S v Dhlamini

• Jurisdiction: South Africa
• Judge: Viljoen JA, Grosskopf JA and MT Steyn AJA
• Judgment Date: 01 December 1987
• Citation: 1988 (2) SA 302 (A)
• Hearing Date: 22 September 1987
• Court: Appellate Division

MT Steyn AJA:

On 20 September 1985 the appellant was convicted of culpable homicide by Stafford J, sitting without assessors in the Witwatersrand Local Division, and sentenced to three years' imprisonment. The appellant was a 29-year-old policeman of nine years' standing and a first offender. He had been charged with murdering his I 22-year-old wife Minah Nomsa Dhlamini (the deceased) at their Dobsonville home on 5 January 1985. In the summary of relevant facts (attached to the indictment) as amended at the commencement of the trial, it was alleged that he deliberately shot and killed her with a pistol on the evening of the said day. Having found, however, that appellant had acted negligently, the learned Judge convicted him and J sentenced him as aforesaid.

MT Steyn AJA

A No medical evidence was led at the trial but the appellant, who was represented both at the trial and in this Court by Miss Bruyns, admitted in terms of s 220 of the Criminal Procedure Act 51 of 1977 that the deceased died as result of 'a bullet wound through the heart' at the place and on the date alleged in the indictment and that the facts and findings recorded in Afrikaans by Dr C J Grobler in the report of the B post-mortem examination conducted by him on the body of the deceased on 7 January 1985 were correct. That report was handed in as exh B. The correctness of photographs of the deceased taken at the time of the post-mortem examination was similarly admitted. The cause of deceased's death was recorded as follows in the report, exh B, and read into the C record by Miss Bruyns.

'Skietwond ingang regter borskas, anterior oksillêre lyn in regter mamma, deur vierde rib regs, deur regter long, deur perikardium, deur hart, regter en linker atrium, deur linkerlong en uit linker borskas, vyfde rib, deur linker mamma lateraal, in deur linker bo-arm mediaal en D uit lateraal (alle gate deur dieselfde koeël veroorsaak).'

According to this report the deceased was a small person whose length was 1,60 m (plus-minus 5'4") and who weighed 54 kg.

It is common cause that appellant and deceased had grown up together, that at the time of the shooting they had been married for a number of years but were childless and that they lived at their joint home at No E 3124, Dobsonville, together with appellant's two younger brothers, Goodwill (or Nklankla), aged 19 years and in standard 7, and Matthews (or Sipiwe), aged 16 and in standard 6, who were under appellant's care.

It is also common cause that appellant and the deceased were both in the kitchen of their home when the fatal shot was fired by him, and that F it was fired from his own 9 mm calibre Star pistol which had by then been in his possession for about four years.

The layout of the Dhlamini residence is not in dispute and a sketch plan thereof was handed in by consent during the trial as exh D. According to that plan it is a rectangular four-room dwelling. There are two adjoining bedrooms, one facing to the front of the building and the G other to its rear. Next to the front bedroom is a combined dining- and sittingroom (the sittingroom) and next to the rear bedroom a kitchen adjoining the sittingroom. These two last-mentioned rooms are directly connected by a door in their dividing wall at the corner next to the rear bedroom. The kitchen also has an outside door in the outer side-wall near the corner with the rear wall. This door is fitted with H two locks, one above the other and each with its own handle or knob. It opens inwards towards the dividing wall between the kitchen and sittingroom. The kitchen is a small room of 4 x 3 m, the shorter dimension being that of the side-walls. On 5 January 1985 there was a stove in the kitchen against the inner wall about halfway between the door to the sittingroom and the side-wall. The stove and outer door were I therefore diagonally opposite and very near to each other, not more than 2 - 3 m separating them. In the middle of the rear wall, almost directly opposite the stove, there is a rear window with a pelmet.

Only four witnesses testified at the trial, three for the State, and appellant. The State witnesses were all relatives of the deceased, namely her aunt, Gertrude Mtolo (she and the deceased, however, treated J each

MT Steyn AJA

A other as mother and daughter), Gertrude's daughter-in-law, Sibongile, and her husband, Sandile Mtolo. Although it is common cause that they and the appellant were all present in the kitchen at the time of the shooting there is a wide-ranging conflict between them as to what happened immediately before, during and immediately after the shooting. The State witnesses and appellant not only contradicted each other, B there were also mutual contradictions between the State witnesses themselves, inter alia as to the number of shots fired. In addition, and with the exception of Sandile who, because of certain concessions made by him was not cross-examined, all the witnesses were also self-contradictory, especially appellant. Despite the poor quality of this evidence there are nevertheless certain salient features which C emerged with sufficient clarity therefrom as well as from the admitted and undisputed facts and the probabilities arising therefrom, to enable the learned Judge to come to his aforementioned finding. I will deal with them later.

The earlier events of that day were, however, not materially in dispute and can be summarised as follows: Shortly before 13h00 appellant D arrived home from duty. He had his pistol on him but did not put it down because he left again immediately to fetch Gertrude at her nearby home to come and make peace at his place between the deceased and his two aforementioned younger brothers. They had been quarrelling about the simultaneous playing in the sittingroom of a television set and a radio. E The deceased, who was unwell that day, wanted to watch the television and the youngsters wanted to play the radio. Gertrude went and duly restored the peace. The youngsters asked her 'forgiveness' for their behaviour and she departed again after having reprimanded appellant for having fetched her, saying to him: 'You could have sorted this out with the children and should not have fetched me.' After her departure the F television set was moved from the sittingroom to the deceased's bedroom, most probably by appellant assisted by the two boys. She then watched the television in the bedroom and the boys played the radio in the sittingroom. For a while peace then apparently reigned. As it was getting dark Gertrude, Sibongile and Sandile returned to appellant's G house to see how deceased was. They found appellant, deceased and the boys at home.

What happened thereafter is in dispute and the subject of the aforementioned conflicting versions.

No good purpose will be served in traversing that conflict. In dealing therewith the learned Judge accepted certain portions of each witness's H evidence and rejected others. He had good reason to do so. (It must also be mentioned here in passing that in coming to his conclusions on the merits the learned Judge left out of account what appellant had said before a magistrate during proceedings in terms of s 119 of Act 51 of 1977.) I am satisfied that his main findings of fact relating to the sequence of events leading up to and including the shooting cannot be interfered with. In their turn, those findings can be summarised as I follows.

Because of her indisposition the deceased was still lying down in the bedroom and had not yet prepared food for the appellant and his brothers when Gertrude, Sibongile and Sandile arrived. That dissatisfied appellant. He went out, bought food, returned therewith and put it down in the kitchen. On the stove a kettle was then on the boil. One of J appellant's

MT Steyn AJA

A brothers had also put a pot of rice on the stove to cook. Gertrude and Sibongile had in the meantime chided the deceased for her failure to cook and persuaded her to get up and do so. She went to the kitchen but did not commence cooking. This angered appellant and he struck her in the face with his fist. At that Gertrude and Sandile grabbed hold of him B to restrain him. Deceased was so enraged that she grabbed the kettle off the stove, removed the lid and threw its boiling contents over appellant. He was very badly scalded. Sandile was also burnt and he and Gertrude let go of appellant and moved away from him. Appellant drew his pistol and fired a shot in the...