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[2018] ZASCA 149
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Botha v S (1074/2017) [2018] ZASCA 149; [2019] 1 All SA 42 (SCA); 2019 (1) SACR 127 (SCA) (1 November 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1074/2017
In
the matter between:
ODETTE
BOTHA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Botha v The State
(1074/2017) ZASCA 149 (01 November
2018)
Coram:
Tshiqi, Seriti, Zondi, and Schippers
JJA and Mokgohloa AJA
Heard:
24 August 2018
Delivered:
01 November 2018
Summary
:
Criminal Law and procedure – unlawfulness – stab wound
with a steak knife to upper chest area of the deceased penetrating
chest through the muscles, lung and brachiocephalic vein –
conviction of murder in the form of
dolus
eventualis
set aside and substituted
with culpable homicide. Sentence – 12 years’
imprisonment for murder set aside and
replaced with a sentence
of
three years’ imprisonment for culpable homicide in
terms of
s 276(1)
(i)
of the
Criminal Procedure Act 51 of 1977
.
ORDER
On
appeal from:
the Gauteng Local
Division, Johannesburg (per Ismail and Keightley JJ):
1
The appeal is upheld to the extent set out below.
2
The conviction of murder, and the sentence of 12 years’
imprisonment, are set aside.
3
The order of the Gauteng Local Division, Johannesburg is replaced
with the following:
‘
The
appellant is convicted of culpable homicide, and is sentenced to
three years’ imprisonment subject to the provisions of
s
276(1)
(i)
of the
Criminal Procedure Act 51 of 1977
.’
JUDGMENT
Tshiqi
JA (Seriti and Zondi JJA and Mokgohloa concurring):
[1]
The appellant was charged and convicted in the regional court, Mogale
City, Krugersdorp with murder read with
s 51
of the
Criminal Law
Amendment Act 105 of 1997
. The regional court magistrate, after
finding no compelling and substantial circumstances meriting a
deviation from the prescribed
minimum sentence, imposed a sentence of
15 years and also declared the appellant, in terms of
s 103(1)
of the
Firearms Control Act 60 of 2000
, unfit to possess a firearm. She
appealed to the full bench of the Gauteng Local Division,
Johannesburg with its leave. Her appeal,
in the court a quo, was
partially successful in that her conviction of murder in the form of
dolus directus
was substituted as murder in the form of
dolus
eventualis
and her sentence was reduced
to a period of 12 years. She now appeals to this court, against the
conviction and sentence with its
leave (per Cachalia JA and Ploos Van
Amstel AJA), who also made an order granting her bail pending the
outcome of the appeal in
the amount of R5000.
[2]
The appellant’s conviction arose from an incident between her
and the deceased at Dros restaurant, Krugersdorp on the
afternoon of
27 July 2012. It is common cause that the deceased died as a result
of complications flowing from a stab wound inflicted
by the appellant
to her anterior chest wall during the incident. At the time the
deceased’s husband and the appellant were
involved in a love
relationship and the incident concerned the deceased’s husband.
They had been sitting at the premises
of the restaurant at an outside
area, with their backs facing the entrance of the restaurant, when
the deceased who was visibly
angry arrived with her son, then aged
approximately 9 years old. She approached her husband and the
appellant from behind, assaulted
the appellant and shouted and swore
at her. She thereafter left and proceeded towards the parking area of
the restaurant. Her husband
followed, apparently in order to calm her
down, but the appellant did not move from where she was sitting. The
deceased picked
up a stone and smashed the windscreen of her
husband’s motor vehicle. There was another altercation between
the deceased
and her husband around the parking area but she came
back, leaving her husband next to his motor vehicle and approached
the appellant,
swore at her and assaulted her again.
[3]
The version of the appellant on the nature and severity of this
second attack is slightly different from that of the two eye
witnesses who testified for the State. The first State witness, Mrs
Louise Fourie, said that there was a fight between the appellant
and
the deceased during which she saw the deceased attacking the
appellant, grabbing her and pulling her by her hair from behind
whilst swearing and shouting at her. During the process a glass
ashtray that had been on the table fell. At some stage she saw
the
appellant making a stabbing movement towards the back and saw blood
coming out of the deceased’s mouth. The deceased
staggered a
bit and sat on the chair. She also stated that the deceased was
bigger than the appellant. During cross-examination
she was asked
whether the appellant had fallen down during the second attack and
she said that she did not see her falling.
[4]
The second State witness, Miss Melissa Fourie, the daughter of Mrs
Fourie, confirmed her mother’s version in many material
respects but when questioned whether the appellant had fallen on the
ground she said:
‘
Dit
is hoe dit vir my gelyk het, want ek het nie heeltemaal gekyk nie. Ek
het net uit die hoek van my oog uit [gesien].’
Later
on she said that she was uncertain. During cross-examination she was
referred to her earlier statement to the police where
she stated that
the appellant was on the ground whilst the deceased was still holding
her. When this discrepancy was pointed out
she said that is what it
looked like. Miss Fourie also said that she did not witness the
actual stabbing.
[5]
The appellant’s defence was that she stabbed the deceased in
self-defence. She confirmed Mrs Fourie’s version concerning
the
first attack by the deceased. Regarding the second attack she said
that the deceased hit her with the ashtray on the head before
it fell
on the ground, moved in behind her, grabbed her and pulled her by her
hair with both hands so hard that her feet lifted
off the ground. The
deceased then dragged her to the ground and pulled her on the ground
by her hair. She felt a lot of pain, tried
to remove the deceased’s
grip from her hair with one hand whilst she used the other hand to
feel if there was something on
the table she could use to ward off
the attack. She admitted that she stabbed the deceased with the steak
knife that was in front
of her on the table, but said that at the
time she was not aware that it was a knife because it was wrapped in
a serviette. She
only realised that she had stabbed the deceased when
she saw her bleeding. During cross-examination she said that she just
grabbed
an object, did not rub it to feel it, and when asked by the
court whether she felt the serviette, she said she did not.
[6]
The medical evidence was not disputed. Dr Rowe, who performed the
post
mortem, testified that the wound
inflicted on the deceased was approximately 4 to 5 centimetres deep.
It penetrated her chest through
the anterior chest wall, through the
muscles of the anterior chest wall, through the lung and into the
brachiocephalic vein, which
is posterior. Both lungs partially
collapsed and there was approximately 2 litres of blood in the chest
cavity. According to Dr
Rowe, when blood fills up the chest, it
squashes the lungs. She said that a moderate amount of force was
probably used to inflict
the wound. When cross-examined on the
entrance wound she stated that there was no bone where the knife
entered and that it would
have been easy for a sharp knife, like the
one used to penetrate the area. She confirmed that the cause of death
was respiratory
failure and blood loss.
[7]
The trial court accepted that the deceased was the aggressor but
criticised the appellant for failing to move away from the
scene
after the first attack and at any available opportunity during the
altercation. It also criticised her for failing to use
other means to
avert the attack. It then found that the appellant had exceeded the
bounds of self defence and convicted her
of murder. On appeal
the high court was satisfied that it was necessary for the appellant
to avert the attack but held that her
‘retaliatory conduct was
excessive and disproportionate’ and that it was ‘not a
reasonable response to the deceased’s
attack’. It then
concluded that the appellant had the requisite intention to kill in
the form of
dolus eventualis
and that her conviction of murder should stand.
[8]
Before I deal with whether the appellant’s defence should have
been accepted, it is necessary to first determine whether
the
appellant was aware that she had taken a knife from the table in
order to ward off the attack. At the hearing of the appeal,
in this
court the appellant’s counsel, Ms Kolbe was asked to clarify
whether the appellant’s defence in this regard
amounted to that
of automatism. In response Ms Kolbe referred to the appellant’s
evidence during cross-examination, where
the appellant said:
‘
Toe
die oorledene u aan u hare gegryp het, wat was u reaksie, wat wou u
doen? --- Jis ek het geskrik, ek kon regtig net –
ek wou net
gehad het sy moet my los en ry of iets.’
Ms
Kolbe submitted that this clearly shows a conscious reaction by the
appellant, but qualified this and submitted that although
the
appellant wanted to stop the attack, one does not think clearly when
faced with a crisis. Ms Kolbe submitted that the deceased
was not
asked whether she looked at the table before the attack to check what
was placed before her. She submitted that the appellant’s
evidence cannot be understood to suggest that she knew that the knife
was there. In this regard she highlighted the following evidence
by
the appellant during cross-examination:
‘
En
in die proses terwyl sy aan my hare opgetel het, het ek met my een
hand aan haar hand gevat en haar prober wegkry, en terwyl
my kop
agter op, ek weet nie hoe se mens nou, soos terwyl sy my hare
agteruit getrek het, het ek op die tafel gevoel wat, is daar
iets
waarmee ek, ek wil haar net wegkry van my af.’
