S v Joshua (332/2001) [2002] ZASCA 71; [2002] 3 All SA 507 (A) (31 May 2002)

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[2002] ZASCA 71
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S v Joshua (332/2001) [2002] ZASCA 71; [2002] 3 All SA 507 (A); 2003 (1) SACR 1 (SCA) (31 May 2002)

REPUBLIC OF SOUTH AFRICA
IN
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case number: 332/2001
In
the matter between:
HARRY
JAMES JOSHUA
Appellant
and
THE
STATE
Respondent
CORAM
:
NIENABER,
CAMERON and MPATI JJA
HEARD
:
9
MAY 2002
DELIVERED
:
31
MAY 2002
Summary
:
Criminal liability –
mens rea
– test for putative private
defence – accused’s honest but erroneous belief that his life was
in danger excludes
dolus
– culpable homicide – sentence.
___________________________________________________________________
JUDGMENT
__________________________________________________________________
MPATI
JA:
[1]
The appellant was arraigned before Rose-Innes
J and two assessors in the Cape Provincial Division on five counts of
murder (counts
1-3 and 5 and 6) and two of attempted murder (counts 4
and 7). He was acquitted on count 1 but convicted as charged on the
remaining
counts. He was sentenced to 15 years’ imprisonment on
each of the four remaining murder counts and five years’
imprisonment
on each of the two attempted murder charges. All the
sentences were ordered to run concurrently, with the result that the
effective
term of imprisonment is 15 years. Rose-Innes J granted the
appellant leave to appeal to this Court against the convictions and
the
sentences imposed.
[2]
The charges against the appellant arose from
the following facts. The appellant and his family lived in
Welgelegen Avenue, Delft,
Cape Town. During the afternoon of 23 May
1994 the appellant’s wife was robbed of a sum of R200 in the
presence of her two minor
children (a girl aged 12 years and a boy
aged 8 years) after she had made purchases of household necessities.
When she arrived home
she telephoned the appellant, who was at work
and reported the robbery to him. She informed him that she had been
robbed by two
youths of whom one held a knife to her throat. From
the description she gave him the appellant had an idea of who his
wife’s robbers
were. Later that evening he and his wife discussed
the robbery over supper. At approximately 20h30 he requessed his
next-door neighbour,
Tohier Hofmeyer, to accompany him in search of
his wife’s robbers. Hofmeyer agreed. The appellant went into his
house and armed
himself with his 12 bore calibre Mosberg pump action
single barrel shotgun which he fully loaded with six cartridges while
Hofmeyer
waited outside. He was well trained in the use of this type
of firearm. He took an additional six cartridges and concealed the
shotgun under his overcoat.
[3]
When fully loaded the gun holds five
cartridges in the magazine and a sixth in the chamber. The
cartridges are designated “LG”
which indicates that the shot or
pellets inside the cartridge are the largest available. There are
eight pellets in a cartridge.
[4]
Across the street in front of the appellant’s
house is a large sports ground fenced with a vibracrete wall. The
appellant and
Hofmeyer entered the sports ground through a gate in
Welgelegen Avenue and walked across the length of the sports ground
towards
the far left-hand corner which abuts Delft Main Road. On
approaching that corner they heard voices and on walking further they
saw
a group of five youths sitting in an “L”-shape against the
wall in the corner. These youths were drinking beer and, according
to the appellant, smoking what he believed was dagga. The appellant
and Hofmeyer walked up to the youths, where, standing from a
distance
of approximately two to three paces from them, he demanded his wife’s
purse from one of them, who fitted the description
given to him by
his wife as one of her robbers. It is not in dispute that this youth
was Marlin Mohammed (Marlin), a 17 year old
schoolboy and the
deceased in the first count. I shall deal with the detail of what
followed later in this judgment but the upshot
of it all was that the
appellant fired four shots with his shotgun with the result that
three of the youths, namely Marlin, Fabian
Rossouw (Fabian) (a 17
year old, the deceased in count 2) and Mervyn du Plessis (Mervyn)
(also 17 years old, the deceased in count
3) were fatally wounded.
