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[2022] ZAECGHC 3
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S v Ntshaba (57/2022) [2022] ZAECGHC 3 (7 February 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, GRAHAMSTOWN)
Not Reportable
Case no: 57/2021
Date heard: 01
February 2022
Date delivered: 07
February 2022
In the matter between
THE STATE
and
THEMBA
NTSHABA
ACCUSED 1
NONCEBA
KWAKWA ACCUSED
2
NOSAKUTHETHWA
FANISO
ACCUSED 3
JUDGMENT
GOVINDJEE,
J
Background
and evidence
[1]
Zukile Kewu
(the deceased) was a teetotaller working for a farmer (Bezuidenhout)
who abhorred alcohol. On 31 October 2020 he joined
some of his
colleagues, including all three accused, as they socialised and drank
at the residence of Kwakwa. When he returned
to his home, at least
some of those in attendance decided that he was likely to inform
Bezuidenhout that employees were drinking
on the farm. Their response
was to decide to kill him. With a pair of shorts over his face,
tripped and pinned to the ground, Ntshaba
slit his neck with a knife
in the presence of the other accused. The resultant 10 cm deep cut or
stab through the anterior neck
and airway was fatal.
[2]
The accused
are charged with planned and / or premeditated murder, it being
alleged that they acted in execution or furtherance
of a common
purpose in unlawfully and intentionally killing the deceased. Ntshaba
and Kwakwa pleaded guilty and, while their pleas
were not accepted by
the State, made a series of admissions in terms of
s 220
of the
Criminal Procedure Act, 1977
. Their subsequent testimony confirmed
their roles in the murder. Ntshaba had been under the influence of
liquor but not so heavily
intoxicated that he could not remember the
events of that evening. He was aware of the consequences of his
actions when he cut
the deceased’s throat and killed him
without justification. Kwakwa had acted with common purpose by
assisting to trip the
deceased and holding his legs together, tight
against the ground, while he was killed by Ntshaba.
[3]
The reason for
Ntshaba’s and Kwakwa’s conduct was their concern that the
deceased would inform Bezuidenhout that they
had been drinking
liquor. Both explained that Faniso had been part of the plan from its
inception at Kwakwa’s home. Ntshaba
had suggested that the
deceased should be killed and Kwakwa had ascertained from Ntshaba and
Faniso whether they were certain that
they could see this through,
which they had both confirmed. It was Faniso that had later placed
the pair of shorts over the deceased’s
head, before holding his
upper body while he was on the ground and during the time he was
stabbed. Her participation, according
to both of them, had been
voluntary.
[4]
Faniso
made a statement to Captain J Klaas on 21 July 2021, seemingly
admitting to a role in the deceased’s death.
[1]
Klaas testified that the statement was made freely and voluntarily,
with Faniso seemingly at ease. He allowed her to tell her story
in
isiXhosa, a language with which they were both fluent, and then
attempted to write down everything said before reading this
back to
Faniso prior to finalisation. That statement confirmed that Faniso
had been drinking with Ntshaba, Kwakwa and a lady named
Teyase at
Bezuidenhout’s farm. She had not been drunk. The deceased had
been present and was not drinking alcohol. When he
returned to his
house, Kwakwa suggested that he should be killed. This was because
the deceased was friendly with a lady named
Gcobisa, who was
competing with Kwakwa for the affections of Bezuidenhout. Kwakwa
promised to pay the others an unspecified sum
of money. Teyase was
too drunk to participate in the murder and was asked to keep Faniso’s
baby. The accused proceeded to
the home of the deceased. Faniso was
carrying a pair of Kwakwa’s shorts and used this to cover the
deceased’s face
while he was talking on his phone. Ntshaba and
Kwakwa brought him down. Ntshaba placed his foot on the deceased’s
neck and
Kwakwa held his hand so that he could not move. Faniso was
holding the door so that the deceased could not exit. Ntshaba then
took
out a knife and cut the deceased’s throat. The accused
returned to Kwakwa’s house and continued drinking. When it was
suggested that the deceased’s home should be burned in order to
hide the evidence, Faniso disagreed, indicating that they
might be
seen. Bezuidenhout then entered, searching for the deceased.
