S v Du Preez

• Jurisdiction: South Africa
• Judge: Ogilvie Thompson CJ, Wessels JA and Trollip JA
• Judgment Date: 07 September 1972
• Citation: 1972 (4) SA 584 (A)
• Hearing Date: 28 August 1972
• Court: Appellate Division

B Ogilvie Thompson, C.J.:

Appellant was convicted in the Natal Provincial Division of murder and, extenuating circumstances being found to have been present, he was sentenced to seven years' imprisonment. Upon leave C granted by the trial Judge (SHEARER, J.), he now appeals against both the conviction and the sentence.

It is common cause that on the afternoon of 25th December, 1971 Agrippa Zondi, a Zulu male hereinafter referred to as the deceased, died almost instantaneously on District Road 76, in the Umvoti district, as a result of a head wound caused by a bullet from a pistol fired by appellant. It D is also common cause that at all times material to this case the deceased was in the company of his cousin Welcome Zondi, also a Zulu male and to whom I shall hereinafter refer by his first name.

At the locus in quo District Road 76 runs, with a slight up-gradient, in an approximately north-easterly direction as one proceeds along it E towards Greytown from Rietvlei. Sometime prior to December, 1971 appellant had, apparently pursuant to a contract to purchase by instalments, paid a deposit on a piece of land abutting the aforementioned road on its northern side and separated therefrom by a wire fence in which there is a gate. During the forenoon of 25th December, 1971, appellant, accompanied by his wife and young son aged approximately five years, commenced to picnic at a shady spot on the F aforementioned land and relatively close to the road. The exact distance between the picnic spot and the nearest (i.e. northern) edge of the road is not given in the record, but it would appear to have been no more than some 10 to 12 yards. Appellant's truck was parked at the picnic spot, and in the truck he had both a shotgun and a loaded pistol. G The latter had ten bullets in its magazine and one in the barrel. Before commencing their picnic luncheon at about noon, appellant and his wife together partook of brandy and soda, and again after finishing their meal. At the trial appellant said he thought he had had four drinks altogether; his wife's evidence was that he 'most probably had about five drinks'. According to their evidence, only half a bottle of H brandy had been brought to the picnic spot; and neither the defence nor the State suggests that appellant had, in all, consumed more than approximately a quarter of a bottle of brandy on the day in question prior to the fatal shooting.

After the meal was over and all the brandy had been consumed, appellant - according to the defence evidence - fell asleep; his wife apparently merely dozed off for a short while only. It is common cause that during the afternoon, somewhere around 4 p.m. (the exact time was not fixed

Ogilvie Thompson CJ

with any precision at the trial) the deceased and Welcome walked up the road (i.e., towards Greytown), proceeded a short distance past the picnic spot and then started to come back down the road again. It is A further common cause that, after appellant had commenced firing in their direction as hereinafter detailed, the deceased received the fatal head wound before he and Welcome had yet passed the picnic spot on their return journey.

Welcome was the main State witness at the trial. His evidence was largely supported by that of Trephina Gwala, a young Zulu female who B was admittedly in the near vicinity when the shooting occurred. The version to which they deposed regarding the events which culminated in the fatal shot differed in certain material respects from that testified to by appellant and his wife, who were the only defence witnesses as to the occurrences in situ. The trial Court, although remarking that appellant

C 'could certainly not be described as a completely satisfactory witness',

and that it felt unable to conclude that appellant's wife had in her evidence given

'a completely accurate and uncoloured account of what took place',

nevertheless took the view that,

'in so far as the physical actions of the parties are concerned and what D was said',

the defence version might reasonably be true, and adjudicated upon that basis. In this Court, counsel for the State was content to approach the case and support the conviction and sentence on the same basis. E Accordingly, what follows is - save where otherwise stated - a summary of the defence version.

Appellant was awakened from his sleep by his wife, who made a report to him to the effect that two Bantu men (subsequently identified as deceased and Welcome) who were walking up the road had, when passing by, behaved in an insulting manner towards her; that she had exhibited the F shotgun 'to scare them off', but that they had merely laughed at her; and that they had now turned round, apparently believing her to be alone. According to appellant's wife's testimony at the trial, these two men had, when walking by along the road, leered at her, rubbed themselves in the area of their genitalia, and one of them had loosened his fly buttons. She fetched the gun from the front of the truck 'just G to show them that she was not frightened of them'. She stood, she said, holding the shotgun by the barrel with the butt on the ground; but this merely caused the two men to laugh at her. When the men turned round and started to walk back along the road, she wakened...