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[2014] ZAWCHC 129
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King v S (A79/2011) [2014] ZAWCHC 129 (22 August 2014)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
WESTERN CAPE DIVISION, CAPE
TOWN
Case No: A79/2011
In the matter between:
JEROME EARL
KING
.....................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT DELIVERED ON 22 AUGUST 2014
GOLIATH, J
.:
[1] On 26 October 2010 the appellant, Mr Jerome Earl King, was
convicted of murder in the Regional Court Bellville. He was
subsequently
sentenced to ten years imprisonment on 9 December 2010.
The appellant applied for leave to appeal against the conviction and
sentence,
but the regional magistrate granted leave to appeal against
sentence only. On 13 May 2011 Dlodlo, J and Olivier, AJ dismissed the
appeal against sentence.
[2] The appellant thereafter proceeded to file an application for
condonation in terms of
Section 309C
of the
Criminal Procedure Act 51
of 1977
and for leave to appeal against his conviction, which was
dismissed by Samela, J and Henney, J on 12 March 2012. This was
followed
by an application for leave to appeal the Court’s
refusal to grant the
s 309
C petition, which was dismissed on 13
February 2013. The appellant thereafter applied to the Supreme Court
of Appeal that the order
of 13 February 2013 be set aside. On 21 May
2013 the Supreme Court of Appeal ordered that leave be granted to the
appellant to
appeal to the Full Court of this Division against his
conviction.
[3] The murder charge arose from an incident which occurred on 8
January 2007 at 01h00 when the appellant, who was officially on
duty
as a member of the South African Police Force, shot and fatally
wounded Benito James, an eighteen year old male. It is common
cause
that the deceased died as a result of a single gunshot wound to the
head.
[4] The appellant and his colleague Constable Quma responded to a
complaint of a housebreaking that was taking place at the Bonteheuwel
Post Office. The appellant testified that on the fateful day he and
Quma arrived at the scene where they immediately apprehended
a
suspect who was standing at the door. He ordered the suspect to
lie down and instructed Quma to guard him while he proceeded
towards
the Post Office. He observed a small broken window, opened it, and in
a bended position looked through it inside the Post
Office. He
observed a male trying to hide behind the counter at the back of the
Post Office. This was the deceased.
[5] The appellant verbally warned the deceased to come out, but he
failed to respond. He was bobbing or moving up and down behind
the
counter. He then proceeded to fire a warning shot into the roof of
the Post Office. The deceased still refused to comply. After
firing
the warning shot he observed another suspect running towards the back
of the Post Office, in the direction of the deceased.
He kept the
deceased under observation and saw that he was still moving behind
the counter. He reacted by firing two successive
shots in the
direction of the deceased, but in an upward direction. The suspect
collapsed and he noticed that he was bleeding.
He asked Quma to call
for an ambulance. He then saw the security guard, Mr Laykers, on his
right hand side, who informed him that
he had the keys to the
premises. He waited for back up and entered the premises with
Sergeant Van Der Heever and Mr Laykers. The
deceased was lying on the
floor surrounded by blood. A knife was found on the deceased.
[6] The State called Constable Quma and the security guard Mr
Laykers who were in close proximity to the scene. Constable Quma
confirmed
that she accompanied the appellant to investigate the
housebreaking complaint at the Post Office. On their arrival they
apprehended
a suspect, and the appellant instructed her to guard him.
The suspect was instructed to lie on his stomach on the ground. She
was
in a standing position and pointed her firearm at the suspect.
The appellant proceeded to a broken window and she heard him speak
loudly in Afrikaans, which she did not understand. Thereafter she
heard three shots. After the shooting incident they waited for
the
manager and supervisor to arrive, who opened the premises. The
suspect she guarded was arrested at the scene and put into a
van. She
also contacted the ambulance and later observed the deceased lying on
the floor inside the Post Office. She confirmed
that a second suspect
was also found inside the Post Office.
[7] During cross-examination she explained that she had heard the
appellant shout, and then she heard the first shot, and after a
minute two successive shots were fired. She confirmed that she was
standing on the left front side of the Post Office, where she
was
pointing her firearm at the suspect while guarding him. She
subsequently entered the premises after the shooting incident where
she saw the deceased lying on his back on the floor. She confirmed
that she saw two suspects inside the Post Office, of which one
was
subsequently arrested. It is common cause that she did not witness
the actual shooting.
