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[2021] ZAKZPHC 67
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Janki v S (AR65/2020) [2021] ZAKZPHC 67 (19 August 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR 65/2020
In
the matter between:
NIVASH
JANKI APPELLANT
and
THE
STATE RESPONDENT
ORDER
On
appeal from:
Estcourt Regional Court
(sitting as court of first instance):
The appeal is dismissed.
JUDGMENT
Mossop
AJ (Sibiya J concurring):
[1]
When
he stood trial in the regional court sitting at Estcourt,
KwaZulu-Natal, the appellant was charged with one count of attempted
murder, it being alleged by the State that he had shot Mr Thembelakhe
Nyoka (the complainant) with a firearm. The appellant pleaded
not
guilty when he was called upon to plead and disclosed his defence in
writing in terms of the provisions of section 115 of
Criminal
Procedure Act 51 of 1977
. In essence, his plea was that he had acted
in defence of himself, believing that he was at immediate risk of
being physically
assaulted by the complainant.
[1]
What was pleaded was that the complainant had advanced towards the
appellant to assault him with an iron rod. The appellant drew
his
firearm and fired a shot into the air. When that did not stop the
complainant advancing towards him, the appellant fired a
shot towards
the legs of the advancing complainant.
[2]
The
appellant, however, was ultimately not convicted of attempted murder.
On 30 August 2019, he was convicted of assault with the
intent to do
grievous bodily harm and was sentenced to three years’
imprisonment, wholly suspended for a period of five years
on
condition that he was not convicted during the period of suspension
of any offence involving violence in respect of which a
term of
direct imprisonment was imposed. The appellant was also declared
unfit to possess a firearm in terms of section 103(1)
of the Firearms
Control Act 60 of 2000 (the Act).
[3]
Dissatisfied
with his conviction and his subsequent disqualification from
possessing a firearm, but otherwise content with his sentence,
the
appellant sought leave to appeal from the court a quo. He was granted
such leave. This appeal accordingly only deals with whether
the
appellant was correctly convicted in the court below and whether he
ought to have been disqualified from further possessing
a firearm.
[4]
The
conviction of the appellant was based upon the evidence of two
witnesses called by the State, one of whom was the complainant.
At
the conclusion of the defence’s case, the court also called the
oral evidence of a medical doctor (the doctor) who attended
to the
complainant after he had been shot. The doctor’s evidence was
called to clarify aspects of the medical examination
form, commonly
known as a ‘J88’, that he had completed while examining
the complainant. In his defence, the appellant
testified, and after
successfully applying to reopen his case, called two expert
witnesses, largely to counter the oral evidence
of the doctor called
by the court.
Representation
[5]
Before
us, the appellant was represented by Mr Moodley SC and the respondent
was represented by Ms Sokhela. They are both sincerely
thanked for
their submissions and their assistance.
Private
defence
[6]
While
the defence indicated that the appellant allegedly acted in defence
of himself, the more correct classification of his defence
is that of
private defence.
[2]
The
requirements for private defence are well-settled. The attack upon
the person acting in private defence must be unlawful, must
be
directed at an interest which legally deserves to be protected and
must
be
imminent
but not yet completed.
[3]
As
regards the defence, it must be directed at the attacker, it must be
necessary in order to protect the interest threatened,
there must be
a reasonable relationship between the attack and the defensive act,
and the person attacked must be aware of the
fact that he is acting
in private defence.
[4]
[7]
The
test for assessing private defence is an objective one and is to be
considered as against the conduct of a reasonable person.
[5]
The question whether an accused person claiming to have acted in
private defence can successfully maintain that defence, is determined
by objectively examining the nature of the attack and defence to
determine whether they conform with the principles of law set
out
above. In doing so, each aspect and requirement of the attack
and the defence must be judged from an external perspective
rather
than in terms of the accused’s perceptions and his assessment
of the position at the time that he resorted to private
defence.
Whether an attack is to be regarded as imminent is decided by the
court’s assessment of the evidence of the circumstances
of the
attack and not according to the accused’s belief that he was in
imminent danger of being attacked. However, as
was said in
S
v
Ntuli
:
[6]
‘
In applying these
formulations to the flesh-and-blood facts, the Court adopts a robust
approach, not seeking to measure with
nice intellectual callipers the
precise bounds of legitimate self-defence or the foreseeability or
foresight of resultant death
.’
[8]
In
other words, the court must guard against becoming an arm-chair
critic. In
R
v Patel
,
[7]
Holmes AJA re-affirmed that the court should recognise that decisions
in the real world are often made in split seconds:
‘”
Men faced
in moments of crisis with a choice of alternatives are not to be
judged as if they had had both time and opportunity to
weigh the pro
and cons. Allowance must be made for the circumstance of their
position.”’
[8]
The
complainant’s version
[9]
The
complainant was employed by JES Towing in Estcourt in this province.
He testified that during 2017, the appellant’s brother,
Mr
Shenile Janki (Shenile), had come to his workplace and had taken and
removed what was described by the complainant as ‘a
canvas’.
It appears that what was being referred to was a tarpaulin. Shenile
allegedly never returned it. During January
2018, the complainant’s
employer, one Shevan (Shevan), asked the complainant where the
tarpaulin was. He was told by the
complainant that Shenile had taken
it and had never returned it.
