Brief Summary

Criminal Law — Assault — Conviction for assault with intent to cause grievous bodily harm — Appellant charged with attempted murder and possession of a firearm without a license — Appellant found guilty of common assault and attempted murder — Evidence of a single blow with a firearm not supporting intent to cause grievous bodily harm — Court finds conviction for assault inappropriate and reduces sentence to a suspended sentence — Conviction for attempted murder upheld due to reckless use of firearm.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an appeal against conviction and sentence arising from criminal proceedings in the Regional Court, Piet Retief. The appeal was heard in the High Court of South Africa (Gauteng Division, Pretoria).

The parties were Gustav Khulebona Dube as the appellant (the accused in the trial court) and the State as the respondent. The appellant had been charged with four counts, namely two counts of attempted murder (counts 1 and 2), possession of a firearm without a licence (count 3), and possession of ammunition without a licence (count 4).

On 20 August 2014, the regional court convicted the appellant on count 1 of assault with intent to do grievous bodily harm (as a purported competent verdict on the attempted murder charge) and on count 2 of attempted murder. The appellant was acquitted on counts 3 and 4. He was sentenced to two years’ imprisonment on count 1 and five years’ imprisonment on count 2. Leave to appeal was refused by the regional magistrate, but was subsequently granted on petition by the High Court on 1 June 2015 in respect of both conviction and sentence.

The dispute concerned the correct characterisation of the appellant’s conduct during an incident at a tavern, the sufficiency of proof of intent (dolus) for the convictions (particularly attempted murder), and whether the sentences imposed were appropriate and properly balanced in light of established sentencing principles.

2. Material Facts

The incident occurred on 22 February 2013 at a tavern in Dirkiesdorp, in the regional district of Mpumalanga. It was common cause that the appellant was a 42-year-old employed assistant to a fitter and turner at a local mine, and that he went to the tavern at approximately 20h00 to buy liquor. On the evidence accepted by the appeal court, he was not intoxicated.

It was also common cause that the appellant had with him a licensed 9 mm pistol. There was no evidence that he went to the tavern armed with an intention to cause trouble or to use the firearm. It was further common cause that a shot was fired from the appellant’s firearm during the events at the tavern.

In relation to count 1, the complainant was Ms Neli Thela. Thela was severely intoxicated and could not clearly remember how the confrontation started. The trial court accepted that the appellant struck her once with the back of the firearm on her shoulder, with no serious consequences and no injuries. Thela did not allege that the appellant threatened her with the firearm, pointed it at her, or fired in her direction. After she turned away and walked off, she heard a shot; the bullet struck the cement floor and debris reached her leg, but she was not injured. It was accepted that the shot was not directed at her, and that she “had nothing to do” with the later incident that caused the discharge.

In relation to count 2, the complainant was Mr Sibusiso Nkosi, who was also seriously under the influence of liquor and could not remember all events. Nkosi confronted the appellant after the first altercation had ended; there was pulling and grappling while the appellant still had the firearm. Nkosi alleged that he heard a shot, and later discovered that the bullet had passed through the material of his jacket without striking him. The complainant did not actually see the appellant pull the trigger.

A third witness, Mr K M Nkosi, gave evidence that the appellant pointed the firearm at the complainant in count 2, but the witness’s description of when exactly the shot went off was inconclusive. His account indicated that the shot discharged during the struggle, either as he grabbed the appellant from behind and/or as they fell, and the firearm ended up on the ground near the appellant’s feet.

After the incident, the appellant and others went to the police station, and the appellant was arrested. A ballistic report proved that the appellant’s firearm had been discharged.

3. Legal Issues

The appeal required determination of the correctness of both convictions and sentences, raising questions of law, fact, and the application of legal principles to the facts.

On count 1, the central questions were whether the proven conduct supported a conviction for assault with intent to do grievous bodily harm, and whether that verdict was competent in circumstances where the trial court had acquitted the appellant on attempted murder on the basis of an absence of intent to kill.

On count 2, the principal question was whether the State had proved the necessary mens rea for attempted murder, particularly whether dolus eventualis could be inferred on the accepted evidence, notwithstanding uncertainty about whether the appellant intentionally pulled the trigger.

On sentence, the appeal raised the question whether the trial court’s sentencing discretion had been properly exercised, including whether the court had correctly balanced the factors in the sentencing triad and paid appropriate attention to the appellant’s personal circumstances, including his responsibilities to his children, and whether the sentences (especially the effective imprisonment imposed without suspension) were disturbingly inappropriate so as to justify appellate interference.

