Snyders v Louw

• Jurisdiction: South Africa
• Judge: Thring J, Louw J and Steyn AJ
• Judgment Date: 17 October 2008
• Citation: 2009 (2) SACR 463 (C)
• Docket Number: A 636/07 and 9615/03
• Hearing Date: 25 July 2008
• Counsel: R Williams SC (with S Witten) for the appellant.F van Zyl SC for the respondent.
• Court: Cape Provincial Division

Steyn AJ:

[1] This is an appeal with the leave of the Supreme Court of Appeal against a judgment delivered by Davis J in the court a quo, who found I that the respondent was not liable to the appellant in damages for the death of the deceased, who was the husband of the appellant. He dismissed the action, with costs.

[2] The appellant initially applied to the court a quo for leave to appeal against the judgment, but such leave was refused with costs. The J appellant thereafter petitioned for such leave to the President of the

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Supreme Court of Appeal (the SCA). The petition was opposed by the A respondent. The following order was made by the SCA:

'1.

Condonation is granted and the appellant is ordered to pay the costs thereof.

2.

Leave to appeal to the full bench of the CPD is granted.

3.

The costs order of the court a quo in dismissing the application for B leave to appeal is set aside.

4.

The costs of the application for leave to appeal in the SCA and in the court a quo are costs in the appeal.

5.

If appellant does not proceed with the appeal, then she is to pay these costs.' C

Relevant facts

[3] On 25 November 2000, at 44 Amandel Street, Durbanville, the respondent shot and killed the husband of the appellant. The appellant instituted action against the respondent, claiming loss of support and other damages which she had allegedly suffered as a result of the allegedly wrongful killing of her husband. D

[4] The respondent admitted that he had shot the deceased, but pleaded that he was justified in doing so, as he had acted in self-defence.

[5] At the trial in the court a quo it was agreed that the issue of liability be separated from the other issues in terms of rule 33(4) of the Uniform E Rules of Court.

[6] The only direct evidence that was tendered as to what had taken place outside the house of the respondent that evening, culminating in shots being fired at the deceased, was the evidence of the respondent, his wife and a Mrs Burger. The question as to whether the respondent had F proved on a balance of probabilities that he had acted in self-defence, had to be decided on the facts as testified to by these witnesses.

[7] The facts before the court a quo can briefly be summarised as follows:

7.1

The respondent became aware of the presence of the deceased on his property when his daughter alerted him of this. He met the G deceased at the front door and asked him to leave his property. The deceased swore at him in Afrikaans. The respondent then closed his front door and returned to his visitors and family in the family room of his house. During this interaction with the deceased, the respondent noticed that the deceased looked H unkempt and 'a bit rough'. The deceased was also incoherent and the respondent could not make out what he was saying.

7.2

The respondent later accompanied his daughter and her friend to her car and at that stage he saw the deceased sitting at the bird-bath in his front garden. He again requested that the I deceased leave the property and informed him that he was going to call the police, which he did at 18h45.

7.3

After his call to the police the respondent, through the kitchen window, observed the deceased walking towards the driveway of his house, where three vehicles were parked. He opened the window and saw the deceased trying to open the front passenger J

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A door of his wife's car, a blue Toyota Tazz. He shouted at the deceased to leave the car, but the deceased ignored him. The respondent then ran out and tried to push the deceased, who was at that stage fiddling with the car's lock, away from his wife's car. The respondent was unable to achieve this and went to call his B visitor, Mr Burger, to assist him. The respondent's evidence was that the deceased was a powerful man, hence his failure to push him away from the vehicle.

7.4

Despite the assistance of Mr Burger they could not push the deceased away from the car. Instead, it was the deceased who pushed them away. As the respondent was concerned that the C deceased might damage his wife's car, he decided to fetch his firearm, a 7,65 mm pistol, to frighten the deceased off. Whilst the respondent was fetching his firearm, Mr Burger was hit on the nose by the deceased, causing a wound which bled. Mr Burger then left the deceased at the car to attend to the wound D in the house. This assault on Mr Burger prompted Mrs Louw, the respondent's wife, also to make a telephone call to the police. This occurred at 18h49.

