Sicubeni v S (A52/2021) [2021] ZAWCHC 271 (1 December 2021)

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[2021] ZAWCHC 271
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Sicubeni v S (A52/2021) [2021] ZAWCHC 271 (1 December 2021)

IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case No.:A52/2021
In
the matter between:
BULELANI
SICUBENI
Appellant
and
THE
STATE
Respondent
JUDGMENT
DELIVERED ELECTRONICALLY ON  01 DECEMBER 2021
MANGCU-LOCKWOOD
et
KUSEVITSKY, JJ:
(concurring)
and
THULARE AJ
,
(dissenting)
I.
INTRODUCTION
[1]
This
is an appeal against a conviction and sentence imposed against the
appellant by a Magistrate in the Hermanus Magistrate’s Court.
The
appeal comes before us with leave from the court
a
quo
.
[2]
The
appellant was charged with unlawfully and intentionally killing the
deceased, Miriam May with a firearm. The Magistrate found
the
appellant guilty of the charge, and imposed upon him a sentence of
eight years’ direct imprisonment, and deemed him unfit to
possess a
firearm in terms of
section 103(1)
of the
Firearms Control Act 60 of
2000
.
II.
THE
FACTS
[3]
The
evidence led is comprehensively set out in the judgment of the court
a
quo
,
and, unless relevant, it is not necessary to repeat it in detail.
[4]
Most
of the moments leading to the fateful shooting are not in dispute.
The appellant is a police officer. On the day in question,
he and a
fellow police officer (“
Constable
Mvimbi”
)
attended at a house in Stanford where the deceased lived together
with her partner, Frikkie Sardine (“
Frikkie”
)
[1]
and her daughter, Bertoline May (“
Bertie”
).
The police officers were investigating a case of a stolen generator
which was alleged to be in the possession of Frikkie. They
had also
gone to warn Frikkie not to go to a local Somalian shop because they
had received complaints about his conduct there.
[5]
Upon
arrival, the police officers did not receive a warm welcome, not
least from the family’s pit-bull, which is recorded to be
“
quite
a big dog”
of about 50cm or half a metre in height (“
the
dog”
),
and was unchained in the yard.  In order to gain entry into the
yard and ward off the dog, the police officers used steel
rods. Even
still, Frikkie had to restrain the dog to enable the police officers
to gain entry inside the house.
[6]
It
is also common ground that upon gaining entry inside the house, the
situation between the police officers on the one hand, and
the
deceased’s family on the other, was chaotic and aggressive. Frikkie
and family were shouting and swearing at the police officers
because
the latter sought to search the former’s house for the generator.
The deceased, who appeared to be doing laundry, was annoyed
because
she had been released from prison on the previous day; yet there were
police officers in her house. She started throwing
dirty laundry at
the police officers.
[7]
According
to the police officers they found the generator under the pile of
dirty laundry that the deceased appeared to be washing.
When the
police officers tried to apprehend Frikkie to take him to the police
station for further questioning, a more aggressive
physical struggle
ensued, resulting in some items of the appellant's uniform falling to
the ground. Both the deceased a
nd
Frikkie were
physically
pushing the police officers out of their home. Frikkie managed to
break free from being apprehended, and ran outside the
house, which
caused Constable Mvimbi to chase after him. The appellant was left
behind with the deceased, and Bertie who, by now,
was wielding a
stick in her hand.
[8]
From
this point onwards, there are vast differences between the version of
the appellant and Constable Mvimbi on the one hand, and
the version
of the state witnesses on the other. The Magistrate rejected the
evidence led on behalf of the appellant as far-fetched
and
improbable, and his judgment is based on the evidence led on behalf
of the state. The witnesses called on behalf of the state
were Arsene
Williams (“
Williams”
),
Shireen Julies (“
Ms
Julies”
)
and Frikkie.
[9]
According
to all the witnesses who gave evidence on behalf of the state, when
Frikkie ran out of the house, he left the yard and ran
into the
street, and Constable Mvimbi followed him into the street. This left
the appellant with the deceased, Bertie and the pit-bull
outside the
house but still inside the yard. The pit bull was snarling and
growling at the appellant, and had to be restrained by
the deceased
from moving towards the appellant. The appellant started chasing
after Frikkie, towards the gate leading outside of
the yard. The dog
broke loose from the deceased and started running behind the
appellant.  It was at this point that the appellant
turned
around, aimed at the dog, and fired two shots in rapid succession.
According to both Ms Julies and Mr Williams, when the appellant
fired
the shots, the dog was approximately 2 to 3 metres behind him, and
was also about the same distance in front of the deceased.
According
to ballistic evidence, the first shot killed the dog, and the second
one hit the deceased in the chest and killed her immediately.
[10]
The
appellant’s version, which was corroborated by Constable Mvimbi,
was
that, when Frikkie escaped from being apprehended by the police
officers in the house, he (Frikkie) first untied the dog which
had
been tied to a door when the police officers gained entry into the
house, and ‘aimed’ or directed the dog to attack the police
officers. According to the appellant, Frikkie did not immediately
exit the yard but initially ran in a direction opposite the gate.
The
appellant then stood in such a way as to block Frikkie from reaching
the gate when he decided to do so; whilst Constable Mvimbi
was
blocking another route, inside the yard, so that Frikkie would not
escape in that direction. Next, Frikkie and the dog sprinted
in the
appellant’s direction. When the appellant tried to apprehend
Frikkie, the dog jumped and bit the appellant on his left forearm.