4. Court’s Reasoning

In approaching the appeal, the High Court acknowledged the established caution applicable to interfering with trial courts’ factual findings, referring to the approach summarised in S v Hadebe and Others 1997 (2) SACR 64 (SCA). However, it identified material difficulty with the manner in which the trial court had summarised and evaluated aspects of the evidence, particularly on count 1.

Count 1 (assault with intent to do grievous bodily harm)

The High Court accepted that the proven assault consisted of a single blow with the back of the firearm to Thela’s shoulder, with negligible consequences and without injury. It emphasised that Thela had not been threatened with the firearm, had not had the firearm pointed at her, and did not testify to any apprehension that the appellant intended to cause serious injury or shoot her. The later shot was accepted as not having been directed at her, and the court regarded her as not being involved in the incident that caused the discharge.

On these accepted facts, the High Court concluded that the trial court’s finding of intent to do grievous bodily harm was not supported by the evidence. It characterised the incident, at its highest, as common assault.

The court further considered the competence of the verdict of assault with intent to do grievous bodily harm where the attempted murder charge had not been proved due to an absence of intent, relying on S v Joshua 2003 (1) SACR 1 (SCA). It treated the trial court’s conclusion as incompatible with its own finding that the State had not proved the necessary intent on the attempted murder charge relating to Thela, and accordingly regarded the grievous bodily harm intent verdict as unsustainable on the record.

Count 2 (attempted murder)

In relation to count 2, the High Court recognised that there was no reliable direct evidence that the complainant had seen the appellant pull the trigger, and it found the third witness’s version about the precise moment of discharge to be inconsistent and unresolved. It expressly stated that no credible evidence existed to support a conclusion that the appellant intentionally pulled the trigger.

Nevertheless, the High Court considered the legal requirement for attempted murder to include dolus, and accepted that dolus eventualis would suffice. It reasoned that the appellant had handled a firearm in a volatile context where intoxicated individuals confronted and struggled with him, and that he acted recklessly in using the firearm in the manner described. On the court’s analysis, the appellant knew, or at least should have known, that discharge of the firearm in those circumstances could injure or kill someone. The High Court thus concluded that the appellant failed to meet the expected standard of conduct and that the necessary intent in the form of dolus eventualis was established on the record as evaluated.

On this basis, the High Court was satisfied that the conviction for attempted murder on count 2 should stand.

Sentence

On count 1, once the conviction was reduced to common assault, the High Court regarded the sentence of two years’ imprisonment as inappropriate. It emphasised the context in which the assault occurred, the negligible consequences for the complainant, and the appellant’s status as a first offender. It considered a suspended custodial sentence to be appropriate for the common assault conviction.

On count 2, while the High Court accepted that the trial court had referred to relevant factors (the crime, the interests of society, and personal circumstances), it held that the sentencing approach did not sufficiently reflect the careful balancing required by the sentencing triad in S v Zinn 1969 (2) SA 537 (A). The High Court considered that the trial court had placed undue emphasis on the seriousness and prevalence of firearm-related crime without adequately integrating the appellant’s personal circumstances into the balancing exercise.

The High Court identified material personal factors, including that the appellant was married with seven children, was employed, had a good work record, and had no previous convictions, and that there was no evidence of planning or premeditation or that he posed a continuing danger. While it maintained that attempted murder remained serious and imprisonment was justified, it considered the sentence of five years’ direct imprisonment, without any suspension, to be out of proportion to the gravity of the offence as committed in the particular circumstances.

In evaluating appellate interference with sentence, the court referred to principles in R v Ramanka 1949 (1) SA 417 (A), S v Andersen 1964 (3) SA 494 (A), and authorities recognising interference where the sentence is disturbingly inappropriate or where there is sufficient disparity, including S v Mothibe 1997 (3) SA 823 (A) and S v Narker and Another 1975 (1) SA 583 (A). It also considered S v Rabie 1975 (4) SA 855 (A) on the discretion of the trial court and the basis for appellate interference where discretion is not judicially exercised.

A significant component of the sentencing reasoning concerned the appellant’s role as a primary breadwinner and the need to have appropriate regard to the interests of minor children, applying the guidance in S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2007 (2) SACR 539 (CC). The High Court considered that the trial court had not sufficiently accounted for these considerations and that suspension of sentence was required to avoid disproportionate harm while still marking the seriousness of the offence.

The High Court also recorded that the appellant had already served two years of an effective sentence of seven years by the time of the appeal, and crafted substituted sentences accordingly, including backdated commencement of the period of suspension.

