THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 079/2008

In the matter between

MMBENGWA ALFRED NESANE                                         Appellant

and

THE STATE                                                                           Respondent

Neutral Citation: Nesane v The State (079/2008) [2008] ZASCA 122
(26 September 2008)

CORAM:
Mthiyane, Maya JJA et Boruchowitz AJA

HEARD:

1 September 2008

DELIVERED:
26 September 2008

Summary:            Criminal law – appellant convicted of wife’s murder –
intention to kill not proved – conviction substituted
with that of culpable homicide – sentence of eight
years’ imprisonment antedated to the date of sentence
imposed.

ORDER

On appeal from: High Court, Thohoyandou (Lukoto J sitting as court of first
instance).

1. The appeal is upheld.
2. The conviction and sentence are set aside and the order of the court below is
substituted for the following:

‘The accused is found guilty of culpable homicide. He is sentenced to undergo
eight years’ imprisonment antedated to 26 January 2001. I addition he is
declared unfit to possess a firearm.’

_____________________________________________________________________

JUDGMENT
___________________________________________________________
MAYA JA (MTHIYANE JA and BORUCHOWITZ AJA concurring)

[1] The appellant was convicted of the murder of his estranged wife,
Cecilia Elelwani Nesane (the deceased) by the Venda High Court (Lukoto
J). He was sentenced to 45 years’ imprisonment and declared unfit to
possess a firearm. He appeals against both conviction and sentence with
the leave of this court.

[2] That the appellant fired the shot which killed the deceased was not
in issue. What was in contention was whether or not the shooting was
intentional.

[3] The deceased was last seen alive by her mother, Mrs Gladys
Ntsandeni, with whom she stayed at her maiden home around 09h00 on
17 June 2000. She was taking her four-year old mute boy, born of her
marriage to the appellant, to a speech therapist. She never returned home
and calls to her cellular phone went unanswered. At about 16h45 on the
following day the local police received a report from the appellant’s
brother, Mr Mbulaheni Nethononda, that the appellant was found at dawn
in his motor vehicle near his parents’ home.  He was unconscious,
seemingly from gassing himself with the aid of a pipe connected to the
vehicle’s exhaust pipe, and was rushed to hospital. The police were
handed a letter reportedly written by him which (translated from Venda)
read as follows:
‘To whom it may concern
Now that I am not married, my wife is gone she is at her home. It was after she
destroyed my family, she brought confusion and agony to my children, I tolerated
everything in welcoming her with love. I am a maternity person here. I wipe the stools
of the child everyday, I cook, I wash, I take the child to crèche, while the mother
wanders all over the country, while regarding life it as life at its best. I tolerated all
this.
In the morning of this day 17/06/2000 while I asleep, I was awoken by the window
panes being broken and the doors being ploughed by a pick. When I rose up I found
Kanakana of Ntsandeni standing before me holding a knobkerrie I retreated she was
hitting me with it. I ran into the room and she hit the door three times and it got
broken and I ran into another room and I picked a fire-arm so as to threaten her with
it. I was surprised having slipped onto the wall, the fire-arm mistakenly fired and I
then saw her lying on the floor with blood.

Because I loved her, I then realised that I would not stand for this, I realised that it is
important that I should follow her. My children will remain with my mother at the
place where they are staying at Nzhelele-Mauluma. The small child whose name is
Shakalanga should be taken to Makwarela at her granny one Gladys Ntsandeni.
I am gone!
Nesane Mmbengwa
17/06/2000’

[4] Guided by this letter the police, led by Sergeant Robert Ramala,
followed the trail to the appellant’s home. There, they found the back and
front door handles damaged and a pane in the front door broken. A pick
axe, a spade, a garden fork and a pair of pliers apparently used to force
entry were found next to the door. Upon forcing their way into the
premises the police made a gruesome discovery in the living room. A
dead body of a woman subsequently identified as the deceased was lying
face down in a pool of congealed blood coming from the mouth. There
was a baseball bat between her legs. The room was in utter disarray and it
appeared as if there had been a fight.

[5] A letter was found on the coffee table which (translated from
Venda) read:
‘You decided to go away from your own kraals while you thought that you will get a
better future. Of course you are in the process, you came to boast your boyfriends and
the house which you are to buy in Louis Trichardt. You destroyed my family, my
children are confused.
There is no one who will benefit between you and me, we have all of us come to the
end.
This house should be sold, the money should support the children and further to make
the final touches for the house at Nzhelele which the children should stay in.
Nesane M.A

You came to destroy the whole house I do not know what was the problem. Now you
did well. I shot you with no intention, but my heart is burning. Lets go together to our
grandparents’.

