Mkhize v The State

On 17 May 2003 in the early hours, the appellant, Sixtus Nhlanhla Mkhize, shot and killed the deceased, Mr Denzil Edward Tatchell, at the Off Saddle Action Bar in Ixopo. The deceased's uncle, Dennis Erick Peter, was also shot and left severely injured. The incident began when the deceased and his group, which included his wife Brenda, Dennis, and Lorna, arrived at the bar between 1h00-1h30 after attending a wedding. A scuffle broke out between Dennis and the security guard. The appellant intervened to separate them. The deceased and Dennis then turned on the appellant and assaulted him severely with fists and kicks until he fell to the floor. The appellant testified that as he got up, with the deceased approximately ten metres from him with his hand in his pocket uttering "let us kill this bastard", he pulled out his firearm and shot the deceased in quick succession until the latter turned and fled out of the bar. The deceased sustained three gunshot wounds and died. The appellant fled the scene but later handed himself over to the police. He was a police officer at the time and had been drinking. The regional court in Ixopo convicted him of murder and sentenced him to 12 years' imprisonment. The KwaZulu-Natal High Court dismissed his appeal.

• Whether the State proved beyond reasonable doubt that the appellant unlawfully and intentionally killed the deceased
• Whether the appellant acted in private defence or putative private defence
• Whether the appellant subjectively entertained an honest belief that his life was in danger
• Whether the test for putative private defence was satisfied
• Whether the use of force was excessive and beyond the legitimate bounds of private defence
• Whether the appellant had the requisite intention to kill (dolus) for a murder conviction
• What the appropriate sentence should be upon conviction for culpable homicide

1. The appeal was upheld. 2. The order of the court a quo was set aside and replaced with: (a) The appellant is found guilty of culpable homicide. (b) The appellant is sentenced to five years' imprisonment wholly suspended for five years on condition that he is not convicted of culpable homicide or any competent verdict of culpable homicide, and for which he is sentenced to a term of imprisonment without the option of a fine, committed during the period of suspension. (c) The sentence imposed is antedated to 19 January 2009.

The binding legal principles established are: (1) The test for putative private defence is subjective - if an accused honestly believes his life to be in danger (though objectively it is not), the defensive steps taken cannot constitute private defence and the conduct is unlawful, but the erroneous belief may exclude dolus, resulting in conviction for culpable homicide at worst. (2) To avoid conviction for culpable homicide in circumstances of putative private defence, the test is whether a reasonable person in the same circumstances would have believed that his life was in danger and would have acted as the accused did. (3) The State must prove beyond reasonable doubt that the accused did not subjectively entertain an honest belief that his life was in danger. (4) Even where an accused subjectively believes his life is in danger, if he uses excessive force beyond the legitimate bounds of private defence (particularly where he ought reasonably to have realized this), he can be convicted of culpable homicide. (5) Relevant factors in assessing putative private defence include: the nature of the threat, the accused's state of mind (including intoxication), whether the accused was subjected to assault, whether the threat was continuing, and the accused's perception of danger based on the aggressor's words and actions. (6) In sentencing for culpable homicide, the court must consider not only the seriousness of the offence but also the offender's blameworthiness in the circumstances, including whether the deceased contributed to or authored the tragic incident.

The court made several obiter observations: (1) On restorative justice: While restorative justice has been lauded and accepted in South Africa, albeit at a slow pace, considering it in circumstances where a life has been lost in a country where the level of violence is so high would send the wrong message to society. Furthermore, compensation would be hollow where the offender is unemployed. (2) On correctional supervision: Although correctional supervision is appropriate even in cases of murder in the right circumstances, it would not be appropriate where the incident occurred ten years ago as its rehabilitative element of punishment is no longer relevant and would not serve any purpose. (3) On the cigarette evidence: The issue of the cigarette still being between the deceased's fingers hours after death was described as "an unresolved mystery" and the court noted that one cannot be sure how it came to be where it was found. Even accepting it was in the deceased's hand at the time of death does not justify a conclusion of murder. (4) On suspended sentences: A wholly suspended sentence will serve as a deterrent on the offender and "hang over him like a sword of Damocles" (citing Persadh v R 1944 NPD 357 at 358).

This case is significant in South African criminal law for: (1) Restating and applying the test for putative private defence, clarifying the distinction between objective private defence and subjective putative private defence where culpability rather than lawfulness is at issue; (2) Demonstrating that an honest but mistaken belief that one's life is in danger excludes dolus and results in culpable homicide rather than murder; (3) Establishing that even where putative private defence is accepted, excessive force beyond legitimate bounds can result in culpable homicide; (4) Illustrating the standard of appellate review of factual findings and the circumstances under which an appeal court will interfere with a trial court's findings; (5) Providing guidance on sentencing principles for culpable homicide, including consideration of the offender's blameworthiness and the circumstances that led to the offence; (6) Discussing the limits of restorative justice and correctional supervision as sentencing options in South African criminal law.