THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case no:  569/06
NOT REPORTABLE

In the matter between:

RICHMAN SIZWE MLENZE                                         APPELLANT

and

THE STATE                                                                    RESPONDENT

Before:  Cameron, Mlambo JJA et Theron AJA

Heard:  19 March 2007

Delivered:  28 March 2007

Summary:
Criminal law – appeal against conviction and sentence – regional court considering
all evidence before conviction – appellant’s version not reasonably possibly true –
appeal dismissed.

Neutral citation:  This judgment may be referred to as Mlenze v The State [2007]
SCA 39 (RSA).

MLAMBO JA

[1] On 16 September 2003 the Fort Beaufort Regional court convicted
the appellant of the murder of Mr Dumisani Mpapu (Dumisani). He was
sentenced to ten years’ imprisonment, it being the view of the regional
court that there were substantial and compelling circumstances justifying
a departure from the ordained minimum sentence of 15 years.

[2] The appellant’s appeal against both conviction and sentence was
dismissed by the Grahamstown High Court (Plasket J, Jennet J
concurring) on 30 September 2004. That court however granted him leave
to appeal to this court and his bail, granted by the regional court, was
extended pending the appeal.

[3] The undisputed facts are that during the early hours of Sunday,
30 June 2002, at Nohashe Street in Fort Beaufort, the appellant shot
Dumisani in the head. Dumisani was taken to the Fort Beaufort hospital
but succumbed to his wounds three days later at the Mount Frere Hospital
in East London. The post mortem report records the cause of death as a
bullet wound to the head. It also records that the bullet entered through
the nose and exited through the right parietal side of the head, lacerating
the brain and leaving a 1.5 cm ragged wound with radiating fractures. The
appellant admitted firing the shot but pleaded not guilty to murder and
tendered a plea explanation of acting in private defence.

Evidence

[4] The state called Mr Mzwabantu Mpapu (Mzwabantu), Dumisani’s
cousin, who testified that he witnessed the shooting. His version was that

in the early hours of Sunday morning 30 June 2002 he was walking home
with Dumisani from Danqe’s Tavern after a night’s drinking which they
iniated the previous evening at the appellant’s tavern. They had just
parted company from Mr Xolisa Mbombe and were standing in the street
when the appellant, carrying a firearm in one hand, approached them
from Sabisa’s yard, saying ‘these are them’. Mzwabantu asked the
appellant what he meant and the appellant said ‘the white pants’ pointing
at the white pants worn by Dumisani. He asked the appellant, what about
the white pants, which evoked no response: instead he heard a shot,
followed by another and saw Dumisani, bleeding through the mouth, fall
to the ground. He then ran away and jumped over the gate of Luyanda
Phezisa’s house and woke Luyanda up, informing him that Dumisani had
been shot, and requested him to call an ambulance. He thereafter jumped
over the gate again and ran to his own home.

[5] He stated that he was surprised by the appellant’s conduct as he
was aware of no grudges or quarrels between Dumisani and the appellant
and because both he and Dumisani were very well known to the
appellant, having worked for him in his businesses. His version was
challenged in cross-examination by the appellant’s legal representative. It
was put to him that the shooting took place inside the appellant’s yard
and that he, Mzwabantu, was nowhere to be seen at the time. It was also
put to him that the appellant shot Dumisani, whom he did not recognize,
while he was stealing his fowls. Mzwabantu disputed these assertions,
stating that he was with Dumisani at all times and had not seen him go to
the appellant’s yard and steal fowls. He conceded under cross-
examination that he and Dumisani were drunk and that they held on to
each other for balance. In response to a question by the magistrate he
specified the place where the shooting took place as on the other side of

the street in front of a yard next to Sabisa’s yard which was not opposite
the appellant’s house.
[6] Mr Xolisa Mbombe did not add much to the evidence as he did not
witness the shooting. He corroborated Mzwabantu’s version about the
previous night’s drinking spree. The contribution of another state witness,
Luyanda Phezisa, was to deny that he was with Mzwabantu and Dumisani
before the shooting. He confirmed however that he heard the two shots
and was shortly thereafter woken up by Mzwabantu who, after informing
him that Dumisani had been shot, requested him to call an ambulance.