[8] Mr Laykers was posted as a security guard inside the Post
Office because of the broken window. He testified that he was on duty
this particular night after the Post Office was broken into during
the weekend. While inside the Post Office he observed four persons
outside who subsequently left. He decided to report the incident to
the Metro Police. At approximately one o’clock the morning
he
observed a group of four or five people outside. From his testimony
it is evident that he initially switched the lights inside
the Post
Office off, but later saw it was switched on by the intruders who had
returned to the building. According to him two intruders
went inside,
and two stayed outside.
[9] Laykers testified that he subsequently reported the matter to
the police who arrived shortly thereafter. The lights inside the
Post
Office were on when the police arrived. The appellant and a female
colleague arrived, and the appellant moved towards the
broken window.
He heard one shot went off. He stated that after the first shot was
fired, he saw the female police officer lying
flat on her stomach.
There was another suspect also lying on his stomach at the same time.
Thereafter another shot was fired. At
some stage the appellant
shouted “
Julle kom uit daar
” and a third shot was
fired. The suspects refused to surrender. He informed the appellant
not to shoot since he had the keys
to the premises. He testified that
at the time the second and third shots were fired he observed someone
standing on the safe.
After the second shot was fired the man
fell off the safe. After the shooting he opened the Post Office.
The appellant
asked him to provide backup and the two of them entered
the Post Office, where they found the deceased lying on the floor.
[10] During cross-examination he conceded that he saw the suspects
inside the Post Office. He explained that the second and third
shots
were not fired in quick succession. The appellant first shouted, and
a shot was fired. He shouted again and another shot
was fired.
[11] The State also called various police officers who were
involved in the investigation of the case. Inspector Lombard compiled
a photo album and sketch plan of the scene on the day of the
incident. He took the photographs of various points pointed out to
him by the appellant. He also collected three empty cartridges at the
scene. He estimated the distance from the window where the
appellant
fired the shot, to the safe behind the counter to be approximately
fifteen metres. Inspector Smit testified that when
he arrived at the
scene of the shooting incident on 8 January 2007 he observed one
suspect on the floor, and another injured person.
He confiscated the
gun of the appellant.
[12] Captain Blumerus is a ballistic expert who attended to the
crime scene three days after the incident to do further
investigations.
He observed two marks in the counter area, and two
marks at the top of the safe which, according to him were caused by
gunshots.
He expressed the view that the trajectory of the shots
fired was from the window, through the counter, against the wall
above the
safe. He also indicated that it appeared to him that the
shots were fired from a lower position, aimed at a higher position.
He
examined the gun of the appellant and confirmed that three shots
were fired from his gun, and that the three spent cartridges were
fired from the same gun. He took a set of photographs which were
handed in as an exhibit.
[13] Captain Joubert, a forensic crime scene investigator, visited
the scene of the shooting incident two years later on 21 July
2009.
With the assistance of Blumerus he compiled a 3-D presentation of the
crime scene indicating the bullet trajectory upwards
from the window,
through the mesh area on top of the counter, to the wall behind the
counter. He expressed the view that the deceased
must have been on
top of the safe, possibly in a bent position at the time he was shot.
[14] Lieutenant Colonel Johannes Kok re-examined the scene on 21
July 2009. He also concluded that the deceased must have been on
top
of the safe when he was shot. He indicated that the deceased could
not have been standing on the floor since the bullet trajectory
is
higher than the height of the deceased. He based his opinion on
photos of the incident presented to him two years after the
incident.
[15] The regional magistrate evaluated the evidence and found that
the key witness, Mr Laykers, made a good impression as a single
witness, and was credible and reliable regarding his version of
events. Furthermore, that on the probabilities, his evidence was
supported by the police witnesses. The court rejected the version of
the appellant as improbable, and found that the appellant
should be
convicted of murder on his own version. From the judgment it is
apparent that the appellant was found guilty of murder
on the basis
of
dolus eventualis
.
