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[2007] ZASCA 39
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S v Mlenze (569/06) [2007] ZASCA 39; [2007] SCA 39 (RSA) (28 March 2007)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case no: 569/06
NOT REPORTABLE
In
the matter between:
RICHMAN
SIZWE MLENZE
......................
APPELLANT
and
THE
STATE
......................
RESPONDENT
Before: Cameron,
Mlambo JJA et Theron AJA
Heard: 19 March 2007
Delivered: 28 March
2007
Summary: Criminal law –
appeal against conviction and sentence – regional court
considering all evidence before conviction
– appellant’s
version not reasonably possibly true – appeal dismissed.
Neutral
citation: This judgment may be referred to as
Mlenze
v The State
[2007]
SCA 39 (RSA).
JUDGMENT
MLAMBO
JA
[1] On 16 September
2003 the Fort Beaufort Regional court convicted the appellant of the
murder of Mr Dumisani Mpapu (Dumisani). He
was sentenced to ten
years’ imprisonment, it being the view of the regional court
that there were substantial and compelling
circumstances justifying a
departure from the ordained minimum sentence of 15 years.
[2] The appellant’s
appeal against both conviction and sentence was dismissed by the
Grahamstown High Court (Plasket J, Jennet
J concurring) on
30
September
2004. That court however granted him leave to appeal to this court
and his bail, granted by the regional court, was extended
pending the
appeal.
[3] The undisputed
facts are that during the early hours of Sunday, 30 June 2002,
at Nohashe Street in Fort Beaufort, the appellant
shot Dumisani in
the head. Dumisani was taken to the Fort Beaufort hospital but
succumbed to his wounds three days later at the Mount
Frere Hospital
in East London. The post mortem report records the cause of death as
a bullet wound to the head. It also records that
the bullet entered
through the nose and exited through the right parietal side of the
head, lacerating the brain and leaving a 1.5
cm ragged wound with
radiating fractures. The appellant admitted firing the shot but
pleaded not guilty to murder and tendered a
plea explanation of
acting in private defence.
Evidence
[4] The state called
Mr Mzwabantu Mpapu (Mzwabantu), Dumisani’s cousin, who
testified that he witnessed the shooting. His version
was that in the
early hours of Sunday morning 30 June 2002 he was walking home with
Dumisani from Danqe’s Tavern after a night’s
drinking
which they iniated the previous evening at the appellant’s
tavern. They had just parted company from Mr Xolisa Mbombe
and were
standing in the street when the appellant, carrying a firearm in one
hand, approached them from Sabisa’s yard, saying
‘these
are them’. Mzwabantu asked the appellant what he meant and the
appellant said ‘the white pants’ pointing
at the white
pants worn by Dumisani. He asked the appellant, what about the white
pants, which evoked no response: instead he heard
a shot, followed by
another and saw Dumisani, bleeding through the mouth, fall to the
ground. He then ran away and jumped over the
gate of Luyanda
Phezisa’s house and woke Luyanda up, informing him that
Dumisani had been shot, and requested him to call an
ambulance. He
thereafter jumped over the gate again and ran to his own home.
[5] He stated that
he was surprised by the appellant’s conduct as he was aware of
no grudges or quarrels between Dumisani and
the appellant and because
both he and Dumisani were very well known to the appellant, having
worked for him in his businesses. His
version was challenged in
cross-examination by the appellant’s legal representative. It
was put to him that the shooting took
place inside the appellant’s
yard and that he, Mzwabantu, was nowhere to be seen at the time. It
was also put to him that the
appellant shot Dumisani, whom he did not
recognize, while he was stealing his fowls. Mzwabantu disputed these
assertions, stating
that he was with Dumisani at all times and had
not seen him go to the appellant’s yard and steal fowls. He
conceded under cross-examination
that he and Dumisani were drunk and
that they held on to each other for balance. In response to a
question by the magistrate he specified
the place where the shooting
took place as on the other side of the street in front of a yard next
to Sabisa’s yard which was
not opposite the appellant’s
house.
[6] Mr Xolisa Mbombe
did not add much to the evidence as he did not witness the shooting.
