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[1992] ZASCA 3
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S v George (552/90) [1992] ZASCA 3 (27 February 1992)
CASE NO. 552/90
/ccc
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
In the matter between
VICTOR GEORGE
APPELLANT
and
THE STATE
RESPONDENT
CORAM
:
NESTADT,
NIENABER JJA et HARMS AJA
DATE HEARD
: 25 NOVEMBER
1991
DATE DELIVERED
: 27 FEBRUARY 1992
JUDGMENT
NESTADT, JA
:
Appellant was convicted of murder
by VERMOOTEN AJ sitting with assessors in the Witwatersrand Local
Division. Extenuating circumstances
having been found, he was
sentenced to seven years imprisonment. With the
2/
2
leave of this Court, he appeals
against his conviction.
It was not in dispute that
appellant killed deceased by shooting him once with a 7,65 mm
semi-automatic pistol in the head. The incident
took place on the
afternoon of Friday 23 December 1989 at a place called Devland in the
district of Johannesburg. Appellant and deceased
were co-employees of
a security company which had its administrative offices in the area.
Having finished work for the day, they
were relaxing at a spot in the
veld' some 300 metres from the company's premises. Also present were
a number of their colleagues,
including Rodney Johnston, Charles
Sombur and Terence Fredericks. There were between eight and ten of
them. Liquor was being consumed.
An argument developed between Sombur
and deceased on the one hand and Fredericks on the other. It led to
Sombur hitting Fredericks.
Fredericks moved towards where
3/
3. appellant was. They were
friends. They left the scene. At some stage thereafter they met
Denzil Buitendacht. Buitendacht also worked
for the company. His
position was that of site officer. As such he was a person in
authority. Appellant told Buitendacht of the attack
on Fredericks.
Buitendacht and appellant returned to where the group was. Appellant
now had the firearm referrred to in his possession.
At the scene
Buidendacht remonstrated with Sombur. He struck Sombur in the face.
Deceased and appellant were standing in the vicinity.
Deceased was
unarmed. Appellant pointed the firearm at deceased. A shot was fired.
These, in brief, were the circumstances in which
deceased was killed.
The State case was that the
shooting was a deliberate one. It rested primarily on the evidence of
Johnston. His description of what
happened was the
4/
4.
following:
"Dit is reg, toe het Denzil
en Sombur nou 'n squealery, toe baklei hulle nou daar. En toe almal
se aandag daar is, toe ek weer
omdraai om te kyk, toe sien ek net die
beskuldigde lig die vuurwapen op en hy wys dit na die oorledene en
toe sê die oorlede
net vir hom 'as jy my wil skiet dan moet jy
my skiet' en toe gaan die skoot af... Op die stadium wat die skoot
afgegaan het wat
was die oorlede besig om te doen?
Die
oorlede het net stilgestaan en vir
hom gekyk.
HOF
: Het hy nie gestap na die beskuldigde
toe
nie? Nee, hy het net stilgestaan."
They were about three to four
metres away from each
other. There was no argument
between them. But just
before the shooting appellant had
said that "Denzil
Buitendacht and Sombur were his
friends, now what was he
supposed to do now".
Appellant's version was different.
He
explained that after he met
Buitendacht and reported to
him that Fredericks had been
assaulted and as he and
Buitendacht returned to the scene,
Buitendacht took out
5/
5.
a firearm and said to him "Hou
hierso". Appellant
took the firearm. It was in this
way that he came into
possession of it. Buitendacht
proceeded to hit Sombur.
Just after this, whilst
Buitendacht was still involved
in ascertaining why Fredericks had
been assaulted,
deceased advanced towards
appellant. At this stage
appellant had the firearm in his
hand. What appellant
says then happened is summarised
by VERMOOTEN AJ as
follows:
"Deceased...said 'gee my
daardie fokken vuurwapen'. Accused back pedalled, deceased repeated
what he had just said and at that
stage, accused says, he was very
afraid of the deceased whom he knew to be an aggressive person. The
accused lifted the gun up and
pointed it towards the deceased. The
accused says he gripped the gun with finger on trigger. He did not
know it was loaded. The shot
went off..."
He never cocked the firearm. He
had pointed it at
deceased "to scare him away".
He never aimed it. He
had "no reason (and) no
intention to kill (deceased) or
6/
6. even to hurt him". He
denied that deceased said what Johnston alleged, viz, "As jy my
wil skiet, dan moet jy skiet".
