Biyela v S (AR 174/2020) [2021] ZAKZPHC 19 (7 May 2021)

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[2021] ZAKZPHC 19
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Biyela v S (AR 174/2020) [2021] ZAKZPHC 19 (7 May 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 174/2020
In
the matter between:
BHEKIZWE
BIYELA

APPELLANT
and
THE
STATE

RESPONDENT
ORDER
On
appeal from
:
Nkandla Magistrates Court (TJ Kasambara sitting as court of first
instance):
1.
The appeal against conviction and sentence is dismissed.
2.
The conviction and sentence by the trial court are confirmed except
that it is
added to the sentence:
‘
It
is ordered in terms of
section 103(2)
of the
Firearms Control Act 60
of 2000
that         the
accused is not declared unfit to possess a firearm.’
JUDGMENT
Delivered
on:
Mngadi
J :  ( Nkosi J – Concurring )
[1]
The appellant appeals with leave of the trial court against both
conviction and sentence.
The appellant was charged before the
magistrate’s court with one charge.  The charge the appellant
faced was a charge of malicious
injury to property.   The
charge alleged that on or about March 2017 and at or near Ndweni area
in the district of Nkandla
the accused did unlawfully and
intentionally break and damage/destroy poles the property or in the
lawful possession of Musa Mpungose
(the complainant) by extracting
poles that had been installed with intent to injure the complainant
in his property.
[2]
The appellant who was legally represented when the charge
was put to him pleaded not guilty.  The appellant’s
legal
representative after confirming that the plea of not guilty was in
accordance with his instruction placed it on record and
it was a
confirmed by the appellant that they elected not to make a statement
disclosing the basis of defence. The learned magistrate
after hearing
the evidence convicted the appellant as charged.  He sentenced
the appellant to pay a fine of one thousand five
hundred (R1500) in
default to undergo three (3) months imprisonment wholly suspended for
a period of three(3) years on condition
that he is not convicted of
malicious injury to property committed during the period of
suspension.
[3]
The State to prove the case against the appellant adduced evidence of
four (4) witnesses, namely; Thokozile Mpungose (the
mother of the
complainant); Musa Erick Mpungose (the complainant); Mzuzwane Amos
Mpungose ( the complainant’s father) and constable
Prince Scelo
Nxumalo.  The appellant testified for the defence and he did not
call any other witnesses.
[4]
Thokozile Mpungose testified that she was the complainant’s
mother.  She was
born in 1941.  She resided at Ndweni ward
in the area of Emahlanzeni at Nkandla. In March 2017 the induna of
the ward Mkhize
came to her residence. Mkhize told her that he had
been sent by the appellant to deliver the complainant’s poles. The
appellant
was an Inkosi of the area. Mkhize said that the appellant
told him to tell her that the poles had been cut and are delivered at
no
cost to the traditional council by the complainant. Mkhize further
told her that he was with the appellant there at her residence
she
may go out to greet the appellant. She went outside and the appellant
was in his vehicle parked next to the gate.  Persons
were off
loading poles from the appellant’s vehicle and taking them into her
yard.  She greeted the appellant and the appellant
told her to
tell the complainant that he brought the poles and he cut them and he
was not going to charge him anything.  They
finished offloading
the poles and the appellant left.
[5]
She testified that the complainant worked at Empangeni.
The poles were not dug from the ground but were cut
above the
ground.  The poles belonged to the complainant.   The
complainant installed the poles to fence a portion
of land.  The
portion of land in question belonged to the Mpungose family.
Previous Inkosi allotted the portion of land
to the Mpungose
family.   The portion of land was allotted to the Mpungose
family prior to her marrying into the family.
After she married
to the family, the family continued ploughing the portion of land and
using it also for grazing. It is not a huge
portion of land.
The Mpungose family allotted a site in the portion of land, one to
the Mdunge family who were their in-laws
in that a daughter of the
Mpungose family was married to the Mdunge family.  Another site
they allotted to Mthabela family who
are the cousins of the Mpungose
family.
[6]
She testified that she planted vegetables in the piece of the
portion of land.  Her husband was now too old to
work the
portion of land.  He has permitted the complainant to plough the
portion of land.  Her husband oversees the working
of the
portion of land by the complainant.  She testified that if a
person needs to be allotted a portion, that person would
approach the
owner, the owner if agreeable would demarcate the portion after
informing the induna, the induna would then report the
allotment to
the new person to the Inkosi and his Traditional Council. However, a
father can permit his son to plough a portion of
land allotted to the
family without reporting to the induna or Inkosi.
[7]
She testified that once allotted a portion of land for
ploughing, if not used for some time you do not have
to ask
permission from the induna or Traditional Council to commence using
it.  Her husband did not report to the induna or
the Traditional
Council that he permitted the complainant to use the site such an
arrangement is not formal or permanent and it is
not reported to the
induna or Traditional Council.  The portion of land although
ploughed by the complainant remains her husband’s
allotment.
The complainant worked at Vryheid and stayed at Empangeni.  She
stated that the complainant had a right to
fence the portion of land
to keep livestock away.  The portion of land passed from Daniel
her husband’s father to her husband.
When it was put to her
that the complainant started to plough the portion of land in 2015,
she said she did not know when he started
ploughing the portion of
land.   She did not know that the induna said to the
complainant he must not to plough the portion
of land.  The
complainant told her that the appellant instructed him not to put up
the fence on the portion of land and he was
told to remove the
poles.  The complainant did not remove the poles because he
believed that they were rightfully installed.
In March 2016,
there was a meeting, Mkhize and the appellant came to see the portion
of land where the fence was being put up.
They met with her
husband and family members including the complainant.  In the
meeting, the appellant was told by Aunt Matrina
Mdunge that the
portion of land belonged to the Mpungose family and that it was wrong
to order that the poles be removed.  She
testified the poles
were where the fence would be did not interfere with the cattle
track.  Mrs Mdunge said the poles next to
her homestead should
not be removed.  She testified that the appellant could not say
that he did not know the complainant her
son, the appellant granted
permission for the complainant’s marriage ceremony to be held.
The complainant is renting a place
at Empangeni.
[8]
Musa Erick Mpungose, the complainant testified as follows.  He
was forty eight (48) years old.  He resided
at Ndweni ward.
He received a report from his mother regarding the poles that were
brought to his home by the appellant.
The poles were damaged in
that they had been cut above the ground.  He got twelve (12)
poles from the forest and seven(7) poles
he bought from a hardware.
They were all cut.  He had installed them by using concrete.
He paid R500 for the poles
and he bought three (3) bags of cement.
The cut poles are too short to be used as he had used them.
[9]
He testified that the poles were used to put up a fence to fence a
portion of land belonging to the Mpungose family.