Another youth, Ivan Mootjie, 14 years old at the time and the
complainant in count 4 (attempted murder),
was badly injured in his
left upper arm.
[5]
Ivan Mootjie’s brother, Etienne Isaacs
(Etienne), managed to run away but was pursued by the appellant who,
during the chase, loaded
two more cartridges in his shotgun. Etienne
was eight paces ahead of him. At a certain stage the appellant took
aim at Etienne
but decided against shooting him. Etienne jumped over
the wall of the sports ground and ran into a side street which led
him into
Delft Main Road. He testified that he ran along Delft Main
Road, passed the house of one Abdurahman Hassan (deceased in count 6)
and hid in the bushes along Delft Main Road.
[6]
The appellant, having loaded more cartridges
in the shotgun, climbed over the wall and followed Etienne to Delft
Main Road. He testified
that when he entered Delft Main Road he saw
Etienne enter Hassan’s house. Hassan was unknown to him. He ran
along Delft Main
Road and when he came close to Hassan’s house,
which was approximately 175 meters from the scene of the shooting at
the sports
grounds, he saw three men standing at the door. The door
was open. As to what happened then the versions of the State and the
defence
differ.
[7]
Moses Gouws, 30 years of age and complainant
in count 7 (attempted murder), testified that during the evening in
question he, Hassan,
Johannes Jacobs (deceased in count 5) and Faizal
Petersen were in an outside room in Hassan’s house when an unknown
man (the appellant)
peeped through a window and asked about a youth
who had allegedly run through the property. At that stage Hassan was
busy preparing
supper for them and was peeling potatoes. He had a
fixed-blade knife in one hand and a potato in the other. Hassan then
opened
the door and the three of them (Hassan, Jacobs and the
witness) stood at the door, with Jacobs slightly behind and to the
side of
Hassan and the witness behind them but inside the room. The
appellant was approximately two to three paces from them. Hassan’s
dog came around the corner of the house and barked at the appellant
but did not charge or threaten to bite him. The appellant suddenly
took out a firearm from underneath his long overcoat and shot the
dog. It fell and died close to the door. When Hassan asked why
the
appellant had shot his dog the appellant turned and shot Jacobs, who
fell and died where he had been standing in the doorway.
Thereafter
the appellant shot Hassan, who staggered forward as a result of being
shot. He asked the appellant: “Skiet jy nou
vir my ook?”,
whereupon the appellant fired a second shot at him. Hassan, who
still had the knife and a potato in his hands then
fell down.
[8]
Gouws continued that when he realised what
was happening he turned around and ran further into the room. While
doing so another
shot went off and he felt a burning pain in his
right shoulder as a result of which he fell to the floor. A further
shot was fired
which struck the wall above and ahead of him. He was
approximately five paces from the door when he was shot from behind.
He called
out to Faizel Pietersen, who was hiding behind a cupboard,
that he had also been shot. He assumed, from the position where he
was
when he was shot, that the appellant must have moved from where
he had been standing when he shot Jacobs and Hassan. Gouws testified
that the appellant, after shooting him, entered the room and kicked
him, saying: “Ja, jy is ook vrek”. He went out after the
appellant had left and he sat outside until an ambulance arrived and
conveyed him to Tygerberg Hospital.
[9]
Gouws’s version is supported in material
respects by Faizel Pieterson, although there are certain
discrepancies in their testimony.
While Gouws testified that after
Hassan had opened the door he did not say anything, Faizel Pietersen
testified that Hassan enquired
from the appellant whether he could
help him (“kan ek jou help?”); that after the door was opened,
Hassan and Jacobs stood at
the door, with Hassan slightly outside,
although the witness was unable to say how far from the door Hassan
was. When Gouws called
out to him that he had been shot he grabbed
Gouws, threw him onto the floor and then hid behind a display
cupboard in the room.
He then heard footsteps inside the room but
could not say how far they progressed into the room. The person,
however, went out again
without having said anything. The witness
remained where he was hiding until he heard someone scream outside.
He went out and saw
that it was Fabian’s mother.
