Baron Dube v The State

On 26 September 2018, at approximately 23:00 hours at Atlas Mine, Esigodini, the appellant armed himself with two firearms (a Voere Rifle and a Taurus Revolver) and drove to the mine with a group of armed persons during a gold rush. Upon arrival, he ordered illegal artisanal miners to leave, claiming the mine belonged to him. The miners complied and began leaving with their tools, except Mncebisi Mguni who was ordered to leave his tools behind. Mncebisi became upset and exchanged insults with the appellant. As Mncebisi walked away with Mzingaye and the deceased Antony Prince Bvundura, the appellant fired his gun in their direction. The deceased was shot in the upper left arm and chest, resulting in destruction of his heart and death. The appellant pleaded not guilty, claiming the gun accidentally discharged when he slipped and fell while being attacked by miners throwing stones. The trial court rejected this defense, finding contradictions between his defense outline and evidence in chief, and convicted him of murder under s 47(1)(b) of the Criminal Law (Codification and Reform) Act.

• Whether the firearm discharged accidentally or the appellant deliberately fired it
• Whether the appellant had the requisite intention (dolus eventualis/recklessness) for murder under s 47(1)(b) of the Criminal Law (Codification and Reform) Act
• Whether the appellant realised there was a real risk or possibility that his conduct might cause death and nevertheless continued with that conduct
• Application of s 57 of the Criminal Law (Codification and Reform) Act where death is caused to someone other than the intended victim
• Whether the trial court's findings on credibility of witnesses should be disturbed on appeal
• Whether the sentence of 10 years imprisonment was appropriate

The appeal against both conviction and sentence was dismissed. The conviction for murder in contravention of s 47(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the sentence of 10 years imprisonment were upheld.

1. For murder under s 47(1)(b) of the Criminal Law (Codification and Reform) Act, the State must prove that the accused realised there was a real risk or possibility that his conduct might cause death and nevertheless continued with that conduct (dolus eventualis). 2. Where an accused fires a lethal firearm in the direction of a group of people, they ought to realize there is a real risk of hitting and killing someone, and if they proceed despite this realization, they have the requisite reckless intention for murder under s 47(1)(b). 3. Under s 57 of the Criminal Law (Codification and Reform) Act, if a person does something that would constitute murder if it caused the death of their intended victim, but instead causes the death of someone else, they are guilty of murder if they realised their conduct involved a real risk or possibility of causing the death of someone other than the intended victim. 4. An appellate court will not interfere with a trial court's findings on credibility unless such findings are plainly wrong or defy reason and common sense, though findings of credibility must be considered in light of proven facts and probabilities. 5. Material contradictions between an accused's defense outline and their evidence in chief may be fatal to their defense, as the purpose of a defense outline is to inform the State and court of the nature of the defense and define the issues between the parties.

The Court observed that it would have been a 'suicide mission' for miners armed only with digging tools to attack someone visibly armed with two lethal firearms. The Court also noted that the appellant's failure to make indications at the scene when given the opportunity prejudiced his case, as such indications could have helped establish the place where he alleged the firearm dropped and the pit he allegedly fell into. The Court commented that the purpose of a defense outline is to provide an accused person with the opportunity to explain his attitude in relation to the charge or to indicate the basis of his defense, citing S v Hitschmann SC 2-07.

This case provides important guidance on the application of s 47(1)(b) of the Criminal Law (Codification and Reform) Act regarding murder based on dolus eventualis/recklessness. It clarifies that where an accused fires a lethal weapon in the direction of a group of people, even if intending to target one specific person, they may be convicted of murder if they ought to have realised there was a real risk of hitting and killing someone else but nevertheless proceeded. The case also demonstrates the application of s 57 of the Code regarding transferred intent where death is caused to someone other than the intended victim. Additionally, it reinforces principles regarding appellate review of credibility findings, confirming that appellate courts will not interfere with trial court assessments of witness credibility unless such findings defy reason and common sense or are plainly wrong. The case also emphasizes the importance of consistency between defense outlines and evidence given at trial, as contradictions may be fatal to an accused's defense.