They used the
portion of land to plough on it and for grazing.  It belonged to
the Mpungose homestead.  He was the fourth
generation of the
family.  His father and his brothers agreed with him to fence
the portion of land as it was fenced before.
He then put up the
fence.  The neighbours knew that he was fencing the portion of
land belonging to his family.  Their
neighbours are the Mdunges
and Mthabelas.   His grandfather allotted sites to the two
families.  The appellant had
a homestead not very far from his
home.  The appellant knew that the portion of land in question
belonged to the Mpungose family.
He knows that his father is
the third generation in the family.    His father and
the appellant were in the same school.
The induna Mkhize might
not know that the portion of land belonged to his family because he
is knew in the area, but all the other
people know that the portion
of land belongs to his family.
[10]
He testified that he and the appellant talked about the removal
of the poles.  They could not reach an agreement.
He then
received a letter from the appellant.  The letter stated that
the appellant would remove the poles, if he is not satisfied
he must
take the matter to court.  He then referred the matter to
provincial department of Co-operative Governance and Traditional
Affairs (COGTA).  COGTA had a discussion with the appellant and
he got surprised when his poles were removed.  He testified
that
the portion of land he was fencing belonged to the Mpungose family
and it is wrong to say that he had no permission to use the
land.
The portion of land belonged to the Mpungose clan.  His father
had two wives.  There two sons in the area and
his father’s
siblings had other sons.  His family’s homestead is built in
the portion of land in question.
[11]
The complainant under cross-examination testified as follows.
He had a Master’s Degree in Public Administration.
He was an
Assistant Director in Quality Management Systems.  He is a
public administrator.  He would not dispute that the
appellant
became an Inkosi in 1978, that between 1974 and 1978 he was a clerk
in the Nkandla magistrate’s court, that between 1994
and 2009 he
was a member of Parliament in the National Government in Cape Town,
that between 1980 and 1994 he was a member of Parliament
of the
erstwhile KwaZulu government and in 1987 to 1994 he was Deputy
Minister of Economic Affairs for the KwaZulu government.
[12]
It was put to the complainant that the appellant was a
man of substance, has held several high positions in society
and he
is meticulous and kept a list of members for each homestead in his
area.  The letter written by the appellant to the
complainant
dated 6 March 2017 was put to the complainant and it stated, inter
alia,‘ The homestead that I know of belongs to your
father….What
surprises me is you are not even in the list of your father’s
homestead that is at Emahlanzeni area….the question
that I am
asking myself is that the members of you family have forgotten you
because you have stood by yourself to be the member
of the area….Your
failure to remove the poles from where you had installed them and
ploughing the fields without permission.
The induna of Ndweni
told me that you did not remove the poles which I have told you to
remove, and he told me that you are continuing
planting the plants
without permission. You never had a homestead at Emahlanzeni area and
you never had a field to plant your plants..
The homestead that I
know of belongs to your father Mzikayise Amos Mpungose.  He is
the one I know that has the planting fields
that are no longer in
use.  I do not remember him coming with you to me to say that
you are the one that is going to take that
place.  To take the
homestead and the fields.  Your father is still alive.  I
know that he respects the chief as well.
You are doing what is
called disrespect whilst holding a position of being a circuit
manager in the Department of Education in the
Government of
KwaZulu-Natal.  I believe that you grew up in that place of
Emahlanzeni before living at Esikhaleni at Empangeni.
I believe
you know the difference that you should buy land but from rural
areas, you have to please which is the one that you cannot
do… So
that you should not be in problems, you should not do what you are
doing.  This is the only lesson I can give.
If you believe
that I have destroying one of your rights, you should do what is
right and go to court so that you can find help.
As you have
said that you won’t be able to remove the poles, they are
foundation, we still help you remove them without paying..
From the
plaas you won’t do any plants there.  If you have planted we
will take it, we will remove it.’
The
complainant stated it surprised him that he was not in the list of
the members of his father’s homestead.  He confirmed
that the
letter advised him to take the matter to court and therefore he did
not approach the appellant again after receipt of the
letter.
[13]
It was put to the complainant that the argument at the end will be
that he no longer had his homestead at Emahlanzeni,
therefore, he had
planted on a portion of land belonging to the Mpungose homestead.
He admitted there is a time when the portion
of land in question was
not ploughed due to lack of means and part of it allotted to other
family members including the Mdunge family
and the Mthabela family.
A Khanyile family too was allotted a site.  He stated that if
there was a request for a site
whether by a family member or not, the
family would meet and decide whether to grant the request or not.
He denied that anybody
who wants to be given a piece of land at
Emahlanzeni area must come and khonza to be allotted land by the
Traditional Council and
that he was bound to do the same.  He
said he never asked for any land, he used land of his homestead.
He agreed that
in the meeting the Mdunge and Mthabela families
attended.  They knew their portions of land and they were not
affected by the
fence he was putting up.  He denied that land
not used for a long time reverts to the Traditional Council and that
it can then
be reallocated following the khonza procedure. When it
was put to him that he was fencing land in a ward falling under
induna Mkhize,and
induna Ntuli’s ward, he said he was fencing
a portion of land belonging to the Mpungose family and induna Ntuli
knew that
the portion of land he was fencing belonged to the Mpungose
family.
[14]
The complainant admitted that after they had postponed
meeting twice, they met with the appellant on the issue of
the
portion of land in question and the installation of poles.  The
appellant, induna Mkhize, his father, himself, the Mthabelas
and the
Mdunges attended the meeting.   He admitted that in the
meeting the appellant explained that the complainant had
no
permission to install the poles he had installed.  He stated
that he explained and it was acknowledged that he would not
be
fencing in the neighbours and that the fence would not interfere with
the cattle track.   He said they could not reach
the
agreement that the poles installed would be removed and there was no
agreed deadline for their removal.   When it was
put to him
that he was told that it was properly wrong to plough the open land
without permission, he said it was not open land but
it was a plot
belonging to his family.  When it was put to him that the
appellant explained that he had to follow the khonza
procedure to get
permission to fence and plough the plot, he said he did not want to
be allotted a piece of land he was using a portion
of land belonging
to his family.  He said the appellant knew that it was a portion
of land belonging to his family.  He
said the meeting did not
end well.  The appellant accused him of being strong headed.
After the meeting, he approached
the appellant and told him that he
did not want to cause trouble, he wanted to use the portion of land
for farming something he was
fond of and the appellant could see that
crops had been planted.  He reiterated to the appellant that the
portion of land belonged
to his family.  The appellant said the
must discuss the matter with induna Mkhize.  He stated that in
the meeting the appellant
said they did not have any land.  His
father and the Mpungose family members in the meeting told the
appellant that the portion
of land in question belonged to the
Mpungose family.   He said he did not have his homestead in
the area he lived in the
homestead of his father, which was the
homestead of his grandfather.  It was put to him that according
to the appellant and
the Traditional Council the only person who has
an allocation of land, the person who can use the land is his father,
he said he
was using the portion of land with his father and with his
father’s permission.  He denied that in the meeting he said he
had difficulty in removing the poles because they were installed with
concrete.  The appellant, it was put, because poles had
not been
removed and the deadline had come and gone, reported to the
Traditional Council and council said they must be removed.