[10]
On
the morning of 22 January 2018, the complainant was at work having
just finished the night shift and was preparing to knock off.
The
appellant’s brother, Shenile, arrived at the complainant’s
workplace in the company of his father and another person
identified
as ‘Ashwin’ (Ashwin). The complainant’s employer
requested the complainant to repeat to Shenile what
he had said had
happened to the tarpaulin. The complainant obliged, and an argument
then broke out with Shenile, denying that he
had taken the tarpaulin.
As the argument intensified, Shenile produced a firearm and pointed
it at the complainant and Ashwin then
slapped the complainant in the
face. The complainant’s employer interceded and instructed the
complainant to withdraw into
the workshop, which he did, and the
situation was thus temporarily diffused.
[11]
However,
ten minutes later, the appellant appeared at the complainant’s
workplace. Having shouted for the complainant, who
was within the
premises, the appellant entered and tried to assault him with an open
hand and then also produced a firearm. He
fired a shot close to the
head of the complainant and then shot him in both legs. The
complainant was certain that the wounds occasioned
to both his legs
were caused by a single shot fired by the appellant. Having shot the
complainant, the appellant offered him no
assistance and left the
scene. The complainant was attended to by two of his colleagues and
was taken to the Estcourt Hospital
for treatment and was later
transferred to the Ladysmith Hospital for further treatment.
According to the complainant, he was hospitalised
for four months as
a consequence of being shot.
The
appellant’s version
[12]
The
appellant asserts that he went to the complainant’s workplace
after the argument involving Shenile, his father and Ashwin.
He was
accompanied by one Ashok, with whom he was then conducting some
business. He was also joined by his brother and Ashwin.
On arrival,
the complainant’s employer was on the telephone but said that
the appellant should go through to the workshop
and speak to the
complainant. The appellant went into the workshop area and shouted
the complainant’s name and when he heard
this, the complainant
armed himself with ‘a strong iron pipe’. More about the
object later in this judgment. The complainant
began walking towards
the appellant. The appellant asked him what he was going to do with
the pipe that he held but received no
response from the complainant.
The appellant perceived himself to be under threat and fired a
warning shot over the head of the
complainant. The discharge of the
warning shot by the appellant did not dissuade the complainant from
continuing to advance towards
him and the appellant then felt
compelled to fire a single shot at the complainant which he aimed at
the complainant’s legs.
Having shot the complainant, he
admitted not rendering any assistance to him and, instead, he left
the scene, got into his motor
vehicle and drove in the direction of
Pietermaritzburg, apparently to consult with his attorney over what
had just occurred. He
reported the matter to the police the next day.
Common
cause
[13]
Given
that the defence of the appellant was private defence, it follows
that much of the evidence led at trial was common cause.
The shooting
was obviously admitted, as were some of the surrounding
circumstances. It was not in dispute that there had been a
prior
argument between the appellant’s brother, father and Ashwin and
the complainant. The complainant’s and the appellant’s
description of the wounds were common cause, and both agreed that a
single shot had caused all the injuries that the complainant
sustained to his legs. They were also agreed that the trajectory of
the bullet was from the outside of the complainant’s
upper left
thigh, proceeding at a downward angle through his left leg, out the
inside of his left leg, entering the inside of his
right leg and
exiting from the top of his right leg close to his right knee cap.
[14]
It
was the evidence of the doctor called by the court that introduced
discord into the essentially harmonious version of how the
complainant’s wounds were caused. The doctor believed that two
shots had been fired into the legs of the complainant, and
not just
one. This was based upon the size of one wound on each leg. Those two
wounds, one on the lateral aspect of the left thigh
and the other on
the front aspect of the right leg, were small in size and the doctor
concluded that they were therefore both entry
wounds. This would mean
that the complainant had been struck by two bullets and not just one.
[15]
That
the doctor may have been seduced by the wound sizes is to be
understood. He would not be the first medical practitioner to
have
struggled with interpreting actions from wounds.
As
early as the 1870s, a forensic guide then in existence made reference
to a notorious case where a lead ball broke into two pieces
as it
passed through a man’s leg, and the pieces lodged in his other
leg, producing three entrance wounds, two exit holes,
and a puzzle
for the examining doctor.
[9]
The
doctor in this matter under appeal attempted to solve the puzzle of
the wounds that confronted him. But he was no expert on
bullet
wounds. And, importantly, he did not appear to take cognisance of the
version advanced by the complainant, who quite accurately
described
how he had been shot.
[16]
The
expert evidence called by the appellant after he was given leave to
re-open his case, scotched the doctor’s version of
two bullets
striking the complainant. It is plainly evident that a single shot
caused all the damage. In any event, there was the
direct evidence of
both the complainant and the appellant that only one shot was fired
at the complaint’s legs, and the regional
magistrate was
accordingly correct in ultimately finding that all the wounds were
caused by one shot.
Applicable
legal principles on appeal
[17]
It
is trite that when an appeal against a decision of a criminal court
is considered by an appeal court, the latter must take into
account
that the trial court was in a better position than the appeal court
to form a judgment of what actually occurred.
