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[2024] ZALMPPHC 182
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S v TAM (Review) (149/2024) [2024] ZALMPPHC 182 (20 November 2024)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
Review
case No: 149/2024
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED
DATE: 20/11/2024
SIGNATURE:
In
the matter between:
THE
STATE
And
TAM
CHILD OFFENDER
JUDGEMENT
KGANYAGO
J
[1]
The child offender was charged with one count of murder read with the
provisions of
section 258 of the
Criminal
Procedure Act
[1]
(the Act). At the time of the alleged commission of the offence, the
child offender was 17 years of age. The court
a
quo
was
constituted as a child justice court as the accused was still a minor
and regarded as a child offender. The child offender was
legally
represented throughout the proceeding. The child offender had pleaded
not guilty to the charge, and raised self-defence
as his defence.
Despite his plea, the child offender was convicted of culpable
homicide and was sentenced to 4 years imprisonment
wholly suspended
for a period of 5 years on condition that the child offender is not
convicted of culpable homicide involving assault,
assault GBH or
attempted murder committed during the period of suspension.
[2]
Since the court
a quo
was sitting as a child justice court
when the child offender was convicted and sentenced, the matter was
brought on special review
before this court. I have requested the
opinion of the Deputy Director of Public Prosecutions (DDPP) relating
to whether from the
evidence presented in the court
a quo
, can
it be said that the child offender had exceeded the bounds of
self-defence. The DDPP have furnished me with a helpful opinion
and I
am indebted to them. The DDPP is of the opinion that the child
offender did not act outside the legal bounds of self-defence,
the
proceedings are not in accordance with justice, and the conviction by
the court
a quo
should be set aside.
[3]
The facts of the case are briefly as follows. The first State witness
was sergeant
Lesedi Given Makhafola the police officer who attended
the scene of the incident on 20
th
September 2023. He
testified that he got a call from the hospital informing him about a
person who had passed away. He went to
the hospital, and on arrival
at the hospital he found a young man (deceased) who had passed away
lying on a bed. It was reported
to him that the deceased was stabbed
on the chest with an object which resulted in him passing away.
Makhafola was also informed
of the person who had stabbed the
deceased and where he stays. On checking the deceased, he observed an
open wound on his chest.
[4]
Makhafola went to the child offender’s homestead and found the
child offender’s
grandfather and explained to him the reasons
for their visit. The child offender’s grandfather told
Makhafola that he was
aware of the incident and that the child
offender had fled. He was not involved in the arrest of the child
offender. The witness
was not cross-examined by the defence counsel.
[5]
The second State witness to testify was Joseph Mosehla. The witness
testified that he was
attending the same school with the child
offender. The whole incident started at school when they were
queueing for food when the
child offender insulted the witness by
referring to his testicles. The witness hit back by also insulting
the child offender. The
child offender pushed the witness, and the
witness pushed back the child offender. When this incident happened
at school, the deceased
and one Obakeng were present but were not
involved in the squabble.
[6]
Later that day they were at the zama-zama shop when the witness saw
the deceased and
Obakeng pushing the child offender. The child
offender headbutted the deceased and after that the child offender
started retreating.
When the witness saw the child offender
retreating, he ran away and went to his homestead. He did not see any
of the three being
in possession of any object. The witness was
cross-examined and he stated that when the child offender was
threatened he was not
there. The witness further denied that he was
part of the group that told the child offender at school that they
were going to
deal with him after school.
[7]
The third State witness to testify was Obakeng Molekwa. He testified
that the whole
incident started at school when there was a fight over
a plate. After school the witness in the company of the deceased and
other
learners boarded a bus and went home, whilst the child offender
and his group remained at school. Whilst in the bus one Priven
Mosehla told them that the child offender and his group were
insulting the witness and his group by referring to their testicles.
The child offender and his group were staying at Malahleng section,
whilst the witness and his group were staying at Moyeding section.
