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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

                                                                                    Case No: CA & R 22/2019

In the matter between:

DALUBUHLE GINGQI MAKAULA                                               Appellant

and

THE STATE                                                                                   Respondent

JUDGMENT

TOKOTA J:

[1]        The appellant was arraigned in the regional court, Mt Frere, for murder, it being alleged that he did unlawfully and intentionally kill one Olwethu Maham by stabbing him with a knife. He pleaded not guilty but was convicted as charged. He was sentenced to undergo ten (10) years imprisonment two (2) of which were suspended for five years on appropriate conditions. With leave of this court he is now appealing against the conviction.

[2]        The State called one witness, Mr Mkhonzi Mbasane. He testified that on New Year’s Eve, 31 December 2015, they were initially at a tavern called Nopopi and thereafter went to Giwu’s tavern. He was with the deceased. The deceased reported to him that at Nopopi’s tavern appellant had threatened to stab him with a knife. He then suggested to the deceased that they should go to his homestead to get a stick in case someone threatens him again. They could not find the stick. From there they proceeded to Giwu’s tavern.

[3]        At Giwu’s tavern they enjoyed themselves and it was in the evening. At some stage he went out of the house and whilst he was outside he heard someone calling ‘Olwethu’. Olwethu was the deceased.  It was towards the back of the tavern. He went to investigate. When he arrived there he found the appellant and the deceased quarrelling. The appellant was carrying a knife in his hand.  He intervened. The appellant appeared to have listened to him and he put his knife back into his pocket.  He then continued to speak to other people. Whilst he was speaking with other people he again heard an argument between the two and when he turned to look he saw the appellant stabbing the deceased with a knife. The appellant stabbed the deceased on his upper left chest.

[4]        After the appellant had stabbed the deceased he ran away. He then attended to the deceased. The deceased was not armed with anything.

[5]        Under cross-examination he denied that the deceased had an empty bottle. It was put to him that one Lutho Sodladla was there and he saw the deceased hit the appellant with an empty bottle. Lutho Sodladla testified that he did not see who delivered the blow with an empty bottle.  He denied that Lutho Sodladla was at the scene and stated that there was no empty bottle at the scene. It was suggested that Lutho Sodladla would say that the deceased and the appellant pushed each other until they fell on the ground. However, Lutho Sodladla testified that no one fell to the ground. He denied that and said that only the deceased fell after he was stabbed and the appellant jumped over him and ran away.

[6]        It was put to him that the deceased was armed with a knife hence he was not carrying a stick. However, no such evidence was adduced by the defence. He denied this. He could not dispute the fact that deceased was the first aggressor because he did not witness the initial stages of the quarrel. He denied that the deceased had hit the appellant with an empty bottle stating that the appellant had suffered no injuries. He conceded that there was no light where the quarrel was taking place but he could see the shining of the knife of the appellant. Although there was lengthy cross-examination about the knife of the appellant it is common cause that appellant was armed with a knife and he stabbed the deceased with it.

[7]        It was further put to him that the deceased and appellant quarrelled over their ages. It was said that the deceased had claimed that he went to circumcision school first. He then threatened the appellant with a knife. The appellant was scared of the deceased and he decided to leave Nopopi’s tavern and went to Giwu’s tavern. It was put to him that the deceased had grabbed the appellant and spat on his face.

[8]        It was put to him further that at Giwu’s tavern the appellant at about 12 midnight was in the company of one girl outside. The deceased arrived and queried him for being with his cousin by the name of Sinesipho. The appellant was then hit by the deceased with an empty bottle of a drink. The appellant then stabbed the deceased because he was scared of being injured by him. Appellant stabbed the deceased in order to free himself from his (the deceased) hands.

[9]        The appellant gave evidence and called one witness. He testified that on the 31^st of December 2015 he was at Nopopi’s tavern when he met the deceased. They greeted each other after which the deceased asked him if he knew that he was just a young man who had just been circumcised. By this it was understood to mean that the deceased went to circumcision school before the appellant did. Appellant ignored him. The deceased pulled him back, looked at him and spat on his face threatening to stab him with a knife.

[10]      At Nopopi’s tavern he was in company of another man. The man suggested that they should leave the tavern. They left and proceeded to Giwu’s tavern. He remained at Giwu’s tavern until at some stage he went out with a girl and they stood at the back of the tavern. The spot was dark as it had no lights.