Clearly the trial court was faced
with a credibility issue. This it resolved in favour of the State.
Johnston was regarded as honest
and reliable. Appellant's evidence,
on the other hand, caused difficulty. Based on what he said under
cross-examination, it was regarded
as amounting to an admission that,
in circumstances in which he was not entitled to shoot, he pointed
the gun at deceased and deliberately
pulled the trigger; but, because
he allegedly. did not know the firearm was loaded, he assumed that
firing the gun would have no
effect. This defence was rejected. It
was found that "at best for the accused" he "did
foresee the possibility that
the pistol might be loaded and that
death could result if he fired and that he acted recklessly whether
such
7/
7.
result ensued or not".
Appellant's conviction of
murder on the basis of
dolus
eventualis
followed.
In my opinion the trial court's
approach
cannot be supported. The first
problem is to ascertain
exactly what appellant's version
was. It is true that
his evidence is confusing. At one
stage he said:
"I
could
say because
I
didn't
know that it was
loaded and
I
could say my grip was tight and at that
stage
I
was
tensed up and that is why my grip was so tight on the gun and it went
off.
I
do admit
that
I
shot,
I
pulled the
trigger,
right, but then
I
didn't
know that it
was loaded because...
But
you are telling the court that you thought
at the time the firearm was not
loaded?
That is correct.
And that is why you didn't think
pulling the
trigger would have any effect?
Any effect,
that is correct...
COURT
: Just a minute, Mr
George, if you did
not know that the gun was loaded
why did you
press the trigger? It was, it is
just the
way
I
gripped it.
No, no, you
have told us in evidence in chief that you pressed the trigger, not
anything else, you pressed it, not gripped it, you
pressed it. Why
did you press the trigger if you didn't think the gun was loaded? --
I
8/
8.
don't know how
to explain it." These are the passages relied on by the judge a
quo
for
his conclusion that appellant, knowing that the firearm might be
loaded, deliberately pulled the trigger.
I
do
not think that
anything flows from his statement that
"I
shot,
I
pulled
the trigger". As a fact he did. Otherwise deceased would not
have been killed. But
non constat
that he acted deliberately. The further passages do, however, give
rise to difficulty. Here appellant does seem to concede a deliberate
pulling of the trigger. One would have thought that if it was never
his intention to fire, it would be irrelevant to him whether
the
firearm was loaded or not. Yet he seems to refer to this aspect as a
justification for thinking that intentionally pulling the
trigger
would have no effect. Reading his evidence in context, however,
I
am not satisfied that this is truly so.
There are two
9/
9.
aspects to
appellants' evidence. The one is his state of mind concerning whether
the firearm was loaded. Here his evidence is clear,
viz, that he did
not know this; indeed that he thought that the firearm was not
loaded. The other is whether his firing of the pistol
was deliberate.
It seems to me that his evidence in this latter regard must be
evaluated on the basis that his assertion that he
took the firearm to
be unloaded is true. Proceeding on this basis,
I
do not think that, properly interpreted,
the passages quoted necessarily constitute an admission that he
intended to shoot deceased.
To have deliberately pulled the trigger
thinking that the firearm was not loaded would have been a futile,
senseless act on appellant's
part. So appellant could not, when
referring to "pulling the trigger" or "press the
trigger" have intended to
admit that these actions were
performed deliberately, let
10/
10.
alone with knowledge that he was
acting wrongfully.
It seems to me that what he
probably meant was that
because he believed the firearm to
be harmless
(seeing it was not loaded), he
thought nothing of
gripping it (including the
trigger) tightly. This is
supported by what he said in
evidence-in-chief.
Consider the following extracts:
"I
didn't
even know the thing was loaded, that is why
I
just lifted it up and pointed at him,
like
to scare him away...(H)e was advancing
fast
towards me and the gun was up and
I
don't
know what was going through my mind exactly at
that
moment because
I
was
just all tensed up and with that
I
gripped
the gun very tight,
that is with my finger
on the trigger."
So appellant did not, as the
learned trial judge
evidently thought, admit to having
(wilfully) pulled or
pressed
the trigger. His defence was, and
I
think
remained, that the shooting was an
involuntary,
accidental one.