In
the past there were rumours that the witness and his group were not
welcomed at Malahleng section.
[8]
On arrival at home the witness and his group went to the soccer field
to play soccer.
After playing soccer at about 19h00 the witness in
the company of the deceased, Dadi and Jacob went to an Indian shop
called zama-zama.
Later the child offender also arrived at the Indian
shop. On arrival of the child offender, Priven told them that the
child offender
was the person who was referring to the witness by his
testicles. The child offender entered the shop and the witness
followed
him. The deceased also came and told the child offender that
they must go outside the shop so that the child offender can tell
them why he was saying that the deceased and his group should not go
to Malahleng section.
[9]
The deceased pulled the child offender and the child offender
headbutted the deceased
several times and he did not count. As the
child offender was headbutting the deceased, the deceased told the
child offender that
he was not fighting him. The deceased did not
fight back when the child offender was headbutting him. The witness
went to them
and slapped the child offender with an open hand as the
witness was angered by the child offender who had headbutted the
deceased,
despite the deceased telling him that he was not fighting.
[10]
The witness started regretting what he did to the child offender as
the child offender was not
fighting with him. One Fundi approached
the witness and the witness started running away. As the witness was
running away, Fundi
tripped him and the witness fell to the ground.
When the witness was lying on the ground, Fundi started kicking the
witness. Fundi
stopped kicking the witness, and the witness stood up
and tried to walk away. The reason why Fundi tripped and kicked him,
he was
trying to separate them from fighting with the child offender.
As the witness was walking away, he saw the deceased holding his
chest and bleeding.
[11]
The witness went to the deceased and tried to stop the bleeding with
their t-shirts, but were
unable to do so. The witness went to the
neighbouring house to seek transport to take the deceased to the
clinic, but was not successful.
The witness went to the deceased
homestead to notify them that the deceased has been stabbed at
zama-zama shop. A vehicle was arranged
and the deceased was taken to
Jakkalskuil clinic. On arrival at the clinic they found the gate
closed, and were told that the clinic
was not operating during the
night. The deceased was taken to George Masebe hospital. The deceased
was admitted at the hospital,
and after a while they were told by the
hospital officials that the deceased had passed away.
[12
The witness was cross-examined and when asked why he wanted to have a
conversation with
the child offender outside the zama-zama shop, the
witness stated that they wanted to interrogate him outside the shop
as inside
the shop there were other people. The witness stated that
the deceased was pulling the child offender to go outside whilst the
child offender was refusing to go outside. The witness denied that
when Fundi intervened, he (witness) and the deceased were busy
assaulting the child offender. The witness stated that at the
zama-zama shop there were lot of people, but they did not intervene
when the fight was taking place.
[13]
L[...] P[...] testified as the State fourth witness. She testified
that the deceased is her last-born
child. On the date in question at
about 19h00 she was at home with her daughter E[...] P[...] when
Obakeng arrived at their homestead
crying. Obakeng told them that the
deceased had been stabbed at zama-zama shop. They arranged a
transport and went to zama-zama
shop.
[14]
On arrival at the shop they found the deceased lying on the ground
bleeding. They took the deceased
to the hospital where he was
admitted. Later the nurses at the hospital told her that the deceased
had passed away. Obakeng had
told them that the deceased had been
stabbed by the child offender. However, when they arrive at the scene
the child offender was
not there.
[15]
The witness was cross-examined and she stated that Obakeng told her
that he saw the deceased
when he was stabbed. The State thereafter
with the consent of the defence led chain evidence by reading the 212
statements by several
witnesses, identification of the body
affidavit, post-mortem report, and the photo album of when the
post-mortem was being conducted
into record.
[16]
The State called Wilson Kelebogile Mosehla as its fifth witness and
last witness. He testified
that the child offender is known to him
from their home village. On 20
th
September 2023 the
witness was seated with Tebatso and Priven at zama-zama shop. As
Tebatso was leaving to go home, the child offender
arrived at the
shop. On arrival the child offender bought whatever he wanted to buy
and went to sit next to the wall and the witness
was seated next to
the gate of the shop.