[11]      Whilst he was standing with the girl the deceased came to them. He pulled him and pushed him asking what he was doing with his cousin. After pushing him he hit him with an empty bottle on his head. No one could see him being hit with the bottle because it was dark and the other people were on the side where there was light. He pushed the deceased back because he wanted to escape and go home. The deceased pulled him with both his hands in an effort to cause him to fall. He managed to cause him to fall down. Whilst on the ground the appellant took out his Okapi knife from the back pocket and stabbed the deceased once and thereafter ran away. At the time he took out his knife they were both lying on the ground. He was lying on his right side.

[12]      He was cross-examined at length about being able to take out a knife from his back pocket and stab the deceased in circumstances where he was lying on his right side. It was suggested to him that it sounded impossible to take out a knife with the right hand while he was lying on it. He conceded that what was said by the State witness, namely, that he stabbed the deceased whilst they were standing was possible.

[13]      He was challenged on the allegation that the deceased grabbed him with both of his hands whilst at the same time still holding the empty bottle. He said he stabbed him because he was afraid that the bottle could break and the deceased would stab him with it. He said that after they had fallen down he did not know where the bottle was.

[14]      The defence called one witness Lutho Sodladla. His evidence is missing but the magistrate has reconstructed the record. Mr Gwebindlala who appeared for the appellant accepted the reconstruction as reflecting the correct version of Sodladla.  The magistrate recorded the following. Sodladla was with appellant on the date of the incident at Nopopi’s tavern. There the appellant had quarrelled with the deceased. He did not know what the quarrel was about. From there they went to Giwu’s tavern.

[15]      At Giwu’s tavern whilst he was inside the house he was called by a girl called Tyhila. The girl reported to him that appellant was fighting with somebody outside. He went out to investigate and he observed a blow hitting the appellant with an empty bottle on his head. He assumed that it was the deceased who delivered the blow. He could only see the appellant and other people were obscured from his sight. The bottle broke after the blow. He could not describe the type of the bottle because he did not notice anything further as they moved away from his view. The light was not bright. The deceased had his back against him and the appellant was facing the gate. He did not see the appellant running away. According to him the appellant walked away slowly.

[16]      Under cross-examination he initially said he saw the deceased hitting the appellant with an empty bottle and later stated that he was merely assuming that it was the deceased who hit the appellant. He stated that no one fell to the ground. The appellant advanced to the deceased. He stated that the stabbing did not happen in his view and therefore did not know at what stage the deceased was stabbed.

[17]      For the conviction the State relied on the evidence of a single witness. It is well established that the trial court must treat the evidence of a single witness with caution. Section 208 of the Criminal Procedure Act 51 of 1977 provides that an accused may be convicted of any offence on the single evidence of any competent witness.

The position regarding the general approach of the evidence of a single witness has been espoused from time to time by many court decisions. The approach is succinctly set out in S v Madondo and Others[1]:

            'Central to a resolution of this appeal, is a consideration of the approach to be adopted by a trier of fact, when faced with the task of assessing the evidence of a single witness. In an oft repeated dictum, it is said that the evidence of such a witness must be "clear and satisfactory in every material respect", and that where the witness "has an interest or bias adverse to the accused’’[2]the evidence must be approached with caution. . . . In other words, the evidence "must not only be credible but also reliable,"[3]  . . .but it is clear that "There is no rule of thumb, test or formula to apply when it comes to a consideration of the credibility of the single witness,"[4] and "(t)he trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth has been told.'

[18]      Over decades and since the case of Rv Dhlumayo and Another 1948 (2) SA 677(A) at 705 courts have held that a court of appeal will be slow to interfere with a trial court's evaluation of oral evidence. The findings of fact which are made on the strength of such evaluation are presumed to be correct, and, in the absence of a material misdirection, the court will not disturb those findings unless a reading of the record clearly shows that they are insupportable.[5]

[19]      The magistrate acknowledged that he was dealing with a single witness but recorded that the witness’s demeanour was impressive. He recorded that the witness was bold and not hesitant to answer questions. On the other hand it seems that the magistrate rejected the evidence of the appellant and that of his witness as being not reasonably possible true where it did not coincide with that of the State witness.