[5]
The statement
also reflects that Faniso denied knowledge of the deceased’s
death the following morning when questioned by
Bezuidenhout. Kwakwa
advised her to flee to Lesotho to avoid arrest. Faniso’s
statement included the words ‘After I
killed Whitey exact date
unkown…’. She was later assisted by Kwakwa’s
children and others to avoid arrest and
was given money to return to
Lesotho. She returned to South Africa to find work during January
2021 and was then arrested.
[6]
Klaas was an
excellent witness. He was based at Elliot and had neither been
involved in the investigation of the crime, nor informed
of any
related background facts. Faniso had never made any mention of being
threatened to participate in the murder at the time
she made her
statement. Had she done so, this would have been recorded. She
understood what had been recorded and had agreed to
the contents of
the statement before signing each page.
[7]
Mr Solani,
counsel for Faniso, did not challenge the admissibility of the
statement into evidence, accepting that it had been made
freely and
voluntarly. Instead, it was argued that the statement was incomplete
and incorrect in material respects. Faniso’s
version of events
was then put to Klaas, who denied not recording her statement
properly. Klaas was emphatic in respect of the
suggestion that Faniso
had been forced into participation. The word ‘force’ was
important to him and would have been
carefully recorded. He had
listened carefully at the time the statement was recorded and it was
only during cross-examination that
a suggestion of ‘force’
had emerged. Faniso had also been given the opportunity to advise
Klaas if the statement he
had recorded was incorrect.
[8]
Her testimony
was markedly different. Kwakwa had wanted to kill the deceased
because he would inform Gcobisa about what had been
discussed. Faniso
had expressed her fear that they would be arrested if they did so.
Kwakwa reassured her that other killers who
were arrested would
return from prison. She was criticised by the others as being too
‘forward’ and instructed that
everybody present would go
together to commit the murder. Faniso believed that she might also be
killed. She had seen Kwakwa take
out a knife from a drawer and a pair
of shorts from a wardrobe. She and Ntshaba were aggressive and kicked
Teyase, who was intoxicated
and seated on the steps, indicating that
they would return for her. The only words spoken to Faniso at this
point prior to departure
was that nobody would remain, spoken in an
aggressive manner. Faniso felt forced and accompanied the other
accused because she
was afraid of dying. She was told to lead the
way. On Faniso’s version, she had been instructed to push open
the deceased’s
door. Kwakwa had taken a seat near the stove and
then given the pair of shorts she had carried to Faniso, instructing
her to cover
the deceased with this. While doing so, the deceased had
asked what was happening. She had remained quiet. He later screamed
that
Faniso should call Bezuidenhout. She replied that she could not,
as she would also be killed along with Teyase. She was instructed
to
stand at the doorway, to prevent dogs from entering, and had never
held the deceased while he was being murdered.
[9]
Faniso later told
Bezuidenhout that she did not know what had happened. This was based
on Kwakwa’s instruction that nothing
should be said about the
incident. She later lied to him by indicating that Ntshaba and the
deceased were at the tar road. This
was based on Ntshaba’s
instruction. Faniso had been afraid to tell the truth about the
murder, even when she had the opportunity
to do so to Bezuidenhout
and the police. The other accused had subsequently laughed about the
deceased’s death. She and Teyase
had been given R500 each to
maintain their silence. The other accused had influenced her to leave
Ugie and make her way to Lesotho.
[10]
Faniso testified that it was due to
stupidity that she had not informed the police about what had
transpired, considering that she
believed she had done nothing wrong.
After her arrest, she had made a statement to Klaas and agreed to its
contents. He had erroneously
not recorded that she had been forced to
accompany the other accused to the house of the deceased.
Applicable law
[11]
If
two or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, the conduct of
each of
them in the execution of that purpose is imputed to the others. The
crucial requirement is that the persons must all have
had the
intention to murder and to assist one another in committing the
murder. Once that is proved, the conduct of the person
who actually
administered the fatal blow is imputed to other parties to the common
purpose who actively associated themselves with
its execution. A
prior conspiracy is not necessary for this outcome and the common
purpose may also arise spontaneously. The operation
of the doctrine
does not require each participant to know or foresee in detail the
exact way in which the unlawful result will
be brought about.
[2]
[12]
It
is the individual accused’s ‘active association’
with the common purpose that forms the basis for the doctrine.
