S v Mdlalose (CC17/2020) [2020] ZAMPMHC 37 (27 August 2020) (2024)

INTHE HIGH COURT OF SOUTH AFRICA,

MPUMALANGADIVISION, MIDDELBURG

(LOCALSEAT)

CASENO: CC 17/2020

Inthe matter between:

THESTATE

And

SIPHAMANDLANICHOLAS MDLALOSE

JUDGMENT

BRAUCKMANNAJ

[1]The accused, Mr Siphamandla Nicholas Mdlalose (“MrMdlalose”) has been arraigned in the High Court of SouthAfrica, Mpumalanga Division, Middelburg Local Seat on one count ofMurderread with the provisions of Section 51(1) (Part 1 of Shedule2)of Criminal Law Amendment Act 105 of 1997 (“The AmendmentAct”) in that on or about the 09 September 2013 and at ornear Amersfoort in the District of DR Pexley KA Isaka Seme, theaccused didunlawfully and intentionally kill Sixolile Lindi Mncube(“The Deceased”) an adult female person.

[2]Mr Mdlalose pleaded not guilty and through his legal counsel,Advocate Rasivhaga, provided a plea explanation of self-defence,inthat “he defended himself against an attack from thedeceased which posed a threat to his life”.

[3]The following admissions by Mr Mdlalose were noted in terms ofSection 220 of the Criminal Procedure Act, Act 51 of 1977 (“TheCPA”):

[3.1] the post mortemreport and the doctor’s, qualifications and expertise. (Postmortem report was submitted as “Exhibit A”depicting the injuries sustained by the deceased and cause of herdeath),

[3.2] the identity of thedeceased,

[3.3] that no furtherinjuries were inflicted on the corpse from the death to when thedoctor held the post mortem,

[3.4] the photo album washanded in by agreement and it became apparent that Mr Mdlalose agreedwith the accuracy of the contentsduring his cross examination.

[4]During the trial the following facts became common cause between MrMdlolose and the state:

[4.1.] that the deceasedand Mr Mdlalose were in love relationship,

[4.2.] that on the 09thday of September 2013 during the night deceased was with Mr Mdlaloseat his parental home,

[4.3.] an argument ensuedbetween the deceased and Mr Mdlalose which escalated into a fight,

[4.4.] during the fightMr Mdlalose stabbed the deceased with a Screwdriver several times,

[4.5.] that after thedeceased had collapsed inside his room, he attempted to securemedical assistance for the deceased, and

[4.6.] the deceased diedas a result of stab wound inflicted by Mr Mdlalose to her head.

[5]The dispute that remained were whether Mr Mdlalose acted inself-defence.

[6]The state called three witnesses and Mr Mdlalose testified in his owndefence. I am going to summarise the evidence very briefly.

[7]The first state witness was Miss Nthombenhle Mthethwa (“Mthethwa”).She testified that deceased was known to her for a very long time asthey grew up together. They attended same school and sameclass. Sheregarded the deceased as a close friend and family member. Shetestified that she once saw a blue eye on the deceasedand thedeceased told her that she was assaulted by Mr Mdlalose after he hadseen her in the company of a “boyfriend”.She testifiedthat it could have happened two months before the deceased passedaway. Further that Mr Mdlalose was a jealous person.Her evidence asa whole was unacceptable. The reference to the alleged assault washearsay evidence that is irrelevant, and theallegation about MrMdlalose’s “jealousy” was also obtained from thedeceased. She never saw for herself thathe acted strangely or in ajealous fashion. Ms Mthethwa confirmed that the deceased and MrMdlalose had been in a romantic relationshipfor an extended periodof time.

[8]The second state witness was Ms Beatrice Maseko (“MsMaseko”) testified that on the 09th day of September 2013,around 20h45 she was asleep was at her home at stand no 3074Daggaskraal,Siqobile D. Mr Mdlalose, her brother, woke her askingfor telephone number of an ambulance. She testified that she told himtodial 112 on his cell phone. Although she enquired from the accusedwhat was the problem but he did not tell her, but left her house.Shefollowed him to his room where she found accused holding the deceasedin his arms crying and calling the name of the deceased:“Xoli”.She further told the court that she used Mr Mdlalose’s cellphone and called the ambulance which eventually arrivedand took thedeceased together with the accused away. She told the court that shelocked the accused room and went back to herhouse in which was inthe same yard as Mr Mdlalose’s room. She used to occupy theroom and was aware that the door to theroom was locked with theScrewdriver from the inside, and with a padlock from the outside.

