S v Mkohle

• Jurisdiction: South Africa
• Judge: Nestadt JA
• Judgment Date: 07 September 1989
• Citation: 1990 (1) SACR 95 (A)
• Hearing Date: 15 August 1989
• Counsel: G M Wittenberg for the appellant at the request of the Court J H Theron for the State
• Court: Appellate Division

Nestadt JA:

At about 3 o'clock on the morning of Saturday, 24 January 1987, a certain Jackson Nokoyo was shot in the neck with a shotgun. The attack on him took place in a Black residential area called Old Crossroads in the district of Wynberg in the Cape. He suffered a I grievous injury from which he immediately died.

These events gave rise to the prosecution before Williamson J and assessors in the Cape Provincial Division of appellant on a charge or murder. Though denying his guilt, he admitted shooting the deceased. But, he contended, he was justified in so doing on the ground that he had acted in self-defence. The trial Court, however, rejected his J evidence in support of this plea. Instead, it

Nestadt JA

A accepted the State version that the killing was unlawful. Appellant was accordingly convicted of murder and, no extenuating circumstances having been found, sentenced to death. This appeal is against both his conviction and sentence.

In advancing the appeal against the conviction, Mr Wittenberg, on behalf of appellant, launched a wide-ranging and detailed attack against B the trial Court's credibility finding. This renders it necessary to canvass the evidence in some detail. Before doing so, however, I would mention that the following was not in dispute. Appellant, aged 34, was a so-called special constable in the South African Police. He lived in Old Crossroads in a house which he shared with his father, Jackson Mkohle, and Johannes Nongxaza. Johannes was also a police constable in the same C unit as appellant. The 35-year-old deceased, whose girlfriend was Gloria Nzamo, also lived in the township. He resided with Clifford Mkono. Nomute Mthwazi was an acquaintance of both appellant and Clifford. Her husband was a colleague of appellant's. On the night in question she had been to a party at the hut of Mandla Kondile. It was situated roughly between the huts of Clifford and appellant.

The main witnesses for the State were Johannes, Clifford, Gloria, D Nomute and Mandla. I commence with the evidence of Johannes. He stated that he and appellant came off duty on the evening of 23 January 1987 at about 7.30 pm. Thereafter they spent the night in each other's company, first at Mandla's party (until about 10 pm) and then at a second shebeen in the area. At about 2.30 am they left this place on foot to go home. They saw a group of three persons standing near a parked car. Appellant E wished to search them but Johannes was against doing this. They therefore parted. Johannes proceeded home. Appellant approached the group of persons.

The tale of events was taken up by Clifford and Gloria. They and deceased were the members of the group. Clifford owned a Fiat motor car. The nearest it could be parked to his hut was in the open, some 76 metres away. He feared that in this unguarded position it might be F stolen or broken into. To prevent this, he was sleeping in it on the night in question. In the early hours of the morning deceased arrived there from Clifford's home. He was accompanied by Gloria. The two of them were carrying Clifford's four-year-old child. They had, in Clifford's absence, been looking after him. However, he had begun to cry for his father. Clifford took the child and put him to sleep in the car. He, deceased and Gloria were then standing outside the car conversing G when Nomute walked past. (Nomute testified that she had been to Mandla's party.) She stopped to talk to Clifford. The two of them indulged in some good-humoured banter. Suddenly appellant appeared. He was armed with a baton and a shotgun. It would seem that, having heard the conversation between Clifford and Nomute, he took umbrage at what he regarded as Nomute's familiarity with Clifford. Or he was angry simply H because of her being out so late. In any event, he hit Nomute with his baton. She ran away. Appellant then turned his attention to Gloria. He asked her what she was doing there. Deceased intervened by saying that Gloria was his wife. Appellant's reaction to this was to accuse deceased of taking Gloria's part. He threatened to hit deceased. According to Clifford deceased's attitude was one of 'do as you wish.' Gloria's testimony was slightly different. It was that deceased asked appellant's I forgiveness and said that he and Gloria were on the point of leaving. Appellant and deceased were then about 3-6 paces apart. The next moment, and without more ado, appellant shot deceased. It was in these circumstances that deceased met his death.

Appellant told a different story. He denied that he and Johannes had come off duty in the evening or that they had gone to any parties. He testified that their shift ended at 2 pm on the Friday. Soon after arriving home shortly thereafter, Johannes left. Appellant did not see J him again until after the shooting. He

Nestadt JA

A (appellant) stayed at home together with his father. At about 9 pm he went to bed. At about 3 o'clock the following morning, he was woken by the sound of people talking outside his hut. He got...