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[2021] ZAWCHC 156
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Felix v S (A69/2021) [2021] ZAWCHC 156 (18 August 2021)
IN THE HIGH COURT OF
AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
(Coram: Binns-Ward,
J et Henney, J)
Case
No: A69/2021
In
the matter between:
NATHANIEL
FELIX
Appellant
and
THE
STATE
Respondent
Date
of hearing: 6 August 2021 (The matter was dealt with on the papers in
terms of s19 (a) of the Superior Courts Act)
Date
of Judgment: 18 August 2021 (delivered via email to the parties’
legal representatives and release to SAFLII)
JUDGMENT
HENNEY, J
(BINNS-WARD, J concurring)
Introduction
[1]
The appellant was arraigned before the Regional
Court, sitting at Parow, on six counts of attempted murder, which
emanated from
an incident that occurred at about 9pm on 1 December
2018, when the six complainants were injured or placed in mortal
danger
when the appellant deliberately drove a motor vehicle through
a closed gate into the area where the complainants were congregated
at a braaivleis.
[2]
On 18 February 2020, having entered a plea of not
guilty to all the charges, he was convicted on counts 2 to 5 and
acquitted on
counts 1 and 6. On 22 September 2020, all counts
being taken together for sentence, he was sentenced to six years’
imprisonment, of which two years were conditionally suspended for
five years. His appeal, which is against his convictions
only,
is brought with leave granted by the court a quo.
Grounds of
appeal
:
[3]
The appellant’s appeal is based on three
grounds. Firstly, that the state had not proven its case beyond
reasonable
doubt. Secondly, that the Regional Magistrate had
misdirected herself in finding that the witnesses for the state were
reliable;
and thirdly, that the Regional Magistrate had misdirected
herself in rejecting the version of the appellant as not being
reasonably
possible true. The third ground is, in reality, no
more than a restatement, in different terms, of the first ground.
The Evidence
:
[4]
Not all the complainants mentioned in the charge
sheet testified during the trial. The state based its case on
the evidence
of Ursula Lawrence (“Lawrence”), the owner
of the property where the incident occurred; Leslie Khumalo
(“Khumalo”),
Lawrence’s partner; Wesley Mitchell
(“Mitchell”), Lawrence’s son; Chantel Petersen
(“Petersen”),
an employee of Khumalo and Lawrence; and
Lee Daniels (“Daniels”), also an employee, who was
present at the scene on
the particular evening. The
complainants Shannon Mitchell (“Shannon”), also
Lawrence’s son, and Shahied
Hendricks (“Shahied”),
one of the other complainants and an employee at the business, did
not testify. The appellant
himself testified and also called
his wife, Megan Felix (“appellant’s wife”) as well
as his parents-in-law, Mr.
and Mrs. Arrow.
[5]
It was common cause that Khumalo and Lawrence
conducted a car washing business from their property, situated in
Thornton.
It was also common cause that on the day of the
incident, Khumalo and Lawrence decided to have a braai for their
employees, as
well as other people present on the property. The
driveway of the property can be accessed from the public road in
front
of the property, through a remote controlled gate in a palisade
fence. The driveway runs alongside the house and was used
as
the spot to place the drum that was used for the braai. All the
employees and Lawrence’s sons were outside, standing
in the
driveway, enjoying the braai.
[6]
It was further not in dispute that after the
appellant and his wife arrived at the property, Lawrence offered them
some food.
At that stage, the appellant and his wife had an
argument and, according to Lawrence, he was very rude and abrupt with
his wife,
whereafter he wanted to leave. Khumalo intervened and
pleaded with the appellant to calm down and not to speak to his wife
in such a disrespectful manner. The appellant was not happy
about being reprimanded by Khumalo, and swore at him. The
appellant and his wife were asked to leave, and they proceeded to the
gate accompanied by Khumalo. The appellant and his
wife got
into their car, whereafter, apparently in reaction to a remark the
appellant made about her needing to take care how she
handled her
drink, she almost immediately got out of the car again, and did not
want to leave with the appellant. Instead
she went back into
Lawrence and Khumalo’s house.
