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[2009] ZASCA 152
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Steyn v S (105/09) [2009] ZASCA 152; 2010 (1) SACR 411 (SCA) (27 November 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case
No: 105/09
In the
matter between:
ANN
ELIZABETH STEYN
APPELLANT
v
THE
STATE
RESPONDENT
Neutral citation:
Steyn
v The State
(105/2009)
[2009] ZASCA 152
(
27
November 2009).
Coram: Mthiyane
JA, Leach et Wallis AJJA
Heard: 17
November 2009
Delivered: 27
November 2009
Summary: Criminal law –
private defence – appellant shooting deceased who was about to
assault her with a knife – shooting not
unlawful.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High Court,
Port Elizabeth (Nepgen J sitting as court of first instance).
The following order is made:
The appeal succeeds and the appellant’s conviction and
sentence are set aside.
________________________________________________________________
JUDGMENT
________________________________________________________________
LEACH
AJA (MTHIYANE JA and WALLIS AJA CONCURRING):
[1] On the evening of 9 February 2007, the appellant
shot and killed her former husband, a man who for years had abused
her, both
mentally and physically, and who had assaulted her earlier
that evening. Pursuant to this incident, the appellant was charged
with
murder in the High Court, Port Elizabeth. Her plea that she had
acted lawfully in self-defence was rejected and she was convicted
of
culpable homicide. In the light of the weighty mitigating
circumstances which were present, the appellant was sentenced to
three
years imprisonment, wholly suspended on certain conditions.
With leave of the court a quo, she appeals now to this court solely
against
her conviction.
[2] The appellant, who was 53 years of age at the time
of the fatal incident, had married the deceased in 1971, shortly
after she
had matriculated from the Assumption Convent in
Grahamstown. After her marriage, she and the deceased lived in
various towns in the
Eastern Cape before they moved to Port Elizabeth
in 1985 and took up residence at 6 Breda Street in the suburb of
Vikingvale,
the scene of the fatal incident. By then, their
relationship had substantially deteriorated. The deceased, who was
employed on the
railways, worked long hours and was often impatient
with the children when he came home. This led to great tension in the
home, as
did the fact that the deceased was extremely jealous of the
appellant and often accused her of forming relationships with other
men.
But more significantly, the deceased drank heavily and
continuously abused the appellant, both mentally and physically. He
often
told her that he would slit her throat with a smile on his
face. He also regularly locked her in her bedroom, at times for
extended
periods. So often did this occur that she took to keeping
food in her room to sustain her should she be imprisoned in this way.
On
one occasion she was locked in her bedroom for an entire weekend.
[3] Eventually the appellant felt she could take no more
and, in August 2002, she divorced the deceased. After the divorce,
the appellant
was admitted to the Lamprecht Clinic in George where
she was treated for depression. Although the appellant and the
deceased were
the joint owners of the former matrimonial home, and it
had been their intention to convert a section of the house into a
‘granny
flat’ in which she would reside, the appellant was
advised by a psychiatrist not to return to the house. Consequently,
after returning
from George she took up residence in a flat for which
the deceased undertook to pay the rent.
[4] Unfortunately, financial restraints forced the
appellant to give up this arrangement and after two months she moved
back to the
former matrimonial home where, although she no longer
shared a bedroom with the deceased, her life with him returned to
what it had
been before. The deceased continued to abuse her mentally
and physically and she did all the domestic duties expected of a
housewife.
She often fled to her bedroom, which became both her
sanctuary and her prison. At times she locked herself in to prevent
the deceased
from assaulting her while, on other occasions, the
deceased ordered her to her room or himself locked her in.
[5] The appellant was not in good health. She had
required surgery to her back after sustaining an injury but had
continued to experience
back and body pain for which she took
anti-inflammatory medication. She had also undergone a resection of
her colon which resulted
in her being obliged to eat small amounts of
food regularly throughout the day. In addition, not only did she
require medication
for an ulcer which had to be taken after food but
she was also on medication for high blood pressure and cholesterol.
[6] During the period December 2006 to January 2007 the
deceased took leave, and spent a great deal of his spare time
drinking with
his friends. This resulted in the appellant becoming
wracked with anxiety caused by her not knowing when, in what
condition or in
what mood he would return home. Although her doctor
prescribed anti-anxiety medication for her, she felt it would be best
to escape
from her domestic situation and to obtain professional
treatment. She therefore contacted her medical aid fund and
ascertained that
it would be prepared to pay for another course of
treatment for her at the Lamprecht Clinic in George.
[7] I turn now to the events of Friday 9 February 2007.
During the course of the day, the deceased telephoned the appellant
and told
her to take meat out of the freezer for him to braai that
evening. She did so, and also prepared potatoes to accompany the
meal.