[9]
The above evidence shows that the appellant was conscious of what she
was doing when she took the steak knife from the table,
and that she
was aware of what was going on in her surroundings when she
retaliated. Whilst I accept that that the deceased had
pulled her
backwards so hard that her feet got lifted off the ground, she
herself had a clear recollection of what had happened
and was able to
describe in detail to the court how she reacted. She could tell the
court how the deceased held her hair, how she
used her hand to remove
the deceased’s grip from her hair whilst she used her other
hand to look for the weapon on the table.
It is improbable that she
would be fully aware of all these other movements but not realise the
kind of weapon she had grabbed
from the table. As the trial court
reasoned, the appellant had been sitting at the restaurant for
approximately 15 minutes, the
knife was all along on top of the table
and she must have seen it. The trial court was therefore correct in
rejecting the appellant’s
evidence that she was not aware that
she had a knife in her possession when she retaliated. Having found
that the appellant knew
that she had grabbed a knife from the table,
the next question is whether the elements of self-defence were
satisfied.
[10]
In order to successfully raise self-defence, an accused must show the
following: (a) that it was necessary to avert the attack;
(b) that
the means used were a reasonable response to the attack; and (c) that
they were directed at the attacker. (See Jonathan
Burchell
Principles
of Criminal Law
5 ed (2016) at 125.) The third enquiry is not
contentious in this matter. I will thus deal with the first and
second one.
Was
it necessary for the appellant to avert the attack
[11]
The trial court criticised the appellant for failing to move away
from the scene after the first attack. This criticism was
unwarranted. The appellant’s explanation that she did not think
that the deceased would come back and that when she did come
back, a
lot of things went through her mind such that she eventually did not
move away, is reasonable and cannot be rejected outright.
She said
that she thought she should perhaps go inside but did not know what
would have happened if she was attacked inside the
restaurant. She
could not run away because she did not use her own motor vehicle to
travel to the restaurant and she could not
call for help as her
cellphone battery was flat. According to the appellant, everything
happened so fast that she had no time to
reflect on options open to
her. There is also no reason to reject her evidence that during the
attack she was in pain, frightened
and wanted to relieve herself of
the pain. All of this suggests that the appellant was attacked
unexpectedly by the deceased on
the second occasion and that she
could not think rationally. I also accept, as the court a quo did,
that the assault was such that
she could not reasonably be expected
to fold her hands and do nothing in order to avert the attack. It
must follow therefore that
the appellant managed to show that it was
necessary for her to avert the attack under the circumstances.
Was
the use of a knife in averting the attack reasonable in the
circumstances
[12]
This enquiry is in practice more a question of fact than of law. (See
S v Trainor
2003 (1) SACR 35
(SCA) para 12). In C R Snyman
Criminal Law
6
ed (2014) at 110-111, the learned
author says:
‘
[T]here
should be a reasonable relationship between the attack and the
defensive act, in the light of the particular circumstances
in which
the events take place. In order to decide whether there was such a
reasonable relationship between the attack and defence,
the relative
strength of the parties, their sex and age, the means they have at
their disposal, the nature of the threat, the value
of the interest
threatened, and the persistence of the attack are all factors (among
others) which must be taken into consideration.
One must consider the
possible means or methods which the defending party had at her
disposal at the crucial moment. If she could
have averted the attack
by resorting to conduct which was less harmful than that actually
employed by her, and if she inflicted
injury or harm to the attacker
which was unnecessary to overcome the threat, her conduct does not
comply with this requirement
for private defence.'
(See
also
S v Ntuli
1975 (1) SA 429
(A),
S v Ngomane
1979
(3) SA 859
(A) at 863A-C),
Grigor v S
[2012] ZASCA 95.)
[13]
I am not persuaded that
it was reasonable for the
appellant to direct a stabbing movement with a steak knife towards
the deceased who was standing behind
her, pressed against her back,
grabbing her hair, with her upper body close to hers. There were
other alternatives the appellant
could have explored. She could have
aimed at the lower body or used any other means short of directing
the stabbing movement towards
the deceased’s upper body. It is
also significant that the appellant testified that
she never
felt that her life was in danger during the attack. The deceased,
also a woman and although bigger than the appellant,
was not carrying
any weapon. It follows that while the appellant was clearly faced
with a situation in which she was being assaulted
and had to
retaliate in order to protect herself, s
he must
have foreseen the possibility that by directing the knife towards the
deceased’s upper body, this might injure or
kill the deceased.
Was
the court a quo correct in its finding that murder in the form of
dolus eventualis was proved
[14]
In
S v Humphreys
[2013] ZASCA 20
;
2015 (1) SA 491
(SCA) paras 12-17 this court considered whether
murder in the form of
dolus eventualis
had been proved and
said:
‘
In
accordance with trite principles, the test for
dolus
eventualis
form is twofold: (a) did the appellant subjectively foresee the
possibility of the death of his passengers ensuing from his conduct;
and (b) did he reconcile himself with that possibility . . . .
For
the first component of
dolus eventualis
it is not enough that
the appellant should (objectively) have foreseen the possibility of
fatal injuries to his passengers as a
consequence of his conduct,
because the fictitious reasonable person in his position would have
foreseen those consequences. That
would constitute negligence and not
dolus
in any form. One should also avoid the flawed process of
deductive reasoning that, because the appellant should have foreseen
the
consequences, it can be concluded that he did. That would
conflate the different tests for
dolus
and negligence…
…
This
brings me to the second element of
dolus
eventualis
,
namely that of reconciliation with the foreseen possibility. The
importance of this element was explained by Jansen JA in
S
v Ngubane
1985
(3) SA 677
(A)
(
Ngubane
)
at 685A-F in the following way:
‘
A
man may foresee the possibility of harm and yet be negligent in
respect of that harm ensuing, eg by unreasonably underestimating
the
degree of possibility or unreasonably failing to take steps to avoid
that possibility . . . . The concept of conscious (advertent)
negligence (
luxuria
)
is well known on the Continent and has in recent times often been
discussed by our writers’.
Conscious
negligence is not to be equated with
dolus eventualis
. The
distinguishing feature of
dolus eventualis
is the volitional
component: the agent (the perpetrator) “consents” to the
consequence foreseen as a possibility, he
“reconciles himself”
to it, he “takes it into the bargain”…
...
The
true enquiry under this rubric is whether the appellant took the
consequences that he foresaw into the bargain; whether it can
be
inferred that it was immaterial to him whether these consequences
would flow from his actions. Conversely stated, the principle
is that
if it can reasonably be inferred that the appellant may have thought
that the possible collision he subjectively foresaw
would not
actually occur, the second element of
dolus
eventualis
would
not have been established.’
[15]
I now consider whether the two elements of
dolus
eventualis
were proven in this matter.
Regarding the first element, I accept, as stated above,
that
the appellant subjectively foresaw the risk or the possibility that a
stab wound to the chest area might result in the death
of the
deceased. Regarding the second element, I am not persuaded that
having foreseen this possibility, the appellant reconciled
herself
with the occurrence of death or disregarded the consequences of it
occurring. There is no evidence that the appellant deliberately
or
purposefully aimed a firm thrust at the deceased. On the contrary,
the evidence shows that she simply turned around whilst sitting,
and
directed a stabbing movement towards the deceased’s upper body.
This suggests that the appellant’s conduct was
an impulsive
reaction to the attack which was being inflicted on her. I am
fortified in this reasoning by her responses when cross-examined
on
her state of mind during the retaliatory action. She said:
‘
[Aanklaer]:
Nou, het u op ‘n stadium gedink hoe bedreig dit nou u lewe,
daardie? Het u nou gedink sy gaan u hare uit u kopvel
ruk dan bloei u
vir u dood? --- Ek het nie gedink my lewe is bedreig op daardie
stadium nie, ek het net seer gekry.
[Aanklaer]:
Maar desnieteenstande loop n risiko om enige voorwerp wat daar is wat
u nou in die hande kan kry, om haar mee weg te
kry soos wat u nou sal
sé en u maak hierdie steekbeweging.
