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[2025] ZAKZPHC 122
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Ntusi v S (AR449/2024) [2025] ZAKZPHC 122 (21 November 2025)
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
CASE
NUMBER: AR449/2024
In the matter between:
SIFISO TITI
NTUSI
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Appellant was convicted on a count of attempted murder and sentenced
to ten (10) years imprisonment
of which two (2) years were suspended
for five (5) years. With leave of this Court he appeals against
his conviction and
sentence. Appellant was charged with his
brother as a co-accused but he was acquitted by the court
a quo
.
[2] The
complainant testified that on the day in question on his way back
home when it was about midday
he saw Appellant and his brother.
It was on the road close to his home when Appellant shouted out his
name. He waited
for them, they approached him and asked why
when he is in Johannesburg but when he is not in Johannesburg that
they call his mother
as a bitch. He was held by Appellant who
tried to fist him but missed. His brother then came closer and
tripped him.
He fell down where there was a lot of stones in
the area. They kicked him, tramped on him on his body and face
and this lasted
for some time. He picked up two stones that
were on the ground and they then ran away. He was later taken
to the hospital.
He was kept in hospital overnight and
discharged the following morning.
[3] One
Ndumiso Mvelase was called as a witness by the court
a quo
who
confirmed that there were water problems in the area and that on
certain days they did not receive water. He was however
unaware
of any water problems on this specific day. It was put to the
complainant that he was in the yard of Appellant trespassing
and that
he was then approached by Appellant. It was put to the
complainant that the recording of the injuries by the doctor
did not
accord with that which he had testified about. It was put to
him that the co-accused was not present at the time
that the
Appellant and the complainant had an argument about water.
[4] The
court
a quo
called Dr. Charity Ngcobo, who complied the J88
and who saw the complainant at the clinic and also at Ncongeni
Hospital.
She testified that he sustained an eye injury and a
nose injury so that part of his head injuries he was sent to the
Ladysmith
Hospital for a CT brain scan and there was a mild
intercranial brain injury on that CT scan. There was mild
bleeding which
normally happens after certain traumatic injury.
He was admitted to hospital for 24 hours observation.
Complainant
had a good prognosis although there was bleeding which
can in certain circumstances be life threatening.
[5]
After Appellant and his co-accused testified the court
a quo
called a Mr. Majola, who was an Induna in the area, and who confirmed
that there were water problems in the area and that there
were pipes
running through the yard of some properties. It was
distributing water to people in the area. He had no
interaction
with any of the parties on the day in question about the said
incident.
[6]
Appellant testified that the water pipe was in his garden and that
the complainant was in his
garden with tools to connect the water
pipe. He stepped on the pipe to avoid him connecting it.
He was then hit by
the complainant and his cell phone fell. The
cell phone was picked up by the complainant and Appellant then ran
away towards
his house. He asked complainant to bring back his
cell phone and he said that he could get it from the police station.
He stated that when he was hit he hit the complainant back. He
did go to the police station to try and get back his cell
phone.
Appellant testified and “I just retaliated. I retaliated
by mistake. I did not think that he would
hit me.”
He then testified that he hit him once on the temple.
[7] The
learned magistrate in his judgment held that there were two mutually
destructive versions
before the court. The court therefore has
to make findings on the credibility of various factual witnesses, the
reliability
and the probabilities. It must then be determined
whether the party which carried the onus succeeded in discharging the
onus.
He held that the evidence of a single witness must be
satisfactory in every material respect. He found that the issue
of
the water pipe is not so improbable that it cannot be reasonably
possibly true. He found the version of Appellant to be
reasonably
possibly true and that the issue of the water pipe has to
be considered in respect of Appellant and that the complainant had
the
right to reconnect the water and therefore Appellant had no right
to prevent him from doing so. The blow to the side of the
head
does not account for all the injuries the complainant sustained and
especially the injury causing the bleeding to the brain.
There
was no indication where the other injuries could have been
sustained. The only inference therefore was that the
complainant
attempting to fix the water pipe sustained those injuries
and therefore Appellant was convicted as charged.
[8] It
was conceded by Mr. Truter, acting on behalf of Respondent, that a
case of attempted murder
had not been made out. For attempted
murder it is necessary to prove that there was intention, even if it
was intention in
the form of
dolus eventualis.
The
learned magistrate in no way dealt with this issue at all. Also
during cross examination this was not dealt with by any
of the
parties nor was it dealt with during cross examination of the
doctor. It was also conceded by Mr. Truter that a competent
verdict of assault with intent to do grievous bodily harm could
also not be sustained on the state’s case as intention
once
again was not proved and there was no evidence from which an
intention could be inferred. Accordingly the issue which
remained was whether Appellant acted in self defence or whether he
was guilty of assault common.
[9] The
state’s evidence was of a single witness the complainant.
