’.
[18]
It then emerged that the accused’s
version would be that he did not know that Ms Shelembe had broken up
with him. She had
never told him of this. Ms Shelembe said that if
this was the accused’s version, he was lying: she had
telephoned him to
specifically tell him that their relationship was
at an end. It was on the date of that telephone call, 15 September
2023, that
she had last had a conversation with the accused. Mr
Mkhwanazi put it to her that she had, in fact, spoken to the accused
on 21
September 2023, an allegation that she denied, saying that she
was at work on that date. It appeared that the accused agreed with
this, but it was then put that he had met her after work in Empangeni
where he had purchased cultural clothing for her young son.
This was
denied by Ms Shelembe.
[19]
Finally, in response to a question from the
court, Ms Shelembe indicated that her home was approximately a one
hour walk from the
deceased’s home. Their homes were located in
two quite distinctly separate areas.
[20]
On the morning of 22 September 2023, at
about 05h40, constable Bayanda Mthiyane was driving to his place of
work at the Empangeni
Public Order Policing Unit. It was part of his
duties to pick up other members of the SAPS in his area who also
worked there. However,
while alone in the vehicle, he noticed
oncoming motor vehicles flicking their lights at him, the drivers
thereof pointing to something
lying on the right-hand side of the
road as viewed from Cst Mthiyane’s perspective. He stopped his
vehicle and got out and
approached what turned out to be a male
person’s body. The body was clad, inter alia, in a white
T-shirt that was blood stained.
He noticed stab wounds to the body.
He telephoned Empangeni SAPS and requested assistance and an
ambulance. Upon the arrival of
the ambulance, the person lying there
on the side of the road was declared dead and Cst Mthiyane
surrendered the scene to the members
of the SAPS who arrived from
Empangeni. Cst Mthiyane was shown photographs in the photograph album
and confirmed that the body
depicted in those photographs was the
body that he observed on that morning. He was not cross examined by
Mr Mkhwanazi.
[21]
On the same day as the death of the
deceased, 22 September 2023, Captain Steven Mandla Nkabinde was on
duty as the acting branch
commander at SAPS Hluhluwe. He had been
informed of the murder of the deceased and he had personally verified
that information
by contacting a Lt Col Mthethwa of the Empangeni
detective unit. He then received information that the accused was
driving in the
direction of Hluhluwe. Later that day, the accused was
brought to him in handcuffs by some security guards. Capt Nkabinde
informed
the accused of his rights and he subsequently handed over
the accused to a SAPS officer sent to fetch him from the Empangeni
police
station.
[22]
That was all the evidence led by the state.
[23]
The accused elected to testify in his
defence. He stated that on the morning of 22 September 2023 at about
05h30 he was on his way
to work to uplift a load of river sand from
uMhlathuze. As he drove along the road, he came across Ms Shelembe,
walking. He was
not immediately able to discern whether she was
walking alone or with the deceased because there was a distance
between them. He
parked his truck on the side of the road, rolled
down the window of the driver’s door and asked Ms Shelembe if
she would
give him his keys as his landlord was fighting with him
over the keys. She said that he should come and fetch them from her,
so
he alighted from his truck and walked towards her but as he got
closer to her, she moved behind the deceased. The deceased then
began
assaulting him and a scuffle ensued. The accused fought back, and
they struggled over a knife. The accused managed to dispossess
the
deceased of the knife and stabbed him with it. Notwithstanding that
he had been stabbed, the deceased continued to fight with
the accused
and the accused thus stabbed him a second time. The accused then left
the deceased at that spot with the deceased still
alive, on his feet,
but bent forward with his hands on his knees, and went to his truck.
[24]
As he was about to get into his truck, the
accused saw Ms Shelembe at the gate of a nearby house and went to her
to ask for his
keys again. She said the keys were in her handbag. The
accused testified that she had thrown her handbag in front of his
truck
when she had run away. He retrieved the handbag and opened it
but did not find his keys. At that stage, a taxi arrived, and Ms
Shelembe was taken away by it. He went back to his truck and drove
off with the handbag and then took the truck to its owner at
Hluhluwe.
[25]
The accused denied that he had ever been to
Miss Gumbi’s house, saying that he did not know where she
stayed. While he said
that he knew her by sight, he stated that he
had never had a conversation with her. He also testified that it had
not been his
plan to kill the deceased and he sincerely apologised
for the fact that ‘a person had been injured’.