Holmes
JA in
S
v Robinson
and
others
[10]
put it this way:
‘
A
Court of appeal, not having had the advantage of seeing and hearing
the witnesses, is of necessity largely influenced by the trial
Court's impressions of them. Having regard to the re-hearing aspects
of an appeal, this Court can interfere with a trial Judge's
appraisal
of oral testimony, but only in exceptional cases as aptly
summarised in a Privy Council decision quoted in
Parkes
v Parkes
,
1921 AD 69
at p. 77:
“
Of
course it may be that in deciding between witnesses, he has clearly
failed on some point to take account of particular circumstances
or
probabilities material to an estimate of the evidence, or has given
credence to testimony, perhaps plausibly put forward, which
turns out
on more careful analysis to be substantially inconsistent with
itself, or with indisputable fact; but except in rare
cases of that
character, cases which are susceptible of being dealt with wholly by
argument, a Court of Appeal will hesitate long
before it disturbs the
findings of a trial Judge based on verbal testimony.'
'’
[18]
If
there are no misdirections on fact, a court of appeal assumes that
the court a quo’s findings are correct and will accept
those
findings, unless it is convinced that they are wrong.
[11]
Therefore in order to interfere with the court a quo’s
judgment, it has to be established that there were misdirections of
fact, either where the reasons articulated by the court a quo on
their face are unsatisfactory or where the record shows them to
be
such. Marais JA in
S
v Naidoo and others
[12]
affirmed the principle as follows:
‘
In
the final analysis, a Court of appeal does not overturn a trial
Court's findings of fact unless they are shown to be vitiated
by
material misdirection or are shown by the record to be wrong
.’
[19]
In
S v
Monyane and others
,
[13]
the Supreme Court of Appeal stated that it is only in exceptional
cases that an appeal court is entitled to interfere with the
trial
court’s evaluation of oral evidence. However, the manifest
advantages that a trial court enjoys over an appeal court
should not
be over-emphasised otherwise there would be no value in allowing
appeals to occur.
[14]
[20]
It
is trite that the State is required to establish the guilt of an
accused person beyond reasonable doubt. The accused person is
entitled to be acquitted if there is a reasonable possibility that
his version may be true. In dealing with the relationship between
these two concepts, the court in In
S
v Van der Meyden
,
[15]
explained that:
‘
These are not
separate and independent tests, but the expression of the same
test when viewed from opposite perspectives. In
order to convict, the
evidence must establish the guilt of the accused beyond reasonable
doubt, which will be so only if there
is at the same time no
reasonable possibility that an innocent explanation which has been
put forward might be true. The two are
inseparable, each being the
logical corollary of the other. In whichever form the test is
expressed, it must be satisfied upon
a consideration of all the
evidence. A court does not look at the evidence implicating the
accused in isolation in order to
determine whether there is proof
beyond reasonable doubt, and so too does it not look at the
exculpatory evidence in isolation
in order to determine whether it is
reasonably possible that it might be true.’
[21]
It
is acceptable in evaluating the evidence in its totality to consider
the inherent probabilities that exist. In
S
v Chabalala
,
[16]
Heher AJA explained the correct approach as follows:
‘
The
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. The result may prove that one scrap of evidence or
one defect in the case for either party (such as
the failure to call
a material witness concerning an identity parade) was decisive but
that can only be an
ex
post facto
determination and a trial court (and counsel) should avoid the
temptation to latch on to one (apparently) obvious aspect without
assessing it in the context of the full picture presented in
evidence. Once that approach is applied to the evidence in the
present matter the solution becomes clear.
’
The
issues
[22]
I
propose to consider the three principal issues arising out of the
evidence, namely, the nature of the weapon allegedly possessed
by the
complainant, the wounds sustained by the complainant and the alleged
threat to the physical well-being of the appellant.
The
nature of the weapon allegedly possessed by the complainant
[23]
In
his plea explanation, the appellant indicated that the complainant
had armed himself with an ‘iron rod’. This was
put to the
complainant in cross examination on several occasions by Mr Moodley,
who also appeared for the appellant at the trial.
The complainant
disputed that he had anything in his hands when he was shot. The
second witness called by the State was Mr Sphamandla
Sibusiso
Hlongwane (Mr Hlongwane). He appeared to confirm the appellant’s
version that the complainant had something in his
hands, but he
introduced a different description of the object. He said: ‘So
if I am not mistaken it was a pipe or a metal
object.’
[24]
In
cross-examination of Mr Hlongwane, the following was put to him by Mr
Moodley:
‘
Now
is it correct that the first weapon to be drawn was the iron rod
which you described, by the complainant? --- The first object
that I
saw was this pipe object or metal object.
Iron rod --- Iron rod.’
[25]
The
fact of the matter is that Mr Hlongwane never said that that the
complainant had picked up an iron rod, he said it was a pipe
or a
metal object. Thereafter, Mr Moodley himself started referring to a
pipe when completing his cross-examination of Mr Hlongwane.
When the
appellant testified, the transformation of the object from a rod to a
pipe was complete:
‘
ADV
MOODLEY
And you say he pulled out a strong iron pipe --- Yes.
Just hold on there. Yes,
go on. --- He came towards me holding the pipe. I did ask him what he
wants to do with the pipe.’
