S v Dougherty

• Jurisdiction: South Africa
• Judge: Hussain J, Willis J and Shakenovsky AJ
• Judgment Date: 25 September 2002
• Citation: 2003 (2) SACR 36 (W)
• Docket Number: A510/2002
• Hearing Date: 06 September 2002
• Counsel: J P Spangenberg for the appellant. P Nel for the State.
• Court: Witwatersrand Local Division

Willis J:

[1] The appellant was convicted in this Division of the High D Court (per Mailula J) of murder and attempted murder. He was sentenced to ten years' imprisonment on the murder count and six years on the attempted murder count. The sentences were ordered to run concurrently. In other words, the appellant was sentenced to an E effective ten years' imprisonment.

[2] The appellant appeals against both conviction and sentence in respect of each count to the Full Bench of this Division with the leave of the Court a quo. F

[3] The appellant was convicted on 20 September 2000 and sentenced on 5 February 2001.

[4] The convictions relate to the killing of one Simon Mkhize (the deceased) and the injury of one Elias Dlomo respectively at or near 'The Animal Farm' in Honeydew in the district of Randburg late at night on Saturday, 23 January 1999. G

[5] It is common cause that the appellant did indeed shoot and kill the deceased and also that he did indeed shoot at and injure Elias Dlomo. The appellant's defence is that he shot at these persons because he thought his life was in danger. It is common cause that the H appellant used his licensed firearm for this purpose.

[6] It is undisputed that on that particular evening the appellant had held a birthday party at his home at 24 Knoppiesdoring Str, Honeydew for about 20 of his friends. It was his sixty-third birthday. This is in the nearby vicinity of 'The Animal Farm'. It is also I undisputed that there had been moderate consumption of alcohol by the appellant and various of his guests during the course of this party.

[7] There is no dispute that guests of the appellant, namely Brian Landgraaf and his lady friend, Cynthia Leo, had been severely injured by J

Willis J

the deceased and Elias Dlomo shortly after they had left the party. There is no reason whatsoever to disbelieve this aspect of the version A of the appellant - indeed it seems highly probable - that the assaults upon his guests, Brian Landgraaf and Cynthia Leo were reported to him by his granddaughter. It seemed that there had been either a robbery or an attempted robbery directed at his friends. According to the appellant, he became afraid about the safety of other guests who may have left the party, as well B as for the safety of their vehicles parked outside his home. He then took his firearm, a 9 mm Parabellum semi-automatic pistol, from the safe and went outside to investigate. He carried the firearm, cocked, in his hand. In the vicinity, he noticed the deceased and Elias Dlomo sitting on a wall at 'The Animal Farm'. He asked them if they knew C anything about the assaults upon Brian Landgraaf and Cynthia Leo. They said they knew nothing. The deceased then pointed at the appellant's firearm and said to him 'you will not use that'. The deceased started coming towards him. He fired downwards in the direction of the deceased but the deceased continued coming towards him. The deceased was unarmed and clad only in a pair of shorts at the time. The appellant feared for D his life and fired a volley of shots in the general direction of the deceased and Elias Dlomo. When they fell down, he ran home. He justified his actions by saying:

'I immediately thought that this man was going to take the firearm away from me after telling me that I would not use it and the commanding tone of his voice that left no doubt in my mind that he was E actually coming for that firearm. I am afraid had he got the firearm, I would not be sitting here today.'

He also said:

'I brought the firearm up and I fired a shot. I took a step back and at that point the other party had now risen from where he was sitting. I knew I could not escape. So I just fired a volley of shots. F Nothing aimed at anybody. Just in their direction.'

[8] The next day (ie the Sunday), he contacted his attorney and then handed himself over to the police. He said he was an inexperienced marksman who had never received any formal training in the use of a firearm. He said that on rare occasions he used to go to a G farm where he and others set up beer cans and held a contest among themselves.

[9] The evidence of Dr Van der Westhuizen, who conducted the post mortem examination of the deceased, and the position of the spent cartridges near the body of the deceased strongly suggests the shots which killed the deceased were fired at fairly close range H (about 3,5 metres). The evidence of the witness Elizabeth Malinga, who heard the shots being fired, tends to corroborate the appellant's version that a warning shot was first fired.

