A convicted murderer was partially victorious when he had his prison sentence discounted in the Supreme Court of Appeal (SCA) this week. Picture: File
A convicted murderer was partially victorious when he had his prison sentence discounted in the Supreme Court of Appeal (SCA) this week.
Mzwandile Magasela had appealed to the SCA against his conviction and 15-year prison sentence.
The sentence has been reduced to eight years by the SCA who upheld his guilty conviction.
Magasela was found guilty for the 2018 shooting and murder of Thabo Khoza by the Benoni Regional Court.
The State alleged that, on 18 May 2018, Magasela intentionally shot and killed Khoza to which Magasela pleaded not guilty to. He provided a plea explanation in which he said Khoza died from a single shot after the deceased tried to grab hold of the firearm which “accidentally discharged” when the two were involved in a physical altercation.
The altercation arose when Magasela intervened in a confrontation between the deceased and a female neighbour during which the woman told Magasela she was being harassed by the deceased when he prevented her from entering her apartment.
Magasela denied that he intended to kill the deceased.
The regional court, however, rejected Magasela’s version and accepted the version of a single State witness.
Magasela submitted in his appeal that the trial court erred in their conviction and sentencing.
According to him, exceptional and compelling circumstances existed for the court to deviate from the prescribed minimum sentence.
“He denied that he intended to kill the deceased. It was submitted on his behalf that he should rather have been convicted of culpable homicide. He disputed that the State had proven his intention to kill beyond a reasonable doubt, and contended that his version was reasonably possibly true and should have been accepted.
“He further submitted that he should not have been sentenced to 15 years’ imprisonment as there were substantial and compelling circumstances to depart from the prescribed minimum sentence,” the judgment noted.
According to Magasela, who at the time of the incident was employed as an anti-hijack team member of a courier company, he had that evening carried his 9mm firearm which was concealed by his jacket.
“The safety catch of the firearm was off and there was a bullet in the chamber. He normally carries the firearm like that to enable him to draw it and shoot when in imminent danger if necessary. According to Magasela, whilst he was pushing his son towards the door of his apartment, the deceased noticed that he (Magasela) was carrying a gun and inquired whether he was going to shoot him.
“When Magasela looked up, he saw the deceased lunging towards him. He thought the deceased was attempting to grab his firearm. He withdrew his firearm from the holster but held it behind his right hip pointing downwards.
“The deceased, still in a bent over position, was grabbing for the firearm; the appellant lifted his arm behind him to prevent the deceased from reaching his firearm, and during this scuffle, a shot was discharged that hit the deceased in the head,” the judgment detailed.
Judge Sharise Weiner said “it is difficult to understand why the version that the deceased was bent over facing the appellant’s apartment, was considered improbable”.
Weiner said there was credibility to Magasela’s version - who apologised to the deceased’s family and showed remorse - due to a number of factors including that Magasela reported the deceased’s conduct to a security officer employed by the complex and did not take the law into his own hands.
Weiner added that the deceased was ‘out of control’, aggressive, and clearly intoxicated, and after the security tried to remove an alcohol bottle from the deceased, “the deceased still tried to reach for Magasela”.
“After the deceased was shot, the appellant was in shock - he attempted to assist the deceased and administer medical treatment, which is inconsistent with the actions of someone intent on killing the deceased… The deceased’s wife did not demand that the appellant be incarcerated for shooting the deceased,” said Weiner.
chevon.booysen@inl.co.za