[7]
On the state’s version, the appellant
followed his wife into the house and continued arguing with her.
Khumalo succeeded
once again in getting him out of the house.
The appellant left the property and, on Khumalo’s
version, he (Khumalo)
closed the gate with the remote control. The
appellant got into his car while Khumalo stood inside the property,
behind the
gate. On the versions of Khumalo and Mitchell, the
appellant reversed his vehicle a few meters, and then changed into a
forward
gear and crashed his vehicle through the gate. Given
the nature of the dispute, as well as the admission made by the
appellant
that he deliberately drove through the gate, not in the
manner these witnesses testified, but in one motion, not much turns
on
the discrepancy between the two versions. Significantly, it
was common cause that the appellant deliberately drove through
the
gate.
[8]
Based on these common cause and undisputed facts,
there is no need to deal with all the evidence in detail.
Apart from the fact that most of the witnesses were
aware that the appellant was involved in an argument, not only with
his wife
but also with Khumalo, which is also not in dispute, not all
of them could hear exactly what was said and by whom. Not all
of the state witnesses were able to give a clear account of what
happened immediately before the car the drove through the gate.
[9]
All the state witnesses’ evidence regarding
the injuries they sustained during the incident, caused by either the
appellant’s
vehicle driving into them or by the gate which the
appellant knocked over, is beyond dispute, as said earlier. I
will briefly
deal with such evidence as is relevant to the issues
raised on appeal.
[10]
Lawrence was inside the house when the appellant
crashed through the gate and only heard the noise of the crash. Her
evidence
mostly concerned the argument between the appellant and his
wife, and later the appellant and Khumalo. She was not aware of
the reason for the argument between the appellant and his wife. She
also testified that the appellant was rude and very abrupt
with his
wife, which caused her partner Khumalo to intervene, which resulted
in the appellant having an argument with Khumalo.
[11]
During cross-examination she was confronted with
her initial witness statement, wherein she had stated that, while in
the lounge
and on their way out, the appellant had told Khumalo ‘I
will kill you’, which she had not mentioned in her evidence
in
chief. Her explanation was that she had forgotten to mention
it. Khumalo, the appellant and his wife went outside,
they
proceeded to the gate, and the appellant and his wife eventually left
the property. They drove away and the gate was
closed.
Lawrence stepped into the house to attend to her grandchild and
after approximately 20 to 25 minutes, the appellant
and his wife came
back into the house. His wife came to the room where Lawrence
was; his wife was in tears, and she uttered
the words ‘I can’t
stand this any longer’. Lawrence, in reply, told her to
go home and sort out whatever
problem she had with the appellant.
[12]
The appellant’s wife then proceeded to call
her parents. While Lawrence was in the room with the
appellant’s wife,
she heard the commotion outside and observed
that the appellant’s vehicle had crashed into their Volvo motor
vehicle. She
went outside and saw blood and bodies lying in the
driveway. She also observed that the gate had been knocked
over. She
further testified that nobody at the scene had been
intoxicated. She was not aware as to whether the appellant’s
wife
had consumed any alcohol and denied that appellant’s wife
had been drunk. According to Lawrence, she was sober. She
further denied that the appellant had been denied entry to the
property to fetch his wife. She also denied that Shahied had
threatened the appellant with a long knife and had prevented him from
entering onto the property.
[13]
Petersen testified that, while standing in the
middle of the driveway, she saw the car rapidly approaching in her
direction, and
turned away from the oncoming vehicle. She was
not able to get out of the way in time, and was hit on the left side
of her
body. At the time, Shannon and Shahied had also been
present in the driveway. Her wrist was fractured, she sustained
an injury to her left ankle, and some scrape wounds on her stomach.
This witness’s evidence was not really disputed
by the
appellant since, on the version put to her, the appellant had not
known where she was when he drove his car into the driveway.
