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[2012] ZAFSHC 61
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Tshabalala v S (A74/2011) [2012] ZAFSHC 61 (5 April 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A74/2011
In the appeal between:-
MOJALEFA JAPPIE
TSHABALALA
.......................................
Appellant
and
THE STATE
…......................................................................
Respondent
_____________________________________________________
CORAM:
RAMPAI, AJP
et
DAFFUE, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
19 MARCH 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
5 APRIL 2012
_____________________________________________________
[1] This is an appeal in
which the appellant appeals against his conviction on a charge of
murder by C.J. Musi, J in the High Court
at Bethlehem, leave to
appeal against conviction having been granted by the Court
a quo
.
[2] The appellant, a
police constable, was sitting in his rented room with his colleague,
who was also a constable by rank, the
deceased, in the backyard in
Petsana, Reitz.
[3] In the room adjacent
to his, his co-tenant, Ms Merrika Mnguni, was celebrating her
birthday and having a party with her friends.
The landlord was in the
main house.
[4] She, Mnguni, had
given beer to the deceased and the appellant and left both of them in
the appellant’s room. The appellant
had a basin on the chair
and was preparing himself to go to work and the deceased was sitting
on the bed, drinking his beer. The
deceased had come there with the
appellant in his car, as the appellant had asked him to take him to
work.
[5] Whilst they were so
together in the room, a shot was fired, fatally wounding the
deceased. It is if therefore common cause that
the deceased died of a
gunshot wound, which was fired when it was only himself and the
appellant in the appellant’s room.
It is further common cause
that the shot was fired from the appellant’s service pistol.
[6] The state’s
case as to what let to the shooting, is based on circumstantial
evidence, as there is no direct evidence as
to what happened in the
room during the shooting. The test as set out in the classical case
of
REX v BLOM
1939 AD 188
at 202 – 203, must be
applied,
viz
:
“
In reasoning
by inference there are two cardinal rules of logic which cannot be
ignored:
(1) The inference sought to be drawn
must be consistent with all the proved facts. If it is not, the
inference cannot be drawn.
(2) The proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn is correct.”
[7] The appellant
testified that the deceased shot himself with appellant’s
firearm, but he did not know whether he did it
accidentally or
intentionally, to commit suicide.
7.1 The trial court
rejected this contention and it has so ably and convincingly
demonstrated that the deceased could not have shot
himself at all,
either accidentally or intentionally.
7.2 Indeed, I cannot find
fault with the learned judge’s reasoning and conclusion on this
aspect.
7.3 He described the
conduct of the appellant from the moment the deceased was shot to the
day he pointed out the body as a poor,
amateurish attempt by somebody
who has committed a crime to hide the fact that he committed a crime.
But the main question is:
Which crime?
7.4 Can it be said that,
from his conduct, the only reasonable inference that can be drawn is
that he has committed murder and not
culpable homicide?
[8] Having concluded that
it is the appellant who shot the deceased, the next logical step is
to determine whether he did it justifiably,
negligently or
intentionally.
8.1
Justifiably
It is neither the
evidence nor defence of the appellant that he shot the deceased based
on any ground of justification. If he had
shot him justifiably, he
could have raised a defence based on such ground of justification. It
can therefore be safely concluded
that the appellant did not shoot
the deceased based on any ground of justification.
Intentionally or
negligently
It is only from the
conduct of the appellant after the shooting that it could be
determined whether he shot the deceased intentionally
or negligently.
Immediately after the
shooting incident, the appellant went out of the room to ascertain
whether the people outside or next
door, have heard the sound of a
gunshot being fired.
He asked his co-tenant
where the deceased was in order to let her to believe that the
deceased left his room, knowing fully
well that he was dead in his
room.
He further told his
landlord that the sound he heard was of a kettle which burst,
because of short-circuit.
Upon realising that no
one was aware that a shot was fired from his room, he started
taking all steps to conceal the corpse
in an attempt to conceal
the incident.
It is clear that the
appellant would not have known before hand that the people in the
yard would not hear the gunshot when
he fired same.
Both the deceased and
the appellant were under the influence of alcohol, increasing the
possibility of unintentional but negligent
shooting.
If the appellant had
wanted to intentionally kill the deceased, he would not have done
it in his room, with other people gathered
next door, more so that
he was still to go with him to work. He could have waited for them
to leave the yard and shoot him
along the way.
The conduct and
relationship of both the appellant and the deceased upon their
arrival in his room and subsequent thereto,
as set out by the
witnesses, clearly indicate that there was no animosity between
the two.
The appellant himself
testified that he was going to be asked many questions and he did
not know how he would answer those
questions.
[9] Taking all this
factors into account, I find that it is improbable that the appellant
intentionally
shot the deceased and find that the only
reasonable conclusion is that the appellant wrongfully and
negligently
shot the deceased.
[10] I consequently make
the following order:
10.1 The appeal should
succeed.
10.2 The order of the
Court
a quo
should be set aside and substituted with the
following:
“
The
accused should be convicted of culpable homicide.”
10.3 The matter should
be remitted to the trial judge for sentence.
_________________
N.W. PHALATSI, AJ
On
behalf of appellant: Mr. J.D. Reyneke
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On
behalf of respondent: Adv. E. Liebenberg
Instructed
by:
Office of the Director of
Public Prosecutions
BLOEMFONTEIN
/sp