Oscar CC Final Papers Aj Monday 25 Jan Respondent

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CC CASE NO:
SCACASENO : 96/2015
GD CASE NO: CC113/13
In the matter between:
OSCAR LEONARD CARL PISTORIUS
Applicant
(Accused a quo)
(Respondent in the SCA)
and
DIRECTOR OF PUBLIC PROSECUTIONS,

GAUTENG
INDEX
Document
Respondents Notice of Intention to
oppose
Affidavit of A Johnson
Pages
001 - 002
Appellants Heads: SCA
056 - 098
Respondents Heads: SCA
0 99-149
Judgment by Masipa J
150-222
SCA Judgment
223 - 255
003 - 055
Respondent
(Applicant in the SCA)
m THE CONSTITUTIONAL OF SOUTH AFRICA
CASE N O .:...........
SCA: 96/2015
OSCAR LEONARD CARL PiSTORIUS
Applicant
And
Respondent
GAUTENG
RESPONDENTS NOTICE OF INTENT50N TO OPPOSE
002
1. TAKE MOTICE THAT the Respondent intends to oppose this application
2. TAKE FURTHER NOTICE THAT the Respondent will in opposition to this

application for leave to appeal, rely on the affidavit of ANDREA JOHMSON
SIGNED at PRETORIA on this 20th day of January 2016
DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS: GAUTENG
RECEIVED
RAMSAY WEBBER
WITHOUT PREJUDICE//
zzj'/it
' -
003
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE N O .:...........
SCA: 96/2015
Applicant
and
Respondent
GAUTENG
AFFIDAVIT IN TERMS OF RULE 19(4)
E/'tA
004
I, the undersigned
ANDREAJOHNSON
declare under oath as follows:
1.
I am employed by the National Prosecuting Authority (NPA) as a Senior Deputy

Director of Public Prosecutions in the Office of the Priority Crimes Litigation Unit.
2.
I was a prosecutor in the team that prosecuted the Applicant in this matter and
subsequently part of the team that appeared for the Appellant (State) at the Supreme
Court of Appeal (SCA).
I am now part of the team that may well appear for the
Respondent before this Honourable Court.
3. The facts contained herein are, save where the context otherwise indicates, within my
personal knowledge and are true and correct, and are deposed to in consultation with
the team that may well appear for the Respondent before this Honourable Court.
4. The Applicant is Oscar Leonard Carl Pistorius.
5. The Respondent is the Director of Public Prosecutions Gauteng and I have been duly
authorised to depose to this affidavit.
6. This purpose of this affidavit is to set out the reasons why the application in terms of
the provisions of Rule 19(2) of the Rules of this Honourable Court is opposed.
005
BACKGROUND
7. On 12 September 2014 in the Gauteng High Court, Pretoria, the Honourable Justice
Masipa acquitted the Applicant (accused) on the main count of murder (count 1) but
instead found (him) guilty of culpable homicide.1
8. On application by the Respondent (State) the Court a quo reserved the following
questions of law for consideration by the Supreme Court of Appeal:
8.1 Whether the principles of dolus eventualis were correctly applied to the accepted
facts and the conduct of the accused, including error in objecto."
8.2Whether the Court correctly conceived and applied the legal principles pertaining
to circumstantial evidence and/or pertaining to multiple defences by an accused.
8.3 Whether the Court was correct in its construction and reliance on an alternative
version of the accused and that this alternative version was reasonably possibly
true ...
9. The Supreme Court of Appeal (SCA), in a unanimous judgment of a Full Bench,

ordered that:2
1 Judgment of the trial Court, attached as Annexure B.

2 Judgment of the SCA, attached as Annexure A.
006
9.1 The first two questions of law reserved are answered in favour of the Director of
Public Prosecutions.
9.2 The accuseds conviction and sentence on count 1 are set aside and replaced
with the following:
Guilty of murder with the accused having had criminal intent in the form of
dolus eventualis.
9.3The matter is referred back to the trial court to consider an appropriate sentence
afresh in the light of comments in the judgment.
10. The Applicant has filed an application for leave to appeal the whole of the judgment
and order of the SCA.
11.This application is opposed on the main ground that there exists no reasonable
prospect of success on Appeal.
It is our respectful submission that the SCA
committed no errors of law and that the arguments by the Applicant are without merit
and contrived.
12.
We will deal in particular detail with the tests which this Honourable Court has
adopted when considering granting leave to appeal and submit strongly that it is not
in the interests of justice to grant leave to appeal.
007
13.1 submit that it is in the interests of justice that criminal trials ought to be finalised
without undue delay and submit that it is in the interests of justice that the Applicant
now appears before the trial Court to be sentenced on the crime he has committed.
14. The Respondent will endeavour not to be repetitive but instead will focus its
opposition on the aspects directly related to the grounds of appeal. It is our respectful
submission that the Constitutional Court will be loath to consider aspects that were
not raised in argument before the SCA. For ease of reference we attach hereto a
copy of both our and the Applicants Heads of Argument filed in the SCA.3
THE SCA JUDGMENT
15. It is respectfully submitted that the judgment of the SCA should not be dealt with
selectively but rather be read in its entirety, and in doing so it will become clear that
the Court did not act unlawfully and unconstitutionally . It is respectfully argued that
the SCA acted with great circumspection and erred on the side of caution insofar as
the right to interfere with the decision of the trial Court is concerned.
16. It is respectfully submitted that the SCA defined and conceptualised each element of
the questions before it correctly and applied the law in a logical and coherent stepby-step fashion.
17. Scrutiny of the relevant portions of the judgment demonstrates the Courts cautious
and particular approach to the application in terms of section 319 of the Criminal
3 Heads of Argument by the Appellant (Respondent) is attached as Annexure C and the Heads of
Argument by the Respondent (Applicant) is attached as Annexure D.
'
008
Procedure Act, No. 51 of 1977 (CPA). It is perhaps apposite to stress at this stage
that the Court not only considered the questions of law but also used its powers in
terms of the provisions of section 322(1) of the CPA to substitute the Court a quos
findings:
17.1
The SCA summarised the Applicants background and the circumstances of

the initial meeting between the Applicant and the deceased at paras [11][12].
17.2
The incident was summarised at para [13].
17.3
The SCA summarised the States case at para [14] and that of the defence
at paras [15]-[16], which included a very comprehensive summary of the
Applicants evidence.
17.4
The SCA accepted the Court a quos finding on the Applicants credibility
and confirmed that:
...one really does not know what his explanation is for having fired
the fatal shots, at para [17].
17.5
The findings and sentence were summarised at paras [18][19].
009
17.6
The Court crisply and succinctly dealt with its powers in assessing an
application in terms of the provisions of section 319 of the CPA at paras
[21][24].
17.7
The court, with respect, correctly stated: "... the State may not appeal
against an acquittal based solely on findings of fact ... ,4 and "... this court
cannot interfere, for example, with the factual decisions of the trial court
rejecting the States version ...,5 and
[t]he matter must therefore
proceed, as was accepted by the State, on the basis both that its rejected
version cannot be reconsidered...".6
17.8
At para [33], in dealing with the first question of law, the court found:
"... This conclusion shows the fallacy in the submission of Counsel

that the first question of law raised solely a question of fact ...a t best
for the accused the first question reserved invokes an issue o f mixed
fact and law.
17.9
The two forms of dolus and, with respect, the correct and accepted
definition of dolus eventualis were dealt with at paras [26][27]. Although
this will receive further elucidation, it is perhaps apposite at this point to
question the Applicants contention that there exists a so-called, or
purported, second component for dolus eventualis, namely that of
4At para [23] of the SCA judgment.

010
knowledge of unlawfulness. The Applicant eschews any possible support

that this definition for dolus eventualis has received in case-law and even in
recognized and respected legal writing.
17.10
At para [28], the confused reasoning of the Court a quo in adopting a an

objective rather than a subjective approach to the question of dolus is dealt
with, and the SCA clearly stated what the test is and should have been:" ...
whether he [the Applicant] actually foresaw that death might occur
17.11
The conflation of the tests for dolus directus and dolus eventualis by the
trial Court received attention at para [29].
17.12
The SCA correctly identified the fundamental error made by the trial Court
that because the Applicant believed that the deceased was in the bedroom
he could not have had dolus eventualis as to her death and thus could not
be convicted of murder. This is dealt with at para [30]. It is remarkable to
note, and indeed remains inexplicable, that the Applicant nevertheless
continues to endorse and persists with this line of, with respect, flawed
reasoning.7 At para [31], the SCA discussed dolus indeterminatus and at
para [32] correctly applied the legal principles of dolus eventualis, finding
that ... the accuseds incorrect appreciation as to who was in the cubicle is
not determinative of whether he had the requisite criminal intent....
7See paras 35-37 of the Affidavit in Support of Application for Leave to Appeal.
9
17.13
O il
The finding of the SCA on the first question of law follows at para [33] and
the SCA clearly states that
as there was an incorrect application of the
legal issue the first point of law must be determined in favour of the State.
17.14
The SCA discussed the trial Courts error in law in excluding relevant
circumstantial evidence at paras [34]-[40]. It is our respectful submission
that there is no real attack on the SCAs finding in this regard,8 and for
purposes of our argument we can do no better but to support the SCAs
finding at para [40]:
All o f this was circumstantial evidence crucial to a decision on

whether the accused, at the time he fired the fatal shots, must have
foreseen,
and
therefore,
did
foresee,
the
potentially
fatal
consequence of his actions ... [Tjo seemingly disregard it must be

regarded as an error in law.
17.15
The SCA demonstrated its cautious approach as to its powers in relation to

an application in terms of section 319 of the CPA and in doing so, at para
[41], refused to entertain the third question, regarding it as unclear or a
factual decision.
17.16
The SCA at paras [43]-[44] dealt with its powers in terms of the provisions
of sections 322 and 324 of the Act.
It found that based on practical
8 See para 88 of the Affidavit in Support of Application for Leave to Appeal.
io
012
considerations and the argument by the Applicant and the Respondent, it

would not be in the public interest to order a trial de novo.
17.17
The SCA then embarked on a second phase of the application by

considering whether on the facts found proved, the trial Court erred in
drawing the inferences it did as to dolus eventualis.9 Likewise there is no
serious challenge to the SCAs decision to follow the procedure as
prescribed in section 322(1 )(b) of the CPA, that is, of giving such judgment
as the trial Court ought to have given.
17.18
With regard to its powers in terms of section 322(1) of the CPA, the SCA
captured the essence of its task at para [47], as follows:
whether on [1] the primary facts found proved, [2] considering a\[
the evidence relevant to the issue and [3] applying the correct legal
test the inference has to be drawn that the accused acted with dolus
eventualis when he fired the fatal shots .. .10
17.19
The SCA identified and discussed the crux of an evaluation of the

Applicants reliance on a defence at para [49], and succinctly put it as:
.. he fired four shots through the door. And he never offered an

acceptable explanation for having done so.
9At paras [46]-[51] of the SCA judgment.

10 Emphasis added.
17.20
After dealing with the primary facts relating to the nature of the firearm and
ammunition as well as the extremely limited space into which the shots
were fired, the SCA reached the conclusion at para [51] that the accused
acted with dolus eventualis.
17.21
The Applicant relies on the purported SCAs error in law of rejecting his
defence
of putative
private
defence,
but has totally
ignored
the
insurmountable hurdle that he on his own version "... had not intended to
shoot the person whom he felt was the intruder... [which] immediately
placed [him] beyond the ambit of the defence.11 The SCA continued to
emphasise with reference to S v De Oliveira12 that the defence of putative
private defence implies rational but mistaken thought.13
17.22
The above-mentioned hurdles remain standing and have not been

addressed in the Applicants application.
THE APPLICATION
18. In the founding affidavit of Andrew Fawcett (Fawcett), deposed to in support of the
Applicants application for leave to appeal, it is argued that:

121993 (2) SACR 59 (A) at 65d.
12
014
18.1The SCA exceeded its powers in terms of section 319 of the CPA.
18.2
18.2.1
The SCA committed three errors of law, namely:
it failed to apply the second component of dolus eventualis which the

Applicant argues is knowledge of unlawfulness;
18.2.2
it failed to consider the Applicants knowledge of unlawfulness as far

as error in objecto is concerned;
18.2.3
it introduced an objective consideration of the rational person into

the subjective test to be applied in regard to knowledge of
unlawfulness and
in particular putative private defence,
and
reintroduced the defunct presumption that an accused intends the

natural and probable consequences of his or her actions, when it
(impermissibly) reconsidered putative private defence.
NOTABLE ASPECTS
19.lt is with respect important to stress the glaring absence of any reference to case-law
and/or respected legal writing on the purported second component of dolus
eventualis
EiVA
i3
' 0
20. The Applicant fails to consider or acknowledge that the SCA indeed concerned itself
with the element of knowledge of unlawfulness by evaluating the Applicants defence
of putative private defence.
21.The crux of our opposition to the first argument by the Applicant lies in his failure to
comprehend the two-tiered approach by the SCA. The SCA firstly considered the
questions of law, and then secondly acted in terms of section 322(1 ){b) of the CPA to
give such judgment as ought to have been given at the tria l...
22.
The Applicant fails to show that the SCA in reaching the conclusion on the questions
of law, erroneously amended or substituted any of the primary factual findings of the
trial Court.
23. We argue that the inevitable consequence of substituting the judgement of the trial
Court must be an application of the correct legal principles to the primary facts found
by the trial court.
24.The insurmountable hurdle for the Applicant to overcome in convincing this

Honourable Court to even consider the second basis of his application is twofold:
24.1
The trial Courts finding on credibility was accepted, and in considering all
the evidence and applying the correct legal prescripts, such was amplified
by the SCA;
24.2
The Applicants reliance on putative self-defence does not get out of the
starting-blocks, since on his own version he never intended to shoot at the
perceived danger.
25. At the risk of being unduly repetitive, it is worth mentioning that the Applicant has
himself to blame for the Court a quo and the SCAs negative comments about his
credibility. The end result is that there exists no credible explanation by the Applicant
for the killing of the deceased, which is compounded by the SCAs correct approach
in considering the evidence which the trial Court erroneously ignored.
The
Applicants failure in this respect is exacerbated by the following remarks of the SCA
in S v Boesak:14
"... one of the main and acknowledged instances where it can be said that a prima
facie case becomes conclusive in the absence of rebuttal is where it lies
exclusively within the power of the other party to show what the true facts were
and he or she fails to give an acceptable explanation
26.The Respondent does not respond to each paragraph of the Applicants application
as set out in the founding affidavit of Fawcett, but deals in more detail with the
grounds of appeal to demonstrate that there is no merit in any of the grounds of
appeal as formulated by the Applicant.
27.
We will, with respect, commence our argument with a detailed analysis of the test for
appealability that this Court has applied and prescribed for the granting of leave to
appeal.
142000 (1) SACR 633 (SCA) at para [47] (emphasis added).
15
017
THE TEST FOR APPEALABILITY AND JURISDICTION
28. In the founding affidavit of Fawcett, it is incorrectly stated on several occasions that
the jurisdiction of this Honourable Court lies in section 169(3)(/?)(i) and (ii) of the
Constitution.15
29.lt is submitted that the jurisdiction of this Honourable Court is in fact governed by
section 167(3)(jfc>)(i) and (ii) of the Constitution. Section 167(3)(c) of the Constitution
goes on to provide that / t]he Constitutional Court... makes the final decision whether
a matter is within its jurisdiction" This Court affirmed same in S v Boesak:16
The Constitution declares that the Constitutional Court is the highest court in all
constitutional matters.
Its jurisdiction is dealt with in s 167(3)(b)...
The
Constitution offers no definition of a constitutional matter, or an issue connected

with a decision on a constitutional matter. Section 167(3)(c) leaves that ultimately
to the Constitutional Court to decide.
30.lt is conceded by the Respondent that [t]he powers and functions of the courts are
constitutional /sstves.17 Moreover, in S v Basson, Chaskalson CJ in a concurring
judgment appositely pointed out in respect of the powers of the SCA in relation to a
15 See paras 14.4, 25 and 28 of the Affidavit in Support of Application for Leave to Appeal.
162001 (1) SACR 1 (CC) at para [13]..
17See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at para
[51], citing Bannatyne v Bannatyne (Commission for Gender Equality, as Amicus Curiae) 2003 (2) SA
363 (CC) at para [17]; Phillips and Others v National Director of Public Prosecutions 2006 (1) SACR
78 (CC) at para [31].
i6
018
State appeal in terms of section 319 of the Criminal Procedure Act 51 of 1977
("CPA), that:18
Section 319 deals with the powers o f the SCA to hear appeals in criminal cases.
The power o f the courts is derived from the Constitution.
In Bannatyne v
Bannatyne this Court held that any issue as to the nature and ambit of the
powers of the High Court necessarily raises a constitutional question.
This
applies equally to issues concerning the nature and ambit of the powers of the
SCA. An interpretation of s 319 of the Criminal Procedure Act, which precludes
an appeal to the Supreme Court of Appeal against a decision of the High Court
quashing a charge in an indictment, has a material bearing on the powers o f the
SCA. The interpretation of that section is accordingly a constitutional matter.
31. In the decision of this Court of Phillips and Others v National Director o f Public
Prosecutions, which the Applicant cites as authority,19 it was pertinently held by
Skweyiya J, delivering the unanimous judgment of the Court, that a finding that an
application for leave to appeal raises a constitutional issue is not... decisive of the
question of whether leave to appeal to the Court ought to be granted.20 Skweyiya J
proceeded to reaffirm that [IJeave to appeal may be refused if it is not in the interests
of justice that this Court hear the appeal.21 In S v Boesak, this Court, per Langa DP,
pertinently observed in this regard:22
18 2004 (1) SACR 285 (CC) at para [111] (footnotes omitted).

20 2006 (1) SACR 78 (CC) at para [32] (parallel citation: Phillips and Others v National Director of
Public Prosecutions 2006 (1) SA 505 (CC)) (emphasis added).
21 Ibid at para [32], endorsing S v Boesak supra at para [12]; National Education Health and Allied
Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) at para [25] (emphasis
added).
22 S v Boesak supra at para [12] (footnotes omitted).
EM
iff
17
019
A finding that a matter is a constitutional issue is not decisive. Leave may be

refused if it is not in the interests o f justice that the Court should hear the appeal.
The decision to grant or refuse leave is a matter for the discretion of the Court,
and in deciding whether or not to grant leave, the interests of justice remain
fundamental.
In considering the interests of justice, prospects of success,
although not the only factor, are obviously an important aspect of the enquiry. An
Applicant who seeks leave to appeal must ordinarily show that there are
reasonable prospects that this Court will reverse or materially alter the decision of
the SCA.23
32. As is demonstrated below, it is the Respondents respectful submission that even

though the first ground on which the Applicant bases his application for leave to
appeal raises a constitutional issue, or could conceivably raise an arguable point of
law o f general public importance", in that it relates to the powers of the SCA in terms
of section 322 of the CPA, there are no reasonable prospects of success of an appeal
to this Honourable Court on such ground, and thus it is not in the interests of justice
that leave to appeal be granted on that basis. As is pertinently dealt with in more
detail below, the Respondent argues in essence that the SCA did not exceed its
powers in terms of section 322(1) of the CPA in the process of giving such judgment
as the trial Court ought to have given and in this respect in altering the conviction of
culpable homicide to a conviction of murder with dolus eventualis.
23 Emphasis added.
020
33. The Applicant also contends that the second main ground on which the application for
leave to appeal is predicated, that is, in relation to the SCAs alleged erroneous legal
approach to the questions of dolus eventualis and knowledge of unlawfulness,
including that of error in objecto, and putative private defence,24 raises an arguable
point of law of general public importance within the purview of section 169(3)(b)(ii)
[sic] of the Constitution", which as the Respondent submits above, ought to read
section 167(3)(jb)(ii) of the Constitution.25
34. In the recent decision of this Court of Paulsen and Another v Slip Knot
Investments 777 (Pty) Ltd, Madlanga J (with Jafta J and Nkabinde J concurring, and
the majority Court agreeing with his analysis of the aspect), explored and crisply
articulated the meaning and scope of a matter that raises an arguable point of law of
general public importance which ought to be considered by [the Constitutional Court],
that is, in relation to the Courts new jurisdiction in terms of 167(3)(jb)(ii) of the
Constitution that extends beyond constitutional matters so as to embrace any other
matter where it grants leave to appear or to matters which the Court has come to
regard as non-constitutional,26 Madlanga J also dealt with the test for the granting of
leave to appeal on a matter that raises an arguable point of law of general public
importance.27
34.1
In respect of the meaning of the phrase arguable point of law, it was held:28
24 See paras 41.2 and 49-71 of the Affidavit in Support of Application for Leave to Appeal.
25 Ibid at para 28.
26 2015 (3) SA 479 (CC) at paras [20]-[28].
27 Ibid at paras [12]-[19] and [29]-[31 ].
28 Ibid at para [20].
19
This is a bifurcated requirement
021
The point must be one of law; and it must be
arguable. Starting with the first prong, quite axiomatically, the point must not be
one of fact This courts jurisprudence on purely factual matters, developed in the
context o f what constitutes a constitutional, as opposed to a factual issue, is an
instructive guide on this.29
34.2
Pertaining to the instructive distinction between a purely factual matter and what
constitutes a constitutional matter, Madlanga J30 cited with approval inter alia S v
Boesak, where, insofar as it is relevant, this Court found in this regard:31
One of the questions to be determined is which of the issues raised by the

Applicant relate to constitutional matters. This requires, amongst other things, a
purposive approach to the harmonising of s 167(3)(a) and (b) of the Constitution
which constitutes the Constitutional Court as the highest court in constitutional
matters and s 168(3) which constitutes the SCA as the highest Court of appeal
except in constitutional matters. Certain broad principles for criminal cases can be
identified:
(a)
A challenge to a decision of the SCA on the basis only that it is wrong on

the facts is not a constitutional matter.
In the context o f s 167(3) o f the Constitution the Question whether evidence

is sufficient to justify a finding of guilt beyond reasonable doubt cannot in
itself be a constitutional matter.
Otherwise, all criminal cases would be
29 Emphasis added.
30 Ibid at para [20] n 31.
31S v Boesak supra at para [15] (footnotes omitted).
T\N\
'
20
022
constitutional matters, and the distinction drawn in the Constitution between

the jurisdiction of this Court and that of the SCA would be illusory. There is
a need for finality in criminal matters.
The structure o f the Constitution
suggests clearly that finality should be achieved by the SCA unless a

constitutional matter arises. Disagreement with the SCAs assessment of
the facts is not sufficient to constitute a breach of the right to a fair trial. An
Applicant for leave to appeal against the decision o f the SCA must
necessarily have had an appeal or review as contemplated by s 35(3)(o) of
the Constitution. Unless there is some separate constitutional issue raised
therefore, no constitutional right is engaged when an appellant merely
disputes the findings of fact made by the SCA.
(c)
The application of a legal rule by the SCA may constitute a constitutional

matter. This may occur if the application of a rule is inconsistent with some
right or principle of the Constitution.32
34.3
Madlanga J33 also cited M inister of Safety and Security v Luiters, where this
Court, per Langa CJ, appositely observed:34
To recap, I have found that the Ministers primary submission raised in oral
argument does raise a constitutional issue, as does his second contention, while
the third submission relating to the factual finding of the Supreme Court o f Appeal
as to the subjective intention o f Constable Siljeur does not.
32 Emphasis added.
33 Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd supra at para [20] n 31 .
342007 (2) SA 106 (CC) at para [28],
It is therefore
023
21
necessary to consider whether it is nonetheless in the interests of justice to grant

leave to appeal.35
34.4
Madlanga J proceeded to discuss the meaning of the term arguable, insofar as it

pertains to what point of law ought to be considered by the Court.
It was
importantly held as follows, which remarks, with respect, are highly germane to the
present matter:36
Moving on to the second facet, not infrequently, even in a most hopeless case a
skilful arguer may ingeniously craft an argument on a point of law which. at first
blush, may appear convincing. That is not necessarily enough for purposes of this
jurisdictional reguirement. It cannot be any and every argument that renders a
point of law arguable for purposes of s 167(3)(b)(ii). Surely, a point o f law which,
upon scrutiny, is totally unmeritorious cannot be said to be arguable. Indeed, in
Baloi Centlivres JA said there are very few cases which are not arguable in the
wide meaning o f that word.
The notion that a point of law is arguable entails
some degree o f merit in the argument.
Although the argument need not, of
necessity, be convincing at this stage, it must have a measure of plausibility ...in

