Tiyane v S (A10/2021) [2021] ZALMPPHC 86 (3 December 2021)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2021
>>
[2021] ZALMPPHC 86
|

|

Tiyane v S (A10/2021) [2021] ZALMPPHC 86 (3 December 2021)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: A10/2021
In
the matter between:
SIMON
KHUZELA TIYANE

APPELLANT
And
THE
STATE

RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant was arraigned in the regional court held at Mankweng on
one count of murder read with
the provisions of section 51(2) of the
Criminal
Law
Amendment
Act
[1]
(CLAA). The appellant was legally represented throughout the
proceedings. He pleaded not guilty to the count he was facing and
elected
to remain silent. However, as the trial progressed, it came
to light that his defence was that of self-defence. The appellant was
found guilty of murder in circumstances that are found in Part 2
Schedule 2 of the CLAA, and was sentenced to 7 years’ imprisonment.
The appellant is appealing against conviction only, and the appeal is
with the leave of the court
a
quo.
[2]
At the commencement of the trial in the court
a quo,
the
appellant through his counsel admitted the chain evidence up to the
time the post mortem report was conducted, and the said documents
were handed in as evidence by consent between the appellant and
respondent.
[3]
The respondent’s first witness was Freedom Msiza. He testified that
on 20
th
August 2016 they were from a drinking place. On
arrival at the shack he was sharing with one Moses, he went to sleep.
As he was sleeping,
Moses came and woke him up and told him that
there was a fight that had started outside, and was requesting him
(witness) to intervene
and separate them. The witness went out of the
shack, and on arrival outside he saw the appellant carrying a bottle.
The witness
stood between the appellant and Walter (deceased). As the
witness was trying to separate the appellant and the deceased, he saw
the
appellant stabbing the deceased with a bottle of hunters dry on
his neck behind the ear and does not remember whether it was on the
right or left side.
[4]
After the deceased was stabbed, the witness went back to his shack
and told Moses that what was
happening outside was beyond his powers,
and that he was unable to separate them. The witness again went out
of his shack and walked
towards the gate. As the witness was about to
walk out of the gate, he saw that the deceased had fallen and was
leaning against a
fence. The witness went to the deceased and found
that he was bleeding or in a pool of blood. The appellant came to
where the witness
was with the deceased still carrying a broken
bottle. The witness tried to call the deceased by his name, but the
deceased was no
longer talking. The witness then phoned his employer
one Lawrence. They also phoned the paramedics and the police. On
arrival, the
paramedics certified the deceased dead on the scene.
[5]
The witness was cross examined and he conceded that at the time of
the incident it was at night
and dark outside. He further stated that
when he went out of his shack, he found 5 people outside who were the
appellant, deceased,
Vusi, Mpho and Rathleff. The witness further
stated that the first thing that he saw when he went outside was the
appellant and the
deceased talking to each other, and the appellant
was saying “yes somebody will die”, whilst Vusi, Mpho and
Rathleff were sitting
around the fire inside the yard. According to
the witness, after the appellant had uttered those words, a fight
ensued between the
appellant and the deceased. The witness tried to
intervene and when he saw that the appellant was having a bottle and
advancing towards
him, he shifted to the side and that is when the
appellant stabbed the deceased. After the deceased was stabbed, he
started bleeding,
ran out of the yard, and fell to the ground. The
witness could not tell whether the deceased fell as a result of
becoming weak or
because he had knocked a fence.
[6]
The witness conceded that in his written statement to the police, he
had stated that when he went
outside, he found the deceased and
appellant fighting, and the appellant was having a broken piece of
bottle in his hand and he wanted
to stab the witness with the bottle,
and the witness ran inside the house and left them outside.
[7]
The respondent’s second witness to testify was Johannes Mpho
Masilela. He testified that on 21
st
August 2016 on arrival
at the place that they were renting, they started cooking their food.
He was in the company of Vusi. After
they finished cooking, Rathleff
arrived and wanted to join them in eating. They told Rathleff to go
and wash his hands, and that
is when the appellant who was asleep
woke up. On waking up the appellant told Rathleff that these boys
must not get used to him,
and that he must just eat. The appellant
then hit the deceased with an open hand, and the deceased picked up a
brick and hit the
appellant with it on his leg.
[8]
After been hit with a brick, the appellant went back into the shack
he was sleeping in, took a windhoek
drought bottle and broke it. The
broken bottle went out of the appellant’s hand and fell down. The
appellant picked up another
bottle of hunter’s gold and broke it.
After breaking the hunter’s gold bottle, the appellant went behind
the shack to where the
deceased was. The witness followed the
appellant and when he arrived at the place where the appellant was
with the deceased, he noticed
that both the appellant and the
deceased were bleeding.
[9]
The witness ran to call their co-workers Vusi, Thabiso, James and
Freedom. When the witness came
