Brief Summary

Criminal Law — Self-defence — Justification for use of lethal force — Appellant, a police constable, convicted of murder after discharging his firearm during a violent protest, resulting in the death of a protestor — Appellant claimed he acted in self-defence, believing his life and that of his colleague were in danger — Court assessed whether the use of lethal force was justified under the circumstances. The appellant was involved in a police operation during a protest against the demolition of informal settlements. He fired two shots from his service weapon, one of which fatally struck a protestor. The appellant contended that he perceived an imminent threat from the crowd, which he claimed was attacking them. The court held that the appellant failed to establish a reasonable belief that his life was in imminent danger, and thus the use of lethal force was not justified. The conviction for murder was upheld.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter was a criminal appeal in the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg, against both conviction and sentence for murder. The appellant, Phumlani Ndlovu, was a serving South African Police Service constable at the time of the incident. The respondent was the State.

The appellant had been convicted of murder in the Regional Court, Durban on 14 July 2017 and was sentenced on 15 January 2018 to 10 years’ imprisonment. The appeal was pursued with the leave of the trial court. The appeal was heard by Vahed J (with Jappie JP concurring) and judgment was delivered on 24 May 2019.

The dispute concerned whether the State had proved beyond reasonable doubt that the appellant unlawfully and intentionally killed the deceased, or whether the appellant’s conduct was justified on the basis of private defence and/or necessity, in circumstances arising from a violent protest action and the claimed endangerment of police officers at the scene. A further issue concerned whether the trial court’s evaluation of the evidence was vitiated by material misdirections, thereby permitting appellate interference.

2. Material Facts

The appellant was on duty as a uniformed police constable on the night of 29–30 September 2013, having booked on duty at 18h00 at Cato Manor Police Station. He was paired with Constable Nzama, and they were performing general crime-prevention and complaint-response duties during a 12-hour shift ending at 06h00.

During the early hours of 30 September 2013, a large crowd from the Cato Crest community engaged in protest action related to the demolition/clearing of informal settlements by the local municipality. The police were dispatched to the area, where a confrontation developed in Harcombe Gardens. The crowd size was estimated at approximately 300 to 500 persons, and the appellate court treated the numerical variance as not determinative.

It was common cause that the police fired a total of five shots, and that the appellant fired two of those shots. A young woman in or near the crowd was fatally wounded. Ballistic evidence linked the fatal bullet to the appellant’s police-issued firearm. This ballistic linkage was the foundation for the prosecution and the ultimate conviction in the court a quo.

The versions diverged sharply on what precipitated the firing and whether police officers were under attack. The State’s eyewitnesses, Ngidi and Mthethwa, presented a version that the protestors were essentially unarmed and that police fired without justification. Ngidi testified that protestors were marching and that police emerged from vehicles and fired at the crowd without warning. Under cross-examination, Ngidi conceded that protestors used stones to block the roadway and burn tyres, but he maintained that police fired into the crowd and that the crowd did not damage police vehicles. Mthethwa similarly claimed the crowd was unarmed, stated that bright headlights impaired identification, and ultimately conceded he could not reliably identify the shooter; he also denied an attack on the police vehicles. Portions of Mthethwa’s evidence regarding the deceased being struck twice were inconsistent with the medical evidence recording a single gunshot wound.

The defence version, advanced by the appellant and supported by Constable Nzama, was that the police were confronted by a violent crowd and that the officers were in grave danger. The appellant testified that the police vehicle was damaged, that there was an attack on the vehicle, and that he heard what he believed was a gunshot from the direction of the crowd. He said he fired into the ground as a means to cause dispersal and to facilitate retreat, particularly because protesters were in close proximity to Nzama and posed a risk of dispossessing him of his firearm. The appellant’s evidence emphasised the immediacy of the threat and the limited time to retreat.

Nzama testified to a more detailed account of a direct physical assault on the police vehicle and on him personally. He described burning tyres and a road barricade, a crowd carrying weapons such as spears, iron rods, stones and tyres, and a sequence in which stones were thrown, a brick cracked the windscreen, the driver’s window was shattered, and multiple persons attempted to pull him from the vehicle while also trying to open the door. Nzama testified that he was trying to protect his service firearm while being pulled and that he fired into the ground to cause the crowd to retreat, enabling escape. Nzama stated that events unfolded rapidly and that not all protestors posed a threat, but those immediately at the vehicle did.

