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1986
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[1986] ZASCA 102
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S v Shangase (108/86) [1986] ZASCA 102 (25 September 1986)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ALFRED GEBE SHANGASE
Appellant
AND
THE STATE
Respondent
Coram: TRENGOVE, HOEXTER et JACOBS, JJ A
Heard: 12 September 1986
Delivered
: 25 September 1986
JUDGMENT
JACOBS, J A :
Appellant, whose age was given as 28 years,
appeared before Broome J and two assessors in the Durban and
Coast Local Division and was convicted on three counts as
follows .... / 2
2
follows:
Count 1
. Guilty of murder with extenuating circumstances .
Count 2
. Guilty of assault with intent to do grievous bodily harm.
Count 3.
Guilty of murder with no extenuating circumstances.
With leave of the trial judge appellant appeals only against the finding on
count 3 that there were no extenuating circumstances and
the death sentence
which was passed as a result.
The incidents which gave rise to the charges
on counts 1 and 2 took place
on the 31st March 1985 on what was referred to as Majola's property at Amoati in
the Inanada
district. After the incidents appellant was arrested but was
released .... / 3
3
released on bail. The assault on Pitshana Bhengu (the deceased) which
gave rise to the third count occurred on the 21st April 1985
in the same area, i
e also on a portion of Majola's property, whilst appellant was out on bail. It
appears from the evidence that
on the latter date, which was a Sunday, the
appellant was in the company of one Bhekinkosi Sithole from at least about
midday until
about 18h00 that evening. According to the witnesses for the State
the assault on the deceased which caused his death took place
between 19h00 and
20h00 that same evening inside a shack shop which belonged to the aforesaid
Bhekinkosi. The shop is separate from,
but apparently quite near to, Bekinkosi's
house. Bhekinkosi was a defence witness whose evidence was
accepted by the trial Court. He testified that he, the
appellant .... / 4
4
appellant and one Mgedesa shared half a bottle of spirits at about
midday on the day in question. Later the three of them shared another
half
bottle of spirits while travelling by bus to Durban to watch a football match.
They did not consume any further liquor after
getting off the bus at the
football-grounds nor did they have anything further to drink on their way back
home where they arrived
about 18h00. According to Bhekinkosi they were at that
stage not affected in any way by the liquor they had taken earlier that day.
Appellant stated in his evidence, with which I shall deal later, that on their
return from Durban they went to Bhekinkosi's house
where they watched TV.
Bhekinkosi denied this and stated that they stopped at appellant's
brother-in-law's
house, which is also quite near to Bhekinkosi's shop, where
appellant .... / 5
5
appellant asked for some food. However that may be, according to both
appellant and Bhekinkosi the latter was called away shortly
afterwards and the
two of them did not see, or speak to, each other again until after the deceased
had been fatally stabbed.
The medical evidence was to the effect that
the deceased died of an
incised wound on the left side of the chest which penetrated the chest cavity
and entered the heart. There
was also a vertical wound on the deceased's
forehead. The State called three witnesses who testified that they were present
when
the deceased was assaulted by the appellant, They were the deceased's
brother Zakaria, one Winnet Ngubo who stated that he happened
to be in the shack
shop when the
assault on deceased took place and one Jabulani Majola
who .... / 6
6
who worked in Bhekinkosi's shack shop as a shop-assistant. All three
these witnesses testified that the deceased was in the shop when
he was stabbed
by the appellant. In broad outline their evidence was to the effect that between
19h00 and 20h00 on the evening in
question the deceased and his brother,
Zakaria, entered the shop and bought cigarettes, matches and iJuba beer from
Jabulani. They
shook the cartons of beer and drank and were about to leave the
shop when appellant entered with an open knife in his hand. Appellant
went up to
Jabulani and asked where the owner of the shop, Bhekinkosi, was. Jabulani told
him that the owner was not there. Appellant
then turned and walked towards the
door. The deceased and Zakaria was at that stage still inside the
shop and were also walking towards the door. Appellant
moved .... / 7
7
moved in between the two brothers and, without saying a word and for no
apparent reason, stabbed the deceased on the left side of
his chest and on his
head. The deceased collapsed inside the shop and appellant left and stood
outside at a window. Winnet went up
to appellant and asked him "what is
happening" to which appellant replied that he had not quarrelled with anyone
"there", presumably
meaning inside the shop. Appellant however pointed to a
certain man who was sitting nearby and, pointing to his, appellant's
,
mouth from which some teeth were missing said: "I am like this because of
this person who collided with me in the motor vehicle".
It must have been very
shortly after this that Bhekinkosi, who as I have stated earlier was called
as a defence witness and who was called away soon after
they .... / 8
8
they returned from the football match, arrived back. He testified that
he met appellant at the edge of his, Bhekin-kosi's, yard. The
following few
lines are quoted from Bhekinkosi's evidence as recorded:
"He (appellant) told me that he had quarrelled with some people at the
shop.
Did he specifically mention the shop? Yes.
Yes? I then said that we should go in so I could
see the people he had quarrelled with. I walked ahead, entered the shop, he
did not enter it and I did not know what happened to him.
What did you find in the shop? I found deceased
sitting down, leaning against the wall. There was a pool of blood on the
floor.
Anything else? I then took my motor vehicle
and I and deceased's brother took him by car and I rushed him to the
police.
Was he still alive at that stage, the deceased?
Yes."
In reply to further questions by counsel for
the State and by the Court, Bhekinkosi stated that he noticed
nothing .... / 9
9
nothing wrong with appellant when appellant spoke to him. The appellant
spoke and walked normally. He noticed no injuries on appellant
nor did appellant
complain of any injuries. Appellant also did not tell him what the "quarrel" to
which he referred was about. He
thought he would hear all about the alleged
quarrel inside the shop but then appellant did not accompany him into the shop
and just
disappeared.
