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South Africa: Kwazulu-Natal High Court, Pietermaritzburg
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[2011] ZAKZPHC 18
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Mkhize v S (AR582/09) [2011] ZAKZPHC 18 (19 April 2011)
19
IN THE KWAZULU-NATAL
HIGH COURT OF SOUTH AFRICA PIETERMARITZBURG
CASE NO. AR582/09
In the matter between:
SIXTUS NHLANHLA MKHIZE
…...............................................
APPELLANT
and
THE STATE
….........................................................................
RESPONDENT
______________________________________________________
APPEAL
JUDGMENT
delivered
on 19 April 2011
_______________________________________________________
SWAIN J
[1] The appellant with
the leave of this Court appeals against his conviction on one count
of murder and the sentence of twelve
years imprisonment imposed by
the Regional Court at Ixopo, KwaZulu-Natal. The appellant was
acquitted on an additional count of
attempted murder.
[2] The appellant admits
that he shot and killed Denzil Tatchell, the deceased, but maintains
that in doing so, he acted lawfully
in self-defence.
[3] Two eye witnesses to
the shooting of the deceased, namely
Brenda Tatchell, the wife
of the deceased, and Sifiso Mbanjwa, the barman at an action bar in
Ixopo, were called by the State.
[4] According to Brenda
Tatchell, the events leading up to the fatal shooting were as
follows. She, together with the deceased and
Dennis Peters, being the
deceased’s uncle, as well as Lorna Peters, being the sister of
Dennis Peters’ wife, had been
to a wedding when the deceased
and Dennis Peters, decided to stop at the Off Saddle Bar in Ixopo.
They all entered the bar and
Lorna Peters and the witness went to the
toilet. On her return to the bar she commented to the barman that the
toilets were in
a bad condition. They then socialised with the people
in the bar, including the appellant. The barman then said that it was
time
to close and she replied that it must only close when the last
person goes. This was at about 01h30. She noticed that Dennis Peters
was talking to the appellant, but she could not hear what they were
talking about. When she looked again it appeared as if Dennis
Peters
and the appellant were arguing, and the next minute Dennis Peters was
on the floor and the appellant was hitting him. She
was unable to say
how Dennis Peters had got on to the floor. However, when
cross-examined she said that Dennis Peters was pushed
on to the floor
by the appellant and the appellant was hitting him. Later in her
evidence however she said she did not see how
Dennis Peters got on
the floor. The deceased and the witness then rushed towards them, the
deceased pulled the appellant by his
collar, lifted the appellant off
Dennis Peters, pushed him on to the floor and asked the appellant why
he was hitting him. Lorna
Peters then helped Dennis Peters to his
feet and according to the witness the altercation was over. Lorna
Peters then left the
bar, she said to her husband they had better
leave, the deceased lit a cigarette and went back to the bar counter.
She said she
thought the deceased paid the barman and finished his
drink, whilst she stood at the entrance to the bar, waiting for the
deceased.
Whilst standing there she noticed somebody on her left hand
side, and saw that it was the appellant pulling out a firearm and
aiming
towards the deceased. She said the deceased was standing at an
angle towards the appellant, with his back towards the appellant.
The
appellant started firing immediately he pulled out his firearm and he
then ran out of the bar. She was not sure, but she thought
the
appellant fired four or five shots, but did not see the deceased’s
reaction. According to the witness, when the appellant
pulled out his
firearm, nobody was threatening the appellant. She later returned to
the bar and saw the body of the deceased lying
in the road outside
the bar.
[5] When cross-examined
she admitted that there was a time when the deceased and the security
guard at the bar were in some kind
of an argument, not a physical
fight and she said to them
“What’s this all about?
Stop it”.
She couldn’t hear
what they were saying, but from the expressions on both their faces,
she could see it was leading to a serious
argument. She then also
admitted that she pulled the deceased away from the
security guard, but said
they were not in a physical fight.
