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[2012] ZASCA 95
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Grigor v S (607/11) [2012] ZASCA 95 (1 June 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
607/11
In
the matter between:
CRAIG
WILLIAM GRIGOR
….......................................................................................
Appellant
and
THE STATE
.
…..................................................................................................
Respondent
Neutral citation:
Grigor v The State (
607/11)
[2012] ZASCA 95
(1 June 2012)
Coram:
Van
Heerden, Snyders and Tshiqi JJA
Heard:
16 May 2012
Delivered:
1 June 2012
Summary: Attempted
murder – self defence – must be a balance between the
attack and the defence – bounds of self
defence exceeded –
sentence not shockingly inappropriate.
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from:
North Gauteng High Court, Pretoria
(Msimeki
J and Mabuse AJ sitting as court of appeal):
The appeal against the
conviction and the sentence is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI
JA (
VAN HEERDEN AND SNYDERS JJA CONCURRING
)
The appellant in this
matter was convicted by the regional court magistrate, Benoni, on a
count of attempted murder and was sentenced
to six years’
imprisonment. He appealed to the North Gauteng High Court, Pretoria,
leave having been granted by the regional
court magistrate, against
both the conviction and sentence. His appeal to the high court was
dismissed. His appeal is now before
us, with the leave of this
court, against both the conviction and sentence.
The appeal arises from a
road rage incident that occurred on 11 January 2008 along
Kirshner Road, Benoni, between the
appellant and the complainant.
Before the incident the complainant had just made a u-turn in a
drive-way and then entered the
road when, according to him, he
noticed the vehicle driven by the appellant ‘flying up’
behind him in the same direction.
It overtook him. Whilst so
driving, an exchange of gestures, consistent with both their
perceptions that each had driven in an
unacceptable manner took
place between them. Their respective versions on what really
occurred differ. At some stage they both
alighted from their
respective motor vehicles.
The appellant testified
that he stopped his motor vehicle first and made what he called an
‘emergency exit’. He advanced
towards the complainant’s
vehicle which was parked behind his and stopped next to the rear
fender of his own vehicle. The
complainant also alighted from his
own vehicle and advanced towards the appellant and pushed him. The
only inference to be drawn
from their behaviour at this stage is
that they were both angry and ready to confront each other.
Consequent to this, a fight
ensued between them, during which the
appellant inflicted several stab wounds on the complainant with a
knife. At the time the
appellant was not only armed with a knife but
also had a fire-arm, which he did not use. The complainant was
unarmed. There were
no independent witnesses to the fight.
After the fight the
complainant drove home and was, shortly thereafter, hospitalised and
had to be sutured and to undergo surgery.
The medical report
completed by an authorized medical practitioner (J88) and which was
submitted as evidence notes the following
clinical findings on
admission:
‘
Stab wounds (multiple) on the
face, chest, abdomen, (R) thigh…, facial wound sutured in
casualty, patient referred to surgeon
on call, patient was taken to
theatre’.
Dr Malanda who had
completed the J88 was called to testify. He described the stab wounds
as a deep laceration on the face, a big
laceration on the right thigh
which was deep, involving the muscles on the middle aspect of the
leg. He sutured the facial wound
himself. He described the wound on
the abdomen as a deep wound below the ribs which penetrated the
abdomen. He was not able to
repair this wound and decided to refer it
to a surgeon. Dr Snyders, the surgeon, testified and confirmed Dr
Malanda’s evidence
pertaining to the nature of the wounds. Both
doctors stated that several of the injuries were so serious that the
complainant could
have died from bleeding if he had not received
medical intervention.
The defence raised by
the appellant was that he stabbed the complainant in self defence.
In order to succeed in his defence the
appellant had to show, first,
that the defensive act was necessary in order to protect himself and
also that there was a reasonable
relationship between the attack and
the defensive act.
The gist of the
appellant’s evidence was that the complainant was the
aggressive party in that he was rude towards him from
the moment
they met and continued to be aggressive after they had both
alighted. During the fight, so stated the appellant, the
complainant
continued advancing towards him unabated even when he showed him the
knife, also after he had stabbed him for the
first time, and also
after he inflicted the several other stab wounds on him. The
complainant blamed the appellant as the aggressor.
He admitted that
he was annoyed at the manner in which the appellant had been driving
and that he used rude sign language towards
the appellant to express
his irritation, but denied that he was aggressive. He also agreed
that he pushed the appellant after
they had alighted from their
respective vehicles. He denied the further aspects of the
appellant’s evidence suggesting
that he continued to be
aggressive and to attack him during the fight.
Both the appellant and
the complainant sought to blame each other for the manner in which
the incident progressed and ultimately
led to the injuries to the
complainant. The trial court was as a consequence left with two
conflicting versions on the facts.
The proper approach for the trial
court in such a case was to make a determination whether in light of
all the probabilities,
cumulatively, the State had proved the guilt
of the accused beyond a reasonable doubt. This the magistrate did
and in so doing
correctly rejected the version of the appellant as
improbable to the point of not being reasonably possibly true for
the reasons
that follow.
