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2012
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[2012] ZAECMHC 9
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Sitinise v Minister of Safety and Security and Others (2247/2009) [2012] ZAECMHC 9 (22 June 2012)
21
NOT REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE, MTHATHA)
CASE NO. 2247/2009
In the matter
between
NCEBAKAZI
SITINISE AND OTHERS
…................................................
Plaintiffs
and
MINISTER
OF SAFETY AND SECURITY
AND
OTHERS
….................................................................................
First
Defendant
LAWRENCE
WINDY TYANI
…..................................................
Second
Defendant
JUDGMENT
HARTLE J:
The issue in this
consolidated dependants’ action turns on the question whether
the killing of Mr
Mcedisi Sitinise
(the deceased), who was
admittedly shot once by a police officer acting during the course
and scope of his duties in that capacity,
and as a result of which
he died, was lawfully justified in the circumstance.
The first plaintiff
is the brother of the deceased who claims to have been supported by
the latter during his lifetime. The second
plaintiff is the
surviving spouse of the deceased who sues in that capacity and as
guardian of her and the deceased’s minor
children as well on
behalf of a minor brother of the deceased.
At the outset of
the trial I granted an order separating the single issue referred to
above from the remaining issues highlighted
by the parties at the
pre-trial conference,
viz
quantum and the issue of the legal
duty on the part of the deceased to support the plaintiffs during
his lifetime.
The basis upon
which the defendants pleaded the shooting was justified was set out
in thus in their amended plea:
“
4. Sergeans
Pongwana, Mthwa and Tyani were peace officers within the meaning of
section 1 of the Criminal Procedure Act, 1977 (Act
51 of 1977) (the
Act)
5. On our about 23
rd
December 2003 at or near Ntshiqo Administrative Area, Tsolo, members
of the South African Police were urgently called at the homestead
of
one Mcedisi Sitinise (deceased)
6. It was alleged
that the deceased was posing a violent threat to his wife (2
nd
plaintiff) and or to the public, in that the deceased;
6.1 had forcefully
pulled 2
nd
plaintiff from her maiden home to their
matrimonial home at gun point.
6.2 had locked
himself and 2
nd
plaintiff on their two room flat
threatening to shoot her and himself to death.
6.3 had fired two
shoots randomly.
7. Members of the
police including the 2
nd
plaintiff proceeded to the said homestead in order to
discharge their constitutional obligations and police duties as set
out in
the Act, the Republic of South African Constitution Act, 1996
(Act 106 of 1996) and the South African Police Service Act, 1995 (Act
68 of 1995)
8. The said police
found the deceased and 2
nd
plaintiff still locked in the room.
9. After sergean
Pongwana had announced the presence of the police officials to
deceased, he pleaded with him to open the door.
10. The door was
eventually opened after sometime and the deceased was seen carrying a
firearm.
11. The firearm
aforesaid was pointed towards the opened door and the second
defendant.
12. Sergean Pongwana
asked the deceased to drop down the firearm and this was ignored by
the deceased.
13. The 2
nd
defendant fired one shot in self defence alternatively
in defence of the 2
nd
plaintiff
whose life was in danger.”
(Sic)
The second
defendant who fired the fatal shot, namely Sgt
Tyani,
died on
7 May 2011. An abridged death certificate substantiating this fact
was filed of record by consent between the parties.
As will appear from
a summary of the evidence below, the events pleaded in paragraphs 4
– 8 of the defendants’ plea
are largely common cause.
What the deceased was doing at the time the fatal shot was fired is,
however, in issue between the
parties.
The defendants
correctly having accepted the onus to prove the lawfulness of the
shooting commenced leading evidence.
1
Monwabisi
Richard Pongwana
,
a warrant officer in the South African Police Service testified that
on 23 December 2009 he was doing crime prevention duties
in Tsolo
with one
Xolani
Mtwa
and
the late second defendant when around 21h00 they received a call to
come to the police station. On their arrival there they
learnt from
a male complainant that the latter’s sister (who it is common
cause is the second plaintiff) had been taken
“
by
force
”
from
her birth home to her marital home by her husband under what he
noted to be “
unfavourable
”
circumstances.
These circumstances involved the fact that the deceased was “
by
nature not controllable
”
and
that he had a firearm. The complainant feared that his sister might
be injured or killed.