[26]
Mr Ngubane, for the state, then cross
examined the accused. He commenced by identifying a series of facts
testified to by the accused
in his evidence in chief that had never
been put to Ms Shelembe: that he could not tell whether she had been
walking with the deceased
because there was a gap between them, that
she had said that his keys were in her handbag, that she had
apparently thrown her handbag
away, that what was in her handbag was
a broken cellular telephone and the like. The general response of the
accused to these propositions
was that he had told his counsel of
these facts.
[27]
The accused conceded that when he saw Ms
Shelembe and the deceased together that morning, he felt ‘aggrieved’.
Yet,
when he was asked why he had not asked her what she was doing
with another man, given his version that he did not know that their
relationship was over, the accused said that he did not suspect her
of doing anything. He also said that he was not suspicious
of the
fact that Ms Shelembe and the deceased were together so early in the
morning.
[28]
The accused confirmed that his defence was
self-defence. When shown the photograph album, he ultimately conceded
that the body of
the deceased had three stab wounds, whereas he had
only described stabbing him twice. Importantly, he agreed that he had
stabbed
the deceased when the deceased was not armed and when he
posed no danger to himself. In making that admission, the accused
testified
that he must apologise, explaining that he acted as he did
because of ‘emotion’. He stated that he had made a
‘mistake’
in stabbing the deceased, but he denied that he
had stabbed the deceased because of the latter’s involvement
with Ms Shelembe.
He then explained that it was a combination of all
these factors that had caused him to stab him, including the fact
that he had
been assaulted by the deceased and that the deceased was
in a love relationship with Ms Shelembe. Mr Ngubane asked him why he
had
stabbed the deceased as he lay on the ground. The accused simply
said that is where he made a mistake.
[29]
The accused was asked whether he had told
the investigating officer that he had acted in self-defence. He said
that he had not.
Asked why this had not occurred, his explanation was
that he had never spent time with the investigating officer. When it
was put
to him that he had interacted with the investigating officer
on the day of his arrest, the accused then said that he did tell him.
Asked why he had not handed himself over to the SAPS at Empangeni
because he had the defence of self-defence available to him,
the
accused irrelevantly explained that he feared ‘the people’
might torch his truck.
[30]
The accused then mentioned that he knew the
deceased had died even though he was still alive when he, the
accused, left the scene.
This he had ascertained, so he explained,
when a certain Mr Mkhwanazi (not his defence counsel) had telephoned
him. Asked how Mr
Mkhwanazi would know to associate him with the
death of the deceased, the accused immediately contradicted himself
and said that,
in fact, he had first telephoned Mr Mkhwanazi. Not
only had he telephoned him, but he had also met Mr Mkhwanazi at a
place called
Bonvini. This was entirely new evidence that had never
previously been mentioned. Asked why he did not go to the SAPS and
explain
that he had acted in self-defence, but went rather to
Hluhluwe, the best the accused could come up with was that he was
shocked.
[31]
When he was asked by Mr Ngubane when he had
given his keys to Ms Shelembe, the accused said that he could not
remember, nor could
he remember whether she had been given the
original or a duplicate set of keys. It became clear that the
accused’s version
was that he had given her the only set of
keys that he had to his own accommodation so that she could access
his accommodation
on those occasions that she visited him there. On a
practical day to day level, he would then require his landlord to
lock and
unlock his rented accommodation when he left and returned
because he now no longer had any keys.
[32]
The accused denied that he had been
telephoned by Ms Shelembe on 15 September 2023 and thus he explained
that he could not have
asked her to return the keys during that
alleged conversation. Asked if he had demanded the return of the keys
prior to stabbing
the deceased, he then said that he had and had even
gone to Ms Shelembe’s home to get them from her, but that she
had not
been there when he called, and he had left a message with her
mother to the effect that he wanted his keys back. This was also not
put to Ms Shelembe.
[33]
There then followed the most tortuous
series of questions regarding the accused’s desires, hopes and
expectations concerning
his relationship with Ms Shelembe. His
answers were in large part entirely contradictory. Thus, in response
to a proposition that
he did not want to break up with Ms Shelembe,
he said that it was a lie. When he was asked if he did want to break
up with her,
he said they had never had problems. He agreed that he
wanted to be with her and initially said that he did not want to lose
her
to another man. He then said that it was not true that he did not
want to lose her to another man. Then he again said he did not
want
to lose her but then denied that he did not want to lose her.
[34]
As regards the evidence of Ms Gumbi, the
accused stated that he had no issues with her and that there was no
bad blood between them.
