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[1999] ZASCA 11
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S v Francis (253/97) [1999] ZASCA 11; 1999 (1) SACR 650 (SCA) (18 March 1999)

CASE
NO.253/97
IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In
the matter between
APPELLANT
DENVER
JOSHUA FRANCIS
AND
RESPONDENT
THE
STATE
BEFORE
: SCHUTZ
JA, MELUNSKY AND MADLANGA AJJA
HEARD
: 9
MARCH 1999
DELIVERED
: 18
MARCH 1999
SCHUTZ
JA
_______________________________________________________________
J U D G M E N T
________________________________________________________________
SCHUTZ JA:
[1] On 27 February 1995 the appellant
fired two shots at Allan Gobey at or near the latter’s home in
Syringa road, Woodlands,
Pietermaritzburg. The first passed close to
his head. The second struck him in the left elbow. Some hours later
the appellant
shot Gobey’s daughter Melanie and killed her.
The debate in the appeal is concerned principally with the
appellant’s
state of mind on the evening. He contends that he
acted in a state of non-pathological criminal incapacity (“sane
automatism”)
with the results that either he was unable to
distinguish right from wrong; or, if he could, that he was unable to
control his
actions. The court
a
quo
, Shearer J
sitting with assessors, held that the first shot fired at Gobey
constituted an assault with intent to do grievous bodily
harm,
whilst the second shot might have been fired accidentally. The fatal
shot fired at Melanie led to a murder conviction, the
form of intent
being
dolus
eventualis
. The
sentence for the murder was 14 years imprisonment and for the assault
six months imprisonment.
[2] With leave granted by the trial
judge the appellant appeals against the convictions and the
sentences. Apart from resisting
the appeal, the State contends that
on the murder charge it has proved intent in the form of
dolus
directus;
and that
the firing of the second shot at Gobey was deliberate and not
accidental and amounted to the crime of attempted murder,
which was
the crime charged, and not merely assault with intent . The State
asked that the sentence on the Gobey conviction should
be increased
because of the substitution of the more serious offence. At the
request of the court counsel argued the applicability
of s 1 of the
Criminal Law Amendment Act 1 of 1988, in the event of a finding that
the appellant was not criminally liable whilst
his faculties were
impaired by alcohol to the extent contemplated by that section.
[3] The following passage in the
judgment of Kumleben JA in
S
v Potgieter
1994
(1) SACR 61
(A) at 72 j - 74 b (which includes a quotation) is a
useful starting point:
“ ‘. . . On the other hand, an accused
person who relies on non-pathological causes in support of a defence
of criminal
incapacity is required in evidence to lay a factual
foundation for it, sufficient at least to create a reasonable doubt
on the
point. And ultimately, always, it is for the Court to
decide the issue of the accused’s criminal responsibility for
his
actions, having regard to the expert evidence and all the facts
of the case, including the nature of the accused’s actions

during the relevant period’
“The reliability and
truthfulness of the alleged offender is in the nature of the defence
a crucial factor in laying such
a foundation. This fact, and hence
the need to closely examine such evidence, has been stressed in
earlier decisions of this
Court. . . . The
ipse
dixit
of an accused
person that the act was involuntarily and unconsciously committed,
based on the evidence tendered in support of such
assertion, is to be
accepted unless it can be said that such evidence ‘cannot
reasonably be true.’
“The need for careful scrutiny
of such evidence is rightly stressed. Facts which can be relied upon
as indicating that a
person was acting in a state of automatism are
often consistent with and may, in fact be the reason for, the
commission of a deliberate,
unlawful act. Thus - as one knows -
stress, frustration, fatigue and provocation, for instance, may
diminish self-control to the
extent that, colloquially put, a person
‘snaps’ and a
conscious
act amounting to a crime results.”
[4] By contrast with cases of
pathological disturbance of the mental faculties, in cases of “sane
automatism” the onus
is on the State to establish voluntariness
of the accused’s act beyond a reasonable doubt:
S
v Cunningham
1996
(1) SACR 631
(A) at 635 I. But, as appears in the immediately
following passage in the judgment in that case, in discharging that
onus the
State is assisted by the natural inference that in the
absence of exceptional circumstances a sane person who engages in
conduct
which would ordinarily give rise to criminal liability does
so consciously and voluntarily.
[5] Before
embarking upon the appellant’s version of events and the
evidence of others which may support or contradict his
evidence,
three uncontentious facts may be mentioned. The appellant has an
immature personality. He was obsessed with the deceased,
with whom
he had a discontinuous love affair. And on the night of the shooting
he had had a great deal to drink.
