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[2016] ZAKZPHC 84
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Maphumulo v S (AR679/2014) [2016] ZAKZPHC 84 (30 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR679/2014
In
the matter between:
SUNNYBOY
SPHAMANDLA MAPHUMULO
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal from the Inkhanyezi Regional Court, Magistrate H. J. Meyer,
sitting as a court of first instance, it is ordered:
[1]
The appeal against the conviction is
dismissed.
[2]
The appeal against the sentence imposed by
the court a
quo
is dismissed.
JUDGMENT
HENRIQUES
J (SISHI J concurring)
Introduction
[1]
The appellant was charged in the Inkhanyezi
Regional Court with two (2) counts of murder, count one in respect of
the deceased Philani
Ntaka and count two in respect of the deceased
Bheki Shandu. In the court a
quo,
the
appellant raised the defence of self-defence. The court a
quo
accepted he acted in self-defence in respect of count two and
acquitted him of such charge. In respect of count one, the court
a
quo
was of
the view that the appellant exceeded the bounds of self-defence and
convicted him of murder of the deceased, Philani Ntaka
on the basis
of
dolus eventualis
.
[2]
The appellant appeals against his
conviction and sentence of twelve (12) years imprisonment on count
one with leave of the court
a
quo.
He
appeals against his conviction on the basis that the court a
quo
erred in rejecting his version of the
facts and his defence of self-defence. Insofar as the sentence
imposed is concerned, the appellant
submits that the court a
quo
erred in disregarding the time he spent awaiting trial,
over-emphasized the seriousness of the offence and consequently,
given
the mitigating factors, the sentence is strikingly
inappropriate.
Issues
[3]
The issues before us on appeal are the
following:
[3.1]
whether the court a
quo
correctly found on the facts presented, that the appellant exceeded
the bounds of self-defence and correctly convicted him of murder;
[3.2]
whether the court a
quo
erred when imposing sentence in that it failed to consider the time
the appellant had spent awaiting trial and whether it over-emphasized
the seriousness of the offence.
Ad
conviction
[4]
It is trite that the respondent bears the
onus to prove the guilt of the appellant beyond a reasonable doubt.
In support of the
conviction the respondent led the following
evidence in the court a
quo
.
[5]
Zwelonke Bongani Dludla (“Dludla”)
testified that on the evening of 28 April 2013 he was in Dark City
location, Sundumbili
with the deceased Bheki Shandu (“Bheki”)
and Philani Ntaka (“Philani”). At the time, they were in
a motor
vehicle driven by Bheki returning from lobola negotiations
for Philani. He was seated in the front passenger seat and Philani
was
in the rear passenger seat behind the driver (Bheki). They had
given a lady a lift to her home in the area. Philani alighted from
the vehicle and accompanied the lady to her home. He and Bheki
remained in the vehicle but when it became evident that Philani
was
taking long to return, they drove around the area in the motor
vehicle trying to find him.
[6]
Bheki stopped the vehicle they were
travelling in near a green container and two (2) women approached the
vehicle. Bheki began chatting
up one (1) of the ladies when another
male emerged to chat to the other lady in her company. Bheki got into
an argument with the
male whom Dludla subsequently learnt was the
appellant. They began to argue and fight about chatting up the
ladies. Dludla realised
that the argument was escalating and could
possibly lead to violence. Philani had by now returned and climbed
into the motor vehicle.
Bheki was still arguing with the appellant
when Dludla intervened to try and calm the situation down. This did
not occur and both
Philani and Bheki alighted from the motor vehicle
[7]
All three of their voices were now raised
and they were arguing. Dludla then alighted from the vehicle and
attempted to calm all
of them down. He described the appellant as
being light in complexion without much of a beard. When he realised
that he was unsuccessful
in his attempt to calm the situation down,
Dludla moved away from the vehicle and stood approximately five (5)
paces away from
the vehicle. He then noticed the appellant reach for
something near his waist and saw him stab Bheki once in his chest.
