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[2021] ZAMPMBHC 51
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S v Mashaba (CC 29/2021; M 18/2021) [2021] ZAMPMBHC 51 (2 November 2021)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
HELD
AT GRASKOP
CASE
NO: CC 29/2021
DPP
REF: M 18/2021
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
THE
STATE
v
CHRISTOPHER
VELLY MASHABA
ACCUSED
JUDGMENT
ON MERITS
MOOSA
AJ
:
[1]
The fateful day of Monday, 26 April 2021, would always be remembered
in the Mkansi
household forever, as it changed the family dynamics
with a single gunshot. Sadly so the unfortunate events of that
afternoon culminated
in the death of a loved one and the subsequent
arrest of the accused on a charge of murder. At the end of that
evening one of the
Mkansi son’s had met his death with a single
gunshot, whilst the other faced the might of the law having pulled
the trigger
of his firearm, and which caused the untimely death of
his brother.
[2]
MR CHRISTOPHER VELLY MASHABA (‘accused’)
is
arraigned on the following charge:
[2.1]
COUNT 1
:
MURDER
- read with the
provisions of Section 51(1) and Part 1 of Schedule 2 of the Criminal
Law Amendment Act No 105 of 1997
IN
THAT
upon or about 26 April 2021 and at
or near Dumphries Trust, in the district of Bushbuckridge, the
accused did unlawfully and intentionally
kill
ELVIS
MKANSI
, an adult male person.
[3]
The accused pleaded not guilty to the charge that he faced in the
indictment. Mr Mashele,
(‘Mashele’) on behalf of the
accused confirmed that the accused’s plea was in accordance
with his instructions.
In amplification of the plea of not guilty,
the following submissions were made on behalf of the accused:
[3.1]
On 24 April 2021, the deceased and his brother, Reason returned to
their parental home whilst being
intoxicated. They then began
quarrelling with their parents, which caused their mother to leave
the homestead and sleep elsewhere
that night.
[3.2]
The following morning the accused whilst on his way to work observed
that both his parents were standing
on the verandah of their
residence. He was concerned and accordingly stopped his motor vehicle
and approached his parents regarding
the fact that they were standing
outside. He was briefly informed of the events of the previous
evening, and assured his parents
that he would call them later that
day to discuss the matter further, as he needed to be at work.
[3.3]
At a later stage that morning he telephoned his parents, and they
informed him in greater detail regarding
the events of the previous
night, and the harassing conduct of the deceased and his brother. He
further undertook to attend at
his parental home on the following
day, so as to have a discussion regarding the challenges that were
being faced by his parents
with his two siblings. He was further
informed by his mother that she did not feel safe at her homestead,
and was prepared to relocate
to her parental home for the sake of her
own personal safety.
[3.4]
On 26 April 2021, the accused proceeded to his parental home after
work, in order to resolve the personal
differences between his
parents and his siblings. He did not find the deceased and his
brother, Reason and decided to return later.
At approximately 17h00
he parked his motor vehicle at his residence, after having it
repaired, and walked to his parental home.
He observed that the
deceased was present and decided not to discuss the matter without
Reason being present.
[3.5]
He pleaded with the deceased and advised him that what he was doing
was wrong. A fight then broke
out between the accused and deceased.
The accused then tried to calm the deceased by holding his hands
down. The deceased punched
the accused and the accused retaliated by
slapping the deceased. The deceased then threw an empty beer crate at
the accused.
[3.6]
The accused then left his parental home as the deceased was unruly.
Whilst on his way to his home
he heard his sister, Nikiwe shouting
for help and saying: “
He is killing us, help, help”
.
He then proceeded to his home, opened the safe and removed his
firearm, and ran in the direction that the sound was coming from.
[3.7]
As he was approaching the gate he saw the deceased in possession of a
panga, and who was running towards
him. The accused then pulled out
his firearm, and whilst doing so was struck on his hand with the
panga. As a result of fear and
shock he pulled the trigger when he
was hit on his hand. He fired one shot and which struck the deceased
on the chest. The deceased
then fell down onto the ground.
[3.8]
He attempted to attend to the deceased, and who was no longer
conscious. He thereafter ran to his
house and put his firearm in the
safe. He then loaded the deceased into the rear of his bakkie and
took him to the local hospital.
The deceased was declared dead upon
arrival. He duly requested the authorities to contact the police.
Upon the arrival of the SAPS
the accused informed them of what had
transpired and he was subsequently arrested.
[4]
The accused made formal admissions in terms of Section 220 of the
CPA, inter alia, briefly
(
Exhibits “A”, “B” and “C”
):
[4.1]
admitting
that he is the biological brother
of the deceased, and the
licensed possessor
of a Stoeger Arms 9MM parabellum pistol, with serial number [....]
(“the firearm”).
[4.2]
admitting that on 26
April 2021 he knocked off duty and
went to his house which is adjacent to his parent’s homestead.
He later went to his parental
homestead to address the complaint
registered by his parents against his brothers, the deceased and
Reason Mkansi, on 25
April 2021.
[4.3]
admitting that when he arrived at his parent’s homestead the
deceased was not present. The deceased
later arrived and they never
discussed the complaint laid by his parents. A fight broke out
between himself and the deceased.
