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1987
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[1987] ZASCA 35
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S v Malik (285/1985) [1987] ZASCA 35 (31 March 1987)
LL
Case No. 285/1985
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
SHARFUDEEN PAKHI MALIK
Appellant
and
THE STATE
Respondent
CORAM
: RABIE ACJ, VIVIER JA et STEYN AJA
HEARD
: 19 MARCH 1987
DELIVERED
: 31 MARCH 1987
JUDGMENT
/
STEYN AJA
...
2.
STEYN AJA
:
On April 22 1985 appellant was arraigned before McCreath J and two assessors
in the Witwatersrand Local Division on a charge of having
murdered Samson Pule
Mabote (the deceased) at Krugersdorp on 3 May 1984. He pleaded not guilty but
was nevertheless convicted of
murder with extenuating circumstances and
sentenced to 9 years' imprisonment. Leave was given him by the trial Judge to
appeal to
this Court against his conviction and sentence.
The facts which were either common cause or undis= puted were set out as
follows in the judgment of the Court
a quo
:
"It is common cause that the deceased was
in fact shot through the head, the bullet en= tering the head on the right
hand side, and leaving the head from the left hand side.
It is also common cause
that the accused was the person who was responsible for firing that shot at the
deceased and that the shooting
was ef= fected by means of a 9mm Parabellum
pistol, a firearm which requires a trigger pressure of
/some ...
3.
some 4 kg or 9 lbs tension in order to enable the weapon
to be fired.
It is common cause that it is this wound which caused the death of the
deceased. It is also not in dispute that the premises where
the shooting
occurred is a restaurant and, as indicated by the defence in the explanation of
the accused's plea, a restaurant owned
by the accused and situated on the first
floor above certain shop premises. At street level there is a clothing shop,
also the property
of the accused, the entrance whereof faces onto the street. A
few paces therefrom is a stairway, leading down from the restaurant
on the first
floor to the street. In close vicinity to the clothes shop there is a
butchery.
It is also common cause that the entrance to the clothing shop is by means of
a door which, according to the accused - and that evidence
is unchallenged - is
fitted with two locks. The accused, at the time of the shooting, on his own
evidence, was sober and it is not
disputed that the concentration of alcohol in
the blood of the deceased at the time of the shooting was 22 grammes per 100
millilitres.
The accused's evidence is to the effect that prior to the shooting incident
he had at= tended a course in pistol shooting for a period
of approximately a
year; that he had been issued with a certificate of competence in consequence of
that course, and that the course
included learning how to fire a firearm of the
nature used in the shooting.
The accused's evidence is also to the effect,
/and ...
4.
and that is likewise unchallenged, that the area
in which the restaurant is situated is an area
which is somewhat unsafe and that for this rea=
son, and in view of the fact that he had pre=
viously had difficulty with persons entering
the restaurant and threatening him, he had
acquired the pistol in question. He kept it
in a cocked position whilst he was not actually
in the restaurant itself and in a position in
which it could be fired. The pistol was kept
in a holster whilst he wore it and it then hung
at his left side.
There is the further unchallenged evidence that in the restaurant itself and
behind the counter the accused kept a baton to enable
him to ward off any
persons wishing to assault him or rob him whilst at the restaurant.
That much is common cause, or not in dispute in this
case."
It was likewise common cause that appellant
shot the de= ceased in the restaurant between 6 and 7 p m on the day in question
and that
the deceased had a jacket on back to front. But the circumstances under
which the shooting
took place were in dispute. I now proceed to deal with them.
Appellant's initial defence as set out by his counsel when indicating the
nature of the defence and as
/put ...
5.
put by him to several state witnesses, obviously
with
appellant's concurrence, was that appellant had acted
in legitimate
self-defence in warding off an unlawful I
attack upon him by the deceased.
But during the course
of his own testimony appellant changed his ground.
He
then in fact gave to understand that he never intended
shooting but pulled the trigger unintentionally whilst
evading the
deceased. This was, however, no mere after=
thought conjured up by him under the pressure of perti=
nent questioning. On the evening of 3 May 1984, shortly
after the occurrence and whilst still in the restaurant
appellant made a statement to detective warrant officer
Van der Westhuizen of the South African Police in which
he
inter alia
said:
"I then took out my 9 m.m. Parabellum Browning pistol No. 245 PY 18877 to
protect myself. The pistol was loaded and by mis= take a
shot went off and hit
the Black male in the forehead."
This was in effect saying the same thing as in his later
/testimony ...
6.
testimony. I will deal with his evidence in greater
detail anon. Suffice it now to say that in what he himself repeatedly said
appellant effectively disposed of self-defence but also
placed the intention to
kill pertinently in issue.
The only witnesses to testify about what hap= pened in the restaurant were
appellant and his employee Essop who corroborated his version
of the events pre=
ceding the shooting. Essop did not, however, see the shot being fired as he was
then bending down behind the counter
looking for the baton. Appellant is conse=
quently the only witness to testify about the occurrence as a whole. Briefly
stated, his
version thereof is the following.