Thereafter, the appellant walked towards the house, where he had
earlier discovered the generator, and was alerted by Constable Mvimbi
that the dog was coming after him. This is when he shot the dog.
[11]
The
appellant further testified that when he shot the dog, the deceased
was inside the house and, upon hearing him shoot the dog,
she came
out brandishing a steel rod, seeking to attack him with it for
shooting the dog. When the deceased was approximately 3 meters
away
from the appellant, Constable Mvimbi intervened to block her from
approaching the appellant any further. The deceased, however,
was
trying to break loose. The appellant was covering his face with his
hands for protection because he also saw the deceased trying
to throw
the steel rod at him. The deceased managed to break free from
Constable Mvimbi and started approaching the appellant, and
also made
a motion indicating that she was about to throw the steel rod at the
appellant. That is when the appellant fired a shot
at her, in fear
for his life.
[12]
In
the court
a
quo
the appellant relied on private defence in order to escape liability,
and as a result, a substantial part of the Magistrate's decision
dealt with the element of unlawfulness, and in particular the
appellant’s defence. As I have already indicated, the Magistrate
rejected the appellant’s version as being far-fetched and
improbable. After dismissing the appellant’s defence, the
Magistrate
considered the element of intention and concluded that the
appellant had possessed the form of intention known as
dolus
eventualis
,
and thus found him guilty of murder.
III.
THE
APPEAL GROUNDS
[13]
According
to the notice of appeal, the grounds of appeal against the conviction
are that the court
a
quo
erred in not finding that the appellant acted out of necessity,
private defence, alternatively putative necessity or private defence.
However, in the appellant’s heads of argument and in the hearing
before us the reliance on private defence was abandoned, and the
appellant’s counsel placed emphasis on the defence of necessity,
and in the alternative, it was argued that the appellant lacked
the
necessary
mens
rea
to kill the deceased; and in the further alternative, that the
appellant’s conduct was not negligent (“
the
new defences”
).
As regards the sentence imposed, it was argued on behalf of the
appellant that the court
a
quo
failed to take into account the appellant’s circumstances, and
ultimately that the sentence is startlingly inappropriate shocking
and unreasonable.
[14]
The
parties were invited by Court Directive to file further submissions
regarding the basis on which this Court may determine the
appeal
based on the new defences raised by the appellant which were not
raised in the Magistrate’s Court. The state opposes such
an
approach on the basis that the new defences amount to “
new
evidence which the respondent has no power to challenge and
disprove”
.
No further detail is provided in this regard.
[15]
The
legal position is that the mere fact that a point of law is raised
for the first time on appeal is not in itself sufficient reason
for
refusing to consider it. If the point is covered by the pleadings,
and if its consideration on appeal involves no unfairness
to the
other party against whom it is directed, a court may in the exercise
of its discretion consider the point.
[2]
The
legal contention must also raise no new factual issues.
[3]
Unfairness
may arise, for example, if the law point and all its ramifications
were not canvassed and investigated at trial.
[4]
[16]
In
addition to the above, the following was stated in
Cole
v Government of the Union of South Africa
[5]
:
“…
And
no such unfairness can exist if the facts upon which the legal point
depends are common cause, or if they are clear beyond doubt
upon the
record, and, there is no ground for thinking that further or other
evidence would have been produced had the point been
raised at the
outset.”
[17]
It
is evident when having regard to the above principles that unfairness
will be occasioned upon the respondent if the matter is determined
based on the new defences. First, as appears above, the facts were
not common cause between the parties. The appellant relied on
a
version of events which was eventually rejected by the Magistrate.
But it now appears that the appellant, in raising the new defences
on
appeal, no longer wishes to rely on the version he relied on in the
trial court. In fact, during the hearing of this appeal, the
appellant's counsel was constrained to concede that he could not
persist with reliance upon the appellant’s version of events.
This
is a concession well-made because
it
is trite that a court of appeal is bound by the factual findings of
the trial court except where these findings are wrong or not
borne
out by the record. This is especially the case when the findings are
dependent on the credibility of the witnesses who testified.
[6]
The consequence is that the version given by the appellant in the
trial court cannot be tested against these new defences that are
now
raised on appeal. In effect, the appellant’s new defences appear
to be tailored to fit in with the evidence that was
upheld by
the Magistrate. This is impermissible, and  the State is
justified in stating that it has no power to
challenge
and disprove the new defences, which is patently unfair.
[18]
Even
more perplexing is that the appellant partly relies on his already
rejected version as a basis for the new defences in the supplementary
heads of argument submitted on his behalf. It is stated that the
Magistrate failed to take into account the fact that the pit-bull
was
so aggressive towards the appellant that it bit him, resulting in
bite marks. However, the version that the pit-bull attacked
the
appellant, causing him to sustain injuries was rejected by the
Magistrate. The Magistrate did accept, however that the pit-bull
was
generally aggressive towards the appellant. The result is that the
appellant is now combining the two versions to make his argument.
This demonstrates the danger of determining this appeal based on the
new defences.
[19]
As
regards the defence that the appellant did rely upon in the court
a
quo,
namely private defence, it is understandable that the appellant no
longer wishes to rely on it. According to the version accepted
by the
Magistrate, the shot that killed the deceased was in fact directed,
not at the deceased as the appellant claimed, but at the
dog.
