South Africa High Court, Kwazulu-Natal Division: The Division Bench of Lopes and Radebe, JJ. while allowing the appeal reduced the sentence for murder and conviction for robbery was converted into the theft.
In the present case, the appellant, Mthobisi Mtho Mgidi was convicted of one count of robbery with aggravating circumstances and one count of murder and sentenced to 15 years’ imprisonment on the count of robbery, and life imprisonment on the murder count by the Umlazi Regional Court.
The facts surrounding the conviction are as follows: One night, the appellant and his friend Sikhakhane were walking along the road in a drunken state. Along the road, they met the deceased and he was too in a drunken state. While Sikhakhane was ahead of Mgidi, he heard someone calling him and he looked back and saw Mgidi stabbing the deceased with a knife. Sikhakhane then went up to Mgidi and pushed him away from the deceased and saw him covered in blood, and carrying a belt and either shoes or takkies which Sikhakhane stated belonged to the deceased. Sikhakhane and Mgidi’s mother testified where it was found that Sikhakhane had no knowledge of the circumstances under which Mgidi obtained possession of the knife and that Mgidi’s mother also saw his blood-stained clothes and knife.
Mgidi testified that he could not recall what happened that day and he ran away from his home after knowing that the police is looking for him.
The Counsel for the appellant, N.B. Dlamini submitted that the State bore the onus of proving criminal capacity and had failed to discharge that onus. He referred to a Judgment of Supreme Court of Appeal of South Africa, The Director of Public Prosecutions, Kwazulu-Natal v. Ramdass  ZASCA 23 in which the accused was acquitted of both robbery and murder because it was found that the State had not proved that he had the necessary criminal capacity.
Counsel on behalf of the State, N. Dube submitted that Ramdass (accused in the abovementioned case) pertinently raised the defences, whereas in the present matter Mgidi pleaded not-guilty, because he could not recall having committed the offences and the memory of Mgidi was selective, because he remembered things which had taken place shortly before and after the incident. It was further submitted that in S v. Chretien 1981 (1) SA 1097 (A) at 1108C, it was mentioned that the fact that a person cannot remember what they did, does not mean that they were not criminally responsible.
The Court after analyzing the facts and circumstances of the case, observed that the evidence of the State witnesses clearly established that alcohol played a role in the unfolding events, it is clear that Mgidi was of sound enough mind to procure the knife with which he assaulted the deceased. The appellant remembered his interaction with his mother after arriving at home, and his actions in crying and then fleeing, indicate that he must have known what he did. In the circumstances of the present case, there is no evidence that the violence occasioned to Mr Khanyile by Mr Mgidi was instigated with the intention of depriving him of his property. In those circumstances, Mr Mgidi should have only been convicted of the murder of Mr Khanyile and the theft of a belt and a pair of takkies. The murder was neither planned nor premeditated.
The conviction for robbery was set aside, and replaced with a conviction on one count of theft and sentenced to undergo two years’ imprisonment on the conviction of theft. The appeal against conviction on the murder charge was dismissed and its sentence succeeded and a sentence of twelve years’ imprisonment was imposed. [Mthobisi Mtho Mgidi v. State, Case No. AR212 of 2017, decided on 31-05-2019]