She
denied that the appellant’s life, or that of his wife, had been
in danger, or that anyone had threatened the appellant
with a knife
before the incident.
[14]
Khumalo’s evidence was that he had been
right behind the gate on the inside of the driveway, and assumed that
the vehicle
reversed to gain momentum to ram through the gate. He
testified that, on impact, the gate flipped over and fell to the
other
side of the driveway, landing on top of him. He sustained
very serious injuries to his left eye, which was dislodged from
its
socket. As a result of this, he partially lost the sight in
this eye. His wrist was also fractured and he sustained
a rib
injury.
[15]
Khumalo had been more involved with the appellant
and his wife on the evening of the incident, and his version was more
detailed
than that of the other witnesses. His interaction with
the appellant continued at the gate, and he had further discussions
with him about his treatment of and behaviour towards his wife, which
the appellant did not like. He stated the appellant
told him
that that was the last words he would be uttering and the appellant
threatened to crash his car through the gate. He
denied that
Shahied had, at any stage, threatened the appellant with a knife
before the incident, or that the appellant had been
denied access to
the property to fetch his wife. According to him, the
appellant’s wife was free to leave at any time
but chose to
stay on the property.
[16]
Mitchell also gave a very detailed version of the
events. His evidence about the appellant’s conduct on
that particular
day corroborated that of Khumalo. He described
the argument between the appellant and Khumalo as one-sided, and
described
Khumalo’s demeanour as very calm. According to
him, Khumalo tried to calm down the appellant. When he observed
the appellant and Khumalo arguing, he was approximately 5 to 6m away
from the gate. At that stage, he heard the appellant
saying to
Khumalo ‘do you want to die tonight’.
[17]
The appellant left his wife, drove off, came back
after two minutes and once again proceeded to argue with Khumalo.
Thereafter,
the appellant got back into his car, reversed, and
immediately changed direction by moving forward very fast, and drove
his car
into the gate, which in turn hit Khumalo. The appellant
stopped for about two seconds, and then continued, and in the process
knocked over a number of people. He observed that Petersen had
been knocked over and was lying with her face flat on the
ground next
to the front tyre of the appellant’s car. He also
observed that his brother Shannon had a broken tooth,
which had been
completely chipped off.
[18]
When the appellant thereafter tried to run away,
Shahied and Shannon tried to stop him, but they could not pin him
down. He
further testified that all of them were in the
driveway when the vehicle smashed through the gate, as they had all
been standing
around the braai. He was not injured, because he
managed to jump out of the way before the car could hit him. It
must
be mentioned that this witness’s version, that the car
came to a standstill, whereafter it moved and collided with the
people
standing in the driveway, is not consistent with the version
of the other witnesses. Especially Daniels, who testified that
the appellant, after the vehicle crashed through the gate, did not
move from that position. This witness also denied that
the
appellant had been denied access to the property to fetch his wife,
and while he conceded that the appellant had been threatened
with a
knife by Shahied, he stated that this only happened after the
incident.
[19]
Daniels had been involved with the braai in the
driveway at the time when he observed Khumalo standing by the gate.
According
to him, Khumalo was in the car’s pathway. He
heard the car crashing through the gate, whereafter the vehicle
crashed
into him while he was standing in the driveway, causing him
to land on the vehicle’s bonnet. He was subsequently
taken
to hospital. He sustained only a mild injury to his right
leg. Petersen and Shannon had also been in the driveway with
him, but he could not say whether they were injured in the collision.
He recalled that Shannon fell over the braai when the
vehicle
collided with him. He was unable to say whether the appellant’s
wife had been intoxicated or whether her drink
had been spiked.
[20]
He denied that his leg injury had not been the
result of his attempts to straighten the gate after the accident. He
testified
that Shahied had pulled a knife and wanted to attack the
appellant after the incident, but denied that this had happened
before
the incident. He was further adamant that he, Shahied
and Petersen had been in the driveway and that Khumalo stood
immediately
on the inside of the driveway, right at the gate, when
the vehicle rammed through it.