He did not, however, agree with the
proposition that she had no reason to lie about him coming to her
house. He said that there
might be a reason. That reason was that she
was friends with Ms Shelembe. For this reason, she might tell lies
about him. This
was never put to either Ms Gumbi or Ms Shelembe.
[35]
At the end of Mr Ngubane’s cross
examination, the court requested the accused to clarify certain parts
of his evidence. The
accused was asked whether the deceased would
have heard him ask Ms Shelembe for his keys and would have heard her
say to the accused
that he should come to her and fetch them. He
agreed that the deceased would have heard that. He was asked then why
the deceased
would start assaulting him when he approached them as
the deceased would have known he posed no threat but was responding
to Ms
Shelembe’s request. He had no answer for this. As to the
assault that he allegedly suffered at the hands of the deceased,
the
accused revealed for the first time that he had been struck on his
left eye and left ear by the deceased. After that happened,
he and
the deceased grabbed each other and the knife, allegedly possessed by
the deceased, fell to the ground, not from his hand,
but from the
deceased’s trousers. The accused’s jacket was torn in the
ensuing fracas, and he stepped back. The deceased
then slipped and
fell to the ground. The accused grabbed the knife now lying on the
ground and stabbed the deceased while he was
also on the ground. The
accused immediately varied this and said that he had stabbed the
deceased when he was between standing
up and lying on the ground. The
deceased stood up and came towards the accused, notwithstanding that
he had just been stabbed,
and grabbed him. He then stabbed the
deceased again. He did not take notice of how many times he stabbed
the deceased or which
parts of his body suffered the stab wounds. He
was asked to clarify why he had not simply left once he had secured
possession of
the knife. His answer to this was that he apologised,
but he had reacted as he did out of ‘emotion’. Asked what
that
emotion was, he said that he was extremely angry that the
deceased had assaulted him. He stated that he was not emotional about
the deceased being with his girlfriend. The latter statement
contradicted his earlier statement that he had acted as he did by
virtue of a number of factors, including the fact that he had been
assaulted by the deceased and that the deceased was in a love
relationship with Ms Shelembe.
[36]
The accused had no witnesses to call and
closed his case.
[37]
The state’s
case is simple: it is the timeless example of a spurned lover
exacting his revenge on his successor. The accused
was the spurned
lover of Ms Shelembe and planned to exact revenge upon the successor
to her affections. He planned his attack on
the deceased and sought
out his address and then struck early one morning when the deceased
and Ms Shelembe were on foot on their
way to work. The accused was
the aggressor and struck the deceased down mercilessly and without
compunction by stabbing him three
times with a knife that he, the
accused, had brought to the scene. He then left the scene and left
the deceased to die. The accused,
on the other hand, also presents a
simple explanation for what occurred on 22 September 2023. He asserts
that whilst posing no
threat to the deceased, he was unlawfully set
upon by him and acted in self-defence in warding off the deceased’s
attack.
He accepts that his actions killed the deceased, but asserts
that his actions were lawful in the circumstances.
[38]
Throughout
the trial, the basis of the accused’s defence has been referred
to as ‘self-defence’. A more correct
classification of
his defence is that of private defence.
[2]
The requirements for private defence are well-settled. The attack
upon the person acting in private defence must be unlawful, must
be
directed at an interest which legally deserves to be protected and
must be imminent but not yet completed.
[3]
As regards the defence, it must be directed at the attacker, it must
be necessary in order to protect the interest threatened,
there must
be a reasonable relationship between the attack and the defensive
act, and the person attacked must be aware of the
fact that he is
acting in private defence.
[4]
[39]
The
test for assessing private defence is an objective one and is to be
considered as against the conduct of a reasonable person.
[5]
The question whether an accused person claiming to have acted in
private defence can successfully maintain that defence, is determined
by objectively examining the nature of the attack and defence to
determine whether they conform with the principles of law just
mentioned. In doing so, each aspect and requirement of the attack and
the defence must be judged from an external perspective rather
than
in terms of the accused’s perceptions and his assessment of the
position at the time that he resorted to private defence.
Whether an
attack is to be regarded as imminent is decided by the court’s
assessment of the evidence of the circumstances
of the attack and not
according to the accused’s belief that he was in imminent
danger of being attacked. However, as was
said in
S
v Ntuli
:
[6]
‘
In
applying these formulations to the flesh-and-blood facts, the Court
adopts a robust approach, not seeking to measure with nice
intellectual callipers the precise bounds of legitimate self-defence
or the foreseeability or foresight of resultant death.’
