S v Mathe

• Jurisdiction: South Africa
• Court: KwaZulu-Natal Circuit Division, Mtunzini
• Judge: Gorven J
• Judgment Date: 24 August 2012
• Citation: 2014 (2) SACR 298 (KZD)
• Docket Number: CC 69/2011
• Counsel: Advocate Ngobese for the accused. Advocate Khathi for the state.

Gorven J:

[1] The accused was ultimately indicted on two counts and pleaded guilty to both. The counts were as follows:

Count 4: The attempted murder of Nkululeko Mzimela at or near G KwaDlangezwa on 18 May 2010.

Count 5: The murder of Nomphumelelo Pretty Mbatha at or near the same place on that date.

[2] The accused tendered a written statement in terms of s 112(2) of the Criminal Procedure Act 51 of 1977 (the CPA). The statement was H accepted by the state and he was found guilty as charged based on that statement.

[3] Mr Ngobese, who represented the accused, then addressed on sentence. At a certain point it became clear that he would submit that a I sentence of correctional supervision in terms of s 276(1)(h) of the CPA would be appropriate. The matter was adjourned at the instance of the court, supported by both parties, for the purpose of obtaining a probation officer's report and one from the Correctional Services. This was because a presiding officer bears some responsibility to ensure that important information is placed before the court for the purpose of J sentence, especially when a particular sentence is prescribed for the

Gorven J

crime in question. [1] It was indicated that any evidence in mitigation or A aggravation should be led on the adjourned date. A lengthy delay ensued as a result of the difficulty of finding a date suitable to both parties and the court.

[4] It is necessary to summarise part of the statement in terms of B s 112(2) and to set out in full part of it. Since 1999 the accused and the deceased were in an intimate relationship. She was at high school and he was employed. He paid some ilobolo along with gifts, called izibizo. A girl child named Fezeka was born to them on 8 August 2005. The deceased attended the University of Zululand and the accused obtained employment at the Department of Correctional Services during January C 2007. As part of his training he attended college and on his return discovered that the deceased was conducting a love affair with a colleague of his named Mabuyakhulu. Because of this affair, the accused did not wish to work at the correctional centre which employed Mabuyakhulu but went to another correctional centre. During 2008 the D accused attended several counselling sessions with a social worker at work. The deceased and her family were involved in some counselling sessions. The accused was emotionally depressed and at some stage thought of committing suicide and of killing Mabuyakhulu. He also consulted a psychologist. During May 2008 the deceased told the accused that she had terminated her love relationship with E Mabuyakhulu. The accused was then transferred to the Empangeni Correctional Centre during October 2008 when he and the deceased began to plan for their wedding. However, during May 2009 the accused intercepted a text message from Mabuyakhulu on the deceased's cellphone, inviting her to visit him for a weekend. There was an argument between the two of them F and the accused sought the intervention of that same social worker as a result. The deceased, however, convinced him that she had terminated her love affair with Mabuyakhulu. He registered for a degree at the University of Zululand so that they could both have academic qualifications. He was, at this time, accommodated at his workplace and the deceased was employed as an educator in the Msinga area but visited G him during month ends and holidays.

[5] On 17 May 2010 he was told that the deceased had visited Mabuyakhulu during the weekends of 1 – 2 May and 15 – 16 May 2010. He had unsuccessfully attempted to contact the deceased telephonically H during the latter weekend. He immediately phoned the deceased who told him that she wished to terminate her relationship with him. This affected him the whole night and, on 18 May 2010, he left his post two hours early at 04h00. He took public transport to the deceased's place of employment. He requested that she return with him and she asked for and obtained permission from the principal of the school where she I taught to be excused from work for the day. They took public transport to Greytown, then to Kranskop, then to Stanger and then to Empangeni.

Gorven J

A En route to Empangeni he told her that he would have to alight at the KwaDlangezwa crossroads to attend afternoon classes at the University of Zululand. He had noticed, on their way from Stanger, that the deceased was making and receiving text messages on her cellphone and suspected that she was communicating with Mabuyakhulu. He asked to B borrow her cellphone on the pretext of wanting to make some calls, but she told him that her cellphone battery was flat. Despite this, she continued to communicate through text messages.