[21]
The appellant confirmed that he and his wife had
been at Lawrence and Khumalo’s property. He had taken his
car to Khumalo’s
business to be cleaned earlier that day, and
he and his wife had been invited to come over for a braai later. At
that time,
Khumalo had been drinking some beer. While at the
braai, they started socialising and he observed his wife’s
behaviour
to be very strange, after she had consumed a slight amount
of a Savanna alcoholic beverage. He described her as being not
her normal self, confused and dazed after taking a only sip of the
Savanna. Because of his experience as a barman, he inferred
that her drink had been spiked. He also observed that Khumalo,
Daniels, Petersen, Shahied, as well as Mitchell, were all
drunk at
that stage. He did not see Lawrence drinking anything, because
she was busy putting her grandchild to bed.
[22]
When he observed his wife’s condition, he
asked her if she wanted to leave and she said yes. As they were
about to leave,
they were stopped because they were offered some
food. The homeowners did not want them to leave. While
they were dishing
some food, Lawrence suddenly came out of the room
and told them they could not leave, because by doing that they would
be belittling
and embarrassing them before their employees. His
wife then changed her mind and said she would stay. He was
upset
with his wife for changing her mind.
[23]
His wife then disappeared and he went to look for
her inside the house. He found her in the en-suite bathroom
adjacent to
one of the rooms, where she was sitting on a toilet seat,
with Khumalo and Lawrence towering over her. He took his wife
by
the hand and told her that they would be leaving, because he did
not like what he was seeing. They then proceeded through
the
gate. At that point, Khumalo and the other people, which
included Shahied, Petersen, Daniels and Shannon, were making
comments
and wanted to interfere with them wanting to leave. They told
him that he should leave his wife and that he could
go, and that she
should stay there with them. He did not want to leave his wife
there, because she was under the influence
and she looked as if she
had been drugged, and was not in a sound state of mind.
[24]
He also did not feel comfortable with the people
present. He was especially uncomfortable with leaving his wife
in the company
and presence of Khumalo, who had on a previous
occasion made derogatory remarks about women. After they got
into the car,
he told his wife that she needed to handle her drink,
and in reaction to this she jumped out of the car and ran back inside
the
house. He thought she might have forgotten her purse, and
he proceeded to get out of the car and smoked a cigarette while
waiting for her. Later he approached Khumalo, who was standing
at the gate at that time, and asked him whether he knew where
his
wife was. Khumalo told him that he did not know where she was
and further that she did not want to leave with him. He
also
told him that she was not “his property”.
[25]
This irritated the appellant, because he could
see that Khumalo was extremely drunk and he was not willing to leave
his wife with
him. He regarded Khumalo as a shady character,
because during a previous encounter between them, Khumalo had told
him about
being at a nudist camp. Khumalo continued telling him
that his wife did not want to come home with him. The
conversation
between himself and Khumalo became a bit louder, and he
saw Shahied approaching with a shiny object, which he identified as a
knife.
He then told Khumalo, as a final warning, that if he did
not let his wife come out, that he would take his car and drive
through the gate. His intention was to cause some commotion, so
that the police could come to assist him.
[26]
Khumalo was laughing and did not take him
seriously. He then got into his car and took a drive around the
block, because he
wanted to call his father-in-law to get people to
come and assist him, but his cell phone battery went flat. He
thereafter
went back to the driveway, parked his car in front of the
gate on the outside, and once again asked Khumalo where his wife was.
Khumalo did not reply, but quoted some Bible verse. At
that point the gate was partly open, with Khumalo standing to
the
side of the gate. He then proceeded to tell Khumalo that he
would drive his car through the gate if Khumalo did not let
his wife
come out. He switched on his car’s lights; there was
nobody behind the gate that he could see that would be
harmed.
