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[1994] ZASCA 36
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S v Ngcobo (126/93) [1994] ZASCA 36 (25 March 1994)
CG CASE NUMBER: 126/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
BENJAMIN
NGCOBO
Appellant
and
THE
STATE
Respondent
CORAM
: E M GROSSKOPF, VAN DEN HEEVER et HARMS JJA
HEARD ON
:
14 MARCH 1994
DELIVERED ON
: 25 MARCH 1994
JUDGMENT VAN DEN HEEVER JA
2 On Sunday, 10 August 1986, appellant broke
into the house of a Mr Luus at 33 Stumke street, Witpoortjie, in the
district of Krugersdorp. He stole a number of items including
a Rossi .38
special revolver, a video recorder, some cash, and a brown bag into which he put
other smaller items.
Later that night he and two companions walked
past a stationary car in Kagiso, and aroused the suspicions of the driver. That
was
Detective Sergeant Mathe. He and a colleague, in plain clothes and an
unmarked car, were on patrol in Kagiso and had stopped in Hintsa
street to drop
off two passengers. One of appellant's companions was carrying the stolen video
recorder, the other the brown bag.
Mathe instructed his colleague, constable
Moeketsi, to follow the three on foot. He himself would circle with his vehicle
and head
them off where they were crossing open ground littered with rubbish,
with the result that it could not be traversed by car.
3
In executing this manoeuvre, Mathe briefly lost sight of the four on
foot, then saw three fleeing and Moeketsi lying on the ground
screaming. He had
been shot through the neck. Mathe ran to him. Moeketsi's firearm was in its
holster at his side. Mathe put him
in the car, took him to the Leratong
hospital, returned to the scene off Hintsa road and found the video recorder and
bag which had
been abandoned within metres of where Moeketsi had been
felled.
The following day, 11 August, Leratong hospital telephoned Mathe and
asked him to fetch Moeketsi and take him to the Milpark Clinic.
He did
so.
Sixteen months later Moeketsi who had not been able to resume police duty
since the day he was injured, died.
Arising out of appellant's actions that night he was charged in the
Witwatersrand Local Division with
4 housebreaking with intent to
steal and theft, murder, and possession of an unlicensed firearm and ammunition
for it. The last two
counts were withdrawn at the beginning of the trial. The
reason became clear after appellant had been convicted on the
others.
Moeketsi to whom I refer in what follows as the deceased,
was not the only policeman appellant wounded that night. After losing his
booty
other than the firearm and a little cash, appellant woke a friend, Nkwane, and
took him drinking. He told Nkwane of what he
had done earlier that night:
burgled a house in Witpoortjie, and shot a man he thought wanted to rob him of
his booty, which he had
abandoned. When appellant and Nkwane left the shebeen,
appellant shot and wounded another constable, who survived. The two went from
there to a bar in Dobsonville where appellant sold the revolver.
He was arrested, long after, for this second shooting, and convicted of
attempted murder and the
5 illegal possession of the firearm. He
pointed out Nkwane as having been with him at the time, Nkwane came out with
what appellant
had told him of the earlier events of the same night, and the
present charges followed. It was because he had already been convicted
in
respect of possession of the firearm that night at an earlier trial, in May
1989, that the relevant charges were dropped when
he stood trial, in February of
1992, in respect of the death of the deceased and the burglary at Luus'
house.
He was convicted on both those charges, and sentenced to four years for
housebreaking and theft, and 15 years on the murder charge,
the sentences to run
concurrently.
His appeal is brought by leave of this court against his conviction of
murder.
The attack against that was two - pronged. It was argued that the
prosecution had not proved beyond reasonable doubt that appellant's
shooting of
the
6 deceased was unlawful; or that that shooting had
caused
the death of the deceased.
The evidence against appellant on
the merits consisted of that of Mathe; what he himself had said to Nkwane; and a
statement he made
to a magistrate three days after his arrest, exhibit
C.
