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1989
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[1989] ZASCA 75
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S v Sibisi (135/88) [1989] ZASCA 75 (1 June 1989)
135/88
/mb
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
M M SIBISI
APPELLANT
vs
THE STATE
RESPONDENT
CORAM
: BOTHA, KUMLEBEN et F H GROSSKOPF JJA
HEARD
: 22 MAY 1989
DELIVERED
: 1 JUNE 1989
JUDGMENT
KUMLEBEN JA
/......
1.
KUMLEBEN JA
:
On the night of 6 November 1985 the appellant, a Township Manager of
Ngwelezane in Kwa-Zulu, shot the complainant with a .38 special
revolver. The
bullet entered the left side of his neck and emerged from the other side. The
shot did not prove fatal but resulted
in permanent paralysis of the left side of
his body.
The incident led to the appellant being charged in a regional court with
attempted murder. He pleaded not guilty. The complainant
and Mr "Bheki" Khumalo,
who was present when the shooting took place, were the two witnesses for the
State. The appellant testified
controverting their evidence. The magistrate was
impressed with the demeanour of the two State witnesses and found their evidence
satisfactory. By
2/...
2.
contrast, he was highly critical of the appellant as
a witness and held his evidence to be improbable. In the result, on an
acceptance
of the State case, the appellant was f ound guilty as charged. He was
sentenced to four years' imprisonment, half of which period
was conditionally
suspended for three years.
The appellant appealed to the Natal Provincial Division of the Supreme Court
against his conviction and sentence. The court (Friedman
J and Gordon AJ) took
the view that there were material discrepancies in the evidence of the two State
witnesses and that the trial
court therefore erred in accepting the evidence of
the complainant. In the result, the court decided that where the evidence of the
appellant differed from that of the complainant, the former was to be relied
upon. On this basis (and apparently without having regard
to the
3/...
3. evidence of Khumalo) it decided that the appellant on
his own account of what took place was correctly convicted. The appeal against
sentence also failed. With leave of the court a
quo
both these issues are
before us on appeal.
At the start of the trial, in the disclosure of the nature of appellant's
defence in terms of
sec 115
of the
Criminal Procedure Act, No 51 of 1977
, it was
stated that the appellant, whilst seated in his van, had been confronted and
threatened by the complainant,causing him to
fire the shot which injured the
complainant. He added that he did not aim it at the complainant. This statement
clearly implies that
he shot in order to frighten and deter him, but not to
kill. His evidence was to the same effect. At no stage, one notes, did he
rely
explicitly on self-defence by alleging that his life
4/...
4.
was in imminent danger and that, had the shot been fired
deliberately at the complainant, such action would have been justified and
therefore lawful. However, the magistrate in his judgment (presumably as a
result of a submission along such lines) held that the
appellant "at no stage
acted in self-defence" and that "his unlawful act was done with the required
intention to kill the complainant."
In the notice of appeal initially lodged,
the magistrate's rejection of the defence of justification was challenged ("The
Learned
Magistrate erred to reject (
sic
) the defence version that
Appellant was acting in self-defence"). It was only in the amended grounds of
appeal that the defence of
mistake (accidental killing) was obliquely raised
("The learned Magistrate erred in finding that Appellant had the intention to
kill
the Complainant").
5/...
5. In the appeal in the court a
quo
, and before us,
a further defence was raised. Counsel submitted that, even if the appellant had
acted unlawfully in that he exceeded
the bounds of self-defence, it was
reasonably possible that he believed such action on his part was justified, in
which event he
lacked the
mens rea
(
dolus
)
to sustain a conviction of attempted murder. (See S v
Ntuli
1975
(1) S.A. 429
(AD) 436 H and 437A and
S v Ntanzi
1981 (4) S.A. 477
(NPD)
481 C - F: in the former decision at page 436 F it was pointed out that:
"
Dolus
consists of an intention to do an
unlawful
act".)
It would appear that in the court a
quo
, and at times during the
debate in this court, these defences -mistake (accidental injury), justification
(self-defence) and lack
of "wederregtelikheidsbewussyn"- were merged or not
viewed in correct perspective. The issue, first and
6/...
6. foremost, is whether the appellant was proved to have
intended killing the complainant in
casu
by aiming the shot at him
(
dolus directus
) or because, as it was put in
S v Sigwahla
1967(4)
S.A. 566 (AD) 570 B - C, he "subjectively foresaw the possibility of his act
causing death and was reckless of such result"
(
dolus eventualis
). If
such intention was not proved,
cadit quaestio
. If proved, then and then
only, need the other two questions be considered.