Bheki ran
away, at which stage the appellant turned to Philani and
stabbed him twice in the chest. Philani bent over and walked around
the
vehicle towards the boot of the motor vehicle.
[8]
The appellant then chased after Bheki.
After a while, Dludla saw the appellant return and walk to where
Philani was bent over. He
observed the appellant stab Philani but did
not take note of the number of times the appellant stabbed Philani as
he ran away.
Prior to him running away, Dludla removed a firearm
which was on the floor of the motor vehicle and took it with to the
homestead
where he hid it. On his return to the scene, the police had
arrived and Bheki was approximately one hundred (100) to one hundred
and twenty (120) metres away from the vehicle. He had succumbed to
his injuries and passed on. Philani was found away from the
motor
vehicle in a bushy area approximately thirty five (35) paces away
from the vehicle. He too had succumbed to his injuries.
[9]
Dludla indicated that he did not see what
object the appellant had used to stab Philani or Bheki but confirmed
that both deceased
were not armed. It is common cause that Philani
was a security officer and Bheki was a member of the South African
Police Services
(SAPS) and had been issued with a licensed firearm.
Dludla disputed the appellant’s version that the argument
escalated to
one where Bheki and Philani alighted from the vehicle in
order to attack the appellant. He further disputed that Philani and
Bheki
told him to move away from the vehicle as they were going to
shoot the appellant. More importantly, he disputed the appellant’s
version that at the time of the stabbing, the two (2) deceased were
moving towards him about to attack him. He further denied hearing
Bheki saying to Philani that they must shoot at him (the appellant)
and that that was the reason why the appellant first stabbed
Bheki.
Dludla was emphatic in denying that Bheki was stabbed after the
appellant heard him (Bheki) talk about shooting at him.
In addition,
he denied that Philani was stabbed as a result of the appellant
noticing a gun in Philani’s hand. Dludla was
adamant that he
did not see either Bheki or Philani handling a firearm. He denied
that Bheki returned to the car to remove the
firearm which had been
placed under the driver’s seat as he confirmed that he removed
the firearm when the appellant was
chasing Bheki down the road.
[10]
Busisiwe Dlamini (“Dlamini”)
testified that on 28 April 2013 she was walking to Manda Farm
accompanied by her sister
Nokuzola Dlamini. En route to Manda Farm, a
vehicle parked next to them on the road. Dlamini and her sister
noticed Dludla and
the driver of the vehicle, Bheki. Bheki spoke to
her sister Nokuzola and asked for her telephone number. Whilst they
were conversing
with the occupants of the vehicle, the appellant, his
girlfriend and a lady companion approached and the appellant asked to
speak
to Dlamini. She refused and told him that he should come to her
home the following day. The appellant, however, insisted on talking
to her, at which time Bheki intervened and asked the appellant why he
was insisting on talking to them.
[11]
As this was taking place, Philani, who was
walking, approached and exchanged greetings and climbed into the back
seat of the vehicle.
He asked Bheki if there was a problem and
Dlamini heard Bheki respond to Philani that the appellant was
refusing to move away from
the vehicle. Both Bheki and Philani
climbed out of the vehicle and stood next to the door of the vehicle.
Dlamini heard them ask
the appellant what the problem was and why he
was refusing to move away from the vehicle as Dlamini had told the
appellant that
she would speak to him the following day.
[12]
Dlamini testified that as this exchange was
taking place the appellant took off his sandals and threw them to his
girlfriend. He
then took out a knife and stabbed both Philani and
Bheki. At the time of the stabbing, Philani and Bheki were standing
on the same
side of the vehicle, close to each other. Dludla was
seated inside the vehicle. Dlamini corroborated Dludla’s
evidence that
the appellant removed the knife from his right-hand
side. She confirmed that the appellant stabbed both Philani and Bheki
but her
evidence differed from Dludla in that she testified that
Philani was stabbed repeatedly and thereafter Bheki, the driver of
the
vehicle, was stabbed.