The three policemen
dispatched to the deceased’s home together with the
complainant. When they arrived there an elderly
relative of the
deceased urged them to leave since there was no longer a problem
there, but both the complainant’s abiding
concerns - he
thought that his sister would be prejudiced if the police presence
was removed, and their own doubts that the situation
was under
control caused them to remain, at least in order to establish
whether the presence of a specialized unit was not required.
The
complainant had emphasized that the deceased had been shooting
randomly (a fact later confirmed by the second plaintiff when
she
testified) and that even the elderly relative who was discouraging
them from entering his homestead was unable to control
him.
A discussion with
the older relative resulted in a brother of the deceased, one
Luyolo
, offering his services to “
penetrate
”
the homestead so that they could get closer to the second plaintiff
in order to determine her position.
Luyolo
tried by calling
out to the deceased but the latter urged him to return the next day
as he was about to sleep. The witness -
who had moved up closer with
Luyolo
- listened at the window of the homestead and got “
a
sense
” that there was an argument going on between the
deceased and the second plaintiff, making him even more
uncomfortable
about retreating. He returned to report his concerns
to his colleagues. He also called radio control to report the
situation
but was unable to give them any helpful information right
then.
At this point a
woman claiming to be a relative (
Thandile
Sitinise
)
volunteered her services to knock at the door of the homestead and
speak to the deceased. She explained when she testified later
that
the purpose of approaching her brother on this basis was to
negotiate with him so that he would not carry out this threat
of
shooting the second plaintiff. They followed her into the two roomed
homestead where she knocked at the door of the bedroom,
which was
the inner room. The witness himself took cover against the wall in
line with the door to the bedroom. It was a small
room of
approximately 3 – 4 square metres
.
Mtwa
was behind him,
followed by the second defendant, who was positioned at an angle of
approximately 45◦ in relation to the
bedroom door, but near
the doorway where they had entered.
Thandile
called out the deceased’s name and informed him that she was
looking for her “
sister
”. He told her to return
in the morning, but she persisted in speaking with the second
plaintiff who at least intimated
to her that she was scared. At this
point the witness sensed that someone was touching or fiddling at
the bedroom door from the
inside. In the meantime
Thandile
began to retreat from the room with the candle she had come in with.
She left it in the doorway on the floor and went out of
the room
completely.
The top of the
stable door to the bedroom opened, giving the witness an opportunity
to better assuage the situation. As he was
attempting to look into
the bedroom to check on the movements of the deceased he saw the
barrel of a firearm (which he later
clarified was a pistol). He
shouted to the deceased that they were with the police and that he
should drop the firearm. This
elicited no response, only a pause. As
the witness made a move once again to check what the deceased was
doing inside the room,
he heard a shot being fired which, it later
transpired, had been discharged from the second defendant’s
firearm.
The second
plaintiff came running out of the door screaming that her husband
had shot himself. He took the candle from where it
had been left and
approached the bedroom where he found the deceased lying on his face
to the edge of the bed. The latter’s
firearm was on the bed
above his outstretched arms. A spent rifle cartridge was later
recovered in the room on the ground.
When he later
interrogated the situation with the second defendant, the latter
informed him that he was obliged to shoot as the
deceased’s
firearm was pointed directly at him. Further, and as far as he was
concerned, he believed that when he and his
colleagues had
approached the deceased’s homestead, the second plaintiff’s
life was in danger, both because she had
told her sister that she
was fearful to remain with her husband, and because the complainant
had reported to them that a firearm
was involved. He also clarified,
under re-examination, that the members had established that the
deceased had earlier on made
threats to kill both the second
plaintiff and himself on that day, a fact not denied by the second
plaintiff when she later testified.
This he said they had heard from
the complainant, which was the reason the latter had gone to the
police station in the first
place to seek their assistance.
He explained under
cross examination that the second defendant had conveyed to him
after the shot was fired that whereas he and
Mtwa
were able
to take cover where they did, he himself was precluded from doing so
by a table in the room, resulting in him being
in “
clear
view
” of the door opened by the deceased at the time the
latter pointed the firearm at him.
He conceded that
the deceased had been shot in the chest, but did not agree that he
had been shot from behind.
2
As an aside I
mention that apart from it being common cause that the deceased was
fatally struck in the chest, no evidence was
in fact led as to the
nature of the wound or the trajectory of the fired cartridge so as
to provide any assistance to the court
in this regard.
