S v Horn (Leave to Appeal)

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Le Grange ADJP
• Judgment Date: 05 September 2023
• Citation: 2023 JDR 3226 (WCC)
• Hearing Date: 05 September 2023
• Docket Number: A51/2023

Le Grange ADJP:

Introduction:

[1]

This is an appeal against conviction with leave of the Supreme Court of Appeal. The Appellant was convicted on 18 November 2021 by the court a quo, on two counts of murder, and sentenced to a term of ten years imprisonment on the first count and on the second count to a term of seven years imprisonment. The sentences were ordered to run concurrently.

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Grounds of Appeal:

[2]

At the heart of this appeal is whether the appellant acted in self-defence, alternatively putative self-defence, when he fired two shots at the deceased in count 1, of which one, also hit and fatally wounded the deceased in count 2. According to the appellant, the court a quo, erred in not accepting his evidence as reasonably possibly true that the deceased in count 1 had a firearm in his hand which was pointed at him when he was shot. The appellant contended that the eye witnesses who testified to the contrary on that point were unreliable and untrustworthy. According to the appellant their version of events was materially contradicted by an audio recording of the incident.

Factual matrix:

[3]

The factual matrix underpinning the convictions can be summarised as follows: The appellant was employed by the City of Cape Town as a law enforcement officer at the time of the incident. His partner, Officer Lubabalo Blom, (“Blom”) was on duty with him in the central business district of the City. It is common cause the Appellant fired two shots with his service pistol at the deceased in count 1, Constable Thandimfundo Sigcu (“Sigcu”) which killed both Sigcu and the deceased in count 2, Bongani Jack (“Jack”) also known as Tyson.

[4]

It is not in dispute that Sigcu was a policeman doing under-cover work. On the night of the incident he was dressed in civilian clothes and in the process of arresting Jack for allegedly dealing in drugs, when the appellant fired the two shots that fatally wounded him and Jack.

[5]

The appellant pleaded not guilty to both counts of murder and filed a plea explanation in terms of section 115 of the Criminal Procedure Act [1] , wherein he set out in

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detail the basis of his defence. The following facts were inter alia recorded in paragraphs 4 - 7.

“4.

I aver:

4.1

That on 7 January 2020, I was on duty together with my partner, Officer Lababalo Blom (“Officer Blom”). We were in full uniform and using an Isuzu bakkie.

4.2

I was in possession of an official law enforcement 9 mm Glock 19, semi-automatic pistol with 15 rounds in the magazine and an extra magazine also containing 15 rounds of ammunition. Officer Blom was unarmed.

4.3

Officer Blom and I were returning to Cape Town from Manenberg police station where we had attended to a call for assistance. We were on our way to City Hall to book in the firearm and ammunition in my possession, as we would go off duty at 22h00 when our shift ended.

4.4

While driving in Strand Street, Inspector Fortuin of the Rail Enforcement Unit radioed for assistance with a robbery which was taking place in Hertzog Boulevard. We responded to her call and made our way to that scene. Several other law enforcement officers also responded to the call. By the time we arrived at the scene, the suspect had been apprehended and the stolen property returned to the victim.

4.5

Officer Blom and I then left the scene and proceeded towards the armoury at City Hall in Darling Street to book in the firearm and ammunition.

4.6

Whilst driving into Adderley Street, Officer Blom informed me that he had seen a male person assaulting another male person and that there were a few other male persons, whom we thought were street people, watching the

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incident take place. I made a u-turn further down Adderley Street and parked on the corner of Old Marine Drive and Adderley Street. There was, however, no one at the scene where Officer Blom had seen the assault taking place. We nevertheless alighted from our vehicle and were approached by a man in his late thirties. He told us that “they went that way” and pointed east down Heerengracht Street. He also informed us that the one person had a firearm.

4.7

I immediately handed my radio to Officer Blom to radio for assistance. Officer Blom informed our control room that we were in pursuit of an armed suspect, that we required backup and he informed the control room of our location.

4.8

We returned to our vehicle and drove in the direction indicated to us by the man.

4.9

As we drove, I saw two male persons on the sidewalk on the corner of Heerengracht Street and Hertzog Boulevard outside the Standard Bank building. The one man, whom I now know was Sigcu, was assaulting the other man whom I now know was Jack.

4.10

Officer Blom and I exited our vehicle and ran towards the two persons. My intention was to stop the assault.

4.11

As we approached the two persons, Officer Blom shouted at Sigcu to put his hands in the air. Sigcu stopped the assault and began to draw a pistol from his left hip. Officer Blom immediately shouted at Sigcu to put the firearm down. I also shouted at him to put the firearm down. He did not adhere to the warnings and pointed the firearm directly at us. I believed that he was on the point to shoot us and fired two shots at him.

4.12

Sigcu fell to the ground. He still had the firearm in his left hand and I ran towards him and kicked the firearm out of his hand.

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4.13

Sigcu was dressed in plain clothes and we had no idea that he was a police officer.

4.14

I aver that I fired the two shots at Sigcu in self-defence. There was no doubt in my mind when he pointed the firearm at Officer Blom and myself that our lives were in danger.

5.

I submit that there was no other means for me to avoid the danger but to shoot the assaulter. I consequently submit that I did not act unlawfully.

6.

With regard to the gunshot suffered by Jack, I submit that I did not have the intention to shoot Jack, I fired the two shots at Sigcu. My attention was fixed on the assaulter and the firearm in his hand.

7.

Should it be found that, objectively viewed, I did not act in self-defence and thus unlawfully, I respectfully submit that I was at all times relevant hereto under the firm impression that I was allowed to shoot Sigcu in self-defence and that I accordingly lack mens rea in the form of...