He corroborated Mzwabantu’s version
about the previous night’s
drinking spree. The contribution of another state witness, Luyanda
Phezisa, was to deny that he
was with Mzwabantu and Dumisani before
the shooting. He confirmed however that he heard the two shots and
was shortly thereafter
woken up by Mzwabantu who, after informing him
that Dumisani had been shot, requested him to call an ambulance.
[7] The
investigating officer, detective sergeant Bonizwa Griffiths Veto,
testified that when he arrived at the scene he found the
appellant
standing outside his gate and asked him what happened. The appellant
stated that he had shot someone in his yard who was
stealing his
fowls. The appellant also showed him where Dumisani had fallen, which
Veto estimated to be some 20 metres from the appellant’s
gate.
He observed a clot of blood at that spot but observed no other blood
droplets in the vicinity or inside the appellant’s
yard. Inside
the appellant’s fowl run he did however see two dead fowls. He
stated that it was still very dark and he had to
use his torch to
make his observations. It was put to him that the two dead fowls were
outside the fowl run and that their throats
had been cut. He disputed
this: as far as he could make out the two dead fowls were inside the
fowl run and their throats were not
cut, and he saw no blood next to
them. His evidence that the appellant told him on his arrival at the
scene that he had shot someone
in his yard who was stealing his fowls
was not challenged in cross-examination.
[8] The evidence of
the district surgeon of East London, Dr Basil Wingreen, who performed
the post mortem examination, was that the
deceased was about 21 years
of age, weighing some 60 kg, and 1.6 metres tall. The entrance wound
was, as already stated, on the left
nostril which had blackening
around it. The exit wound was a ragged 1.5 cm bullet wound on
the right parietal bone of the skull,
with radiating fractures. The
brain was lacerated with some haemorrhage consistent with the passage
of a bullet.
[9] He stated that
the blackening around the nose was caused by the fact that the gun
was discharged at a distance where the gunpowder
was actually in
contact with the skin. He stated that the distance between the gun
and the skin when the shot was fired was not more
than 12-15 cm which
amounted to almost a contact bullet wound. He stated that there were
recorded cases in the textbooks of people
being shot in that manner
and walking a few paces before collapsing. Referring to this
particular case – it was common cause
that Dumisani died only
three days later, on Wednesday 3 July – he stated that the fact
that Dumisani did not die on the scene
did not necessarily mean that
he could have walked 20 metres after being shot. He stated that he
would have expected ‘a person
like this to have collapsed
immediately’, without being able to run after being shot.
[10] The regional
magistrate asked the doctor whether there would be external bleeding
in such a case. He stated that he would not
have expected immediate
external bleeding because the bullet went up the nose with gases, and
one would have expected the blood to
have been shot to the back of
the throat. On the other hand, he would have expected external
bleeding if the head had fallen downwards.
He stated in
cross-examination that he would not have expected immediate external
bleeding if the head did not fall forward since
the blood would have
gone to the back of the throat – and in this particular
instance there was indeed congestion in the lung
from the inhalation
of blood.
[11] The appellant’s
version was that he was woken up in the early hours of the morning by
a noise from the fowl run. When he
went to investigate he found his
main gate and the fowl run entrance open. He closed them and went
back to bed. He was hardly back
in bed when the noise started again.
He suspected someone was trying to rob him. Because all his
businesses and his truck were in
the yard he decided to take out his
firearm and investigate further. He saw that the main gate and fowl
run entrance were once more
open.
[12] He then saw two
dead fowls, with their throats cut, outside the fowl run. As it was
dark he could not see clearly but he heard
a noise and when he looked
up he saw a figure some 4-5 metres away from him holding a live white
fowl close to his chest. It appeared
to him as if the person was
holding something else with the other hand and he shouted to the
person ‘why are you stealing my
fowls’. The person
retreated whereupon he fired a warning shot in the air. After he
fired the warning shot the person rushed
at him threateningly. As he
could not see what the person had in his other hand he shot him and
the person turned around and ran
out of the yard. It was only then
when he followed this person that he realized that he knew him. He
stated that when he shot the
person he was defending his property and
himself as he feared that the intruder may have been armed with a
dangerous weapon. His
wife corroborated his evidence save for the
shooting which she did not witness.