Beatley & Co Tindall AJP held that the word arguable is used in the sense that
there is substance in the argument advanced.
35 Emphasis added.
35 Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd supra at paras [21]-[22] (footnotes
omitted).
22
024
I make bold to say in order to be arguable, a point of law must have some
prospects of success. Support for this is to be found in decisions of this court,
albeit made in a different context."37
34.5
Madlanga J pertinently added on this score after enumerating various, but not
exhaustive, examples of instances where a point of law may be arguable, that:38
Ultimately, whether a point of law is arguable depends on the particular

circumstances o f each case."39
34.6
In the context of Paulsens case, Madlanga J appositely pointed out that where
there was confusion inherent in the National Credit Act (NCA), it was at least
arguable that the Act could be interpreted as the Paulsens proposefd]"40
34.7
Madlanga J then dealt with the question of when a point of law would qualify as a
matter o f general public importance.41 The Justice stated with regard to the
meaning of the phrase general public importance:42
This court has yet to lay a standard as to when a point of law qualifies as being of
general public importance. There are other jurisdictions where apex courts grant
leave to appeal only where a matter is of general public importance. It would be
useful to consider what the courts of those jurisdictions have said on the standard.
37 Emphasis added.
38 Ibid at para [23],
39 Emphasis added.
40 Ibid at para [24] (emphasis added).
41 Ibid at paras [25]-[26],
42 Ibid at paras [25]-[26] (footnotes omitted).
Em
For example, the Constitution of Kenya provides for appeals to the Supreme Court
in any other case in which the Supreme Court, or the court of Appeal, certifies
that a matter o f general public importance is involved. With the exception o f the
reference to a matter of fact, the interpretation of the relevant provision by the
Supreme Court of Kenya is instructive:
Before this court a matter of general public importance warranting the

exercise of the appellate jurisdiction would be a matter of law or fact,
provided only that: its impacts and consequences are substantial, broadbased, transcending the litigation-interests of the parties, and bearing upon
the public interest.
This does not mean the requirement will be met only if the interests of society as a
whole are implicated. English courts have found that an issue is of general public
importance when it is likely to arise again in other cases and where its
determination would affect a large class of persons rather than merely the
litigants. As stated in Wiltshire Primary Care Trust, issues do not have to be of
importance to all citizens or the whole nation in order to be of general public
importance, it is enough to be o f importance to a sufficiently large section of the
public. In sum, for a matter to be of general public importance, it must transcend
the narrow interests of the litigants and implicate the interest of a significant part of
the general public. It will serve a litigant well to identify in clear language what it is
that makes the point of law one o f general public importance.43
43 Courts and the Respondents emphasis.
EN\
24
34.8
026
Again by way of example, in the context of Paulsens case, Madlanga J observed

that:44
It is manifest that both the proper interpretation o f the NCA on the issues raised
and determination of the question whether the in duplum rule is suspended
pendente lite will have a significant impact on the general populace. As noted in
Kubyana, the NCA -
regulates commercial activity undertaken by many people and institutions

on a daily basis.
The issues at stake are therefore of fundamental
importance to many South Africans.
Charging interest on commercial transactions is so widespread as to affect a large

number of members of society. Likewise, there are countless people and entities
that charge and derive a financial benefit from interest. A pronouncement either
way on whether the in duplum rule is suspended pendente lite will affect many on
either side of the scale"45
34.9
In dealing with the question of whether leave to appeal could be granted to this
Court in Paulsen, and in this regard in considering the import of the words which
ought to be considered by that Court in s 167(3)(b)(ii)", Madlanga J found that:46
Although a point o f law may be both arguable and of general public importance,
there may be factors that militate against its receiving the attention o f this court. It
44 Ibid at para [27] (footnote omitted).
45 Emphasis added.
46 Ibid at paras [17]-[18] and [29]-[30] (footnotes omitted).
25
' 0 2 7
seems to me that, on this, some of the factors that are of relevance to the
interests-of-iustice factor in the context o f our jurisdiction based on constitutional
matters may find application... [A] holding that a matter raises an arguable point of
law o f general public importance does not inexorably lead to a conclusion that the
matter must be entertained. Whether the matter will, in fact receive our attention
will depend on the interests o f justice...
Where, in an application for leave to appeal founded on a constitutional
matter, this court holds that there is indeed a constitutional issue, that does not
automatically lead to the grant of leave. This court has a discretion and on this the
fundamental criterion is the interests of justice. In Boesak we held:
A threshold requirement in applications for leave relates to the issue of

jurisdiction.
The issues to be decided must be constitutional matters or
issues connected with decisions on constitutional matters...

A finding that a matter is a constitutional issue is not decisive. Leave
may be refused if it is not in the interests of justice that the court should
hear the appeal. The decision to grant or refuse leave is a matter for the
discretion of the court and, in deciding whether or not to grant leave, the
interests of justice remain fundamental.
In considering the interests of
justice, prospects of success, although not the only factor, are obviously an
important aspect of the enquiry. An Applicant who seeks leave to appeal
must ordinarily show that there are reasonable prospects that this court will
reverse or materially alter the decision of the SCA.
26
028
The interests-of-justice factor aims to ensure that the court does not entertain any
and every application for leave to appeal brought to it. Coming to this courts non
constitutional appellate jurisdiction, the guestion arises: do interests of justice not
come into the equation? I think they do. This is what the words which ought to
be considered by that Court in s 167(3)(b)(ii) of the Constitution are directed a t j f
- for whatever reason - it is not in the interests of justice for this court to entertain
what is otherwise an arguable point of law of general public importance, then that
point is not one that jought to be considered by fthis1 Court. The interests-ofjustice criterion is firmly entrenched in this courts jurisprudence on applications for
leave to appeal involving constitutional matters. Whatever its true provenance in
respect of applications for leave to appeal on constitutional matters from the
Supreme Court o f Appeal, I cannot conceive o f any basis why it should not be
applicable here. On the non-constitutional appellate jurisdiction we must borrow
from this courts existing jurisprudence on interests o f justice.
With the exception of the last, the points the Paulsens raise have some
prospects of success.
On this I need do no more than refer to the ensuing
discussion on the merits. Without doubt, the points are of import. Clamantly, it is
in the interests of justice that this appeal be entertained.
I grant leave to
appeal."47
35.lt is submitted that these findings and observations in Paulsen on what the meaning
and scope are of a matter that raises an arguable point of law of general public
importance which ought to be considered by this Court and when leave to appeal can
be granted to the Court on such a point of law, are highly instructive in the present
47 Emphasis added.
029
27
matter particularly in respect of the second main ground of the Applicants

application.48
36.As is demonstrated by the Respondent below, there is no confusion or legal

uncertainty as to what the trite and applicable common-law principles or elements are
in relation to dolus eventualis and error in objecto, as discussed by Leach JA in
casu,49 There is a vast body of authoritative case-law and academic literature that
exists in our common law on the matters. The points of law raised by the Applicant
are also, as is shown below by the Respondent, totally unmeritorious"50 It cannot
therefore be said that the Applicants issues pertaining to dolus eventualis and error in
objecto raise points of law that are arguable for consideration by this Court. There
are accordingly no prospects of success on appeal on these points of law. In other
words, with respect, the Applicant has failed to show that there are reasonable
prospects that this court will reverse or materially alter the decision of the SCA51 on
the points of law and thus it is not in the interests of justice that the Applicant be
granted leave to appeal to this Court on those aspects; a fortiori where the Applicant
raises
for
the
first
time
in
this
Court
the
legal
question
of
whether
knowledge/foresight of unlawfulness is a so-called second component of dolus

eventualis.52
48 Compare also the as-yet unreported judgment of this Court in Mashongwa v Passenger Rail Agency
of South Africa [2015] ZACC 36 (CC) at para [14], where it was held that u[t]he safety and security o f the
poor people who rely on our train network to go to work or move from one place to another does raise an
arguable point o f law o f general public importance", and that even though the relevant point of law in casu
was not "novel in our jurisprudence, it was nevertheless still necessary to address it because it [did] raise
an arguable point of law o f general public im p o rta n c e [t]he public needfed] a pronouncement by this
Court on whether PRASA can be held delictually liable for its failure to provide safety and security
measures
See also, DE v RH 2015 (5) SA 83 (CC) at paras [8]-[10].
49 See paras [26]-[33] of the SCAs Judgment.
50 Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd supra at para [21],
T\tA
28
37. The last-mentioned aspect is particularly significant, with respect, when it is borne in
mind that this Honourable Court has repeatedly underscored that the SCA has
particular expertise in the common law.53 The litigants are therefore disadvantaged
because they have not had the opportunity of reconsidering or refining their
respective arguments in the light of a prior judgment o f the SCA"54 on the point. The
following remarks by this Court in Bruce and Another v Fleecytex Johannesburg
CC and Others, are particularly apposite on this score:55
It is, moreover, not ordinarily in the interests of justice for a court to sit as a court
of first and last instance, in which matters are decided without there being any
possibility of appealing against the decision given.
Experience shows that
decisions are more likely to be correct if more than one court has been required to
consider the issues raised.
In such circumstances the losing party has an
opportunity of challenging the reasoning on which the first judgment is based, and
of reconsidering and refining arguments previously raised in the light of such
judgm ent
38.The question also arises whether it can validly be claimed that the said legal points
raised by the Applicant pertaining to dolus eventualis and error in objecto transcend
the narrow litigation-interests of the parties and implicate or affect the interest of a
significant part of the general public, when it is considered that the Applicant draws an
53 See Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies
intervening) 2002 (1) SACR 79 (CC) at para [55]. See also, for example, Amod v Multilateral Motor
Vehicle Accidents Fund 1998 (4) SA 753 (CC) at para [33]; Masiya v Director of Public Prosecutions,
Pretoria and Another (Centre for Applied Legal Studies and Another, Amici Curiae) 2007 (2) SACR
435 (CC) at para [17]; Lee v Minister for Correctional Services 2013 (1) SACR 213 (CC) at para [115].
54 Carmichele supra at para [59].
55 1998 (2) SA 1143 (CC) at para [8].
inextricable nexus between these points of law and the factual question of whether
he acted in putative private defence. During argument before the SCA, the Applicant
deals with dolus eventualis and error in objecto in the context of whether he acted in
putative private defence.56
39. It is, moreover, demonstrated by the Respondent below that the point of law posited
by the Applicant with regard to putative private defence57 is equally unmeritorious,
with little - if any - substance and with nothing substantial hinging thereon, and there
are no prospects of success on appeal on the aspect.
It is submitted that the
Applicant has failed to show that there are reasonable prospects that this court will
reverse or materially alter the decision o f the SCA on the point.
POWERS OF THE SUPREME COURT OF APPEAL
40. The gravamen of the first basis on which the Applicant applies for leave to appeal to
this Court is that the SCA exceeded its so-called limited jurisdiction in terms of
section 319 of the Criminal Procedure Act 51 of 1977 (CPA), in that, as averred, the
SCA acted unlawfully and unconstitutional1 / when it rejected the factual finding of
the trial Court that the Applicant acted in putative private defence and replaced it with
a contrary factual finding of its own, namely that the Applicants reliance on putative
private defence could not be sustained and was thus no bar to a finding that he
acted with dolus eventualis in causing the death of the deceased.58
56 See paras 49-61 of the Affidavit in Support of Application for Leave to Appeal.
57 See paras 62-71 of the Affidavit in Support of Application for Leave to Appeal.
58 See paras 13, 41.1 and 42-48 of the Affidavit in Support of Application for Leave to Appeal. See also the
SCAs findings in this respect at paras [53]-[54] of its Judgment.
^W \
30
"
032
41.lt is averred in the founding affidavit of Fawcett, that the SCA impermissibly
reconsidered the factual finding of the trial court concerning putative private
defence", and in so doing the SCA exceeded its jurisdiction under section 319 of the
CPA and acted in breach of section 168(3)(c) [sic] of the Constitution. Insofar as it
may be relevant, section 168(3)(jb) of the Constitution provides as follows:
The Supreme Court of Appeal may decide only(i)
appeals;
(ii)
issues connected with appeals; and
(Hi)
any other matter that may be referred to it in circumstances defined

by an A ct of Parliament.
42. It is
in essence contended by Fawcett that since an appeal by theState on questions
of law in
terms of section 319 of the CPA is limited to questionsof law only, it was
impermissible for the SCA to reconsider any factual findings not pertaining to the
reserved legal questions, even if the SCA was of the opinion that the factual finding
was incorrectly decided."59 Fawcett states that the matter of the legal requirements
for putative private defence was not embodied in a question of law reserved for
consideration of the SCA, and therefore the SCA had no statutory authority to
interfere with either the trial courts legal or factual finding of putative private
defence."60
43. As mentioned earlier, it is not contended by the Applicant that the SCA could not act
in terms of section 322(1) of the CPA, once the first two questions of law reserved in
59 Ibid at para 43.

60 Ibid at para 46.
casu were answered in the States favour. Indeed, counsel for the Applicant argued
in the SCA that it was not in the interests of justice that a trial de novo be instituted in
terms of section 324 read in conjunction with section 322(4) of the CPA, given that
the accused ha[d] already served the period of direct imprisonment envisaged by the
period of correctional supervision imposed upon him by the trial court.61 However,
counsel for the Applicant submitted that the SCA should exercise its discretion under
s 322 to make no further order62
44.The only question therefore is whether the SCA could deal with the issue of putative
private defence when it gave the judgment that the trial court ought to have given in
terms of section 322(1 )(b) of the CPA, which issue the Applicant avers fell outside the
ambit or purview of the States appeal in terms of section 319 of the CPA.
45.The procedure in an appeal by the State in terms of section 319 of the CPA is twotiered: it falls on the SCA firstly to decide whether the question of law reserved for the
Courts consideration should be answered in the States favour or whether the appeal
should be dismissed.
46.Secondly, if the question of law is decided by the SCA in the States favour, in other
words, where the court o f appeal has given a decision in favour of the prosecutorJ,
the SCA may set aside an acquittal or conviction on a competent verdict or alternative
charge, that is to say, a less serious offence than that which the accused was
61 See para [45] of the SCAs judgment.

originally charged with,63 and order that a trial de novo be instituted in terms of
section 322(4) read with section 324 of the CPA.64
47. The SCA, however, instead of ordering a trial de novo, may exercise any of the
powers conferred upon it by section 322(1) of the CPA, the provisions of which read
as follows:65
In the case of an appeal against a conviction or of any question of law

reserved, the court of appeal may (a)
allow the appeal if it thinks that the judgment of the trial court should
be set aside on the ground of a wrong decision of any question of
law or that on any ground there was a failure of justice; or
(b)
give such judgment as ought to have been given at the trial or

impose such punishment as ought to have been imposed at the trial;
or
(c)
make such other order as justice may require:..
48.The Court of Appeal, then, in the case of any question of law reserved, may in terms
of section 322(1 )(b) of the CPA give such judgment as ought to have been given at
the trial,whichincludes setting aside the conviction of the trial court
the accusedon
and convicting
a more serious crime, provided that the accused was originally
charged therewith.66
63 Ibid at paras [5]-[9] and [46], as conceded by Counsel for the Applicant in the SCA.
64 Compare, for example, Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217
(SCA) at para [34].
65 See paras [43]-[47] of the SCAs judgment.
66 Compare S v E 1979 (3) SA 973 (A) at 976A-B, 977D-E; E du Toit, FJ de Jager, A Paizes, A St Q Skeen
& S van der Merwe (gen ed) Commentary on the Criminal Procedure Act (RS 54 2015) 31-42A.
49.lt is submitted that there is nothing from the wording of section 322(1) of the CPA to
suggest that the SCAs power of giving such judgment as ought to have been given at
the trial, in the case of... any question o f law reserved, is confined or limited in a
State appeal solely to questions of law reserved in terms of section 319 of the CPA
and that the Court of Appeal is precluded in such substituted judgment from
reconsidering factual findings made by the trial court.67 This was not the argument of
the Applicant during the hearing of the appeal in the SCA, not in viva voce argument
and neither in its Heads of Argument.
It is reiterated that it is an ineluctable
consequence that the correct application of the legal principles and the consideration
of facts that were erroneously ignored by the trial Court will impact on the secondary
factual findings of the trial Court.
50. In the Appellate Division decision of S v E, Corbett JA (as he then was), writing for
the Court, held that where the Court of Appeal is convinced that the trial court, by
reason of a wrong factual finding or a mistake in law, convicted an accused on a less
serious offence than that which the accused was originally charged with and which
the accused ought to have been convicted of, the Court of Appeal is empowered in
terms of section 322(1 )(jb) of the CPA to alter the conviction to one on the more
serious charge accordingly.68
51.lt is axiomatic that where the SCA decides to give such judgment that the trial court
ought to have given, the SCA would be entitled to proceed to conduct a reappraisal or
reassessment of the secondary factual findings of the trial court and/or relevant legal
principles so as to ultimately give such verdict as ought to have been given by the
court a quo. As the Appellate Division pertinently affirmed, per Corbett CJ, in S v
67 Emphasis added.
681979 (3) SA 973 (A) at 977D-E.
YT\W\
34
'
036
Morgan and Others, the Court of Appeal may substitute a conviction for a different or
more serious offence generally on the basis of the facts found by the trial Court, or
the undisputed facts or the appellants own evidence"69 Corbett CJ endorsed the
approach that the Court of Appeal may in these circumstances draw a different
inference from the evidence as a whole, and remarked that this is essentially what
happened in S v E [referred to supra]70 In other words, the SCA in exercising its
power in terms of section 322(1 )(b) of the CPA, may reach a different secondary
finding or inference based on the primary facts found proved by the trial court.71
52. In the analogous Appellate Division case of S v September,72 the appellant stood
trial in a Provincial Division on charges of murder, assault with intent to do grievous
bodily harm, theft and malicious injury to property.
The trial Court found that the
appellant, at the time of the commission of the offences, was under the influence of
liquor and possibly also drugs, that the appellant lacked criminal capacity because of
his state of intoxication and that he was accordingly guilty of a contravention of
section 1(1) of the Criminal Law Amendment Act 1 of 1988. On appeal, it was argued
on behalf of the appellant that the evidence was indeed of such a nature as to cast
doubt on the appellants criminal capacity and that the trial Court correctly found that
the appellant could not be convicted.
It was, however, further argued that positive
proof of a lack of criminal capacity was absent and that the appellant could
accordingly not have been convicted of contraventions of section 1(1) of Act 1 of
1988.
The Court of Appeal discussed and confirmed the principles applicable to
69 1993 (2) SACR 134 (A) at 162e (emphasis added).

70 Ibid at 162e-f (emphasis added).
71 For a distinction between the inferential process directed at determining a fact (often referred to as a
secondary fact), on the one hand, and a primary fact found proved, on the other, see the decision of this
Honourable Court in S v Basson 2004 (1) SACR 285 (CC) at para [49].
721996 (1) SACR 325 (A).
35
'
037
section 1(1) of Act 1 of 1988 and stressed the fact that it was the task of the trial
Court, in every particular case, to decide whether the accused indeed lacked the
requisite criminal capacity. The court identified certain shortcomings in the court a
quos application of the legal principles pertaining to the evaluation of evidence
relating to criminal capacity.
In view of these shortcomings, the Appellate Division
invoked the provisions of section 322(1 ){b) of the CPA and applied S v E supra,73 and
held that the evidence, as a whole, had accordingly to be assessed anew.74 The
legal representatives of the parties were also requested to submit argument on the
question of whether the appellant should not, in the first instance, have been
convicted on the original counts. After reassessing the evidence the Appellate Court
found that no reasonable doubt had been cast on the appellants criminal capacity.
The evidence was furthermore sufficient to lead to the conclusion that the appellant
was, beyond reasonable doubt, guilty of committing the crimes that he was originally
charged with.75 The Court of Appeal thus set aside the convictions of contraventions
of section 1(1) of Act 1 of 1988 and substituted convictions on the original, more
serious charges.76
53. The apposite Appellate Division case of R v Von Elling involved an appeal upon a
question of law reserved by a Special High Court.77 The accused, von Elling, was
charged with theft but found guilty of being an accessory after the fact to the crime of
theft. The trial Court reserved for the decision of the Court of Appeal a question of
law, namely whether that Court had jurisdiction to convict the accused of being an
accessory after the fact to the theft. The Appellate Division affirmed that the question
73 Ibid at 330c-/.
74 Ibid at 330/.
75 Ibid at 330/-334d.
76 Ibid at 334/-335a.
77 1945 AD 234.
jETVVA
36
'
038
reserved had to be answered in the negative, but then proceeded to consider the
practical effect of this answer on the proceedings in the case. The Court, per Tindall
JA, pointed out that the accused had pleaded not guilty and that evidence was
adduced at trial which in fact implicated the accused in the theft.
The State
contended on appeal that since the evidence proved that the accused played a part in
the theft, the Court of Appeal ought to substitute a verdict of guilty of the crime of theft
in the place of the incompetent verdict of guilty of being an accessory after the fact to
that crime. The Court of Appeal observed that the predecessor to section 322(1 )(>)
of the CPA empowered the Court to substitute the correct verdict for that given by the
trial Court. That being so, Tindall JA held that it was necessary to state the effect of
the evidence relevant to the liability of von Eiling which was accepted by the Special
High Court.78 The Court of Appeal thereupon proceeded to deal with the evidence
presented at trial, as well as the trial Courts factual findings, and ultimately came to
the conclusion that the evidence showed that the accused was guilty of theft. Since
the accused was charged with theft, and since, as the Court of Appeal found, his acts
showed that he committed theft, it was held by the Court of Appeal that the correct
course [was] to substitute a verdict of guilty of theft.79 The Court of Appeal therefore
made the following order: The question reserved is answered in the negative. The
verdict of guilty of theft is set aside and a verdict of guilty of theft substituted
therefor.80
54. In the present matter, the SCA answered the first two questions of law reserved in the
States favour.
These questions related respectively to the trial Courts incorrect
78ibid at 243 (emphasis added).