[16] The appellant attacks the conviction on the basis that the
evidence does not sustain a conviction of murder. It is contended
that the regional magistrate misdirected himself as to the relevant
elements to establish
dolus eventualis
. Furthermore, that the
evidence of Mr Laykers, who was a single witness should have been
treated with the utmost caution.
The regional magistrate erred
in accepting it uncritically. The State on the other hand contends
that the conviction is in order
and that the elements of
dolus
eventualis
had been complied with.
[17] It is trite that in determining the guilt or innocence of an
accused all the evidence must be taken into account. The court
must
assess whether in the light of the inherent strengths, weaknesses,
probabilities and improbabilities on both sides the balance
“weighs”
so heavily in favour of the State as to exclude any reasonable doubt
about the accused’s guilt (
S v Chabalala
2003 (1) SACR
134
(SCA) para 15;
S v M
2006 (1) SACR 135
(SCA) para 189).
[18] In my view there are four issues that required careful
consideration by the regional magistrate. The first is the position
of Laykers at the time of the shooting. He indicated that he came
running from someone’s front yard when he heard the first
shot.
He testified that after the first shot was fired he observed Quma and
a suspect lying on the floor. This evidence is contradicted
by Quma
who stated that she was standing at all times, whilst pointing a
firearm at the suspect who was lying on the floor.
[19] Laykers indicated that he was on the corner of the Post
Office when the second shot went off. This was the only time he could
see through the window. In his evidence in chief he stated that after
the second shot was fired the man fell of the safe. There
appears to
be a contradiction in his version since it would not have been
possible to be on the corner near the window of the Post
Office and
see the deceased at that stage. He indicated that there was a wall on
the corner, which meant that he could not see
inside the building
when the second shot was fired. He testified that he was next to the
appellant when the third shot was fired.
It appears that the version
of Laykers is that he saw the deceased fall after the second shot,
which was the only time he looked
through the window. However, he
also indicated that he was next to the appellant on the left side of
the Post Office next to the
window when the third shot was fired.
[20] When asked if he could see where the appellant was aiming his
firearm he stated “
I didn’t concentrate which shot
went where
” and “
my mind wasn’t even there,
at that time”.
It appears that when the second shot was
fired, he was on the corner at the wall and could not see inside the
building. He was only
next to the appellant when the third shot was
fired. However, if he was on the corner at the time the second shot
was fired, it
is unlikely that he actually saw the deceased on the
safe at the time.
[21] The sequence of the verbal warning(s) and shots fired by the
appellant is the second aspect which required careful consideration
of the Magistrate. During cross-examination he states that “
after
the first shot, then the accused said, like he was shouting to the
inside of the Post Office, you must come out there
”.
However, during cross-examination Laykers stated that a verbal
warning was given to the persons inside after the first
shot was
fired. In response to a question from the court he repeats the
statement that the warning was given after the first shot
was fired.
However, during his evidence in chief he clearly stated that:
“
the shot
went off, and then there was another shot after that, went off, but
then the accused started shouting from the outside
to the inside
“julle kom uit daar, kom uit” and then another shot went
off (p 107 line 5-10)”.
Quma on the other hand, testified that the appellant shouted
loudly in Afrikaans before the first shot was fired. It is therefore
evident that Laykers initially testified that a warning was issued
only after two shots had been fired and thereafter changed his
version.
[22] Laykers did not dispute that he stated the following in a
statement he made shortly after the incident: “
die beampte
het toe hard en duidelik na binne geskree, staan vas en kom uit,
hande in die lug. Die beampte het die woorde ‘n
paar keer
herhaal”.
However, he indicated that the above warning was
issued after the first shot was fired. The testimony of Laykers in
court regarding
the verbal warning does not correspond with parts of
his written statement which refers to repeated warnings. His version
also
contradicts Quma’s evidence that the appellant spoke
loudly to the suspects inside the building before the first warning
shot was fired. In any event, Laykers is not consistent and
contradicts himself by first stating that the verbal warning was
issued
after the first two shots and thereafter changing his version
to state that the warning was issued after the first shot was fired.
The court should therefore have exercised great caution in assessing
his evidence on this aspect. In response to a question as
to whether
the second and third shots were fired in quick succession, he
confirmed that the appellant verbally directed the suspect
to come
out, fired the second shot, issued another warning and fired a third
shot. This is in line with the statement which refers
to various
warnings that was issued.
