bisho case number: cc29/2001 the state - … weziwe kaleni. she is the mother of the deceased. the...

1

J U D G M E N T

EBRAHIM J:

The accused, Mxolisi Matinise, is charged with the crime of

murder. He has pleaded not guilty to this charge and he elected to

disclose the basis of his defence in terms of Section 115(1) of the

Criminal Procedure Act, 51/1977. The basis of his defence is that he

acted in self defence.

A list of written admissions was handed in at the outset of the trial

and this is EXHIBIT "A" . The accused has signed this document and it

discloses that it is admitted that the identity of the deceased was Toto

Kaleni, an adult male person. Secondly, that the deceased died as a

result of stab wounds to the neck and chest, which occurred during an

incident on 27 November 1998. Thirdly, it was admitted that the

IN THE HIGH COURT

BISHO

CASE NUMBER: CC29/2001

DATE: 8 AUGUST 2001

In the matter between:

THE STATE

and

MXOLISI MATINISE

2

CC29/2001/EHT/C0001 JUDGMENT

deceased had not sustained any further injuries from the time of this

incident until the district surgeon, Dr Wingreen, performed a medical legal

post mortem examination on the body of the deceased on 30 November

1998. Fourthly, it was admitted that the injuries, as reflected in the 5

post mortem report compiled by the district surgeon, Dr Wingreen, had

been inflicted on 27 November 1 998, during the course of the aforesaid

incident. Fifthly, it was admitted that the post mortem report containing

the reference DR 3014/1 998, was correct. These admissions were duly

recorded in terms of Section 220 of the Criminal Procedure Act, 10

51/1977.

The only evidence adduced by the State in regard to the

commission of the offence as specified in the indictment, is that of an

eye-witness, Weziwe Kaleni. She is the mother of the deceased. The

pertinent details of her evidence are as follows: 15

On 27 November 1998 she was at the home of a neighbour,

where a feast was being held. The accused arrived and threatened to

kill her and her son, as they were members of the ADM. The accused

produced a knife. She became afraid and went home. The accused

followed her, but stopped at the gate of her property and called to her 20

son to come out. She told her son, the deceased, not to go, as the

accused had a knife. The deceased took a stick of about 1 m in length

and said that he would drive the accused away. He walked towards the

gate and held the stick behind his back. When he arrived at the gate,

he waved the stick at the accused and told him to go. She shouted to 25

the deceased not to advance, as the accused had a knife, but he did not

heed her warning. The accused drew a knife from his jacket pocket and

3


stabbed the deceased, who fell to ground. She saw the accused stab

the deceased once, and this occurred whilst the deceased was pushing

the accused away. She screamed and people arrived. While the

deceased was lying on the ground, the accused was hovering over him, 5

shouting that he wanted to make sure that the dog had died. She

observed that the deceased had sustained the stab wound just below his

left collar bone. A bakkie was then arranged to take the deceased

away. Later the accused returned and said that he wanted to kill a

second person. This occurred at about 6 p.m. She indicated that the 10

condition of the accused was that he was drunk and that he was

shouting and swearing. She had seen the accused in a drunken state

before. She added, however, that when he was sober, he was a very

quiet person.

Cross-examination by Mr Mnqaba, who appears for the accused, 1 5

revealed that the deceased had not gone to fight with the accused. He

had indicated that he was simply going to chase the accused away, as

the accused was drunk. The deceased had not used the stick on the

accused, but simply pushed him away and told him to go. The accused

had then stabbed the deceased. During the course of the deceased 20

pushing the accused away, the deceased was laughing. She denied that

she and the deceased had quarrelled the day before. The stabbing

incident had occurred at about 3 p.m. that day. She denied that she had

said to the deceased that 'here is this dog, beat him up, Toto' . She had

not insulted the accused. In fact, it was the accused who had sworn. 25

She denied that the deceased had been armed with an iron rod. The

deceased had also not struck the accused, necessitating the accused

4


having to block a blow with his left arm and the rod falling to the ground.