[6] I
do not propose to dwell at length on the relationship between the
appellant and the deceased, because whatever view one takes
of the
niceties of their individual conduct, there can be no doubt that the
appellant was strongly attracted by her, that he was
possessive and
jealous of her giving attention to other men, that he felt that she
sometimes played lightly with his ardour, leading
him on only to let
him down, all of which led to feelings of anger, despair and
resentment, feelings sometimes fanned up by alcohol.
[7] He
was born in 1970, so that he was 24 at the time of the shooting. He
came from a broken home, and from an early age witnessed
his father
assaulting his mother, thus being yet another casualty of family
violence, which is so often handed down from generation
to
generation. During 1990 he became a fireman. He met the deceased in
1992. She caused him to break with his girlfriend of
the time. The
deceased is not alive to give her account of the relationship.
However, according to the appellant she would break
off their
relationship intermittently, only to entice him back each time. On
an occasion at the Thistle Hotel the appellant slapped
her face when
she accused him of looking at another woman. More serious was an
incident in October 1994 when she told him that
it was none of his
business that she had gone out with another man. He thereupon struck
her several blows, leading to her suffering
a black eye. He was so
shocked at what he had done, so he said, that he took her to a police
station and asked her to charge him.
This she did on 1 October 1994,
although she later withdrew the charge. He paid the account when she
went to her doctor for treatment
of her injuries. He phoned her
father, Gobey, who told him to stay away from his daughter.
According to him he thereupon started
drinking heavily and with a
view to killing himself “took all the tablets I could find in
the house”, only to vomit
them up. His mother gave an account
of the pills in the house very different to his, and although she
tried manfully (if I may
be permitted this word) to change her story
when a conflict with her son became apparent, there must be a
question mark over this
episode. What is established is that he
twice consulted a psychologist, Mr Nursoo, in October 1994. Although
Nursoo recorded
that the visit was precipitated by thoughts of
suicide, there is no mention of a failed suicide attempt. In the
meantime the deceased
telephoned him and the relationship was
resumed. But the appellant no longer visited the Gobey home, because
the deceased’s
father continued to be upset by the assault on
her. In November 1994 the deceased attended the appellant’s
birthday party
at his mother’s home and gave him a ring. It
was in that same month that he bought the 9 mm Parabellum pistol
which was
later to cause her death. Thereafter he made a practice of
carrying it with him. In December 1994 the deceased telephoned him

to say that she had to break off the relationship as her father was
putting pressure on her to do so. They stopped seeing each
other.
When he then telephoned her she said that her father required her to
take out a “peace order” forbidding the
appellant from
coming to the house. Such an order was issued by the magistrate on
29 December 1994 and served on the appellant.
Whether this was only
the father’s idea depends on the truthfulness of the appellant.
The form used was one of some antiquity,
as it warned that
proceedings would be instituted in term of s 384 of Act 56 of 1955 in
the event of further complaint.
[8] Despite
the restraining order, at some stage in January 1995 the appellant
went to the Gobey home, having first armed himself
with Dutch
courage. His object, so he said, was to obtain the return of a chain
and a Galaxy card which he had previously given
to the deceased.
There was some conflict as to what exactly happened on this
occasion. According to Gobey, upon the appellant’s
arrival the
deceased locked herself in her bedroom and telephoned the police.
They later arrived. She passed the peace order
through the door and
her father gave it to the policemen and asked the appellant to leave,
as he was not supposed to be on his
property. One of the policemen
then took the appellant away from the front door. The appellant
disputed some details, but agreed
that “Later the cops
arrived”, and stated that “I told them that I wanted my
chain and Galaxy card back from
her which they gave me back and I
left.” This episode speaks for itself. Much more disquieting
in the light of later events
was evidence given by Gobey. He was
asked whether there had been any earlier indications of the
aggression that the appellant
displayed on the night of the shooting.
He answered: “On several occasions [no date given] he told me
that I am going to
come home and cry because I am going to find him
[the appellant] and Huggy [the deceased] dead in the room.” At
the time
he did not take these words seriously, because he supposed
that the appellant, being a fireman, was learning to save lives not
take lives. In cross-examination the appellant conceded that
although he did not remember making such a statement, he could not

deny that he had, and added “It is possible that I could have
said that.” When asked why, he responded “Being
angry I
suppose.”
[9] Some two weeks after the incident
involving the police the deceased telephoned him again. She told him
not to be childish and
bring back the chain and card. After a visit
to the house in her father’s absence he invited her out to
lunch. They went
to Karkloof Falls. This was in February 1995.
