About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1990
>>
[1990] ZASCA 117
|
|
S v Martinus (188/89) [1990] ZASCA 117; [1990] 2 All SA 644 (A) [1990] 2 All SA 644 (A) (28 September 1990)
CG CASE NUMBER: 188/89
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In die matter between:
CHRISTOPHER JAN ALFRED
MARTINUS
Appellant
and
THE STATE
Respondent
CORAM
: HOEXTER, STEYN et EKSTEEN JJA
HEARDON: 14 SEPTEMBER
1990
DELIVERED ON
: 28 SEPTEMBER 1990
JUDGMENT STEYN JA
2
At about 12h45 on Sunday, January 5, 1986, Dr Graham Cameron Monteith (the
complainant) was seriously wounded in the face by a rubber
bullet fired from a
12-bore shotgun by the appellant. The "bullet" was in the form of a ball
approximately 15 mm in diameter. It
struck complainant's left cheek just above
the left upper lip and just next to the nose, penetrated the skin and
sub-cutaneous muscles,
breached the thin plate of bone constituting the anterior
wall of the left maxillary sinus and lodged against the back of that sinus
at a
depth of about 6 cms. The track of the projectile from entry to lodgement was
"fairly horizontal" and its direction was "from
the front". The complainant must
consequently have been facing the barrel of the gun when the shot was fired.
(The complainant was
of the opinion that the track of the bullet was downwards
but the aforementioned description is that of Dr Thomas Ford, the surgeon
who
operated on complainant and removed the
3
projectile.)
At the time of the incident complainant was proceeding
downstream in the front seat of a double (or two-seater) canoe on the Crocodile
River (the river) in the direction of the Hartebeespoortdam and appellant was
standing on the left bank of the river, on the property
registered in the name
of Lauralee Butgereit who was then his girl-friend and is now his wife.
(Hereinafter she will be referred
to as his wife. ) The back seat of the canoe
was occupied by John Drennan, a resident engineer at Reef Construction,
Elandsfontein.
It was his first trip on the river. He was an inexperienced
canoeist and was being shown by complainant, a medical practitioner at
the
Hillbrow Hospital and Springbok canoeist, how to handle a canoe on a river.
This unfortunate and disturbing incident was the culmination of a period of
mounting tension between canoeists travelling down the
river and appellant,
his
4
wife and other owners or occupiers of riparian properties. The undisputed
evidence given at the trial of appellant, which will be
referred to later in
this judgment, reveals the following background to the events of that fateful
Sunday. Appellant and his wife
are, and have at all relevant times been, engaged
in the computer business, he being a computer design engineer. Theirs is a very
stressful occupation. They needed relaxation, and after a long search eventually
found a "piece of land" where they could enjoy peace
and solitude. It is the
aforementioned property, which they bought and caused to be registered in her
name as aforementioned, on
October 18, 1983. According to the title deed the
eastern boundary of the property extends to the middle of the iriver. This is
also
the case with the western boundary of the property immediately opposite
theirs. The owner thereof is Donald Richard Barnard. Appellant
and his wife are
active bird-watchers and wildlife photographers.
5
The river is important to them because it attracts much wildlife. The
property is 8,56 ha in extent, is long and narrow, lying lengthwise
at
right-angles to the river, and very mountainous. Only the area close to the
river is suitable for building purposes. They accordingly
built a house thereon,
about 25 metres from the normal level of the river. Graham Frederick Meiring is
the owner of a near-by riparian
property, and has been living close to the river
since approximately September 1985.