[26]
In
my view, there is a difference between a rod and a pipe. The general
understanding of a pipe is a hollow tube whereas a rod is
a solid
object. The word ‘rod’ has its origin in the
late
old English word ‘rodd’, meaning a ‘slender shoot
growing on or cut from a tree’ but may also mean
‘straight
stick or bundle of twigs used to inflict punishment’ and is
probably related to the Old Norse word ‘rudda’,
meaning
‘club’.
[17]
The
appellant’s own version as to what the complainant allegedly
possessed was not consistent.
The
wounds sustained by the complainant
[27]
The
appellant’s version was always that the complainant advanced
upon him, face to face. In other words, according to the
appellant
they were never at right angles, or any other angle for that matter,
to each other. However, the wounds to the complainant’s
legs
showed that the trajectory of the bullet was from the outside of his
upper left thigh, proceeding at a downward angle through
his left
leg, out the inside of his left leg, entering the inside of his right
leg and exiting from the top of his right leg close
to his knee cap.
The pathway through the right leg was more or less flat and
horizontal to the ground.
[28]
The
face on approach by the complainant to the appellant as described by
the appellant does not make the trajectory of the bullet
seem
possible or probable. For a single bullet to cause all the damage,
which the regional magistrate correctly found that it did,
the
complainant had to be with his left side to the appellant when he was
shot and not face to face. This is precisely what the
complainant
testified to: ‘The second shot I had then turned around and it
then entered.’ The complainant explained
that the appellant was
on his left side as a consequence of him, the complainant, turning
around. That position perfectly explains
the trajectory of the bullet
from the outside of the left leg through both his legs.
[29]
The
trajectory of the bullet was obviously something that the appellant
needed to deal with thoroughly. To explain it, and whilst
being
cross-examined, the appellant stated that he had moved to the side
when pulling out his firearm. This had not been mentioned
in his
evidence in chief. He was never asked to which side he allegedly
moved. It is difficult to understand how a move either
to the left or
right made the actual trajectory of the bullet more likely because on
his version, the complainant still continued
to move towards him,
face on. Accordingly as the appellant altered his position, the
complainant did as well so the protagonists
remained in relatively
the same position in respect of each other.
[30]
A
different version was later put forward by the ballistics expert
witness, Mr Jacobus Steyl (Mr Steyl), called by the defence.
In the
theory that Mr Steyl proposed, he did not include the appellant’s
version of stepping to the side. He could only provide
the theory
that the complainant changed his body position at the moment that the
appellant pulled the trigger of the firearm. He
testified that
studies suggest that a person is capable of assuming a different body
position in the very short time period between
the time the trigger
of a firearm was pulled and the time that the bullet struck the
complainant. That may well be so. However,
that is not the version of
the appellant: his version is that he changed his position
immediately before firing and not that the
complainant changed his
position. When the appellant gave his evidence that he moved to the
side, he did not know that Mr Steyl
would be called to testify
because the court had not yet informed the parties that it intended
to call the evidence of the doctor
who examined the complainant. That
occurred only after the appellant closed his case, which he did after
he completed his testimony.
Mr Steyl was given a transcript of the
trial proceedings and manuscript notes of the evidence of Mr
Hlongwane and manuscript notes
of the evidence and cross-examination
of the appellant before he testified. Significantly, he did not
incorporate into his theory
the step to the side testified to by the
appellant. Given what he was provided before preparing his report, he
must have been aware
of it. Had such a movement explained the
trajectory of the bullet, there can be very little doubt that Mr
Steyl would have relied
upon it.
[31]
In
argument, Mr Moodley was asked to make submissions on the evidence of
Mr Steyl and whether it ought to have included the accused’s
version of the step to the side. Mr Moodley submitted that it would
not have been proper for Mr Steyl to make reference to the
facts of
the matter. An expert, so he submitted, should be objective and not
favour either version. I am unfortunately not able
to totally agree
with that submission. While an expert should not usurp the functions
of the court, his evidence must be factually
based.
It is
vital that the opinion evidence of an expert is solid:
‘”
Solid”
supposes [the] veracity of the facts of the particular case,
expertise on the issue and an opinion that makes legal
sense based on
the facts combined with the expertise.’
[18]
Mr
Steyl, in advancing a general proposition, did not tie that
proposition to the specific facts of this case, which speaks volumes.
[32]
While
Mr Steyl advanced the theory that the complainant could have changed
his position, the appellant testified unwaveringly that
the
complainant had not ‘ducked’ or changed his position.
Possibly, the appellant felt constrained to adhere to this
version
because if the complainant was not coming towards him head on but
was, instead, turning away, ducking or taking cover,
the appellant’s
version that he was about to be attacked would seem to be improbable.
This is what the appellant said whilst
being cross-examined by the
prosecutor:
‘
PROSECUTOR
Do
you know what would have made the complainant to duck from you
because that is the evidence that was testified by the second
State
witness.
That he saw the…
[intervention] --- The complainant never ducked.
That he said he saw the
complainant ducking? When the first shot [intervention] --- No.
Was fired. --- No.
You did not see that? ---
No, the complainant never ducked.
Because that was the
evidence of the complainant and the second State witness. ---
No. The complainant never
ducked.’
