REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: A06/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE30/07/2025
SIGNATURE:
In the matter between:
MAHLANYA MAMAKONYA SIMON APPELLANT
And
THE STATE RESPONDENT
_______ _____
JUDGMENT
KGANYAGO J
[1] The appellant was arraigned in the regional court sitting at Senwabarwana
before regional magistrate C Nchabeleng sitting with two lay assessors on
one count of murder read with the provisions of section 51(2) of the Criminal
Law Amendment Act 1 (CLAA) as amended . The appellant had pleaded not
guilty and raised the defence of private defence. At the end of the case, the
regional magistrate was of the view that the appellant should be found not
guilty and discharged, whilst the two lay assessors were of the view that the
appellant should be found guilty as charged. Based on the majority decision,
the appellant was found guilty as charged and sentenced to 12 years
imprisonment. The appellant is appealing aga inst conviction only with the
leave of the court a quo.
[2] The bac kground facts are briefly as follows. At the commencement of the trial,
the appellant through his counsel made the following admission in terms of
section 220 of the Criminal Procedure Act2 (Act) as amended. The appellant
admitted the identity of the deceased; that he and the deceased met o n the
date in question as stated in the charge sheet; that he had stabbed the
deceased with a knife once on the chest; that the deceased died as a r esult of
the stab wound on the chest; and the post mortem report was not placed in
dispute. The appellant in his plea explanation stated that he was acting in
private defence as he was under direct attack by the deceased. The chain
evidence was admitted by agreement between the respondent and the
defence, and the affidavits of the said witnesses were read into record.
[3] The respondent’s first witness to testify was Mamoloko Makhura. He testified
that on 5 th October 2019 he was at a tavern seated on a crate on the stoep
facing the gate of the tavern and was smoking hubbly. As he was seated,
Matome (deceased) came to him and told him that it was late at night, and
that they must leave as the following day they were going to the soccer
tournament. The witness was seated alone as other people have already left
the tavern. Before the deceased came to him, he saw the deceased just
dancing. The deceased leaned against the witness. As the deceased was
dancing. The deceased leaned against the witness. As the deceased was
leaning against the witness, Simon (appellant) arrived to where the two were
and gave the deceased a pat on his shoulders. The deceased turned around
and the appellant without saying a word stabbed the deceased.
1 105 of 1997
2 51 of 1977
[4] After being stabbed, the deceased pushed the appel lant away, ran into the
building and fell to the ground. When the witness stood up, the appellant drew
on the ground with his knife and told the witness that whoever wanted to
entertain the issue of the deceased, he should come and face him. The
witness went into the building and found the deceased lying on the ground.
The witness called the deceased who tried to stood up, but he again fell to the
ground. The witness ran to neighbours to try and find transport for the
deceased. When the witness returned to the scene he found other people
already gathered there, and they told him that the deceased had passed
away. On hearing that , the witness left the scene and went to his homestead.
At the tavern there was a lot of light illuminating to the extent that the witness
could see an object that was far.
[5] The witness was cross -examined by counsel for the appellant and he stated
that on the night of the incident he did not consume alcohol, but was only
smoking hubbly which does not make him intoxicated. The de fence wanted to
cross-examine the witness on his written police statement. In trying to lay the
basis by counsel for the respondent, the witness stated that he did not read
the written statement, the police officer who took it did not read it back to him,
and was just told to sign. The witness conceded that in preparation of the
case, the prosecution had read back the statement to him. He fully agreed
with the contents of the statement as it was been read back to him by the
prosecution, but he did not see h is signature on that statement . The
prosecution did not have a problem with the defence cross -examining the
witness of his written police statement, and the court a quo allowed that
despite there been some deficiencies of properly laying the basis. Thereaf ter
the defence went on cross -examining showing the witness the contradictions
in his viva voce evidence and his written police statement.
in his viva voce evidence and his written police statement.
[6] The version that was put to the witness was that the appellant on the night in
question was seated on a crate busy drinking alcohol, when the deceased
took the appellant’s beer bottle. When the appellant asked the deceased why
he was taking his beer without first asking, the deceased slapped the
appellant with an open hand and also took out a knife with the intention of
stabbing the appellant. The appellant took a crate and threw it at the
deceased and the knife fell to the ground . The appellant picked up the knife,
but the deceased still charged at the appellant with the intention of hitting him
with fists. When the deceased tried to hit the appellant with fists, the appellant
ducked and the deceased missed. That is when the appellant stabbed the
deceased once with the knife, and thereafter ran away. The witness disputed
this version and stated that it was a lie.
[7] The respondent’s second witness to testify was Phiny Mfofya. He testified that
on the night of the incident he was seated at Maleseja tavern in the company
of Mamoloko and the deceased. T he deceased was standing and smoking
hubbly. The appellant came and tapped the deceased on the shoulder without
uttering a word. When the deceased turned, the appellant stabbed him with a
knife and the deceased ran into the lounge. The witness got frightened and
ran outside. When the witness returned back into the lounge, he found the
deceased dying. The witness went to the deceased and made him to face up,
but he was already dead. The witness became scared and he fled to his
homestead. The witness stated that he and the deceased were sober.