Appellant also gave evidence of their visit to the
football match and the liquor which they consumed before arriving at the
grounds.
At no time did he suggest that he drank any liquor after their return
from the match or that he was in any way affected by liquor
when the deceased
was injured. According to him, they went to
Bhekinkosi's .... / 10
10
Bhekinkosi's house where they watched TV until Bhekinkosi was called away.
Later in the evening he wanted to go home and as he was
leaving Bhekinkosi's
house he saw a large number of people outside. This crowd shouted: "Catch him,
this is the person who kills
people." According to appellant he understood the
crowd to refer to the death of the person referred to in count 1. Appellant went
on to testify that he was then assaulted by this crowd and, amongst other
things, struck on the head with an axe which caused an
open wound. He took out
his knife and stabbed at his attackers to defend himself. According to him the
deceased, who was one of his
attackers, got injured during this unlawful attack
on him, the appellant. All this, according to appellant, happened outside
Bhekinkosi's
house. In fact,
appellant .... / 11
11
appellant denied that he ever entered the shack shop that
evening. He also denied that he was ever run over or in-
jured by a motor vehicle.
The trial Court accepted the version of the
State witnesses as to where and how the deceased was stabbed,
The Court was particularly impressed with the independent
witnesses Winnet and Jabulani. The Court described them
1
as excellent witnesses. The appellant on the other hand
was described by the Court as quite a hopeless witness and
his evidence was rejected as false beyond reasonable doubt.
The Court found that count 3 was "the clearest possible case
of
dolus eventualis"
and found appellant guilty of murder.
The Court then specially adjourned to afford Mr
Parker,
who
appeared for appellant, an opportunity to explain the findigs
of..../ 12
12
of the Court on count 3, and its implications, to the appellant and to afford
appellant an opportunity, should he wish to do so, of
placing further
information before the Court which might have a bearing on the question of
extenuating circumstances on this count.
When the Court resumed Mr
Parker
informed the Court that appellant had nothing further to say and no further
evidence was led. After hearing counsel on the question
of extenuating
circumstances the unanimous finding of the Court was that no extenuating
circumstances existed. The Court found that
"on all the evidence this was a
cold-blooded senseless, totally unwarranted stabbing of an innocent man." The
Court went on to say
that
"In the absence of any further information it is quite impossible to
speculate that there were in fact circumstances which rendered
this evil deed
morally less reprehensible."
In.... / 13
13
In granting leave to appeal when this was
applied for some time later, the trial judge said the follow-
ing :
"In the present case it seems to me that I should grant leave to appeal on
the basis that despite the rejection by the Trial Court
of the accused's version
of the circumstances in which the second deceased (the Court was here referring
to the deceased referred
to in count 3) got stabbed, another court might find
that it must be assumed that something did happen outside the shop before the
accused entered which excited or angered the accused and which operated on his
mind at the crucial time."
Before this Court Mr Parker conceded that
the version of self-defence given by appellant was clearly
untrue and was rightly rejected by the trial Court. He
submitted however that the evidence of the State witnesses
that appellant entered the shack shop with an open knife
in his hand shows that "something" must have happened outside
which .... / 14
14
which caused him to open the knife. Although, therefore, the trial Court
quite rightly rejected that portion of appellants version
as to where and how
the deceased came to be stabbed, it should not, so the argument went, have
rejected the whole of appellant's
evidence about the attack on him before he
entered the shop. Mr
Parker
submitted that the trial Court should have
found that appellant was in fact attacked or at the very least molested by
people outside.
It should also have found that when appellant entered the shop
he was still in a state of excitement and anger as a result of what
happened
outside and that whilst appellant was still in this state the deceased and his
brother were, by chance of fate so to speak,
in his path. That, Mr
Parker
submitted, is the only possible explanation for
appellant's .... / 15
15
appellant's irrational and impulsive act. Had the trial
Court considered the matter in this light it should and pro-
bably would, so it was argued, have held that appellant's
acts inside the shop were morally less blameworthy and that
extenuating circumstances were present. We were invited to
make such a finding.
The difficulty that I have with the above
submission is that the version which appellant put before
the trial Court and which was rejected by that Court as false
-can hardly be split into a number of separate compartments
and that is exactly what Mr Parker tried to do. He conceded
that appellant's version that the deceased was stabbed in
self-defence during the alleged attack was false and that the
allegation that the stabwounds were inflicted outside the
shack .... / 16
16
shack shop was also false. The story that he,
appellant, was hit on the head with an axe was obviously false because neither
Bhekinkosi
nor any of the State witnesses who saw appellant inside the shop
after the alleged attack, saw an open wound on appellant's head.
If these
falsehoods are taken out of appellant's version very little, if any-thing, of
the whole story remains. The most that one
can then say is that "something"
might
possibly
have happened before appellant entered the shack shop
which influenced his state of mind in doing what he did and that his influence
possibly was of such a nature as to reduce the moral blame-wothiness of
appellant in doing what he did. But mere possibilities constitute
an
insufficient basis to support a finding
of extenuating circumstances. Appellant had an opportunity,
even .... / 17
17
even after the Court had rejected his version of self-
defence and that the stabbing of the deceased had taken
place outside the shack shop, to take the Court into his
confidence and tell the truth. He chose not to do so.
In my opinion the trial Court was quite right in the first
instance in saying that it was "quite impossible to specu-
late that there were in fact circumstances which rendered
this evil deed morally less reprehensible", and in finding
that no extenuating circumstances had been proved.
The appeal is dismissed.
H R JACOBS J A
TRENGOVE, J A )
concur
HOEXTER, J A )