The trial court rejected the defence version as false beyond reasonable doubt, finding it improbable that the appellant fired into the ground and concluding instead that the appellant fired into the crowd, with foresight of the possibility of death. The appellate court’s evaluation of the record, however, highlighted that the trial court did not properly engage with certain material aspects of the defence evidence, particularly the evidence relating to the immediacy and seriousness of the threat to Nzama.

3. Legal Issues

The central legal questions were whether, on the evidence as a whole, the State proved unlawfulness and the required form of fault for murder beyond reasonable doubt, given the appellant’s reliance on private defence and necessity.

A further legal issue was whether the trial court misdirected itself in its approach to the evidence and to the defences raised, including whether it impermissibly ignored material evidence, drew adverse inferences without proper factual ventilation, and failed to undertake the correct initial enquiry into the lawfulness of the appellant’s conduct when private defence is raised.

The dispute thus primarily concerned the application of legal standards to fact, including an evaluative judgment about reasonableness in the context of defensive conduct, and the proper treatment of conflicting versions under the criminal standard of proof. It also implicated the appellate threshold for interfering with factual findings, in light of alleged misdirections by the trial court.

4. Court’s Reasoning

The appellate court approached the matter on the basis that criminal adjudication requires an outcome that accounts for all the evidence, including evidence that may be unreliable or false, but which may not simply be ignored. In this regard, the court relied on the principle expressed in S v Van Der Meyden 1999 (1) SACR 447 (W) (endorsed in S v Heslop 2007 (1) SACR 461 (SCA)) that a court’s conclusion must accommodate the totality of the evidence, and that none of it may be disregarded.

Against that standard, the appellate court found that the trial court’s evaluation was defective because it failed to take proper account of the State witnesses’ improbabilities and the extent to which their versions were at odds with objective indicators referred to in the record, including the broader circumstances of the protest action and the contested dynamics at the point of confrontation. The appellate court was critical of the trial court’s approach of rejecting the defence version as highly improbable without adequately engaging with what was common cause (including the discharge of police firearms and the volatile scene) and without dealing properly with the contextual evidence that bore on the defences raised.

The appellate court reiterated the orthodox criminal standard that an accused’s version does not need to be accepted as probably true in every detail; it must be acquitted upon if it is reasonably possibly true in substance. In this respect, the court invoked S v Shackell 2001 (2) SACR 185 (SCA) to emphasise that improbability alone does not justify rejection unless the version is so improbable that it cannot reasonably possibly be true.

A major theme in the appellate reasoning was that, when private defence is raised, the initial enquiry is directed to the lawfulness of the conduct, and the objective test of reasonableness is applied to the defensive act in context. Relying on S v Steyn 2010 (1) SACR 411 (SCA) and S v Pakane and Others 2008 (1) SACR 518 (SCA), the appellate court accepted that private defence is judged objectively: force is justified if it is reasonably necessary to repel an unlawful attack, and the inquiry is sensitive to circumstances such as proximity of danger, relative positions of parties, and what could reasonably be expected of the defender at the crucial moment.

In that context, the appellate court rejected the trial court’s criticism that the appellant and Nzama should have retreated, holding that such criticism was unwarranted on the record. The court endorsed the proposition drawn from Steyn that it cannot necessarily be expected of a person to “gamble with life” by turning away from an imminent threat, and that the reasonableness assessment must be grounded in the immediacy of risk and the practical options available.

A decisive misdirection identified by the appellate court was the trial court’s failure to engage with the evidence regarding whether Nzama’s life (or safety) was under threat from persons at the vehicle who damaged it and attempted to pull him out. The appellate court regarded this as a foundational factual enquiry that should have informed the lawfulness analysis of the appellant’s response. By failing to address it, the trial court was found to have ignored material defence evidence and thereby misdirected itself.

The appellate court further addressed inferential reasoning. It held that the trial court drew an adverse inference—namely that the appellant fired into the crowd—without a proper evidential basis and without acknowledging that this was not the only reasonable inference available on the record. The court invoked S v Heslop 2007 (1) SACR 461 (SCA) in relation to the fair-trial requirement that if an adverse inference is to be drawn, the underpinning facts must be properly ventilated during the trial. The appellate court considered that the trial court relied on aspects of Nzama’s evidence about firearm position and certain report phrases, despite Nzama not having seen the direction in which the appellant fired, and despite other relevant contextual evidence.

The appellate court also considered that the trial court placed undue emphasis on the appellant’s concessions that he could not dispute the ballistic linkage and the absence of ricochet marks. The appellate court construed these answers as reflecting the appellant’s lack of expert competence to challenge forensic evidence, rather than admissions that established unlawful firing into the crowd.