The deceased arrived home after dark. He had clearly been
drinking and was not in a good mood. He went to light a fire on which
to
cook the meat. Adjacent to the kitchen and the garage of the house
was an enclosed outside area, paved and roofed and referred to
in
evidence as being the ‘braai room’. On an external wall there
was a fireplace for the making of braaivleis fires and the
cooking of
meat. The floor level was lower than that in the house, with access
being gained through a door leading from the kitchen
down two steps
to the lower level. The braai room was furnished with a wooden picnic
table and benches, and padded benches against
two walls.
[8] The appellant poured the deceased a drink, took it
to him and then seated herself on one of the padded benches. She
eventually
plucked up sufficient courage to tell the deceased that
she had contacted her medical aid to ascertain if it would pay for
treatment
for her anxiety at the clinic in George. On hearing this,
the deceased erupted. He verbally abused her in foul and offensive
terms,
telling her that she had been born mad and would die mad. He
then jumped up from where he was sitting, grabbed her by the throat
and began to hit her. When the appellant’s pet German Shepherd dog
jumped up, it drew the deceased’s attention away from the
appellant, and he released her in order to chase it out of the room.
She seized the moment to make her escape, and ran to her bedroom
where she locked herself in. The deceased shouted after her that she
was to stay in her room and that she would get nothing to eat
that
night.
[9] At some stage thereafter, the appellant prepared for
bed and dressed herself in a nightie. But she urgently needed to take
her
prescribed medication and needed to have something to eat before
doing so. Unfortunately she did not have any food in her room that
night and, in desperation, decided for the first time to ignore an
instruction from the deceased to remain in her room and go and
fetch
one of the cooked potatoes she had earlier left in the kitchen.
Scared and upset as a result of the earlier assault, she armed
herself with her .38 revolver which she hoped would dissuade the
deceased from attacking her again.
[10] Having armed herself in this way, the appellant
unlocked her bedroom door and set off down the passage, heading for
the kitchen.
When she reached the open door leading into the braai
room, she saw the deceased seated at the picnic table eating his
supper. He
had the pot of potatoes on the table alongside him. She
hesitated and the deceased then looked up. On seeing her standing in
the
doorway at the top of the stairs leading into the room, his
reaction was both immediate and violent. He screamed that he had told
her to stay in her room and that he had already told her that she
would get nothing to eat. Holding the steak knife that he had been
using, he jumped to his feet and rushed at her, shouting that he was
going to kill her, a threat which appeared to be deadly serious.
Fearing for her life, she instinctively raised her revolver and fired
a single shot at the deceased before turning and fleeing back
to her
room where she locked herself in. She then telephoned a friend of
hers, a policewoman, who rushed to the house to assist her.
It was
then ascertained that the deceased had been fatally injured, the
bullet having passed through his hand (which had presumably
been held
up in front of him) before entering the body through the right upper
anterior chest wall some 9,5 cm below the right clavicle,
passing
through the right lung and exiting the right chest posteriorly about
15 cm above the sacral bone. The bullet caused a right-sided
haemothorax and the collapse of the right lung. From the position
where he had been shot in the braai room, the deceased managed
to get
into the kitchen before he collapsed and died from loss of blood.
[11] This version of events was given by the appellant
when she testified. The trial court found her to be a wholly
satisfactory witness
who there was no reason to disbelieve. It
therefore concluded that her version could reasonably possibly be
true and that her guilt
or otherwise had to be determined on her own
version.
[12] The court a quo recorded in its judgment that
counsel for the state had conceded at the trial that the appellant’s
version
could reasonably possibly be true. However, in this court the
state argued that there had been a misunderstanding in that respect
and, although it conceded that most of the appellant’s evidence
could reasonably possibly be true, it argued that her description
of
how she had shot the deceased could not be accepted. This argument
was largely based on the presence of blood on the floor alongside
the
bench on which the deceased had been sitting at the table facing the
door from which the fatal shot was fired, and the opinion
of a police
forensic scientist, Superintendent Kock, who concluded that such
blood had come from the wound to the deceased’s left
hand and that
the deceased must therefore have still been behind the table at the
time he was shot. On the strength of this, the
state argued that the
deceased could not have moved out from behind the table and been
rushing at the appellant when the fatal shot
was fired; that the
appellant’s version of the shooting could thus not be accepted;
that the court quo had consequently erred in
doing so; and that the
appellant must have shot the deceased at a time when he was no threat
to her.
