Lutchman Naidoo v S (403/09) [2010] ZASCA 40 (30 March 2010)

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[2010] ZASCA 40
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Lutchman Naidoo v S (403/09) [2010] ZASCA 40 (30 March 2010)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No:
403/09
Bruce-Lee Lutchman Naidoo
Appellant
and
The State
Respondent
Neutral citation:
Bruce-Lee
Naidoo v The State
(403/09)
[2010] ZASCA 40
(30 March 2010)
Coram: HEHER, MALAN JJA and SERITI AJA
Heard: 25 February 2010
Delivered: 30 March 2010
Summary:
Criminal law –
self –defence – whether appellant acted in self defence –
whether appellant erroneously believed his life was
in danger –
putative self defence – sentence of 15 years’ imprisonment
reduced to 12 years’ imprisonment.
______________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court Pretoria (Murphy, Molopa
JJ sitting as court of appeal)
(a) The appeal against conviction is dismissed.
(b) The appeal against sentence succeeds. The sentence
imposed by the trial court is set aside and for it is substituted a
sentence
of
12 (twelve) years imprisonment.
JUDGMENT
Seriti AJA
(HEHER AND MALAN
JJA concurring):
[1] The appellant appeared before the regional court,
facing one count of murder. After evidence was led he was convicted
as charged
and sentenced to fifteen years’ imprisonment. His appeal
to the North Gauteng High Court against both conviction and sentence
was
unsuccessful. He was granted leave to appeal to this court by
Murphy J.
[2] The appeal revolves around two issues, namely
whether the appellant acted in self defence when he shot and caused
the death of
the deceased, Mr Robert Miller, and whether, when
imposing the sentence, the trial court was correct when it found that
there were
no substantial and compelling circumstances which
justified the imposition of a sentence lesser than the sentence
prescribed by
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
.
[3] It is common cause that on the day in question the
deceased and Messers Vernon Watson (‘Watson’), Marcus Ruiters
(‘Ruiters’)
and Barend Barnard (‘Barnard’) drank alcohol at a
certain place. In the evening, the deceased drove them in a Toyota
Corolla,
to a barbershop and parked their motor vehicle in a parking
bay parallel with the pavement. In front of the motor vehicle there
was
a bakkie belonging to the appellant parked with its nose facing
the nose of the Corolla.
[4] The deceased and his friends (but as the trial court
correctly found, not Watson who was left in the car) went to the pool
tables
adjoining the barbershop where they encountered the appellant
and other people. An argument ensued between the appellant and the
deceased leading to a fight. The friends of the deceased joined in
and assisted the deceased. The appellant’s friends also took
part
in helping him. In the process the appellant was assaulted and he
sustained bodily injuries.
[5] The owner of the business premises, Mr Abdul Rocker
came on the scene and chased the deceased and his friends out. They
went to
their motor vehicle. The deceased sat on the driver’s seat
and Mr. Barnard on the passenger’s front seat together with two
young
children and Watson on the left back seat and Ruiters on the
right.
.
[6] The appellant was also chased from the premises. He
went to his bakkie and, whilst standing in front of it, fired five
bullets
at the motor vehicle in which the deceased and his friends
were sitting. At that stage the appellant was about three metres away
from the deceased’s motor vehicle. The gun shots hit that vehicle
on the bonnet, front windscreen and radiator. The deceased was
struck
by one of the bullets and later died.
[7] The state witnesses Watson, Ruiters and Barnard
testified that when the appellant fired their vehicle was stationary,
idling and
not in gear. Rocker said that when he went out of the
barbershop, just after the shooting, he found the deceased’s
Corolla idling.
[8] The appellant testified that when he left the
barbershop the deceased and his friends were standing on the
sidewalk. They swore
at him and threatened to run him over. His
mother and young brother came on the scene, and his brother ran to
him and held him by
his leg. At that time, the four men were inside
their motor vehicle. The driver of motor vehicle was revving it and
it was jerking
forward. He drew his firearm which was in a holster at
his side. He fired a shot at the motor vehicle’s engine. The motor
vehicle
continued coming towards him and he fired a second shot.
There was no positive response from the driver. The Corolla continued
coming
towards him. He then fired three more shots one after the
other and the motor vehicle stopped.
[9] The trial court accepted the evidence of the state
witnesses on how the shooting occurred and rejected the version of
the appellant.
It accepted that there was no attempt to run over the
appellant with a motor vehicle. The trial court further found that
when the
appellant fired he had the intention to kill the driver.
[10] The full court which heard the appeal, after
analysing the facts of the case, agreed with the trial court that the
evidence of
Messers Watson, Ruiters and Barnard was by and large
credible and reliable and that the probabilities supported their
version. The
trial court was aware of their intoxication and
approached their testimony with caution. It noted contradictions in
the version of
the state witnesses but found them not to be material.
It rejected the appellant’s version and his defence on the grounds
that
it was highly improbable.