[Botha]:
Ek het in my lewe nooit gedink dat so iets kan veroorsaak dat iemand
doodgaan nie, regtig.
[
Aanklaer
]:
Wat het u gedink, wat is hierdie so iets, dat so iets kan veroorsaak
dat iemand doodgaan nie, wat se iets?
[Botha]:
Wel, die feit dat ek haar toe nou met die mes mos nou gesteek het wat
ek na die tyd verneem het. Ek het nie gedink, in
elk geval het ek nie
gedink dat iemand so, ek het al baie stories gehoor van mense wat
mekaar aanval van messe en tien, twintig
keer steek met messe en dan
lewe die person nog, so dit is vir my, dit gaan my verstand te bowe
dat een steekwond wat nou op die
nadoodse verslag is, dat dit iemand
se lewe kon, ek kan nie verstaan nie.’
[16]
The above evidence shows that although the appellant foresaw the
possibility of death, she thought it would not happen. T
he
fact that the appellant did not direct the stabbing movement towards
a specific part of the upper chest area does not save the
appellant
from a conviction on culpable homicide. I accept the general
principle that for the purposes of culpable homicide it
is essential
that the reasonable man would have foreseen the possibility of death
and not just some injury, nor even serious injury.
(See R J L Milton
South African Criminal Law and
Procedure: Common Law Crimes
3 ed vol
11 at 377.) But as Holmes JA said in
S v
Bernardus
1965 (3) SA 287
at 307 (A):
‘
[t]he
possibility of serious injury being reasonably foreseeable, the
appellant ought also to have foreseen the possibility of death
hovering in attendance: the two are sombrely familiar as cause and
effect in the walks of human experience. . . .
I
do not think that the appellant is rescued by the fact that the
injury was an unusual one and happened in a curious way –
the
end of a fairly thick stick penetrated the side of the head. It is
the general possibility of resultant injury which must reasonably
be
foreseeable, and not the specific manner and nature thereof. The
facets of vulnerability of the human body are legion, and death
may
come to mortals through a variety of corporeal hurts and
derangements.’
[17]
Dr Rowe described the injury as a deep penetrating wound,
approximately 4-5 centimetres and she said that it penetrated the
second intercostal muscles, through the lung and into the vein. This
is not a superficial injury. Dr Rowe said that moderate force
must
have been applied in order for the knife to go through the muscle and
into the chest. The appellant ought to have foreseen
that this kind
of attack in retaliation might kill the deceased. I say so because at
the time she made the stabbing movement towards
the deceased, she was
aware that the deceased was so close that she held the deceased’s
hand with her other hand whilst trying
to release the deceased’s
grip from her hair. She ought to have foreseen that if she directed
stabbing movement with a steak
knife, with what Dr Rowe described as
a moderate amount of force, towards the upper chest of the deceased,
whom she knew was so
close to her, this might puncture any of the
deceased’s vital organs, thus causing her death.
[18]
The next question that then arises is what the appellant should have
done, once she realised that the weapon in her hand was
a steak knife
and once she foresaw the possibility that it might kill the deceased.
Put differently, what steps should she have
taken to guard against
the foreseeable possibility or to guard against it occurring. In this
enquiry, it is helpful to keep in
mind that even a slightest
deviation from the norm of a reasonable man suffices. Unlike English
Law, a serious deviation is not
required, for gross negligence is not
essential. (See
R J L Milton
South
African Criminal Law and Procedure: Common Law Crimes
at
379). In
S v Ngomane
1979 (3) SA 859
(A), the
appellant was alone in his hut with a woman at night. The deceased
asked him to open the door and when the appellant refused
to do so,
the former threatened to kill the latter by burning the hut down. The
appellant believed that the deceased would carry
out his threat and
formed an intention to escape from the hut. As he opened the door the
draught extinguished the light from the
paraffin lamp he was
carrying, leaving the interior of the house in darkness. As the
deceased was entering the hut, the appellant
stabbed him once with an
assegai, which was five foot long with a blade of about 18 inches.
The blade severed the deceased’s
jugular vein in his neck and
penetrated his heart causing his death. He was charged and convicted
of murder. On appeal this court
accepted that he was acting in
self-defence, set aside his conviction on murder and substituted it
with culpable homicide. In making
a firm finding that it was culpable
homicide the court said at 863F-H:
‘
In
those circumstances, and making due allowance for the darkness, I
think that the reasonable man in appellant’s situation,
before
stabbing the deceased, would first have waited to ascertain what the
deceased wanted or was going to do, either by a further
enquiry of
him or from his ensuing conduct, and would first have warned him that
he was armed with the assegai. Appellant did nothing
of that kind. He
immediately stabbed the deceased blindly after he had opened the door
and was entering the hut. Alternatively,
as appellant’s purpose
was to effect his (and possibly Sarah’s) immediate escape
through the door which the deceased
was then barring, he could have
done that by striking the deceased with the flat side of the blade or
the handle of the assegai
thereby either felling him or driving him
away from the door. It was unnecessary to stab him. . . .
Was
he guilty of culpable homicide? I think so. For, although he acted in
self-defence, he ought reasonably to have realized that
he was acting
too precipitately and using excessive force and that, by stabbing the
deceased with a lethal weapon on the upper
part of his body, he might
unnecessarily kill him. . . . ’
[19]
In
Ngomane
the appellant stabbed the deceased blindly in the
dark. There was a greater chance that he could miss the deceased. In
this matter
the appellant was aware that the deceased was standing
right behind her, it was during the day and she directed the stabbing
movement
towards the upper chest area with the sharp end of the steak
knife. The appellant should have adopted less riskier or fatal
measures,
once she saw the possibility that death might occur. This
was not a case of life and death. The appellant testified that she
did
not fear that her life was in danger at the time she was
wrestling with the deceased. The deceased was not carrying any
weapon.
The worst kind of bodily harm the deceased inflicted on the
appellant was the continuous pain to her head as she was being pulled
by her hair. There is no evidence that if the attack continued any
form of serious injury would have occurred. She could
have
tried hitting the deceased with the handle of the steak knife, could
have warned the deceased first before stabbing her or
could have
aimed at lower parts of the body. The appellant failed to adopt any
of these or other measures and thus failed to guard
against the
possibility of death occurring. Death in fact occurred and the
appellant is thus guilty of culpable homicide.
[20]
For the aforementioned reasons, I am not persuaded that the State
proved all the elements of murder in the form of
dolus eventualis
.
The conviction falls to be set aside and
substituted with one of culpable homicide.
Sentence
[21]
The appellant is a first offender. She was 27 years old at the date
of the offence. She has one child, who is aged approximately
12 years
at the moment. She was gainfully employed. Throughout her testimony
the appellant expressed remorse for her conduct and
stated that she
did not intend to kill the deceased. She specifically said that she
did not think that a single stab wound would
result in the death of
the deceased. It is significant that the appellant’s
retaliatory conduct, although excessive, took
place after she had
been repeatedly insulted and attacked by the deceased in a public
place in full view of the other patrons of
the restaurant. It is also
significant that she did not react immediately, but did so after
being repeatedly assaulted and insulted
and in order to avert what
she described as a painful attack by the deceased. These facts
portray the appellant as a rather calm
person who ultimately reacted
because she was pushed too far. She cannot be held to be a danger to
society. However, although the
appellant was justified in taking
action to ward off the attack, she has to be punished for her
excessive impulsive reaction which
caused the death of a human being.
I consider a sentence of three years’ imprisonment subject to
the provisions of
s 276(1)
(i)
appropriate in the circumstances.
[22]
It is accordingly ordered:
1 The appeal is upheld to the extent
set out below.
2 The conviction of murder, and the
sentence of 12 years’ imprisonment, are set aside.
3 The order of the, Gauteng Local
Division, Johannesburg is replaced with the following:
‘
The
appellant is convicted of culpable homicide, and is sentenced to
three years’ imprisonment subject to the provisions of
s
276(1)
(i)
of
the
Criminal Procedure Act 51 of 1977
.’
_______________
Z L L Tshiqi
Judge
of Appeal
Schippers
JA:
[23]
I have had the benefit of reading the judgment of the majority
prepared by my colleague Tshiqi JA. I do not agree that in the
particular circumstances of this case, the appellant acted
unreasonably in defending herself against the unlawful attack on her
by the deceased,
[1]
or that she ought
reasonably to have foreseen that she might exceed the bounds of
self-defence and kill the aggressor.
[2]
In my view, the
State failed to prove both unlawfulness and
mens
rea
on
the part of the appellant.