[33]
However,
following questions put to the appellant by the court, his counsel
was offered the opportunity to put further questions
to the
appellant. Asked if he had any further questions for the appellant,
counsel said:
‘
I
think just one. When you fired the second shot at the complainant, is
it possible that he could have ducked and turned? Did you
see that?
--- He could have, it was, it was happening quite fast, so he could
have moved or something, I cannot.’
The
answer to the question was at odds with the appellant’s earlier
resolute testimony that the complainant never ducked or
moved. From
this it is evident that the appellant was pliable insofar as his
evidence was concerned. He later reverted to form
and denied that the
complainant had ducked when further questioned by the prosecutor.
[34]
On
the aspect of the wounds suffered by the complainant, the appellant
finds himself in a difficult position. The wounds sustained
are
simply not explicable in terms of his version, with the complainant
walking towards him face on. They are only explicable if
the
complainant had his left flank exposed to the appellant when the shot
was fired. This would mean that he was not proceeding
towards the
appellant face on. This casts grave doubt on the appellant’s
claim of being under threat of imminent physical
threat. In fact, it
destroys it.
The
alleged threat to the physical well-being of the appellant
[35]
As
regards the conduct of the complainant that led him to believe that
he was going to be attacked, the appellant’s evidence
was
singularly lacking in detail. At no stage in his evidence in chief,
or in cross-examination, did the appellant state that the
complainant
was holding or swinging the pipe in a way that indicated that he
intended to strike the appellant with it. Only once
the appellant had
been cross-examined by the State and re-examination was declined by
his counsel did the following interaction
between the court and the
appellant take place:
‘
And
how was the complainant advancing on you? In what fashion? --- He was
coming with the pipe like this.
Held, you are indicating
held above the shoulder … [intervention] --- Yes.
In a striking position?
--- Yes.’
[36]
That
was the only evidence adduced by the appellant that could objectively
be construed as a threat to his physical integrity. This
is
troubling. The appellant’s case was that he genuinely believed
himself to be under physical attack but he never provided
any detail
of precisely what that threat comprised until the eleventh-hour.
[37]
The
appellant’s version was that the complainant went to a parked
motor vehicle and pulled out the iron pipe. He did not identify
from
which part of the motor vehicle the pipe was taken. The complainant
then came towards the appellant holding the pipe. The
appellant asked
him what he wanted to do with the pipe but received no response to
this inquiry. The complainant just kept on coming
towards him. The
appellant drew his firearm and fired a shot in the air. The
complainant came faster towards the appellant. The
appellant stated:
‘
He
was getting too close to me. And I was scared my life is in danger as
he was carrying a pipe if he hit me with it. . .’
After
firing over the complainant’s head, the appellant then fired a
shot, striking the complainant in the legs. In his evidence
in chief,
the appellant stated that: ‘I could shoot him anywhere because
he was, he was very close to me’.
[38]
Objectively,
the complainant was not very close to the appellant at any stage: at
the time that the complainant was shot, he was
five to six metres
away from the appellant, on the appellant’s own version. This
was the closest that the complainant ever
got to the appellant. If
the complainant did hold a pipe, and he had swung it at the appellant
at that distance he would not have
been able to touch the appellant.
[39]
As
regards the way that the complainant allegedly approached the
appellant, the appellant testified that the complainant was not
running but was ‘walking fast’ towards him. As to why he,
the appellant, could not turn and run from the perceived
threat, as
the law requires him to do if circumstances permit,
[19]
the appellant said that that would not have easily occurred because
of the presence of parked cars in the area where they were.
The
evidence on this point was not carefully developed at trial and it is
difficult to form an impression of the scene. But if
it would have
been difficult for the appellant to run, then it would
correspondingly have been difficult for the complainant to
do so as
well.
[40]
On
the appellant’s version, what he postulates is that it was
reasonable for him to discharge his firearm towards the complainant
simply because he was walking towards him carrying a pipe. His
submission is that such conduct entitles him to use his weapon to
negate the perceived threat. I am unable to accept that proposition.
In my view, the mere possession of a pipe is itself not a
threat in
the absence of any evidence that it was intended to be used against
the appellant. It constitutes no more of a threat
than being in
possession of a firearm, as the appellant admittedly was: the fact
that a person possesses a firearm does not mean
he intends to use it
or that it poses a threat to anyone else. More needs to be
established before the appellant’s proposition
holds true.
Analysis
[41]
From
the facts of the matter, it is safe to conclude that the appellant
was the aggressor in the situation that developed. He had
been
informed of the argument that had earlier occurred between the
complainant and the appellant’s brother, father and Ashwin
before arriving at the complainant’s workplace. Under
cross-examination, the appellant admitted that when he arrived there,
he was ‘a little angry’.
[42]
The
court a quo found the complainant to be a good witness. In arriving
at this finding, it remarked that the complainant was not
a
particularly sophisticated person but nonetheless concluded that he
had given his evidence in a satisfactory manner. That such
a finding
regarding sophistication was made is not unsurprising: the
complainant admitted that he had not attended school and could
not
read or write. That the complainant was viewed as being someone who
could be manipulated, perhaps through his lack of sophistication,
emerges when one considers the complainant’s evidence regarding
the payment of money to him in exchange for the criminal
complaint
being withdrawn. The complainant was contacted telephonically by the
appellant’s father and offered R10 000
to withdraw the
complaint. He rejected this but said he would accept R100 000.
