S v Botha

• Jurisdiction: South Africa

S v Botha
2019 (1) SACR 127 (SCA)

2019 (1) SACR p127

Citation	2019 (1) SACR 127 (SCA)
Case No	1074/2017; [2018] ZASCA 149
Court	Supreme Court of Appeal
Judge	Tshiqi JA, Seriti JA, Zondi JA, Schippers JA and Mokgohloa AJA
Heard	August 24, 2018
Judgment	November 1, 2018
Counsel	M Kolbe SC for the appellant.; SH Rubin for the state.

Flynote : Sleutelwoorde

Murder — Mens rea — Intention to kill — Accused must have foreseen possibility that by directing knife towards upper body of deceased, who was attacking her, she might injure or kill her — No proof, however, that she had reconciled herself with occurrence of death or disregarded consequences of it occurring — Conviction for murder changed to one of C culpable homicide.

Headnote : Kopnota

The prosecution of the appellant on a charge of murder arose from an incident occurring after the deceased arrived at a restaurant where she found her husband and the appellant, who were involved in a love relationship. The deceased assaulted the appellant, smashed the windscreen of her D husband's car, returned to the appellant and attacked her again by hitting her over the head with an ashtray, grabbing her and pulling her by the hair to the ground. While the appellant tried with one hand to remove the deceased's grip on her hair, she grabbed a steak knife from the table and directed a stabbing movement towards the deceased who was standing behind her. The knife penetrated the deceased's chest through the muscles of the anterior chest wall, through the lung and into the brachiocephalic E vein. Both her lungs partially collapsed, and she died. The appellant was tried in the regional court, convicted and sentenced to 15 years' imprisonment.

On appeal, the High Court substituted the conviction of murder with dolus directus to one of murder with dolus eventualis, and reduced the sentence to 12 years' imprisonment. In a further appeal against the conviction and F sentence,

Held, per Tshiqi JA (Seriti JA, Zondi JA and Mokgohloa AJA concurring), that, while the appellant was clearly faced with a situation in which she was being assaulted and had to retaliate in order to protect herself, she must have foreseen the possibility that by directing the knife towards the deceased's upper body, she might injure or kill her. (See [13].) G

2019 (1) SACR p128

Held, A further, that although she had foreseen that possibility, it was not clear that the appellant had reconciled herself with the occurrence of death or disregarded the consequences of it occurring. There was no evidence that she had deliberately or purposefully aimed a firm thrust at the deceased. On the contrary, the evidence showed that she had simply turned around while sitting, and directed a stabbing movement towards the deceased's B upper body. This suggested that her conduct was not an impulsive reaction to the attack being inflicted on her. The state did not prove all the elements of murder in the form of dolus eventualis, and the conviction fell to be set aside and substituted with one of culpable homicide. A sentence of three years' imprisonment, subject to the provisions of s 276(1)(i) of the Criminal Procedure Act 51 of 1977, was appropriate in the circumstances. (See [15] and [20] – [21].)

Held, C per Schippers JA, dissenting, that the appellant's conduct did not begin to meet the test for negligence, namely that a reasonable person in the same position as the appellant found herself in when she was attacked, would have foreseen that the deceased would die as a result of her defensive act; that the reasonable person would have taken steps to guard against such a possibility; D and that the appellant failed to take such steps. Moreover, it could not be said that her version, that she had to act in split seconds; grabbed something to get the deceased away from her; and that she did not think that her defensive act would result in the death of the deceased, was not reasonably possibly true. In the circumstances she should have been acquitted. (See [62].)

Cases cited

Cele v R E 1945 NPP 173: referred to

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

R v Difford 1937 AD 370: referred to

R v Patel 1959 (3) SA 121 (A): referred to

R v Zikalala 1953 (2) SA 568 (A): referred to

S v Bernardus F 1965 (3) SA 287 (A): dictum at 307A – C applied

S v De Oliveira 1993 (2) SACR 59 (A): referred to

S v Grigor [2012] ZASCA 95: referred to

S v Heslop 2007 (1) SACR 461 (SCA) (2007 (4) SA 38; [2007] 4 All SA 955; [2006] ZASCA 127): referred to

S v Humphreys 2013 (2) SACR 1 (SCA) (2015 (1) SA 491; [2013] ZASCA 20): G dicta in paras [12] – [17] applied

S v Motau 1968 (4) SA 670 (A): referred to

S v Ngomane 1979 (3) SA 859 (A): referred to

S v Ntuli 1975 (1) SA 429 (A): referred to

S v Steyn 2010 (1) SACR 411 (SCA): referred to

S v Trainor 2003 (1) SACR 35 (SCA) ([2003] 1 All SA 435): dictum in H para [12] applied

S v Van Aswegen 2001 (2) SACR 97 (SCA): referred to

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): dictum at 449j – 450b applied

Union Government (Minister of Railways & Harbours) v Buur 1914 AD 273: I dictum at 286 applied.

