Brief Summary

Criminal Law — Murder — Appeal against conviction and sentence — Appellant convicted of murder and assault with intent to cause grievous bodily harm — Appellant contending that the trial court erred in its assessment of credibility and factual findings — Incident involved a confrontation leading to the deceased suffering a fatal stab wound — Appellant's defense claimed self-defense, asserting the deceased attacked him first — Court held that the trial court's findings were supported by the evidence, and the appellant's version was not reasonably possible — Appeal dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a criminal appeal to the High Court (Northern Cape Division, Kimberley) against both convictions and sentence imposed by a Regional Court. The appellant, Fumani Elias Maluleka, had been convicted of murder and assault with intent to do grievous bodily harm and sentenced to 15 years’ imprisonment on the two counts taken together. The respondent was the State.

The appeal was heard on 28 October 2013 and judgment was delivered on 1 November 2013 by Olivier R (with Williams R concurring). The appellant appealed with leave of the trial court. The appeal against conviction was directed primarily at the trial court’s factual and credibility findings, and the appeal against sentence challenged the appropriateness of the effective term of imprisonment imposed.

The general subject-matter of the dispute concerned (i) whether the appellant unlawfully stabbed and killed the deceased (and injured other complainants) as alleged by the State, or whether the deceased had attacked the appellant with a knife and the fatal injury occurred during a struggle as alleged by the defence; and (ii) whether the sentence of 15 years’ imprisonment was justified on the established facts and sentencing approach applied by the trial court.

2. Material Facts

It was common cause, or not materially in dispute, that during the night in question an incident occurred involving Mr S M Sebale (“Speaks”) and, among others, the deceased, Mr Clement Mabote (“Thabang”), apparently connected to a dispute about a girl. Sebale sustained a bleeding head injury. After Sebale telephoned him, Sebale’s friend Mr Peace Selebogo found him at Sebale’s home. Selebogo’s girlfriend, Ms Lele Letse, also arrived and assisted Sebale to wash blood from his head while he was seated outside his house.

It was also not materially in dispute that the deceased was outside the premises and was swearing at Sebale and challenging him to come out and fight. Letse sent someone to fetch the deceased’s mother, Ms M F Mabote, who arrived and spoke to the deceased. On the versions of Mabote and Letse, the deceased calmed down as a result.

Selebogo returned to the tavern and later returned to the scene in a bakkie driven by Mr Matumi, accompanied by the appellant and two other persons. Thereafter, the deceased sustained a stab wound to the chest and ran to his parental home, where he collapsed and died. A post-mortem examination was conducted by Dr Surtie, who testified for the State regarding the injuries.

The State’s case on the material facts was that the appellant attacked the deceased, who was unarmed, with a knife and inflicted the fatal chest wound. The State further contended that, when the appellant attempted to stab the deceased again, he stabbed Ms Mabote (the deceased’s mother) while the deceased moved around her trying to evade the appellant, which founded the conviction for assault with intent to do grievous bodily harm. Letse also testified that the appellant inflicted a knife injury to her (apparently to the shoulder area) during the same events.

The appellant’s version was materially different. He testified that the deceased attacked him with a knife, that he grabbed the deceased’s hand, and that a struggle ensued in which they moved back and forth, ultimately fell to the ground, then rose and ran off in different directions. The appellant denied stabbing the deceased or anyone else, and stated that he did not know whether the deceased sustained the fatal wound during the struggle and fall.

In assessing what was material, the court highlighted tensions between Ms Mabote’s description of the stabbing and the post-mortem findings. Ms Mabote said she saw the appellant stab the deceased twice in the chest and not in the back. The post-mortem revealed one stab wound to the chest, and also a small cut wound (approximately 12 mm) on the back. Ms Mabote attempted to explain the single chest wound by suggesting that the two stabs might have landed on the same spot, although the doctor was not questioned on that possibility. The court also considered whether the back wound could have been caused in another way (including contact with a fence), particularly in light of evidence about a fence and how persons may have been pressed against it during the incident.

3. Legal Issues

The central legal questions were whether, on the evidence, the trial court was correct to convict the appellant of murder and assault with intent to do grievous bodily harm, and whether the High Court should interfere with the trial court’s findings of fact and credibility. This required the appeal court to consider whether the appellant’s version was reasonably possibly true, given that the appellant bore no onus.

A further legal issue was whether any adverse inference should be drawn against the State because Matumi did not testify, and whether the trial court had a duty under section 186 of the Criminal Procedure Act to call Matumi as a witness where neither party did so.

Finally, the court had to determine whether the sentence imposed was vitiated by a material misdirection or was shockingly inappropriate, justifying appellate interference, and if so, what sentence should be substituted.