[6] The statement continues as follows: [2]

C 'We reached the Kwa-Dlangezwa crossroads and the taxi stopped as I was alighting. At that stage I was carrying a baby belonging to one of the passengers in the taxi. I then gave the baby to its mother and soon after I had alighted three officers who are my colleagues at work emerged from the nearby trees. It was Bongani Eugen Mtsweni, Frankson Ryan Smith and Mr SM Mhlongo. They pointed at me with D firearms and demanded the service firearm which I had on my person. Whilst I was still trying to figure out what was going on, Mr Bongani Eugen Mtsweni (who is a close friend of Mabuyakhulu) advanced towards me and tried to grab the firearm from my possession. I retreated towards the back of the taxi and he opened fire.

E I removed the firearm from my hip and shot back and he together with Mr Frankson Smith directed shots towards me. I also fired shots towards them and upon realising that I was missing them, and that I had already been shot at about two times, I tried to take cover and I noticed that the taxi in which I had been a passenger was beginning to drive off. I climbed on the rear windscreen and fell down. I arose and F ran towards the taxi and climbed again. Shots continued to be fired towards me and the driver of the taxi stopped his taxi approximately 50 m from the place where he had initially stopped and came out of the taxi running for cover into the nearby bushes.

I then entered the taxi through the driver's door trying to take further cover and at that stage I was shot on my foot and legs and I realised that G I was being killed. At that stage I was severely emotionally overwrought and began to shoot several times at the deceased who was sitting at the back seat of the taxi. I ordered passengers to bend down so that they do not get hurt and I shot at the deceased as I wanted to die with her since I was bleeding and the blood was all over my body so much so that I did H not know which parts of my body had been injured.

At the time of shooting at the deceased I also missed her and shot at Nonkululeko Mzimela. The incident was happening very fast as my colleagues were firing shots at me and I then fell down from the taxi and dropped the firearm, raising my hands and ran towards the nearby bush. Mr Eugen Mtsweni gave chase after me still shooting towards me.

I I then saw Mr Gumbi, who is also my colleague, who told me to stop running and I stopped and fell down. I regained my consciousness when I was at the Garden Clinic Hospital.

Gorven J

I wish to state that at the time when I was shooting at the deceased I was A emotionally disintegrated but I was still able to differentiate or appreciate between right and wrong and I was able to act in accordance with such appreciation.

At the time of the shooting I intended to kill the deceased as I did not want to die alone and leave her with Mabuyakhulu. B

I wish to state that I knew at the time that my conduct was unlawful and that I had no right to take the life of another person, Nompumelelo Pretty Mbatha.

I wish to state further that at the time when I shot at the deceased I foresaw the possibility that other passengers like Nonkululeko Mzimela, C who was sitting, at the time, next to [the deceased] might be shot at and injured and/or killed as a result of my shooting, but I nevertheless continued with my conduct regardless of whether or not she would be shot dead and injured or killed.

I further wish to state that I realised at the time that my aforesaid conduct was unlawful. D

When I was still in hospital I sent my mother and my aunts to go to the deceased's family to apologise on my behalf and to state my willingness to take responsibility over the funeral expenses and also to offer a traditional apology goat but those offers were turned down by the deceased's father even after some follow-up efforts from my side. E

I admit that the shots fired by me directed to the deceased person caused the death of the deceased.

I am really sorry for what happened.'

[7] A report from the social worker whom he consulted from time to F time was annexed to the statement. It states that she had two sessions with the accused, on 23 and 27 January 2008, a session with the deceased on her own on 31 January 2008, a session with the accused and the deceased together on 31 January 2008 and a session with the deceased's family on 27 March 2008. It records the accused saying he G was suicidal and that he was also considering shooting Mabuyakhulu. A request was accordingly made to place the accused in a position not requiring the use of a firearm. On 16 May 2008 the accused and the deceased confirmed that everything was back to normal, whereupon the accused was transferred back. The report further records a later communication from the accused requesting the intervention of the social H worker because he had had a fight with the deceased. She encouraged the accused to deal with these issues without involving the social worker and he then reported that he had done so and that he was happy. The file became inactive and was closed on 22 October 2009.

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