[13]
In addition, Dlamini testified that both
persons were stabbed in their chest. Whilst the stabbing was taking
place both she and
Nokuzola ran away. She appeared to be confused
regarding the identity of Dludla and Bheki but testified that Dludla
alighted from
the vehicle and did nothing whilst the other two (2)
occupants were being stabbed and then he ran away. She was adamant
that the
first person to be stabbed was the passenger, Philani and
she did not see any firearm.
[14]
Nokuzola Dlamini corroborated her sister,
Busisiwe’s evidence. She testified she was standing closer to
the appellant whilst
conversing with Bheki. Bheki directed a question
to her as to why the appellant and Busisiwe could not move away from
his vehicle.
Even though the question was directed at her, the
appellant responded and repeatedly told Bheki not to tell them to
move away from
his vehicle as he was not conversing with the driver
and was not inside the driver’s vehicle. Nokuzola confirmed
that the
appellant and Bheki were arguing and that Bheki accused the
appellant of being rude. She heard a person inside the vehicle say to
both the driver and the appellant to stop as the arguing was not
getting them anywhere and suggested to Bheki that they drive away
from the area and fetch the gentleman whom they were waiting for. As
Bheki started the vehicle, a third person (Philani) arrived
and
climbed into the vehicle and asked Bheki what was going on. Bheki
responded to Philani saying that the appellant was being
insolent and
rude.
[15]
At this stage, the appellant asked them
whether they were talking to him. As the argument continued, Philani
and Bheki alighted
from the vehicle but Dludla remained in the
vehicle. Whilst they were arguing with the appellant, questioning him
as to why he
was being insolent and rude, the appellant stabbed them.
Nokuzola noticed the appellant put his hand in his right-hand side
pocket,
remove a knife and stab the driver repeatedly in his chest.
After he had been stabbed, the driver ran away. Philani was stabbed
after the driver (Bheki) and whilst being stabbed, walked around the
vehicle. It was at this stage that Nokuzola ran away. Prior
to her
and Busisiwe running away, she observed Dludla, who had been seated
in the vehicle, climb out of the vehicle and run away.
[16]
During cross-examination, Nokuzola
testified that there was an argument and that Philani and Bheki
alighted from the vehicle and
moved towards the appellant and that
all three (3) of them were standing next to the vehicle. She did not
observe that Philani
or Bheki were about to attack the appellant when
they alighted from the vehicle. It was suggested to her during
cross-examination
to comment as to what she would assume would happen
if she was told she was being rude and an argument ensued and someone
walked
straight to her. She indicated that she would have thought
that the person wanted to assault her or attack her.
[17]
She denied that Bheki and Philani were
about to attack the appellant or that they uttered the words ‘shoot
this dog’.
She confirmed that there was a quarrel between the
appellant and the two (2) deceased and that the appellant did not
just stab
the deceased for no apparent reason. She also denied seeing
any firearm.
[18]
Nombulelo Mchunu (“Mchunu”),
the former girlfriend of the appellant, testified that on the day in
question, the appellant
was conversing with Busisiwe next to a
vehicle. She observed the occupants of the vehicle and a third person
quarrelling with the
appellant but could not hear what the quarrel
was about. She observed the appellant take out a knife and injure one
(1) of them.
Mchunu left and did not observe who the appellant
stabbed first, how many persons he stabbed or where the appellant had
removed
the knife from. She confirmed that no one apart from the
appellant was armed and it appeared that the driver of the vehicle,
Bheki,
told the appellant he was a ‘young boy’ and was
being rude. She testified that she did not hear the occupants of the
vehicle threaten the appellant in any way.
[19]
During cross-examination, the statement
which Mchunu made on the day following the incident was put to her
and it was pointed out
to her that her evidence in court differed
from what she had said in her statement. Her statement confirmed that
a passenger of
the vehicle put his hand inside his pocket as if to
attack the appellant, and that the appellant stabbed both the
passenger and
driver of the vehicle as they had wanted to attack him.
