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JAMES SHENXANE and THE STATE
SMALBERGER, JA -
360/85 N v H
360/85
N v H
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
JAMES SHENXANE Appel1ant
and
THE
STATE Respondent
CQRAM: JANSEN, JOUBERT, et SMALBERGER, JJA
HEARD: 20 MARCH 3986
DELIVERED: 25 MARCH 1986
J U D G M E N T
SMALBERGER, JA :-
The appellant was convicted of murder in
the Witwatersrand Local Division
by LE GRANGE, J, and two
assessors/
2
assessors. Extenuating circumstances were found to be
present, and he was sentenced to 12 years imprisonment.
The appellant was refused leave to appeal against his
conviction by the Court a quo, but was subsequently granted
such leave by this Court.
The appellant's conviction arose out of the
death of one Noah Nzeku (the deceased) on 12 October 1983.
The appellant was charged with the deceased's murder
together with his younger brother, Philip. At the con=
elusion of the trial the latter, for reasons which are not
relevant to the present appeal, was convicted of assault
with intent to do grevious bodily harm, and sentenced to
5 years imprisonment.
It is /......
3
It is common cause that on the night of his
death the deceased attended a "stockvel" at house
2121 Mohlakeng, Randfontein. He was apparently in good
health and had no injuries apart from a recently acquired
but relatively minor wound over one eye. According to
the State witnesses the appellant arrived at the house in
question shortly after 9 p m in the company of Philip and
one Sipho. The purpose of their visit appears to have
been related to an incident which occurred two days pre:
viously when the deceased stabbed Philip in the course of
an altercation. The State evidence reveals that Philip
and Sipho initially entered the house and called or beckoned
to the deceased to come outside. He refused to do so.
The /......
4
The appellant then entered the house. He had in his
possession a plastic bottle or container which by all
accounts must have contained an acid-like substance.
Words passed between the deceased and the appellant before
the 1atter sprayed some of the contents of the container
into the face of the deceased. The deceased screamed
with pain, and fell to the ground. As he did so a clasp
knife fell from his trouser pocket. The State witnesses
differ as to whether the knife was open or closed, but the
difference is of no real consequence. The knife was picked
up by the appellant. The deceased was taken outside by
Philip and Sipho where the appellant proceeded to stab the
deceased with the knife he had picked up. One witness
testified to the appellant stabbing the deceased five times
on /.......
5
on or in the region of his back; another to the appellant
stabbing the deceased "many times" on the back. A third
witness observed the deceased being stabbed in the chest
a number of times, but as it was relatively dark outside
and the deceased was lying on the ground at the time it is
conceivable, as found by the Court a quo, that the witness
was mistaken in his belief that the deceased was lying on his
back rather than his stomach when he was stabbed. After
he had been stabbed the deceased got up and ran away.
The appellant, Philip and Sipho left the scene after
admonishing those present not to mention what had occurred
The appellant and Philip advanced a different
version of the events which occurred. Both claimed that
Philip remained outside and never entered the house
According /.......
6
According to the appel1ant, he went inside to ascertain
from the deceased why he had stabbed Philip earlier in the
week. While he was speaking to the deceased someone behind
him (the appel1ant} threw or squirted 1iquid into the face
of the deceased. At the time he thought the 1iquid was beer
or water, but he subsequently realised that it was in the
nature of an acid. The deceased put his hand into his
trouser pocket and produced an open knife. The appel1ant
grabbed hold of the hand in which the knife was. A number
of other people intervened in an attempt to wrest the knife
from the deceased's grasp. In the ensuing struggle the
deceased was dragged outside with the appel1ant stil1
clutching the deceased's hand holding the knife. Outside
the house the appellant fell, and the deceased fell on top
of /......
7
of him. The appellant managed to dispossess the deceased
of his knife. The deceased held on to the appellant with
his arms around the appellant's upper body. In order to
free himself the appellant stabbed the deceased "two or
three times" in his lower back. The deceased let go of him,
and the appel1ant got up. The deceased did likewise, and
then ran away.
It is not disputed that some time later the
deceased was found lying outside the house of a certain
Mrs Mmoledi. She lives at house 2068 Mohlakeng, a relative=
ly short distance from house 2121 where the stabbing occurred
She thought he was drunk, and sent a message with some
children to his parents who lived in the same street.
The deceased's brother, Daniel, went to Mrs Mmoledi's house
in /.....
8
in response to her message. The time was 10.15 p m.