7.5

When the respondent emerged from the house with his pistol, the deceased was still at his wife's car. In an attempt to frighten off the deceased, the respondent fired a warning shot into the lawn, but E this had no effect on the deceased. The respondent then approached the deceased and eventually succeeded in driving him away from the car and off his property with the firearm.

7.6

At that stage Mr Burger came out of the house holding a paper cloth to his face, and with his T-shirt full of blood. He reported to F the respondent that the deceased was responsible for his condition.

7.7

The deceased, whilst walking away in Amandel Street, then fell flat on his face. The respondent considered that the deceased might have been under the influence of alcohol, but said that he had not smelt alcohol on him when they were in close contact. G He therefore concluded that the deceased might be under the influence of drugs. (The postmortem report also noted that the deceased's stomach contents had 'geen duidelike drankreuk'.)

7.8

When the deceased stood up from where he had fallen in the street, he returned towards Mr Burger and the respondent, who were standing on the lawn in front of the house, 'with meaning' H and 'quite fast'. The respondent shouted at the deceased to get off his property, but to no avail. On reaching Mr Burger and the respondent, the deceased tried to grapple with them, but the respondent succeeded in avoiding the deceased. He thereupon grappled with Mr Burger. Mrs Burger testified that the deceased I grabbed her husband round his neck, and they fell to the ground. In an attempt to assist Mr Burger and to prevent the deceased from inflicting further injuries on him, the respondent hit the deceased twice on the head with the butt of his pistol. This resulted in the deceased lashing out at the respondent and inflicting a straight, deep cut to the respondent's right index J finger. At the time the respondent thought that the cut, which

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later required five stitches, had been inflicted with a knife. By A that time Mr Burger had taken hold of the deceased's rugby top and the deceased had fallen to his knees. The respondent kicked him in the stomach, hoping to wind him. The deceased was down for a few moments, whereupon he got up, turned his back on Mr Burger and the respondent and started walking towards a B rose bed on the birdbath side of the house (rose bed 1).

7.9

The deceased then turned round and 'started to come again', this time for the respondent. The respondent shouted at him a number of times to stop, otherwise he would shoot. These warnings were ignored by the deceased. As the deceased got to C the respondent, he succeeded in avoiding the deceased and ran in the direction from which the deceased had come, in an attempt to get away from him.

7.10

The respondent then moved to the road side of the rose bed nearest to the driveway (rose bed 2). The deceased, who was on D the lawn in front of the house (point X1) then again came towards the respondent with 'big paces'. The respondent again shouted at him to stop or he would shoot, but the deceased kept on coming. During this process the deceased pulled his hand out of his back pocket and raised his hand above his shoulder. The respondent says that he observed something shiny in the E deceased's hand, which he thought might be a knife. According to him the deceased was coming at him in a 'combat position'. The respondent kept on shouting at the deceased that he should stop or he would shoot him. When the respondent observed the 'knife' he drew his pistol from his pocket, and as the deceased F stepped into the rose bed (rose bed 2), approximately two paces away from the respondent, with his hand still holding the shiny object aloft, and not responding to the respondent's warnings that he would shoot, the respondent fired a shot at the deceased. He aimed the shot low and thought that he had wounded the G deceased. The deceased, however, kept on coming towards him, which led the respondent to fire two further shots in quick succession at the deceased, who then fell to the ground at the respondent's feet.

7.11

It later transpired that the deceased had had nothing but a bunch H of keys in his left hand.

7.12

It also transpired that the deceased must have been fairly heavily under the influence of alcohol, as his blood-alcohol content was found to be 0,3 grams of alcohol per 100 ml of blood.

7.13

The deceased died as a result of a gunshot wound to the left side I of the chest, which penetrated his heart.

7.14

The respondent testified that when he fired the shots at the deceased, he thought that his life was in danger, and that the deceased was out 'to get me'. He said that if he had not fired the shots, he thought that the deceased 'would have injured me badly, if not killed me'. J

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The judgment of the court a quo, and the appellant's grounds of appeal

[8] On A behalf of the appellant, it was submitted that Davis J had erred and misdirected himself in...