Her statement also mentioned that she had heard the occupants of the
vehicle
saying that the appellant was misbehaving and should be
beaten. That then was the respondent’s case.
[20]
The appellant testified that he and Mchunu
were walking home when they encountered a motor vehicle parked near a
container. He recognised
Busisiwe and Nokuzola Dlamini who were
standing close to the vehicle and appeared to be conversing with the
occupants. He approached
Busisiwe and asked to speak to her. She told
him that he should come to her house the next day so that they could
talk. Whilst
conversing with her, the occupants of the vehicle called
him a ‘boy’ and asked him why he was interrupting them
whilst
they were having a conversation with the ladies. After
apologising to the driver of the vehicle, the driver calmed down.
[21]
That is when the appellant noticed Philani
approach and climb into the vehicle and ask the driver what was
happening. The driver
responded by saying that the appellant wanted
to attack or assault him. He became annoyed as the driver was once
again calling
him a boy and he had asked him not to do so. The
persons then alighted from the vehicle and when they did, it appeared
to him as
though they wanted to attack him. He testified he heard the
driver say to the passenger ‘shoot him, assault him’.
[22]
When he confronted Philani and Bheki and
asked how they could assault him or shoot him, he noticed that the
driver was approaching
him with his hands in the air and Philani, the
deceased in count two was immediately behind him. He noticed that
Philani appeared
to be removing something from his body and that is
when he took out the knife from his back pocket. The driver then
advanced towards
him and he, the appellant, stabbed him once and
stepped back. Philani then advanced and he stabbed him twice. Philani
then turned
and went towards the back of the vehicle and that is when
he stabbed him twice on his back.
[23]
The appellant testified that he acted in
self-defence when he stabbed the deceased, as when the deceased
alighted from the vehicle,
the driver indicated to the passenger that
the appellant should be assaulted or shot. He stabbed them as a
result of this, as he
was scared and feared for his life. It is only
at that stage that he realised that they were in possession of
firearms. The appellant
testified that the driver of the vehicle had
said he should be shot or assaulted on two (2) occasions and he also
noticed something
tucked in the shirt Philani was wearing. It was
this that made him assume they were armed and were going to attack
him.
[24]
Notably in his evidence, the appellant was
asked:
‘
Ok.
Mr Maphumulo, did you intend to kill these two people, was it your
intention?. . . No.
What
was your intention?. . .I had no intention. I was defending myself
under the circumstances. It was not my intention to stab
them to
death, it was just a mistake.’
[1]
[25]
The appellant confirmed that he did not see
Dludla during the argument and subsequent stabbing, but only noticed
him when Dludla
was leaving for the Gumede homestead. He acknowledged
that Dludla may have spoken to the occupants of the vehicle and he,
the appellant,
may not have heard it.
The
judgment of the court a
quo
[26]
In
evaluating the evidence, the court a
quo
acknowledged the contradiction between the evidence of the other
State witnesses and that of Busisiwe Dlamini as to who was stabbed
first. The magistrate however, indicated that she was going to accept
the evidence of the other State witnesses as correct in respect
of
who was stabbed first as opposed to Busisiwe’s.
[2]
[27]
In
evaluating the totality of the evidence, the court a
quo
found the following facts to have been proved, namely, that there was
a quarrel between the driver (Bheki) and the appellant before
Philani
arrived. The quarrel arose as a result of the appellant interrupting
Bheki’s conversation with the ladies. When Philani
arrived at
the scene, he climbed into the vehicle and asked about the quarrel.
Thereafter, both Philani and Bheki alighted from
the vehicle and
approached the appellant. Mr Dludla admonished Bheki initially and
then admonished both Bheki and Philani after
they alighted. Dludla
retreated from the scene because he realised that there was trouble
brewing. Both deceased advanced towards
the appellant. The appellant
took off his sandals and then stabbed Bheki once in the chest. The
appellant then turned to Philani
and stabbed him. Bheki ran away and
the appellant chased after him. Philani in the meantime moved to the
rear of the vehicle. The
appellant returned from chasing Bheki and
went to Philani and stabbed him in his back.