[24]
Two preliminary points are required to be made at the outset. The
first is trite: the guilt of an accused must be established
beyond
reasonable doubt in the light of
all
the evidence.
[3]
As is shown below,
on the totality of the evidence, it cannot be said that the
appellant’s guilt was so established, or that
her version was
not reasonably possibly true. The second is that in a case such as
this where the appellant relies on self-defence,
the court must
‘beware of being an arm-chair critic, and must take into
account the exigencies of the occasion’.
[4]
As Innes JA put
it:
‘
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 pros and cons. Allowance must
be made for the circumstance of their position.’
[5]
[25]
Unlike the vast majority of self-defence cases
that reach the courts, this is a case where a blameworthy aggressor
launched a sudden,
unexpected and unlawful attack on an unsuspecting
victim. Indeed, this is common ground. The appellant and the
deceased’s
husband were involved in an extramarital affair. On
the day in question they were sitting outside at a table (which has a
bench
with no backrest affixed to it on either side) at the Dros
restaurant in Krugersdorp. It was broad daylight. The State
witnesses,
Mrs Fourie and her daughter, Melissa, sat opposite them.
Melissa sat with her back to the appellant and the deceased’s
husband.
[26]
Mrs Fourie testified that the deceased arrived
with her nine year old son, walked up to the appellant, screamed and
swore at her,
and slapped her. The appellant did not retaliate and
remained seated at the table. The deceased, who was violently angry,
walked
across the road to where her husband’s car was parked.
She picked up a rock (Melissa described it as a ‘groterige
klip’)
and smashed the windscreen. In the road, the deceased’s
husband tried to calm her down to no avail. He pushed her causing
her
to fall to the ground and then he helped her up. She returned to the
table where the appellant was still seated. Then the deceased,
who
was larger in stature than the appellant, with both hands grabbed the
appellant by her hair and pulled her off the bench. The
appellant was
bent over backwards as she was being pulled by her hair, when Mrs
Fourie saw her making a backward movement, as high
as her shoulder,
with her right hand. She did not see what the appellant had in her
hand. Immediately thereafter she saw a knife
still wrapped in a
serviette on the floor; and blood coming from the mouth of the
deceased, who went to sit on a bench.
[27]
Prior to
this, Mrs Fourie said, it appeared to her that there was a struggle
(‘stoeiery’) between the deceased and the
appellant
during which there was slapping, and an ashtray fell off the table
and broke. In Mrs Fourie’s words: ‘It
looked to me as if
only slaps were being dished out’ (my translation).
[6]
When asked who had
slapped whom, Mrs Fourie replied that the deceased had hit the
appellant. She said that the deceased was unarmed
when she attacked
the appellant the second time, and was the sole aggressor. The
deceased died on the scene.
[28]
Melissa said that when she arrived, the deceased
shouted and swore at her husband and the appellant, and that she
slapped the appellant.
However, Melissa could not say whether the
deceased slapped her more than once. The deceased’s husband
tried to calm her
down at which point Melissa looked away. When she
saw the deceased again she was lying in the road on the ground with
her legs
in the air. She returned to the table where the appellant
was sitting, slapped her and pulled her by her hair from behind.
Melissa
testified that it appeared that the appellant was on the
ground, but she was not sure about this. Mrs Fourie told Melissa that
she thought that the deceased had been stabbed. The deceased’s
husband went to her and held his hand under her mouth to stop
the
bleeding. He asked the appellant what she had done. The latter
replied that it was self-defence.
[29]
Melissa confirmed that the deceased was bigger
than the appellant; that she was angry; and that the appellant did
not retaliate
when she was slapped during both the first and second
attacks. She did not see the deceased hit the appellant with an
ashtray against
the head, which fell to the ground and broke.
Melissa’s statement to the police that the appellant was on the
ground and
that the deceased held her by her hair was put to her, to
which she replied that that was how it looked to her. The deceased
was
behind the appellant when she suddenly stood back. Mrs Fourie
then said to Melissa, ‘I think she was stabbed or something’.
[30]
Dr Rowe, who did the post-mortem examination,
concluded that the cause of death was a penetrating incised wound
(1.5 cm wide) to
the right upper chest with resultant blood loss and
respiratory failure. Determining the depth of the wound, she said,
was guesswork,
but she estimated that it was probably not less than
four to five centimetres deep. The direction of the wound was
downwards, and
penetrated the second intercostal space through the
lung and punctured the brachiocelaphic vein. Dr Rowe testified that a
moderate
amount of force was required to inflict that type of wound.
She was referred to a photograph of the knife and said that a sharp
knife of that kind could easily penetrate the (chest) area, since
there was no bone where it had entered, and the flesh was soft.
Dr
Rowe in effect conceded that if the appellant had been pulled back by
the deceased and in that motion made a backward stabbing
movement,
that that would be consistent with her post-mortem finding.
[31]
The appellant testified in her defence. She was
at the table with the deceased’s husband when she felt somebody
hitting her
on the head from behind, more than once. She did not see
from where the deceased had come. She also did not see how the
deceased
had smashed the windscreen of her husband’s vehicle,
but heard the commotion. What she did see was the deceased lying on
the road and her husband holding her hands, whilst she was biting his
hands and legs. She was extremely angry. The appellant said
that she
decided to remain at the table after the first attack because she did
not know how to handle the situation, and there
were more people
inside the restaurant where the deceased would have humiliated her.
She could not leave the scene because she
had travelled with the
deceased’s husband, and her cell phone battery was flat and
therefore she could not call anybody.
And she did not think that the
deceased would return to the table. She sent the deceased’s son
into the restaurant when she
noticed him sitting next to her.
[32]
The appellant said that the deceased returned to
the table and scolded and swore at her. She hit the appellant against
her head
with an ashtray that was on the table, which fell to the
ground and broke. (In my opinion, nothing turns on the fact that Mrs
Fourie
did not see this. The fact is that the ashtray broke, which,
contrary to Mrs Fourie’s evidence, did not happen during a
struggle
– there was none. In any event, it was the events
thereafter that necessitated the defensive act.) The appellant went
on
to say that after she was hit with the ashtray, the deceased moved
behind her, grabbed her by her hair and literally pulled her
up by
her hair. At this point to the appellant stated that she was very
frightened, since she did not know what the deceased was
capable of.
The appellant said:
‘
I tried to get anything to get
her off me because she was hurting me so at that stage . . . I did
not realise that I was taking
a knife, I just tried anything, I only
wanted to get her away from me and she was much bigger than me.’
[7]
[33]
The appellant demonstrated that the deceased
stood behind her, pulled her upwards and then backwards with both
hands by her hair
from the bench, and dragged her on the ground. The
appellant said that she did not know what she had grabbed from the
table; that
she did not think about what was in her hand; and that
she made a hitting movement (slaanbeweging) to the back over her
shoulder
and used the object because she just wanted to get the
deceased away from her. She realised that she had stabbed the
deceased only
when the latter walked around the table, was gasping
for breath and blood was coming from her mouth. The appellant said
that she
did not intend to stab the deceased in her chest or cause
her death; and that she did not foresee that her act could have
caused
the death of the deceased.
Unlawfulness
[34]
With that
outline of the evidence I turn to consider whether the State proved
unlawfulness. As Snyman points out,
[8]
the enquiry into
unlawfulness is in fact an enquiry aimed at establishing whether
there is an absence of a ground of justification:
in this case,
private defence. The requirements for private defence are
well-settled. The attack upon the person acting in private
defence
must be unlawful; it must be directed at an interest which legally
deserves to be protected; and be imminent but not yet
completed.
[9]
The defence 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 she is
acting in private defence.
[10]
[35]
It is
beyond question that the deceased launched an unlawful attack on the
appellant; that the attack was directed at the appellant’s
right to bodily integrity which is constitutionally protected;
[11]
and that the
attack was not yet completed when the appellant resorted to the
defensive act, which was aimed at the deceased. In
fact, the
magistrate found that these requirements were met. It is also not in
dispute that the appellant was aware that she was
acting in private
defence. What remains then, is whether the defensive act was
necessary to protect the appellant’s right
to bodily integrity;
and whether there was a reasonable relationship between the attack
and the defensive act.