[6] Sifiso Mbanjwa, the
barman, said on the evening in question the appellant as well as the
security guard were in the bar, when
four coloured people entered the
bar, two of them were females and two were males. One of them ordered
a drink and they sat down.
They finished their drink and ordered
another, which he supplied to them. He and the security guard then
requested that they close
the bar after they had finished drinking,
because it was late. One of the group said no, because they could
stay there until six
a.m. The security guard then said they usually
close early and it was now late. As he said this one of the males in
the group held
the security guard next to his shoulders, on his
jacket. The security guard then went outside and the other male in
the group,
not the deceased, went to close the burglar guard on the
door, to prevent the security guard from coming inside. The security
guard
then re-entered the bar at which stage the two males assaulted
him with their clenched fists. The appellant then got up and
intervened
on behalf of the security guard, reprimanding them and
removed the security guard from them. The two males then left the
security
guard and assaulted the appellant with clenched fists. The
appellant fell down, but they continued assaulting him and kicked him
when he was lying down. The appellant then escaped from them and
retreated by taking a few steps towards the pool room, but did
not
get there. He then heard a gun shot and saw the appellant doing the
shooting. He fired more than once towards the people he
had been
fighting with. When the appellant fired at them, they were still
speaking to the appellant, saying that they can still
hit him. He saw
people running away and saw that one had fallen next to the door and
one had fallen outside. The appellant then
also left the bar.
[7] When cross-examined
he said he did not hear the deceased saying
“let us kill
the bastard”.
Because he was walking away at the
time, he was unable to say whether the deceased had his hand in his
pocket and likewise was unable
to say, whether the deceased turned or
was facing the appellant when he fired.
[8] When questioned by
the Court he said that after the appellant had freed himself from the
attack by the deceased and Dennis Peters,
they continued speaking to
the appellant and were moving towards the counter where their drinks
were. When asked whether they were
moving towards, or away from, the
appellant, he said he could not recall. He said he was unable to say
whether they followed the
appellant, because the witness turned and
went back to the counter.
[9] When questioned by
the prosecutor in regard to the questions put by the Court, he said
by reference to the sketch plan, they
were in the vicinity of point
‘D’ on the sketch and were approaching the horizontal
portion of the bar, appearing on
the sketch where their drinks were.
The appellant was in the vicinity of point ‘D’ on the
sketch plan. The deceased
and his companion had moved from point ‘F’,
being the point where the appellant was on the ground, to point ‘D’
on the sketch. When the appellant fired he was, according to the
witness,
“a bit away”
from point ‘D’
and indicated an area on the sketch, mid-way between the corner of
the bar counter and the door to the
bar. The witness then indicated
that the appellant had moved from point ‘F’, towards
where the words
“Action Bar”
appear
on the sketch, but did not get there. When he fired the shot the
appellant was standing near the corner of the bar and repeated
what
he had said when giving evidence in chief, namely that at this stage
the deceased and his companion
“were speaking to him
saying that if they liked they may still assault him”.
When
asked by the prosecutor if anybody had done anything to the accused
during the time of the shooting, whether he would have
been in a
position to see that he replied
“
Because I
had turned away and I was returning behind the counter I did not see
anything”.
The prosecutor then asked
“
Will you be
able to see when accused was shooting if anybody was doing anything
to him?”
to
which he replied
“
I did not
see anything”.
The prosecutor then
responded by asking the following question
“
If anyone
was doing anything at that stage to the accused would you be in a
position to see?”
to which the witness
replied
“Yes”
The prosecutor then
followed with the following question
“
Did you say
you could not see or you could see if anybody was doing at the stage
of the first shot …
.
