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[2024] ZAKZPHC 98
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Mthiyana v S (AR216/22) [2024] ZAKZPHC 98 (22 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NAT AL
DIVISION, PIETERMARITZBURG
Case No: AR 216/22
In the matter between:
SIPHO
MUNTUKAYISE MTHIYANE
APPELLANT
and
THE
STATE
RESPONDENT
ORDER
The following order is
made:
(a)
The appeal against conviction and sentence
succeeds.
(b)
The conviction and sentence on count 1 are
set aside and replaced as follows:
(i)
The appellant is convicted of culpable
homicide.
(ii)
The appellant is sentenced to a term of 8
(eight) years imprisonment,
2
(two) years of which is suspended on condition that the appellant is
not convicted of an offence of culpable homicide
committed during the period of suspension.
(c)
The sentence is antedated to the date of
the appellant's arrest in terms of s 282 of the Criminal Procedure
Act 51 of 1977.
(d)
The
appellant's bail is revoked and he is ordered to surrender
himself
to the clerk of the Mtubatuba R
egional
Court where the trial was heard within 5 (five) days of service of
this order on him to commence serving his sentence.
JUDGMENT
S Singh AJ {Sitting with
Balton J)
Introduction
[1]
The appellant was charged of count 1
(murder) and count 2 (attempted murder) and appeared before Ms C
Zungu, the trial magistrate
in the court a quo. He pleaded not guilty
to all the charges and raised a defence of putative private defence
in respect of count
1. He was convicted
on
count 1 and acquitted on count 2. The sentence
on count 1 was subject to s 51(1) read with
schedule 2 of the Criminal Law Amendment Act 105 of 1977 in terms of
which law a life
sentence
was
applicable, which the court a quo reduced to a sentence of 18 years'
imprisonment.
[2]
With the leave of the court a quo this
appeal proceeds against the conviction and sentence.
[3]
On count 1 the State alleged that on 30
April 2018 at Khula Village, KwaZulu-Natal the appellant unlawfully
and intentionally caused
the death of the deceased by shooting him
with a firearm which murder was pre-mediated
and pre-planned by the appellant.
Common
cause and undisputed facts
[4]
The common cause or undisputed facts are as
follows:
(a)
The identity
of
the appellant and the deceased is not in dispute.
(b)
The first State witness N Ncube ('Ncube').
and the sons of the appellant
were at the local tavern late at night in
Khula Village, KwaZulu-Natal. Arguments and a physical altercation
ensued between the
appellant's sons, the deceased and others which
ended up outside on the road.
(c)
The appellant's wife received telephonic
information that one of their sons was injured. The appellant armed
himself with his own
firearm and a stick, left home with his wife and
walked to the place where his son was allegedly injured. At some
stage the appellant
met some males on the road, two of whom were
armed with a knife and a sharp object respectively, who chased him
and tried to attack
him. The appellant went to the scene and fired a
shot at the deceased in his stomach who was hospitalised for
treatment where he
died as a result of his gunshot wounds.
(d)
The appellant was subsequently arrested,
charged, detained in prison and appeared in the court a quo.
Grounds of appeal
[5]
The appellant alleged that the State failed
to prove its case of murder beyond a reasonable doubt against him;
relied on the evidence
of a single unreliable witness against him and
that his version is reasonably, possibly true.
[6]
The appellant alleged that the sentence
imposed by the court a quo is grossly inappropriate, induces a sense
of shock and there
was no consideration for his age, education, work
activities, ill-health, minor dependent children or the time he had
spent detained
in prison before sentence was imposed.
The
facts
[7]
The material trial facts as set out in the
records of the court a quo and interpreted in the judgment are set
out herein.
[8]
The court a quo convicted the appellant of
murder (count 1) on the basis that the appellant had unlawfully and
intentionally shot
and killed the deceased which was also planned and
pre-mediated by the appellant. The State led the evidence of Ncube, a
single
State witness. His factually similar evidence on both counts
was discredited by the court a quo as unreliable when acquitting the
appellant on count 2. The version of this single State witness was
also not corroborated by the medical doctor who was not led
in
evidence in the court a quo in respect of count 1. In his
evidence-in-chief Ncube said the following:
(a)
neither he nor the deceased were armed with
weapons or fighting;
(b)
he
was
drunk
during
the
crime
incidents
during
which
he
had
witnessed
the appellant committing and which was not
in self-defence; and
(c)
he said that he saw the appellant fire a
shot at the deceased which killed him. Under cross-examination he
said the following in
contradiction to his evidence in chief:
(a)
the deceased was also drunk and fought back
with Nkosi, the son of the appellant;
(b)
he initially denied that the deceased and
other boys were armed and wanted to stab the appellant, which version
he later changed.