79 Ibid at 251-252.
80 Ibid at 252.
CT\
37
039
application of the principles of dolus eventualis, including error in objecto, and

incorrect conception and application of the legal principles pertaining to circumstantial
evidence and multiple defences by an accused.81
55. The SCA then pertinently dealt with the question of what that Court was required to
do in the light of these findings; in other words, as in Von Elling supra, what the
practical effect was of the answers to the questions of law reserved on the
proceedings in the case.82 The SCA considered that it was required to set aside the
conviction of culpable homicide and either order that the Applicant be tried de novo
on the murder charge as framed in the indictment or to act in terms of section 322(1)
of the CPA.83 Having found that it was wholly impracticable and not in the public
interest to order that a trial de novo be instituted, and particularly where neither the
State nor the Applicant pressed for such an order,84 that meant that the SCA was
required to act in terms of section 322(1) of the CPA. As mentioned above, counsel
for the Applicant in the SCA argued that such Court should exercise its discretion
under s 322 to make no further order."85 However, the SCA found that such would
also be undesirable, holding that:86
The interests of justice require that persons should be convicted of the actual
crimes they have committed, and not of lesser offences. That is particularly so in
crimes of violence. It would be wrong to effectively think away the fact that an

83 Ibid at paras [43]-[47].
61M
38
040
accused person is guilty o f murder if he ought to have been convicted of that

offence
56.The SCA accordingly found that the option which most readily presented itself as
being in the interests of justice was to set aside the conviction of culpable homicide
and to consider whether on the facts found proved, the trial court erred in drawing
the inference it did as to dolus eventualis, so as to give such judgment as the trial
Court ought to have given in terms of section 322(1 )(>) of the CPA.87 The Court, per
Leach JA, proceeded to observe in this respect:88
This is so as in an appeal of this nature this court is in as pood a position as the

trial court in drawing inferences of fact from proven facts. In my view, then, the
interests o f justice require this court on an acceptance o f the facts found proved, if
o f the view that the incorrect conclusion was reached in respect of dolus, to set
aside the conviction of culpable homicide on count 1 [the murder charge as per
the indictment]. The pertinent issue then becomes whether, on the primary facts
found proved, considering all of the evidence relevant to the issue, and applying
the correct legal test the inference has to be drawn that the accused acted with
dolus eventualis when he fired the fatal shots.89
57.This approach adopted by the SCA in reassessing the question of whether the
Applicant had dolus eventualis when he shot and killed the deceased, in order to give
such judgment as the trial Court ought to have given in terms of section 322(1 ){b) of
the CPA, accords with the same procedure or approach enunciated and endorsed or
87 Ibid at para [46] (emphasis added).
88 Ibid at paras [46]-[47] (footnote omitted).
89 Emphasis added.
39
04 1
followed in the above-mentioned dicta of Von Elling, S v E, S v Morgan and Others,

and S v September. The SCA was empowered in terms of section 322(1 )(b) of the
CPA to substitute a conviction of murder for the conviction of culpable homicide (ie. to
alter the conviction on the less serious charge to a conviction on the more serious
charge in accordance with Von Elling, S v E and S v September supra), if it found,
as the trial Court ought to have found, that the Applicant had dolus eventualis when
he killed the deceased.
58. It follows therefore, with respect, that the Court of Appeal was required to deal with
the factual issue of whether putative private defence which excludes dolus could be
relied on by the Applicant, an aspect which was strongly pursued by the Applicant not
only at trial but also before the SCA in argument. In other words, in accordance with
the procedure enunciated in the Appellate Division decisions of Von Elling, S v E, S
v Morgan and Others, and S v September supra, the SCA in the present matter had
to reassess the primary factual findings made by the trial court or facts found proved,
as well as the relevant legal principles, in deciding whether the Applicant could rely on
the defence of putative private defence.
59. In any event, with respect, it can be argued that the matter of putative private defence
is an issue that was connected90 to the first question of law reserved pertaining to
the correct application of the principles of dolus eventualis, and consequently did not
fall outside the purview of the nature of the States appeal in casu.
90
Section 168(3)(6)(ii) of the Constitution.
fctW\
40
042
60. In the circumstances, it is respectfully submitted that the first, main contention by the
Applicant that the SCA exercised it powers in terms of section 322(1) outside the
ambit of the States appeal in terms of section 319 of the CPA, is without merit and
contrived.
PURPORTED ERRORS OF LAW
61.The Applicants submissions as encapsulated in para [14] of Fawcetts founding

affidavit, that the SCA was mistaken as to the law on dolus eventualis and knowledge
of unlawfulness, is without merit and contrived.
62.
Putting aside the other defences raised by the Applicant, it is crucial to recognise that
putative private defence in the context of this case, requires that a compound
question be considered - taking account of three considerations, which we address in
more detail below:
62.1.
62.2.
That the form of fault in issue is dolus eventualis;
That - on the version of the Applicant - this was a scenario of error in

objecto;
62.3.
That putative private defence is a simple application of the principle that the
fault requirement of a crime must extend to all of the material requirements
of the actus reus.
Etw
043
41
63. It is only once the compound nature of the appropriate question is appreciated that
the ultimate question can be formulated together with the manner in which this
question must be answered. This is crucial because it gives rise to questions that
were not asked by the trial court, but which were clearly engaged with and answered
by the Supreme Court of Appeal (discussed below).
It is respectfully argued that
once this is appreciated, it becomes clear that the Supreme Court of Appeals
judgment is beyond reproach.
DOLUS EVENTUALIS
64.The form of fault that is in issue in this case is dolus eventualis. The requirements of
this form of fault are well recognised in our law, stretching back to 1953 in R v
Heubsh91 and 1958 in R v Horn,92 confirmed in the case of S v Ngubane,93 and
most recently in S v Humphreys94 and again in S v Brown.95
Following Ngubane, it consists in:
64.1.
Foresight;
64.2.
Recklessness (also known as the volitional component), including:
91 1953
92 1958
93 1985
94 2013
95 2015
(2) SA 561 (A).

(3) SA 457 (A) at 465.
(3) SA 677 (A).
(2) SACR 1 (SCA).
(1) SACR 211 (SCA) at para [104].
42.
044
64.2.1 Reconciliation with or consent to the foreseen risk (also known as taking
the risk into the bargain); and
64.2.2 Persisting or proceeding -
reckless as to whether the foreseen risk
eventuates.96
65. There is no dispute in our law that this is the accepted formulation of doius eventualis.
There is some academic debate as to the purpose served by the second requirement
(reconciliation with or consent to the foreseen risk) listed here,97 but nowhere is there
any authority in any case-law or mainstream academic literature to the effect that
dolus eventualis is or should be formulated as the Applicant argues it is or should be,
namely as follows:
65.1.
65.2.
Foresight and reconciliation; and
Knowledge of unlawfulness.98
66. Indeed, Jonathan Burchell correctly points out that knowledge of unlawfulness is the
second principal element of fault (mens re a j, whereas intention in whatever form
(idolus directus, dolus indirectus or dolus eventualis) is the first principal element of
fault (mens rea).99 What the Applicant seeks to do impermissibly is to confuse or
conflate the second element of fault, namely knowledge of unlawfulness, with the
first element of fault, namely dolus. It is, however, well-settled in our common law
96 S v Ngubane 1985 (3) SA 677 (A) at 658F-G.
97 R C Whiting Thoughts on dolus eventualis' (1988) 1 SACJ 440; Paul T. Smith 'Recklessness in Dolus
Eventualis' (1979) 96 SALJ 92-3.
98 See paras 14.1 and 50ff of Affidavit in Support of Application for Leave to Appeal.
99 J Burchell Principles of Criminal Law 4 ed (2013) 345.
43
that knowledge of unlawfulness Is a separate and distinct element to that of dolus,

and is thus not a component of dolus.
Only once it is established that dolus is
present, would one then determine whether the separate element of fault, namely
knowledge of unlawfulness, is also present.
If dolus is found to be absent, a
determination of whether there was knowledge of unlawfulness is naturally rendered

entirely nugatory. This is the long-established principle in South African law. The
Applicant, nonetheless, without any substantiation in law, introduces an entirely alien
and anomalous conception of dolus, and for that matter, for the first time for judicial
consideration in this Honourable Court (effectively then as a Court of first instance).
67. Furthermore, to the extent to which the submission appears to be that the Supreme
Court of Appeal failed to enquire into the knowledge of unlawfulness of the conduct in
question, it fails to observe that the Supreme Court of Appeal did indeed concern
itself with this question in considering the Applicants defence of putative private
defence.100
68.There is therefore nothing of any substance in the argument of the Applicant, save to
enable it to argue that the Supreme Court of Appeal made an error. The purpose of
this argument is to open the way for an appeal to this Honourable Court, which we
submit, ought not to be entertained.
69.
It is respectfully submitted that the law is clear, that there has been no deviation from
the accepted definition of - and application of the principles of dolus eventualis. The
mere argument of the existence of a new definition of dolus eventualis without any
100See paras [52]-[55] of the SCAs judgment.

pTlN\
44
046
support in case-law or respected and accepted legal writing should not, with respect,
constitute a valid ground for appeal.
70.1 have endeavoured to focus my submissions on the stated errors of law and in the
process have dealt in more particularity with the legal principles pertaining to the
Applicants grounds of appeal.
I do, however, wish at this stage to draw this
Honourable Courts attention to the primary facts found proved by the Court a quo, as
delineated in paras 18 and 19 of our Heads of Argument filed in the SCA.
We
reiterate that the only conceivable inference that could be drawn on the facts found
proved and on a consideration of the erroneously ignored evidence, is that the
Applicant acted with dolus eventualis. The SCA agreed as much.101
71.1 have for purposes of this affidavit summarised the main arguments in opposition to
the Applicants application for leave to appeal, but respectfully refer this Honourable
Court to the exposition of the legal principles governing dolus eventualis and error in
objecto as set out in our Heads of Argument filed in the SCA, at paras [39]-[60].
101See paras [50] and [54] of the SCAs judgment.
6 ^
047
45
ERROR IN OBJECTO
72.The scenarios of aberratio ictus and error in objecto are clearly distinguishable, and
indeed, a distinction is drawn between these two concepts in South African law.
73.
In the Supreme Court of Appeal, the Applicant argued that a distinction must be
observed between being mistaken as to the identity of a victim as opposed to where
an accused mistakenly consciously excludes the prospect that a particular person
could be the actual victim.102 The reasoning is, we submit, fallacious.
Our law is
clear: if A shoots and kills C, thinking that C is B, this constitutes error in objecto and
this error is no defence. The Applicant argued that it should somehow matter if A
thought that C was somewhere else (in the bedroom), and thereby consciously
excluded C (as the person in the toilet).
74. What the Applicant did not observe is that it is in the nature (indeed it is require by
definition) of being mistaken in killing C, when one thinks that one is killing B, that one
thinks that C is not B.
It is essential to the mistake that one has excluded the identity
of the actual victim from the actual victim. This is the very essence of the mistake. It
cannot be the basis for the recognition of some exception within the settled law that
an error in objecto is no defence.
75. In spite of the SCA correctly identifying this aspect as a fundamental error103 the
Applicant persists in the argument, before this Honourable Court, that the identity of
the victim is somehow relevant:
102 See para 61 of the Applicants Heads of Argument.

46
048
The Trial Court found that at the time of the discharging of the shots the Applicant
believed that the Deceased was in the bedroom. This negated any possibility that
the Applicant foresaw and reconciled himself with the death of the Deceased. It is
in this respect that dolus eventualis could not be found on the facts.104
76. The Applicants submission here seeks to maintain the relevance of an error in
objecto by transferring the intention to lawfully kill the intended victim onto the actual
victim. This is contrary to the settled position that in the context of error in objecto,
the identity of the victim is entirely irrelevant. It is so at odds with settled principle that
it strays into the territory of the law relating to aberratio ictus in which, against the
weight of the prevailing authority,105 the Applicant argues that the intention to act
lawfully against one person should be transferred to the actual victim.
77.As we have argued, this submission is wrong in settled law on the several grounds
set out above, but even if correct, it appears to turn ultimately on the argument that
the Supreme Court of Appeal failed to properly consider whether the Applicant had
knowledge of unlawfulness. This, again, is, with respect, a spurious argument.
78.The SCA considered the defence of lack of knowledge of unlawfulness - which is the
defence of putative private defence towards the end of its judgment in considering
104 See para 37 of Affidavit in Support of Application for Leave to Appeal. See also paras 34 (where the
Applicant submits that error in objecto was only irrelevant because he lacked knowledge of unlawfulness which suggests that error in objecto is otherwise relevant), 35, 38, and 80 of Fawcetts affidavit.
105 S v Mahunga 1981 (1) SA 57 (A); S v Mtshiza 1970 (3) SA 747 (A); Snyman Criminal Law 6ed (2014)
194.
049
whether the Applicant was genuinely mistaken as to the unlawfulness of killing
whoever was in the toilet.106
79. Therefore, the suggestion that error in objecto was or could be relevant is ill-founded,
strays into the domain of aberratio ictus and invokes the doctrine of transferred intent
or malice (against the weight of authority), and, in any event, such substance as may
be extracted from the submission was addressed by the Supreme Court of Appeal
and rejected.
80. There is nothing of any substance in the argument of the Applicant.
PUTATIVE PRIVATE DEFENCE
81. The defence of putative private defence is a simple application of the principle that
the fault requirement of a crime must extend to all of the material requirements of the
actus reus of the crime in question.107
82.The SCA, with respect, correctly found that in order to bring the accused within the
ambit of putative private defence he must have intended to shoot at the person whom
he thought posed a danger to him. The Applicant testified that he did not intend to
shoot at whoever was inside the toilet and thus he fell outside of the ambit of the
defence of putative private defence.108
106 See paras [52]-[55] of the SCAs judgment.

107 J Burchell South African Criminal Law and Procedure: General Principles of Criminal Law 4 ed
Vol 1 (2011) 220-221; A Paizes Mistake as to the Causal Sequence' and 'Mistake as to the Causal Act':
Exploring the relation between Mens Rea and the Causal Element of the Actus Reus (1993) 110 SALJ
493; S v Goosen 1989 (4) SA 1013 (A); R v Mbombela 1933 AD 269; R v Churchill 1959 (2) SA 575 (A).
48
050
83.The fault requirement for murder, encompasses numerous requirements, including

that the accused must intend to:
83.1.
kill, as opposed to merely harm;
83.2.
kill a human being, as opposed to some other thing, such asa tokelosh;109
83.3.
kill another human being as opposed to oneself; and
83.4.
unlawfully kill another human being, as opposed tolawfully
killing another
human being.
84.This is all trite and, contrary to the submission of the Applicant,110 precedes even the
decision in S v De Blom 111 - which decided the point that the fault requirement must
go further and extend to the general prohibition of the crime.112
85.
Given that the defence of putative private defence is a simple application of the
principle that the fault requirement of a crime must extend to all of the material
requirements of the actus reus of the crime in question, the defence of putative
private defence, in the context of murder, asks the question whether dolus, of
whatever form, extends to the unlawfulness requirement.
86.The SCA did engage in the enquiry as to whether the accuseds fault, in the form of
dolus, extended to the unlawfulness requirement. It enquired whether the Applicant
109 R v Mbombela 1933 AD 269.

110 See para 54 of Affidavit in Support of Application for Leave to Appeal.
111 S v De Blom 1977 (3) SA 513 (A).
112 See, in general, the decisions of R v Mbombela 1933 AD 269; R v Churchill 1959 (2) SA 575 (A); S v
Botes 1966 (3) SA 606 (O); S v Mokoena 1976 (4) SA 162 (O) for an application of the principle to
knowledge of unlawfulness - all predating De Blom in 1977.
k \ W \
C0
051
49
was genuinely mistaken as to the unlawfulness of his conduct and concluded that he
was not113.
87.The Supreme Court of Appeals discussion reveals that not only did it define and
conceptualise each element of the ultimate question before it correctly, but it applied
the law in a logical and coherent step-by-step fashion.
This led it to answer the
ultimate question which arises in the context of error in objecto, where the defence of
putative private defence had been raised and the form of the intention in question is
dolus eventualis: did the accused foresee the possibility that he could unlawfully kill
whoever was behind the door, and did he accept this risk and proceed nevertheless?
88.The Supreme Court of Appeal answered this question in the affirmative - he did
indeed at least foresee the risk of unlawfully killing whoever was behind the door, he
accepted that risk and proceeded nevertheless. This, the Supreme Court of Appeal
correctly found, makes the Applicant guilty of murder.
OBJECTIVE CONSIDERATION
93. The applicant also argues that the SCA impermissibly introduced objective
considerations into its enquiry for intention by referring to the rational person to
determine the subjective state of mind of the applicant114 for the purposes of judging
his claim of putative private defence. We immediately stress that the term reasonable
person was not used.
113 See para [53]-[55] of the SCAs judgment.

114 See paras 14.3 and 62ff of Affidavit in Support of Application for Leave to Appeal.
50
052
94. However, it is, with respect, clear that the SCA rejected the defence of putative
private defence on the basis that the Applicant could not rely on such defence. The
ratio of the SCA is as follows:115
The immediate difficulty that I have with the accuseds reliance upon putative
private defence is that when he testified, he stated that he had not intended to
shoot the person whom he felt was an intruder. This immediately placed himself
beyond the ambit of the defence, although as I have said, his evidence is so
contradictory that one does just not know his true explanation for firing the
weapon. His counsel argued that it had to be inferred that he must have viewed
whoever was in the toilet as a danger. But as was pointed out in De Oliviera,116
the defence of putative private defence implies rational but mistaken thought.
95. Reference to the rational person is obiter and must be understood in light of the
reference to De Olivieras decision. I submit that it is clear, with respect, that such a
reference is derived from what was said in De Oliviera, to the effect that the defence
of putative private defence is a rational defence - one in which the accused asserts
that he was mistaken but rational.117 Rational in this context connotes goal directed
conduct.
96.1submit further that the Supreme Court of Appeal clearly applied a subjective test and
concluded that the Applicant acted with dolus eventualis in causing the death of the
deceased.118

116 S v De Oliveira 1993 (2) SACR 59 (A) at 65d.
117 Ibid at 65d.
"6
OS
51
053
97.The SCA did not evaluate and assess the version of the Applicant against that of a
reasonable person standard, but by referring to the rational person, suggested the
view that the Applicants version
as testified
inconceivable" that it could not be accepted.
to was so
preposterous
or
In any event, as was held in S v
Beukes en n Ander, the trial court draws an inference concerning the accuseds
state of mind from the facts which point to it being reasonably possible, objectively
seen, that the consequences would eventuate.119
98.
What is material ultimately is that the SCA found as follows on the subjective state of
mind of the Applicant at the relevant tim e:120
Consequently, although frightened, the accused armed himself to shoot if

there was someone in the bathroom and when there was, he did. In doing so he
must have foreseen, and therefore did foresee that the person he was firing at
behind the door might be fatally injured, yet he fired without having a rational or
genuine fear that his life was in danger
99. These comments must be read against the requirements of putative private defence
as illustrated in De Oliviera, and are the basis on which the court drew legitimate
inferences.121
1191988 (1) SA 511 (A) at 522C-D (emphasis added).

120See para [54] of the SCAs judgment.
121 Burchell Principles of Criminal Law supra 353ff; S v Humphreys 2013 (2) SACR (SCA) at paras [13][14].
89. Additionally, the applicant alleges that the Supreme Court of Appeal impermissibly
relied upon a defunct presumption - that one is presumed to intend the natural
consequences of ones conduct.
90. We submit that the court engaged and relied upon the natural consequences of ones
conduct as giving rise to a natural inference as opposed to giving rise to a
presumption.
There is no mention of any presumption and nothing impermissible
about relying on a set of facts as giving rise to a natural inference.122
CONCLUSION
91. In light of the afore-going, the Applicant submits that leave to appeal should not be
a
granted.
122 Hosegood v Hosegood (1950) 66 (Pt 1) TLR 735 at 738; S v De Bruyn 1968 (4) SA 498 (A); DT
Zeffertt & AP Paizes The South African Law of Evidence 2 ed (2009) 200-1.
53
055
DEPONENT
THUS SIGNED AND SWORN TO before me at PRETORIA on this 22nd day of January
2016 by the deponent who acknowledges that she knows and understands the contents
of this affidavit; that it is the truth to the best of her knowledge and belief and that she has
no objection to taking the prescribed oath and regards same as binding on her
conscience.
2016 -01- H
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COMMISIONER OF OATHS
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IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
CASE NO.: 96/2015

\
In the matter between

GAUTENG
Appellant
and
Respondent
THE APPELLANTS MAIN HEADS OF ARGUMENT
Page 2 of 43
057
INTRODUCTION:
1.
In the Gauteng High Court, the Honourable Justice Masipa, acquitted the accused
(Respondent) on the main count of murder (count 1) but found (him) guilty of culpable
homicide. 1
2.
On application by the Appellant (State) the Court a quo reserved the following questions
of law for the consideration of the Supreme Court of Appeal:
4.1 Whether the principles o f dolus eventualis were correctly applied to the accepted
facts and the conduct o f the accused, including error in objecto.
4.2 Whether the Court correctly conceived and applied the legal principles pertaining
to circumstantial evidence and/or pertaining to multiple defences by an accused.
4.3 Whether the Court was correct in its construction and reliance on an alternative
version of the accused and that this alternative version was reasonably possibly
true ... 2
2.1.
We anticipate argument by the Respondent that the Court a quo was wrong in
her finding that she is "satisfied that the points raised by the Applicant... are
indeed questions of law.
1 Record page 1730 L 11-14

2 Record page 3244
Page 3 of 43
2.2.
Furthermore, we anticipate that the reservation of a question of law in

instances where there were convictions on a competent verdict will also be
argued.
3.
We respectfully argue that not only the fragmented approach in evaluating the
circumstantial evidence but more importantly the exclusion of circumstantial evidence
certainly constitutes a question of law. This, on its own, qualifies as a question of law
which entitles the Appellant to argue that the Court a quo was wrong in its acquittal of the
Respondent on a charge of murder.
PROCEDURAL ASPECTS
Acquittal: The Seekoei hurdle
4.
We acknowledge that S v Seekoei 1982 (3) SA 97 (A) (See/coe/) may be interpreted to
prohibit the State from reserving a question of law in a case where there was a conviction
on a competent verdict.
4.1.
We respectfully submit that in casu the Court a quo did not follow Seekoeis
interpretation that the charge of murder is a single charge of which various
convictions are possible.3 The Court a quo found the accused not guilty and
discharged him on the charge of murder.
3 3 Seekoei p 103 : "... is daar in werklikheid slegs een aanklag, waarop verskillende beskuldigings uitgebring kan
word...
EM
Page 4 of 43
4.2.
g^cj
We respectfully argue that competent verdicts require a Court to read into a

charge several alternative charges. Section 258 of the Criminal Procedure Act
No 51 of 1977 (the Act) merely excludes the requirement that the State has
to include a long list of alternative charges in the indictment.
4.3.
We respectfully argue that it would be absurd to find that if the Respondent

had charged the accused with murder and with culpable homicide as an
alternative count, a reservation of a question of law would be possible but
following a conviction on a competent verdict of culpable homicide then
prohibits such.
The Court in Seekoei specifically left the question open as to a possible

conviction on an alternative count.4
4.4.
Unlike the accepted procedure where a Court first decides the question of the
accuseds guilt on the main count before it focuses on the competent verdicts,
it is conceivable that on the Seekoei definition the Court may convict an
accused on a lesser charge, even if the more serious charge was proven.
4.5.
For a Court not to convict on the proven main count would be wrong in law. If
the Court holds the opinion that the circumstances warrant leniency, then the
4 Seekoei p 104 :'... dit is nie nodig om in te gaan op die vraag of dieselfde posissie geld in die geval waar iemand ...
op n alternatiewe aanklag skuldig bevind word nie ...
Page 5 of 43
^ 6 0
leniency may be applied with regard to sentence but not by convicting on a

lesser count.5
5.
The Court in Seekoei, with reference to R v Gani and Others 1957 (2) SA 212 (A), found
that the Court of Appeal will have no option but to order a new trial if the Court of Appeal
found that the Court a quo wrongly decided a point of law.
5.1.
We respectfully argue that not only was the ratio based on an incorrect
reading of Gani, but also an incorrect reading of the provisions of s322(4) of
the Act.
5.2.
We furthermore argue that s322(1)(b) and (c) of the Act specifically provided
. the Court of Appeal with a discretion.
6.
Section 322(4) adopts the word may and not m usf and is therefore discretionary.
7.
In Gani, the Court recognised that only if an order under the equivalent of s322(4) was
given could a fresh trial be instituted. This, with respect, does not mean that the only
option is a re-trial. An order under s322(4) is a necessary but not sufficient'condition.6
5 S v Hartmann 1975 (3) SA 532 (C).

