Court dismisses appeal of man convicted for colleague's murder

A man convicted of murder after shooting and killing his colleague with a rifle has lost his appeal against his conviction and 12-year prison sentence.

Boxolele Ndobeni was sentenced by the Kimberley Regional Court on August 18, 2023, for the murder of Ndaodane Sesethu Mhlabathi, which occurred on June 23, 2020. The incident happened near Diskobolos Military Base in Kimberley.

Ndobeni appealed to the Kimberley High Court, arguing that the sentence was too harsh and that he acted in self-defence because Mhlabathi allegedly attacked him with an open knife.

Ndobeni claimed he shot Mhlabathi at close range with an R4 rifle just as Mhlabathi was about to stab him. The incident followed a fight between the two men, during which Mhlabathi was heavily intoxicated and Ndobeni was tipsy.

A State witness, a colleague of both men named Mgoduka, testified that after speaking to Ndobeni and Mhlabathi about their fighting, he returned to the bungalow/sleeping quarters.

While Mgoduka was on a video call in his bed, Ndobeni entered and went to his own nearby bed. Mhlabathi then entered, going to his bed, which was further away.

According to Mgoduka, Mhlabathi approached Ndobeni's bed and began swearing at him. Mgoduka, distracted by his phone call, did not initially pay close attention to Ndobeni's actions. Mhlabathi then returned and stood next to Mgoduka's bed.

“I saw Ndobeni standing with his R4 rifle, aiming towards my locker. I saw Mhlabathi taking out a knife and smiling while standing,” Mgoduka explained.

He said he heard a gun being cocked and Ndobeni firing two shots, and he stood up and ran away. The Regional Court accepted Mgoduka's evidence, finding it credible and consistent with the accounts of the other State witnesses. 

However, in his appeal, Ndobeni argued that the court should not have considered the evidence of a single witness, Mgoduka, who witnessed the incident. 

Acting Judge T Tyuthuza referred to the case of Rugnanan v S, where the Supreme Court of Appeal confirmed that an accused can be convicted of any offence on the evidence of a single competent witness, but that such evidence be approached with caution. 

Acting Judge Tyuthuza agreed with the Regional Court's findings, asserting that the evidence, encompassing both the State and defence arguments, had been meticulously reviewed.

She found no evidence suggesting that the State witnesses had fabricated their testimony, noting they simply recounted what they saw or heard on the day in question.

Tyuthuza concurred with the Regional Court's assessment that Ndobeni's testimony contained inherent improbabilities and inconsistencies. 

While Ndobeni admitted he intended to shoot Mhlabathi to stop the attack, Tyuthuza stated that he should have opted for a less lethal method to avert the threat.

“Ndobeni conceded that the rifle is used to shoot and kill; thus, I am satisfied that the Ndobeni had foreseen the possibility of the death of the Mhlabathi as a result of his actions, and that he had reconciled himself with this possibility by shooting the deceased.”

Furthermore, she considered the appellant's experience as a rifleman to be an aggravating factor, as he was fully aware of the serious damage a fired rifle could inflict.

Consequently, she concluded that: “The sentence of 12 years can hardly be said to be disproportionate to the offence for which the appellant was convicted.”

nomonde.zondi@inl.co.za