The appellant and the complainant met each other for the first time that
night in a road outside a shebeen, ref erred to as "Mary'
s place". The
appellant
was driving a small Isuzu van and was accompanied by three other
men and a girl. He gave the complainant some money and asked him
to buy beer at
Mary's place. The appellant was not
persona grata
there apparently
because
7/...
7. he had still to pay for past purchases. The evidence of
the appellant differs from that of the complainant on the question whether
the
latter returned with any beer and on the stage at which they went to another
shebeen, "Terry's house". Nothing turns on this.
It is common cause that later
that evening they, with their male companions, were in Mary's shebeen. There
they sat drinking, having
left the girl in charge of the van parked outside the
shebeen. At a certain stage the appellant was told that she was no longer at
the
vehicle. He left the shebeen to check that his knife and revolver were still in
the cubby-hole and to lock the van. Subsequently,
after events which I shall in
due course relate, they departed in the van without the complainant. They next
met him in a street
a block away from the road in which Mary's shebeen was
situated. It was there that the complainant came to be injured.
8/...
8.
That evening the complainant on his own admission had drunk
seven quarts and two pints of beer over a comparatively short period of
t ime.
There is some evidence that he was given spirituous liquor to drink as well.
Notwithstanding his own assessment of his condition
("I was just happy. I was
not drunk"), which is ex
hypothesi
seldom an accurate one, the chances
are that he was appreciably under the influence of liquor. No doubt with some
regard to this
fact, and in the light of the unsatisfactory evidence given by
the appellant, Mr Paver, who appeared on behalf of the respondent,
agreed that
no reliance could be placed on the complainant's evidence where it differed from
that of the appellant.
Notwithstanding this concession, which was correctly made, I consider it
appropriate, and to a limited extent relevant, to examine
appellant's
account
9/...
9.
of events at the time he went to his van, having heard that it
was unattended.
According to his evidence, on arrival at his vehicle, he opened its left hand
door and felt in the cubby-hole to find out whether
his revolver and his knife
were still there. As he was doing so and had hold of the fire-arm, he felt a
hand grab hold of the hand
in which he had the revolver. For some reason the
grip on his hand was shortly afterwards released. He noticed the complainant
standing
in front of the van near its bonnet but no other person in the
vicinity. At that stage, to quote from his evidence-in- chief:
"The knife came out of the cubby-hole. I cannot say whether it was taken out by
that hand which held my arm, or it just dropped out
of the cubby-hole, I cannot
say, but it came out."
He spoke to the complainant saying: "You
are the only
10/...
10.
person here, but there was someone holding me from behind
here." The complainant explained, so the appellant said, that he (the
complainant)
had heard the appellant screaming at the van, that he had run from
the shebeen to see what was happening and that he had noticed
a boy running away
from the van. The appellant did not believe him. The two of them searched in
vain for the knife on the ground
at the van. They returned to the shebeen to
join their drinking companions. They told the appellant that it was "this friend
of yours",
referring to the complainant, who had taken the knife. They then left
the shebeen without the complainant. However, as the van reversed
out of the
shebeen yard, the complainant called out to the appellant who stopped the van
and alighted from it. The complainant said
to him: "Are you really looking for
your knife? The knife which is lost?" When he affirmed that he was, the
complainant said that
for R5
11/...
11.
he would fetch the knife from the boy whom he had seen
running away with it. The appellant in fact gave him two R2 notes and a R10
note
- fourteen rand in all - in order to get the knife back. The complainant
thereupon climbed into the van and directed them to
a certain house in the same
road as Mary's shebeen. He claimed that the boy, whom he knew, was staying
there. He entered this house
but returned without the boy or the knife, saying
that he had been told that the boy was staying at a place at or near the main
road.
They drove there and stopped in it but the complainant was unable to
identify this other house. The appellant felt that he was being
led a dance. He
remonstrated with the complainant saying: "Because you took my money, I am
driving this car straight to the police
station". With that the complainant
jumped off the back of the van, saying that he would make further enquiries and
meet them at
the house to which he had
12/...
12.
first taken them. They drove off without him. They next came
upon him in the street where the shooting incident took place.
This story about the loss of the knife is, I must say, in many respects one
of surpassing weirdness. Not surprisingly, it did not
stand up to
cross-examination and does not bear scrutiny.
The appellant said that when he felt the hand grab him from behind, he
wrenched his hand free and, as one would expect, turned round
to see who was
therël But before he looked back he saw the complainant standing in front
of the van. ("And as I turned, even
before looking at the back, I then saw
complainant in front of the vehicle".) This sequence of events, i.e., seeing the
complainant
before he looked back, was confirmed by him
13/...