(inaudible)” -
to which he replied
“
Yes I would
have seen although I was running away”
[10] Lorna Peters,
although not an eyewitness to the shooting, was called by the State
and confirmed that she was in the company
of the deceased, Brenda
Tatchell and Dennis Peters on the night in question, at the Action
Bar. She said that as they walked in
they wanted a drink and the
security guard said it was too late to order. An argument then ensued
between Dennis Peters and the
security guard, but the argument then
quietened down. A second argument then occurred between Dennis Peters
and the security guard,
at which stage she walked out of the bar and
stood outside by the car they had arrived in. She did not take note
what they were
arguing about, because the argument had spoilt
everything and she was therefore hoping to leave. She then heard gun
shots and Brenda
Tatchell shouted
“Run, Aunty Lorna”
and she ran towards the post office.
[11] When cross-examined
the witness was asked whether the deceased’s response to the
security guard saying it’s too
late, was to say he was not
going to allow the security guard to close. The response was that the
deceased could have said
“I want to buy a half”.
When asked whether there could have been any physical
handling between the deceased and the security guard she replied
“
Well, at
that moment it could have been. They could have been physical”
to
which the further question was put
“
But you
never witnessed it?”
to
which she replied
“
No, I never
witnessed it”.
However, when questioned
by the Court she was asked whether the deceased had argued with
anybody in her presence, she volunteered
the following
“
Well I think
the time when Dennis was on the floor and then – I don’t
know, as I’m saying, I’m not too sure
of these, and late
Denzel said ‘don’t hit an old man’ and that’s
why I’m saying I walked out when
it was the second argument. I
didn’t even want to even hear the thing”.
She confirmed that she
saw Dennis on the floor, but when asked why
he was on the floor she
eventually replied that regarding the second argument
“
I didn’t
even wait to see and I just walked out”.
[12] The appellant’s
version of events was as follows. He was sitting at the bar drinking
in the presence of the barman and
the security guard, when some
coloured people entered, whom he now knew to be the deceased, Dennis,
the wife of the deceased Brenda
and Lorna. They ordered alcohol and
the barman asked if they could all finish quickly, because they
wanted to close the bar for
the night. The security guard also said
they wanted to close because it was quite late. The deceased was
angered by this and said
they were ready to drink there until the
following day. The deceased then jumped at the throat of the security
guard and grabbed
his sjambok. The appellant then intervened and took
the security guard outside to speak to him. The appellant then
returned, sat
down and finished his alcohol. The security guard then
re-entered and Dennis attacked him by delivering blows to his face.
The
appellant then grabbed Dennis and pulled him away from the
security guard. The deceased then attacked the security guard by
delivering
blows with his fists. The appellant then grabbed Dennis
and pulled him to the side and the wife of the deceased went to the
deceased
and shouted
“Stop it”.
Dennis
then got away from the appellant and punched the appellant. The
deceased then slipped away from the grasp of his wife and
the
deceased and Dennis then assaulted the appellant by punching him. The
appellant struggled and got away from them, but they
continued
hitting him until he fell down. While he was on the ground they were
stomping on him with their shoes. They were kicking
the appellant all
over his body including his head. He was covering his face to protect
it. They seemed to stop momentarily and
that is when the appellant
lifted his head and saw the deceased approaching him. He later
described it as a
“pause”.
The
deceased was in front of him and he heard the deceased say “
Let
us kill the bastard”
while approaching with his
right hand in his pocket. At this stage the deceased was
approximately one, to one and a half metres,
away and he thought the
deceased was taking out a dangerous weapon. He later described what
he thought the dangerous weapon to
be, namely a knife or a firearm.
The appellant then stood up and pulled out his firearm as quickly as
possible and then fired quickly
without any pause, pointing at the
deceased’s body. At the time he was shooting at the deceased,
the deceased’s hand
was still in his pocket and he had not
taken anything out. He said that when he was firing the shots, he was
getting up, was not
sure whether he was upright, but was busy
standing up. When the deceased turned around to flee he stopped
shooting. He agreed that
according to the post mortem report the
second entry wound was below the left armpit of the deceased and
another entry wound was
at the back of the deceased. He said it was
possible the deceased was shot on his back, when he was turning
around because he was
shooting rapidly. He did not notice when he was
“actually”
shot on his back. When
asked whether he moved towards the entrance to the pool room after he
stood up, he said he was unable to
recall. He said he could not
recall whether the deceased had taken his hand out of his pocket at
any stage, because he kept on
shooting. As regards the degree of his
intoxication he said
“
I cannot say
that now I was drunk to such an extent that I could not appreciate
what was happening around me”.
