THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

NOT REPORTABLE

Case No: 16/2013

In the matter between:

SIXTUS NHLANHLA MKHIZE

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Mkhize v S (16/2013) [2014] ZASCA 52 (14 April 2014)

Coram:
Maya, Shongwe, Willis and Saldulker JJA and Mocumie AJA

Heard:
27 February 2014

Delivered:    14 April 2014

Summary:
Murder - test for putative private defence restated– conviction on
murder set aside and appellant convicted of culpable homicide.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: Kwazulu-Natal High Court, Pietermaritzburg (Swain and
Mnguni JJ sitting as the court of appeal):

1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the following:
„(a) The appellant is found guilty of culpable homicide.
(b) The appellant is sentenced to five years‟ imprisonment wholly suspended
for five years on condition that he is not convicted of culpable homicide or any
competent verdict of culpable homicide, and for which he is sentenced to a
term of imprisonment without the option of a fine, committed during the period
of suspension.
(c) The sentence imposed is antedated to 19 January 2009.‟
______________________________________________________________

JUDGMENT
______________________________________________________________

Mocumie AJA (Maya, Shongwe, Willis and Saldulker JJA concurring):

[1] This appeal arises from events which occurred in the early hours of 17
May 2003 during which the appellant shot and killed the deceased, Mr Denzil
Edward Tatchell. Mr Dennis Erick Peter (Dennis), the deceased‟s uncle, was
also shot and left severely injured. The appellant appeared in the regional
court, Ixopo, on one count of murder and one of attempted murder. At the end
of the trial the regional magistrate, Mr Sihlahla, convicted him of murder and
discharged him in respect of attempted murder. He was sentenced to undergo
12 years‟ imprisonment. On appeal to the KwaZulu-Natal High Court,
Pietermaritzburg (Swain and Mnguni JJ) against his conviction and sentence,
the appeal was dismissed. This appeal is with the leave of this court.

[2] The main attack against the appeal was that the trial court erred in
convicting the appellant of murder as the State had failed to prove its case

beyond reasonable doubt considering the material inconsistencies and
improbabilities in the evidence of the State witnesses.

[3] The State led evidence of, among others, Mrs Brenda Charlotte
Tatchell (Brenda), the deceased‟s wife; Mrs Lorna Emelda Peter (Lorna),
Dennis‟ sister-law; Mr Lawrence Mboneni Zondi (Zondi); Mr Sifiso Innocent
Mbanjwa (Mbanjwa); Superintendent Zibuse Leonard Gwala (Gwala); and Mr
Siphiwe Jeffrey Nene (Nene).

[4] Brenda testified that she, the deceased, Dennis and Lorna arrived at
Off Saddle Action Bar in Ixopo between 1h00 1h30. They had been at a
wedding in Ixopo earlier in the day and were on the way home in Durban.
They decided to buy alcohol at the bar, which was still open. There, they
found Mr Mbanjwa (Mbanjwa), the bartender; Mr Camane, the security guard
on duty that night and the appellant. They placed an order, sat down and
chatted with everybody, including the appellant. For some inexplicable reason
the appellant started to assault Dennis. The deceased intervened. Thereafter,
he walked back to the bar counter where he had left his drink, lit a cigarette
and smoked. At that moment the appellant started to shoot at the deceased.
The deceased ran out of the bar and fell outside. Peter was found
unconscious on the floor inside the bar and was rushed to the hospital where
he was admitted. His injuries left him permanently disabled.

[5] Lorna did not say much except to confirm that there was a fracas that
ensued between the deceased, Dennis, the security guard and the appellant
which nobody could stop. She went outside the bar and waited next to the car.
After some time Brenda came out running out of the bar to report that the
deceased and Dennis had been shot by the appellant. Lorna did not witness
the shooting.

[6] Mbanjwa testified that around 1h30 he informed the group that he was
closing up as it was late, and requested them to finish drinking. The deceased
and his party refused to leave. A scuffle broke out between Dennis and the
security guard. Dennis manhandled the security guard and shunted him out of

the bar, but the security guard re-entered the bar. The deceased and Dennis
started to hit the security guard with fists and kicked him. The appellant
intervened by pulling the security guard away. The two assailants turned on
the appellant and assaulted him with fists and kicked him repeatedly until he
fell to the floor. Mbanjwa intervened. The appellant then managed to rise to
his feet and retreated towards the pool table but was pursued by the
assailants. As he, Mbanjwa, turned his back on them to get behind the bar
counter, he heard several gun shots. He turned only to see the appellant
shooting at his assailants. The deceased was struck by the bullets, stumbled
out of the bar and fell outside the bar where he was certified dead by the
paramedics some three hours later.