[10]
The appellant’s version is that while he
and Hassan were exchanging words about the youth, who he alleged had
run through Hassan’s
property, a dog came out of the house and
barked at him. He testified that the three men (Hassan, Jacobs and
Gouws) were storming
at him. Hassan set the dog on him and when it
charged he shot it. He then shot Hassan who was advancing on him
with a knife in
his hand. Thereafter he fired further shots as the
men continued to advance, so the appellant testified. He was
retreating as he
fired. He did not know how many shots he fired. He
believed that by setting the dog on him the men wanted it to draw his
attention,
thereby creating an opportunity for them to attack him.
There was no opportunity to turn around and run away as the three men
would
have attacked him from behind, so the appellant continued. He
was thus obliged to defend himself against the imminent attack as
his
life was in danger. He fired the shots in rapid succession. After
the shooting he saw the door of the house next to Hassan’s
open
and close again. He then ran home.
[11]
The appellant denies that he entered
Hassan’s house. In this regard he finds support, in my view, from
Wilma Rossouw (Fabian’s
mother). She was Hassan’s next-door
neighbour and was at home on the evening in question. She testified
that when she heard shots
close by she opened the door and saw a man
in a long overcoat with a firearm in his hand. When he turned and
looked at her she slammed
the door close. She then thought of her
son Fabian, who frequented Hassan’s house and she immediately
opened the door again.
By this time the man had disappeared. She
went out and saw the bodies of Hassan and Jacobs. Wilma Rossouw
confirmed that the man
she saw with a firearm could not have entered
Hassan’s house and come out again before she had opened her door on
the second occasion.
[12]
It is, however, not necessary to make a
finding on this aspect as will be shown presently. Photographs of
the scene of the shooting
at Hassan’s house form part of the
record. These photographs depict Hassan’s body lying a few paces
away from the door of the
room from which he and Jacobs had emerged.
Jacobs’s body can be seen lying in the doorway with his knees bent
and his feet on
the ground just outside the door, while the rest of
his body is inside the room. According to the findings of Professor
Jurie Potgieter
Nel, who performed the post mortem examinations on
the bodies of all the deceased on 24 May 1994, Hassan was shot three
times. There
was a shotgun wound of the right forearm where the
anterior muscles were ripped off. Associated with this wound there
was a gaping
entrance wound on the right frontal side of the right
chest near the sternum with three smaller peripheral wounds next to
it. It
appears that the wounds to the right arm and right chest were
caused by the same shot. There was another group of shotgun wounds
in the left chest. The third shot caused eight entrance wounds in
the left hip area, spread over an area of 140 mm by 90 mm. All
these
wounds (chest and hip) caused severe internal damage. The cause of
death was “veelvuldige skietwonde”.
[13]
Jacobs died as a result of “skietwonde van
die bors”, according to Professor Nel. He had shotgun wounds in
the left arm and
left chest and another wound through the left
abdomen. The wounds in the arm and chest appear to have been caused
by one shot.
Professor Nel testified that the wounds sustained by
Jacobs evidenced a larger spread of slugs or pellets and those
sustained by
the rest of the deceased, which means that he would have
been further from the appellant than the others when he was shot.
However,
he concluded from the size of their left chest wounds that
to have sustained such wounds Hassan and Jacobs would have been shot
from
approximately the same distance. Although there was no
indication of the sequence in which Hassan sustained his wounds,
Professor
Nel testified that the largest spread of entrance wounds
was in the hip area, followed by the wounds in the left chest and
then the
right chest. Hassan was thus furthest from the appellant
when he sustained the wounds in the hip area.
[14]
A ballistics expert, Lieutenant Johannes
Willem Nel, concluded from his examination of their wounds that
Jacobs was shot from a distance
of approximately 5-6 meters, while
Hassan was shot from approximately 5-6 meters when he sustained the
wounds in his right forearm
and from approximately 2 meters when shot
through the chest. Professor Nel’s conclusion that Hassan was
furthest from the appellant
when he sustained the wounds in the hip
area suggests that at a certain stage Hassan was further from the
appellant than Jacobs.
Of that there is no suggestion in Gouws’s
evidence. That anomaly, however, does not affect the end result.