[40]
In
other words, the court must guard against becoming an arm-chair
critic. In
R
v Patel
,
[7]
Holmes AJA re-affirmed that the court should recognise that decisions
in the real world are often made in split seconds:
‘“
Men
faced in moments of crisis with a choice of alternatives are not to
be judged as if they had had both time and opportunity to
weigh the
pro and cons. Allowance must be made for the circumstance of their
position.”’
[8]
[41]
In
S
v De Oliveira
,
[9]
the
Supreme Court of Appeal observed that where the defence of
self-defence has been specifically pleaded by the accused or becomes
obvious from the evidence that has been led in a matter, the onus
remains on the state to prove beyond reasonable doubt that the
accused acted unlawfully and that he realised, or ought reasonably to
have realized, that he was exceeding the bounds of self-defence.
Where,
in the performance of that exercise, it is found that it is
reasonably possible that the accused might be innocent, he is
entitled to be acquitted.
[10]
[42]
There are
fundamental differences between the two versions presented regarding
the death of the deceased. On the state version,
the accused was the
aggressor, whereas on the defence version the deceased was the
aggressor. The evidence must therefore be carefully
assessed to
determine this factual dispute.
[43]
In assessing the
state’s case, the first point to acknowledge is that both the
evidence of Ms Gumbi and the evidence of Ms
Shelembe is the evidence
of single witnesses. Neither of them testified about events at which
the other was present. Their evidence
covered different days and did
not overlap but described discrete and separate incidents. The
evidence of these two witnesses constitutes
the critical core of the
state’s case and must accordingly be approached with caution
given that they are single witnesses.
[44]
In
argument, Mr Ngubane for the state drew attention to s 208 of the
Criminal Procedure Act 51 of 1977 (the CPA). It reads as follows:
‘
An
accused may be convicted of any offence on the single evidence of any
competent witness.’
In
S
v
Mahlangu and another
,
[11]
the Supreme Court of Appeal, with reference to that section of the
CPA,
restated
the approach to the evidence of a single witness as follows:
‘
The
court can base its finding on the evidence of a single witness as
long as such evidence is substantially satisfactory in
every
material respect or if there is corroboration. The said
corroboration need not necessarily link the accused to
the crime
’
.
[45]
Ms
Shelembe was a confidant witness who expressed herself clearly and
logically. She had a good recall of events and was very certain
in
her rejection of the accused’s version of events. She was cross
examined by Mr Mkhwanazi but adhered totally to her version
and would
not be persuaded to depart from it. She created a good impression.
While her evidence does not account for the three
wounds suffered by
the deceased, that is explained by the fact that she fled after the
deceased had been stabbed for a second time
and therefore did not
witness the third stabbing. The post-mortem report confirms her first
observation that the deceased suffered
a stab wound to the chest.
[46]
Ms Shelembe testified
that she did not believe that the accused knew that she had commenced
a relationship with the deceased. That
may have been her view. But it
does seem that this is one part of her evidence where she was not
correct. The ‘surprise’
in respect of which Ms Gumbi
testified demonstrates that the accused had such knowledge. Even the
accused, when explaining that
he had acted because of ‘emotions’,
at least initially stated that he was upset that the deceased had
commenced a relationship
with her. The accused thus knew about the
relationship and her view must be regarded as being incorrect.
[47]
Ms Gumbi also created a favourable
impression when she testified. She came across as an intelligent
young lady who had no axe to
grind with the accused, a fact that the
accused himself conceded. The accused’s suggestion that she was
favouring the version
of Ms Shelembe has no merit. Her evidence, in
fact, did no such thing. She did not testify that the accused had
stabbed the deceased.
Ms Shelembe also did not testify that the
accused had gone to Ms Gumbi’s home before killing the
deceased. Both women simply
testified to the facts that they knew and
did not stray into testifying about matters outside their direct
knowledge. Ms Shelembe,
in particular would not be enticed into any
form of speculation: she declined an invitation to speculate on
whether the accused
had seen the knife that she said the accused
carried nor would she speculate on what the accused had done after he
had fled from
the scene of the fatal stabbing.
[48]
The suggestion by the accused that Ms Gumbi
would be prepared to perjure herself because she was friendly with Ms
Shelembe was made
by him when he was under cross examination. It was,
however, not a proposition that was put to either Ms Gumbi or Ms
Shelembe.