The portion of the river flowing past the
aforementioned properties is frequented by large numbers of canoeists,
especially during
weekends in summer. There are obstacles, and shallow or rocky
stretches which are unnavigable, either normally or at times of low
water, where
canoes have to be removed from the river and carried along the river-banks. At
such portages the vegetation is unavoidably
disturbed and even damaged. Many
persons also repeatedly trespassed upon the riparian
6
properties in that area in order to reach the river with their canoes and to
picnic on the river-banks or to reach a public road after
removing their canoes
from the river. Wildlife and nesting waterfowl were disturbed in this process
and the environment polluted
by litter and debris, such as bottles, plastic
bags, pieces of fishing line and tackle, paper, etc, discarded by certain
canoeists
and their companions on the river or along its banks. Broken canoes
were also from time to time discarded on the river-banks and
stranded or lost
canoeists continually trespassed upon riverside properties requesting help or
asking for directions. This understandably
distressed and annoyed appellant, his
wife and other owners or occupiers of the properties affected. Signs were
consequently erected
by some of them, including appellant, warning canoeists and
others against such conduct. The terms of certain of those signs were
indicative
of the degree of distress and
7
indignation so engendered. An example thereof is
afforded by a photograph
(exhibit B7) of one such sign
(not erected by appellant), the Afrikaans version thereof
being:
"Oortreder (in underlined red letters) jy gaan jou .... sien (in black
letters)."
The word omitted is the well-known
three-letter folk
expression denoting the human derriere. The signs
were,
however, mostly ignored and even vandalised. On a number
of
occasions appellant and Meiring personally complained
to canoeists about
their behaviour but to no avail, often
merely eliciting abuse and insults.
Complaints to the
police were likewise unavailing because appellant
and
Meiring were unable to identify the offenders. Meiring
went to
Johannesburg and personally complained to the
chairman of the Transvaal Canoe Union, unfortunately also
to no avail.
Appellant sought to establish his and his
8
wife's rights in respect of the river. From the title deed he ascertained
that their property extended to the mid-line of the river
as aforementioned, and
found, after further researches, that this was in accordance with sec 31 (bis) 6
(a) of the Land Survey Act,
no 9 of 1927. He also studied the Reader's Digest
Family Book of the Law in South Africa, the Water Act, the Criminal Procedure
Act,
no 51 of 1977 (the Act) and the Transvaal Nature Conservation Ordinances;
had informal discussions with the South African Police
at Randburg; and had an
interview with a Mr Minnaar, an official in the legal section of the Department
of Water Affairs. His wife
consulted her attorney for the same purpose.
Appellant came to the conclusion that canoeists had no rights in respect of the
river,
that they were guilty of trespass when navigating on the river as
aforesaid and that thê owners or occupiers of the riparian
land affected
had the right in terms of sec 42 (3) of the Act to arrest such
9
trespassers without a warrant. He likewise came to the conclusion that he was
empowered by sec 49 (1) of the Act to use force to effect
such an arrest should
the arrestee resist or flee. During approximately the middle of 1985 appellant,
his wife and Meiring commenced
joint consultations on ways and means of dealing
effectively with the aforesaid problems. At about that time Meiring also sought
advice from his legal advisers and appellant was authorised by his wife and
Barnard to keep trespassers off their respective properties.
His mandate
consequently included the whole stretch of river between their respective
river-banks. Appellant was also a member of
a small shooting club in the
vicinity of his wife's property. He was experienced in the handling of firearms,
including shotguns.
On Saturday, November 23, 1985, appellant adopted a new
tactic in an endeavour to keep canoeists off the last-mentioned stretch of
the
river. He erected
10
a sign warning canoeists off that stretch, and some way downstream therefrom
he put up an electrified wire across the river. He had
a shotgun with him,
loaded with blank cartridges, and awaited the arrival of canoeists coming from
upstream. At about 14h00 two did
arrive in the persons of messrs Craig and
Morrison. They managed to lift the wire (albeit whilst being shocked in the
process) and
passed beneath it. Appellant asked them whether they had not seen
the sign. They retorted "what sign?" (Craig had in fact seen, affixed
to a
low-level bridge, a sign to the effect that any canoeists proceeding beyond that
point would be shot at.) Appellant replied
that they should go back and read it.
They did not do so but proceeded on their way downstream. Appellant thereupon
fired a shot
with the shotgun. (Appellant later maintained that it was a warning
shot, in the air. They alleged that the shot had been directed
at Morrison.) The
two canoeists carried on, however, and
11
disappeared from view. Appellant maintained his watch at the wire. At about
15h00-15h30 a further party of five canoeists, all in
single canoes, approached
the wire from upstream. Amongst them were Anthony Webstock and Colin Strime,
attorneys of Alberton and
Johannesburg respectively. Appellant hailed them, told
them that they were trespassing on private property and that they must go
back.