[15]
There is some discrepancy regarding the
injuries sustained by Gouws. Dr Jan Stadler Kirsten, an orthopaedic
surgeon at Tygerberg
Hospital, confirmed in his testimony that he
attended to Gouws and Ivan Mootjie on 23 May 1994. He had recorded
that Gouws had sustained
six wounds to the right shoulder blade and
one at the base of the neck, which means that he had been shot from
behind. During the
trial, however, Gouws displayed his injuries to
the court, which recorded that there are three heeled marks on the
left and three
on the right of his spine. As the court
a quo
held, this discrepancy is not material. What is clear is that the
location of the wounds supports Gouws’s version that he was
running
away from, or at least had his back to the appellant, when he was
shot.
[16]
The position of Jacobs’s body as depicted
on the photographs also supports the evidence of Gouws and Faizel
Pietersen that Jacobs
was standing at the door when he was shot and
killed. Jacobs could thus not have advanced towards the appellant
before being shot
as was alleged by the appellant.
[17]
As has already been mentioned above,
Professor Nel concluded that when they sustained their left chest
wounds Hassan and Jacobs would
have been approximately the same
distance from the appellant. Lieutenant Nel also concluded that when
he sustained the wounds to
his right forearm Hassan was approximately
5-6 meters from the person who shot him. This objective evidence is
further support for
Gouws and Faizel Petersen that Hassan was also
standing at the door (Faizel Petersen said slightly outside) when he
was shot. Gouws
testified that after he was shot Hassan staggered
forward, whereupon the appellant shot him again. In my view, even if
the appellant
may have believed that Hassan was advancing with a view
to attacking him, he had by then already dealt Hassan a fatal blow in
the
left chest and at a time when Hassan had been no threat to him.
[18]
It follows that the appellant’s defence of
self-defence in this incident was correctly rejected by the trial
court. On the facts,
the appellant could not reasonably have
believed that his life was in danger when he shot Hassan, Jacobs and
Gouws. The convictions
in respect of counts 5, 6 and 7 must,
therefore, stand.
[19]
Back to the first scene. The State’s
version, as testified to by Ivan Mootjie, may be summarised as
follows: At 14 years of age
he was no longer at school, having
progressed only to standard 4. During the evening in question he,
his brother Etienne and the
three deceased, Marlin, Fabian and
Mervyn, were sitting inside the sports ground and had just consumed
one of six bottles of beer
when they were approached by two men. The
two men (the appellant and Hofmeyer) stood 2-3 paces away from them
when the appellant
said, directing himself to Marlin: “Jy was
vanmiddag saam, waar’s my vrou se beursie?”. Before he could
elicit any response
from him the appellant drew a firearm from under
his coat, took two steps backwards and shot Marlin while he was
sitting against
the wall of the sports ground. Ivan Mootjie changed
his evidence later in this regard and said that Marlin was on his
feet when
he was shot. Next to be shot was Fabian. He was shot
while trying to rise after Marlin had been shot. Mervyn suffered the
same
fate. He tried to run away but was shot when he was
approximately 5 meters from the appellant. Thereafter the witness
was shot
in his left upper arm from a distance of approximately 2½
meters. He was on his feet, having risen because of shock. The
impact of the shot felled him. His brother Etienne ran away and the
appellant ran after him. The witness seized this opportunity
and ran
through another gate out of the sports ground to the house of one
Shameeg Scholtz, from whom they had earlier purchased the
six bottles
of beer. Shameeg Scholtz summoned an ambulance and called the
parents of the three deceased. Ivan Mootjie testified
that the
appellant’s companion ran away when the shooting started.
[20]
Etienne also testified. There were some
contradictions between his evidence and that of Ivan Mootjie. He
said, for example, that
Marlin, when the appellant demanded his
wife’s purse from him, said: “Ek ken jou nie, ek weet nie
waarvan jy praat nie”.
On Ivan Mootjie’s version Marlin said
nothing. It is in my view not necessary to record Etienne’s
testimony any further. The
trial court found his reliability to be
“open to considerable criticism”. It also found, despite denials
by Ivan Mootjie and
Etienne that they were members of a gang known as
Hard Livings, that the five youths were indeed members of such gang.
(Etienne,
however, testified that, bar himself, all the others were
gang members.)