3
The first defendant
also adduced the evidence of Sergeant
Xolani Mtwa
who
confirmed his involvement at the scene on the night in question
whilst on duty with
Pongwana
and the second defendant. After
receiving a call from the police station concerning an allegation
that there was someone who
wanted to shoot his wife at
Ntshiqo
,
the three of them dispatched together to the deceased’s
homestead. There they encountered the elderly relative of the
deceased who discouraged them from entering, but they decided
nonetheless to proceed and investigate the matter for themselves
since they had been informed that the deceased was inside together
with the second plaintiff and that he wanted to kill her.
People
inside the yard had also said of the deceased that he was violent
and that they could not trust themselves to sleep whilst
he was
around.
They were led
inside by
Thandile
who knocked at the inner door with a
candle in hand,
Pongwana
announcing at the time of the
knocking that they were police officers.
Pongwana
was
positioned next to the door in front of the witness with the second
defendant behind him. Since there was no response to
her knocking
she left, putting the candle down. The door ultimately opened
whereupon he heard
Pongwana
say that they were with the
police and instructing the deceased to put down his firearm. He
personally did not see a firearm,
since he was behind
Pongwana
at the time.
Afterwards he heard
a shot being fired. The second plaintiff left the room screaming
that the deceased had shot himself. When
Pongwana
asked who
among them had discharged a shot, the second defendant claimed it
was him. The latter explained at the time that the
deceased had
appeared with a firearm pointed at him. In response to a leading
question put to him whether the second defendant
had told him why he
didn’t “
duck
”, the witness added that he
had had no chance to do so because there was a table obstructing him
and the room was “
not big enough
”.
In rebuttal of the
defendants’ evidence, the second plaintiff, who was married to
the deceased, testified that on the fateful
night she was at her
birth home when he arrived there drunk and accosted her with a
firearm. He grabbed her and pulled her along
with him – at
gunpoint - to their marital home which is approximately 15 minutes
away. He threatened along the way that
both of them would die that
day.
When they arrived
at their homestead he took her into the bedroom and secured the
door, again repeating the death threats. She
was not certain if
anyone had observed her being taken away from her birth home, but
assumed that her sister followed because
she was on the scene soon
after their arrival at the homestead and was screaming outside.
The deceased’s
uncle knocked at the door and called out to the deceased asking him
what was happening and requesting him
to open the door. The deceased
responded by telling the latter that he should take care of their
(the second plaintiff and the
deceased’s) children. Whilst all
this activity was going on from the outside, the deceased fired
shots with the firearm,
but since it was dark inside, she could not
tell where he aimed. She was pleading with him to stop. He repeated
from time to
time that they would die together but in the end he
calmed down, undressed and said they should get into bed. At this
point he
took the firearm, stripped its magazine from it and put it
next to the pillow. By now some two hours had lapsed.
The deceased fell
asleep ultimately but was not in a deep sleep. She did not undress
herself as she was not yet ready to sleep.
She took the magazine and
put it in the pocket of a jacket she was wearing. She heard both
Luyolo
(a young relative from her marital home) and
Thandile
appealing to the deceased from outside the bedroom to open and then
saying they were leaving. The deceased ultimately proceeded
toward
the door to open it.
On his reaching the
door, she immediately heard a shot ring out. Her husband fell down.
She got up from the bed and ran out of
the door. There was candle
light in the adjoining room. She noticed two police officers upon
exiting (whose presence she had
hitherto been unaware of), but
ignored them since she was in a state of shock.
Under cross
examination she conceded without hesitation that her life had been
in danger earlier on in the evening on account
of the peculiar
circumstances. She denied however that she had any reason to leave
the bedroom or fear anything at the time the
shot was fired because
– so she explained – she and the deceased were at that
time “
talking sense
” and understanding one
another.
She was adamant
that, at the time the deceased approached the door, he was unarmed.
She denied that the police had announced their
presence on the
scene. Similarly she denied that
Pongwana
had ordered the
deceased to drop the firearm. As far as she was concerned her
husband never communicated with anyone from leaving
the bed to
approach the bedroom door until he fell down.
She acknowledged
that she had said in an earlier statement made to the police that
when the deceased had stood up she heard something
fall to the
ground, but she added that she had clarified to them that she was
not sure whether it was a firearm or not. She could
not remember
saying in the police statement that a shot was fired before the door
opened.
The plaintiffs
further adduced the testimony of
Thandile Sitinise,
a half
sibling of the deceased. On the night in question she had
accompanied her brother - who she also confirmed to be under
the
influence of alcohol - to the second plaintiff’s birth home.