[7] The investigating officer, detective sergeant Bonizwa Griffiths
Veto, testified that when he arrived at the scene he found the appellant
standing outside his gate and asked him what happened. The appellant
stated that he had shot someone in his yard who was stealing his fowls.
The appellant also showed him where Dumisani had fallen, which Veto
estimated to be some 20 metres from the appellant’s gate. He observed a
clot of blood at that spot but observed no other blood droplets in the
vicinity or inside the appellant’s yard. Inside the appellant’s fowl run he
did however see two dead fowls. He stated that it was still very dark and
he had to use his torch to make his observations. It was put to him that the
two dead fowls were outside the fowl run and that their throats had been
cut. He disputed this: as far as he could make out the two dead fowls were
inside the fowl run and their throats were not cut, and he saw no blood
next to them. His evidence that the appellant told him on his arrival at the
scene that he had shot someone in his yard who was stealing his fowls
was not challenged in cross-examination.

[8] The evidence of the district surgeon of East London, Dr Basil
Wingreen, who performed the post mortem examination, was that the

deceased was about 21 years of age, weighing some 60 kg, and 1.6 metres
tall. The entrance wound was, as already stated, on the left nostril which
had blackening around it. The exit wound was a ragged 1.5 cm bullet
wound on the right parietal bone of the skull, with radiating fractures. The
brain was lacerated with some haemorrhage consistent with the passage
of a bullet.

[9] He stated that the blackening around the nose was caused by the
fact that the gun was discharged at a distance where the gunpowder was
actually in contact with the skin. He stated that the distance between the
gun and the skin when the shot was fired was not more than 12-15 cm
which amounted to almost a contact bullet wound. He stated that there
were recorded cases in the textbooks of people being shot in that manner
and walking a few paces before collapsing. Referring to this particular
case – it was common cause that Dumisani died only three days later, on
Wednesday 3 July – he stated that the fact that Dumisani did not die on
the scene did not necessarily mean that he could have walked 20 metres
after being shot. He stated that he would have expected ‘a person like this
to have collapsed immediately’, without being able to run after being
shot.

[10] The regional magistrate asked the doctor whether there would be
external bleeding in such a case. He stated that he would not have
expected immediate external bleeding because the bullet went up the nose
with gases, and one would have expected the blood to have been shot to
the back of the throat. On the other hand, he would have expected
external bleeding if the head had fallen downwards. He stated in cross-
examination that he would not have expected immediate external
bleeding if the head did not fall forward since the blood would have gone

to the back of the throat – and in this particular instance there was indeed
congestion in the lung from the inhalation of blood.
[11] The appellant’s version was that he was woken up in the early
hours of the morning by a noise from the fowl run. When he went to
investigate he found his main gate and the fowl run entrance open. He
closed them and went back to bed. He was hardly back in bed when the
noise started again. He suspected someone was trying to rob him.
Because all his businesses and his truck were in the yard he decided to
take out his firearm and investigate further. He saw that the main gate and
fowl run entrance were once more open.

[12] He then saw two dead fowls, with their throats cut, outside the fowl
run. As it was dark he could not see clearly but he heard a noise and when
he looked up he saw a figure some 4-5 metres away from him holding a
live white fowl close to his chest. It appeared to him as if the person was
holding something else with the other hand and he shouted to the person
‘why are you stealing my fowls’. The person retreated whereupon he
fired a warning shot in the air. After he fired the warning shot the person
rushed at him threateningly. As he could not see what the person had in
his other hand he shot him and the person turned around and ran out of
the yard. It was only then when he followed this person that he realized
that he knew him. He stated that when he shot the person he was
defending his property and himself as he feared that the intruder may
have been armed with a dangerous weapon. His wife corroborated his
evidence save for the shooting which she did not witness.

Regional Court’s reasons

[13] The issue at this stage is whether the trial court erred in rejecting

the appellant’s version as false beyond reasonable doubt. In convicting
the appellant the regional magistrate found that his version of the
shooting could not reasonably possibly be true. The magistrate found that
Mzwabantu, even though a single witness, was satisfactory and that his
version was corroborated by two independent witnesses. The magistrate
found that the shooting did not take place inside the appellant’s yard, and
that he was an unsatisfactory witness whose evidence was riddled with
contradictions and improbabilities. In this regard the regional magistrate
stated that the appellant was unsure whether he was defending himself or
the fowl or both.

