IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO.25/2000
In
the matter between:
SIPATJI
MANDLA MOTSA APPELLANT
VS
THE
KING RESPONDENT
CORAM :
Leon
J.P.
:
Steyn J.A.
:
Beck J.A.
For
the Crown : Mr Ngarua
For
the Appellant : Mr Simelane
JUDGMENT
Beck
J.A.
The
appellant was convicted of murder and was sentenced to 7 years
imprisonment. The sentence was backdated to 26th August 1998, that
being the date on which the appellant was arrested and from which
time he was kept in custody awaiting trial.
There
were no eyewitnesses to the killing of the deceased, a man by the
name of Ali Mohammed. The culpability of the appellant can only be
judged on the basis of the evidence that he himself gave of how and
why he fined the shot that killed Ali Mohammed. The gist of the
appellant's evidence is as follows:
2
The
appellant occupies a room at a place called Fairview. It appears to
be the end room in a row of rooms each of which is occupied by a
different owner or tenant. The room two doors away from the
appellant's room was occupied by a woman by the name of Happy
Bennett, whom the appellant knew to have a Mozambican boy friend.
On
the night of 21/22 August 1998 the appellant was elsewhere. On
returning to his room on the morning of 22nd August he found that it
had been burgled during the night and a great deal of bis property
had been stolen. He immediately reported the burglary to the police.
Two days later the police informed him that a man named Kaitaine had
been arrested and that they were looking for two other suspects. The
next evening, 25 August, a number of armed policemen arrived at the
rooms at Fairview in search of a man named Armando Ntunzini, whom
they found and arrested in Happy Bennett's room, he being the
Mozambican friend of hers that I have mentioned above. The appellant
says that when the police found and arrested Armando Ntunzini they
told the appellant that one Ali Mohammed was also wanted by them.
It
must be said that none of the five policemen who went to Fairview to
arrest Ntunzini, and who gave evidence for the Crown, recalled
telling the appellant anything about Ali Mohammed. However it is not
without significance that the police witnesses did confirm that Ali
Mohammed was a wanted man. Constable Dlamini testified that the
police wished to interview Mohammed regarding cases involving
firearms; Detective Constable Sibandze testified that he knew
Mohammed to be a receiver and seller of stolen goods and that he was
wanted by the police in connection with breaking and theft cases;
Detective Constable Mamba testified that Mohammed was a suspect in
various breaking and theft cases and that he was wanted by the
police; and Detective Constable Motsa testified that Mohammed was
known to the police who used to arrest him.
After
the police had departed with Armando the appellant spoke to Armando's
girlfriend and she described Ali Mohammed's appearance to him and
added that he usually carries a gun. The appellant recalled that on
the morning of 22nd August a man of that description had stood
outside the door to the room that she and Armando occupied and had
watched with unusual interest the appellant welding stronger burglar
bars to the door of his room in the place of the burglar bars that
had been forced loose the previous night.
3
Some
little time later on that same evening of 25th August the appellant
saw a man outside the door to Armando's room whom he thought was Ali
Mohammed, and he said aloud to Happy Bennett, who was also standing
outside in the company of another woman, "Is this not Ali
Mohammed?" whereupon the man, who was indeed Ali Mohammed, took
off from his shoulder a large bag that he was carrying, put it down,
put his hand in his pocket and advanced on the appellant saying "Who
are you?"
The
appellant, who had come to believe that Ali Mohammed was a wanted man
who was known to the police to be a criminal, that it was he who had
burgled his room, and that he was likely to be armed, was alarmed by
this menacing advance upon him. The appellant, whose work involves
the control of cash in a supermarket, owns a licenced pistol which he
had on his person, and he produced it and told Ali Mohammed to put
his hands up and to get into Armando's room, adding that the police
were looking for him. Undeterred by what the appellant said and by
the production of the pistol, Ali Mohammed continued to advance
towards him, whereupon the appellant retreated and fired a warning
shot in the air. At that the two women fled indoors. Despite the
warning shot, Ali Mohammed still continued to come towards the
appellant who retreated until his retreat was halted by a fence that
was behind him, and when he backed into it Ali Mohammed physically
took hold of him and they grappled. Ali Mohammed caught hold of the
hand in which the appellant held his pistol and the appellant feared
that Mohammed might succeed in dispossessing him of the loaded
weapon. With the help of his free hand the appellant pulled down on
Ali Mohammed's hand and fired a second shot, which struck Ali
Mohammed above the right scapula and travelled downwards into his
chest cavity to exit above the sternum. The appellant then succeeded
in pushing the grievously wounded man into his room, locked the door
and at once telephoned the police, who came, carefully searched Ali
Mohammed in case he was armed (which he was not) and then took him
away. Before he could be medically treated he died, the upper lobe of
his right lung and large blood vessels having been lacerated by the
shot that the appellant had fired downwards into his shoulder.
