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[2006] ZASCA 180
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S v Govender (47/06) [2006] ZASCA 180; [2007] 3 All SA 580 (SCA) (15 December 2006)
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Not Reportable
CASE NO. 47/06
In
the matter between:
KUMAREN
GOVENDER
Appellant
and
THE STATE
Respondent
CORAM:
NUGENT, MAYA JJA et CACHALIA AJA
HEARD:
7 NOVEMBER 2006
DELIVERED:
15 DECEMBER 2006
Summary: Murder – appeal against conviction and
sentence - appellant found to have shot at deceased in self-defence –
thereafter fired further shot at deceased that was not justified –
evidence does not establish that the deceased was still
alive at time
that shot was fired - appellant guilty of attempted murder –
sentence altered accordingly.
Neutral Citation: Govender v The State [2006] SCA
175 (RSA)
JUDGMENT
MAYA JA
MAYA JA
[1] The appellant was arraigned on a charge of murder in
the Verulam Regional Court. He pleaded private defence. The regional
magistrate
rejected his defence and convicted him of murder. He was
sentenced to ten years’ imprisonment. His appeal to the Natal
Provincial
Division against both conviction and sentence was
unsuccessful. This appeal, with special leave of this court, is
against conviction
and sentence.
[2] The background facts may be stated briefly. In the
early hours of the morning of 23 November 1996 at Phoenix, near
Durban, the
deceased was fatally shot by the appellant. The incident
occurred in a public street outside a house that was used for
gambling.
The appellant was the operator of the gambling house. The
deceased and a group of friends, which included two of the State’s
key witnesses, Mr Sandragasen Govender and Mr Stanley Adinarain,
arrived there in the deceased’s vehicle at about midnight.
The
deceased, who had been drinking, gambled heavily and lost. He
requested the appellant to give him what the witnesses termed a
‘free
call’, in an attempt to recoup his losses but this was refused
by the appellant and the deceased and his friends
left the house.
[3] The
deceased was outside the house, alongside his vehicle with his
friends, Govender, Adinarain and others, chatting to Mr Moonsamy
Chetty, when the gambling house closed and the appellant left it. In
the street outside the house the appellant encountered the deceased
and an exchange occurred, the details of which are in dispute, in the
course of which the appellant shot the deceased repeatedly
and the
deceased died on the scene.
[4] The post mortem examination performed by a
forensic pathologist, Dr Govender, who testified, revealed that the
deceased sustained
a horizontal deep abrasion on the anterior of the
left shoulder and five other injuries: (1) A bullet entered the left
lower chest
anteriorly (accompanied by surrounding abrasion and
tattooing), penetrating the lower lobe of the left lung, and lodged
in the lower
back. (2) A bullet entered the right cheek (accompanied
by surrounding abrasion and burn) and exited the left upper neck
laterally.
(3) A bullet entered the right axilla anteriorly
(accompanied by surrounding burn and blackening) and lodged in the
right side of
the neck. (4) A bullet entered the left shoulder
posteriorly, penetrated the upper lobe of the left lung, and lodged
in the front
of the left chest. (5) A bullet entered the mouth
(accompanied by blackening of the whole of the front of the mouth)
lacerating the
upper lip and tongue, broke and dislodged two upper
incisors, and lacerated the brain before exiting the left upper
occipital scalp.
According to Dr Govender each of the injuries,
except that to the left shoulder, which he believed was caused by a
bullet fired from
a distance of about a metre away, was potentially
fatal.
[5] Dr Govender explained that tattooing occurs when a
firearm is discharged from about three to four centimetres from the
target
and the powder from the barrel of the firearm then ‘disperses
and leaves black spots around the entry wound’. He explained
that blackening occurs ‘when the whole discharge from the
barrel of a firearm enters a wound, including the powder…that
causes the blackening, but it’s so concentrated, it’s not
tattooing now…because the whole powder does not have
a chance
to spread out’. In his opinion the shot to the mouth of the
deceased was fired from a distance of no more than a centimetre
or
two.
[6] It is unfortunate that the court hurried Dr
Govender through his evidence, as if it was merely a formality,
without any exploration
of the likely effect of each separate injury.
Ultimately, when asked ‘which wound caused death? Is there any
one particular
one or was it a combination of all the wounds?, his
answer was ‘A combination of wounds.’ The significance of
this lack
of precision as to the cause of death will emerge later in
this judgment.