5. Outcome and Relief

The appeal against the conviction and sentence on count 1 succeeded. The conviction for assault with intent to do grievous bodily harm was set aside and replaced with a conviction for common assault. The sentence of two years’ imprisonment on count 1 was set aside and replaced with six months’ imprisonment suspended for two years on condition that the appellant is not convicted during the period of suspension of a crime of assault or a crime involving an element of violence.

The appeal against the conviction on count 2 (attempted murder) was dismissed. The appeal against the sentence on count 2 succeeded. The sentence of five years’ imprisonment was set aside and replaced with five years’ imprisonment suspended for five years on conditions, including that during the period of suspension the appellant is not convicted of murder, attempted murder, a crime involving violence or assault, the use of a firearm, or certain specified statutory contraventions (including the offence identified in the judgment as relating to the pointing of a firearm), and including reference to competent verdicts under the Criminal Procedure Act. The period of suspension was ordered to be regarded as having commenced on 20 August 2014.

The trial court’s order declaring the appellant incompetent to possess a firearm in terms of section 103 of the Firearms Control Act 60 of 2000 was confirmed.

No separate costs order was recorded, consistent with the general position in criminal appeals.

Cases Cited

S v Joshua 2003 (1) SACR 1 (SCA)

S v Hadebe and Others 1997 (2) SACR 64 (SCA)

S v Zinn 1969 (2) SA 537 (A)

R v Ramanka 1949 (1) SA 417 (A)

S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2007 (2) SACR 539 (CC)

S v Andersen 1964 (3) SA 494 (A)

S v Mothibe 1997 (3) SA 823 (A)

S v Narker and Another 1975 (1) SA 583 (A)

S v Rabie 1975 (4) SA 855 (A)

Legislation Cited

Firearms Control Act 60 of 2000, section 103

Firearms Control Act 60 of 2000, section 120(6)(a) (as referenced in the order in relation to pointing of a firearm)

Criminal Procedure Act 51 of 1977, section 258(g)

Criminal Procedure Act 51 of 1977, section 285

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court set aside the conviction for assault with intent to do grievous bodily harm on count 1 and substituted a conviction of common assault, holding that the proven facts (a single blow with the back of a firearm to the shoulder causing no injury, without threats, pointing, or firing at the complainant) did not support an inference of intent to cause grievous bodily harm.

The High Court upheld the conviction for attempted murder on count 2, holding that, despite uncertainty about intentional trigger-pulling, the appellant’s reckless handling and use of the firearm in the circumstances justified a finding of intent in the form of dolus eventualis on the court’s evaluation of the record.

The High Court interfered with sentence on both counts, substituting suspended custodial sentences and confirming the declaration of incompetency to possess a firearm under section 103 of the Firearms Control Act.

LEGAL PRINCIPLES

The summary of the evidence and the assessment of intent must be grounded in what was actually proved; where a trial court materially mischaracterises evidence in a manner that affects the inference of intent, appellate interference may follow even under the cautious approach to factual findings described in S v Hadebe and Others 1997 (2) SACR 64 (SCA).

A conviction for attempted murder requires proof of dolus, and dolus eventualis may suffice; intent may be inferred where the accused reconciled with the possibility that conduct involving a firearm in volatile circumstances could result in death, even where direct intent is not proved on the accepted evidence, as applied by the High Court on the facts of count 2.

In assessing whether a conviction for assault with intent to do grievous bodily harm is justified, the nature of the assault, the absence of threats or serious consequences, and the surrounding circumstances are material to whether the necessary intent can be inferred; where these indicators are absent, the conduct may amount only to common assault.

Sentencing requires a balanced consideration of the triad of factors (the crime, the offender, and the interests of society) as articulated in S v Zinn 1969 (2) SA 537 (A); mere reference to personal circumstances without genuine balancing may constitute misdirection.

An appellate court will generally be slow to interfere with sentence, but may do so where the sentence is vitiated by misdirection, is disturbingly inappropriate, or reflects a failure to exercise discretion judicially, consistent with the principles referenced from S v Rabie 1975 (4) SA 855 (A), S v Andersen 1964 (3) SA 494 (A), and other cited authorities.

When sentencing an offender who is a primary caregiver or breadwinner for minor children, the sentencing court must pay appropriate attention to the children’s interests, applying the guidelines and constitutional considerations described in S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2007 (2) SACR 539 (CC), without treating parenthood as a basis for avoiding proportionate punishment.

Dube v S (A518/2015) [2016] ZAGPPHC 1226 (19 November 2016)