The next question is: Was this
explanation
11/
11.
reasonably
possibly true? Unfortunately the trial court, by reason of its
incorrect assessment of what appellant was saying, did not
properly
consider this question. So we have to do the best we can on the
record.
I
am by
no means impressed by appellant's evidence. It may be said to be
improbable that deceased would confront appellant by demanding
that
he hand over the firearm when appellant constituted an obvious danger
to him. Obversely, if appellant really thought it was
not loaded, why
not comply with deceased's demand? There is the evidence of the
ballistics expert who examined the firearm in question.
Testifying on
behalf of the State, he said that the trigger had a "effens
swaarder snellerdruk" (of about 2,9 kilograms
in the cocked
position) than the normal firearm. This detracts from the firing
being accidental. And appellant did not when shortly
12/
12.
afterwards he reported what had
happened to his superior, a Mr Bartmann, allege that it was an
accident. Appellant seems to exaggerate
what liquor he had drank and
its effect on him. There are other criticisms of appellant's evidence
to which the trial court refers.
The defence relied on is an
inherently subjective one which must be approached with considerable
circumspection if not sceptism.
On the other hand, there are
considerations which, if they do not support appellant's version,
make its rejection problematical. Evidence
that it was appellant who
fetched and loaded the firearm and then cocked it would have been
strongly indicative of an intention to
shoot. Indeed, this was the
case that the State sought to present. But there was no evidence to
gainsay appellant's denial that he
acted in this way (or that he knew
that the firearm was loaded). Moreover, why should appellant want to
shoot deceased?
13/
13. It is improbable that this was
because at one stage that afternoon deceased also attacked
Fredericks. The main culprit in this
regard was Sombur. At the time
of the shooting deceased was, on the State case, standing innocently
by. Buitendacht was surely a
vital witness. He would have been able
to say whether he handed the firearm to appellant; whether it was he
who loaded it and made
it ready to fire; and where this took place.
He might also have been able to relate what words passed between
deceased and appellant
just prior to the shooting. Buitendacht was,
in other words, a key figure in the whole incident. With
justification, the trial judge
found that "(i)t is clear that he
did take part to a great extent in the happenings of that fatal
afternoon..." Yet, despite
appearing on the State's list of
witnesses and being available (he was at court), Buitendacht was not
called by the State. The. reason
given by the prosecutor to the trial
court was
14/
14.
that
his evidence "did not support either of the parties". In my
view, an inference adverse to the State should, in the
circumstances,
have been drawn. The matter goes further.
I
am inclined to agree with counsel for
appellant that, not having been called by the State, the trial judge
was, in terms of
sec 186
of the
Criminal Procedure Act, 51 of 1977
,
bound to have regarded Buitendacht as "essential to the just
decision of the case" and himself to have called him. VERMOOTEN
AJ considered whether he should do so.
I
am
not impressed by his reasons for deciding not to. Be this as it may,
the result was that the State case rested substantially on
the
evidence of Johnston and Sombur. But Sombur does not take the State
case further. He neither heard nor saw anything of consequence.
So
one is, in substance, left with the evidence of Johnston.
I
do not propose to deal with
15/
15.
the
detailed attack that was made on it by counsel for appellant. Suffice
it to say that on a reading of Johnston's evidence, there
are good
reasons for suspecting his credibility. And,
I
should add, his description of the events
is not irreconcilable with appellant's evidence that he was handed
the firearm by Buitendacht
in close proximity to where the shooting,
shortly afterwards, took place. Finally, there is the evidence of
Fredericks. He testified
for appellant.
I
do not think that what he says is of much
moment. But he does tend to refute the suggestion that it was
appellant who went to fetch
the firearm.
I
do
not say that appellant's evidence is to be believed. But in my
opinion it cannot be concluded that it was proved to be false. This
being so, his conviction of murder cannot stand; it is reasonably
possible that the shooting was, as he alleged, an
16/
16.
accident.
It does not, however, follow that he was entitled to be acquitted. In
shooting deceased, he clearly acted negligently. He
ought,
particularly having regard to his experience with firearms, to have
foreseen that the pistol might be loaded, that its safety
catch
possibly disengaged and the mechanism cocked; in other words that if
the trigger was pulled, a bullet would be discharged.
Appellant in
his evidence admits as much. He concedes that bullets are sometimes
left in the magazine of firearms handed in by
employees
(all of whom carry guns) of the company at its
offices.