[6] According to the ballistics evidence the weapon used in the
shooting was a .38 revolver which belonged to the appellant as a bullet
and one of the two casings found at the scene were positively linked to it.
It does not appear from the evidence that the garden tools suspected to
have been used in damaging the points of entry, the baseball bat or any
item at the crime scene were tested for fingerprints. The chief post-
mortem findings were not recorded by the court below. According to
Sergeant Ramala, they had not been able to determine the precise location
of the deceased’s injury. The learned judge did, however, mention in his
judgment that ‘the cause of death was a gunshot wound’ and it appears
from the summary of substantial facts which was part of the appeal record
that the ‘post mortem report indicated the cause of death as asphyxia due
to ruptured respiratory tract, subdural haemorrhage, fracture of the skull
all due to gunshot’. Against this background the post mortem report,
which we were told from the bar had gone missing from the high court
file, was not placed before us on appeal. More about this below.

[7] The State had no eyewitness and the appellant did not give
evidence. The case against the appellant therefore turned on
circumstantial evidence, based on the two letters mentioned above
tendered in evidence, with the appellant’s consent, as his suicide notes. In
addition to the contents of the suicide notes, the State relied upon the
police and ballistics evidence already set out, Mrs Ntsandeni’s testimony,
supported by extracts from the deceased’s diaries, to the effect that her

marriage to the appellant was abusive and unhappy and the appellant’s
failure to testify.

[8] The essence of the reasoning and conclusion of the court below is
reflected in the following extract from its judgment:
‘In truth what I have before me here, is the version of the state under oath and as
rightly pointed out by [State counsel] the prima facie case may be conclusive where
there is no reply from the [accused].
Before me I have the evidence that [the deceased] was shot at … your own house …
and that is where she died. She died of a gunshot wound. The bullet came from your
own gun. You do not deny that you are the one who pulled the gun in order to scare
her because she was very aggressive firstly towards the house itself by smashing its
doors and windows and secondly towards your person by beating you up with the
baseball bat.
Mr Klaaf on your behalf referred to several decided cases … [but] I am of the view
that the facts in them are not apposite here. In this particular case I am convinced that
the state succeeded I proving its case against you beyond reasonable doubt and I am
convinced that you are the one who shot and killed [the deceased] on the day in
question and that the said killing was unlawful. You are therefore found guilty … of
murder.’

[9] It is contended that the learned judge misdirected himself in a
number of respects; (i) by not referring the appellant for psychiatric
evaluation before the trial proceedings commenced to ascertain his fitness
to stand trial;1 (ii) by allowing an incompetent legal representative to
defend him (iii) by not ensuring that the appellant was informed at the
outset that he faced the imposition of a minimum sentence if convicted as
charged which resulted in the breach of his right to a fair trial; (iv) by
admitting the hearsay evidence of the deceased’s diary entries without
affording the appellant an opportunity to give evidence; (v) by convicting

1 In terms of s 77 of the Criminal Procedure Act 51 of 1977.

the appellant of murder on the basis of evidence which at best established
culpable homicide and (vi) by imposing an incompetent sentence of 45
years’ imprisonment.

[10] I turn to discuss the above points. As to (i), sec 77 of the Criminal
Procedure Act 51 of 1977 obliges a court ‘[i]f it appears to [it] at any
stage of criminal proceedings that the accused person is by reason of
mental illness or mental defect not capable of understanding the
proceedings so as to make a proper defence, [to] direct that the matter be
enquired into and be reported on in accordance with the provisions of
section 79.’ Section 79 sets out the mechanisms for an accused’s
psychiatric evaluation.

[11] I find no merit in this criticism. In my view, the fact of the
appellant’s failed attempt to take his life without more – which is all that
was relied on by his counsel – placed no obligation on the court below to
question his mental state.  There is no indication at all on the record that
the appellant did not follow the proceedings. Any lingering doubt must
surely be dispelled by his lengthy and lucid testimony given in mitigation
of sentence during which he was, in a rather bizarre twist facilitated in no
small degree by the court below, cross-examined at length on the merits
of the shooting.

[12] The criticism against the quality of the appellant’s representation at
trial stage in point (ii) may similarly be given short shrift. It is not
supported by the record which amply reflects that his legal representative
raised relevant objections and legal arguments where necessary and in
fact withdrew the potentially contentious admissions relating to the
shooting.