[9]She further confirmed that she did not note any injuries on thedeceased or Mr Mdlalose as there was a power outage at the placeofresidence at that stage. She also locked Mr Mdlalose’s roomwhen he left for the hospital, and opened it again for thepolicewhen they returned with Mr Mdlalose in their custody later. As shewas not present when Mr Mdlalose struck the deceasedwith theScrewdriver, her evidence was also of relatively less assistance. Sheconfirmed that the deceased and Mr Mdlalose werein a romanticrelationship for at least two years at the time, and that they hadtheir differences from time-to-time.

[10]The last witness called by the state was Sergeant Tshimangadzo Ndou(“Ndou”), a police official. He testified that onthe 09th day of September 2013 he was on patrolling duty atAmersfoort Policestation. He told the court that while so busyworking, he received a complaint that at LC Ballot hospital there wasa person whowas stabbed and she had since passed away. He then droveto the hospital where, upon his arrival, Dr Msibi took him tocasualtyward. He saw a corpse of a female person with some visibleinjuries one on the head, one on the left hand, one on the righthand,one on the left foot and one on the right foot. He confirmedthat he was not aware of the identity of the person that caused theinjuries to the deceased at the time, but that he confronted MrMdlalose at the hospital who confirmed with him that he stabbedthedeceased and thus caused her death. Mr Mdlalose had told him thatthere was a fight between him and the deceased and that hesaw bloodon his forehead at the time. He explained accused’s rights interms of the Constitution to him and arrested him.

[11]He took Mr Mdlalose to the scene of the crime at his home where hissister, Ms Maseko opened the lock in order to gain entranceto theroom. There was a power outage at that stage and it was dark in theroom. He confirmed that the scene depicted in photographs2, 3 and 4was familiar to him as it was taken at the scene of the crime as hefound it with Mr Mdlalose. He also identified variousphotographs inthe photo album (“Exhibit B”) (photos numbers 6;18; 19 and 20) as photographs depicting the deceased and the woundson her arms, head, lower-legs andhead. He subsequently handed thescene over to the member of local criminal record centre and he tookaccused to police station.

[12]Sergeant Ndou could not recall any wounds on Mr Mdlalose’s bodythat night. Not even the injury that is depicted in aphotograph(photo 20). He also did not see the injuries on the ring-finger andtop of Mr Mdlalose’s head. He testified thatif Mr Mdlalose hadsuch injuries at the time, he would have noted it. Under crossexamination he conceded that he never asked MrMdlalose whether hehad suffered any injuries. It was further confirmed that MrMdlalose told him that there was a fightbetween the deceased andhimself earlier that evening. After this evidence the state closedits case.

[13]The evidence by the state witnesses was very sparse and did notassist the Court, as it should have. What the state’sevidencedid was to confirm the version by Mr Mdlalose to a large extent. Moreabout it later and in the course of the judgment.

[14]Mr Mdlalose testified that on the morning of the 09th day ofSeptember 2013 he went to the farms with his friend as he wasrequested by one of his friend to assist him and after he came backwe went to “Kamagogo tavern” to play pool. Whilstplaying pool one Mfanakona informed him that the deceased was outsideof the tavern and thatshe wanted to see him. He went out of thetavern and met with the deceased who informed him that she was goingto buy electricityfor her parental home. After that she will bringhim a jersey and they will proceed to his parental home.

[15]The deceased returned to fetch him and they proceeded to his parentalhome. It was dark in his room as there was a power outage,a factconfirmed by Ms Maseko and Sergeant Ndou. He offered the deceasedfood but she told him that she was full, and after eatingheproceeded to the bed to sleep.

[16]Mr Mdlalose testified that while they were on the bed the deceasedenquired from him as to why did he ignored her when shecalled himearly that morning. He told her that he was at the farms as he wasnot around. A dispute arose between them that wasthe start of thetragic events that would end in a young lady’s untimely death.He told the court that he requested her thatthey should go to thetavern to ask his friends but she refused saying his friend willdefend him. He told her to go alone, butshe was apparently notsatisfied with the reply either. I accepted that this matter would bethoroughly traversed during crossexamination, which sadly did nothappen.