[21]
The appellant’s version was that when he
asked for his wife’s purse from the youth who answered the
description given to him
by his wife the youth (Marlin) stood up,
with a beer bottle in his hand, and said: “Moenie kak praat nie”.
The rest of the
group then rose to their feet. When he repeated the
question the other youths used foul language. Marlin then threatened
to assault
the appellant, lifted the bottle and moved forward as if
to strike at him with it. The appellant stepped back and warned
Marlin
not to advance or else he would shoot. The youths surrounded
him. Marlin then uttered the word “up”, which the appellant
interpreted
as a command to attack. The youths were moving
aggressively, the appellant testified, and were about to attack him.
Marlin was
virtually on him and according to the appellant Marlin was
approximately 2-3 feet away. He testified that if he had turned
around
in an attempt to run away he would have been struck with the
bottle. His life was therefore in danger. He accordingly drew his
firearm and fired. He shot Marlin first and “then opened fire from
right to left” as the other youths were advancing towards
him. Two
of the youths ran away, one to the left and one to the right. The
appellant ran after the one who was running to his right,
who we now
know was Etienne. Ivan Mootjie was the other one. The appellant
said that he pursued Etienne instinctively. The culmination
of that
pursuit has already been dealt with above.
[22]
Hofmeyer did not witness the actual
shooting, on his version. He testified that he turned and ran when
he realised that they were
about to be attacked. He had run
approximately 15 paces from the scene when the shots went off. There
are some discrepancies between
his evidence and that of the appellant
on what occurred before he ran away. The court
a quo
accepted his evidence, however, where he corroborated the appellant
that the command “up” was given; that the appellant gave
the
warning: “Moenie nader kom nie, ek sal skiet”, and that he
(Hofmeyer) turned and ran away before any shots were fired.
Consequently, the court
a quo
accepted the defence version
that Marlin gave the command “up” and that he threatened to
assault the appellant and “held the
bottle in a fashion which
indicated an intent to strike [the appellant] with the bottle”. It
also accepted the appellant’s evidence
that he could not turn
around and run away “because he would be hit behind the head with
the bottle”. It is on this basis that
the appellant’s defence of
self-defence succeeded in respect of the killing of Marlin (count 1).
These findings were accepted
by the State. The significance of this
position on appeal will now emerge.
[23]
With regard to the shooting of Fabian and
Mervyn the court
a quo
concluded from the location of their
wounds and the position where Mervyn fell and died, taken together
with Ivan Mootjie’s evidence,
that they were running away when the
appellant shot them. It held that the “situation of self-defence
against Fabian, Mervyn and
Ivan no longer existed” when they were
shot.
[24]
Fabian was shot twice: once through the
chest and once through the left upper leg. The last-mentioned wound
was a gaping wound
which went right through the left upper thigh from
the outer to the inner aspect, shattering the femur. A cardboard
disc from the
front edge of a cartridge, inscribed with the letters
“LG”, was found inside this wound. The disc is ejected from the
muzzle
of a firearm when a shot is fired. The other shot struck
Fabian on the posterior part of the left upper arm, behind and below
the armpit. It went through the chest cavity, fracturing the fourth
and fifth ribs. There were exit wounds in the right armpit.
When his
body was unclothed at the mortuary a plastic plug, which holds the
pellets inside a cartridge, was found in Fabian’s clothing.

According to the ballistics expert, Lieutenant Nel, when a shot is
fired the plastic plug is ejected and falls to the ground
approximately
2-2½ meters from the muzzle of the firearm. The
cause of death was “skietwond deur borskas en been”.
[25]
Mervyn sustained a gaping entrance wound
behind the left armpit. It appears that all eight pellets from a
cartridge entered his
body as there were eight different wound tracks
through the right lung. The plastic plug from the cartridge was
found in the aorta
between the two lungs. There were two exit wounds
in the area of the left armpit. The course of death was “skietwond
van die
bors”.
[26]
The position of the wounds sustained by
Fabian and Mervyn clearly shows that they were shot from the side,
unlike Marlin, who was
shot in the front of his chest near the
sternum. I might mention that in the case of Marlin a plastic plug
and cardboard disc marked
“LG” were found inside his body.