[27]
His thinking was that if he went through the
gate, he would not be injuring anyone; he wanted to crash into the
car (Volvo) that
was standing on the property, and by doing so he
would also be able to prevent anybody from driving away with that
car. He
then proceeded to drive through the gate; nobody was in
front of him at that point, there was no one in the driveway. The
gate went under his car. He did not, after he crashed through
the gate, stop and then proceed to drive further. He
only saw
Petersen lying against the car for some or other reason, but he
thought that she could have tripped against a gutter at
the front of
the stoep causing her to fall onto the car.
[28]
He did not see anybody lying on the ground. He
then ran away, because he was going to be attacked by the people on
the premises.
He saw Shahied with a long pick axe handle or
metal object in his hand. Shahied used this object to hit
against the
vehicle. Shannon was also trying to attack him. He
ran away and managed to get to a nearby shop, where he asked the
manager to call the police. He thereafter went back to the
scene, when he saw the police and his in-laws there. He
was
later placed in the police vehicle for his own safety. He
denied that the injuries that were sustained by the witnesses
could
have been caused by his conduct. It was never his intention to
kill anybody when he decided to ram his car through
the gate.
[29]
The appellant’s wife testified and
confirmed his evidence regarding them attending the braai. While
sitting on the stoep
with the appellant, she was given a Savanna
drink by Khumalo. After having a sip of this drink, she felt
“tipsy”.
She did not feel too well, and she and the
appellant decided to leave. She vaguely recalled Lawrence
coming from the
room and saying that she must make up her own mind
about going home. In response to this, she told Lawrence that
she and
the appellant had decided to leave.
[30]
They left the premises and when they got into the
car, parked outside the gate, the appellant told her that she needed
to handle
her drink better. The appellant’s remark upset
her, and she got out of the car and went back inside the property.
She
could not remember what had happened inside the house, but
thought that she had gone to fetch her bag. A lot was said, but
she could not remember exactly what. She believed that the
reason she could not remember, was because she had been drugged.
She
could not recall everything that happened.
[31]
She described the appellant’s demeanour as
being calm, and she could not recall the appellant being abrupt,
aggressive and
disrespectful to her, or even swearing at Khumalo.
According to her, she was the one that had been out of line and
swearing.
She never said that she did not want to go home.
After going back into the house, everything was a bit unclear
to her;
she recalled that she was sitting in the toilet and she heard
Lawrence saying that something had happened outside. She looked
through the window and saw that their car had crashed into the Volvo.
She could not see if anybody was injured.
[32]
Although she saw Khumalo, she did not see that he
had any injuries. She did not go outside immediately, because
she was not
herself. She did not see the injury to Khumalo’s
eye, or any blood on him, because it was chaotic. She did not
see any other people that had been injured. She could not
recall that she called anybody, but later stated that she remembered
calling her mother, and may have also called the police. She
could not remember much of the detail. She furthermore
could
not recall what words were said between Lawrence, Khumalo and the
appellant. The other people on the premises appeared
to be
drunk, according to her. In cross-examination by the
prosecutor, she stated that she did not at any stage feel threatened
by anyone that present on the premises on that particular evening.
[33]
The appellant’s father-in-law, Mr. Arrow,
testified that he received a call from the appellant on the evening
of the incident,
but he could not speak to him because the phone went
off. Ten minutes thereafter, his daughter called and she was
hysterical
and told them to come to Thornton. She could not
give them the address. His wife spoke to Lawrence, who gave
them the
address. They went to the scene of the incident and
found their daughter, as well as the appellant. This witness
testified
mostly about what happened after the incident, and his
evidence did not take the matter any further. Similarly, Mrs.
Arrow,
his wife, only arrived at the scene after the incident
happened, and her testimony also did not take the matter any further.
Evaluation:
[34]
I do not agree with the appellant’s
submission that the Regional Magistrate erred in accepting the
evidence of the state witnesses,
especially with regards to the
circumstances that prevailed on that specific evening, which led to
the appellant crashing his car
through the gate of Lawrence and
Khumalo’s property. Khumalo, as well as Lawrence, came
across as honest and reliable
witnesses, who did not contradict
themselves. The contradiction of note in the versions of the
state witnesses, is whether
the appellant first reversed his vehicle
to pick up momentum before he proceeded to drive forward into the
gate. Khumalo
in his evidence initially created that
impression, but afterwards in cross-examination said that he assumed
that that had happened.
