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[2018] ZAKZPHC 46
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Nene v S (AR65/2017) [2018] ZAKZPHC 46 (4 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. AR 65/2017
In the matter
between:
MTHETHELENI
PARDON
NENE
APPELLANT
and
THE
STATE
RESPONDENT
J U D G M E N T
HENRIQUES J
(CHETTY J CONCURRING)
Introduction
[1] This appeal lies
against the convictions by the court
a quo
on 14 October 2016
in the Regional Court sitting at Ezakheni, KwaZulu-Natal. The
appellant was charged as follows:
(a) Count 1 - murder read with the provisions of s 51(2) of the
Criminal Law Amendment Act 105 of 1997 (CLAA);
(b) Count 2 – attempted murder and, as an alternative to count
2, reckless endangerment to person or property.
[2] The appellant
was convicted on one count of murder and the alternative count of
reckless endangerment to person or property.
In respect of the murder
count he was sentenced to 10 years’ imprisonment. In respect of
the conviction on reckless endangerment
to person or property, he was
sentenced to two years’ imprisonment. The sentences were
ordered to run concurrently,
resulting in an effective 10 years’
imprisonment.
[3] This appeal lies
against the convictions alone. Having regard to the heads of
argument, the respondent appears to oppose the
appeal on count 1
only.
[4] It is common
cause that the convictions on both counts were secured on the
evidence of two eye witnesses who testified, being
Philani Ishmael
Sithole and Sandile Frank Mposara. The appellant testified that he
acted in self-defence; however, this defence
was rejected by the
court
a quo
.
[5] The appellant
submits that the evidence of Mposara must be rejected as false as his
evidence that he saw the appellant shoot
the deceased in the back
whilst he was running away and that the deceased was holding his back
is blatantly false and not supported
by the objective facts.
[6] In addition the
appellant submits that the evidence of Sithole is equally unreliable
as ‘he wants the Court to believe
that the deceased was shot by
the Appellant for no reason at all and that the Appellant tried to
kill him too by firing shots whilst
he was running away, bullets
striking the motor vehicle close to him’.
[1]
[7] The appellant
further submits that there is no evidence by the police officers who
attended the scene, nor is there any forensic,
photographic or
ballistic evidence to support the evidence of Sithole and
consequently his evidence is false and falls to be rejected.
Accordingly the appellant submits that his version as to what
transpired must be accepted.
The legal
position
[8] The appellant’s
defence in the court
a quo
was that of putative self-defence.
CR Snyman
Criminal Law
6 ed (2014) at 102 defines private
defence as follows:
‘
A person acts in private
defence, and her act is therefore lawful, if she uses force to repel
an unlawful attack which has commenced,
or is imminently threatening,
upon her or somebody else’s life, bodily integrity, property or
other interest which deserves
to be protected, provided the defensive
act is necessary to protect the interest threatened, is directed
against the attacker,
and is reasonably proportionate to the attack.’
[9] Snyman draws a
distinction insofar as the requirements of private defence are
concerned and deals firstly with the requirements
of the attack with
which a person who acts in private defence must comply, and secondly
the requirements with which the defence
must comply.
[10] Insofar as the
requirements of the attack are concerned, the attack must be
unlawful, the attack must be directed at an interest
which legally
deserves to be protected and the attack must be imminent but not yet
completed.
[11] The
requirements for the defence of private defence are the following:
(a) It must be directed against the attacker.
(b) The defensive act must be necessary. Here one considers whether
there is a duty to flee and the defensive act must be the only
way in
which the attacked party can avert the threat to his/her rights or
interest.
(c) There must be a reasonable relationship between the attack and
the defensive act. Here it is not necessary that there be a
proportional relationship between the nature of the interest
threatened and the nature of the interest impaired.
(d) The attacked person must be aware of the fact that he/she is
acting in private defence.