Mervyn’s body was found at a distance of 8 meters from where Marlin
had collapsed exactly
on the corner of the sports ground. The
photographs, which form part of the record, indicate that Fabian fell
and died right next
to Marlin. To get to Marlin’s body one would
have to step over Fabian’s body.
[27]
Because the plastic plug was found inside
Marlin’s body and the fact that the plug falls 2-2½ meters
away from the muzzle
of the gun, Lieutenant Nel concluded that Marlin
would have been approximately 2 meters from the point of the barrel
when he was
shot. He said the same in respect of Mervyn. As to
Fabian, Lieutenant Nel estimated that he was shot from a distance of
approximately
4 meters. From the position of Fabian’s body as
depicted on the photographs, i.e. right next to Marlin, the fact that
the plastic
plug was found on his clothing and the cardboard disc
inside the wound in his thigh, it would not be unreasonable, in my
view, to
conclude that Fabian was more or less the same distance from
the appellant, as was Marlin, when he was shot. Indeed Professor Nel
also concluded that all three were shot from a distance of
approximately 2-3 meters. There being no evidence that the appellant
moved positions while he was shooting, the inference to be drawn is
that Mervyn tried to run away after he had been shot and that
he fell
at a distance of 8 meters from where Marlin collapsed and died. Ivan
Mootjie’s evidence that Mervyn ran passed him before
he was shot
and that he was shot in the back while running cannot be correct. As
I have already stated, Mervyn was shot from the
side.
[28]
The appellant testified that everything
happened fast. It is important to bear in mind that in critical
respects the trial court
accepted his version in this regard. From
this followed its acquittal of the appellant on count 1. There is to
my mind no reason
to reject the defence version that when Marlin gave
the order “up” the rest of the youths advanced upon the
appellant. What
must be remembered is that these were gangsters,
even though relatively young. As I have mentioned, Fabian and Mervyn
must have
been more or less within the same range from the appellant
as Marlin when they were shot. One of two things could thus have
happened
for them to be shot from the side. Either they turned
sideways to avoid being struck from the front, or they turned in
order to
get away. In either event, in my view, they could not still
have been advancing with the view to attack. But they were still so
close to the appellant that he may very well have believed that he
was still in danger of the imminent attack as he said he was.
That
does not mean, however, that his invocation of the defence of
self-defence must be upheld.
[29]
In
S v De Oliveira
1993 (2) SALR 59
(A) this Court (per Smalberger JA) said the following (at 63i-64a):
“
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. 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.”
In considering Fabian’s position the court
a quo
said that if the appellant had paused for a moment before firing the
second and third shots (Fabian was shot twice) he would have
realised
that “this man is turning away and I have nothing to fear from
him”. On this reasoning the trial court ought not to
have
convicted the appellant of murder. Considering that the
onus
was on the State the evidence did not prove that the appellant did
realize that his life was no longer in danger from Fabian.
[30]
The court
a quo
held that the
appellant must have realised that Fabian was running away from him
and that he “must give him another few seconds
because it looks as
if he is turning away”. Clearly, the court
a quo
arrived
at this conclusion merely from the location of Fabian’s wounds,
which, as has been mentioned, indicate that he was shot
from the
side. In my view the trial court did the very thing against which it
warned itself when it considered the verdict in respect
of Marlin.
It said that it had come to the conclusion that the appellant must
not be treated as if he was in a position where he
could calmly
consider his options. The court
a quo
lost sight of the fact
that the incident played itself out very fast. It also lost sight of
the fact that Fabian was more or less
the same distance from the
appellant as Marlin was, having been advancing to attack. The fact
that the appellant was “very well
equipped and trained to fire
rapidly” does not alter the position, in my view.
[31]
The same considerations apply in respect of
Mervyn and Ivan Mootjie. The court
a quo
held that the
shooting of these two youths “who were running away” was
unforgivable. It erred, in my view, in holding that
Mervyn and
Ivan Mootjie were running when they were shot. I have already dealt
with the position of Mervyn. As to Ivan Mootjie,
he was, on his own
version, shot from a distance of approximately 2½-3 paces. He
did not testify that he was shot while running.