Similarly, Mitchell’s version
that the appellant first, after crashing through the gate, came to a
standstill, then
proceeded to drive further into the persons standing
in the driveway, was contradicted by Daniels, who said that the
appellant
crashed through the gate in one motion which resulted in
them being injured. In light of the admission the appellant
made,
that he deliberately drove his car through the gate for the
reasons that he had given, I do not view these contradictions in a
very serious light, and they are not material.
[35]
There was no indication that the state witnesses
were out to falsely implicate the appellant. It is clear, even
on the versions
of the appellant and his wife, that they had been
invited to join Lawrence and Khumalo for a braai on that particular
evening,
which they shared with their employees and their family. It
is difficult to imagine that Khumalo, in cahoots with Lawrence,
would
devise such an evil plan as the appellant would have had the trial
court believe: firstly, to spike his wife’s drink
with some
drugs and, secondly, to hold his wife against her will to harm her,
whilst their employees and their children were present.
And
then thirdly, that they would prevent the appellant from entering the
property or prevent the appellant’s wife from leaving
the
property.
[36]
The appellant’s version, and that of his
wife, that Lawrence and Khumalo had ulterior motives to do something
untoward to
the appellant’s wife, is clearly a fabrication to
justify the appellant’s behaviour. The picture presented
by
the evidence of Lawrence and Khumalo, about the appellant’s
behaviour to his wife and his conduct, in my view, is acceptable
and
is clearly consistent with his conduct afterwards. On the
evidence, it is clear that he was a jealous and possessive
person,
and it is furthermore clear that his wife was upset by his behaviour
and did not want to leave with him when he wanted
to go. It was
for that reason that she decided to stay; and not because of Khumalo
not wanting her to go with him.
It was because of the argument
between the two of them that she decided to stay at Lawrence and
Khumalo’s house. He
could not accept that, and that was
the reason why he rammed his car through the gate. His evidence
as to why he acted in
this manner is implausible and clearly not
convincing. His version is highly improbable and dishonest.
[37]
He was not a good witness and the Regional
Magistrate correctly rejected his version as not reasonably possibly
true. It was
clearly contradicted by his wife, whose evidence
was that she was not forced by anyone not to leave. His wife’s
evidence
given during the trial was clearly designed to protect the
appellant, after she realised the consequences of his actions, and
her
evidence about the appellant being calm and not being involved in
any arguments with Khumalo, was unconvincing, and inconsistent
with
the inherent probabilities.
[38]
The appellant’s wife was selective in what
she chose to remember. When she was confronted with the version
of the state
witnesses regarding the appellant’s behaviour,
about his arguments with and the aggressiveness he showed towards
Khumalo
and Lawrence, she conveniently could not remember. Her
evidence regarding what really happened to cause the appellant to
drive through the gate, was vague and unhelpful.
[39]
Based on the common cause facts and the objective
evidence in this case, it seems that the appellant deliberately, on
his own version,
drove through the gate onto the driveway of this
premises, which resulted in the complainants having sustained the
injuries in
the manner they testified before the court a quo. The
appellant’s denial that any of the persons sustained any
injuries,
given the overwhelming evidence that it had been caused as
a result of him crashing through the gate onto the driveway, is not
sustainable, based on this strong objective evidence as presented by
the prosecution. His version that the various complainants
could not have sustained the injuries cannot be accepted, as it is
not reasonably possibly true. The Regional Magistrate,
in my
view, was correct in accepting the evidence of the various state
witnesses in this regard. The evidence could not in
any way be
gainsaid by the appellant, and he could not explain how the
complainants could have sustained their injuries, especially
Khumalo
and Petersen, who sustained very serious injuries.