[7] As previously indicated, Govender and Adinarain
testified for the State. According to Govender the appellant walked
up to the
deceased, who was standing alongside his vehicle, and
simply said to him ‘I’m tired of you’ and then took
out his
firearm and commenced firing at the deceased until he ran out
of ammunition and the deceased fell on the road. He said that the
appellant
then took the deceased’s firearm from the deceased
(who by then was lying on the road) and fired a shot with it into the
deceased’s
mouth. Govender testified further that after
shooting the deceased in the mouth, the appellant turned to him and
searched him for
a firearm. When he did not find one he fired a shot
towards his face but, miraculously, Govender fell and the bullet
missed. On rising,
Govender fled the scene.
[8] Adinarain, on the other hand, who was sitting in
the deceased’s car at the time, testified that he heard nothing
being
said before the shooting started. He said that the appellant
simply walked up to the deceased and shot him. After the deceased had
fallen, the appellant turned him slightly, removed his (the
deceased’s) firearm, and shot him in the mouth with it. The
appellant
then turned to Govender and asked him if he (Govender) had
a firearm. When Govender replied in the negative the appellant began
firing
at him and Govender as they fled.
[9] One more witness testified for the State, Sgt
Padayachee, the first police officer at the scene. Nothing much
turned on his brief
evidence. He did however state that he knew the
deceased to be a gang leader and drug dealer who constantly had
runs-in with the
local police. He found a crowd gathered around the
deceased’s body, which was covered with a blanket, and
recovered a projectile
and two 9mm spent cartridges next to it.
[10] The appellant testified that he had
been friends with the deceased at some stage but terminated the
friendship when his family
expressed its disapproval because the
deceased was a notorious gangster and drug dealer. He said that when
he left the gambling house
he saw the deceased standing alongside his
vehicle in the company of others. The deceased called to him and he
approached the deceased.
The deceased then angrily remonstrated with
him for not allowing him (the deceased) a ‘free call’. He
said that the deceased,
who he knew to be predisposed to violence,
then drew his firearm. In response the appellant drew his own firearm
and began firing
at the deceased. He said that the deceased fell to
the ground, and his (the deceased’s) firearm also fell to the
ground. The
appellant said that he picked the deceased’s
firearm up and started firing at the deceased’s friends, who at
that time
had started shooting at him as they fled. He said that had
he not shot the deceased he was certain that he would have been
killed
by the deceased.
[11] The defence called Chetty as a
witness. He had previously made a written statement to the police
which seemed to favour the
appellant’s case. He testified that
he encountered the deceased on the roadside outside the gambling
house on the morning in
question. The deceased complained to him that
the appellant had refused him a free call. Later, the appellant
emerged from the gambling
house and joined them. The appellant and
the deceased discussed the latter’s complaint. He left them
chatting amicably to join
the deceased’s friends who sat in the
deceased’s vehicle. He suddenly heard gunshots and took cover
behind the vehicle.
When he emerged later, the deceased was lying on
the road, shot. He did not see who fired the shots and did not know
if the deceased
owned a firearm or carried one that day.
[12] Certain material aspects of this
testimony were at variance with the written statement that Chetty
made to the police soon after
the incident. There, he said:
‘
Ronald [the deceased] and I got into a
conversation on Elfbrook Road. After a while I noticed Piggies [the
appellant] coming from
the gambling school. When Ronald saw Piggies
he stated “How come you never give me a call in the gambling
school”.
Ronald then reached for his firearm which was
tucked in his pants. Before he could pull out the firearm Piggies
pulled out his firearm
and shot at Ronald.
I did not want to get
shot in the crossfire so I ran to the place where the gambling school
was. I heard a few shots after that but
I did not see who was
shooting. When I returned after a while I noticed Ronald lying dead
on the road. The police then arrived after
a while and took over.
I
am aware that Ronald is a firearm owner and he always carries a gun.’
Emphasis added.
Because Chetty’s statement was
inconsistent with his oral testimony, the trial court declared him to
be a hostile witness. Sgt
Naidoo, who recorded his statement, was
called to prove it.
1
He confirmed that it reflected what was narrated to him by Chetty and
that it had been properly attested.