[23] The third aspect that required careful consideration was the
evidence relating to the position of the deceased at the time of
the
shooting. The court concluded that the appellant must have seen the
deceased on top of the safe, and deliberately directed
the shot at
the deceased. The appellant himself never testified that he saw the
deceased on top of the safe, but conceded that
it could have been
possible that he was on top of the safe.
[24] Laykers testified that he saw the deceased fall from the safe
after the second shot at the time when he was still on the corner.
Laykers indicated that the deceased fell after the second shot, but
he joined the appellant at the window when the third shot was
fired.
He also estimated that the safe was quite near the window, at
approximately one metre, contrary to the fifteen meters estimate
of
Inspector Lombard. Considering the configuration of the counter it is
questionable whether Laykers or the appellant had an unobscured
view
of the safe from where they were standing at the window at the time
of the incident. An examination of the scene shows that
the Post
Office counter had small openings and windows covered with burglar
bars. The safe was behind one of the burglar barred
windows, hence it
cannot be said that Laykers or the appellant had a clear view of the
safe.
[25] Taking into account the configuration of the counter, the
fact that the safe was behind the counter and the circumstances
prevailing
at the time it is indeed plausible that the appellant did
not see the deceased on top of the safe. The appellant testified that
he saw movement behind the counter and this prompted his reaction to
fire warning shots when the suspect refused to surrender.
The
evidence of the police witnesses placing the deceased on top of the
safe is purely based on speculation due to the bullet trajectory,
assumptions based on the height of the deceased and possible blood
that was never analysed. Based on the unreliable evidence of
Laykers
who is a single witness, it cannot be found beyond reasonable doubt
that the deceased was in fact on top of the safe.
[26] Considering the unsatisfactory features in the evidence of Mr
Laykers it is clear that the court a quo erred in accepting his
evidence as credible and reliable in all material respects.
Furthermore, the refusal of the magistrate to admit the written
statement of Laykers on spurious grounds created fertile ground for
prejudice to the appellant. The magistrate ruled that it was
not
necessary to hand in the statement and consequently found the
evidence of Laykers to be credible and reliable. Had the court
a quo
followed a proper approach in respect of the admissibility of the
statement, it could have altered the court’s view
regarding the
credibility findings relating to Mr Laykers.
[27] The final and most important aspect to be considered is
whether the appellant acted with
dolus eventualus
when he
caused the death of the deceased. The test for
dolus eventualis
is twofold namely:
(i) whether the appellant subjectively
foresaw the possibility of the deceased being killed by one of the
bullets.
(ii) reconciled
himself with that possibility.
(See:
S v Sigwahla
1967 (4) SA 566
(A) at 570 B-E;
S v
Humphreys
2013 (2) SACR 1
(SCA) at 8 a-b).
[28] The test for intention is subjective and not objective. (
S
v Van Wyk
1992 (1) SACR 147
(Nm) at 161 a-b). The fundamental
question is not whether the appellant foresaw that the consequences
would possibly follow, but
whether in actual fact he reconciled
himself with the possibility that it would follow. The enquiry
is therefore whether,
in view of the circumstances of the case, there
is any reason to conclude that the appellant did in fact subjectively
foresee the
possibility that his actions would result in the death of
the deceased, and nevertheless reconciled himself with such
possibility.
(
S v Dube
1972 (4) SA 515
at 520 G-H
; S v
Nhlapo
1981 (2) SA 744
at 750 H – 751 C
; S v Shaik and
Others
1983 (4) SA 57
at 62 A-B;
S v Makgatho
2013 (2)
SACR 13
at para 10; 11). The subjective foresight, like any other
factual issue, may be proved by inferential reasoning. (
S v Van
Wyk
(supra) at 164 d-h;
S v Sigwahla
(supra) at 570 E;
S
v Humphreys
(supra) at para 13).
[29] Counsel for the appellant correctly pointed out that the
Magistrate overlooked the critical second element of
dolus
eventualis
, namely reconciliation with the foreseen possibility.