That
notion is wider than that of express or implied agreement. It is
accepted that if there is proof of a previous agreement between
the
participants, the inference that each participant associated herself
with the others is relatively easily made. In the absence
of a
previous agreement, other requirements must exist.
[3]
The mere fact that a person happens to be present at the scene of a
crime and was a passive spectator of the events cannot serve
as a
basis for holding her liable for the crime that has been
committed.
[4]
A person might
also negative liability by having the clear and unambiguous intention
to withdraw from the common purpose and by
voluntarily performing
some positive act of withdrawal before the commencement of the
execution. No ground of justification can
exist in the absence of
objective factors, and a person’s conduct remains unlawful if
she subjectively thinks that there
is a ground of justification
whereas in fact there is none.
[5]
[13]
One
of the grounds of justification is necessity from compulsion.
[6]
A person acts in necessity, and her act would be lawful, if she acted
in protection of her or somebody else’s life or bodily
integrity when this was endangered by a threat of harm which had
commenced or was imminent and which cannot be averted in another
way.
It has been held that ‘compelled’ in this context refers
to exposure to ‘a motive at once terrible and exceedingly
powerful’.
[7]
A person
pleading necessity must be faced with a situation of emergency. The
emergency must already have begun or be imminent.
It must not have
terminated, nor be expected only in the future.
[8]
There must be strict compliance with various requirements before the
defence can be successful.
[9]
A
person must, for example, be aware of the threats and believe that
they will be executed.
[10]
A
person who is able to avoid the threat or danger by fleeing must do
so and, if possible, seek police protection.
[11]
Has the state proved
murder with common purpose?
[14]
Murder is the unlawful and intentional
causing of the death of another human being. Ntshaba and Kwakwa have
admitted their guilt,
testified to that effect and offered no
defence. I have specifically considered the possible effect of
voluntary intoxication on
their conduct. I am satisfied, based on
consideration of his admitted conduct, that their mental abilities
and conception of the
material circumstances surrounding the act were
not affected to the extent that their intoxication can operate in
their favour
at this stage of the enquiry. The state has proved
beyond reasonable doubt that, despite his consumption of liquor,
Ntshaba is
guilty as charged of unlawfully and intentionally causing
the deceased’s death by cutting his throat with a knife. The
state
has also proved beyond reasonable doubt that Kwakwa acted in
common purpose with Ntshaba and is guilty of murder.
[15]
As
indicated, Faniso’s statement contradicted the versions of
Ntshaba and Kwakwa and was at variance with her own statement
to
Klaas. The court must treat the self-contradiction with
circumspection, also bearing in mind that the statement to Klaas was
not obtained by way of cross-examination.
[12]
In this instance there were no language differences between Faniso
and Klaas to contribute to an incorrect recording of what was
intended. The court must also consider that not every error or
contradiction necessarily affects credibility.
[13]
The contradictory versions must still be evaluated in the context of
all the evidence. This includes determining the proved reasons
for
the contradictions, the actual effect of the contradictions on
credibility or reliability, as well as the quality of any
explanations,
together with the relationship between the
contradictions and the rest of the evidence.
[14]
The question to be answered is whether Faniso’s evidence is
trustworthy and whether, despite any shortcomings, defects or
contradictions in that testimony, the truth has been told.
[15]
[16]
Ntshaba and Kwakwa were both good
witnesses, testifying honestly about their involvement. They had no
apparent reason to implicate
Faniso, who noted that Kwakwa had been a
mother-figure to her. Their evidence was clear that the agreement to
kill the deceased
had been tripartite, including Faniso, and without
any compulsion for her to participate. Much of her signed statement
accords
with that reality, the main difference being the suggestion
that Kwakwa had hatched the plan based on her intention to kill
Gcobisa.
Significantly, there is no suggestion of any force, fear or
necessity in her interactions with the other accused.
[17]
That version emerged only during Faniso’s
testimony and was shaken under cross-examination. Faniso could not
explain why she
had not utilised any number of subsequent
opportunities to explain, either to Bezuidenhout, the police or a
family member, that
she had operated out of fear or compulsion. She
could only acknowledge that it was stupidity not to have done so
given her proclaimed
innocence. Faniso repeatedly testified that her
life, and that of her child, was in danger, but could only raises the
other accused’s
tone of voice and demeanour at the time, and
that Teyase had been kicked, to support this. Her version that Kwakwa
only told her
to cover the deceased’s face with the pair of
shorts when they were already inside his home is highly improbable.