That being the case, there can be no talk of private defence, because
one of the requirements for such a defence is that
it must be
directed at the attacker. Thus, there was no misdirection by the
Magistrate in rejecting this defence. There was furthermore
no
misdirection in the Magistrate considering that ground, as is now
claimed, because it was the appellant who sought to rely on
it, and
as a result, that ground required examination.
IV.
LEGAL
PRINCIPLES ON APPEAL
[20]
To
secure a conviction, the State has to prove all the elements of the
crime beyond reasonable doubt. If there is a reasonable possibility
that the accused is not guilty, (s)he should be acquitted.
[7]
The accused should be convicted if the court finds not only that his
or her version is improbable, but also that it is false beyond
reasonable doubt. It is not necessary for the court to believe an
accused person in order to acquit him or her.
[21]
The
State has to prove its case against an accused beyond reasonable
doubt, but in evaluating the evidence, the trial court is entitled
to
consider the probabilities and improbabilities.  As stated in
S
v Chabalala
[8]
, â€œ
[t]he
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable doubt about the
accused’s guilt.”
[22]
An
accused’s version cannot be rejected merely because it appears to
be improbable.  It must be shown, in light of the totality
of
the facts, to be so untenable and/or improbable and/or false that it
cannot reasonably possibly be true.
[9]
[23]
In
the absence of factual error or misdirection on the part of the trial
judge, his or her findings are presumed to be correct.
[10]
Only where the Court of Appeal is persuaded that the conclusions of
the trial judge are incorrect will it be overturned.
[11]
A Court of Appeal must moreover refrain from speculating about
possible explanations which were not even raised by the
appellant.
[12]
[24]
Bearing,
the above legal principles in mind, I do not find that there was a
misdirection with regards to the factual and credibility
findings
made by the trial court, except in respect of the application of the
principle of
dolus
eventualis
,
which is discussed below. In fact, in relation to the factual and
credibility findings made by the Magistrate, it bears repeating
that,
in argument before us, the appellant’s counsel did not persist with
reliance upon the appellant’s version of events that
was relied
upon in the trial court.  Instead, the grounds of appeal raise
new defences which were not raised in the trial court.
It cannot be
said that the Magistrate misdirected himself in this regard because
the appellant did not raise them there.
V.
THE
DOLUS
EVENTUALIS
FINDING
[25]
As
I have already indicated, the Magistrate’s finding on
dolus
eventualis
amounted to a misdirection in my view and requires reconsideration.
First, the relevant legal principles.
[26]
The
test for
dolus
eventualis
is two-fold:
[13]
(a) Did the
appellant subjectively foresee the possibility of the death of the
deceased ensuing from his conduct; and (b) Did he
reconcile himself
with that possibility?
[14]
[27]
As
the courts have emphasised, for the first component of
dolus
eventualis
it
is not enough that the appellant should (objectively) have foreseen
the possibility of the deceased’s death as a consequence
of his
conduct, because the fictitious reasonable person in his position
would have foreseen those consequences. That would constitute
negligence
and not
dolus
in
any form. Further, one should avoid the flawed process of deductive
reasoning that, because the appellant should have foreseen
the
consequences, it can be concluded that he did. That would conflate
the different tests for
dolus
and
negligence
.
As
Holmes
JA stated in
S
v Sigwahla
[15]
-
“
The fact that
objectively the accused ought reasonably [to] 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.
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 be 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.”
[28]
The
subjective element is a factor that needs careful examination on the
facts of this case.
It
is correct that, at the time of the incident, the appellant was a
trained police officer of some eight years. However,
on
the evidence of the state witnesses, what was foremost on the
appellant’s mind at the time of the shooting was catching Frikkie.
The evidence of both Ms Julies and Mr Williams was that the appellant
was running towards the street, where Frikkie had escaped to
at the
time of the shooting.
After
all, the appellant and his fellow police officer had attended at the
deceased’s address on that day on an official visit,
and up to that
point they had faced resistance but had continued in their quest to
investigate and apprehend Frikkie. So serious
was their official
quest that, after the events of that day, Frikkie was in fact charged
for, amongst other things, possession of
the stolen generator.
[29]
The
appellant and his partner had been thrown with dirty laundry inside
the house. There had already been a scuffle which had resulted
in
some items of the appellant’s uniform being ripped to the ground.
Yet in all that time, the appellant had restrained himself
from
resorting to aggression or retaliation. In fact, the evidence of Mr.
Williams was that, outside the house, the police officers
were trying
to bring calm, while the family was aggressive and violent. So
,
in
the absence of evidence to the contrary, it must be accepted that in
the moments leading up to the point of the shooting, what
was
foremost on the appellant’s mind was catching Frikkie.
[30]
However,
the
unfolding of events was chaotic because the family was aggressive and
shouting and swearing at the police officers, and also because
a very
big pit-bull was chasing after the appellant. It is not unreasonable
to infer that, by shooting at the dog, he thought he
could quickly
bring calm and remove one obstacle to his official quest. Yet another
possible reasonable inference is that he was
genuinely scared that
the dog would harm him, and he shot it to quell the danger. On either
reasonable inference, what is clear is
that
one
cannot come to a conclusion that there is proof beyond reasonable
doubt that the only inference that can reasonably be drawn is
that he
was thinking even remotely about the deceased, let alone shooting
her.  What is
more
is that
the
dog was in motion when the appellant shot it. It is not clear whether
the deceased herself was moving at the time, given that
the pit-bull
had just escaped from her control and that, up to that point she had
been trying to restrain it with her leg. In light
of all these
considerations, it is difficult to conclude that the appellant
subjectively foresaw that the deceased would die
as
a consequence of his conduct of shooting at the dog.