When asked whether the
liquor he had consumed, had played any role in the shooting he said
“No”
. He said that when he was first
assaulted he was near point ‘F’ on the sketch plan, but
when he rose from the floor
he was not by point ‘F’. He
said he had retreated towards the counter, not the pool room and had
retreated because
he was being assaulted.
[13] Jacobus Steyl, a
ballistics expert was called by the appellant and described the
wounds of the deceased. He stated that the
one entrance wound was to
the left chest laterally under the arm, exiting on the right upper
chest wall. Another entrance wound
was on the left upper back, just
behind the shoulder, exiting on the right upper chest. Another
entrance wound was on the left
upper thigh, exiting at the back of
the thigh. He stated that the wound to the back of the deceased, was
a
“close”
wound, because of the
presence of tattooing around the wound. Because this was present even
though the deceased was clothed, it
indicated the firearm was in
close proximity to the deceased. He estimated a distance of ten to
twenty centimetres. The other wounds
were not
“close”
wounds, which meant that the firearm was not closer than
one metre to the body of the deceased when fired. He was of the view
that
the wound to the
leg of the deceased was
probably the first wound, followed by the
wound to the left chest
laterally and finally the wound to the back of the deceased. He was
of the view that the wounds to the leg
were consistent with the
deceased approaching the appellant and the remaining two wounds were
inflicted as the deceased was turning
away from the appellant.
[14] What emerges from
the evidence is that the only independent account of what occurred is
that of Sifiso Mbanjwa, the barman.
It is quite apparent that both
Brenda Tatchell and Lorna Peters sought to minimise the roll of the
deceased and Dennis Peters,
in the altercations that preceded the
shooting of the deceased. Brenda Tatchell made no mention in her
evidence in chief of any
altercation between the deceased and the
security guard. It was only when cross-examined that she admitted
that the deceased and
the security guard had an argument, but denied
it was a physical fight. She conceded it was a serious argument and
that she pulled
her husband away. According to Lorna Peters however,
the first argument was between Dennis Peters and the security guard
and not
the deceased and the security guard.
[15] According to Brenda
Tatchell the second altercation was between the appellant and Dennis
Peters, whereas according to Lorna
Peters, this was between Dennis
Peters and the security guard. She however maintained that she then
left the bar. When asked whether
there was any physical confrontation
between the deceased and the security guard, she replied this could
have been so, but that
she never witnessed it. The fact remains
however that when questioned by the Court, she then admitted seeing
Dennis Peters on the
floor and heard the deceased saying
“Don’t
hit an old man”.
In this regard Brenda Tatchell
said when she saw Dennis Peters on the floor, the appellant was
hitting him. Despite initially saying
she did not know how Dennis
Peters ended up on the floor, she then said the appellant pushed
Dennis Peters on to the floor, but
then later maintained she did not
see how he ended up on the floor. In addition, Brenda Tatchell said
that Lorna Peters had in
fact helped Dennis Peters to his feet. Due
allowance being made for the traumatic nature of the events they both
witnessed, as
well as the fact that they had both been drinking, the
glaring contradictions and inconsistencies in their versions of
events,
leads to a reasonable inference being drawn that they have
not been honest in their account of the events which preceded the
shooting.
[16] What is clear
however is that there was discord between the barman and the security
guard on the one hand, and the deceased’s
party on the other,
because of the barman’s expressed wish to close the bar.