The deceased had also not returned to the house, nor had she given the

deceased a fixed bladed knife, which was put to her, was a rambo type

knife. The description of the knife derives from a film character who 5

carried a knife, which was rather large. She also disputed that the

deceased had charged at the accused with such a knife. The person

who had a knife, was the accused and it was an okapi knife. She

described this knife as having a dark stained wooden handle and that the

knife could close. She denied further that the deceased had lunged at 10

the accused, nor had the deceased inflicted a wound to the forehead and

chest of the accused. She also denied that the accused had grabbed the

hand of the deceased with his own left hand and drew the knife from his

own back pocket, that is the accused's back pocket, and then stabbed

the deceased. She disputed that this is how the stabbing occurred, but 15

restated that the accused had stabbed the deceased. The accused had

remained there and not gone home, and had then continued swearing

and saying he wanted a second person dead. She admitted that

members of the community assaulted the accused shortly thereafter.

In re-examination by Mr Kristafor, who appears for the State, she 20

confirmed that the deceased and the accused were friends and they had

been on good terms.

In reply to questions from the court, she said that she could not

explain what the initials ADM stood for. She was not a member of the

organisation that had the acronym ADM. The street in front of her 25

house extended right up to the boundary of her fence ... [inaudible].

There were not trees or bushes or other obstructions in the street.

5


When the deceased pushed the accused away, the accused had not

turned away, nor had he tried to run from the scene. At no stage had

the deceased grabbed the accused, but he had only pushed the accused

away. The accused's residence was a few houses away down the 5

street.

Dr Basil Wingreen was called to testify with regard to the post

mortem examination conducted by him. He is a duly qualified doctor

and he is the district surgeon of East London. He had been conducting

post mortem examinations over a period of 46 years. He indicated that 1 0

he had stopped counting how many post mortem examinations he had

conducted once he reached the total of about 35,000. He confirmed his

findings as set out in the post mortem report and said he adhered to it.

His examination had revealed that the deceased had sustained three

wounds. There was a stab wound on the r ight. . . [inaudible], that is the 1 5

right upper arm, of the deceased, which was 4 cm in length. There was

also a stab wound of 2,5 cm in length on the left hand side of the neck

near the clavicle. He indicates that it is in the anterior ... [inaudible] of

the neck. The third wound was a 4 cm stab wound inflicted on the left

breast near the ... [inaudible]. He stated that the stab wound to the 20

neck and the one to the chest were both fatal. Either of these wounds

would have resulted in causing the death of the deceased.

His evidence was not really placed in dispute, but he was asked

whether a single lunge by the assailant could have resulted in both the

neck wound and the chest wound and the arm wound being inflicted. 25

He indicated that it was impossible for the three wounds to have been

caused by a single blow. Even though both the wound to the neck and

6


the wound to the chest had been caused by downwards thrusts of the

knife, the two wounds were not connected, that is that they had not

been caused by a single blow.

In reply to questions from the court, Dr Wingreen confirmed that 5

the wounds to the neck and the chest were both penetrating wounds,

that is, they entered the body of the deceased, or more correctly, the

knife that was used to inflict the wounds, entered the body of the

deceased, consequently it was impossible for one lunging movement to

have caused both these wounds. The three wounds had been inflicted 10

separately, and he accepted that the wounds could have been caused by,

what is called, an okapi knife. The three wounds had been freshly

inflicted, that is, within twelve hours before the death of the deceased.

His examination did not reveal any other wounds.

The only other witness called by the State, was Zolile Lincoln 15

Kwayimani, who was a sergeant in the South African Police Service and

stationed at the local criminal record centre at King William's Town. His

evidence confirmed that he had taken a series of photographs, which

form EXHIBIT "C" . In his case too, his evidence was not placed in

dispute. 20

This concluded the case for the State.