They started drinking beer. An argument broke out. She was upset
about his drinking
and about his pistol, which he had with him. She
was worried about it, at which he laughed and told her that it was
not for anything
in particular, just for shooting birds. At this he
took a shot at a tree. She asked him to get rid of the pistol, which
he agreed
to do. He later advertised it for sale, on 23 February
1995, but did not sell it. While still at Karkloof Falls, at her
request
they had sexual intercourse again. After this she told him
she was seeing one Reagan Braithwaite. The appellant said that if
they were to go out again she would have to break with Braithwaite.
She undertook to speak to him about it. (Like the deceased’s,

Braithwaite’s version is also not known as he was dead by the
time of the trial.) On 26 February 1995 the appellant picked
her up
and took het to Campdrift. There she told him that Braithwaite had
refused to end their association, and that she felt
the same. The
appellant was “devastated” and went to his brother’s
home where he started drinking heavily.
This continued for the rest
of the day. We now approach the
dénouement
.
The next day was to be the fatal day, 27 February 1995.
[10] On
that day he met a friend and colleague at a barber shop. After
eating some chicken they went to a shooting range to shoot.
Whilst
there the appellant bought some cartridges. After that a case of 24
cans of beer was bought. The rest of the day was
devoted to drinking
at the homes of two friends. Another case of beer and a bottle of
brandy were bought. I do not intend attempting
to trace the details
of the drinking, because the State accepts that the appellant’s
blood alcohol level at the time of
the fatal shooting was about 0.28
grams per 100 millilitres of blood. At a stage when the appellant
was sitting on the toilet,
one of his friends caused a shot to be
fired from the appellant’s pistol. This annoyed him and an
argument broke out. Thereupon
the friends dispersed. According to
the defence witness Gilbert, the appellant left in his own car at
about 19h00. It is clear
that everybody had had a good deal to
drink. Gilbert said that he and the appellant chatted as they walked
to his car, but the
appellant was under the influence. There was a
brandy bottle on the back seat but he could not say how full it was.
[11] The appellant’s
recollection of the events of the day as also of the evening to
follow was, he said, patchy, which is
consistent both with amnesia
caused by alcohol and with an attempt to simulate such a state.
There was not always consistency
in his recollections of the day as
conveyed to different persons at different times. Some of the
details described above emanate
from three of his friends, who gave
evidence for him. However, he did remember the testy conclusion to
the day’s convivialities.
Then there is a large patch. It
will be recalled that he drove off from Gilbert’s home at about
19h00. His car was later
parked in the vicinity of, but not in front
of the Gobey home. The distance between the two houses was about 2
kilometres. He
claims to know nothing of how it got there. In his
evidence he claimed that his next recollection was of
being
inside
the home.
According to Gobey this must have been some time after 20h30. The
intervening period was presumably the one in which
he reached his
final decision to enter the home. The resumption of recollection
described in evidence (being inside the home)
does not accord with
what Dr Plankett noted he was told by the appellant, namely that he
had no intention of visiting the deceased,
but then found himself
outside
her home. Further he said that he remembered
entering
the house
and
seeing Gobey sitting on the couch. According to the appellant’s
evidence he remembered very vaguely sitting down in
the lounge. Then
nothing, until he found himself outside with Gobey and the deceased.
He claims to have no recollection of what
happened inside the house
before the three found themselves outside. The only witness who
describes what happened inside at this
stage is Gobey. The trial
court found him to be a good witness, uninfluenced in veracity by the
strong resentment that he must
have felt against the appellant. The
appellant by contrast, so held the trial court, was not a good
witness. Making due allowance
for his version involving a sketchy
memory of events, his demeanour, found the court, was unpersuasive.
There is also a striking
feature of his evidence - the absence of any
expressions of remorse. Indeed Shearer J remarked that it was as if
it was the deceased
and not the appellant who was on trial. The
result is that a shade of unreality is cast over much of his
evidence. Shearer J
also drew attention to the conflict in version
between the appellant and his mother involving the attempted suicide
incident, already
mentioned. There is no good reason to question the
credibility finding adverse to the appellant either. But even
without this
finding, there is nothing to counter Gobey’s
version of what happened in the house.
[12] According to Gobey, when he got
home at about 20h30 the deceased was already in pyjamas and her
light was off. The front
door was locked. Shortly afterwards, while
he was watching television, the appellant suddenly appeared and sat
down on the couch.
He must have come in through the back door, which
was a usual way of ingress.
Presumably he had
brought his brandy bottle and left it in the kitchen, as later
evidence showed that he had the bottle inside
the house. The
appellant then asked “Where is Huggy”? Gobey responded
“Denver, you are not supposed to be here.
What are you doing
here? You had better go.” Gobey’s evidence proceeded
“When I told him that he said to me
what have I got to say to
him. It was his lawyer who was picking a fight with me.” This
was presumably a reference to the
peace order. Gobey went to the
television set, switched it off and walked towards the front door to
open it to ask him to leave.