[17] On the evidence as a
whole, it is clear that this resulted in conflict between the
deceased, Dennis Peters and the security
guard. On the evidence there
is nothing to suggest that either Sifiso Mbanjwa, the barman, or the
appellant responded aggressively
to the objection raised by the
deceased’s party, to the closing of the bar.
[18] The version of the
barman that there was an initial physical confrontation, between the
security guard and one of the males
in the group, is consistent to a
degree, with the evidence of Brenda Tatchell that she saw the
deceased and the security guard
in an argument, and pulled the
deceased away. It is also consistent to a degree with the evidence of
Lorna Peters that there was
an argument between Dennis Peters and the
security guard. It is also consistent to a degree with the evidence
of the appellant,
that there was an initial physical confrontation
between the deceased and the security guard in which he intervened.
The appellant
says the deceased jumped at the throat of the security
guard and took his sjambok, whereas the barman says the attack
consisted
only of one of the males holding the security guard next to
his shoulders on his jacket.
[19] According to the
barman the security guard then went outside, which is consistent with
the version of the appellant that he
took the security guard outside
to talk to him. The barman however adds that when the security guard
went outside Dennis Peters
closed
“the burglar guard”
on the door, to prevent the security guard returning
inside. It is clear from photo 2 in Exhibit “1”, that
there is
a security gate on the entrance to the door. There could be
no reason why the barman would fabricate such a detailed piece of
evidence,
extraneous to the main events of the night.
[20] According to the
barman, the security guard then re-entered the
bar. I regard it as
probable that in the light of the physical confrontation the security
guard had just had with one of the males
in the group, as well as the
attempt by Dennis Peters to lock him out of the bar, his object in
returning must have been to enforce
the wish of the barman, to close
and this must have been apparent to the deceased and Dennis Peters.
At this stage according to
the barman, both the deceased and Dennis
Peters, attacked the security guard with clenched fists. According to
the appellant however,
it was only Dennis Peters who attacked the
security guard, by delivering blows to his face. According to the
barman the appellant
then intervened on behalf of the security guard
and reprimanded both of them and removed the security guard from
them. The appellant’s
version however was that he intervened by
grabbing Dennis Peters and pulling him away from the security guard.
The deceased however
then attacked the security guard with his fists.
The appellant then grabbed Dennis Peters and pulled him to the side,
at which
stage the wife of the deceased, Brenda Tatchell went to the
deceased and shouted
“Stop it”.
According
to the appellant it was at this stage that Dennis Peters got away
from the appellant and punched the appellant. The evidence
of Brenda
Tatchell that she saw Dennis Peters and the appellant arguing and the
next thing she saw Dennis Peters on the floor,
with the appellant
hitting him, must have occurred at this stage. Lorna Peters also said
that she saw Dennis Peters on
the ground. According to
Brenda Tatchell she and the deceased then intervened. The deceased
then lifted the appellant off Dennis
Peters by his collar, pushed him
to the floor and asked the appellant why he was hitting him.
According to Brenda Tatchell, Lorna
Peters then helped Dennis Peters
to his feet. Lorna Peters says she then heard the deceased saying to
the appellant
“Don’t hit an old man”.
[21]
In
my view it is grossly improbable that Dennis Peters would not have
strenuously opposed the intervention by the appellant, to
assist the
security guard. The interaction could not simply have consisted of
the appellant grabbing Dennis Peters and pulling
him away, Dennis
Peters then getting away from him and attacking him. In this context
it is far more probable that the appellant
forced Dennis Peters to
the ground and was hitting him, which caused the appellant to
intervene by pulling him off Dennis Peters
and telling him not to hit
an old man. In my view it is equally improbable, as stated by Brenda
Tatchell, that once Lorna Peters
had helped Dennis Peters to his feet
the altercation was over. It is quite clear that the deceased and
Dennis Peters were in a
belligerent mood and were not prepared to
accept any resistance to their plans to continue drinking in the bar.
If the altercation
was over, then there would have been no reason for
Lorna Peters to leave the bar and to say that she did so, because she
did not
want to see any more.
