S v Mgade

• Jurisdiction: South Africa
• Judge: Jones J, Pakade J, Sangoni J
• Judgment Date: 22 June 2006
• Docket Number: 100/2002
• Court: Transkei High Court
• Hearing Date: 20 June 2006
• Citation: 2006 JDR 0823 (Tk)

Jones J:

[1] The appellant was convicted in the High Court, Mthatha of murder (count 1) and attempted murder (count 2). He was given sentences of 18 years' imprisonment and 7 years' imprisonment, which were ordered to be served concurrently. He now appeals to the full bench of this court, with leave from the court a quo, against his conviction and sentence on count 1.

[2] The events giving rise to the murder and attempted murder charges took place at the appellant's home on the night of 25 December 2000. There was a Christmas party. People were purchasing liquor and drinking there. During the course of the evening there was an altercation between the appellant and Masithole Ngqunguza, who is the complainant on count 2. It was common cause at the trial that during the course of this altercation the appellant produced his firearm, a 9mm semi-automatic

2006 JDR 0823 p3

Jones J

pistol, and fired a single shot with it which killed the deceased. The defence case was that the appellant lawfully produced his firearm in order to defend himself against an assault by the complainant; that the deceased intervened; that in doing so the deceased became engaged in a scuffle with the appellant; and that the firearm went off accidentally during the course of the scuffle. This version of the facts conflicted with the account given by the complainant and an eye-witness to the shooting, both of whom say that the appellant fired a shot at the complainant in the course of the altercation which struck him causing a grazing injury to the side of his face. The shot then hit the deceased in the chest. The appellant denied firing a shot at the complainant. But his version failed to explain the injury to the complainant. For that reason, and other reasons which it is not necessary to traverse, the court a quo rejected the appellant's version of the shooting. This finding was not attacked on appeal. The result is that the appellant is now in the position of an accused person who has given no evidence and has not placed any explanation before the court.

[3] The argument on appeal was confined by an acceptance of the facts disclosed by the evidence of the State. It was that that evidence failed to show that the appellant intentionally killed the deceased. Mr Zilwa submitted on behalf of the appellant that the facts allow no other conclusion 'except that the one shot that was aimed at Ngqunguza [the complainant on count 2] only grazed him and passed on to hit the...