At this the appellant got up, grabbed
him, and threw him down on the couch. The appellant took his pistol
from his trouser pocket
and said “You thought I was fucking
around.” Next he cocked the pistol and a cartridge was
ejected. He fired a shot
towards Gobey’s head. The bullet
passed close to his ear. Gobey’s impression was that the
appellant thought he had
hit him, because the appellant then ignored
him and started kicking down the deceased’s bedroom door. When
Gobey followed
him into the bedroom after it had been forced open he
found the appellant standing against the window holding a box which
Gobey
assumed contained cartridges. The pistol was on the bed and
the deceased lay on the floor next to the wardrobe. Gobey tried to

get between the pistol and the appellant, but the appellant, who was
a much bigger man, again threw him aside. The deceased seized
the
opportunity to run out of the house. The appellant pursued her and
caught her across the road. With his left arm around her
neck he
started pushing her back towards the house. Gobey tried to get
between them, “But he just pushed me off again and
that is when
he fired the shot that hit me in the arm.” The appellant fired
with his free right hand. Under cross-examination
Gobey said “he
pushed me off and fired into my body. So whether he had the
intention of killing me or not, I don’t
know.” The
bullet wound to his left elbow led to two operations and a 30% loss
of use of his arm. Believing that he could
do nothing more and that
his life was in danger, Gobey ran bleeding from the scene, shouting
that the appellant was going to kill
his daughter. One of the
neighbours called the police. Another neighbour, Mrs Hazel Louw,
witnessed a part of the events that
occurred outside. The deceased
screamed while the appellant hit her on the head with his fist. When
Gobey tried to get her away
from him the appellant “pushed him
aside and shot at him.” The appellant “carried on
bashing her with the gun
in his hand, he started bashing her on her
head and was hitting her and kicking her.” After a time she
fell and the appellant
carried her towards and into the Gobey house.
Some time later the police arrived in force and the siege of the
house (which contained
only the deceased and the appellant at this
stage) began. The post-mortem report showed patchy bruising of the
whole of the deceased’s
scalp, apart from bruising on the left
forehead and in the mid line upper/lower lip of the mouth.
[13] The
appellant claimed to remember very little of the events that occurred
outside. It will be remembered that his last prior
recollection was
that he was in the house and had sat down in the lounge. His
evidence proceeds “The next I remember was
being outside in the
driveway . . . holding Melanie. Her father Mr Gobey being there . .
. I remember the sound of a gunshot going
off.” Under
cross-examination he became a little more expansive. He had held the
deceased with his left hand. Gobey was
there “and there was
like a squabble.” Asked if he remembered having his pistol, he
replied “I remember the
sound of a shot, so the gun must have
been with me.” When a closer description of the “squabble”
was sought
he said there was “Just a commotion like Mr Gobey
was trying to grab me.” He did not remember if any of the
three
persons present had made a noise. The next thing he remembered
was vomiting in the deceased’s bedroom. She was also there.
[14] The
deceased was now a hostage in her own home, which was being besieged
by the police. Meanwhile the appellant was firing
off shots
intermittently, into the ceiling and through the bedroom window.
Gobey later counted 16 bullet holes in the ceiling.
Warrant officer
Wessels (since deceased) crouched under the bedroom window and tried
to talk to the appellant. Wessels asked
him to surrender. The
appellant’s response was “Fuck you. I will not do that.
Fuck you.” Smit, a constable
who was next to Wessels, could
hear clearly what the appellant was saying. At a stage Father
Müller, who knew the appellant,
if not well, joined the police
under the window and announced himself. All he earned for his pains
was abuse of God, the church
and its minister.
[15] At 22h30 the phone rang at the
home of Mr Schnoor, the brother-in-law of the appellant. It was the
appellant speaking with
a slurred voice from the Gobey home. To
quote Schnoor’s words
“He
just told me that he [had] shot Huggy’s father and he is going
to shoot himself and shoot her as well
.”
Quite apart from his expression of future intention, the appellant
here for the first, but not the only time, manifested
an awareness
that he had shot Gobey. The appellant then said that Schnoor should
tell the appellant’s sisters that he loved
them and he loved
Schnoor too. He put the phone down.
[16] Schnoor
hastened to the scene, to find what he described as a war zone, with
police all over. He joined Wessels at the window.
The time was
about 22h40 . Shots were being fired through the window. Before the
appellant shot, he warned those outside of
his intention to do so.
Schnoor was accompanied by the appellant’s brother, and another
brother-in-law of Schnoor. The
appellant responded to them, saying
that he knew he was in trouble because he had already shot Gobey.
