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[2019] ZAKZPHC 66
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Mgidi v S (AR212/2017) [2019] ZAKZPHC 66 (31 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION:
PIETERMARITZBURG
CASE NO:
AR212/2017
In
the matter between:
Mthobisi
Mtho Mgidi
Appellant
and
The
State
Respondent
Judgment
Lopes
J
[1]
On the 14
th
of September 2015, and in the Umlazi Regional Court, the appellant,
Mthobisi Mtho Mgidi, was convicted of one count of robbery
with
aggravating circumstances and one count of murder. On the 15
th
September 2015 he was sentenced to undergo 15 years’
imprisonment on the count of robbery, and life imprisonment on the
murder count.
[2]
The matter comes before us by way of leave to appeal having been
granted against the
robbery count, and Mr Mgidi’s inherent
right to appeal against the sentence of life imprisonment for murder.
Two points in
limine
were
raised in the heads of argument of Mr
Dlamini
,
who appeared for Mr Mgidi. In argument, he abandoned them, and
I shall not deal with them. In my view the points raised
have no
merit in any event.
[3]
With regard to the conviction of Mr Mgidi, it is necessary, firstly,
to examine facts
surrounding the incident leading to the death of the
late Blessing Nkosinathi Siyabonga Khanyile. They may be summarised
as follows:
(a)
At about 3:00am on the 20
th
of September 2014 Mr Mgidi and
his friend Andile Sikhakhane were proceeding along the road to Mata’s
Tavern. They had been
drinking from earlier the previous day at
another tavern which is located at a local carwash. That tavern
had closed and
Mr Mgidi and Mr Sikhakhane could no longer drink
there.
(b)
Along the road they met the late Mr Khanyile. At this stage it was
clear that all three
of them were intoxicated, and manifestly so.
(c)
Having been told that Mata’s Tavern was also closed, Mr
Sikhakhane went ahead
of Mr Mgidi in order to see for himself whether
the tavern was in fact closed. He then heard someone calling
him and he looked
back and saw Mr Mgidi stabbing the late Mr Khanyile
with a knife. He saw Mr Mgidi stab him more than once, and at
that stage
Mr Khanyile was lying on his back, and Mr Mgidi was bent
over him stabbing him in the chest region.
(d)
Mr Sikhakhane then went up to Mr Mgidi and pushed him away from Mr
Khanyile.
(e)
After pushing Mr Mgidi away, Mr Sikhakhane then proceeded along the
road. When doing so,
he again met Mr Mgidi who was covered in blood,
and carrying a belt and either shoes or takkies which Mr Sikhakhane
stated belonged
to the late Mr Khanyile.
(f)
Early the next morning Mr Sikhakhane reported the incident to the
late Mr Khanyile’s
family.
(g)
Mr Sikhakhane also testified that the knife used was a kitchen knife,
and he was of the
view that Mr Mgidi had obtained it from persons who
were selling chicken at the shops at the carwash, where the first
tavern was
situated. He had seen Mr Mgidi helping them carry
their goods as they were heading home. Mr Sikhakhane had no knowledge
of
the circumstances under which Mr Mgidi obtained possession of the
knife.
(h)
Mr Sikhakhane did not enquire from Mr Mgidi why he was stabbing Mr
Khanyile. He did, however,
confirm in cross-examination that Mr Mgidi
was so drunk that he was not behaving normally, and in his evidence
he referred to him
staggering, and not speaking normally.
(i)
Mrs Zanele Mgidi testified that she was the mother of Mr Mgidi, and
that she
had seen him on the morning of the 20
th
of
September 2014 at approximately 7:00am standing outside their home.
His trousers, which were on the ground, were full
of blood. She
also saw a blood-stained knife. She then telephoned the South
African Police Services but Mr Mgidi had
already fled. She confirmed
that he had been drunk because she saw him staggering and crying.
[4]
Against the evidence set out above Mr Mgidi testified that he could
not recall what
had happened on the day in question. He
remembered his mother seeing him with blood on his t-shirt and she
was shouting at
him. He could remember her calling the police,
but he ran away. He did so because he had heard from other
persons who
came to his house, that the police officers were looking
for him.
[5]
Mr Mgidi denied that he sustained any abrasions or bruises on the
night in question.
He could neither confirm nor deny that he
was the person who stabbed Mr Khanyile, because he could not
remember. He could remember
quarrelling with Mr Sikhakhane, parting
company and sleeping at the homestead of one Botsotso.