This occurred whilst he was still hospitalised
and involved his
employer, who spoke to the appellant’s father on the telephone
at the hospital and was the conduit through
which the offer and
counter offer was made. That this occurred was never denied by the
defence. The complainant’s counter
offer did not find favour
with the appellant’s father. Once he was out of hospital, the
complainant was taken to an attorney
where a withdrawal statement was
prepared in which he agreed to withdraw the charge without the
payment of any money being made
to him. It appears that the
complainant did this in the belief that he would, nonetheless, be
paid the amount of R100 000
by the appellant’s father. It
was suggested at trial that his willingness to accept money touched
on his credibility as a
witness. I do not see it that way. To me, it
appears to be an attempt by the appellant’s family to extricate
him from a criminal
prosecution.
[43]
The
finding that the complainant was a good witness was attacked by the
appellant’s counsel in argument before us. There was
criticism
of the sequence in which he gave his evidence and the regional
magistrate’s finding that he had given his version
chronologically. However, much of what the complainant said at the
trial was never seriously challenged: for example, he testified
that
during the first incident Ashwin had slapped him, the appellant’s
brother had produced a firearm and his employer had
interceded to
diffuse the situation by ordering him back into the workshop and that
later, with regard to the incident when he
was shot, he had felt the
warning shot fired by the appellant whistle past his head. None of
this was disputed. After thoroughly
considering the evidence and the
judgment of the court a quo, I am satisfied that the regional
magistrate did not err in her findings
regarding the quality of the
evidence of the complainant.
[44]
It
was further suggested in argument before us that the regional
magistrate erred in disregarding the evidence of Mr Hlongwane
regarding the object allegedly possessed by the complainant. It was
emphasised that he was a State witness and his evidence conflicted
with the evidence of the complainant insofar as whether the
complainant possessed an iron pipe.
[45]
On
a general level, the evidence of Mr Hlongwane was not satisfactory.
The record is replete with complaints from the interpreter
about the
way in which Mr Hlongwane testified, not making himself clearly
understood, and admonishments from the court to Mr Hlongwane
to
concentrate on what he was doing. Indeed, the court seems to have
formed the view that something was troubling Mr Hlongwane
whilst he
testified. Specifically, it was asked whether there was anybody in
the courtroom who was making Mr Hlongwane uncomfortable
to testify
freely.
[46]
The
court a quo found that the evidence of Mr Hlongwane on the aspect of
the iron pipe could not be relied upon. In arriving at
this finding,
the court noted that Mr Hlongwane conceded that he had never
previously mentioned the existence of the pipe to anyone.
He did not
inform the South African Police Services of this. It could therefore
not have appeared in his witness statement. Mr
Hlongwane confirmed
that the first mention that he made of the pipe was when he was in
the witness box testifying. His explanation
for not mentioning the
iron pipe was that he was asked about the person who was injured and
not about the person who shot as to
what was wrong when he shot. If
this was indeed the case, it is not clear why when making his
statement about the complainant he
did not include the iron pipe. He
was, after all, apparently told to focus on the complainant in his
statement. He could also not
account for the pipe after the shooting,
explaining that he was ‘no longer seeing it because I was
shocked’. In my
view, the evidence of Mr Hlongwane regarding
the object allegedly possessed by the complaint was open to extreme
doubt. I am therefore
not able to conclude that the regional
magistrate misdirected herself in finding that the complainant did
not possess an iron rod
or a pipe.
[47]
The
regional magistrate did not find the appellant to be a good witness.
Was she correct in this assessment? It was submitted in
argument by
the appellant’s counsel that, to the contrary, the appellant
was a good witness. It appears that the appellant’s
evidence
was delivered in a satisfactory manner, without any of the
criticisms, for example, of the evidence of Mr Hlongwane. He
was,
however, a far more sophisticated person than either of the State
witnesses, apparently being a successful businessman. The
version of
the appellant was a simple one and was not overly complicated. It
ought to have been relatively simple for him to adhere
to it. Yet he
was not able to do so. On a most material aspect of his defence, the
appellant contradicted himself. In his evidence
in chief, he stated
as follows:
‘
MR
MOODLEY
As the Court pleases. --- Yes.
Now after you shot him in
his legs, rather I withdraw that. How far were you from him when you
fired the shot into the air? ---
About 12 metres away.’
Under
cross-examination from the State, the appellant gave this answer to a
similar question:
‘
When
you fired that warning shot, how far was the complainant from you?
--- I would say maybe about 7 metres.’
The
contradiction is stark, important and could not be explained in
argument.
[48]
The
high-water mark of the appellant’s version is that the
complainant picked up a pipe and walked towards him but never got
closer than five to six metres from him. Observing all of this taking
place, were the appellant’s witnesses: Shaniel (his
brother),
Ashwin and Akram. When the shooting occurred, they were standing
behind the appellant watching what was happening. The
appellant
agreed under cross-examination that these three persons would have
seen the complainant advancing towards him holding
the pipe. Not one
of them were called as a witness to confirm the version of the
appellant, this notwithstanding that it was put
to the complainant in
cross-examination that the appellant’s brother and his father
would be called as witnesses by the defence.
