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2016
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[2016] ZAFSHC 58
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Tlou v S (A191/2015) [2016] ZAFSHC 58 (7 April 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: A191/2015
DATE: 07 APRIL 2016
In the matter between:-
LENKA
TLOU
..........................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
CORAM: VAN DER MERWE, J et CHESIWE,
AJ
JUDGMENT BY: VAN DER MERWE, J
HEARD ON: 22 FEBRUARY 2016
DELIVERED ON: 7 APRIL 2016
[1] The appellant was charged in the
regional court, Bloemfontein, on counts of murder (count 1) and
assault with intent to do grievous
bodily harm (count 2). In respect
of count 1 it was alleged in the charge sheet that the appellant
murdered one Mr Themba Nxaki
(the deceased) on 14 April 2013. In
respect of count 2 it was alleged that on the same date the appellant
assaulted Mr Zolile
Nxaki by hitting him with a firearm and with the
open hand. The appellant was convicted on count 1 only. On 26 May
2015 he was
sentenced to 10 years imprisonment. Although the trial
court did not make it clear, it must be accepted that it granted
leave
to appeal against the conviction and sentence.
[2] It was common cause that the
deceased was killed by a shot fired by the appellant. The bullet
entered the left cheek of the
deceased just below the eye and settled
under the skin at the back of his neck on the right. The issue was
the circumstances in
which the fatal shot had been fired.
[3] Mr Zolile Nxaki testified that the
deceased was his nephew, his sister’s child. During the
evening of 14 April 2013,
he was at a tavern in Bloemfontein. He had
quite a lot to drink; he shared seven to eight quarts of beer with a
friend. At some
stage, when he was in the bathroom, the appellant
entered. An argument ensued, during which the appellant hit him with
an open
hand. Security guards intervened and he returned to the
tavern. The deceased had since arrived at the tavern and the two of
them
left. The appellant stood outside the tavern at the pavement.
When they passed him, the appellant said “… that he
would show us”. The appellant opened a car and produced a
firearm. Mr Nxaki and the deceased ran away. At some stage he
took
a footpath to the left whilst the deceased proceeded straight on
another footpath. Whilst running, he heard a shot. When
he looked
back, he saw that the deceased had fallen. He went to the deceased
and found that the deceased had been shot and was
laying in the
footpath a few metres from a heap of soil. The heap of soil was
about a metre in height. The appellant was standing
nearby. He
asked the appellant why he did not shoot him as he had a fight with
him. The appellant responded by hitting him on
the head with the
firearm.
[4] Mr Kgomotso Potsanyana testified
that on 14 April 2013 he accompanied the deceased to a soccer match.
After the match, they
went to a tavern, where they met Mr Nxaki. At
some stage Mr Nxaki and the appellant had an argument. Mr
Potsanyana, the deceased
and two companions decided to leave. They
found the appellant and Mr Nxaki arguing near the gate of the tavern.
The four of them,
Mr Nxaki and the appellant then left the premises.
The appellant opened a car and produced a firearm. The deceased
called Mr
Nxaki and they walked away, in front of the others. Some
friends of the appellant tried to hold him, but he managed to free
himself.
The deceased and Mr Nxaki started to run. Mr Potsanyana
and his companions followed them. The appellant chased after the
deceased
and Mr Nxaki. The appellant ran onto the footpath on which
the deceased was running. The appellant stopped, lifted his arm and
shot the deceased. The deceased was approximately two metres from
the appellant and had paused slightly at the time. This happened
in
view of Mr Potsanyana although it was dark in the area. Mr
Potsanyana confirmed the evidence of Mr Nxaki as to what transpired
after the deceased was shot in exact detail.
