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1995
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[1995] ZASCA 12
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S v Mashimbye (56/94) [1995] ZASCA 12 (14 March 1995)
13/95
Case No 56/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between:
JOSIAS MASHIMBYE
Appellant
and
THE STATE
Respondent
CORAM
: NESTADT, EKSTEEN et NIENABER JJA
Date heard: 2 March 1995
Date delivered: 14 March 1995
JUDGMENT NESTADT, JA
:
On the night of 22 February 1992 a party was taking place at a house in
Giyani township within the area of Gazankulu.
2
Amongst the numerous people there present were Patrick Maboko ("the
complainant"), his mother, a certain Ronny and Mbekeni Xivambu.
At about
midnight the appellant arrived there. He was apparently uninvited. He (and
others) were asked to leave. Events turned nasty.
In the result and with a 9 mm
pistol, which he had in his possession, he shot the complainant in the left
upper chest in the vicinity
of the shoulder. The shooting took place outside the
house near the gate of the yard.
This occurrence gave rise to the prosecution in the Giyani Regional Court of
the appellant on a charge of attempted murder. An alternative
charge alleged
that he had acted in contravention of sec 39(1)(1) of the Arms and Ammunition
Act 75 of 1969 in that he had discharged
an arm and had thereby negligently
3
injured the complainant. His denial of guilt notwithstanding, he was
convicted on the main count and sentenced to five years imprisonment
of which
two were conditionally suspended. In terms of sec 12 of the Act the consequence
of this, and the regional magistrate so
noted, was that the appellant was deemed
to be declared unfit to possess a firearm (which was ordered to be returned to
the appellant's
employer, namely the Department of Interior of Gazankulu). The
appellant appealed against his conviction and sentence to the Transvaal
Provincial Division. The appeal was unsuccessful. This is a further appeal. It
is brought with the leave of the court a
quo
.
The gist of the appellant's version of what happened was that he was attacked
by the crowd at the party; his life was in
4
danger; acting in self-defence he fired a shot into the air; but he was still
being pursued; as he was fleeing he accidentally fired
a second shot (which
struck the complainant).
The trial court rejected this evidence. Mr
Jordaan
who appeared before
us for the appellant quite correctly did not quarrel with this finding. It is
clear that the appellant was a
poor witness, indeed a lying one, and that his
version could not possibly be true. The matter therefore falls to be determined
on
the State version. It was in the main deposed to by the complainant, his
mother and Xivambu. It was to the following effect. The
appellant stood next to
the gate. The complainant's mother approached him. She stood some one and a half
metres from him. He was
angry. He said "I will shoot all of you". He was
pointing his firearm in her direction.
5
He then fired a shot over her shoulder. It was in this way that the
complainant was struck. He had been in the house. Having, however,
heard a
commotion outside, he went out to investigate. He saw his mother and the
appellant. He walked towards them (from behind his
mother). It was whilst doing
so that he was shot. After the shooting the appellant said that "he did not
shoot at any person". He
then ran away.
It admits of no doubt that the appellant deliberately fired the shot that
struck the complainant. The question is: did he do so with
the necessary
mens
rea, ie with the intention (whether by way of
dolus directus
or
dolus eventual is
) to kill the complainant? This obviously depends on
whether his intention was that the bullet should strike the complainant. If it
was, the only reasonable inference
6
would be that he intended to kill him. Both the trial court and the court a
quo, of course, found that the State had proved that in
firing the shot that hit
the complainant the appellant had the necessary intent. It would seem, however,
that they did so on somewhat
different bases. The magistrate (somewhat baldly I
may say) concluded that "looking at the evidence subjectively...the accused
deliberately
pulled the trigger and from that the Court can only draw one
inference, that is that the accused had done so with the intent to kill
Patric
Maboko". It is not clear whether this amounted to a finding of
dolus
directus
or
dolus eventualis
. But it would seem to involve an
acceptance of the proposition that the appellant knowing of the presence of the
complainant, fired
in his direction. The Transvaal Provincial Division on the
other hand found that the
7
appellant must have foreseen that the shot "may hit somebody,...who was
present in the yard or in the house" and that he was guilty
on the basis of
dolus eventualis
.
I am afraid that I cannot agree with either the trial court or the court a
quo. In my opinion the State failed, whether on the basis
of
dolus
directus
or
dolus eventualis,
to prove that the appellant in firing
the shot (albeit deliberately) had the requisite intent to kill the complainant.
The distinction
between
dolus eventualis
and mere negligence (as to which
see
S vs Sigwahla
1967(4) SA 566(A) at 570 D) must in this regard be kept
firmly in mind. I refer naturally to the difference between what the appellant
must have subjectively foreseen (ie did foresee) on the one hand and what he
objectively ought to have foreseen on the other. To
sustain a conviction it
was
8
necessary for the State to show that the appellant foresaw the possibility
that in Bring as he did, the complainant or someone else
would be struck. Whilst
it is probable that he did, I do not think that this is the only reasonable
inference from the evidence.
