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MHLANGANYELWA MKHIZE / THE STATE

SMALBERGER, JA :-
7/86 N v H

7/86 N v H

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

MHLANGANYELWA MKHIZE Appellant
and
THE STATE Respondent

CORAM: TRENGOVE, SMALBERGER, JJA,

et NICHOLAS, AJA.
HEARD: 22 AUGUST 1986
DELIVERED: 28 AUGUST 1986

JUDGMENT

SMALBERGER, JA :-

On. the night of 31 December 1984 Elias
Manqguzu Ngidi (the deceased) was fatally shot while walking along a, dirt road at Taylor's Halt in the district of Pieter= maritzburg. The bullet which caused his death penetrated his

heart /
2
heart and both lungs. As a sequel to this incident the

appellant appeared before BOOYSEN, J, and two assessors in the

Natal Provincial Division on charges of (i) murder, (ii)

unlawful possession of a firearm, and (iii) unlawful possession

of ammunition. He was convicted on all three counts. In

relation to the murder count no extenuating circumstances were

found, and the appellant was sentenced to death. On the

other two counts he was sentenced to periods of imprisonment.

With leave of the Court a quo the appellant appeals against his

conviction and sentence for murder, including the finding that

there were no extenuating circumstances.

I do not deem it necessary to set out the evidence

given at the trial by the various witnesses. Suffice it to

say that the trial Court accepted the evidence for the State

that /......

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that on the night in question the appellant fired two shots at or in the direction of the deceased from a range of approxima= tely four paces. One of the shots fired struck and fatally wounded him. The trial Court rejected the appellant's denial that he had shot the deceased. In doing so it made strong findings on credibility against the appellant, and in favour of the State witnesses. In assessing the evidence on the merits, the trial Court had due regard to the seemingly motiveless shooting of the deceased by the appellant. In this respect the State witnesses were unable to refute the appellant's assertion that the deceased was a total stranger to him. I am unpersuaded that the trial Court misdirected itself in any respect in arriving at its decision. Nor has it been shown to have overlooked any relevant facts or probabi=

lities /

4
lities, or to have erred in its assessment of the credibility of the witnesses. Accordingly no reason exists to differ from its findings underlying the appellant's conviction. It was conceded by the appellant's counsel (correctly, in my view) that on an acceptance of the State evidence the requisite intent to kill had been established. In the result the appellant was correctly convicted of murder.

The only ground of extenuation advanced by the

appellant was that of intoxication. The trial Court held on the evidence that the appellant had failed to establish on the requisite balance of probabilities that at the time of the shooting of the deceased he was under the influence of liquor to an extent sufficient to reduce his moral blameworthiness. The appellant claimed that he had consumed a reasonably sub=

stantial /

5
stantial quantity of liquor prior to the shooting, and described his condition as "quite warm". He is supported in this regard by his wife, although there are material differences in their evidence which detract from its accep= tability. The State evidence, while to the effect that the appellant was not under the influence of liquor, or not significantly so, is somewhat inconclusive. The circumstances of the shooting are of paramount importance in determining the appellant's condition. The completely unpremeditated and seemingly motiveless shooting of the deceased in the presence of witnesses was totally irrational. The trial Court does not appear to have given due weight to this circumstance. Although the case is close to the borderline the probability, having regard to the appellant's conduct, is that his mental

faculties /

6
faculties and judgment were clouded by the consumption of alcohol to an extent sufficient to reduce his moral blame= worthiness. The fact that the incident occurred on Old Year's Eve, when the consumption of alcohol is normally prevalent, tends to support such an inference. I am accordingly of the view that the appellant established the existence of extenuating circumstances on the requisite balance of probabilities. It follows that the appellant should have been convicted of murder with extenuating cir= cumstances. The death sentence is therefore not compulsory, and it would be appropriate to set it aside and substitute in its stead a sentence of imprisonment.

The /......

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The appeal succeeds- The appellant's conviction

is altered to murder with extenuating circumstances.

The death sentence is set aside, and in its stead is sub=

stituted a sentence of 12 years imprisonment.

J V SMALBERGER JUDGE OF APPEAL

TRENGOVE, JA ) NICHOLAS, AJA )

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