[15]
Mzuzwana Amos Mpungose testified as follows.  He was 76 years.
He was the father of the complainant.
The poles that were cut
and removed belonged to the complainant.  The complainant used
the poles to put up a fence on a portion
of land that belonged to his
family.  The complainant was ploughing and planting in the
portion of land since he did not have
the financial means to do so.
An Inkosi at the time allotted the portion of land in question to the
Mpungose family.
It was allotted to his great grandfather and
remained in the family.  It passed to his grandfather, to his
father and to him.
They have up to now continuing
residing in the same area.
[16]
He testified that he used to work at Isipingo for 15 years.  He
stayed at Makhutha to be near his work place.
He once a year
came to his homestead at Ndweni in Nkandla.  He is now retired.
When the fence on the portion of land was
put up by the complainant,
there were discussions but he did not participate in them because he
felt he was too old. His homestead
consists of five houses.
There is a fence near the houses of the homestead.  The portion
of land in question extends from
his homestead.  The portion of
land was fenced to keep livestock away from the planted crops.  The
portion of land was
ploughed annually but recently due to poor rains,
it was not ploughed.  It is not in a condition as land that has
never been
ploughed.  The Mdunge family is about 50 metres from
his homestead.  His father allotted a site to the Mdunge
family.
The Mdunge family did not have a problem with the
putting up of the fence by the complainant.  His father too
allotted a site
to the Mthabela family.    The fence
would keep livestock away but would not restrict access of the Mdunge
and Mathabela
families to their properties.  He was not aware
that if you have not ploughed land allotted to you, you had to inform
the Inkosi
when you resume use of the land.
[17]
He testified that he was present when the appellant called a
meeting for the complainant.  They told the appellant
that the
place he was saying is Nqubeni was not Nqubeni because he knew the
boundary of the portion of land in question.  The
appellant said
they should remove the fencing poles, which was due to a
misunderstanding on his part.  They told him that the
portion of
land in question belonged to the Mpungose family.  The appellant
said the complainant had no right to the portion
of land because he
did not know that the complainant was his son.  He stated it
surprised him that it was said the complainant
could not put up the
fence without having khonzaed for the portion of land. The
complainant was his son and he gave him permission
to put up the
fence to keep way livestock from a portion of land belonging to the
Mpungose family.  There was no need to remove
the poles they had
wronged no one.  When it was said the appellant would say
because the land had not been used for a while
and it reverted to the
Inkosi, he said they were never informed of such and it was the first
time he hears of it.  The fence
they were putting up would have
a gate, it would not close cattle track.
[18]
Prince Scelo Nxumalo testified as follows.  He testified that he
was a constable in the Local Criminal Record
Centre at Nquthu.
He took photographs of the poles in question and compiled a photo
album.  The photos depict the poles
where they were cut.
One photo shows the area where the poles were before being cut by a
saw, which indicates the area to run
from the homestead.  Other
photos show part of the pole with a metal plate.
[19]
After the State closed its case, the appellant applied
for a discharge in terms of
section 174
of the
Criminal Procedure Act
51 of 1977
on the basis that there was no evidence that the appellant
damaged the poles himself and that he had the intent to injure the
complainant
in his property.  The learned magistrate dismissed
the application for a discharge.
[20]
The appellant testified as follows.  He was an Inkosi of
Emahlanzeni area in the district of Nkandla.
He was born on 4
April 1948.  He bacame an Inkosi on 28 October 1978.
Before he was installed an Inkosi he worked at various
places.
He was before he became an Inkosi a clerk at Nkandla magistrate’s
court.  After he became an Inkosi he held
various positions as
stated earlier.   It was not true that he committed the
crime, which is the subject of the charge.
Mkhize the induna
informed him that the complainant has gone and installed fencing
poles in an area, which has not been given to
him.  He said he
talked to the complainant to no avail.    Mkhize was
induna of Ndweni a ward in the area
of Emahlanzeni.  The parents
of the complainant had their homestead at Ndweni.  Mkhize said
the complainant has installed
poles from his father’s homestead all
the way up to another ward at Nqabeni.  Nqabeni is a different
ward under induna Ntuli.
Mkhize said the complainant said he
was fencing an area that belonged to the Mpungose family.
[21]
The appellant testified that the portion of land in question
belonged to the nation since it stayed for while unused.
It was
unused from the time he was installed an Inkosi.  There are
people allotted plots by an Inkosi in the area and some of
them have
moved away.  He informed Mkhize to advise the complainant to go
with him to the place where he had insatalled the
poles.  He
eventually had a meeting with the complainant on 23 March 2016.
They met at the place where the poles had been
installed.  It
was the complainant, his parents, his aunt, a woman from Mthabela
family and the induna.  The complainant
said he was trying to
put up a fence to assist his neighbours to keep away the livestock.
He told the complainant that it was
not permitted to fence in other
persons.  He told the complainant to remove the poles.  He
also told him that he did not
have permission to utilise the land and
he should not continue ploughing in that area.  When they were
leaving, the complainant
came to him and he said his intention was
not to fight, he was apologising.  He said it would be difficult
to remove the poles
because they were installed with concrete and he
worked far way.  The complainant’s uncle said he would assist
the complainant
to remove the poles.  The induna called the
complainant’s father to hear what the complainant had said.
The appellant
told the complainant to call a formal meeting of
neighbours affected by the erection of the fence in the presence of
induna and to
report to him the decision taken in that meeting.
He told the complainant that if he needed land for farming he could
form a cooperative with women and young people and approach the
appellant with a request to be allotted land for farming.  He
stated that the appellant was given a deadline until end of May to
remove the poles.
[22]
The appellant testified that in May the poles were not removed.
He reported to the Traditional Council that
the poles had not been
removed.  The Traditional Council took a decision that the
complainant should be assisted to remove the
poles by having the
poles cut and delivered to his parental home.  He wrote to the
appellant the letter dated 6 March 2017,
which was earlier read into
the record. The complainant did not respond to the letter.  They
then arranged for people and got
the machine to be used.  He
took the boys and the machine and left them with the induna.  He
told the induna that when
they are finished they must let him know.
He made all the arrangements as an Inkosi and chairperson of the
Traditional Council.
Later, the induna phoned him that they are
done.  He went to them with his vehicle.  They loaded the
poles on his vehicle.