[17]While he was sleeping, the deceased suddenly slapped him with openhands on his right side of the face. He woke up, got dressed,andtold her he would take her home and see her the next morning. He wentto the dining room where he sat on the couch, but thedeceasedfollowed him and continued to assault him. He stood up and went backto bedroom from where he saw the deceased holdinga screwdriver asthe door was slightly open after she had removed the screwdriver fromthe door, and the moon shone into the roomand onto the deceased. Shethen pushed him and he fell on the other side of the bed. He got upand tried to hold the deceased’shands and the screwdriver fellon the floor. He picked the screwdriver up and the deceased picked abroken vase which she usedto hit him on his hands where he was cuton left ring finger and on his head, leaving an injury on his head.

[18]Meanwhile, the deceased was assaulting him with any item that shecould lay her hands on in the dark, and he was fending heroff withthe screwdriver in stabbing actions as indicated by him. He washoping that she will stop, but it did not happen. He evenfell downand kicked by the deceased. He told the Court that he stabbed thedeceased in self-defence as she was overpowering him,an importantfact that was never disputed by the state during cross examination.The deceased fell on the floor, and he tried towake her up, but shewas not responding. That is when he decided to go to his sister toask for telephone of an ambulance. Shewas taken by ambulance to thehospital. He also left with the ambulance. She passed away at thehospital. Mr Mdlalose closed hiscase without calling any witnesses.

[19]As stated by Brand AJA in S v Schackell[1]:

“It is a triteprinciple that in criminal proceedings the prosecution must prove itscase beyond a reasonable doubt and that a merepreponderance ofprobabilities is not enough. Equally trite is the observation that inview of this standard of proof in a criminalcase, a courtdoes not have to be convinced that every detail of an accused’sversion is true. If the Accused’s version isreasonably true insubstance the court must decide the matter on the acceptance of thatversion. Of course it is permissible totest the accused’sversion against the inherent probability but it cannot be rejectedmerely because it is improbable; itcan only be rejected on the basisof inherent probabilities. But if it can be said to be so improbablethat it cannot reasonablypossibly be true. On my readingof the judgment of the Court a quo its reasoning lacks this final andcrucial step.’ [Own emphasis]

[20]Proof of the guilt of an accused beyond reasonable doubt and thequestion of whether his / her version is reasonably possiblytrue arenot separate and independent tests[2].As was held by Nugent J in Sv Van der Meyden[3]:

“These are notseparate and independent tests, but the expression of the same testwhen viewed from the opposite perspectives. Inorder to convict, theevidence must establish the guilt of the accused beyond reasonabledoubt, which will be so only if thereis at the same time noreasonable possibility that an innocent explanation which has beenput forward might be true. The two areinseparable, each being thelogical corollary of the other. In whichever form the test isexpressed, it must be satisfied upona consideration of all theevidence. A court does not look at the evidence implicating theaccused in isolation in order to determinewhether there is proofbeyond a reasonable doubt, and so too does it not look at theexculpatory evidence in isolation in orderto determine whether it isreasonably possible that it is reasonably possible that it might betrue.”

[21]The court does not have to believe accused’s version, nor doesit need to reject the State’s case in order to acquithim.Instead I am bound to acquit accused if there existsa reasonable possibility that his evidence may be true.A holistic approach to all the evidence is required as opposed to afragmented and compartmentalised approach to the evidence.[4]

[22]Murder is defined as: The unlawful and intentional causing of thedeath of another human being, whereas culpable homicide istheunlawful negligent causing of the death of another human being.[5]The difference in the two offences lies in the form of culpability,negligence being required for culpable homicide and intentionformurder. Self-defence or private defence is where a person usesforce to repel an unlawful attack which has commencedor isimminently threatening upon their life, bodily integrity, property orother interest which deserves to be protected, providedthat the actis necessary to protect the person or interest from the attacker andis reasonably proportionate to the attack.Putative privatedefence implies rational but mistaken thought – it relates tothe mental state of an accused person.[6]

[23]In Sv De Oliveira[7]in which Smalberger JA deals with the difference as follows:

“From a juristicpoint of view the difference between these two defences issignificant. A person who acts in private defence actslawfully,provided his conduct satisfies the requirements laid down for such adefence and does not exceed its limits. The testfor private defenceis objective – would a reasonable man in the position of theaccused have acted in the same way (S vNtuli 1975 (1) SA 429 (A) at436E). In putative private defence it is not lawfulness that is inissue but culpability (‘skuld’). If an accusedhonestlybelieves his life or property to be in danger, but objectively viewedthey are not, the defensive steps he takes cannotconstitute privatedefence. If in those circ*mstances he kills someone his conduct isunlawful. His erroneous belief that his lifeor property was indanger may well (depending upon the precise circ*mstances) excludedolus in which case liability for the person’sdeath based onintention will also be excluded; at worst for him he can then beconvicted of culpable homicide.”

[24]Mr Mdlalose’s defence is that of self-defence. CR Snyman in thewell-known academic work, CriminalLaw[8]defines private defence asfollows:

“A person actsin private defence, and her act is therefore lawful, if she usesforce to repel an unlawful attack which hascommenced, or is imminently threatening, uponher or somebody else’s life, bodilyintegrity, property or other interest which deservesto be protected, provided the defensive act isnecessary to protect the interest threatened, is directedagainst the attacker, and is reasonably proportionate to theattack.’[Own emphasis]

[25]Insofar as the requirements of the attack are concerned, according toSnyman, the attack must be unlawful, the attack mustbe directed atan interest which legally deserves to be protected and the attackmust be imminent but not yet completed.The requirements forthe defence of private defence are the following:

(a) It must be directedagainst the attacker.

(b) The defensive actmust be necessary. Here one considers whether there is a duty to fleeand the defensive act must be the onlyway in which the attackedparty can avert the threat to his/her rights or interest.

(c) There must be areasonable relationship between the attack and the defensive act.Here it is not necessary that there be a proportionalrelationshipbetween the nature of the interest threatened and the nature of theinterest impaired.

(d) The attacked personmust be aware of the fact that he/she is acting in private defence.

[26]The test is an objective one and our courts have emphasised that oneshould not judge the events like an armchair critic, butrather placeoneself in the shoes of the attacked person at the critical momentand bear in mind that at such point in time theattacked person onlyhas a few seconds in which to make a decision. The court shouldthen ask whether a reasonable personwould have acted in the same wayin those circ*mstances. A person who suffers a sudden attack cannotalways be expected to weighup all the advantages and disadvantagesof his/her defensive act and to act calmly.[9]

[26]In Sv Ntuli[10] the court noted thefollowing:

“In applyingthese formulations to the flesh and blood facts, the Court adopts arobust approach, not seeking to measure with niceintellectualcalipers (sic) the precise bounds of legitimate self-defence or theforeseeability or foresight of resultant death.”

[27]A question that arises, and which the Court also posed to Mr Mdlalosewhile he was testifying, is whether the person who isbeing attackedmust flee if she can do so in order to ward off the attack. Putdifferently, whether there is a duty to flee. Itseems as if there isno general duty on a person attacked to flee, and more so not to fleefrom his or her own house if he or sheis attacked there[11].Herhouse or place of residence is her last refuge - her "castle"- where she may protect herself against any unlawfulattack.

[28]The conduct of a youthful defender in a sudden emergency may bejudged more leniently than that of a more mature person.[12]The question is not whether other methods of defence might have beensuccessful, but whether the method in fact adopted was reasonable.Injudging the reasonableness of the defender’s conduct, thecourts guardagainst the attitude of an armchair critic who is wise after theevent.[13]The defender’s belief in the unlawfulness of the attack, thedanger to his or her life or the reasonableness of the meansofdefence is relevant to the lawfulness of the defender’s conductonly in so far as the court must determine whether hisor her beliefwould have been shared by a reasonable person.[14]It appears therefore that the approach to the question ofunlawfulness in private defence is therefore not purely objective, inthat courts determine, not the real nature of the attack andconcomitant danger ex post facto, but the attack and danger as theywould have been perceived by a reasonable person.

[29]If, subjectively, a person did not foresee the possibility of deathand it can also not be said that she or he ought reasonablyto haveforeseen it, both intention and negligence in respect of death areabsent and she is not guilty of either murder or culpablehomicide.