[13] The trial court accepted the evidence
of the State witnesses who, it said, ‘testified in a manner
which the Court cannot
severely criticise’, and whose evidence
was said to be largely corroborated by the defence version, and
rejected that of the
appellant where it differed. On appeal, the
court below stated that ‘the magistrate did not misdirect
herself in her findings
of fact’ but nonetheless concluded that
‘the appellant’s allegations on the actions of the
deceased cannot be dismissed
as improbable, as it cannot be said that
he fired at the deceased for no apparent reason’. Accepting, as
it seems to have done,
the appellant’s account of what
occurred, the court below concluded that ‘the totality of the
evidence did not justify
[the appellant] firing further shots, apart
from the first one which apparently, paralysed the deceased from
firing at the appellant’.
On that basis it found, so it seems,
that the appellant’s life was no longer in imminent danger when
he fired further shots
at the deceased, and that the magistrate had
correctly convicted him.
[14] In
S v
Shackell
2
Brand AJA reiterated that:
‘
It is a trite principle that in criminal
proceedings the prosecution must prove its case beyond reasonable
doubt and that a mere preponderance
of probabilities is not enough.
Equally trite is the observation that, in view of this standard of
proof in a criminal case, a court
does not have to be convinced that
every detail of an accused’s version is true. If the accused’s
version is reasonably
possibly true in substance the court must
decide the matter on the acceptance of that version. Of course it is
permissible to test
the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable; it can
only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably possibly
be true.’
[15] In my view it is most improbable that
the appellant, for no apparent reason, simply walked up to the
deceased and shot him,
as the State witnesses would have it. I find
nothing improbable in the appellant’s evidence that the
deceased, no doubt aggrieved
by the fact that the appellant had not
allowed him a ‘free call’, took out his firearm in the
course of remonstrating
with the appellant. Moreover, his evidence in
that respect is corroborated by the statement that Chetty made to the
police, albeit
that he later recanted, unconvincingly, when he gave
evidence. In my view it cannot be said that the evidence of the
appellant on
this issue cannot reasonably be true. On the contrary,
it is probable that the deceased indeed drew a firearm in the course
of remonstrating
with the appellant, which prompted the appellant in
turn to draw his own firearm and fire at the deceased.
[16] The mere act of drawing a firearm in
those circumstances was sufficient to justify the appellant’s
response,
3
which was to shoot at the deceased in the knowledge that he was bound
to kill him. I do not think the appellant could be expected
in the
circumstances to have waited for the deceased to attempt to shoot at
him before he responded, nor to have taken any lesser
measures to
avoid the danger of being killed, and counsel for the State did not
argue to the contrary. Moreover, there is no evidence
to support the
finding of the court below that the first shot paralysed the
deceased, with the result that the appellant was not
justified in
firing further shots. Once the appellant was justified in shooting
the deceased fatally, which in my view he was, the
fact that he fired
shots in quick succession does not detract from the lawfulness of his
act.
[17] But that does not end the enquiry.
For the evidence of the two State witnesses was that once the
deceased had fallen to the
ground, and the appellant’s firearm
had been emptied, the appellant picked up the deceased’s
firearm and fired a final
shot into the deceased’s mouth. If
that is indeed what occurred, then clearly that shot was not
justified, for by then the
deceased was clearly incapacitated and
posed no further danger at all. The appellant, on the other hand,
denies that that occurred.
On his version the shot that struck the
deceased in the mouth was one of those that he fired in the initial
volley, though he could
not say in what sequence the injuries were
inflicted.
[18] While I do not accept the evidence of
the State witnesses as to the manner in which the shooting was
initiated that does not
mean that their evidence on that further
issue is similarly to be rejected. Undoubtedly, the evidence of a
witness who has been found
to be untruthful or unreliable on a
material issue should be approached thereafter with considerable
caution but it does not fall
to be rejected for that reason alone.
[19] If the evidence of the two State
witnesses on that issue is untrue it must mean that they conspired
together to invent the occurrence,
for it is most unlikely that they
could each have invented such a bizarre occurrence independently, nor
is it a matter upon which
they might both be mistaken. I can see no
reason why they would have conspired together to invent that
occurrence. If it was their
intention to secure the conviction of the
appellant their evidence was in any event sufficient (if it were to
be believed) for that
purpose without gratuitously adding this
further bizarre event. Apart from the fact that there is no apparent
reason for them to
have conspired to invent that evidence, it is
corroborated by the post-mortem examination. I have already pointed
out that the blackening
that accompanied this shot led Dr Govender to
conclude that the shot must have been fired while the tip of the
barrel was no more
than a centimetre or two from the deceased’s
mouth. It is also difficult to see how that injury occurred otherwise
that in
the manner attested to by the State witnesses. While the
appellant denied having shot the deceased in the mouth as they
described
he could not adequately explain the injury. According to
the appellant he fired the first shot in the direction of the
deceased’s
body and the remainder were fired while the deceased
was staggering backwards and it seems unlikely in those circumstances
that one
of the shots could have been fired while the tip of the
barrel was barely centimetres from the deceased’s mouth.