[7] Gwala testified that he arrived at the scene of crime around 3h45 and
found the deceased still lying outside the bar wounded. The deceased was
lying with his face to the ground and had a cigarette between his fore finger
and middle finger.

[8] The appellant testified that the deceased and his group found him at
the bar. A scuffle erupted between Dennis and the security guard on duty. He
intervened. The deceased and Dennis turned on him and assaulted him
severely. Whilst he was on the floor the deceased approached him, with his
hand in his pocket, uttering the words „let us kill this bastard‟. As he got up
from the floor, with the deceased more or less ten metres from him, he pulled
out his firearm and shot the deceased in quick succession until the latter
turned around and fled out of the bar. As he was in a state of shock, confusion
and drunkenness he fled the scene. Later, he handed himself over to the
police at the local police station. His version was supported in all its material
details by Mbanjwa.

[9] The defence also adduced evidence of an ex-police officer and a
ballistics expert, Mr Jacobus Steyl. Steyl testified that the deceased was
within very close proximity to the appellant when he shot him. He based this
on the gun powder residue found on the deceased‟s body. He testified further
that, given the circumstances the appellant could not have had time to reflect

on his actions once he started to shoot. According to Steyl, a Z88 9mm
Parabellum expels bullets in rapid succession. Once the trigger is pressed,
the pistol will fire after which the recoil operation automatically extracts, ejects
and reloads the chamber until all rounds are fired.1 Thus the appellant could
not have paused in between the shots to deliberately and intentionally shoot
the deceased.

[10] Medical evidence led by the State established that the deceased
sustained three gunshot wounds (a) two perforating gunshot wounds on the
chest, one which shows features of intermediate range, with lacerations of the
heart and both lungs, (b) a perforating gunshot wound of the left thigh; (c)
generalised visceral pallor; and (d) subendocardial haemorrhage in the heart.
According to the specialist forensic pathologist, Dr Kirk, the special features of
(i) the wound on the left lateral aspect of the chest were consistent with an
entry gunshot wound. The direction of the wound track which perforates the
chest, lacerating the lungs and heart, is from left to right and forwards; (ii) the
wound on the left upper back were consistent with entry gunshot wound of
intermediate range. The direction of the wound track, which perforates the
chest lacerating the lungs and heart, is from left to right and forwards; and (iii)
the wound on the anterior aspect of the proximal left thigh, 910 mm above the
heel, the features are consistent with an entry gunshot wound. The direction
of the wound track, which perforates the left thigh lateral to the femur, is
backwards. Each entry wound had features which are consistent with exit
gunshot wounds.

[11] The trial court found that the appellant shot the deceased out of
revenge taking into account the gunshot wound on his back, from which it
inferred that it struck the deceased after he turned his back to flee. The court
a quo found that the trial court could not be faulted on this finding.

[12] Before us, it was contended that the regional magistrate and the court
a quo erred in (a) concluding that the only inference it could draw from the

1 Report by J Steyl, exhibit „H‟, record at 533.

circumstances of the case was that the appellant intentionally and unlawfully
killed the deceased and (b) rejecting the appellant‟s contention that the worst
he could be guilty of on the evidence is culpable homicide.

[13] To secure a conviction, the State had to prove beyond a reasonable
doubt that the appellant unlawfully and intentionally killed the deceased. The
State must show that he did not act in private defence or in terms of a putative
private defence. The distinction between the two defences has been accepted
by our courts. In S v De Oliveira2 this court said the following:
„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). 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.‟

[14] The approach to be adopted by a court of appeal when it deals with the
factual findings of a trial court is trite. A court of appeal will not disturb the
factual findings of a trial court unless the latter had committed a material
misdirection. Where there has been no misdirection on fact by the trial Judge,
the presumption is that his conclusion is correct. The appeal court will only
reverse it where it is convinced that it is wrong. In such a case, if the appeal
court is merely left in doubt as to the correctness of the conclusion, then it will
uphold it.3 This court in S v Naidoo & others4 reiterated this principle as
follows:

2S v De Oliveira 1993 (2) SACR 59 (A) at 63I-64A. See also S v Joshua 2003 (1) SACR 1
(SCA) para 29; S v Pakane & others 2008 (1) SACR 518 (SCA) para 19.
3 R v Dhlumayo and another 1948 (2) SA 677 (A) at 689-690.
4S v Naidoo & others 2003 (1) SACR 347; [2002] 4 All SA 710 (SCA) para 26. See also S v
Makgatho 2013 (2) SACR 13 (SCA) para 17.

