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[2024] ZAKZPHC 52
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Ndlela v S (AR 534/2017) [2024] ZAKZPHC 52 (3 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
APPEAL
NO:
AR 534/2017
In
the matter between:
MZWANDILE
NTUTHUKO NDLELA
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
On
appeal:
from the Richards Bay Regional Court (sitting as court
a
quo
):
(a)
The appeal against conviction and sentence
is upheld.
(b)
The conviction and sentence of the
court
a quo
is set aside.
JUDGMENT
Sibisi AJ (Annandale
AJ concurring)
[1]
On 5 October 2016, the appellant pleaded not guilty in the Richards
Bay Regional Court to the
crime of murder, read with s51, Part 11, of
Schedule 2 of Act 1 of 105 of 1997, read with s258(a)(b) and s256 of
Act 51 of 1977.
[2]
On 24 May 2017, the appellant was convicted and found guilty of
murder read with s51(2) of Act
105 of 1977. On 30 May 2017, the
appellant was sentenced to undergo 8 years’ imprisonment.
Furthermore, the appellant was
deemed unfit to possess a firearm.
[3]
The appellant applied for leave to appeal against the conviction and
sentence from the court
a quo
and leave against the conviction
was granted hence the present appeal.
[4]
The appellant contends that the court
a quo
misdirected itself
when convicting him.
[5]
According to the admissions made by the appellant, the appellant
stabbed the deceased (“Mr Bhekithemba Langa”)
once on his
upper body in self-defence and did not intend to kill him. The
post-mortem report and chain evidence was admitted by
the appellant.
The post-mortem report reveals that the deceased sustained a single
stab wound to the left front chest.
[6]
According to the evidence of the first state witness, Mr Phiwayinkosi
Tiding Ximba (“Ximba”)
on 28 February 2015 at
approximately 15h30 he arrived at Makhehleni Tavern situated at
Mzingazi, Richards Bay, KwaZulu-Natal. Ximba
bought his first beer
quart and went out to sit on the tavern’s steps. After
approximately ten minutes the visibly drunk
deceased arrived, sat
next to him and Ximba moved his beer from one hand to another. At
that stage an argument ensued between them.
Ximba struck the deceased
on his forehead with the same beer bottle which injured the deceased
and caused him to bleed. Immediately
thereafter, the deceased
retrieved another bottle which had been about four paces away, he
broke it, held its neck and went towards
Ximba. Ximba retreated and
tried to pick up bricks in order to stop the deceased. It is at that
point that Mr Mduduzi Feron Ngwenya
(“Ngwenya”)
intervened in order to stop the fight. The deceased turned towards
the tavern’s gate. Furthermore,
Ximba testified that the
appellant, who had been inside the door of the tavern, appeared and
went towards the deceased, said nothing
to him, took out an object
from the right-hand side of his waist and he stabbed the deceased on
his chest. It is Ximba’s
testimony that the appellant left
thereafter. The appellant was not trying to intervene in the
altercation involving the deceased
and Ximba.
[7]
The respondent led the evidence of the second witness, Ngwenya. On 28
February 2015 at approximately
16h00 Ngwenya arrived at Makhehleni
Tavern. As he entered the tavern’s gate, he saw Ximba hitting
the deceased on his face
with a bottle. Ngwenya noticed the deceased
bleeding on his forehead. Furthermore, Ngwenya testified that the
deceased then retrieved
a bottle which he broke and started advancing
towards Ximba. Ngwenya intervened by saying: “Here are the
police”. This
seemed to have had the effect of stopping or
halting the fight. The appellant appeared from inside the tavern,
took out a knife
from the right-hand side of his waist and stabbed
the deceased with it once on the lefthand side of his chest.
Thereafter the appellant
put back his knife and went out the tavern
gate. The stabbing happened in front of the tavern’s entrance.
There was no exchange
of words between the appellant and the
deceased.
[8]
The appellant testified at the trial. According to the appellant, he
was seated outside the tavern when
the deceased arrived, the deceased
bumped him and as a result he bumped himself against the wall. He
mentioned that the deceased
was involved in a fight and that there
was a gentleman who hit the deceased with a bottle. The deceased
reacted by breaking a bottle,
held what remained of it and instead of
going to the person that he had a quarrel with, he went straight
towards the appellant.
According to the appellant, the deceased had
on a separate occasion stabbed him and he ended up in a coma for
about three days.
The appellant testified that because the deceased
had on that date provoked him and was advancing towards him with a
broken bottle,
he had nowhere else to run to, he stabbed him to
prevent injury to himself.
[9]
The appellant was not able to call witnesses in support of his
version of events. The court called
a witness who the appellant had
wanted to call whose attendance at court the police had been unable
to secure. He had however been
so intoxicated that he could not
remember anything.