The accused then testified. He stated that he knew the deceased,

they had grown up together and were friends. The day prior to the

incident, the mother of the deceased had sworn at him and had told the

deceased to beat him up. He had ignored her and gone home. The 25

following day, 27 November 1998, he had been on his way from the

house of Xoleka, when he encountered the deceased and the deceased's

7


mother. The deceased's mother, Mrs Kaleni, called out, 'here is this

dog, beat this dog' . This was at the house of the deceased. The

ceceased came towards him with a metal rod. He described the rod as

being about just over a metre in length, with the circumference of about 5

1.5 cm. The deceased struck the accused on his left wrist. The

accused grabbed the rod and it dropped to the ground. Later he said

that, when he was struck, the rod fell to the ground. Thereafter the

deceased's mother handed a knife to the deceased. The blade of this

knife was between 1 5 to 18 cm in length. The deceased stabbed him, 10

that is the accused, on his left forehead and his left chest. He, the

accused, then produced his own knife, and stabbed the deceased in his

chest on the left side near the nipple. He says he only stabbed the

deceased once. This incident occurred in the street. Later he was

beaten by people he called the 'comrades', who were accompanied by 15

the deceased's brother. He sustained various injuries to his head, which

required stitching, and he had gone to the hospital to be treated. He

remained in hospital for two days and thereafter went to the police

station, where he was arrested. He stated that he never intended killing

the deceased. He had also not had the opportunity to run away and if 20

he had, the deceased would have followed him and stabbed him in his

back. He denied that he had been at the neighbours house, as claimed

by Mrs Kaleni. It was a lie that the deceased had pushed him at the

gate. He had not been too drunk and could remember what had

happened. The events that occurred that day, had been initiated by Mrs 25

Kaleni.

During cross-examination he said that there had been a

8


circumcision ceremony at the place of Xoleka. He, together with some

other men, consumed a large can of beer, 'umkombothi ' , and it appears,

they shared a bottle of brandy. His description of the can was that it

was at least half a metre high and about 15 cm or so in diameter. He 5

indicated that he had drunk about two tots of brandy. He maintained,

however, that he was sober and not drunk. This stabbing incident had

occurred the Friday when he went to drink at a house where Mrs Kaleni

was. She had called him a silly dog, but he ignored this. Previously

they had been on good terms. When he passed the house of the 10

deceased, Mrs Kaleni gave the deceased an iron bar and told him that he

had to beat up this dog, that is the accused. The accused had taken

hold of the bar and had approached him from behind. When he turned

around, the deceased struck him with the iron bar. He blocked the blow

and grabbed at the bar and it fell to the ground. He saw that the 15

deceased was drunk. Mrs Kaleni had come out of the house with a

knife and the deceased had then gone through the gate, into the yard,

where she handed the knife to the deceased. He did not run away as

the events had happened quickly. The distance from where he was to

where Mrs Kaleni handed the knife to the deceased, was about 4 paces 20

or 3,5 m. The deceased had come straight back to him and stabbed him

above the left eye and chest. He then stabbed the deceased. There

was a struggle and they grabbed hold of each other in, what is described

as an embracing hold, that is, they grabbed each other by placing their

arms around the bodies of the other. He had to use both his hands to 25

open the okapi knife. He then explained that he had grabbed the

deceased's hand with the knife with his left hand, that is the accused's

9


left hand, and had used his right hand to take the knife from his back

pocket. He opened the knife by stroking it across his waist or hip. He

only stabbed the deceased once and did not know how the deceased had

sustained three wounds. He had stabbed the deceased on his left chest. 5

He did not know if someone else had stabbed the deceased as well. He

denied that he had said that he would kill the deceased, nor had he said

that he would do so, as the deceased was a member of ADM.

In the course of re-examination he said that he had not been too

drunk, as he knew what was happening. The deceased's knife had been 10

over 30 cm long and the top of the blade of the knife had the appearance

of a sword.

In reply to questions from the court, the accused said that when

the accused struck him with the iron bar, the bar fell at his, that is the

accused's, feet. This was in the street. The deceased had then gone 15

to the door of the house, where his mother handed a knife to him. He

had decided not to pick up the iron bar in order to defend himself.

When asked why he had not done so, he replied that he wanted to leave

the bar there so that other people could see it as evidence. Then again

he said that he hadn't picked it up, as he did not want to fight. He did 20

not run or walk away when the deceased went back to the house, as the

deceased had run to the house and run back to him. Also, if he had

walked away or run away, the deceased would have stabbed him in the

back. At one stage he said that he had made a mistake in saying that

the deceased had run into the house, as he had meant to say that the 25

deceased ran into the yard. He also stated that he was not sure that the

deceased was fighting with him.