[10] According to the post mortem report, the deceased would have been about 31 years of age at the time and Elias Dlomo, I according to a statement which he made, 33. In his evidence-in-chief he says he was 25 years old. Photographs, handed in as exhibits, showing the injuries to Brian Landgraaf and Cynthia Leo, indicate that they must have been in their late thirties or early forties at the time of the incident. J

Willis J

[11] There were only two eye-witnesses to the shooting incident: the A appellant and Elias Dlomo.

[12] Elias Dlomo says that he and the deceased, having bought some peanuts at a shop, had been walking in the street when Brian Landgraaf, after having stopped his vehicle and pointed a firearm at them, alighted from his vehicle and, for no apparent reason proceeded to assault the two of them with his fists. They had retaliated against B Brian Landgraaf and assaulted Cynthia Leo in anger. After Brian Landgraaf and Cynthia Leo had escaped, he (Elias Dlomo) and the deceased changed their clothing and then sat on a wall at 'The Animal Farm'. The appellant approached them with a firearm in his hand. They believed he must have been associated with Brian Landgraaf and Cynthia C Leo. The appellant then asked them if they knew anything about the assault on Brian Landgraaf and Cynthia Leo. Both Elias Dlomo and the deceased denied all knowledge of this event. While they were seated on the wall the appellant, for no apparent reason, opened fire on them. D

[13] In his application for leave to appeal, the appellant has made the following criticisms of evidence of Elias Dlomo:

'1

There are material contradictions between his evidence and his witness statement, inter alia:

1.1

During his evidence he testified that he could see that it was a white woman who was following them. In his statement he states E that it was not evident whether it was a black or white woman.

1.2

In his evidence he states that he had seen the deceased falling down during the fracas between him and Brian Landgraaf, whilst F during cross-examination he denied that this had happened.

1.3

During his evidence he testified that he had rung the bell at Andrew Georgiades residence. In his statement he alleges that he did not find the bell due to darkness. G

1.4

In his evidence he states that on his return the white man left the deceased and came towards him, whilst in his statement it appears that he joined the fight between Landgraaf and the deceased to assist the deceased.

1.5

He omitted to state in his statement that he had struck Cynthia Leo. H

1.6

In his evidence he stated repeatedly that when the shots were fired he was looking down and did not see where the shots were aimed at, whilst in his statement he avers that the deceased was shot at first and then the applicant came to him and shot at him. I

1.7

He failed to state in his witness statement that Georgiades had stopped him and the deceased from further assaulting Landgraaf.

2.

There are material contradictions between his evidence and that of the State witness, Andrew Georgiades (the State witness who J

Willis J

testified as to the incident with Brian Landgraaf and Cynthia Leo) the A most significant being:

2.1

Georgiades' denial that he had stopped Dlomo and the deceased from further assaulting Landgraaf.

2.2

According to Georgiades, Dlomo told him that he has seen Landgraaf assaulting Cynthia Leo. B

3.

There are material contradictions between his evidence and that of the State witness Elizabeth Malinga in that contrary to Dlomo she testified that there was one shot, then a lapse of time, followed by others in succession of each other.

4.

He materially contradicted himself in giving evidence in that: C

4.1

Although he initially testified that when the first shot was fired, it was aimed in the direction of the deceased and himself, he later said the first shot was fired in the air.

4.2

Although he initially testified that both he and the deceased were sitting down when they were fired at, during cross-examination he stated that they were standing. D

4.3

He contradicted himself with regard to the point where the applicant was standing when he fired at them.

5.

His evidence is materially contradicted by the objective facts, ie the position where the spent cartridges were found, the ballistics report and the evidence of the district surgeon. E

6.

His evidence that he would have known if the deceased had partaken in any alcohol on the particular day is contradicted by the fact that alcohol was found to be present in the body of the deceased.

7.

It is improbable that the deceased and Elias Dlomo would have F remained seated whilst being shot at or not have attempted to make their escape or attempted to find shelter behind the wall they were sitting on.

8.

The position of his wounds render his version improbable.

9.

It is improbable that the deceased being seated when he was shot in the head would have fallen forward and not backwards.' G

[14] These points are repeated in all their essential aspects in the appellant's heads of argument, except that it is shown in greater analytical detail that the appellant must have fired from a...