Thibakgoana v S (A133/2021) [2022] ZAFSHC 56 (15 March 2022)

85 Reportability

Criminal Law

Brief Summary

Criminal Law — Appeal — Private defence — Appellant convicted of murder and sentenced to 10 years imprisonment; State conceded on appeal that conviction could not be supported — Appellant claimed he acted in self-defence during an altercation with the deceased who was armed with a knife — Evidence from State witnesses was inconsistent and contradictory, failing to prove the case beyond reasonable doubt — Court found that the trial court misdirected itself by not adequately addressing the contradictions in the evidence and the prosecutor's concession — Appeal upheld, conviction and sentence set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal to the Free State High Court, Bloemfontein, against a conviction and sentence imposed by the Regional Court, Wesselsbron. The appellant, Thapelo Thibakgoana, had been convicted of murder and sentenced to 10 years’ imprisonment on 28 April 2021. The respondent was the State.

Leave to appeal was granted on 28 July 2021. At the hearing of the appeal on 14 March 2022, counsel for both parties agreed that the matter could be determined on the papers, and the court ordered—under section 19(a) of the Superior Courts Act 10 of 2013—that the appeal be disposed of without oral argument. Judgment was delivered on 15 March 2022.

The dispute concerned whether, on the evidence, the appellant’s conduct fell within private defence (self-defence), and whether the State had proved guilt beyond reasonable doubt in light of material contradictions in the State’s case and the prosecution’s concession at trial.

2. Material Facts

The High Court approached the matter on the basis that the determinative facts were those relevant to the appellant’s reliance on private defence, and the State’s ability to disprove that defence beyond reasonable doubt.

It was common cause in the evidence that an altercation occurred after the appellant and the deceased left a tavern, culminating in the deceased being stabbed. The court accepted as materially significant that, on the version advanced through the evidence (including State testimony), the appellant was alone, whereas the deceased was accompanied by friends who were present during the incident.

On the State evidence as analysed on appeal, it emerged that the deceased had obtained a knife during the altercation. The second State witness (JM Segopa) testified that the deceased requested a knife from him at a stage when the altercation and chase were already in progress, and further testified that the deceased was trying to stab the appellant when the stabbing occurred. The witness described observing the deceased with his hand up and attempting to stab, and confirmed that the deceased was in possession of a knife.

The first State witness’s evidence included that the deceased and appellant walked together after leaving the tavern, that an altercation then occurred, and that the appellant ran away from the deceased. The High Court treated it as significant that parts of the first witness’s account were materially contradictory, including on the issue of whether the deceased’s life was in danger when he sought the knife.

A contested factual issue relevant to the private defence enquiry was whether the appellant’s knife was closed until they reached a particular location (referred to as “the Church”), and whether the appellant only opened or used the knife when faced with the deceased’s attempted stabbing. The High Court held that, on the probabilities and applying the benefit of doubt, the appellant was entitled to have his version accepted as reasonably possibly true on this point.

The High Court also noted, as part of the contextual facts considered by the trial court, that bottles and stones were thrown during the incident and that the appellant was not injured by them. The appeal court treated the trial court’s reliance on this feature (including a comment that the appellant was “lucky” not to have been injured) as insufficiently grounded given the motion of the parties and the consumption of alcohol over hours, which could explain inaccurate throwing.

3. Legal Issues

The central legal question was whether the appellant’s conviction for murder could stand where the evidence raised private defence, and where the prosecution itself had submitted at trial that the State had failed to prove guilt beyond reasonable doubt and that the appellant appeared to have acted in self-defence.

This required the court to determine a mixed question involving the application of law to fact: whether the proven (and/or reasonably possibly true) facts satisfied the requirements of private defence and, correspondingly, whether the State had discharged its burden to negative private defence beyond reasonable doubt.

A further issue concerned the permissible scope of appellate interference with the trial court’s findings: whether the regional magistrate had misdirected themself in evaluating the evidence—especially the contradictions in the State witnesses’ testimony and the effect of the second State witness’s evidence—such that the High Court was entitled to interfere with the conviction.

4. Court’s Reasoning

The High Court began by recording that, in the heads of argument on appeal, the State conceded that the conviction could not be supported. It further relied on the prosecutor’s address on the merits at trial, where the prosecutor acknowledged that the State witnesses were inconsistent and contradictory, and submitted that the evidence showed an imminent threat to the appellant, including that the deceased had a knife and attempted to stab the appellant. On that basis, the prosecutor had submitted that the State failed to prove its case beyond reasonable doubt and that the appellant acted in self-defence. The appeal court stated that, having read the record and considered the evidence, the prosecutor’s submissions were “beyond any doubt correct”.