10


In reply to further questions from Mr Mnqaba, he said that Mrs

Kaleni had seen that it was an okapi knife, as she was standing at the

gate.

In reply to further questions from Mr Kristafor, he said he had not 5

picked up the iron bar to defend himself, as the bar would have injured

:he deceased and he, that is the accused, would then have been

charged.

This concluded the case for the defence.

I do not intend to recount the arguments which counsel for the 10

State and defence presented. The specific issues which they addressed,

should become apparent from my evaluation of the evidence. The

evaluation of the evidence establishes the following:

The deceased sustained three stab wounds. Two of these, the

wound to the neck and the one to the left breast, were fatal wounds. 1 5

There is no evidence, nor a suggestion that any of the wounds were

inflicted at any time prior to the incident between the accused and the

deceased, nor subsequently. The accused claims he only stabbed the

deceased once, and cannot say how the other wounds were inflicted.

When he testified, he admitted that he had stabbed the deceased in the 20

left breast. However, in terms of the list of admissions, namely EXHIBIT

"A" , it has been admitted by the defence that the three wounds were

inflicted during the course of the incident which occurred on 27

November 1998. This admission, of course, was disclosed and duly

recorded in terms of Section 220 of the Criminal Procedure Act. 25

Whether or not the accused subsequently chose to deny any knowledge

of the two other wounds, the admission that these wounds were inflicted

11


during the course the incident, must stand. In any event, even if I were

to hold that it does not include that two of the wounds were not inflicted

by the accused, then the fact remains that the wound to the breast of

the deceased was, nevertheless, a fatal wound. It will become plain, 5

however, from what I say later that I do not accept that any of the

wounds were inflicted at any other time, and that the evidence shows

that these wounds were all inflicted during the course of one incident.

Mrs Kaleni has also testified that she only saw the accused stab

the deceased once, but it is significant that the wound that she refers to, 10

is the one that was administered to the neck of the deceased, and not

the breast. This wound, as I have indicated before, was also a fatal

wound. The accused claimed that the deceased had inflicted two

knife wounds on him, one above the left eye and one on the left breast,

but was not substantiated by medical evidence. Although the court 1 5

could observe that there were physical indications in the form of raised,

healed scars on the skin of the accused's face and chest. I am unable

to draw a firm conclusion in regard to how and when these wounds were

inflicted. In other words, the accused's claims in this regard, are not

corroborated by any other evidence. The accused says that he was 20

lospitalised, because of these and other wounds administered by the

residents, who had assaulted him. However, he has not placed before

the court any proof of hospitalisation, nor any other medical evidence to

support these claims.

There were also no physical obstructions which prevented or 25

hindered the accused from leaving the scene of the fatal stabbing, if he

had chosen to do so. The evidence also reveals that he never attempted

12


to leave the scene at any stage prior to the deceased being stabbed.

Mr Mnqaba has criticised the testimony of Mrs Kaleni and

described it as being too good to be true. However, he then criticises

it in saying that there are improbabilities in her evidence. It was 5

improbable, he says, thatthe deceased would approach the accused with

a small stick if the accused had been armed with a knife. He contended

further that Mrs Kaleni minimised the role of the deceased and was,

therefore, biased. He submitted that her evidence was unreliable and

could not be accepted in preference to that of the accused. 10

I consider there criticisms to be overstated. It would be

unrealistic to expect Mrs Kaleni to be completely detached from what

occurred. It was, after all, her son who had been killed. The bias Mr

Mnqaba claims she showed, related to her claim that the accused was

a very quiet person when he was sober, but shouted and swore when he 1 5

was drunk. In my view, her comments do not display bias, but, in fact,

honesty. If she was, indeed, biased, one would have expected her to

paint a poor picture of the accused, even when he was sober. She

clearly did not do so.

I also do not find it improbable that the deceased would have 20

approached the accused with a small stick, even if the accused was in

possession of a knife. While Mr Kaleni had warned the deceased of a

knife that the accused was in possession of, the deceased had indicated

that he did not intend fighting with the accused, but merely wanted to

chase him away. It is clear to me that he hid the stick behind his 25

back,as he did not want to appear to be confrontational.

