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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION. PRETORIA)

CASE NO: A621/2016

DATE: 22/11/2017

Not reportable

Not of interest to other judges

22/11/2017

IN THE MATTER BETWEEN:

NKOSINATHI GERALD MBATHA                                                                        Appellant

and

THE STATE                                                                                                       Respondent

 

JUDGMENT

 

PHIYEGA (AJ):

1.

The matter before us came as an appeal from the Regional Court sitting in Benoni, Gauteng. The Appellant was arraigned on two charges, namely a charge of murder and one of robbery with aggravating circumstances. The Appellant pleaded not guilty to both the charges.

2.

In pleading not guilty to the charge of murder, the Appellant, in his plea explanation, informed the Court that when he stabbed and killed the deceased he was acting in private defence.

3.

The court a quo, after a careful analysis of the evidence, found the Appellant guilty on the charge of robbery with aggravating circumstances. On the charge of murder the accused was instead found guilty of culpable homicide, which is a competent verdict to murder. The Appellant was sentenced to eight (8) years imprisonment on the culpable homicide conviction and to fifteen (15) years imprisonment on the robbery with aggravating circumstances conviction. The court a quo ordered that three years of the sentence of eight years levied against the Appellant in respect of the conviction of culpable homicide should run concurrently with the fifteen years imprisonment levied in respect of the conviction on robbery with aggravating circumstances, with the result that the Appellant is to serve an effective twenty (20) years imprisonment.

4.

The Appellant applied for leave to appeal against the conviction and sentence on both charges. The Court a quo granted leave to appeal only in respect of the culpable homicide conviction.

5.

As the current appeal is only in regard to the conviction on culpable homicide, the issues relating to the conviction in relation to robbery with aggravating circumstances are not discussed any further herein.

6.

The grounds of appeal are that the Court a quo misdirected itself in convicting the Appellant on culpable homicide. It is contended on behalf of the Appellant that the actions of the Appellant are that of a person who was defending himself against an attack by the deceased and that as such, his actions were not unlawful. It was contended that because the Appellant was defending himself lawfully against an attack by the deceased, he should not have been found guilty and that the Court a quo misdirected itself in convicting him of culpable homicide.

7.

The State called a single witness to testify against the Appellant. The Court a quo rejected this witness's evidence and also rejected the Appellant's evidence. Instead, the evidence of a certain Dumisani Norman Khoza, who was called by the defence to testify on behalf of the Appellant, was accepted.

8.

The court a quo relied on the evidence of the Appellant and the witness Khoza in convicting the appellant. Khoza happened to be in the tavern or tuck shop at the time the deceased and the Appellant were fighting. He, as a result, had the opportunity to observe and see what happened.

9.

The evidence of the Appellant and the witness Khoza was to the effect that the deceased, the Appellant and other people were playing dice and that the Appellant spilled some of the deceased's beer or drink. The deceased took exception to his drink being spilled and demanded that the Appellant reimburse him for the spillage.

10.

The appellant tried to calm things down by informing the deceased that he would purchase some tonic water and cigarettes for the deceased. The deceased and the Appellant walked in the direction of a tavern or tuck shop where the Appellant was to purchase the tonic water and cigarettes .The evidence was that there was a scuffle and some pulling and pushing between the Appellant and the deceased at the time when the Appellant walked to the tavern to buy the tonic water and cigarettes.

11.

The evidence of the witness Khoza was to the effect that when the Appellant emerged from the tavern or tuck shop, the deceased was waiting for the Appellant at the gate of the tavern and was armed with a knife.

12.

According to the witness Khoza, the Appellant was about to strike the deceased with a beer bottle. Someone took the beer bottle from the Appellant. The Appellant then hit the deceased with the tonic water bottle which he had in his possession. On being hit with the tonic water bottle, the deceased's concentration was diverted from the Appellant and towards the bottle that had hit him. It was at this time when the deceased was concentrating on the tonic water bottle, that the Appellant disarmed him of the knife that he had in his possession. The Appellant then used the same knife to stab the deceased twice before anyone could intervene to separate them.