6 Quote Gani R v Gani and Others 1957 (2) SA 212 (A)
Page 6 o f 43
'
061
We re-iterate and respectfully submit that s322(1b) empowers the court of appeal to
...give such judgements as ought to have been given at the trial..
8.
We respectfully argue that Seekoei was wrongly decided and if not, that the
Constitutional Courts decision in S v Basson 2007 (1) SACR 566 (CC) provides a post
constitutional interpretation of s319(1) which led the Court to find that the legislative
history of s319(1) indicates that its purpose was, amongst others, to allow the State to
appeal on a point of law by requesting the reservation of a question of law.
8.1.
The Court found at 621 a - d that s319 was never intended to provide the
State with a right to appeal a question of law in limited circumstances.
9.
We respectfully argue that the Basson judgment renders the distinction between acquittal
and / or conviction in Seekoei invalid.
QUESTION OF LAW OR FACT
10.
We respectfully acknowledge that it may be difficult to distinguish between clear
questions of law and fact.
Page 7 of 43
062
11.
We acknowledge that the Courts finding in Magmoed v Janse van Rensburg and
Others 1993 (1) SA 777 A, may be viewed as an obstacle to our argument in convincing
this Court that the Court a quo was correct in its formulation of the questions of law.
There is however no question of common purpose that may cloud the issues but the
court correctly found that the Court has discretion to order a trial de novo7
12.
We respectfully submit that the Court a quo was correct in her finding and in line with the
ratio in Magmoed that the essence of the questions (questions 1 and 2) is whether the
proven facts, as found by the Court, constitutes the crime of murder.8
12.1.
We are unable to argue that the Court erroneously made factual findings upon
which the principles of dolus eventualis should be applied. The application of
the principles of dolus eventualis to the facts cannot, in our submission, be
viewed as a factual issue.
12.2.
We respectfully intend to illustrate our argument by means of a hypothetical

set of facts: that is to say if the facts were that the accused armed himself,
walked to the bathroom, aimed the gun at the head of the deceased and fired
four shots shouting die die, we would not have, with respect, any difficulty to
argue that a finding of culpable homicide amounts to an erroneous application
of the law.
7 Magmoed p 827 G - 828 C

8 Magmoed p 799 I - J
Page 8 o f 43
13.
'
063
In Magmoed the Court accepted that the exclusion of evidence was clearly a question of
law.9
13.1.
We found support in Rex v Thibani 1949 (4) SA 720 (A) where the Court
found at 729: ... whether they establish the crime of murder or only culpable
homicide. This is a question of mixed fact and law ...the Crown has to prove
the intention to kill, but this expression has an extended or legal meaning ...
13.2.
In DPP Transvaal v M tshw eni,10 this court found that a mistake of law had
been made where the court a quo failed to call a ballistic expert in terms of the
provisions of s186 of the Criminal procedure act.
14.
The Court in Magmoeds finding that: [qjuestions concerning the admissibility of
evidence are clearly questions of law ...11 strengthens support for the argument that the
questions of law were correctly reserved by the Court a quo
15.
This will receive apposite attention later, but for now we argue that the fragmented
approach in dealing with the circumstantial evidence and the exclusion of certain portions
9 Magmoed supra at 781 G

10 2007(2)SACR 217 (SCA)
11 Magmoed p 784c-d
STM
pa g e 9 f 4 3
of circumstantial evidence are clearly issues of legal application and issues of substance
and not merely an academic discussion.
15.1.
The Courts finding that the trial Court erroneously excluded evidence will
have "a practical effect upon the outcome of the trial.12
16.
We furthermore argue that should it be found that the Court incorrectly applied the
principles of dolus eventualis then a conclusion that the Respondent should have been
convicted of murder is, with respect, inescapable.
17.
If the Court applied the legal principles pertaining to multiple defences by an accused
wrongly, then a finding that the accuseds version was reasonably possibly true would be
impossible and if reliance should then have to be placed on the objective facts, which is
our submission, then it will result in a conviction on murder.
FINDING OF FACT
18.
The following findings are, in our respectful submission, relevant and should be used as
the reference point on the question as to whether the Court a quo correctly applied the
principles of dolus eventualis to the accepted facts (Question 4.1).
12 Magmoed p 783 G-H and 823 H - J
Page 10
18.1.
of 43
065
The Respondent armed himself with a loaded firearm and approached what
he thought was danger, with a firearm ready to shoot.13
18.2.
He knew where he kept his firearm, which was on the opposite side of the bed
where he slept on the evening of the incident
18.3.
The Respondent passed the bedroom door on his way to the bathroom.
18.4.
The Respondent walked from the bedroom to the bathroom.
18.5.
He had to cock his firearm.14
18.6.
The Respondent, while on his stumps, fired four shots at the toilet door.
18.7.
Three of the four shots struck the deceased and she died as a result of
multiple gunshot wounds.
18.8. The toilet door was hinged to open outwards, that is to say into the bathroom
and was locked from the inside.15
18.9. The Respondent knew there was a person behind the closed door.
18.10. The Respondent fired not one but four shots into the toilet door.
18.11. "The accused clearly wanted to use the firearm and the only way he could
have used it was to shoot at the perceived danger.*6
19.
During sentence the Court expanded on the accepted facts and at page 1757-1758
confirmed the following findings:
19.1. The Respondent knew there was a person behind the door when he fired the
shots.
13 Record page 1696 L 8 -13

14 Record p 98112 -7
15 Record page 1666 L 8 -1667 L 3
15 Record page 1697 L 4 - 6
Page 11 of 43
19.2.
,Q
The Respondent deliberately fired shots into the door with the aim to shoot
the intruder 17
19.3.
The Respondent knew when he fired the shots that: The toilet was a small
cubicle. An intruder would have had no room to manoeuvre or to escape.18
19.4.
The Respondent was trained in the use of firearms.
We argue that the only conceivable finding based on the abovementioned facts could at
a minimum be that, In arming himself, walking to the bathroom with the intention to shoot,
whilst knowing that there is a person behind a closed door of a small cubicle and
intentionally firing four shots, should be that he intended to kill the person in the cubicle.
The application of the principles of dolus eventualis to this summary of the accepted facts
can only result in a finding that he acted with, at the very least, dolus eventualis.
CIRCUMSTANTIAL EVIDENCE:
20 .
It is the appellants respectful submission that besides the formal admission by the
respondent that he shot and killed the deceased, which fact gave rise to the charge of
murder (count 1), the appellant relied on circumstantial evidence to prove its case
against the accused on the said charge.
20.1.
It is respectfully submitted that this Honourable Court in R v Blom held that for
a conviction to be justified on circumstantial evidence:19
17 Record page 1758 L 1 - 4

18 Record p 1758 L 5 - 9
Page 12 of 43
(1)
0 6 7
The inference sought to be drawn must be consistent with all the

proved facts. If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
20.2.
It is respectfully submitted that in R v De Villiers, this Honourable Court found

that in assessing circumstantial evidence, the following approach is to be
adopted:20
The Court must not take each circumstance separately and give the
accused the benefit of any reasonable doubt as to the inference to be
drawn from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after it has done so that the accused is
entitled to the benefit of any reasonable doubt which it may have as to
whether the inference of guilt is the only inference which can reasonably be
drawn. To put the matter in another way; the Crown must satisfy the Court,
not that each separate fact is inconsistent with the innocence of the
accused, but that the evidence as a whole is beyond reasonable doubt
inconsistent with such innocence
20.3. It is respectfully submitted that more recently, this Honourable Court in
19 1939 AD 188 at 202-203.

20 1944 AD 493 at 508-509 (emphasis added).
Page 13 of 43
S v Lachman reaffirmed that circumstantial evidence should never be

approached in a piecemeal fashion. The court should not subject each
individual piece o f evidence to a consideration of whether it excludes the
reasonable possibility that the explanation given by an accused is true. The
evidence needs to be considered in its totality.21
20.4.
It is respectfully submitted that a trial court must guard against a tendency to

focus too intently upon the separate and individual part of what is, after all, a
mosaic of proof. Doubts about one aspect of the evidence led in a trial may
arise when that aspect is viewed in isolation. Those doubts may be set at rest
when it is evaluated again together with all the other available evidence. That
is not to say that a broad and indulgent approach is appropriate when
evaluating evidence.... There is no substitute for a detailed and critical
examination of each and every component in a body of evidence. But, once
that has been done, it is necessary to step back a pace and consider the
mosaic as a whole. If that is not done, one may fail to see the wood for the
trees. - see S v Hadebe and O thers.22
20.5.
It is respectfully submitted that the question would accordingly be one of

whether the mosaic as a whole or the tapestry of all the evidence is beyond
reasonable doubt inconsistent with the accuseds innocent version of material
events, to sustain a conviction.
212010 (2) SACR 52 (SCA) at para [40].

22 1998 (1) SACR 422 (SCA) at 426g-h, citing with approval from Moshephi and Others v R (1980-1984) LAC 57 at
59F-H (emphasis added).
Page 14 of 43
069
21.
It is however, with respect, of utmost importance to focus on the court a quos erroneous
exclusion of what the appellant argued to be the most important portion of the mosaic of
circumstantial evidence; being the objective fact of the position of the fan(s), duvet and
denim in the main bedroom.23 The Respondent was unable to and failed dismally to
contest the veracity of the photographs and the evidence of both Col van Rensburg and
W/O van Staden.24
22 .
The State argued, and repeats the argument here that if photograph 5525 is a true
reflection of the scene discovered by Col van Rensburg, the Court a quo would have had
no option but to reject the Respondents version as untruthful and not possibly true.
23.
The Court a quo did not even attempt to deal with the evidence and explained the
erroneous exclusion with: Having regard to the evidence as a whole this court is of the
view that these issues have paled into insignificance when one has regard to the rest of
the evidence. 26
24.
We respectfully argue that not only did the Court a quo exclude relevant evidence but
exhibited a fragmented approach in evaluating the circumstantial evidence.
23 Record p 967 -969
24 Record p 908 I 8 - 909 119
25 Photograph 55 - Record p 2397 . See also Record p 2410- photograph 68
26 Record page 1667 L 20 - 25
Page 15 of 43
"
0 7 0
25.
We argue with conviction that if the fan was in front of the door; the duvet was on the
floor; and if the denim jeans were lying on top of the duvet, the respondents version of
events (whichever version the Court preferred) could never have been found to be
remotely reasonably, possibly true.27
26.
With respect, conceivably, a more devastating illustration of the Courts fragmented
approach to the evaluation of circumstantial evidence and willingness to exclude dealing
with the evidence that may conflict with the finding it intended to make is the finding that
Captain Mangenas evidence was not only helpful, but also largely unchallenged but
with respect, thereafter failed to take into account his reconstruction of the scene.28
27.
The position of the deceased, standing upright, fully clothed and facing the Respondent
was not given the attention it deserved as part of the mosaic of circumstantial evidence
and was in fact ignored. 29
This would have clearly impacted on the Courts unfortunate acceptance of a portion of
the untruthful version of the respondent that if he intended to kill the person behind the
door he would have aimed higher.30. The circumstantial evidence indicated that he
aimed at the bigger portion of the body of a human being standing upright facing the door
27 Record p 962 I 4 - p 963 117 and p 969 118 - 25

28 Record p 1668 113 -17
29 Record p 482 116 -19
30 Record page 1708 115 -1 8
Page 16 of 43
07 1
and the main issue is he did not fire at the legs of the person or at the floor or at a point
higher than where the head of a standing person could foreseeably have been.
Furthermore, he did not only fire one shot but fired four shots into the vicinity of where a
standing persons torso would have been.
28.
We respectfully submit that the Court a quo only paid lip service to the fact that it took "all
the evidence into consideration and that includes all the exhibits and all the submissions
by counsel. 3'1
The inherent danger of not evaluating all the evidence and of accepting certain portions
of an accuseds evidence is illustrated by the failure of the Court to ask the following
questions
28.1.
What did he think the person was doing in the small toilet cubicle?
28.2.
Did he consider the persons position before he fired?
28.3.
Why did he not fire at the floor and/or feet of the person behind the door or
above the persons head?
29.
The court accepted a version that was not the respondents defence.
b itA
Page 17 of 43
The respondents defence is that he never willingly fired the shots. That excludes any
acceptance of "why he shot and why at a certain height or why he fired four shots
EVALUATION OF EVIDENCE:
30.
It is the Appellants respectful submission that it is trite that a trial court must consider
the totality of the evidence to determine if the guilt of any accused person has been
proven beyond reasonable doubt. - see S v Libazi and Another.32
30.1.
It is respectfully submitted that this Honourable Court in S v Mdlongwa

endorsed the following principles enunciated in S v Van der Meyden 33on the
aspect of the proper assessment of evidence adduced in a criminal trial:34
A court does not look at the evidence implicating the accused in isolation
in order to determine whether there is proof beyond reasonable doubt, and
so too does it not look at the exculpatory evidence in isolation to determine
whether it is reasonably possible that it might be true. ...
A court does not base its conclusion, whether it be to convict or to acquit,
on only part o f the evidence.
The proper test is that an accused is bound to be convicted if the evidence
establishes his guilt beyond reasonable doubt, and the logical corollary is
32 2010 (2) SACR 233 (SCA) at para [17].

33 1999 (1) SACR 447 (W) at 448/)-/, 449g-h, 449/-4506, per Nugent J (as he then was).
34 2010 (2) SACR 419 (SCA) at para [11] (emphasis added).
Page 18 o f 43
070
that he must be acquitted if it is reasonably possible that he might be

innocent The process of reasoning which is appropriate to the application
of that test in any particular case will depend on the nature of the evidence
which the court has before it What must be borne in mind, however, is that
the conclusion which is reached (whether it be to convict or to acquit) must
account for all the evidence. Some of the evidence might be found to be
false; some of it might be found to be unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may simply be
ignored.
30.2.
It is respectfully submitted that in S v Chabalala, this Honourable Court thus

amplified the holistic approach required by a trial court in examining the
evidence on the question of the guilt or innocence of an accused:35
The correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative of his
innocence, taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so, to
decide whether the balance weighs so heavily in favour of the State as to
exclude any reasonable doubt about the accuseds guilt
30.3.
It is respectfully submitted that the process which ought to apply in evaluating

all the evidence, against which it must be determined whether an accuseds
35 2003 (1) SACR 134 (SCA) at para [15].
Page 19 of 43
074
version is reasonably possibly true which would entitle the accused to an

acquittal, was found by this Honourable Court in S v Trainor to be as
follows:36
A conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found to be false.
Independently verifiable evidence, if any, should be weighed to see if it
supports any of the evidence tendered. In considering whether evidence is
reliable, the quality o f that evidence must of necessity be evaluated, as
must corroborative evidence, if any. Evidence, o f course, must be
evaluated against the onus on any particular issue or in respect of the case
in its entirety. The compartmentalised and fragmented approach of the
magistrate is illogical and wrong
30.4.
It is respectfully submitted that an accuseds version must be regarded as

inherently improbable if he [or she] presents] conflicting versions to the
court, so much so that it cannot be reasonably possibly true.37 It is
respectfully submitted that this must be all the more so where the actual or
true account of material events lies solely within the peculiar knowledge of the
accused.
36 2003 (1) SACR 35 (SCA) at para [9] (emphasis added).

37 Compare, S vTladi 2013 (2) SACR 287 (SCA) at para [11] (emphasis added).
Page 20 of 43
075
31.
Without once applying the holistic approach to the circumstantial evidence the Court
dealt with:
31.1.
Gun shots, sounds made by a cricket bat striking against the door and
screams in the early hours of the morning.38
31.2.
The exchange of messages between the deceased and the Respondent. The
court evaluated the evidence in isolation and remarked that the court; refrains
from making inferences one way or the other ... 39
31.3.
The deceaseds cellular phone on the scene and again evaluated in isolation
found that there could be a number of reasons ...to pick just one reason
would be to delve in the realm of speculation."40
31.4.
As far as the gastric emptying is concerned, the Court, with respect, here
ventured to speculate that the deceased might have left the bedroom while
the accused was asleep to get something to eat. 41
31.5.
Although the Court was amenable to speculate, the Court, with respect, failed
to evaluate the gastric content with the evidence of Ms van der Merwe around
the argument. 42
32.
It is with respect clear that the Court focussed on the screaming and sounds and failed to
evaluate all the circumstantial evidence holistically. We respectfully argue-that the Court
38At para [49] (emphasis added).
39 Record page 1683 L 22 -1684 L 12
40 Record page 1683 L 13 - 21
41 Record page 1684 L 12 -1685 L 6
Page 21 of 43
07^
merely ignored the bulk of the evidence of the crime scene bedroom and more
specifically the bedroom ,the toilet cubicle reconstruction, which is in our view the gravest
misdirection and a clear mistake of law in the application of legal principles pertaining to
circumstantial evidence.
33.
If the court a quo, as it was duty-bound, took into account that the Respondents version
about events could not have been reasonably possibly true if the evidence of Van
Rensburg and Van Staden, as well as the photographs,43were accepted, then the
accuseds version as to the events before and after the shooting cannot be reasonable
true.
34.
The Court a quo made factual findings of the Respondents actions in arming himself and
the way in which he approached the bathroom. There is however a glaring gap in
findings that led him to the decision to arm himself. The Court merely ignored the chain
of events that would have led to the deceased standing upright, fully clothed, facing the
door of the toilet when the Respondent fired four shots.. This whilst she never uttered a
word.44 is conceivably more devastating.
35.
A holistic approach to the evidence of the condition of the bedroom, the arming - and/or
disarming of the alarm45, the evidence pertaining to the gastric content46 her cell phone
43 Record p 2397,2398 and 2410

44 Record p 1000 11 -1 9 .
45 Record p 929 123 - 930 I 25 and p 937 19 - 21
46 Record p 186 118 - p 187 I 8 and p 542 111 -1 6
EM
Page 22 of 43
in the bathroom and the Mangena toilet cubicle reconstruction as part of the scene
would, with respect, inevitably have led to a rejection of the Respondents version.
36.
The Court focussed on the screams and sounds of the cricket bat in isolation and failed
to take all the evidence into consideration. It is significant that the Court, although
evaluating the circumstantial evidence in isolation, never rejected the evidence but
having considered the evidence in isolation, found that other reasonable inferences could
be drawn from it or that it was not convincing enough.
We however submit, that holistically considered, there exists no other reasonable

inference than that the respondents evidence can never be found to be reasonably
possible. He did not "wake up to bring the fans in and the deceased did not, in the
specific period, unbeknown to him, move to the bathroom with her cell phone and lock
herself into the toilet.
37.
A proper evaluation of the condition of the scene in the bedroom would, with respect,
have shed light on the gastric content and the evidence by Ms van der Merwe.
Page 23 of 43
078
38.
We have in paragraphs 18 and 19 (supra) listed the major factual findings of the court a
quo and intend illustrating hereunder that it did not correctly apply the principles of dolus
eventualis and error in objecto to the accepted facts.
This in essence will be a discussion of the relevant legal principles pertaining to dolus
eventualis and error in objecto in support of our argument that the court should find in
favour of the appellant as far as question 4.1 is concerned.
DOLUS EVENTUALIS AND ERROR IN OBJECTO

39.
It is the Appellants respectful submission that, as CR Snyman observes, in our criminal
law there are three forms of intention that suffice for culpability,
/7a/77e/y
direct intention
(dolus directus), indirect intention (dolus indirectus) and what is usually described as
dolus eventualis47
40.
It is respectfully submitted that in the recent decision of S v Brown, this Honourable
Court espoused Snymans definition48 of dolus eventualis, holding as follows:49
In CR Snyman Criminal Law... at 184 [dolus eventualis] is defined as follows:
A person acts with intention in the form of dolus eventualis if the commission of
the unlawful act or the causing of the unlawful result is not his main aim, but:
47 CR Snyman Criminal Law 6 ed (2014) at 177.
48 CR Snyman Criminal Law 5 ed (2008) at 184-185.
49
2015 (1) SACR 211 (SCA) at para [104] (emphasis added).
W\V\
Page 24 of 43
(a)
Q]
He subjectively foresees the possibility that, in striving towards his main

aim, the unlawful act may be committed or the unlawful result may be
caused and
(b)
he reconciles himself to this possibility.
The learned author goes on to say the following:

A nother way of describing component (b) is to say thatX was reckless as
to whether the act may be committed or the result may ensue. However, it
does not matter whether component (b) is described in terms of
reconciliation with the possibility or in terms of recklessness/
Snyman gives an example of where a person might be held to have dolus
eventualis at 185:
IfX has dolus eventualis, it is possible that he may in the eyes o f the law
have the intention to bring about a result even though he does not wish the
result to follow. In fact, dolus eventualis may be present even though X
hopes that the prohibited result will not follow. In this form of intention the
voluntative element consists in the fact tha tX directs his will towards event
A, and decides to bring it about even though he realises that a secondary
result (event B) may flow from his act.
41.
It is respectfully submitted that a classic formulation of dolus eventualis, in the context of
the crime of murder, is to be found in the decision of R v Horn, where this Honourable
Court pointed out that such intent involves foreseeing a risk o f death, even if the risk is
Page 25 of 43
Qg
s lig h t but where the accused notwithstanding an appreciation of such risk proceeds fo
take a chance and, as it were, gamble with the life of another"50 This Court added that
there are two essential elements in the enquiry, namely (1) an appreciation by the
wrongdoer that his act entails a risk to life, and (2) recklessness on his part whether
death ensues or n o t51
41.1.
It is respectfully submitted that endorsing R v Huebsch,52 Van Blerk JA in a

concurring judgment in R v Horn (supra), espoused the principle that it is
sufficient to prove the foreseeability element of dolus eventualis if the State
proves that the accused foresaw some risk to life, which in turn means the
possibility and not only the probability that death may result53 Van Blerk JA
proceeded to hold that [i]t would be incongruous to limit a wrongdoers
constructive intent to cases where the result which he had foreseen was likely
to cause death and not to infer such intent where the result he had foreseen
was, although possible, not likely.54
41.2.
It is respectfully submitted that Van Blerk JA moreover found in R v Horn

(supra) that although an appreciation of death as a possible result is a fact
which cannot be proved by an objective te st (the test for intention remaining a
subjective one),55 such must [nevertheless] be proved as an actual fact by
inference from all the circumstances.56 Van Blerk JA57 quoted with approval
R v Hercules, where this Honourable Court enunciated the principle that
50 1958 (3) SA 457 (A) at 465B-C (emphasis added).