The complainant admits
that he was the one who started the fight by pushing the appellant.
It is not necessary to analyse what
he sought to achieve in doing so
because, whatever it was, it is clear that he was motivated by his
own anger at that stage.
However, it must have dawned on the
complainant very soon after he had initiated the fight that the odds
were against him when
the appellant produced a knife which he,
according to him, showed to the complainant. That the complainant
would continue to
advance towards a man carrying a knife and
continue attacking him whilst he was being stabbed, whilst he
himself did not possess
any weapon is difficult to believe. Even
according to the evidence of the appellant, the knife was always in
his possession.
There was no evidence that the complainant
overpowered the appellant at any stage.
The most damning
objective evidence against the appellant is the severity of the
injuries sustained by the complainant. Dr Malanda
described the
wound in the abdomen as ‘really deep’. Dr Snyders
stated that the particular laceration was such
that one of the
complainant’s ribs was also severed. According to him such
injuries were sustained through severe force.
That medical evidence
alone shows that the appellant applied force that was far beyond
what was necessary to avert any form of
attack by the complainant.
It also controverts the evidence of the appellant that the injuries
were sustained because the complainant
kept on advancing towards him
whilst he was holding or swinging the knife in front of him. It also
has to be taken into account
that the appellant did not sustain any
injuries during the fight.
C R Snyman
Criminal
Law
5ed (2008) at 109 states that it is not feasible to
formulate the nature of the relationship which must exist between
the attack
and the defence in precise and abstract terms and that
the requirement that there must be a relationship between the attack
and
the defensive act is in practice a matter of fact rather than of
law. The learned author states correctly, in my view, that there
ought to be a certain balance between the attack and the defence,
after all, he says, ‘you may not shoot and kill another
person
who strikes you with a fly–swatter’. At best for the
appellant, the threat he was faced with was a threat
of assault. The
use of the knife in retaliation and the manner in which it was used
was disproportionate. Even if he was angry
and wanted to retaliate
and confront the complainant, there is no basis to find that he was
justified in using the knife nor
the consequent force he used in
stabbing the complainant. That the knife was used repeatedly to
inflict multiple stab wounds
is telling. There was, after all, no
imminent threat to the appellant’s life to justify the use of
such force. The actions
of the appellant in the premises exceeded
the bounds of self defence.
The facts of this
matter, even on the appellant’s version, show that he had
several other harmless means he could have adopted
to avoid a
physical confrontation. He could have driven off and ignored the
complainant. When this option was explored with him
he stated that
he had stopped there to avoid the complainant because he realised
that the complainant was unhappy that he, the
appellant, had
overtaken him. He also testified that he stopped because he was
close to his work place and did not want the complainant
to see his
work place for fear of his safety. This explanation is implausible.
It is nonsensical for the appellant to suggest
that he would have
stopped his vehicle, alight from it hastily and advanced towards the
complainant if he simply wanted to avoid
him.
When the appellant was
asked to explain why he made an ‘emergency exit’ from
his vehicle, he stated that whilst driving
he had slipped into an
embarkment which was 250 millimeters high and that his wheels were
stuck against the embarkment such that
he would not have been able
to drive away from the scene. Later on during the trial his own
witness, also his employer, stated
that the spot was a slope and not
an embarkment and that one would probably turn a sedan there easily
without causing damage
to the vehicle. Even if appellant’s
version that he had driven into an embarkment is accepted, he could
have simply remained
in his vehicle.
There is accordingly no
basis to interfere with the reasoning of the magistrate. As it is
uncontroverted that the injuries inflicted
were such that the
complainant would have died if he had not received medical
intervention, the conviction of attempted murder
(the form of fault
being
dolus eventualis
) also stands.
I now turn to consider
the sentence imposed by the magistrate. There was no persuasive
argument intimating that the magistrate
misdirected himself in
imposing the sentence nor that the sentence was shockingly
inappropriate. A perusal of his judgment on
sentence shows clearly
that the magistrate took into account all the relevant factors
before imposing sentence. Apart from the
personal circumstances of
the appellant and the interests of society and also the other trite
considerations, the magistrate
considered the nature and the
circumstances in which the offence was committed. The magistrate was
prepared to accept as mitigating
factors that there was no
premeditation, that the incident occurred at the spur of the moment
and that there was some form of
provocation. He accepted that the
appellant made a mistake but stated, correctly in my view, that the
incident was a serious
mistake that merited punishment. The
magistrate further stated that there were options that could have
been taken by the complainant
to avoid the incident and concluded
that he thus had to face the consequences of his actions. There is
therefore no basis to
interfere with the sentence imposed by the
magistrate and the appeal against sentence must also fail.
In the result:
The appeal against the
conviction and the sentence is dismissed.
_______________________
Z L L Tshiqi
Judge of Appeal
APPEARANCES
APPELLANT: RC Krause
Instructed by David H
Botha Du Plessis, Kruger and
Symington & De Kok
Bloemfontein
RESPONDENT: Adv LA More
Instructed by Director of
Public Prosecutions
Bloemfontein