When these
shortcomings are considered together with the strength of
Klaas’ testimony, I have no hesitation in concluding that he
accurately
recorded what she had told him at the time, including the
various admissions she made.
[18]
Her reasons for departing from that
statement at the trial are apparent. Faniso attempted to sketch a
picture of somebody fearing
for her life and that of her child, but
this is simply not borne out by the other evidence, particularly her
own recollection of
the extent of the threat directed towards her,
and her subsequent conduct. It is improbable in the extreme that she
would not have
said something of the truth either to Bezuidenhout,
the police or a family member, once she was safely away from Ntshaba,
had she
really been acting out of necessity. To frame her signed
statement without reference to this compulsion is simply unthinkable
if
that was really what had happened. The statement recorded by Klaas
would have made that clear, or at least made some allusion to
the
allegation, if she had said anything along those lines. Faniso
conceded that many of the statements recorded in her statement
were
indeed an accurate reflection of what she had said. Klaas, being
uninvolved with the investigation and unaware of the circumstances
surrounding the matter, would have had absolutely no basis to omit
anything said by Faniso.
[19]
While Faniso tried to maintain her stance
during her testimony, she improvised on occasion and did not display
the demeanour of
somebody speaking truthfully at all times. Some of
her remarks during cross-examination were particularly telling. For
example,
she confirmed that Kwakwa had ‘suggested’ that
they should proceed to the deceased’s house, rather than
indicate
any threat prior to their departure. She resorted to
explaining that it was the manner in which the suggestion had been
put that
inspired her fear, together with the suggestion that Teyase
would be ‘dealt with’ later. She also testified that she
had expressed her fear of being caught by the police, rather than her
fear of personal injury or harm to her child, to her co-accused.
The
response received, that criminals frequently return from jail, seemed
to satisfy her concern. She later accepted that she could
have left
the scene before the crime had been committed, but failed to do so.
Rather than being under pressure, she had also had
no difficulty in
participating in the deliberations with the other accused. On her own
version, it was Faniso who had told th others
that the deceased’s
home should not be burnt.
[20]
That the statement contains no mention of
actions caused by force or necessity is deafening confirmation of the
reality that emerges
from consideration of this evidence in its
totality. Faniso did not act under force or out of necessity to
protect herself or her
child. She was part of the tripartite
agreement to kill the deceased. She left her child with Teyase
voluntarily and accompanied
her fellow accused to the deceased’s
home without being made to do so. In fact, and bearing in mind the
improbability of
being given the pair of shorts inside the home of
the deceased, I accept that she left Kwakwa’s house with this
item, intending
to use it in the manner she did. She subsequently
made no attempt to distance herself from the undertaking and actively
participated
by placing the pair of shorts over the deceased’s
face. While I accept that this may have been at Kwakwa’s
suggestion
at the time, I am unable to accept that Faniso did so
under compulsion based on any real, reasonable or substantial fear. I
further
accept that she was part and parcel of tripping and holding
the deceased while he was killed.
[21]
There
was simply no emergency situation created by either Ntshaba or Kwakwa
that necessitated or compelled this conduct, and I accept
their
testimonies in that respect, having applied the necessary caution in
evaluating the evidence of accused persons testifying
against a
co-accused.
[16]
Faniso’s
conduct in failing to even mention something of this version to
Bezuidenhout, when she was alone with him, the police
or a family
member points to the same result. Neither Faniso nor her child was in
mortal danger due to compulsion, so as to justify
her participation
in the crime. Her version that this was the reason for her conduct is
not reasonably possibly true. While Faniso’s
plea explanation
suggested that she had been threatened with a knife by Kwakwa, her
evidence made no mention of this at all. Bezuidenhout’s
evidence confirms that Faniso had not looked threatened when he saw
her a short time thereafter and when she lied about Ntshaba’s
whereabouts and indicated that he was with the deceased at the tar
road. Even if there had been some threat, which I reject, Faniso
could have run away from the situation at some stage before the act
was completed. Similarly, the suggestion that because the deceased
called out her name because she was not involved in killing him is
far-fetched. Even if that had been the case, the deceased would
not
have known of her innocence at the time, particularly since she had
actively participated by placing the pair of shorts over
his head.