13. more than once in his evidence. He was emphatic that
at that time there was no one else near the van. He was at a loss to explain
how
the complainant could have released him and reached the position in front of the
bonnet without his having seen this movement.
It seems in any event strange
that, if the complainant was the person who laid hold of him, he (the
complainant) would have gone
to the front of the vehicle and stood there. At one
stage the appellant contradicted himself by saying that he never looked back
after seeing the complainant in front of the van. ("There was then no necessity
to look back, because I saw this person in front
of me, and I then questioned
him".) He confronted the complainant because he suspected that he was the person
who had thus held his
hand. He did not believe the complainant's explanation
that he had seen a young boy running from the van. When he discovered that
the
knife was missing he
14/...
14.
suspected that the complainant had taken it and told him so.
("I said, 'I suspect that it is you'"). Yet, instead of insisting on
searching
him before he had any opportunity of concealing the knife or of disposing of it,
the two of them looked for the knife on
the ground. When pressed to explain why
he did not search him, the appellant said that he was not in possession of a
search warrant
and that in any event - for reasons not revealed and difficult to
imagine - he was no longer suspicious of the complainant and accepted
his
assertion that he had not taken the knife. He did not believe the story that the
complainant had seen a young boy run from the
van. He was nevertheless prepared
to pay the complainant more than he had asked in order to retrieve the knife and
trace the boy.
Finally, at a stage when the appellant had run out of patience
and had threatened to take complainant to the police station, the
appellant
permits
15/...
15. him to alight from the van with a view to meeting him
at the house where the search for this elusive boy had started.
The evidence of the appellant on this aspect of the case is plainly
unconvincing: in f act so untrustworthy that it cannot be accepted
as true. One
must add, though, that the complainant confirms that the appellant said that he
had lost his knife, that they at a certain
stage all searched for it and that he
did accuse the complainant of having taken it. The complainant, . however,
denies that he ever
left the group at the shebeen during the time that the
appellant was at his van.
Returning to the scene where the shooting took place, and having discounted
the evidence of the
16/...
16.
complainant, the relevant evidence of' Khumalo and the
appellant dealing with this chapter of the narrative is to be examined.
I start with the evidence of the appellant. He said that as they approached a
Kombi from behind, he saw the complainant and another
person standing at the
back of it. One of his passengers in the van said that he should stop.
(Apparently this was not the appellant's
intention.) Having stopped, this same
person said: "Don't go near that kombi. Those people are hatching some crooked
plan" and added
that he had noticed earlier in the evening a knife in the sock
of the complainant similar to the one the appellant had lost. The
appellant
switched off the engine of his van. When he restarted it, the complainant ran
and stood in front of it. This caused him
to stop the van again. The complainant
came
17/...
17. to the open window at the driver's seat. He put his
hand through the window space and tried to remove the ignition key saying:
"Take
out the money, you dog. If you don't, I'm going to kill you today". At this
stage the hand of the complainant was holding the
right wrist of the appellant
against the door frame. Because, as they struggled, the complainant was unable
to pull the appellant's
arm out through the open window, he (the complainant)
put his head into the cabin and tried to butt the appellant's head with his.
The
appellant managed to pull the complainant's arm inside with a view to pinning it
by turning up the window. His left hand, however,
could not reach the window
handle. Initially appellant's companions seated next to him did not assist him
in any way. The appellant
feared that the other person, whom he had seen at the
Kombi, would come to the assistance of the complainant. He asked the man
seated
18/...
18. next to him to unbutton the holster of his revolver
which was on his left hip. This having been done, he drew the revolver from
the
holster with his left hand. He held the revolver in front of the complainant and
said: "You see, you'll get injured". As he thrust
the fire-arm forward, the
complainant withdrew his head. At that stage, so the appellant said, the
complainant did not believe it
was a real fire-arm. Apparently to convince him
of this and in order to frighten him, he fired a shot. In his own words he
described
what happened thus:
"As he j erked his head backwards, I then wanted to frighten him so that he
would see that this thing was a firearm, and it was then
that there was a little
space after his head pulled backwards. He then let go of the grip on my arm, and
at that stage I think I
pulled the trigger ... (intervention)
COURT
I'm sorry - at this stage you thought you pulled the trigger of the
firearm? — Yes, I pulled the trigger with the intention
of shooting
through that space which was after his head moved backwards
19/...
19.
- there was a space there to shoot to the air.