The regional magistrate
considered the evidence of Mr Hlongwane regarding the issue of the
iron pipe and declined to accept it.
In my view, she was correct to
do so. She was therefore correct in concluding that the complainant
was not holding anything.
[49]
The
probabilities also do not favour the appellant’s version. It is
improbable that the complainant would have continued walking
towards
the appellant after he felt the first shot whistle past his head. It
is far more probable that he would have ducked to
avoid any prospect
of being hit by a further shot that might be discharged. That is what
the complainant said that he did which
was confirmed by Mr Hlongwane.
It is also improbable that, if the appellant believed that he had
narrowly escaped an unlawful physical
assault, that he would, instead
of immediately reporting the matter to the SAPS, instead seek legal
counsel in Pietermaritzburg.
[50]
In
my view, there was objectively no immediate threat to the physical
well-being of the appellant. If I am incorrect in arriving
at the
conclusion that the complainant did not possess the pipe, there was
in any event no objective, persuasive evidence that
the appellant was
under any immediate threat of physical harm from the complainant
wielding that pipe. The appellant’s conduct
was unreasonable
and was, therefore, unlawful.
I am
satisfied that the conclusions reached by the regional magistrate
were properly arrived at and I am unable to discern any misdirections
by her. The defence of private defence must accordingly fail.
Disqualification
from further possessing a firearm
[51]
In
terms of section 103(1) of the Act, unless the court determines
otherwise, a person convicted of an offence set out in section
103(1)
(a)
[20]
becomes unfit to possess a firearm.
The
manner in which section 103(1) operates is that the disqualification
of the accused is automatic unless the court orders otherwise
having
regard to all relevant facts and circumstances. In
S
v Mkhonza,
[21]
which concerned the loss of a firearm by the accused, it was
recognised by the court that some cases falling under s 103(1) may
not be very serious in nature, and that if regard is had to the
personal circumstances of the accused, there may be no justification
for disqualifying the accused from the right to possess a firearm.
What is required in such circumstances is that an accused should
be
invited to place before the court facts which may be relevant to such
a determination whether he ought to be permitted to continue
possess
a firearm.
[52]
The
court a quo was mindful of this. At the invitation of the court, the
appellant’s counsel made the following submissions
on this
aspect:
‘
MR
MOODLEY
Yes, Your
Worship, I meant to address you on that. A firearm was used in this
case, but the nature of the accused
business requires him to have a
firearm. He is in various places. He is in a possession where his
life … [inaudible]. So
I ask that the Court orders that his
firearm be returned.’
[53]
In
an address in mitigation of sentence, it was explained by the
appellant’s counsel that the appellant had various businesses,
including the operation of a number of cattle farms in the district.
He also had a scrap yard business and panel shops in Estcourt
and
Durban. In addition, he managed a logistics transport business and a
plant hire business.
[54]
‘G
un
ownership is not a fundamental right under our Bill of Rights. It is
a
privilege regulated by law, under the
Firearms Control Act&rsquo
;.
[22]
The correct approach in considering whether a person was fit to
continue possessing a firearm was set out by Wallis J in
Mkhonza
.
[23]
A court is not entitled to merely adopt a supine attitude to the
question but must actively explore whether it should grant an
order
negating the deemed declaration of unfitness. The court a quo did not
adopt a supine attitude as it specifically raised the
issue with the
defence. In response, the defence made certain submissions that did
not specifically clarify why the appellant was
required to possess a
firearm.
[55]
The
correct approach in determining this issue is to commence with the
proposition that unless the court determines otherwise, the
legislature has provided that a conviction of a crime referred to in
section 103(1) of the Act leads to the result that the accused
is
unfit to possess a firearm. Accordingly, the onus of satisfying the
court that it should determine otherwise rests on the accused.
As
this part of the enquiry by the court is separate from the criminal
trial and the decision on sentence, the accused may discharge
that
onus on a balance of probabilities.
[24]
[56]
When
considering the question, a court should have regard to the following
factors:
‘
(a)
the accused's age and personal circumstances;
(b)
the nature of any previous convictions or the absence thereof;
(c)
the nature and seriousness of the crime of which he has been found
guilty and the connection that the crime has
with the use of a
firearm;
(d)
whether there is any background which suggests that the accused may
make use of his or her licensed firearm
for the purpose of committing
offences; and
(e)
whether it is in the interests of the community that the accused be
declared unfit to possess a firearm because
of the fact that he or
she poses a potential danger to the community.’
[25]
The
court should also have regard to any other relevant facts placed
before it.
[57]
In
Mkhonza
,
Wallis J opined that the following factors should be added to the
abovementioned ones, namely ‘. . . the period during which
the
accused has possessed a licensed firearm, and whether there is any
indication of previous irresponsibility in regard to that
possession
and use’.