[22] In my view, it is
far more probable as stated by the barman, that the deceased and
Dennis Peters then turned their attention
to the appellant and
attacked him, knocking him to the ground, as attested to by the
barman. According to the barman they continued
assaulting the
appellant and kicked him on the ground, which is consistent with
the appellant’s
version of events.
[23] It is at this
crucial point, that an examination of the appellant’s plea of
self-defence, must be made. The appellant
maintains that his
attackers momentarily seemed to stop assaulting him and it was at
this stage he lifted his head and saw the
deceased approaching with
his right hand in his pocket, saying
“Let us kill the
bastard”.
According to the barman, the appellant
had escaped from the deceased and Dennis Peters and retreated. Later
in his evidence, he
said the appellant had
“freed”
himself from the attack. The barman said that both the
appellant’s attackers continued speaking to the appellant,
saying that
if they wished they may still assault the appellant, as
they were moving towards the counter, where their drinks were. It is
clear
on a reading of the barman’s evidence, that he was unable
to specify precisely the movements of the deceased, Dennis Peters
and
the appellant within the bar, by reference to the sketch plan. What
is clear however, is that according to his evidence, the
physical
attack upon the appellant had ceased, albeit that the deceased and
Dennis Peters continued to verbally threaten the appellant,
as they
were moving towards the bar, where their drinks were.
[24] Evidence which is of
vital significance in deciding whether the physical attack upon the
appellant had ceased, or whether the
deceased continued with the
attack, by approaching the appellant with his right hand in his
pocket and saying “
Let us kill the bastard”
is
to be found in the evidence of Superintendant Gwala, who arrived on
the scene at three forty
a.m. He found the deceased lying face down, not far from the action
bar, with three gunshot wounds. He
said the deceased had a cigarette
in his right hand, between the fore and middle fingers. Under cross
examination he said that
the cigarette was half burnt, but it was not
burning any more. He said there was nothing else in the hands of the
deceased. The
significance of this
lies in the fact that
Brenda Tatchell said that after the altercation was over and Lorna
Peters left the bar, her husband (the deceased)
lit a cigarette and
went back towards the bar counter. When asked under cross-examination
why she remembered this, she said that
because he lit the cigarette
“in that manner of relaxness”
she
thought he wanted them to carry on sitting, so she said to him “
No,
we had better leave now”
. The fact that she
maintained the altercation was over at an earlier stage, does not
affect the reliability of her evidence in
this regard, supported as
it is by the independent evidence of Superintendant Gwala.
[25] It is quite obvious
that the deceased could not have had a lit cigarette in his right
hand, during the assault upon the security
guard and the appellant,
because according to the appellant, the deceased attacked the
security guard with his fists and attacked
the appellant
by punching him. In
addition, the deceased could not have had his
right hand in his pocket,
threatening the deceased and approaching him, with a lit cigarette in
his right hand. It is quite obvious
that the deceased could not have
lit a cigarette, after being shot, because of the severity of his
wounds. The inference is therefore
irresistible that the deceased lit
the cigarette, after the assault upon the appellant had ceased,
whilst walking towards the bar
counter.
[26] In this regard it
should be noted that Mr. Steyl, the ballistics expert, gave evidence
that he had examined the photo (Exhibit
“3”) of the
deceased lying outside the bar. In his report (Exhibit “H”),
he says that the deceased was
holding a piece of paper in his hand,
which crossed over his index finger. In evidence however, he conceded
that a person on the
scene would have better visibility, than one
looking at a picture. He maintained that there was no cigarette
visible on the photo,
but agreed that it was difficult to dispute the
evidence of the eye-witness. He conceded it was very difficult for
him to tell
the Court that while running the deceased did not have a
cigarette, but again maintained that the photo did not illustrate the
presence of a cigarette.
[27] It is not clear to
me on what basis Mr. Steyl, who was called as a ballistics expert,
was qualified to express such a view.