[5] The appellant confirmed in evidence
that he was at the tavern. His evidence as to what transpired there
was, however, quite
different. He had about five tots of whiskey but
they had no effect on him at all. There was no argument between
himself and
Mr Nxaki. He joked with Mr Nxaki, initially inside the
bathroom and later outside the tavern. Mr Nxaki appreciated this,
but
his four friends appeared to be offended by the joke. However, Mr
Nxaki reprimanded them. On the version of the appellant the deceased
must have been one of the four friends. They left the tavern,
leaving Mr Nxaki and the appellant behind. The appellant went to
his
car and took out his firearm. He told Mr Nxaki that he would
accompany him. He did so up to the place where the shooting
took
place. When they got there, Mr Nxaki’s four friends returned.
As they approached from the front, he saw one of them
holding a shiny
object. He fired a shot “at the ground” to his right
into the heap of soil. Mr Nxaki pointed out
to him that he had shot
the deceased, who according to the appellant, was on the other side
of the heap of soil.
[6] The trial court accepted the
evidence of Mr Nxaki and Mr Potsanyana and rejected that of the
appellant as false beyond reasonable
doubt. It is trite that a court
of appeal is bound by the factual findings of a trial court, unless
they were affected by a material
misdirection or the court of appeal
is convinced that they were wrong.
[7] Counsel for the appellant argued
that the court a quo overlooked material contradictions between the
evidence of Mr Nxaki and
Mr Potsanyana. Reference was made to the
differences in respect of the argument between Mr Nxaki and the
appellant and the sequence
of the events outside the tavern that led
to the flight of the deceased and the witnesses. I am unable to
agree. Whether the
argument between the appellant and Mr Nxaki was
renewed outside the tavern, is not material in the circumstances.
What he referred
to as joking, according to the appellant did take
place inside the bathroom and outside the tavern. A proper analysis
of the evidence
in respect of the preceding sequence of events
outside the tavern indicates that there were no real contradictions
and that Mr
Potsanyana simply gave evidence in more detail than Mr
Nxaki. This is understandable as there was no evidence that Mr
Potsanyana
was intoxicated to any extent whilst the same could not be
said of Mr Nxaki.
[8] On the other hand, every material
element of the appellant’s version was most unconvincing and
improbable. He gave no
explanation for accompanying Mr Nxaki on
foot. The appellant’s car was parked outside the tavern. He
gave no satisfactory
explanation for taking a firearm along. On his
version it is highly unlikely that the friends of Mr Nxaki would
return to assault
him. He had done nothing to them. He only joked
with Mr Nxaki and the latter conveyed that to his friends when he
reprimanded
them. In this regard it must be pointed out that it was
put to Mr Nxaki in cross-examination that there was a fight between
him
and the appellant at the tavern. On his version there was in any
event no reason to fire a shot in the first place. The evidence
of a
shiny object is very vague. When asked what the reason was for the
firing of the shot, the appellant said: “To protect
myself Your
Worship from the people that were coming, I do not know whether they
were coming back to fight me because when they
left they were
slapping their tongues”. This is obviously a most
unsatisfactory reason for firing a shot. These people
were the
friends of Mr Nxaki and they knew that Mr Nxaki had no quarrel with
the appellant. Crucially, the appellant could not
explain how the
deceased could in the circumstances have been shot, let alone in the
face. The deceased was one of the four approaching
persons. The
appellant said that he deliberately fired downwards and away from the
approaching persons. On the evidence of Mr
Potsanyana it is probable
that the deceased momentarily looked back when he paused and was thus
shot in the face.
[9] On the accepted evidence, the
appellant was clearly guilty of murder. The appeal against the
conviction must therefore fail.
It should be added that it is
difficult to understand why the trial court did not find that the
appellant had assaulted Mr Nxaki
by hitting him over the head with a
firearm. Counsel for the appellant fairly and correctly conceded
that upon acceptance of the
version of the respondent, the sentence
could not be faulted.
[10] The appeal is dismissed and the
conviction and sentence confirmed.
C. H. G. VAN DER MERWE, J
I concur.
S. CHESIWE, AJ
On behalf of the appellants: Adv.
G.J.M. Wright
Instructed by:Horn & Van
Rensburg
BLOEMFONTEIN
On behalf of the respondent: Adv. M.
Strauss
Instructed by:
The Director: Public Prosecutions
BLOEMFONTEIN