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[2018] ZASCA 127
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Ngobeni v S (1041/2017) [2018] ZASCA 127 (27 September 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1041/2017
In
the matter between:
TSUNDZUKA
EMMANUEL
NGOBENI
APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Ngobeni v The State
(1041/2017) ZASCA 127 (27 September
2018)
Coram:
Shongwe ADP, Majiedt, Wallis, Mbha and
Mathopo JJA
Heard:
29 August 2018
Delivered:
27 September 2018
Summary:
Criminal Law and procedure – appeal against conviction and
sentence for murder read with the provisions of
Criminal Law
Amendment Act 105 of 1997
– appeal against conviction dismissed
– appeal against sentence upheld – irregularity committed
by the trial
court during application for leave to appeal.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (Mabesele and Mokgoatlheng JJ and Van
Veenendaal AJ sitting as court of appeal):
1 The appeal against the
conviction is dismissed.
2 The appeal against the
sentence succeeds.
3 The order of the
Gauteng Division of the High Court, Johannesburg insofar as it
relates to sentence is set aside and the sentence
of the trial court
is reinstated, namely:
‘
(a)
The accused is sentenced to 12 years’ imprisonment, four years
whereof is suspended for five years on condition he is
not convicted
of murder committed during the period of suspension.’
JUDGMENT
Mbha
JA (Shongwe ADP, Majiedt, Wallis and Mathopo JJA concurring):
[1]
The appellant was convicted on 3 April 2014 in the Gauteng Division
of the High Court, Johannesburg (the trial court) of murder,
read
together with the provisions of s 51(2) of the Criminal Law Amendment
Act 105 of 1997 (the Act). On 5 September 2014, having
found that
substantial and compelling circumstances justifying a lesser sentence
than the prescribed minimum sentence of 15 years’
imprisonment
were present, the trial court sentenced the appellant to 12 years’
imprisonment, of which four years was suspended
for five years on
condition that the appellant is not convicted of murder committed
during the period of suspension.
[2]
On 22 September 2014 the appellant applied for leave to appeal
against conviction only, but at the trial court’s prompting
the
appellant’s counsel applied in addition for leave to appeal
against sentence. Leave to appeal against both conviction
and
sentence was subsequently granted to the full court of the Gauteng
Division of the High Court, Johannesburg which on 3 July
2017
dismissed the appeal against conviction, set aside the sentence
imposed by the trial court and imposed an increased sentence
of 18
years’ imprisonment. Special leave to appeal was granted by
this Court, against both the conviction and sentence.
[3]
The matter emanates from an incident that occurred on 24 May 2013 at
the premises of a Caltex Garage in Greenhills, Randfontein,
where the
deceased, a 22 year old male, was shot and killed by the appellant, a
constable in the SAPS, using a police service R5
rifle. At the time
the deceased was a front seat passenger in a red Toyota Corolla
(Corolla) motor vehicle driven by Reneilwe Sekobane
(Reneilwe). Three
of their friends, including M E Ngakanyane (Ngakanyane), were back
seat passengers. All five were students at
the Tshwane University of
Technology and were, on that day, on their way to a funeral service
at Mohlakeng Township, outside Randfontein.
[4]
Whilst they were driving in Greenhills, they got lost. They then came
across a marked EPR security guard vehicle which they
followed with
the hope of finding their way out of Greenhills to Mohlakeng
Township. Reneilwe was driving slowly when he noticed
another
security vehicle driving behind them followed by a marked SAPS
vehicle, with its blue lights flashing, being driven by
Warrant
Officer Botha (Botha). The appellant, a constable in the SAPS was a
front seat passenger in the SAPS vehicle. Reneilwe
drove into the
aforementioned garage’s forecourt and stopped the vehicle away
from the petrol pumps to get directions.
[5]
Botha and the appellant had been patrolling in Greenhills when they
were alerted by a Tax Security Services officer, Kruger,
to a gold or
light coloured Golf motor vehicle with five occupants who were
allegedly in possession of firearms and were seen in
proximity to a
mini Pick `n Pay supermarket. While on the lookout for this Golf,
they were requested by an EPR security officer
Hiepner, to turn their
attention to a red Toyota Corolla motor vehicle. Security officer
Swiegers of EPR Security informed them
that the Toyota Corolla was
the car with the firearms. Shortly thereafter an EPR security vehicle
appeared, followed by the Corolla
driven by Reneilwe. Hiepner,
followed by Botha, drove behind the Corolla and they all came to a
stop around the Corolla at the
aforementioned Caltex Garage.
[6]
Reneilwe alighted from the Corolla intending to ask for directions,
but was confronted by Botha who had a firearm in his hand.
