The Supreme Court of Appeal has given a Durban security officer who was jailed for the murder of a panel-beater's “crazed” employee the right to appeal his sentence because he could have acted in self-defence.
Sahil Ramthal was convicted and sentenced to eight years' imprisonment by the Verulam regional court in KwaZulu-Natal over the death of Senzo Dlamini in Phoenix in January 2019. He had pleaded not guilty to the charge, and in amplification of his plea, stated that he shot the deceased in defence of his colleague and himself.
During the trial, the state led the evidence of the deceased's employer, Kesaven Atchuden, who was self-employed as a panel beater. Dlamini worked for him and lived in one of the vehicles outside his house.
On the day of the incident, at about 10.30pm, while returning home from visiting a friend, Atchuden testified that he noticed his nephew talking to Dlamini in the yard.
He told his nephew to come inside because it was late, and the nephew obliged. He locked the gate and informed him that Dlamini “was not right”.
Atchuden testified that Dlamini was making a funny sound, screaming and running towards him in slow motion.
He testified that Dlamini shook the gate, wanting to get inside the house. When Atchuden asked him what the problem was, he did not answer. His eyes were red, and he had a “scary” look, he said.
Atchuden said Dlamini walked back and forth towards the house, talking to himself in isiZulu saying “shiya mina, shiya mina”, which was understood by Atchuden as “leave me alone, leave me alone”.
Atchuden testified that Dlamini then attacked the Reaction Unit SA (Reaction) security guard, Samuel Malasamy, who had been called to assist.
Dlamini then got into an altercation with the security guard, and back up was summoned. Ramthal was part of the back up called and he warned Dlamini to stop assaulting the man.
Atchuden testified that it was quite dark, but he saw Ramthal pointing his firearm at the ground and firing one shot.
Atchuden got scared and ran into the house. He left the officers with Dlamini and though he could not see them, he heard two further shots. He, however, did not observe the gunshots.
Thereafter, he noticed Dlamini walking towards the yard and sitting down. He saw blood on his shirt just above his stomach.
Ramthal said when he responded to the scene as backup he noticed his colleague's vehicle parked outside the premises. He found Malasamy on the ground with a man wrestling on top of him.
“The man was punching and assaulting him. Mr Malasamy was screaming for help. The man was pulling Malasamy’s firearm from his holster, which was located on his thigh.”
He said he drew his firearm to assist, as the deceased had managed to seize the guard's firearm.
This was when he fired his first warning shot at the ground.
He added that Dlamini tried to come towards him while pointing the firearm in his direction.
Ramthal said he fired the second warning shot, which was at the deceased’s knee.
“After the second shot, the deceased still had the firearm pointing towards the appellant’s direction. That is when Ramthal fired the third shot. The third shot struck the deceased on his chest. The interval between the shots was quick, it was a few seconds.”
Malasamy testified that while he was speaking to Atchuden’s nephew, the deceased ran towards him and punched him.
“A fight broke out between them. Atchuden and his nephew fled and locked themselves inside the yard.”
Malasamy said he grabbed the pepper spray on his vest and used it, but the spray unfortunately also affected him, and he started choking.
That is when he got into a tussle, and the deceased threw him to the ground.
He managed to get hold of his radio which was on his vest to communicate with the control room to call for backup.
As this happened, he was lying flat on his back while the deceased was on top of him, punching his face and overpowering him. He did not know when the backup arrived.
Malasamy said while tussling with the deceased, he felt Dlamini's hand unclipping his firearm from the holster.
He tried to hold on to the retainer that was hooked to the firearm.
He said he did not know what the intention of the deceased was when he took the firearm from him.
He added that he heard two to three gunshots, after which he got up and saw the deceased walking towards a white Isuzu bakkie.
The deceased sat against the wall and the firearm fell from his hand to the ground.
Malasamy was injured on the bottom lip and had scratches on his hands, fingers and elbows.
He said Atchuden and his nephew were inside the premises and only came out of the house when they saw the deceased lying in the driveway.
A doctor who conducted a post-mortem on Dlamini testified that he had a gunshot wound to the chest with associated injuries to the left chest cavity, along the anterior (front) axilla left lung as well as the left-side haemothorax.
The regional court was impressed with Malasamy’s evidence and accepted it, but rejected the appellant’s version of private defence as one beset with contradictions.
Regarding the sentence, the court found substantial and compelling circumstances to deviate from the prescribed sentence of 15 years’ imprisonment and imposed a sentence of eight years.
Ramthal contended that the high court erred by refusing leave to appeal for several reasons including that the regional court had erred by drawing an inference on the limited evidence of the state’s single witness, Atchuden, and concluding that the appellant unlawfully and intentionally killed the deceased.
The appellant applied for leave to appeal against both his conviction and sentence, which was refused by the regional court. He then sought the respective leave to appeal in the KwaZulu-Natal Division of the High Court, Pietermaritzburg , which was also refused. Special leave to appeal against the refusal of leave to appeal by the high court was granted by the SCA on June 26 2023.
Ramthal's appeal focused on whether the trial court erred in its conviction and sentence, especially concerning the assessment of evidence and the severity of the punishment.
Ramthal argued that the trial court failed to properly consider mitigating factors, while the respondent (state) argued for the conviction's validity.
He was granted leave to appeal to the KwaZulu-Natal division of the High Court, Pietermaritzburg, against his conviction and sentence in the Verulam regional court.
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