De Vos v S (503/09) [2010] ZASCA 61 (1 April 2010)

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[2010] ZASCA 61
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De Vos v S (503/09) [2010] ZASCA 61 (1 April 2010)

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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 503/09
In
the matter between:
MERVYN DE VOS
APPELLANT
v
THE
STATE
RESPONDENT
Neutral citation:
De
Vos v The State
(503/2009)
[2010] ZASCA 60
(
1
April 2010).
Coram:
Mpati
P; Mthiyane, Cachalia JJA, Theron and Saldulker AJJA
Heard:
9
March 2010
Delivered: 1 April 2010
Summary:
Criminal
law – self-defence – appellant facing two counts of attempted
murder arising from a shooting incident at a nightclub.
Appellant’s
version reasonably possibly true.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Northern Cape High Court, Kimberley (Bosielo AJP and Majiedt J
sitting as court of appeal).
The following order is made:
1.
The
appeal is upheld.
2.
The
order of the court below is set aside and the following order is
substituted in its place:
‘
The appeal is upheld and the
convictions and sentences are set aside.’
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA and SALDULKER AJA
(Mpati P, Mthiyane JA,
Theron AJA concurring):
[
1] The
appellant, Mr Mervyn de Vos, who was 44 years old at the time of the
events discussed below, was convicted on two counts of
attempted
murder in the regional court, Kimberley, on 2 October 2006. The two
counts were taken together for the purposes of sentencing
and he was
sentenced to seven years’ imprisonment. He appealed against his
convictions to the Northern Cape High Court (Bosielo
AJP and Majiedt
J). The respondent opposed the appeal and gave notice of its
intention to appeal against the leniency of the sentence.
The high
court confirmed the convictions and increased the cumulative sentence
on the two counts to ten years’ imprisonment. This
appeal, with
leave of the high court, is only against the convictions.
[2] The charges
arose from an incident that occurred in the early hours of Sunday, 17
July 2005, at a night club in Kimberley known
as ‘Squeezas’, when
the appellant fired a single shot from his firearm, injuring two
people. The shot, which was fired at a Mr
Gavin Sylvester at close
range, caused the bullet to penetrate his left cheek and exit near
his right eye. (Sylvester is the complainant
in count 1.) After
exiting from Sylvester’s face the bullet penetrated the right leg
of a Mr Samuel Serata. (The complainant in
count 2.) Sylvester was
employed at the nightclub at the time to perform security duties. He
lost his eye-sight in the incident.
Serata appears to have been a
patron at the club. The appellant’s case is that he fired the shot
in self-defence – to ward off
an attack by Sylvester.
[3] The state led
the evidence of Sylvester and two of his colleagues Mr John Masuku
and Mr Isa Isak, who were also employed to perform
security-related
functions at the club. They were colloquially known as ‘bouncers’.
Their job was to remove people who they considered
to be
trouble-makers from the club – forcefully if necessary. It was
their use of force in removing the appellant from the club
which
precipitated the chain of events that culminated in the shooting.
Constable Malete was on duty on the night of the incident.
He saw the
appellant twice that evening. The first was shortly after the
bouncers had forcefully removed the appellant from the club
and he
arrived at the police station to complain about his treatment by
them. The second was some two hours later when the appellant
returned
to the police station after having fired the shot which injured the
complainants. Constable Alexander corroborated his colleague’s
testimony regarding the events related to the appellant’s second
visit to the police station.
[4] The appellant
testified in his defence. He called two witnesses to support his
case. Mr Titus Bloem, a friend, testified regarding
the circumstances
of their removal from the club. The second witness, Mr Andre Smit,
the appellant’s niece’s nephew, was at the
club when the shooting
incident occurred, although he did not see what happened.
[
5] By
the time the matter was argued before us much of the evidence had
become common cause or was no longer disputed. The essential
dispute
turned on whether the appellant had fired the shot during a
life-threatening assault on him by Sylvester and Masuku.
[
6] The
essential facts are these. The appellant arrived at the club with his
niece’s two sons at about 11 pm. They entered and the
two young men
went their own way. The appellant then met Bloem. After a while the
appellant and Bloem were forcefully removed by
Masuku and Isak,
apparently because the bouncers thought that the two men had been
fighting with each other. They denied that they
had been fighting. Be
that as it may, the appellant felt very aggrieved and humiliated by
the manner in which he was taken out of
the club.
[7] He then drove
to the police station a short distance from the club to report the
incident. There were two police officers on duty,
Constables Malete
and Alexander. The appellant wanted the police to return to the club
with him. But, according to Malete, he was
rude and aggressive.
Malete could not calm him down. During the course of their exchange
the appellant said that he was going to
return to his home to fetch
his gun so that he could return to the club to shoot the people who
had assaulted him. After he had left
the police station Malete made
an entry in his occurrence book and in his pocket book. He also
alerted the police on patrol duty
to be on the look-out. The
appellant denied that he had threatened to get his gun to shoot his
assailants at the club but, we think,
the learned magistrate and the
trial court correctly disbelieved his evidence on this aspect. It is
significant, however, that Malete
confirmed a crucial part of the
appellant’s version – that he had no visible injuries at the
time. The significance of this evidence
will become clear later.
[8] The appellant
returned to the club a few hours later, to collect his niece’s two
nephews who he had left there earlier. It was
some time after 2 am.
The state disputed Smit’s evidence that he was at the club that
night but was unable to gainsay it. And for
present purposes we must
accept his testimony that he was.