This was the second time
that he manifested this awareness. Indeed
the appellant’s impression seemed to Schnoor to be that he had
killed Gobey.
The relations asked Wessels what Gobey’s
injuries were. Wessels told the appellant what they were and that
they were not
too bad, but he did not seem to want to believe him,
and insisted that the damage was done, so that there was nothing more
he could
do but take his own life. At some stage the appellant said
that if he gave himself up the police would give him a hiding. He
was afraid of this. The police were becoming irritated, but then the
appellant was persuaded to let one of the family in, and he
allowed
the door to be opened to Schnoor, who entered. While opening the
door the appellant held the deceased. She opened the
door. He held
the pistol next to her. Schnoor pushed the door closed. The time
was a little after 23h00. The appellant then
retreated walking
backwards into the bedroom, holding the deceased, with the pistol
pointed at her. Schnoor followed.
[17] The
deceased was dressed in jeans. Once in the bedroom she sat on the
floor between the appellant’s legs. He sat with
his back to
the wall, his pistol in his hand. There was a brandy bottle near him
with an inch or inch and a half of fluid in
it. The appellant told
Schnoor to sit on the bed, which he did. The appellant then said to
Schnoor that no one wanted to believe
him as to how he felt about the
deceased. He had told her what was going to happen and no one
listened. He had spoken to her
and she did not believe him, because
every time he went out with someone else she would telephone him and
try to get him away from
his next girlfriend. The deceased then held
him around the neck and told him that she did love him. She seemed
to be afraid.
He hit her on her head quite hard with the butt of the
pistol and said that she was lying. He then asked Schnoor to pass
him
a cartridge box lying on the bed. Schnoor told him that it was
empty, but the appellant insisted and Schnoor threw the empty box

onto the floor in front of him. The appellant then noticed some
loose rounds lying on the bed and asked for them. Schnoor held
them
in his hand and tried to talk to the appellant, but the appellant
again insisted, and Schnoor, somewhat fearful, threw them
towards
him. Some fell out of his hand when he fumbled, but he picked them
up again and loaded them into the pistol’s magazine.
He drank
from the brandy bottle, but this caused him to choke and he started
vomiting. Thereupon he got up and said that it was
about time that
Schnoor left. The appellant said that there was no hope. Schnoor
understood him to mean that he was going to
carry out his threat. He
moved towards the door, but Schnoor warned him not to stay up
because there was a policeman at the bathroom
window. Schnoor feared
he would shoot the appellant. Schnoor said he was not going to leave
as he had come for another reason.
(In cross-examination a leading
question was put to Schnoor to the effect that what he had said in
chief was that it was the appellant,
not Schnoor, who was to leave,
in order to give himself up. Schnoor, readily compliant to
cross-examination, agreed despite the
plain incorrectness of the
proposition. Such a version is quite contrary to the whole tenour of
his evidence as well as his actual
words.) However that may be, the
appellant did sit down again as before and had another drink.
[18] Then,
according to Schnoor, “he was getting tired because I could see
he was not responding to anything else.”
Wessels from outside
wanted to know why everything was so quiet. The appellant vomited
again and pushed the deceased away with
his feet from where she was
still sitting between his legs. After vomiting he was “actually
dozing.” Schnoor thought
that this might be his opportunity to
gain possession of the pistol. At this moment the deceased moved
forward. The appellant
seemed to get a fright and he joined his left
hand over his right so that there were two hands on the pistol. The
fatal shot was
fired. The entrance wound was just underneath and to
the back of the right armpit. The bullet penetrated the right lung
and the
jugular, to exit on the right side of the chin. It was
argued that the path of the bullet was not consistent with a typical
execution
shot at the back of the head or neck, but Dr Ingles, the
post-mortem doctor, agreed that if the deceased had suddenly leaned
forward,
the shot could have been aimed to go straight through the
head or neck in execution style.
[19] The
appellant then held the pistol to his right forehead. Schnoor
entreated “Denver, don’t do that.” The
appellant
sat with his mouth open. Schnoor went forward, took the pistol and
left the house with it. The police burst in. Smit
said that the
time was about 00h05. Schnoor’s estimate of the time that he
had been in the house was 30 to 45 minutes.
(Smit estimated it as 20
to 30 minutes). According to Schnoor the police kicked and punched
the appellant and hit him with a rifle
butt. He shouted to Schnoor
“You see, this is what I told you. They are going to hit me .
. .. This is what happens.”