[13] This argument cannot be accepted. The value of an
expert's opinion is largely dependent upon the reliability of the
proven facts
upon which it is based. In the present case, the precise
movements of the deceased and the appellant and the position in which
they
were in relation to each other as the material events unfolded,
are incapable of being accurately determined. The opinion relating
to
the source of the relatively small quantity of blood found on the
floor alongside the table where the deceased had been seated
is, in
my view, largely speculative, as is the opinion that it must have
fallen to the ground at the instant the deceased was shot
in the
hand. It must be remembered that the deceased clearly moved about the
room after he had been fatally injured, as is borne
out by the fact
that he ultimately collapsed in another section of the house, and the
blood alongside the table which formed such
an important foundation
of Kock’s opinion could well have come to be deposited there at any
stage.
[14] It is unnecessary to subject the evidence on this
aspect and Kock’s opinion to much greater scrutiny. What we do know
is that
the fatal bullet passed right through the body of the
deceased before exiting at his back. If the deceased was still seated
or was
even rising to his feet at the time he was shot, one would
have expected there to have been blood behind the table or on the
seat
where he had been sitting. But there was none there, a fact
which leads to the logical inference that the deceased was probably
not
behind the table when he was shot. The absence of blood behind
the table is certainly consistent with the appellant's version of
the
incident, and the presence of blood on the floor alongside the table,
which could been a result of his having been shot while
he moved
towards the appellant, is no reason to reject her evidence as not
being reasonably possibly true.
[15] Importantly, the trial court formed a good
impression of the appellant and found her to have been a reliable
witness. For the
reasons already given, the position of the blood on
the floor is no reason to conclude that her description of the
shooting is unacceptable.
She was the sole eye-witness to the
incident and there is no reason for this court to conclude that the
trial court erred in deciding
the question of her guilt by having
regard to her evidence of the events in question as described above.
[16] I therefore turn to consider whether the court quo
was correct in concluding that, on her own evidence, the appellant
had acted
unlawfully. In denying her guilt, the appellant relied on a
plea of so-called ‘private defence’ (commonly referred to in
circumstances
such as the present as ‘self-defence‘) which goes
to negative unlawfulness and recognises that persons may lawfully use
such
force as may be necessary to repel unlawful attacks upon them
which have either commenced or are imminent and which threaten their
lives or bodily integrity.
1
[17] The court a quo held that when she left her bedroom
in order to fetch a potato from the kitchen, a reasonable person in
the appellant's
position would have foreseen the possibility that the
deceased, in the condition and mood he was in, might attempt to
attack her.
It held that a reasonable person would therefore not have
proceeded to place herself in a position of danger where she might be
forced
to use her pistol to defend herself. Accordingly it concluded
that the appellant had acted unreasonably and that the fatal incident
could have been avoided if she had telephoned for help and waited for
assistance before she left her room. The reasoning of the court
was
therefore that the appellant had acted negligently and was guilty of
culpable homicide.
[18] Counsel for the appellant argued that the court a
quo had misdirected itself in this regard by confusing the question
of unlawfulness
with the test of negligence or
culpa
,
and submitted that the issue of whether the appellant was guilty of
negligence or
culpa
would only arise once it had first decided that her conduct was
unlawful. This argument is not without substance. It is indeed so
that when an accused raises a plea of private defence, the court’s
initial inquiry is to determine the lawfulness or otherwise
of the
accused’s conduct and that, if found to be lawful, an acquittal
should follow.
2
At the same time, however, it is clear from its judgment that the
court a quo specifically turned its attention to the question of
the
lawfulness of the appellant’s conduct and, in considering that
issue, the courts often do measure the conduct of the alleged
offender against that of a reasonable person on the basis that
reasonable conduct is usually acceptable in the eyes of society and,
consequently, lawful.
3
In the light of the circumstances of the present case where the facts
are known, it is unnecessary to decide whether the court a
quo
misdirected itself in the manner suggested as this court can itself
determine the lawfulness of the appellant’s conduct on
those facts.
[19] Every case must be determined in the light of its
own particular circumstances and it is impossible to devise a precise
test
to determine the legality or otherwise of the actions of a
person who relies upon private defence. However, there should be a
reasonable
balance between the attack and the defensive act as ‘one
may not shoot to kill another who attacks you with a flyswatter’.
4
As Prof J Burchell has correctly explained ‘. . . modern legal
systems do not insist upon strict proportionality between the attack
and defence, believing rather that the proper consideration is
whether, taking all the factors into account, the defender acted
reasonably
in the
manner in which he defended himself or his property’.
5
Factors relevant to the decision in this regard include the following
(the list is by no means exhaustive):
the relationship between the parties
their respective ages, gender and physical strengths
the location of the incident
the nature, severity and persistence of the attack
the nature of any weapon used in the attack
the nature and severity of any injury or harm likely to
be sustained in the attack
the means available to avert the attack
the nature of the means used to offer defence
the nature and extent of the harm likely to be caused
by the defence.
6
[20] Counsel for the state submitted that the appellant
had not acted reasonably in warding off the deceased’s attack.