[3]
[28]
In dealing with the presence of the firearm
at the scene, the court a
quo
referred to the evidence of Dludla and the appellant. Dludla
indicated that he had removed the firearm from the scene after he
had
found it in the car under the seat. The court a
quo
commented as follows:
‘
Court
finds his version of how he got hold of the gun, strange because he
was already outside of the car and retreating because
of according to
him, the violence in the arguments and then he returned to the car
and took the gun out from under the seat.’
[4]
In
respect of the appellant, the court said the following:
‘
The
accused, Mr Maphumulo, also saw a gun at the scene, however, he
contradicted himself about the gun and it is difficult to make
a
finding on where, according to him, the gun was. The finding that the
Court is going to make is that there was a gun at the scene
but the
Court cannot find or cannot say who had the gun.’
[5]
[29]
The
court accepted that both deceased had alighted from the vehicle and
approached the appellant. The court further accepted that
according
to Dludla, the actions of both the deceased indicated to him that
violence was going to erupt so he retreated.
[6]
In addition, the court
a
quo
accepted
that ‘the accused had reasonable grounds for thinking that he
was in danger of death or serious injury from these
two persons
advancing towards him’.
[7]
[30]
In
relation to Bheki, the court a
quo
was of the view that the appellant acted in self-defence and that the
means of violence used was not excessive. However, in relation
to
Philani, the court a
quo
was of the view ‘that the means the appellant used to defend
himself against Philani was excessive and that the injury he
inflicted was unnecessary to overcome the threat’.
[8]
It found that the evidence showed that Philani was stabbed twice by
the appellant who, on his return from chasing Bheki, stabbed
him
twice in the back. The court a
quo
in convicting him of murder found the following:
‘
With
regard to Philani then, the Court also finds that he acted with
dolus
eventualis
he knew that by stabbing the deceased more than once, that death
could ensure but he nevertheless proceeded.’
[9]
Submission
of the parties
[31]
Mr
Singh
who appeared for the appellant, submitted that this court can on
appeal interfere with the factual findings of the court a
quo
,
[10]
given the disparity in the evidence of the State witnesses Busisiwe
and Nokuzola Dlamini when compared with that of Dludla. This
court
must therefore disregard the finding that the appellant pursued
Bheki, thereafter returning to the motor vehicle where he
stabbed
Philani in the back and decide the matter on the appellant’s
version.
[32]
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
one as well, at worst, he ought to be found guilty of culpable
homicide applying the guidelines set out in
S
v Steyn.
[11]
[33]
Advocate
Ngwabi
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’.
[12]
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.
Analysis
[34]
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. 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]
[35]
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.’
[36]
The distinction between private defence and
putative private defence therefore seems to turn on the question of
lawfulness and culpability.
On reading the record it appears that
there are a number of contradictions in the evidence of the State
witnesses but more importantly,
in the appellant’s evidence. To
my mind the contradictions in the evidence of the State witnesses is
not so serious as to
warrant a rejection of such evidence. In any
event, the fact that Busisiwe Dlamini’s evidence differed from
the other State
witnesses was not material as it only related to the
sequence of who was stabbed first.
[37]
However,
the same cannot be said about the contradictions in the appellant’s
evidence. In
S
v Mkohle
[17]
it was held by Nestadt JA that:
‘
Contradictions
per
se
do not lead to the rejection of a witness’ evidence. As
Nicholas J, as he then was, observed in
S
v Oosthuizen
1982 (3) SA 571
(T) at 576B-C, they may simply be indicative of an
error. And (at 576G-H) it is stated that not every error made by a
witness affects
his credibility; in each case the trier of fact has
to make an evaluation; taking into account such matters as the nature
of the
contradictions, their number and importance, and their bearing
on other parts of the witness’ evidence. Williamson J obviously
did this. In my view, no fault can be found with his conclusion that
what inconsistencies and differences there were, were “of
a
relatively minor nature and the sort of thing to be expected from
honest but imperfect recollection, observation and reconstruction”.