He took the poles to the parental home of
the complainant with the boys and the induna.   The poles
were off-loaded and
put inside the yard.  He told the
complainant’s mother after greeting her that they came to deliver
the complainant’s poles.
He told her that they removed the
poles and they were not going to pay anything to the Traditional
Council for the removal and the
delivery of the poles.  He said
he had no intention to injure the complainant by damaging his
property.  He stated that
he was very patient with the
complainant.
[23]
The appellant testified that the complainant’s name was not
in the register of the people living in the area.
He had no
issue with the complainant but the complainant is a person not keen
to follow the rules, he wants to do as he pleases.
He stated
that the complainant does not want order that has been in the area of
Emahlanzeni since he installation as an Inkosi.
The
complainant’s father stayed at KwaMakhutha.  He and the
complainant did not attend community meetings and they would not
know
what was discussed because such issues are discussed in community
meetings or imbizos.  He said a long time ago there was
so much
land because there were fewer people and people were given huge
amounts of land which included on which to build, for ploughing
and
for grazing.  However, now there are many people and it cannot
be afforded to have land that is not used.  He stated
that at
Emahlanzeni everyone is given land to build his own home.
[24]
He testified that if a person had not been using the land
allotted to him for a while and he wishes to start using
the land he
must go to the induna and the induna would take him to the Inkosi who
will then reallot the land.  COGTA advised
that the complainant
made a complaint about a portion of land belonging to his family
taken away.  He asked to be furnished
with a copy of the
complaint, which was not done.  One official from COGTA
Cetshwayo office came to him.  He showed that
person the portion
of land in question.  He was later told that he had done nothing
wrong but the official will come to deliver
a report to all the
interested persons but that has not happened.
[25]
Under cross-examination, the appellant testified that he was
the chairperson of the Traditional Council.  He
was present when
it was resolved that the complainant must be assisted by having the
poles removed.   He wrote the letter
dated 6 March 2017 to
the complainant.  He arranged for the removal of the poles
including securing the machine that was used
to cut the poles.
He said it was true that the portion of land in question used to
belong to the Mpungose family.
Since he was installed Inkosi,
the portion of land was never ploughed.   The poles after
were cut were shorter because
a piece of the pole remained in the
ground. He was not sure when the portion of land was allotted to the
Mpungose family.  He
stated that they have never gone to the
Mpungose family to inform them that the portion of land in question
no longer belonged to
them.  It was announced in the meetings
that if you do not use the land allotted to you it would revert to
the Inkosi.
The induna told them when they started digging for
the poles that the portion of land no longer belonged to them, they
had to go
and ask permission from Inkosi to use the land.
He did not dispute that the complainant still resided in his father’s
homestead.  The appellant when asked why the complainant has to
pay khonza fee if he wants to use the portion of land belonging
to
his father, he said it depends on what the person is there to konza
for, if they are there so that they want to farm then they
do not pay
a khonza fee but if they want to build a home then there is money to
be paid so that the Traditional Council would have
some money.
[26]
The appellant testified that the portion of land does not
belong to the complainant’s father but it belongs to
the nation and
it was just given or the father was given permission to use that
portion of land, and if he does not use it, it then
reverts to the
nation.  When it was put to the appellant that according to the
complainant the piece of land belonged to the
Mpungose family, he
said yes that is what he knew, he last knew, but he was told that it
is not so anymore so if he wants the land
he has to ask for it from
Inkosi.  Asked why they did not resort to a legal remedy when
the complainant did not remove the poles,
he said they had to assist
in any way they can whether the person being assisted wanted to be
assisted or not.  Asked whether
to damage the complainant’s
poles was assisting the complainant, he said the poles were not
damaged.  He said he wanted to
use the portion of land in
question for a co-operative and the Mpungose family had no say on
that.   Asked how long did
it take for a portion of land to
remain unused before it reverts to the nation, he said it takes five
(5) years or more.
[27]
The appellant’s legal representative argued that there was no
evidence that the appellant cut the poles, that the cutting
of the
poles constituted damaging the poles, that the appellant had an
intention to injure the complainant in his property or that
the
portion of land on which the poles were installed the complainant had
rights to it.  Lastly, that the complainant gave consent
for the
removal of the poles and since the poles were installed with concrete
it was reasonable to remove them by cutting them above
ground.
[28]
The learned magistrate stated that he did not intend to deal
with the question of land and who had the authority
to do what on
that land.  He stated that the issue before him was whether the
complainant’s poles were damaged and if so by
whom and whether that
was done intentionally and unlawfully.  He found that the
decision to cut the poles constituted intentionally
damaging the
poles.
[29]
On appeal, it is argued that the appellant was
lawfully performing his functions as Inkosi a traditional
leader.
If the appellant exceeded the bounds of his authority, it is argued,
it is a
bona fide
assertion of a right, which negates malice.  Further, it argued
that the portion of land in question fell within the area under
the
jurisdiction of the appellant.  The appellant and the
Traditional Council, therefore, were entitled to take action to
remove
poles installed on land the complainant had no rights.
Lastly, it was argued, the decision to remove the poles was made with
the consent of the complainant and the complainant did not challenge
it.
[30]
The fact whether an accused had the requisite intention, as
stated by the magistrate, is a factual deduction,
which must be
proved beyond reasonable doubt by the State.  The appellant
maintained that he told the complainant that he had
no right to fence
and to plough in the portion of land.  He told the complainant
to remove the poles and if had planted plants
to remove those
plants.  He added that if the complainant failed to do as
ordered, he and the Traditional Council should do
so.  The
letter written by the appellant dated 6 March 2017 confirms as much.
Therefore, in my view, there is no substance
in the contention that
the complainant gave consent to the removal of the poles.  It
was a decision of the appellant and the
Traditional Council, the
appellant was the chairperson of the council.
[31]
The question is whether the poles were unlawfully installed
which would entitle the appellant as authority in charge
to remove
them.   If the appellant was entitled to remove them, the
manner in which they were installed made it reasonable
to cut them
above the ground.  It is common cause that the portion of land
in question formed part of land under the Ingonyama
Trust constituted
in terms of the KwaZulu-Natal Ingonyama Trust Act No.  3 KZ of
1994 (the Trust Act),  that the appellant
is an Inkosi as
defined in the KwaZulu-Natal Traditional Leadership and Governance
Act No. 5 of 2005 (the Act), that the appellant
exercised
jurisdiction over Emahlanzeni Community, which is a traditional
community, recognised in terms of the Act, that Ndweni
ward falls
within the area of Emahlanzeni.  In terms of section 2(4) of the
Trust Act the land is dealt with in accordance with
Zulu indigenous
law or any applicable law.  Under Traditional Law and Customs
the land occupied by a particular tribe is administered
and held in
trust by the Inkosi and his or her izinduna for the benefit of the
members of the tribe or community concerned.
