S v Botha

• Jurisdiction: South Africa
• Judge: Harms JA, Nugent JA and Ponnan AJA
• Judgment Date: 28 May 2004
• Citation: 2006 (2) SACR 110 (SCA)
• Docket Number: 318/03
• Hearing Date: 14 May 2004
• Counsel: A J Bam SC for the appellant. A Mosing for the State.
• Court: Supreme Court of Appeal

Ponnan AJA:

I [1] During the course of the afternoon of 24 March 2001 the appellant was joined, at his invitation, by ten others at his mother's farm Inderheken at Dendron near Pietersburg (now Polokwane). The appellant's guests, who were all members of a rugby club, of which he was the J

Ponnan AJA

first-team captain, were at the farm for the stated purpose of participating in a team-building exercise. A

[2] Inderheken is a game farm stocked with a variety of herbivores for the purposes of commercial hunting. That afternoon and evening passed uneventfully. The next morning the group set out in the appellant's bakkie on a game-viewing excursion. During the trip, alcohol was consumed by members of the group, who were jovial and in B high spirits. At the ready were four firearms intended to be utilised by them in bird-hunting.

[3] At approximately 06:00 that very morning, Alex Motlokwana, his cousin Melford Motlokwana and their friend Pitsi Tshepo Matloga (the deceased) set out from their homes in Ga-Mokgehle Trust, Dendron. C The express purpose of their expedition was to hunt small game on neighbouring farms. As an aid to achieving their objective, they were accompanied by a pack of ten dogs. During the course of the morning they made their way onto the farm Inderheken. D

[4] At approximately 11:00, according to Alex Motlokwana, their venture still not having met with any success, they made their way to the boundary of the farm and were about to pass through a fence when they noticed a vehicle and a group of men. The retort of a firearm caused him quickly to dash back into the bushes, his companions and E dogs following closely on his heels.

[5] After the shooting had commenced, Melford inched forward on his belly until he reached relative safety, before fleeing on foot. Alex was less fortunate. After a shot had struck the ground in front of him, he got up and ran towards the fence. Whilst fleeing, he was struck F and sustained gunshot wounds. He fell to the ground and sought cover in the undergrowth, where he remained until the next morning.

[6] An explanation for the initial shooting is to be found in the evidence of the appellant. According to the appellant, as the bakkie made its way around the farm, they came upon some of the dogs G belonging to the Motlokwana cousins and the deceased. The appellant's response was swift and decisive. Not having observed any people in the company of the dogs, and recognising that they were unlawfully on the farm, he fired shots in their general direction. H

[7] As he approached the area where the dogs were spotted, so testified the appellant, he was suddenly startled when the deceased emerged from the brush, which was knee-high. The deceased was immediately overpowered and subdued by the appellant. I

[8] Despite the appellant's protestations to the contrary, the trial Court found that, immediately after having been subdued, the deceased was already gravely injured. Support for that conclusion is to be found in the evidence of various witnesses, that the deceased had to be carried from the point where he had been apprehended to the appellant's bakkie. J

Ponnan AJA

[9] At some stage after he had been placed on the vehicle, and whilst it was stationary, the deceased was observed lying on the ground A alongside the bakkie. Precisely what caused him to fall to the ground was far from clear. What was clear, however, is that once again he had to be carried onto the bakkie. It was not in dispute that the deceased evidenced swelling around his eyes and bleeding...