High Court judgment

[14] In dismissing the appellant’s appeal, Plasket J in essence affirmed
the regional magistrate’s judgment that the appellant’s version was
improbable beyond reasonable doubt. He found, correctly, that the
magistrate was ‘alive to the need to find guarantees of the reliability of
the evidence of [Mzwabantu] Mpapu’, and that these were present in
Mpapu’s satisfactory evidence which was bolstered by Inspector Veto
and Dr Wingreen. On this basis Plasket J concluded that the regional
magistrate had committed no misdirection and that ruled out any basis of
interfering with his factual findings.

Assessment

[15] Counsel for the appellant submitted in this court that the regional
magistrate and the court a quo were wrong to reject the appellant’s
version and to prefer Mzwabantu’s. He submitted that Mzwabantu was a
very poor witness and that there were unexplained gaps in his evidence.

Counsel submitted further that Mzwabantu was avowedly under the
influence of alcohol at the time which meant that no reliance could be
placed on his version. He also submitted that Mzwabantu was biased
against the appellant and was clearly protective towards Dumisani as they
were cousins.

[16] Counsel also alluded to the fact that it took Mzwabantu some 15
days after the event to make a statement to the police. In this regard he
submitted that in all the circumstances the appellant’s version was
reasonably possibly true that he had shot Dumisani inside his yard and
that Dumisani had staggered for some 20 metres before collapsing. He
stated that this version was somewhat corroborated by the medical
evidence from Dr Wingreen that a person shot in that manner would not
bleed immediately hence no blood would have been found in the
appellant’s yard or leading to the spot where Dumisani fell. He also
submitted that the appellant’s version that he first fired a warning shot
and thereafter the fatal shot was corroborated by his wife as well as by
Mzwabantu, who heard two shots.

[17] It is so that a trial court considering whether to convict or acquit an
accused person is enjoined to consider all the evidence led in its totality.
The purpose is to determine whether given all the evidence the state has
succeeded in proving the guilt of the accused beyond reasonable doubt
(S v Van der Meyden 1999 (1) SACR 447 (W) at 450b, approved in S v
Van Aswegen 2001 (2) SACR 97 (SCA) at 101b-e).

[18] The essential features of the appellant’s version are that he shot
Dumisani, who was posing a threat to his life and property in his yard,
that Dumisani ran some 20 metres before collapsing on the other side of

the street, and that Mzwabantu was not on the scene. With regard to
Mzwabantu’s presence on the scene one looks no further than Luyanda
Phezisa. Luyanda confirmed hearing two shots and being woken up
shortly thereafter by Mzwabantu who informed him that Dumisani had
been shot. Clearly Luyanda’s testimony confirms Mzwabantu’s presence
on the scene or at least in the immediate vicinity of the shooting. This
also disposes of the submission that we should not take account of
Mzwabantu’s version because he was under the influence of alcohol. He
was on his own admission intoxicated but his observation of Dumisani
being shot cannot be discounted – not merely because he was on all
accounts there, but because he was also capable of vaulting perimeter
barriers to go and summons help.

[19] There is a total lack of any corroborative evidence for the
appellant’s claim that he shot Dumisani inside his yard. A material
improbability of this account is that the appellant wants the court to
accept: that the slightly built Dumisani – who was in fact unarmed and
totally defenceless – having seen the armed appellant in his own yard and
having heard a warning shot being fired, would charge at him in a
threatening manner. It is also significant that when Veto arrived on the
scene and asked the appellant what had happened, the appellant told him
that he had shot someone who was stealing his fowls. Notable is the
absence of any claim of self-defence or repulsion of attack against person
or property. If the appellant’s version were true there is no explanation
why he did not immediately tell Veto – the first person in authority to
arrive on the scene – that he had shot someone who was attacking him in
his yard.

[20] The absence of blood inside the appellant’s yard is also telling. It is

incorrect to argue, as appellant’s counsel did, that the absence of blood
from the appellant’s yard and in the vicinity of the place where Dumisani
collapsed was supported by Dr Wingreen’s medical exposition. Dr
Wingreen did not exclude external bleeding entirely. He stated that there
would be no external bleeding initially but if the head fell down then
there would be external bleeding. That this is what happened is borne out
by Mzwabantu’s version that Dumisani collapsed at the spot where he
was shot bleeding through the mouth. The appellant’s version entails that
Dumisani was shot some 4-5 metres inside his yard, that he ran that
distance out of the yard – and then a further 20 metres without bleeding
until he collapsed. This was discounted as a matter of probability by Dr
Wingreen, who stated that he would have expected Dumisani to collapse
immediately. The fact that Dr Wingreen’s evidence does not exclude the
reasonable possibility that the deceased may have run a few paces does
not mean that we should exclude from our assessment of the appellant’s
version the doctor’s testimony that he would not have expected this to
happen.