[40]
On the undisputed and objective evidence, it is
clear that the braai drum was placed in the middle of the driveway,
which was directly
in the pathway of any vehicle that would have
entered that driveway, and standing around the braai drum were
Petersen, Daniels,
Shannon and his brother Mitchell. According
to the witnesses, it was still light and the appellant, on his own
version, stated
that his motor vehicle’s headlights were on.
The driveway gate was made of palisade square tubing, placed 10
cm apart,
through which one could see clearly from the outside onto
the driveway or from the inside onto the road. Based on the
evidence,
therefore, appellant must, firstly, clearly have been aware
of the presence of people standing in and around the braai area in
the driveway and, secondly, must have seen these people, and
especially Khumalo, congregating in the driveway.
[41]
The Regional Magistrate, in my view, did not err
in accepting the evidence of the various state witnesses that
observed what happened
on that particular day. It may well be
so that the witnesses did not exactly corroborate each other on each
and every point.
This is to be expected under circumstances
such as happened in the present case, where they were confronted with
a scene
that was not static, and where they observed the scene from
various vantage points and with different opportunities for
observation.
[42]
They
observed the scene, as the car came crashing through the gate, at
different stages while it was unfolding. Mitchell,
for
instance, it seems, was more aware of what happened between Khumalo
and the appellant, and was more observant than the other
people. It
was for that reason why he was able jump out of the pathway of the
vehicle before it reached him, whereas Petersen
and Daniels were less
observant and were unable to take evasive action. Khumalo, on
the other hand, was nearest to the gate
and the vehicle, which
explains why he was so severely injured, to the extent that the gate
fell on top of him. As Nicholas
J
[1]
(as he then was) once observed:
‘
Different witnesses see
the same incident from different vantage points and slightly
different points of time. They may have
different opportunities
for observation. Again discrepancies may arise quite innocently
because witnesses have different
powers of observation. The
impression may be coloured by different emotional states such as fear
and their powers of recollection
and their powers of description
differ. The fact that there are discrepancies between the
accounts of one witness and another
does not in itself show that
either of them is untruthful or unreliable or the case of the party
calling them is built upon uncertain
foundation. If it can be
found that the evidence of one witness on the particular point is
true, and that of another is false,
that may, depending on the
circumstances, constitute a ground for regarding with suspicion the
evidence of the second witness on
other points, or discrepancies
between the two witnesses may be so numerous and of such a nature as
to lead to the inference that
the evidence is not based on facts, but
has been fabricated.’
[43]
The Regional Magistrate, in my view, correctly
rejected the appellant’s version, that he acted in
circumstances of emergency
when he was denied access to Lawrence and
Khumalo’s property. His version about him fearing that
his wife would be
harmed is clearly a fabrication. No such
circumstances existed, and even on the evidence of his wife, she did
not appear
to be in a situation of imminent harm that would have
justified the appellant acting in the manner which he did, by ramming
his
motor vehicle through the gate into a driveway on which he knew
people were holding a braai.
[44]
In my view, the evidence objectively shows that
he deliberately drove through the gate, because his wife did not want
to accompany
him, he was upset with Khumalo for telling him that his
wife was not his property, and that she did not want to go with him,
and
it was for that reason that he acted the way he did. He
could not get his way and for that reason, knowing full well that
Khumalo and the other complainants and witnesses were present in the
driveway, he deliberately drove through the gate. The
next
question to consider is whether the appellant, in doing so, had the
necessary intention to commit murder.
[45]
A court is seldom faced with direct evidence
about the intention of an accused person formed during the commission
of an offence.
This fact is usually inferred from the evidence
concerning the circumstances in which the accused carried out the
actus reus.
The appellant, on that particular day, was very
aggressive; Lawrence testified that he made some threats to Khumalo,
saying
that he would kill him. Khumalo on the other hand, said
that the appellant told him that it would be the last words he would
say. Mitchell similarly heard the appellant say to Khumalo ‘do
you want to die tonight’.
[46]
Given the contradictions in the versions of the
state witnesses as to the precise words uttered by the appellant to
Khumalo, which
is understandable, I do not think the court can
conclude that the appellant indeed threatened to kill Khumalo.