[4.4]
admitting that he had left the parental homestead and whilst
proceeding to his home, he heard his
sister Nikiwe Mkansi screaming.
He then took out his firearm and went towards the direction where
Nikiwe Mkansi was screaming and
whereupon he met the deceased.
[4.5]
admitting that the firearm that he was carrying went off and the
deceased was shot once on the chest.
[4.6]
admitting that t
he deceased is the person
in the indictment to wit Elvis Mkansi
,
and who sustained a gunshot wound on
his chest on 26 April 2021. That on the aforesaid date
he
transported the deceased with his motor vehicle from Dumphries Trust
to Thulamahashe Health Care Centre, where he was declared
dead by
Taunyane Tepanyela of Tintswalo Emergency Medical Services.
[4.7]
admitting that on 26
April 2021, the deceased’s body
was transported from Thulamahashe Health Care Centre to Tintswalo
mortuary by Chris Mohlala
of Tintswalo Medico Legal Laboratory.
[4.8]
admitting that on 28 April 2021,
Dr Donald
Vella Mabunda (‘Dr G Mabunda’) performed a medico-legal
post mortem examination on the body of the deceased
and recorded his
findings on the forms GW7/15, with death Register Numbers
DR
54/21
, herewith handed in by consent as
EXHIBIT ‘B’
;
and that the deceased’s cause of death is correctly recorded in
Exhibit ‘B’ as “
Gunshot
Chest with Haemorrhagic Shock”
;
and that the body of the deceased did not sustain any further
injuries from the
time he was transported from
Dumphries Trust, until the post mortem examination was performed.
[4.9]
admitting that the facts and findings of the medico-legal post-mortem
examination recorded by Dr Mabunda
in the post-mortem report,
EXHIBIT
‘B’
are correct, and that the originality,
authenticity, facts and findings in the medico-legal examination
report and the affidavit
in terms section 212 (4) of the CPA are not
in dispute.
[4.10]
admitting that on 26 April 2021, Warrant Officer Joseph Lefa Mabela
(‘W/O Mabela’), from the Acornhoek
Local Criminal Record
Centre, attended at Thulamahashe Healthcare Centre and compiled an
album consisting of 28 photographs. Further,
that the photo album is
admitted as accurate and handed in by agreement as
Exhibit “C”
.
[4.11]
admitting that on 26
April 2021, W/O Mabela confiscated
the accused’s firearm and a magazine containing 15 (fifteen)
live rounds, which exhibits
he booked into the Mhala SAP 13 register
with reference number 173/2021. Further, that on the aforesaid date,
he booked out the
exhibits from Mhala SAP13/173/2021 and registered
them in the Acornhoek LCRC exhibit room.
[4.12]
admitting that on 05
May 2021, W/O Mabela forwarded the
aforementioned exhibits to the ballistic laboratory in Pretoria; and
that the exhibits were not
tampered with from the time that the
exhibits were received from the accused until they were transported
to the Forensic Sciences
Laboratory.
[5]
The accused was duly explained the provisions, application and
implications of the
Criminal Law Amendment Act No. 105 of 1997
(‘Minimum Sentences Act’), as well as the seriousness
thereof. He confirmed
that he accordingly understood the provisions
of the aforementioned Act.
[6]
To discharge the onus upon it to prove that the accused committed the
crimes charged,
the prosecution called the following two viva voce
witnesses:
[6.1]
Nikiwe Mkansi
(‘Nikiwe’), the accused, deceased’s
and Reason Mkansi’s sister testified, inter alia, as follows:
[a]
On 24 April 2021, she observed that the deceased and her brother
Reason had returned
home intoxicated, and had quarreled with their
parents. This incident culminated in her mother having to sleep
elsewhere that evening.
She was aware that the accused had been
notified of the events and that he was going to return to the
parental home on 26 April
2021, in order to resolve the issue between
the aforementioned siblings and his parents.
[b]
On 26 April 2021 at approximately 17H00 she was at home sitting
outside together with
her father, the accused’s son (‘Future’)
and other children when the accused arrived. The accused indicated
that
he was looking for the deceased and Reason. Both the deceased
and Reason were not at home at the time.
[b]
The deceased subsequently arrived and questioned why was the accused
there. He then
clicked his tongue. The accused informed the deceased
that he was looking for him and Reason. The deceased then responded
by saying
“Did they send you to prosecute me”. Nikiwe
reprimanded the deceased not to disrespect the accused.
[c]
The accused said to the deceased that he should sit down as that they
should talk.
The deceased refused to listen and which caused the
accused to stand up and approach the deceased. He grabbed the
deceased by his
T-shirt on the chest area. The deceased retaliated by
striking the accused with an open hand. The accused thereafter struck
the
deceased with an open hand on his face.
[d]
She separated the accused and the deceased. The accused said to the
deceased that
he still wanted to beat him. During this stage the
deceased continued hurling items at the accused, and which included
an empty
beer crate. Both the accused and deceased subsequently left
to their respective houses.