[17
After the child offender had sat down, the deceased and Obakeng
entered the shop and went
straight to where the child offender was
seated. The deceased stood in front of the child offender, whilst
Obakeng stood behind
the child offender. The deceased told the child
offender to go outside the shop, but the child offender refused to do
so. When
the deceased was busy talking to the child offender, Obakeng
started assaulting the child offender on his back with open hands.
The deceased also joined in assaulting the child offender with open
hands and fists. The child offender got angry, pulled out a
knife and
stabbed the deceased once on his chest.
[18]
When Obakeng saw the deceased pulling out a knife he ran away. The
witness tried to separate
them, but he was late as the child offender
had already stabbed the deceased. After the deceased was stabbed, he
ran out of the
premises for a while and collapsed on the street. The
witness decided to run to Monyeki’s homestead to seek for help.
The
child offender left the scene after stabbing the deceased.
[19]
On arrival at Monyeki’s homestead the witness told Tebatso that
his boy had stabbed the
deceased with a knife and that the child
offender’s grandfather should arrange a vehicle to take the
deceased to hospital.
Tebatso told the witness that their vehicle did
not have petrol. The witness sent Paris to go to Denga’s
homestead to ask
for a vehicle to transport the deceased to hospital.
Paris succeeded at Denga’s homestead and the deceased was taken
to hospital.
[20]
The witness was cross-examined and he stated that the child offender
was assaulted for about
5 minutes before he pulled out a knife. The
witness denied that he had chased and tripped Obakeng. Except for the
stabbing, the
child offender did not do anything to the deceased. The
witness conceded that when the child offender stabbed the deceased,
he
was acting in self-defence. The witness further stated that he saw
the deceased headbutting the child offender around the nose and
mouth
area, and that is what had angered the child offender. The witness
denied that the child offender had headbutted the deceased.
The
witness denied that the child offender is his friend. That concluded
the evidence of the State and it closed its case.
[21]
The child offender took the witness stand and testified under oath.
He testified that on the
date of the incident whilst still at school,
during break time he joined a queue to be served with food. Whilst on
the queue he
saw an altercation between Sello and Joseph Mosehla. He
went to them, intervened by talking them, and was able to end their
altercation.
Suddenly the deceased, Obakeng, Benji Mosehla and three
others emerged and started insulting the child offender, grabbed the
child
offender by the collar and pushed him to the side. The plate of
the food that child offender was having fell to the ground and broke
as a result of been pushed.
[22]
The deceased and his group were telling the child offender that he is
disrespectful. The child
offender alleges that he was respecting his
school uniform and therefore did not have the intention of fighting
them whilst wearing
that uniform. The child offender avoided the
deceased and his group by going to sit on the other side, and after
break he went
back into the classroom. That it was on a Wednesday
which was sports day. When they went to the sports ground, Priven
Mosehla came
to where the child offender was and told him that the
deceased and his group says that there was going to be a fight.
[23]
From school to their respective homes the learners were travelling in
two buses which was ferrying
grade 8 to 12 learners. As the child
offender was already informed that there was going to be a fight, he
decided not to alight
the bus from his usual bus stop but at another
bus stop. On arrival at his homestead he did his normal chores. Later
he left his
homestead to go and play soccer. When he left his
homestead he took an orange and knife which he used to peel off the
orange.
[24]
After playing soccer whilst preparing to go home, the child offender
saw a group of boys walking
past the soccer field going to zama-zama
shop which is next door to the child offender’s homestead. The
child offender decided
to walk to his homestead. He did not reach his
homestead as he saw a group of those boys leaning against the fence
which was next
door to the shop. When the child offender saw that, he
decided to enter into the shop. Inside the shop he found his brother
and
thought that those boys will not fight him whilst his brother was
there. The child offender bought something and sat down inside
the
shop.
