Abertooi v S (K/S/ 38/09) [2009] ZANCHC 65 (16 September 2009)

80 Reportability

Criminal Law

Brief Summary

Criminal Law — Murder — Self-defence — Accused charged with murder after stabbing deceased during altercation — Accused claims self-defence, asserting deceased attacked him first — Contradictory evidence from state witnesses regarding circumstances of the stabbing — Court must determine whether accused's version is reasonably possibly true — Accused acquitted as state failed to prove guilt beyond reasonable doubt.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal trial in the High Court of South Africa, Northern Cape Division, Kimberley, in which the State prosecuted the accused on a charge of murder.

The parties were the State as prosecution and Richard Abertooi as the accused. The accused was 19 years old at the time of trial. The deceased was Lesley Milo.

The matter proceeded to trial on a plea of not guilty. In terms of section 220 of the Criminal Procedure Act 51 of 1977, the accused made admissions that materially narrowed the issues for determination, including that he stabbed the deceased once with a knife and that the deceased died as a result of that stab wound. A written plea explanation was admitted, as were the post-mortem report and photographic/plan exhibits by consent.

Against that procedural background, the dispute ultimately concerned a single question: whether, on the events of the evening of 14 July 2006, the accused’s stabbing of the deceased was lawful because it occurred in self-defence (private defence), or whether the State proved beyond reasonable doubt that the killing was unlawful and intentional.

2. Material Facts

It was common cause (including by formal admission) that the deceased was Lesley Milo, that the accused stabbed him once with a knife, and that the deceased died from the stab wound. The post-mortem findings recorded a stab wound on the left side of the neck with laceration of the left carotid, and the cause of death was hypovolemic shock.

The evidence established that on the night in question the accused, the deceased, and two State witnesses (Elmarie Botha and Elvicious Botha) were together in the vicinity of Blesbok Street at approximately 23h00. From there, the accounts diverged materially as to how the stabbing occurred and whether the accused was responding to an attack.

On the version of Elmarie Botha, a quarrel arose about who should take a puff from a cigarette, and it culminated in the accused retreating and stabbing the deceased in the neck. On her account, at the moment of stabbing the deceased was standing and had not physically attacked the accused.

On the version of Elvicious Botha, there was no quarrel about the cigarette and neither the accused nor Elmarie asked for a puff. He described the deceased as having asked him for a puff and the accused as having stabbed the deceased for no reason, without any prior attack.

Although these two State witnesses differed on the genesis and dynamics of the confrontation, they were aligned on two key propositions: that the deceased had no weapon and that the deceased had not attacked the accused prior to the stabbing.

After being stabbed, the deceased ran and fell approximately 69.6 metres from the scene of the stabbing. The police were called, found the deceased still alive with a very low pulse, summoned an ambulance, and the deceased was subsequently certified dead on the scene by ambulance personnel. No weapon was found on the deceased or where he fell, and the police did not search the actual spot where the stabbing took place for a weapon.

Inspector Edmund Block testified that after the deceased was removed, police searched for the accused and found him at his home with blood on his hand. The accused handed over the knife used. Inspector Block observed that the accused had a cut on his finger that looked like a stab wound, and the accused was taken to hospital for treatment before being detained. Inspector Block also observed that the accused smelled strongly of alcohol and appeared drunk.

The accused testified that there was a quarrel about a cigarette, that the deceased advanced on him and made a stabbing motion, and that the accused warded off the blow with his hand. Although he said he did not see a weapon, he inferred from the injury to his finger that the deceased must have had a sharp object. He stated that while the deceased continued advancing, he drew an okapi knife, opened it (using his mouth), and stabbed the deceased once in the neck in a rapid sequence of events, without aiming at a particular body part.

3. Legal Issues

The central legal question was whether the State proved beyond reasonable doubt that the accused’s conduct in stabbing the deceased was unlawful, given the accused’s reliance on self-defence. Because the accused admitted the stabbing and causation of death, the dispute was focused on unlawfulness rather than identity or causation.

The case primarily required the court to assess a combination of factual disputes and credibility/reliability (including contradictions between State witnesses and the plausibility of the accused’s account), together with the application of the criminal standard of proof to those factual findings. The determination was therefore predominantly an application of law to fact under the overarching requirement that guilt be proved beyond reasonable doubt, with an evaluative assessment of probabilities permissible only within that framework.

