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Durban - A former police officer who shot dead a man in a drunken brawl 11 years ago has had his conviction for murder converted to one of culpable homicide and a 12-year-prison sentence reduced to a suspended sentence, which has already expired.
“He is very relieved,” attorney Zoliso Mbele said of his client, Sixtus Mkhize, who was effectively let off the hook by the Supreme Court of Appeal yesterday.
“When he was convicted of murder and sentenced to jail (in 2009) he was automatically dismissed from the police force even though an internal disciplinary hearing had found that he should not be dismissed. He has been unemployed since then and we now want to go back to the police to see if he can be reinstated.”
The appeal touched on similar issues to those in the Oscar Pistorius trial, dealing with private defence, where a person acts lawfully in defending himself in proportion to the threat faced, and putative private defence where culpability becomes the issue when the accused unlawfully kills because of an erroneous belief that his life or property is in danger.
Mkhize, who was a warrant officer stationed at Donnybrook at the time of the incident in May 2003, had been drinking at the Off Saddle Action Bar in Ixopo when a group, consisting of Denzil Tatchell, Dennis Peter and their wives, came in at about 1am.
They had been at a wedding in Ixopo and were on their way home to Durban and stopped for a drink.
According to evidence before the trial court in Ixopo, Tatchell and his party refused to leave when the barman wanted to lock up, and they started a fight with the security guard.
When the policeman intervened, Tatchell and Peter turned on him, punching and kicking him until he fell to the floor.
He retreated to the pool table area but was pursued by the two men, one of whom said: “Let us kill this bastard.” It was then that he shot at them, killing Tatchell.
The trial court found that Mkhize had shot Tatchell out of revenge, taking into account that there was a gunshot wound in his back, inferring that Tatchell was fleeing.
On first appeal, two judges in Pietermaritzburg found no fault with this and rejected argument that, at worst, he could be found guilt of culpable homicide.
But on Tuesday Supreme Court of Appeal Acting Judge Constance Mocumie, with four judges concurring, said Mkhize was confronted with aggressors who had already assaulted a security guard and he believed he was in danger.
She said the trial court had committed several misdirections, including the evidence of the barman and an expert defence witness which pointed to the fact that Tatchell had been shot at close range as he had turned his back to flee.
The judge found, however, that Mkhize had used excessive force, beyond the legitimate bounds of private defence, by shooting three times when one shot would have had the desired effect to ward off the attack.
Regarding sentence, the judge said 11 years on, there was no point in a sentence of correctional supervision because the “rehabilitative element of punishment is no longer relevant”.
Instead, she imposed a five-year suspended sentence, backdating it to January 2009.