[25
As the child offender was sitting down, Obakeng and the deceased
emerged and came to him
and told him to go outside the yard into the
street where they wanted to fight with him. The child offender
ignored them and continued
sitting down. The two started shoving the
child offender around, but the child offender continued sitting down.
When the child
offender stood up, the deceased stood in front of him
whilst Obakeng stood behind him. The two started assaulting the child
offender
and the deceased headbutted the child offender. The child
offender was begging with the two to stop assaulting him. When the
deceased
headbutted the child offender, that is when the child
offender saw that the fight was serious, and that the two were really
fighting
him, and he took out a knife and stabbed the deceased once
in order to free himself from them.
[26]
Before stabbing the deceased he could not run away from the scene as
he saw that outside the
shop there were still other 4 boys who were
part of the group of the deceased and Obakeng. It did not cross his
mind to use other
means than stabbing the deceased in order to free
himself from them. He was angry, and that Fundi only intervened when
he saw that
the other 4 boys were advancing at him. He had stabbed
the deceased whilst the deceased was still in front of him. He is not
sure
how long it took the two when assaulting him.
[27]
The child offender was cross-examined and he denied that he had
insulted Joseph. The child offender
denied that on the day in
question it was him and his group who wanted to fight the deceased
and his group. The child offender
stated that before stabbing the
deceased there was nowhere he could have run to as the other 4 boys
were seated at the gate which
was near to the shop. The child
offender stated that he went to soccer field carrying a knife as on
the way to the soccer field
he was using that knife to peel off an
orange. The child offender stated that when he took the knife, he did
not think that something
would happen on the street. He denied that
he took the knife as he knew that there was going to be fight which
will not end well.
The child offender conceded that he knew that
there was an intent to fight him, but he did not know as to when that
would happen.
[28]
The child offender stated that he took out the knife that he used to
stab the deceased from his
pocket. The child offender stated that the
deceased had headbutted him on his forehead. The child offender
stated that he could
not fight back the two with open hands as he is
not a fighter, and further that it was impossible as the two were
ganging against
him. The child offender stated that he had used a
knife in defending himself. The child offender stated that he was in
possession
of an ordinary kitchen knife. The child offender stated
that he was frightened and could not tell how he had stabbed the
deceased.
That concluded the evidence of the child offender and he
closed his case. Both parties have addressed the court
a quo
on the merits of the case.
[29]
The court
a quo
in analysing the evidence and submissions by
both parties found that all the witnesses were in agreement that the
deceased and
Obakeng were the ones who had confronted the child
offender first. However, the court
a quo
found that the mere
fact that the child offender has been attacked by the deceased and
Obakeng with open hands, fists and even
headbutted, was not
reasonable of the child offender to have stabbed the deceased with a
knife in warding off the attack. Therefore,
as per the court
a quo
the child offender had exceeded the bounds of self-defence. Further
that the child offender did not realise that he was exceeding
the
bounds of self-defence, and had also not realised that the deceased
will die as a result of the stabbing, whereas a reasonable
person in
his position should have realised. Based on that the child offender
was found guilty of culpable homicide.
[30]
What this court must determine is whether the conviction of the child
offender of the offence
of culpable homicide as it appear to me to be
in accordance with justice. The child offender is not disputing that
he had stabbed
the deceased with a knife, and that the deceased died
as a result of the injury which he sustained when he stabbed him. The
child
offender had raised self-defence in justifying his actions.
[31]
It is trite that for an accused to succeed with the defence of this
nature, he must show that
(i) he was acting in response to an
uncompleted unlawful attack on an interest deserving of legal
protection, and the response
must be directed at the attacker; (ii)
the defensive act was necessary to protect the interest in question;
(iii) there was a reasonable
relationship between the attack and the
defensive act; (iv) and that the appellant was aware of the fact that
he was acting in
private defence. (See
S
v T
[2]
).
