THE APPEAL COURT OF SWAZILAND
APPEAL NO. 1/91
the matter between:
THE APPELLANT :MR FLYNN
THE RESPONDENT : MR KILIKUMI
8TH APRIL 1994
appeal is in my view an appeal without merit. Despite that Mr Flynn,
has made a valiant attempt on behalf of the appellant to persuade us
that there is indeed some merit in the appeal. He has said everything
that could reasonably be said in support of the appeal. We are
indebted to him for his assistance.
appellant was tried in the High Court by Rooney J. on two accounts of
attempted murder, in that on the 9th of June 1990 he shot Moses
Hlatshwayo and Milton Khoza with a revolver. Count 1 relates to Moses
and Count 2 to Milton.
facts are not substantially in dispute. The trial Judge summarised
these as follows:-
would appear that the accused has a son Theo, (not a witness) who had
the use of a Ford Escort belonging to him. The two complainants, who
are from Mozambique, and one Merigo da Silva, a Portuguese, all young
men, were friends of Theo Henwood. They earned a living by repairing
cars at various farms. They had no fixed place of employment. All,
except Theo, had unstable backgrounds although it now appears that
for several weeks before this incident Theo had absented himself from
his father's house.
said that Theo had left the car with him and Milton Khoza. The car
was parked at night at Fairview near where Milton lived. During the
day the car was used as transport in connection with whatever work
the young men were engaged in.
a Saturday evening the witness and his friends encountered the
accused near Mthunyelelwa's Bar. No words were exchanged and the
young men drove to Tinker's Petrol Station. While they were obtaining
petrol the accused came and parked his vehicle infront of the Ford.
He was armed with a gun and he ordered this witness, Milton, the
driver and Amerigo to alight from the Ford. He ordered them . not to
move. Amerigo advanced towards the accused and asked if he could have
a word with him".
evidence further establishes clearly that the appellant then shot
both Moses and Milton in their respective stomachs.
Flynn based his arguments, that the appellant had no intention to
kill, on his own say so in the course of evidence.. Mr Flynn's
submission was that on this evidence, the appellant should not have
been found to have acted recklessly in as much as he had the limited
intention of merely injuring the two complainants to stop them from
running away. He referred to the following passage in the evidence.
question was asked:-
What was your intention when you shot at each of them?
to stop them from running away. I did not shoot to kill. I shot to
injure them so that they could not run away.
case of this nature cannot in my view, be decided on the egresses,
say so or ipse dixit. One must look at all the evidence. That he
acted with reckless abandon is clear from another passage of his
evidence and again I quote.
I said anybody moves I shoot and that I repeated your, Worship,
several times. There was, Amerigo, moving towards me, wanting to talk
to me privately. The other two also decided to moved away and that is
the time I shot.
shot very fast. It was hardly any seconds in between, it was just
bang-bang. I shot the two because there was no time to waste"
case in the Appellant Division of South Africa R v HUEBSCH 1953 (2)
S.A. 661 establishes the correct principle "as being:-
it suffices for the Prosecution to prove in a charge of attempted
murder an appreciation that there is some risk to life coupled with
recklessness as to whether the risk is fulfilled in death".
appellant's own evidence that he shot very fast; that there was
hardly any second in between; that it was just bang bang bang is
really the end of the matter in so far as his plea of not guilty is
concerned. That the shots found their way into the stomachs of the
two complainants admits of no conclusion other than reckless
disregard as to whether death would follow or not.
result is that the appeal against conviction fails. The appellant's
conduct amounts to an arrogant taking of the law into his own hand,
and the sentence in that regard, is in my view, completely
appropriate and not excessive.
have been authorised by my brother Browde to indicate that he concurs
in this judgment. The learned Chief Justice favours a different
approach and he will now intimate what his views of this appeal are.