It appears unlikely to me that this has occurred after
seeing and hearing both witnesses. It cannot be denied that the two
ladies
must have known each other as they worked together at the same
petrol station. But it was unchallenged that Ms Gumbi had only worked
there for a short time, a few months in total, before the deceased
was killed. It was thus not a friendship of long standing and
it is
improbable that such a nascent friendship would be sufficient to
entice Ms Gumbi to commit perjury. Furthermore, if Ms Gumbi’s
evidence was part of a conspiracy to falsely implicate the accused,
it had to have been conceived of both immediately and speculatively.
Immediately, because Ms Gumbi testified that when she went to work
later that day for her night shift, she told her colleagues
there of
what had occurred earlier that morning. And speculatively, because no
one could possibly have known that three days after
the events
testified to by Ms Gumbi, the accused would find the deceased and Ms
Shelembe together on the road and that he would
then kill the
deceased. Finally, the proposition presupposes that at least Ms Gumbi
had some knowledge of the contents of the Act
and knew that there is
a difference between a murder and a premeditated murder. There was no
evidence that she had any such knowledge.
[49]
I found the evidence of these two witnesses
to be satisfactory in all material respects.
[50]
On the other hand, the accused was an
appalling witness. In the short span of time between his version
being put to state witnesses
and he himself entering the witness box,
his version regarding the events on 22 September 2023 changed
remarkably. In the end,
most of his version was never put to the
witnesses who could reasonably be supposed to have had an interest in
being told what
his version was. Thus, the accused’s version
that he was still in the cab of his truck when he addressed Ms
Shelembe was
not a version put to her. Neither was the fact that he
allegedly spoke to her within earshot of the deceased and asked her
about
his house keys. Ms Shelembe’s version was that he was not
in the truck but on foot when she first saw him and that he never
uttered a word to anyone.
[51]
Critically, the alleged struggle between
the deceased and the accused had two iterations. The first was that
the deceased drew a
knife and during a struggle that then eventuated,
the accused managed to pry the knife away from him and stabbed him.
That version
changed when the accused himself testified. Now, the
knife had not been produced by the deceased at all nor had there been
a struggle
to pry it from his grasp. Instead, the knife fell to the
ground from his trousers. Thus, it had never been produced at all by
the
deceased, let alone used by him against the accused.
[52]
The most remarkable aspect about the
version testified to by the accused regarding the stabbing of the
deceased, given his defence
of private defence, is that not once did
the accused state that he held the view that his life was under
threat. He never described
any physical attack more serious than a
blow to his left ear and his left eye.
[53]
The accused appeared to make his evidence
up as he went along. He initially adhered to the version that the
deceased was still alive
when he, the accused, left the scene. Later
he stated that he knew the deceased had died. Asked how he knew this
he conjured up
the telephone call that he received from Mr Mkhwanazi,
already discussed previously in this judgment. That evidence was far
from
convincing, and created the impression that it had been offered
up to extricate the accused from a difficulty of his own making.
[54]
Rather than offer convincing facts that
would support his version, the accused preferred to apologise for his
conduct. An apology
is not usually an exculpatory way of explaining
something. Despite the magnitude of what he was accused of, at one
stage the accused
expressed his sorrow that someone had been injured.
Of course, that is not the reason that he stands trial. He is not
charged with
injuring the deceased: he is charged with killing him.
[55]
The accused appeared to advance the version
that he came upon Ms Shelembe and the deceased by chance on the day
that the deceased
died. He had an interest in advancing this version
because if it was accepted it might dispel any possibility that he
intentionally
set out to kill the deceased on that day. He may have
taken strength in advancing this version from the wording of the
summary
of substantial facts put up with the indictment by the state.
That summary makes a
similar allegation, when it states that the accused ‘coincidentally’
met the deceased on the morning
that he killed him. The wording
employed by the state in the indictment is unfortunate for at the
same time it is also alleged
therein that prior to killing the
deceased the accused had gone to the home of Ms Gumbi to learn of the
address of the deceased.
Why the state should hold the view that the
death of the deceased was not intended to occur on 22 September 2023
is not clear to
me. In the view that I take of the matter, there is
no evidence of any ‘coincidence’. Prior to acting, the
accused
took steps to find out where the deceased lived. Three days
later, at an early morning hour he was at that very address which was
a long way from where he, the accused, resided. He was thus in the
place he wanted to be at the time that he planned to be there.