Between 6.15 and 6.30 p m on the evening in question he removed close on R800
from the till in his shop and put the money in his pocket.
He then proceeded to
lock the shop's front entrance. Whilst in the process
/of ...
7.
of doing so he was grabbed from behind by the deceased who attempted to push
him back into the shop, apparently with the intention
of robbing him inside.
This attempt failed because one of the door locks had already been secured.
Appellant escaped by pushing backwards
there= by throwing his assailant off
balance. He then fled up the stairs to the restaurant hotly pursued by the
deceased. On entering
the restaurant appellant made for the counter at the
opposite end of the room intending to take refuge behind it. Essop was then
also
behind the counter. But ! there were 10 - 12 customers in the restaurant and
some blocked appellant's way. He then turned left
and ran around a table seeking
shelter behind it from the de= ceased who was still aggreseively pursuing him.
In an attempt to get
at appellant deceased moved in the opposite direction and
then pushed the table and reached out to grab him but failed to do so because
appellant ducked behind the table. It was during this process of flight
/and ...
8.
and pursuit that the shot was fired after appellant had undone
the holster button and drawn the pistol.
During his evidence appellant repeatedly and consistently maintained that he
had not meant to shoot. This will be adequately demonstrated
by the following
extracts from his testimony. During examination-in-chief:
"What did you think what was he trying to do? — Well he was trying to grab
me you see.
Right and what happened when you entered the restaurant — As I ran up the
steps this guy was right behind me, so I ran around
the table and he was very
close and I pulled the gun out you see to avoid, because I was scared. I didn't
know what he was carrying.
But he was still behind
you? — Yes very close to me and I just pulled the gun out and I took it in
my hand and I don't know
with that tension, or being frightened my hand went on
the trigger and the gun went off."
Under cross-examination:
"When did you take your firearm out?—Just when I came to the table,
when I ducked behind the table I pulled the gun out."
And:
/"Yes ...
9.
"Yes, but you could have on that stage just taken a step or two backwards, he
couldn't have grabbed you, that's what I am trying
to get at, is that correct?
Do you agree? — It happened so fast sir, it's dif= ficult for me to say
yes or no sir.
Because why I'm putting it to you is that on your own version there was no
necessity for you to shoot the deceased. — I just
pulled the gun out, not
to shoot him sir, to scare him.
But if you only
wanted to scare him why
did you pull the trigger? — With the tension I suppose my finger made a
bit still on the trigger and it went off."
When asked in chief where in the restaurant he
was
when he fired the shot, appellant replied:
"I can't exactly think - at that moment I was so mixed up and frightened. I
wasn't even sure where I was."
He added in reply to
a further question that after the shooting he found himself "near the pillar".
Certain of the photographic exhibits
handed in by the prosecution show that this
pillar is immediately in front of the counter and width-wise approximately in
the centre
of the restaurant. To someone standing at the top of the
/stairs ...
10.
stairs and looking into the restaurant the counter is at the far end
of the room and the pillar to the right of where the deceased
was found lying
dead on the floor. From the same position at the head of the stairs the outside
wall of the restaurant is to the
right, and in that wall is a continuous row of
curtained windows overlooking the pavement and street outside the clothing shop.
These
windows are separated from each other by narrow metal frames. From the
entrance to the restaurant at the head of the stairs there
is an aisla,
apparently not more than 10 metres long, leading atraight to the counter. On
either side of this aisle there were on
the evening in question rows of tables,
four to the right and three to the left, each consisting of two tables standing
end-on next
to each other at rightangles to the aisle. The. rowson the right
were end-on right up against the afore= mentioned windows. A photograph
of the
scene taken by the police that same evening shortly after the shooting
/shows ...
11.
shows the inner of the two tables forming the last row to the left of the
aisle (i e the row nearest the counter and. the table nearest
the aisle)
displaced away from its companion in the direction of the counter and its chairs
in disarray. The deceased was lying on
his stomach be= tween this and the row
next to it, amongst the displaced chairs with his head towards the stairs. And
the bullet
which had killed him was later found to have penetrated a vertical
window-frame next to the second last of the right-hand row of
tables and
approximately opposite its centre line. This bullet hole was 95 cm above the
floor.
The entrance wound in the deceased's head was lower than the exit wound and
pieces of the deceased's hair and skull bone were mostly
found spattered high up
against the curtains at the aforesaid windows, none of these ejecta being lower
than table-top level. The
deceased was not shot at point-blank range because no
tatooing or powder burns indicative of such a shot were
/found ...
12. found at the entrance wound. It must therefore have been a
rising bullet that hit him. The distance between where the deceased
lay and the
bullet-hole in the window-frame was not measured, but judging by the photographs
it was clearly not less than two metres.
When hit, his head must consequently
have been less than 95 cm from the floor, indicating a crouching pos= ture. And
appellant's
pistol must have been even closer to the floor when the shot was
fired. This is not only consistent with appellant pulling the trig=
ger whilst
ducking low but in fact strongly indicative thereof. The relative positions of
deceased's body, the aforementioned ejecta
and the bullet-hole in the
window-frame indicate that the shot was most probably
/fired ...