[12] The test is an
objective one and our courts have emphasised that one should not
judge the events like an armchair critic, but
rather place oneself in
the shoes of the attacked person at the critical moment and bear in
mind that at such point in time the
attacked person only has a few
seconds in which to make a decision.
[13] The court
should then ask whether a reasonable person would have acted in the
same way in those circumstances. A person who
suffers a sudden attack
cannot always be expected to weigh up all the advantages and
disadvantages of his/her defensive act and
to act calmly.
[14] In
S v
Ntuli
[2]
the court noted the following:
‘
In applying these
formulations to the flesh and blood facts, the Court adopts a robust
approach, not seeking to measure with nice
intellectual calipers the
precise bounds of legitimate self-defence or the foreseeability or
foresight of resultant death.’
The evidence
[15] Sipho Stanley
Malinga, a member of the South African Police Services confirmed that
on 30 October 2015 he attended at the scene
of a shooting at the
Ezakheni Plaza. On his arrival he found the deceased lying face down
and observed a gunshot wound to his chest.
Four cartridges were
found, two near the pistol which was in front of the deceased, and
two cartridges near the vendors’
table inside the plaza. The
accused approached him and informed him that he was the one who had
shot the deceased and handed him
his firearm which contained eleven
live rounds. The firearm was a black CZ with serial number
L962J and a magazine with eleven
rounds. This was subsequently
entered into the SAP 13 register with reference 554/2015. Malinga
confirmed at the time that he did
not see any persons who were in the
company of the deceased.
[16] Philani Ishmael
Sithole testified that he and the deceased were friends and on the
day in question he had accompanied the deceased
to sell cakes at a
stall. Early in the evening, at 17h00, they had an argument with the
security guards, one of whom was the appellant,
about selling cakes
inside the Ezakheni Plaza as opposed to the vendors’ table
outside. The appellant grabbed the deceased
but after a brief
discussion and after they had apologised, he and the deceased
considered the matter to be resolved. Later that
evening at
approximately 19h00, Sithole and the deceased went to deposit money
at the money market at Shoprite Checkers. Whilst
walking toward
Shoprite Checkers they were advised by the security guards to see
them on their way out. Sithole and the deceased
said they would do
so.
[17] After
depositing the money and whilst they were walking out of the plaza
they came across the security guards, including the
appellant. He
informed them that he took offence at the fact that they had
reprimanded him earlier. A further argument ensued between
the
deceased and the appellant and the appellant confronted the deceased
about selling cakes. Whilst the altercation was taking
place between
the deceased, Sithole and the appellant, Sithole noticed that the
appellant held the right side of his waist. He
told the deceased that
the matter was not coming to an end and that they should leave. As
they were about to leave the appellant
asked him why they had come
back to the plaza. He responded to the appellant and said to him ‘you
are the ones that called
us over’.
[3]
[18] As they were
leaving, the appellant said they must be shot at. The security
officer in the company of the appellant then separated
from them and
the appellant took out a firearm, pointed it at the deceased and shot
him. After the appellant shot the deceased,
Sithole ran away. He
heard the appellant shoot at him three times although he was not
struck by any of the bullets as he stood
quite a distance away in the
dark. He observed the appellant standing next to where the deceased
was lying and shooting at him
twice. He testified that when the
deceased was first shot at, he was still inside the plaza near the
vendors’ table. When
he later found the deceased, the deceased
was outside the plaza near the traffic circle. After the deceased was
first shot at,
he hid behind a Quantum taxi and was approximately a
metre or two away.
[19] He testified
that as he was running towards the road leading towards his home the
appellant fired a second shot in his direction
and the bullet went
past him and hit a vehicle. He was running away and did not see where
the appellant fired the third or fourth
shot. He confirmed that the
appellant was the one shooting at him and that the appellant was
wearing a light green shirt. When
the shooting stopped he was
approximately 100 metres away from the plaza.