[32]
Based on what was said by this Court in
S
v De Oliveira
,
supra
, in the passage quoted above, at
worst for the appellant he should have been convicted of culpable
homicide on the murder counts
involving the deaths of Fabian and
Mervyn. He erroneously believed that he was still in danger of being
attacked by them and that
he was accordingly entitled to retaliate,
when in fact they were turning or had turned sideways, probably in an
endeavour to escape.
His erroneous belief that his life was in
danger excludes
dolus
. Again the same considerations apply to
Ivan Mootjie, but fortunately he was not fatally wounded. Culpable
homicide would thus
not be a competent verdict in his case. Neither
would a conviction of assault with intent to do grievous bodily harm
because
dolus
, which is an element of the offence, is
excluded. The appellant should accordingly have been acquitted on
count 4.
[33]
As to the sentences imposed, the appellant’s
counsel commenced his argument with a concession that 15 years
imprisonment for murder
seems to be a lesser sentence than would to
now have been imposed. Counsel continued, however, that the trial
court misdirected
itself in failing to take into account the nature
of the attack which the appellant believed he was facing; also that
insufficient
weight was given to various factors which I find
unnecessary to list here. Ultimately, counsel’s argument amounted
to saying that
a lengthy period of imprisonment was inappropriate in
the circumstances of this case and that a sentence of correctional
supervision
in terms of s 276(1)(
h
) or (
i
) should have
been imposed.
[34]
I agree with counsel for the State that the
trial court did not misdirect itself in any respect. It
painstakingly weighed all the
relevant factors and, subject to what
follows regarding the offences involving Fabian and Mervyn, arrived
at what I consider to be
appropriate sentences. It considered the
cumulative effect of all the sentences and decided to ameliorate the
position by ordering
them to run concurrently. I can find no fault
with the trial court’s approach. Obviously the sentences in
respect of counts 2
and 3 have to be set aside and sentences imposed
afresh due to the alteration of the convictions from murder to
culpable homicide.
That will of course be cold comfort to the
appellant since the sentences in respect of the other murder
convictions will remain
the same. I consider that 5 years’
imprisonment for culpable homicide is an appropriate sentence in the
circumstances of this
case.
[35]
One further aspect requires attention.
Leave to appeal in this matter was granted as long ago as 2 October
1995. Since then or
soon thereafter the appellant has been out on
bail. The record was only lodged on 14 August 2001, a delay of
almost 6 years. When
leave to appeal to this Court is granted to an
accused the registrar of the court granting such leave is obliged, in
terms of
s 316(5)
of the
Criminal Procedure Act 51 of 1977
, to cause
a notice to be given to the registrar of this Court
without delay
and to cause to be transmitted to her a certified copy of the record.
Rule 52(1) of the Uniform Rules of Court is substantially
to the
same effect. It would appear,
prima facie
, that the delay has
to be laid at the door of the registrar of the Cape Provincial
Division. We were not in a position to call for
an explanation from
that office. The delay is, however, inexcusable. The matter has
remained in limbo for more than half a decade
through a lack of
administrative safeguards to prevent such occurrences. We were
informed by Mr Cilliers, for the State, that previously
no rules of
procedure existed in the office of the Director of Public
Prosecutions in terms of which a follow-up could be made where
an
accused had been granted leave to appeal to this Court. Now there
are - a welcome development indeed. One can only hope that
delays of
the nature encountered in this matter will be avoided in the future.
[36]
The following order is made:
(a) The appeal against the appellant’s convictions on
counts 2 and 3 is upheld to the extent that each such conviction is
altered
to “guilty of culpable homicide”.
(b) The sentences in respect of counts 2 and 3 are set
aside and replaced in each instance with the following:
“5 years’ imprisonment.”
(c) The appeal against the conviction and sentence on
count 4 succeeds and the conviction and sentence are set aside.
(d) The appeal against the convictions and sentences on
counts 5, 6 and 7 is dismissed.
(e) All the sentences imposed above are to run
concurrently.
…………………………
L MPATI JA
CONCUR:
NIENABER JA)
CAMERON JA)