13. fired almost at rightangles to the centre-line of the
aisle. This places appellant within the area of disturbance, on the staircase
side of but very close to the displaced table, and consequently also within the
area where,according to his testimony, he was when
the shot went off.
Whilst the aforementioned facts are clearly corroborative of appellant's
evidence as to where and why the shot was fired they are
also entirely
inconsistent with the shot having been fired by some= one standing in an upright
position on the far side of the said
pillar facing the entrance to the stair=
case and holding the pistol with a straight arm pointing directly forward at
shoulder level
in the
/direction ...
14
direction of the staircase-end of the restaurant. And yet appellant for
some reason known only to himself, in= dicated to the police
that he was
standing thus when he fired the shot. He was clearly wrong and his tortuous
attempts at denying that he did so were rightly
disbelieved by the trial
Court.
The State also sought to discredit appellant's evidence that the trouble
between him and deceased started at the shop by calling as
witness a certain
Mendonca who was then employed at the adjacent butchery. And a certain Alberts,
who had been a policeman on May
3 1984 and had arrived at the restaurant very
shortly after the shooting, was called by the defence to discredit Mendonca.
Nothing
further need however be said of this duel on cre= dibility because the
view I take of the matter makes it unnecessary to do so.
The trial Court rejected appellant's evidence,
judging him to be an unreliable and untruthful witness and
/finding ...
15.
finding that "there [were] improbabilities in his version which .... [were]
overwhelmingly against him." But in doing so the Court
overlooked the strong
corroboration of appellant's version to be found in the prosecution's evidence
regarding the scene. The trial
Court thereby misdirected itself in a most
material respect, and that misdirection clearly influenced its adverse findings
as to
appellant's credibility.
In seeking, however, to find some explanation for the shooting the trial
Court came to the following conclusion as set out in the
judgment:
"There exists in my view the reasonable possibility that the accused, with
something or other happening in that restaurant which angered
him, drew the
weapon and that it was fired recklessly with the accused knowing the possibility
that by firing the weapon, he might
cause the death of the deceased. In other
words he foresaw the possibility, but that nevertheless, he did fire the
weapon."
On the evidence there is no justification for such a
finding and in coming to that conclusion the trial Court
/moved ...
16.
moved from the realm of inference to that of conjecture.
Having thus misdirected itself the trial Court wrongly assessed the
probabilities which, far from being overwhelmingly against appellant,
are
decidedly in his favour.
The deceased, dressed as he was and clearly under the influence of liquor,
undoubtedly entered the restaurant for some nefarious purpose.
Whatever hap=
pened (or did not happen) at the entrance to the shop, the probabilities
strongly indicate that he was the ag= gressor
inside the restaurant, and there
was clearly some or other violent interaction at or near the table between him
and appellant at
the time of the shot. The fact that the bullet entered
deceased's head broadside on as it were is no clear indication of his bodily
stance at the moment of the shot. He may, for example, have turned his head only
and not also his body at that moment. In my esti=
mation it is at least
reasonably possible that appellant
/fired ...
17.
fired the shot by unintentionally pressing the trigger whilst ducking away
from deceased. It follows that his evidence on that aspect
was wongly rejected
by the trial Court. It may also have been wrongly construed. There is
consequently no proof of any intention
on appellant's part to murder the
deceased.
But appellant nevertheless acted negligently in handling and firing the
pistol as he did. Although he had never fired that particular
weapon before that
evening, he was no stranger to the handling of firearms. A reasonable person in
his position would have realised,
even in the stressful situation appellant was
in, that handling a loaded and cocked firearm in such circumstances was very
dangerous
and that.-great care should be taken not to touch the trigger lest the
pistol goes off and injures or kills somebody. Appellant did
not exercise that
degree of care and his failure to do so was culpable. He is consequently beyond
reasonable doubt guilty of
/culpable ...
18.
culpable homicide.
But in view of the circumstances under which the shot was fired his
negligence is to my mind not of a very serious nature. This so
materially
reduces his moral blameworthiness that it does not merit an unsus= pended
sentence of imprisonment. In my estimation an
appropriate sentence under the
circumstances would be a fine of R500 or 12 months' imprisonment and a further 3
years' imprisonment
conditionally suspended for five years.
The following orders are therefore made:
1.
The appeal succeeds in
part.
2.
The conviction of murder and the
sentence of 9 ! years' imprisonment are set aside.
3.
Substituted therefor
are:
(a) a conviction of culpable
homicide, and
(b) a fine of R500 or 12 months' imprisonment,
and a further three years'
imprisonment
wholly suspended for 5 years on condition
/that ...
19.
that the accused be not convicted of an offence involving an assault with a
fire= arm which is committed within the period of suspension,
and in respect of
which an unsuspended sentence of imprisonment is
imposed.
M.T. STEYN AJA
RABIE ACJ
CONCUR
VIVIER JA