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[1993] ZASCA 62
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S v De Oliveira (668/91) [1993] ZASCA 62; [1993] 2 All SA 415 (A) (18 May 1993)
Case No: 668/91
N v H
ANTONIO SOUSA DE OLIVEIRA
Appellant
and
THE STATE
Respondent
SMALBERGER, JA -
REPORTABLE
Case No: 668/91
N v H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE
DIVISION
)
In the matter between
ANTONIO SOUSA DE
OLIVEIRA
Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, NIENABER, JJA,
et HARMS, AJA
HEARD
: 4 MAY 1993
DELIVERED
: 18 MAY 1993
J U D G M E N T
SMALBERGER, JA:
The appellant was convicted in the Witwatersrand Local Division by
STEGMANN, J, and two assessors of murder (count 1) and attempted
murder (counts
2 and 3). The convictions followed upon a shooting incident which occurred at
the appellant's
2
residence in Rewlatch, Johannesburg, on 25 September 1988. The appellant
was sentenced to 12 years' imprisonment on the murder count,
and to 8 years'
imprisonment on each of the other counts. The sentences were ordered to run
concurrently, resulting in an effective
sentence of 12 years' imprisonment. The
appellant's subsequent appeal to the Full Bench of the Transvaal Provincial
Division was
dismissed. With the requisite leave he now appeals to this Court
against his convictions and sentences on all three counts.
From the evidence the following picture emerges. The appellant was born
in Madeira in 1956 of Portuguese-speaking parents. His family
emigrated to South
Africa in 1969. The appellant is illiterate. His home language is Portuguese and
he speaks only a limited amount
of English. From about 1974 the appellant and a
certain Mrs Cordeiro lived together as husband and wife, initially in Boksburg
and
later in
3
Rewlatch. At the time of the shooting incident the appellant was in
partnership with three of his brothers. Between them they owned
and ran a number
of small shops or businesses. The appellant assisted in the operation of the
partnership business at Langlaagte.
The complainant on count 2 was Mr Vusi Nyandeni ("Vusi"). He commenced
employment with the appellant in Boksburg in 1981. He was then
still a teenager.
When later that same year the appellant and Mrs Cordeiro moved to Rewlatch, Vusi
accompanied them and took up residence
in the servant's quarters at the back of
the house. He continued to live there, and to be employed by the appellant,
until the shooting
incident. In March 1988 one Tandi Adams moved in with Vusi
and lived with him in his quarters for the duration of his stay there.
Although
the relationship between the appellant and Vusi was essentially that of employer
and employee, it had developed in the course
of time
4
into a deeper, more friendly and trusting relationship, a state of
affairs that persisted until the shooting incident.
The house
occupied by the appellant at the time was situated in an area described by
various witnesses, including certain policemen,
as a dangerous one. There had
been a number of prior incidents of robbery, housebreaking and theft committed
against inhabitants
and properties in the neighbourhood. The house stood on a
corner plot and was bounded on its western side by Impala Road and on its
southern side by Southern Klipriviersberg Road. In a fence adjoining the latter
road, at the eastern corner of the property, there
was a gate. This gate opened
onto a cement driveway which sloped gently downwards towards the garage. The
driveway was four to five
metres wide and lay between the house and a pre-cast
concrete fence which formed the eastern boundary. The area in
5
question was a relatively confined one. There was a wall which connected
the far (north-eastern) corner of the house with the garage.
In the wall was a
steel door which gave access to the back yard where Vusi's room was located. The
route normally taken by Vusi to
his room would have been via the driveway and
the steel door. On the eastern side of the house there were two windows
overlooking
the driveway. The first of these
(when proceeding down the driveway towards the garage) was that of the
spare bedroom; the second was that of
the bedroom shared by the appellant and Mrs Cordeiro.
The window of this room opened towards the left (i.e.
towards the garage). Both windows were burglar-proofed
(as indeed was the rest of the house).
I come now to the events of Sunday 25
September 1988. On that morning the appellant, Mrs
Cordeiro and Vusi, as they were accustomed to do, left
for the shop at Langlaagte at about 05:00. They
6
carried on business until closing time at 13:00. Before leaving the shop
the appellant sent for a bottle of whisky at a nearby shebeen.