An argument ensued, Webstock and Strime maintaining that they had a right to be
on the river and that appellant had no right
to prevent them proceeding
downstream. Webstock pushed the wire from its left-side mooring with the prow of
his canoe. Appellant
fired a blank cartridge with the shotgun and told Webstock
he was arresting him "for breaking and entering" his property. (According
to
Webstock Appellant then aimed the shotgun at him but appellant maintained that
although the stock was at his shoulder, the barrel
pointed downwards to the
ground.) A further altercation, including threats of
12
charges and counter-charges, followed. The canoeists then proceeded
downstream. Appellant phoned Meiring who then joined him. They
met the canoeists
at their point of disembarkation and a further, and highly unpleasant, quarrel
followed. They all proceeded to
the Hartebeespoortdam police station where
complaints about pointing a firearm and trespass and malicious damage to
property were
made by the canoeists and appellant respectively. On the 28th
November 1985 detective-sergeant Meiring and appellant discussed the
events of
the 23rd November. Appellant maintained that he had been within his rights and
had acted lawfully. Sgt Meiring however
warned him against pointing a firearm at
persons and putting up electrified wires over the river, stating that it was
unlawful to
do so, and told him that that was also the opinion of the public
prosecutor at Brits.
Sometime thereafter appellant investigated the use of rubber bullets. He
testified that he was informed
13
by the arms dealer whom he consulted that such bullets were non-lethal, that
they could be dangerous at close ranges of 15 feet or
less but that they would
"probably cause no more than bruising" at greater distances. He then purchased a
number. He did not himself,
however, test their penetrating power nor did he
consult any experts on such ammunition. He only fired one such bullet as a test
at a bottle on the water but missed it, the bullet striking water beyond the
target.
Early on Sunday morning January 5, 1986, at about 07h00-07h30
appellant was woken by a noise from upstream. On investigation he found
a group
of canoeists disturbing a large troop of baboons. The baboons were in a tree on
the opposite bank of the river and the canoeists
were shouting and throwing
stones at them. Appellant had his shotgun with him; it was loaded with bird
shot. The conduct of the canoeists
annoyed him intensely and he told them "in no
uncertain terms to
14
leave immediately", which they then apparently did. He then decided that he
"would make some efforts to further persuade canoeists
from traversing the
properties there, either on land or where the river flows over". He then took 'n
wooden sign which read "No canoeists.
Trespassers will be harassed, shot at and
prosecuted" and attached it to a string which he strung across the river above
"paddle
reach" so that it could not be knocked down by canoeists on the water.
This sign was apparently erected near the south-eastern corner
of his wife's
property. At about 12h30 he took up position at a hammock strung between two
trees near the river-bank between 80 and
100 metres downstream from the
aforesaid sign. He again had the shotgun with him but it was now loaded with a
rubber buílet
and he had several other such cartridges on him. So
accoutred and positioned he awaited the coming of further canoeists from
upstream.
The Crocodile River was about to become the
Aqua Dolorosa
of
the Transvaal. The
15
first canoeists to arrive were the complainant and Drennan as described
above. The aforementioned shooting followed soon thereafter.
As a result of
the incidents of November 23, 1985 and the shooting of complainant on 5 January
1986 appellant was brought to trial
in the regional court at Brits on three
counts, to wit,
Count 1:
attempted murder of Morrison on 23 November
1985 by shooting at him with a shotgun with
intent to murder him;
Count 2:
contravention of sec 39 (1) (i) of the
Arms and
Ammunition Act, no 75 of 1969, by
unlawfully
and wilfully pointing a
firearm (shotgun) at
Webstock on 23 November 1985;
Count 3:
attempted murder of the
complainant by shooting
him with a shotgun on 5 January 1986 with
intent to murder him.
Appellant
pleaded not guilty to all three
16
charges and made a statement in terms of sec 115 of the
Act to the
following effect:
(i) In relation to all three charges he acted lawfully
in terms of sec 42 (3) of the Act. (ii) In relation to count 3 he acted
lawfully in terms of sec 49 (1) of the Act and did not fire
at the complainant.
