Summary of Judgment

Introduction

These were criminal appeal proceedings in the High Court of South Africa (Orange Free State Provincial Division), arising from a prosecution in the Regional Court, Welkom. The appellant, Nkosana Sunday Mokoena, appealed against his conviction, and the respondent was the State.

The appellant had been charged with murder in relation to the fatal stabbing of Sonwabile Mzephe on or about 18 November 2005 at Thabong. Although charged with murder, he was convicted of culpable homicide in the regional court on the basis that he was found to have exceeded the bounds of self-defence.

The appeal was heard on 20 October 2008 and judgment was delivered on 30 October 2008. The general subject-matter of the dispute concerned whether the appellant’s conduct in stabbing the deceased was lawful private defence (self-defence) or whether he acted unlawfully (including whether he exceeded the permissible bounds of self-defence, justifying a culpable homicide conviction).

Material Facts

It was common cause that the appellant and the deceased, together with many other people, were drinking liquor at a tavern in Thabong on 18 November 2005. It was also common cause that the appellant lent his jacket to the deceased’s girlfriend after she complained of feeling cold, and that the deceased became incensed upon realising that she was wearing the appellant’s jacket.

Further undisputed facts accepted by the court included that the deceased became aggressive towards the appellant; that at some stage the deceased and his friends chased the appellant, and that the deceased and his companions were armed with bottles during this pursuit. It was also common cause that the appellant stabbed the deceased with a knife on the left side of the forehead, and that the deceased later died in hospital from that injury.

The disputed factual issues related to the mechanics of the stabbing and the circumstances in which it occurred. A state witness (Oupa Gift Martins) testified that he saw the appellant turn back in the tavern doorway and stab the deceased from behind with an Okapi knife, causing the deceased to fall. The second state witness (Mncedisi Livingstone Mabuya) confirmed the argument about the jacket and that the deceased had been the cause of the argument, but his evidence differed from the first witness in that he observed the appellant and a friend leaving unarmed and then saw the deceased returning injured.

The appellant’s version was that he tried to leave to avoid conflict, but was charged at by the deceased and friends wielding bottles, and that one assailant had a knife. He stated he managed to snatch the knife, and as the deceased raised a bottle to strike, he swung his hand towards the deceased and in doing so inflicted the forehead injury. He maintained he had no intention of stabbing the deceased and that he fled in fear of further attack.

Legal Issues

The central legal question was whether the appellant’s stabbing of the deceased was committed in self-defence, such that his conduct was lawful and he should have been acquitted.

Closely connected to that was whether, if the appellant acted defensively, he nonetheless exceeded the bounds of self-defence, which had been the basis for the regional court’s conviction of culpable homicide rather than murder. The appeal therefore concerned primarily the application of legal principles of self-defence to contested facts, including the evaluation of witness reliability and probabilities relevant to whether the appellant’s version could reasonably be true.

In light of the conclusion reached, the appellate court indicated that it was unnecessary to address the further question relating to culpable homicide on the basis of whether the appellant ought reasonably to have foreseen that he might exceed the bounds of self-defence and might kill his aggressor.

Court’s Reasoning

The appellate court assessed how the regional court evaluated the evidence, particularly the state’s reliance on a single witness regarding the stabbing itself. The court noted that the regional court had accepted the evidence of the first state witness as free from contradictions or improbabilities, yet the first witness had not explained how the appellant, allegedly positioned behind the deceased, could have inflicted a wound on the left side of the deceased’s forehead. The appellate court treated this as a significant improbability left unresolved by the regional court’s reasoning.

The appellate court also addressed the regional court’s treatment of the second state witness. It observed that although the regional court declared the second witness’s evidence “unsatisfactory” because it differed from the first witness, it did so without making a clear finding that the state witnesses were presenting contradictory versions in a manner that could properly be resolved. In this context, the appellate court regarded the regional court as having treated the first witness as a single witness whose evidence could ground a conviction, despite the improbability identified concerning the mechanism of injury.

Turning to the appellant’s evidence, the appellate court disagreed with the regional court’s characterisation of the appellant as contradictory for initially admitting a stabbing and later describing how it happened. The appellate court reasoned that the fact of the stabbing was never in dispute, and that the later description of how it occurred was not inherently contradictory; rather, it was considered more consistent with the location of the wound (to the forehead) than a direct, targeted stabbing that would ordinarily be aimed at the upper body.

The appellate court further rejected the regional court’s stated improbability that it made no sense for the appellant to disarm one assailant and then direct force at the deceased. On the appellate court’s reasoning, the assailant who had been disarmed was no longer an immediate threat, and thus the remaining danger, on the appellant’s version, was posed by the deceased, who had lifted a bottle ready to strike. The appellate court emphasised that the record contained sufficient evidence that the deceased was enraged and the aggressor, assisted by friends armed with bottles, and that there was no evidence (including from the first state witness) that the deceased’s aggression had abated at the time he was stabbed.

On these considerations, the appellate court concluded that the appellant had discharged the onus referred to in the judgment in relation to self-defence, and that his version could not be rejected as not reasonably possibly true. The appellate court was therefore satisfied that the conviction could not stand.

Outcome and Relief

The appeal succeeded. The High Court set aside the conviction.

No separate order as to sentence or costs is recorded in the judgment, and the operative relief was confined to the setting aside of the conviction.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the appellant’s version that he acted in self-defence when he stabbed the deceased could not be rejected as not reasonably possibly true. It found that the regional court had misdirected itself in its evaluation of the evidence, including by treating the first state witness’s version as adequate despite an identified improbability concerning how the wound was inflicted, and by improperly treating the appellant’s explanation as contradictory and improbable.

Accordingly, the court held that the appellant was entitled to the benefit of the finding that he acted in self-defence, and the conviction for culpable homicide was set aside.

LEGAL PRINCIPLES

The judgment applied the principle that an accused person’s version must be assessed to determine whether it is reasonably possibly true, and that a conviction cannot stand where the version supporting a defence (here, self-defence) cannot properly be rejected on the evidence.

The judgment further illustrates that factual findings resting substantially on single-witness evidence must be evaluated against inherent probabilities and improbabilities, including whether the witness’s account coheres with objective features such as the location of the wound. Where material improbabilities are not satisfactorily addressed, acceptance of that evidence may constitute a misdirection affecting the safety of the conviction.

The judgment also reflects an evaluative approach to self-defence where the presence of an aggressor, the continuation of aggression, and the nature of immediate threats (including from persons armed with bottles and a knife) are considered in determining whether defensive conduct was justified on the accused’s version as it emerges from the record.