[30]It is the attacker, who unlawfully and intentionally launches theattack, who carries the risk of injury or death, and notthe attackedparty. In the judgment of REX v Zikalala[15]the court quotes, with approval, form Gardiner and Lansdown'sCriminal Law and Procedure, Vol. 2, p. 1413, the followingpropositions,based on authority, are stated:

“Where a man cansave himself by flight, he should flee rather than kill hisassailant. So think Matthaeus (48.5.3.7) and Moorman(2.2.12), andsee also van der Linden (2.5.9); R v Odgers (1843) 2 A Mood. &R. 479; R v Smith (1837) 8 C. &P. 160; but Damhouder(c. 72), with his ideas of defence against dishonour, is of thecontrary opinion. But no one can beexpected to take to flight toavoid an attack, if flight does not afford him a safe way of escape.A man is not bound to exposehimself to the risk of a stab in theback, when by killing his assailant he can secure his own safetyMoorman (2.2.12); VonQuistorp, para. 244 . . ..In consideringthe question of self-defence, a jury must endeavour to imagine itselfin the positionin which the accused was.”

[31]The question that I must therefore ask is whether I am satisfied thatthe State proved its case beyond reasonable doubt andwhether it hasproved that the killing of the deceased in the circ*mstances wasunlawful. Even if it was on the face of it unlawful,the Court mustbe satisfied that the State proved that Mr Mdlalose had the necessaryintention (culpa) to kill the deceased. IfI cannot find that thekilling was intentional, it might be that the death was causednegligently, in which case Mr Mdlalose maybe guilty of culpablehomicide.

[32]The Court must keep in mind that:

“…no onusrest on the accused to convince the court of the truth of anyexplanation he gives. If he gives an explanation, even iftheexplanation is improbable, the court is not entitled to convictunless it is satisfied, notonly that the explanation is improbable, but that beyond reasonabledoubt it is false. If there is any reasonable possibilityof hisexplanation being true, then he is entitled to his acquittal”.[16]

[33]As alluded to earlier in this judgment, the evidence of Ms Mthethwadid not assist the State in any way. The value of the evidenceistainted by the hearsay-nature thereof. During her evidence in chiefan impression was created that Mr Mdlalose was a jealousperson, butduring cross examination it became clear that her opinion in thisregard was only informed by the deceased that toldher he assaultedher. The witness was evasive in telling the court what a boyfriendmeant after she testified that deceased toldher that Mr Mdlaloseassaulted her after he had seen her with another boyfriend,then trying to explain that it was only another way of referring to a“male friend”. I am of the view that in callingthiswitness the State wanted to prove that accused premeditated to killthe deceased. The evidence before me does not supportthe contentionheld by Adv Poodhun on behalf of the State. If there was theslightest indication thereof, the quality of the evidenceleddestroyed that possibility. Even if I accept that the assault, as MsMthethwa testified, did take place, it cannot as a factbe acceptedthat Mr Mdlalose planned to kill the deceased that fateful night.Premeditated murder was simply not proved beyondreasonable doubt bythe State. The accused denied that assaulted the deceased. Duringcross examination she stated that she “did not know”when it was stated that Mr Mdlalose will testify that he never laid ahand on her during the five years that they had a relationship.

[34]The evidence of the Ms Maseko is also of no assistance to the State.The evidence appears to be biased in favour of Mr Mdlaloseand in anyevent only covers the period between the time when Mr Mdlaloseapproached her for assistance and when the ambulanceattended theproperty to fetch the deceased. Thereafter she opened the door forSergeant Ndou. She testified that she found MrMdlalose on the floor,holding the deceased and crying out her name. This conduct is notconsistent with a person that just murderedanother person in a fitof jealousy. Her evidence, to the contrary, corroborates that of MrMdlalose in that he wanted to assistthe deceased, and do anything tohelp her.

