S v Janki

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mossop AJ (Sibiya J concurring)
• Judgment Date: 19 August 2021
• Docket Number: AR 65/2020
• Hearing Date: 06 August 2021
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Citation: 2021 JDR 2267 (KZP)

Mossop AJ (Sibiya J concurring):

[1]

When he stood trial in the regional court sitting at Estcourt, KwaZulu-Natal, the appellant was charged with one count of attempted murder, it being alleged by the State that he had shot Mr Thembelakhe Nyoka (the complainant) with a firearm. The appellant pleaded not guilty when he was called upon to plead and disclosed his defence in writing in terms of the provisions of section 115 of Criminal Procedure Act 51 of 1977. In essence, his plea was that he had acted in defence of himself, believing that he was at immediate risk of being physically assaulted by the

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complainant. [1] What was pleaded was that the complainant had advanced towards the appellant to assault him with an iron rod. The appellant drew his firearm and fired a shot into the air. When that did not stop the complainant advancing towards him, the appellant fired a shot towards the legs of the advancing complainant.

[2]

The appellant, however, was ultimately not convicted of attempted murder. On 30 August 2019, he was convicted of assault with the intent to do grievous bodily harm and was sentenced to three years' imprisonment, wholly suspended for a period of five years on condition that he was not convicted during the period of suspension of any offence involving violence in respect of which a term of direct imprisonment was imposed. The appellant was also declared unfit to possess a firearm in terms of section 103(1) of the Firearms Control Act 60 of 2000 (the Act).

[3]

Dissatisfied with his conviction and his subsequent disqualification from possessing a firearm, but otherwise content with his sentence, the appellant sought leave to appeal from the court a quo. He was granted such leave. This appeal accordingly only deals with whether the appellant was correctly convicted in the court below and whether he ought to have been disqualified from further possessing a firearm.

[4]

The conviction of the appellant was based upon the evidence of two witnesses called by the State, one of whom was the complainant. At the conclusion of the defence's case, the court also called the oral evidence of a medical doctor (the doctor) who attended to the complainant after he had been shot. The doctor's evidence was called to clarify aspects of the medical examination form, commonly known as a 'J88', that he had completed while examining the complainant. In his defence, the appellant testified, and after successfully applying to reopen his case, called two expert witnesses, largely to counter the oral evidence of the doctor called by the court.

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Representation:

[5]

Before us, the appellant was represented by Mr Moodley SC and the respondent was represented by Ms Sokhela. They are both sincerely thanked for their submissions and their assistance.

Private defence:

[6]

While the defence indicated that the appellant allegedly acted in defence of himself, the more correct classification of his defence is that of private defence. [2] The requirements for private defence are well-settled. The attack upon the person acting in private defence must be unlawful, must be directed at an interest which legally deserves to be protected and must be imminent but not yet completed. [3] As regards the defence, it must be directed at the attacker, it must be necessary in order to protect the interest threatened, there must be a reasonable relationship between the attack and the defensive act, and the person attacked must be aware of the fact that he is acting in private defence. [4]

[7]

The test for assessing private defence is an objective one and is to be considered as against the conduct of a reasonable person. [5] The question whether an accused person claiming to have acted in private defence can successfully maintain that defence, is determined by objectively examining the nature of the attack and defence to determine whether they conform with the principles of law set out above. In doing so, each aspect and requirement of the attack and the defence must be judged from an external perspective rather than in terms of the accused's perceptions and his assessment of the position at the time that he resorted to private defence. Whether an attack is to be regarded as imminent is decided by the court's assessment of the evidence of the circumstances of the attack and not according to

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the accused's belief that he was in imminent danger of being attacked. However, as was said in S v Ntuli: [6]

'In applying these formulations to the flesh-and-blood facts, the Court adopts a robust approach, not seeking to measure with nice intellectual callipers the precise bounds of legitimate self-defence or the foreseeability or foresight of resultant death.'

