S v Ntsibande

Dolus Eventualis: S v Ntsibande (SS 54/2021) [2023] ZAGPJHC 1055 (15 September 2023)

The accused, Musa Frank Ntsibande (“Ntsibande”), faced charges of assault with intent to cause grievous bodily harm (Count 1), pointing a firearm (Count 2), and murder (Count 3). The court acquitted him on Counts 1 and 2, but convicted him of murder.

Count 1 (Assault): The complainant, Max Thompson, alleged that the accused assaulted him with a firearm. The court found Thompson’s testimony unreliable due to material contradictions (e.g., whether he was struck with a firearm or slapped) and a lack of corroborative evidence (e.g., medical reports).

Count 2 (Firearm Offences): The State failed to prove that the accused pointed a firearm, partly because the complainant inconsistently identified the perpetrator.

Count 3 (Murder): On the murder charge, the court found Ntsibande guilty of murdering his fiancée, Hlengiwe Msimango (“Msimango”), in a tragic 2020 shooting, which he claimed was a case of mistaken identity. The murder conviction centred on events in the early hours of 3 August 2020. Ntsibande testified that Msimango woke him, reporting noises outside their home. After checking and finding nothing, he returned to bed. Hours later, he claimed he heard footsteps, grabbed his licensed 9mm pistol, and fired twice at a “shadow” near the bedroom door, only to discover he had shot Msimango.

Forensic evidence dismantled Ntsibande’s account of events. Ballistics expert Captain Mlindazwe confirmed three gunshots had been fired by Ntsibane: two to Msimango’s back, exiting her chest, and a third to her left thigh. The trajectory indicated she was fleeing when she was shot. Judge Mdalana-Mayisela emphasised that Ntsibande, trained in firearm use, acted recklessly by firing without verifying the threat or issuing a warning. The court thus found him guilty of murder with criminal intent in the form of dolus eventualis.

Author’s Discussion on Dolus Eventualis

Dolus eventualis arises when an accused subjectively foresees the possibility of engaging in unlawful conduct or causing unlawful consequences, and yet proceeds with their actions, effectively accepting that risk. This concept hinges on two main components: cognitive foresight and volitional acceptance. In crimes involving positive acts, omissions, or states of affairs, the accused must foresee the possibility of their actions being unlawful and accept that risk.

In the context of consequence crimes like murder, the accused must foresee both the possibility of causing the specific consequence (such as death) and that it could occur in substantially the same manner to the particular victim or category of victims. This principle was underscored in S v Mavhungu,¹ where the court emphasised that intent to kill one person does not substitute for intent to kill the person who actually dies.

The legal test for dolus eventualis is entirely subjective, requiring actual foresight by the accused. The standard is whether the accused personally foresaw the possibility of their actions being unlawful, not what a reasonable person in their position might have foreseen.² Proof of subjective foresight can be inferred from circumstantial evidence, as clarified in S v Sigwahla,³ where the court outlined that the inference must be the only reasonable conclusion based on the evidence.

The level of foresight required has been debated over the years. Initially, courts debated whether the possibility must have been seen as likely or merely possible. The case of R v Nsele⁴ shifted the focus to foreseeing any possibility of the consequence occurring, regardless of its likelihood. However, subsequent cases like S v Makgatho⁵ and Director of Public Prosecutions, Gauteng v Pistorius⁶ emphasised that the possibility must be foreseen as a real chance of occurring, not merely remote or theoretical.

South African courts have wrestled with defining the exact degree of risk foresight necessary for dolus eventualis. While terms like ‘real’ and ‘reasonable’ have been used interchangeably, cases like S v Cameron⁷ and S v Dlamini⁸ have leaned towards requiring a ‘reasonable possibility’ to ensure clarity and consistency in legal application.

Ultimately, dolus eventualis requires a careful examination of the accused’s state of mind at the time of the offence, considering all relevant circumstances and evidence to determine whether they not only foresaw the risk of their actions but also consciously accepted it as part of their course of conduct.

Application to Ntsibande

Ntsibande disputed the unlawfulness of his actions. However, during cross-examination, he admitted knowing, before firing any shots, that the movement he saw was a person. Additionally, he admitted that he did not see a weapon. Judge Mdalana-Mayisela highlighted how the person Ntsibande saw was moving quickly towards the passage leading to the bedroom door, with Ntsibande behind them. The entrance wounds confirm the shots were fired at the deceased’s back while his life and his children’s lives were not in danger at the time. The court held that the State had therefore proven unlawfulness beyond reasonable doubt.

Regarding intention (dolus eventualis), the key question was whether Ntsibande foresaw the possibility of death and accepted that risk. He initially pled as putative private defence by claiming he mistakenly shot the deceased, believing she was an intruder. Under cross-examination, he argued private defence, stating his life was in danger and he was protecting his family.

To succeed in putative private defence, the accused must establish a basis. Ntsibande testified that the deceased did not respond when he spoke before firing. He did not attempt to verify if she heard him, nor did he turn on the light to check if she and the baby were safe. Despite firearm training, he fired at the upper body without issuing a warning shot or speaking to the person.

By Ntsibande’s own account, his life was not threatened. The person he shot was unarmed and running away. He claimed he acted to protect his children but did not check on them afterward. Instead, he jumped onto the bed and waited for retaliation, which did not come. Though it was dark, he later saw the deceased approaching and saying, “Baby, it’s me.”

The court held that Ntsibande’s failure to fire a warning shot suggests he did not honestly believe he was acting lawfully. He also lied about firing only two shots. His contradictions and demeanour undermined his credibility. During cross-examination, he admitted knowing that shooting a person could result in death but still fired. His defence of putative private defence was thus found to be unsustainable.

In the end, the court decided that Ntsibande must have foreseen that shooting at a moving person could be fatal but proceeded regardless, displaying dolus eventualis. The victim’s identity is irrelevant to his guilt.

You can read the full S v Ntsibande judgement here.

You can learn more about dolus eventualis here.

Written by Theo Tembo