Submission of the
parties
[20] Mr
Venter
who appeared for the appellant, submitted that this court can on
appeal interfere with the factual findings of the court
a quo
,
[4]
as the evidence of the State witnesses can safely be rejected given
the disparity in the evidence of the State witnesses.
[21] Should the
appeal court decide the matter on the basis of the appellant’s
version, then at best the appellant ought to
be acquitted on count 1,
at worst he ought to be found guilty of culpable homicide applying
the guidelines set out in
S v Steyn
.
[5]
[22] Ms
Ratanjee
for the respondent, submitted in her heads of argument, that the
contradictions in the evidence of the State witnesses were not
material, and in determining whether the guilt of the appellant had
been established beyond reasonable doubt, individual aspects
of the
evidence must not be viewed in isolation, but must be evaluated with
all other available evidence, that is, to ‘consider
the mosaic
as a whole’.
[6]
In doing so, this court too would conclude the appellant exceeded the
bounds of self-defence and dismiss the appeal in respect
of the
conviction.
Applicable legal
principles
[23] As stated by
Brand AJA in
S v Schackell
and quoted with approval in
S v
Heslop
:
[7]
‘
It is a trite principle
that in criminal proceedings the prosecution must prove its case
beyond a reasonable doubt and that a mere
preponderance of
probabilities is not enough. Equally trite is the observation that in
view of this standard of proof in a criminal
case, a court does not
have to be convinced that every detail of an accused’s version
is true. If the Accused’s version
is reasonably true in
substance the court must decide the matter on the acceptance of that
version. Of course it is permissible
to test the accused’s
version against the inherent probability but it cannot be rejected
merely because it is improbable;
it can only be rejected on the basis
of inherent probabilities. But if it can be said to be so improbable
that it cannot reasonably
possibly be true. On my reading of the
judgment of the Court
a
quo
its reasoning
lacks this final and crucial step.’
[24] Proof of the
guilt of the appellant beyond reasonable doubt and the question of
whether the appellant’s version is reasonably
possibly true are
not separate and independent tests. As was held by Nugent J in
S v
Van der Meyden
:
[8]
‘
These are not separate
and independent tests, but the expression of the same test when
viewed from the opposite perspectives. In
order to convict, the
evidence must establish the guilt of the accused beyond reasonable
doubt, which will be so only if there
is at the same time no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are
inseparable, each being the
logical corollary of the other. In whichever form the test is
expressed, it must be satisfied upon
a consideration of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to determine
whether there is proof
beyond a reasonable doubt, and so too does it not look at the
exculpatory evidence in isolation in order
to determine whether it is
reasonably possible that it is reasonably possible that it might be
true.’
[25] The case of
Van
Der Meyden
received the unanimous approval of five Judges in the
Supreme Court of Appeal case of
S v Van Aswegen
.
[9]
[26] It is trite law
that the court does not have to believe the first appellant’s
version nor does it need to reject the
State’s case in order to
acquit him, instead a court is bound to acquit the appellant if there
exists a reasonable possibility
that his evidence may be true.
[10]
A holistic approach to all the evidence is required as opposed to a
fragmented and compartmentalised approach to the evidence.
[27] It is well
established that a court of appeal will be very reluctant to disturb
the credibility findings of the trial court
since the trial court
observed the demeanour of the witnesses in their performance in the
witness box, and will reverse such findings
in exceptional cases,
where it is convinced that it is wrong.
[28] This was
crisply set out by Holmes JA in
S v Robinson & others
[11]
where the following was stated
:
‘
A Court of appeal, not
having had the advantage of seeing and hearing the witnesses, is of
necessity largely influenced by the trial
Court’s impressions
of them. Having regard to the re-hearing aspects of an appeal,
this Court can interfere with a
trial Judge’s appraisal of oral
testimony, but only in exceptional cases as apply summarized in a
Privy Council decision
quoted in
Parkes
v.