I start with the latter. After telling of the
burglary, appellant continued -
"Ek het die goedere gevat en saamgebring na Kagiso toe, (n) et toe ek oor
die straat loop toe ry 'n kar by my naby (verby?). Dit draai
weer terug in my rigting. Terwyl ek nog die kar kyk het iemand van agter
gekom. Hy het 'n vuurwapen in sy hand gehad. Hy vra toe wat
se goed het ek by
my. Terwyl hy so praat het, het hy die vuurwapen op my gerig. Ek het ook die
vuurwapen by my gehad, maar ek het
dit nie op horn gerig nie. Ek het gedink die
persoon wil die goedere by my vat, want ek het die geld en 'n videomasjien by my
gehad.
Ek het toe weggehardloop. Ek is na my vriend se huis toe. Ek het daar
geklop. Hy maak oop. Ek het toe vir hom gesê dat waar
ek gegaan het om
geld te soek het ek toe geld gekry. Ek sê toe vir hom dat ek iemand met 'n
vuurwapen geskiet het. Ek is toe
saam met hom na 'n smokkelkroeg."
Nkwane's evidence has already been
summarized
7
above. His ipsissima verba (in so far as one can use
that
description of a version given through an
interpreter) in evidence in chief were -
"Whilst we were walking he told me that he had a video and some money and
that those items were in a bag. And he told me that he had
shot a person and he
told me that that person wanted to rob him.
He told me that there was a vehicle, the vehicle came, it had been driven
and that one person alighted from the vehicle and that that
person who was
alighting from the vehicle had a firearm with him . . . and that that person
stopped them when they were three and
that he was having a firearm, the one who
alighted. He told me that they uplifted their hands and he told me that he fired
a shot.
Who fired a shot? ---(Appellant)
and he told
me that they then ran away. This is now all three of them and that they
left all the items that they had in their possession at that
scene."
Cross-examination elicited no greater detail
on this part of the story:
"So, the accused . . . told you that he shot a person and that that
person wanted to rob him,
is that correct? --- He said to me it
appeared, as though."
Appellant at the trial put the date of
the
8
burglary and shooting in June but was clearly wrong on
this
score. His evidence about why he had fired at the
deceased was that
the deceased came after him, asked
"where are you from and where are you going to?",
then
produced a firearm and pointed it
"at us ... He instructed us to uplift our hands ... It came to my mind, I
wondered why does he say these words, whilst pointing a
firearm at me". The
deceased cocked the gun, and then "I lost my mind and I thought this person was
going to shoot at me. There was
also a vehicle approaching us from behind at a
high speed. I then decided to fire a shot and ran (run?) away. I did fire a
shot.
I was with some other people and they had some articles in their
possession ... and they dropped these articles on the ground and
we ran
away".
He had not known that deceased was a
policeman.
Under cross-examination he said i.a.
that he
saw the deceased fall, "and when he
had fallen down he
was still having his firearm in his hand". It was put
to him that he knew that it would spell trouble if he
were found in possession of a stolen firearm while in
the company of two others carrying stolen goods. He
9
conceded that.
"(Y)ou appreciated that that man might want to arrest you and so you shot
him so that you could get away from him and so avoid arrest?
-— I shot
because I thought that this person was going to take my money and I thought the
person was going to rob me. ... The
money I had stolen where I had broken
into.
When I shot at him, he fell down. I did not think of running away
immediately. I thought of picking up those items. I thought I should
pick up
these items and whilst 1 thought of taking them along, the person who had fallen
down was screaming with the firearm in his
hand and I saw a vehicle coming. It
was quite close to me. ... I thought that this car can knock me or the people
inside the car
might shoot me. I left those items there and ran
away.
I shot him so that I could run away
but I do not believe it was in August."
The court recalled Mathe. He repeated that the
deceased's firearm was in its holster when Mathe came to
him where he was lying screaming. This was not
challenged. He conceded that had the deceased drawn it
and returned it to its holster again, he, Mathe would
not necessarily have seen that.