[e]
She thereafter observed the deceased emerging from his residence with
a panga, and
which caused her to scream for help. She shouted “
help
me”
, as she did not know as to who he was going to strike
with the panga. She approached the deceased and he pushed her, and
she fell
to the ground.
[f]
She stood up and ran towards the direction from which the deceased
emerged from,
and whilst proceeding she heard a gunshot. She
subsequently came upon the deceased who was lying on the ground, and
a panga was
next to him.
[g]
During cross-examination Nikiwe confirmed that the deceased and
Reason were troublesome,
especially when they consumed alcohol. In
fact, she had previously reported their conduct to members of the
SAPS Thulamahashe.
[h]
During cross-examination it was put to her that the accused would
testify that the
deceased had a panga in his hand. To which she
stated that she had no comment.
[i]
Further she was in agreement with the proposition that the accused
had not planned
to kill the deceased.
[j]
When questioned by this court regarding any injuries suffered by the
accused,
she stated that he had been injured on his finger, but did
not know if he had received any treatment for such injury.
[k]
It is noteworthy to mention that Nikiwe brought a panga to court and
informed the
court that the aforesaid panga as demonstrated to the
court, was in fact the one that was in the possession of the
deceased.
That in essence concluded
the evidence of the 1
st
witness, Nikiwe.
[6.2]
Joseph Lefa Mabela
(‘Mabela’), a member of the
South African Police Services stationed at the Acornhoek Local
Criminal Record Centre and
a crime scene investigator testified,
inter alia, as follows:
[a]
On 26 April 2021, at approximately 21h00 he was requested by Sergeant
DN Maputso of
Mhala SAPS to attend at the Thulamahashe Health Care
Centre. Upon his arrival, the scene and relevant points were pointed
out to
him. He accordingly took photographs as per Exhibit “C”
and collected exhibits.
[b]
He was specifically requested to take photographs of the accused’s
hands when
the primer residue test was being performed.
[c]
He did not observe any injuries on the hands of the accused at the
time when he took
photographs 14 and 15 of Exhibit “C”.
He referred to the aforementioned photographs and was adamant that
there were
no injuries present on the accused’s hands at the
time when he had taken the photographs, at approximately 21h30.
[d]
He stated that had he observed any injuries, he would have
immediately focused on
the injury, and in order to capture the fact
that the accused was injured. He further testified that the accused
did not inform
him of any injuries on his hand at the time when the
photographs were taken.
[e]
During cross examination Mabela was adamant that the accused did not
tell him that
he had been injured on his hand by the panga, but told
him that the deceased was approaching with a panga and then he shot
him.
[f]
He was adamant during cross examination that at no material time did
the accused
ever tell him that he was injured on his hand, and
neither did he observe any injuries thereon. In fact he stated that
he had gone
to the extent of asking the accused if he had any
injuries and the accused said that he had none.
That in essence concluded
the evidence of the 2
nd
witness, Mabela and the case for
the state was accordingly closed.
[7]
Accused 1 testified in his defence and stated, inter alia, as
follows:
[a]
On 25 April 2021, at approximately 05H00 he left his residence and
proceeded to work.
As he passed his parent’s home he saw them
standing outside on the veranda. The accused then proceeded to make
enquiries
from his parents regarding the fact that they were standing
outside at that part of the morning. They briefly informed him of
what
had transpired the night before. He undertook to revert to them
later that morning, as he was late for work.
[b]
He subsequently contacted his parents that morning and they informed
him that the
deceased and his other brother, Reason had returned home
on 24 April 2021, whilst under the influence of alcohol, and they
began
quarrelling with their parents. The discord caused their mother
to leave the homestead and sleep elsewhere. The accused’s
mother further indicated that she intended leaving the house
permanently as a result of the behaviour of his siblings. He duly
undertook to attend at his parent’s home on 26 April 2021, in
order to resolve this issue.
[c]
On 26 April 2021, he subsequently attended at his parental home after
work. He found
his parents, Nikiwe, his son (Future) and other
children sitting outside. He enquired about the whereabouts of the
deceased and
Reason and was told that they were not at home. He then
indicated to his father that he is unable to address the issue as his
two
siblings were not present. The deceased arrived whilst they were
still talking. The deceased then pointed at him and said: “
You
are here to resolve the matter and what are you afraid off”
and
he clicked his tongue.
[d]
His father and Nikiwe then reprimanded the deceased for being
disrespectful and chasing
their mother from her own home. The accused
then stood up and grabbed the deceased by his T-shirt on his chest.
The deceased then
struck the accused with his open hand on the left
shoulder. The accused retaliated by striking the deceased with his
open hand
on his cheek. Nikiwe then separated the accused and the
deceased.
[e]
The deceased then threw a wooden bench at him, and which did not
strike him. However,
the deceased threw an empty beer crate and which
made contact with the accused’s left rib.
[f]
The accused was then told to go to his home. Whilst he was entering
his property,
he heard Nikiwe screaming for help. She said loudly:
“
Please help, please help, someone is going to be killed”
.
He ran into his house, opened the safe and placed his firearm in its
holster, and tucked the holster into his trouser.