13.

I reiterate that the Court a quo accepted the evidence of Khoza in convicting the Appellant. The court a quo is correct to have accepted the evidence of Khoza and to have rejected that of the Appellant. Khoza was an independent witness. He did not know the deceased and only knew the Appellant by sight. He was called to testify by the Appellant's mother. Before he testified he had not talked to the Appellant, or the Appellant's mother. He happened to be on the scene of the crime at the time in question.

14.

The issue that has to be determined is whether the Appellant was justified in stabbing the deceased after he had disarmed him of the knife that the deceased had in his possession? Put otherwise, when the Appellant stabbed the deceased, was he still in danger of being harmed by the deceased such that he had to inflict the stab wounds that led to the death of the deceased?

15.

The Appellant relies on private defence as a defence for his actions. It is therefore incumbent on us sitting as a court of appeal to determine whether the Appellant's actions pass muster as being consonant with private defence.

16.

Private defence is defined by C R Snyman, in Criminal Law Sixth Edition at page 102, as follows:

"A person acts in private defence, and her act is therefore lawful if she uses force to repel an unlawful attack which has commenced or is imminently threatening upon her or somebody else's life, bodily integrity, property or other interest which deserves to be protected, provided that the defensive act is necessary to protect the interest threatened, is directed against the attacker, and is reasonably proportionate to the attack".

The test for private defence was stated by the Appellate Division, as it then was, in STATE v NTULI 1975 (1) SA 429 (AD) 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"

The above test has been applied by the courts in numerous cases such as MUGWENA AND ANOTHER v MINISTER OF SAFETY AND SECURITY 2006 (4) SA 150 (SCA) at 157J-1580:

"Self-defence, which is treated in our law as a species of private defence, is recognised by all legal systems. Given the inestimable value that attaches to human life, there are strict limits to the taking of life, and the law insists upon these limits being adhered to.

'Self-defence takes place at the time of the threat to the victim's life, at the moment of the emergency which gave rise to the necessity, and, traditionally, under circumstances in which no less severe alternative is readily available to the potential victim (Per Chaskalson Pin S v Makwanyane and Another [1995] ZACC 3; 1995 (3) SA 391 CC...at para (138].

Homicide in self-defence is justified if the person concerned

'...had been unlawfully attacked and had reasonable grounds for thinking that he was in danger of death or serious injury, that the means he used were not excessive in relation to the danger, and that the means he used were the only or least dangerous whereby he could have avoided the danger'.

(R v Attwood 1946 AD 331 at 340.)

The test is an objective one. The question to be answered is whether a reasonable person in the position of (the appellant) would have considered that there was a real risk that death or serious injury was imminent".

The requirements for a successful reliance on private defence were stated as follows in EHRKE v S (A 1068/2009) [2012] ZAGPPHC 189 (23 August 2012) at paragraph 12:

"The use of force which would ordinarily be criminal is justified if it is necessary to repel an unlawful invasion of person, property or other legal interest. Since the right to use force in these circumstances not only goes beyond the defence of life and limb but also extends to the protection of a third party, the term 'self-defence' is too narrow and private defence is preferred.

(South African Criminal Law and Procedure, Val 1 - General Principles: Burchell and Hunt Second Edition P 322.)

The requirements of private defence are that:

1. there must be an unlawful attack

2. upon a legal interest

3. The attack must have commenced or must be imminent.

The defence must be:

1. directed against the attacker

2. necessary to aver the attack.

3. one where reasonable means are used to avert the attack. However, in Ex Parte Minister of Justice: In re S v Van Wyk 1967 (1) SA 488 (A) Steyn CJ, as he then was, disapproved of the test of proportional retribution as the yard stick "

17.

Using the above and looking at the actions of the Appellant the following may be taken as proved: namely that at the time when the Appellant fatally stabbed the deceased, the deceased had been disarmed of the knife which could have been used to stab the Appellant. As the learned trial Magistrate remarked, the Appellant could have used his hands to continue with the fight instead of killing the deceased, who was no longer in possession of a weapon when he was stabbed to death.