Mr Mnqaba also contended that Mrs Kaleni tried to minimise the

13


role of the deceased. I find no evidence of this. If she really intended

doing so, there was no reason for his to disclose that the deceased had

been armed with a stick. She could also have hidden the fact that the

deceased pushed the accused. But apart from all this, her honesty as 5

a witness is demonstrated by her assertions that she only saw the

accused stab the deceased once. Further, while she says the accused

hovered around the deceased when the deceased was lying on the

ground, she does not claim that the accused stabbed the deceased again.

If she was biased or probe to exaggeration, she could have falsely 10

claimed that the accused, in fact, did so.

Mrs Kaleni impressed me with her honesty. Such discrepancies,

as there were in her evidence, are by no means of a material nature.

They relate to peripheral or minor issues and do not detract from her

honesty as a witness, nor the reliability of her testimony. There are no 1 5

contradictions in her description of what occurred, nor improbabilities

which reflect adversely on her credibility. I am satisfied that she has

told the truth of what occurred. Her evidence is credible and reliable

and I accept same.

The accused was a most unsatisfactory witness. His version of 20

the altercation between himself and the deceased differed materially from

that which Mr Mnqaba put to Mrs Kaleni. It is quite evident that his

version, when he testified, deviated from that which he had provided to

Mr Mnqaba. In addition, the former magnitude of the supposed struggle,

changed continuously the longer he testified. Initially his version was 25

fairly uncomplicated. It was that the deceased attacked him with an

iron bar and struck him on his wrist. He grabbed the iron bar and it fell

14


to the ground. The deceased then returned to the house, where his

mother handed a fixed bladed knife to him. The deceased then

approached him from the rear and, as he turned around, the deceased

lunged at him with a knife and stabbed him above the eye and on the 5

chest. He grabbed the hand of the deceased with his own left hand,

and drew a knife from his back trouser pocket with his right hand. He

stabbed the deceased with one stabbing movement and did not know

how many wounds he inflicted.

Numerous adjustments to this story then followed. First he stated 10

he used both hands to open the knife. Then he said he used one hand

and brushed the knife across his hip or waist to open it. Later he stated

that he definitely only inflicted one wound, that is on the left breast of

the deceased. Further, the deceased and he had physically struggled

and had grabbed each other around their bodies with both arms. Then 1 5

he described the struggle as one where he held one hand of the

deceased. It is evident that his version was fluent and filled with

contradictions.

Other contradictions concerned the iron bar. At first he simply

decided not to pick it up. Then he claimed he did not do so, as he 20

wanted people to see it there on the ground as evidence. Then again

the reason was, because he did not want to fight. Finally he said if he

had used the iron bar to defend himself, he would have injured the

deceased and would have been charged for doing so.

There are also other contradictions and inconsistencies in regard 25

to various aspects of his story. The improbability of his version was

highlighted by his explanation for not leaving the scene, when he clearly

1 5


had ample opportunity to do so. That is on the basis of his story. At

first he said the deceased had quickly run to the house, obtained a knife

and ran back. He could not, therefore, leave, as the deceased would

have run after him and stabbed him in the back. Then he stated that he 5

was not sure that the deceased was not fighting him. At the same time,

he claimed that the deceased was drunk and he was not. If this was

indeed so, he clearly had the better opportunity of getting away from the

deceased and doing so without much difficulty.

The accused's version is to be judged by an objective test. I refer 10

to the fact that he claims that he acted in self-defence. I refer to

S v MOTLALENI, 1976 (1) SA 43 Appellate Division at 406 C, and I

quote:

"The question whether an accused, who relies on self-

defence, has acted lawfully, must be judged by objective 1 5

standards. In applying these standards, one must decide

what the ... [inaudible] reasonable man in the position of

the accused, and in the light of all the circumstances, would

have done."

This approach is restated in the case S v MNQAMANI, 1 979, SA 20

859 Appellate Division, page 63 A-B.

At the same time, I recognise that the onus is on the State to

prove that he did not act in self-defence. And this, of course, is to be

tested against all the evidence before the court.

