S v Malik

• Jurisdiction: South Africa
• Citation: 1987 (2) SA 813 (A)

S v Malik
1987 (2) SA 813 (A)

1987 (2) SA p813

Citation	1987 (2) SA 813 (A)
Court	Appellate Division
Judge	Rabie ACJ, Vivier JA and M T Steyn AJA
Heard	March 19, 1987
Judgment	March 31, 1987

Flynote : Sleutelwoorde

Criminal law — Culpable homicide — What constitutes — Accused, seeking to escape from deceased pursuing him with a view to robbing him, removing loaded and cocked pistol from holster — Pistol 'accidentally' firing and killing deceased — Accused competent in the handling of firearms — Court H holding that the handling of the firearm in such circumstances was very dangerous and that accused was negligent in not ensuring that he did not touch the trigger so that the pistol went off — Accused held to be guilty of culpable homicide but that his negligence was not of a very serious nature.

Headnote : Kopnota

The accused had been convicted in a Local Division of murder I with extenuating circumstances arising out of the death of the deceased who had been shot by the accused. In an appeal, it was held that on the facts the State had not proved any intention to kill on the part of the accused. In regard to the question of whether the accused was guilty of culpable homicide, the Court found that the accused, who was competent in the handling of firearms, had been negligent. It appeared that the accused had been attempting to escape from the deceased who was J pursuing the

1987 (2) SA p814

A accused, probably with a view to robbing him. Whilst so attempting to escape from the deceased, the accused removed his loaded and cocked pistol from his holster (the pistol having always been kept loaded and cocked in the holster). The pistol 'accidentally' went off without the accused intending to fire it.

Held, that a reasonable person in the position of the accused would have realised, even in the stressful situation he was in, B that handling a loaded and cocked firearm in such circumstances was very dangerous and that great care should be taken not to touch the trigger lest the pistol went off and injured or killed somebody.

Held, further, that the appellant had not exercised that degree of care and his failure to do so was culpable.

Held, accordingly, that the accused was guilty of culpable homicide but that, in the circumstances under which the shot was fired, his negligence was not of a very serious nature. C

Case Information

Appeal from a conviction and sentence in the Witwatersrand Local Division (McCreath J). The facts appear from the judgment of M T Steyn AJA.

Miss G A Borchers for the appellant referred to the following D authorities: Mapota v Santam Versekeringsmaatskappy Bpk1977 (4) SA 515 (A); S v Serobe and Another1968 (4) SA 420 (A) at 428; S v Mfusi1974 (1) SA 450 (N) at 455; R v Nyede1951 (3) SA 151 (T); S v Singh1975 (1) SA 227 (N) at 228; S v Guess1976 (4) SA 715 (A) at 718; S v Oosthuizen1982 (3) SA 571 (T); Goodrich v Goodrich1946 AD 390 at 396; R v Mlambo1957 (4) SA 727 (A) at 738; S v Steynberg1983 (3) SA 140 (A); S v Ntuli E 1975 (1) SA 429 (A); S v Ngomane1979 (3) SA 859 (A); S v Ntanzi1981 (4) SA 477 (N); S v Ngubane1985 (3) SA 677 (A); R v Mzwakala1957 (4) SA 273 (A); S v Matoma1981 (3) SA 838 (A); S v Gool1972 (1) SA 455 (N) at 458; S v Dlodlo1966 (2) SA 401 (A) and S v Roux1975 (3) SA 190 (A).

C B Ferreira for the State referred to the following F authorities: R v Dhlumayo and Another1948 (2) SA 677 (A) at 705 - 6; S v Hassim1973 (3) SA 443 (A) at 454F, 455G - 456C; R v Mlambo1957 (4) SA 727 (A) at 738A; S v Rama1966 (2) SA 395 (A); Mapota v Santam Versekeringsmaatskappy Bpk1977 (4) SA 515 (A) at 527H; S v Serobe and Another1968 (4) SA 420 (A) at 428C; R v Nyede1951 (3) SA 151 (T) at 152B - D; S v Dolo 1975 (1) SA 641 (Tk) G ; R v Wellers 1918 TPD 234 at 238; S v Steynberg1983 (3) SA 140 (A) at 148C - E; S v Shenker and Another1976 (3) SA 57 (A) at 61C - D; S v Maepa1974 (1) SA 659 (A) at 666; S v M1976 (3) SA 644 (A) at 648H; S v Mazibuko en Andere1978 (4) SA 563 (A) at 570A; S v Pillay1977 (4) SA 531 (A) at 534 - 535; S v Runds1978 (4) SA 304 (A) at 312G; the Criminal Procedure Act 51 of 1977 ss 190 and 322(1)(b).

H Borchers in reply.

Cur adv vult.

Postea (March 31).

Judgment

M T Steyn AJA:

On 22 April 1985 appellant was arraigned before McCreath J and two assessors in the Witwatersrand Local Division on a charge of having murdered Samson Pule Mabote (the deceased) at Krugersdorp on 3 May 1984. He pleaded not guilty but was nevertheless convicted of murder with extenuating circumstances and sentenced to nine years' imprisonment. Leave J was given him by the trial Judge to appeal to this Court against his conviction and sentence.

1987 (2) SA p815

M T Steyn AJA

The facts which were either common cause or undisputed were set A out as follows in the judgment of the Court a quo :

'It is common cause that the deceased was in fact shot through the head, the bullet entering the head on the right hand side, and leaving the head from the left hand side. It is also common cause that the accused was the person who was responsible for firing that shot at the deceased and that the shooting was B effected by means of a 9mm Parabellum pistol, a firearm which requires a trigger pressure of some 4 kg or 9 lbs tension in order to enable the weapon to be fired.

It is common cause that it is this wound which caused the death of the deceased. It is also not in dispute that the premises where the shooting occurred is a restaurant and, as indicated by the defence in the explanation of the accused's plea, a restaurant owned by the accused and situated on the first floor above certain shop premises. At street level there is a clothing shop, also the property of the accused, the entrance C whereof faces onto the street. A few paces therefrom is a stairway, leading down from the restaurant on the first floor to the street. In close vicinity to the clothes shop there is a butchery.

It is also common cause that the entrance to the clothing shop is by means of a door which, according to the accused - and that evidence is unchallenged - is...