[g]
He then left his house walking fast and met the deceased as he
(deceased) was opening
the gate. He observed that the deceased was in
possession of a panga, and stated that it was the same one that was
shown to the
court by Nikiwe. At this stage, he had the firearm on
his waist.
[h]
When the deceased lifted up the panga, he drew his firearm with his
right hand. Just
as he was in the process of pulling out the firearm
with his hand and as he was reaching up, he was struck with the
panga, and
at that moment the firearm discharged itself. In
amplification he stated that his finger was on the trigger and when
the panga
struck his finger it caused his finger to press the
trigger, which caused a bullet to be discharged.
[i]
He saw the deceased fall on the ground, and returned his firearm to
his holster.
He thereafter ran to the house and placed the firearm in
his safe and returned to where the deceased was lying on the ground.
He
requested for water to pour on the deceased and tapped the
deceased on his head in order to resuscitate him.
[j]
He thereafter loaded the deceased at the rear of his bakkie and
transported
him to the Thulamahashe Health Care Centre. The deceased
was certified dead upon arrival. He requested the clinic staff to
contact
the SAPS, whereupon he was subsequently arrested.
[k]
He denied having any discussions with Mabela, and stated that he only
told Captain
Mashele (‘Mashele’) that the deceased was
attacking him with a panga. He further informed Mashele whilst at the
clinic
that he had suffered injuries and the injuries were observed
on him. He stated that he received Panado syrup for his injuries at
the clinic.
[l]
On 27 April 2021, Mashele conducted an interview with him and
completed a warning
statement.
[m]
He denied that he had planned or had the intention to assault or kill
the deceased and that
he loved his brother.
[n]
During cross-examination he admitted that Mabela did not have any
reason to falsely
implicate him and could have made a mistake
regarding the injuries on his hand.
[o]
During cross-examination he conceded that he did not tell the court
about the nature
of his injuries, as he had informed his legal
representative in this regard.
[p]
He admitted that the report that was given to him on 25 April 2021 by
his parents,
and more especially the fact that his mother had stated
that she was going to relocate to her parental home did not sit well
with
him and had angered him.
[q]
He further admitted that on 26 April 2021 and at the time when the
deceased disrespected
him he became angry, and the situation was
further aggravated when the deceased assaulted him.
[r]
During cross-examination the accused stated that he went inside his
house to
arm himself so that when he went to investigate the cause of
Nikiwe’s shouting, he would be armed.
[s]
He stated that he quickly drew his firearm and cocked it when he saw
the deceased
emerge with the panga. His intention was to threaten the
deceased and hoped that he would retreat.
[t]
During cross examination he stated that the deceased held the panga
in two hands
and the deceased then swung the panga from his left and
struck the accused on the right hand and more specifically his
fingers.
[u]
He stated that it did not cross his mind to shoot at the arms of the
deceased at the
time when the deceased was wielding the firearm. In
addition thereto, he stated that he wanted to fire a warning shot in
the air.
[v]
During a clarifying question from the court, the accused confirmed
that he had suffered
a visible injury to the knuckle and finger of
the right hand, at the time when he was struck with the panga.
Further, that the
skin was removed from his index and middle finger
and that his injury was bleeding.
[w]
He further confirmed to the court that he did not render assistance
to the deceased once
the shot was fired. Further, that he had
forgotten to tell members of the SAPS about the panga that was in the
possession of the
deceased, as he was confused.
That in essence concluded
the evidence of accused 1.
[8]
Alfred Mashele
(‘Mashele’), an erstwhile member of
the South African Police Services stationed at the Acornhoek SAPS and
the investigating
officer, holding the rank of Captain at the time of
his retirement testified, inter alia, as follows:
[a]
He was present at the time of the arrest of the accused, and he
interviewed the accused
at the Thulamahashe Health Care Centre,
whilst the deceased was lying at the back of the bakkie. The accused
told him that he shot
the deceased, as the latter wanted to chop him
with a panga.
[b]
At the time of this disclosure, the accused did not show him any
injuries and only
told him of injuries on 27 April 2021, and at the
time when he was making a statement. He thereafter observed the
accused’s
right hand and noticed injuries thereon.
[c]
During cross-examination he was adamant that he did not see any
injuries upon the
accused at the Thulamahashe Health Care Centre. He
however was informed and shown injuries only during his interview of
the accused
at the Calcutta SAPS on 27 April 2021.
[d]
During cross examination he further confirmed that the accused was
incorrect when
he testified that this witness had seen the injury,
whilst the accused was at the Tulamahashe Health Care Centre.
[e]
During a clarifying question from the court the witness confirmed
that he did not
attempt to locate the panga, and no one approached
him regarding the panga.
That in essence concluded
the defence case and his case was closed.
EVALUATION OF
EVIDENCE
[9]
It is trite that in order to succeed with the prosecution, the State
has to discharge
the onus to establish the guilt of the accused
beyond reasonable doubt and on the other hand the accused bears no
onus but will
be entitled to a discharge if he presents an
explanation of innocence which is reasonably possibly true. This
trite legal test
is more succinctly and elegantly stated by Nugent JA
in
S
v Mbuli
[1]
as follows:
‘
It
is trite that the State bears the onus of establishing the guilt of
the appellant beyond reasonable doubt, and the converse is
that he is
entitled to be acquitted if there is a reasonable possibility that he
might be innocent. In whichever form the test
is applied it must be
satisfied upon a consideration of all the evidence’.