Regional Court’s
reasons
[13] The issue at
this stage is whether the trial court erred in rejecting the
appellant’s version as false beyond reasonable
doubt. In
convicting the appellant the regional magistrate found that his
version of the shooting could not reasonably possibly be
true. The
magistrate found that Mzwabantu, even though a single witness, was
satisfactory and that his version was corroborated by
two independent
witnesses. The magistrate found that the shooting did not take place
inside the appellant’s yard, and that
he was an unsatisfactory
witness whose evidence was riddled with contradictions and
improbabilities. In this regard the regional
magistrate stated that
the appellant was unsure whether he was defending himself or the fowl
or both.
High Court
judgment
[14] In dismissing
the appellant’s appeal, Plasket J in essence affirmed the
regional magistrate’s judgment that the appellant’s
version was improbable beyond reasonable doubt. He found, correctly,
that the magistrate was ‘alive to the need to find guarantees
of the reliability of the evidence of [Mzwabantu] Mpapu’, and
that these were present in Mpapu’s satisfactory evidence
which
was bolstered by Inspector Veto and Dr Wingreen. On this basis
Plasket J concluded that the regional magistrate had committed
no
misdirection and that ruled out any basis of interfering with his
factual findings.
Assessment
[15] Counsel for the
appellant submitted in this court that the regional magistrate and
the court
a
quo
were
wrong to reject the appellant’s version and to prefer
Mzwabantu’s. He submitted that Mzwabantu was a very poor
witness
and that there were unexplained gaps in his evidence. Counsel
submitted further that Mzwabantu was avowedly under the influence of
alcohol at the time which meant that no reliance could be placed on
his version. He also submitted that Mzwabantu was biased against
the
appellant and was clearly protective towards Dumisani as they were
cousins.
[16] Counsel also
alluded to the fact that it took Mzwabantu some 15 days after the
event to make a statement to the police. In this
regard he submitted
that in all the circumstances the appellant’s version was
reasonably possibly true that he had shot Dumisani
inside his yard
and that Dumisani had staggered for some 20 metres before collapsing.
He stated that this version was somewhat corroborated
by the medical
evidence from Dr Wingreen that a person shot in that manner would not
bleed immediately hence no blood would have
been found in the
appellant’s yard or leading to the spot where Dumisani fell. He
also submitted that the appellant’s
version that he first fired
a warning shot and thereafter the fatal shot was corroborated by his
wife as well as by Mzwabantu, who
heard two shots.
[17] It is so that a
trial court considering whether to convict or acquit an accused
person is enjoined to consider all the evidence
led in its totality.
The purpose is to determine whether given all the evidence the state
has succeeded in proving the guilt of the
accused beyond reasonable
doubt (
S v
Van der Meyden
1999
(1) SACR 447
(W) at 450b, approved in
S
v Van Aswegen
2001
(2) SACR 97
(SCA) at 101b-e).
[18] The essential
features of the appellant’s version are that he shot Dumisani,
who was posing a threat to his life and property
in his yard, that
Dumisani ran some 20 metres before collapsing on the other side of
the street, and that Mzwabantu was not on the
scene. With regard to
Mzwabantu’s presence on the scene one looks no further than
Luyanda Phezisa. Luyanda confirmed hearing
two shots and being woken
up shortly thereafter by Mzwabantu who informed him that Dumisani had
been shot. Clearly Luyanda’s
testimony confirms Mzwabantu’s
presence on the scene or at least in the immediate vicinity of the
shooting. This also disposes
of the submission that we should not
take account of Mzwabantu’s version because he was under the
influence of alcohol. He
was on his own admission intoxicated but his
observation of Dumisani being shot cannot be discounted – not
merely because he
was on all accounts there, but because he was also
capable of vaulting perimeter barriers to go and summons help.
[19] There is a
total lack of any corroborative evidence for the appellant’s
claim that he shot Dumisani inside his yard. A
material improbability
of this account is that the appellant wants the court to accept: that
the slightly built Dumisani –
who was in fact unarmed and
totally defenceless – having seen the armed appellant in his
own yard and having heard a warning
shot being fired, would charge at
him in a threatening manner. It is also significant that when Veto
arrived on the scene and asked
the appellant what had happened, the
appellant told him that he had shot someone who was stealing his
fowls. Notable is the absence
of any claim of self-defence or
repulsion of attack against person or property. If the appellant’s
version were true there
is no explanation why he did not immediately
tell Veto – the first person in authority to arrive on the
scene – that
he had shot someone who was attacking him in his
yard.
