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[1990] ZASCA 14
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S v Mbhele (500/89) [1990] ZASCA 14 (16 March 1990)
500/89 N v H
MZIMPHLE JAMES PAPI MBHELE
Appellant
and
THE
STATE
Respondent
SMALBERGER, JA :-
500/89 N v H
IN THE SUPEME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
MZIMPHLE JAMES
PAPI MBHELE
Appellant
and
THE
STATE
Respondent
CORAM
: SMALBERGER, KUMLEBEN, JJA,
et
FRIEDMAN, AJA
HEARD
: 9 MARCH 1990
DELIVERED
: 16
MARCH 1990
JUDGMENT
SMALBERGER, JA :-
The appellant was convicted of murder in
the Natal Provincial Division by BROOME, J and two assessors sitting on circuit
in Scottburgh.
The
/2
2
majority of the court held that there were no extenuating circumstances, and
he was sentenced to death. The present appeal lies, with
leave of the judge a
quo
, against this finding and the sentence imposed upon the
appellant.
The evidence establishes that the appellant fatally stabbed Mungwe
Stephen Zobonele Khumalo ("the deceased") in the following circumstances.
The
deceased was in the company of his sister, Nomsa, in Ixopo. They were approached
by the appellant. The appellant deliberately
trod on the deceased's foot. He
called the deceased "a dog", grabbed hold of him and shook him. The appellant
then produced a knife
from his pocket which he brandished in front of the
deceased's face, saying that he would "get him". When asked by Nomsa why he was
behaving in this fashion the appellant responded by saying "You know". The
/3
3 appellant then closed and pocketed his knife and walked
away. The deceased thereafter proceeded to a shop to buy paraffin. He later
returned to the bus stop where Nomsa was waiting for him. There they were again
aproached by the appellant. He had a knife in his
hand. The deceased retreated
in front of the advancing appellant. The appellant stabbed the deceased twice on
the left side of his
body. Nomsa asked the appellant why he had stabbed the
deceased, but received no reply. The deceased collapsed and Nomsa ran away.
She
was chased for some distance by the appellant. After the appellant gave up the
chase Nomsa returned to where the stabbing had
taken place, and assisted in the
deceased's removal to hospital. According to Nomsa, she was not aware of any
enmity between the
appellant and the deceased, and she could provide no reason
for the assault upon the deceased. There is no
/4
4 suggestion that liquor played any part in the appellant's
behaviour.
The post-mortem report revealed that the appellant had stab wounds
of the left arm and the left chest in the vicinity of the clavicle.
The latter
injury had penetrated the left lung, and the cause of the deceased's death was
haemorrhage from a lacerated subclavian
artery and vein.
The appellant is a
relatively unsophisticated person. He was 28 years of age at the time of the
incident. His claim that he had acted
in self defence was rejected by the trial
court. The appellant did not provide the court with any acceptable explanation
for his
seemingly irrational behaviour.
The majority of the trial court found that the appellant had not taken the
court into his confidence, and had provided no explanation
for his
/5
5 stabbing of the deceased. He had deliberately stabbed an
unarmed person. There was no indication of what he was alluding to when
he said
"You know" to Nomsa after his first encounter with the deceased. In the absence
of any acceptable explanation for the appellant's
conduct there were no factors
present to abate his moral blameworthiness. They accordingly held that he had
not discharged the onus
upon him of proving extenuating circumstances.
I am
mindful of the fact that this Court can only interfere with the majority finding
of the trial court if such finding is vitiated
by misdirection or irregularity,
or is one to which no reasonable court could have come. The latter two grounds
do not arise in the
present matter. There remains to be considered whether there
was any misdirection.
/6
6 As I have previously mentioned, the appellant is a
relatively unsophisticated person. He is perfectly sane. He stabbed the deceased
in a public place in full view of others, seemingly for no apparent reason. He
was not under the influence of liquor at the time.
On the face of it his
behaviour was totally irrational. If his conduct was purely an act of thuggery
he could have stabbed the deceased
on the first occasion. Yet he refrained from
doing so. When asked about his threatening behaviour by the deceased's sister he
replied
"You know". This must be taken as a reference to something that had
happened in the past - something known to the deceased and his
sister. He then
left but later returned to stab the deceased. It is true that the appellant
failed to take the trial court into his
confidence. None the less, the
probabilities suggest that something operated
/7
7 on his mind, that he nurtured some deep-seated grievance
against the deceased of sufficient moment to cause him to act as he did.
His
conduct is not reasonably explicable on any other basis. Significantly the
appellant did not stab the deceased at their first
encounter, as he presumably
would have done if his conduct had been premeditated. On the probabilities there
would seem to have been
some building up of resentment or anger between the
first and second encounters, to which the appellant ultimately gave vent by
stabbing
the deceased. These were essentially the views of the dissenting member
of the trial court. The majority do not appear to have given
due weight to these
considerations, and were in my view unduly influenced by the appellant's failure
to explain his conduct. To that
extent they misdirected themselves. We are
therefore at large to come to our
/8
8
own conclusion on the question of extenuation.
Although very much a border
line case, on an overall conspectus of the evidence, and with regard to the
considerations mentioned plus
the fact that, as found by the trial court, "this
was a clear case of
dolus eventualis
", I am of the view that extenuating
circumstances were present.
In the result the appeal must succeed, and the
sentence of death must be set aside. In my view an appropriate sentence, having
regard
to all relevent considerations, would be one of 10 years'
imprisonment.
The following order is made:
The appeal is allowed. The finding of the court a
quo
that there were no
extenuating circumstances is set aside, as is the sentence of death. There is
substituted for such sentence one
of 10 years'
imprisonment.
JUDGE OF APPEAL J W SMALBERGER
KUMLEBEN, JA )
) CONCUR FRIEDMAN, AJA )