One could add that, if anything, the contradictions point away from
the conspiracy relied on.’
[18]
[38]
The courts appear to be forgiving of minor
discrepancies or inconsistencies in the evidence of witnesses.
However, in this case,
there were a number of discrepancies in the
appellant’s evidence. Therefore, in considering the appellant’s
evidence
and version of events, the court must consider the nature of
the contradictions, as their number and importance have a bearing,
in
my view, on the witnesses’ evidence and his defence and are
crucial in determining the lawfulness of the appellant’s
actions.
[39]
The appellant maintains that he acted in
self-defence at all times. The correctness of the appellant’s
conviction must accordingly
be judged in the light of his evidence,
what emerged during cross-examination and his state of mind at the
time of the stabbing.
[40]
In my view the evidence of the State
witnesses as to whom was stabbed first and the contradiction in
relation thereto is not significant.
What needs to be considered are
the following aspects raised by the appellant namely, whether the
deceased threatened to shoot
or assault the appellant, whether the
deceased pointed a firearm at the appellant and under what
circumstances the appellant acted
in self-defence.
[41]
I
propose to consider these having regard to certain aspects of the
appellant’s evidence. Insofar as the issue of the firearm
is
concerned, the evidence proceeds as follows. The appellant says he
‘was not aware what weapons and what they had in their
possessions’.
[19]
He
thought that one of the deceased was taking out a firearm.
[20]
He then goes on to say that he did not remember which one of the
persons who died had a firearm and pointed it at him.
[21]
[42]
When
asked pertinently whether he saw a firearm his response was the
following:
‘
The
reason why I thought there was a firearm within the vicinity, it’s
because one of them had told the other to shoot this
person and the
other person pretended to be taking something out of the pocket,
that’s when I thought these people had firearms.
. . .’
[22]
[43]
Further on he is asked whether he saw the
firearm:
‘“
Did
you see the firearm that day?”
“
I
can’t say I saw it. . .I heard on the following day that there
was a firearm there, I do not know as to how it was recovered,
how it
got to the police, I don’t know”.
[23]
“
During
the incident, sir, did you see a gun, that is the question?”
“
I
did not see the gun up to the incident”.’
[24]
[44]
Later
on during the evidence he is pertinently asked regarding the firearm
and his response is that he did not see a firearm on
the day at the
time. He is asked:
‘“
Now
sir, please listen. You have told this Court that you never saw a
firearm that day at that time.”---“No, what I
meant when
I made mention of that was that I did not know what type of a firearm
it was but however, when he pulled it, I could
see that it was an
object that looked like a firearm but however, I did not know
what type or kind of firearm it was.”
“Do you remember
the last question that you were asked before the Court adjourned last
time?” … “The last
question… did you see a
firearm that day, that time and the answer was no, that is what you
said.”---“No, I
cannot recall correctly but however, I am
of the opinion that I was trying to explain to Court that I saw the
firearm but however,
I did not know the type of firearm it was.”’
[25]
[45]
During further questioning it is clear that
the appellant tailored his evidence in regard to seeing the firearm
and the manner in
which he was ‘attacked’. This is clear
if one has regard to his evidence.
‘“
So
the one that was stabbed first, after stabbing him, what did you
do?---He retreated.
“
To
where”—He retreated towards the front of the vehicle in
question.
“
He
never shot you?—The driver was not carrying anything.
“
So
at that time you could see that the person was not armed?---Yes, I
was aware at that stage that the driver was not armed but
however, I
was also aware that I was both-or rather, they were both fighting me
and I was defending myself against both of them.”
[26]
…“
I
then came across this person now that was advancing towards me,
carrying a firearm in his hand.”’
[27]
[46]
In
respect of the attack and the stabbing the following is put to him by
the prosecutor.
‘“…
And
all in all, sir, both the deceased, you stabbed the first one, he ran
away, you stabbed the second one, he turned away from
you and
retreated, so none of them were approaching you when you stabbed
them.---- Well, I agree with you but I wouldn’t
have stabbed
them if none of them were advancing towards me.”