The accused was an untruthful witness. On a number of 25

occasions he was evasive with his replies, and questions had to be

repeated in an attempt to obtain a reply. Many of his replies were also

16


vague and difficult to comprehend. On occasions he resorted to half-

truths and even outright lies. A blatant example was that he claimed

that he had not gone to home of the neighbours where Mrs Kaleni was.

However, previously he stated that on the Friday, that is the day of the 5

stabbing, he went to drink at the house where Mrs Kaleni was. The

evidence of Mrs Kaleni is that there was a feast at this house and that

she had actually been busy serving beer at some stage. It was then that

the accused had arrived and when he shouted at her and produced a

knife, she became afraid and was told the others also to leave. 10

The accused's version is a distortion of the events that occurred.

He has fabricated that the deceased was armed with an iron bar, instead

of a stick, and that the deceased had been the aggressor by striking him

with the iron bar. It is clear from the evidence of Mrs Kaleni, however,

that the only act of aggression displayed by the deceased, was to wave 1 5

the stick and then to push the accused away. The accused's response

to this was totally disproportionate to any threat or perceived threat.

There was no need for him to stab the accused, let alone stab him three

times.

His attempt to escape the admissions that were made in terms of 20

Section 220 of the Act, namely that the three wounds had been inflicted

during the course of this incident, is an attempt to avoid the

consequences of his actions.

On an application of the objective test, a reasonable man would

have picked up the rod after it fell on the ground and the deceased had 25

run away, if he feared that the deceased was to return to continue some

act of aggression against him. A reasonable person would have

17


considered that the iron bar was more than an adequate protection

against someone who wanted to attack him, even if he did not want to

become involved in any further altercation. The reasonable person

would have taken to his heels and left the scene at the greatest haste. 5

His home was close by. On his version, he was far more sober than the

deceased, and it is probable in those circumstances he could easily have

outpaced the deceased. The only possible adverse effect of running

away, is that someone might have perceived him to be a coward, but in

the scheme of things, that was a small price to pay. 10

The accused's failure to pick up the iron bar in order to defend

himself, is incomprehensible. This is also demonstrated by the way he

himself vacillated about whether he had to pick up the bar or it should

remain there or what he should do. He had enough time to consider all

the ramifications of what he had to do, but out of all the options, chose 1 5

the one that have the gravest consequences.

Even if I apply a subjective test, that is to place myself in the

shoes of the accused, the conclusions one reached, are no different. He

nad ample opportunity to avoid a confrontation or to defend himself by

other means than resorting to stabbing the deceased, but above all this, 20

I have accepted the version of Mrs Kaleni in preference to his. His

version is blatantly false and I reject same. I do not find it to be

reasonably possibly true.

I am aware that Mrs Kaleni is a single witness, but I am satisfied

that her testimony is satisfactory in every material respect. As I've said 25

previously, I find that she has told the truth.

I am also satisfied that the evidence proves that the accused did

18


20

Y EBRAHIM

JUDGE OF THE HIGH COURT:BISHO

25

ro t act in self-defence. The act of the deceased in pushing him, did not

constitute an assault of such a serious nature that it warranted the

accused in resorting to stabbing the deceased in order to defend himself.

The stabbing of the deceased was not merely disproportionate to the 5

threat, but clearly unjustified in the circumstances.

I am satisfied, therefore, that the State has proved beyond

reasonable doubt that the accused stabbed the deceased three times and

inflicted the wounds detailed in the post mortem report, EXHIBIT "B".

There is no doubt that two of these wounds were fatal, namely the 10

wound in the neck in the vicinity of the clavicle and the wound in the left

breast. The accused admitted that he inflicted the wound to the chest

and the evidence of Mrs Kaleni establishes that the accused inflicted the

other wound to the neck.

I am further satisfied that the State has proved the guilt of the 15

accused beyond reasonable doubt.

In the result the accused if found GUILTY of the murder of Toto

Kaleni.

bisho case number: cc29/2001 the state - … weziwe kaleni. she is the mother of the deceased. the...

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