[26]
[58]
In
my view, whilst the appellant is a relatively young man and had no
relevant previous convictions, he was convicted of a very
serious
offence. That offence involved the use of the firearm that he was
later declared unfit to possess in the future. His conduct
with that
firearm caused serious consequences to the complainant, who was
hospitalised for four months after being shot. The firearm
was
discharged in circumstances where the appellant admitted that he had
been angry. In addition, having discharged the firearm
and being
aware that he had injured the complainant, the appellant showed no
interest in his well-being. He rendered no assistance
to him but
walked away from the scene to his motor vehicle and drove off. In
short, he showed no compassion for the complainant’s
position
or well-being. He did not assist in summoning an ambulance or any
form of medical treatment. People who are not able to
control their
emotions and who respond in anger to situations that do not directly
involve them and who fail to recognise how precious
life is may be
viewed by members of the community as being persons who should not be
permitted to possess a firearm.
[59]
After
considering the decision arrived at by the regional magistrate, I am
not persuaded that she misdirected herself insofar as
the entitlement
of the appellant to continue to possess a firearm is concerned.
Conclusion
[60]
In
the circumstances, I would propose that the appeal be dismissed.
Mossop
AJ
I
agree and it is so ordered.
Sibiya
J
APPEARANCES
Counsel
for the appellant: Advocate
Y. N. Moodley SC
Instructed
by:
Vathers
Attorneys
13
Prince Edward Street
Pietermaritzburg
Counsel
for the respondent: Advocate
Z. M. Sokhela
Instructed
by:
National
Prosecuting Authority
325
Pietermaritz Street
Pietermaritzburg
Date of
Hearing: 6
August 2021
Date of
Judgment: 19
August 2021
[1]
‘
The
principle that right does not have to yield to wrong has been a
touchstone of civilised legal systems through the ages. The
victim
of an unlawful attack has been entitled to defend his person or
property by virtue of a rule of law which has existed
in all
familiar legal systems for many centuries.’
Ntsomi
v Minister of Law and Order
1990
(1) SA 512
(C) at 526D-E.
[2]
Ehrke
v S
[2012] ZAGPPHC 189 para 12.
[3]
SV Hoctor
Snyman’s
Criminal
Law
7 ed (2020) at 86-88.
[4]
Ibid at 88-94.
[5]
S
v Ntuli
1975
(1) SA 429
(A) at 436E;
Mugwena
and another v Minister of Safety and Security
2006 (4) SA 150
(SCA) at 157J-158D.
[6]
S
v Ntuli
1975 (1) SA 429
(A) at 437.
[7]
R
v Patel
1959
(3) SA 121 (A).
[8]
Holmes AJA quoting from
Union
Government (Minister of Railways & Harbours) v Buur
1914
AD 273
at 286.
[9]
D
Jobb
The
Case of the Murderous Dr. Cream: The Hunt for a Victorian Era Serial
Killer
(2021) at 83.
[10]
S
v Robinson
and
others
1968 (1) SA 666
(A) at 675G-H.
[11]
R
v Dhlumayo and another
1948 (2) SA 677
(A) at 705-706.
[12]
S
v Naidoo and others
2003 (1) SACR 347
(SCA) para 26.
[13]
S
v Monyane and others
2008
(1) SACR 543
(SCA) para 15.
[14]
President
of the Republic of South Africa and others v South African Rugby
Football Union and others
2000 (1) SA 1
(CC) para 79.
[15]
S
v Van der Meyden
1999 (2) SA 79
(W) at 80I-81B.
[16]
S
v Chabalala
2003
(1) SACR 134
(SCA) para 15.
[17]
https://www.lexico.com/definition/rod (accessed 10 August 2021).
[18]
M
R v Road Accident Fund
[2020] ZAFSHC 24
para
17.
[19]
Ntamo
and others v Minister of Safety and Security
2001
(1) SA 830
(TkH) at 839;
Bakharia
v Mia
1918
TPD 56
at
58;
R
v Molife
1940
AD 202
at
204;
R
v Attwood
1946
AD 331
at
340.
[20]
The
range of offences is broad, covering a number of offences under the
Act itself as well as crimes in the commission of which
a firearm is
used, offences involving violence, sexual abuse, dishonesty, the
abuse of alcohol or drugs or dealing in drugs,
offences under the
Explosives Act 26 of 1956 and offences involving sabotage,
terrorism, public violence, arson, intimidation,
rape, kidnapping or
child stealing, as well as any conspiracy, incitement or attempt to
commit any of the offences specified
in section 103(1). In some
instances the automatic consequence that the person becomes unfit to
possess a firearm if convicted
only attaches where the person is
sentenced to a period of imprisonment without the option of a fine.
[21]
S
v Mkhonza
[2009] ZAKZPHC 9;
2010 (1) SACR 602
(KZP).
Mkhonza
also resolved the question of whether an order of disqualification
from further possessing a firearm, while not forming part
of the
sentence imposed, is appealable. It was held that it was (para 33).
[22]
Minister
of Safety and Security v South African Hunters and Game Conservation
Association
[2018]
ZACC 14
;
2018 (2) SACR 164
(CC) para 1.
[23]
S
v Mkhonza
[2009] ZAKZPHC 9; 2010 (1) SACR 602 (KZP).
[24]
Ibid
para
35.
[25]
Ibid para 22, where Wallis J agreed with the factors listed in
S
v Phuroe en Agt Ander Soortgelyke Sake
1991
(2) SACR 384
(NC) at 387B-D.
[26]
Mkhonza
para
22.