back to where he had left the
appellant and deceased, he saw the deceased moving around the house
heading towards the gate. As the
deceased was about to reach the
gate, the deceased fell next to the fence. That is when the appellant
uttered the following words:
“I have indicated before that I will
kill one.” The witness saw that the deceased was bleeding around
his neck from a stab wound.
They then phoned the police and an
ambulance. When the paramedics arrived, they certified the deceased
dead on the scene.
[10]
The witness was cross examined in relation to the discrepancies in
his two police statements and the oral evidence
tendered in the court
a quo
.
[11]
Leseka Mathews Mashamaite testified as the respondent’s third
witness. He testified that he was the investigating
officer in that
matter. That on 21
st
August 2016 he went to the scene of a
murder crime in the company of constable Masetla. On arrival at the
scene they found W/O Makhoga
and constable Marokane. The crime scene
was already cordoned with a police tape, and the onlookers were also
at the scene. The crime
scene was at a place where it was rented out
to the construction people.
[12]
At the scene, the witness saw a male person lying on the ground on
his back facing up, and with his head leaning
against a fence. That
person had an open wound on his neck and his chest was full of blood.
However, the witness could not remember
whether the wound was on his
left or right side of the neck. There was also blood on the ground
leading to the house, and also at
the fireplace which was outside the
house.
[13]
The witness was cross examined and he conceded that in the
appellant’s warning statement he had recorded
that the appellant
had an open wound on the right hand side of his head, swollen on the
upper lip and right finger. The witness also
conceded that he had
noticed the injuries on the body of the appellant, and that the
appellant told him that he had sustained those
injuries as a result
of assault by the deceased with bricks. That concluded the evidence
of the respondent and it closed its case.
[14]
The appellant took the witness stand and testified under oath. He
testified that on the night of the 21
st
August 2016 he was
in his rented shack. Whilst there, many gentlemen came and prepared
fire outside the house. These gentlemen were
also renting rooms at
that yard and were drunk. After preparing fire, these gentlemen
started preparing their food. Whilst the appellant
was in his shack
sleeping, he heard noises coming outside as if people were fighting.
[15]
The appellant went outside to go and check what was happening, and he
found Radcliff fighting with the deceased.
He went to separate the
two from fighting each other. As he was separating them, Freedom and
Vusi came and held the appellant’s
both hands and stretched them to
his back. As he was held by Vusi and Freedom, the deceased started
assaulting the appellant with
bricks. The appellant became dizzy and
fell to the ground. After falling, he stood up, went to his shack and
found a bottle. He took
that bottle and went out of his shack. When
he got out of his shack, he found that the people were running out of
the yard to the
street.
[16]
The appellant followed the people who were running. As he was
following them, he found the deceased lying on
the ground next to the
fence. He asked the people who were there as to what had happened,
and they told him that the deceased was
cut by the fence. However,
Vusi replied by saying that the deceased was assaulted and killed by
Radcliff. The appellant told the
people who were next to the deceased
that fighting was not going to help them, and that they should rather
phone the police. The
said people told the appellant not to phone the
police but to rather phone the paramedics. Those people phoned the
paramedics whilst
the appellant phoned the police. Those people told
the appellant that when the police arrive, they are going to point at
him as the
one who had killed the deceased. The paramedics were the
first one to arrive at the scene, and on their arrival they certified
the
deceased dead on the scene.
[17]
When the police arrived at the scene, indeed those people told the
police that the appellant was the one who
had killed the deceased.
The police told the appellant to take off his shirt as it was blood
stained, and thereafter they arrested
him. The appellant stated that
when the police officer took his warning statement, he showed that
officer the injuries that he had
sustained, and also told that
officer that he was injured by the deceased. The injuries that he had
sustained were swollen lips,
open wound on the right hand side of the
head and swollen right ring finger. The appellant denied assaulting
or killing the deceased.
[18]
The appellant was cross examined and he stated that he surprised why
Vusi and Freedom stretched his hands to
his back whilst he was trying
to stop the fight between the deceased and Radcliff. The appellant
further stated that he did not have
time to ask why they were holding
him as he was being assaulted by the person in front of him, and that
when he fell down, they ran
away. He also did not have time to ask
the deceased why he was assaulting him as Vusi and Freedom had held
him and he was trying
to duck the bricks that the deceased was
throwing at him. The appellant stated that when he went into his
shack to fetch a bottle,
he was trying to protect himself as he was
injured. The appellant stated that Vusi and Freedom has grabbed him
in order to allow
the deceased to assault him. He further stated that