There the deceased had pointed a firearm at the second
plaintiff,
grabbed her by the collar, and pulled her along to their matrimonial
home at gunpoint. She and the second plaintiff’s
sister
followed the couple to their homestead. When she arrived there the
deceased and the second plaintiff had gone into their
bedroom. She
heard him say that he was going to kill her. Other people arrived to
intervene including her uncle and
Luyolo
. Whilst she was
inside the first room of the homestead
Luyolo
and
Phumelele
entered. They appealed to the deceased to open but he would not.
The second
plaintiff’s brother had in the meantime summonsed the police,
phoning from the yard of the homestead. This was
around 7 or 8 pm.
They arrived later asking where the deceased was and she led them to
the bedroom. Four members entered whilst
others remained outside.
She was flanked by members attending the scene, two on each side.
She and
Luyolo
called on her brother to open but she could
not recall whether he responded or not. He opened the door just
slightly, however,
when a shot rang out. She could not say who fired
at him, neither did she see the deceased or observe that he was
carrying a
firearm. She could not recall the police pleading with
him to put down a firearm. She too denied that the police announced
their
presence there. She left the room after the shot was fired.
She disavowed
telling the police in a statement that the deceased opened the door
carrying a firearm which he pointed to himself
and that it was at
this point that he was shot.
None of the earlier
statements deposed to by the plaintiffs’ witnesses were proved
in evidence.
The question which
arises for decision in this matter is whether the defendants have
proved on a balance of probabilities that
when the second defendant
fired the shot which killed the deceased, he acted in self defence,
or rather “
private
defence
”
,
which term generally finds favour with modern authors since the
ground of justification avails not only persons who defend
themselves, but also those who defend others.
4
The crux of their
case in this regard is that the second defendant fired the shot in
defence of himself, alternatively in defence
of the second plaintiff
whose life was in danger.
A person acts in
private defence and his act is therefore lawful, if he uses
force to repel an
unlawful attack which has commenced, or is immenently threatening,
upon his or somebody’s else’s
life, bodily integrity or
other interest which deserves to be protected, provided the
defensive act is necessary to protect the
interest threatened, is
directed against the attacker, and is not more harmful than
necessary to ward off the attack.
5
In
S
v Makwanyane & Another
6
the constitutional
basis for this ground of justification was articulated as follows by
Chaskalson
P
:
“
Self-defence
is recognized by all legal systems. Where a choice has to be made
between the lives of two or more people, the life
of the innocent is
given preference over the life of the aggressor. This is consistent
with s 33 (1). To deny the innocent person
the right to act in
self-defence would deny to that individual his or her right to life.
The same is true where lethal force is
used against a hostage taker
who threatens the life of the hostage. It is permissible to kill the
hostage taker to save the life
of the innocent hostage. But only if
the hostage is in real danger”.
7
A number of
conditions need to be satisfied for a successful reliance on the
defence,
8
evident from the
following requirements which must exist:
in
respect of the attack:
it must be
unlawful;
it must be directed
at an interest which legally deserves to be protected; and
it must be imminent
but not yet completed.
in respect of the
defence:
the defensive act
must be directed against the attacker;
the defensive act
must be necessary;
there must be a
reasonable relationship between the attack and the defensive act;
and
the attacked person
must be aware of the fact that he is acting in private defence.
9
I find that this
matter can be determined on the basis of only a single contention,
viz
whether the fatal shot was fired by the second defendant
against an unlawful act.
Although the
defendants’ justification was pre-dominantly underpinned by
the traumatic events which had preceded the shooting
and the violent
threat which the deceased allegedly posed to the second plaintiff,
the attack which ultimately warranted the
discharge of the second
defendant’s firearm (on the defendants’ version) was the
alleged unexpected (and supervening)
attack of the deceased on the
second defendant by pointing a pistol at him. This was the primary
basis for the ground of justification;
the risk to the second
plaintiff’s life being relied upon only in the alternative.
Whilst being mindful in assessing the
second defendants’
conduct that a court must take into account all the surrounding
circumstances and not split the event
up into fractions of a second
10
it is, however,
this
threat
vis-à-vis
the second
defendant and the critical moment in time which I need focus my
attention on. When the shot was fired, the second defendant
was not
shooting to protect the second plaintiff, albeit it may have had
this effect co-incidentally in their view.
In this regard the
evidence suggests that, but for the unexpected attack, the tactical
response unit might still have been called
upon to intervene if the
situation warranted it because, as
Pongwana
put it, it was
“
beyond our training
”. According to him they
needed to at first assess whether “
the complaint is really
existing
” before they could summons the specialized unit.