Nor
can there be any room for coincidence in the version of Ms Shelembe:
on that version, the accused was already out of his truck
and in the
road that she and the deceased stepped into as they left the
deceased’s home. That can only have occurred if the
accused was
waiting for them to emerge. Finally, even on the accused’s own
version there is no room for coincidence. It is
common cause that he
resides in uMhlathuze. He testified that he was required to upload
river sand that morning at uMhlathuze.
Why was he then some 25
kilometres from uMhlathuze at that very early morning hour? He could
only have been there by design. Chance
had nothing to do with him
encountering the deceased and Ms Shelembe.
[56]
The accused was an unsatisfactory witness
whose version cannot be relied upon or accepted. Where it diverges
from the evidence of
Ms Gumbi and Ms Shelembe, it is rejected. The
specific defence raised by the accused of private defence accordingly
cannot be sustained.
It fails at the first hurdle. The accused was
not the person that was attacked: he was the attacker.
Private
defence cannot be raised where the person pleading it was the initial
aggressor for it is in its essence a defence to an
attack initiated
by the true aggressor.
[57]
As
to the killing of the deceased being premeditated, the evidence of Ms
Gumbi is an important component in the state’s case
against the
accused. It shows that three days before he acted, he was planning on
delivering a ‘surprise’ to the deceased.
In other words,
he had already conceived of a plan to do something about the
deceased’s involvement with his former paramour.
Mr Ngubane
drew my attention in argument to
S
v Raath
.
[12]
In that matter Bozalek J considered what a premeditated murder is:
‘
The
Concise Oxford English Dictionary, 10th edition, revised, gives the
meaning of premeditated as to “think out or plan beforehand”
whilst “to plan” is given as meaning “to decide on,
arrange in advance, make preparations for an anticipated
event or
time”. Clearly the concept suggests a deliberate weighing up of
the proposed criminal conduct as opposed to the
commission of the
crime on the spur of the moment or in unexpected circumstances. There
is, however, a broad continuum between
the two poles of a murder
committed in the heat of the moment and a murder which may have been
conceived and planned over months
or even years before its execution.
In my view only an examination of all the circumstances surrounding
any particular murder,
including not least the accused’s state
of mind, will allow one to arrive at a conclusion as to whether a
particular murder
is “planned or premeditated”. In such
an evaluation the period of time between the accused forming the
intent to commit
the murder and carrying out this intention is
obviously of cardinal importance but, equally, does not at some
arbitrary point,
provide a ready-made answer to the question of
whether the murder was “planned or premeditated”.’
[58]
I have considered all the evidence and weighed it up. I am
ineluctably driven to conclude on the strength of the evidence of Ms
Gumbi that the killing of the deceased by the accused was
premeditated.
[59]
In the circumstances, the accused is found guilty as charged.
MOSSOP J
APPEARANCES
Counsel
for the state:
Mr
C Ngubane
Instructed
by:
Director
of Public Prosecutions
Pietermaritzburg
Counsel
for the three accused:
Mr
D Mkhwanazi
Instructed
by:
Legal
Aid South Africa
Empangeni
Date
of trial:
18,
19, 20, 25 March 2024
Date
of judgment:
26
March 2024
[1]
She had commenced working at the petrol station in June 2023.
[2]
Ehrke
v S [2012] ZAGPPHC 189 para 12.
[3]
SV
Hoctor Snyman’s Criminal Law 7 ed (2020) at 86-88.
[4]
SV
Hoctor Snyman’s Criminal Law 7 ed (2020) at 88-94;
Botha
v S
[2018]
ZASCA 149; [2019] 1 All SA 42 (SCA); 2019 (1) SACR 127 (SCA) para
10.
[5]
S
v Ntuli
1975 (1) SA 429
(A) at 436E;
Mugwena
and another v Minister of Safety and Security
2006 (4) SA 150
(SCA) at 157J-158D.
[6]
S
v Ntuli
supra at 437.
[7]
R
v Patel
1959 (3) SA 121 (A).
[8]
Holmes
AJA quoting from
Union
Government (Minister of Railways & Harbours) v Buur
1914 AD 273
at 286.
[9]
S
v De Oliveira
1993
(2) SACR 59
(A)
at 63H-64A.
[10]
R
v Difford
1937
AD 370
at 373 and 383.
[11]
S
v
Mahlangu and another
2011
(2) SACR (SCA) 164.
[12]
S
v Raath
2009 (2) SACR 46
(C) para 16.