[20] Schnoor
said that he thought that the appellant’s hands were handcuffed
before he came out. This could not have been
so if we are to accept
the evidence of two clearly independent witnesses, as the trial court
did. The one was the neighbour, Mrs
Casey Louw. She said that as
the appellant came out he put his fist up. Father Müller , who
gave evidence before her, described
the appellant’s action as a
black power salute of sorts. The fact that this first mention of the
gesture came out by chance
during cross-examination, in itself
negates the suggestion that this evidence was concerted. There is no
reason for disturbing
the trial court’s finding that the
appellant acted in this manner. Particularly I reject the submission
that Father Müller
may have fabricated the evidence because the
appellant had joined another congregation.
[21] I
accept the police evidence that the appellant was taken hastily from
the front door to the police van because of the hostile
crowd.
According to Smit the appellant was run out with a policeman on
either side. He was not dragged and he did not stagger.
At the
police station the appellant understood what was wanted of him when
he gave his name and surname and handed over his personal

possessions. Although Smit considered the appellant to be under the
influence of liquor, he did not appear to him to be drunk.
[22] To
return to the appellant’s evidence. I left him with his
description of the “squabble” outside, followed
by a
recollection of vomiting in the deceased’s bedroom. His
version proceeds. He remembered seeing Schnoor at the door.
He
remembered the deceased being in her bedroom but did not remember
seeing her face. The next that he remembered was being at
the Loop
Street police station, where someone put a tape on his hand and where
policemen shouted at him that he was a murderer.
He also remembered
a desk and being placed in a crowded cell. After that he remembered
speaking to his mother the next day.
That is all. On the
appellant’s evidence he was not able to dispute at all
Schnoor’s version of the shooting. The
trial judge observed
that Schnoor was extremely sympathetic towards the accused, possibly
because he was his brother-in-law; and
that he agreed with virtually
every suggestion made to him in cross-examination, even to the extent
of agreeing that the fatal
shot probably went off accidentally or as
the result of a spur of the moment reflex.
[23] The
trial court did not take into account the evidence of Mrs Joy Isaacs,
an aunt of the deceased, who had also described how
the appellant
made a clenched fist salute as he emerged from the house. She had
given further evidence that bears directly upon
the appellant’s
motives and intentions when sober. The reason for ignoring her
evidence was not based upon its content
or her demeanour, but
because it might be inferred that she was hostile to the appellant.
No doubt she was. She described how
on an occasion in 1994 she was
at a night club together with her niece, the deceased, who did not
have a male escort. The appellant
came over to Mrs Isaacs and asked
her to take the deceased home. She asked him why, and he answered
that he could not bear to
be under the same roof as the deceased when
they were not going out together, as he could not bear the thought of
her being with
someone else. He went on to say that if he could not
have her, nobody else would. He would kill her first. She asked
what he
would gain by killing her and he answered that no one else
would have her. How was he going to get away with it, she then
asked?
His response was that he would get very drunk and plead
insanity. If the case were to go to court he had friends in high
places
and would get off. She then asked him why, if he loved the
deceased so much, he tormented her so, and whether it was not a case

of obsession rather than love. He said yes, he thought it was. The
appellant was not smiling when he said these things. Mrs
Isaacs did
not know quite what to make of all this at the time. Her predominant
thought was that the appellant was trying to frighten
them, so that
the deceased would be taken home, which Mrs Isaacs and her companion
did not do. However, she later warned the deceased
to be careful of
the appellant, as she did not trust him. She herself had nothing
more to do with him. When he gave evidence
the appellant agreed only
with the first part of what Mrs Isaacs claimed had been said, namely
that he had asked her to take the
deceased home as he could not bear
to be in the same place as her. Shearer J asked him why he should
have made such a request,
and he gave the strange answer: because he
had arrived at the night club first. The rest of the conversation he
denied, saying
that it was a fabrication on Mrs Isaacs’s part.
[24] The
defence called several medical or technical witnesses. Much of their
evidence was concerned with or based on the later
agreed fact that at
the time of the fatal shooting the appellant’s blood alcohol
level was about 0.28 grams per 100 millilitres
of blood, which is a
very high level. This figure had been derived from the testing of a
sample taken from the appellant at the
police station at about 03h30
on 28 February 1995. The reading for the sample was 0.21. The trial
court paid little attention
to these witnesses, because their
conclusions were largely based on what they had been told by the
appellant or his attorney.
None of them had a command of the
evidence led at the trial, particularly that of the state, which
often placed a slant on the
appellant’s actions, intentions
recollections and versions different from that which he had put
forward. I consider this
view to have been justified. Something is
to be learned from some of the evidence, but it is of no real help on
the central questions
in the case.