[36]
In considering the means that the appellant had
at her disposal at the crucial moment, the magistrate found that ‘it
was clear’
that the appellant could have removed herself from
the dangerous situation in which she was. Stated differently, she
should have
avoided using any force at all by taking a safe
opportunity to escape. According to the magistrate, the appellant
could have asked
anybody for help, fled to inside the restaurant, or
got up and walked away. The magistrate rejected her explanation that
she did
not want to be further humiliated by the deceased; and said
that no right-thinking manager or owner would have allowed a fight of
any nature on his property and not come to the aid of one of the
parties.
[37]
Then the magistrate said:
‘
And the court wonders if it is
not possibly the case that the accused was at that stage just tired
of the deceased who had humiliated
her so, who swore at her and who
physically attacked her. That she possibly sat there and decided that
enough was enough. That
she was not going to be humiliated further
and then stabbed the deceased.’ (My translation.)
[12]
This
statement by the magistrate, counsel for the State rightly conceded,
influenced the finding – incorrect and unjustifiable
on the
evidence – that the appellant had the requisite intention to
kill the deceased. And the statement was directly against
the
evidence – the appellant testified that she did not think of
grabbing any specific object to hurt the deceased.
[38]
The magistrate’s finding that the appellant
should have fled, in the particular circumstances of this case, is in
any event
untenable in light of the evidence. The appellant had been
subjected to a sudden and unprovoked attack by the deceased when the
latter arrived at the restaurant. Nobody came to her defence, not
even the deceased’s husband. Further, the appellant explained
why she remained at the table after the first attack; and crucially,
stated that she did not think that the deceased (who was the
aggressor all the time) would return to the table. That evidence was
never challenged, nor contradicted.
[39]
On the
level of the law, Snyman’s view is that there is no duty on the
attacked party to flee, since private defence concerns
defence of the
legal order ie, the upholding of justice. Fleeing is no defence, but
capitulation to injustice. Just as there is
no duty on a police
officer to run away from the criminal, there is no duty on an
attacked person to flee from the aggressor where
the police are not
present to protect her. According to Snyman, our legal system, that
expects subjects to respect and promote
the rule of law, cannot
simultaneously expect them to flee from an unlawful attack, as that
is tantamount to expecting them to
turn their backs on the rule of
law so that injustice may carry the day.
[13]
On the other hand,
there is the view that if a safe opportunity for escape exists, any
force used in private defence is unnecessary,
as injury to the
attacked person and the aggressor can be avoided entirely by
retreating. It is not necessary to decide this question.
Suffice it
to say that the possibility of safe retreat is a factor to be taken
into account in deciding whether the force used
in private defence
was reasonable.
[14]
[40]
The finding that the appellant knew that she had
grabbed a knife from the table, is simply unsustainable on the
evidence. Her testimony
that she realised that she had stabbed the
deceased with a knife only after the latter was gasping for breath,
was never contradicted.
In this regard she testified as follows:
‘
[Prosecutor] . . . Why do you
tell the court that you assumed later that it was a knife --- because
after the entire events she
walked around the table and began gasping
for breath, and with this when I looked, her husband was back at the
table. I don’t
know when he came back. I was not aware of when
precisely he came back.
And he said to me ‘what is wrong
with her?’ And then when I looked around, I saw the knife lying
there. I then said
I think I stabbed her with a knife
.
Mrs Botha, are you telling this court
that you did not know what you picked up, what object? --- I did not
know at that stage.
Let us try again --- you don’t
know what object you picked up? --- I did not know what object I had
picked up.
You could not feel that it was a
knife? --- At that stage my only thought was, I just want to get her
away from me. I did not think
about what I was feeling in my hand. I
could not see because as I have said, my head was in a backward
movement as she was pulling
my hair.
Court
:
You could not feel that it was a knife, what is your answer Madam?
--- Yes I said I could not feel that it was a knife and I also
could
not see it.’ (My translation.)
[15]
[41]
It was immediately after this testimony that the
prosecutor put forward the theory that the appellant had been sitting
at the table
for at least 15 minutes with the deceased’s
husband, and suggested that she knew what was on the table. As the
following
excerpt from the record shows, the appellant’s
evidence throughout was consistent:
‘
Prosecutor
: You see, Mrs
Botha, you sat at that table with the deceased’s husband for at
least 15 minutes before she arrived there.
Thereafter all the events
took place with the vehicle etc after which she came back to you. Do
you honestly want to tell this Court
you do not know what was on that
table, where you had been sitting for at least 15 minutes, without
all the other events? You did
not know what was on that table? ---
Well, as I said, at that stage when the events took place, I did not
think of grabbing any
specific object to hurt her.
Can you tell the court how is it
possible, because certainly if a person takes something and puts it
in your hands, then you have
an idea what is in your hands, not so?
What did you feel? Explain that to the Court, What did you feel? ---
The entire event was
like two seconds, there was not even time for me
to feel physically what you have in your hand, what you are busy
with, what is
happening. The only thing that I could think of was
that I just wanted to get her away from me because she was hurting
me.’
I see. I’m going to put it to
you, Mrs Botha that it is highly improbable, if not impossible, that
a person cannot know what
you have in your hand, at least what type
of object it is. You are busy misleading this Court. --- No,
absolutely not. The object
also had a serviette around, so I could
not feel that it had any curves or anything else.
Well exactly, Mrs Botha, if it has a
serviette around it, what is it? What is kept in a serviette in a
restaurant, Mrs Botha? ---
It could just as well have been a fork or
spoon.’ (My translation.)
[16]
[42]
The magistrate then asked the appellant whether
she felt a serviette when she took the object, to which she replied
that she did
not feel that it was a knife because there was a
serviette wrapped around it; that she did not rub or feel the object;
that she
simply took it; and that she did not notice what it was that
she had taken. The magistrate found that the appellant contradicted
herself regarding the question whether the object she had taken from
the table was wrapped in a serviette, and criticised her for
referring to a serviette in the first place. The magistrate missed
the point. There was no contradiction: Mrs Fourie testified
that the
knife was still wrapped in a serviette after the deceased had been
wounded.
[43]
This is but one example where the magistrate, in
my view, disregarded
the evidence
and instead arrived at conclusions – unsustainable on the
evidence – based on propositions put to the appellant that
were
in any event completely answered, and inferences inconsistent with
the proven facts, as is shown below. For example, there
was no
evidence that the appellant had decided not to remove herself from a
dangerous situation; that she executed a ‘stabbing
movement’
towards the deceased’; and that the appellant intentionally
(‘met mening’) wounded the deceased.
The State evidence
that the appellant was pulled backwards and virtually off the bench
by her hair was disregarded. So too, the
fact that the deceased was
bigger than the appellant; and Melissa’s evidence confirming
the appellant’s version that
she was on the ground while the
deceased was still holding the appellant by her hair. Indeed, Mrs
Fourie testified that she could
not dispute that the appellant was on
the ground.
[44]
The theory that the appellant knew that there was
a knife on the table because she had been sitting there for 15
minutes was just
that: a theory,
unsustainable on
the evidence for the following reasons. First, there was no evidence
that the appellant knew that what she had
grabbed from the table was
a knife. Neither Mrs Fourie nor Melissa said that they saw her
grabbing a knife. On the contrary, Mrs
Fourie said that she did not
see what was in the appellant’s hand. Indeed, Mrs Fourie
supported the appellant’s evidence
quoted above in three
crucial respects: (1) The defensive act took place in seconds –
neither Mrs Fourie nor Melissa saw
the appellant grabbing an object,
let alone a knife from the table, or that the deceased had been
stabbed with a knife; (2) Mrs
Fourie testified that the appellant was
bent over backwards when she executed a backward movement – she
did not refer to
this as a
stabbing movement
.
So the appellant could not have seen what she had grabbed from the
table. And (3) after Mrs Fourie saw blood coming from the mouth
of
the deceased, she saw the knife lying on the ground with a serviette
around it. That is entirely consistent with the appellant’s
version – both Mrs Fourie and the appellant did not know that
the deceased had been stabbed until they saw the knife lying
in the
serviette on the ground.
[45]
Second, apart from the fact that there was no
evidence to that effect, there was no reason at all for the appellant
to have surveyed
what was on the table – she and the deceased’s
husband had gone outside where they had drinks and smoked at the
table.
In fact, when asked whether they were eating (which would have
focused the appellant’s attention on the knife), Mrs Fourie
replied negatively and said that the appellant and the deceased’s
husband were just sitting at the table. And the appellant
did not
have prophetic foresight that the deceased was going to attack her in
the first place, nor that the deceased was going
to return to the
table after she had smashed the windscreen of her husband’s
vehicle. Here again, the evidence points the
other way: the
appellant’s unchallenged evidence was that she remained seated
at the table because she thought that the deceased
was not going to
return after the first attack. How it could even be suggested that
the appellant, by sitting at the table, or
on the assumption that it
was not the first time that she went to a restaurant, somehow knew
that there was a knife on it which
she could use in case of an attack
on her (which she could never have foreseen), is beyond me.