[31]
The
application of the second element of
dolus
eventualis,
namely
whether
it was established that the appellant reconciled himself with the
consequences of his conduct which he subjectively foresaw
,
also needs examination.  The following was stated in
S
v Ngubane
[16]
:
‘
A
[person] may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing, eg by unreasonably underestimating
the
degree of possibility or unreasonably failing to take steps to avoid
that possibility . . . . The concept of conscious (advertent)
negligence (luxuria) is well known on the Continent and has in recent
times often been discussed by our writers’.
Conscious negligence is not to be equated
with dolus eventualis. The distinguishing feature of dolus
eventualis is
the volitional component: the agent (the
perpetrator) “consents” to the consequence foreseen as a
possibility, he “reconciles
himself” to it, he “takes it into
the bargain”
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 actions. Conversely
stated, the principle
is that if it can reasonably be inferred that
the appellant may have thought that the possible death he
subjectively foresaw would
not actually occur, the second element
of dolus eventualis would not have been established.’
[32]
Here
too, there are difficulties with the decision of the Magistrate
regarding
dolus
eventualis
.
From the evidence, there is no indication that the appellant took a
bargain and consented to the consequence of the deceased’s
death,
which he had foreseen as a possibility, or that he reconciled himself
to it.  Instead, the evidence established that
this was a moving
scene, involving unpredictable characters, including the dog.
There
is no evidence that the appellant was even taking note of where
exactly each of these characters was, at any given point, given
that
before the shooting he was facing forward and chasing Frikkie.
Rather, the accepted evidence was that he turned around in order
to
shoot at the dog, and all the witnesses agree that this happened very
quickly. It is therefore difficult to conclude that he took
a bargain
in this regard or reconciled himself to the possibility of the
deceased’s death.
[33]
For
all these reasons, I am not persuaded that the appellant possessed an
intention in the form of
dolus
eventualis
.
In this regard, I am of the view that the Magistrate misdirected
himself.
[34]
As
a result, I am of the view that the appellant should rather have been
found guilty of a lesser charge, namely culpable homicide,
being the
unlawful,
negligent killing of a human being.
[17]
[35]
The
next issue that requires consideration is the appropriate sentence
that should be meted out in light of the conclusion that the
Magistrate’s conviction of murder is to be set aside and replaced
with a conviction of culpable homicide.
VI.
SENTENCE
[36]
Ordinarily,
sentencing is within the discretion of the trial court. An appellate
court’s power to interfere with sentences imposed
by courts below
is circumscribed.
[18]
It can
only do so where there has been an irregularity that results in a
failure of justice;
[19]
the
court below misdirected itself to such an extent that its decision on
sentence is vitiated;
[20]
or
the sentence is so disproportionate or shocking that no reasonable
court could have imposed it
[21]
. A
court of appeal can also impose a different sentence when it sets
aside a conviction in relation to one charge and convicts
the accused
of another.
[37]
As
I have stated, in light of the conclusion I have reached regarding
conviction, it is necessary to consider the appropriate sentence
afresh in light thereof.
[22]
To
reach an appropriate sentence, a court is duty-bound to consider the
nature and the seriousness of the offence that the accused
has been
found guilty of, the personal circumstances of the accused as well as
the interests of society - what is often referred
to as the triad of
considerations.
[23]
[38]
A
court must also take into consideration the main purposes of
punishment; namely retribution, deterrence, prevention and
rehabilitation.
All these must be accorded due weight in any
sentence.  As the SCA has stated in
S
v RO and Another
[24]
:
“
Sentencing
is about achieving the right balance or in more high-flown terms,
proportionality. The elements at play are the crime,
the offender,
the interests of society with different nuance, prevention,
retribution, reformation and deterrence. Invariably there
are
overlaps that render the process unscientific, even a proper exercise
of the judicial function allows reasonable people to arrive
at
different conclusions.”
[39]
Once
again, the court
a
quo
has comprehensively set out the personal circumstances of the
appellant, and there is no need to repeat them in detail.  In
this case there were also detailed reports by a probation officer and
a correctional officer, which succinctly set out the personal
circumstances of the appellant.
[40]
At
the time of the offence, the appellant was a 37 year-old police
officer.  He was a first-time offender and had never been
convicted of any offence previously. He was reported to be a
hard-working individual who performed his duties with diligence and
was goal orientated. He enrolled at a police training academy, and
eventually graduated as a constable in 2011. Thereafter, he
immediately
started working as a police officer. He also obtained a
Bachelor's Degree in policing from the University of Tshwane.
[41]
The
appellant has three children, one of whom lives in the Eastern Cape
with the appellant’s mother. At the time of the offence
the
appellant lived with his partner and their two children in Stanford,
and he was reported to have healthy relationships with them.
The
appellant earned a salary of R17 000 per month, and was reported to
support his children emotionally and financially.
[42]
There
was furthermore no doubt during the trial that, even at the scene of
the incident, the appellant felt remorse about the death
of the
deceased. Furthermore, a clinical psychologist recorded that the
appellant felt remorse, and harbored guilty feelings regarding
the
deceased’s family and her children. This was confirmed by the
probation officer allocated to the appellant.  The clinical
psychologist further reported that the incident had a negative effect
on the appellant, who now has severe insomnia, was anxious
and
depressed.