Each family head
has a right to be allotted a family home site, arable land and the
right to graze his livestock on the pasture-lands.
The land is
allotted to an individual without requiring any return in the nature
of a purchase price.  Individuals holding of
a portion of the
land is inviolable and inheritable.  The process of processing
the request to be allotted a portion of land
is called ‘khonza’
and it may be accompanied by a fee to cover the administrative
expenses of the traditional council called
’khonza fee’.
See
Ingonyama Trust v Radebe
and others
[2012] 2 All SA 212
KZP par 40; 2012 JDR 0050 (KZP)
[32]
The appellant raised a number of grounds, which made it
unlawful for the complainant to install the poles and necessitated
their removal.  He said the poles would result in a fence
fencing in the neighbours restricting their access to their
homesteads
and that fence would block cattle track.  He did not
call any neighbour as a witness or owner of cattle.  There was
also
no evidence that any neighbour or owner of cattle complained to
the appellant or to Mkhize the induna.  The complainant’s
evidence was that there was no objection from the neighbours and the
cattle had the track that they used all along.  Further,
the
appellant stated the complainant was fencing an area going over to
the area of another induna, which would cause a conflict and
war.
The complainant’s evidence was that he was fencing the portion of
land that belonged to his family and he was fencing
it where it was
fenced before.  He stated that induna Ntuli of the other ward
knew the extent and boundary of the portion of
land belonging to his
family.    It appears to me these reasons put forward
by the appellant were to cover his real
reason to have the poles
removed.
[33]
The real reason the appellant objected to the complainant putting up
the fence to fence the portion of land in question
is that the
complainant had not sought permission from him and the Traditional
Council to use the portion of land.   This
is what the
appellant said Mkhize told the appellant the complainant was doing.
It is what Mkhize, on instructions from the
appellant, told the
complainant that he could not do.  In the meeting, the appellant
explained that the complainant did not
have a right to plough on the
portion of land he was fencing. In the letter, dated 6 March 2017 the
appellant reiterated that the
complainant did not have the right nor
permission to use the portion of land that he was fencing.
[34]
The reason initially given by the appellant that the complainant did
not have a right to use the portion of land
in question is stated in
the letter dated 6 March 2017.  The reason was also put to the
State witnesses.  The reason was
that the complainant did not
have a homestead in the Emahlanzeni area and he did not appear in the
register of the residents of the
homestead of his father. The letter
points out that the portion of land in question belongs to the
complainant’s father. It says
that the complainant’s father did
not come to the appellant and tell him that he was giving the portion
of land in question to
the complainant.  It was stated that the
complainant needed to approach the induna with a request to be given
a portion of land
and the induna would convey the request to the
appellant.
[35]
When the complainant and his parents in their evidence made it
clear that the complainant was fencing a family plot
to plough with
concurrence of the family, then the appellant started claiming that
the portion of land had reverted to the nation.
He conceded
that the complainant’s family, before the complainant started to
fence the plot, were never informed that they had
lost their rights
to the plot.  If the plot had not been used from 1978 when the
appellant was installed an Inkosi, it is inexplicable
that the
appellant would only claim the plot as belonging to the nation in
2016.  If the complainant’s family lost their rights
to the
plot after five (5) years of unused, why is the appellant
acknowledging that the complainant knew in 2016 the plot as belonging
to his family?   It is also not explained why the appellant
would initially say the plot belonged to the complainant’s
father
if it belonged to the nation. How can a person loose rights he has to
a plot by it being announced in a meeting that people
who have plots
allotted to them are liable to lose their rights to the plot if they
do not use them.  Further, there is no process
that is initiated
to take away the rights of a person to the plot and it is not
communicated to the affected person that he has lost
his rights to
the plot.  In my view, there is no evidence that the
complainant’s family lost or had lost their rights to the
portion
of land in question.
[36]
It is argued on appeal for the first time that the
appellant mistakenly honestly believed that he was lawfully
exercising
his authority.  This defence was not raised before
the magistrate.  The appellant did not testify and lay basis for
the
claimed defence.  The raised defence acknowledges that the
plot belonged to the complainant’s family and the appellant was
not
entitled to stop the complainant from fencing and using the plot but
the appellant mistakenly thought he was entitled to stop
the
complainant from using the plot. It is strange that the appellant and
the Traditional Council would not know procedures and processes
to be
followed to terminate people’s rights to plots allotted to them. If
the appellant knew the correct factual situation and
it is only that
he attached incorrect legal consequences, it would appear that he
acted under ignorance of the law. The appellant
was presented as a
learned experienced Inkosi.  In rural areas issues of land are
sensitive issues and an Inkosi deals with
such matter all the time.
The loss of rights to an allotted portion of land is a serious
matter.  The induna Mkhize told
the appellant that the
complainant was fencing the plot in order to recommence ploughing as
it belonged to his family.  The
appellant knew the area well and
the history relating to it.  He knew that the plot had never
been taken away from the complainant’s
family.  Nevertheless,
he tried to use his authority to force the complainant’s family off
the plot.  In the trial, the
appellant raised a number of
grounds either to avoid responsibility for cutting and removal of the
poles or to justify his claim
that the complainant did not have a
right to fence and plough the plot.  He arrogantly embarked in
forcing the complainant and
his family out of a plot lawfully
allotted to them.  Arrogance is not ignorance.
[37]
It is trite that the onus is on the State to prove beyond
reasonable doubt all the elements of the crime.  However,
in
S
v Mlambo
1957 (4) SA 727
(A) at 738A-C
it was held that there is no obligation upon the Crown to close every
avenue of escape , and the accused’s claim
to the benefit of doubt
must not be derived from speculation, but must rest upon reasonable
and solid foundation created either by
positive evidence or evidence
gathered from reasonable inferences which are not in conflict or
outweighed by proved facts.
In
S
v Kubeka
1982 (1) SA 534
(W)  at
537F-G where it was held that the test whether there is reasonable
doubt as to the accused’s guilt is not whether
the Court
subjectively disbelieved him, the Court need not even reject the
State’s case in order to acquit him.  The Court
is bound to
acquit him if there exists a reasonable possibility that his evidence
may be true.   In
S v Mnyandu
1973(4) SA 603 (A) it was held that malicious injury to property is
the wrongful and intentional damaging of a thing belonging to
another
person.  The requisite intent is a subjective one either in the
form
dolus directus
or
dolus indirectus
or
dolus eventualis
.
Dolus eventualis
entails the existence of actual awareness by the accused of the
dangers, which might result from his conduct and he reconciling
himself
with that eventuality.  In my view, on the totality of
the evidence there are no basis for the belated claim of the
appellant
of having acted under a
bona
fide
claim of right.