[32]
The test for private defence is objective, would a reasonable person
in the position of the accused
have acted in the same way. A person
who act in private defence acts lawfully, provided his conduct
satisfies the requirements
laid down for such a defence and does not
exceed its limits. (See
S
v De Olivereira
[3]
).
[33]
The undisputed evidence is that the deceased and Obakeng were the
aggressors on the day in question.
The whole incident started at
school which the deceased, Obakeng and the child offender were
attending. The child offender from
school had been trying to avoid a
fight to the extent that he had to alight the school bus at another
bus stop, and not his usual
bus stop. When he was from the soccer
practice, he had to again avoid the deceased and his group who were
hanging on the fence
next to the shop, by entering into the shop.
[34]
It seems when the deceased and his group were hanging on the fence,
they were waiting for the
child offender, as when he entered into the
shop two from the group followed him. However, the court
a quo
found that when the child offender entered the shop he presented
himself to a dangerous situation, and that by entering the shop
the
child offender’s confidence was boosted by the presence of his
brother and also the fact the he was in possession of
a knife. The
court
a quo
further found that the child offender foresaw and
anticipated to be confronted that day, in which he was eventually
confronted.
[35]
The child offender knew that the deceased and his group were after
him, and he did everything
in his power to avoid a confrontation with
them. His life could not have been expected to come to a standstill
because the deceased
and his group who were longing for a fight with
him and were also after him. It is therefore not correct that when
the child offender
entered the shop he presented himself to a
dangerous situation, but was trying to avoid a fight as there were
many people in the
shop which he thought would discourage the
deceased and his group to continue with their mission. The child
offender would not
have known that the people in the shop would not
have come to his rescue should a fight ensue.
[36]
The deceased and his group were hanging on the fence next door to the
shop, and by entering the
shop as per the child offender’s
version he was avoiding contact with the deceased and his group which
might have resulted
in a confrontation since it was clear that the
deceased and his grouping were itching for a fight. The child
offender had explained
the circumstances under which he came to be
possession of the knife which he used to stab the deceased.
[37]
It is not the duty of the court to believe the version of the child
offender, but what the court
must determine is whether his version of
how he came into possession of the knife was reasonably possibly
true. There is no evidence
which has been presented by the State to
rebut the version how the child offender came to be in possession of
the knife. On the
facts as it stands the child’s offender’s
version of how he came to be in possession of the knife in my view,
is reasonably
possibly true.
[38]
The deceased and Obakeng have attacked the child offender without any
provocation, despite the
child offender trying to avoid any
confrontation with them. There was no justification in the deceased
and Obakeng attacking the
deceased in the manner in which they did.
The child offender did not immediately stab the deceased at the
commencement of the attack,
but he tried to talk to them to stop what
they were doing to him to no avail. The child offender stabbed the
deceased after he
was headbutted by the deceased when he realised
that attack was now becoming severe. The stabbing occurred at the
time when the
attack was still continuing and was directed at the
deceased who was taking the lead in attacking the child offender. In
my view,
the 1
st
requirement for self-defence has been
satisfied.
[39]
At the time the child offender stabbed the deceased, the assault had
developed from light to
severe. The was no duty on the child offender
for him to wait to be injured before he is permitted to act in order
to save himself
from the attack. The child offender was attacked by
two people who have sandwiched him from behind and front. The attack
by the
deceased and Obakeng was happening at the same time. The child
offender had explained that he was unable to fight with his hands
as
he is not a fighting person. He could not fight with his hands, but
had act swiftly as the attack had developed to be severe,
and despite
there been other people in the shop who were observing what was
happening, but no one showed any interest to come to
his rescue. The
only object he could use to protect himself from the ongoing attack,
was to use a knife which was in his pocket.
In my view, the child
offender had satisfied the 2
nd
requirement for
self-defence.