[13] With regard to the penalty provision in point (iii), it is so that the
State failed to bring it to the appellant’s attention in its indictment.
Section 35(3)(a) of the Constitution of the Republic of South Africa, Act
108 of 1996 grants an accused the right to be informed of a charge with
sufficient detail to answer it. As to what the accused’s ability to answer a
charge entails, Cameron JA remarked as follows in S v Legoa2:
‘[U]nder the constitutional dispensation it can certainly be no less desirable than
under the common law that the facts the State intends to prove to increase sentencing
jurisdiction under the [Criminal Law Amendment Act of] 1997 … should be clearly
set out in the charge sheet. The matter is, however, one of substance and not form, and
I would be reluctant to lay down a general rule that the charge must in every case
recite either the specific form of the scheduled offence with which the accused is
charged, or the facts the State intends to prove to establish it. A general requirement
to this effect, if applied with undue formalism, may create intolerable complexities in
the administration of justice and may be insufficiently heedful of the practical realities
under which charge-sheets are frequently drawn up. The accused might in any event
acquire the requisite knowledge from particulars furnished to the charge or in a
Superior Court, from the summary of substantial facts the State is obliged to furnish.
Whether the accused’s substantive fair trial right, including his ability to answer the
charge, has been impaired, will therefore depend on a vigilant examination of the
relevant circumstances.’

[14] The appellant, who was legally represented, was furnished with a
comprehensive summary of substantial facts. This document, in my view,
contained all the relevant facts that he would have required to place him
on guard regarding the nature of the defence he had to put up. It hardly
seems to me, in the circumstances, that his ability to answer the murder
charge was in any way impaired by the State’s omission. The court below
thus committed no vitiating misdirection in this regard.

2 2003 (1) SACR 13 (SCA) paras 20-21. See also S v Ndlovu 2003 (1) SACR 331 (SCA) para 11.

[15] As to point (iv) I do not believe it necessary to delve in any detail
into the admissibility or otherwise of the extracts of the deceased’s
diaries. As the appellant’s counsel conceded, the court below, in any
event, clearly accorded them no weight as reflected by its finding that
they were couched in such a way that only their author could understand
them and indicated only that the deceased was an unhappy woman.

[16] The next question raised in point (v) is whether the appellant was
properly convicted of murder on the available evidence. As appears from
the synopsis of the evidence led at the trial, the State did not proffer any
version to counter the admissions made in the appellant’s suicide notes
which, in my view, are not at all improbable. Sergeant Ramala’s evidence
that there was an attempt to force entry and signs of a fierce struggle
inside the house only serves to corroborate the appellant’s version. There
is absolutely nothing to gainsay the reason alleged by the appellant for
getting hold of the firearm and the manner in which the fatal shot (or
shots in view of the ballistics evidence that two spent cartridges were
recovered at the scene) was discharged.  The absence of the post mortem
report which would have told us the precise nature and location of the
injuries sustained by the deceased; evidence of the location of the spent
cartridges found at the scene which could have given a composite picture
of the position of the parties when the shots were fired and evidence
whether any fingerprints were found on the baseball bat allegedly used by
the deceased and the tools suspected to have been used in forcing entry
all make it impossible for this court to draw any inferences, least of all
inferences that would counter the defence version.

[17] Whilst there are huge gaps in the evidence which only the appellant
could have explained, it nonetheless cannot be said in the circumstances
of this case that the appellant exposed himself to any risk of having
adverse inferences drawn from his reticence, having had no obligation to
give evidence in the first place. There is simply no evidence which shows
that he intended, directly or not, to kill the deceased. As was properly
conceded by his counsel, all that the evidence establishes is negligence on
his part. He took possession of a lethal weapon and must clearly have
foreseen that in the mobile scene a shot might be discharged and strike
the deceased. He should therefore have been convicted of culpable
homicide.

[18] The conviction of murder and, accordingly, the sentence of 45
years imposed in respect thereof – which was grossly excessive for a
murder conviction considering that the minimum sentence prescribed by
law3 is 15 years imprisonment – must therefore be set aside.