[38]
There were no submissions in the heads of argument relating to
sentence and likewise oral arguments were confined
in challenging the
conviction.  There is no indication that the sentence imposed is
disturbingly inappropriate or is vitiated
by a material misdirection
or that it is so severe that it induces as a sense of shock.  In
my view, the sentence imposed by
the learned magistrate is an
appropriate sentence.  However, in terms of
section 103(1)
of
the
Firearms Control Act 60 of 2000
, the magistrate ought to have
ordered that the appellant is not declared unfit to possess a licence
to possess a firearm.
[39]
In the result, I propose the following order:
1.
The appeal against conviction and sentence is dismissed.
2.
The conviction and sentence by the trial court are confirmed except
that it is
added to the sentence:
‘
It
is ordered in terms of
section 103(2)
of the
Firearms Control Act 60
of 2000
that         the
accused is not declared unfit to possess a firearm.’
MNGADI, J
I
agree,
NKOSI J
TOPPING
AJ (dissenting)
[40]
The appellant was charged in the Magistrates’
Court for the District of Nkandla on one count of malicious injury to
property. It
is alleged in the charge sheet that, in March 2017, and
at or near Ndweni, in the district of Nkandla, the appellant
unlawfully and
intentionally damaged certain poles, such being the
property or in the lawful possession of one Musa Mpongose (“the
complainant”),
by extracting them from where they had been
installed with the intent to injure the complainant in his property.
[41]
The appellant pleaded not guilty to the charge and opted not to make
a statement setting out the basis
of his defence. The appellant was
subsequently found guilty by the learned magistrate and was sentenced
to pay a fine of R 1 500,
in default of undergoing three months
imprisonment, which was wholly suspended for a period of three years,
on condition that he
was not convicted of the offence of malicious
injury to property committed during the period of suspension.
[42]
The appellant now appeals to this court, against both conviction and
sentence, with leave of the magistrate
granted on the 9
th
of May 2019.
[43]
The following was common cause in the court a quo:
(a)
the appellant is an Inkosi, as defined in
the KwaZulu-Natal Traditional Leadership and Governance Act, 5 of
2005 (“the Act”);
(b)
the appellant exercised jurisdiction over
the Emahlazeni Community, which is a traditional community recognised
pursuant to the Act
(“the community”) and which is situated in
the Nkandla area;
(c)
the appellant was also the chairperson of
the Emahlazeni Traditional Council, which is a traditional council
established by the community
pursuant to the Act (“the council”);
(d)
the complainant’s father, Mzuzwane Amos
Mpungose (“Amos”), and his mother, Thokozile Mpungose
(“Thokozile”), resided within
the community over which the
appellant exercises jurisdiction;
(e)
the complainant did not however reside
within the family homestead, but owned a house in KwaDlangeswa and
worked in Vryheid;
(f)
the place where the poles had been erected
formed part of the area that had been allocated to the Mpungose Clan
by the forefathers
of the appellant;
(g)
the Mpungose Clan contend that they had
occupied the land for four generations;
(h)
the field where the poles were situated
fell within that area and had been allocated to the complainant by
his father, Amos;
(i)
the complainant had been informed by an
Induna, Mkhize, to remove the poles but had not done so;
(j)
this fact was reported to the appellant by
the Induna;
(k)
a meeting was then held on the 23
rd
of March 2016, between the appellant, the complainant and Amos, where
the complainant was advised to remove the poles as he did not
have
permission to utilise the land where they had been installed;
(l)
the complainant did not remove the poles
consequent upon that meeting;
(m)
the traditional council was advised of the
aforegoing and it resolved that the poles had to be removed and that
the complainant would
be assisted in removing them;
(n)
a letter was then addressed by the
appellant to the complainant in which it is stated,
inter-alia
“
so
that you should not be in problems you should not do what you are
doing. This is the only lesson I can give. If you believe that
I have
destructed one of your rights, you should do what is right and go to
court so that you can find help. As you have said that
you won’t to
be able to remove the poles, they are foundation [?], we will help
you to remove them without paying”;
(o)
the complainant did not respond to the
appellant’s letter but addressed a letter to the Department of
Co-operative Governance and
Traditional Affairs (COGTA) addressing
the issue of the poles and the land;
(p)
persons, at the behest of the council and
upon the instruction of the appellant, removed the poles by cutting
them at their base;
(q)
the poles themselves were returned to the
Mpungose homestead by the appellant and the Induna;
(r)
the poles were cut in such a manner that
they were shortened in length and the concrete bases into which they
had been mounted were
left in the ground.
[44]
The crime of malicious injury to property is committed when a person
unlawfully and intentionally damages
the property of another. As far
as the elements of the offence are concerned therefore, the State
succeeded in establishing that
the complainant’s property, namely
the poles, were damaged upon an instruction being given by the
appellant that they be removed
from where they had been erected by
cutting them at their base. It is evident from the schedule of
photographs put up by the State
that the poles were so cut, but
otherwise appeared to be intact. The issue for consideration
therefore is whether the State established
that the appellant had the
necessary
mens rea
to be found guilty of the offence.
[45]
The form of
mens
rea
required for this crime is intention and the ordinary principles of
criminal law relating to intention apply.
[1]
If the appellant had no authority to damage the property, but
erroneously believed that he did, his liability may be excluded on
the ground that he lacked the necessary
mens
rea
.
In
Shahmahomed
v Hendriks and others
,
[2]
the Appellate Division held that
‘
Malicious
injury to property is, by law, a crime; but, speaking generally, it
would be sufficient defence to a criminal charge to
show that the
injury complained of had been committed in the bona fide assertion of
a right whether the belief in the existence of
that right was legally
correct or not. Because the state of mind of the accused would
negative malice, which is an essential element
of the crime, see
Conradie
v Kloppers
(10 S.C p. 189).’
[3]
In
the matter of
S
v Marshall
,
[4]
a farmer shot dogs on his farm in the belief that they were
trespassing and that he had the right to do so under a section of an
ordinance. It however transpired that the dogs belonged to a hunt
club with the right to hunt jackal on his farm. The court held
that
the farmer could not be convicted of malicious injury to property and
that it was not be necessary to decide the question whether
or not
the complainant's dogs were actually trespassing on the appellant's
land. The court stated that
‘
If
it appears from all the evidence reasonably possible that the accused
did the act complained of in the bona fide and reasonable
belief that
he had the right to take the measures in question, he should not have
been convicted of malicious injury to property.
(See
Conradie
v Kloppers
,
10 S.C. 189
at p. 191)’.
[5]
[46]
If the appellant therefor
bona
fide
but wrongly believed that he was entitled to remove the poles, he
lacked the unlawful intention necessary to constitute the crime.