Her version to that effect is not reasonably possibly true. In all
the circumstances, and having carefully considered
the evidence in
its totality, I conclude that the state has succeeded in proving
beyond reasonable doubt that Faniso is also guilty
of the crime of
murder, acting intentionally and unlawfully in furtherance of a
common purpose. Given the overwhelming evidence
of this, it was
unnecessary for the state to call Teyase as a witness and I am
disinclined to draw an adverse inference from their
failure to do so.
She could, in any event, have been called by the defence if her
testimony was crucial to their case.
[22]
It might be added that Bezuidenhout’s
testimony that he had heard Ntshaba request Faniso to call him cannot
be accepted. He
was some distance away and testified that he would
not have heard shouting from inside the home of the deceased. The
probabilities
favour that it was the deceased that had called out,
begging for his life and calling the accused by name, and that
Bezuidenhout
had only heard distant shouting. Ntshaba confirmed that
it was the deceased that had cried out, calling all of their names
and
asking why they were doing this. While it may be accepted, based
on his testimony and that of Kwakwa, that Kwakwa had grabbed him
and
tore his T-shirt after he had pushed her, their relationship had
ended some time ago. I remain satisfied that the decision
to kill the
deceased had nothing to do with jealousy on the part of Kwakwa, but
rather the accused’s concern that he would
tell Bezuidenhout
that they had been drinking.
Was the murder
‘planned or premeditated’?
[23]
The
prosecution has the burden to prove beyond reasonable doubt that a
murder was planned or premeditated.
[17]
Despite its clear link with the sentencing regime, judgments have
confirmed that this is an issue that must be dealt with during
judgment on the merits.
[18]
There is a difference between weighing-up proposed criminal conduct
and committing murder on the spur of the moment or in unexpected
circumstances.
[19]
This
requires an examination of the state of mind of each of the accused
and consideration of the period of time between them forming
the
intent to commit the murder and carrying out this intention. To put
it differently, it may be asked whether the decision to
murder and
the steps taken to commit this murder were, in terms of time, place
and circumstance so closely connected that the steps
taken –
far from indicating advance or prior planning – were mainly the
immediate result of, and part and parcel of,
the earlier decision to
murder.
[20]
[24]
While
I accept that the accused discussed an idea to visit the house of the
deceased and kill him, matters seem to have proceeded
on an
accelerated basis thereafter.
[21]
Although there is no direct evidence as to how much time actually
passed between the decision to kill the deceased and the actual
deed,
the period does not appear to have been lengthy. I accept that Kwakwa
questioned whether the others were committed to the
idea, that
Ntshaba then picked up the knife, the child was handed to Teyase and
the accused walked to the deceased’s house.
The evidence
suggests that the houses were close by. His head was then covered, he
was tripped, held and killed. This all after
the heavy consumption of
alcohol and seemingly without rational consideration. The only
calculated attempt to increase the likelihood
of success was the pair
of shorts that accompanied the accused and was used to cover the face
of the victim.
[22]
To the
extent that there was an actual plan, this was rudimentary.
[23]
There was no overt attempt to evade detection or apprehension or
planned strategy as to how the deceased would be overpowered and
killed.
[25]
I
accept that Ntshaba conceived of the idea to kill the deceased and
armed himself for this purpose.
[24]
I am satisfied, on a conspectus of the evidence, that the real reason
for this was an alcohol-inspired irrational attempt to avoid
workplace strife by killing the deceased. The murder that followed
was callous and brutal, the deceased’s life needlessly
extinguished in a manner akin to an animal slaughter. Nevertheless, I
am unconvinced that the events may be said to be planned
or
premeditated and of the view that they were more likely impulsive and
spur-of-the-moment acts.
[25]
In coming to this conclusion on the facts, I am mindful of the
unanimous judgment of the Supreme Court of Appeal in
S
v Kekana
that premeditation does not necessarily require an accused to have
planned a killing over a long period of time.
[26]
In my view, it cannot be held that there was proof beyond reasonable
doubt of a pre-planned rationally thought-out scheme, designed
to
increase the likelihood of success or to evade apprehension.
[27]
Order
[26]
Accused no. 1, 2 and 3 are all found guilty
of the crime of murder.
A.