Botha
instructed Reneilwe to place his hands on the roof of the Corolla and
he did as instructed. Botha also ordered the back seat
occupants to
alight and they complied. The appellant, armed with a R5 rifle,
alighted from the police vehicle and walked to the
left front
passenger door of the Corolla and brought the muzzle of the rifle
within a metre of the deceased. The witnesses heard
two gun shots and
when Botha enquired who had fired the shots, the appellant confirmed
that he had fired his firearm. It later
transpired that appellant had
ordered the deceased to exit the car, and shot him while he was in
the process of getting out of
the car.
[7]
The deceased sustained two gunshot wounds, namely, a stellate shaped
wound over the right side of the back of the head which
resulted in a
diffuse subarachnoid haemorrhage over the brain, and an oval shaped
grazing wound which was subcutaneous tissue deep
over the right chest
wall above the nipple. The cause of the deceased’s death was
the gunshot wound to the head.
[8]
At the trial, the appellant’s version was that he shot the
deceased because when he was ordered to alight from the Corolla,
he,
in the process of exiting the car, suddenly turned backwards as if
reaching for a firearm. The appellant therefore perceived
that his
life was in imminent danger. In his plea explanation he said that he
was acting in private defence. By the end of the
trial the defence
took a different course. No doubt this was because the evidence by
then had demonstrated conclusively that the
appellant’s life
and safety were not, objectively speaking, being threatened by the
deceased. The defence then became that
he had acted in a state of
panic. He said that he feared that his life was in imminent danger,
and that he had to take action to
avert such danger. He therefore
contended that he was in a state of involuntary automatism and that
he acted in putative private
defence. He only fired because he
thought there was a threat to his life and his reflexes were
involuntary due to the state of
panic.
[9]
This approach conflated two different things. Putative private
defence is invoked when there is a genuine, albeit objectively
unfounded, fear for one’s own safety. It is relevant to the
question whether the accused has the necessary intention to commit
the crime. Where the charge is one of murder it may mean that the
accused may only be convicted of culpable homicide. By contrast,
a
defence of sane automatism is relevant to the question whether the
accused has the capacity to form the intention to commit a
crime. It
is unclear whether the defence appreciated the difference
[10]
The trial court, after meticulously analysing all the evidence of the
circumstances of the shooting, rejected the appellant’s
defence
of involuntary automatism. It found that the deceased was in fact
unarmed and posed no threat to the appellant and that
the appellant
had exceeded the bounds of self-defence. It also found the appellant
to be untruthful in his narration of the events
of the shooting when
he stated that it all happened very quickly and that there was no
verbal exchange between him and the deceased
before he shot him. This
was contradicted, the trial court found, by Hiepner and also by the
probabilities. Hiepner, a defence
witness, testified credibly that he
was next to the appellant when they both ordered the deceased first
to place his hands on the
dashboard and then to get out of the car.
The deceased obeyed and was shot as he started getting out of the
car.
[11]
The trial court found that the appellant had indeed ordered the
deceased to put his hands on the dashboard and to thereafter
alight
from the vehicle after he had placed the muzzle of the R5 close to
the deceased. It held that his version that he panicked
and became
confused and then acted in a state of automatism fell to be rejected
as he was conscious of the unlawfulness and wrongfulness
of his
conduct which meant that fault in the form of culpa or negligence
never arose. The trial court then found that as the appellant
did not
lack awareness of the unlawfulness of his conduct, he had acted with
intention in the form of
dolus
eventualis
in that he foresaw the harm
that ensued and reconciled himself with the outcome. The full court
was in complete agreement with
all these findings.
[12]
Before us it was argued that both the trial court and the full court
misdirected themselves in rejecting the defence of putative
private
defence and, in the alternative, that the appellant was guilty of
culpable homicide. No attempt was made to pursue the
defence that he
acted in a state of automatism. The thrust of the criticism was first
that both the trial court and the full court
seemingly failed to
consider that it was undisputed that the police and security officers
involved had information that there were
firearms in the Corolla,
which appeared suspicious, and this was the reason why it was stopped
so that it could be searched. Secondly,
in light of the deceased’s
sudden movement to his right, the appellant as a reasonable man,
could not have been expected
to wait to ensure that the deceased was
indeed reaching for a firearm.
[13]
It is trite that in putative private defence it is not lawfulness
that is in issue but culpability. Thus, if an accused honestly
believed his life to be in danger, but objectively viewed it is not,
the defensive steps he takes cannot constitute private defence.
If in
those circumstances he kills someone, his conduct is unlawful.