[43]
There
is no doubt that the killing of a human being, even if found to be on
a negligent basis, is a very serious offence in the eyes
of society.
Even
though the
appellant
did not intend to kill the deceased, the sad reality is that the
deceased died of his inflicted wound.
Even
on the day of the incident, the deceased’s family was distraught by
her shooting. After all, she had just returned from prison
on the
previous day.
There
was evidence that Bertie, in particular, who witnessed the incident,
was traumatized as a result. There was also evidence that
there was
unrest in the community of Stanford as a result of this incident, and
that the higher leadership of the police had to intervene
to quell
the unrest.
[44]
However,
some mitigating factors to be taken into account are firstly that on
the day in question, the appellant was on official business,
and was
conducting his duties.
As
I have stated, Frikkie was later charged for being in possession of
the stolen generator that the police officers were investigating
on
that day. Secondly, as I have set out earlier, the circumstances of
the official visit that day were chaotic, and it was common
cause
that the deceased and her family were aggressive and violent towards
the police officers. In addition, the evidence established
that the
pit-bull was also aggressive towards the police officers and
specifically the appellant.
I
also consider the
personal
circumstances of the appellant summarized above
to
be a mitigating factors,
including
the fact
that
the accused is a first offender, and was remorseful,
and
was himself negatively affected by the incident
.
[45]
The
interests of society demand that those who commit crimes must be
punished and, in deserving cases, that they be punished severely.
An
appropriate sentence should neither be too light, nor too severe. The
former might cause the public to lose confidence in the justice
system and people might be tempted to take the law into their own
hands. On the other hand, the latter might break the appellant,
and
the result might be just the opposite of what the punishment set out
to do, which ultimately is to rehabilitate the accused and
to give
him an opportunity, where possible, to become a useful member of
society once more.
[46]
I
have considered all the evidence placed before me, weighed all the
relevant factors, the purposes of punishment and all forms of
punishment, including restorative justice principles. I have also
taken into account the seriousness of the offence which led to
the
death of the deceased, the personal circumstances of the accused and
the interests of society. I have also taken the particular
circumstances of the appellant at the time of the offence into
account.
VII.
ORDER
[47]
In
the circumstances, I would make the following order:
46.1
The
appeal against the conviction
and
sentence of the Magistrate’s Court is upheld, and
the
Magistrate’s conviction
and
sentence, including
the
order declaring the appellant unfit to possess a firearm,
are
set aside, and substituted with the following:
“
46.1.1
The appellant is convicted of culpable homicide;
46.1.2
The
appellant is sentenced to 2 years and 6 months’ imprisonment, which
is wholly suspended for a period of five years on condition
that the
appellant is not found guilty of the crimes of culpable homicide
involving
negligent
use of a firearm.
46.1.3
The
sentence is ante-dated to 17 December 2020.”
_________________________
N.
MANGCU-LOCKWOOD
Judge of the High Court
I
agree, and it is so ordered.
_________________________
D.
KUSEVITSKY
Judge of the High Court
THULARE
AJ, dissenting
[1]
This is an appeal against both
conviction and sentence. The appellant, having pleaded not guilty,
was convicted of murder and sentenced to eight years imprisonment in
the Regional Court. The full bench could not agree and the Judge
President added me to constitute the full court.
[2]
The issue on appeal was the law
applicable to the facts, and consequently the verdict and sentence.
I
read the judgment of my sister Mangcu-Lockwood, and I am unable to
agree with her on both conviction and sentence.
[3]
The appellant was a member of the
South African Police Service since 2009 holding the rank of Constable
and together with another member, Constable Sikokeli Mvimbi (Mvimbi)
attended to the house of the deceased, Miriam May. They were
following up on a complaint as well as information from a local
Somali shopkeeper. The conduct related to the deceased’s boyfriend,
Frikkie Sardien (Frikkie), towards the Somali national and the
information related to an alleged stolen generator which the
shopkeeper
alleged that Frikkie attempted to sell.
[4]
Frikkie owned a big pit-bull dog,
which usually lay at the door of the house. The two policemen
carried
sticks in their hands in order to ward off the dog if it attacked,
when they entered the yard. The police announced the reason
for their
visit and went into the house. Frikkie, the deceased and her
daughter, Bertie, were not happy with that visit and the search
for
the generator. The deceased had just been released from prison the
previous day and expressed her anger that the police were
in her yard
the very next day. She wanted them to leave. The three obstructed the
police in their search for the generator. Be it
as it may, the police
found the generator hidden in the laundry in the bathroom, despite
the efforts to stop them. Frikkie ran out
of the house upon such
discovery. Mvimbi gave chase.
[5]
Frikkie ran out of the yard and Mvimbi
followed him. The appellant also ran out. The deceased also
left the
house. The dog grunted outside the house. Frikkie called the dog,
Ballas, from outside the yard in an effort to evade his
arrest and
exploit the police officers’ fear of the dog. The deceased used her
feet to restrain and block the dog from getting
involved. She used
her leg to trap the dog between her leg and a fence. The appellant
threatened to shoot the dog. The deceased was
instructing the dog to
lie down. She was heard screaming: “Gaan le, Ballas”. The dog
managed to escape from the deceased and
ran towards the direction of
the appellant and the gate. The dog was between the appellant and the
deceased. The appellant pulled
his firearm, aimed it at the direction
of the dog and the deceased and shot two bullets in rapid succession.
The deceased was about
three metres behind the dog. The dog made a
sound and dropped.
