R v Karg

• Jurisdiction: South Africa
• Judge: Schreiner JA, Hoexter JA and Ogilvie Thompson JA
• Judgment Date: 17 November 1960
• Citation: 1961 (1) SA 231 (A)
• Hearing Date: 14 November 1960
• Court: Appellate Division

Schreiner, J.A.:

The appellant, aged 28, was convicted in the Witwatersrand Local Division by SNYMAN, A.J., sitting alone, on a charge of culpable homicide and sentenced to two years' imprisonment. Leave to appeal against the sentence was refused by the learned trial Judge but A was granted under sec. 363 (6) (iii) of Act 56 of 1955. The appellant has not sought to appeal against his conviction.

The deceased, aged about 14, was one of a party of five European lads who, at about 10.30 on the morning of the 30th August, 1959, were wandering about on the southern outskirts of Johannesburg shooting birds with an airgun. They trespassed upon the property of the appellant's B father. It is a large stand, with houses on three sides but open veld to the south. On the south-eastern portion of the property is a rectangular blue-gum plantation some 55 yards long and 35 yards wide, the longer diameter running north and south. The plantation is surrounded by barbed wire. The five lads entered the plantation from the C south and reached the northern fringe. The deceased, who then had the airgun, got through the northern wire to get a closer shot at a bird on the roof of a pigstye. The other four remained within the wire enclosure.

Meanwhile the appellant, having been told by a servant, Frans, that 'there were boys at the back, in the trees' had fetched his .22 rifle D from the house and come towards the back or southern part of the property. One of the lads gave evidence for the Crown and stated that he saw the appellant at a stage when the deceased was still in an open space just north of the plantation, trying to get a shot at the bird. If this was so the deceased was in full view of the appellant and must have E been seen by him if he had looked in the right direction, i.e. to the east. The appellant said in evidence that he looked only to the south in the first instance and that he did not see the deceased. A little later, however, he did look eastwards but by then the deceased must have rejoined his companions inside the plantation and all that appellant says that he saw was the movement of persons in the northeastern part of F the plantation. He gained the impression that they were in an open strip about seven yards wide which runs north and south through the trees. He got a glimpse of a reddish garment and another that seemed whitish. He shouted to the persons to stop and, there being no response, he fired into the south-western corner of the plantation. He was then G some twenty yards to the north-west of the north-western corner of the plantation. At this corner there is a gate to which he proceeded, firing another shot just before he reached it in the same direction as the first shot. He entered the gate and moved eastwards inside the barbed wire fence. As he approached the northeastern corner of the plantation, and just before he reached the abovementioned open strip, he fired a H third shot in a southerly direction. This fatally wounded the deceased as he was getting through the southern fence of the plantation. The appellant heard a scream and ran down the open strip to where the deceased was lying. The appellant found a bullet mark on the deceased, about waist level, and took him to the hospital where it was found that he was already dead. The appellant reported to the police station where he was placed under arrest.

Schreiner JA

The appellant's explanation of his behaviour was that his father owned valuable prize poultry, some of which had from time to time during the previous four years been stolen by thieves. As protection against such A criminals at least one large dog was kept and to the same end the rifle used on the occasion in question was acquired on the advice and with the assistance of a policeman. There was also a burglary alarm in the fowl-run, which the appellant said had sounded in the early morning of the day of the shooting. When at 10.30 a.m. Frans told him that there B were boys in the trees he made no further enquiries but assumed that they were non-European adults bent on stealing his father's fowls. He said that he fired all three shots while he was running without aiming. The third shot, in particular, he said that he did not aim at anyone, but fired 'from around arm's length; around my hip'. He gave a demonstration in Court, but as happens so often and so unfortunately...