[25] Dr
Dunn, who was called by the State, by contrast, sat through the
whole trial. He was the principal psychiatrist at the
Midlands
Hospital complex. He listed various of the actions of the appellant
which he said showed an awareness of what he was
doing, were
purposeful and some of them of some complexity. The barrage of shots
showed a person who had been drinking and who
was behaving in an
unrestrained fashion, rather than one who had completely lost control
of himself. He believed that the appellant
was able to distinguish
right from wrong, and that, even though he behaved in a disinhibited
way, he was able to control his actions.
He was confident of the
fact that the appellant was aware that his actions could cause the
death of the deceased. I do not propose
giving further details of
his reasons, because he speaks of things on which the court, in the
end, will have to decide for itself.
It should be added that this
being a case of “sane automatism” there is no need of an
expert to explain any actual
pathology.
Count
2 - Murder
[26] I turn first to the murder
count. Has the State discharged the onus, and if so, in what form?
The State has proved events
that
prima
facie
, at least,
establish the appellant’s awareness of what he was doing.
Despite the drinking bout of the afternoon he was able
to drive his
car some two kilometres and park it a little distance from the Gobey
house. There followed a series of deliberate
actions aimed at
getting Gobey out of the way and gaining mastery over the deceased,
with the eventual object of denying her forever
to any other man.
These actions will be discussed below under the topic of
premeditation. While this was happening he dialed
Schnoor and
conveyed a coherent message to him. Once the siege was under way he
carried on a coherent, if disturbed, conversation
with the police,
two relations and a minister. When he fired out of the window he
showed a nicety of distinction of victim by
giving warning each time.
Later, when he admitted Schnoor through the front door and retired
to the bedroom he was careful to
protect himself against police
snipers by using the deceased as a shield. Then, he was able to
explain to Schnoor what his plan
was and why he had adopted it. He
asked for a box of cartridges and when it was found to be empty he
observed some loose ones,
which he insisted be passed to him.
Despite some fumbling he loaded them into the pistol. After all was
over he was able to
trot out between two policemen and give a
sufficient account of himself at the police station. However drunk
he was these are
not the actions of a man who had no or little idea
of what he was doing.
[27] Concerning
his ability to appreciate the wrongfulness of his actions, when he
phoned Schnoor he mentioned that he had shot
Gobey, when he conversed
through the window he manifested a realisation that this boded
trouble for him, and when he spoke through
the window and later to
Schnoor inside the house he expressed fear of punishment by the
police. His appreciation regarding his
conduct towards the deceased
could not have been less.
[28] Given
his poor credibility, so poor that his version must be rejected as
being not reasonably possibly true, there is really
nothing to stand
against the inferences to be drawn from his conduct as to his
appreciation of the nature and wrongfulness of his
deeds.
Premeditation
- Both Counts
[29] When
one assesses the evidence to ascertain whether there was
premeditation, a clear and consistent pattern emerges. Perhaps
the
clearest evidence is that of Mrs Isaacs. The trial court decided to
leave it out of account. I am by no means persuaded that
it was
right to do so, but I will not decide whether to differ, because I
consider there to be ample evidence without recourse
to hers.
Towards the end of 1994 the appellant bought a pistol and made a
practice of carrying it with him. There can be no
mistake about his
undisputed threats to Gobey that he was going “to find [the
appellant] and [the deceased] dead in the room.”
On the night
of the shooting he entered the home with a loaded pistol, two
magazines, a box of cartridges and a bottle of brandy.
Almost
immediately he menaced Gobey by saying “You thought I was
fucking around” and firing a shot which went past
his head.
This is plainly a reference to his previous threats. His conduct in
then leaving Gobey unattended while he battered
down the bedroom
door, after which he threw down the pistol on the bed, strongly
suggests that he thought he had eliminated Gobey
as a factor. When
the deceased succeeded in fleeing he remorselessly pursued her
outside and reduced her to captivity in a brutal
fashion. When Gobey
sought to intervene he was dealt with forcefully. The content of the
phone call to Schnoor shows that he
believed that he had shot Gobey
(as he had) and expressed the intention of shooting the deceased and
himself. Later, when Schnoor
was inside the house with him, the
appellant said that it was time that Schnoor left and that there was
no hope. Schnoor understood
this to mean that he was about to
execute his threat. Earlier he had said that no-one wished to
believe him as to how he felt
about the deceased. When he fired the
fatal shot he held the pistol with two hands, and the trajectory of
the bullet was consistent
with a typical execution shot, given the
fact that the deceased had suddenly moved forward. He then put the
pistol to his head.
Had it not been for Schnoor’s entreaties
he would presumably have fulfilled the whole design that he had been
threatening
for some time. Nor when he chose instead to live, was
there any remorse at the terrible thing that had happened (that is,
if the
shot had been unintended). Indeed, when he emerged out of the
front door he emerged a victor, in his own eyes.
