S v Heslop

• Jurisdiction: South Africa
• Judge: Zulman JA, Cloete JA and Mlambo JA
• Judgment Date: 30 November 2006
• Citation: 2007 (4) SA 38 (SCA)
• Docket Number: 216/2005
• Hearing Date: 23 November 2006
• Counsel: M F Miller for the appellant. T Seboko (with D D Dakana) for the State.
• Court: Supreme Court of Appeal

Cloete JA:

[1] The appellant was charged with three counts of murder G and convicted on 13 August 1996 of three counts of culpable homicide by Mailula J and assessors in the Johannesburg High Court. He was sentenced on 5 November 1996 to an effective term of imprisonment of six years. On the same day that sentence was imposed, leave to appeal was sought and granted without opposition from the State. H

[2] A disquieting feature of the case is that it took nearly ten years for the record to arrive at this Court. On 20 March 2006 the matter was struck off the roll because the Johannesburg Justice Centre had been unable to obtain a power of attorney from the appellant. The representative of the State informed the Court that it is the sole responsibility of the Registrar of the Court a quo to transmit the record to the Registrar of this Court. I Accordingly, this Court in a letter dated 22 March 2006 sent by its Registrar requested an explanation from the registrar of the Johannesburg High Court for the delay. That was more than eight months ago. Despite several reminders, this Court's request has simply been ignored. That is unacceptable. The matter has been taken up in a letter sent by J

Cloete JA

A the President of this Court to the Minister of Justice, who has advised that she views the content of the letter in a serious light and has directed the Director-General to conduct the necessary investigation. Fortunately, the appellant has been on bail pending the decision of the appeal. It is necessary to reiterate what was said in S v Senatsi and Another: [1]

B 'In the appeal before us Mr Van der Vijver for the State assured us that steps have now been taken in the DPP's office to ensure that appeals, especially those lodged by unrepresented accused, are not lost in the system. One can imagine the prejudice that would have occurred if the appeal by the two appellants had been upheld or sentences of less than the period they have already served had been imposed. The office of the DPP is urged to ensure that D such delays do not occur in the future. Such delays deny justice to the persons concerned by preventing a speedy disposal of their cases. Sadly, this is not the first time this has occurred. In S v Joshua this Court had to deal with a case in which there was a delay of some six years before the appeal was heard. Fortunately, the accused was out on bail in that case. Not so in the present matter. Such delays are to be avoided at all costs.'

E We would suggest that the DPP of the Johannesburg High Court - and, indeed, the DPPs of all High Courts - put in place similar safeguards, if this has not already been done; and to this end the registrar is requested to forward a copy of this judgment to the NDPP and all DPPs, drawing this paragraph to their attention.

[3] The appellant was traced and on 24 May 2006 furnished the Johannesburg Justice Centre with a power of attorney to prosecute his appeal. The appeal was reinstated following an application in terms of SCA Rule 11. This Court is grateful for the assistance of the Johannesburg Justice Centre, and, in particular, Mr Miller, in the prosecution of F the appeal.

[4] It was common cause at the trial that on 20 May 1995 the appellant shot and fatally wounded Mr Mark van der Westhuizen (deceased 1), Mr Richard van der Westhuizen (deceased 2) and Mr Keith Davis (deceased 3). The shootings took place outside Steers Fast Foods in G Pretoria Street, Hillbrow. Pretoria Street runs from west to east. Banket Street runs from south to north and intersects with Pretoria Street. Steers is situated on the south side of Pretoria Street at that intersection. The appellant's case was that he had acted in private defence. Four witnesses were called on behalf of the State and the appellant testified on H his own behalf.

[5] The principal witness for the State was the 20-year-old son of deceased 3, Mr Darryl Lee Davis. He said that when he rounded the corner of Pretoria Street at its junction with Banket Street he saw the appellant, who had a pistol in his hand, struggling with deceased 1 I outside Steers. Deceased 2 and deceased 3 were standing nearby. Deceased 2 ran to assist his brother, deceased 1. The appellant then shot deceased 2, deceased 1 and deceased 3, in that order, and they all fell to the ground. While on the ground deceased 3 shot at the appellant,

Cloete JA

who ran away backwards in an easterly direction along Pretoria Street, A firing indiscriminately. The witness was adamant that the appellant was not injured in front of Steers or while he was running away. According to the witness, none of the deceased had drawn their firearms when the shooting started and, although deceased 1 managed to draw his firearm after he was shot, he did not fire it. Deceased 2's firearm remained in its B holster. Later the witness went to a café in Abel Road, a few blocks east of where the incident took place, where the appellant, who (the witness confirmed) had been injured, was arrested by the police.

[6] Mr John Arthur Gray also testified on behalf of the State. He was in Banket Street, to the south of the Pretoria Street intersection, when he C heard gunshots. Darryl Davis then came running around the corner shouting that his father (deceased 3) had been shot. The witness ran around the corner and saw the three deceased lying on the ground, and the appellant running backwards and shooting wildly. He ran after the appellant and fired four or five shots at him, but did not hit him. On his D return to the scene he said that deceased 1's firearm was out of its holster, but no shot had been fired from it; and deceased 2's firearm was still holstered. He took possession of deceased 1's firearm and thereafter handed it to one of the police at the scene. Later he went to the café in Abel Road where the appellant was arrested. E

[7] It is not necessary at this stage to deal with the evidence of the two policemen, Inspector Parker and the investigating officer, who also testified on behalf of the State.

[8] The appellant said that he was walking in front of Steers Fast F Foods when Darryl Davis pointed him out to deceased 1 and 2. Deceased 1 then took hold of his shoulders and tried to head-butt him. The appellant moved backwards and deceased 1 drew his firearm. The appellant turned sideways and deceased 1 shot him in the left abdomen. The appellant then drew his firearm and shot deceased 1. Deceased 3, G who was then standing close by, and deceased 2 thereupon also drew firearms and shot at the appellant. He fired at deceased 2, who fell down, and at deceased 3, who was standing and still firing at him. The appellant was hit all over his body and legs; apart from the wound I have mentioned, he was shot on his left hip, twice through his right thigh, on his right elbow and through the calf of his leg. I pause to emphasise that H the appellant's evidence as to the number and location of all of the six gunshot wounds sustained by him was not challenged by the State. According to the appellant, he fell down after he had been shot and he was thereafter assisted from the scene by Mr Francis Adams (who was on the list of State witnesses, but not called by either side). He saw Gray I and two other persons, who were then about 100 metres away, shooting at him. Later the same night at the café in Abel Road where he was arrested and after the flying squad had arrived, Darryl Davis and Gray pointed firearms at his head and threatened to shoot him.

[9] The judgment of the Court a quo concludes as follows: J

Cloete JA

A ...