[21] Furthermore the medical evidence is clear that the appellant was no
more than 12-15 cm away from Dunisani when he fired the fatal shot.
This constitutes further corroboration of Mzwabantu’s version that the
appellant was in very close proximity to Dumisani when he shot him.

[22] Mzwabantu described the place where Dumisani was shot as the
yard next to Sabisa’s yard. Clarity regarding the location emerged when,
in response to questions by the regional magistrate, Mzwabantu said it
was on the other side of the street and not directly opposite the
appellant’s yard. He clarified that the appellant’s yard was opposite
Sabisa’s yard. The appellant also wants us to accept that Dumisani had a

live fowl in his hand having killed two others. This on its own defies any
logic as to why, if he intended to steal fowls, he would kill two, discard
them and hold on to one live and noisy one as he exited from the
appellant’s yard.

[23] It must be stated that Mzwabantu’s version is not entirely above
criticism. In this regard he failed to tell Luyanda why Dumisani was shot
when asked. It could well be that he was being protective towards his
cousin. In addition, there is some merit in counsel’s observation that there
appears to be a gap in Mzwabantu’s version: Luyanda, after all, went off
to sleep before being awoken after the shooting, whereas Mzwabantu
does not account for what happened in this time. There is also the
question of the first shot, which does not appear to have struck the
deceased. That a warning shot could have been fired at some prior point
cannot be excluded. These deficiencies, in the light of all the evidence
considered together, do not entail that the appellant’s guilt was not
established. The essential feature of Mzwabantu’s account is that the
appellant shot the deceased at point blank range, without warning or
provocation, in a public place outside his yard. That account finds
corroboration in the evidence of Luyanda, Veto and Windgreen. See the
comments of Cameron JA in S v M 2006 (1) SACR 135 (SCA) at 183h-i
in this regard that:

‘The point is that the totality of the evidence must be measured, not in isolation, but
by assessing properly whether in the light of the inherent strengths, weaknesses,
probabilities and improbabilities on both sides the balance weighs so heavily in favour
of the State that any reasonable doubt about the accused’s guilt is excluded.’

[24] I am satisfied, taking account of all the evidence that the guilt of

the appellant was proven beyond reasonable doubt and that his version of
shooting Dumisani inside his yard is not reasonably possibly true. It was
therefore correctly rejected by the regional court and the court a quo. The
only reasonable inference from all the evidence is that indeed the
appellant’s fowls were interfered with and that the appellant then chased
that person, wearing white pants, who may well have been Dumisani, as
found by Plasket J, and when he emerged from Sabisa’s yard and
encountered him he shot him. Under the circumstances the appeal against
conviction must fail.

Appeal against sentence

[25] As to sentence the regional court imposed a ten year imprisonment
sentence after finding that there were substantial and compelling
circumstances justifying that sentence. Nothing was advanced on appeal
to impeach this sentence which was clearly moderated by considerations
of mercy. The appeal against sentence must also fail.

[26] The appeal against conviction and sentence is dismissed.

____________
D MLAMBO
JUDGE OF APPEAL

CONCUR:

CAMERON JA
THERON AJA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
28 March 2007

Status:
Immediate

Please note that the media summary is intended for the benefit of the media
and does not form part of the judgment of the Supreme Court of Appeal

RICHMAN SIZWE MLENZE  v  THE STATE

1.
The Supreme Court of Appeal today dismissed an appeal by the
appellant against his conviction for murder and a sentence of 10 years.
The appellant was convicted and sentenced by the Fort Beaufort
Regional Court which were both confirmed by the Grahamstown High
Court.

2.
The appellant’s version was that he had shot the deceased inside his
premises as the latter had posed a threat to his life and his property.

3.
The Supreme Court of Appeal found that the appellant’s version was
correctly rejected as not reasonably possibly true by the regional and
high courts. In this regard the Supreme Court of Appeal found that the
evidence of an eyewitness was reliable and was also corroborated by at
least three independent witnesses.