[20] The absence of
blood inside the appellant’s yard is also telling. It is
incorrect to argue, as appellant’s counsel
did, that the
absence of blood from the appellant’s yard and in the vicinity
of the place where Dumisani collapsed was supported
by Dr Wingreen’s
medical exposition. Dr Wingreen did not exclude external bleeding
entirely. He stated that there would be
no external bleeding
initially but if the head fell down then there would be external
bleeding. That this is what happened is borne
out by Mzwabantu’s
version that Dumisani collapsed at the spot where he was shot
bleeding
through the mouth
.
The appellant’s version entails that Dumisani was shot some 4-5
metres inside his yard, that he ran that distance out of the
yard –
and then a further 20 metres without bleeding until he collapsed.
This was discounted as a matter of probability by
Dr Wingreen, who
stated that he would have expected Dumisani to collapse immediately.
The fact that Dr Wingreen’s evidence
does not exclude the
reasonable possibility that the deceased may have run a few paces
does not mean that we should exclude from
our assessment of the
appellant’s version the doctor’s testimony that he would
not have expected this to happen.
[21] Furthermore the
medical evidence is clear that the appellant was no more than
12-15 cm away from Dunisani when he fired
the fatal shot. This
constitutes further corroboration of Mzwabantu’s version that
the appellant was in very close proximity
to Dumisani when he shot
him.
[22] Mzwabantu
described the place where Dumisani was shot as the yard next to
Sabisa’s yard. Clarity regarding the location
emerged when, in
response to questions by the regional magistrate, Mzwabantu said it
was on the other side of the street and not
directly opposite the
appellant’s yard. He clarified that the appellant’s yard
was opposite Sabisa’s yard. The
appellant also wants us to
accept that Dumisani had a live fowl in his hand having killed two
others. This on its own defies any
logic as to why, if he intended to
steal fowls, he would kill two, discard them and hold on to one live
and noisy one as he exited
from the appellant’s yard.
[23] It must be
stated that Mzwabantu’s version is not entirely above
criticism. In this regard he failed to tell Luyanda why
Dumisani was
shot when asked. It could well be that he was being protective
towards his cousin. In addition, there is some merit
in counsel’s
observation that there appears to be a gap in Mzwabantu’s
version: Luyanda, after all, went off to sleep
before being awoken
after the shooting, whereas Mzwabantu does not account for what
happened in this time. There is also the question
of the first shot,
which does not appear to have struck the deceased. That a warning
shot could have been fired at some prior point
cannot be excluded.
These deficiencies, in the light of all the evidence considered
together, do not entail that the appellant’s
guilt was not
established. The essential feature of Mzwabantu’s account is
that the appellant shot the deceased at point blank
range, without
warning or provocation, in a public place outside his yard. That
account finds corroboration in the evidence of Luyanda,
Veto and
Windgreen. See the comments of Cameron JA in
S
v M
2006
(1) SACR 135
(SCA) at 183h-i in this regard that:
‘
The
point is that the totality of the evidence must be measured, not in
isolation, but by assessing properly whether in the light
of the
inherent strengths, weaknesses, probabilities and improbabilities on
both sides the balance weighs so heavily in favour of
the State that
any reasonable doubt about the accused’s guilt is excluded.’
[24] I am satisfied,
taking account of all the evidence that the guilt of the appellant
was proven beyond reasonable doubt and that
his version of shooting
Dumisani inside his yard is not reasonably possibly true. It was
therefore correctly rejected by the regional
court and the court
a
quo
.
The only reasonable inference from all the evidence is that indeed
the appellant’s fowls were interfered with and that the
appellant then chased that person, wearing white pants, who may well
have been Dumisani, as found by Plasket J, and when he emerged
from
Sabisa’s yard and encountered him he shot him. Under the
circumstances the appeal against conviction must fail.
Appeal against
sentence
[25] As to sentence
the regional court imposed a ten year imprisonment sentence after
finding that there were substantial and compelling
circumstances
justifying that sentence. Nothing was advanced on appeal to impeach
this sentence which was clearly moderated by considerations
of mercy.
The appeal against sentence must also fail.
[26] The appeal
against conviction and sentence is dismissed.
____________
D MLAMBO
JUDGE OF APPEAL
CONCUR:
CAMERON
JA
THERON
AJA