[20]      The magistrate seems to have found that it was highly improbable that the appellant could be able to draw the knife in the manner he described. He compared the evidence of the defence witness with that of the State witness and found it to be unreliable.  The defence witness testified that he did not see who delivered the blow with an empty bottle; he did not see when the deceased was stabbed. The magistrate seems to have accepted the evidence of the State that the stabbing took place whilst the deceased and the appellant were on their feet. The evidence of Sodladla tallies with that of the State in this regard. He rejected the evidence of an attack with an empty bottle. He reasoned that if an empty bottle was used, as alleged, it would have inflicted injuries and none were sustained. He found that when the appellant stabbed the deceased he was not under any threat.

[21]      The appellant’s defence was that of self-defence. He claims that he was scared that the deceased might hit him again with an empty bottle. He claims that he stabbed the deceased whilst lying on the ground. He conceded, however, that what was said by the witnesses, namely, that the stabbing took place whilst they were standing, was possible even though he was adamant that he was not standing when he stabbed the deceased.

[22]      According to the appellant at the time he stabbed the deceased he did not know whether the deceased was still in possession of the bottle.

In his evidence in chief the following is recorded:

“MRGWEBINDLALA: Oh... (inaudible) if the State can...(inaudible) come and say you were not in danger, what would you say?

ACCUSED: I was in danger, because he had hit me with an empty bottle.

MR GWEBINDLALA: What else did you fear while on the ground?

ACCUSED:I was afraid because he had threatened to stab me before.”

In cross-examination the prosecutor put it thus:

“PROSECUTOR: All right I put it to you Sir, that you were facing no danger, when you fell with the deceased person, by the time you stabbed him?

ACCUSED: I was in danger, because in my mind I thought that he would hit me with the empty bottle again, and it could break and he would have something to stab me with.

PROSECUTOR: So he had no knife in his possession?

ACCUSED:I wouldn’t say so, because he had threatened to stab me before.”

The record continues:

“PROSECUTOR: And as at this stage, you did not know where was this litre of bottle, after you’ve just fallen down now?

ACCUSED: Yes.”

From the above it is clear that the fear about the bottle was not clearly established.

Facts which are common cause

[23]      The following material facts are common cause

(a).      The deceased, appellant and Mbasane and possible Sodladla         were at the Giwu tavern;

(b).      The appellant was armed with an Okapi knife.

(c).       The deceased and the appellant had an argument outside the         tavern during the night of 31 December 2015.

(d).      As a result of the argument the appellant stabbed the deceased       with his Okapi knife on the left chest and thereafter left the scene.

(e).      The deceased died of the stab wound caused by the appellant.

Facts in dispute:

1.         That the deceased was armed with an empty bottle.

2.         That the deceased delivered a blow on the appellant’s head.

3.         Whether the bottle, if any, broke after the deceased allegedly            delivered a blow.

4.         Whether the appellant stabbed the deceased whilst on the ground in order to free himself.

5.         Whether the life of the appellant was under threat when he stabbed the deceased.

[24]      The State witness testified that the deceased was not armed with any empty bottle and that there was none at the scene. The appellant and his witness testified that there was a bottle. The State witness denied that the deceased delivered any blow on the appellant with an empty bottle. Appellant testified that the deceased delivered a blow with the bottle but it did not break. The defence witness initially testified that the deceased delivered a blow on the head of the appellant and the bottle broke but later said he assumed that it was the deceased who delivered the blow. The State witness testified that there was no such bottle. In my view the, regard being had to these contradictory statements, magistrate correctly ignored the story of an empty bottle.

[25]      It is obvious, as the magistrate found, that the State witness gave a clear and satisfactory evidence. The material parts of his evidence were corroborated by either the appellant or his witness. The story of an empty bottle was subject to contradictory versions. The defence version is not clear as to whether the bottle was used by the deceased. What is clear from the version of the appellant is that at the time he stabbed the deceased the bottle was not visible.

[26]      The requirements for private defence are well settled. The attack upon the person who is acting in private defence must be unlawful; it must be directed at an interest which legally deserves to be protected; and be imminent, but not yet completed.[6]  The defence must be necessary in order to protect the interest threatened; there must be a reasonable relationship between the attack and the defensive act; and the person attacked must be aware of the fact that he/she is acting in private defence.

[27]      In S v De Oliveira[7] Smalberger JA stated the test for self-defence was formulated as follows:

            'The test for private defence is objective — would a reasonable man in the position of the accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E).'

[28] The learned judge proceeded in setting out the legal position in respect of putative self-defence as follows:

            ''In putative private defence it is not lawfulness that is in issue but culpability (''skuld''). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person's death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.'