[1]
His
erroneous belief that his life was in danger may well, depending on
the circumstances, exclude
dolus
,
in which case liability for the person’s death based on
intention will also be excluded; at worst for him he could then
be
convicted of culpable homicide. Therefore, it must first be
determined whether or not an accused acted deliberately or
irrationally.
In order to gain an impression of an accused’s
state of mind, consideration must be given to the prevailing
circumstances
and the testimony of the witnesses in accordance with
the testimony of the accused.
[14]
In
Coetzee
v Fourie & another
,
[2]
it
was held that in order to avoid liability for the deceased’s
death, the appellant had to show that a reasonable person
in the
circumstances in which the appellant found himself would have
believed that his life was in danger and would have acted
as the
appellant had acted. The court in
Coetzee
held that the appellant had shot the first respondent believing his
life to be in danger, but that none of the facts taken alone
or
cumulatively, necessarily indicated that the appellant had been in
danger of an imminent attack. If the appellant had felt threatened,
the circumstances required at least a warning to be given by him that
he felt under threat before he was justified in shooting
the first
respondent. Importantly, the court emphasised that a firearm was a
potentially lethal weapon which should be discharged
in the direction
of a person only as a last resort.
[3]
[15]
In this case, the evidence shows conclusively that the appellant was
in a state of safety when he consciously decided to bring
the R5
rifle, whose mode he consciously changed from safe to rapid fire when
he initially alighted from the SAPS vehicle, in close
proximity to
the deceased. His life was never in danger at any stage. No action on
the part of either the deceased or his friends,
caused the appellant
to feel that his life was in danger. The deceased made no threats and
objectively none of the occupants of
the Corolla had a weapon. The
scene around the Corolla had been secured by Botha, Hiepner, Kruger
and other security officers who
were all armed.
[16]
The appellant who was properly trained in police duties and in the
handling of firearms, in fact defied all the relevant rules
and
procedures relating specifically to the handling of R5 rifles. Those
are that a police officer carrying a R5 rifle had to protect
and
provide cover to crew members when they conduct a search and are only
supposed to fire the weapon from a distance of 15 to
25 metres.
Importantly, police officers are taught that a R5 rifle should always
be at a point of 45 degrees to the ground and
that it could only be
pointed at a suspect when a shot is fired. It was not to be inserted
inside a vehicle because of the likelihood
of it being wrestled away
by a suspect. The fact that the deceased had sustained a stellate
wound in the head, meant that the firearm
was fired at close range to
the deceased inside the vehicle, thereby demonstrating that the
appellant disregarded his training.
[17]
There is no evidence that suggests that Reneilwe drove the Corolla in
a suspicious manner. It is clear that the deceased and
his fellow
students did not pose a threat to either the police officers or
security officers from the time that the officers drove
behind them
until they stopped at the scene of the incident at the Caltex garage.
It is undisputed that the appellant never gave
any verbal warning to
the deceased and neither did he fire any warning shot. It cannot be
over emphasised that Hiepner, who was
in the same circumstances as
the appellant, never deemed it necessary to draw his firearm. Both
the trial and the full court correctly
determined that there were
armed police and security guards around the Corolla that the
occupants were obeying police instructions,
were co-operative and had
posed no threat.
[18]
As there is no evidence whatsoever that the deceased threatened or
attempted to threaten the appellant when he was getting
out of the
vehicle, the appellant’s version that he shot the deceased on a
reasonable suspicion that the deceased by allegedly
turning
immediately to his right was attempting to pull out a firearm from
his waist, thus threatening his life, was correctly
rejected by the
full court. A further reason why the defence of putative private
defence was doomed to fail was that in his evidence
the accused said
that he did not know how he came to shoot the deceased. A person can
only rely on private defence, or putative
private defence, if they
acted with the intention of defending themselves. (Snyman,
Criminal
Law
5 ed at 113). In other words, a
claim that the accused was acting in private defence, whether actual
or putative, depends on the
accused being aware that they were acting
in private defence. As Professor Snyman, supra, 112, correctly says,
there is no such
thing as unconscious or accidental private defence.
The attempt on appeal in this court to resuscitate private defence
and putative
private defence could not succeed.