[28]
“
..And
at all times you never saw the firearm that day, is that correct?---I
did see a firearm when the-or rather right after the
utterance was
made that I must be shot at and this person now was reaching for it
underneath his shirt.”
[29]
“
Did
he point a firearm at you?---No he just held a firearm with his
hand…”
[30]
“
Did
he point the firearm at you?---“I would say yes because of how
he was holding this firearm. . . .”’
[31]
[47]
A further aspect of his evidence relates to
the issue of running away and the apparent attack by his assailants.
He was asked:
‘“
Did
you have an option to run away?”--“When Nombulelo called
me or shouted my name as I was leaving, they then called
me
forcefully.”
[32]
“…
I
turned to leave as I was-I turned wanting, to leave and they then
called me violently, they called me backed violently.”
[33]
“
I
proceeded towards the direction that I had initially been travelling
towards but what happened was that I was then dragged forcefully
by
one of them”.’
[34]
[48]
It appears that this evidence was never
canvassed with any of the State witnesses and testified too by the
appellant only during
the course of cross-examination and had never
been canvassed in his evidence in chief. He was questioned:
‘
What
did they do, did they call you forcefully or they dragged you, pulled
you physically there towards … ?”---“They
did
both. I was called and pulled forcefully.” “And that
crucial information, you never raised it when the first witness
was
there and even when you were testifying before Court that you were
dragged by these two people.”
[35]
“
And
you are aware that when you testified last time, you never said you
were physically dragged or called by one of these people?”
---“I think I did make mention of that”. “You did
not, this is news to us, we never heard that. We are only hearing
for
the first time now.”---“I think I mentioned that.”’
[36]
[49]
In my view, this evidence and the
contradiction specifically in relation to the conduct of his two
attackers, as well as the issue
in relation to the firearm are
crucial to the appellant’s defence. The appellant had an
opportunity to run away before the
altercation took place but did not
do so. His evidence was contradictory and conflicting on more than
one occasion. What was the
intention of the appellant? Did he intend
to kill or was he merely trying to stop an alleged attack? More
importantly, was there
an attack? Such attack and the issue of the
firearm or being dragged was never testified to by any of the State
witnesses. These
witnesses had a clear view of what transpired.
[50]
Given
the number of inconsistencies with the appellant’s evidence, it
appears that he was tailoring his evidence, specifically
in relation
to the issue of an attack, the threat of the firearm and being
dragged by the two deceased. In addition, the words
he uttered as to
whether or not he intended to kill the deceased do not per se
establish an absence of intent. These words must
be seen in their
proper context. These were said during the course of evidence at the
trial and must not be elevated to the status
of a proved fact. These
words must be considered in the light of the evidence as a whole and
specifically the appellant’s
evidence.
[37]
[51]
In light of the number of inconsistencies
with the appellant’s evidence and the fact that he stabbed
Philani more than once
when he had turned away, indicates in my view,
that his actions were disproportionate to an alleged attack. The
deceased did nothing
further after he was stabbed. There was nothing
to indicate that Philani, after he was first stabbed by the
appellant, was still
a threat to the appellant. Furthermore by
stabbing the deceased more than once, the appellant must have
foreseen that the deceased
would die. The appellant knew what he was
doing by stabbing the deceased more than once, both in the chest and
in the back when
he had turned away. The only reasonable inference
that can be drawn is that the appellant must have foreseen the
possibility that
the deceased would die and cannot be said to have
acted negligently as he stabbed Philani again after the threat had
been averted.
His actions are not consistent with the plea of
self-defence or with culpable homicide. The only reasonable inference
on the evidence
is that the appellant must have foreseen the
possibility of death ensuing, reconciled himself to it and exceeded
the bounds of
self-defence. Consequently, the court a
quo
was correct in convicting the appellant for killing the deceased in
the form of
dolus eventualis
.