In the case S v Saban
en Ander
1992 (1) SACR 199
(A) it was held
after referring to the decision of National Employers Mutual General
Insurance Association v Gany
1931 AD 187
at 199 as follows:
“
Where there
are two stories mutually destructive, before the onus is discharged,
the court must be satisfied upon adequate grounds
that the story of
the litigant upon whom the onus rest is true and the other false.
It is not good enough to say that the
story told by Clark is not
satisfactory in every respect. It must be clear to the court of
first instance that the version
of the litigant upon whom the onus
rests is the true version. That what needs to be proved is the
truth of the litigant who
has the onus and not merely whether such
witness is honest in the evidence presented.”
[10] As was also
submitted by Mr. Truter the evidence of the complainant is not
reconcilable with the report of
Dr. Ngcobo as he had told the doctor
that he was fisted and that a stone was used. He suffered some
amnesia after the assault.
The parties knew each other well and
therefore there is no indication of any wrong identification.
The evidence of the complainant
had to be substantiated by some
corroboration before it was accepted. Appellant did admit that
he was at the scene
and also that there was a fight between
them and that he had punched the complainant once. The
complainant was a single witness,
and to be accepted, his evidence
must be credible and the court must be satisfied that the truth has
been told. S v Sauls
and Others
1981 3 SA 172
AD 180 E to H.
[something is missing here]
[11] As set
out above the evidence of the complainant was unreliable and it
impacts on his recollection
of events and further conflicts with the
report of Dr. Ngcobo. The matter should accordingly be dealt
with on the version
of Appellant who placed himself at the scene and
admitted that he punched the complainant once.
[12] The question
arises whether he acted in self defence or whether it was assault
common. It was submitted
that he acted in self defence based on
the fact that he hit the complainant back as a result of an
attack on him and therefore
he was not exceeding the bounds of self
defence.. His retaliation was therefore reasonable in the
circumstances.
[13] The issue of
self defence was never raised by any of the parties at the trial nor
was that the evidence of
Appellant. Appellant in actual fact,
in his evidence as set out above, stated that he retaliated and that
he thereafter ran
back to his house. It was held in S v Trainor
2003 (1) SACR 35
SCA at 42 B that:
“
If you could
have averted the attack by resorting to conduct which was less
harmful than that actually employed by her and if you
inflict injury
or harm to the attacker which was unnecessary to overcome the threat,
the conduct does not comply with this requirement
for private
defence.”
And at C:
“
It is clear
from the evidence that the appellant was physically stronger than the
complainant”
At 42 E it held:
“
It was
abundantly clear that the appellant did not consider walking out of
the garage or into the house. He made no attempt
to remove the
complainant from where she stood to enable him to drive away.”
[14] As already
stated, Appellant applying these principles by retaliating and
hitting the complainant on the
side of his face, indeed did not act
in self defence. He could have run away. He could have
moved backwards.
There is nothing on the record to indicate
that his life was threatened at that stage because while he admits he
was standing on
the pipe to prevent the complainant from accessing
water, on his version, he was fisted once by the complainant. On the
conspectus
of all the evidence and the sequence of the altercation,
in my view he did not act in self defence but that he indeed
committed
an assault upon the complainant which he himself admits by
stating that he retaliated. Accordingly in my view the
conviction
on attempted murder cannot stand and must be set aside and
that Appellant should be convicted of assault common.
[15] In regard to
sentence Appellant was 27 years of age, has two minor children aged 1
and 11 and one of the
children stays with him and the other with his
grandmother. Appellant plays a meaningful role in their lives.
He was
employed as a taxi driver.
[16] It appears from
the evidence that there is a long feud in the area about water and
the connecting of pipes
which was confirmed by the Induna and
accordingly it would appear that it is a dispute which has come a
long way. It appears
from the J15 that Appellant was sentenced
on 25 April 2024 and has been in custody since then.
Considering all the facts
of this case it does not appear to me that
Appellant is a person who requires to be prevented from committing
further offences
and therefore it does not seem appropriate to me
that a sentence of which a portion is suspended would be appropriate
in the circumstances.
In my view a sentence of twelve (12) months
imprisonment would be appropriate in the circumstances.
Accordingly the following order is
made:
1.
The appeal against conviction is upheld and the conviction is set
aside and replaced with a conviction
on a count of assault common.
2.
The sentence is set aside and replaced with the sentence of twelve
(12) months imprisonment. The
sentence is antedated to 25 April
2024.
P C BEZUIDENHOUT J.
I agree.
SIWENDU
J.
JUDGMENT
RESERVED ON:
14
NOVEMBER 2025
JUDGMENT
HANDED DOWN ON:
21
NOVEMBER 2025
COUNSEL
FOR APPELLANT:
J
HEUNIS
Instructed
by Justin Heunis & Associates
Ladysmith
Tel:
036 6376690
Email:
jh@jhassociates.co.za
Email:
justinheunis@telkomsa.net
c/o
Carlos Miranda Attorneys
Pietermaritzburg
COUNSEL
FOR RESPONDENT:
A
TRUTER
Instructed
by DPP Pietermaritzburg