[19]
The appellant’s version was that he stood between the two left
doors of the Corolla when he fired at the deceased. Given
the
position of the gunshot wound to the right back side of the
deceased’s head and his position after the shooting is, in
my
view, open to some doubt. The photo exhibits depict the deceased
after the shooting still in the passenger seat, the left front
door
wide open and his left foot flat on the ground. His upper torso is
tilted to the right towards the driver’s seat and
his blood
spattered head is between the top of the two headrests of the front
seats. His face is facing towards the roof of the
vehicle. To have
been able to shoot the deceased from between the two doors as the
appellant alleges, would have been, in my view,
impossible unless the
deceased moved 360 degrees in an anti-clockwise movement. Common
sense dictates that if the appellant was
at some point between the
two left side doors as he claims, then he must have moved to be
behind the rear door in order to be able
to get the right angle from
which he could fire at the deceased. The result is that from where he
stood when he fired, he could
clearly have seen that the deceased did
not possess, nor was he reaching for any firearm. In any event, there
was no firearm inside
the Corolla.
[20]
In light of what I have said above, I am satisfied that all the
evidence showed that the appellant was not confronted with
immediate
peril to justify the level of force that he exercised, and that the
appellant foresaw the possibility of death ensuing
and reconciled
himself to that event occurring. He did not act in private defence,
nor did he believe that he was doing so. Accordingly,
the appeal
against conviction must fail.
[21]
In considering a suitable sentence for the crime of murder committed
with
dolus eventualis
, the type provided for in s 51(2) of the
Act, the trial court found there were substantial and compelling
circumstances in the
appellant’s case. These consisted of the
fact that he had matriculated in 2003 and qualified as a police
officer in 2010
holding the rank of constable. He is married with two
children and his wife and children were dependent upon him as the
family
breadwinner. He had made two unsuccessful attempts to
apologise to the family of the deceased, which presumably were taken
to indicate
remorse. He also experienced flashbacks of the incident
for which he had sought counselling and assistance. The trial court
held
that these were ‘weighty considerations’ justifying
a sentence less than the prescribed minimum.
[22]
On the other hand the trial court concluded that:
‘…
[T]he
coldblooded and savage manner in which the accused placed the muzzle
of the R5 high velocity rifle on the side of the head
of the deceased
fired into the head of the unarmed and defenceless deceased makes
this a case of extreme brutality….’
Given
the trial court’s conclusion that the murder was cold blooded
and savage involving extreme brutality, the sentence imposed
and
considered appropriate is an effective eight years’
imprisonment. When the appellant came before the full court on appeal
against both his conviction and sentence, the full court gave notice
of its intention to consider and increase the sentence if
the
conviction was confirmed.
[4]
After affirming the conviction, the full court concluded that the
aggravating factors outweighed by far the personal circumstances
of
the appellant and it substituted a sentence of 18 years’
imprisonment for the sentence imposed by the trial court.
[23]
There could be no criticism of the sentence imposed by the full court
were it not for the circumstances in which the appellant
came to
appeal against his original sentence. Originally he applied for leave
to appeal against conviction only. That prompted
the trial court to
intervene and in so doing the Judge persuaded counsel for the
appellant to adopt the course of appealing against
sentence as well.
The exchange between the trial court and the counsel in this respect
was as follows:
‘
COURT
: …
[T]here is no leave to appeal which is sought against sentence as it
were, you are not . . . (intervenes)
MS MTSHWENI
: That
is correct, M’Lord.
COURT
: The usual
thing, it is usually done together, but I know if, quite often if
you, sometimes you say that if the appeal is successful
on conviction
you will have no difficulty with the sentence or rather you will have
no difficulty because the sentence will fall
away.
MS MTSHWENI
: Yes,
M’Lord.
COURT
: But if it
does not succeed and you did not want to hear anything about
sentence.
MS MTSHWENI
:
M’Lord, those were my [instructions] as, as far as the
convictions stands. The sentence the court has . . . (intervenes).
COURT
: Explained,
explained it. Well yes indeed, but I mean you do not think that there
is a possibility that another court might see
it differently?’
[24]
This exchange with the trial Judge obviously caused some confusion in
the mind of counsel. That is apparent from a passage
in the record
that follows shortly afterwards. It reads:
‘
COURT
: You
do not think it is arguable? I hear you about your instructions.
MS MTSHWENI
:
M’Lord, with the court’s questions I find myself now in
doubt with my instructions.
COURT
: Ja, I
understand.
MS MTSHWENI
: I
think under the circumstances, M’Lord for, for the application
to, to play it safe it will be proper to then unfortunately
ask the
court to stand down this matter even if it is just to amend the last
portion of our … (intervenes).
COURT
: Well, …
(intervenes).
MS MTSHWENI
: Leave
to appeal.
COURT
: We can do
it …, what I am trying to say is I do not see that it would
detract from the appeal application that you are
making, because the
work is the same, the record will be the same, you will have to read
the whole record, you know just to include
the application for leave
to appeal against sentencing as well.