[10]
The court a
quo
accepted the respondent’s version and
rejected the testimony of the appellant.
[11]
The appellant contends that that the court a
quo
misdirected
itself when it rejected his version. Furthermore, the appellant
contents that his actions were necessary as he was
acting in
self-defence.
[12]
CR Snyman
Criminal Law
6 ed (2014) at 102 defines
private defence as follows:
“
A
person acts in private defence, and her act is therefore lawful, if
she uses force to repel an unlawful attack which has commenced,
or is
imminently threatening, upon her or somebody else’s life,
bodily integrity, property or other interest which deserves
to be
protected, provided the defensive act is necessary to protect the
interest threatened, is directed against the attacker,
and is
reasonably proportionate to the attack.”
[13]
Snyman
draws a distinction insofar as the requirements of
private defence are concerned and deals firstly with the requirements
of the
attack with which a person who acts in private defence must
comply, and secondly the requirements with which the defence must
comply.
[14]
Insofar as the requirements of the attack are concerned,
the attack
must be unlawful, the attack must be directed at an interest which
legally deserves to be protected and the attack must
be imminent but
not yet completed.
[15]
The requirements for the defence of private defence
are the
following:
(a)
It must be directed against the attacker.
(b)
The defensive act must be necessary. Here one considers whether there
is a duty to flee, and the defensive act must be the only way in
which the attacked party can avert the threat to his/her rights
or
interest.
(c)
There must be a reasonable relationship between the attack and the
defensive
act. Here it is not necessary that there be a proportional
relationship between the nature of the interest threatened and the
nature
of the interest impaired.
(d)
The attacked person must be aware of the fact that he/she is acting
in private
defence.
[16]
The test is an objective one and the courts have emphasised
that one
should not judge the events like an armchair critic, but rather place
oneself in the shoes of the attacked person at the
critical moment
and bear in mind that at such point in time the attacked person only
has a few seconds in which to make a decision.
[17]
The court should then ask whether a reasonable person
would have
acted in the same way in those circumstances. A person who suffers a
sudden attack cannot always be expected to weigh
up all the
advantages and disadvantages of his/her defensive act and to act
calmly.
[18]
In
Rolston
v S
[1]
the Supreme Court of Appeal dealt with an appeal emanating from the
Full Bench, Gauteng South Division, in respect of the appellant’s
plea of self-defence:
“
[15]
In matters of this nature, this Court is not at liberty to interfere
with the findings of fact made by the trial court unless
the manner
in which the evidence was evaluated is proved to be wrong. In
determining the question of whether the full bench committed
an
error, of fact or law, the findings of fact made by the trial court
must be evaluated against the entire evidence that was led
at the
trial. That much was stated by this Court in
S
v Trainor
. That exercise has to be
undertaken against the legal principle that the duty to prove that
the accused is guilty lies squarely
within the domain of the
prosecution, and that duty does not shift to the accused even if they
have raised a private defence -Where,
in the performance of that
exercise, it is found that it is reasonably possible that the accused
might be innocent, the accused
must be acquitted.”
[19]
The Supreme
Court of Appeal in
S
v Steyn
[2]
stated in respect of the private defence the following:
“
[19]
Every case must be determined in the light of its own particular
circumstances, and it is impossible to devise a precise test
to
determine the legality or otherwise of the actions of a person who
relies upon private defence. However, there should be a reasonable
balance between the attack and the defensive act as ‘one may
not shoot to kill another who attacks you with a flyswatter’.
As Prof J Burchell has correctly explained ‘. . . modern legal
systems do not insist upon strict proportionality between
the attack
and defence, believing rather that the
proper consideration is
whether, taking all the factors into account, the defender
acted reasonably in the manner in which
he defended himself
or his property’.
(Emphasis added).
[20]
Botha v
S
[3]
Tshiqi JA (Seriti and Zondi JJA and Mokgohloa concurring. Schippers
JA dissenting) set out the principles to be applied when a
defence of
self-defence is raised:
“
[10]
In order to successfully raise self-defence, an accused must show the
following: (a) that it was necessary to avert the attack;
(b) that
the means used were a reasonable response to the attack; and (c) that
they were directed at the attacker. (See Jonathan
Burchell
Principles
of Criminal Law
5 ed (2016) at 125.)”
[21]
In
S
v Humphreys
[4]
the Court considered whether murder in the form of
dolus
eventualis
had
been proved and said:
“…
In
accordance with trite principles, the test for
dolus eventualis
form is twofold: (a) did the appellant subjectively foresee the
possibility of the death of his passengers ensuing from his conduct;
and (b) did he reconcile himself with that possibility…
…
For
the first component of
dolus eventualis
it is not enough that
the appellant should (objectively) have foreseen the possibility of
fatal injuries to his passengers as a
consequence of his conduct,
because the fictitious reasonable person in his position would have
foreseen those consequences. That
would constitute negligence and
not
dolus
in any form.