He merely fired a warning shot.
Appellant was acquitted on counts 1 and 2,
the court having found in respect of count 1 that it had not been proved beyond
a reasonable
doubt that áppellant had fired at Morrison and concerning
count 2,that although it accepted the State evidence to the effect
that
appellant had in fact pointed the shotgun at Webstock and rejected the
appellant's evidence that he had not done so, it had
nevertheless not been
proved beyond a reasonable doubt that appellant had the necessary mens rea. The
magistrate's finding on this
count is in the following terms:
17
"It is evident in the present case that in view of the accused's actions prior
to the attempted arrest in regard to count 2, it is
his attempts to ascertain
what his rights are, the putting up of signboards and his conduct at the time of
the incident, that accused
bona fide and honestly was under the impression that
he was entitled to arrest the complainant. The court is therefore of the opinion
that although ex post facto the attempted arrest seems to be unlawful, the State
did not prove that at the time the accused had the
necessary mens rea to commit
the offence of pointing a
firearm."
The regional magistrate's
reference to the
unlawfulness of the attempted arrest was based on his
correct finding that
he was bound by the order of
Eloff DJP in the matter of
TRANSVAAL CANOE
UNION AND
ANOTHER v BUTGEREIT AND ANOTHER
despite the fact that
it
was then on appeal to this Court. That order was made on
June 26, 1986,
declaring that the Transvaal Canoe
Union, its members and the second
applicant (Dr Monteith)
were entitled as of right in so far as the
respondents in
that matter (appellant and his wife) were concerned, to
18
canoe on the Crocodile River and interdicting the respondents from
interfering with their rights. [That judgment is now reported in
1986 (4) SA 207
(T).] Eloff DJP's judgment was confirmed on appeal by this Court on November 30,
1987, in
BUTGEREIT AND ANOTHER v TRANSVAAL CANOE UNION AND ANOTHER
1988
(1) SA 769
(A). The effect of those judgments is that appellant did not have the
right to arrest Morrison, Webstock, complainant or prennan
as they were at all
relevant times members of a Canoe Club affiliated to the Transvaal Canoe Union.
And the judgment of this Court
has finally settled the matter as far as
appellant and his wife are concerned.
In respect of the third count it is
common cause that appellant accosted complainant and Drennan when they
approached him, that he
asked them their names and addresses, and that
complainant responded. (Complainant testif ied that he did give his name and
address.
Appellant, however, alleged that the
19
complainant merely mumbled inaudibly.) It is also common cause that appellant
commanded them to stop and turn round, that they did
so and came back upstream,
that he told them that he was arresting them for trespass, that they must "come
ashore" in order to be
apprehended, and that complainant refused to do so. Their
respective versions differed as to what then happened. It is unneccesary
to
analyse those differences in detail. Suffice it to say that appellant said that
he fired a warning shot as they were paddling
away downstream, that he did so
after warning them that he would use force to prevent them from escaping from
custody, that he aimed
at the canoe just below the water-line, slightly behind
where the complainant was sitting, and that he fired whilst the latter was
looking back at him. He suggested that the complainant was hit either because
the rubber bullet ricocheted off something in the water
or because the recoil of
the shot unexpectedly caused the barrel of
20
the gun to jump upward. Appellant's wife supported his version but said that
he aimed at the water about 80% of the distance between
him and the canoe. The
complainant and Drennan however alleged that their canoe was stationary in the
water at an angle of about
45° to where the appellant was standing, that
they were looking at him, that he aimed directly at the complainant's head and
that appellant fired at him just after he had refused to come to the river-bank.
They were then approximately 20 metres from appellant.
Complainant however
conceded that the appellant could have been aiming at a lower part of his body
than the head.