[46]
Third, it
likewise cannot be suggested that the inquiry by the deceased’s
husband as to what was wrong, and the appellant’s
response that
at that point she realised that she had stabbed the deceased with a
knife, was a fabrication, let alone that it was
not reasonably
possibly true. As already stated, Mrs Fourie’s evidence
underscores this. It is further underscored by the
common cause
facts: the appellant grabbed an object from the table in split
seconds, did not have time to think, and her sole intention
was to
stop the attack and get the deceased away from her. The majority,
rightly in my view, concludes that the deceased had pulled
the
appellant backwards so hard that her feet lifted off the ground;
[17]
that there is no
reason to reject the appellant’s evidence that during the
attack she was in pain, frightened and wanted to
relieve herself of
the pain; and that she could not think rationally because the attack
was unexpected.
[18]
[47]
Despite
this, it is said that ‘the appellant was conscious of what she
was doing when she took the steak knife from the table
and …
was aware of what was going on in her surroundings when she
retaliated’.
Then
it is said that she had a ‘clear recollection of what had
happened’ and could tell the court how she had ‘used
her
… hand to look for the weapon on the table’.
[19]
These conclusions
are not only contrary to the evidence, but also run counter to the
rule that when considering the question of
self-defence, a court must
place itself in the position in which the accused was.
[20]
[48]
The appellant did not look for a ‘weapon’
on the table. She consistently said that she was looking for
something to
get the deceased away from her, as is clear from her
evidence:
[Prosecutor] And now you were feeling
on the table for what? What were you looking for on the table? --- A
menu or an ashtray.
Yes, and what did you want to do with
it? --- I only wanted to like get her away from me. I did not at that
stage think, I did not
think of a way to hurt her or anything in that
line, just wanted to get her away from me. I did not know how.
Now while you are testifying you are
making a movement, opening a hand behind your back, is that correct?
--- Say again.
As you are now testifying and saying
you looked for a menu or an ashtray or something so that you just
could get her away? --- Yes,
something so that I could just get her
away, because she was standing right behind me.
Yes, you are making a hitting movement
backwards. --- Yes.
Good, and what happened next. You now
feel here on the table and what happens? --- Well, I then, what I
later found out, it was
the knife, I found out only afterwards, I had
the object in my hand and I made a movement backwards, which in any
event did not
help.
Court
:
… Yes a movement towards the back --- Yes, and in the process
she had me off the bench by my hair, and still with both
her hands
dragged me on the ground.’
[21]
(My translation.)
[49]
In
Patel
,
[22]
this court
restated the rule that a court should not become an arm-chair critic,
and approved the following passage in
Gardiner
and Lansdown
,
[23]
which it said, ‘is
sound common sense’:
‘
The danger may in truth not
have been great, but the jury must consider whether a reasonable man,
in the circumstances in which
the accused was placed, would have
thought that he was in great danger. A weapon less dangerous than the
one used may have been
at hand which would have sufficed to ward off
the threatened assault but the jury must not expect too nice a
discrimination or
too careful a choice of weapons from a man called
upon in a sudden emergency to act promptly and without opportunity
for reflection.’
[50]
There is
nothing on record to gainsay the appellant’s evidence that she
had no time to think; that she had to act promptly;
and that her only
thought was to get the deceased away from her and stop the assault.
So, nothing turns on the fact that the deceased
was unarmed; or the
appellant’s statement that her life was not in danger as she
was only being pulled off the bench by her
hair and suffering pain as
a result of the deceased’s assault. Had the knife struck the
deceased in her arm or shoulder,
there would have been no debate that
the appellant would have acted in self-defence. Logically, why should
the position be any
different because the same defensive act (which
was not ‘a stabbing movement directed towards the deceased’s
upper
body’)
[24]
unfortunately
penetrated soft tissue that caused death? This,
a
fortiori
,
when the appellant did not know that what she had in her hand was a
knife. Self-defence may arise in a range of circumstances
where no
death has resulted. In my opinion, the test as to its rejection or
validity must be the same in a case where death has
resulted.
[51]
As regards the attacker being unarmed, Snyman
says:
‘
There are certain circumstances
where the defender may defend himself or herself with a knife against
an attacker
who does not
have a knife
. An example
would be where the defender is physically weak whereas the attacker
is strongly built and furthermore also has an accomplice
or two at
hand to assist in the attack, if necessary. It follows therefore that
a physically weaker defender may in certain circumstances
use more
dangerous means than those at the disposal of the attacker.’
[25]
And
‘
. . . . it must be emphasised
that it is not the attacked party who should carry the risk of
injuries or death by employing insufficient
defensive measures.
It
is the attacking party who bears the risk for the consequences of his
or her action.
This is an
important principle of private defence.
The
law cannot recognise a set of rules regarding private defence
amounting to the attacked party bearing the risk of harm arising
from
possible reasonable mistakes that may be made in the course of the
defensive action.
It is the
attacker who must bear the risk, because it is he or she who
initiated the whole set of events by resorting to unlawful
aggression
or threats of aggression against the defender.’
[26]
(My emphasis.)
[52]
The deceased, who was bigger and physically
stronger than the appellant, initiated the whole chain of events and
plainly demonstrated
violent and unpredictable behaviour. She
assaulted the appellant not once, but twice. During the second
assault, as the appellant
was being pulled backwards from the bench
with both hands by the deceased, she instinctively and with no time
for reflection, reached
for an object with which to ward off the
attack. She executed a single defensive act backwards – where
the attacker was.
Unfortunately, the object the appellant used in
defence was a knife with a sharp point which, as Dr Rowe testified,
easily penetrated
soft tissue which resulted in the death of the
deceased.
[53]
This brings
me to the requirement of proportionality: whether there was a
reasonable relationship between the attack and the defensive
act. In
my view, it cannot be said that in the circumstances, the defensive
act was an unreasonable and excessive response to the
deceased’s
attack. On the assumption that the appellant knew that she had
grabbed a knife from the table, I asked counsel
for the State what
she was supposed to have done when she realised that she had a knife
in her hand. The reply was that she had
to drop it. The submission
needs merely to be stated to be rejected. There is no doubt that the
assault would have continued and
the appellant would have had to
tolerate it. But that is not the law, whether self-defence is
grounded on the individual-protection
theory (where the emphasis is
on the individual who has the right to defend herself against an
unlawful attack); or the upholding
of justice theory (persons acting
in private defence perform acts which assist in upholding the legal
order, and private defence
is meant to prevent justice from yielding
to injustice).
[27]
Worse, had the
appellant dropped the knife, there was a real possibility that the
deceased would have stabbed her with it, given
the deceased’s
violent conduct and what had gone before.
[54]
The
magistrate however found that the appellant exceeded the bounds of
self-defence and adopted the view that she could have: hit
the
deceased with her fist; knocked her with an elbow; tried to get back
on her feet (this, after the magistrate found that it
was highly
improbable that the appellant had been lifted off the ground by her
hair, given the build and weight of the deceased);
and tried injuring
the deceased on another part of her body, by stabbing the deceased in
her arm or leg. The majority says that
the appellant should have
tried hitting the deceased with the handle of the knife; that she
could have warned the deceased before
stabbing; or that she could
have aimed at the lower parts of the deceased’s body.
[28]
[55]
Here again,
the evidence was disregarded. When considered in its totality, there
is really no difference between the versions of
the State and the
defence. Indeed, the following facts were common cause. Throughout
the deceased was the sole aggressor. The second
attack took place in
an instant and the appellant could not weigh to a nicety the exact
measure of her necessary defensive action.
The deceased had grabbed
the appellant with both hands by her hair, lifted her from the ground
and pulled her head backwards. The
appellant did not execute a
stabbing movement, but instead instinctively grabbed an object and
executed a single defensive act
to get the deceased away from her,
which stopped the unlawful attack. Therefore, the appellant’s
conduct was reasonable in
the circumstances. I can put the point no
better than the court in
Cele
[29]
did, more than 70
years ago:
‘
In all these cases one has to
bear in mind the human aspect of the attack. It is all very well for
the person who sits in an easy
chair and tries to analyse the various
incidents that took place in order to produce a picture of what
actually happened, and then,
ex post facto
, to say he ought to
have done this and he ought to have done that as a reasonable man.’