[34]The evidence of Sergeant Ndou (he was a Constable at the relevanttime) confirms the post mortem report to a large extent,save for theinjuries on the back of the deceased. It is however of no moment asMr Mdlalose admitted that he inflicted the injurieson the deceased’sback and lower legs during the ensuing mayhem of the fight. He alsoconfirms that Mr Mdlalose admittedthat he stabbed the deceased withthe screwdriver. His initial evidence to the effect that he saw noinjuries on Mr Mdlalose wasundone during cross examination as well.Despite the fact that he testified that he did ask Mr Mdlalose abouthis injuries, hefailed to note the injury to his ear as clearlyappears from photo 20. It was not the State’s case that MrMdlalose was injuredafter the inspection of the crime scene. Theonly reasonable inference is that Sergeant Ndou was not interested inany injuriesto Mr Mdlalose.

[35]During cross examination Mr Poodhun put it to Mr Mdlalose that he hadno injuries. Mr Mdlalose’s answer was that they(the Police)were not interested in his injuries and was “shouting” athim. Sergeant Ndou confirmed that at the hospitalaccused told himthat there was a fight between him and the deceased and that hestabbed her. He further corroborated Ms Masekoand Mr Mdlalose’sversion that it was dark as there was some power interruption at thatstage.

[36]Although the witnesses for the State were truthful, their evidencedoes not assist the Court to reach a conclusion.

[37]Mr Mdlalose’s version is that he was attacked by the deceased.He tried his best to stave off this unlawful and unsolicitedattackin his home, but to no avail as the deceased kept returning orfollowing him. He initially, and after the “slap”withopen hands, got dressed and left the bedroom. The deceased followedhim to the sofa and assaulted him again. Just to, whenMr Mdlalosetried to avoid further confrontation, go further and take ascrewdriver to assault him. When she is disarmed by MrMdlalose, sheattacks him further by throwing him with everything she could lay herhands on in the room. She even hit him witha broken jar, and kickedhim when he fell down. Mr Mdlalose testified, and it was neverchallenged by the State, that the deceasedoverwhelmed him, and thathe fended her off with the screwdriver.

[38]Mr Mdlalose was asked by the Court, and Mr Poodhun, why he did notflee. His answer was simply that it did not even cross hismind.Although the door was open, and there was an opportunity to escape,he testified that it was his house, and he never thoughtthat thefight would escalate to that level of ferocity. His undisputedevidence was that he never intended to kill the deceased.He was inlove with her, and did everything possible to help her after shecollapsed. Because of the darkness, he did not knowwhere he stabbedthe deceased. At a stage he was on the floor and swung/stabbed withthe screwdriver to fend the attack by thedeceased off. This was alsonot challenged, and it explains the injuries to the deceased’slower limbs.

[39]The only version of what transpired in that room on that unfortunatenight is that of Mr Mdlalose. That version states thathe neverintended to kill the deceased, but defended himself against herunlawful attack, in a dark room. He told the court thatwhen hestabbed the deceased for the first he thought she would retreat butshe kept on coming to him hitting him with variousitem that shecould pick inside the house. The state did not present any evidencewhich rebut the evidence of the accused. It wasalso not challengedthat there was a fight between them and that the deceased was the onewho started to attack Mr Mdlalose. Thefact that Mr Mdlalose walkedaway from the attacks, before he was confronted by the deceased withthe screwdriver in the bedroom,with no escape route available to himwas also not disputed. In all, his version was not really attacked atall.

[40]The State submitted that Mr Mdlalose’s version, if a holisticview of all the evidence is considered is improbable, andthat theState’s version is to be preferred. The Court does not have tobe convinced that every detail of an accused’sversion is true.If the version is reasonably true in substance the court mustdecide the matter on the acceptance of that version. Of course itis permissible to test the accused’s version against theinherent probability but it cannot be rejected merely because itis improbable; it can only be rejected on the basis of inherentprobabilities. But if it can be said to be so improbable that itcannot reasonably possibly be true.

[41]For the Court to accept the State’s version, the inference tobe drawn from the facts before the court must be the onlyreasonableinference[17]. In both civiland criminal matters inference sought to be drawn must be consistentwith all the proved facts. If it is not, thenthe inference cannot bedrawn. The proved facts should be such that they exclude everyreasonable inference from them save theone to be drawn. If they donot exclude other reasonable inferences, then there must be a doubtwhether the inference sought tobe drawn is correct. ‘Whether Isubjectively believe him is, however, not the test. I need not evenreject the State casein order to acquit him. It is not enough thathe contradicts other acceptable evidence. I am bound to acquit him ifthere existsa reasonable possibility that his evidence may be true.Such is the nature of the onus on the State’[18].