The Magistrate consequently failed to conduct an enquiry into the
existence
of this element. The second element is sometimes described
as “recklessness” such as in this particular case where
three shots were fired by the appellant. However, in
S v Humphreys
(supra) at para 17 the Court stated that this is not what the second
element entail but rather:
“
whether
the appellant took the consequences that he foresaw into the bargain;
whether it can be inferred that it was immaterial
to him whether
these consequences would flow from his actions. Conversely stated,
the principle is that if it can reasonably be
inferred that the
appellant may have thought that the possible [consequences] he
subjectively foresaw would not actually occur,
the second element of
dolus eventualis would not have been established”.
[30] The appellant and Quma were called to a notoriously dangerous
area after a report was made by Laykers of criminal activity at
the
Bonteheuwel Post Office. Laykers testified that he observed four to
five suspects inside the Post Office and reported same
to the police.
The appellant and Quma were merely responding to the call in the
execution of their duties as police officers. The
evidence of Laykers
and Quma clearly establish that the appellant was on high alert when
he arrived at the scene. One suspect was
immediately apprehended and
held under guard by Quma. The appellant was focussing on the movement
of other suspects, while his
colleague was guarding another.
Appellant himself immediately drew his firearm and approached the
broken window, whilst pointing
his gun inside the premises.
[31] On appellant’s version he saw movement behind the
counter, which is partially obscured by windows covered with mesh or
burglar bars. He fired a warning shot to no avail. The suspect
continued to move and still refused to surrender. He then fired
two
more shots. The trajectory of the bullets in an upward position from
the window to the wall is not in dispute. The appellant
testified
that he did not see the deceased on top of the safe, and considered
it safe to fire the shots in an upward direction
towards the roof.
[32] Taking into account the circumstances of this case, where the
appellant was faced with an unknown number of suspects, one under
guard by his colleague; a moving scene where one suspect is seen
inside the building, followed by a second suspect; a failure to
respond to verbal warnings and a refusal to surrender after the first
warning shot, it cannot in my opinion, be found beyond reasonable
doubt that the appellant fired the second and third shots with the
intention to kill the deceased. He was on high alert, concerned
about
his colleagues safety, as well as his own due to the uncertainty as
to what was transpiring inside, and whether the suspects
were armed
or not. This case is clearly distinguishable from
S v Makgatho
,
(supra) where the accused discharged his firearm twice in a tavern
where there had been a number of people present.
[33] In this case the appellant was merely performing his duty as
a police officer and attended a crime scene in a notoriously
dangerous
area. According to the appellant the purpose of
firing the shots in an upward direction was to warn the suspects, and
avoid
the possibility of harming someone inside the Post Office. He
acted reasonably in his attempt to apprehend suspects who had
unlawfully
broken into the Post Office. In my view there is a
reasonable possibility that the appellant did not subjectively
foresee that
a suspect would be killed as a result of the
precautionary measures he took when firing the warning shots in an
upward direction.
It also cannot be found beyond reasonable doubt
that the appellant subjectively accepted that by taking those
precautionary measures
when firing the warning shots, that the
deceased would be fatally wounded in the process. The requirements
for
dolus eventualis
were clearly not established. The onus is
on the State to prove all the material elements of an offence beyond
a reasonable doubt.
In the circumstances I am satisfied that the
State had failed to prove its case against the appellant.
[34] In the result I propose that the following order be made:
(1) The appeal against appellant’s
conviction succeeds.
(2) The conviction on the charge of
murder and the resultant sentence are set aside.
(3) The orders of the regional
magistrate are set aside and substituted with the following order:
“
The
accused is found not guilty and discharged.”
___________________
GOLIATH, J
Judge of the High Court
I agree.
___________________
MANTAME, J
Judge of the High Court
I agree. It is so ordered:
___________________
BLIGNAULT, J
Judge of the High Court
CORAM:
J
ustice
A P Blignault, Justice P L Goliath
et
Justice B P Mantame
Counsel for the Appellant:
Adv
Norman Arendse [SC] & Adv Penelope Magona
Instructed by:
State
Attorney: Mr M Mhlana
Counsel for the State:
Adv
Pulane A Thaiteng
Date of Full Bench Appeal:
31
July 2014
Date of Judgment:
22
August 2014