He and Vusi then
proceeded to partake of some drinks. Thereafter the three of them left in the
appellant's vehicle. They took the
day's takings with them. At Vusi's request he
was dropped in Hillbrow. The appellant and Mrs Cordeiro proceeded to their home.
There
they had a meal, and eventually both went to lie down and sleep. Meanwhile
Vusi had made his way to Alexandra to the house of his
brother, Mr Paul Peter
Nyandeni ("the deceased"). There they were joined by Mr Isaac Nzimande ("Isaac")
and Mr Jochonia Modisaitsele
("Jochonia" - the complainant on count 3). The four
of them went to Daveyton in Isaac's car to visit a brother of Vusi and the
deceased.
On their way back to Alexandra, Vusi asked Isaac to take him to the
appellant's house. En route they stopped at a cafe where Vusi
purchased
7
cigarettes and a large bottle of Coca-Cola. On arrival at the appellant's
house Vusi invited his companions to his room to share the
Coca-Cola he had
bought. They entered the premises through the gate and proceeded along the
driveway to the steel door. This was
just after 17:00.
What has been set out thus far is either common cause or reflects factual
findings made by the trial Court which are not in dispute
for the purposes of
the present appeal. With regard to the events that followed, particularly those
surrounding the actual shooting,
there was considerable divergence between the
State and defence versions.
According to the State witnesses (Vusi, Isaac and Jochonia) they walked
down the driveway quite openly, past the two bedroom windows,
to the steel door.
It was locked. Vusi knocked on the door in the hope that Tandi Adams might be
there to open it. His
8
knock elicited no response from anyone. He then proceeded to the front of
the house where he rang the door bell. There was no response
there either. He
walked back towards the steel door. While he was doing so Mrs Cordeiro appeared
at her bedroom window. She asked
Vusi what he wanted. He requested that the
steel door be opened. The appellant then appeared at the same window. He too
enquired
of Vusi what he wanted. Vusi explained that he was trying to gain
entrance to his room. The appellant, noting Vusi's companions,
told Vusi that he
had previously warned him not to bring strangers onto the premises and that if
it happened again he would shoot
him. The appellant then left the window. He
reappeared shortly thereafter armed with a pistol, and without uttering a word
he commenced
firing at Vusi and his companions.
The defence did not dispute that on the afternoon in question the
appellant fired at least six
9
shots through his bedroom window. It is common cause that the deceased
died of a gunshot wound of the chest when one of the bullets
fired by the
appellant struck him in the back and penetrated his chest cavity. Another bullet
struck Vusi on the top of his head
penetrating his scalp. A third bullet
narrowly missed Jochonia, tearing a sleeve of the shirt he was wearing. It was
disputed, however,
that the shots were fired in the circumstances deposed to by
the State witnesses. The appellant did not testify at the trial. The
defence
version of the events rests upon the evidence of Mrs Cordeiro and a statement
made by the appellant to the police relating
to the shooting which was proved as
part of the State's case.
Mrs Cordeiro's evidence was to the following effect. She was awoken from
her sleep sometime after 17:00 by the barking of their two
dogs. She went to the
window of her bedroom and peeped out but did not see
10
anything or anybody. She then proceeded to the adjoining spare bedroom.
On nearing the window of that room she observed through the
net curtain three or
four black men outside close to the window. They were in the driveway. She did
not recognise any of them. She
took fright at seeing them and ran back to her
bedroom where she shouted to the appellant: "Antonio, Antonio, Antonio, there
are
unknown black men outside". At the same time she heard glass break. She
described herself at that stage as being "highly excited
and nervous". The
appellant woke up (what she termed "an abrupt awakening"). He sat on the edge of
the bed and said to her: "Be calm,
be calm, I will see what is going on and I
will sort this out". His pistol was lying on his bedside table. The appellant
then got
up and approached the window. She herself went to the adjoining
bedroom, but before she reached the window she heard shots being
fired. She then
started screaming.
11
(On her evidence there would have been no opportunity for any discourse
between the appellant and Vusi before the shooting started.)
The
statement subsequently made by the appellant to the police reads as
follows:
"On Sunday 1988/09/25 at about half past three
I went to sleep. At about twenty past five my wife called me and said there
were about four or five blacks in the driveway. My wife
started to scream. I
told my wife not to worry. I would sort it out. I then took my pistol from the
table next to my bed and I fired
six or seven shots and these blacks ran away. I
saw afterward that two black males were lying on the ground. I was not thinking
about
anything at the time as I was half asleep when I shot these shots. I was
not under the influence of liquor at the time I fired these
shots."