Detective warrant-officer A H du Plessis of the South African
Police also testified on behalf of the State. He is a member of the
forensic
department of the South African Criminal Bureau and is in the ballistic section
thereof. He had received specialist training,
inter alia in the examination of
firearms and ammunition
21
and in the identification of cartridge cases, toolmarks, and bullets which
had been fired. He conducted tests to establish the penetrating
power of the
type of rubber bullet used by appellant, using the carcass of a freshly
slaughtered pig for that purpose. He fired at
the cheek of the carcass and
obtained a penetration of 6 cms at a distance of 23 m. Taking into account the
differences between the
skin and facial bony structure of a pig and a human
being he came to the conclusion that the complainant must have been not less
than 10 m and not more than 20 m from the appellant when shot and wounded. He
also discounted the possibility of the course of the
bullet having been
influenced by a recoil of the gun and voiced the opinion that there is no recoil
until the bullet has left the
barrel. This opinion was accepted by the
magistrate, but it appears to be in conflict with Newton's third law of motion
which states
the principle of "an egual and opposite reaction". (Thus as the
22
projectile is accelerated towards the muzzle by the force
of the explosion
of the propellant, the gun is
simultaneously pushed backwards by an equal but opposite
force generated by that explosion.) Du Plessis also
discounted the
possibility of a ricochet, stating that a
rubber bullet of the type here used
would lose too much
momentum in the process to have penetrated to the
depth
it did when it struck the complainant. He also fired
test shots on the water at the place from where appellant
had shot on
January 5, 1986 but, by virtue of the angle
of fire, found that the bullets
did not ricochet.
The magistrate accepted the evidence of the
complainant and Drennan and rejected that of appellant
and his wife, and
did so inter alia in these terms:
(a) "All the witnesses were found to be intelligent and refined persons who gave
their evidence in a calm and placid manner. Although
there are some
contradictions of a non-essential nature in both the versions of the State and
the Defence, it can mostly be attributed
to a faulty memory or recollection of
the sequence
23
of the events or of. what precisely was said or done by the persons present
there at the incident.
The Court was, however, more
favourably impressed by the demeanour of the State witnesses. They did not give
the impression that they
were trying to exaggerate. In fact, they were more
disposed to make concessions in their evidence than the accused. ... (b) In the
light of the fact that accused advertised on a signboard that canoeists will be
shot, that he was armed with a shot-gun, loaded to
his mind with a non-lethal
rubber bullet, and the complainant's refusal to obey his order, it seems highly
probable that he would
have resorted to the firing of a shot at the
complainant.
With the prevailing findings in mind, the Court is of opinion that it can be
accepted that accused aimed the firearm in the direction
of the complainant when
he fired the shot and that the defence version in this regard is rejected as
improbable and false where it
is in conflict with that of the State
witnesses."
The magistrate did, however, find that
"it cannot be
ruled out as a possibility that accused did not aim at
the face of the complainant, but slightly lower, at the
larger area of the body which would not have been easy
for the complainant to spot due to his position in the
24
water and [that] because of faulty aim which happened on the previous
occasion when the accused tried out the bullets, the bullet
struck the
complainant in the face instead".
The magistrate further found that by virtue
of the aforementioned warnings given him by sgt Meiring, appellant in fact knew
that he
had no right to arrest the complainant, but that even if he "was
justified in arresting the complainant, he, under the circumstances
went beyond
the scope of sec 49 (1) of the Act by using force in excess of what would
reasonably be necessary to overcome resistance
or prevent the complainant from
fleeing ..." The magistrate however came to the further conclusion that it had
not been proved that
appellant intended to kill the complainant or that he had
foreseen the possibility that he might be killed if hit by such a bullet,
and
therefore found appellant not guilty of attempted murder but guilty of assault
with intent to do
25
grievous bodily harm. The magistrate sentenced the appellant to a fine of
R800,00 or 6 months' imprisonment, conditionally suspended
for 4
years.
Appellant was dissatisfied with this result and appealed to the
Transvaal Provincial Division against his conviction and sentence.
At the trial
he had been represented by an advocate. However, the appellant argued the appeal
in person. He achieved partial success.
His conviction was altered to one of
common assault and his sentence reduced to a fine of R200,00 or two months'
imprisonment.
During argument before the Transvaal Provincial Division
appellant attacked the magistrate's findings on the credibility of the
witnesses.
In delivering the judgment of that court Schabort J however found
that there were no grounds for interfering with those findings.