One should also avoid the
flawed process of deductive reasoning that, because the appellant
should have foreseen the consequences,
it can be concluded that he
did. That would conflate the different tests for
dolus
and
negligence
….” (emphasis added).
[22]
In
S
v Ngubane
[5]
in
the following way:
A
man may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing
, e.g. by
unreasonably underestimating the degree of possibility or
unreasonably failing to take steps to avoid that possibility…The
concept of conscious (advertent) negligence (
luxuria
)
is well known on the Continent and has in recent times often been
discussed by our writers…
The distinguishing
feature of
dolus eventualis
is the volitional
component: the agent (the perpetrator) "consents" to the
consequence foreseen as a possibility,
he "reconciles himself"
to it, he "takes it into the bargain".’ (emphasis
added).
[23]
The court
a
quo
found
that there were no inconsistencies or contradictions in the
respondent’s case and that the respondent’s witnesses
both corroborated each other in all material respects
[6]
despite the following contradictions:
(a)
Ximba
testified that after Ngwenya interceded the deceased turned towards
the gate, was no longer focused on Ximba and walked away
from
Ximba;
[7]
and
(b)
according
to Ngwenya when he interceded the deceased did not even look around
but went to Ximba and when he was stabbed, he was
still facing
Ximba
[8]
[24]
Colour
photograph 3
[9]
depicts a mark
in red towards the right where the stabbing happened which on the
basis of Ximba’s evidence is less than five
paces away from the
other red mark outside the door of the tavern which is the point
where Ximba first saw the appellant.
[25]
The undisputed evidence is that the deceased took two
steps forward
after being stabbed before he fell to the floor. Logic dictates that
the deceased would have kept moving in his direction
of travel before
the stabbing.
[26]
Furthermore, the evidence indicates that in the immediate
area of the
scene, everyone was at extremely close quarters at all material
times.
[27]
According to the appellant, the deceased turned to him,
advanced in
his direction and was armed with a broken bottle which is a
potentially deadly weapon. The appellant had reason to
fear the
deceased who had stabbed him to the point of putting him into a coma
previously. Furthermore, there had been an undisputed
earlier
incident on the day in question of hostile conduct by the deceased
against the appellant.
[28]
The deceased was clearly an aggressor, was armed with
an extremely
dangerous weapon, had declared himself intent on violence, had
demonstrated a history of violence, was drunk and not
responding
rationally. The deceased had at the very least turned away from
Ximba, towards the appellant at very close quarters
and continued
moving towards him moments before the stabbing took place.
[29]
In the circumstances, I am not satisfied that it can
be said
subjectively that the appellant did not append harm in a manner which
was objectively reasonable and that he acted in a
manner which is not
justifiable. Based on the above, I cannot say that the appellant’s
version is not reasonably possibly
true and his conduct
disproportionate.
Order
[30]
In the result, the following order is made:
(a)
The appeal against conviction and sentence is upheld.
(b)
The conviction and sentence of the court
a quo
is set aside.
Sibisi AJ
I
concur:
A.M.
Annandale AJ
JUDGMENT
RESERVED:
24 JUNE
2024
JUDGMENT
HANDED DOWN:
This judgment
was handed down electronically by circulation to the parties’
legal representatives by email publication. The
date and time for
hand-down is deemed to be 15h00 on 03 July 2024.
COUNSEL
FOR APPELLANT:
MR
DANISO
Instructed
by:
DURBAN
JUSTICE CENTRE
C/O
PMB JUSTICE CENTRE HIGH COURT UNIT
(REF:
MR PATRICK MKUMBUZI)
FOR
THE RESPONDENT:
MS S
NAIDU
Instructed
by:
OFFICE
OF THE DIRECTOR OF PUBLIC PROSECUTIONS. DURBAN
[1]
451/2022
[2023] ZASCA 3
(5 January 2024)
[2]
2010
(1) SACR 411 (SCA)
[3]
2019
(1) SACR 127 (SCA)
[4]
[2013]
ZASCA 20
;
2015 (1) SA 491
(SCA) paras 12 – 13
[5]
1985
(3) SA 677
(A)
at 685A-H
[6]
See page 131 line 17, page 132 from line 24 to line 8 on page 133
[7]
See
pages 9, 15 and 24 of the record
[8]
See
pages 30 and 34 of the record
[9]
Page
236 of the record – photograph of the crime scene