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[2017] ZAGPPHC 837
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S v Mngomezulu (A429/15) [2017] ZAGPPHC 837 (16 March 2017)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
no. A429/15
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
The
State
and
T.E.
MNGOMEZULU
JUDGMENT
RABIE,
J
1.
By leave granted on petition by this court the appellant appeals
against his conviction and sentence imposed upon him on 19 June
2013
by the Regional Court of Nelspruit in respect of one count of murder
and one count of attempted murder.
2.
The background to the matter is briefly the following. On 15 January
2010 the appellant visited his friend Mr Pinkie Sindephi
to borrow
some money. According to Mr Sindephi they had to wait until his wife
returned home. In the meantime Mr Sindephi decided
to visit the local
tavern situated in a building which had been built as a double
garage. It is not clear how long they spend there
but eventually the
appellant decided that he wanted to play pool on the only pool table
in the establishment. It appears that persons
who wanted to play
would put a R2,00 coin on the table and await his turn.
3.
At some point an argument broke out between the appellant and the
deceased. Apparently the deceased told the appellant that he
should
wait his turn and in any event that the money on the table was his
and not that of the accused. It seems that the deceased
got extremely
angry and took a pool cue and started to hit the appellant with it on
the head and shoulder area. The force was such
that the pool cue
broke in two but the deceased kept on assaulting the appellant with
it.
4.
The appellant, who had his licensed firearm with him, took out the
firearm and fired two warning shots into the ground. This
did not
deter the deceased who kept on moving in on the appellant and beating
the appellant with the pool cue. According to the
appellant he was
bleeding profusely from his head and he feared for his life. He
thereupon fired shots at the appellant which struck
him in the head
and chest. The appellant was taken to hospital but he did not
survive. The appellant went straight to the nearest
police station,
reported the matter and handed his firearm licence to the police.
5.
During the shooting Mr Pinkie Sindephe was struck in the left
thigh by a bullet fired by the appellant. According to Mr Sindephe
he
ducked away when the shooting started and only later realised that he
had been shot. According to the appellant he had no reason
to shoot
his friend and was not even aware that he had done so.
6.
In convicting the appellant the Magistrate found that he did not
believe the appellant's version, that he did not regard the
differences in the evidence of the state witnesses as of any import
and that he accepted the evidence of the owner of the tavern,
Mr
Clifton Mkhabela. According to the Magistrate the version of Mr
Mlhabela was that the deceased had hit the appellant once on
the head
with a pool cue after which he settled the dispute. Thereafter the
argument flared up again and the appellant shot the
deceased. It was
further found that the appellant exaggerated his version and that it
was improbable that the assault on him could
have been so extensive
without the patrons in the tavern coming to his rescue.
7.
Firstly, as far as the evidence of Mr Sindephe is concerned it
appears that he can throw little light on the topic except to
confirm
that sometime after the deceased arrived, an argument broke out
between him and the appellant. After some time he heard
the appellant
breeching his pistol and then he ducked under a table trying to get
out of the way. He saw nothing of what occurred
further.
8.
Mr Mkhabela confirmed that the dispute was about the R2,00 coin for
the game of pool. He confirmed that the deceased hit the
accused with
a pool cue and he said that the accused then left the tavern. Later
the came back and then he heard a gunshot. The
evidence of Mr
Mkhabela was contradictory. On the one hand he testified that the
deceased assaulted the appellant and kept on moving
towards the
appellant while the appellant was shooting his firearm, but on the
other hand he denied that he saw the assault. He
also testified that
the appellant shot that the deceased while he was lying on the ground
but according to his statement the appellant
did not shoot at the
deceased while he was on the ground.
9.
It is not necessary to refer to the evidence of Mr Mkhabela in detail
and it would suffice to say that it is not possible to
construct a
single and acceptable version of events from his evidence.
10.
The only other witness who testified about the incident was Constable
T. Mahlalela who was also present in the shebeen. He confirmed
that
the deceased hit the appellant on the head with a pool cue.
Importantly he denied that the deceased ever left the tavern and
returned to it as testified by Mr Mkhabela. According to his later
evidence Const Mahlalela saw very little of the incident as
he was on
the outside of the tavern at the time.
11.
According to the appellant the deceased initially prevented
him from playing pool as he was not a permanent resident of the area.
The appellant did not make a scene and allowed the deceased to play
with his friends. After the game was finished the appellant
approach
the table to play but was again prevented to play by the deceased who
then also started to fight with him. According to
the appellant the
deceased hit him over the head with a pool cue until the cue broke.
He said it was extremely painful and the
first time he had ever been
assaulted with a stick on the head. The appellant stated that he
tried to move backwards while facing
the deceased and that the
deceased kept on coming at him. He fired two warning shots in the
ground but the deceased kept on coming
and was still assaulting him.
By this time he was wiping the blood from his face so that he could
see and then fired shots at the
deceased who was still assaulting
him.
12.
After the shots were fired the appellant fled the scene and was
chased by friends of the deceased. The appellant went to a police
station and reported the matter.
13.
The appellant testified that he never saw Mr Sindephi during the
attack on him and while he was discharging his firearm. He
had a good
relationship with Mr Sindephi and had had no intention to shoot or
kill him.
14.
A consideration of the evidence on behalf of the State shows that all
three of the witnesses had different versions of the event
and there
were a number of crucial contradictions. Mr Mhabela, on whose
evidence the Magistrate relied, differed from the other
two
witnesses, inter alia, in respect of the appellant's movements prior
to the attack on him and the shooting as well as the alleged
shooting
of the deceased while he was on the ground. His evidence was also at
variance with the evidence contained in his statement
to the police
regarding these crucial issues. Apart from contradicting each other,
these witnesses contradicted themselves and
in my view the Magistrate
erred in relying on any of the versions as being truthful and
reliable beyond a reasonable doubt.
15.
On the other hand, the appellant gave a version in which he
never contradicted himself and which was not in any way inherently
improbable.
He withstood his cross-examination very well and remained
with his version. The Magistrate stated that he did not believe the
appellant
but that is not the relevant test. In my view the
Magistrate erred in not finding that the appellant's version was
reasonably possibly
true. The appellant was attacked with vicious
blows to his head and neck area with a pool cue. The ferocity were
such that the
pool cue broke in two. Thereafter, the deceased
continued with the remaining part still in his hand. He kept on
coming at the deceased
and hit him despite the warning shots and
despite the shots at his body. This fact was confirmed during
cross-examination by both
Mr Mkhabela and Mr Mahlalela. There can be
no doubt that anyone blow to the head by an instrument such as was
used by the deceased,
can be fatal.
16.
Consequently, in my view, the appellant did not act unlawfully but in
defence of his own life and did not exceed the bounds
of self
defence. The State did not prove the charges against the appellant
beyond a reasonable doubt and consequently he should
not have been
convicted.
17.
In the result the appeal should succeed and the convictions and
sentences should be set aside.
18.
Consequently, the following order is made:
1.
The appeal succeeds and the convictions and sentences are set aside
and replaced with the following order: "The accused
is found not
guilty on all charges".
C.P.
RABIE
JUDGE
OF THE HIGH COURT
I
agree
A.
BASSON
JUDGE
OF THE HIGH COURT