51 Ibid at 465D.
52 1953 (2) SA 561 (A).
53 1958 (3) SA 457 (A) at 467A-B (emphasis added).
54 Ibid at 467B.
55 Ibid at 466D-E.
56 Ibid at 466G-H (emphasis added).
57 Ibid at 466H-467A.
P\iTA
Page 26 o f 43
because of the difficulty encountered in proving a persons mental

processes, such element would effectively be a matter of inference which is
to be based on upon what the accused must have foreseen.58
41.3.
It is respectfully submitted that by 1960, the formulation of dolus eventualis

crystallised in R v Horn (supra) was regarded in academic writing as the best
formulation of the principle.59 On the basis of R v Horn (supra),60 S v Malinga
and Others,61 S v Nkombani and Another,62 S v Sigwahla,63 and S v
Sikweza,64 the commentators MM Loubser and MA Rabie point out that
[ajfter some uncertainty in older cases it now is established law that what
must be foreseen is only the possibility and not necessarily the probability or
the likelihood of the occurrence of the result in question.65 Loubser and
Rabie observe that dolus eventualis essentially involves a cognitive
awareness or conclusion that the harmful result may occur in the particular
circumstances, but where the accused nevertheless proceeds with his
action66
42.
It is respectfully submitted that in S v De Bruyn en n Ander, this Honourable Court, per
Holmes JA, held that dolus eventualis, where murder is committed, entails that
58 1954 (3) SA 826 (A) at 831A (emphasis added).

59 See, JC de Wet and HL Swanepoe! Die Suid-Afrikaanse Strafreg 2 uitg (1960) at 128.
60 1958 (3) SA 457 (A) at 467B.
61 1963 (1) SA 692 (A) at 694G-H, where RvHorn 1958 (3) SA 457 (A) was followed.
62 1963 (4) SA 877 (A) at 891C-D.
63 1967 (4) SA 566 (A) at 570B-C.
64 1974 (4) SA 732 (A) at 736F-G.
65 MM Loubser & MA Rabie 'Defining dolus eventualis: a voluntative element?' (1988) 3 South African Journal of
Criminal Justice 415 at 416 (footnotes omitted).
66 Loubser & Rabie (1988) SACJ at 435 (emphasis added).
Page 2 7
of 43
082
u[t]he accused foresees the possibility, however remote, of his act resulting in death to
another, yet he persists in it, reckless whether death ensues or n o t"82 In enumerating
the multiple characteristics" which comprise dolus eventualis, Holmes JA added that
such form of intent involves183
1
Subjective foresight of the possibility, however remote, of his unlawful conduct

causing death to another
Persistence in such conduct despite the foresight
3.
An insensitive recklessness (which has nothing in common
4.
The conscious taking of the risk of resultant death, not caring whether it ensues or
with culpa).
not.
5.
The absence of actual intent to kill."
43.
In casu the respondent armed him with a firearm loaded with lethal ammunition,
approached the bathroom with the intention to shoot.84
The respondent, who is trained in the use of firearms, knowing that there was a person
behind a closed door, in a small cubicle, where an intruder would have had no room to
manoeuvre deliberately fired four shots with the aim to shoot the intruder.85
82 1968 (4) SA 498 (A) at 510F-G (emphasis added).

83 Ibid at 510G-H (emphasis added).
tM
para 18.11 supra
85 para 19 supra
Page 28 of 43
44.
It is respectfully submitted that in S v Dlodlo, this Honourable Court held that:86
[t]he subjective state of mind of an accused person at the time of the infliction of a
fatal injury is not ordinarily capable of direct proof, and can normally only be inferred
from all the circumstances leading up to and surrounding the infliction of that injury.
Where, however; the accused persons subjective state of mind at the relevant time
is sought to be proved by inference, the inference sought to be drawn must be
consistent with all the proved facts, and the proved facts should be such that they
exclude every other reasonable inference save the one sought to be drawn.
i
45.
It is respectfully submitted that in delineating the principles that are relevant to dolus
eventualis, this Honourable Court in S v P affirmed that in determining whether dolus
eventualis was present, [tjhe better approach is to think ones way through all the facts,
before seeking to draw any relevant inference87
46.
It is respectfully submitted that, on the question of inferring the element of intention,
particularly what was foreseen, from the facts, Holmes JA in S v De Bruyn en n Ander
(supra), in eschewing a piecemeal processes o f reasoning and rebuttar, said that:88
The Court prefers to look at all the facts, and from that totality to ascertain whether
the inference in guestion can be drawn.
86 1966 (2) SA 401 (A) at 405G-H (emphasis added).

87 1972 (3) SA 412 (A) at 416E (emphasis added).
88 1968 (4) SA 498 (A) at 507F (emphasis added).
Page 29 of 43
084
47.
It is respectfully submitted that in S v Shaik and Others, on the question of what the
accused foresaw might happen as a possibility for purposes of dolus eventualis, this
Honourable Court observed that if the facts are such that an adverse inference must be
drawn, it will not assist the defence to show that the risk of injury or worse appeared
unlikely, highly improbable or remote."89
48.
It is respectfully submitted that in S v Beukes en n Ander, this Honourable Court
pertinently held that since:90
The chances of an accused admitting, or of it appearing from other evidence,
that he had indeed foreseen a remote consequence are very thin", a Court draws
an inference concerning an accuseds state of mind from the facts which point to it
being reasonably possible, objectively seen, that the consequence would
eventuate
The Court held further that:91
U[i]fsuch a possibility does not exist, it is simply accepted that the actor did not
become conscious of the consequence. If it does exist, it is usually inferred from
the mere fact o f his taking action that he took the consequence into account."
89 1983 (4) SA 57 (A) at 62F.
90 1988 (1) SA 511 (A) at 5111 (headnote translation) (emphasis added).

91 Ibid at 5111-J (headnote translation) (emphasis added).
Page 30 of 43
^-
The Court found:92

Daaris, soverekkon nagaan, geen gewysde waarin pertinent beslis is dat n
dader n gevolg voorsien het maar nie onverskillig teenoordie intrede daarvan
gestaan het nie. Die rede is voor die hand liggend. Die kanse dat n beskuldigde
sal erken, of dit uit ander direkte getuienis sal blyk, dat hy inderdaad n
verwyderde gevolg voorsien het, is bitter skraal. n Hof maak dus n afleiding
aangaande n beskuldigde se gemoed uit die feite wat daarop dui dat dit obiektief
pesien, redelik moontlik was dat die gevolg sou intree. Indien so n moontlikheid
nie bestaan nie, word eenvoudig aanvaardat die dader nie die gevolg in sy
bewussyn opgeneem het nie. Indien wel, word in die reel uit die blote feit dat hv
handelend opgetree het, afgelei dat hy die gevolg op die koop toe geneem het
49.
In summary, having regard to the afore-going case-law and authority, it is respectfully
submitted that dolus eventualis is proved if the accused foresees a risk of death,
however slight, but nevertheless decides to take a chance and gambles with the life of
the deceased reckless to the consequences. It is respectfully submitted that such a state
of mind on the part of the accused can be inferred objectively from the totality of all the
facts.
50.
Having refrained from quoting the record, it is, with respect apt to quote the respondents
own views as to the foreseeability in relation to dolus eventualis:93
92 Ibid at 522C-D (emphasis added).

93 record 109211 -1093 I 21
Page 31 of 43
086
"... MLady, if I had fired a shot into the shower, it would have ricocheted and
possibly hit me ... Firing into that door, in the small toilet, a ricochet of that
ammunition would be possible and it would hit someone? Am I right? That is
correct, M Lady...
Acknowledging that the court a quo correctly rejected the evidence of the respondent it is
perhaps and may still be appropriate to quote his acceptance that it is probable that
someone in that toilet would be hit if shots are fired:94
If I think back today, My Lady, If there was someone inside the toilet and I
knew about that and I fired at the door, then that would be a possibility, My
Lady... That they could get shot, My Lady... It is a probability? Yes,.My Lady
51.
The court a quos finding, that the respondent armed himself and approached the
bathroom with the intention to shoot, read with the accuseds own perception of
foreseeability and the objective facts inclusive of him firing four shots at the torso level of
a normal human being in circumstances where there was no perceived or real attack on
him, can with respect, only be evaluated as the respondent' having at least the intention
to kill in the form of dolus eventualis. He gamble(d) with the life of another.
ERROR IN OBJECTO
. 52.
52.1.
It is the Appellants respectful submission that the crime of murder entails the
unlawful and intentional causing of the death of another human being.95
94 Record p 1094 18-125
Page 32 of 43
52.2.
U C
It is respectfully submitted that murder /s committed any time a person

unlawfully and intentionally kills a human being, and not merely if a person
kills that particular human being who, according to his conception of the facts,
corresponds to the person he wanted to be the victim."96 The learned author
CR Snyman notes that [f]or this reason X in this case is guilty of murder. His
mistake about the object of his act (error in objecto) will not exclude his
intention, because the mistake did not relate to an element contained in the
definition of the crim e"97 It is respectfully submitted that, in this instance, Xs
mistake does not relate to whether it was a human being he was killing, but
simply to the identity of the human being"98
53.
It is respectfully submitted that other South African academic writers, namely JC de Wet
and HL Swanepoel," JRL Milton100 and JH Pain,101 also point out that the fact that the
accused kills the wrong person through mistaken identity has no bearing upon the
requirements of the definition of murder, which crime pertains to the killing of a human
being whatever the identity of the victim might be.
54.
It is respectfully submitted that in the case of error in persona in the context of murder,
there is intent to kill a person; the fact that the person turns out to be someone different
95 CR Snyman Criminal Law 6 ed (2014) at 437 (emphasis added).

95 Snyman Criminal Law supra at 189 (author's emphasis).
97 Snyman Criminal Law supra at 189 (emphasis added).
98 Snyman Criminal Law supra at 189 (emphasis added).
99 JC de Wet De Wet en Swanepoel Strafreg 4 uitg (1985) at 145.
100JRL Milton 'A Stab in the Dark: A Case ofAberratio Ictus' (1968) 85 The South African Law Journal 115 at 118.
101JH Pain Aberratio Ictus: A Comedy of Errors - And Deflection' (1978) 95 The South African Law Journal 480 at 489,
491, 500, 501-503.
TW\
Page 33 of 43
qq
from the person whom the accused actually wanted to kill (or whom he thought he was
killing), is a mistake which is completely irrelevant and consequently does not negative
intention.102
55.
It is respectfully submitted that the reason why advocates of this doctrine have no
qualms about conviction following upon a case of mistaken identity... is that, in their
view, there is a sufficient mens rea provided the accused strikes the person aimed at,
whoever that person may turn out to be.103 The crime of murder falls upon the body
against whom the accused directs his activity.104
56.
It is respectfully submitted that in tracing the principle of immaterial error in objecto or
error in persona, as aforesaid, to Roman-Dutch law writers, the authors, De Wet and
Swanepoel, also cite with approval, what they call, Antonius Matthaeus sound approach
to the aspect.105 JH Pain articulates Matthaeus approach as follows:106
Matthaeus explains that a person who through error kills an unintended victim
is liable to capital punishment because, quite simply, he nevertheless killed
with the necessary intent. Similarly with the man who injures Sejus in mistake
for Titius, intends adultery with Pompeja yet lies with Fulvia, or steals the
wrong item of property. But the man who by mischance kills another instead
of the animal hunted, strikes the free bystander intending to kill his slave, or
102 De Wet en Swanepoel Strafreg supra at 145.

103 Pain (1978) The South African Law Journal at 500 (emphasis added).
104 Pain (1978) The South African Law Journal at 501 (emphasis added).
105 De Wet en Swanepoel Strafreg supra at 146.
105 Pain (1978) The South African Law Journal at 488-489.
Page 34 of 43
calls upon virgins when desirous of whores, is exempt from criminal liability,
because in these cases there is an absence of the requisite intention.
In these circumstances, according to Matthaeus, the mistake of fact in the mind of the
accused as to the identity of the unintended victim does not negative intention.107 For,
the definitional elements of the crime remain the same.
57.
It is respectfully submitted that in The Law of South Africa, it is pertinent to note the
distinction drawn between a material and immaterial or irrelevant mistake of fact:108
A mistake of fact, in order to negative intention, must be material, in other
words, it must relate to an essential element of the offence in question. ... Not
every error in obiecto will, however, negative intention and a mistake which
relates merely to the identity of the subject matter of the crime or the victim
does not guaiify, for example, where a person intends to steal a diamond and
takes a piece of glass instead. In spite of the accuseds error, he or she still
had intention to steal.
107 Pain (1978) The South African Law Journal at 488-489. See also, Antonius Matthaeus On Crimes A Commentary
on Books XLV11 and XLV1II of the Digest: Volume III (Edited and Translated into English by ML Hewett and BC Stoop)
(1994) Book 48 at 377-378:
" The next item is fo r us to see what should be said if the attempt resulted in a killing, but not o f that person
whom the killer intended. For example, Sempronius killed Maevius by mistake, when he wanted to kill
Titius. Must he then be punished more leniently, on the grounds that he was deprived of the successful
outcome o f his crime? In this case the better view, even according to custom and general practice, is that
the death penalty must not be remitted. Obviously. Sempronius had the intention to kill and he actually did
kill, although he did not kill the person he intended. General practice punishes an accomplished crime. This
crime was accomplished, although against the person o f another. Therefore it is fa ir that this be avenged
by the sword. For, in the same way, if he who wished to insult Titius, insults Seius, whom he thinks to be
Titius, he is liable fo r the iniuria to Seius [D.47.I0.I8.3J. And one who has prevailed upon a slave, whom he
thought was a free man, is held liable to the master fo r the corruption o f a slave [D. 11.3.5.1], How ridiculous
it would be if Sempronius were to argue that punishment for theft must be remitted in his case, because by
mistake he took Damon's goat while he wanted Damaeta's. Or if Clodius begged that the penalty for
adultery be waived because when he desired Pompeia, he committed adultery with Lepida or Fulvia. If this
defense is ridiculous in a case o f theft or adultery, why should it be allowed in case of murder?
(Emphasis added).
108 WA Joubert (founding ed) The Law of South Africa: Volume 6 2 ed (2010 Replacement Volume) at 92 (para 96)
(footnotes omitted) (emphasis added).
'
Page 35 of 43
090
58.
It is respectfully submitted that in German criminal law, which also rejects the transferred
malice doctrine,109 a mistake about the identity of the object attacked is irrelevant as
long as the objects are of the same nature. Thus if D aims at V who is standing 20
metres away from him thinking it is A, whereas it is A s twin brother, B, he will be guilty of
B s murder if he kills B. However, if D is a hunter and during a hunt at night in the forest
shoots at a shape he takes for a wild boar, but which in fact is his fellow hunter V, he will
only be guilty of negligent homicide, because the objects are of an unegual nature.110
Michael Bohlander, in discussing the principles of German criminal law, explains that
merely because the accused did not want or have a motive to kill Y, thinking that he or
she was killing Z, does not negate legal intention for the killing of Y.111 Similarly, with
reference to Dutch and German law under the heading of error in persona vel obiecto,
Jeroen Blomsma writes:112
The defendant who shot Y, thinking it to be X, is held to have intended death... In
contrast, some legal acknowledgement can be found for making the error in
persona relevant. It can be argued that the actor would not have shot if he knew
he shot the actual victim. Hamlet mourned that he had mistaken Polonius for
Claudius. If the actor knew in advance that he would kill his son rather than his
enemy, he would not have acted. It strains the common sense meaning of the
109 M Bohlander Problems of Transferred Malice in Multiple-actor Scenarios (2010) 74 The Journal of
Criminal Law 145 at 159.
110 M Bohlander Principles of German Criminal Law (2009) at 72 (emphasis added). See also, Bohlander (2010) The
Journal o f Criminal Law at 158-159 (with reference to the Rose-Rosahl case (1859) Goltdammers Archiv 322 decided in 1858 by the Preufiisches Obertribunal); and H Mannheim 'Mens Rea in German and English Law-ll' (1935)
17 Journal o f Comparative Legislation and International Law 236 at 246, where it is noted:
"A intends to kill B, but mistakes C for him, whom he kills. Such an error in objecto is, according to German
law, unessential, always provided the two objects are of the same legal value."
111 Bohlander Principles of German Criminal Law supra at 62-63.
112 J Blomsma Mens rea and defences in European criminal law (2012) at 240-241 (footnotes omitted) (emphasis
added).
Page 36 of 43
word intend to say that the defendant wanted to kill his son, as this was the very
last thing he desired. However, it is clear that desires and motives are irrelevant
to dolus and it is no longer a condition for dolus (eventualis) that the actor would
have continued if he knew the (particular) result would occur. The fact that the
defendant regrets his mistake should only be incorporated in sentencing
59.
The court a quo, with respect correctly found that the court was confronted with a case of
error in objecto and not abberatio ictus113 Our respectful submission is that the court a
quo failed to apply the principles of error in objecto by placing undue reliance on the
respondents "... reaction that he had shot the deceased ..." 114 We argue respectfully
that his conduct as described 115, should have played no role whatsoever in evaluating
his conduct as having acted in error in objecto. The court a quo elevated the
respondents reactions when he realised that he had shot the deceased as one of only,
with respect, three factors used in excluding that the respondent acted with dolus
eventualis.
60.
We respectfully submit that the court in an attempt to address the principles of error in
objecto, accepted the explanation of the respondent (factor 2), whose evidence about the
shooting was rejected, that if he had intended to kill the person behind the door he would
have aimed higher at chest level. We respectfully have argued earlier that he neither
1 Record p 1704 115-21

114 Record p 1708 118 - 21
115 Record p 1707 I 9 - 25
Page 37 of 43
0
aimed low or high but that the objective facts indicate that the shots entered the door at
the torso level, and furthermore argue that if accepted it merely excludes dolus directus
and not dolus eventualis.
SUMMARY OF ARGUMENTS
61.
We respectfully argue that the Court should find in favour of the appellant on all the
questions as reserved by the court a quo.
61.1.
The court not only approached the circumstantial evidence incorrectly but also
incorrectly excluded relevant evidence. The court was only willing to take into
account as circumstantial evidence the fact that the bathroom window was
indeed open and the toilet door was indeed shut116. The court failed to
evaluate the circumstantial evidence holistically especially with regards to the
condition of the fan and duvet and the reconstruction of the shooting scene.
61.2.
If the court approached the circumstantial evidence correctly the court would
not have been able to find that the respondents evidence may be reasonable
possibly true.
61.3.
The court a quo not only rejected the respondents evidence but in fact
constructed a version in direct conflict with the respondents defence. The
court in following the ipsi dixit of the respondent whose evidence pertaining to
his intention when arming himself and approaching the bathroom was
rejected, accepted his version of his intention when he fired the shots.
116 record p 1706 119 - 22
Page 38 o f 43
61.4.
093
The court erroneously applied the principles of dolus eventualis to the

accepted facts by relying on the respondents state of mind relating to the fact
that he had shot the deceased. The court elevated his state of mind in relation
to the death of the deceased to an exclusion of intention, discarding the
principles of error in objecto
62.
It was never our argument that an accuseds untruthful evidence should lead to his
conviction117. Our respectful argument is that if an accuseds evidence is rejected as
untruthful the court will rely on the objective facts. This in casu would have resulted in
a conviction on murder.
CONCLUSION
63.
We respectfully argue that the court should find in favour of the appellant/State on all
the questions reserved:
63.1.
On question 1 we respectfully submit that the court will find that the court a
quo incorrectly applied the principles of dolus eventualis and error in objecto to
the accepted facts and the conduct of the respondent;
117 record p 1699 11699 114 - p 1700 I 25
Page 39
63.2.
of 43
Q9 4
quo incorrectly conceived and applied the legal principles pertaining to
circumstantial evidence and multiple defences by an accused
63.3.
quo was wrong in its construction and reliance on an alternative version of the
respondent as well as wrongly concluded that the alternative version was
reasonably possibly true.
64.
We respectfully submit that the court may then act in terms of the provision of Section
322 of the Act.
65.
We argue that section 322(1 )(b) is applicable and therefore the court may give the
judgment that ought to have been given at the trial which is a conviction on the main
count of murder.
The court may act in terms of the provisions of Section 322(4), which in our respectful
submission empowers the court to order that new proceedings be instituted on the
original charge as if the accused/respondent had not previously been arraigned
Page 40 of 43
095
DATED at PRETORIA on this the
13th day of AUGUST 2015.
G C NEL
A JOHNSON
D W M BROUGHTON
ADVOCATES FOR THE APPELLANT
Em
Page 41 of 43
LIST OF AUTHORITIES
SOUTHERN AFRICAN CASE-LAW:
Director of Public Prosecutions, Transvaal v Mtshweni 2007 (2) SACR 217 (SCA)
Magmoed v Janse van Rensburg and Others 1993 (1) SA 777 (A)
Moshephi and Others v R (1980-1984) LAC 57
R v Blom 1939 AD 188
R v De Villiers 1944 AD 493
R v Gani and Others 1957 (2) SA 212 (A)
R v Hercules 1954 (3) SA 826 (A)
R v Horn 1958 (3) SA 457 (A)
R v Huebsch 1953 (2) SA 561 (A)
R v Thibani 1949 (4) SA 720 (A)
S v Basson 2007 (1) SACR 566 (CC)
S v Beukes en n Ander 1988 (1) SA 511 (A)
S v Brown 2015 (1) SACR 211 (SCA)
S v Chabalala 2003 (1) SACR 134 (SCA)
S v De Bruyn en {n Ander 1968 (4) SA 498 (A)
096
Page 42 o f 43
097
S v Dlodlo 1966 (2) SA 401 (A)
S v Hadebe and Others 1998 (1) SACR 422 (SCA)
S v Hartmann 1975 (3) SA 532 (C)
S v Lachman 2010 (2) SACR 52 (SCA)
S v Libazi and Another 2010 (2) SACR 233 (SCA)
S v Malinqa and Other 1963 (1) SA 692 (A)
S v Mdlongwa 2010 (2) SACR 419 (SCA)
S v Nkombani and Another 1963 (4) SA 877 (A)
S v P 1972 (3) SA 412(A)
S v Seekoei 1982 (3) SA 97 (A)
S v Shaik and Others 1983 (4) SA 57 (A)
S v Sigwahla 1967 (4) SA 566 (A)
S v Sikweza 1974 (4) SA 732 (A)
S v Tladi 2013 (2) SACR 287 (SCA)
S v Trainor 2003 (1) SACR 35 (SCA)
S v Van der Meyden 1999 (1) SACR 447 (W)
Page 43 of 43
098
LITERATURE:
Antonius Matthaeus On Crimes A Commentary on Books XLVI1 and XLVI11 of the
Digest: Volume 111 (Edited and Translated into English by Hewett M.L. and Stoop
B.C.) (1994) Book 48
Blomsma J. Mens rea and defences in European criminal law (2012)
Bohlander M. Principles of German Criminal Law (2009)
Bohlander M. Problems of Transferred Malice in Multiple-actor Scenarios (2010)
74 The Journal of Criminal Law 145
De Wet J.C. De Wet en Swanepoel Strafreg 4 uitg (1985)
Joubert W.A. (founding ed) The Law of South Africa: Volume 6 2 ed (2010
Replacement Volume)
Loubser M.M. & Rabie M.A. Defining dolus eventualis: a voluntative element?
(1988) 3 South African Journal of Criminal Justice 415
Mannheim H. Mens Rea in German and English Law-H (1935) 17 Journal of
Comparative Legislation and International Law 236
Milton J.R.L. A Stab in the Dark: A Case of Aberratio Ictus5(1968) 85 The South
African Law Journal 115
Pain J.H. Aberratio Ictus: A Comedy of Errors - And Deflection (1978) 95 The
South African Law Journal 480
Snyman C.R. Criminal Law 5 ed (2008)
Snyman C.R. Criminal Law 6 ed (2014)
099
CASE NO ; 96/2015
THE DIRECTOR OF PUBLIC PROSECUTIONS,