The main reason for saying this is that such
evidence (and I am of course referring to that of the State) does not paint a
very clear
picture of the scene and of what happened. As will appear we are in
many respects left to speculate.
I commence with the evidence concerning the fore-seeability or otherwise of
the complainant being struck. The problem here is that
there is a dearth of
evidence as to whether the appellant was ever aware of the complainant's
presence behind his mother. I leave
aside the appellant's denial that he saw the
complainant. The
9
problem stems from the fact that it is unclear where exactly the complainant
was when the appellant fired. The complainant's evidence
that he was "close" (to
his mother) and Xivambu's that the complainant was "behind" her are too vague
and imprecise to be of any
real assistance in determining the issue of whether
the appellant saw the complainant. This is compounded by the absence of any
meaningful
description of what the visibility was like. The only evidence on
this point was that of the complainant that where he was standing
"there was
some light". It was not part of the State case that the complainant and the
appellant spoke to each other before the shooting.
The complainant conceded that
he could not hear what his mother and the appellant were saying to each other.
He never saw that the
appellant had a firearm. These are further indications
that
10
the appellant might not have been aware of the complainant's presence. Bear
in mind also that no motive on the part of the appellant
to harm the complainant
was shown. On the contrary the complainant testified that they had not
quarrelled. It is true that the complainant
saw the appellant. But it does not
follow that the appellant saw the complainant. And the fact (testified to by the
mother) that
the appellant, when he fired, was pointing the firearm in
her direction (and therefore I will assume in the complainant's
direction) takes the matter no further.
This brings me to the issue of whether the approach of
the court a
quo
was justified, ie that in shooting as he did the
appellant must have known that somebody might be hit and killed.
Here too there are difficulties in the way of the State. The
11
appellant's threat made just before he shot, to "shoot all of you" may well
have been mere bravado; or perhaps the desire to make
his presence felt or to
frighten those at the party. Immediately after he shot, the appellant said that
he did not shoot at any one.
Clearly the appellant did not intend to shoot the
mother. Had he so intended, he could not have missed her. The evidence does
however
establish that there were a number of other people in the vicinity at
the time. They were the guests at the party. But there is no
clarity as to where
they were when the appellant shot and in particular whether, to his knowledge,
they were in his line of fire.
They were not in the immediate proximity to the
complainant or his mother. According to the complainant the other guests were in
the yard. There was however no evidence that the appellant shot in that
direction. But let
12
us assume (there was some evidence to this effect) that the guests were in
the house, or running towards it or round it. Even so the
guilt of the appellant
on the main charge was not proved. This is because it was not shown that this is
where the appellant aimed
at. One does not know what distance the house is from
the gate (where the appellant was) or where it is situate in relation to the
direction in which he pointed the firearm. The State should have produced a plan
depicting the scene. Without it there are material
gaps in the State case. Ronny
was not called. It would seem that he was an important witness. Nor does the
evidence (given by a policeman
who arrived at the scene after the shooting) that
a "certain hole" which it was "presumed was caused by a bullet" was found in the
house and that "the window pane" was shattered. There is no
13
indication which part of the house is being referred to. In any event this is
hardly sufficient to prove that the damage referred
to was caused by the
appellant's shot. It may have pre-existed the incident. As I have said, the
appellant was an untruthful witness;
his version was a false one. This feature
cannot, however, in the light of the defects in the State case to which I have
alluded,
avail the State (cf
S vs Mtsweni
1985(1) SA 590(A)). They are
such that the appellant should have been acquitted on the main charge of
attempted murder. He should,
in my judgment, have instead been found guilty on
the alternative charge. Plainly he acted negligently. The shot he fired was not
in the air. It must have had a horizontal trajectory. He ought as a reasonable
man to have foreseen that someone might be injured.
14
It remains to deal with sentence. The one imposed must be set aside. The
appellant must be sentenced afresh for the contravention
of sec 39(1)(1). In
terms of sec 39(2)(d) a fine of R4 000 or imprisonment not exceeding one year or
both are competent. At the time
of the trial the appellant was 42 years old. He
had no previous conviction. He voluntarily reported the matter to the police on
the
following day. He is a family man. He was entitled to possess the firearm.
In these circumstances I do not think a sentence of imprisonment
is called for.
A fine will suffice. At the same time it must be a substantial one. The degree
of negligence was high. The complainant
was quite badly injured. The improper
use of firearms is rife. Unfortunately there is nothing on record as to what the
appellant
earns. It appears however that he
15
is a senior officer in the employ of the Department of the Interior in
Gazankulu. In these circumstances there is reason to believe
that he will be
able to pay the fine I intend to exact.
The appeal succeeds. The appellant's conviction of attempted murder is set
aside. So, too, is his sentence. There is substituted a
conviction on the
alternative to count one, namely a contravention of sec 39(1)(1) of the Arms and
Ammunition Act 75 of 1969. In
respect of this offence he is sentenced to pay a
fine of R2 500 or eight months imprisonment. The order directing the return of
the
firearm to the Department of the Interior remains.
H H Nestadt Judge of Appeal
Eksteen, JA )
) Concur Nienaber, JA )