On the substantive law of private defence, the court relied on S v Trainor 2003 (1) SACR 35 (SCA), including the requirement of a reasonable relationship between the attack and the defensive act, assessed contextually with reference to factors such as the nature of the threat, the means available to the parties, and whether less harmful means to avert the attack were available at the crucial moment. The court framed this as the governing standard for evaluating whether the appellant’s conduct exceeded what was necessary to repel the attack.

Turning to the evidence, the High Court emphasised that the State witnesses showed signs of bias in favour of the deceased and that their efforts to favour him produced contradictions and improbabilities that were material. It considered that these contradictions were grave and could not be ignored. The court treated the testimony of the second State witness as particularly important because it corroborated the appellant’s version that the deceased was attempting to stab him, thereby supporting the appellant’s reliance on private defence.

The High Court then addressed the appellate standard for interfering with trial findings. It referred to R v Dhlumayo and Another 1948 (2) SA 677 (A) for the principle that an appeal court interferes where there has been a misdirection or where the trial court was clearly wrong, recognising the trial court’s advantage in observing witnesses. It also referred to S v Pistorius 2014 (2) SACR 315 (SCA) (with reference also to S v Kebana 2010 (1) All SA 310 (SCA)) to reaffirm that an appeal court should be slow to interfere with credibility findings absent a clear basis for concluding the trial court was wrong on the conspectus of the evidence.

Applying these principles, the High Court held that interference was warranted because the court a quo failed to deal meaningfully with the contradictions in the State’s evidence and, in particular, failed to engage with the implications of the second State witness’s evidence for the appellant’s version. This omission was considered especially serious given the prosecutor’s concession at trial that the State had not proved the case beyond reasonable doubt and that the appellant appeared to have acted in self-defence.

The High Court criticised the trial court’s focus on peripheral considerations, such as the appellant’s powers of observation in the tavern and the trial court’s reasoning that it was improbable because the appellant was “lucky” not to have been struck by thrown objects. The appeal court held that this overlooked the dynamics of the incident (the parties being in motion) and the likelihood that alcohol consumption affected accuracy.

Finally, the High Court applied the fundamental criminal law principle that the onus rests on the State to prove guilt beyond reasonable doubt. Where an accused’s version is reasonably possibly true, an acquittal must follow. On the court’s assessment, the appellant’s version met that threshold, with the result that the conviction and sentence could not stand.

5. Outcome and Relief

The appeal succeeded. The High Court set aside both the conviction for murder and the sentence of 10 years’ imprisonment.

No separate order as to costs was recorded in the judgment.

Cases Cited

S v Trainor 2003 (1) SACR 35 (SCA).

R v Dhlumayo and Another 1948 (2) SA 677 (A).

S v Pistorius 2014 (2) SACR 315 (SCA).

S v Kebana 2010 (1) All SA 310 (SCA).

S v Steyn 2010 (1) SACR 411 (SCA).

S v Engelbrecht 2005 (2) SACR 41 (W).

Legislation Cited

Superior Courts Act 10 of 2013, section 19(a).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court’s evaluation of the evidence was materially deficient, particularly because it failed to engage with significant contradictions in the State case and failed to weigh the second State witness’s testimony, which supported the appellant’s version that the deceased attempted to stab him. In the context of the prosecutor’s concession that the State had not proved its case beyond reasonable doubt, the appellant’s version of private defence was reasonably possibly true. Consequently, the conviction and sentence were set aside.

LEGAL PRINCIPLES

Private defence requires a reasonable relationship between the attack and the defensive act, assessed with reference to the circumstances, including the means available to the parties, the nature of the threat, and whether less harmful conduct could have averted the attack without unnecessary harm to the attacker.

In a criminal trial, the State bears the onus to prove guilt beyond reasonable doubt. Where an accused’s version is reasonably possibly true, the accused is entitled to an acquittal.

An appellate court will generally be slow to interfere with credibility and factual findings by a trial court because of the trial court’s advantage in seeing and hearing witnesses, but interference is justified where there is a clear misdirection or where the trial court’s conclusions are shown to be wrong on a conspectus of the evidence.