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[2016] ZAGPPHC 747
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Booi v S (A21/2016) [2016] ZAGPPHC 747 (25 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: A21/2016
25/8/2016
Not
reportable
Not
of interest to other judges
In
the matter between:
MICHAEL
JACKSON
BOOI APPELLANT
and
STATE RESPONDENT
JUDGMENT
YACOOB,
AJ:
1.
The appellant was convicted of the murder of Moses Mpostoli Magagula
("the deceased") and sentenced to 8 years imprisonment,
in
the Magistrate's Court, Evander. He appeals both conviction and
sentence with the leave of the High Court.
2.
The versions of the State and the appellant are, in the main,
consistent with one another. There is very little on which they
differ.
3.
The appellant was born on 11 April 1940 and is a trained security
guard. He is ordinarily resident in the Eastern Cape. On 12
September
2011 he was working as a security guard, apparently standing in for
his son-in-law, at a Chinese shop in Embalenhle,
in Mpumalanga.
However, he was not unfamiliar with the area, having worked in the
area before.
4.
The deceased was known in the area as someone who was mentally
unstable, and who begged. Before the incident, and on the same
day,
the appellant had asked the deceased not to bother the customers of
the Chinese shop at which the appellant worked. The deceased
went
away, but later came back. The appellant and the deceased appeared to
be arguing. The appellant's version is that he was telling
the
deceased to stay away from the area near the shop, as he was
bothering customers. The deceased became aggressive. He threatened
the appellant, reaching for a weapon in his pocket.
5.
It is at this point that the versions of the State and the appellant
differ from one another. The State witness, whose evidence
was found
to be reliable by the magistrate, testified that the deceased pulled
a slingshot out of his pocket, pointed it at the
appellant, and said
that he would shoot the appellant. The appellant then drew his
firearm and pointed it at the deceased, who
retreated a little.
Thereafter, the appellant shot him in the head.
6.
The appellant's version is that the deceased first said that he would
shoot him, then reached for his weapon. The appellant was
afraid for
his life, and drew his firearm and shot the deceased immediately. It
was only after that that the appellant saw that
the weapon drawn by
the deceased was a slingshot.
7.
It is this court's view that, if allowance is made for difference in
perception, and for the undisputed and clear fact that the
appellant
felt himself threatened, there is no real difference between the
versions. Even if the deceased had pulled out his slingshot
and
pointed it at the appellant before the appellant shot him, it is
reasonably possibly true that the appellant, in his state
of fear,
did not notice it until it was too late. He thought the deceased had
a gun, and reacted before he realised that this was
not the case.
8.
The appellant's
bona fides
are borne out by the fact that he
immediately turned himself in for the shooting, and did not attempt
to run away, hide, or otherwise
avoid responsibility. However, he
pleaded not guilty to the murder, invoking "private defence"
as his defence.
9.
In
S v Olivieira
1993 (2) SA 59
(A) the Appellate Division (as
it then was) held that
"The test for private defence
is objective
-
would
a
reasonable man in the position
of the accused have acted in the same way (
S v Ntuli
1975 (1) SA 429
(A) at 436E). In putative private defence it is not
lawfulness that is in issue but culpability ('skuld”). If an
accused
honestly believes his life or property to be in danger, but
objectively viewed they are not, the defensive steps he takes cannot
constitute private defence. If in those circumstances he kills
someone his conduct is unlawful. His erroneous belief that his life
or property was in danger may well (depending upon the precise
circumstances) exclude do/us in which case liability for the person's
death based on intention will also be excluded; at worst for
him he can then be convicted of culpable homicide."
10.
This court accepts that the appellant considered himself under
threat, and acted to protect or defend himself from that threat.
However, objectively considered, the threat was not as great as the
appellant considered. Similarly, the means used by the appellant
were
disproportionate and therefore unreasonable. As a matter of fact the
threat was only a slingshot, the deceased was known in
the area and
there was no evidence that he was known to have been violent, and the
accused, on his own version, shot the deceased
between the eyes
before he noticed what the deceased's weapon was.
11.
For these reasons, his plea of "private defence" cannot
succeed.
12.
However, as pointed out in
Oliveira,
his erroneous belief that
his life was in danger excludes
dolus.
What the appellant may
rely on is putative private defence. At worst for him he may be
convicted of culpable homicide.
13.
It appears from the evidence of the accused and the fact that there
is no dispute about whether the accused felt himself to
be under
threat and was protecting himself from that threat, that the accused
did not have the intention to kill. He was threatened,
and his only
intention was to protect himself from that threat. In fact, he
testified that he cried immediately he realised what
he had done,
"because that was not my intention".
14.
The respondent's counsel argued that the question of intention had
not been raised in the magistrate's court, but that a direct
intention could be inferred from the fact that the appellant had shot
the deceased in the head at close range.
15.
Although it may be possible to infer a direct intention in certain
circumstances, this case is not one of them. All the circumstances
other than the fact of the shooting of the deceased in the head at
close range support a conclusion that there was no intention
on the
appellant's part to kill, only an intention to protect himself.
16.
It must not be forgotten that the events described by the appellant
and the witness ocurred very quickly. There was no time
in which the
appellant could calmly consider his options. The fact of the shooting
in the head is not sufficient in all the circumstances
to infer
dolus.
See in this regard
Joshua v S
2003 (1) SACR 1
(SCA) at [30]
17.
The appellant's erroneous belief that his life was in danger excludes
do/us.
Culpable homicide is therefore a competent verdict. See
in this regard
Oliveira
and
Joshua
(above).
18.
A verdict of culpable homicide means that as far as sentence is
concerned, this Court is considering very different factors
than the
trial court. Rather than examining whether there are exceptional
circumstances which justify deviation from a minimum
sentence, this
court must simply consider what sentence is appropriate in the
circumstances.
19.
The relevant circumstances are that the appellant was 71 years old
when the incident ocurred. He had one previous conviction,
in 1995,
for assault. He is now 76 years old. He has 8 children, the youngest
of whom is now 21. Before he was convicted and sentenced,
he
supported himself, his wife and his youngest child on his old age
pension. His wife was 62 years old at the time of sentence,
and lived
in Mpumalanga. The appellant at the time intended to go back to
Mpumalanga to take care of her. In addition, the appellant
gave
himself up to the police after the incident, and has expressed
remorse, both explicitly and in his actions.
20.
The deceased was mentally unwell and well known in the community. He
had four children. His family was severely affected by
his death.
21.
In these circumstances it is appropriate to sentence the appellant to
five years' imprisonment, two of which are suspended for
five years.
22.
I order as follows:
a. The appeal against both conviction
and sentence is upheld.
b. The conviction and sentence are set
aside and substituted with the following:
i. the appellant is found guilty of
culpable homicide and sentenced to five years' imprisonment, two of
which are suspended for
five years on condition that he not be found
guilty of a similar offence during the period of suspension.
ii. The sentence is antedated to run
from 10 April 2013.
_______________
S
YACOOB
ACTING
JUDGE OF THE HIGH COURT
I
concur and it is so ordered
______________
R.G
TOLMAY
JUDGE
OF THE HIGH COURT
Appearances:
On
behalf of the appellant:
Ms M.M.P. MASETE
Instructed by:
PRETORIA JUSTICE CENTRE
2
nd
Floor FNB Building
206 Church Street
PRETORIA 0001
On
behalf of the respondent:
Adv. MNISI
Instructed by:
DIRECTOR OF PUBLIC PROSECUTIONS
Presidential Building
28 Church Square
PRETORIA 0001