[29]      In my view the story of an attack by means of an empty bottle has not been established by the appellant. Even if there was such a bottle, on his own version, he has not established that his life was in danger at the time when he stabbed the deceased. Furthermore even if it is accepted that there was, at some stage, an attack by means of an empty bottle the means used to thwart such an attack were not reasonable in relation to the defensive act.

[30]      It has been submitted that the appellant believed that he was in danger. He used the knife in order to thwart the danger. In my view there is no factual basis for the belief that appellant’s life was in danger. In my opinion even though the deceased and the appellant were involved in a fight the use of a lethal weapon was not warranted. Appellant ought to have foreseen that having aimed at the upper body of the deceased a fatal blow would cause death. In my view his defensive means was retributive and not deterrent in the circumstances of this case. Generally there is a natural inference that a person intends the probable consequences of his actions. The appellant was required to establish at least a factual foundation for his alleged genuine belief of an imminent attack upon him. He failed to do so.

[31]      Notwithstanding the above, the rhetorical question is; can it be said that appellant intended to kill the deceased? As stated above appellant said he stabbed the deceased because he feared that the deceased might stab him with the bottle. This was correctly rejected by the magistrate. However what is clear is that appellant stabbed the deceased once and ran away.

[32]      I am not persuaded that it was reasonable for the appellant to direct a stabbing movement with an Okapi knife towards the deceased’s upper body. There were other alternatives available to the appellant which he could have explored. He could have aimed the blow at the lower body or used any other means short of directing the stabbing movement towards the deceased's upper body. The appellant testified that when he stabbed the deceased he did not see the bottle. It follows that even if the appellant was faced with a situation in which he was being allegedly assaulted and had to retaliate in order to protect himself, he ought to have foreseen the possibility that by directing the knife towards the deceased's upper body, this might kill him.

[33]      Adv Trietsch for the State submitted that the State has proved that the appellant intended to kill the deceased and therefore we should not interfere with the conviction. In my view the manner in which this offence was committed does not indicate an intention to kill. The deceased was stabbed once and the appellant ran away. It may be argued that when he directed his stabbing movement towards the upper body of the deceased he must have foreseen the possibility of death but reconciled himself with that possibility. In S v Humphreys  2013 (2) SACR 1(SCA) (2015 (1) SA 491; [2013] ZASCA 20) paras 12 – 17 the Supreme Court of Appeal considered whether murder in the form of dolus eventualis had been proved and said:

            'In accordance with trite principles, the test for dolus eventualis is    twofold:

            (a)       Did the appellant subjectively foresee the possibility of the death of his passengers ensuing from his conduct; and

            (b)       did he reconcile himself with that possibility. . . .'

            For the first component of dolus eventualis it is not enough that the appellant should (objectively) have foreseen the possibility of fatal injuries to his passengers as a consequence of his conduct, because the fictitious reasonable person in his position would have foreseen those consequences. That would constitute negligence and not dolus in any form. One should also avoid the flawed process of deductive reasoning that, because the appellant should have foreseen the consequences, it can be concluded that he did. That would conflate the different tests for dolus and negligence...”

            . . .

The second element of dolus eventualis is reconciliation with the foreseen possibility of harm. Jansen JA in S v Ngubane 1985 (3) SA 677 (A) at 685A – H explained this in the following way:

                        "A man may foresee the possibility of harm and yet be negligent in respect of that harm ensuing, eg by unreasonably underestimating the degree of possibility or unreasonably failing to take steps to avoid that possibility. . . . The concept of conscious (advertent) negligence (luxuria) is well known on the Continent and has in recent times often been discussed by our writers. . . .

                        Conscious negligence is not to be equated with dolus eventualis. The distinguishing feature of dolus eventualis is the volitional component: the agent (the perpetrator) 'consents' to the consequence foreseen as a possibility, he 'reconciles himself' to it, he 'takes it into the bargain'. . . .

The true enquiry under this rubric is whether the appellant took the consequences that he foresaw into the bargain; whether it can be inferred that it was immaterial to him whether these consequences would flow from his actions. Conversely stated, the principle is that if it can reasonably be inferred that the appellant may have thought that the possible collision he subjectively foresaw would not actually occur, the second element of dolus eventualis would not have been established.”