[56]
It follows that the State failed to prove
unlawfulness. The appellant’s conduct in defending herself
against the deceased’s
unlawful attack constituted a ground of
justification. On this basis alone, in my view, the appeal should
succeed.
Mens
rea
[57]
The magistrate concluded that having regard to
where the wound was inflicted, and the stabbing movement executed by
the deceased
coupled with the amount of force when inflicting the
stab wound, the appellant formed the requisite intention to kill in
the form
of
dolus directus
or
dolus eventualis
.
Yet again, this conclusion was insupportable on the evidence.
[58]
The court went further. When imposing the minimum
prescribed sentence of 15 years’ imprisonment for murder on the
appellant,
the magistrate said:
‘
What appeared to the court
clearly during the trial and during the commission of the offence,
was that the accused was involved
in an extramarital affair with the
deceased’s husband.
That at the time of the incident she
knew this, realised this.
That
when the deceased approached the accused and her husband at the Dros,
and confronted them about this relationship, the accused
before the
court then stabbed her with a knife that caused the death of this
deceased.
That the accused
went as far when she testified to even justify this extramarital
affair.’
[30]
(My translation.)
There
was no evidence that the appellant ‘stabbed’ the deceased
when confronted about the extramarital relationship.
[59]
The court a quo held that the appellant had
the requisite intention in the form of
dolus
eventualis
and upheld the murder conviction.
It reasoned that the appellant not only foresaw the possibility that
stabbing the deceased in
the chest with a knife might lead to her
death, but also reconciled herself with that consequence by stabbing
the deceased nonetheless.
[60]
Both the
magistrate and the court a quo erred. The appellant did not evince
any direct intention to kill the deceased. Neither did
she act with
dolus
eventualis
because the defensive act was lawful. Further, she did not
subjectively foresee the possibility that death would ensue, and did
not reconcile herself with that possibility.
[31]
That much is clear
from the appellant’s evidence quoted above: all she could think
of was to get the deceased away from her
as she was suffering pain.
Again, the evidence speaks for itself:
‘
[Prosecutor] And certainly the
court can safely accept that if you for example, if one person
strikes another person with a sharp
object in the chest, that that
person possibly could die because there are important organs that
could be struck, not so? --- Yes,
that is so.
Court
: Important organs that
could …
Prosecutor
: that could be
struck, that person could die.
Court
: What is your answer,
Madam? --- Yes.
Prosecutor: But you did not at that
stage surely think about that, or what, according to your version?
--- Well, as I said, I was
not aware that I had a knife, so I did not
think that I was going to stab at all.’
[32]
(My translation.)
[61]
That the appellant did not have the requisite
intention to kill, and that in the particular circumstances of this
case she did not
foresee, and could not have foreseen death as a
consequence of her defensive act, is even clearer from this evidence:
‘
[Prosecutor ] Now at the stage
when you stabbed her and she still had you by the hair and you are
now feet in the air, she was not
strangling you . . . she was just
for all practical purposes, pulling your hair, correct? --- Yes.
Now did you at some stage think how
that threatened your life? Did you think that she was going to pull
your hair out of the skin
of your head and you would then bleed to
death? --- I did not think my life was threatened at that stage, I
was just hurting.
But that notwithstanding you took the
risk of taking any object that was there, that you could get, to get
her away, as you now
say and you executed this stabbing movement. ---
I did not ever think that something like this could result in the
death of someone,
really.
What did you think, what was this
something . . . that could not result in the death of someone . . . ?
--- Well, the fact that
I had stabbed her with the knife which I
found out afterwards. I did not think . . . that someone . . . I
heard many stories of
persons who attacked each other with knives and
stabbed ten, 20 times and then the person still lived. So for me, it
is beyond
me that one stab wound, [referred to] in the post-mortem
report, could [end] someone’s life. I cannot understand it.
So you think that if one stabs a
person just once then he at least . . . [unclear]. --- No, that is
not what I am saying. What I
do say is that I cannot understand that
something like this could have happened, that the incident could have
taken place.
I am going to put it to you, Mrs
Botha, the reason why it happened, Mrs Botha, is because you knew
that there was a knife, you took
the knife, Mrs Botha, you stabbed
her in her chest, Mrs Botha, and into her lung, Mrs Botha, and that
is why she died, that is
how it happened. --- I could not really see
behind me where to stab. I think it is humanly impossible to strike
an artery behind
your back . . . even if you studied science or the
human skeleton or whatever.’
[33]
(My translation.)
[62]
Only two
points need to be made here. First, on the analysis of the evidence
above, the appellant’s conduct in my view, does
not begin to
meet the test for negligence: that a reasonable person in the same
position in which the appellant found herself when
she was attacked,
would have foreseen that the deceased would die as a result of her
defensive act; that the reasonable person
would have taken steps to
guard against such a possibility; and that the appellant failed to
take such steps.
[34]
Second, having
regard to the evidence as a whole, it cannot be said that the
appellant’s version, more specifically, that
she had to act in
split seconds; that she grabbed something to get the deceased away
from her; that she did not think of a way
to hurt the deceased; and
that she did not think that the defensive act would result in the
death of the deceased, was not reasonably
possibly true. It is trite
that there is no onus on an accused to convince a court of the truth
of any explanation she gives. Where
an explanation is given, the
court is not entitled to convict unless it is satisfied not only that
the explanation is improbable,
but false beyond any reasonable
doubt.
[35]
That is not the
case here.
[63]
I would uphold the appeal and set aside the
conviction and sentence.
______________
A
Schippers
Judge of Appeal
APPEARANCES:
For
Appellant: M Kolbe SC
Instructed
by: Thomas Nel Attorneys, Krugersdorp
Symington
& De Kok Attorneys, Bloemfontein
For
Respondent: S H Rubin
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
Judgment
para 13.
[2]
Judgment
para 17.
[3]
S v Van
der Meyden
1999 (2) SA 79
(W) at 82C-D, approved in
S
v Van Aswegen
2001 (2) SACR 97
(SCA) para 8;
S
v Heslop
2007 (4) SA 38
(SCA) para 11.
[4]
R v
Patel
1959 (3) SA 121
(A) at 123C-D.
[5]
Union
Government (Minister of Railways & Harbours) v Buur
1914 AD 273
at 286, affirmed in
Patel
fn 4 at 123D.
[6]
Mrs Fourie
said:
‘
Dit
[het] vir my gelyk of daar net klappe uitgedeel is’.
[7]
The
appellant's evidence reads:
‘…
ek
het net enigiets probeer kry om haar van my af te kry, omdat sy my
so seermaak op daardie stadium. … Ek het nie besef
ek vat ‘n
mes nie, ek het net enigiets probeer, ek wou haar net wegkry van my
af en sy is baie groter as ek gewees.’
[8]
C R Snyman
Criminal
Law
6
ed at 96-97;
S
v Steyn
2010 (1) SACR 411
(SCA) para 16.
[9]
Snyman fn 8
at 103-106.
[10]
Snyman fn 8
at 106-112.
[11]
Section
12(2) of the Constitution provides that everyone has the right to
bodily and psychological integrity which includes the
right to
security in and control over their body.
[12]
The
magistrate said:
‘
En die hof
wonder of dit moontlik nie die geval is dat die beskuldigde net op
daardie stadium net moeg was vir of met hierdie
oorledene wat haar
so verneder het, wat haar gevloek het en wat haar te lyf gegaan het.
Dat sy nie net moontlik daar gesit het
en besluit het genoeg is
genoeg. Dat sy nie verder verneder gaan word nie, en die oorledene
toe gesteek het.’
[13]
Snyman fn 8
at 108.
[14]
R v
Zikalala
1953 (2) SA 568
(A) at 571D-572B.
[15]
Emphasis
added. The appellant’s evidence reads:
‘
[Aanklaer]
Hoekom se u vir die Hof verneem later dit is ‘n mes? Want na
die hele gebeure het sy om die tafel geloop en begin
hyg na haar
asem, en met die toe ek kyk, toe was haar man toe nou terug by die
tafel. Ek weet nie wanneer het hy teruggekom.
Ek was nie bewus van
wanneer hy presies teruggekom het nie. En hy het vir my gesé
“wat is fout met haar”,
en toe ek so omkyk, toe sien ek
daar lé die mes, toe sé ek, ek dink ek het haar met ‘n
mes gesteek. [Aanklaer]
Mev Botha, sé u nou vir hierdie Hof
dat u weet nie wat u optel nie, watter voorwerp? Ek het nie geweet
op daardie stadium.