Although it does appear from
photo Exhibit “3” that the deceased did have what could
be a piece of paper in his right
hand, there is also what appears to
be a cigarette between the fore and middle finger of the deceased’s
right hand in this
photo, as well as photo 14 of Exhibit “1”.
[28] In this regard it
was never suggested to Superintendant Gwala, by the defence, that he
was mistaken in saying that the deceased
had a half burnt cigarette
in his right hand, or that the deceased had nothing else in his right
hand. Mr. Mbele, who represented
the appellant in the Court
a quo
and argued the appeal before us, stated that at the time
Superintendant Gwala gave evidence, he did not have the views of Mr.
Steyl on this aspect. The fact remains however, that as opposed to
the direct evidence of Superintendant Gwala on this issue, all
there
is to contradict it is the opinion of Mr. Steyl, based as it is on a
photo of the deceased. There is no other evidence which
casts any
doubt upon the credibility, or reliability of Superintendant Gwala’s
observation. Indeed, the unique and distinctive
nature of the
observation he made in this regard, on his arrival at the scene,
speaks volumes for its reliability.
[29] I am therefore
satisfied that the evidence of Brenda Tatchell, that the deceased lit
a cigarette after the altercation was
over, is corroborated by the
evidence of Superintendant Gwala. That this was the only stage at
which the deceased could have lit
a cigarette, is supported by the
evidence of the appellant of the manner in which the deceased
assaulted the security guard and
himself.
[30] I am therefore
satisfied that the State established beyond a
reasonable doubt, that at
the time the appellant fired the shots at the deceased, the physical
assault of the appellant by the deceased
and Dennis Peters had ceased
and there was no imminent attack upon the appellant. The appellant’s
version in this regard
could not reasonably possibly be true. The
shooting of the deceased by the
appellant after the
attack had ceased, was retaliatory, rather than defensive and
therefore unjustified. In coming to this conclusion,
I have not
overlooked the opinion of Mr. Steyl that the first shot fired was to
the leg of the deceased, inflicted whilst the deceased
was facing the
appellant. The opinion of this witness as to the sequence of the
shots fired, is of course based upon the appellant’s
version of
events. All that may be concluded with any certainty, is that at some
stage of the shooting, the deceased was facing
the appellant and at
another stage, his left side was facing the appellant, with the
possibility that at this stage his body was
turning. In addition, it
is clear that at the stage when the deceased was shot in the back,
the appellant fired at close range,
which would be consistent with a
shot fired in retaliation and not in self-defence.
[31] The appeal against
the conviction on the count of murder, accordingly falls to be
dismissed.
[32] As regards the
sentence imposed, the Magistrate found that substantial and
compelling circumstances were present and sentenced
the appellant to
twelve years’ imprisonment. The Magistrate had the benefit of
pre-sentencing reports by a social worker
and a correctional
supervision official, whose reports form part of the record. Although
the evidence given in the Court
a quo
in this regard, has not
been transcribed, as the discs have been lost, I do not regard the
absence of this evidence as material,
to the proper decision of this
appeal in regard to the sentence imposed.
[33] I disagree with the
submission of Mr. Mbele, who appeared for the appellant, that the
Magistrate misdirected himself in imposing
the sentence he did. In my
view, the Magistrate took into account all relevant factors and the
sentence imposed was entirely appropriate
in all of the circumstances
of the case.
The order I make is the
following:
The appeal against
conviction and sentence is dismissed.
___________
K SWAIN J
I agree
___________
GCABA A J
Appearances
/
Appearances:
For the Appellant :
Z.
O. Mbele (Attorney)
Instructed by
:
Mbele Dube & Partners
Umzimkhulu
For the Respondent
:
Z. Dyasi (M/s)
Instructed by :
Director of Public Prosecutions KZN
Pietermaritzburg
Date of hearing :
14
April 2011
Date of Judgment
:
19 April 2011