After guoting
the remarks of the magistrate set out in quotation (b) above, the learned
judge
26
proceeded as follows:
"This passage must be read in conjunction with the magistrate's finding that the
bullet did not ricochet. This finding and the associatéd
decision to
accept the state's version as to where the appellant was aiming, was based on
the magistrate's observations of demeanour
and impressions of reliability as a
matter of credibility. No misdirection of fact bý the magistrate in
arriving at his relevant
conclusion has been brought to our attention and I am
not at all convinced that he was wrong in his decision.
Monteith's evidence when challenged about his statement that the appellant had
aimed at his person, was in my opinion impressive
and convincing.
Drennan too, who was paddling the canoe with Monteith, was adamant about his
observations and conviction at the time of the incident
that the gun was aimed
at Monteith. As far as I am able to determine, neither of these witnesses was
shaken in cross-examination
on this score. The magistrate obviously was not
impressed with the appellant's speculative theory after the event of a possible
ricocheting
and was justified in my opinion on a consideration of all the
evidence, including that of Warrant Officer Du Plessis, the ballistics
expert,
to hold that view. The confrontation between the appellant and Monteith was
extremely tense and a situation where the appellant
in his own words, finally
"was trying to get rid of" the recalcitrant canoeists. He had erected
a
27
wooden sign that morning with the words: 'No canoeists. Trespassers will be
harassed, shot at and prosecuted' and was waiting for
transgressors, gun at the
ready.
It is far from unlikely in these circumstances that the appellant would have
suited his action to his warning and would have resorted
to the ultimate measure
he had clearly contemplated when acquiring the rubber bullet cartridges and
making enquiries as to the effect
thereof on the human
body."
But the learned judge
nevertheless found that
the appellant did not have the requisite mens rea when he
fired the shot
at the complainant because it was clear
"that the appellant was at all
material times utterly
convinced in good faith of the correctness of
his
understanding of the legal position, namely, that
canoeing cm the
river by the complainants was unlawful"
and that he therefore also honestly
believed that he was
lawfully entitled to arrest them. The court however
rejected appellant's contention, based on sec 49 (1) of
the Act, that in
shooting complainant he used a degree of
force which was reasonably necessary to effect the
28
arrest, and his further contention that at worst for him
he had merely
been negligent in failing to aim with
sufficient care. The reasons for that
rejection appear
from the following passage in the judgment of Schabort
J:
"The second question with regard to section 49 is whether the appellant brought
his actions on a preponderance of probabilities under
the protection of
sub-section (1) thereof. The appellant's very attempt, unsuccessful as it was,
to resist the notion that he aimed
at Monteith, belies to my mind, any
suggestion that he did not appreciate that shooting at Monteith was unwarranted
in the circumstances
and unlawful as a means to prevent Monteith from
fleeing.
The magistrate's opinion in this regard was expressed in these
words:
'The Court is further of the
opinion
that even if accused was justified in
arresting the complainant,
he, under
the circumstances, went beyond the
scope of section 49 (1) of
the Act by
using force in excess of what would
reasonably be necessary to
overcome
resistance or prevent (Monteith) from
fleeing and he would
nevertheless
therefore be guilty of assault with
intent to do grievous
bodily harm.'
I agree with this passage, except as indicated
below.
The
appellant did not fire a warning shot. It
29
is reasonab'ly possible that a warning shot would in the circumstances have
induced Monteith to subject himself to arrest by the
appellant. More
pertinently, the appellant has not shown that Monteith was not likely to have
done so in the circumstances. It seems
most improbable that Monteith,
notwithstanding any possible bravado or belief in the lawfulness of his presence
on the river, would
have risked life and limb by attempting to paddle away, with
the ring of a warning shot in his ears, exposed and defenceless as he
and
Drennan were in the canoe."
The
reasons of the court below for nevertheless
allowing the appeal against the conviction and for
altering it as set out
earlier herein, appear from the
following passage in the judgment of Schabort
J:
"Finally, the magistrate accepted that the appellant did not aim at Monteith's
face, 'but slightly lower at the larger area of the
body which would ... not
have been easy for the complainant to spot due to his position in the water ...'
This finding was consonant
with Monteith's own concessions about the
possibilities in this connection. I am entirely satisfied that the appellant did
not intend
to cause Monteith serious bodily injury. He had been advised that
bullets of this kind "could probably cause no more than bruising"
at a range of
more than 15 feet.