I do not propose to
deal with the events that
followed on the shooting as they are not relevant to the question of the
appellant's guilt or innocence. Suffice it to say that after
the shooting the
deceased's body was lying at the south-eastern corner of
12
the house; Vusi was lying in the middle of the driveway where he had
fallen after being shot. It is also worthy of mention that when
the appellant
realised that Vusi had been shot he immediately proceeded to render assistance
to him.
After carefully analysing the evidence the trial Court concluded that the
evidence of Mrs Cordeiro could reasonably possibly be true,
and that it could
not accept as the truth the evidence of Vusi, Isaac and Jochonia that the
appellant had recognised Vusi and had
spoken to him before firing directly at
him and the others. It is not necessary to traverse the trial Court's reasons
for arriving
at its conclusions. Suffice it to say that they are eminently sound
and persuasive. Apart from anything else, it is extremely unlikely,
given the
nature of their relationship, that the appellant would have fired at Vusi
knowing that it was him.
13
It follows that the correctness of the appellant's convictions must be
judged in the light of Mrs Cordeiro's evidence and his own
statement. The main
issue revolves around the appellant's state of mind at the time of the shooting.
It is therefore also pertinent
to consider what was put on his behalf under
cross-examination, and the effect of his failure to give evidence.
The impression gained from the appellant's plea explanation at the
commencement of the trial, and what was initially put to certain
of the State
witnesses under cross-examination, was that that he sought to justify his
conduct on the basis that he had acted in
defence of his life and/or property
i.e. private defence (or as it is still commonly, but less accurately, referred
to, self-defence)
. (See as to the use of the term "private defence", and the
need to do so,
Burchell and Hunt
: South African Criminal Law and
Procedure :
14
Vol I : p 322;
Lawsa
: Vol 6 : p 36;
Snyman
:
Criminal
Law : 2nd Ed : p 97.) It subsequently transpired
that
the defence was rather one of putative private
defence
("putatiewe noodweer"). From a juristic point of
view
the difference between these two defences
is
significant. A person who acts in private defence
acts
lawfully, provided his conduct satisfies
the
requirements laid down for such a defence and does
not
exceed its limits. The test for private defence
is
objective - would a reasonable man in the position
of
the accused have acted in the same way (
S v
Ntuli
1975(1) SA 429 (A) at 436 E). In putative
private
defence it is not lawfulness that is in
issue
but culpability ("skuld"). If an accused
honestly
believes his life or property to be in danger,
but
objectively viewed they are not, the defensive steps
he
takes cannot constitute private defence. If in
those
circumstances he kills someone his conduct is
unlawful.
15
His erroneous belief that his life or property was in danger may well
(depending upon the precise circumstances) exclude
dolus
in which case
liability for the person's death based on intention will also be excluded; at
worst for him he can then be convicted
of culpable homicide.
On appeal the unlawfulness of the appellant's conduct was not in issue.
Accordingly the only issue was whether the State had proved
beyond all
reasonable doubt that the appellant subjectively had the necessary intent to
commit the crimes of which he was convicted,
in other words, that he did not
entertain an honest belief that he was entitled to act in private defence. Any
argument based on
the reasonableness of the appellant's belief and conduct was
not persisted in, and rightly so.
The appellant did not testify as to his state of mind at the time of the
shooting. Whether or not he
16
held an honest belief that he was entitled to act as he did must
therefore be determined with regard to such other evidence as reflects
upon his
state of mind, and inferential reasoning.
One can commence with the premise that no reasonable man in the
circumstances in which the appellant found himself would have believed
that his
life or property was in imminent danger. As appears from Mrs Cordeiro's evidence
(and the appellant's statement), all that
she told the appellant was that there
were a number of black men outside in the driveway. According to Mrs Cordeiro,
when she reported
this to the appellant she heard glass break. The appellant
makes no mention of glass breaking in his statement. The only glass that
broke
on the premises that evening was the Coca-Cola bottle, presumably when it was
dropped. At what precise stage this occurred
is not clear bearing in mind that
material aspects of
17
Vusi's version of the events were not accepted. What is significant is
that any noise that may have came from breaking glass came
from outside. It was
not suggested, and could not have been thought, that the noise of breaking glass
came from either of the bedroom
windows (or any other window of the house for
that matter). In other words, there was nothing to suggest that attempts were
being
made at a forcible entry. At the trial it was put to Vusi and his
companions that they had preceded along the driveway not openly,
but stealthily,
so as to disguise their presence on the property, a suggestion they denied.