‘
An
accused version can only be rejected if the court is satisfied that
it is false beyond reasonable doubt. An accused is entitled
to an
acquittal if there is a reasonable possibility that his or her
version may be true. A court is entitled to test an accused’s
version against the improbabilities. However, an accused’s
version cannot be rejected merely because it is improbable’.
[2]
[10]
In assessing the evidence, a court must in the ultimate analysis look
at the evidence holistically
in order to determine whether the guilt
of the accused is proved beyond reasonable doubt. This does not mean
that the breaking
down of the evidence in its component parts is not
a useful aid to a proper evaluation and understanding thereof. In
S
v Shilakwe
[3]
at
page 20, para [11], the Supreme Court of Appeal approved of the
following
dictum
:
“
But
in doing so, (breaking down the evidence in its component parts) one
must guard against a tendency to focus too intently upon
the separate
and individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in the trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood from the trees.”
See
S
v Hadebe and others
[4]
and
S
v Mbuli
[5]
.
[11]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities.
Heher AJA (as he then was) dealt
with this aspect as follows:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
See
S
v Chabalala
[6]
.
In this regard it is apposite to consider the evaluation of inherent
probabilities by the trial court as accepted by the Supreme
Court of
Appeal in
Magadla
v S
[7]
,
delivered on 16 November 2011, (unreported), at paragraph [22] and
further.
[12]
I am mindful of the basic principles to be applied when evaluating
evidence. In this regard,
it is trite that evidence must be weighed
in it’s totality and that probabilities and inferences must be
distinguished from
speculation and conjecture.
Navsa
JA in
S
v Trainor
[8]
stated
as follows: “A conspectus of all the evidence is required.
Evidence that is reliable should be weighed alongside such
evidence
as may be found to be false. Independently verifiable evidence, if
any, should be weighed to see if it supports any of
the evidence
tendered. In considering whether evidence is reliable, the quality of
that evidence must of necessity be evaluated,
as must corroborative
evidence, if any. Evidence, of course, must be evaluated against the
onus on any particular issue or in respect
of the case in it’s
entirety”
[13]
The quote from the judgment of Malan JA in R v Mlambo
[9]
at 738 A and B is apposite:
‘
In
my opinion, there is no obligation upon the Crown to close every
avenue of escape which may be said to be open to an accused.
It is
sufficient for the Crown to produce evidence by means of which such a
high degree of probability is raised that the ordinary
reasonable
man, after mature consideration, comes to the conclusion that there
exists no reasonable doubt that an accused has committed
the crime
charged. He must, in other words, be morally certain of the guilt of
the accused. An accused’s claim to the benefit
of doubt when it
may be said to exist must not be derived from speculation but must
rest upon a reasonable inference which are
not in conflict with, or
outweighed by, the proved facts of the case. Moreover, if an accused
deliberately takes the risk of giving
false evidence in the hope of
being convicted of a less crime or even, perchance, escaping
conviction altogether and his evidence
is declared to be false and
irreconcilable with the proved facts; a court will, in suitable
cases, be fully justified in rejecting
an argument that,
notwithstanding that the accused did not avail himself of the
opportunity to mitigate the gravity of the offence,
he should
nevertheless receive the same benefits as if he had done so’.
[14]
I pause to mention that there are no eye-witnesses who actually saw
the shooting of the deceased
by the accused. Hence, the State has
relied to a certain extent on circumstantial evidence, the testimony
and version of the accused,
as well as the objective medico legal
evidence; in order to prove the allegations against the accused, and
in an attempt to prove
it’s case against the accused. I am
therefore required to objectively and in an impartial and balanced
manner, consider all
the evidential material in coming to a
decision.
[10]
[15]
It is trite that once a court is faced with circumstantial evidence
it naturally flows that it
is duly called upon to draw inferences
from the evidence thus presented.
“
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1) The inference sought
to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn.
(2)
The proved facts should be such, that they exclude every reasonable
inference from them save the one sought to be drawn. If
they do not
exclude other reasonable inferences, then there must be doubt whether
the inference sought to be drawn is correct.”
[11]
[16]
The value of circumstantial evidence is often found in a whole range
of independent circumstances,
all giving rise to the same conclusion.
It is imperative for the court to consider all these circumstances as
a whole and not to
assess each in isolation.
“
The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn. To put the matter in another way, the
Crown must satisfy the court,
not that each separate fact is
inconsistent with the innocence of the accused, but that the evidence
as a whole is beyond reasonable
doubt inconsistent with such
innocence.”
[12]
[17]
In De Villiers supra at 508 it is said: “…even two
particles of circumstantial evidence-though
taken by itself weigh but
as a feather – join them together, you will find them pressing
on the delinquent with the weight
of a millstone….”
[18]
Circumstantial evidence is indirect proof from which a court is
required to draw inferences which,
when weighed with all other
evidence, may contribute towards proving a fact in issue. The
inference must comply with certain rules
of logic.