10 In rejecting appellant's
version that he had faced a cocked firearm, the trial court found appellant to
have lied about the month
in which the burglary and shooting had taken place.
This was however hardly a matter of any importance. Luus had suffered only one
burglary. Appellant agreed that the burglary and the shooting occurred during
the same night. The court also relied on the improbability
that appellant would
have drawn a gun and fired in the face of a service revolver already aiming at
him; and of the deceased's being
able to return his revolver to its holster
after receiving the serious neck wound, as appellant's counsel suggested could
have happened.
The truth of Mathe's evidence that when he came to where his
colleague lay, the latter's weapon was in its holster, was not in
issue.
Those are not the only improbabilities in that part of appellant's
version of events. A more serious criticism is the gross improbability
that the
deceased
11
should have wanted to return his revolver to its holster at all after
falling with it still in his hand, instead of firing at his
attackers. On his
own evidence appellant was in the immediate vicinity of the stricken man, and
still looking to pick up the stolen
goods.
More important, the
finding that appellant "deliberately fired at the deceased at close range ... He
probably wanted ... to avoid
losing his loot" is in accordance with appellant's
own evidence, as the quotations from that make clear. From the beginning that
was the reason he gave for having fired at the deceased. The story that he
thought the deceased was going to shoot him, was a late
and passing
embellishment. He did not stay with it but under cross-examination by the
prosecutor came back to the version he gave
hot off the press, as it were, to
his good friend Nkwane. He had no fear of the deceased. It was not from him that
he fled. He did
so only when Mathe's car came too close for comfort. Appellant
did not
12 purport to have shot deceased in defence of life and
limb. I have difficulty with the notion that a burglar could escape criminal
liability for violence used in protecting his unlawful possession from a
competitor in crime. The reason given for regarding the
use of violence as being
justifiable in private defence, is "dat reg nie voor onreg hoef te wyk nie". (DE
WET & SWANEPOEL,
STRAFREG
4th ed p 75; SNYMAN,
STRAFREG
3rd ed
p 111. ) When violence is used in defence of an indisputable legal interest,
that violence must be proportionate to the harm
to be averted; and the test is
an objective one. Cf Ex parte
DIE MINISTER VAN JUSTISIE
: In re
S v VAN
WYK
1967 (1) SA 488
(A) 497H-498C, 503H-504B. This burglar could by no
stretch of the imagination be regarded as having been justified in using a
firearm
which he knew was functional (having checked on that earlier that
evening) against someone wanting to deprive him of what he had
stolen from Luus.
I come then to the issue of causation.
13
The deceased was removed to Milpark so that he could be attended to by a
cardio-thoracic surgeon, Dr Nicolaou. He told the court that
when the deceased
was admitted to Milpark hospital he had a raging temperature. A bronchoscopy
revealed that he had an extensively
lacerated oesophagus and a small tear in his
trachea. Infection had set in. There was an abscess where the bullet had emerged
above
the right shoulder blade. Pus was extending along the track of the wound,
leaking from the tear in the oesophagus, and starting to
extend down to the
mediastinum. Once there, sepsis is difficult to stop and may suppurate into the
adjacent spaces such as lungs,
stomach, pericardium.
A series of operations followed. Initially, the pus was drained from his
swollen neck, a tube inserted into his small intestine so
that he could be fed
otherwise than orally, and antibiotics administered.
Despite these measures his
condition
14
worsened.
To eliminate on-going soiling of the mediastinum by oral secretions,
which invariably carry germs even when one is not eating at all,
the oesophagus
was diverted and given an external orifice.
After some time, in a third operation he was given a new oesophagus by
pulling up the stomach and anastomosing it to the base of the
pharynx. The
anastomosis was unusually high which created additional problems but this was
dictated by the level of the wound.
