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IN THE NORTH WEST HIGH COURT, MAHIKENG

CASE NO: CA 46/2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

CIRCULATE TO MAGISTRATES: NO

CIRCULATE TO REGIONAL MAGISTRATES: NO

In the matter between:

MASHISHI TEBOGO                                                                                              Appellant

and

THE STATE                                                                                                         Respondent

 

HENDRICKS ADJP, GUTTA J

DATE OF HEARING: 18 MAY 2018

DATE OF JUDGMENT: 07 JUNE 2018

COUNSEL FOR APPELLANT: MR. GONYANE

COUNSEL FOR THE RESPONDENT: ADV. NDIMANDE

JUDGMENT

HENDRICKS J

Introduction

[1] The appellant and the complainant are brothers. On the 16^th day of July 2016, the complainant went to his parental homestead. The appellant stays in one of the two houses situated on the premises. Their cousin occupies the other house. Arriving there in the early evening hours, the complainant found the gate locked. He caused the lights to shine on the house occupied by the appellant. He threw stones on the roof of the house occupied by his cousin, but to no avail. In order to attract attention, he sounds the horn of his motorvehicle. This caused the appellant to emerge from his house in order to determine who it was.

[2] Upon enquiring, the appellant found out that it was his brother, the complainant. The complainant wanted to enter onto the premises. He could however not do so because of the locked gate. Entry was also refused by the appellant. An argument ensued between them with the exchange of derogatory insults. The complainant threatened to enter the premises by force. He took out a pair of pliers to cut the fence. This prompted the appellant to enter his house in order to fetch his fire-arm. Armed with his fire-arm, the appellant approached the gate. He fired three shots, two in the air and one directed at the complainant. The one which was directed at the complainant struck him in his stomach. The complainant was hospitalized for six weeks and even underwent surgery. This led to the charge of attempted murder been proffered against the appellant. He was convicted and sentenced to undergo a term of imprisonment for six (6) years. Leave to appeal was refused by the trial court. The appellant successfully petitioned the Judge-President of this division for leave to appeal. Leave to appeal was granted against conviction and sentence; hence this appeal.

[3] Most of the facts of this case are either common cause or were not seriously disputed. The appellant, during his trial in the court a quo, raised private or self – defence as a defence. Private defence is defined as follows: A person acts in private defence and his act is therefore lawful if he uses force to repel an unlawful attack which has commenced or is imminently threatening upon his or somebody else’s life, bodily integrity, property or other interests which deserve to be protected. Provided that the defensive act is necessary to protect the interest threatened and is directed against the attacker and is reasonably proportionate to the attack.

See: Snyman CR, Criminal Law, 6^th Edition.

[4] In S v Steyn 2010 (1) SACR 411 (SCA) the following is stated:

“[19] Every case must be determined in the light of its own particular circumstances and it is impossible to devise a precise test to determine the legality or otherwise of the actions of a person who relies upon private defence. However, there should be a reasonable balance between the attack and the defensive act as ‘one may not shoot to kill another who attacks you with a flyswatter’. As Prof J Burchell has correctly explained ‘. . . modern legal systems do not insist upon strict proportionality between the attack and defence, believing rather that the proper consideration is whether, taking all the factors into account, the defender acted reasonably in the manner in which he defended himself or his property’. Factors relevant to the decision in this regard include the following (the list is by no means exhaustive):

· the relationship between the parties

· their respective ages, gender and physical strengths

· the location of the incident

· the nature, severity and persistence of the attack

· the nature of any weapon used in the attack

· the nature and severity of any injury or harm likely to be sustained in the attack

· the means available to avert the attack

· the nature of the means used to offer defence

· the nature and extent of the harm likely to be caused by the defence.”

[5] In Grigor v The State (607/11) [2012] ZASCA 95 (1 June 2012) the following is stated:

“[10] 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.

[11] 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.”

[6] In a well-reasoned judgment the learned Regional Magistrate concluded that the appellant exceeded the bounds of self – defence. The trial court found that if the appellant felt threatened by the complainant’s attempt to gain access onto the premises, he could have protected his rights and interest by resorting to conduct which is less harmful than that which he employed. The following examples were mentioned; the fact that he could have gone into his house and locked it; he could have waited for the police to arrive; he could have left the premises. The crux of the matter according to the Regional Magistrate is the fact that the gate was still locked when the shots were discharged from the appellant’s fire-arm. By then the complainant was still on the other side of the fence.