18.

The Appellant's actions cannot be regarded as being aimed at protecting any lawful interest in the form of his bodily integrity. The attack by the Appellant on the deceased came after the deceased had been rendered neutral by having been disarmed. In the circumstances the Appellant's attack was unnecessary and would have been unlawful when it was launched. The court a quo also accepted the evidence of Khoza, correctly so, that the deceased did not hold on to the t-shirt of the Appellant and that it was not necessary for the Appellant to stab the deceased.

19.

However, it is necessary to determine whether the Appellant acted with the necessary intention to kill or whether, when he stabbed the deceased, he was genuinely under the misapprehension that he was entitled to defend himself? We have already come to the conclusion that the Appellant's attack on the deceased was unnecessary and as such rendered the killing of the deceased unlawful.

20.

However, the evidence of the Appellant and the witness Khoza, relating to their belief that the appellant was justified in stabbing the deceased to death, deserves to be considered in order to determine whether the actions of the Appellant amount to putative defence. If we conclude that the Appellant was under a genuine misapprehension that he was defending himself, the conclusion would be that he lacked the necessary culpability to be convicted of murder. The belief of the Appellant is instructive in that it shows that he believed that he was justified in stabbing the deceased to death. For example, Khoza told the court "the deceased was waiting outside with a knife. It means that he was waiting to fight with the accused, Your Worship." The Appellant believed that he was defending himself against the deceased. He told the court a quo "if a person is waiting for you with a knife and we have just had a fight, it is either I defend myself from him or he hurts me".

21.

The above quotes attributed to the Appellant and the witness Khoza indicate a state of mind, genuinely held, that resorting to private defence was necessary. Although such a belief does not pass muster as private defence, it is genuinely held and shows that culpability might be lacking on the side of the Appellant.

22.

The difference between private defence and putative private defence was enunciated in the following manner by the Appellate Division in S v DE OLIVEIRA 1993 (2) SACR (A) at 63H-64A:

"From a juristic point of view the difference between these two defences is significant. A person who acts in private defence acts lawfully, provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limits. The test for private defence is objective - would a reasonable man in the position of the accused have acted in the same way ... In putative defence it is not lawfulness that is in issue but culpability. 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 do/us 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.

23.

In casu and objectively considered, the deceased no longer posed a danger to the Appellant. However, the Appellant genuinely held a belief that he was entitled to defend himself against the deceased and was justified in stabbing the deceased to death. This cannot be ignored when the culpability of the appellant is being considered. The fact that the Appellant believed that he had to defend himself against the deceased when he stabbed the latter to death was putative in nature. The belief that he was justified in defending himself, even though it is, objectively considered, unlawful, is sufficient to exclude culpability on the part of the Appellant.

24.

On the basis that the Appellant lacked culpability when he killed the deceased, it is submitted that the Appellant cannot be convicted of murder. However, the fact that the Appellant should not be convicted of murder because of his lack of culpability, does not absolve him of the need to have acted with the necessary caution expected of a reasonable person in his position.

25.

The Appellant should have considered the possibility that his actions could lead to the death of the deceased. A reasonable person in the position of the Appellant would have realised that his actions could result in the death of the deceased and would have taken steps to avoid killing the deceased. By not taking such caution the Appellant was negligent in causing the death of the deceased.

26.

In my view the Appellant was properly convicted of culpable homicide. I make the following order

 

ORDER

The appeal is dismissed.

 

EM PHIYEGA

Acting Judge of

the High Court

 

I AGREE AND IT IS SO ORDERED,

 

E M KUBUSHI

Judge of

the High Court

Heard on: 09 October 2017

 

Legal Representatives:

For the Appellant:                          H. Steynberg

Instructed by:                                 Legal Aid South Africa

For the Respondent:                      Adv. F W van der Merwe

Instructed by:                                 Director of Public Prosecutions

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