---

145/86 /mb

THE SUPREME COURT OP SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

WILLIAM DHLAMINI APPELLANT

and

THE STATE RESPONDENT

CORAM : VILJOEN, GROSSKOPF, JJA et STEYN, AJA
HEARD : 22 SEPTEMBER 1987
DELIVERED : 1 DECEMBER 1987

JUDGMENT

VILJOEN, JA

I have read the judgment of my Brother Steyn.

I agree that the appeal against the conviction fails

and/

2.
and I also agree that on the facts found by the learned Judge he erred in finding that the appellant's conduct constituted gross negligence and that this Court may, consequently, interfere with the sentence. I however do so reluctantly, because I have grave difficulties as far as the factual findings by the learned Judge are concerned.
The sequence of events at the crucial stage of the drama in the kitchen that night unfolded itself in the following stages:

1.	The appellant struck the deceased in the face.
2.	Grace Motolo and her son Sandile intervened to prevent the appellant from further assaulting the deceased.
3.	In retaliation for the assault on her' the deceased grabbed a kettle of boiling water and emptied it

on/

3.

on the appellant which caused serious burns on his arms and his body. Some of the boiling water landed on Sandile as well and he beat a hasty retreat.

4. Thereafter the appellant produced his pistol from his pocket and two shots were fired by him. One struck the pelmet above the window and the other one went through the body of the deceased who was at that stage trying to open the back kitchen door. After the bullet had struck her she managed to open the door, went out, collapsed and died outside.

In view of the nature of appellant's

defence, as put to the State witnesses, two issues
emerged which the Court a quo had to decide. The first
one was whether the deceased, before she hurried to
the back door to escape from the appellant, had reached
for another pot of boiling water which was standing on
the stove to empty it onto the appellant. The other

was/

4. was whether the second shot which killed the deceased

was deflected,by Goodwill who grabbed the arm of the

appellant causing the shot to be fired in the direction

of the deceased.

On the first issue the learned trial Judge

found (a passage which my Brother Steyn has also quoted):

"Because of the unsatisfactory features in the State's version to which I have alluded above, I am prepared to give the accused the benefit of the doubt in respect of the first shot and to find that he was entitled to fire the first shot into the pelmet in the reasonable belief that his wife, the deceased, was going to pour water over him again."

In the course of his judgment the learned

Judge said:

"It was patently obvious that all three State witnesses because of this relationship to the deceased were emotionally disturbed by the

death/

5.
death of their relative at the accused's hands. They had been witnesses to the unfortunate and tragic incident in the kitchen of the accused's home when the deceased lost her life. By no stretch of the imagination can they be viewed as objective and impartial witnesses. There are passages in their evidence which even indicate hostility towards the accused. There are contradictions in their evidence. Some on important issues which make it dangerous for me to accept any portion of their evidence which is not corroborated either by ob-jective facts and probabilities or where the accused's evidence is so poor that it provides a safeguard which allows me to rely on certain parts of their evidence which he cannot refute or does not refute or about which he has lied or given contradictory evidence."

I have carefully perused the evidence.
There were discrepancies in their evidence but, in
my view, they were of a minor nature. From the record

it/

6. it appears that the only witness who was emotionally dis-

turbed was Gertrude Motolo. I agree that it would be

dangerous to have relied on her evidence. On various

occasions in the course of her testimony she broke down

and cried and from certain passages in her evidence it
may be inferred that she was hostile to the appellant.
In óne passage she referred to him as the murderer. I
did not get, on paper I must concede, the same impression
of Sibongile and Sandile. The learned Judge made no
findings as far as their demeanour was concerned. One
must remember that much occurred within the space of a
few seconds and it was a changing scene. What was ob-
served by one might not have been observed by the other.
Sibongile and Sandile were, it is true, the

brother/

7. brother and sister-in-law of the deceased but it cannot,

in my view, be said that, by reason of this relation-

ship it was, per se, patently obvious that they would

give biassed evidence against the appellant.

That the deceased reached for a second pot

to pour water over the appellant should have been totally

rejected by the learned Judge because of the utter impro-

bability thereof. In the first place the pot had no

handles and the deceased would have had to pick it up
with her bare hands. When this was pointed out to the

appellant, he suggested she could have tipped it over. This was a clear afterthought. His evidence, one of

the many variations thereof, is that after the water in the

kettle had been poured over him, he jumped back. In any

event/

8. event, why would she empty another container full of

hot water over him? She had accomplished her purpose
with the water in the kettle. She would, fearing
retaliation, immediately try to get away. That she
did so is what the State witnesses said. And why would
he wait before going into action until he was threatened
a second time? The probabilities are that he was so
enraged by the first scalding that he acted immediately
and impulsively, produced his fire-arm and started to
shoot. He could not have entertained the belief,let
alone a reasonable belief,that his wife was going to
pour water over him again. In my view the State evidence
on this issue should have been accepted.