[6]
The deceased was struck by the bullet
on the left of her chest. She was in shock and looked deep
into the
eyes of her neighbour, Arsene Williams (Williams), who was watching
standing by the fence nearby. Williams asked the appellant
why did he
shoot at her. The appellant did not answer. The appellant then stood
for a while with both his hands clasping the back
of his head.
Shereen Julies (Julies), was close to the gate on the sidewalk just
outside the fence in the vicinity of the police
van as she was on her
way to that house to visit Bertie. She saw the incident unfolding and
she saw when the deceased struggled to
restrain the dog and when the
first bullet hit the dog. After the dog dropped she turned her face
away and covered it with her hands.
She also heard the second shot
and when she looked up she saw the deceased falling down. At the time
that the appellant shot both
the dog and the deceased, Mvimbi was
outside the gate, involved in an argument with Frikkie near the
police van. The first shot hit
the dog, the second shot hit the
deceased.
[7]
In
Director of Public Prosecutions,
Gauteng v Pistorius
(96/2015)
[2015] ZASCA 204
;
[2016] 1 All SA
346
(SCA);
2016 (2) SA 317
(SCA);
2016 (1) SACR 431
(SCA) (3 December
2015) it was said at para 25 and 26:
[25]
It is necessary to explain certain of the issues
that arise for consideration in a murder case. Over the years
jurists
have developed what has been referred to as the ‘grammar of
criminal liability’. As already mentioned, murder is the
unlawful
and intentional killing of another person. In order to prove the
guilt of an accused on a charge of murder, the State must
therefore
establish that the perpetrator committed the act that led to the
death of the deceased with the necessary intention to
kill, known as
dolus.
Negligence, or
culpa,
on the part of the
perpetrator is insufficient.
[26]
In cases of murder, there are principally two
forms of
dolus
which arise:
dolus directus
and
dolus
eventualis.
These terms are nothing more than labels used by
lawyers to connote a particular form of intention on the part of a
person who commits
a criminal act. In the case of murder, a person
acts with
dolus directus
if he or she committed the offence
with the object and purpose of killing the deceased.
Dolus
eventualis,
on the other hand, although a relatively
straightforward concept, is somewhat different. In contrast to
dolus
directus,
in a case of murder where the object and purpose of the
perpetrator is specifically to cause death, a person’s intention in
the
form of
dolus eventualis
arises if the perpetrator
foresees the risk of death occurring, but nevertheless continues to
act appreciating that death might well
occur, therefore ‘gambling’
as it were with the life of the person against whom the act is
directed.  It therefore consists
of two parts: (1) foresight of
the possibility of death occurring, and (2) reconciliation with that
foreseen possibility. This second
element has been expressed in
various ways. For example, it has been said that the person must act
‘reckless as to the consequences’
(a phrase that has caused some
confusion as some have interpreted it to mean gross negligence), or
must have been ‘reconciled’
with the foreseeable outcome.
Terminology aside, it is necessary to stress that the wrongdoer does
not have to foresee death as a
probable consequence of his or her
actions. It is sufficient that the possibility of death is foreseen
which, coupled with a disregard
of that consequence, is sufficient to
constitute the necessary criminal intent.”
[8]
From the facts, it cannot be said that
the appellant had the death of Miriam May as his direct
objective.
However, the appellant was aware of the grunting dog when he left the
house. The evidence showed that both policemen were
afraid of the
dog, such that they carried sticks to ward it off in case it attacked
them when they entered the yard. Furthermore,
when the appellant left
the house, because of its grunting, the appellant made a threat that
he would shoot the dog. This threat
was even heard by Julies who was
in the street, at the time that the deceased was restraining the dog.
The appellant was concerned
about and therefore kept the movements of
the dog in check as he left the house and moved towards the gate.
[9]
The deceased restrained the dog and
was heard calling it to lie down. The appellant saw the dog
approach
his direction. When the dog left the restraint of the deceased, the
appellant was aware that the deceased was directly behind
the dog.
When the appellant fired the two shots that fatally wounded the dog
and the deceased, he was aware that the deceased was
in the line of
his firing. The appellant foresaw the possible death of the deceased,
who was behind the dog and in his line of fire,
and reconciled
himself with that event. The appellant was correctly convicted of
murder with
dolus eventualis,
read with section 51(2) of the
Criminal Law Amendment Act, 1977 (Act No. 51 of 1977).
[10]
In
S v Vilakazi
2012 (6) SA 353
(SCA) at
para 14 it was said:
“
It
is clear from the terms in which the test was framed in
Malgas
and endorsed in
Dodo
that it is incumbent upon a court in every case, before it imposes a
prescribed sentence, to assess, upon a consideration of all
the
circumstances of the particular case, whether the prescribed sentence
is indeed proportionate to the particular offence. The
Constitutional
Court made it clear that what is meant by the “offence” in that
context (and that is the sense in which I will
use the term
throughout this judgment unless the context indicates otherwise)
consists of all the factors relevant to the nature
and seriousness of
the criminal act itself, as well as all relevant personal and other
circumstances relating to the offender which
could have a bearing on
the seriousness of the offence and culpability of the offender.
If
a court is indeed satisfied that a lesser sentence is called for in a
particular case, thus justifying a departure from the prescribed
sentence, then it hardly needs saying that the court is bound to
impose that lesser sentence. That was  also made clear in
Malgas,
which said that the relevant provisions in the Act vests the
sentencing court with the power, indeed the obligation, to consider
whether the particular circumstances of the case require a different
sentence to be imposed. And a different sentence must be imposed
if
the court is satisfied that substantial and compelling circumstances
exist which ‘justify’ … it.”
