S v Chretien

• Jurisdiction: South Africa
• Judge: Friedman J
• Judgment Date: 08 August 1979
• Citation: 1979 (4) SA 871 (D)
• Hearing Date: 07 August 1979
• Court: Durban and Coast Local Division

Friedman J:

The accused, a 27 year old man, is charged on one count of murder, on five counts of attempted murder, and on two counts of contravening the Road Traffic Ordinance 21 of 1966 (N). All these offences arise out of an incident which occurred in the early morning of 14 January G this year on Stafford Road, a public road in the district of Pinetown, and in which a certain Volkswagen Combi driven by the accused collided with six persons killing one and injuring the remaining five. The facts surrounding the incident and leading up to it are not seriously in dispute and can be stated fairly briefly. On the evening in question, that is to say the evening of Saturday 13 January 1979, a party was held by the H residents of a house at 23 Stafford Road, Pinetown. This house was occupied by a number of unmarried males who were shortly to vacate the house, their lease of it apparently having been about to come to an end. The party was in a sense an open party in that certain of the guests were invited but others who were not invited were permitted to attend. The accused, together with certain of his friends, had not been invited to the party but nevertheless attended and were made welcome at the party in the sense that no attempt whatsoever was made to bar their presence there. It is clear that a reasonable quantity of alcohol was consumed by very many of the persons, and certainly by most of the males

Friedman J

who gave evidence in this case and who were present at the party. At some stage during the course of the evening an argument arose on the balcony of this house. The precise time at which this incident arose, is not entirely A clear but the evidence would tend to suggest that it was at or about or perhaps shortly after midnight. One Graham Sharp, it would seem, became involved in an argument, details of which are unimportant, and this ended with Graham Sharp falling over the balcony. It does not matter for present purposes whether he was deliberately thrown or whether, as a result of some jostling, he fell. It seems clear that as a result of this fall he B did not sustain any serious injury, but his falling from the balcony in turn provoked some discontent between, on the one hand, the friends of Graham Sharp, who included the occupants of the house and those who were in fact holding the party, and, on the other hand, Billy Watson, who it seems was responsible for Graham Sharp's fall from the balcony and who was C a friend of and had accompanied the accused and others of his group to the party. An altercation then arose on the balcony and it is possible that during the course of this altercation some punches were thrown. It seems that at first the trouble was smoothed over and the altercation appeared to die down, but then, for some reason which is not entirely clear, it started up again. Possibly contributing towards the fact that the D altercation resumed was the fact that one Patsy Hogan, a member of the group accompanying the accused to the party, was bitten on one of her fingers, so it would seem, by the brother of one of the occupants of the house. One of the chief discontended persons during the course of the argument which arose was the brother of Graham Sharp, one Ronald Sharp, E who apparently, to put it mildly, was not welldisposed towards Watson. As it appeared that matters might start getting out of hand, Charles Pettersson, who was one of the occupants of the house, then decided very sensibly to call the party off; he caused the music to be switched off and suggested to everybody they go home. The process of going home, it would seem, took a little bit of time as certain stragglers did not leave the F house immediately. Speaking in general terms, although various of the persons attending the party started drifting away in different groups, the rumblings of discontent continued. Essentially, as I have indicated, the strong feeling was directed towards Watson and, it would seem, directed in particular by the brother of Graham Sharp.

G [The learned Judge then dealt with the evidence as to what occurred at the house and proceeded.]

The accused, who pleaded not guilty to all these counts, sought to excuse his conduct upon the basis that he acted in what might be termed a state H of necessity or compulsion. He explained that after the party had started breaking up he feared that things might start getting, to put it colloquially, "a bit ugly". He claimed that one of the factors which induced this belief was the fact that Patsy Hogan had been bitten. He also claimed that, whilst proceeding to his Combi, he was approached by a person or persons who indicated to him that unless he left immediately he would be annihilated. He says that, after entering the Combi, he gained the impression that somebody tried to enter the Combi through the left front window. All of these events and the gathering of the crowd caused him to panic and fear if not for his life than at any rate that he would sustain severe injuries as a result of being assaulted. He says that he had consumed

Friedman J

a great deal of alcohol, starting from late afternoon and continuing during the course of the evening, and no doubt the fact that he was somewhat intoxicated magnified or enlarged in his mind what he thought to A be a dangerous situation. He says that, having driven off and reached the intersection to the south, he was nervous about taking one of the side roads, since he thought he might be, as he put it, going on a roundabout and would end back where the crowd had collected. Instead he did a U-turn and went back along the road in the direction in which he had come. He B admits to having seen the crowd in the road, and certainly at one stage in his evidence suggested that he thought the crowd was trying to stop him. I say specifically at one stage since earlier in his evidence he had said that it did not appear that the crowd was watching him but was facing towards the Mercedes, or at any event that he could not discount that possibility. He says that, because of his state of fear induced by what C had happened earlier and magnified and aggravated by his consumption of alcohol, he was afraid either to slow down or to stop, although he believed the crowd would disperse and get out of the way of his oncoming Combi, and that it was his state of fear which caused him not to stop but instead to plough into the crowd. He claims however that at the last minute he sought to take avoiding action by swerving to...