„In the final analysis, a Court of appeal does not overturn a trial Court‟s findings of
fact unless they are shown to be vitiated by material misdirection or are shown by the
record to be wrong.‟

[15] The test that applies, and what was required to be shown by the
appellant in order to avoid a conviction on culpable homicide is that a
reasonable person in the same circumstances in which he found himself
would have believed that his life was in danger and would have acted as he
did.5 The only issue was whether the State had proved beyond reasonable
doubt that the appellant did not, subjectively, entertain an honest belief that
his life was in danger and thus not justified to act in putative private defence.

[16] Counsel for the appellant submitted that the appellant was confronted
by a set of circumstances which gave him reasonable grounds for believing
that his life was in danger. Those circumstances were that: (a) The deceased
and Dennis were the aggressors and rowdy from the moment they came into
the bar that night; (b) they assaulted the security guard on duty and then
turned their aggression on him when he tried to intervene in the fracas; (c) the
deceased was approaching him with his hand in his pocket uttering the words
„let us kill the bastard‟, which he genuinely believed the two would carry out;
(d) although he did not know for a fact what the deceased was armed with,
the threat to his life had not ceased but was still continuing; and (e) he was
under the influence of liquor and had sustained a severe assault.

[17] The trial court committed several material misdirections which, to my
mind, led to the wrong conclusion that the appellant was guilty of murder.
These misdirections were, furthermore, completely overlooked by the court a
quo. Both the trial court and the court a quo found Mbanjwa to be a neutral,
reliable witness. As stated above, his evidence was that the assault on the
appellant did not stop; he merely freed himself from his assailants.  He stated
further that the appellant shot the deceased at close range, within three to
four metres, indicating that the deceased was right in front of the appellant.

5 See Coetzee v Fourie & another 2005 (1) SACR 382 (SCA) para 7.

This was corroborated by Steyl‟s uncontradicted expert evidence that, judging
from the gun powder residue on the deceased‟s body; the gunshots were at
close range. This was supported by the doctor‟s findings in the post mortem
report that the gunshots were intermediate. Both Steyl‟s and the doctor‟s
findings corroborated the appellant‟s version that the deceased was within
very close range to him as he turned his back to flee. This is contrary to what
both the trial court and the court a quo found, that the deceased was at the
bar counter when he was shot.

[18] The court a quo also inferred that the fact that the deceased still had a
cigarette between his fingers corroborated Brenda‟s evidence that the
deceased was at the counter and had taken out a cigarette to smoke when
the appellant shot him. The issue of the cigarette is an unresolved mystery in
this case. In my view, however, the accepted evidence and the probabilities
do not support the court a quo‟s inference. One simply cannot be sure how it
came to be where it was found, hours after the deceased‟s death. And even if
one accepts that it was in the hand of the deceased at the time that the
deceased was killed, this does not justify the conclusion that the appellant
was guilty of murder.

[19] A further aspect that remains for determination is  whether, despite the
appellant‟s subjective belief that if he did not react as he did he would have
been killed, it was necessary for him to shoot the deceased three times. The
first shot would, in all probability, have had the desired effect to ward off the
unlawful attack on him. In my view, the appellant, especially as a long serving
police officer with considerable experience in handling firearms, ought to
reasonably have realised that he was using excessive force beyond the
legitimate bounds of private defence. In the circumstances, he should have
been convicted of culpable homicide. Counsel for the State fairly and correctly
conceded that the evidence viewed in its totality, failed to establish that the
appellant had the requisite intention to kill the deceased. The appeal against
the conviction ought, for the aforesaid reasons, to succeed.

[20] The alteration of the conviction from murder to culpable homicide
places this court at large to consider sentencing afresh. The appellant was a
first offender;6 he is a widower with young children7 and is the sole
breadwinner of his extended family, being his unemployed mother and sister;
and he was in a stable employment as is evidenced by his employment record
and his superior‟s report to the social worker that he was dedicated and
committed to his work.8 When this incident occurred, the appellant was
inebriated and had been subjected to a severe assault, which included being
kicked in the head and left him incapacitated for three weeks. In addition, this
incident has had a devastating effect on his personal life since he lost his
employment.9 The deceased and his uncle were the authors of the tragic
incident. Over and above the seriousness of the offence, the appellant‟s
blameworthiness in the circumstances must also be taken into account.10