[11]
In
S v Dodo
[2001] ZACC 16
;
2001 (3) SA 382
(CC) at para 37
it was said:
“
The
concept of proportionality goes to the heart of the enquiry as to
whether punishment is cruel, inhuman or degrading, particularly
where, as here, it is almost exclusively the length of time for which
an offender is sentenced that is in issue.”
In
S v Malgas
2001 (1) SACR 469
(SCA) at para 25 it was said:
“
If
the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society so that an injustice would
be done
by imposing that sentence, it is entitled to  impose a lesser
sentence.”
[12]
The appellant was convicted of a serious offence
to which the discretionary minimum sentence prescribed was
applicable
in terms of
section 51
(2) of the
Criminal Law Amendment Act 105 of
1997
. In the case of a first offender, the regional court, unless it
was satisfied that substantial and compelling circumstances existed
which justified the imposition of a lesser sentence, had a prescribed
sentence for a first offender, imprisonment for a period not
less
than 15 years.
[13]
The deceased and Frikkie had been in conflict with
the law before and their address was well-known to the
SAPS for that
reason. Frikkie and the deceased had tried to mislead the police
around the generator. The deceased tried to stop the
police from
entering the bathroom where it turned out she was doing laundry. As
the police went through the laundry under which the
generator was
hidden, after they entered the bathroom, she threw them with dirty
laundry and insulted them. Frikkie tried to physically
stop the
police from entering the bathroom. The damage to police uniform and
any injuries sustained by the police happened during
the wrestling
and shoving with Frikkie, first when he attempted to stop the search
for the generator and then when he resisted arrest
after the
discovery of the generator. Frikkie broke loose form the police grip
and fled from the house. When he could not outrun
Mvimbi, he called
the dog, thereby deliberately setting it on the police. The appellant
was the closest to the dog as it escaped
from the deceased’s
restraint. This was a moving scene which was also clearly emotional
and tense.
[14]
The judgment of Mangcu-Lockwood J on sentence
dealt with the personal circumstances of the appellant and the
impact
of the crime on the victims in some detail. He was a first offender
and had been a member of the SAPS since 2011. He was 37
years of age,
had studied and obtained a Bachelor’s Degree in Policing and was
due for promotion to the rank of Sergeant. He lived
with a partner
and had three children. But for the Regulations and Prescripts in the
South African Police Service around conditions
of employment and
promotions, the appellant qualified to be a commissioned officer, and
was simply waiting for years to amass experience
and vacancies to be
available. He had no history of concerns around discipline and
commitment. Clearly, he made an error of judgment.
Some mistakes,
made in a split second, are simply very expensive and not only
career-limiting, but can destroy a person, the family
and a
community.
[15]
The deceased’s family was distraught and Bertie
had been traumatized as she witnessed her mother’s killing.
The
incident led to a community unrest, directed at the SAPS. In my view,
the magistrate was correct in holding that the imposition
of the
minimum sentence of 15 years, under the circumstances, was
inappropriate. The magistrate was also correct, in my view, to
hold
that three years imprisonment in terms of
section 276(1)(h)
including
house arrest as a condition was in appropriate.
[16]
The proper approach to an appeal on sentence has
been set out as follows in
S v Salzwedel and Others
1999 (2)
SACR 586
(SCA) at para 10:
“
[10]
Mr
Myburgh,
who
appeared for the respondents on appeal, submitted that the
determination of a proper sentence for an accused person fell
primarily
within the discretion of the trial Judge and that this
Court should not interfere with the exercise of such discretion
merely because
it would have exercised that discretion differently if
it had been sitting as the court of first instance. This submission
is undoubtedly
correct, but it is clear that:
‘
[T]he
Court of appeal, after careful considerations of all the relevant
circumstances as to the nature of the offence committed and
the
person of the accused, will determine what it thinks the proper
sentence ought to be, and if the difference between that sentence
and
the sentence actually imposed is so great that the inference can be
made that the trial court acted unreasonably, and therefore
improperly, the Court of appeal will alter the sentence.’”
[17]
In my view, having regard to the personal
circumstances of the appellant and the gravity of the offence and
balancing these against the interests of society, the magistrate
imposed an appropriate sentence. The actual serious consequence
of
the offence is that a life was lost. There is an inherent interest as
well as a legitimate expectation in South Africa for the
justice
system, especially the courts, to make their contribution to turn our
SAPS members from a manifestly heavy-handed approach
to a
constitutional articulation of a culture of human rights. Simply
shooting twice, when the second shot was unnecessary, manifested
a
social conditioning, which in my view is relevant under the
circumstances. The Namibian Supreme Court in
S v Van Wyk
1992
(1) SACR 147
(Nm) at 173c-d said:
“
But
there comes a time in the life of a nation, when it must and is able
to identify such practices as pathologies and when it seeks
consciously, visibly and irreversibly to reject its shameful past.
That time for the Namibian nation arrived with its independence.
The
commitment to build a new nation was then articulated for everybody
inside and outside Namibia to understand, to cherish, to
share and to
further. The appellant must, like other citizens, have been exposed
to the force and the significance of this message.”