Although the series of operations solved the acute phase of the problem
by putting a stop to soilage by oral secretions via the oesophagus,
the
deceased's troubles were not over. The original injury had transected a nerve,
resulting in partial paralysis of the vocal cords
and an inability to control
the swallowing mechanism. When he ate, food spilled into the trachea. This in
turn led to chronic lung
15 infections. He "was discharged from
hospital in October because his life was not in immediate danger any longer. He
was re-admitted
periodically with pulmonary infections and remained an
outpatient in the intervals between. Dr Nicolaou saw him regularly. The
infection
was controlled in a measure by on-going treatment with antibiotics but
it never cleared completely. The chronic sepsis led to emaciation
and weakness.
By July of 1987 he was certified permanently unfit to return to normal
duties.
Dr Nicolaou himself could do no more for this patient, but the advice of
ear nose and throat specialists was sought to see if his
damaged vocal cords and
so his ability to speak could be improved, but nothing came of this. The
suggestion was made that the larynx
be removed completely and the trachea given
an external opening. That would stop the problem of food spillage into the
airways but
leave the deceased, who could still speak, though poorly, mute. He
was averse
16 to undergoing such a procedure.
Dr
Nicolaou saw the deceased for the last time towards the end of November, 1987.
He had never at any stage fully recovered from the
results of the injuries
caused by the bullet wound. Dr Nicolaou went on leave in December. When he
returned in January he heard that
the deceased had died.
The brother
of the deceased, Petrus Moeketsi, testified that after the deceased had been
discharged from Milpark Hospital he went
to live at Kagiso with his grandfather
but returned to hospital periodically. During December of 1987 the brothers
visited their
parents at Koffiekraal. There the deceased complained that he was
ill. He started vomiting blood. He was taken to Paul Kruger Hospital
in
Rustenburg on New Year's Day. Petrus heard that he had been transferred from
there to Johannesburg. He died on 3 January 1988
in the Park Lane
Clinic.
From the time that the deceased was discharged
17 from Milpark Hospital until this New Year's Day, the deceased
according to Petrus sustained no further injuries.
Dr Kemp performed
a post-mortem examination on the deceased on 8 January 1988. He was very
emaciated, weighing only 47 kilograms.
Dr Kemp found an unhealed tracheostomy
opening in the front of his neck, old surgical sutures in the tissues of the
neck, and deformities
of the vocal cords on the right side. The cause of death
given in his report was "purulent pericarditis following old trauma". There
was
about 100 millilitres of pus in the sac around the heart. He recorded in his
contemporaneous notes that the other organs, including
the lungs and oesophagus,
were normal. He had no independent recollection of this particular post mortem
examination, but assumed
that he had had the medical records relating to the
deceased available to him and that it was from those that he learned of the "old
trauma".
18
Miss Bate who appeared for appellant was critical of the evidence of Dr
Kemp. According to Dr Nicolaou's evidence, the deceased suffered
from chronic
pulmonary infection, and describing his lungs as "normal", for example, raised
doubts about the accuracy of Dr Kemp's
observations. There was, she said, a
lacuna in the medical evidence. One did not know what had happened to the
deceased from the
time Dr Nicolaou last saw him until he died, so that the chain
of causation was incomplete.
Dr Kemp, who had been present in court while Dr Nicolaou testified,
explained how it could come about that damage to lungs caused
by sepsis could
have been missed in a corpse with a heart such as he found and described. The
lungs would have been congested with
blood, which would be normal for someone
with a heart in this condition and mask the presence of small pleural abscesses.
No abnormality
of the oesophagus would have been noticeable because the part of
deceased's stomach
19
that had been brought up, "when you cut it open it appears the same as an
oesophagus would". One may safely assume that once he saw
the deceased's heart,
his interest would have focussed on that. The pus in the pericardium would have
filled three-quarters of a
tumbler and was unquestionably the cause of death.
"There is no way that a patient with a purulent pericarditis can live", he said.
"It is a fatal defect." And "a healthy 28-year-old person does not get
pericarditis ... there must have been some causative -well,
let us say injury
before that".