Yet, having received the pistol from Buitendacht, he failed to check
that it was safe. This was, he admitted, "a mistake
that
I
made". Appellant was in control of the
situation. He ought reasonably to have been more careful. Instead,
without taking any
precautions, he pointed the pistol at the head of
17/
17.
deceased
who was but a few metres away. At the same time he, in a tense frame
of mind, gripped the trigger which ex
hypothesi
did not require much pressure to activate it. These are actions for
which he was responsible and which were the cause of deceased's
death. As
I
have
said, appellant conceded that he was not entitled to shoot. Appellant
is guilty and must be convicted of culpable homicide.
It remains to
decide on an appropriate sentence. Punishing an accused for having
been negligent is often a difficult matter (compare
the discussion of
this matter in
Hunt
:
South African Criminal Law and Procedure, vol
II,
2nd ed, 423-425). There are cases, however,
where bearing in mind the deterrent and retributive purposes of
punishment, the sanctity
of human life requires to be emphasised (
R
vs Barnardo
1960(3) SA 552(A) at 557
D). More especially
18/
18.
is this so
where the killing is caused by what is referred to in
R
vs Karg
1961(1) SA 231(A) at 234 G as
"the unfortunate tendency in our country to reach for firearms
under the slightest provocation".
The present matter falls
broadly within this category of case.
I
have, accordingly, come to the conclusion
that a
moderate period of imprisonment,
part of which should be
suspended, must be
imposed. Appellant (aged 24 at the time) has no previous convictions.
But, unlike the accused in
S vs Malik
1987((2) SA 813(A),
I
consider
his degree of negligence to have been high. And the
circumstances
of the shooting in
casu
are very different
f rom those in that case
(in which a fine and suspended
period of
imprisonment were imposed).
The following order is made: (1)
The appeal succeeds to this extent that the
conviction and sentence for murder
are set
aside.
19/
19. (2) There is substituted:
A conviction of culpable
homicide, and,
A sentence of four years
imprisonment, two of which are suspended for three years on
condition that appellant is not convicted of
an offence involving an
assault on a person with a firearm which is committed during the
period of suspension and in respect whereof
an unsuspended sentence
of imprisonment is imposed.
NESTADT, JA
NIENABER, JA
CONCURS
IN THE SUPREME COURT OF SOUTH
AFRICA (APPELLATE DIVISION)
CASE NO:552/90
In the matter of:
VICTOR GEORGE
APPELLANT
and
THE STATE
RESPONDENT
Coram
: NESTADT, NIENABER
JJA et HARMS AJA
Date heard: 25 November 1991 Date
delivered: 27 February 1992
2 JUDGMENT
HARMS
AJA
:
I
had
the
privilege
of
reading
my
Brother
Nestadt
JA's
judgment
but
I
am in
respectful
disagreement
with
the
conclusion
reached.
The
appeal
should,
in my view, be
dismissed
for the reasons
that
follow.
It can,
for purposes of argument, be assumed that the court
a
quo
had erred in accepting the evidence of the witness Johnston and in
refusing to call the witness Buitendacht. The matter must therefore
be approached on the basis that the issue is whether the State had,
in the light of the defence's evidence, discharged its onus.
3 The
objective facts are that the appellant did aim the weapon at the
deceased's head, that he did pull the trigger, that to do so
required
a fair degree of force and that the shot killed the deceased. It is a
reasonable assumption that a person intends the natural
consequences
of his acts and the facts stated lead to the prima facie conclusion
that the appellant intentionally killed the deceased.
The question is
then whether there is an explanation which can be reasonably possibly
be true without being speculative.
In his
plea explanation in terms of
s119
as well as
s115
of the
Criminal
Procedure Act, 1977
, the appellant alleged that he had no intention
to kill the deceased, and that "die vuurwapen onverwags afgegaan
het sonder
dat ek die sneller getrek het [en] die sneller was baie
fyn en ek vermoed dat my greep op die pistool onbewustelik verstewig
het."
The reason why he had pointed the firearm at the deceased
was that the deceased was approaching and threatening him and wished
to
disarm him. He feared that the deceased would,
4
after
having
taken
the
weapon,
shoot
him
and
Buitendacht.
(That
statement,
by
the
way,
makes
nonsense
of his
later
evidence
that
he
believed
that
the
gun
was
unloaded.)