[8] The witness was cross -examined and he stated that he and the first state
witness were smok ing hubbly on the night of the incident, and not drinking
alcohol. The witness further stated that on night in question the first
respondent’s witness was jus t seated at the tavern, but was not drinking
alcohol. The witness stated that at the time the appellant stabbed the
deceased, he (witness) was standing next to his chair. The witness stated that
on the night of the incident he never saw the deceased dancing. The witness
stated that it was possible that one can become tipsy because of smoking
hubbly, but it will not be that much. The witness further stated that on the night
hubbly, but it will not be that much. The witness further stated that on the night
of the incident he was a little bit tipsy because of smoking the hubbly.
[9] The witness further stated that at the time of the incident there were no many
people in the tavern, even though they might have been more than 10 but he
was not sure whether they were more than 20. The witness disputed th e
version put to him that on the night of the incident the deceased took the
appellant’s beer without his permission and started drinking it, and that when
the appellant asked the deceased what he was doing, the deceased slapped
appellant and also produced a kn ife which the appellant was able hit it with a
grate and it fell down to the ground , and thereafter the appellant picked up
that knife, but the deceased still persisted in trying to hit the appellant with
fists, and that is when the appellant stabbed the d eceased once on the chest
and thereafter the appellant ran away. That concluded the respondent’s
evidence and it closed its case.
[10] The appellant through his counsel applied for discharge in term s of section
174 of the Act which application was refus ed by the court a quo . The
appellant took the witness stand and testified under oath. He testified that on
the night of the incident he was at the tavern seated on a grate with his beer
bottle in front of him. The deceased came to him and took that beer bo ttle and
started drinking it without asking for permission from him. The appellant stood
up from the crate and asked the deceased why he took his beer without his
permission. The deceased responded by assaulting the appellant with open
hands, and thereafter took out a knife. The appellant picked up the grate and
threw it at the deceased hands. The grate hit both of the deceased hands and
the knife fell down to the ground.
[11] After the knife fell down, the appellant picked up that knife , but the decease d
charged at the appellant throwing some punches. The appellant ducked those
punches, stabbed the deceased once with that knife. After stabbing the
deceased, the appellant threw the knife down to ground and fled the scene.
The reason he had stabbed the dec eased was that there were lot of people in
the lounge, and that should he flee and f ell down, the appellant was going to
catch him. He had also realised that there were lot of bottles lying on the
catch him. He had also realised that there were lot of bottles lying on the
ground which the appellant could have used had he fell down and got caught
by the appellant.
[12] The appellant was cross -examined and he stated that before the incident he
did not know the deceased, but he knew the respondent’s two witnesses. The
appellant stated that he did not see the two respondent’s witnesses on the
night of the incident. When the deceased was attacking him, no one who was
present in the tavern tried to intervene, hence he ended up fleeing the scene
after the fight. The appellant disputed that he had tapped the deceased on the
shoulder and stabbed him without saying a word, and that he is a normal in
his mind, and will not just find a person whom he did not know seated and just
stabbed him. The appellant denied that he had drawn on the ground with a
knife and said any boss from Magaleng who wanted to entertain that matter
must come to him. Further that a sane person will not go to the tavern full of
other people and started drawing on the ground. The appellant disputed that
the knife that he had used to stab the deceased be longed to him. That
concluded the evidence of the appellant and he closed his case.
[13] The appellant’s appeal is directed against conviction only. The appellant in his
heads of argument had also challenged the appointment of the lay assessors
in this matter, that their appointment was not in accordance with section 145
of the Act and section 93ter of the Magistrates Courts’ Act3 in that the record
of the proceedings does not indicate any compliance. However, this issue was
never raised as a ground of appeal, and the appellant’s notice of appeal was
at no stage amended to include that issue as a ground of appeal. The
appellant must stand and fall by its papers, and this court will therefore not
entertain the issue whether the lay assessors were properly appointed or not.
Even if this court was to entertain that issue, the respondent had submitted
from the bar oath of office affidavits signed by the assessors which the
respondent alleges that were signed by the assessors in the presiding
officer’s office, and that will not take the appellant’s argument any further.
[14] What this court must determine, is whether in the light of the evidence
[14] What this court must determine, is whether in the light of the evidence
adduced at trial, the guilt of the appellant was established beyond reasonable
doubt on the murder cou nt that he was facing. The test in a criminal case is
whether the evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that an accused person is entitled to be acquitted if
3 32 of 1944
there is a reasonable possibility that an innocent explanat ion which he had
proffered might be true. These are not two independent tests but rather the
statement of test, viewed from two perspectives. In order to convict, there
must be no reasonable doubt that the evidence implicating the accused is
true, which ca n only be so if there is at the same time no reasonable
possibility that the evidence exculpating him is not true. The two conclusions
go hand in hand, each one being the corollary of the other. Thus in order for
there to be a reasonable possibility that a n innocent explanation which had
been proffered by the accused might be true, there must at the same time be
a reasonable possibility that the evidence which implicates him might be false
or mistaken. (See S v Sithole4).