[34]      In this matter the appellant had a choice to apply the less risky method of defending himself if he was under attack as he claimed. The evidence is that at the time he stabbed the deceased the bottle allegedly in his possession was not visible. In my view he was negligent in stabbing the deceased in the upper body where there are delicate organs. He could have easily avoided the harm he caused but he failed to take steps to avoid the death. He delivered one blow and ran away.

[32]      In all the circumstances I am of the view that the appellant should have been convicted of culpable homicide. The appeal must therefore succeed to this extent.

[33]      The result of this finding must of necessity have an impact on sentence. Although there is no appeal against sentence appellant was sentenced on the basis of murder. The sentence must therefore be considered afresh.

[34]      In mitigation of sentence very little was said by his legal representative. It was stated that the appellant is a first offender; He is attending school; He is youthful. According to the charge sheet it is recorded that he was 18 years old when he committed the offence.

[35]      In considering the appropriate sentence it must be borne in mind that appellant showed no remorse for what he did. He persisted with his innocence even after conviction. His legal representative instead of placing before the magistrate mitigating circumstances he somewhat threatened him with an appeal. I quote from the record to demonstrate.

“Your Honour with respect maybe at a later stage, it will be argued that the State did not actually prove the intention to murder because the accused at all the evidence at Nopopi he was approached by the deceased and that is not gainsaid. Even at Giwu Tavern it is not gainsaid that he was approached by the deceased. I submit Your Honour with respect that the accused would not be treated as such as criminal who came from home who wanted to stab the deceased.” (My underlining)

I may mention that in my view it is highly improper and undesirable of an officer of the court to persist, after conviction, with argument tending to show that the judicial officer was wrong instead of simple mitigate on behalf of his client and thereafter use the proper channels of appeal.  An appeal is a platform through which a judicial officer can be criticised. Legal representatives are expected to place before the court, in the interests of their clients, all mitigating factors, not only for the benefit of the trial court, and, if they intend taking up the matter, for the appeal court as well.

[36]      With regard to youthfulness it was argued before the magistrate that since the appellant is youthful his age should be taken into account as one of the factors in mitigation of sentence. In this regard I can do no better than simply refer to the judgment of S v Matyityi  2011 (1) SACR 40(SCA) at pp.47-48 para.14 where the learned Judge of Appeal said:

“It is trite that a teenager is prima facie to be regarded as immature and that the youthfulness of an offender will invariably be a mitigating factor, unless it appears that the viciousness of his or her deeds rules out immaturity. Although the exact extent of the mitigation will depend on all of the circumstances of the case, in general a court will not punish an immature young person as severely as it would an adult. It is well established that, the younger the offender, the clearer the evidence needs to be about his or her background, education, level of intelligence and mental capacity, in order to enable a court to determine the level of maturity and therefore moral blameworthiness. The question, in the final analysis, is whether the offender's immaturity, lack of experience, indiscretion and susceptibility to being influenced by others reduce his blameworthiness. Thus, whilst someone under the age of 18 years is to be regarded as naturally immature, the same does not hold true for an adult. In my view a person of 20 years or more must show by acceptable evidence that he was immature to such an extent that his immaturity can operate as a mitigating factor...” (Footnotes omitted)

[37]      No attempt was made to adduce evidence that the appellant was immature at the time he committed the offence. The statutory provision is that a child is a person who is under the age of 18 years. The appellant went about in the taverns armed himself with an Okapi knife. He committed a serious offence. He needed to give evidence to show his immaturity to sustain his youthfulness.

[38]      In the circumstances the following order will issue:

1.         The appeal succeeds to extent set out below:

2.         The conviction and sentence on murder are set aside and           replaced with the following:

“The accused is found guilty of culpable homicide;

The accused is sentenced to undergo eight (8) years imprisonment, two (2) years of which is suspended for a period of five (5) years on condition that the accused is not convicted of culpable homicide, or any other offences involving violence committed during the period of suspension.”

3.         Accused is further declared unfit to possess a firearm in terms of Section 103 (1) of the Firearms Control Act 60 of           2000.

4.         The sentence is antedated to 10 December 2018.

___________________________

B RTOKOTA

JUDGE OF THE HIGH COURT

I AGREE

__________________

F DAWOOD

JUDGE OF THE HIGH COURT

APPEARANCES:

For the appellant: V Gwebindlala

Instructed by V Gwebindlala & Associates

For the respondent: D Trietsch

Instructed by DPP

Date of Hearing 13 August 2020

Date delivered:

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