[6]
At the outset of the appeal, Mr
Dlamini
submitted that the
defence of Mr Mgidi should be classified as temporary
non-pathological criminal incapacity. Mr
Dlamini
submitted
that, as this was raised at the outset of the trial, the State bore
the onus of proving criminal capacity and has failed
to discharge
that onus. In those circumstances Mr Mgidi should not have been
convicted of any crime.
[7]
Mr
Dlamini
referred to the decision in
The
Director of Public Prosecutions, KwaZulu-Natal v Ramdass
2019 JDR 0679 (SCA), where, in the court
a
quo
,
Ploos van Amstel J acquitted the accused of both robbery and murder
because he found that the State had not proved that he had
the
necessary criminal capacity. The decision in the court
a
quo
was
upheld by the Supreme Court of Appeal.
[8]
Ms
Dube
, who appeared on behalf of the State before us,
submitted that
Ramdass
was distinguishable from the facts of
this case because:
(a)
Ramdass
pertinently raised the defences, whereas in the
present matter Mr Mgidi pleaded not-guilty, because he could not
recall having
committed the offences. Unlike
Ramdass
, Mr Mgidi
was not sent for observation in terms of the Criminal Procedure Act,
1977
(b)
In
Ramdass,
expert evidence was led from Professor Mkhize to
speak to Mr Ramdass’s ability to understand the proceedings so
as to make
a proper defence and whether he was criminally responsible
for the offences. That was not requested or done in this matter.
(c)
The memory of Mr Mgidi was selective, because he remembered things
which had taken
place shortly before and after the incident.
[9]
In the judgment in
Ramdass
a quo,
S v Ramdass
2017 (1)
SACR 30
(KZD), the learned judge referred to the statement by Rumpff
CJ in
S v Chretien
1981 (1) SA 1097
(A) at 1108C, that the
fact that a person cannot remember what they did, does not mean that
they were not criminally responsible.
Ploos van Amstel J also
pointed out that amnesia itself is not a defence, but may be relevant
in determining whether automatism
or lack of criminal capacity has
been established (See:
S v Piccione
1967 (2) SA 334
(N) at 335
C-D). He also referred to
S v Eadie
2002 (1) SACR 663
(SCA) para 2 that in assessing temporary non-pathological criminal
incapacity, a court must consider:
(a)
The State is assisted in discharging the onus by the natural
inference that, save in exceptional
circumstances, a sane person who
commits a criminal act does so voluntarily and consciously.
(b)
The accused must lay a foundation for the defence, sufficient to
raise a reasonable doubt
as to his capacity
(c)
The evidence must be carefully scrutinised.
(d)
The court must have regard to the expert evidence and all the facts,
including the nature
of the accused’s conduct during the
relevant period.
With
regard to the above, the plea was not precisely made, and no
suggestion was made that the accused should have been sent for
mental
observation. In addition, no expert evidence was led. Although
the evidence of the State witnesses clearly established
that alcohol
played a role in the unfolding events, it is clear that Mr Mgidi was
of sound enough mind to procure the knife with
which he assaulted Mr
Khanyile. I agree with the submission of Ms
Dube
that Mr Mgidi
was selective in his evidence about what he remembered, and what he
did not. He remembered his interaction
with his mother after
arriving at home, and his actions in crying and then fleeing,
indicate that he must have known what he did.
In all the
circumstances the defence of temporary non-pathological criminal
incapacity must fail.
[10]
It is now necessary to deal with the merits of the offences. In his
work Jonathan Burchell
Principles of Criminal Law
’ 5ed
(2016) at 721, the learned author records that:
‘
Robbery consists in the theft
of property by intentionally using violence or threat of violence to
induce a person to submit to
the taking of the property’
.
In
the circumstances of the present case there is no evidence that the
violence occasioned to Mr Khanyile by Mr Mgidi was instigated
with
the intention of depriving him of his property. The essence of
robbery is that the violence must be intended to induce
submission to
the taking of the property. The only witness to the stabbing,
Mr Sikhakhane, did not testify as to anything
in the initial
exchanges between Mr Mgidi and the late Mr Khanyile which could have
led to the inference that Mr Mgidi intended
to rob Mr Khanyile.
The fact that he may have taken items belonging to Mr Khanyile after
he had assaulted him, and he was
apparently dead, does not lead to
the inference that the initial assault was intended to induce
submission to the taking of the
property.
[11]
In this regard I refer to
Mokoena v S
(A242/2013)
[2014]
ZAFSHC 72
(22 May 2014) para 27 (referred to in Burchell
Principles
of Criminal Law
, at 723) where Motloung AJ stated:
‘
Relying on the evidence above,
the trial court convicted the appellant of robbery with aggravating
circumstances. In
my view the trial court erred. The
magistrate said the only reasonable inference is that the appellant
robbed the deceased of his
wallet with aggravating circumstances.