Indeed, the
appellant could not but have been aware of firing a shot
that close to the deceased’s mouth, and in my view his
prevarication
on that issue I think adds support to the state’s
case. In my view the objective evidence, corroborating that of two
State
witnesses on this issue, leaves no reasonable doubt that the
shot to the mouth was the final shot fired by the appellant, after
the
deceased had collapsed to the ground. Clearly there was no
justification for firing that shot.
[20] The difficulty for the State,
however, is that the evidence is insufficient to establish whether
that shot caused, or even hastened,
the death of the deceased,
bearing in mind that by the time it was fired the deceased had
already collapsed to the ground with four
injuries, each of which,
according to Dr Govender, was itself capable of killing the deceased.
That being so his conclusion that
‘a combination of shots’
killed the deceased ought to be approached with some circumspection,
for it does not assist
in determining whether that shot was an
essential component of the ‘combination’. Without
evidence that the death of
the deceased was brought about by
lacerations to the brain – which the evidence does not
establish – it cannot be said
with any certainty that the
deceased was still alive when that final shot was fired. The only
evidence that suggests that he might
not have been dead was a
statement by Govender that after the deceased fell to the ground he
was ‘taking out blood, spewing’.
I do not think that
reliance can be placed on that evidence alone, which was given by a
lay observer who had little proper opportunity
to carefully observe
what was occurring at the critical time.
[21] In my view the State failed to
establish that the appellant’s final shot – which was the
only shot that was not
legally justified – caused or hastened
the death of the deceased. Clearly, however, the appellant fired that
shot intending
to kill the deceased, and there is no suggestion in
his evidence that he believed him to be dead at the time. In those
circumstances
he is guilty of attempted murder.
4
[22] That finding calls for sentence to be
imposed afresh. The appellant’s relevant personal circumstances
are the following.
He was 25 years old at the time and lived with his
parents. His highest standard of education is matric. He was in
gainful employment.
Although single, he was in a stable relationship.
He had previous convictions for possession of Mandrax and dealing in
liquor. There
were clearly strong mitigating factors in his favour. I
must accept for purposes of sentence that the death of the deceased
was brought
about in legitimate self-defence and not by the act for
which the appellant has been convicted. At the time the appellant
fired the
shot that has resulted in his conviction he was clearly in
a state of considerable anger and anxiety that was brought about by
the
conduct of the deceased. Nonetheless, a sentence is required that
will bring home to the appellant the seriousness of using firearms
in
circumstances that the law does not condone. Having regard to all the
circumstances, it seems to me that a conditionally suspended
custodial sentence would adequately serve that purpose.
[23] The appeal is upheld. The conviction
and sentence are set aside and the following orders are substituted
for those of the trial
court:
‘
The accused is found guilty of attempted murder
and is sentenced to two years imprisonment, which is suspended for a
period of five
years on condition that the accused is not convicted
of an offence involving the use of violence against another person
committed
during the period of suspension.
_______________________
M.M.L. MAYA
JUDGE OF APPEAL
CONCUR:
NUGENT
JA
CACHALIA
AJA
1
In terms of s 190(2) read with s 222 (incorporating Part VI of the
Civil Proceedings Evidence Act 25 of 1965) of the
Criminal Procedure
Act 51 of 1977
, which allows a party to ask about his witness’s
prior written inconsistent statement and prove its terms.
2
2001 (2) SACR 185
(SCA) para 30; see also S v V
2000
(1) SACR 453
(SCA) para 3.
.
3
S v Ntuli
1975
(1) SA 429
(A);
S v De Oliveira
1993
(2) SACR 59
(A) at p 63h-j.
4
R
v Davies
1956
(3) SA 52
(A);
S v Ndlovu
1984 (3) SA 23
(A).