4. Court’s Reasoning

The court approached the matter through established principles governing criminal adjudication where an accused advances an exculpatory version. It emphasised that the State bears the burden to prove guilt beyond reasonable doubt and that it is insufficient to show that the State version is more probable. The court applied the principle that an accused’s version need not be accepted as true in every detail; it is sufficient for acquittal if the version is reasonably possibly true in substance.

In applying those principles, the court considered that it was permissible to test the accused’s account against inherent probabilities, but stressed that an accused’s version cannot be rejected merely because it appears improbable. Rejection is justified only where the version is so improbable that it cannot reasonably possibly be true. In addition, the court adopted a holistic evaluation of the evidence, weighing inculpatory and exculpatory features together, rather than approaching the evidence in a fragmented way. It also highlighted the significance of independently verifiable evidence in assessing competing narratives.

Against that legal framework, the court found the State’s argument—that the absence of a weapon on the deceased or where he fell proved the deceased was unarmed—did not resolve the case beyond reasonable doubt. A key reason was that the police did not search the place where the stabbing occurred, which limited the inferential weight that could be placed on the non-discovery of a weapon at the location where the deceased collapsed. The court further considered that Elmarie’s assertion that there was no weapon at the stabbing scene was weakened by her evidence that she left immediately after the stabbing to summon assistance.

The court treated the accused’s finger injury as an important objective feature because Inspector Block observed it on the night and it was consistent with the accused’s account of having warded off a blow. The court noted that the State’s submission that the accused could have sustained the injury after the stabbing but before arrest was not a case advanced on the evidence and would require speculation. The court also emphasised that the accused’s explanation of how the injury was sustained went unchallenged, and neither eye-witness could give direct evidence about how the cut occurred.

The court also relied on internal weaknesses in the State case, including material contradictions between Elmarie and Elvicious on how the events unfolded (most notably whether there was a quarrel at all). The court further considered that aspects of Elmarie’s account supported the existence of an altercation over a cigarette, which tended to lend some support to the accused’s description of a quarrel (even though the parties differed on the subsequent escalation). Additionally, Elmarie’s evidence that the accused retreated before stabbing was treated as inconsistent with a depiction of the deceased simply standing passively at the time of the stabbing.

Finally, the court considered the probabilities of the post-event conduct attributed to the accused. On the State’s version, the accused stabbed without provocation in full view of witnesses, yet later handed over the knife and reported an injury consistent with an attempted attack by the deceased. The court regarded that combination as improbable within the State’s narrative, particularly given the absence of any apparent trigger for the alleged unprovoked violence.

Taking the evidence together as a conspectus, the court concluded that it could not find that the accused’s version was false beyond reasonable doubt. The contradictions in the State evidence, the limitations of the “no weapon found” inference, and the objective evidence of the accused’s injury collectively meant the State had not excluded a reasonable possibility consistent with self-defence. The court therefore applied the principle that the accused was entitled to the benefit of the doubt.

5. Outcome and Relief

The accused was found not guilty and discharged.

No specific order as to costs was made in the judgment.

Cases Cited

S v Shackell 2001 (2) SACR 185 (SCA); S v Jaffer 1988 (2) SA 84 (C); S v Mhlongo 1991 (2) SACR 207 (A); S v Chabalala 2003 (1) SACR 134 (SCA); S v Trainor 2003 (1) SACR 35 (SCA).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 220.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that, given the contradictions in the State witnesses’ accounts, the absence of a proper search at the stabbing scene, and the independently observed injury to the accused’s finger consistent with his account, the State failed to prove beyond reasonable doubt that the accused did not act in self-defence. The accused’s version was found to be reasonably possibly true, and he was accordingly acquitted on the charge of murder.

LEGAL PRINCIPLES

The judgment applied the principle that in criminal proceedings the State bears the onus to prove guilt beyond reasonable doubt, and that proof on a mere balance or preponderance of probabilities is insufficient.

It reaffirmed that an accused is entitled to an acquittal if the accused’s version is reasonably possibly true, even where that version is not accepted in all its details or appears improbable, provided it is not so improbable that it cannot reasonably possibly be true.

It applied the evaluative approach requiring a holistic conspectus of all evidence, weighing reliable evidence alongside evidence found to be false, considering corroboration where available, and avoiding a fragmented analysis. Within that approach, independently verifiable evidence should be considered to determine whether it supports or undermines competing versions.

It illustrated that where the State’s case depends on inferences from the absence of physical evidence (such as a missing weapon), the weight of such inferences may be diminished where investigative steps (such as searching the actual scene of the stabbing) were not undertaken, and that courts should avoid convictions based on conjecture rather than proof beyond reasonable doubt.