The
appellant was not arrested that night. He was asked by the police
whether he had a licence for his pistol, which they took possession
of, together with the empty cartridge case from the second shot that
the appellant had fired. The police and the appellant searched for,
but did not find in the dark the cartridge case from the first shot
that had been fired. The next morning however, the appellant found it
in the grass outside his room and he took
4
it,
together with his pistol licence, to the police station on the
morning of 26th August. That afternoon he was arrested a ad charged
with murder.
This
then was the evidence that the appellant gave. It was put to him that
in an affidavit that he had made in support of an application for
bail he had said that when he saw Ali Mohammed standing near his room
he immediately drew his pistol and ordered Mohammed to put his hands
up and get into Happy Bennett's room.
The
appellant accepted that he had said as much in his affidavit, but he
explained that the affidavit had been made in a hurry and he said
that it did not put the matter properly; he repeated his earlier
testimony that it was only when Mohammed, having put his shoulder bag
down, advanced upon the appellant with his hand in his pocket, that
the appellant produced his pistol and told Mohammed at gunpoint to
put his hands up.
The
difference between this brief passage in his bail application
affidavit and his testimony at his trial is the only inconsistency
that can be pointed to in the whole of the detailed account that the
appellant has given of what occurred. It is apparent however, that
this inconsistency materially influenced the learned trial Judge's
assessment of the whole of the appellant's evidence and led him to
put an interpretation upon it which is, in my view, unwarranted and
misdirected. The following excerpts from the learned Judge's judgment
are illustrative of this:
"The
accused states that he saw the deceased standing next to his door...
and
asked if that man was Ali. He then drew his firearm and ordered the
deceased to raise his hands and to go into Armando's house." (My
emphasis).
"........the
deceased who was not threatening the accused in anyway was suddenly
pointed with a loaded firearm and ordered to raise his hands and to
go into Armando's room for no apparent reason." (Again my
emphasis)
It
is clear from these observations that the learned trial Judge
accepted the statement in the bail affidavit and rejected the
appellant's evidence as to when, and why, the appellant produced his
pistol and told Mohammed to put his hands up. In consequence he was
led to say that the appellant failed to show
"that
any attack was imminent. In point of fact, it is the accused who
attacked the deceased......The deceased was put in the position in
which he found himself by the accused's untamed aggression. Even when
forced to defend himself against this unwarranted attack the deceased
did not resort to wielding any weapon to
5
necessitate
the use of a firearm by the deceased" (sic. Scilicet "accused",
not "deceased."). "Whatever fears the accused may have
entertained they were not reasonable due regard being had to the
circumstances of the case."
The
penultimate paragraph of the judgment of the learned trial Judge
reads;
"I
say all this based on the accused's account of how the deceased died.
It appeared in cross-examination that the accused filed an
application for bail which was accompanied by a sworn affidavit in
which he gave an account different from that given to Court under
oath. This throws a doubt on the truthfulness of the account given in
Court and which has been relied upon in arriving at a decision in
this matter."
The
concluding sentence that I have underlined appears to me to
demonstrate an ambivalent approach by the learned trial Judge to the
evidence that the appellant gave. He clearly decided to evaluate the
appellant's conduct on the basis of the brief passage in the bail
affidavit and to reject that portion of the evidence that the
appellant gave in court concerning the moment when the appellant felt
it necessary, for the reasons he gave, to produce his pistol in order
to dissuade the deceased from physically closing in on him. But the
decision to prefer the passage in the affidavit to the sworn
testimony of
the
appellant is not one that could safely be made. Indeed, the
explanation that the appellant gave in his evidence of the sequence
of events seems, if anything, to be more probable than the sequence
that is indicated by the disputed passage in his bail affidavit. Be
that as it may, I can find no justification for accepting the passage
in the bail affidavit, and rejecting that portion of the appellant's
evidence which speaks of the moment when the appellant produced his
pistol and of his reasons for doing so.
The
incorrect slant which the trial Judge's preference of the bail
affidavit led him to put upon the appellant's conduct becomes even
more apparent when regard is had to the observations that were made
in the course of the judgment on sentence. The learned trial Judge
said in the course of sentencing the appellant that: -
"You
subjectively thought that the deceased stole your possessions and out
of anger you shot (him)". (My emphasis)
"Instead
of using the firearm to protect yourself, you used it as a weapon of
aggression to make even with those you perceived had wronged you. The
possession of the firearm gave you a superlative sense of security
and a feeling of control over the lives of others as was evident in
this case, you ordered the
6
deceased
to raise up his hands and go into Armando's room and on failing to do
that you shot him........you took the law into your own hands,
instead of apprehending the perceived culprit and taking him to the
Royal Swaziland Police for appropriate action, you felt it just in
your eyes to shoot him." (Again my emphasis).