His
intention
must be proved subjectively and the application of an objective
criterion, such as reasonableness, is consequently inadmissible.
T
he
test of intention is subjective and was stated thus in
S
v Sigwahla
:
[6]
‘
The
fact that objectively the accused ought reasonably have foreseen such
possibility is not sufficient. The distinction must be observed
between what actually went on in the mind of the accused and what
would have gone on in the mind of a
bonus
paterfamilias
in the position of the
accused. In other words, the distinction between subjective foresight
and objective foreseeability must not
become blurred. The
factum
probandum
is
dolus
,
not
culpa
.
These two different concepts never coincide
’.
[47]
The onus of proving the unlawfulness of the act rests upon the
prosecution. In
R
v Bhaya
,
[7]
it was stated that,
‘
As
was pointed out by CENTLIVRES, C.J., in
Rex
v Mkize
,
1951 (3) SA 28
at p. 32, it is one thing to reject an accused's
evidence on the ground that he has failed to establish the
truthfulness of his version,
but it is quite another thing to reject
an accused's evidence after bearing in mind that the onus of
establishing its falsity rests
on the Crown. In the present case the
onus
was upon the Crown to establish affirmatively that the appellant, in
damaging the complainant's car, did so maliciously, and if the
evidence left the matter in doubt, then the
onus
upon the Crown was not discharged. If, however, the
onus
had been on the appellant to establish that he did not act
maliciously, this onus would not have been discharged unless his
evidence
were accepted. The distinction is of importance because the
magistrate's reasons seem to me to indicate that he felt that unless
he accepted the appellant's story the defence must fail. The true
position is that if the appellant's story is one which might
reasonably
be true and which is inconsistent with his guilt, he was
entitled to be acquitted.’
[8]
[48]
If reference is had to the appellant’s version of events, he stated
that he had been advised by one
of his Indunas, Mkhize, in March 2017
that the complainant had erected poles in a place where he was not
entitled to do so. The place
was described as being where the
complainant’s parents had a homestead. The appellant was further
advised that the Induna had informed
the complainant that he was not
entitled to erect the poles, but was informed by the complainant that
the areas belonged to the Mpungose
Clan. The appellant stated that,
according to his records, the complainant was not listed as a person
being entitled to occupy the
Mpungose homestead. He stated that he
was accordingly of the view that, as the land where the poles were
erected lay fallow and had
not been used for a considerable period of
time, it had reverted back to “the nation”. He was also of the
view that the complainant
was not entitled to utilise the land until
he had received permission to do so from the council.
[49]
A meeting was then held between himself, the complainant and Amos,
where the complainant was told that
he was not entitled to utilise
the land where the poles had been erected and was instructed to
remove them. The complainant however
stated that it would be
difficult for him to remove the poles as they had been mounted in
concrete and he was not resident in the
area. The appellant also
stated that the complainant then apologised to him and was then given
a deadline that the poles had to be
removed by the end of May.
[50]
The complainant did not remove the poles as instructed. The appellant
then reported this fact to the
traditional council. The council was
informed by the appellant that, as the complainant had advised him
that it would be difficult
to remove the poles, he should be assisted
in this regard. The council then took the decision to assist the
complainant in removing
the poles. The council also took the decision
that they should cut the poles and then return them to the Mpungose
homestead.
[51]
The appellant then addressed a letter to the complainant stating
that, since it would be difficult for
him to remove the poles, the
council would assist him with removing them. He emphasised that it
was not him that was going to assist,
but the council. When the
complainant did not respond to the letter, he arranged for people to
cut the poles and remove them. It
was he, in his position as
chairperson of the council, that requested the Induna to implement
the decision of the council to remove
the poles. The appellant was
later advised by the Induna that the poles had been cut and he
assisted in returning the poles to the
Mpungose homestead by
utilising his vehicle.
[52]
Under cross-examination, the appellant clarified that any reference
to “we” in his letter included
him. He conceded that it was him,
as the chairperson of the council, that had made the arrangements to
remove the poles, as the council
had taken the decision to remove
them after it had received the request from the Induna. He maintained
the view that he and the council
were “assisting” the complainant
in removing the poles. He was of the view that the complainant was
endeavouring to fence off
the land for his exclusive use without
following the proper procedures.
[53]
If reference is had to the complainant’s evidence, he stated that
everyone in the neighbourhood knew
that the land belonged to the
Mpungose Clan, but conceded that the Induna might not have known
this, as he was new. As regards the
meeting with the appellant, the
complaint stated that there was a meeting between them regarding the
poles, but that no agreement
was reached. He admitted receiving a
letter from the appellant stating that he had to remove the poles. He
also conceded that the
letter “contained words” stating that if
he was not satisfied, he must go to court to get some help. He
therefore wrote to COGTA.
He did not know that he was not recorded as
a member of the Mpungosi Clan in the appellant’s records.
[54]
There is accordingly nothing in the complainant’s evidence that
gainsays the appellant’s version
that he was at all times of the
opinion that the complainant was not entitled to erect the poles and
that it was incumbent upon him,
as the Inkosi, to ensure their
removal. If anything, he confirms the appellant’s version that a
meeting was held where he was instructed
to remove the poles, that he
thereafter did not do so and received a letter from the appellant,
addressed to him in his capacity
as the chairperson of the
traditional counsel, instructing him to remove the poles, and that,
if he was not able to do so, the council
would help him to remove the
poles without charge.
[55]
Amos, the complainant’s father, was called in evidence by the
State. He took the State’s case no
further than to confirm that the
land where the poles had been erected had been allocated to the
Mpungose Clan. It had been allocated
to his great-grandfather by the
then Inkosi. He did however confirm that the land had not been
ploughed for some time because of
the rainy conditions that had
prevailed. He also confirmed that the complainant did not go to the
appellant to “
khonza
”
and obtain permission to utilise the land concerned. He also did not
have much recollection of the meeting held between his son
and the
appellant.
[56]
Thokozile, the complainant’s mother stated in evidence that her son
had been told by the appellant
to stop ploughing, although she
contends this was only for a while. She stated that the Induna had
told the complainant to stop erecting
the poles and that he had also
been told to remove them, but did not do so as he was of the opinion
that they were “rightfully
installed”. She confirmed that she was
aware of the meeting being held between the complainant, Amos and the
appellant about the
removal of the poles. She was advised that it had
been agreed at the meeting that the complainant and his uncle,
Abednego, would
remove the poles. Her evidence also does not gainsay
that of the appellant.