In the circumstances, the appeal against the conviction cannot
succeed.
Sentence
[52]
This then brings me to the appropriate
sentence. Given the circumstances under which the offence was
committed and having regard
to the personal circumstances of the
appellant, in my view, a sentence of twelve (12) years imprisonment
may be excessive. However,
the test on appeal is not what sentence we
as an appeal court would impose, but rather whether or not there is
anything to vitiate
the sentence imposed by the court a
quo
.
[53]
The
court a
quo
found substantial and compelling circumstances to deviate from the
prescribed minimum sentence of 15 years. In doing so it considered
the triad of
Zinn
[38]
and the factors placed before the court. I am of the view that there
has been no misdirection or irregularity by the court a
quo
in imposing the sentence of twelve (12) years imprisonment nor can it
be said that such sentence is disturbingly or startlingly
inappropriate warranting interference on appeal. Likewise too then,
the appeal against sentence cannot succeed.
Conclusion
[54]
In the result, the orders I propose are the following:
[54.1]
The appeal against the conviction is dismissed.
[54.2]
The appeal against the sentence imposed by the court a
quo
is dismissed.
______________
HENRIQUES
J
I
AGREE
______________
SISHI
J
Case
Information
Date
of argument
:
18
August 2015
Date
of judgment
:
30
August 2016
Appearances
Counsel
for Appellant
:
Mr K.
L. Singh
c/o
The Justice Centre
Suite
401, 4
th
Floor
Salisbury
House
330
Anton Lembede Street
Durban
Counsel
for Respondent :
Adv. Ngwabi
c/o
The Director of Public Prosecutions
301
Church Street
Pietermaritzburg
[1]
Page
82 of the transcript, lines 13-17.
[2]
Page
110 of the transcript, line 23 to line 4 of page 111 of the
transcript.
[3]
Page
111 of the transcript, line 13 to line 2, page 112 of the
transcript.
[4]
Page
112 of the transcript, lines 6-9.
[5]
Page
112 of the transcript, lines 11-14.
[6]
Page
113 of the transcript, lines 4-9.
[7]
Page
113 of the transcript, lines 9-11.
[8]
Page
114 of the transcript, lines 2-5.
[9]
Page
114
of
the transcript, lines 9-12.
[10]
S
v Monyane & others
2008
(1) SACR 543
(SCA) para 15;
S
v Pistorius
2014 (2) SACR 314
(SCA) para 30.
[11]
2010
(1) SACR 411
(SCA) para 19.
[12]
S
v Hadebe & others
1997
(2) SACR 641
(SCA) at 645I–646A.
[13]
C
R Snyman
Criminal
Law
6
ed (2014).
[14]
Snyman
Criminal
Law.
[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]
1993
(2) SACR 59
(A) at 63H-64A.
[17]
1990
(1) SACR 95 (A).
[18]
At
98F-G.
[19]
Page
80 of the transcript, lines 21-24.
[20]
Page
81 of the transcript, lines 13-14.
[21]
Page
92 of the transcript, lines 6-8.
[22]
Page
92 of the transcript, line 11.
[23]
Page
92
of
the transcript, line 16.
[24]
Page
92 of the transcript, lines 11, 16 and 21.
[25]
Page
95 of the transcript, lines 6-19.
[26]
Page
96
of
the transcript,
lines
14-25.
[27]
Page
98 of the transcript, lines 20-21.
[28]
Page
99 of the transcript, lines 8-12.
[29]
Page
100 of the transcript, lines 9-12.
[30]
Page
101 of the transcript, lines 23-25.
[31]
Page
102 of the transcript, lines 2-6.
[32]
Page
83 of the transcript, lines 13-15.
[33]
Page
90 of the transcript, lines 3-5.
[34]
Page
93 of the transcript, lines 23-24.
[35]
Page
94 of the transcript, lines 6-11.
[36]
Page
94 of the transcript, lines 20-24.
[37]
S
v De Oliveira
at 65.
[38]
S
v Zinn
1969 (2) SA 537
(A