Vusi and Freedom had let him free after he fell, when they realize
that he was
powerless and dizzy. That concluded the evidence of the
appellant and he closed his case.
[19]
The court
a quo
called two witnesses Vusi Tshabangu and Lerato
Radcliff as witnesses of the court. The two court’s witnesses did
not witness the
actual stabbing of the deceased and therefore could
not assist as to how the deceased was stabbed. According to Radcliff
the appellant
had assaulted the deceased with an open hand. When Mpho
and Vusi saw that the appellant had assaulted the deceased, they too
assaulted
the appellant and he fell to the ground. After the
appellant fell on the ground both Mpho and Vusi ran away and Radcliff
chase after
them. When Randcliff came back to where he had left the
appellant, he found the deceased lying on the ground, and the
appellant and
Freedom were standing next to the deceased. The
appellant was looking at the deceased saying that if a person
disrespects him, he
dies. Radcliff saw that the deceased was
bleeding, and Freedom told Radcliff that the deceased was dead.
[20]
The appellant has raised self-defence as his defence to his actions.
It is trite that for the appellant to
succeed with his defence of
this nature, he must show that (i) he was acting in response to an
uncompleted unlawful attack on an
interest deserving of legal
protection, and the response must directed at the attacker; (ii) the
defensive act was necessary to protect
the interest in question;
(iii) there was a reasonable relationship between the attack and the
defensive act; (iv) and that the appellant
was aware of the fact that
he was acting in private defence. (See
S
v TS
[2]
).
[21]   The
test for private defence is objective, would a reasonable person in
the position of the accused have acted in
the same way. A person who
acts in private defence acts lawfully, provided his conduct satisfies
the requirements laid down for such
a defence and does not exceed its
limits. (See
S
v De
Olivereira
[3]
).
[22]
I have difficulties in the appellant’s reliance on private defence
in that he is disputing assaulting or
killing the deceased. According
to the appellant, when he gets out of his shack to fetch a bottle
which he wanted to use it to defend
himself, he found the deceased on
the ground leaning against the fence bleeding, and was told that the
deceased was cut by a fence.
As per the appellant’s own version
when the deceased died he was not attacking him, and therefore the
was no eminent danger to
ward off, and the appellant does not even
know how the deceased sustained the injuries which led to his death.
From the appellant’s
own version self-defence is not available to
him as he was not present when the deceased was killed.
[23]   However,
Freedom the first respondent’s witness, testified that he saw the
appellant stabbing the deceased with
a bottle. Mpho the respondent’s
second witness, even though he did not witness the actual stabbing of
the deceased, testified that
he saw the appellant going into his
shack fetching a hunter’s dry bottle and breaking it, thereafter
the appellant went behind
the shack to where the deceased was, he
followed them and on his arrival at the scene he found both the
appellant and the deceased
bleeding. The appellant himself has
testified that he went into his shack to fetch a bottle in order to
defend himself. Radcliff
testified that when he arrived at the scene,
he found the appellant and Freedom standing next to the deceased who
was lying on the
ground bleeding, and the appellant was looking at
the deceased saying, anyone who disrespect him dies. Even though the
appellant
is denying assaulting and stabbing the deceased, the
evidence of Freedom, Mpho and Radcliff point him as the person who
had stabbed
the deceased with a broken bottle.
[24]
What this court must determine is whether the appellant’s conduct
has satisfied the requirements of private
defence. At the time when
the appellant was being attacked with bricks, his life was in eminent
danger worthy of protection. However,
the appellant does not make
mention that when he ran into the shack to collect a bottle, the
deceased was following him or that the
deceased was in possession of
his interest deserving legal protection. There is no evidence that
the attack on the appellant continued
whilst he was in the shack.
When the appellant picked up the bottle from his shack, left the
shack with the bottle and break it,
there was no longer any act to
ward off as he was no longer under attack by the deceased or anyone.
By breaking the bottle and stabbing
the deceased who was no longer
attacking him on the neck which is a delicate place, the appellant
had foreseen that his actions may
have fatal consequences, hence he
said anyone who disrespects him dies.
[25]
Taking into consideration the evidence presented and arguments
presented in this matter in its totality, the
defence of self-defence
cannot be sustained, and there is no reason to fault the court
a
quo
in convicting the appellant. It follows that the appeal
stands to fail.
[26]
In the result I make the following order:
26.1
The appellant’s appeal on conviction is dismissed.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
I AGREE
SEMENYA
DJP
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the appellant
: Adv MS Mamabolo
Instructed
by
: Mpho Mohale Inc
Counsel
for the respondent
:
Adv KG Sekhukhune
Instructed
by
: DPP Polokwane
Date
heard

: 1
st
December 2021
Electronically
circulated on
: 3
rd
December 2021
[1]
105 of
1997
[2]
2015
(1) SACR 489
(WCC) at para 29
[3]
1993
(2) SACR 59
(A)