[7] Self–defence justifies the use and force if it is reasonably necessary to repel an unlawful attack. It should only be resorted to when it is necessary to do so. Objectively viewed, it was not necessary to discharge the three fire-arms shots, as the appellant did. He caused more harm or serious injury than justified to ward – off the attack; if indeed he was under attack. The trial court quite correctly in my view, concluded that the appellant exceeded the bounds of self – defence. There was absolutely nothing that the complainant did to the appellant which indicate that appellant was in danger.

[8] Furthermore, the appellant had the requisite mens rea in the form of dolus eventalis. He was angry. He discharged three bullets. He aimed in the direction of the complainant. One of the bullets struck the complainant in his stomach, which is a vulnerable part of the body. The appellant must have subjectively foreseen the possibility that his act of shooting towards the direction of the complainant could result in serious injury or death. He reconciled himself with the possibility.

[9] In S v Pistorius 2016 (2) 317 (SCA) the following is stated:

“[26] In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased. Dolus eventualis, on the other hand, although a relatively straightforward concept, is somewhat different. In contrast to dolus directus, in a case of murder where the object and purpose of the perpetrator is specifically to cause death, a person’s intention in the form of dolus eventualis arises if the perpetrator foresees the risk of death occurring, but nevertheless continues to act appreciating that death might well occur, therefore ‘gambling’ as it were with the life of the person against whom the act is directed. It therefore consists of two parts: (1) foresight of the possibility of death occurring, and (2) reconciliation with that foreseen possibility. This second element has been expressed in various ways. For example, it has been said that the person must act ‘reckless as to the consequences’ (a phrase that has caused some confusion as some have interpreted it to mean with gross negligence) or must have been ‘reconciled’ with the foreseeable outcome. Terminology aside, it is necessary to stress that the wrongdoer does not have to foresee death as a probable consequence of his or her actions. It is sufficient that the possibility of death is foreseen which, coupled with a disregard of that consequence, is sufficient to constitute the necessary criminal intent.”

I am of the view that the learned Regional Magistrate correctly applied the legal principles to the facts of this case. The decision cannot be faulted. The conviction must therefore be confirmed.

[10] Insofar as sentence is concerned, it was submitted on behalf of the appellant that the sentence of six (6) years direct imprisonment is shockingly severe and inappropriate and that a wholly suspended sentence should have been imposed as a more appropriate sentence. On behalf of the State it was contended that there is nothing wrong with the sentence imposed. The sentence is neither shockingly severe nor inappropriate in relation to the crime committed.

[11] The following personal circumstances of the appellant were placed on record: he was by then 76 years of age; unmarried; no dependents to support; he is a pensioner receiving a pension of approximately R4000.00 per month; he is a first offender; he has a degree. As aggravating circumstances are the fact that the complainant was shot at a vital part of his body namely his stomach; he underwent surgery and was hospitalized for six weeks; he is scarred for life; after shooting him, the appellant left the complainant and went back into his house; he did not assist the complainant, who happens to be his brother, in any way.

[12] Section 276 (1) (i) of the Criminal Procedure Act, No 51 of 1977 (the CPA), as amended provides for a sentence of imprisonment for which a person may be placed under correctional supervision in the discretion of the Commissioner or a parole board. I am of the view that this is an appropriate case where a sentence in terms of the provisions of this section should be imposed. Having considered all the personal and mitigating circumstances as well as the aggravating circumstances of this case, I am of the view that an appropriate sentence will be a term of imprisonment for five (5) years in terms of section 276 (1) (i) of the CPA. The appeal against sentence should therefore be upheld and the sentence be accordingly altered.

 

Order

[13] Consequently, the following order is made:

(i) The appeal against conviction fails.

(ii) The conviction is confirmed.

(iii) The appeal against sentence succeed.

(iv) The sentence of six (6) years imprisonment imposed by the Regional Court is set aside and is substituted with the following sentence:

“Five (5) years imprisonment in terms of Section 276 (1) (i) of the Criminal Procedure Act No 51 of 1977, as amended.”

 

 

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R D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

 

 

I agree

 

 

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GUTTA J

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG.

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