[8]

In other words, the court must guard against becoming an arm-chair critic. In R v Patel, [7] Holmes AJA re-affirmed that the court should recognise that decisions in the real world are often made in split seconds:

'"Men faced in moments of crisis with a choice of alternatives are not to be judged as if they had had both time and opportunity to weigh the pro and cons. Allowance must be made for the circumstance of their position." ' [8]

The complainant's version

[9]

The complainant was employed by JES Towing in Estcourt in this province. He testified that during 2017, the appellant's brother, Mr Shenile Janki (Shenile), had come to his workplace and had taken and removed what was described by the complainant as 'a canvas'. It appears that what was being referred to was a tarpaulin. Shenile allegedly never returned it. During January 2018, the complainant's employer, one Shevan (Shevan), asked the complainant where the tarpaulin was. He was told by the complainant that Shenile had taken it and had never returned it.

[10]

On the morning of 22 January 2018, the complainant was at work having just finished the night shift and was preparing to knock off. The appellant's brother, Shenile, arrived at the complainant's workplace in the company of his father and another person identified as 'Ashwin' (Ashwin). The complainant's employer requested the complainant to repeat to Shenile what he had said had happened to the tarpaulin. The complainant obliged, and an argument then broke out with Shenile, denying that he had taken the tarpaulin. As the argument intensified,

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Shenile produced a firearm and pointed it at the complainant and Ashwin then slapped the complainant in the face. The complainant's employer interceded and instructed the complainant to withdraw into the workshop, which he did, and the situation was thus temporarily diffused.

[11]

However, ten minutes later, the appellant appeared at the complainant's workplace. Having shouted for the complainant, who was within the premises, the appellant entered and tried to assault him with an open hand and then also produced a firearm. He fired a shot close to the head of the complainant and then shot him in both legs. The complainant was certain that the wounds occasioned to both his legs were caused by a single shot fired by the appellant. Having shot the complainant, the appellant offered him no assistance and left the scene. The complainant was attended to by two of his colleagues and was taken to the Estcourt Hospital for treatment and was later transferred to the Ladysmith Hospital for further treatment. According to the complainant, he was hospitalised for four months as a consequence of being shot.

The appellant's version

[12]

The appellant asserts that he went to the complainant's workplace after the argument involving Shenile, his father and Ashwin. He was accompanied by one Ashok, with whom he was then conducting some business. He was also joined by his brother and Ashwin. On arrival, the complainant's employer was on the telephone but said that the appellant should go through to the workshop and speak to the complainant. The appellant went into the workshop area and shouted the complainant's name and when he heard this, the complainant armed himself with 'a strong iron pipe'. More about the object later in this judgment. The complainant began walking towards the appellant. The appellant asked him what he was going to do with the pipe that he held but received no response from the complainant. The appellant perceived himself to be under threat and fired a warning shot over the head of the complainant. The discharge of the warning shot by the appellant did not dissuade the complainant from continuing to advance towards him and the appellant then felt compelled to fire a single shot at the complainant which he aimed at the

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complainant's legs. Having shot the complainant, he admitted not rendering any assistance to him and, instead, he left the scene, got into his motor vehicle and drove in the direction of Pietermaritzburg, apparently to consult with his attorney over what had just occurred. He reported the matter to the police the next day.

Common cause:

[13]

Given that the defence of the appellant was private defence, it follows that much of the evidence led at trial was common cause. The shooting was obviously admitted, as were some of the surrounding circumstances. It was not in dispute that there had been a prior argument between the appellant's brother, father and Ashwin and the complainant. The complainant's and the appellant's description of the wounds were common cause, and both agreed that a single shot had caused all the injuries that the complainant sustained to his legs. They were also agreed that the trajectory of the bullet was from the outside of the complainant's upper left thigh, proceeding at a downward angle through his left leg, out the inside of his left leg, entering the inside of his...