[42]The following version and evidence by Mr Mdlalsoe was not challengedby the State and is accepted by the Court on the principlesof ourlaw of evidence:

[42.1] Mr Mdlalosetestified that the deceased is the one who started to assault himwith open hand on his face,

[42.2] the attack by thedeceased was an unlawful attack on him;

[42.3] he tried to avoidthe attack by the deceased by leaving bedroom to dining room andagain from dining room to bed room,

[42.4] he admitted inevidence that he stabbed the deceased in self-defence as the deceasedwas over powering him. He stated thathe stabbed her several times,but that she kept on attacking him,

[42.3] his corroboratedevidence was that, the room was dark and the deceased was hitting himwith anything she could lay handson.

[43]Did Mr Mdlalose act in self-defence, and if so, did he exceed thebounds of self-defence? His undisputed evidence, apart fromastatement by Mr Poodhun during cross examination to the effect thathe planned to kill, and indeed killed the deceased, was thathe neverintended to kill the deceased, but was left with no option, but todefend himself against the attack by the deceased.He did not flee,as it did not even cross his mind, because he had to defend himselfall the time. Even though he testified thathe was aware of the factthat the screwdriver is potentially a dangerous weapon, hisundisputed version was that in hurting thedeceased he hoped that shewould stop attacking him, which did not happen. He said he juststabbed in the dark and did not knowwhere he hit the deceased. Onlywhen she collapsed and failed to react to his calls did he realisethat there might be seriousinjuries to her. The test is an objectiveone. Would any reasonable person in the position of the accused haveacted differently?I am of the view that the answer to both the abovequestions is: no.

[44]A reasonable person would not have reacted differently under thecirc*mstances as pictured in the evidence by Mr Mdlalose.I t wasdark, and according to him there was a persistent attack on him thathe tried to avoid. The attack happened in his homewhere he issupposed to be safe. On his evidence, he fell and got up again. Hetried to, and did indeed, grab the deceased frombehind and tried tohold her, but she escaped from his grip and overpowered him. He wascornered ion his room, in the dark. Itis with regret that I have tofind that the State failed to appropriately cross examine MrMdlalose. The state failed to provethe guilt of the accused beyondreasonable doubt and accused must be found not guilty and acquitted.

[45]I pause to mention that I do not have to believe the versionproffered by Mr Mdlalose to acquit him. All I have to find isthathis undisputed version is reasonably possibly true. The State case isof such a nature that I do not have to reject it tofind in favour ofMr Mdlalose. No evidence in the State’s case rebuts the versionthat he acted in self-defence.

[46]Mr Mdlalose was allowed to appear to be a far better witness than heactually was because of the fact that his version wasnot reallytested during cross examination. I had to keep tight reigns on myselfnot to become too involved as to appear biasedduring the trial.

[47]Although I tend not to believe the version of Mr Mdlalose, but thatis of no importance as it is the only version before meand I ambound to acquit him if there exists a reasonable possibility that hisevidence may be true. The version is not improbableat all, and Icannot draw any inference from the arguments by the State, as it isnot evidence before me.

[48]I therefor find the accused not guilty, and he is discharged.

HFBRAUCKMANN.

ACTINGJUDGE OF THE HIGH COURT OF SOUTH AFRICA

REPRESENTATIVEFOR THE STATE: ADV POODHUN

INSTRUCTEDBY: NATIONAL PROSECUTING AUTHORITY

REPRESENTATIVEFOR THE RESPONDENT: ADV RASIVHAGA

INSTRUCTEDBY: LEGAL-AID SOUTH AFRICA

DATEOF HEARING: 24; 25; 26 & 27 AUGUST 2020

DATEOF JUDGMENT: 27 AUGUST 2020.

[2]Nene v S (AR65/2017) [2018] ZAKZPHC 46 (4 May 2018), par 24.

[5]SnymanCriminal Law 6 edition (2014) at 437 and 442.

[6]Nene, supra, paragraph 29.

[8]6^thedition, (2014) at page 102.

[9]Nene, supra, paragraphs 12 & 13.

[14]LAWSA, supra, para 46.

[15]1953 (2) SA 568 (A).