30
This shot was fired at a distance of between 10 and 15 metres according to Du
Plessis. The appellant was extremely shocked and concerned
at the effect of his
shot and tried to assist Monteith to the best of his ability. This conduct was
clearly inconsistent with any
intention to cause serious bodily injury. The
conviction must, in my view be altered in these circumstances to one of common
assault
and an appropriate alteration must be made to the
sentence."
Despite the measure of success hê
had achieved in his appeal, the appellant was still dissatisfied. With leave of
the court
a quo he now appeals to this Court against his altered conviction and
sentence. He again argued the appeal in person.
In view of the decision of
this Court in
BUTGEREIT AND ANOTHER v TRANSVAAL CANOE UNION AND ANOTHER
,
supra, and bearing in mind the favourable finding of the court a quo that the
appellant honestly believed that complainant was trespassing
and that he
therefore had the right to arrest him, the only issue in the present appeal is
the question whether appellant
31
acted in accordance with the provisions of sec 49 (1) of the Act in shooting
complainant.
The first aspect here in issue is the factual one of whether or
not appellant aimed directly at the complainant when he fired the
shot.
Appellant argued that the magistrate erred in accepting the evidence of
complainant and Drennan in this respect; and that the
court below erred in not
interfering with that finding. There is no merit in this contention. I agree
with the afore-guoted remarks
of Schabort J. The learned judge's approach was
correct. There is no good reason to interfere therewith or with the magistrate's
finding. As long ago as April 5, 1948, Davis AJA reaffirmed the rule that an
appellate court will not interfere lightly with a trial
court's finding as to
the credibility of witnesses. The learned judge did so in this Court in
REX v
DHLUMAYO AND ANOTHER
1948 (2) SA 677
A. At pp 705-706 he set out a series of
numbered conclusions relating to the approach
32
of an appellate court to factual issues. Those relating
to findings on credibility are the following:
"3. The trial Judge has advantages - which the appellate court cannot have - in
seeing and hearing the witnesses and in being steeped
in the atmosphere of the
trial. Not only has he had the opportunity of observing their demeanour, but
also their appearance and whole
personality. This should never be
overlooked.
4. Consequently the appellate court is very reluctant to upset the findings of
the trial Judge.
5. The mere fact that the trial Judge has not commented on the demeanour of the
witnesses can hardly ever place the appeal court
in as good a position as he
was.
6. Even in drawing inferences the trial Judge may be in a better position than
the appellate court, in that he may be more able to
estimate what is probable or
improbable in relation to the particular people whom he has observed at the
trial....
8. Where there has been no misdirection on fact by the trial Judge, the
presumption is that his conclusion is correct; the appellate
court will only
reverse it where it is convinced that it is wrong.
9. In such a case, if the appellate court is merely left in doubt as to the
correctness of the conclusion, then it will uphold
it."
(The reference in para (8) to "the trial judge"
also
33
applies to a trial magistrate.)
The record reveals no misdirection or
mistake of fact by the magistrate in arriving at his conclusion that the
complainant and Drennan
were to be believed, and none were pointed out to us by
the appellant. That finding must consequently stand. The probabilities also
overwhelmingly favour the version of the complainant and Drennan. A particular
set of circumstances can have the effect of a two-edged
sword. That is the
position here. The background to the events of the 5th January 1986 as set out
earlier in this judgment, makes
it clear that on that day appellant honestly
believed that he could lawfully arrest the complainant and use permissible force
to
effect the arrest should circumstances so require. That redounded to
appellant's favour. But on the other hand, it also rendered
probable that he
actually intended the rubber bullet to strike and injure the complainant (albeit
only by bruising his torso) when
the latter
34
contumaciously (in appellant's opinion) refused to heed his order to come to
the river-bank. It establishes as a probability that
the appellant shot directly
at the complainant. This therefore operates in favour of the versions of
complainant and Drennan and
against that of the appellant. The location and
direction of the wound as described in the first paragraph of this judgment,
also
provides strong corroboration of the two canoeists' evidence that appellant
aimed and fired directly at the complainant whilst the
latter was facing him.