MR ROBERTS
Through the window - the open window? — Yes. But in
that movement I saw his head moving forwards and backwards again."
He repeated that the complainant had drawn back and released his hold on his
arm before he fired the shot through the window into
what he described as an
"open space." He fired the shot in order to f righten the complainant whom he
thought was about to take a
knife from his sock. He did not see that the bullet
had struck the complainant. He believed that he had run away. At this point one
of the passengers said: "Drive away, they are starting the Kombi there, we are
going to die, drive away." He did so.
Under cross-examination the appellant said that after they parted company and
before meeting again at the Kombi, the complainant was
in no way aggressive
towards
20/...
20.
him. In fact it was he (the appellant) who was annoyed with
the complainant. His explanation for the bullet striking the complainant
when
the revolver was not aimed at him, was therefore that, although the complainant
had drawn back and released his hold of him
he came forward again at the
critical moment when the shot was fired. ("I think when I tried to frighten him,
jerking backwards,
and when he let go of the grip on me, I think he went
forward.")
The evidence of the appellant, to which I have just referred, bristles with
improbabilities of which the following are examples. Why
should his passengers
tell him to stop the van and then immediately tell him to proceed because "these
people are hatching some crooked
plan"? One wonders where this third adult
appeared from, bearing in mind that Khumalo was conveying school girls
21/...
21 . in his van and there is no suggestion that Khumalo
alighted from the Kombi. Why should the passenger tell the appellant that
some
nefarious plan was being worked out when the complainant, who had shown no signs
of aggression, was seen talking to another
person at the back of a Kombi,
assuming the presence of this other person? For what reason did the appellant,
suspecting that these
two persons were up to no good, decide to turn off the
engine of his van? What, one may also ask, made him restart without any further
action on anyone's part? Finally, it seems passing strange that the appellant
was unable to trace any of his passëngers to support
his story when he was
faced with a very serious criminal charge.
The evidence of Khumalo covers
some, but not all, of the same ground. He said that he was driving his Kombi car
in a street in the
township that evening. The
22/...
22.
passengers in his vehicle were all school girls. He was
hailed by the complainant, who was his friend. He stopped his vehicle. The
complainant came to its left side and started speaking with him. At this stage
the Isuzu van arrived. It stopped on the left hand
side of the Kombi facing in
the same direction, more or less in the middle of the street and about in line
with the Kombi. Although
it was dark, the street was well lit. Khumalo was able
to see that the driver of the van wore spectacles. With the engine of the
van
still running, its driver (the appellant), quite politely, called the
complainant saying that he wished to speak to him. The
complainant went over to
the open window at the driver's seat. He leant against the door "and placed his
arms on the window sill".
He was leaning forward with his head just outside the
cabin of the van. They were conversing but he could not hear what was being
said. After a short
23/...
23. while he saw the head of the complainant go into the
cabin of the van. His impressión was that it had been pulled inside.
He
then heard the shot ring out. He ducked down thinking that he might be in
danger. When he looked up again he saw the van driving
off. He noticed the
complainant lying injured in the road and went to his aid.
The fact that Khumalo' s evidence is contradicted in many respects by the
complainant cannot, of course, in the circumstances detract
from its quality. It
reads to my mind convincingly. Counsel for the appellant could not point to any
inherent improbabilities in
it. The only criticism proferred was that it was
somewhat unlikely that from where Khumalo sat in his Kombi he could have seen
what
he claimed to have observed. But he said that the street was well lit
and
24/...
24.
that he looked through the open side door of his Kombi, which
must have been more or less in line with the van and only a short distance
from
it. Cross-examination did not indicate that Khumalo was not a reliable witness.
(Incidentally he was not asked about the alleged
presence of another person
standing near the Kombi.) He did infer that the complainant's head appeared to
have been "pulled" into
the van but conceded that he could be mistaken in this
regard. What he actually said was: "I noticed that he went inside ás
if
someone was pulling from inside" and "I think that someone might have pulled him
in the manner he went in". He also said more
than once that as the head of the
complainant went inside the van, the shot went off.
25/...
25.
Thus, if one weighs up the evidence of these two witnesses,
there are to my mind sound reasons for accepting Khumalo's where their
evidence
differs. The appellant, who has been shown to be an untruthful witness on a
collateral issue in this case, gives, as I have
indicated, a most improbable
account of the events about which Khumalo also testified. The evidence of the
latter, on the other hand,
appears to me to be satisfactory and in my view no
cogent reasons for its rejection exist.
Thus, on an acceptance of the evidence of Khumalo, read with that of the
appellant which stands alone, the following picture emerges.