GAUTENG
Appellant
and
OSCAR LEONARD CARL PiSTORIUS
Respondent
We respectfully submit that the Trial Court presided over this matter in
difficult circumstances. The Trial Courts conduct, demeanour, decorum,
' and thorough and objective consideration of the facts, in the face of
continuous public scrutiny, made this country proud.
2.
Unfortunately, the basis of the States attack on the Trial Court is that
the Trial Court was wrong in the application of the law to the facts.
However, the State rather incorrectly seeks to attack the primary and
secondary factual findings of the Trial Court, contrary to the provisions
of Section 319 of the Criminal Procedure Act, 51 of 1977 (the CPA).
-1-
QUESTIONS OF LAW AND QUESTIONS OF FACT
3.
Section 319 of the CPA does not permit the reservation of a question of
law, which in reality is a question of fact.1
4.
We submit that the following principles apply to a reservation of

questions of law:
4.1
If the alleged question of law is nothing more than a question

whether the Judge had correctly considered the facts, this
remains a question of fact which may not be reserved at the
request of the State.2
4.2
The Supreme Court of Appeal does not have jurisdiction to

reconsider factual findings, even if it holds the view that the
factual findings were wrong.3
4.3
Questions of fact should not be presented under the guise of

questions of law, in order to circumvent the limitation of Section
319.
S v Khoza en Andere 1991(1) SA 793 (A) at/97B;

Attorney-General Transvaal v Kader 1991(4) SA 727 (A) at739D to 740J.
2
S v Coetzee 1977(4) SA 539 (A) 544H-545A
, SvBasson 2004(1) SA 246 (SCA) at para [6]
101
-34.4
in Magmoed4 it was found that if it were to be argued that, Kon

the basis of the facts found by the Trial Court, no reasonable
person could have come to any conclusion other than that the
accused were guilty of murder or culpable homicide, the
question, although cast in the form of a proposition of law, in
factrelated to a value judgment on the facts, and as such could
not be reserved as a question of law.
4.5
In S v-B asson 5 the Constitutional Court summarised the

classification of questions of fact and questions of law and
stated;
4.5.1
"a finding by a court that facts that must be proved'in

a given case have been proved beyond a reasonable
doubt is a finding of fact,
4.5.2
The fact that a legal rule defines how certain a court

must be about a fact before that fact can be said to
be proved does not render the finding one of law,
4.5.3
the Constitutional Court referred with approval to S v

Petro Louise Enterprises (Pty) Ltd and Others
where it was stated:
7 am unable to accept counsels widely-based and
Magmoed v Janse van Rensburg and Others 1990(2) SACR 47C (C) at page 4771
2004(1) SACR 285 (CC) at paras [48] and [49]
-3-
generalised proposition that in all cases the question

whether a particular inference is the only reasonably
possible inference to be drawn from a given set of
facts is a question of law.
To accede to the
proposition in such general terms would, I consider;

open the door to the possibility o f large numbers of
appeals....contrary to the limited scope of that section
which I conceive the Legislature contemplated
It is relevant in this connection that s 319 of the
Criminal Procedure Act is also aimed at limiting
appeals by the State."
The Constitutional Court referred with approval to the

following passage in Magmoed where it was stated
inter alia:
"... a question of law is not raised by asking whether
the evidence establishes one dr more o f the factual
ingredients of a particular crime, where there is no
doubt or dispute as to what those ingredients are *
at paragraph 4 9 :11If the inferential process is directed

at determining a fact (often referred to as a
secondary fact) no question of law arises."
the Constitutional Court (in paragraph 49) referred

again with approval to Magmoed where it was stated:
7 cannot imagine for one moment that the Attorney-
-5-
103
-5Generaf will have a right of appeal upon the footing
that an intent to do grievous bodily harm was the only
reasonable inference to be drawn from the facts.3'
4.5.7
"...appeals that challenge the basis o f factual

conclusions alone raise issues of fact, while those
that raise a question whether the primary and
secondary facts found are sufficient to justify the legal
conclusion raise questions of law."
5.
The State must set out the facts, as accepted by the Trial Court, as the
basis for a consideration of the questions.6
6.
Even if the questions were questions of law, the Court should only
reserve the question of law, if there is a reasonable prospect that it
would affect the result of the case.7
7.
We respectfully submit that the State's purported questions of law are

an attack on the primary and secondary factual findings by the Trial
Court. The States attack on the primary and secondary factual findings
are In reality aimed at the Trial Courts rejection of dolus directus (that
the Respondent intended to kill the Deceased). This the State may not
S v Nkwenja en n ander 1985(2) SA 560 (A) at page 561 H-l;

S v Basson 2004(1) SA 246 (SCA) at para [6]
Magmoed v Janse van Rensburg and Others supra at page 477 E-F; H-J
fc M
si??
- 6 ~
do. The purported questions of law could therefor in any event not
affect the outcome of the case.
THE APPROACH BY THE STATE IN RELATION TO THE (PURPORTED)

QUESTIONS OF LAW
8.
In s'etting out the findings of fact as the basis upon which this Court
should consider the purported questions of la w 8, the State disregards
crucial factual findings such as that the Respondent;
8.1
suspected that, an intruder had entered his house;
8.2
believed that his life and that of the Deceased were in danger;
and
8.3
discharged the shots after he had heard movement inside the

toilet, which he believed was caused by the intruder(s) coming
out of the toilet to attack him. (judgment: vol. 9, page 1706, lines
14-25)
9.
The State chose to disregard the above factual findings concerning the
perceived danger, as the State is unable to reconcile the findings of a
perceived danger with its submissions herein.
10.
We demonstrate hereunder that the State has failed to show on what
In paragraph 18 of the State's heads of argument
-6-
-7-
105
-7basis the (purported) questions of law, even if they were questions of
law, would affect the result of the case in view of the factual findings.
The States submissions have no relevance to the questions before this
Court as they relate to dolus directus.
11.
In Basson9 the Supreme Court of Appeal rejected the States

endeavours to rely on facts which the Trial Court, according to the State
should have found.
12.
We show hereunder that the State's reliance on dolus eventualis

including error in objecto, as a question of law, is inconsistent with the
State's submissions herein which are solely relevant to dolus directus.
13.
This becomes clear if regard is had to the States approach at the trial,
where the State sought to prove that there must have been some
trigger incident between the Respondent and the Deceased, which
caused the Deceased to flee to the bathroom and lock herself in the
toilet. According to the State, the Respondent followed the Deceased
to the bathroom and fired four shots into the toilet door, with the direct
intention to kill the Deceased and no-one else.
14.
In endeavouring to prove dolus directus, the State relied on the

following factors, inter alia:
S V Basson 2004(1) SA 246 (SCA) at para [7]
-7-
J
1 06
(
-8 -
14.1
the telephone messages between the Respondent and the

Deceased;
14.2
the gastric content;
14.3
the activation or deactivation of the alarm;
14.4
an alleged argument between the Respondent and the

Deceased shortly before the shooting;
14.5
the position of the duvet, the denim and the fan(s) in the
bedroom;
14.6
the screams allegedly by the Deceased, immediately before the

shooting; and
14.7
15,
the presence of the Deceaseds cell phone in the toilet.
The Trial Court fully considered the States case in relation to the above
and
after
correctly
considering
the
principals
applicable
to
circumstantial evidence, did not accept the evidence which the State
sought to rely on. See in this regard:
15.1
the messages (judgment: vol. 9, page 1683, lines 22-25 and

1684, lines 1-11);
-8,1
d2?
15.2
the gastric content (judgment: vol. 9, page 1684, lines 12-25

and 1685, lines 1-4);
15.3
the alarm (judgment: page 1685, lines 5-6);
15.4
the alleged "argument (judgment: vol. 9, page 1664, lines 1020; 1680, lines 19-25; 1681, lines 1-2 and 1685, lines 7-15);
15.5
the duvet, the denim and the fan(s) (judgment: vol. 9, page
1667, lines 15-25);
15.6
the alleged screams (judgment: vol. 9, page 1668, lines 20-24;

1669, lines 1-5; 1669, lines 24-25; 1670, lines 1-22; 1671-1674;
1675, lines 21-25; 1676, lines 1-4; 1681, lines 1-10); and
15.7
the cell phone in the toilet (judgment: vol. 9, page 1683, lines
16-21).
The Trial Court, on the facts, rejected the circumstantial evidence (also
in relation to the Respondents intention) the State sought to rely on, as
either unreliable or insufficient to be accepted as the only reasonable

inference. On the contrary, the Trial Court found that
16.1
the Respondent armed himself, as he suspected that an

intruder might have entered the house through the bathroom
window (judgment: vol. 9, page 1700, lines 16-18).
The
-u
I QS
-1 0 -
'
I{ *i
bathroom window was indeed open (Judgment: vol. 9, page

1706, line 19);
16.2
the Respondent honestly, though erroneously, believed that his
life and that of the Deceased were in danger (judgment: vol. 9,
page 1706, lines 15-16);

i IU
i I
16.3
the Respondent entertained a genuine belief that there was an
, ,
(I
intruder in the toilet, who posed a threat to him (judgment:
16.4
vol. 9, page 1727, lines 11-13);
|j
the Respondent fired four shots at the toilet door after he had
[{
i
heard movement inside the toilet, as he was scared and thought

iI
,
the intruder was coming out to attack him (judgment: vol. 9,

page 1706, lines 20-25);
16.5
the version of the Respondent that "he fired shots at the toilet
door; because he thought there was an intruder inside the
toilet, was consistent with the objective facts, and that, "the
sequence of events namely the shots, the screams, the shouts
of help, the sound of a cricket bat striking against the toilet door,
the calls made by various witnesses to security to report
screams and or shots, are more in line with the version of the
accused'1 (emphasis supplied) (judgment: vol. 9, page. 1726,
lines 18-23) and supported by the objective time line;
-10-
C3
-u -
109
-1 1 -
16.6
viewed in its totality, the evidence failed to establish that the

Respondent had the requisite intention to kill the Deceased, let
alone with premeditation (judgment: vol. 9, page 1702, lines 1. 4); and
16.7
the Respondent also did not subjectively foresee that he would

kill the person behind the door, let alone the Deceased, as he
thought she was in the bedroom at the time (judgment: vol. 9,
page 1708, lines 13-17).
CIRCUMSTANTIAL EVIDENCE
17..
In its heads of argument the State seeks to attack the Trial Court's
primary and secondary factual findings that:
17.1
the States evidence was unreliable;
17.2
the evidence did not meet the standard to qualify to be the only
reasonable inference to be drawn from the facts;- and
. 17.3
the Respondents evidence was more consistent with the

objective and reliable facts.
18.
We submit that the Trial Court correctly considered all the facts,
including the submissions by counsel (judgment: vol. 9, page 1667,
-11-
lines 9-14) and correctly applied the test in relation to circumstantial

evidence (Judgment: vol. 9, page 1701, lines 18-25; 1702, lines 1-4 and
1726, lines 8-10).
In considering the circumstantial evidence the Trial Court found that:
19.1
the circumstantial evidence upon which the State sought to rely,

did not meet the requirement for acceptability;
19.2 ' the evidence led by -the State was not strong circumstan
tial evidence and did not accord with the principles in S v Blom
1939 AD 188 (judgment: vol. 9, page 1726, lines 8-12);
19.3 ' the Respondent's version was more consistent with the
objective facts and that he genuinely believed that there was an
intruder in the toilet, who posed a threat to him (judgment:
vol. 9, page 1726, lines 18-23 and Page 1727, lines 11-13) and
a threat to the Deceased;
19.4
the Respondent clearly wanted to use the firearm and the only
way he could have used it, was to shoot at the perceived
danger (judgment: vol. 9, page 1697, lines 4-5);
19.5
the Trial Court found that the Respondents version that if he

had intended to kill the person, he would have aimed higher, at
- 13
1 1 1
- 13chest level, was not challenged. The evidence in this regard

should be considered, in view of Professor Dermans evidence,
to the affect that the Respondent reacted in fear to the trigger
event and his perception of danger, without considering the
consequences of the shooting at that very moment (judgment:
pages 1708, lines 15-17).
INTENT
20.
All of the above considerations are factual findings by the Trial Court
and are not open for reconsideration.
21.
in addition to the factual evidence accepted by the Trial Court, the Trial
Court had the benefit of the evidence of Professors Derman and
Vorster and the undisputed report by Professor Scholtz, which were to
the effect that:
21.1
the slow bum effect of the Respondents disability,
his
vulnerability and his anxiety would have exaggerated his startle

and fight response (record: vol. 8, page 1517, lines 10-22; page
1444, line 24-25; page 1446, lines 3-13; page 1451, lines 1317);
21.2
when he interpreted the sound as if the intruder was coming out

of the toilet, he was in a heightened state of fear. The higher the
-13-
degree of fear being experienced by a vulnerable and anxious

person such as the Respondent, the more pronunciated the
startle and fight response would be (record: page 1520, lines 723 and 1521, lines 3-13);
21.3
as was stated by Professor Scholtz, in his report10 in relation to

the "two Oscars, that one is a superstar, but the other is a
vulnerable and fearful disabled person, who, without his
prosthesis at a height of less than 1.5m experienced fear,
anxiety and felt defenceless.
The Trial Court in particularfound in this regard that:
22.1
the Respondent had a fight as opposed to flight response

(judgment: vol. 9, page 1696, lines 14-17);
22.2
the Respondent, with his general anxiety disorder, would get

anxious very easily, especially when faced with danger
(judgment: vol. 9, page 1696, lines 18-20); and
22.3
It was understandable that a person with a disability such as

that of the Respondent, would certainly feel vulnerable when
faced with danger (judgment: vol. 9, page 1696, lines 20-22).
-15
113
-1 5 23.
We submit that the effect of the evidence of Professors Derman and

Vorster and Professor Scholtzs report11 was to further corroborate the
veracity of the version of the Respondent, and the correctness of the
Trial Courts finding that the Respondent had honestly believed that
there was an imminent danger.
24.
it is not submitted that the Respondent lacked criminal capacity, but

that the evidence of Professors Derman and Vorster and the
undisputed report by Professor Scholtz explained the Respondents
reaction to the perceived danger and his difficulty to explain in his
evidence his full state of mind immediately before and at the time of the
shooting.
25.
It also explained the Respondents reaction to the perceived danger,

which negated any inference beyond a reasonable doubt that he had
the intention to act unlawfully in the context of any form of dolus.
26.
In considering whether or not an accused is truthful in regard to a

defence that he did not have the required intent, ail factors must be
considered, including his vulnerability, excessive fear and anxiety.
Even in considering negligence, the court in S v SVlanamela 12 found
that although the test is objective, the person's conduct must be viewed
11
See in particular the report by Professor Scholtz (Exhibit QQQ) at page 2891, lines 22 - 33
and 2893, lines 3-7
12
2000(1) SACR 414 (CC) at para [75]
-15-
-16both objectively and subjectively because they represented a particular

group or type of person who are in the same circumstances, with the
same ability and knowledge.
27.
The Trial Court correctly considered the requirement of intention in the

context of the factual finding that the Respondent had acted in
consequence of a perceived danger.
28.
Furthermore, in considering intention the Trial Court correctly applied

the principJes relevant to the requirement of intention, to the primary
and secondary facts found by the Trial Court and found that:
28.1
an intention to shoot did not necessarily include' the intention to

kill and that the Trial Court still had to determine whether the
Respondent had the necessary mens rea to kill (judgment:
vol. 9, page 1697, lines 7-12 and page 1705, lines 1-2);
28.2
the error as to the identity of the individual was not relevant to

the question of mens rea (judgment: vol. 9, page 1703, lines 1314);
28.3
the Respondents version that he had never intended to kill

raised the defence of putative private defence (judgment: page
1705, lines 1-2). We submit that the Trial Court was correct, as
-16-
-17an intention to kill requires dolus, which includes an intention to

kiii unlawfully. We submit that a person who defends himself
against a perceived danger subjectively, albeit incorrectly,
believes he has a right to defend himself against the perceived
danger, which belief excludes the requisite intention to act
unlawfully;
28.4
the Trial Court, in considering putative private defence, correctly

referred with approval, to S v De Oliveira 1993 (2) SACR 59
(A) at pages 63-64 where it was stated that, his erroneous
belief that his life or property was in danger may well
(depending on the precise circumstances) exclude dolus in
which case the liability for the persons death based on intention
will also be excluded (judgment: vol. 9, page 1705, lines 2125);
28.5
"In evaluating putative defence the court will apply a subjective

test} as opposed to an objective te s t (judgment: vol. 9, page
1696, lines 5-7);
28.6
the Respondent's erroneous belief that his life was in danger

excluded dolus (judgment: vol. 9, page 1709, lines 1-5);
28.7
the Respondent by acting because of a perceived danger, did

not have the requisite intention to kill (judgment: vol. 9, page
28.8
the Respondent had honestly believed that he had acted as a

result of a perceived danger.
29.
We respectfully submit that the finding by the Trial Court that the
Respondent did not have the necessary intention to kill is consistent
with the primary and secondary factual findings: One of the elements of
an intention (to kill) is the knowledge of unlawfulness or the fact that a
person can only be said to have the requisite intention to kill, if he had
the intention to (act) kill unlawfully.13 The Respondents genuine
subjective belief of an imminent danger, even if the belief was incorrect
and unreasonable, excludes an intention to act unlawfully (ie. that he
did not act with knowledge of the unlawfulness of his conduct which is
the second principle element to determine dolus),
if knowledge of
unlawfulness is absent it excludes dolus as two principle elements for

fault or dolus must be present ie. intention (will) and knowledge of the
unlawfulness of the conduct.
30.
The State is unable to show that the Trial Court-incorrectly applied the
above legal principles to the primary and secondary facts, and rather
seeks to attack the primary and secondary factual findings, which is
t3
CR Snyman, Criminal Law (6th ed.), pages 1 9 7 -1 9 8

J onathan B urchell, Principles of Criminal Law (4th ed.) (revised reprint) pages 400 and 383
-19-
impermissibie.
SUBMISSIONS BY THE STATE
31.
The submissions in the State's heads of argument are an attempt to

reintroduce its failed case concerning dolus dlrectus and are not
relevant to the question of dolus eventualis including error in objecto in
the context of the accepted facts.
32.
AD PARAGRAPH 12.1 OF THE STATE'S HEADS OF ARGUMENT
The State correctly submits in paragraph 12.1 that it is "unable to argue

that the Court erroneously made factual findings upon which the
principle of dolus eventualis should be applied
33.
AD PARAGRAPH 12.2 OF THE STATES HEAPS OF ARGUMENT
The hypothetical set of facts relied upon by the State in this paragraph
illustrates dolus directus and not dolus eventualis. The State in this
example simply omits and disregards the factual finding by the Trial
Court that the shooting was because of a perceived danger.
34. AD PARAGRAPHS 21 AND 22 OF THE STATE'S HEADS OF

ARGUMENT
34.1
The State alleges that the Trial Court erroneously excluded the
-19-
-20-
position of the fan(s), the denim and the duvet in the main
bedroom.
The Trial Court did not erroneously exclude the
evidence, but considered the evidence relevant thereto by

adopting a holistic analysis of the facts to the matter and found
the evidence not to be compelling and cogent so as to justify
the only reasonable inference.
34.2
The evidence by Colonel van Rensburg and Warrant Officer van

Staden (which was fully canvassed before the Trial Court), was,
in any event* contradictory and in some respects a poor attempt
to justify the failure of the State to call Botha, who was the first
investigating officer, as a witness. All the contradictions were
detailed in the Respondents heads of argument before the Trial
Court and considered by the Trial Court.
34.3
In so far as it is relevant, the State ignores the full context of the

evidence of Colonel van Rensburg, which, inter alia, exposed
the following:
34.3.1
that he interfered with the fan cord, although he

initially denied it;
34.3.2
that his evidence did not explain how he (Van

Rensburg) could have walked onto the balcony, if the
-21-
119
-21fan was in the position he had allegedly found it in,

as the fan would have obstructed his access to the
balcony; and
34.3.3
the disappearance of the extension cord after it had

been seized by the police.
34.4
The disappearance of the extension cord was important as the

fans were plugged into It and the length of the extension cord
became a dispute as to whether the fans could have been in the
positions as pointed out by the Respondent
The State was
unable to explain the cords disappearance, notwithstanding the

fact that it was seized by the police and notwithstanding the fact
that they then sought to rely so heavily on it.
34.5
in any event, the.position of the fan(s), the denim and the duvet
are all factual findings, which are not open for reconsideration,
and have no relevance to dolus eventualis including error In
objecto in the context of the factual findings.
34.6
The relevance of the fan(s), the denim, the duvet and the cord
was in any event solely in relation to dolus dlrectus.
35.
AD PARAGRAPHS 27, 28 AND 29 OF THE STATES HEADS OF

ARGUMENT
-21-
-2235.1
The Trial Court did not only consider the Respondents

evidence relevant to his intention, but also the evidence
relevant to his compromised vulnerable state of mind, as
referred to above.
35.2
In dealing with intention the Trial Court appreciated that the

perceived danger was relevant to putative private defence,
which excludes an intention to act unlawfully*
35.3
The Trial Court also appreciated that the Respondent, in firing

the shots in quick succession, did not at that moment entertain
the intention to kill, either in a goal directed manner or by
foresight and reconciliation, but that his reaction to an intense
fear should be considered in view of his compromised anxiety
and vulnerability.
35.4
The State also appears to suggest that the Respondent knew

the position of the person In the toilet, which is an armchair
approach with perfect hindsight.
35:5
Consequently, the Trial Court, on the facts, did not find dolus in
the form of an intention to kill unlawfully (knowledge of
unlawfulness) or otherwise.
The Trial Court appreciated that
the State had to prove an intention to kill unlawfully beyond a
-2 2 -
'23-
121
-2 3 reasonable doubt.
36.
AD PARAGRAPH 31.1 OF THE STATE'S HEAPS OF ARGUMENT
36.1
In this paragraph the State seeks a reconsideration of the

probative value of the screams, which is an attack on the factual
findings of the Trial Court and impermissible as the only
relevance of the screams was in relation to dolus directus.
36.2
The screams have no relevance to the purported question of

law, and in particular have no relevance to dolus eventualis
including error in objecto.
37.
AD PARAGRAPHS 31.5, AND 32, 34 AND 35: 36 AND 37 OF THE