[9] The appellant
testified that when he arrived on the scene he did not see the boys
outside the club. So he looked through the doorway
to see whether
they were inside, but could not see them. He then saw Masuku and
Sylvester. Masuku, he testified, pulled him into
the entrance and
Sylvester hit him over the head with a baseball bat. He staggered
backwards – then Masuku swung a baseball bat
he was holding and
struck him on his left jaw. The appellant said he became confused and
recalled falling to the ground. He pulled
himself up next to his car,
which he had parked in front of the club and tried to support himself
by placing his hands on the car.
He noticed that his keys had fallen
out of his pocket during the fracas. He recalled trying to support
his injured jaw with his left
hand while this was happening. He then
stepped forward towards the club to retrieve his keys. And as he did
so he saw Sylvester move
towards him wielding a baseball bat. He
heard him utter expletives to the effect that he was going to kill
him. As Sylvester moved
towards him and at a distance about 2 meters
from him, the appellant reached for his gun and fired a shot at him.
[10] The state’s
case was that after the appellant had been taken out of the club he
armed himself with his firearm, and returned
later, intent on
exacting revenge for the way he had been treated earlier. And
unprovoked, he fired a shot at Sylvester. Although
the state did not
contest that the appellant had also sustained injuries during the
course of the evening, its case was that he was
not injured at the
time of the shooting and also that there had not been any fight
between the state witness and the appellant during
the shooting.
[11] After firing
the shot, which struck both complainants, the appellant got into his
car, reached for his spare keys, which happened
to be in the vehicle,
and drove to the police station. It is of some significance that when
he entered the police station this time
Malete noticed that he had
blood on his hands and that his jaw was swollen.
[12] Some time
later that morning the appellant was taken to the district surgeon,
who recorded that the appellant’s left forearm
was tender and
bruised, that his left jaw had been fractured and was very tender. He
was wounded on the head but did not need stitches.
There was also
bleeding in the mouth. The appellant spent eight days in hospital
recovering mainly from the injury to his jawbone,
which necessitated
the insertion of metal screws and plates during surgery. He had
clearly been badly injured.
[13] Neither the
learned magistrate nor the high court accorded any weight to the
circumstances under which the appellant sustained
these injuries.
Instead they placed their emphasis on Malete’s evidence regarding
the appellant’s threat to arm himself so that
he could exact
revenge on those who had assaulted him earlier. And from this
emphasis, the rest followed. They implicitly accepted
the evidence of
the state witness that they had not used any violence when the
appellant arrived at the club on the second occasion,
least of all
with baseball bats. On the evidence of the state witnesses baseball
bats were not kept on the club premises. I should
mention that Bloem,
during his testimony, was asked by counsel for the state whether he
had ever seen baseball bats on the premises
– his reply was that he
had not seen any on that night but that he had, on previous visits to
the club, seen a ‘kierie’. His
description of the ‘kierie’
resembled that of a baseball bat, which places the state’s version
that no baseball bats were kept
on the premises in doubt.
[14] Counsel for
the state had considerable difficulty explaining how the appellant
had sustained his injuries. He submitted that
the appellant was
injured at the time that he was first removed from the club. That
submission is fanciful and improbable for two
reasons. First, Malete
would have noticed these injuries when he saw the appellant at the
police station on the first occasion. Malete’s
evidence that he
noticed the injuries only on the second occasion is consistent with
the appellant’s version that he had sustained
the injuries at the
time of the shooting. Secondly, with a fractured jaw, it is
difficult to accept that the appellant would have
returned to the
club in this condition to exact revenge two hours later.
[15] The other
evidence that the state had difficulty with was a statement that Isak
had made to the police shortly after the incident,
which contradicted
his oral testimony that they had not been involved in an altercation
with the appellant at the time of the shooting.
In it he says clearly
that when the appellant arrived on the scene for the second time they
had a fight. But during his oral testimony
he was not able to explain
why he had said this in his statement. This lends further support to
the appellant’s version that he
was assaulted just before shooting
Sylvester. Moreover, one must ask why he would return to shoot
Sylvester when, on the state’s
version, Masuku and Isak – not
Sylvester – had treated him badly earlier on.
[16] We accept that
the appellant had armed himself before returning to the club. But his
evidence that he had returned to collect
his niece’s sons – not
to exact revenge – cannot be rejected – particularly in light of
the fact of Smit’s evidence that
he was in the club at the time. Of
course it is clear that the fact that he returned to the club with
his firearm meant that he expected
trouble. And it was probably
irresponsible and even reckless for him to have gone back after what
had happened earlier. However,
once it is accepted that the appellant
could only have sustained the injuries at the time he came back to
the club, as we believe
we have to, it follows that his version that
he acted in self defence when he discharged a shot from his firearm
cannot be rejected
as false.
[17] We should add
that both the learned magistrate and the high court found the
appellant, on his own version, to have at least exceeded
the bounds
of self defence by retaliating when he could have left. But this
conclusion could only be reached by rejecting his version
that
Sylvester had attacked him with a baseball bat. And we do not think
we can. Indeed counsel for the state properly conceded that
if we
accept that the appellant was injured immediately before the
shooting, as he testified he had, the only conclusion is that
the
appellant’s version that he had fired in self-defence was
reasonably possibly true.
[18] For these
reasons the appeal must succeed. The following order is made:
1.
The
appeal is upheld.
2.
The
order of the court below is set aside and the following order is
substituted in its place:
‘
The appeal is
upheld and the convictions and sentences are set aside.’
______________
A CACHALIA
JUDGE OF APPEAL
_______________
H SALDULKER
ACTING JUDGE OF APPEAL
APPEARANCES:
APPELLANT: J Nel
Instructed by Honey Attorneys,
Bloemfontein
RESPONDENT: T Barnard
Instructed by Director of Public
Prosecutions, Bloemfontein