[Aanklaer] Kom ons probeer weer. U weet nie
watter voorwerp tel u op nie? Ek het nie geweet watter voorwerp ek
opgetel het nie.
[Aanklaer] U kon nie voel dit is ‘n mes
nie? Op daardie stadium was my enigste gedagte, ek wil haar net van
my af
weg kry. Ek het nie gedink wat ek in my hand voel. Ek kon dit
ook nie sien nie’
[16]
The
evidence reads:
‘
Aanklaer
:
U sien mev Botha, u het ten minste vyftien minute by daardie tafel
gesit saam met die oorledene se man voordat sy daar opgedaag
het.
Daarna speel al die gebeure af met die bakkie ensovoorts en daarna
kom sy terug na u toe. Wil u nou eerlikwaar vir hierdie
Hof kom
vertel u weet nie wat is op daardie tafel nie, wat u ten minste
vyftien minute by gesit het nie, sonder al die ander
gebeure? U weet
nie wat op daardie tafel is nie? Wel, soos ek gesé het, op
daardie stadium wat die gebeure plaasgevind
het, het ek regtig nie
gedink om enige voorwerp spesifiek te gryp om haar seer te maak nie.
[Aanklaer] Kan u vir die Hof vertel
hoe is dit moontlik, want
seer-sekerlik as ‘n mens aan iets vat en jy sit dit in jou
hande, dan het jy ‘n idee wat
in jou hande is, nie waar nie?
Wat het u gevoel? Verduidelik dit dan vir fie Hof, wat het u gevoel?
... Die hele gebeure was
soos twee sekondes, daar was nie eers tyd
vir my om te voel fisies wat het jy in jou hand, waarmee is jy
besig, wat gaan aan
nie. Die enigste ding wat ek kon aan dink is ek
wil haar net van my wegkry, want sy maak my seer.’
[17]
Judgment
para 9.
[18]
Judgment
para 11.
[19]
Ibid
.
[20]
Zikalala
fn 14 at 572B.
[21]
The record
reads:
‘
En nou voel
u op die tafel vir wat? Wat soek u op die tafel? Was dit ‘n
“menu”, was dit nog ‘n asbakkie.
Ja, en wat wil u
doen met dit? Ek wil haar net soos wegkry van my af. Ek het op
daardie stadium nie gedink, ek het nie aan ‘n
manier gedink om
haar seer te maak of enige iets in daardie lyn nie, ek wou haar net
wegkry van my af. Ek het nie geweet hoe
nie. Nou terwyl u getuig
maak u ‘n beweging, slaan ‘n hand oop, agter u rug, is
dit korrek? Sé weer. Terwyl
u nou getuig en sé u soek
‘n menu of ‘n askakkie of iets sodat u haar net kan
wegkry? Ja, iets wat ek haar
net kan wegkry, want sy het reg agter
my gestaan. Ja, u maak ‘n slaanbeweging na agter. Ja. Goed, en
wat gebeur toe nou.
U voel nou hier op die tafel, en wat gebeur?
Wel, toe het ek toe nou, wat ek later verneem het dat die mes was,
ek het dit eers
na die tyd verneem, het ek die voorwerp in my hand
en ek het ‘n beweging na agter gemaak, wat in elk geval nie
gehelp het
nie.’
[22]
Patel
fn 4 at 123H.
[23]
Gardiner
and Lansdown
Criminal
Law and Procedure
6 ed vol 2 at 1547.
[24]
Judgment
para 13.
[25]
C R Snyman
‘The two reasons for the existence of private defence and
their effect on the rules relating to the defence in
South Africa’
(2004)
SACJ
178
at 190-191. Emphasis in the original.
[26]
Ibid
.
[27]
Snyman fn
24 at 181.
[28]
Judgment
para 19.
[29]
Cele v
Rex
1945 NPD 173
at 176.
[30]
Emphasis
added. The record reads:
‘
Wat vir die
hof dan baie duidelik voorgekom het tydens die verhoor en tydens die
pleging van hierdie misdryf, dat die beskuldigde
betrokke was in ‘n
buite egtelike verhouding met die oorledene se man. Dat sy ten tye
van hierdie voorval dit geweet het,
besef het. Dat toe die oorledene
vir die beskuldigde en die oorledene se man genader het by die Dros,
en hulle aangespreek het
oor hierdie verhouding, het die beskuldigde
voor die hof haar toe met ‘n mes gesteek wat die dood
veroorsaak het van hiedie
oorledene. Dat die beskuldigde sover
gegaan het toe sy wel getuig het om selfs hierdie buite egtelike
verhouding te regverdig.’
[31]
Snyman fn
24 at 178;
S
v De Oliveira
1993
(2) SACR 59
(A) at 65i-j.
[32]
The record
reads:
‘
En seer
sekerlik kan die Hof veilig aanvaar dat as u nou byvoorbeeld, as een
person ‘n ander persoon met ‘n skerp
voorwerp tref in
die bors dat daardie persoon moontlik kan doodgaan, want daar is
belangrike organe wat kan raak gesteek word,
nie waar nie? Ja, dit
is so.
HOF
:
Belangrike organe wat kan˃
AANKLAER
:
Wat kan raak gesteek word, daardie persoon kan doodgaan.
HOF
:
Wat is u antwoord, mevrou? Ja.
AANKLAER
:
Maar u het nie op daardie stadium seker daaraan gedink nie, of hoe,
volgens u weergawe? Wel, soos ek gesé het, was ek
nie bewus
dat ek ‘n mes gehad het nie, so ek het nie gedink dat ek
enigsins gaan steek nie.’
[33]
The record
reads:
Nou op die stadium wat u toe nou vir
haar steek het sy vir u nog steeds aan die hare beet en u is nou
voete in die lug, sy is
nie besig om vir u te wurg nie, sy is nie
besig om, sy het net, sy is net besig om vir alle praktiese
doeleindes, u hare te trek,
korrek? Ja. Nou, het u op ‘n
stadium gedink hoe bedreig dit nou u lewe daardie? Het u nou gedink
sy gaan u hare uit u kopvel
ruk dan bloei u vir u dood? Ek het nie
gedink my lewe is bedreig op daardie stadium nie, ek het net seer
gekry. Maar desnieteenstaande
loop u die risiko om enige voorwerp
wat daar is wat u nou in die hande kan kry, om haar mee weg te kry,
soos wat u nous al sé
en u maak hierdie steekbeweging. Ek het
in my lewe nooit gedink dat so iets kan veroorsaak dat iemand
doodgaan nie, regtig. Wat
het u gedink, wat is hierdie so iets, dat
so iets kan veroorsaak dat iemand doodgaan nie, wat se iets? Wel,
die feit dat ek haar
toe nou met die mes mos nou gesteek het wat ek
na die tyd verneem het. Ek het nie gedink, in elk geval het ek nie
gedink dat
iemand so, ek het al baie stories gehoor van mense wat
mekaar aanval met messe en tien, twintig keer steek met messe end an
lewe
die persoon nog, so dit is vir my, dit gaan my verstand te
bowed at een steekwond wat nou op die nadoodse verslag is, dat dit
iemand se lewe kon, ek kan dit nie verstaan nie. So u dink as ‘n
mens ‘n persoon net een keer steek dan behoort hy
darem . . .
[onduidelik] Nee, dit is nie wat ek sé nie, wat ek net sé
is, ek kan nie verstaan dat so iets kon gebeur
nie, dat die geval
kon gebeur nie. Ek gaan dit aan u stel, mev Botha, die rede hoekom
dit gebeur het, mev Botha, is want u het
geweet dat daar ‘n
mes is, u het die mes gevat, mev Botha, u het haar gesteek in haar
borskas, mev Botha, en in haar long
in, mev Botha, end it is hoekom
sy dood is, dit is hoe dit gebeur het. Ek kon nie regtig agter my
sien waar om te steek nie.
Ek dink dit is menslik onmoontlik om ‘n
aar raak te steek agter jou rug, al het jy, al het jy wetenskap
gestudeer of die
menslike skelet of wat ookal.’
[34]
Kruger v
Coetzee
1966 (2) SA 428
(A) at 43;
S
v Motau
1968 (4) SA 670
(A) at 677.
[35]
R v
Difford
1937 AD 370
at 373.