He found the deceased and shone a torch on to him. The
deceased was lying on his stomach. His back was ful1
of blood but he did not appear to be dead. He examined
the deceased's back and observed what appeared to be five
deep stab wounds on his back. He also noticed a dark
discolouration of his face. He covered the deceased with
a blanket. An ambulance later arrived to remove the
deceased. When the blanket was taken off, some of the
flesh on the deceased's face came off with it. He also
observed that some skin had come off his right eyelid.
The ambulance driver testified that the deceased was dead
on his arrival at the scene. The deceased was 1ying on
his stomach. He examined the body. He found that the
deceased /......
9
deceased had "four or five" stab wounds on his back,
one
of which was "a big wound on the left side on the ribs".
On turning the deceased over onto his back he found that
his face was discoloured, and the flesh had been burnt
with "something like acid". When he held the deceased's
head some of his hair came off. The deceased was removed
to hospital where he was certified dead on arrival. The
doctor who so certified him was unable to recall what
injuries he had.
The State did not call as a witness the district
surgeon who conducted the post mortem examination on what
purported to be the body of the deceased. After the
defence case the Presiding Judge ca1led him in response to
a suggestion by state Counsel that he do so. The district
surgeon /.......
10
surgeon testified to having conducted a post mortem
examination on a body identified to him as that of the
deceased. He found the cause of death to be a stab
wound of the back which had penetrated the chest cavity.
The body, which he professed to have examined careful 3 y,
had no other injury of any description. It is abundantly
apparent, having regard to the totality of the evidence,
that the body on which he conducted his examination was not
that of the deceased even the appel1ant admitted
inflicting more than one injury on the deceased's back.
How this regrettable state of affairs arose is not apparent
from the evidence. It need scarcely be emphasized that not
only should extreme care be exercised when label1ing and
identifying bodies for post mortem examination purposes,
but /.......
11
but the post mortem examination itself should be conducted
with care and a proper attention to detail. Failure to do
so could result in a failure of justice.
The Court a quo accepted the evidence of the
State witnesses as outlined above, and rejected that of
the appellant as false. In doing so the Court was alive
to the existence of certain discrepancies in the evidence of
the various State witnesses who testified to the events
preceding and concerning the actual stabbing, but held that
they were not "of a sufficiently serious nature as to cast
doubt on the veracity of any one of these witnesses".
The Court found the appel1ant's evidence to be improbable
in a number of material respects, and that his version of
the stabbing amounted to "a fanciful story". It has not
been /.......
12
been shown that the Court a quo misdirected itself in any
respect, or overlooked any relevant considerations, in
accepting the State evidence and rejecting that of the
appellant - indeed, its findings appear to be amply borne
out by the evidence .
The on]y remaining issue is whether it has been
proved beyond all reasonable doubt that the deceased died
as a result of the assault upon him by the appellant, in
other words, whether the necessary nexus has been established
between the injuries inflicted on the deceased by the appel=
lant, and the former's death. This is a matter which, in the
absence of medical evidence of the precise cause of the
deceased's death, must be determined by inference from the
proven facts.
There /......
13
There is no evidence to suggest that the deceased
sustained any further injury after being assaulted by the
appellant. The observations of the deceased's brother,
Daniel, and the ambulance driver dovetail with the evidence
of the witnesses to the assault, and rule out any question
of the deceased having been stabbed further after such
assault. To suggest that the deceased may have fallen
and injured himself when jumping over a fence while running
away - so severely as to cause his death - is fanciful in
the extreme, and this contention, advanced in the appellant's
heads of argument, was properly abandoned in the course of
argument.
The deceased was a young man, apparently in good
health. Prior to the assault upon him the only injury he
had /
14
had was a relatively minor one above his one eye. He was
subjected to a severe and vicious assault. Although the
precise nature, depth and location of the deceased's wounds
were not established by expert medica1 evidence, the lay
evidence suggests that they were deep and of a serious
nature. It is a matter of common experience that stab
wounds of the back frequently result in death. On the
evidence the deceased probably died within an hour of the
assault upon him. Bearing in mind that what is needed is
proof beyond all reasonable doubt - not proof beyond all
shadow of a doubt - I am satisfied that the only reasonable
inference to be drawn from the considerations and evidence
I have referred to is that the deceased died in consequence
of the assault upon him by the appellant. It is not
disputed /.......
15
disputed that on the State's version of the facts the
appellant was shown to have had the requisite intent to
kill.
In the result the appeal is dismissed.
SMALBERGER, JA
JANSEN, JA ) JOUBERT, JA ) C0NCUR
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