He denied any knowledge of the two boys being armed
with a knife and sharp object whom the appellant said has come
towards him;
and
(c)
he also denied that he had any knowledge of
the appellant taking his firearm from his pocket, cocking it and
firing the shot.
[9]
The appellant and his wife testified in his
defence in the court a quo. The appellant did not dispute that he
fired a gunshot at
the deceased, which he said he aimed at the legs
of the deceased and had no intention to murder the deceased, who was
armed also
and was accompanied by other armed boys who had all chased
and tried to attack him more than once earlier and approached him
again.
He also said that he did not use his stick first and had
verbally shouted at his alleged attackers, to protect himself, then
later
he fired the said gunshot to protect himself which hit the
deceased in his stomach. He denied that he had any intention to
murder
the deceased whom he assisted thereafter to get medical
attention before leaving the scene. He also said that he knew that
the
incident had already
been
reported to the police, so he did not make a report to the police.
[10] The wife of
the appellant confirmed and corroborated the appellant's evidence in
respect of the fact that she saw the
deceased was armed and
accompanied by armed boys, who chased the appellant who was under
attack at some stage and the appellant
used his stick and verbally
shouted at them to protect himself initially, before firing a gunshot
at the deceased to prevent further
attacks. She also corroborated the
fact that her son was also slightly injured.
Legal principles
[11]
The appellant had relied on his defence of
putative private defence. It is trite, since
S
v De Oliveira
[1993] ZASCA 62
;
1993 (2)
SACR 59
(A) at 63I-64B, that the test for putative private-defence is
that
(a)
an accused who kills another in the belief
that his / her life is in danger when objectively it is not, acts
unlawfully. But if
he / she kills another in the mistaken but genuine
belief that his/ her life is in danger, the accused lacks the
intention to act
unlawfully and is accordingly not guilty of murder;
(b)
the accused may be guilty of culpable
homicide which depends on whether such a belief that his / her life
might be in danger was
reasonable or not; and
(c)
putative private defence is therefore
concerned with the issue of culpability on a charge of murder and is
judged accordingly to
what the accused believed, and culpability on a
charge of culpable homicide is determined on the basis of the
reasonableness of
that belief.
[12]
The court a quo rejected the version of the
appellant
as a
fabricated version which differed when put Ncube and when the
appellant testified. The court a quo also stated that appellant's
conduct in not using his stick to ward off the attacks by the boys
who possessed a knife and a sharp object, as alleged by him
is
questionable because the appellant was in a better position to ward
off his attackers with the knife by using the stick.
[13]
The court a quo also stated that the
appellant performed badly under cross examination and failed to
explain why no warning
shot was fired first, and the appellant had no
valid reason to shoot the deceased. The court also rejected the
evidence of the
appellant's
wife
as being different to the appellant's version that he was surrounded
by the boys which evidence she disputed.
[14]
The trial evidence proved to the court a
quo that beyond any reasonable
doubt,
the appellant acted unlawfully and intentionally in shooting and
killing the deceased, and also, he did not care what was
going to
happen to the deceased nor did he report the incident to the police.
[15]
On count 2 after discrediting the single
State witness the court a quo was satisfied that the single State
witness was a credible
witness who testified in a clear, straight
forward manner in all material respects which is trite.
[16]
The court a quo stated that Ncube was
honest and gave the same material version in both of his police
statements and in his evidence
in the court a quo. The court stated
further that that the deceased and others were not a danger to the
appellant, but the appellant
was the aggressor who fired shots at the
deceased which killed him and which fact was consistent with the fact
that the appellant
and his family members were not injured at all.
[17]
The court a quo convicted the appellant of
murder on the basis that he had the mens rea in the form of dolus
directus when he shot
and killed the deceased intentionally and
unlawfully, which was pre-mediated and pre-planned by the appellant.
The court did not
give any consideration to the appellant's defence
version.
[18]
It is necessary to determine and consider
whether:
(a)
the appellant satisfied the legal
requirements for his defence of putative private defence stated in
paragraph 11 above; or
(b)
the appellant had the necessary mens rea in
the form of dolus eventualis, the test for which is well established
and which was stated
and quoted in the unreported judgment of Balton
Jin
Kuben
Naidoo v State
Case no: AR605/17 (13
December 2018), together with evidence assessment as follows:
'[10]
The
Appellate
Division
in
S
v
Sigwahla
set
out
the
test
as
follows:
"...
the
following
propositions
are
well
settled
in
this
country:
1.