[40]
When the child offender took the knife from his homestead, he wanted
to use it to peel off the
orange he was eating, and not to use it to
attack anyone. As he was eating the orange whilst on the way to the
soccer field, it
could not have been expected of him to go back home
and return the knife after he had finished eating the orange. He
therefore
had not at any stage when he left his homestead to have
planned to attack anyone with that knife. Even when he was walking
back
home when he saw the group that wanted to attack him, he did not
confront them or wanted to fight with them because he was armed
with
a knife. Instead he wanted to avoid them by entering into the shop
where he thought that he will be safe as there were other
people
inside the shop. It is not correct that he entered the shop knowing
that he was putting himself in a dangerous situation
as found by the
court
a quo
.
[41]
When the child offender stabbed the deceased, the attack was severe
and he had been sandwiched
by two people. The 2 who were attacking
the child offender were from a group of 6 of which 4 of those members
were waiting outside.
The deceased started attacking the child
offender when he refused to go outside. The only inference to be
drawn is that the deceased
and Obakeng have approached the child
offender in order to lure him to go outside where they were going to
be joined by the remainder
of the group and deal with him decisively.
[42]
The child offender stabbed the deceased once on the chest in warding
off the attack. By stabbing
the deceased on the chest shows that the
deceased was attacking the child offender from the front. Further, by
stabbing the deceased
once also shows that the child offender was not
fighting, but was warding off the deceased and his companion. It is
unfortunate
that the child offender had used a knife, and the
stabbing was fatal. The knife was the only object at his disposal to
ward the
ongoing attack on him.
[43]
There is no evidence that the child offender had aimed and intended
to stab the deceased where
the knife landed. The child offender was
merely trying save himself from the two attackers. By pulling out the
knife was the only
option he thought of in trying to save his life.
The child offender could not have been expected to leave the two to
have attacked
him until they were satisfied because he could not use
his hands to fight them back. The child offender had to make a
decision
in a split second and cannot be blamed for the decision he
had taken, taking into consideration that the situation he was in,
was
not out of his own making. Everyone regards his/her life as been
more important than that of the next person. In my view, the child
offender had satisfied the 3
rd
requirement.
[44]
As I have pointed out above, the child offender did not stab the
deceased immediately at the
commencement of the attack, but only did
so when the attack was continuing, had become severe and there was no
one coming to his
rescue. Even the State’s last witness has
testified that initially he was just watching them, but decided to
intervene when
he saw that the fight had become serious but it was
too late. This version corroborates the child offender’s
version that
when he stabbed the deceased the attack was serious.
When the child offender took out the knife his intention was to
defend himself
from the ongoing attack and did not foresee that his
actions may have fatal consequences. His intention was to protect
himself
from the ongoing attack and was therefore aware that he was
acting in self-defence. The child offender had therefore satisfied
the 4
th
requirement for self-defence.
[45]
Taking into consideration the evidence and arguments presented in its
totality, a reasonable
person in the position of the child offender
faced with the same situation would have acted in the same way that
the child offender
did. The child offender did not exceed the bounds
of self-defence or acted negligently in stabbing the deceased. The
court
a quo
has misdirected itself in convicting the child
offender of culpable homicide. The proceedings in this case appear to
me to be not
in accordance with justice, and stand to be reviewed and
set aside.
[46]
In the result the following order is made:
46.1
The conviction of the child offender of culpable homicide is reviewed
and set aside.
46.2
The order of the court
a quo
is substituted with the
following:
“
The
child offender is acquitted of the offence charged”.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
PILLAY
AJ
ACTING JUDGE OF THE
HIGH COURT OF SOUTH AFRICA,
LIMPOPO DISIVION,
POLOKWANE
APPEARANCES:
Electronically
circulated on
: 20
th
November 2024
[1]
51
of 1977
[2]
2015
(1) SACR 489
(WCC) at para 29
[3]
1993
(2) SACR 59
(A)