On their evidence, therefore, their entry into the inner room of the
deceased’s
homestead was an exercise of early reconnaissance
only, to establish the risk to the second plaintiff. There was, for
example,
no discussion which had taken place before the shooting
concerning how the matter was to be dealt with, neither was their
any
suggestion whatsoever that they entertained any notion of
arresting the deceased at all. There was therefore on their evidence
no attack on the second plaintiff at this point which warranted any
response other than simply investigating what the situation
was.
Neither did
Pongwana
or
Mtwa
testify that their aim
was to themselves negotiate with the deceased. It was, however,
certainly the desire of
Thandile
to do so when she asked them
to accompany her inside.
Pongwana
confirmed that this was
their express objective in entering the deceased’s homestead
at this point.
Concerning the
perceived danger to the second plaintiff, it is common cause that
her life
was
initially threatened, necessitating the presence
of the police at the deceased’s homestead to intervene. But by
the time
the fatal shot was fired, however, her evidence was that
any danger or risk – certainly concerning herself - had
abated.
This was the view too of the elderly relative present on the
scene. Although the members of police on the other side of the door
might reluctant to believe as much when they took cover in the
ante-room to the deceased’s homestead, the defendants’
defence was, however, not one of mistaken self defence
vis-à-vis
the second plaintiff. Rather their case rested fairly and squarely
on the alleged fact that the deceased drew a firearm and pointed
it
directly at the second defendant when he opened the door; thus
satisfying the requirement of an unlawful and imminent attack
upon
him justifying the lethal shot. The crisp question therefore is
whether the evidence establishes this alleged fact.
In this regard
there are mutually opposing versions between the plaintiffs and the
defendants concerning the events immediately
preceding the shooting.
Therefore, before
determining whether the defendants have discharged the onus which
they bear to negative the
prima
facie
unlawfulness
of the shooting, I must first consider whether or not their version
can be said to be more probable than that of
the plaintiffs who
disavowed any unlawful attack by the deceased upon the second
defendant prior to the shooting.
11
The matrix of an
unlawful attack on the second defendant under the circumstances
contended for by the defendants was bound to
be difficult for them
to establish in the absence of Sgt
Tyani’s
testimony.
Whilst no objection was made when
Pongwana
and
Mtwa
testified as to what the second defendant had conveyed to them after
the shot was fired, there was certainly no agreement that
this
hearsay evidence could be admitted by consent. Further no attempt
was made to introduce the transcript of the inquest into
evidence,
or a police statement contemporaneously made by the second
defendant.
The account of the
second defendant’s conduct in the circumstances therefore
rested exclusively on the evidence of
Pongwana
and
Mtwa
,
neither of whom testified directly that the latter’s life was
placed at risk of harm or death by the deceased pointing
a firearm
at him. Indeed each of them confirmed the necessity to have
questioned the second defendant after the event (both of
them being
surprised by the turn of events) as to the circumstances under which
he had fired the shot, thus confirming that they
could not give
account for his conduct independently of what he had conveyed to
them at the time.
Mtwa
himself did not even observe a firearm
and whilst
Pongwana
said he saw the barrel of the deceased’s
pistol, he could offer nothing significant in unraveling the mystery
as to why
the shot was discharged by the second defendant when it
was. He ought in my view to have been in the best possible position
to
offer a helpful account of the relevant events which had
apparently posed the threat to the second defendant and given
content
to his concerns at the critical moment. On his version he
leaned in again after instructing the deceased to drop the firearm
to check on the latter’s movements. If anyone saw what the
second defendant might have perceived as an imminent threat of
attack coming his way, it should have been him. This notwithstanding
he saw nothing to personally cause him any ongoing concern
or to
suggest that his instruction to the deceased to put down the firearm
at the time had not been followed. In fact, no action
of any
significance ensued on the part of the deceased – on
Pongwana’s
account – during this interlude and
before the shot was fired.
The evidence of
Pongwana
and
Mtwa
was further not consistent in
several respects. Most notably they were not
ad idem
as to
when
Pongwana
announced their presence on the scene.
Mtwa
said it was at the time of the knocking, whereas
Pongwana
said he warned the deceased of his presence only when he saw the
latter’s firearm. Indeed
Pongwana’s
evidence in
this regard was not even consistent with what was pleaded in par 9
of the defendants’ plea,
viz
that
Pongwana
first
announced their presence and then himself pleaded with the deceased
himself to open the door. They also differed significantly
on the
length of time which lapsed between the opening of the door and the
firing of the shot.