The possibility (or even probability) that the recoil of the gun caused the
bullet to strike higher than appellant
had intended, does not detract from the
fact that appellant intended to hurt complainant by shooting at him. And
appellant had no
reasonable grounds for believing that the hurt so inflicted
would not be serious. He had received only equivocal information regarding
the
penetrating power of the bullet in question, namely, that
35
it would "probably cause no more than bruising" at distances greater than 15
feet. On such indefinite information he could not have
been certain as to the
true position. The extent and gravity of bruising so caused at ranges greater
than 15 feet were also matters
uninvestigated by him. With his knowledge of
shotguns appellant should have entertained reservations as to the reliability of
information
to the effect that such bullets would do no more than bruise when
fired at the almost point-blank range of 16 feet. But he took no
steps to
determine the accuracy of the information so given to him. The power of such a
bullet is, as was so unfortunately demonstrated,
in fact much greater than the
aforesaid information indicated. By using it at such a fairly close range as he
did, appellant took
a quite unreasonable, and indeed an almost reckless,
chance.
I am also in agreement with the findings of the magistrate and of the
court a quo that for the reasons
36
set out in the quotations from their judgments appellant clearly exceeded the
bounds of force permitted by sec 49 (1) of the Act.
The mere fact that the
canoeists involved in the incidents of 23 November 1985 did not react to the
warning shots in the way appellant
intended that they should, did not mean that
the complainant would also have failed to react as desired to such a shot or
shots.
Such reactions depend upon the personalities of the individuals involved,
which can be almost infinitely varied. The disappointing
results achieved by
those previous warning shots consequently did not entitle appellant to dispense
with such a warning shot or shots
on 5 January 1986. But those previous results
may have, and probably did, induce him to dispense with a mere warning shot and
to
shoot directly at the complainant with the intention of hitting him.
The power conferred upon a private citizen to arrest without a warrant should
be exercised sparingly
37
and with great circumspection. The use of a firearm in an attempt to effect
such an arrest should be resorted to with even greater
caution. A private person
has usually received no instruction as to when and how to do sb and has usually
also not received the training
to enable him to resort to a firearm in a
disciplined manner. Although appellant was a member of a shooting club and had
experience
in the handling of firearms, there is no suggestion that he ever
received any instruction in the procedures of arrest and proper
methods of
effecting it. Sec 49 (1) of the Act provides as follows:
"49. Use of force in effecting arrest. - (1)
If any person authorized under this Act to arrest or to assist in arresting
another, attempts to arrest such person and such person
-
(a) resists the attempt and cannot be arrested without the use of force; or
(b) flees when it is clear that an attempt to arrest him is being made, or
resists such attempt and
flees,
the person so authorized may, in order to effect the arrest, use
such force
as may in the circumstances be reasonably necessary
to
38
overcome the resistance or to prevent the person concerned from fleeing." (My
underlining.)
The test whether the use of such force
has in any particular case been reasonably necessary, is an objective one. That
provides a
salutary safeguard against any unreasonable use of force in
attempting to effect an arrest. A private person contemplating the use
of force
in terms of this sub-sec should steadily bear in mind that, however bona fide he
may be in judging that he has the power
to do so and that the method envisaged
by him is a proper one, his conduct will be judged according to the objective
standard of
the reasonable man, and not by his own subjective estimation of the
position.
In appellant's case the position is as follows. Even if he had in
fact had the power to arrest the complainant (which he did not)
he clearly used
a quite unreasonable degree of force in attempting to effect the arrest. He
therefore acted unlawfully. His appeal
39
against his conviction consequently cannot succeed. That consequence
notwithstanding, I am in passing constrained to say that perhaps
the appellant
should reflect upon his good fortune in this matter. First, it was a matter of
pure luck that the shot fired by the
appellant at the complainant did not kill
the latter. Second, the appellant was also fortunate in achieving in the court
below the
degree of success which he did.
The appellant wisely did not
contend that the sentence as reduced by the court below was in any way
improper.
The appeal is dismissed.
M T STEYN
JA
CONCUR:
HOEXTER JA) EKSTEEN JA)