Overall, the dispute concerned a combination of factual questions (what happened, who stabbed whom, the plausibility of competing versions), the application of legal standards to those facts (the “reasonably possibly true” test and the limits of appellate interference), and sentencing discretion (including whether the trial court erred in not treating certain factors as justifying a lesser sentence).

4. Court’s Reasoning

The court approached the appeal against conviction by reiterating the established principle that an appeal court does not readily interfere with a trial court’s factual and credibility findings. The proper enquiry remained whether the appellant’s version was reasonably possibly true, and whether the trial court’s acceptance of the State’s version was open to it on the record.

On the medical and objective features, the court noted the apparent mismatch between Ms Mabote’s account of two chest stabs and the post-mortem finding of a single stab wound to the chest, as well as the presence of a small cut wound to the back. The court did not treat these discrepancies as decisive against Ms Mabote. It considered that the back wound could potentially be explained by contact with a fence during a dynamic incident, and that the fact that Ms Mabote did not see a stab to the back was not necessarily inconsistent with her reliability. The court also observed that, on the appellant’s own version of a struggle and fall, it was highly improbable that the deceased would sustain both a deep penetrating chest stab wound and an additional cut wound on the back in that manner, absent evidence that anyone else had inflicted knife injuries.

The court accepted that Dr Surtie conceded the chest wound could, medically speaking, have been sustained during a struggle and fall as described by the appellant. However, the court treated the credibility and internal coherence of the appellant’s account as critical. It found that the appellant appeared to have adapted his version under cross-examination in order to render an accidental infliction of the wound more plausible, particularly by adding detail about pushing the deceased’s hands back before fleeing. The court reasoned that this adjustment aligned with the need to explain how a forceful, high chest stab wound could have occurred during a fall while the deceased allegedly held the knife.

The court also addressed whether it was reasonably possible that the deceased had been armed with a knife. It recorded that the State’s evidence on this aspect was weak and contained contradictions, especially relating to what Sebale had told others about how he was injured and what Selebogo’s police statement suggested. The court criticised the trial court’s handling of these contradictions, noting that the trial court had dismissed them on grounds (such as language and lack of detail in police statements) that did not properly confront the problem of conflicting detail, particularly where the statement had been read back and explained to the witness. The court further observed that Sebale’s evidence that he had been “stabbed” and had conveyed that to others was not challenged by the prosecutor, and the trial court did not engage with it.

Despite those criticisms, the court ultimately held that this body of State evidence was insufficient to exclude the reasonable possibility that the deceased might have had a knife, but equally could not prove that he did. The court then evaluated the probabilities of the deceased actually producing a knife and attacking the appellant at the crucial time. It emphasised the uncontradicted State evidence that, at a point when Matumi had pressed the deceased against a fence, the deceased did not produce a knife and, on the State version, had calmed down and wanted to leave. The court considered it improbable that the deceased would then, moments later, draw a knife and attack an unarmed appellant who purportedly approached only to ask him to leave. The court also regarded the appellant’s explanation for why he approached the deceased as unlikely, particularly because Letse’s evidence (not challenged) was that Matumi restrained the deceased to prevent him from leaving, which did not cohere with a benign attempt to ask the deceased to go away. In addition, the court considered it improbable that a group of five would need to arrive merely to take Sebale to hospital, and unlikely that the deceased alone would have posed a genuine obstacle to removing Sebale.

The injuries to Ms Mabote and Ms Letse were treated as important corroborative features undermining the appellant’s version. The court held that Ms Mabote’s delay in seeing a doctor did not negate the medical confirmation of a laceration consistent with her account, and that the doctor’s description in the report as “common assault” did not exclude a knife-inflicted wound. In Letse’s case, the court accepted that, even if her evidence was unclear on intent, it was undisputed that she immediately showed an injury during the events, and Selebogo’s characterisation of it as a “scratch” did not meaningfully detract from her evidence that it was caused by the appellant’s knife. The court found that the appellant’s version left “no room” for these injuries and that defence suggestions of alternative causes were speculative on the evidence as presented.

Regarding Matumi’s absence as a witness, the court rejected the submission that an adverse inference should be drawn against the State. It held that Matumi had been made available to the defence at the close of the State case and the appellant could have called him but chose not to do so, rendering speculation about what Matumi might have said inappropriate. The court also rejected the argument that the trial court had a duty under section 186 to call Matumi mero motu. It reasoned that there was already evidence from Ms Mabote about the attack; Matumi was not presented as the only source of such evidence; the defence did not request that Matumi be called; and the mere fact that only one State witness gave direct evidence of the stabbing did not, on these facts, generate a duty on the trial court to call an additional witness.