[57]
Of significance however is her evidence regarding what transpired on
the morning in March 2017, when
the Induna attended upon her
homestead. Upon greeting him, he informed her that he and the
appellant were returning the poles and
that the complainant was not
being charged any money for removing them. She then went to greet the
appellant, who also confirmed
that the poles had been removed from
where they had been erected and that the complainant was not going to
be charged any money for
removing them. This, if anything, confirms
the appellant’s state of mind at the time of the incident. It fits
in with the appellant’s
version that he believed that he was
carrying out his duties as an Inkosi in directing that the poles be
removed and in assisting
in returning them to the Mpungose homestead.
There is simply no reason why he would act in such manner if he did
not genuinely believe
that he was carrying out what had been resolved
by the council regarding the removal of the poles.
[58]
In argument, counsel representing the State made reference to the
case of
Ingonyama
Tust v Radebe and others
,
[9]
where the traditional law and customs are set out. He submitted that,
in accordance therewith, the appellant was not entitled to
alienate
land which had previously been allocated to the Mpongose Clan. It was
his submission that once the land had been allocated
to the Mpongose
Clan, the right to hold the land is inviolable and inheritable. He
therefore contended that the appellant did not
have the authority to
act in the manner in which he did and ought, in his position as
Inkosi, to have known the provisions of the
traditional law and
customs and therefore known that his actions were wrongful.
[59]
If one has reference to the evidence however, the appellant was not
endeavouring to alienate the land,
but was endeavouring to administer
it by preventing the complainant from demarcating a portion thereof,
which, in the appellant’s
opinion, was being done so as to utilise
it for his exclusive use. Whether the appellant was correct in his
assumption that the land
had, by virtue of traditional law and
custom, reverted to the nation, is not an issue for determination in
these proceedings. What
is relevant is whether the appellant was
bona
fide
in that assumption and thereby did
not have the necessary
mens rea
to commit the offence. In this regard, no evidence was led by the
State to gainsay the appellant’s expressed state of mind, nor
was
there any evidence led to suggest that he ought to have known, by
virtue of his knowledge of traditional law and custom, or otherwise,
that he was not entitled to act as he did. This was an issue not
canvassed in the court
a quo
,
nor was any evidence led in this regard. The State simply relied on
the evidence of the complainant and his parents to prove its
case
against the appellant. As outlined above, I am of the view that this
evidence, if anything, supports the appellant’s version
as to his
state of mind.
[60]
This being so, I am of the view that the appellant’s version is one
which is inconsistent with his
guilt and is also one which might
reasonably be true. He is therefore entitled to be acquitted. If
reference is had to the judgment,
the learned magistrate focused on
the appellant’s actions and not his state of mind. In doing so the
court a quo misdirected itself
and erred in coming to the conclusion
that the State had proved all the elements of the offence beyond
reasonable doubt. This being
so, this court is entitled to interfere
with that decision.
[61]
I am accordingly of the view that the appeal on conviction ought to
succeed and the verdict of the magistrate
ought to be altered to one
quitting the appellant.
[62]
The following order is therefore made:
(s)
the appeal on conviction is upheld;
(t)
the order of the learned magistrate for the
District of Nkandla, handed down on the 18
th
of December 2018 on both conviction and sentence is set aside and is
replaced with the following:
“
The
accused is found not guilty and discharged”.
___________________________
TOPPING AJ
APPEARANCES
Case
Number
:
AR 174/2020
For
the Appellant                       :
G Lepan
Instructed
by
:
Ngwenya & Zwane Attorneys
EMPANGENI
For
the respondent                 :
K.M. Shah
Instructed
by
: Director of Public Prosecutions
PIETERMARITZBURG
Heard
:   26 February 2021
Judgement
delivered on
:     07 May 2021
[1]
R
v Pope
1953 (3) SA 890
(C) at 894;
S
v Kgware
1977 (2) SA 454
(O). There is no presumption of malice, as was
suggested in some earlier decisions. See A St O Skeen (updated by S
Hoctor) ‘Criminal
Law’ 6
Lawsa
2 ed (replacement volume 2010) para 330.
[2]
Shahmahomed
v Hendriks and others
1920 AD 151.
[3]
Ibid
at 158. See also JRL Milton: South African Criminal Law and
Procedure: Volume II, Third Edition: at pg 776 where the following
is stated
‘
Though
there are some old cases which suggest that proof of an intentional
injury to property casts an onus on X of proving lack
of "malice",
the true position is that the onus of proving all the elements of
the crime remains on the State throughout.
Proof of an intentional
injury may, however, raise an inference (or "presumption"
of fact) that all the elements the
crime are satisfied, and thus
oblige X to adduce evidence raising as an issue that he did not act
unlawfully or, if he did, that
he acted under a
bona
fide
claim of right. But even if he
does not adduce any evidence, the court may still not be satisfied
beyond a reasonable doubt that
he is guilty.’
[4]
S
v Marshall
1967 (1) SA 171 (O).
[5]
Ibid
at 175.
[6]
S
v Sigwala
1967
4 SA 566
(A) at 570C–D. See also
R
v Horn
1958 (3) SA 457
(A) at 466G-H;
S
v Sinzani
1979 (1) SA 935
(E) at 939F.
[7]
See
R
v Bhaya
1953
(3) SA 143
(N) at 146F–G.
[8]
R v
Bhaya
1953 (3) SA 143
(N) at 149, was decided on the assumption that
reasonableness of the belief was required. The correctness of the
decisions on this
point are open to question, since they do not
conform to the subjective test of intention. See A St O Skeen
(updated by S Hoctor)
‘Criminal Law’ 6
Lawsa
2 ed (replacement volume 2010) para 330.
[9]
Ingonyama
Tust v Radebe and others
[2012] 2 All SA 212
(KZP), where the following was stated:
“
[40]
. . . Under traditional law and customs, the land occupied by a
particular tribe is administered and held in trust by the Inkosi
and
his or her
izinduna
for the benefit of the members of the tribe or community concerned.
Each family head has the right to be allotted a family home
site,
arable land and the right to graze his livestock on the
pasturelands. The land is allotted to an individual without
requiring
any return in the nature of a purchase price. Individuals'
holding of a portion of the land, is inviolable and inheritable . .

.
[41] An individual
coming into another tribe, obtains permission to settle from the
head of the homestead in which he settles. The
head of the homestead
in turn obtains the permission from the Induna of the ward. . .
[42] When a man
enters into marriage in a tribal land and requires land he usually
chooses a suitable unoccupied portion and asks
his prospective
neighbours or the Induna of the area if he may take it.
Alternatively, he may approach the Inkosi who would then
consult the
Induna of the area concerned . . . The Inkosi's right is a power to
allot unallotted land and not a right to enjoy
the use of allotted
land or to take the fruits thereof. Similarly, the Induna has
administrative duties in regard to land, not
rights of ownership in
land allotted to others. However, he has individual's rights in the
portion allotted to himself on the same
basis as everyone else.”