The
expression
"intention
to
kill"
does
not,
in
law,
necessarily
require
that
the accused should
have applied his will to compassing
the
death of the deceased. It is sufficient if the accused subjectively
foresaw the possibility of his act causing death and was
reckless of
such result. This form of intention is known as dolus eventualis, as
distinct from dolus directus.
2.
The fact that objectively the accused ought
reasonably have foreseen such possibility is not sufficient. The
distinction must be
observed between what actually went on in the
mind of the accused and what would have gone on in the mind of a
bonus paterfamilias
in the position of the accused. In other words,
the distinction between subjective foresight and objective
foreseeability must
not become blurred. The factum probandum is
dolus, not culpa. These two different concepts never coincide.
3.
Subjective foresight, like any other
factual issue, may be proved by inference.
To constitute proof
beyond reasonable doubt the inference must be the only one which can
reasonably be drawn. It cannot be so drawn
if there is a reasonable
possibility that subjectively the accused did not foresee, even if he
ought reasonably to have done so,
and even if he probably did do so."
[14] In assessing
the evidence, and making findings thereon, I am mindful of the
following statement in
S v Van Der Meyden:
'The proper test is that
an accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and
the logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning
which is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the
court has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or
to acquit) must account for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be
unreliable; and some of it might be found to be
only possibly false or unreliable; but none of it may simply be
ignored."
[17] In assessing
the appellant's state of mind it is important to bear in mind the
following statement by the Appellate Division
in
S v Dlodlo
•
:
"The subjective
state of mind of an accused person at the time of the infliction of a
fatal injury is not ordinarily capable
of direct proof, and can
normally only be inferred from all the circumstances leading up to
and surrounding the infliction of that
injury. Where, however, the
accused person's subjective state of mind at the relevant time is
sought to be proved by inference,
the inference sought to be drawn
must be consistent with all the proved facts, and the proved facts
should be such that they exclude
every other reasonable inference
save the one sought to be drawn. If they do not exclude every other
reasonable inference, then
there must be a reasonable doubt whether
the inference sought to be drawn is the correct one. (See
R v
Blom,
1939 AD 188
at pp. 202 - 3)."' (Footnotes omitted.)
[19]
A court of appeal does not interfere with
the factual findings of the trial court unless such findings are
misdirected,
and
clearly incorrect. It is trite that the guilt of the appellant must
be proved beyond a reasonable doubt for a conviction by
the trial
court.
Conclusion
[20]
Having assessed the evidence, it is clear
to me that the court a quo did not assess the evidence in totality,
misdirected itself
in its assessment of the material facts herein
before stated, did not consider the appellant's defence of
self-defence and made
an incorrect finding of murder in terms of
dolus directus which was not proved factually against the appellant.
[21]
I am accordingly
satisfied on the facts that:
(a)
the test for self-defence is aligned with
his evidence that he shot the deceased which proved the mistaken but
genuine belief that
his life was in danger.
(b)
he consequently lacked the intention to act
unlawfully, and was not guilty of murder but because he had so acted
under a reasonable
belief that his life was in danger, he was guilty
of culpable homicide which attracts a lesser sentence;
(c)
his state of mind at the time of his act of
shooting the deceased,
when
he aimed at the deceased's
legs,
determined
the
applicable criminal liability as set out above.
He lacked the necessary
mens rea for commission of a murder; and
(d)
the conviction and sentence for murder must
be set aside, and the appellant must be convicted and sentenced for
culpable homicide
for his unlawful action in shooting the deceased,
without the intention to murder him.
Order
Order
[22]
I propose the following order:
1.
The appeal against conviction and sentence
succeeds.
2.
The conviction and sentence on count 1 are
set aside and replaced as follows:
(i)
The appellant is convicted of culpable
homicide.
(ii)
The appellant is sentenced lo a term of8
(eight) years' imprisonment, 2 (two) years
of which is suspended
on
condition that the appellant is not convicted of an offence of
culpable homicide or a competent verdict thereof committed during
the
period of suspension.
3.
The sentence is antedated lo
the date of the appellant's arrest in terms
of
s 282
of the
Criminal Procedure Act 51 of 1977
.
4.
The appellant's bail is revoked and he is
ordered to surrender himself to the clerk of the Mlubatuba Regional
Court where the trial
was heard within 5 (five) days of service of
this order on him to commence serving his sentence.
S Singh AJ
I have read the judgment
of Singh AJ and agree with the result.
Balton J
Appearances:
Date of hearing: 3
November 2023
Date of judgment: 22
March 2024
For the Appellant: T. P.
Pillay
Instructed by: Legal Aid
South Africa, Durban Local Office
For the Respondent: K.
Singh
Instructed by: Director
of Public Prosecutions, Pietermaritzburg