STATES HEADS OF ARGUMENT
37.1
The State once again seeks a rejection of the Trial Courts

factual finding relevant to:
37.1.1
the arming or disarming of the alarm;
37.1.2
the evidence pertaining to gastric content;
37.1.3
the cell phone in the bathroom;
37.1.4
Captain Mangenas reconstruction of the Deceaseds

position in the toilet;
-23-
37.1.5
van der MerweJs evidence;
37.1.6
the argument; and
37.1.7
the "screaming"
which could only be relevant to dolus directus.
37.2
There is no link between these factors and dolus eventualis (in

the first purported question of law) and the factual finding of the
Trial Court in regard to dolus eventualis, nor is there any
attempt by the State to establish such causal connection.
37.3
The State does not even attempt to link these factors to dolus
eventualis, as it obviously cannot do so.
L.
AD PARAGRAPH 49 OF THE STATES HEADS OF ARGUMENT
38.1
The factual finding by the Trial Court was that at the time the
Respondent discharged the shots, he honestly believed that the
Deceased was in the bedroom. He thus could not be said to
gamble with the life o f the deceased reckless to the con
sequences, as submitted by the State.
38.2
The factual finding that he did not have the intent to kill was also
premised on the evidence relevant to his anxiety, vulnerability
and his exaggerated startle response at the specific time.
THE FIRST (PURPORTED! QUESTION OF LAW, DOLUS EVENTUALIS AND

ERROR IN OBJECTO
Whether the principles o f dolus eventualis were correctly applied to the
accepted facts and the conduct o f the accusedj including error in objecto
39.
The State's reliance on dolus eventualis is on the purported basis that

the Trial Court incorrectly considered the factors referred to above,
which is impermissible.
40.
if dolus eventualis were to be considered, notwithstanding the State's

reliance on dolus directus, it could only be done on the basis of an
acceptance of the factual finding that the Respondent did not have the
intention to shoot unlawfully (that he did not act with the knowledge of
the unlawfulness of his conduct) because of the perceived danger.
41.
We respectfully submit that for a finding
of dolus eventualis for
purposes of murder, the intention to shoot or kill unlawfully remains a

requirement for dolus.
42.
Dolus eventualis would arise if:
42.1
The Respondent thought that the person in the toilet was an

intruder and that his life and the life of the Deceased were in
danger, but he foresaw the possibility that it might be the
J, I
\
-26Deceased in
'
the toilet and reconciled himself with that
possibility; or
42.2
^
|
The Respondent thought that the person in the toilet was an

intruder and that his life and the life of the Deceased were in
I
danger, but he foresaw the possibility that his life and the
Deceaseds life were not in danger, and he reconciled himself

with that possibility.
/
43. '
In regard to the presence of the Deceased at the time of the shooting,
the Trial Court correctly dealt with dolus eventualis in relation to the
i
i
factual findings relevant to the Deceased (judgment: vol. 9, page 1707,

lines 3-15) and found that the evidence showed, from the onset, that at
the time that the Respondent fired the shots, he believed the Deceased
was in the bedroom. Furthermore, the Trial Court correctly found that
the Respondent clearly did not subjectively foresee that it might have
{
j
j
t!
ir
I
been the Deceased who was in the toilet, as he thought that she was in
the bedroom at the time (judgment vol. 9, page 1707, lines 11-15 and
i
1708, lines 13-17).
'
!
/I
44.
As regard to perceived danger, the State did not present its case on the
basis that the Respondent foresaw the possibility that his life and the
life of the Deceased were not in danger, and that he reconciled himself
,
I
with that possibility. On the contrary, the State refused to accept the
perceived danger. The consequence of this was that the State did not
-26-
-27-
125
-27present any cogent case relevant to dolus eventualis in this regard.
45.
Moreover, there is nothing to suggest that the Respondent foresaw the

possibility that there was not a perceived danger and reconciled himself
with that possibility. The possibility was in any event not proved beyond
a reasonable doubt.
46.
The absence of the possibility that the perceived danger did not exist is
supported, not only by the Respondents state of mind as found by the
Trial Court, but also by the following factors, inter alia:
46.1
the time of the incident and the fact that it was dark;
46.2
that the Respondent heard what sounded to him like
the
bathroom window opening, which he found to be open when he

reached the entrance to the bathroom;
46.3
the Trial Courts finding that the Respondent genuinely believed

that the Deceased was in the bedroom, if he believed that the
Deceased was in the bedroom, who, in the mind of the
Respondent, would have entered the house through
the
bathroom window, at approximately 03h00 in the morning, other

than an intruder?;
46.4
the Respondents vulnerability and anxious disposition;
-27-
i f f
-2846.5
the Respondents fight response, as oppose to a flight

response;
46.6
the fact that the Respondent approached the bathroom on his

stumps as he believed there was not enough time to first put on
his prosthesis; and
46.7
the Respondents reactions after the shooting, which were

found by the Trial Court to be consistent with his belief that his
life and that of the Deceased were in danger.
47.
In paragraph 51 of the States Heads of Argument the State submits

that the evidence could "only be evaluated as the Respondent having at
ieast the intention to' kill in the form of dolus eventualis*.
48.
The State had to introduce the words, "at least, as the whole tenor of
the States preceding submissions is that the Trial Courts factual
finding of a perceived danger-was wrong, despite the fact that it forms
part of the facts accepted by the State for purposes of the present
proceedings.
49.
Furthermore, the reference by the State to at least creates the

impression that the State views dolus eventualis as a consolation prize
to dolus directus, in instances where the evidence is insufficient to
-28*-
- 29-
127
-29-
sustain dolus directus.
Dolus eventualis is not a consolation prize
where dolus directus is not proved.14
50.
Unsurprisingly, the State fails to explain on what basis a rejection of the

Respondent's evidence and an acceptance of the States contentions,
would constitute dolus eventualis including error in objecto.
51.
The State does not even attempt to reconcile the perceived danger with
its submissions.
52.
The State is further exposed in its paragraph 51 that its focus is aimed
at dolus directus and not dolus eventualis, when it submits that: "...
there was no perceived or real attack on him" This submission by the
State is consistent with all the other submissions by the State, which
exposes the States impermissible attack on the Trial Courts factual
finding that the Respondent had
discharged the shots as
consequence of a perceived danger.
MISTAKEN IDENTITY
53.
The Trial Court considered the principle of mistaken identity (judgment:

page 1704, lines 17-21) and correctly appreciated that the existence of
14
S v Humphreys 2013(2) SACR 1 (SGA) at para [12];

S v Tonkin 2014(1) SACR 583 (SCA) at para [11);
S v Ngema 1992(2) SACR 651 (N) at 655D;

S v Ndlanzi 2014(2) SACR 256 (SCA).
-29-
mistaken identity alone did not establish guilt. The Trial Court correctly
found that the error as to the identity of the individual, is not relevant to
the question of mens rea (Judgment: page 1703, lines 13-14).
54.
It was on this basis that the Trial Court proceeded to deal with the
required element of dolus in relation to putative private defence. The
Trial Court stated, the starting point however, once more is whether the
accused had the intention to kill the person behind the toilet door whom
he mistook for an intruder.: The accused had the intention to shoot at
the person in the toilet but states that he never intended to kill that
person.
In other words he raised the defence of putative private
defence (Judgment: page 1704, lines 22-25 and page 1705, lines 1-
2).
55.
The reason for the above is that the Trial Court correctly accepted that
mistaken identity did not in itself constitute a ground for criminal liability,
but that criminal liability, even in the case of mistaken identity, would
only arise if the definitional requirements of intention to kill were
satisfied.15
56.
Therefore, the inclusion of error in objecto as part of the question of law
See in this regard an article by K e lly Phelps, The Role of Error in .Objecto in South African
Criminal Law, published online as "The Role of error in objecto in South African Law: An
application for re-evaluation presented by State v Pistorius1, under the heading "Knowledge
of unlawfulness, putative defences and error in objecto11, a copy of which is annexed to the
Respondents list of authorities.
- 31-
129
- 31 in relation to dolus eventualis does not assist the State in relation to
intention.
57.
We submit that error in objecto is a name used in legal literature and

does not constitute an independent rule of law which establishes
criminal liability, as it merely describes a certain type of factual
situation.
Snyman therefore correctly concludes that it is "wrong to
assume that as soon as a certain set of facts amounts to an error in

objecto, only a conclusion (that X is guilty or not guilty) may be legally
drawn."16
58.
BurcheJI,17 with reference to Milton (at 118), states that the factual
situation of error in objecto arises only where the intention is directed at
a specific determined individual.
59.
We submit that the existence of an error in objecto does not replace or

negate the requirement of the State having to prove dolus for a charge
of murder. If a person acted in putative private defence (because of a
perceived danger, such as in this matter) then the absence of an
intention to act unlawfully remains, whether or not there was a mistaken
identity. See in this regard the article by Kelly Pheips 18.
16
Criminal Law (6th ed.) at page 188
17
PrincipJes of Criminal Law (4lh ed.) (revised print) at 396
18
(supra)
-31-
60.
Therefore, it is not surprising that the Courts do not consider mistaken

identity as a separate ground to establish liability, but rather consider
mistaken identity In the context of the principles for criminal liability on
account of dolus. See in this regard cases where the accused were
found not guilty of murder because of the absence of an intention to act
unlawfully, notwithstanding the existence of mistaken identity 19.
61.
Furthermore, there is no legal literature (and no cases) where an

accused had consciously excluded a person to be a victim (such as in
the present matter where the Respondent believed the Deceased was
in the bedroom at the time of the shooting), and was then found guilty
of murder on account of mistaken identity. We respectfully submit that
in such an instance, error in objecto, would not apply to establish
liability for murder, as this would reintroduce the doctrine of transferred
18
S v Warren Vorster South Gauteng High Court, unreported, case no 125/2009, date 24
March 2011, Borchers J (where the State accepted a plea agreement on culpable homicide
where the husband fired shots through the toilet door killing his wife, in circumstances where
he believed she was an intruder posing a threat);
S v Siyaboriga Mdunge case no 777/12, Regional Court, Pietermaritzburg, in which the
State accepted a plea agreement on culpable homicide in circumstances where the accused
fired shots through the toilet door at a perceived intruder, where in reality it was his wife;
S v Naidoo 1997(1) SACR 62 (T);
S v Gumbu 2006 JDR 1040 (T);
S v Netshitungulu 2003 JDR 0455 (W);
S v Joshua 2003(1) SACR 1 (SCA);
S v Sam 1980(4) SA 289 (T);
S v Dougherty 2003(2) SACR 36 (W);
See also: Burchell (supra) at page 400
-33-
-3 3 -
'
malice, which does not form part of our legal system.20
THE SECOND PURPORTED QUESTION OF LAW
*Whether the Court correctly conceived and applied the legal principles
pertaining to circumstantial evidence and/or pertaining to multiple defences
by an accused
62.
This is not a question of law but an attack on the primary
and
secondary facts found by the Trial Court.
63.
It would only be a question of law if the State could show that the Trial
Court drew wrong legal conclusions based on the primary
and
secondary facts found by the Trial Court. The primary and secondary
facts may not be attacked. The State is unable to show upon which
primary and secondary facts the Trial Court drew wrong conclusions of
law, and rather seeks to attack the primary and secondary findings of
fact.
64.
We have dealt with the Trial Courts approach to circumstantial

evidence above to demonstrate that the Trial Court correctly applied the
legal principles relevant to circumstantial evidence to the facts.
Snyman: Criminal Law (6th ed.), 193/194;

S v Mtshiza 1970(3) SA 347 (A) at 754 H
S v Mavhunga 1981(1) SA 56 (A) at 67 G-H
-33-
' I3 1
The State is incorrect in paragraph 15, 20 and 24 of its heads of

argument to state that the Trial Court followed a fragmented approachv
in evaluating circumstantial evidence. The State obviously does not say
what the "fragmented approach was and in relation to which primary
and secondary facts the approach was fragmented", and what the Trial
Court should have found in relation to the primary and secondary facts.
It appears, with respect, that the State confuses a finding that the
evidence was insufficient or lacked cogency, with a situation where a
court disregards the evidence by simply ignoring the evidence. The
Trial Court did not disregard the evidence, but considered the evidence
to determine whether it met the standard of cogency to be accepted as
the only reasonable
inference,
excluding
all
other
reasonable
inferences. The Trial Courts findings in this regard are factual and not
appealable.
Moreover, in regard to the multipie defences", the Trial Court, in

considering the versions of the Respondent in relation to the intention
to discharge the firearm, correctly found that "caution must be
' exercised and courts ought to avoid attaching too much weight to such
untruthfuiness/' and that the conclusion, that because an accused is
untruthful, he is therefore probably guilty must be guarded against, as a
false statement does not always justify the most extreme conclusion
(judgment: vol. 9, page 1699, lines 14-22).
-35-
68.
It appears, that the State endeavours to argue that because the

Respondent was not truthful in regard to all aspects of his testimony, all
of his testimony must be rejected as punishment for his untruthfulness,
whether a defence premised on a perceived danger, was supported by
facts or not, and that the Respondent must then be convicted on the
basis of dolus directus, notwithstanding the fact that the Trial Court
rejected dolus directus.
69.
The difficulty for the State remains that there is no connection between
the second purported question of law and the State's submissions,
which clearly have relevance to dolus directus and not dolus eventualis.
THE THIRD PURPORTED QUESTION OF LAW
Whether the Court was correct in its construction and reliance on an

alternative version o f the accused and that this alternative version was
reasonably possibly true.
70.
The State may not attack the factual findings of the Trial Court on the'
basis that a finding of reasonably possibly truev is incorrect (Basson
supra).
71.
The third purported question of law duplicates the second purported

question of law and in any event does not constitute a question of law.
72.
The State has also not disclosed any factual basis, which could fink this
pfkA
-35-
purported question of law to dolus eventualis or what the Trial Courts

finding should have been. The State could not do so, as it would have
exposed the States real approach that the Trial Court was wrong in its
factual findings and wrong by not convicting the Respondent of murder
in the form of dolus directus.
AD ALL THREE (PURPORTED) QUESTIONS OF LAW
73/
The State has failed to show:
73.1
what the factual findings (primary and secondary) should have

been;
73.2
on what basis the purported questions of law could be linked to

the factual findings; and
73.3
on what basis a positive answer to any of the (purported)

questions of law would affect the result of the factual findings of
the Trial Court.
SECTION 322 OF THE CPA READ WITH SECTION 324
74.
In so far as this Honourable Court may find that:
74.1
any of the questions reserved constitute questions of law;
74.2
there is merit in any of the questions of law; and
-37-
74.3
a positive answer to any of the questions of law would affect the

result of the finding of the Trial Court,
then it is respectfully submitted that the only approach which the

Supreme Court of Appeal can follow is to consider whether or not to
refer the matter for a new hearing in terms of Section 322(4) read with
Section 324 of the CPA.21
75.
The inclusion of the words may and not "must in Section 322(4) has
been interpreted by our courts that this Court may refer the matter to a
de novo hearing and not that this Court "must refer the matter to a de
novo hearing.
76.
The difficulty with referring the matter to a de novo hearing is that the
Respondent will be exposed to double jeopardy as:
76.1
he would again be charged for murder on the same facts,

notwithstanding the fact that he was acquitted on a charge of
murder on the merits. This is impermissible, as it was stated in
Rex v Herbst 1942 AD 434;

Magmoed v Janse Van Rensburg and others 1993(1) SA 777 (A) at page 793 F and
827 H -828 B;
Director of Public Prosecution, Transvaal v Vfljoen 2005(1) SACR 505 (SCA) at para
[45];
S v Basson 2004(1) SA 246 (SCA) at para [5]
Director of Public Prosecution, Transvaal v Mtshweni 2007(2) SACR 217 (SCA) at para
[26]
Director of Public Prosecution, Transvaal v Mtshweni (supraj
S v Basson 2004(1) SA 246 (SCA) at para [5];
S v Basson 2005(1) SA 171 (CC).
Basson22 that "an accused person is protected against

prosecution in a second prosecution if he or she was in
jeopardy of conviction in the first)
76.2
there can be no doubt that the Respondent was in jeopardy of

conviction for murder in the trial.
77.
it is in the above context that the Seekoei23 case must be understood,

as double jeopardy would arise if an accused was convicted on a
competent verdict and the matter was referred for a de novo trial in
terms of Section 324 of the CPA. In such event, the Respondent would
again be prosecuted on the same facts for murder as before,
notwithstanding that he was in jeopardy of being convicted of murder at
the trial,
78.
Although it is true that double jeopardy should be raised at the Trial

Court,24 this Court may take the inevitable risk of double jeopardy into
account, as part of the exercise of its discretion.
79.
The existence of double jeopardy
at a trial de novo furthermore
exposes that the questions reserved are not questions of law, as the
decision of the Trial Court would not be set aside on the basis of
22
2007(1) SACR 566 (CC) para [254]
23
1982(3) SA 97 (A) at page 102 G and page 103 A-F
24
Basson 2007(1) supra at para [258]
-39-
irregularity, but on the merits. The consequence is that the Respondent

would be prosecuted for the same conduct25 for which he had been
tried on the merits,
80.
When considering a trial de novo, the Supreme Court of Appeal should

also consider factors such as the extent and time duration of the trial,
the complexity of the trial, and the fairness to order a trial de novo26.
We submit that all of the above factors militate against a hearing de
novo.
81.
We respectfully submit that to refer this matter for a hearing de novo

would offend fair trial proceedings as:
81.1
the case was in the public domain and subjected to intense

public scrutiny, which could only contaminate and confuse the
objectivity and reliability of witnesses and the proceedings;
81-2
the Respondent would again be subjected to the same

allegations and the same offence;
81.3
the Respondent has already fulfilled the custodial part of his

sentence on the same facts;
25
Director of Public Prosecutions, Transvaal v IVitshweni 2007(2) SACR 217 at [28]
26
Wlagmoed v Janse Van Rensburg and others 1993(1) SA 777 (A) at page 827H- 828B
-3 9 -
81.4
the trial was complex and lengthy and the facts were
extensively canvassed;
81.5
the Respondents , financial ability for a trial de novo is nonexistent.
B Roux SC
S Jackson
R Adams
Respondents Counsel
CHAMBERS
SANDTON
14 September 2015
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139
Practice Note-Rule lOAfinal/JH

CASE N O : 96/2015

GAUTENG
Appellant
and
Respondent
RESPONDENTS PRACTICE NOTE- RULE 10A
1.
THE NAME AND NUMBER OF THE MATTER
1.1
Director of Public Prosecutions, Gauteng versus Oscar

Leonard Carl Pistorius;
2.
1.2
Gauteng Division, Pretoria Case Number: CC113/2013
1.3
Supreme Court of Appeal Case Number: 96/2015
THE NATURE OF THE APPEAL
The proceedings are based on Section 319 of the Criminal Procedure

Act 51 of 1977 ( the Act ), wherein the Trial Court reserved three
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-Rule 10A final/JH
-2-
questiorts of law for the consideration of the Supreme Court of

Appeal.
THE BASIS FOR JURISDICTION OF THE SUPREME COURT OF

APPEAL
The above Honourable Court has jurisdiction by virtue of Section 319

of the Act, and the reservation by the Trial Court.
CONSTITUTIONAL ISSUES
Should the above Honourable Court order a trial de novo in terms of

Section 324 of the Act, constitutional consideration, more specifically
Section 35 thereof, would be applicable regarding the rights of the
Respondent
ISSUES ON APPEAL
5.1
The State has reserved three (purported) questions of law,

namely:
5,1.1
Whether the principles of dolus eventualis were
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141
Practice Note-Rule 10A final/JH
-3-
correctly applied to the accepted facts and the

conduct of the accused including error in objecto;
5.12
Whether the Court correctly conceived and applied

the legal principles pertaining to circumstantial
evidence and/or multiple defences by the accused;
5.1.3
Whether the Court was correct in the construction

and reliance on an alternative version of the
accused and that version was reasonably possibly
true?
6.
ESTIMATED DURATION OF ARGUMENT
5 hours
7.
NUMBER OF DAYS REQUIRED
8.
THE PORTIONS/PAGES OF THE RECORD THAT ARE IN A

LANGUAGE OTHER THAN ENGLISH
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-Rule 10Afina!/JH
-4-
8.1
Evidence by witnesses who spoke in a language other than

English were interpreted and translated into English.
8.2
A portion of the evidence of Colonel Van Rensburg was in

Afrikaans- Record Volume 2 page 189 to 247.
PARTS
OF
THE
RECORD
THE
RESPONDENT
DEEMS
NECESSARY FOR THE DETERMINATION OF THE APPEAL
9.1
The evidence of Schoombie van Rensburg and Van Staden

and certain portions of the evidence of Dr. Stipp, is not
relevant for the determination of the appeal, but agreement
could not be reached.
SUMMARY OF ARGUMENT
10.1
The Trial Court incorrectly reserved questions of fact as

questions of law for determination by the above Honourable
Court as:
10.1.1
the questions are questions of fact;
143
Practice Note-Rule 10A final/JH
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10.12
the questions have no reiation to the primary and

secondary facts found by the Trial Court;
10.13
the questions of iaw in any event would not affect

the finding by the Trial Court.
10.2
The State is attempting to reintroduce its case of dolus

directus, and in doing so has omitted to deal with how the Trial
Court erred in its application of dolus eventualis.
10.3
The State is attempting to alter the factual findings of the Trial

Court, despite it being unable to do so.
10.4
The Trial Courts factual finding of a perceived danger, and

that the Respondent lacked mens rea, more specifically that
he lacked an intent to act unlawfully, was correct.
10.5
Despite the above, should the questions of law be answered

in favour of the State, that the only mechanism that the above
Honourable Court is empowered with, is the discretion to
order a trial de novo in terms of Section 324 of the Act which
will be prejudicial to the Respondents rights.
Practice Nole-Rule 10A final/JH
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11.
REQUIREMENT OF A CORE BUNDLE
11.1
12.
A core bundle is relied upon.
DUE AND TIMEOUS COMPLIANCE WITH RULE 8(8) AND (9) OF

THE SUPREME COURT OF APPEAL RULES
12.1
There was initially non-compliance with the above rules by the

State. Upon numerous requests by the Respondent, a
meeting was convened by the President of the Supreme Court
of Appeal and the Appellant and Respondent subsequently
agreed upon a Record which was then delivered by the
. Appellant in accordance with the time periods provided by the
President of the Supreme Court of Appeal.
Signed at SANDTON on this 11th day of September 2015.
Adv. B Roux SC
On behalf of the Respondent
Rate 'iDA(b) Certfficate.doc/JH