[11] The appellant’s counsel submitted that the trial
court should not have accepted the evidence of Messers Watson,
Ruiters and
Barnard when they said that their motor vehicle was
stationary when shot at. The submission was that the state witnesses
had a motive
to tender false evidence against the appellant as their
friends was killed and they assaulted the appellant. There is no
merits in
this. In
S v Morgan and others
1
;
S v Tshoko
2
en ‘n ander; R v Dhlumayo
3
the court reiterated the principle that an
appeal court is generally reluctant to upset a trial court’s
findings of fact and its
assessment of the credibility of witnesses.
I am unable to find any reason why the trial court should not have
accepted the state
witnesses’ evidence. There was no objective
evidence to suggest that they had a motive to give false evidence
against the appellant.
[12] The appellant’s counsel further submitted that
the deceased could (involuntarily) have put the gears of the motor
vehicle into
neutral after being shot at. This submission is not
based on reliable evidence and amounts to speculation.
[13] The appellant testified that when the motor vehicle
jerked towards him he could not take evasive action because the
pavement
next to him was full of people and the road to his left was
busy with traffic. Later he changed his evidence and stated that he
did
not think about taking any evasive action to avoid being knocked
down by the motor vehicle. His evidence was correctly rejected by
the
trial court.
[14] Appellant’s counsel further submitted that if it
is found, objectively viewed, that the appellant’s life was not
under threat,
the appellant erroneously believed that it was in
danger and that he therefore acted in putative self defence. The
submission was
further made that the erroneous belief of the
appellant excluded dolus and he should have been convicted of
culpable homicide only.
[15] The submission by the appellant’s counsel is
without merits. The trial court found, and I agree, that the
deceased's motor
vehicle was stationary when the appellant fired at
it. The appellant could not have reasonably believed that his life
was in danger
– See
S v Joshua
4
and
S v De Oliveira
5
.
The appellant fired directly at the front windscreen knowing that
there was a driver behind the steering wheel. His life was not
threatened. It follows that the appeal against his conviction should
be dismissed.
[16] As far as sentence is concerned
section 51(2)
of
the Act read in conjunction with
Part II
of Schedule 2 provides that
if an accused is convicted of murder, the court shall impose a
minimum sentence of 15 years. Subsection
(3) stipulates that the
court may depart from the prescribed sentence and impose a sentence
less than the prescribed sentence if
there are substantial and
compelling circumstances justifying the imposition of such a
sentence.
[17] When considering sentence, the trial court took
into account the personal circumstances of the appellant and the fact
that the
appellant was a first offender. It also took into account
nature and seriousness of the offence and the interests of society.
The
trial court further said that although the appellant was clearly
a victim of assault, it could not find sufficient factors justifying
the imposition of a lesser sentence.
[18] As a general rule, a court of appeal will not
interfere with the sentence imposed by the trial court unless the
trial court has
failed to exercise its discretion properly. This will
be the case if there was a misdirection on the part of the trial
court –
see
S v Shapiro
6
;
S v Sadler
7
and
S v Michele.
8
[19] In passing sentence the magistrate accepted that
the appellant had been assaulted by the deceased and his friends. He,
however,
did not consider that to be a substantial and compelling
circumstance justifying the imposition of a lesser sentence. He said
that,
despite the assault on him, the appellant had the choice of
withdrawing but instead went ahead and stood in front of the Corolla
in order to provoke a further confrontation. The full court
associated itself with this view. To my mind, however, it is
precisely
circumstances such as the assault, the injuries he
sustained and the anger which possessed him that palliate the horror
of the appellant’s
crime and his moral culpability. Neither court
apparently attached weight to the combined effect of these factors.
That was, as I
see it, a material misdirection which entitles us to
consider the sentence afresh.
[20] The personal circumstances of the appellant, the
fact that he was assaulted prior to he shooting and sustained
physical injuries
and that he was angry at the time of the shooting
cumulatively justifies the imposition of a sentence less than the
prescribed sentence.
In my view, after taking into account all the
relevant factors into account, a sentence of twelve years’
imprisonment is appropriate.
[21] (a) The appeal against conviction is dismissed.
(b) The appeal against sentence succeeds. The sentence
is set aside and for it is substituted a sentence of 12 years’
imprisonment.
w
l seriti
Acting
Judge of Appeal
APPEARANCES:
FOR APPELLANT: M van Wyngaard
Instructed by Matwadia Attorneys, Springs
Mpobole & Ismail Attorneys, Bloemfontein
FOR RESPONDENT: J J Kotzé
Instructed by The Director of Public Prosecutions,
Pretoria
1
1993 (2) SACR 134
(A) at p153 a-c.
2
1988 (1) SA 139
(AA) at 142
I-
143A.
3
1948 (2) SA 677
(AD) at 689.
4
2003 (1) SACR 1(SCA)
at para 29.
5
1993
(2) SACR 59
(A)
at 63i-64a.
6
1994 (1) SACR112 (A) at 124d-e.
7
2000 (1) SACR 331
(SCA) at 334d-g.
8
2010 (1) SACR 131
(SCA) at para H.