[19] It remains to determine an appropriate sentence in the changed
circumstances. There are numerous, weighty mitigating factors present in
the matter. The deceased was the aggressor whose conduct, ie her
desertion and neglect of the children, boasting to the appellant about her
affairs with other men and her plans for the future which did not include
him, appears to have deeply hurt, humiliated and provoked him. Her
aggression, in my view, removes this case from the realm of domestic
violence which presents a serious problem in this country. Quite clearly
from the facts, there is very little likelihood that the appellant will repeat
the offence. He expressed deep remorse for the deceased’s death and such

3 Section 51(2) of the Criminal Law Amendment Act 105 of 1997.

remorse is stated in terms in his suicide notes and reflected in the very
fact that he attempted to kill himself after the shooting.

[20] The appellant was and still is a valuable member of society despite
his incarceration. He reached the mature age of 43 years without breaking
the law. He was a stable family man and hands-on father rearing four
young children from a previous marriage and his and the deceased’s
young son. He presently supports the children from income earned from
teaching fellow inmates in prison. He was a principal of a highly
successful high school and community leader sitting in a number of
educational boards. He held BA, UEd and BEd degrees before the
offence. He has continued his studies in prison and obtained numerous
educational qualifications including a Master’s degree in education. He is
presently pursuing a PhD degree in education. That he is an excellent
candidate for rehabilitation is undoubted in the circumstances.

[21] However, regardless of these circumstances which count strongly
in the appellant’s favour, the fact remains that he took a human life. The
deceased was a mother and actively partook in the rearing of her child.
She was a highly skilled and educated lecturer rendering a valuable
contribution to her community as a key figure in sports development. She
was in the prime of her life and was working hard to improve her life and
that of her child. From her mother’s account it does not appear that she
set off to attack the appellant when she left home that morning. What
diverted her from her route and brought the unfortunate events about is
unfortunately a mystery that will likely never be solved. Any sentence
that this court imposes must reflect the sanctity of her life. Taking into
account the interests of society and its concerns about fatalities resulting

from the use of firearms, the interests of justice clearly dictate a custodial
sentence.

[22] The appellant was in detention for a period of seven months
awaiting sentence and that must be factored into his punishment. A
sentence of eight years imprisonment antedated to the date on which he
was originally sentenced, seems to me eminently suitable in all the
circumstances.

[23] In the result the appeal succeeds. The conviction and sentence are
set aside and for the order of the trial court is substituted the following:
The accused is found guilty of culpable homicide. He is sentenced to
eight years’ imprisonment antedated to 26 January 2001. In addition he is
declared unfit to possess a firearm.

___________________
MML MAYA
JUDGE OF APPEAL

Appearances:
For Appellant:
S O  Ravele
Instructed by

S O Ravele Attorneys

Louis Trichard
Naudes Incorporated, Bloemfonein
For Respondent: A I S  Poodhun
Director Director of Public Prosecution
Thohoyandou
Director of Public Prosecution, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
26 September 2008
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal.

* * *
NESANE V THE STATE

The Supreme Court of Appeal today upheld an appeal against a judgment of the Venda
High Court in which the appellant had been convicted of the murder of his estranged wife,
Ms Cecilia Elelwani Nesane and sentenced to undergo 45 years imprisonment.

The evidence against the appellant was circumstantial. There were no eyewitnesses and the
appellant did not testify. The State relied mainly only on two suicide notes written by the
appellant who tried to kill himself after shooting the deceased. In those letters the appellant
described the shooting as an accident. According to him he was woken up by the deceased
who had forced her entry into the house and was carrying a baseball bat with which she
assaulted him. In the fierce struggle which ensued he grabbed his firearm and, at some
stage, lost his balanced. A shot was then discharged accidentally.

The Supreme Court of Appeal held that it was impossible for it to draw any inferences that
would counter the appellant’s version in view of the corroborative evidence given by the
police regarding their findings at the crime scene, particularly in the absence of the post-
mortem report which would have indicated the precise nature of the injuries sustained by
the deceased; evidence of the location of the spent cartridges found at the scene which
could have given a composite picture of the position of the parties when the shots were
fired and evidence whether any fingerprints were found on the baseball bat allegedly used
by the deceased and the spade, garden fork, pick axe and pliers suspected to have been used
by the her in forcing entry into the appellant’s house. All that had been established in the
circumstances, the court held, was negligent shooting as there was no evidence which
showed that the appellant intended directly or otherwise, to kill the deceased.

The Supreme Court of Appeal substituted the murder conviction with that of culpable
homicide and, after weighing the seriousness of the offence, the mitigating factors in his
favour and the interests of society particularly its concern at offences involving the use of
firearms, sentenced the appellant to eight years imprisonment antedated to the date on
which he was originally sentenced. The appellant was also declared unfit to possess a
firearm.