[18]
Although the court was speaking on racism, I found
the comments equally compelling for the heavy-handed conduct
of the
police in a transitional period, especially as regards the
unnecessary use of a firearm. The court continued at 173e-g:
“
To
allow the ‘racist-socialisation’ of pre-independence Namibia to
continue to operate as a mitigating circumstance, after the
new
Constitution has been publicly adopted, widely disseminated and
vigorously debated both in Namibia and the international community,
would substantially be to subvert the objectives of the Constitution,
to impair the process of national reconciliation and nation-building
and to retard the speed with which Namibian society has to recover
from the legacy of its colonial past.
…
The
sentence imposed should and did, in my view, correctly reflect the
determination of the courts to give effect to the constitutional
values of the nation and to project a strong message that such
criminal manifestations … will not be tolerated by the Courts of
the new Namibia.”
[19]
South Africans and those visiting our country must
feel safe when they are in the company of our men, women
and mixes in
blue, including when the police are armed, and that message should be
loud and clear. Mercy, for crimes committed in
the line of duty,
should not incentivize law enforcement officers to kill innocent
members of the public. In this instance, an innocent
unarmed woman
was shot dead in her own home when she protected the very person who
shot her. In an effort to help and restrain the
dog, she exposed
herself to pay the ultimate price.
[20]
For these reasons I would make the following
order:
The
appeal on both conviction and sentence is dismissed.
D. M. THULARE
Acting
Judge of the High Court
APPEARANCES
For
the Appellant
:
Adv S C
O’Brien
For
the Respondent
:           Adv
T
Ntela
National Director of Public
Prosecutions
[1]
Sometimes
referred to in the record as “
Freaky”
.
[2]
Barkhuizen
v Napier
2007
(5) SA 323 (CC) para [39]. See also
Alexkor
Ltd and Another v The Richtersveld Community and Others
[2003]
ZACC 18;
2004
(5) SA 460
(CC); 2003
(12) BCLR 1301
(CC)
at para 44;
Cole
v Government of the Union of SA
1910
AD 263
at
273;
Paddock
Motors (Pty) Ltd v Igesund
1976
(3) SA 16
(A)
at 24-5; and
Bank
of Lisbon and South Africa Ltd v The Master and Others
1987
(1) SA 276 (A) at 290.
[3]
Alexkor
Ltd and Another v The Richtersveld Community and Others at para
[44];
Paddock
Motors (Pty) Ltd v Igesund
above
n 31 at 23G-H.
[4]
Barkhuizen
v Napier
para [39].
[5]
At 272-3.
[6]
See
Liesching
and others v S
[2018]
ZACC 25
;
2019
(1) SACR 178
(CC)
para 94; See also
Modiga
v The State
[2015]
ZASCA 94
;
[2015]
4 All SA 13
(SCA)
para 23.
[7]
S
v V
2000
(1) SACR 453
(SCA)
para [3].
[8]
S v Chabalala
2003
(1) SACR 134
SCA
at para [15]. See also:
S
v Trainor
2003
(1) SACR 35
(SCA)
at 41B– C.
[9]
See
S
v Schackell
2001
(2) SACR 185
(SCA)
at para [30]; and
S
v V
supra
.
[10]
S v Bailey
2007 (2) SACR
1
(C) at [16].
[11]
S v Ntsele
1998 (2) SACR
178
(SCA) 182D-H.
[12]
S v
Rubenstein
1964
(3) SA 480
(A) 487H.
[13]
S v
Sigwahla 1967(4) SA 566 (A) at 570.
[14]
See for example S
v De Oliveira 1993(2) SACR 59 (A) at 65I - J.
[15]
S
v Sigwahla
1967
(4) SA 566
(A)
at 570B-E.
[16]
S
v Ngubane
1985
(3) SA 677
(A)
at 685A-F.
[17]
See
Snyman,
Criminal
Law
,
4
th
ed
at p 425; Burchell and Milton,
Principles
of Criminal Law
,
2
nd
ed
at p 474; Milton,
South
African Criminal Law and Procedure
Vol
11, 3
rd
ed
at p 364.
[18]
S
v Anderson
1964
(3) SA 494
(AD)
(
Anderson
)
at 495C-H
.
See
also
S
v Salzwedel and Others
1999
(2) SACR 586
(SCA)
at para 10.
[19]
S v
Jaipal
[2005]
ZACC 1
;
2005
(4) SA 581
(CC)
[2005] ZACC 1
; ;
2005
(5) BCLR 423
(CC)
(
Jaipal
)
at para 39 and
R
v Solomons
1959
(2) SA 352
(AD)
at 366C.
[20]
Anderson
above
n 37 at 495D and Kruger
Hiemstra’s
Criminal Procedure
Service
Issue 5 (LexisNexis, Cape Town, 2012) (Hiemstra) at 30-49 to 30-50
for a full discussion on misdirection.
[21]
This
standard has been articulated differently in several cases,
including whether the sentence was “startlingly” or
“disturbingly”
inappropriate or whether it “creates a sense of
shock”. Ultimately, however, the question at which all of these
formulations
are aimed is whether the court could reasonably have
imposed the sentence that it did. See for example
S
v Sadler
2000
(1) SACR 331
(SCA)
at para 8 and
S
v Bolus and Another
1966
(4) SA 575 (AD) at 581E-G.
[22]
Bogaards
v S
2013
(1) SACR 1
(CC)
para 41.
[23]
S v Zinn
1969 (2) SA
537
(A) at 540G.
[24]
S
v RO and Another
2000
(2) SACR 248
(SCA)
at paragraph 30.