Dolus Directus
- Count 2
[30] I think the State is correct in
its submission that the appellant should have been convicted on the
basis of
dolus
directus
. However
befuddled he was when he fired the fatal shot, the shooting was
merely the culmination of a design entertained for at
least some
hours. But I do not think that the conviction should be based only
on the appellant’s having continued drinking
in order to steel
himself to act in a state of hopeless drunkenness. Cf
S
v Chretien
1981 (1)
SA 1097
(A) at 1105 G - H. Up to the end he could control himself,
just as he controlled several other people. Although his powers of

self-control were substantially diminished, his actions show that
they were not lost. The appeal against conviction on the murder

charge must fail.
Sentence
- Count 2
[31] Nor do I think that there is any
basis for our altering the sentence of 14 years imprisonment. We
were addressed in the customary
way to the effect that the trial
court had not paid sufficient attention to factors personal to the
appellant, such as his clean
record and his undoubtedly unhappy home
background. But no misdirection has been shown. On the other hand,
the crime was not
only premeditated but brutal, and manifested the
highly objectionable feature of one person practically asserting
ownership over
another. The public is entitled to expect a heavy
sentence. As far as drink is concerned (and a great deal was
consumed), the
trial court has already given the appellant credit for
that. Bearing in mind also that I am of the view that
dolus
directus
should
have been found, I am of the view that the appeal against sentence on
the murder charge (count 2) must fail.
Count
1 - Attempted Murder - Conviction
[32] As
far as count 1 is concerned, a single count of attempted murder of
Gobey was brought. There was no attempt to divide the
charge so as
to reflect the two shots separately. The trial court convicted the
appellant of the offence of assault with intent
to commit grievous
bodily harm in respect of the first shot (inside the house). The
trial court went on to say that the second
shot may have resulted
from a purely reflex action when
Gobey tried to pull his daughter away from the deceased. On the
evidence I can see no basis for
such a finding. It was not the
appellant’s version, as he had no version. Gobey’s
evidence was that “he pushed
me off and fired into my body.”
I do not think that his concession that he did not know if the
appellant intended to kill
him helps the appellant. Mrs Louw’s
evidence was that the appellant “pushed him aside and shot at
him.” The
left elbow is not far from the heart and lungs. The
effect of the evidence is, in my opinion, to show beyond a
reasonable doubt
that the appellant harboured
dolus
eventualis
when he
fired, wishing to get Gobey out of the way and reckless of where he
shot him in order to do so. It is significant that
the appellant’s
later utterances indicate that he believed that he had not merely
shot, but also killed Gobey. In my opinion
he should have been
convicted of attempted murder in respect of this second shot. With
regard to the trial court’s finding
that the first shot was
fired more as a demonstration and without the intention of hitting
Gobey (which finding is in my opinion
suspect), even though such an
act be a serious assault it cannot be assault with intent to commit
grievous bodily harm, as the
trial court found it to be. However, as
there cannot be two convictions arising out of a single count, the
assault conviction
must fall away.
[33] Where an appeal court is
convinced that a trial court, because of a wrong finding of fact or
law, convicted the appellant of
a less serious offence than that
which, in terms of the indictment, he should have been convicted of,
the court of appeal has the
power, in terms of s 322 of Act 51 of
1977, to alter the conviction accordingly:
S
v E
1979 (3) SA 973
(A). The State has asked us to do so, and in the light of the
evidence already mentioned, I consider it incumbent upon this court

to alter the conviction on count 1 to one of attempted murder of
Gobey.
Count
1 - Sentence
[34] The
circumstances relevant to sentence on count 1 are before us and the
subject has been ventilated. In my opinion the sentence
of six
months imprisonment should be struck out and replaced with a sentence
of three years imprisonment, of which two years are
to run
concurrently with the sentence on count 2. I bear in mind that the
shooting of Gobey was not isolated from the murder of
the deceased.
The effective sentence will therefore be increased from 14 years and
six months to 15 years imprisonment.
[35] In
the light of the findings on both counts a consideration of s 1 of
Act 1 of 1988 falls away.
Order
[36] The
appeal against conviction and sentence on count 2 fails.
[37] The
appeal against conviction on count 1 fails and the conviction is
altered from one of assault with intent to commit grievous
bodily
harm to one of attempted murder. The sentence on count 1 is
increased from six months imprisonment to three years imprisonment,

of which two years is to run concurrently with the sentence on count
2.
W
P SCHUTZ
JUDGE
OF APPEAL
CONCUR
MELUNSKY
AJA
MADLANGA
AJA