With
respect to the learned trial Judge, there was no evidence to warrant
these highly damaging findings. The whole of the appellant's evidence
reads well. It was thoroughly tested in cross-examination and it
emerged unscathed therefrom, except only for the inconsistency with
the passage in the bail application to which I have referred and
which the appellant said had not been properly put because the
affidavit was hurriedly made. I can find no justification for
accepting the disputed passage of the affidavit and rejecting the
whole thrust of the appellant's uncontradicted evidence in
consequence. In my view, the passages that I have extracted from the
trial court's judgement on the merits and on sentence show that the
learned trial Judge's evaluation of the appellant's evidence was
seriously flawed by misdirection.
The
location and the track of the gunshot wound, as revealed in the
post-mortem report, lend significant support to the appellant's
description of how the fatal wound came to be inflicted in the course
of the physical struggle that he described. The court is bound, in my
view, to accept that the whole of the appellant's evidence of what
happened might reasonably be true, to say the least. The question
that then falls to be answered is whether or not the appellant acted
in legitimate self-defence when he shot the deceased.
While
the onus rests on the Crown to negative a defence of self-defence, it
is trite law that such a defence is only available if certain
conditions are fulfilled. In Rex v Molife 1940 A.D. 202 at 204
Watermeyer J.A. (as he then was) put it this way:
"Homicide
in self-defence is only excusable under certain strictly limited
conditions-the means of defence must be commensurate with the danger
and dangerous means of defence must not be adopted when the
threatened injury can be avoided in some other reasonable way."
It
is not always easy to determine whether the facts of a particular
case satisfy these conditions, bearing in mind that, in assessing the
situation in which an accused person found himself and the means that
he used to defend himself, one must be careful not do so
7
"from
the angle of an arm-chair critic sitting afterwards in cool
reflection." (Rex v Hele 1947 (1) S.A. 272 (E.
D.
L.
D.)
per Lewis J. at 276).
Accepting
as reasonably possibly true the appellant's assertion that he
believed, from what he had been told, that the deceased was a wanted
criminal who was probably armed, it seems to me that the appellant
may well have become very alarmed when the deceased reacted in a
strange way to the appellant's query as to whether he was Ali
Mohammed by taking off the bag he had on his shoulder, putting it
down, putting his hand in his pocket, and advancing on the appellant
saying "Who are you?". Apart from the two women who fled
from the scene when the warning shot was fired there was nobody else
on the scene who could be of any assistance to the appellant in case
of trouble. That the deceased appeared to be bent on physical
aggression would have seemed even more certain to the appellant when
the deceased doggedly continued to close in upon him despite the
production of a pistol and the firing of a warning shot. Had the
appellant been motivated by anger and a spirit of revenge, as the
learned trial Judge thought, one would expect that, instead of firing
a warning shot in the air, he would have shot the deceased as he was
advancing. Instead of doing so however, the evidence is that the
appellant continued to back away until he could retreat no further
because of the fence behind him, at which point the deceased reached
him, grasped his gun hand and grappled with him. Fearing that the
deceased was intent on dispossessing him of his loaded firearm with
the risk that, if the deceased succeeded in doing so, the weapon
might well be used against him, the appellant fired a second shot
downwards from above the deceased's right shoulder in order to
protect himself from the possible fatal consequences of being
disarmed by the deceased.
In
considering whether the appellant acted reasonably in his defence,
and whether the force he used to defend himself was commensurate with
the apprehended danger (S v Ntuli 1975 (1) S.A. 429 (A)), regard must
be had to his uncontroverted evidence that after the deceased
grappled with him the appellant tried to flee to the safety of his
room but was physically unable to do so; and to the fact that,
because the deceased had hold of his gun hand, he was unable to aim
at a less vulnerable part of the body than the shoulder.
In
all the circumstances that the appellant's testimony disclosed I am
of the view that the Crown has not negatived the defence of
self-defence. The appellant found himself under forcible attack by
the deceased under circumstances when it was not unreasonable for the
8
appellant
to fear that the deceased would succeed in wresting the appellant's
firearm from him and would use it against him. Flight was
unsuccessfully attempted, and no less dangerous way of protecting
himself than the way be used has been shown to have been open to the
appellant. Without other options available to him I do not consider
that it can justifiably be found that he used excessive force to
protect himself and it cannot be said that the nature of the force
that he resorted to in the situation in which he found himself was
not commensurate with the nature of the danger that he reasonably
apprehended.
In
the result I am of the view that the appellant was wrongly convicted
and that he should have been acquitted of any criminal culpability
for the death of the deceased. Accordingly the appeal succeeds and
the conviction and sentence are set aside.
C.
E.
L.
BECK J.A.
I
agree
R.N.
LEON
J.P.
I
agree
J.H.
STEYN
J.A.
Delivered
in open court on the
13th
day
of June 2001
