NATIONAL NEWS - The Constitutional Court’s ordered a former law student to be released from jail after he received a life imprisonment sentence for murder.
The court found that the High Court made and error in judgement in the self-defence test.
Liqhayiya Tuta (20 years old then) was a law student at Unisa in 2018 when he was involved in a brawl with two police officers on the evening of March 2 of that year. He stabbed two officers who were in normal clothing.
Constable Nkosinathi Kenneth Sithole died on the scene and Constable Lawrence Makgafela was stabbed in his left temple, the knife penetrated the brain. He was hospitalised at Muelmed hospital for 34 weeks and now lives with a severely injured left eye.
The stabbing incident detailed in court papers:
In the court papers, Tuta stated at about 23:00 of that evening he was accompanying a friend to his residence in Sunnyside when they realised they were being followed by a red unmarked motor vehicle with its occupants wearing civilian clothing.
The two officers [unknown to them] addressed them in a language they did not understand. Tuta said he and his friend panicked and ran away when the driver cocked his gun while looking at them. Tuta said he believed that the two men intended to harm them.
In his testimony, Makgalefa said he and Sithole were on duty patrolling Sunnyside as part of police operation Fiela. Makgafela said it appeared that Tuta was hiding a laptop under his jacket when he crossed the street they were travelling in.
This aroused the cop’s suspicion and the chase after Tuta ensued.
Makgafela said that he and Sithole eventually caught up with Tuta and identified themselves as police, something Tuta refuted. After that, Sithole pinned down Tuta while Makgafela went to the vehicle to fetch handcuffs.
Tuta said he used a flick knife that was in his pocket and stabbed Sithole. When Makgafela returned, Tuta stabbed him also.
Tuta testified thereafter he immediately sought help. In his legal papers, he said he went to a security guard at a nearby business place but was chased away. He then went to a security officer at a nearby club but did not get any assistance.
The following day, Tuta, with his sister, went to the police station to report the matter. He said they were informed by the police that a case could not be opened because he could not identify his attackers [Sithole and Makgafela]. He was arrested later that day at his residence.
On 19 September 2019, Tuta was sentenced to life imprisonment for Sithole’s murder and 15 years for attempted murder by the Gauteng North High Court in Pretoria.
He appealed to the High Court and Supreme Court of Appeals only to have his sentence overturned by the Constitutional Court (ConCourt).
High Court’s error in initial judgment and ConCourt’s findings:
Last week, the ConCourt court released reasons as to why it ordered that Tuta be acquitted of all charges and released from prison.
Tuta’s state of mind when he stabbed officers was at the heart of the court’s judgment, which found that the High Court committed a law error when it did not consider this when sentencing Tuta of murder and attempted murder.
“An accused who kills another, believing his or her life to be in danger, when, objectively, it is not, acts unlawfully. However, where such an accused kills another in the mistaken but genuine belief that his life is in danger, the accused lacks the intention to act unlawfully,” majority judgment penned by justice David Unterhalter read.
In the High Court’s immediate judgment, Unterhalter said there was an error.
“The extempore [immediate] judgment, as it was transcribed, contains a clear error of law. It states that ‘putative self-defence which relates to the accused state of mind and where the test is objective’. That it is not,” the judgment read.
“When an accused on a charge of murder relies upon putative private defence, the issue for the trial court is whether the state has proved beyond reasonable doubt that the accused subjectively had the intent to commit murder, in other words, whether the accused held the honest but mistaken belief that he was entitled to act in private defence.”
He said that the central issue at the trial should have been whether the state had proved beyond reasonable doubt that Tuta had the intent to commit murder and knowing that Sithole and Makgafela were police.
“The trial judge approached the case on the basis that if he believed Constable Makgafela’s evidence, the applicant must be disbelieved, more particularly as to whether Constable Makgafela had informed the applicant that his pursuers were police officers.
“This binary approach failed to consider whether the applicant appreciated what had been said to him. The applicant’s evidence was that he was sworn at by his pursuers in a language he did not fully understand. Whether the applicant’s version was reasonably possibly true required a careful assessment of what occurred after the applicant stabbed the police officers.”
Unterhalter stipulated that Makgafela testified that he would not have been able to identify Tuta after the incident.
“The applicant’s account of what he did after the stabbing is consistent with his version that he thought he was being attacked by assailants, that his life was in danger, and that he had stabbed the deceased and Constable Makgafela in the belief that he needed to protect himself.
“Had the trial judge focused his assessment on the applicant’s state of mind, he could not have simply rejected the post-stabbing conduct of the applicant as improbable.
“It was evidence supportive of the applicant’s account of his state of mind.”
He said this showed the High Court judgment did not consider Tuta’s state of mind when making the judgment.
“This is the very ambiguity that lies at the heart of the trial judge’s formulation of the test for putative private defence.
“The conviction and sentence of the applicant by the trial judge cannot survive this error. The applicant’s appeal on this ground succeeds, and his conviction and sentence for murder and attempted murder must be set aside.”
The Department of Correctional Services confirmed to Rekord that Tuta was released from prison following the ConCourt’s ruling.
Tuta was represented by a Pretoria-based law firm headed by Mabalenyana Marweshe.