That Goodwill grabbed his arm and that the

shot/

9. shot was deflected, was one of the many defences of

the appellant. He varied his version as he went along

and it is difficult to ascertain what his real defence

was. He seemed to have relied on one or more of the

following defences: that when he shot he was not in

his senses (automatism or provocation or both?);

self-defence; that his arm was grabbed by Goodwill and

the direction of the bullet deflected; that he shot

merely to frighten her and finally that he did not

intend to shoot but that the shots went off accidentally

when his arm was grabbed by Goodwill. The learned Judge

found as follows:

"His denial that he fired the first shot to kill is supported by the fact that the bullet ended up in the pelmet and the possibility that the second shot was not

aimed/

10.

aimed at the deceased cannot be refuted beyond reasonable doubt in the light of his brother's pulling of his arm."

That the one bullet ended up in the pelmet is of course an undisputed fact. That, even in the face of facts from which only one inference can be drawn namely that of an intention to kill, an accused very frequently denies that he had that intention, is common experience. I have looked, but looked in vain, for any indication in the record that the accused de-liberately aimed high or away from the deceased so as not to shoot her. While the State evidence is not de-cisive on the issue as to the effect of the grabbing of the arm of the deceased by Goodwill there are, on a conspectus of the evidence as a whole, features from

which/....

11.

which an infer'ence may, in my view, be drawn that the
appellant deliberately aimed at the deceased. One
such feature is the curious omission by him to state that he
deliberately shot high or away from her so as to miss
her. During his evidence-in-chief and before per-
forming his remarkable egg-dance among his various de-
fences he testified as follows:

"Yes? — When water was thrown onto me, Sandile was burned a little and he let go of me. I turned round to face my wife, because she threw water at me from be-hind. When I turned round, I saw she was returning to the stove to fetch the pot with water. At that stage I drew a firearm. I do not know how many times I fired, because I had lost my senses. I remember Nklankla came and grabbed me by the arm. That was the last I saw what was happening."

He/

12. He does not say that he fired to miss. He

says he had lost his senses. The impression one gets

from this passage is that he shot, not to frighten

her, but in blind anger. At what? The inference is

that it was at the object which caused his state of
mind. If Goodwill did grab his arm, of which he might
dimly have been aware, it might have been to avert
his aim from the deceased. The first shot might have

struck home. While the State witnesses conceded that

it was the first shot which struck the pelmet it is
to be doubted whether anybody in that room could have
been sure where the first shot struck and whether it

was the first or second shot which struck the deceased.

The shot in the pelmet, whether it was the first or

second/

13. second one, could have struck there as a result of

the grabbing of his arm by Goodwill. By skilful

suggestive questioning on the part of his counsel

he was coaxed to testify as follows:

"Now, there has been evidence that the first shot went into the pelmet. -- I saw that.
And that pelmet is actually away from the back, outside the door. It is away from the outside door. It is not in the direc-tion of the back door leading outside. -- Yes, very far from the back door.
Are you able to say how the second shot ..., because it has been agreed that there were no more than two shots, how the second shot came to hit the deceased? -- Goodwill came from behind me and pulled away the arm with the firearm and said: Brother, stop."

The witness who could have cleared this

matter up was Goodwill. The State did not call him

- due,/

14. - due, it seems, to the learned Judge's impatience

because he considered that he had heard enough State witnesses on what he considered, too narrowly, in my view, to be the factual issues in the case. Goodwill was, however, made available to counsel for the de-fence who did not avail herself of the opportunity to call him. The learned Judge could, and in my view, in the interests of justice, should have called Good-will in terms of s 167 of Act 51 of 1977.
In my view, the appellant was fortunate to have been convicted on the facts found by the learned Judge. I am, however, for purposes of this appeal, obliged to accept those findings. I have warned myself that, being human, I should guard against an inclina-

tion/

15. tion to regard the question of sentence in a light

more serious than is warranted by the facts found

by the learned Judge a quo. I may add that I do not

agree with my Brother Steyn that the deceased's

reaction was out of all proportion to the hurt and

provocation caused by the blow struck by the appellant.
There was no medical evidence that a fist blow would

necessarily cause a change in the pigmentation of a
dark skin, particularly under the circumstances which
prevailed. The shot which passed through her heart
must have caused exsanguination as a result of which
no mark might have been left on her face. In any
event, the humiliation suffered by her when struck a
blow, whatever the force of it might have been, in

the/

16. the presence of all the people in the kitchen must

have been a severe humiliation.

However, regard being had to the factual

findings of the learned Judge for purposes of a con-

victionpersonally and peculiarly relate to the appel-

lant, and taking into consideration the factors

which I agree with the sentence proposed by my

Brother Steyn.

JUDGE OF APPEAL GROSSKOPF JA - agrees

---