[47]
In my
view, the court a quo was correct in coming to the conclusion that
the appellant had formed the requisite intention in the
form of
dolus
eventualis
.
This form of intention is well established in our law.
S
v Sigwahla
[2]
stated the following principles:
‘
1.
The expression “intention to kill” does not, in law,
necessarily require
that the accused should have applied his will to
compassing the death of the deceased. It is sufficient if the
accused subjectively
foresaw the possibility of his act causing death
and was reckless of such result. This form of intention is
known as
dolus eventualis
, as distinct from
dolus directus
.
2.
The fact that objectively the accused ought reasonably have foreseen
such possibility
is not sufficient. The distinction must be
observed between what actually went on in the mind of the accused and
what would
have gone on in the mind of a
bonus paterfamilias
in the position of the accused. In other words, the distinction
between subjective foresight and objective foreseeability
must not
become blurred. The
factum probandum
is
dolus
,
not
culpa
. These two different concepts never coincide.
3.
Subjective foresight, like any other factual issue, may be proved by
inference.
To constitute proof beyond reasonable doubt the
inference must be the only one which can reasonably by drawn.
It cannot
be so drawn if there is a reasonable possibility that
subjectively the accused did not foresee, even if he ought reasonably
to
have done so, and even if he probably did do so.’
The principles set
out in
Sigwahla
have in the recent past been reaffirmed by the Supreme Court of
Appeal in
S
v Humphreys
[3]
.
The Regional
Magistrate relied in her judgment on
S
v Ndlanzi
[4]
,
where the following was said in the context of intention to murder
where a motor vehicle was used as an instrument, as in the
instant
case:
‘
[34]
The appellant conceded that it was peak hour traffic and there were
many pedestrians. They were rushing to catch taxis
and were on
the pavement and in the road. The appellant maintained,
however, that the pedestrians on the pavement were at
a distance
moving away from him. When he drove onto the pavement he saw
the newspaper stand and the other objects in his
vehicle’s path
and he believed he would “overcome” them but collided
with them. He maintained that he never
saw the deceased because
he “was looking back and sideways”.
[35]
Any person with a modicum of intelligence would have appreciated that
driving a motor vehicle onto the pavement in the prevailing
circumstances of this case raised the possibility that a collision
with a pedestrian would occur with fatal consequences. Any
right-minded person would have foreseen the possibility of the death
of a pedestrian.
[36]
On the evidence there is no basis for concluding that the appellant
did not possess the requisite subjective intent in accordance
with
this standard.
[37]
The second element of dolus eventualis requires proof that
the appellant reconciled himself to the foreseen possibility
of the
death of a pedestrian. As pointed out by Brand JA
in
Humphreys
at 9
i-j
:
“
The
true enquiry under this rubric is whether the appellant took the
consequences that he foresaw into the bargain; whether it can
be
inferred that it was immaterial to him whether these consequences
would flow from his action. Conversely stated, the principle
is
that if it can reasonably be inferred that the appellant may have
thought that the possible collision he subjectively foresaw
would not
actually occur, the second element of dolus eventualis would
not have been established.”’
[48]
In my view therefore, the Regional Magistrate was
correct in concluding that the appellant formed the requisite
intention to murder
the complainants. Based on the evidence
presented, the state proved its case beyond reasonable doubt.
The appeal against
conviction therefore falls to be dismissed.
I make the following order:
“
The appeal
against conviction is dismissed.”
R.C.A. HENNEY
Judge of the High
Court
A.G. BINNS-WARD
Judge of the High
Court
[1]
In the unreported matter of S v Joseph Khoza dated 11 September 1987
(Witwatersrand Local Division) cited in S v Grove
[2005] ZAGPHC 263
(6 June 2005).
[2]
1967 (4) SA
566
(A) at 570B-E.
[3]
2015 (1) SA 491
(SCA), paras 12-17.
[4]
2014 (2) SACR 256
(SCA).