GOVINDJEE
JUDGE
OF THE HIGH COURT
Appearances:
Counsel for the
State:
Adv M Van Rooyen
Director of Public
Prosecutions
Makhanda
046 602 3000
Attorney for the Accused
1&2: Mr C Stamper
Legal Aid of South
Africa
Makhanda
046 622 9350
Attorney for the
Accused 3: Mr T Solani
Legal Aid of South
Africa
Makhanda
046 622 9350
[1]
On the admissibility of such statements,
see
s 219A of the Criminal Procedure Act, 1977 (Act 51 of 1977).
[2]
CR
Snyman
Criminal
Law
(5
th
Ed) (LexisNexis) (2008) 266.
[3]
S
v Mgedezi
1989
(1) SA 687
(A) at 705I-706C: 1) X must have been present at the
scene where the violence was being committed; 2) X must have been
aware
of the assault on Y by somebody else; 3) X must have intended
to make common cause with the person or persons committing the
assault; 4) X must have manifested his sharing of a common purpose
by himself performing some act of association with the conduct
of
the others; and 5) X must have intended to kill Y.
[4]
S
v Petersen
1989
(3) SA 420
(A) at 425A-B.
[5]
Snyman
supra
102. A putative ground of justification is one that does not legally
exist but which X wrongly believes to exist. It ‘exists’
in X’s imagination only and X mistakenly believes that her
conduct is covered by a ground of justification.
[6]
Necessity
can also serve to negative culpability.
This
would be the case if Z orders X to kill Y and threatens to kill X if
she fails to obey the command and X, fearing for her
life, kills Y.
The emergency situation results from the conduct of Z. Culpability
is excluded because, although X intentionally
and with awareness of
unlawfulness did wrong, the law could not fairly have expected the
average person in the same situation
to have avoided the wrongdoing.
Whether an acquittal can occur on a charge of murder on the ground
of compulsion depends on the
particular circumstances of each case,
requiring the entire factual complex to be carefully examined and
adjudicated upon with
the greatest of care:
Snyman
supra
at
245;
S
v Goliath
1972
(3) SA 1 (A).
[7]
S
v Damascus
1965
(4) SA 598
(SR) at 603.
[8]
Damascus
supra
at 601.
[9]
Snyman
supra
at 116.
[10]
In
Damascus
supra
,
at 600, Macdonald J held that ‘it is the reasonable fear
created by the threat and not the threat itself which must be
looked
at.’
[11]
Damascus
supra
at
603-604.
[12]
S
v Mafaladiso en andere
2003
(1) SACR 583
(SCA) at 593e-594h.
[13]
S
v Mkohle
1990
(1) SACR 95
(A) at 98f-g.
[14]
Ibid
.
[15]
S
v Sauls and others
1981
(3) SA 172 (A).
[16]
S
v Dladla
1980
(1) SA 526
(A) at 529.
[17]
S
v Mokgalaka
2017
(2) SACR 159
(GJ) para 27.
[18]
S
v Taunyane
2018
(1) SACR 163
(GJ) para 9.
[19]
S
v Raath
2009
(2) SACR 46
(C) para 16.
[20]
See
Du Toit et al
Commentary
on the
Criminal Procedure Act
(RS
65) (2020) ch 28-p18D-8. For detailed consideration of the
concept of ‘premeditated’ see
S
v PM
2014 (2) SACR 481
(GP) para 36.
[21]
See
Raath
supra
para 16. While consideration of the period of time between the
accused forming the intent to commit the murder and carrying out
this intention is of cardinal importance, it does not provide a
particular point or time that equates to a murder being ‘planned
or premeditated’.
[22]
Cf
S
v Kekana
[2014] ZASCA 158
para 14.
[23]
Raath
supra
para
18.
[24]
On
the relevance of the time spent between the collection of a weapon
and the actual murder, see
S
v Mokgalaka
2017 (2) SACR 159
(GJ) para 33.
[25]
See,
for example
S
v Jordaan and others
2018
(1) SACR 522
(WCC). It is clear that the test is not whether there
was an intention to kill, which is a factor to be considered in
determining
whether the killing was an act of weighed:
S
v Taunyane
2018 (1) SACR 163
(GJ) para 30.
[26]
2019
(1) SACR 1
(SCA) para 37.
[27]
See
Taunyane
supra
paras 30, 32.