Rolston Pillay vs. The State - (27 Jul 2023)

When self-defence has been specifically pleaded by the accused, the onus remains on the State to prove beyond reasonable doubt that the accused acted unlawfully

Criminal

On 12 June 2020, the regional court, Benoni convicted Mr. Pillay for murder and sentenced the Appellant to 15 years’ imprisonment. On the same day, the Appellant applied for leave to lead further evidence in terms of Section 309B(5)(a) of the Criminal Procedure Act, 1977 (CPA), and leave to appeal against both conviction and sentence was granted, in both instances. The regional court also admitted the new evidence. The full bench dismissed the appeal both in respect of the conviction and sentence. The crisp issue before the Supreme Court was the credibility of a single eyewitness, Mr. Mpilo Kubeka (Mr. Kubeka).

The view held by the full bench that the version of self-defence was not true cannot be correct. The admitted evidence in terms of Section 309B(5)(a) of the CPA where Mr. Kubeka stated that he saw one of the two alleged robbers with a firearm in his possession is a material contradiction that should have been taken into account in the determination of the Appellant’s guilt or innocence. The acceptance of such contradictory evidence, especially in the absence of corroborating evidence adduced by Mr Kubeka, has a material effect on his credibility as a witness and as such, the full bench committed a material misdirection and ought to have tilted the scale of justice in favour of the Appellant.

The State presented no evidence, other than the evidence of Mr. Kubeka, to show that the Appellant had not been threatened in any manner at the time when he shot and killed the deceased. This Court stated in S vs. De Oliveira concerning S v Ntuli, that where the defence of self-defence has been specifically pleaded by the accused or emanates from the evidence, the onus nevertheless remains on the State to prove beyond reasonable doubt that the accused acted unlawfully and that he realised, or ought reasonably to have realised that he was exceeding the bounds of self-defence. The full bench ought to have found that the defence as pleaded by the Appellant was reasonably possibly true in its essential features.The Appellant did not have a duty to convince the court of the truthfulness of his version that he acted in self-defence.

In light of the fact that the further material evidence was not taken into account and the approach to the evidence concerning self-defence was improper, the full bench misdirected itself. The State failed to discharge the onus of proof that the Appellant is guilty of murder beyond reasonable doubt. In the circumstances, the conviction and sentence cannot stand.

Tags : CONVICTION EVIDENCE LEGALITY