Recent Case: General principles and specific offences

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Citation: (2018) 31 SACJ 437
• Author: Shannon Hoctor
• Pages: 437-451
• Date: 16 August 2019

General principles and specic

offences

SHANNON HOCTOR

University of KwaZulu-Natal

1 General principles

1.1 Private defence, putative private defence, and fault

The issue of private defence arose in two recent Supreme Court of

Appeal cases, Ngobeni v The State (1041/2017) [2018] ZASCA 127

(27 September 2018) and Botha v The State (1074/2017) [2018] ZASCA

149 (1 November 2018). The Ngobeni case dealt with an appeal against

a murder conviction, where a full bench of the Gauteng division of

the high court conr med the conviction, and increased the sentence,

handed down in the trial cour t (the Gauteng High Court). The

conviction arose out of the shooting of the deceased by the appellant,

who was a constable in the SAPS. The deceased was one of a group

of ve students, who had got lost looking for a funeral. When they

pulled into a Caltex garage drivi ng a Corolla, they were followed by

a police vehicle, in which the appellant was a passenger, as well as

private security ofcers. T he reason for the interest of the police and

the security ser vices in the students’ vehicle was the report t hat a

vehicle with ve occupants, and carryi ng rearms, was seen in the

proximity of a supermarket nearby. The driver of the vehicle, and

the three occupants of the back seat, got out of the Coroll a, as per

the instruction s of the other policeman on the scene. However, when

the appellant approached the left front passenger door, where the

deceased was sitting, he pointed his R5 rie at the deceased , and

proceeded to re two shots, fatally wounding the deceased, h aving

instructed the decea sed to get out of the Corolla (at paras [3]-[6]).

The appellant’s initial defence that he was acting in sel f-defence

when he red the fatal shots, believing that the deceased was re aching

for a rearm as he was getting out of the Corolla, was conclusively

established not to be objectively true at trial. T here was no objective

indication that the deceased posed any th reat to the appellant, and

thus the requirement for private defence, such that there must be

RECENT CASES

437

(2018) 31 SACJ 437

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