[13]
The reasonable inference has to be drawn only from proved facts and
not from facts based on suspicion.
[14]
Circumstantial evidence
has on occasion been described as a chain, the links of which consist
of pieces of evidence. This is not
correct as it implies that the
chain will be broken once one piece of evidence is rejected. It is
better to compare it with a braided
rope: as the strands break, the
rope weakens and conversely, as strands are added, the stronger it
gets. The gist of the matter
is that one piece of circumstantial
evidence may be inconclusive, but once other evidence is added, it
gains probative force.
[19]
The cardinal rules of logic as stated in R v Blom
[15]
and also in S v Mtsweni
[16]
stated as follows are the accepted method of reasoning by inference:
‘
The
inference sought to be drawn must be consistent with all the proved
facts which should exclude every reasonable inference save
the one
sought to be drawn. In other words the inference must be
distinguished from speculation and must be based on properly
objective facts’
[20]
The
ratio
of Hendricks J in
S v Nkuna
2012 (1) SACR 167
(B)
sets out the approach to circumstantial evidence, at paragraph 121 as
follows:
“
The
evaluation of circumstantial evidence must be guided by a test of
reasonableness. The onus on the State is not that it must
prove its
case with absolute certainty or beyond a shadow of a doubt. All that
is required is such evidence as to satisfy the court
and prove its
case beyond a reasonable doubt. It is trite law that the accused is
under no legal obligation to prove his innocence.
The State must
prove the guilt of the accused beyond a reasonable doubt.
[21
]
Having carefully considered the totality of the evidence and the
mosaic of proof before me, I do
not deem it necessary to traverse the
evidence of all the witnesses that testified during the trial, for
the sake of brevity and
to avoid prolix, as the issue to be
determined is crisp and unambiguous. As such, the only issue that
this court has to decide,
is whether the accused had the necessary
intention to shoot and kill the deceased, at the time when he fired
the shot.
[22]
It is common cause that Nikiwe is a single witness
in respect of the incident that occurred at the parental
home and
what transpired prior to the shooting of the deceased on 26 April
2021. Having duly taken cognisance of the aforementioned,
it is
settled that in terms of the provisions of Section 208 of Act 51 of
1977, a court is however entitled to convict an accused
person on the
evidence of a single witness, even if that single witness is a child.
The
evidence should be approached with caution and has to be sufficiently
reliable in order to discharge the onus of proof of guilt
beyond
reasonable doubt.
[17]
However,
it is accepted that a court should not easily convict upon the
evidence of a single witness, unless the evidence tendered
is
substantially satisfactory in all material respects or unless it is
corroborated.
[18]
The exercise
of the cautionary rule must however not be allowed to displace the
exercise of common sense.
[19]
[23]
In
S v Weber
1971 (3) SA 754
(A)
the Honourable Rumpff JA held
that It is not possible to prescribe a formula in terms whereof every
single witness' credibility
can be determined, but it is essential to
approach the evidence of a single witness with caution and to weigh
up the good qualities
of such a witness against all the factors which
may diminish the credibility of the witness.
[24]
I pause to mention that the events that preceded the fatal shooting
of the deceased are common
cause between the parties. It is further
common cause that Nikiwe did not see the shooting of the deceased, by
the accused.
[25]
Further, the following facts are in dispute:
[a]
That the accused was struck by the deceased with a panga.
[b]
That the accused acted in self defence.
[c]
That the accused’s action of pulling the trigger was
involuntary.
[d]
That the accused intended to discharge his firearm in the air.
[e]
That the accused had visible injuries on his right hand, at the time
of his arrest.
[26]
Accordingly, in order to make a proper determination regarding the
intention and action of the
accused on the day under review, it is
important to, inter alia, appraise the events that preceded the
events of that fateful day,
the version of the accused, as well as
what transpired after the shooting of the deceased.
[a]
It is common cause that there was a problem within the Mkansi
household with the accused’s
two siblings that required his
intervention on 26 April 2021, as promised to his parents.
[b[
During the discussion, the deceased disrespected the accused and they
exchanged blows,
but not before the accused grabbed hold of the
deceased by his T-shirt. In addition thereto, the accused was struck
with an empty
beer crate, which was thrown by the deceased. He was
subsequently requested to return to his home.
[c]
The accused admitted that the conduct of the deceased and Reason on
24 April 2021,
did not sit well with him and he was angered by the
fact that there was the reasonable possibility that his mother was
going to
return to her parental homestead, as a direct result of the
conduct of his siblings.
[d]
The accused whilst entering his property heard Nikiwe shouting for
help, and thereafter
proceeded directly to retrieve his firearm from
his safe. The reason he furnishes for arming himself is that he
wanted to be armed
when he returned to the source of the plea for
help.
One needs to pause at
this juncture and take note that the accused was prepared to use his
firearm, if necessary, should the need
have arisen, and in my view
this is where the action of the accused becomes problematic and comes
into question. If the accused
was not intent in using his firearm, he
would have immediately turned around and proceeded to investigate the
reason as to why
Nikiwe was shouting for help, without being armed.