Although
there
is
some
suggestion
of
self-defence
in
the
explanation,
no
reliance
was
placed
cm
self-defence
by
his
counsel
in
either
the
court
a
quo
or
this
Court. The
defence
put
up
was
one
of an
involuntary
pulling
of
the
trigger.
The
court
a
quo
rejected
that
defence,
not, as
was
submitted,
because
it
failed
to
consider
the
defence,
but
because
it
came to
the
conclusion
that,
having
regard
to
the
appellant's
replies
during
cross-examination,
the
defence
was
not
borne
out
by
his
own
evidence.
The
factual
basis
of
the
defence
viz
that
"die
sneller
was
baie
fyn"
was
shown
by
expert
evidence
to be
false.
To
determine
whether
the court
a
quo
was
correct,
I
wish
to
quote
extensively
from
the
appellant's
evidence:
"It
is the time when me and Denzil approached
5
the scene
he took out the gun from the back and he said "hou hierso"."
A few
questions later:
"Yes?
Now we are going back to the part where
he
already
hit
Sombur
and
was
moving
to
Mahapi
and
at
that
stage
the
deceased
approached
me
because
I
was
holding
the
gun
in
my
hand
and
I
was
holding
it in an
awkward way.
Wait a
bit, what, holding it in an awkward way?
Yes, in an awkward way,
I
mean
I
was not
holding
it
as you
usually
hold
a
gun,
I
was just, l
ike
he
just gave
me
I
took
it and
I
was
just
holding
it
like
this.
If
I
could
explain
it?
Is that
gun unloaded, Mr Orderly, make sure please. Now show us how you held
the gun. The witness shows the four fingers are below
the trigger
guard and the thumb is above the barrel and that is
the right
hand. Yes? And it was lowered down my
side
at
the
time
he gave me
because
I
was just
standing
and
seeing
him
approach
and
Denzil
is
busy with this
other
guy
and
because
at that
stage
everybody
was
like
it is
drunk
and
swearing
and
squealing
and
things
like
that
going
on and he
approached
me.
Who? The
deceased.
Why?
Because,
I
don't
know
because
I
found
out split
seconds afterwards when he said "gee daardie donnerse fokken
vuurwapen hier", so he wants to come and take the
gun from me
because he saw Denzil give me the gun."
"Yes,
I
back
pedalled
and
at
that
time,
I
don't
6
know
how it was
that
Denzil
came to my
right
side
because
then
he
said
"gee
daardie
fokken
gun"
vir
die tweede keer, for
the
second
time
he
said
it
again
and he, at that
stage
I
was very
afraid
of him.
Actually
I
was
frightened
because
he is
built
big
...
You say at
that stage you were very afraid of
him? That is correct.
Why at
that stage? Because he wants to take
the
gun and
I
thought
to
myself
here
is
the
fighting
going
on and he
is
going
to
grab
this
gun from me
which
my site
officer
gave me.
I
can't
just give him the gun and he was
angry
and
he was, well
they had more to
drink
than
I
can
remember. And
I
know him
actually
as
a
very
aggressive
person,
as a
friend
and
as an
aggressive
person
and
he was
coming
in
a very
aggressive
manner
towards
me
and
he
wanted
to take this gun.
That
is
the
way he
approached
with
that
aggressive
manner
of
his.
And
he is
drunk
also
and
I
don't
trust
him
when he
had
too many
shots
in. And at that
stage
I
did
something
that
I
still
might
regret,
I
lifted
the
firearm
up,
I
lifted
it up
and
I
pointed
it
towards
him.
What
I
was
thinking
at
that
stage
...
Wait a
bit, what about the safety catch?
Nothing.
Pardon?
It
was
just in
my
hand
and
I
put it
in
my
grip.
I
didn't
take
this,
I
didn't
cock
it,
I
didn't
pull it
over
or
put
the
safety
catch
off,
nothing,
because
Denzil
gave
me
the
gun
this
way
and
I
was just
keeping
it
that
way.
I
didn't
even
know
the
thing
was
loaded,
that
is why
I
just
lifted
it up
and
pointed
it
at
him,
like
to
scare
him
away.
Yes? And
he didn't scare away, that is the
stage
when
he
was
advancing
fast
now, he was
advancing
fast
towards me
and
the
gun
was up and
I
don't
know
what
was
going
through
my
mind
exactly
at
that
moment
because
I
was
just
all
tensed
up and
with that
I
gripped
the
gun
very
tight,
that
is
with
my
finger
on
7
the
trigger.