[15] A court in a criminal case does not have to be convinced that every detail in an
accused version is true. If the accused version is reasonably possibly true in
substance, the court must decide the matter on the acceptance of that
version. An accused person is not compelled to testi fy, but if he elects to
testify, what the court must determine is whether the version presented by the
accused is reasonably possibly true.
[16] The correct approach to the evaluation of evidence in a criminal case was
formulated in S v Chabalala5 where Heher AJA said:
“The trial court’s approach to the case was, however, holistic and in this was
undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct
approach is to weigh up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence, taking proper
account of inherent strengths and weaknesses, probabilities and
improbabilities on both sides and, having done so, to decide whether the
balance weigh heavily in favour of the State as to exclude any reasonable
doubt about the accused’s guilt. The result may prove that one scrap of
doubt about the accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as the failure to call a
material witness concerning an identity parade) was decisive but that can only
4 1999 (1) SACR 585 (W) at 590f-j
5 2003 (1) SACR 134 (SCA) at para 15
be an ex post facto determination and a trial court (and counsel) should avoid
the temptation to latch on to one (apparently) obvious aspect without
assessing it in the context of the full picture presented in evidence. Once t hat
approach is applied to the evidence in the present matter the solution
becomes clear”.
[17] The appellant had raised private defence as his defence to his actions. It is
trite that for the appellant to succeed with his defence of this nature, he mus t
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 TS6).
[18] 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 acts in
private defence acts lawfully, provided his conduct satisfies the requirements
laid down for such defence and does not exceed its limits. (See S v De
Olivereira7).
[19] The res pondent’s two witnesses have testified that the appellant had
approached the deceased, tapped him on the shoulder, and when the
deceased turned to look at the appellant, the appellant stabbed the deceased
once with knife without saying a word. The reafter, the deceased ran into
lounge and collapsed. Intensive cross -examination could not crack the two
witnesses on this aspect. The contradiction s in the evidence of the
respondent’s two witnesses wa s in relation to whether they were seated
together and both were smoking hubbly, as the first witness testified that he
was sitting alone and smoking hubbly alone, whilst the second witness
testified that they were seated together and both smoking hubbly. Further
testified that they were seated together and both smoking hubbly. Further
contradiction was in relation to whether the deceased was at any stage
6 2015 (1) SACR 489 (WCC) at para 29
7 1993 (2) SACR 59 (A)
dancing. In my view, th ese contradictions are immaterial and did not in any
way affect how the two witnesses had witnessed the manner in which the
deceased was stabbed by the appellant. The two witnesses have
corroborated each other on the key issue of how the deceased was stabbed
by the appellant, and their evidence was credible and reliable.
[20] With regard to the contradictions in the viva voce evidence and written police
statement of the first witness for the respondent, the court a quo had erred in
allowing the defence to cross -examine that witness regarding his written
police statement. The defence had failed to lay the basis for him to cross -
examine the witness on his written police st atement. The witness has testified
that he did not read the statement, it was not read back to him, and was just
made to sign it. What the witness and the prosecution did in preparation for
trial was immaterial, as the prosecutor who was reading that state ment to the
witness was not the author of that statement. Further the witness has testified
that he did not see his signature on the statement that was read to him by the
prosecutor. So, it is not clear whether the prosecutor was reading the
witness’s writ ten police statement or his own written notes if there was no
signature. The basis must be laid with regard to the author of the written
police statement.
[21] Even if this court was to accept that the appellant had stabbed the deceased
whilst the deceased was charging at him with the intention of hitting with fists,
I have difficulties in the appellant’s reliance on private defence. The defensive
act of stabbing the deceased was not necessary under the circumstances.
The appellant had already succeeded in disarming the deceased of a
dangerous weapon. The appellant had failed to explain why he did not use
another crate as from record there seems to have be en more than one crate
where the incident happened. At the time the appellant stabbed the deceased,
where the incident happened. At the time the appellant stabbed the deceased,
his life was no longer in danger like when the deceased was still in
possession of a knife. There was no evidence that was led with regard to the
physical appearance of both the appellant and the deceased. Therefore, there
is no reasonable relationship between the attack and the appellant’s
defensive act. The appellant’s conduct does not satisfies the requirements of
private defence, and had exceeded its limits.
[22] Taking into consideration the evidence and arguments presented in its totality,
there is no reason to fault the majority decision by the lay assessors in
convicting the appellant in this matter. It follows that the appeal stands to fail.
[23] In the result the following order is made:
23.1 The appellant’s appeal on conviction is dismissed.
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
I AGREE
_____________________________
DIAMOND AJ
ACTING JUDGE OF THE HIGH OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel for the appellant : LO Mathebula
Instructed by : Legal Aid SA Polokwane Office
Counsel for the respondent : Adv SM Mawasha
Instructed by : DPP Polokwane Office
Date heard : 28th March 2025
Electronically circulated on : 30th July 2025