Pongwana
said it took a while - giving
him a second opportunity to look into the bedroom to check on the
movements of the deceased, whereas
on
Mtwa’s
account
there was an instantaneity in the unfolding of the events after the
bedroom door was opened culminating in the fired
shot.
The second
plaintiff on the other hand was adamant that the deceased was
unarmed and taken unawares even as to a police presence
immediately
after the latter opened the door to respond to
Thandile’s
calling after him. Further, both of them were insistent that a shot
was fired almost immediately the deceased opened the door,
this
negating the possibility of the second defendant being under any
kind of threat.
The plaintiffs’
witnesses gave evidence in a clear and straight forward manner and
made a favourable impression on the court.
They did not hesitate to
make concessions even when such were against their, or the
deceased’s, interests. The testimony
of each was further
corroborated by the other and to some extent coincided with aspects
of the defendants’ evidence, such
as for example the rapidity
with which
Mtwa
said the shot was discharged after the
deceased opened the bedroom door.
Although at first
blush it appeared inconsistent with the second plaintiff’s
case that she could for a moment even have
entertained the thought
when she heard the shot ring out that the deceased had shot himself
– since according to her evidence
she had removed the magazine
from the firearm and put it in a safe place – it is not
improbable that she panicked at this
point. It appeared to be common
cause that she was in a state of severe shock after the incident and
could momentarily have forgotten
that she had put the magazine in
her pocket.
In the result, the
balance of probabilities are in my view tilted against the
defendants’ construction of the decisive events
leading up to
the shooting, leading me to prefer the plaintiffs’ version
that at the time the second defendant fired the
lethal shot the
deceased was not pointing a firearm at him. On the contrary it is
difficult to avoid the conclusion that the
second defendant’s
weapon was hastily discharged without any threat being posed to his
life whatsoever.
On the objective
evidence no danger was posed to the second plaintiff’s life
either, hence the defendants have failed to
discharge the onus
resting on them to justify the shooting.
In the absence of
any legal justification the
prima facie
unlawfulness of the
second defendant’s conduct is conclusive. Therefore I find
that the shooting constituted an unlawful
assault upon the deceased.
Although I was not
called upon to decide the issue of culpability, it strikes me as
abundantly plain from the evidence that a
reasonable police officer
in the position of the second defendant would under the
circumstances not have discharged his firearm
as he did and that his
conduct, for which the first defendant is vicariously liable, was
therefore negligent as well.
In the result I
make the following order:
subject to proof of
any obligation on the part of the deceased,
Mncedisi Sinitise,
to
have supported the plaintiffs (and those represented by the second
plaintiff in the action), the first defendant is liable
for all such
damages as the plaintiffs made prove or which may be agreed between
the parties arising from the shooting of the
deceased at Tsolo on 23
December 2003; and
the costs
consequent upon the trial will be costs in the cause.
______________________
BC HARTLE
JUDGE OF THE HIGH
COURT
Date of hearing: 16
May, 6 June 2012
Date of judgment: 22
June 2012
Appearance for the
Plaintiffs: Mr W T Mqandi
WT Mqandi &
Associates
Mthatha
Appearance for the
Defendants: Mr F S Gagela
Instructed by: State
Attorney
Mthatha
1
Mabaso
v Felix
1981 (3) SA 865
(A);
Minister of Law and Order v
Monti
1995 (1) SA 35
(A).
2
During
cross examination counsel for the plaintiffs flirted with the
suggestion that the entrance wound was on the deceased’s
back,
but this was not taken any further.
3
Evidence
as to what was found on the scene after the shooting would have been
helpful and perhaps conclusive of some of the issues
between the
parties which were in dispute.
4
CR
Snyman,
Criminal Law
, 5
th
ed at p103
5
Criminal
Law
,
Supra
, p 103. See also LAWSA, Vol 6, at par 38 –
48.
6
[1995] ZACC 3
;
1995
(3) SA 391
(CC).
7
At
par [138]
8
See
Makanyane, Supra
, in which the court noted that there are
“
strict limits to the taking of life
” even in the
hostage situation illustrated in the judgment, and that “
the
law insists upon these limits being adhered to
.”
9
Snyman
supra
, at pgs 107 – 113.
10
R
v Jack Bob
1929 SWA 32 at 34;
Cele v R
1945 NPD 173
at
176.
11
See
National Employment General Insurance association v Gany
1931
AD 187
at 199 as to the test to be applied when there are versions
upon trial which are mutually destructive of each other.