Parkes
,
1921 A.D. 69
at p. 77:
“
Of
course it may be that in deciding between witnesses, he has clearly
failed on some point to take account of particular circumstances
or
probabilities material to an estimate of the evidence or has given
credence to testimony, perhaps plausibly put forward, which
turns out
on more careful analysis to be substantially inconsistent with
itself, or with indisputable fact; but except in rare
cases of that
character, cases which are susceptible of being dealt with wholly by
argument, a Court of Appeal will hesitate long
before it disturbs the
findings of a trial Judge based on verbal testimony.”’
[29] Murder is
defined as the unlawful and intentional causing of the death of
another human being, whereas culpable homicide is
the unlawful
negligent causing of the death of another human being.
[12]
The difference in the two offences lies in the form of culpability,
negligence being required for culpable homicide and intention
for
murder.
[13]
Self-defence or private defence is where a person uses force to repel
an unlawful attack which has commenced or is imminently threatening
upon their life, bodily integrity, property or other interest which
deserves to be protected, provided that the act is necessary
to
protect the person or interest from the attacker and is reasonably
proportionate to the attack.
[14]
Putative private defence implies rational but mistaken thought –
it relates to the mental state of an accused person.
[15]
[30] The leading
authority which sets out the test to distinguish between private
defence and putative private defence is the decision
in
S v De
Oliveira
[16]
in which Smalberger JA deals with the difference as follows:
‘From a juristic point of view the difference between these two
defences is significant. A person who acts in private defence
acts
lawfully, provided his conduct satisfies the requirements laid down
for such a defence and does not exceed its limits. The
test for
private defence is objective – would a reasonable man in the
position of the accused have acted in the same way
(
S v Ntuli
1975
(1) SA 429
(A) at 436E). In putative private defence it is not
lawfulness that is in issue but culpability (‘skuld’). If
an accused
honestly believes his life or property to be in danger,
but objectively viewed they are not, the defensive steps he takes
cannot
constitute private defence. If in those circumstances he kills
someone his conduct is unlawful. His erroneous belief that his life
or property was in danger may well (depending upon the precise
circumstances) exclude
dolus
in which case liability for the
person’s death based on intention will also be excluded; at
worst for him he can then be
convicted of culpable homicide.’
Analysis
[31] The court
a
quo
in its judgment carefully analysed the evidence of the State
witnesses and that of the appellant. The court
a quo
correctly
pointed out that the appellant’s version can only be rejected
if it is found to be false beyond a reasonable doubt.
The court
a
quo
clearly preferred the evidence of the State witnesses and
rejected the appellant’s version that he acted in self-defence.
[32] The post mortem
report and the photographs reveal that the entry wound of the bullet
was slightly above the right nipple and
exited on the left side of
the deceased’s chest. This confirms that the deceased was not
facing the appellant at the time
the fatal shot was fired.
[33] In response to
questions put by the court, the appellant stated as follows:
‘
He then turned around to
his friend who was in his company he told him and said “my
friend just now let’s kill these
people” is when I fired
the shot.
So when you fired he was talking
to his friend? ---- Yes
The friend was right next to
him? --- Not very close because when we were arguing with
Mr Dlamini, the other one was
also having the noise on the other
side.
So he moved away, the other
person? --- No, the deceased had just turned around his
face looking to his friend who was
arguing with Dlamini, he told him
“let’s shoot these people”.
That’s when you shot him?
--- That is when I drew out the firearm and shot at
him.’
[17]
[34] On the
appellant’s own version, at the time the fatal shot was fired,
the deceased was engaged in a conversation with
Dlamini and in no way
posed any threat or danger to the appellant in order to justify the
conduct of the appellant in drawing his
firearm and shooting the
deceased.
[35] The deceased
did not produce any firearm or dangerous weapon that posed a threat
or danger to the safety and wellbeing of the
appellant in order to
justify his conduct in shooting the deceased. The deceased was not
facing the appellant but was facing sideways
(which seems to be
common cause) at the time the fatal shot was fired.