Under cross-examination Dr Nicolaou had said that he had not foreseen
that the lung infection would pass to the pericardium. That
means no more than
that he had not anticipated that the heart of the deceased would succumb to
sepsis before his lungs did, bearing
in mind his evidence that although the
acute problem of sepsis reaching the mediastinum, which would probably have
resulted in death,
had been averted by the initial
20
operations, the chronic problem of sepsis was never
solved.
The condition of the deceased was virtually
incurable, and his life was at risk throughout.
"... we know that bacterial pericarditis in a fit male is a very unlikely
disease to present itself .. . (and) ... the patient did
have a mediastinitis
which is a chronic infection down into the
mediastinum".
He regarded the pericarditis
to have been caused by the
chronic sepsis in the lungs which in turn
had been
caused by the bullet wound; and was not aware of
any
other factor which could explain its having occurred.
In the light of that evidence and that of
deceased's brother that nothing further untoward had
happened
to the deceased, the fact that no doctor gave
evidence about what was done for and to deceased during
the two days that he was in the Park Lane Clinic, is
irrelevant. After receiving the gunshot wound he was a
sick man whose health deteriorated inexorably until he
died, and there is no suggestion that any procedure
attempted or omitted at Park Lane Clinic either caused
21
or could have averted his death.
In the alternative Miss Bate urged that the
infliction of the wound, even as a sine qua non of
the
deceased's death, was too remote from its result
to
attract criminal liability. The appellant's refusal
to
undergo the operation to remove his larynx and give his
trachea an external exit and so avoid aspiration of
food
particles, was the immediate cause of his death. She
relied on
S v MOKGETHI EN ANDERE
1990 (1) SA 32
(A) Van
Heerden JA said at p 46I-47B:
"In die reël is 'n dader se handeling wat 'n conditio sine qua non
van die slagoffer se dood is, te ver verwyderd van die gevolg
om tot
strafregtelike aanspreeklikheid daarvoor te lei indien (i) 'n versuim van die
slagoffer om mediese of soortgelyke advies in
te win, behandeling te ondergaan
of instruksies na te kom die onmiddellike oorsaak van sy dood was; (ii) die
verwonding nie in sigself
lewensgevaarlik was nie of dit nie meer op die
tersaaklike tydstip was nie, en (iii) die versuim relatief onredelik was, d.w.s.
onredelik
ook met inagneming van eienskappe, oortuigings ens van die slagoffer.
Daarmee gee ek nie te kenne dat indien een of meer van die
vereistes nie
bevredig is, die kousale ketting nie verbreek kan wees nie."
22
According to the evidence the deceased was discharged from
Milpark after the last of the series of operations Dr Nicolaou described,
during
October of 1986. Although he did not require to be detained in hospital, as
already stated, he had not fully recovered and
indeed never did so. There was no
stage after the initial injury at which it ceased affecting appellant adversely
and seriously.
The record does not tell us when the suggestion was made that the
deceased undergo a further operation; nor that he was told that
it was a
life-or-death choice. There is no indication that it was. There was merely the
possibility that it could have saved his
life at the certain cost of his voice,
but would have caused its own problems. Dr Nicolaou did not elaborate on what
those might
be. There is no suggestion that he was urged to submit to it, or
told that it would or might be dangerous or unreasonable not to
do so. Indeed
the effect of Dr Nicolaou's evidence was that it would have been unreasonable to
expect this
23
man who had already suffered so much, to assent to the
procedure.
The facts in this case fall short of all the criteria postulated in the
quotation from
MOKGETHI'S
case quoted above. No policy considerations
require the court to look for some stage in the chain of causation, earlier than
the death
resulting from the bullet wound, at which to snip that chain in order
to limit appellant's legal responsibility for the consequences
of his
conduct.
The appeal is dismissed.
L VAN DEN HEEVER JA
CONCUR:
E M GROSSKOPF JA)
HARMS JA)