S v Dougherty

• Jurisdiction: South Africa
• Citation: 2003 (2) SACR 36 (W)

S v Dougherty
2003 (2) SACR 36 (W)

2003 (2) SACR p36

Citation	2003 (2) SACR 36 (W)
Case No	A510/2002
Court	Witwatersrand Local Division
Judge	Hussain J, Willis J and Shakenovsky AJ
Heard	September 6, 2002
Judgment	September 25, 2002
Counsel	J P Spangenberg for the appellant.; P Nel for the State.

Flynote : Sleutelwoorde

General principles of liability — Mens rea — Putative private defence — Test B for — If accused person honestly but erroneously believes that her or his conduct in killing another is justified, dolus is excluded — Reason is lack of consciousness of wrongfulness of act and thus fault in form of dolus - Conduct could, depending on circumstances, remain wrongful and unlawful and, in such instances, culpa C would remain.

General principles of liability — Mens rea — Dolus — Latin word 'dolus' not meaning simply 'intention' but meaning 'evil intent' or something analogous thereto — Ordinarily, in cases of unlawful homicide, if there is intention it, inevitably, will be 'evil' — There are rare cases in which it is not. D

General principles of liability — Unlawfulness — Generally — Test for justification, although objective (and even taking into account qualifications, in particular subjective situation in which accused person finds herself or himself), has to be a high one — Accused firing volley of shots at unarmed man who was advancing towards him — Accused afraid for his E life — Objectively viewed, had been necessary for accused to inflict injuries in question in order to protect his life — Accused acting unreasonably in shooting at deceased as he had done — While Court should not adopt 'arm-chair view', objective test measured against standard of reasonable person — Conduct of accused falling short of standard which, in light of prevailing norms, is F expected — Reasonable person would not have fired volley of shots but would have aimed non-fatal shot or shots to bring suspected attackers down and would have aimed with intention to kill only if it became clear that if he had not shot to kill he would probably have been killed himself — Fault in form of culpa not excluded — Accused not entitled to acquittal on basis that he acted in private defence. G

Headnote : Kopnota

Two guests of the appellant had been assaulted by the deceased and one D, shortly after they had left a party being held by the appellant. Concerned for the safety of other guests, the appellant had gone to investigate and had taken his firearm with him. He met the two assailants and asked them if they knew about the incident. The deceased H then advanced towards the appellant, who fired a warning shot. The deceased continued to advance, whereupon the appellant, fearing for his life, fired a volley of shots in the general direction of the deceased and D. The Court a quo rejected the appellant's defence of self-defence and convicted him of murder and attempted murder. In an appeal to a Full Bench, I

Held, that if an accused person honestly but erroneously believed that her or his conduct in killing another was justified, then dolus was excluded. The reason was that there had been a lack of consciousness of the wrongfulness of the act and thus fault in the form of dolus. The conduct could, depending on the circumstances, remain wrongful and unlawful and, in such instances, culpa would therefore remain. (Paragraph [34] at 47a - b.) J

2003 (2) SACR p37

Held, further, that, the legal position could be understood with greater clarity once one accepted that the Latin word A 'dolus' did not mean simply 'intention' but meant 'evil intent' or something analogous thereto. The state of mind relevant to a determination of dolus must, of course, not be confused with motive. Ordinarily, in cases of unlawful homicide, if there was intention it, inevitably, would be 'evil'. There were rare cases, such as the present one, in which it was not. Dolus was therefore excluded in the present case. (Paragraph [35] and [37] at B 47c, 47f and 49c - d.)

Held, further, that the test for justification, although objective (and even taking into account the qualifications, in particular the subjective situation in which an accused person finds herself or himself), had to be a high one. The appellant had shot and killed the deceased and injured D in circumstances where he had been afraid for his life. Objectively viewed, it had not been necessary for C the appellant to have inflicted the injuries in question in order to protect his life. He acted unreasonably in shooting at the deceased and D as he had done. It had to be borne in mind that the deceased had been unarmed and clad only in a pair of shorts. While Court should not adopt an 'arm-chair view', the objective test was measured against a standard. The standard was that of a reasonable person. The conduct of the appellant fell short of the standard which, in the light of D prevailing norms, was expected. A reasonable person in the situation in which the appellant had found himself would not have fired the volley of shots but would have aimed a non-fatal shot or shots to bring his suspected attackers down and would have aimed with an intention to kill only if it had become clear that if he, the appellant, had not shot to kill he would probably have been killed himself. Fault in the form of E culpa was not excluded in the present case. In other words, the appellant was not entitled to an acquittal on the basis that he acted in private defence. (Paragraph [39] at 49h - 50d.) F

Held, accordingly, that the appellant should have been found not guilty of murder and attempted murder, but guilty only of culpable homicide. (Paragraphs [40] and [41] at 50e - f.)

Cases cited

Ex parte Minister of Safety and Security and Others: In re S v Walters2002 (2) SACR 105 (CC) (2002 (4) SA 613): applied

Govender v Minister of Safety and Security2001 (2) SACR 197 (SCA) (2001 (4) SA 273): referred to G

Government of the Republic of South Africa v Basdeo and Another1996 (1) SA 355 (A): compared

Kgaleng v Minister of Safety and Security and Another2001 (4) SA 854 (W): applied

Lim Chin Aik v R[1963] AC 160 (PC): referred to H

Malahe and Others v Minister of Safety and Security and Others1999 (1) SA 528 (SCA): compared

R v Peverett1940 AD 213: referred to

S v De Oliveira1993 (2) SACR 59 (A): applied

S v Goliath1972 (3) SA 1 (A): referred to

S v Hartmann1975 (3) SA 532 (C): referred to

S v Ingram1995 (1) SACR 1 (A): compared I

S v Joshua2003 (1) SACR 1 (SCA) ([2002] 3 B All SA 507): applied

S v Makwanyane and Another1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665): applied

S v Motleleni1976 (1) SA 403 (A): applied

S v Ngomane1979 (3) SA 859 (A): applied J

2003 (2) SACR p38

S v Ngubane1985 (3) SA 677 (A): compared A

S v Ntuli1975 (1) SA 429 (A): referred to

S v R1993 (1) SACR 209 (A) (1993 (1) SA 476): dictum at 221h - 222a (SACR) and 488G - J (SA) applied

S v Sataardien1998 (1) SACR 637 (C): applied

S v Van Aswegen2001 (2) SACR 97 (SCA): applied

S v Van der Meyden1999 (1) SACR 447 (W) (1999 (2) SA 79): applied B

Sherras v De Rutzen[1895] 1 QB 918: referred to.

Case Information

Appeal from convictions and sentence in the Witwatersrand Local Division (Mailula J). The facts appear from the reasons for judgment.

J P Spangenberg for the appellant.

P Nel for the State. C

Cur adv vult.

Postea (September 25).

Judgment

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

2003 (2) SACR p39

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...