MS MTSHWENI
: As
the court pleases.
COURT
: There is
nothing, there is no adverse inference that can be made against that.
MS MTSHWENI
:
M’Lord, we, we are indebted to the court.
COURT
: Yes, ja.
MS MTSHWENI
: And
we will take the court’s advice.
COURT
: Ja, ja.
MS MTSHWENI
: And
also proceed against sentence.’
[25]
It is apparent that the trial Judge interventions and suggestions
that the application for leave to appeal should be extended
to cover
an appeal against sentence, as well as an appeal against conviction,
were the determinant factors in counsel adopting
that course. As she
said in conclusion ‘we will take the court’s advice’.
[26]
Although counsel had indicated that she wanted the matter to stand
down whilst she took instructions from the appellant, the
record
reflects that the trial Judge intervened and that the matter was not
stood down for her to seek instructions. There is nothing
to suggest
that she took instructions from her client before expanding the scope
of the application for leave to appeal. Nor is
there any indication
that she was alive to the risk this posed for her client that what
appears to be a lenient sentence might
be increased by the appeal
court, as in fact occurred.
[27]
No doubt the trial Judge meant well and intended to be of assistance
to counsel. However, the result of his suggestions was
that the scope
of the appeal was broadened and the risk introduced of the
appellant’s sentence being increased. This might
not have
mattered had there been an application by the prosecution for leave
to appeal against the sentence, but in the circumstances
of this
case, where there was no such application, the consequences for the
appellant were disastrous.
[28]
All accused persons in South Africa enjoy broad ranging
constitutional protection intended to ensure that they are fairly
treated in criminal proceedings. Those fair trial rights are embodied
in s 35 of the Constitution and include in s 35(3)
(o)
the
right of an appeal to, or review by, a higher court. The appellant
wished to appeal against his conviction, but not his sentence.
The
outcome of the trial court’s well-meaning suggestions to his
counsel was to induce her to appeal against his sentence
and thereby
expose him to the substantial risk of an increased sentence being
imposed by the appeal court.
[29]
A constitutionally guaranteed right to an appeal includes in my view
a requirement that the process leading up to the appeal
be fair to
the accused person. Where the accused has been convicted of a serious
crime and sentence has been imposed, a question
that immediately
arises in considering any appeal is whether the outcome may be that
the accused is worse off after appealing than
would have been the
case had there been no appeal. Where a deliberate decision has been
made to appeal against conviction alone,
and not sentence, it is
inappropriate for the presiding officer to seek to persuade the
accused to adopt a different course. When
the persuasion emanates
from a trial Judge sitting in the relevant division of the high
court, it may be particularly difficult
to resist. It is unfair to
the accused for a presiding officer at a criminal trial to seek to
influence a decision that is one
to be made by the accused alone,
with the assistance of their legal representative.
[30]
It follows that in my view the appellant’s fair trial rights,
especially the right embodied in s 35(3)
(o)
of the
Constitution, were infringed when the trial Judge persuaded counsel
to expand the scope of the appeal to include an appeal
against
sentence. The only way in which that infringement of his rights could
have been cured was for the full court not to exercise
its power to
increase his sentence. In this court all we can do is set aside that
decision by the full court and restore the sentence
imposed by the
trial court. We do so with regret because that sentence was
manifestly lenient and inappropriate in regard to the
crime committed
by the appellant. However, the obligation of the court to protect and
vindicate his constitutional right to a fair
trial and appeal compels
that conclusion.
[31]
In the result, the appeal against sentence must be upheld.
Accordingly, I make the following order:
1 The appeal against the
conviction is dismissed.
2 The appeal against the
sentence succeeds.
3 The order of the
Gauteng Division of the High Court, Johannesburg insofar as it
relates to sentence is set aside and the sentence
of the trial court
is reinstated, namely:
‘
(a)
The accused is sentenced to 12 years’ imprisonment four years
whereof is suspended for five years on condition he is not
convicted
of murder committed during the period of suspension.’
_______________
B H Mbha
Judge of Appeal
APPEARANCES:
For
Appellant: J van Schalkwyk
Instructed
by: BDK Attorneys, Johannesburg
c/o
Symington & De Kok Attorneys , Bloemfontein
For
Respondent: A D Maharaj
Instructed
by: Director of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
[1]
S v De
Oliveira
1993 (2) SACR 59
(A) at 63-64.
[2]
Coetzee
v Fourie & another
2004 (6) SA 485
(SCA) at para 5.
[3]
Ibid
para 10.
[4]
S
v Bogaards
[2012]
ZACC 23
;
2013 (1) SACR 1
(CC) para 60.