What about
your finger? My finger was inside
the
trigger.
On
the
trigger?
That
is
correct
because
I
didn't
know
the
gun
was
loaded,
that
is
one
thing
I
never
knew,
and
well
at
that
stage
the
shot
went off."
That was
his evidence in chief. Once again, there is a suggestion of
self-defence but what he really was saying was that he had his
finger
on the trigger because he did not know the gun was loaded; he implied
that he had pulled the trigger by "tensing up".
That does
not mean that he had acted involuntarily. It means that he had acted
because of tension caused by fear. His evidence during
cross-examination confirms this interpretation:
"
MR
VAN DER
MERWE
: Well, did you think at the time
that you
were entitled to shoot the deceased? No.
So when
the deceased approached you you at no
stage thought that he was
such a threat to you that
you had to shoot him? Just repeat that
question?
When
the
deceased
approached
you
you at no
stage
thought
that he
was
such
a
threat
to you
that you had
to
shoot
him?
The
way
I
was
thinking
at that
8
stage,
I
mean
like
I
said
just now when he is
drunk
he is
aggressive
and
which
you
have
just
showed
me that he
is
about
my same
weight
and so on,
so
I
wouldn't
say
that but
I
know
he was very
aggressive
and
I
was
afraid
of him.
But
now
I
want
you to answer my
question.
When the
deceased
approached
you
you were not that
frightened
of
him
that
you
thought
I
must
shoot
the
man
because
he is
threatening
me.
I
did
point
the
gun at
him.
Yes,
but
I
want
to know
did
you
think
you must
shoot
him
because
he
was
threatening
you? No,
I
didn't
think so.
So the
fact that he was approaching you, as far as you are concerned, is
incidental or there is no relation to the fact that the shot
went
off, the two
are
not
connected?
I
could
say
because
I
didn't
know
that it
was
loaded
and
I
could
say my grip
was
tight
and at
that
stage
I
was
tensed
up and that is why my grip
was
so
tight
on
the
gun
and
it went off.
I
do
admit
that
I
shot,
I
pulled
the
trigger,
right,
but then
I
didn't
know
that
it was
loaded
because
...
COURT
:
Just a moment, you admit
that
the gun was
loaded?
That is right.
MR VAN
DER
MERWE
: But you are telling the court
that
you thought at the time that the firearm was not
loaded?
That is correct.
And that
is why you didn't think pulling the
trigger
would have any effect? Any effect, that is
correct.
Why was it
necessary for you to aim the firearm
at the
deceased? You aimed the firearm, why?
Usually
if somebody
does
point
a
firearm
at you,
I
mean it
is
obvious
you
would,
it
would
scare you away,
wouldn't
it, so
that
is
just
what
I
thought
at the
time when
I
pointed
him
with
the
firearm."
9
"
COURT
:
Just a minute, Mr George, if you did not know that the gun was loaded
why did you press the trigger?
It was, it is just
the
way
I
gripped
it.
No,
no, you
have
told
us in
evidence
in
chief
that you
pressed
the
trigger,
not
anything
else,
you
pressed
it, not
gripped
it,
you
pressed
it. Why did
you
press
the
trigger
if you
didn't
think
the
gun
was
loaded?
I
don't
know
how
to
explain
it."
The
passages
quoted
were not
taken
in
isolation.
They
represent
the
totality
of
the
appellant's
evidence
on
this
issue.
He did not
rely
on
self-defence.
I
agree
with the
court
a
guo
that
what
the
appellant
was
saying
was
that
he
had
pulled the
trigger
deliberately
but
under
the
belief
that the weapon was not
loaded.
This
evidence
as to his
belief
was, in
the
light
of
his
plea
explanation
and
the
last
answer
quoted,
false.
That
leaves
one with his
evidence
that,
because
he
was
tense,
he
pulled
the
trigger.
But,
what was
the
cause
of
his
tension?
It was
the
alleged
threat
by the
deceased
- a
threat
which,
in his own eyes,. did
not
lead
to
the
shooting
of
the
deceased.
In
short,
the
10
appellant's
explanation
was
false
and
was
correctly
rejected
by
the
trial
court.
I
would,
therefore,
dismiss
the
appeal.
HARMS AJA