[21] In my view, correctional supervision, which was recommended by the
probation officer, although appropriate even in cases of murder11 in the right
circumstances, would not be appropriate in this case. The incident occurred
some ten years ago. Thus, its rehabilitative element of punishment is no
longer relevant and would not serve any purpose. A sentence based on
principles of restorative justice, supported by Brenda who asked the court to
consider compensation for the death of her husband, was also suggested. But
much as it has been lauded and accepted in South Africa, albeit at a slow
pace, to consider it under the circumstances of this case, where a life has
been lost, in a country where the level of violence is so high would send the
wrong message to society.12 Furthermore, it would be hollow as the appellant

6See S v Humphreys 2013 (2) SACR 1 (SCA) para 25.
7S v Shackell 2001 (2) SACR 185 (SCA) para 32; S v Humphreys above para 25.
8S v Shackell above para 32.
9See S v Dougherty 2003 (4) SA 229 (W) para 42.
10SS Terblanche The Guide to Sentencing in South Africa 2 ed (2007) at 150, writes that: „The
modern view of the seriousness of crime generally also refers to the blameworthiness of the
offender . . . [T]he seriousness of the offence is affected by the extent to which the offender
can be blamed or held accountable for the harm caused or risked by the [offence] . . . .‟
11 See section 276(1)(h) of the Criminal Procedure Act 51 of 1977, as explained in Du Toit et
al Commentary on the Criminal Procedure Act (2013) from 28-9. See also S v R 1993 (1)
SACR 209 (A).
12See S v Maluleke 2008 (1) SACR 567 (SCA). Compare with Director of Public Prosecutions,
North Gauteng v Thabethe 2011 (2) SACR 567 (SCA).

is unemployed.

[22] Taking into account all the mitigating factors enumerated above, a term
of imprisonment, wholly suspended on appropriate conditions will adequately
serve the interests of justice. It will serve as a deterrent on the appellant and
hang over him like a sword of Damocles.13

[23] In the result the following order is granted:
1 The appeal is upheld.
2 The order of the court a quo is aside and replaced with the following:
„(a) The appellant is found guilty of culpable homicide.
(b) The appellant is sentenced to five years‟ imprisonment wholly suspended
for five years on condition that he is not convicted of culpable homicide or any
competent verdict of culpable homicide, and for which he is sentenced to a
term of imprisonment without the option of a fine, committed during the period
of suspension.
(c) The sentence imposed is antedated to 19 January 2009.‟

________________________
B C MOCUMIE
ACTING JUDGE OF APPEAL

13 See Persadh v R 1944 NPD 357 at 358; S v Scheepers 2006 (1) SACR 72 (SCA) para 11.

APPEARANCES:
For Appellant:

J E Howse
Instructed by:
Mbele, Dube & Partners, UMzimkhulu
Mthembu & Van Vuuren, Bloemfontein

For Respondent:

Ms Dyasi
Instructed by:
The Director of Public Prosecutions,
Pietermaritzburg
Deputy Director of Public Prosecutions,
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:
14 April 2014
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.

SIXTUS NHLANHLA MKHIZE V THE STATE

The Supreme Court of Appeal (SCA) today unanimously quashed and set aside the
conviction imposed upon the appellant in the Kwazulu-Natal High Court.  The appellant
had been found guilty of murder and sentenced 12 years’ imprisonment.

The appeal arises from events which occurred in the early hours of 17 May 2003. The
appellant had been the subject of a brutal assault by the deceased, who he shot and killed in
response. The trial court found that the appellant shot the deceased out of revenge taking
into account the gunshot wound on his back, from which it inferred that it struck the
deceased after he turned his back to flee. The court a quo found that the trial court could not
be faulted on this finding.

The appellant argued that the State had not proven beyond a reasonable doubt that the
appellant intentionally and unlawfully killed the deceased – ie that he did not act in private

defence or in terms of a putative private defence - and contended that the worst he could be
guilty of on the evidence is culpable homicide.

The SCA upheld the appellant’s case that the evidence could not support a conviction on
the verdict of murder. It then turned to consider the matter of whether the appellant had
acted lawfully in private defence or putative private defence. On this score, the court found
that the lethal force used had not been necessary to deter the threat that the deceased posed
to him. The appellant, a long serving police officer with considerable experience in
handling firearms, ought to reasonably have realised that he was using excessive force
beyond the legitimate bounds of private defence.

In the result, the conviction on the count of murder was replaced with one of culpable
homicide. Taking into account certain mitigating factors, including the role that the
deceased played in precipitating his own demise, a term of 5 years’ imprisonment wholly
suspended, conditionally was imposed.
---ends---