First, she
argued that the appellant was a police reservist trained
in the use of firearms and conflict resolution and could therefore
either
have persuaded the deceased not to attack her or, at the very
least, fired a warning shot to deter him. Secondly, it was argued
that
the appellant could have fled to her bedroom and thus avoided
being assaulted without the necessity of shooting at the deceased.
[21] Whether a person is obliged to flee from an
unlawful attack rather than entitled to offer forceful resistance, is
a somewhat
vexed question.
7
But in the light of the facts in this case, it is unnecessary to
consider the issue in any detail. It could not have been expected
of
the appellant to gamble with her life by turning her back on the
deceased, who was extremely close to her and about to attack
her with
a knife, in the hope that he would not stab her in the back.
8
She would have had to turn around in order to return to her bedroom,
by which time the deceased would have been upon her and flight
would
have been futile. The appellant testified that the deceased would
probably have caught her before she reached her room, and
that
appears to be a reasonable assumption. That being so, the appellant
cannot be faulted for offering resistance to the deceased
rather than
attempting to flee from him.
[22] Turning to the relevance of the appellant’s
training as a police reservist, her training in respect of both the
use of her
firearm and conflict management appears to have been
elementary, to say the least. The appellant was no expert in the use
of a firearm.
Several years previously she had been given a single
lesson on how to strip and clean a weapon. This was followed by a
single session
of firing a pistol on a range. That was the only
firearm training she had ever received, and she was certainly not
well versed in
the use of a handgun. Indeed, she had never previously
fired the revolver she used to shoot the deceased. Her conflict
resolution
training was no more advanced. It consisted of no more
than a debate in which she and a colleague had advanced contrary
standpoints
on an issue. This had happened on a single occasion and
the appellant can hardly be considered an expert in conflict
management.
[23] Far more important is the fact that the history of
the relationship between the appellant and the deceased was such that
she
had never been able to resist him or his unlawful assaults during
the many years that she had been the subject of his abuse. This
shows
that her training in conflict management had been of no use to her in
her daily life. The appellant must therefore be judged
in the light
of the fact that she was a woman who had previously been unable to
resist the deceased’s physical abuse and was both
scared of him and
thoroughly dominated by him. On the night in question, she urgently
needed to get some food in order to take the
medication she required.
She was frightened and in an emotional state as a result of having
been assaulted by the deceased. She was
entitled to leave her
bedroom, in her own home, and go to the kitchen to get a potato.
There was nothing unlawful in her action in
doing so, and it cannot
have been expected of her to telephone for assistance every time she
needed to do something in her own home.
She then came face to face
with the deceased and it was he, and not she, who acted unlawfully by
attempting to attack her with a
knife.
[24] In considering the lawfulness of the appellant’s
conduct, it is necessary to keep in mind that she was obliged to act
in circumstances
of stress in which her physical integrity and indeed
her life itself were under threat. It is necessary in such
circumstances to
‘adopt a robust approach, not seeking to measure
with nice intellectual calipers the precise bounds of legitimate
self-defence’.
9
Adopting that approach, the appellant in my view did not act
unlawfully. She found herself in a position of great danger in which
her life was under direct threat. There can be no doubt that in these
circumstances she was entitled to use deadly force to defend
herself.
Had she not done so, it might well have cost her her life. In these
circumstances her instinctive reaction, as she described
it, of
shooting at the deceased, who was seemingly hell-bent on killing her,
was reasonable and the court a quo erred in finding
otherwise.
[25] For the above reasons, the appellant’s plea of
‘self-defence’ ought to have been upheld. The appeal succeeds and
the conviction
and sentence are set aside.
_______________
L E LEACH
ACTING JUDGE OF APPEAL
APPEARANCES:
COUNSEL FOR APPELLANT: A Hatting
INSTRUCTED BY: Roelofse & Roelofse
Ing, Port Elizabeth
CORRESPONDENT: Symington & De Kok,
Bloemfontein
COUNSEL FOR RESPONDENT: L Williams
INSTRUCTED BY: The Deputy Director of Public
Prosecutions, Port Elizabeth
CORRESPONDENT: The Deputy Director of Public
Prosecutions, Bloemfontein
1
See C R Snyman
Criminal
Law
5 ed at 103-107.
2
J
Burchell
Principles of
Criminal Law
3 ed at 243.
3
Snyman op cit at 113-114.
4
Snyman op cit at 109.
5
Burchell op cit at 241.
6
S v Trainor
2003 (1) SACR 35
(SCA) at [13]; Snyman op cit at 111-112 and
Burchell op cit at 241.
7
See eg Snyman op cit at 107-109.
8
In this regard I endorse the view of Snyman op cit at 108.
9
Per
Holmes
JA in
S v Ntuli
1975 (1) SA 429
(A) at 437.