There was no evidence to prove that they
did so. Even if they had, it would not
be relevant as the appellant (and accordingly the reasonable man in his
position) was not
aware of the manner in which they approached.
The reasonable man in the appellant's position would therefore only have
known that there were
18
strangers on the premises. He would also have been aware of the fact that
the area in question was a dangerous one where robberies
and housebreaking were
not uncommon. There was, however, no indication that any attack on the house or
its occupants had commenced
or was imminent. The appellant was in a situation of
comparative safety in his bedroom, in a secure and burglar-proofed house and
armed with a pistol. In those circumstances it is inconceivable that a
reasonable man could have believed that he was entitled to
fire at or in the
direction of the persons outside in defence of his life or property (and that
without even a warning shot).
One would normally impute to a person in the position of the appellant
(in the absence of any evidence by such person as to his state
of mind at the
relevant time) a state of mind akin to that of a reasonable man. In a given
case, however, proved facts
19
or circumstances may exist which would justify a different conclusion. In
the present instance there are none. This is so even if
it is permissible to
have regard, when dealing with the convictions, to the evidence led on the
appellant's behalf in mitigation
of sentence (a matter on which I refrain from
expressing any view), which led the learned trial Judge to hold that the
appellant
has "a marked dullness of intellect" and "has not been blessed with
more than a comparatively low level of intelligence". Even from
someone with the
appellant's limited intellectual capacity one would
prima facie
not
expect a reaction different from that of the reasonable man, having regard to
the particular circumstances of the present matter.
In the circumstances there was
prima facie
proof that the
appellant could not have entertained an honest belief that he was entitled to
act in private defence. The appellant
failed to testify as to his
20
state of mind and to refute this
prima facie
proof.
His silence must weigh heavily against him. As
was said by Schreiner J in
R v Mohr
1944 T P D 105
at
108:
" [I]t is not easy for a Court to come to a conclusion favourable to the
accused as to his state of mind unless he has himself given
evidence on the
subject."
(See too
R v Deetlefs
1953(1) SA 418 (A) at 422 G;
S
v
-
Kola
1966(4) SA 322 (A) at 327 F;
S v Theron
1968(4) SA
61 (T) at 63 D - H.) The appellant's failure to
testify therefore resulted in the
prima facie
proof
that he did not entertain an honest belief that he was
entitled to act in private defence becoming conclusive
proof of that fact. The appellant's defence of
putative private defence was therefore correctly
rejected by the trial Court.
In his statement the appellant said,
inter
alia
, "I was not thinking of anything at the time as I
21
was half asleep when I shot these shots". The appellant's counsel sought
to rely on this excerpt to establish a defence. The nature
of such defence is
not clear. The defence of putative private defence implies rational but mistaken
thought. It is inconsistent with
a lack of awareness of what you are doing. The
excerpt is therefore not relevant to that defence. Nor do the words
per
se
establish an absence of intent. At best they might point to a lack of
criminal capacity or responsibility ("toerekeningsvatbaarheid")
but the
appellant's counsel, correctly in my view, specifically disavowed any reliance
on such defence.
The excerpt must in any event be seen in its proper context. It appears
in a statement which formed part of the evidential material
before the trial
Court. It cannot be elevated to a proved fact. Its cogency must be determined in
the light of all the relevant
22
evidence as well as in the context of the statement as a whole. If regard
is had to Mrs Cordeiro's evidence and the rest of the appellant's
statement it
is quite clear that he was aware of what he was doing despite an "abrupt
awakening". Mrs Cordeiro testified (as previously
mentioned) that the appellant
said to her: "Be calm, be calm, I will see what is going on and I will sort this
out", and his own
statement records that he told her "not to worry" and that he
"would sort it out". These utterances reflect presence of mind on his
part. His
further acts in picking up his pistol, moving to the window and opening it
before shooting also show an awareness of what
he was about. His conduct was not
that of a person whose mind was befuddled with sleep. That he was at all times
aware of what he
was doing is also confirmed by what was put on his behalf under
cross-examination to certain witnesses, the precise details of which
need not
detain us.