On sentence, the court restated the principle that appellate interference is limited to cases where the sentence is shockingly inappropriate or where the trial court committed a material misdirection in its sentencing discretion. It then considered the trial court’s conclusion that there were no substantial and compelling circumstances warranting deviation from the prescribed sentence it applied (15 years). The court accepted that the appellant’s conduct was morally serious, in that he killed the deceased in circumstances where the deceased posed no threat, apparently in reaction to the earlier injury inflicted on Sebale. However, it emphasised countervailing factors the trial court should have weighed more fully: there was no evidence of a planned attack; the deceased’s provocative behaviour likely played a role; the appellant had very favourable personal circumstances, including being a first offender at age 31 with a stable employment history, indicating rehabilitative prospects; and there appeared to be a finding that the appellant did not have direct intent to kill, which is commonly treated as mitigating. Considering these factors cumulatively, the court held that 15 years’ imprisonment would constitute an injustice in the circumstances and that the trial court erred in not finding substantial and compelling circumstances justifying a lesser sentence.

Having found a basis to interfere, the court reconsidered sentence afresh. It held that the two counts should still be taken together for sentence because the injury to the deceased’s mother formed part of the same chain of events. It further held that, given the appellant’s personal circumstances and prospects of rehabilitation, it was appropriate to suspend part of the sentence to facilitate partial rehabilitation outside prison. Nonetheless, it concluded that a sentence other than direct imprisonment would not be appropriate, despite the hardship imprisonment would cause to the appellant’s family and dependants.

5. Outcome and Relief

The appeal against conviction was dismissed, and both convictions (murder and assault with intent to do grievous bodily harm) were confirmed.

The appeal against sentence succeeded. The sentence of 15 years’ imprisonment (on both counts taken together) was set aside and replaced with a sentence of 12 years’ imprisonment on both counts taken together, 4 years of which were conditionally suspended for 5 years on condition that the appellant is not convicted during the period of suspension of an offence in which assault on another person is an element, for which he is sentenced to more than one year’s unsuspended imprisonment without the option of a fine.

The substituted sentence was antedated to 28 May 2013. No separate costs order arose, consistent with criminal appeal practice.

Cases Cited

S v Motsepa en ’n Ander 1991 (2) SACR 462 (A)

S v Teixeira 1980 (3) SA 755 (AD)

S v Radebe 2011 JDR 0926 (FB)

Legislation Cited

Criminal Procedure Act 51 of 1977, section 186

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that there was no basis to interfere with the Regional Court’s factual and credibility findings and that the appellant’s version was not reasonably possibly true when weighed against the probabilities and corroborative features, including the injuries sustained by the other complainants. The convictions for murder and assault with intent to do grievous bodily harm were accordingly upheld.

On sentence, the High Court held that the Regional Court misdirected itself in failing to find that the cumulative mitigating features constituted circumstances justifying a lesser sentence than the one it imposed. The sentence was therefore reduced to 12 years’ imprisonment on both counts taken together, with 4 years suspended on specified conditions, and antedated.

LEGAL PRINCIPLES

An appellate court will be slow to interfere with a trial court’s findings of fact and credibility, and will intervene only where a proper basis exists on the record to show that such findings cannot be supported.

In a criminal trial, an accused bears no onus; the decisive enquiry is whether the accused’s version is reasonably possibly true when considered against the totality of the evidence and probabilities.

Contradictions between witness testimony and prior statements must be evaluated with care. The mere fact that a statement was taken in a language not the witness’s mother tongue does not automatically neutralise contradictions, particularly where the content was read back and explained and accepted as correct.

No automatic adverse inference arises against the prosecution merely because a potentially relevant witness is not called, especially where the witness is available to both parties and the defence elects not to call the witness.

Section 186 of the Criminal Procedure Act empowers a court to call a witness, but it does not impose a general duty to do so simply because only one State witness gives direct evidence on a disputed issue, particularly where the parties have made informed choices about which witnesses to call and the defence does not request the court’s intervention.

An appellate court will interfere with sentence only where the sentence is shockingly inappropriate or where there has been a material misdirection. Where such a misdirection is established, the appellate court is entitled to reconsider sentence afresh.

In crafting an appropriate sentence, factors such as the absence of premeditation, provocation, first-offender status, favourable personal circumstances, rehabilitative prospects, and the absence of direct intent to kill may cumulatively justify a lesser sentence than the one imposed by the trial court, and may support partial suspension where imprisonment remains necessary.

Maluleka v S (CA&R 34/2013) [2013] ZANCHC 37 (1 November 2013)