There is more than one inference that can be drawn. . . . .’
In this particular
instance there is no evidence that at the
time of taking the deceased’s wallet, he was still alive or
dead. In the
result robbery as defined above, cannot succeed as
there is no evidence of violence being used to induce the deceased to
submit
to his belongings being taken. The property must be obtained
by appellant as a result of violence or threat of violence. The
premise
is that the violence must precede the taking and that robbery
is not committed if the violence is used to retain a thing already
stolen or to facilitate escape. If this happens, appellant commits
theft and assault. The converse is also true. If appellant
assaulted the deceased, after the assault discovers that the deceased
had by chance dropped some of his property and then only
for the
first time forms an intension of taking the property, he does not
commit robbery if he picks up the property and appropriates
it, he
may however be charged with, and convicted of assault and theft’.
Motloung
AJ relied upon
S v Moerane
1962 (4) SA 105
(T) at 106 D;
S
v Jabulani
1980 (1) SA 331
(N);
S v Matjeke
1980 (4) SA
267
(B); and CR Snyman
Criminal Law
5ed at 518.
[12]
As in
Mokoena’
s
case, there is no evidence in the present matter to suggest that Mr
Mgidi intended to rob Mr Khanyile. In those circumstances
Mr
Mgidi should have only been convicted of the murder of Mr Khanyile
and the theft of a belt and a pair of takkies. In my
view the
learned magistrate, as in the
Mokoena
case, erred in concluding that the only inference which could be
drawn was that Mr Mgidi intended to rob Mr Khanyile. There is
in my
view no basis for finding that Mr Mgidi intended to rob Mr Khanyile,
far less – as the learned magistrate stated –
that with
regard to his attack upon Mr Khanyile, ‘clearly it was brought
on by the accused’s intention to rob the deceased.’
[13]
The conclusion at which I have arrived also affects the conviction of
murder. I say this because
the minimum sentencing provisions are only
applicable in the circumstances set out in (a) to (f) of Schedule 2
part I, to the
Criminal Law Amendment Act, 1997
. In my view none of
those circumstances are applicable. The fact that Mr Mgidi was
in possession of a knife, even if he had
appropriated it to himself
unlawfully, does not in any way indicate that he intended to use it
to rob or murder anyone at the time
he acquired the weapon. In my
view there can be no suggestion that the murder was planned or
premeditated and, for the reasons
set forth above, it was not
committed in an incident of robbery. Accordingly none of the
provisions in Schedule 2,
part I
are applicable to the sentencing of
Mr Mgidi. With regard to the murder count, however,
part II
of
Schedule 2 renders Mr Mgidi liable to undergo 15 years’
imprisonment in respect of the murder charge. This was conceded
by Ms
Dube,
correctly so in my view.
[14]
Given that the learned magistrate accepted that Mr Mgidi had shown
remorse for his actions, coupled
with the fact that it is common
cause that liquor played a considerable role in what happened, and
the fact that Mr Mgidi was in
prison from the time of his arrest on
the 25
th
of September 2014 until his conviction on the
14
th
of September 2015, substantial and compelling
circumstances existed which would have entitled the learned
magistrate to impose
a sentence of less than 15 years’
imprisonment for the murder. In my view a sentence of twelve
years’ imprisonment
for the murder and two years’
imprisonment for the theft would accord with the tenets of justice.
I have taken into
consideration in this regard, the appellant’s
previous convictions for theft.
[15]
I would accordingly make the following order:
(a)
The appeal against conviction on the count of robbery is upheld, the
conviction is set aside,
and replaced with a conviction on one count
of theft. The appellant is sentenced to undergo two years’
imprisonment
on the conviction of theft.
(b)
The appeal against conviction on the murder charge is dismissed.
(c)
The appeal against sentence on the murder charge succeeds; the
sentence of life imprisonment
is set aside, and is replaced with a
sentence of twelve years’ imprisonment.
(d)
Both the sentences are to run concurrently, and are antedated to the
15
th
of September 2015.
(e)
The matter of the implementation of the suspended sentences in the
appellant’s previous
convictions is referred to the National
Prosecuting Authority for consideration and implementation of any
steps deemed appropriate.
Lopes
J
I
agree.
Radebe
J
Date
of hearing:
17
th
May 2019
Date
of Judgment:
31
st
May 2019
Counsel for the
Appellant:
Mr N B
Dlamini
(instructed by: Shazi and Associates)
Counsel for the
Respondent:
Ms N
Dube
(instructed by: State Attorney)