About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2016
>>
[2016] ZAKZDHC 36
|
|
Kubheka v S (AR700/15) [2016] ZAKZDHC 36 (20 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR700/15
DATE:
20 SEPTEMBER 2016
In
the matter between:
SIPHO
KUBHEKA
...................................................................................................................
Appellant
And
THE
STATE
...........................................................................................................................
Respondent
APPEAL
JUDGMENT
Delivered
on: 20 September 2016
MBATHA
J:
[1]
The appellant was convicted of murder of one Kwanele Emmanuel Ngcobo
and the attempted murder of Sipho Ngqeza Kubheka. These
incidents
arose on 15 September 2012 at or near Cornfields, Estcourt,
KwaZulu-Natal. With leave of the court
a quo
the appellant
appeals against his convictions.
[2]
The appellant submits that the state failed to prove its case beyond
a reasonable doubt because the evidence of the two main
witnesses was
riddled with contradictions and inconsistencies. Further, that the
court failed to accept the version of the appellant,
which was a more
probable version than the one given by the state witnesses.
[3]
At the hearing of the appeal counsel for the state withdrew her
concession that the appeal against the convictions should be
upheld
and set aside.
[4]
At the trial the appellant had tendered a plea of not guilty. In
terms of section 115 of the Criminal Procedure Act
[1]
he pleaded the basis of his defence as being self-defence in respect
of both counts. He made admissions in terms of section 220
of the Act
whereby he admitted the identity of the deceased in count 1, that the
deceased died as a result of a gunshot wound as
stated in the post
mortem report Exhibit “B”, and that the cause of death
was a spinal cord injury.
[5]
Dr Badhul who conducted the post mortem examination was also called
as a witness. His testimony was that the deceased died as
a result of
a gunshot wound. The entry wound was from the back of the neck and
the exit wound was on the right side of the mouth.
The bullet had
fractured the third vertebra and exited the mouth of the deceased.
[6]
Dr Kande, who examined the complainant in count 2, testified that
Vilakazi had a gunshot wound which entered from the left buttock
and
exited from the left pubic area. There was an entry wound on his
right thigh which exited on the medial aspect. He found an
injury
which fractured the complainant’s femur, an injury which was
life threatening due to loss of blood. He testified that
the buttock
wound could have been life threatening, as it could have penetrated
the bowels and severed the arteries.
[7]
The question before us is whether the appellant had acted in
self-defence. We have borne in mind what was stated in
S
v De Oliveira
[2]
where the court held that:
‘
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.’
It
was therefore incumbent upon the learned magistrate to consider that
an unlawful act had been committed against the victims and
that the
evidential burden is placed upon the accused to rebut the
prima
facie
presumption of unlawfulness. The version of the complainant
in count 2, the witness Sithomo and the appellant’s version had
to be considered by the court
a quo
.
[8]
It is trite that the court
a quo
had to take certain factors
into consideration in the evaluation of the defence raised by the
appellant, being the relationship
between the parties, their
respective ages and physical strength, the nature, severity and
persistence of the attack, the nature
of the weapon used, the means
available to avert the attack, the nature and means used to defend
himself and the extent of the
harm likely to be caused by the weapon
used. It is our view that in coming to a decision the court
a quo
considered the evidence in its totality and not in a piecemeal
fashion.
[9]
It is important that we summarise the version of the two state
witnesses and that of the appellant. Sizwe Vilakazi’s version
is that on the evening of 18 September 2012 he was in a bakkie being
driven by the appellant. The bakkie belonged to Mbhele, one
of the
occupants seated in the front, who was too drunk to drive. The
deceased was seated in between the two at the front. The
complainant
in count 2, Vilakazi and Sithomo were seated in the loading bin of
the bakkie, which had a canopy.
[10]
When they reached their destination he observed the deceased and the
appellant fighting over a firearm. The appellant fired
shots at the
deceased whilst he was still in the vehicle. Then the deceased
managed to alight from the vehicle and walked around
to the driver’s
side. The deceased, who was unarmed at that stage, was then shot
twice in the head by the appellant. The
appellant then moved to the
back of the bakkie, opened the canopy, Sithomo alighted and ran off.
Vilakazi remained behind and enquired
as to what they had done to the
appellant.
The
appellant responded by shooting him in the lower part of the arm and
struck him in the forehead with the firearm. The appellant
fired
another shot, which struck him in the abdomen. He tried to run away
but the appellant fired two more shots, one hit him on
the right calf
and the other on the right upper thigh. Vilakazi fell near the
deceased.
[11]
The appellant then drove off leaving the deceased and Vilakazi on the
ground. He returned after a short while, moved the deceased
with his
feet, possibly checking if he was alive. Whilst this happened
Vilakazi pretended to be dead by keeping still on the ground.
The
appellant fired a shot at him, but the bullet ejected itself out.
Then the appellant fired again at Vilakazi, who was struck
at the
neck and passed out.
[12]
The witness Sithomo’s evidence was that the appellant walked to
the passenger side of the motor vehicle, shot at the
deceased and
Vilakazi who at that stage were in front of the motor vehicle.
[13]
What is common cause between the two witnesses is that they each
confirm that the deceased was shot at by the appellant. They
did not
mention any attack or imminent attack upon the person of the
appellant. Their evidence also confirmed that no one was armed
save
for the appellant and that the shots were directed at the deceased
and Vilakazi.