However, one can only conclude that the accused had already made the
intention
to use his firearm, when he removed it from the safe.
[e]
It is further clear that the accused full well knew that Nikiwe was
referring to the
deceased, as he was the only one that he (accused)
had a confrontation with, just prior to him returning to his home and
prior
to hearing Nikiwe’s call for help.
[f]
The accused, inter alia, submitted that he was acting in self-defence
when he
shot the deceased. He initially submitted that he fired a
shot at the deceased, out of fear and shock, at the time when the
accused
was about to hit him with a panga.
In Criminal Law, Sixth
Edition by CR SNYMAN at page 102 Private Defence is described as
follows:
“
A
person acts in private defence, and her act is therefore lawful, if
she uses force to repel an unlawful attack which has commenced,
or is
imminently threatening, upon her or somebody else’s life,
bodily
integrity
,
property or other interest which deserves to be protected, provided
the defensive act is necessary to protect the interest threatened,
is
directed against the attacker, and is reasonably proportionate to the
attack”.
In
S
v
Manona
2001 (1) SACR 426
(Tk)
, Kruger AJ made the following
remarks: “
An assault and the killing of a human being is an
action which is prima facie unlawful. Once it becomes common cause
that the accused
has assaulted or killed the deceased or the victim
in self-defence, an evidential burden is placed on the accused to
rebut the
prima facie presumption of unlawfulness”.
[g]
It is noteworthy to mention that among the admissions that the
accused made in terms
of Section 220 of Act 51 of 1977, the accused
informed the court that he was acting in self-defence and during his
cross examination
his defence changed to acting involuntarily, to the
extent that he involuntarily pressed the trigger, as a result of a
blow on
his right hand, after being struck with a panga, and which
was wielded by the deceased.
[h]
In my view, the critical aspect to examine in minutae is what
transpired at the precise
time of the shooting of the deceased, and
whether there was a lawful excuse for the accused to have acted in
the manner in which
he did on the day in question. In my view, the
accused has muddied the waters when it comes to the reason for the
shooting of the
deceased. Accordingly, one needs to examine both the
defences raised by the accused and the reasonable possibility
thereof.
[i]
In the main, the accused submitted that he had acted in self defence
at the
time. His second version is that he had acted involuntarily
when struck by the panga. In support thereof, the accused testified
that he was injured on his right hand. In my view, this aspect is
absolutely critical to the defence of the accused, and to the
explanation of his conduct on that day.
[j]
If one is to accept the explanation that the deceased wielded the
panga
from his left and struck the accused on his right hand, it is
clear that the muzzle of the firearm would have moved to the left
of
the accused and to the left of the deceased, and at the time when the
shot was fired. Further, one would have expected the accused
to have
had visible injuries, having been struck by a dangerous weapon. Sadly
so, the objective medical evidence regarding the
entrance wound,
trajectory and exit wound do not support this version of the accused.
It is clear that the deceased was shot from
the right hand side, at
an angle and with the exit wound being in the region of the left
scapula.
[k]
In respect of the version that the accused was acting in self
defence, it is clear
once again that the accused would have sustained
injuries on his hand. On both versions as propounded by the accused,
the cornerstone
for their survival is the fact that he sustained
injuries as testified to by him. However, to this extent, no visible
injuries
were observed by Mabela that same evening at 21h30, when he
took the photographs of the accused. His evidence is further
corroborated
by the defence witness Mashele, in that he confirmed
that he did not see any injuries on the accused’s hands, whilst
at the
Thulamahashe Care Centre.
[l]
Accordingly, from the objective evidence contained in photographs 14
and 15,
as well as the testimony of Mabela and Mashele, I conclude
that the accused simply did not have any injury/injuries on his hand.
I further conclude that the injury/injuries were caused by the
accused after his incarceration, in order to spin a version so as
to
exculpate himself of the charge which he faced. What is critical, in
my view, to the defence of the accused is the fact that
he simply did
not have an injury on his hand, as testified to by him, and
accordingly his version must be rejected.
[m]
If one accepts, for one moment that the accused did not have the
necessary intention to
shoot and kill the deceased, then one needs to
examine the conduct of the accused after the deceased was shot. In my
view, one
would have expected of a reasonable person in the position
of the accused, having just fired a shot inadvertently or
alternatively
acting in self - defence, to have immediately shown
remorse and to have rendered assistance to the deceased.
However, the subsequent
conduct of the accused is simply not commensurate with the actions of
a person who may have erred in the
circumstances. Strangely so, the
accused does not render any assistance to the deceased, but casually
returns his firearm to his
holster, and walks back to his house and
replaces the firearm in his safe, whilst the life of his loved one
oozes out onto the
ground.
Further, if one has to
accept the accused’s version regarding the call for help, one
would have expected him to have proceeded
to Nikiwe to further
investigate the cause of her shouting. However, he does not do so,
but returns to his home in order to replace
his firearm in his safe.
In my view, the fact that
the accused did not render any immediate assistance, as well as the
fact that he did not proceed to Nikiwe
fortifies the fact that the
accused single-mindedly had made the intention to shoot and kill the
deceased.