26/...
26.
The complainant was standing at the Kombi talking to Khumalo
when the van arrived. There was no other adult present and it must have
been
apparent that the passengers in the Kombi were school children. The appellant
called the complainant over to the van. The complainant,
on arrival, tried to
grab hold of the ignition key and said: "Take out the money, you dog. If you
don't, I'm going to kill you today."
At that stage the complainant had hold of
the appellant's wrist and was forcing his arm against the window frame.
Thereupon, as has
already been stated, the complainant thrust his head forward
in an attempt to butt the appellant. The latter unsuccessfully tried
to close
the window and in due course managed to take a hold of the revolver in his left
hand. The complainant drew back, apparently
on seeing the revolver. This action
created a space at the window into which the appellant
27/...
27. decided to shoot in order to frighten the complainant.
However, as the shot went off, the complainant moved forward again into
its line
of fire. Apart from the inferences to be drawn from this evidence, the appellant
stated as a matter of fact that he had
no intention of killing the
complainant.
The critical question is whether the evidence of the appellant on events
immediately preceding, and at the time of, the firing of
the shot can be
rejected as false. In deciding this question the following considerations are
important:
(a) Khumalo said that the appellant called the complainant across to speak to
him in a polite and respectful manner. Though the appellant
said that at that
stage he was annoyed with the complainant, the manner in which he summoned him
does not point to anger on appellant's
part or to an intention to kill him on
his arrival at the van.
28/...
28.
(b) If that were his intention, it is unlikely that it would have been preceded
by the scuffle and some conversation, which Khumalo
confirms took place.
(c) It may be said that it is improbable that the complainant, having drawn back
when the fire-arm was produced, would have again
thrust his head forward and
position it at or inside the window. Soberly viewed this is so. But unexpected
and irrational action
is often the hallmark of inebriety.
(d) My conclusion, despite the assertions of the appellant implying the
contrary, is that at the time the appellant fired the shot
he did not think that
his life was in imminent danger, nor was it. He was involved in a scuffle with a
young intoxicated person (the
appellant referred to him as a "boy") , who was
grappling with him bare-handed. He had not produced a weapon or made any move to
do so. The appellant was sober. (He only had two pints of beer to drink that
evening.) In such circumstances it is likely that he
would have fired a warning
shot rather than decide to kill the "boy".
(e) One must guard against attaching undue weight to the false evidence given by
the appellant even in relation to what took place
when the two of them met in
the presence of Khumalo "because experience shows that a weak but innocent man
will sometimes, when appearances
29/...
29.
are against him, take refuge in an invented story, because he does not think
that the truth alone will be sufficient to carry conviction.
" (Quoted f rom f
ootnote 61 on page 326 of an article by Mr Justice Nicholas contributed to "Fiat
Justitia : Essays, in Memory of
Oliver Deneys Schreiner".) See too, in reference
to untruthful evidence of an accused person,
S v Mtsweni
1985 (1) S.A.
590
(AA) 593 I - 594 D. If the appellant was unaware of the fact that accidental
or negligent conduct causing injury - in this case severe
injury - does not
attract
criminal
liability, the possibility of embellishment is
increased.
The crucial consideration is thus whether
the
statement by the appellant that he did not
intend to
kill the complainant, supported by his evidence
pertinently
relating to this issue, is so far-fetched
that it cannot reasonably possibly
be true. (Of.
S v
Sephuti
1985 (1 ) S.A. 9(AA) 12 F - H, the
facts of
which in certain respects closely resemble those in
this case.)
Despite grave misgiving about the honesty
of the appellant generally (which
this judgment, I
30/...
30.
suspect, adequately reflects) I am, for the reasons
enumerated above, unable to conclude beyond reasonable doubt that the shot was
fired with the direct intention of killing the complainant.
As to
dolus eventualis
, if one assumes - as one must - that the
settled intention was
not
to shoot the appellant, it cannot be said with
the necessary degree of certainty that in the heat of the moment the thought
that
the complainant might be accidentally shot entered appellant's mind and
that he reconciled himself to this possible consequence.
In the circumstances it is unnecessary to consider whether the appellant
acted in self-defence, or
bona fide
thought that his conduct was lawful.
With reference to
sec 258
read with
sec 256
of the Criminal
31/...
31 . Procedure Act No 51 of 1977, it also follows from
this conclusion that no lesser competent verdict ought to be substituted.
The appeal is allowed and the conviction and sentence are set aside.
M E KUMLEBEN JUDGE OF APPEAL
BOTHA JA)
F H GROSSKOPF JA) - Agree