[36] I agree with
the learned magistrate that it is highly unlikely that the deceased
would have wanted to seek any altercation
or confrontation with the
appellant knowing that the appellant was armed and in the company of
another security officer.
[37] I am satisfied
that on a careful analysis of all the evidence, including the
appellant’s version of what transpired on
the day in question,
that the court
a quo
correctly concluded that the appellant
did not act in self-defence at the time he fatally shot the deceased.
There was accordingly
no misdirection by the court
a quo
in
the conclusions it arrived at.
[38] On an
assessment of the objection evidence the appellant could not have
reasonably believed that his life or property was in
imminent danger
that required him to draw his firearm and shoot the deceased. A
reasonable man in the position of the appellant,
being a trained
security guard, would not have drawn a firearm and shot the deceased
in the circumstances illustrated above.
[39] The appellant
clearly foresaw that by drawing his firearm and firing the fatal shot
at the deceased, his action would result
in the death of the deceased
and accordingly the elements of
dolus eventualis
[18]
have been satisfied.
[40] I am also
satisfied that the court
a quo
correctly convicted the
appellant on the alternative to count 2 namely, endangerment to
person or property. The appellant
clearly fired shots at the
witness, Sithole as he was fleeing and thereby endangered his person
or property.
Order
[41] In the result,
the following order do issue:
The appeal is
dismissed and the convictions and sentence confirmed.
____________
HENRIQUES J
CASE
INFORMATION
DATE
OF HEARING: 20 October 2017
DATE
OF JUDGMENT: 04 May 2018
APPEARANCES
For
the appellant: Adv. Jan Venter
Instructed
by: Hellberg Thöle Inc.
For
the respondent: Adv. R.T Ratanjee
Instructed
by: The Director of Public Prosecutions, KZN
[1]
Appellant’s heads of argument para 5.
[2]
S v Ntuli
1975 (1) SA 429
(A) at 437E.
[3]
Appeal record page 32 lines 2-3.
[4]
S v Monyane & others
2008 (1) SACR 543
(SCA) para 15;
S
v Pistorius
2014 (2) SACR 314
(SCA) para 30.
[5]
S v Steyn
2010 (1) SACR 411
(SCA) para 19.
[6]
S v Hadebe & others
1997 (2) SACR 641
(SCA) at 645i-646b.
[7]
S v Schackell
2001 (4) SA 1
(SCA) para 30;
S v Heslop
2007
(4) SA 38
(SCA) para 10.
[8]
S v Van der Meyden
1999 (1) SACR 447
(W) at 488f-i.
[9]
S v Van Aswegen
2001 (2) SACR 97
(SCA) at 101a-e.
[10]
S v Kubeka
1982 (1) SA 534
(W) at 537F–G;
R v
Dhlumayo & another
1948 (2) SA 677
(A) at 701;
S v
Robinson & others
1968 (1) SA 666
(A) at 675G-H;
S v
Heslop
2007 (4) SA 38
(SCA) at 47C;
S v Scott-Crossley
2008
(1) SACR 223
(SCA) para 10.
[11]
1968 (1) SA 666
(A) at 675G-H.
[12]
Snyman
Criminal Law
6 ed (2014) at 437 and 442.
[13]
Snyman
Criminal Law
at 442.
[14]
Snyman
Criminal Law
at 102.
[15]
See
Director of Public Prosecutions, Gauteng v Pistorius
2016
(2) SA 317
(SCA).
See further S
Maharaj ‘Fight back and you might be found guilty: Putative
self-defence’ August 2015
De Rebus
138.
[16]
S v De Oliviera
1993 (2) SACR 59
(A) at 63h-64a.
[17]
See appeal record page 94 line 25 to 95 line 11.
[18]
Director of Public Prosecutions, Gauteng v Pistorius
2016 (2)
SA 317
(SCA) paras 25-27.