[n]
I further find the version of the accused problematic to the extent
that had the deceased
struck him with the panga on his hand, it is
clear that they would have been in close proximity with each other.
This fact is not
supported by the medico legal evidence in that there
is no tattooing at the entrance wound on the chest of the deceased.
This in
my view is indicative of the fact that the deceased was
greater than a metre away from the accused when the shot was fired.
Hence,
this objective evidence does not support the initial defence
of the accused that he was acting in self - defence. I pause to
mention
that one would have expected the accused to have fired a shot
at other parts of the body of the deceased, if he in fact was acting
in self defence. The fact that he fired a shot at the chest area of
the deceased is indicative of a single minded resolve to kill
the
deceased. Nothing more, nothing less!
[o]
It is noteworthy to mention that one would have expected a reasonable
person in the
position of the accused to have immediately retrieved
the panga and handed it over to the SAPS and to have shown them his
injuries
to support his initial version that he was acting in self-
defence. However, neither the panga, nor any injuries are shown to
the
arresting officers or the investigating officer. Strangely so,
this important piece of evidence, in my view, only sees the light
of
day when Nikiwe testifies in court.
[27]
It is clear in my mind from the aforementioned that the totality of
the objective facts clearly
do not support the version/s of the
accused. I find the evidence of the state witnesses to be credible
and further find that the
accused has failed to discharge the onus
placed upon him to prove that his act of killing the deceased was
justified and reasonable
under the circumstances. I further reject
that the accused was acting in private defence, or that he
involuntarily pressed the
trigger of the firearm.
[28]
Accordingly, I have carefully analysed the evidence before me and
applied the necessary caution
where necessary, and accordingly am
unable to find any reason to doubt the
ipsissima verba
of the
State witnesses. They gave their evidence in a clear and concise
manner without any material contradictions. On the other
hand the
accused made a very poor impression on this court during his
testimony. His versions seemed to be very far fetched, on
the
available evidence, and on any analysis of his evidence simply cannot
be believed.
[29]
After careful consideration of the evidence of all the State
witnesses, and the totality of such
evidence in support of the
charges, I am satisfied that the evidence of the State is
satisfactory in all material respects to sustain
a conviction on the
charge. The state witnesses made a good impression on this court,
whilst the accused was an unimpressive and
an unsatisfactory witness.
[30]
I have looked at the merits and demerits of this matter coupled with
the totality of the evidence
before me and accordingly reject the
version of the accused, as being false beyond reasonable doubt. I
duly accept the evidence
of the State witnesses. I further find that
on a consideration of the totality of the evidence the prosecution
has discharged the
onus to prove beyond reasonable doubt that the
accused has committed the crime as charged. On the other hand the
accused has failed
to give an explanation of innocence which is
reasonably, possibly true and his version is accordingly rejected as
beyond false.
[31]
I therefore conclude that the only reasonable inference to be drawn
from all the facts and the
totality of the evidence before this court
is that the accused had the necessary intention to shoot and kill the
deceased on 26
April 2021.
[32]
In the result, the accused is found guilty as follows:
MURDER READ WITH THE
PROVISIONS OF SECTION 51(1) AND PART 1 OF SCHEDULE 2 OF THE
CRIMINAL
LAW AMENDMENT ACT 105 OF 1997
.
C
I MOOSA
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
HELD
AT GRASKOP
02
NOVEMBER 2021
Counsel
for State:
Adv C Mkhulise
Instructed
by:
Director of Public Prosecutions
Mbombela
Mpumalanga
Counsel
for Accused
Adv S I Mashele
Instructed
by:
A B Mdluli Attorneys
Bushbuckridge
Mpumalanga
Dates
of hearing:
18 October 2021
19 October 2021
20 October 2021
22 October 2021
28 October 2021
Date
of judgment:
02 November 2021
[1]
2003
(1) SACR 97 (SCA)
[2]
Susha
v
S 2011
JOL 27877 (SCA)
[3]
2012
(1) SACR 16 (SCA)
[4]
1998
(1) SACR 422
(SCA) at 426 F – H
[5]
2003
(1) SACR 97
(SCA) at 110, para [57]
[6]
2003
(1) SACR 134
(SCA) paragraph [15]
[7]
80/2011
[2011] ZASCA 195
[8]
2003
(1) SACR 35
(SCA) at 9
[9]
1957
(4) 727 (AD)
[10]
S
v Ntsele 1998 (2) SACR 178 (SCA)
[11]
S
v Blom
1939 AD 188
at 202
[12]
S
v De Villiers
1944 AD 493
at 508-509
[13]
S
v Burger 2010 (2) SACR 1 (SCA)
[14]
S
v Mseleku
2006 (2) SACR 574
(D)
[15]
1939
(AD) at 202-3
[16]
1985
(1) SA 590
(A) at 593
[17]
Mlendile
v S
[2011] ZAFSHC 49
; Cele v S [2010] ZAKPHC 26; J v S [2011] JOL
26715 (ECG)
[18]
S
v Ganie 1967 (4) SA 203 (N)
[19]
S
v Sauls and Others
1981 (3) SA 172
(A) at 180 E-G; S v Artman and
Another
1968 (3) SA 339
(SCA)