[14]
The appellant’s version is that the deceased was seated next to
him in the bakkie. Sithomo and Vilakazi were at the back
of the
bakkie. At the place where he had to drop the deceased and Vilakazi,
he stopped the motor vehicle whereupon Mbhele alighted
to urinate. He
had observed the deceased reaching for his firearm on his waist as he
was disembarking from the bakkie. He dispossessed
him of that
firearm. He then alighted and moved to the back of the bakkie to
report to Sithomo and Mbhele about what had happened.
Then Vilakazi
ran past him towards the front of the bakkie. The deceased and
Vilakazi moved towards him and approached him in a
confrontational
manner. Vilakazi touched his waist as if to pull out a firearm and
ordered him not to move. He retreated and fired
four shots in their
direction. He observed the deceased falling down and Vilakazi ducking
behind the bonnet of the motor vehicle.
He then drove off with
Sithomo and Mbhele.
[15]
It is clear to this court that the court
a quo
was alive to
the contradictions in the evidence of the two state witnesses.
However, when we analyse those contradictions, they
are not material
to a point that the court would say that their evidence was
fabricated or they did not have an opportunity to
observe or the
truth was not told. The scene was moving and each witness described
it as it was unfolding in front of his eyes.
The
version given by the appellant is completely different to the version
given by the two state witnesses. Sithomo was not shot
at, is a close
friend of the appellant and had no reason to fabricate the evidence
against the appellant. Sithomo, who was an independent
witness in
this trial, informed the court that the deceased was shot twice when
he was already outside the motor vehicle. It was
accepted by the
trial court that the shooting took place only outside the motor
vehicle, as it would have been inescapable that
the motor vehicle
that they were seated in could not have been damaged. It is our view
that the version of Sithomo materially corroborated
that of Vilakazi.
[16]
Sithomo placed himself on the scene and confirmed that he had
observed the appellant shoot at the deceased and Vilakazi. It
would
not have affected the state’s case even if the court
a quo
accepted that Sithomo had bolted away as the appellant's defence
was that he acted in self-defence in shooting the deceased and
Vilakazi.
[17]
The court
a quo
rightfully accepted that there were two moving
scenes, the killing of the deceased and the attempted killing of
Vilakazi, as opposed
to the appellant’s version that he shot
both the deceased and Vilakazi as they approached simultaneously
towards him.
[18]
We agree with the decision of the court
a quo
, in that there
was no imminent attack upon the appellant and that even if there had
been an imminent attack upon him, he exceeded
the bounds of
self-defence by repeatedly shooting at the deceased and Vilakazi.
[19]
We cannot accept that there was no subjective intention to kill on
the part of the appellant, as that would only be in line
with the
improbable version which he gave to the court. The state bore the
onus of proof and on the evidence given by the state
witnesses we
conclude that it was proved that he had the requisite intention to
kill the deceased and Vilakazi.
[20]
There are two approaches in establishing the intention of an accused.
This intention could be subjective or objective. These
can be
established from the facts of the case.
[21]
This court is satisfied that, given the nature of the weapon that he
used, that he shot both victims several times, and the
nature of the
injuries sustained by both victims, the state had proved beyond any
reasonable doubt that the appellant intended
to kill the defenceless
victims.
[22]
In our law a person is guilty of attempting to commit a crime if,
intending to commit that crime, he unlawfully engages in
conduct that
is not merely preparatory but has reached at least the commencement
of the execution of the intended crime. In
S
v Agliotti
[3]
the court stated as follows:
‘
Attempted
murder is an attempt to do or commit the [crime of murder]. A person
is guilty of attempting to commit a crime if, he/she
intending to do
so, unlawfully engages in conduct that is not merely preparatory but
has also reached at least the commencement
of the execution of the
intended crime. A person is equally guilty of attempting to commit a
crime even though the commission of
the crime is impossible, if it
would have been possible in the factual circumstances which he/she
believes exist or will exist
at the relevant time. A person will also
be guilty of an attempt even when he/she voluntarily withdraws from
its commission after
his/her conduct has reached the commencement of
the execution of the intended crime. The stage of commencement of
execution is
also called the stage of consummation. Once this stage
is reached, “attempt” as a crime is complete.’
[23]
The intention in the form of
dolus
eventualis
was proved with regard to
Vilakazi.
Dolus eventualis
is applicable if the commission of the unlawful act or the causing of
the unlawful result is not his main aim, but he subjectively
foresees
the possibility that, in striving towards his main aim, the unlawful
act may be committed or the unlawful result may be
caused and he
reconciles himself to that possibility.
[24]
In light thereof, we are of the view that the appeal be dismissed.
[25]
The following order is made:
‘
The
appeal against the convictions is dismissed and the convictions are
confirmed.’
MBATHA
J
I
agree:
BALTON
J
Date
of hearing : 25 August 2016
Date
delivered : 20 September 2016
Appearances
:
For
the Appellant : Adv L Marais
Instructed
by : Justice Centre
Pietermaritzburg
For
the Respondents : Adv A Watt
Instructed
by : The Director of Public Prosecutions
Pietermaritzburg
[1]
Act
51 of 1977
[2]
1993
(2) SACR 59 (A)
[3]
2011
(2) SACR 437
(GSJ) para 10