Legislation cited

Statutes

Criminal Procedure Act 51 of 1977, s 276(1)(i): see Juta's Statutes of South Africa 2017/18 vol 1 at 2-339.

Case Information

M Kolbe SC for the appellant.

SH Rubin J for the state.

2019 (1) SACR p129

An appeal from a conviction and sentence for murder in a regional A magistrates' court.

Order

1.

The appeal is upheld to the extent set out below.

2.

The conviction of murder and the sentence of 12 years' imprisonment B are set aside.

3.

The order of the Gauteng Local Division, Johannesburg, is replaced with the following:

'The appellant is convicted of culpable homicide and is sentenced to three years' imprisonment subject to the provisions of s 276(1)(i) of the Criminal Procedure Act 51 of 1977.' C

Judgment

Tshiqi JA, Seriti JA, Zondi JA and Mokgohloa AJA concurring):

[1] The appellant was charged and convicted in the regional court, Mogale City, Krugersdorp, with murder read with s 51 of the Criminal Law Amendment Act 105 of 1997. The regional court magistrate, after D finding no compelling and substantial circumstances meriting a deviation from the prescribed minimum sentence, imposed a sentence of 15 years and also declared the appellant, in terms of s 103(1) of the Firearms Control Act 60 of 2000, unfit to possess a firearm. She appealed to the full bench of the Gauteng Local Division, Johannesburg, E with its leave. Her appeal, in the court a quo, was partially successful in that her conviction of murder in the form of dolus directus was substituted as murder in the form of dolus eventualis, and her sentence was reduced to a period of 12 years. She now appeals to this court, against the conviction and sentence with its leave (per Cachalia JA and Ploos van Amstel AJA), who also made an order granting her bail F pending the outcome of the appeal in the amount of R5000.

[2] The appellant's conviction arose from an incident between her and the deceased at the Dros restaurant, Krugersdorp, on the afternoon of 27 July 2012. It is common cause that the deceased died as a result of G complications flowing from a stab wound inflicted by the appellant to her anterior chest wall during the incident. At the time the deceased's husband and the appellant were involved in a love relationship and the incident concerned the deceased's husband. They had been sitting at the premises of the restaurant at an outside area, with their backs facing the entrance of the restaurant, when the deceased, who was H visibly angry, arrived with her son, then aged approximately 9 years old. She approached her husband and the appellant from behind, assaulted the appellant and shouted and swore at her. She thereafter left and proceeded towards the parking area of the restaurant. Her husband followed, apparently in order to calm her down, but the appellant did not move from where she was sitting. The deceased picked up a stone and I smashed the windscreen of her husband's motor vehicle. There was another altercation between the deceased and her husband around the parking area, but she came back, leaving her husband next to his motor vehicle, and approached the appellant, swore at her and assaulted her again. J

2019 (1) SACR p130

Tshiqi JA, Seriti JA, Zondi JA and Mokgohloa AJA concurring)

[3] A The version of the appellant on the nature and severity of this second attack is slightly different from that of the two eyewitnesses who testified for the state. The first state witness, Mrs Louise Fourie, said that there was a fight between the appellant and the deceased during which she saw the deceased attacking the appellant, grabbing her and pulling her by her B hair from behind whilst swearing and shouting at her. During the process a glass ashtray that had been on the table fell. At some stage she saw the appellant making a stabbing movement towards the back and saw blood coming out of the deceased's mouth. The deceased staggered a bit and sat on the chair. She also stated that the deceased was bigger than the appellant. During cross-examination she was asked whether the C appellant had fallen down during the second attack and she said that she did not see her falling.

[4] The second state witness, Miss Melissa Fourie, the daughter of Mrs Fourie, confirmed her mother's version in many material respects, but when questioned whether the appellant had fallen on the ground she D said:

'Dit is hoe dit vir my gelyk het, want ek het nie heeltemal gekyk nie. Ek het net uit die hoek van my oog uit [gesien].'

Later on, she said that she was uncertain. During cross-examination she E was referred to her earlier statement to the police where she stated that the appellant was on the...