23
The evidence establishes that the appellant fired at least six shots in
rapid succession into a confined area (the driveway) while
aware of the presence
of people there. Two of them were struck and one was narrowly missed. Even if
one accepts in the appellant's
favour that he had not previously seen the people
he fired at, he knew they were in the driveway. He fired in the direction in
which
they would have had to go if they had wanted to leave the driveway, which
is the direction they could have been expected to take.
He did not fire into the
air. The injuries to the deceased and Vusi, the result of direct hits, bear
testimony to the fact that at
least some of the shots had a trajectory likely to
strike a person. In any event there was a substantial danger of bullets
ricocheting
off the walls adjacent to the driveway and striking the persons on
it. The only reasonable inference to be drawn from the evidence,
as well as
the
24
appellant's failure to testify, is that he must have foreseen, and by
necessary inference did foresee, the possibility of death ensuing
to the persons
outside, but reconciled himself to that event occuring. In the circumstances he
was correctly held to have had the
necessary intention to kill in the form of
dolus eventualis
. His appeal against his convictions must accordingly
fail.
In passing sentence the learned trial Judge took into account the objects
of punishment and such other considerations as are generally
acknowledged to be
relevant to the determination of an appropriate sentence. It is not contended
that he misdirected himself in any
material respect. What is claimed is that on
a proper conspectus of all relevant factors, the sentences imposed induce a
sense of
shock.
As I have mentioned, the appellant is a person of sub-normal
intelligence. The trial Judge accepted
25
that he was not an aggressive person by nature, and that there was no
reason to fear that he would act in the same way again. The
evidence shows that
he was abruptly awakened by a nervous and excitable woman (Mrs Cordeiro) who
clearly overreacted to the presence
of what she perceived to be total strangers
in the driveway. The appellant did not allow himself much time for reflection
before
embarking upon the course he followed. What actually caused him to fire
in the irresponsible manner in which he did is largely a
matter for conjecture.
However, Mr Dorfling, for the State, fairly conceded that the appellant probably
believed that there was some
danger looming. (This is not the same as saying
that he honestly believed that he was in danger, which I have already found not
to
have been the case.) Unfortunately, instead of contenting himself with, at
most, firing a warning shot, he grossly overreacted to
a situation which was not
life-
26
threatening in any way.
The appellant's conduct must be
viewed in a serious light. His precipitate action and undisciplined and unlawful
use of a firearm
resulted in the death of the deceased and serious injury to
Vusi. It is purely fortuitous that Jochonia was not also seriously injured.
There was no need for the appellant to have fired a single shot, let alone six
or more. At the same time there was an unfortunate
combination of circumstances
which contributed to the appellant acting as he did - a situation unlikely to
repeat itself. As the
trial Judge correctly remarked, "heavy punishment is not
necessary to prevent you from committing such crimes again". One thing is
abundantly clear - there is no evidence to suggest that the appellant's conduct
had any racial overtones.
I am mindful of the fact that the question of punishment is pre-eminently
a matter for the discretion
27
of the trial Judge, and that this Court will not lightly interfere with
the exercise of that discretion or arrive at a different assessment
of what
constitutes an appropriate sentence. Having said that, it seems to me, on a
proper conspectus of all relevant considerations,
that this is not a case which
merits punishment to the extent of that imposed. I am of the view that a
sentence of 9 years' imprisonment
on the murder count and 5 years' imprisonment
on each of the attempted murder counts would have been appropriate. The
difference
between such sentences and those imposed is sufficiently material or
striking to compel interference by this Court.
The following order is made:
1)
The appellant's
appeal against his convictions is
dismissed.
2)
The appeal
against the sentences is allowed, and the sentences are altered
to
28
read as follows:
(i) Count
1 (Murder): 9 year's imprisonment;
(ii) Counts 2 and 3 (Attempted murder): 5 year's imprisonment on each
count.
(iii) It is ordered that the sentences on all three counts are to run
concurrently.
3. The Registrar is directed to transmit a copy of this judgment to the
Department of Correctional Services.
J W SMALBERGER JUDGE OF APPEAL
NIENABER, JA )
HARMS, AJA ) concur