In addition, the appellate court found that the trial court did not deal with the defence of necessity “at any level,” despite it being raised. Referring to Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA), the appellate court stressed that necessity, unlike self-defence, does not require that the defensive act be directed at the attacker, and that its application depends on all the circumstances, including whether a legal interest was endangered by an imminent threat not caused by the actor’s fault, whether the conduct was necessary to avert the danger, and whether the means used were reasonable. The appellate court accepted that, had the trial court analysed the evidence against these requirements, it would have been driven to a different conclusion.

Finally, the appellate court addressed the State’s reliance on the principle limiting appellate interference with factual findings, as articulated in S v Francis 1991 (1) SACR 198 (A). The appellate court held that the trial court committed material misdirections on crucial aspects, with the result that the appellate court was “at large” to re-evaluate the matter and interfere. On that re-evaluation, the appellate court concluded that the appellant’s conduct was lawful on the record as assessed through the prism of the applicable defences and the criminal standard of proof.

5. Outcome and Relief

The appeal against conviction and sentence was upheld. The High Court set aside both the conviction for murder and the sentence of 10 years’ imprisonment imposed by the Regional Court.

The High Court substituted the trial court’s outcome with an order that the accused was found not guilty and discharged. The judgment did not make any separate or additional order as to costs.

Cases Cited

S v Van Der Meyden 1999 (1) SACR 447 (W).

S v Heslop 2007 (1) SACR 461 (SCA).

S v Shackell 2001 (2) SACR 185 (SCA).

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

S v Pakane and Others 2008 (1) SACR 518 (SCA).

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

Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA).

S v Francis 1991 (1) SACR 198 (A).

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 35(3).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court materially misdirected itself in its assessment of the evidence and the defences raised, including by failing to engage with material defence evidence regarding the threat to Constable Nzama, by drawing adverse inferences not properly supported or ventilated, and by failing to consider the defence of necessity.

It further held that, once these misdirections were established, the appellate court was entitled to interfere with the conviction. On a proper evaluation of the evidence under the criminal standard of proof, the appellant’s version could not be rejected as false beyond reasonable doubt and the appellant’s conduct was found to be lawful in the circumstances. The conviction and sentence were accordingly set aside and replaced with an acquittal.

LEGAL PRINCIPLES

The judgment applied the principle that a criminal court’s conclusion must account for all the evidence; evidence cannot simply be ignored even if parts of it are rejected as unreliable or false, and the overall conclusion must be consistent with the evidential totality as articulated in S v Van Der Meyden 1999 (1) SACR 447 (W) and endorsed in S v Heslop 2007 (1) SACR 461 (SCA).

It reaffirmed that, under the criminal standard of proof, the prosecution must prove guilt beyond reasonable doubt, and an accused’s version need only be reasonably possibly true in substance to require acquittal. A version cannot be rejected merely because it is improbable unless it is so improbable that it cannot reasonably possibly be true, as set out in S v Shackell 2001 (2) SACR 185 (SCA).

In relation to private defence, the judgment applied that the enquiry is directed first to the lawfulness of the accused’s conduct, assessed objectively, and that the defensive act must bear a reasonable relationship to the attack when all circumstances are considered. The court reiterated that strict proportionality is not required; rather, the question is whether the defender acted reasonably in the circumstances, consistent with S v Steyn 2010 (1) SACR 411 (SCA), S v Pakane and Others 2008 (1) SACR 518 (SCA), and the contextual considerations highlighted in S v Trainor 2003 (1) SACR 35 (SCA).

The judgment recognised that the obligation to retreat is not absolute, and that it may be unreasonable to expect a person to turn away from imminent danger where doing so would require “gambling” with life, as reflected in S v Steyn 2010 (1) SACR 411 (SCA).

Regarding necessity, the judgment applied that necessity does not require the defensive act to be directed at the perpetrator of an unlawful attack, and that justification depends on all the circumstances, including the imminence of the danger, the absence of fault in creating it, the necessity to avert it, and the reasonableness of the means used, as discussed in Maimela and Another v Makhado Municipality and Another 2011 (6) SA 533 (SCA).

Finally, the judgment applied the appellate principle that interference with factual findings is limited absent misdirection, but once material misdirection is shown, an appellate court is entitled to re-evaluate the evidence and substitute its own conclusions, consistent with S v Francis 1991 (1) SACR 198 (A).

Ndlovu v S (AR126/2018) [2019] ZAKZPHC 30 (24 May 2019)