CASE NO: 96/2015

GAUTENG
Appellant
and
Respondent
RESPONDENTS COUNSELS CERTIFICATE IN TERMS OF RULE 10A(b)
I, the undersigned,
BARRY ROUX
hereby certify that:
1.
I am an advocate of the Honourable Court practising as such as a

member of the Johannesburg Society of Advocates.
2.
I am responsible for the Respondents heads of argument filed

herewith.
3.
To the best of my ability:
<
f
Rule l 0A(b) Certiftcate.doc/JH
4.
~2~
3.1
The required practice note was prepared; -
3.2
The heads of argument comply with the prescribed format
Rule 10 and 10A(a) of this Court have therefore been complied with
to the extent possible although limited matters remained in dispute.
Signed at SANDTON on this / /
day of September 2015.
On behalf of the Respondent
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147
CASE NO : 96/2015
!n the matter between:

GAUTENG
Appellant
and
Respondent
RESPONDENTS LIST OF AUTHORITIES
Ca se Law
1.
' S v Khoza en Andere 1991(1) SA 793 (A) at 797 B
2.
Attorney-General Transvaal vs Kader 1991(4) SA 727 (A) at 739 D to 740 J
3,
S v Basson 2004(1) SA 246 (SCA) at paras [5], [6] and [7]
4.
S v Coetzee 1977(4) SA 539 (A) at 544 H - 545 A
5.
R/lagmoed v Janse van Rensburg and Others 1990(2) SACR 476 (C) at page
477!; page 477 E-F; J-H [
6.
S v Basson 2004(1) SACR 285 (CC) at paras [48] and [49]
7.
S v Nkwenja en n Ander 1985(2) SA 560 (A) at page 561 H-l
8.
S v B f o m 1939 AD 188
9.
S v Rflanamela 2000 (1) SACR 414 (CC) at para [75]
10.
S v De Oliveira 1993(2) SACR 59 (A), pages 63-64
11.
S v Humphreys 2013(2) SACR 1 (SCA) at para [12]
12.
S v Tonkin 2014(1) SACR 583 (SCA) at para [11]
13.
S v Ngema 1992(2) SACR 651 (N) at 655 D
-AQ-
148
-2-
14.
S v Ndlanzi 2014(2) SACR 256 (SCA) at [30] - [33]
15,
S v Warren Vorster, South Gauteng High Court, unreported, case

number 125/2009 date 24 March 2011, BORCHERS J
16.
S v Siyabonga IWdunge, Regional Court, Pietermaritzburg, case

number 777/2012
17.
S v Naidoo 1997(1) SACR 62 (T)
18.
S v Gumbu 2006 JDR 1040 (T)
19.
S v Netshitungulu 2003 JDR 0455 (W)
20.
S v Joshua 2003(1) SACR 1 (SCA)
21.
S v Sam 1980(4) SA 289 (T)
22.
S v Dougherty 2003(2) SACR 36 (W)
2 3.
S v Mtshiza 1970(3) SA 747 (A) at 754 H
24.
S v Mavhunga 1981(1) SA 56 (A) at 67 G-H
25.
Rex v Herbst 1942 AD 434 at 434 and 436
26.
Magmoed v Janse Van Rensburg and others 1993(1) SA 777 (A) at 793 F
and 827 H - 828 B
2 7.
Director of Public Prosecution, Transvaal v Viljoen 2005(1) SACR 505

(SCA) at para [45}
28.
Director of Public Prosecution, Transvaal v Mtshweni 2007(2) SACR 217

(SCA) at para [26]
29.
S v Basson 2005(1) SA 171 (CC)
30.
S v Basson 2007(1) SACR 566 (CC) at para [254]
31.
S v Seekoei 1982 (3) SA 79 (A) at pages 102 and 103
T e x t B o o k s 1 P u b lic a tio n s
32.
CR SNYMAN. Criminal Law (6th ed.), paqes 188, 193/194. 197-198
33.
J onathan B urchell: Principles of Criminal Law (4th ed.) (revised reprint),

pages 383, 396 and 400
34.
K e lly PHELPS, The Role of Error in Objecto in South African Criminal

Law, published online as The Role o f error in objecto in South African
Law: An application for re-evaluation presented b y State v Pistorius"
under the heading Knowledge of unlawfulness, putative defences and
-5 0
-51-
149
-3error in objecto
S tatu te s
35.
Criminal Procedure Act, 51 of 1977
Copy attached
-S 1 -
150
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA
CASE NO: CC113-2013

DATE: 2014-09-11, 12

THE STATE
and
Accused
BEFORE THE HONOURABLE MS JUSTICE MASIPA
ASSESSORS:
ADV J HENZEN DU TOIT

ADV T MAZIBUKO
ON BEHALF OF THE STATE:
ADV GERRIE C NEL

ADV ANDREAJOHNSON
ON BEHALF OF THE DEFENCE:
ADV BARRY ROUX SC

ADV KENNY OLDWAGE
INTERPRETERS:
MS F HENDRICKS
JUDGMENT
VOLUME 42 (Page 3280 - 3351)
iAfrica Transcriptions (Pty) Ltd
1st Floor Office F112

Momentum Building, 329 Pretorius Street
Pretoria, 0001
Tel: (012) 326-1881 / Fax: (086) 409 8557
www.iafricatranscriptions.co.za
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JUDGMENT
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA

CASE NO: CC13/2013
DATE: 2014-09-11
2014-09-12

THE STATE
and
Accused
JUDGMENT
MASIPA J:
In 2013 the accused stayed at house number 286
Bushwillow Street, Silverwoods Country Estate, Silver Lakes. The house

with a double storey with the main bedroom on the first floor, the
accused slept in the main bedroom which had en suite facilities, that is a
bathroom and a toilet.
To reach the bathroom from the main bedroom one had to walk
through a passage, although there was no door separating the main
bedroom. From the bathroom there was a door to the toilet that opened
to the outside that is into the bathroom. The toilet was a small cubicle.
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-
The main bedroom had a sliding door that led onto a balcony. There
were blinds on the windows and thick curtains which hung on the
windows and the sliding door. When the blinds were closed and the
curtains were drawn, the main bedroom was dark.
On 13 February 2013 the accused spent the evening in his
home with his girlfriend, Reeva Steenkamp. In the early morning hours
of 14 February 2013 the accused shot and killed Steenkamp, the
deceased. At the time the shots were fired the deceased was inside the
locked toilet.
10
As
with the murder
a sequence to the above the accused was charged

of Reeva Steenkamp, read with the provisions of
Section 51(1) of the Criminal Law Amendment Act 105 of 1997. In

addition, he was charged with the following counts:
Count 2 : Contravention of Section
120(7) of the Firearms
Control Act 60 of 2000 - in that the accused is guilty of the offence of

contravening the provisions of Section 120(7) read with Sections 1, 103,
120(1)(a), Section 121 read with schedule 4 and Section 151 of the
Firearms Control Act 60 of 2000, discharge of a firearm in a built-up
area or any public place.
The indictment carries on, in that on or about 30 September
20
2010 and while travelling in a vehicle with other passengers on a public

road at or near
Modderfontein in the district of Kempton Park, the
accused did unlawfully discharge a firearm without good reason to do

so, by firing a shot with his own 9mm pistol through the open sunroof of
the car they were travelling in.
Alternative to count 2: Contravention of Section 120(3)(b) of the
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JUDGMENT
'
155
Firearms Control Act 60 of 2000 - That the accused is guilty of the

offence of contravening the provisions of Section 120(3)(b) read with
Sections 1, 103, 120(1)(a), Section 121 read with schedule 4 and
Section 151 of the Firearms Control Act 60 of 2000 -
reckless
endangerment - in that on or about 30 September 2012 and at or near

Modderfontein in the district of Kempton Park the accused, in the
circumstances mentioned in count 2 above, discharged a firearm to wit
his 9mm pistol with reckless disregard for other passengers in the car
and/or people in the vicinity.
10
Count 3:
Contravention of Section 120(7) of the Firearms
Control Act 60 of 2000 - That the accused is guilty of the offence of

contravening the provisions of Section 120(7) read with Sections 1, 103,
120(1 )(a), Section 121 read with schedule 4 and Section 151 of the
Firearms Control Act 60 of 2000 - discharge of a firearm in built up area
or any public place - in that during January 2013 and at Tashas
restaurant, Melrose Arch in the district of Johannesburg, the accused
unlawfully discharged a firearm, to wit a Glock 27 pistol, without any
good reason to do so. Tashas restaurant is a public place.
First alternative count to count 3: Contravention of Section
20
120(3)(a) of the Firearms Control Act 60 of 2000, that the accused is

guilty of the offence of contravening the provisions of Section 120(3)(a)
read with Sections 1, 103, 120(1)(a), Section 121 read with schedule 4
and Section 151 of the Firearms Control Act 60 of 2000 - negligent
damage to property - in that on or about January 2013 and at or near
Tashas restaurant, Melrose Arch in the district of Johannesburg, the
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1 54
accused negligently used a firearm to wit a Glock 27 pistol and caused

damage to the floor of the restaurant.
Second alternative to count 3:
Contravention of Section
120(3)(b) of the Firearms Control Act 60 of 2000 - that the accused is

guilty of the offence of contravening the provisions of Section 120(3)(b)
read with Sections 1, 103, 120(1)(a), Section 121 read with schedule 4
and Section 151 of the Firearms Control Act 60 of 2000 - reckless
endangerment - in that on or about January 2013 and at or near
Tashas restaurant, Melrose Arch in the district of Johannesburg, the
10
accused discharged a firearm to wit a Glock 27 pistol at a table in the

restaurant among other patrons in a manner likely to endanger the
safety of the people at his table and/or other patrons and the property of
the restaurant. The accused had, in discharging the firearm mentioned,
shown a reckless disregard for the safety of the patrons or property of
the restaurant.
Count 4 : Contravention of Section 90 of the Firearms Control
Act 60 of 2000 - that the accused is guilty of the offence of contravening
the provisions of Section 90 read with Sections 1, 103, 117, 120(1)(a),
Section 121 read with schedule 4 and Section 151 of the Firearms
20
Control Act 60 of 2000 and further read with Section 250 of the Criminal
Procedure Act 51 of 1977 - possession of ammunition - in that on or
about 16 February 2013 and at or near. 286 Bushwillow Street,
Silverwoods Country Estate, Silver Lakes in the district of Pretoria, the
accused did unlawfully have in his possession ammunition to wit 38
times 38 rounds without being a holder of:
JUDGMENT
3284
CC113/2013-/7?^
2014-09-11
155
a) a license in respect of a firearm capable of discharging that

ammunition;
b) a permit to possess ammunition;
c)
a dealers license manufacturers licence, a gunsmiths license,

import, export or in-transit permit or transporters permit issued in
terms of this Act;
d)
or is otherwise authorized to do so.
The accused pleaded not guilty to count 1 and handed in an explanation

of plea in terms of Section 112 of the Criminal Procedure Act 51 of
10
1977.
He also pleaded not guilty to counts 2, 3 and 4 and the
alternative counts. The accused was represented by Mr B Roux (SC)

and KC Oldwage. Mr G Nel and Ms A Johnson appeared for the state. I
sat with
two
assessors,
namely
Ms J
Henzen-du
Toit and
Mr
T Mazibuko.
Explanation of plea:
In his explanation of plea in respect of
count 1, the accused described the incident as a tragic one which

occurred after he had mistakenly believed that an intruder or intruders
had entered his home and posed an imminent threat to the deceased
and to him. The following extract is from the explanation of plea:
20
4.1 During the early hours of the morning I brought

two fans in from the balcony. I had shortly
spoken to Reeva who was in bed besides me.
4.2 Unbeknown to me, Reeva must have gone to
the toilet in the bathroom, at the time when I
brought in the fans, closed the sliding doors
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and drew the blinds and the curtains.

4.3 I heard the bathroom window sliding open. I
believed that an intruder or intruders had
entered the bathroom through the bathroom
window which was not fitted with burglar bars.
4.4 I approached the bathroom, armed with my
firearm so as to defend Reeva and I. At that
time, I believed Reeva was still in bed.
4.5 The discharging of my firearm was precipitated
by a noise in the toilet which I, in my fearful
state, knowing that I was on my stumps,
unable to run away or properly defend myself
physically,
believed
to
be the
intruder or
intruders coming out of the toilet to attack

Reeva and me.
There was no explanation of plea in respect of counts 2, 3 and 4.
Admissions in terms of section 220 of the Criminal Procedure
Act 51 of 1977 (the CPA): Admissions in terms of Section 220 of the
CPA were handed in by agreement between the parties. In respect of
count 1, the admissions made by the accused concerned inter alia the
identity of the deceased, the date, the scene and the cause of death.
The accused also admitted that the gunshot wounds were inflicted by
him; that the body of the deceased sustained no further injuries from the
time of death until the post-mortem examination was conducted on the
deceaseds body and that Dr Saayman conducted the post-mortem
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JUDGMENT
examination and correctly recorded his findings on EXHIBIT B.

There were no admissions made in respect of count 2. In
respect of count 3 the accused admitted that a shot went off while the
firearm was in his possession. In respect of count 4 the accused made
an admission that at all times relevant to the count he had not been
issued with a license to possess .38 calibre rounds of ammunition.
I now deal with the summary of events. In respect of count 1 the
state case was that the accused and the deceased had had an
argument and that the accused had then intentionally shot and killed the
10
deceased who had locked herself in the toilet. To support his case the
state called a witness - Ms Estelle van der Merwe, resident at the same
complex as the accused - who awoke a few minutes before 02:00 in the
morning to hear what she thought was a womans voice. To her it
sounded as if the woman was engaged in an argument with someone.
She could not however locate the voice nor tell what language was
being spoken or what was being said. Shortly after three oclock in the
morning, she heard what she thought were gunshots.
Mr Chari Peter Johnson and Ms Michelle Burger, husband and
wife, stayed in an adjacent complex about 177 metres away from the
20
house of the accused. They both heard screams that they interpreted
as those of a woman in distress.
Ms Annette Stipp who stayed in the
same complex as the accused, about 80 metres away, explained that

she heard three sounds that she thought were gunshots. A few minutes
later she and her husband, Stipp, heard someone crying out loud and a
man shouting for help.
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JUDGMENT
Mr Michael Raymond Nhlengethwa and his wife, Eontle Hillary,

were immediate neighbours to the left of the accuseds house.
Ms
Nhlengethwa woke her husband up to report that she had heard a bang.
Soon thereafter they both heard
a man
crying very loudly.
Ms
Nhlengethwa heard a man crying: Help! Help! Help! At 03:16:13 Mr

Nhlengethwa called security to report the loud crying, but did not get
through. He tried again at 03:16:36 and the call lasted 44 seconds.
Clarice Viljoen Stander was another witness. She woke up and
heard dogs barking. Thereafter she heard a man shout: Help! Help!
10
Help! According to her this was approximately five minutes before her
father, Johan Stander, received a call from the accused at 03:19.
Ms
Rea Motshuane is another neighbour of the accused. When one is

facing the house of the accused, she is the immediate neighbour on the
right. She awoke to hear a man crying out very loudly. She did not look
at the time, but estimated that it could have been 03:20 when she woke
up.
The accused denied the allegations that he killed the deceased
intentionally. He also denied that there was premeditation. The essence
of the explanation of plea as well as the evidence of the accused was
20
that when he armed himself with his firearm and fired through the toilet
door he was acting in the mistaken belief that the deceased, who was
then unknown to him in the toilet, was an intruder who posed a threat to
his life and to that of the deceased. He believed that the intruder or
intruders had come in through the open bathroom window. He had
earlier heard the window slide open. At the time he had his back to the
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JUDGMENT
bed just after he had awoken to bring in two fans from the balcony and
to draw the curtains. He was therefore unaware that the deceased had
left the bedroom to go to the toilet.
Common cause facts or facts which are not disputed: The
following are common cause facts which relate to count 1 only. It is
common cause that:
- on 14 February 2013 shortly after 3 in the morning, screams were
heard from the accuseds house;
- that the accused, while on his stumps, fired four shots at the toilet
10
door;
- that at the time the shots were fired the deceased was inside the
toilet;
- that the door of the toilet was locked from the inside;
- that the door of the toilet opened to the outside that is into the
bathroom;
- that three of the four shots struck the deceased;
- that the deceased sustained a wound on the right thigh, a wound on
the left upper arm, a head injury and a wound on the web of the
fingers and
20
- that the deceased died from multiple gunshot wounds.

Also common cause is that:
- soon after the shots had been fired the accused called for help;
- that he used a cricket bat to break down the door;
- removed the deceased from the toilet to the hallway downstairs;
- that he was very emotional soon after the incident and
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3289JUDGMENT
that he was seen trying to resuscitate the deceased.

The issues: It is clear therefore that the issues are limited to
whether at the time the accused shot and killed the deceased he had
the requisite intention, and if so, whether there was any premeditation.
Notwithstanding the limited issues, a lot of evidence was led and
counsel argued extensively over two days. It shall not be possible nor
will it serve any purpose to rehash the evidence in detail, hence the
summary of the evidence above. It should also be fruitless to attempt to
repeat every submission by counsel. This court has, however, taken all
10 the evidence, and that includes all the exhibits and all submissions
by
counsel, into consideration.

I may add that there were a number of issues which arose
during the course of the trial. These issues took a lot of the courts time
and correctly so, as at the time such issues were important to the
parties. The issues concerned were inter alia whether or not the police
contaminated the scene, the length of the extension cord that went
missing
from
the
accuseds
bedroom
and
the
authenticity
of
photographs of items depicted in various exhibits. Having regard to the

evidence as a whole this court is of the view that these issues have now
20
paled into significance when one has regard to the rest of the evidence.
The reason for that view will become clearer later in this judgment.
I proceed to analyse the evidence. I deal first with count 1. There
were no eye-witnesses. The only people on the scene at the time of the
incident were the accused and the deceased. Notwithstanding this fact,
there was no [indistinct 10:01:08] of witnesses who were willing to assist
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this court to determine what could have happened on the morning in

question.
Several witnesses gave evidence regarding what they heard or
what they thought they heard at the time of the incident. A few could, in
addition, tell the court what they observed after the incident. This court
is indebted to all those witnesses and this includes expert witnesses
who sacrificed their time and resources to come and assist in this
matter.
The record of the evidence runs into thousands of pages.
10
Thankfully the nub of what is an issue can be divided into three neat
categories as set out hereunder: Gunshots, sounds made by a cricket
bat striking against the door and screams in the early hours of the
morning. For purposes of this judgment, gunshots, sound made by a
cricket back striking against the door and screams will be discussed
together as they are to an extent inextricably linked.
It is common cause that on the morning of 14 February 2013,
shortly after 3 oclock various people heard gunshots, screams and
other noises that sounded like gunshots emanating from the house of
the accused. As stated before, various state witnesses heard screams
20
that they interpreted as those of a woman in distress. They heard noises

that sounded to them as gunshots.
The defence admitted that there were shots fired that morning,
but added that there were also sounds of a cricket bat striking hard
against the toilet door, and that the noises sounded similar and could
easily have been mistaken for shots. This was not contradicted. During
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3291JUDGMENT
the course of the trial it became clear that some of the sounds that
witnesses interpreted as gunshots were actually not gunshots, but
sounds of a cricket bat striking against the toilet door. It was also not
contradicted that the shots were fired first and that the striking of the
door, using a cricket bat, followed thereafter.
That there was a misinterpretation of some of the sounds is
clear from the following: It is common cause that only four gunshots
were fired by the accused that morning, yet some witnesses stated that
they heard more than four shorts while others heard less than four. This
can only mean that some of the sounds that were heard and interpreted
as shots could have been from the cricket bat striking against the door.
It could also mean that some of the witnesses missed some of the
sounds that morning, either because they were asleep at the time or
their focus was elsewhere. For example, a witness could have been on
the phone at the time.
Significantly Ms Burger refused to concede that she could have
missed hearing the first sounds - that is the shots - as she might have
been asleep at the time and that what she heard was a cricket bat
striking against the toilet door. The evidence of this witness as well as
that of her husband, Mr Johnson, is sought to corroborate her evidence,
was correctly criticised in my view as unreliable. I do however think that
they were unfairly criticised for having made almost identical statements
to the investigating officer, Captain van Aardt.
After all, they did not
write their statements and had no say in the format of the statements.
They merely related their version to Captain van Aardt who has his own
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"
153
style of writing and his own vocabulary. The witnesses could not have
been expected to know why he wrote in the manner that he did and why
he used certain words and in what sequence.
Captain van Aardt was
the only one who could have explained that. He was not called to do so.
That omission therefore cannot be used against the witnesses.
I do not think that Mr Johnson and Ms Burger were dishonest.
They did not even know the accused or the deceased. So they had no
interest in the matter. They also did not derive any pleasure in giving
evidence. They stated that they were at first reluctant to come forward
10 to give evidence until after the bail application, because they thought it
was the right thing to do. They simply related what they thought they
heard. They were, however, genuinely mistaken in what they heard as
the chronology of events will show.
In view, it is absurd to conclude that the evidence of witnesses
must be rejected in its entirety merely because the witnesses failed to
describe
the
contradictions
events
do
in
exactly
the
same
way.
not automatically lead to the
In
any
event,
rejection
of the
witnesses evidence as not every error negatively affects his credibility.

Before determining the credibility of a witness who contradicted himself
20
or herself, a court has to evaluate all the facts, taken into account the
nature of the contradictions, their number, their importance and bearing
on the rest of the evidence (see S v Mkohle 1990 (1) SACR 95 (A)).
It is easy to see why the witnesses would be mistaken about the
events of that morning. The distance from which Burger and Johnson
heard the noises put them at a distinct disadvantage. Both of them and
CC113/2013-/776
2014-09-11
3293JUDGMENT
164
the Stipps were adamant that they, in addition to the shots, heard
screams of a woman in distress. So sure was Johnson and his wife that
a couple had been attacked in their own home, that Johnson got up
early that morning to do something about improving his own security at
his home.
However, this court has approached the evidence of every
witness in this matter, not only that of Johnson and Burger, with the
necessary caution. There is a very good reason for this.
Factors such
as how long a witness has known a suspect, if at all, proximity, visibility,

10
mobility of the scene, the opportunity for observation and duration of the
incident play an important role and are always taken into consideration
by our courts (see S v Mthethwa 1972 (3) SA 766 (A)).
In the
present
case
we
are
here
dealing
with
sounds,
identification and voice or scream identification as well as interpretation

that experts referred to as intelligibility, something that is even more
tricky in my view. There is no reason why the same guidelines used in
identifying the features of a suspect should not be applicable to voice
identification.
In casu none of the witnesses had ever heard the accused cry or
20
scream, let alone when he was anxious. That in itself poses a challenge
as the witnesses had no prior knowledge or a model against which they
could compare what they had heard that morning. Even Ms Samantha
Taylor who confidently stated that when the accused was anxious or
agitated he sounded like a man and not like a woman, had to concede
that she had never heard him scream when he was facing a life-
mA
JUDGMENT
3294
CC113/2013-/775
2014-09-11
165
threatening situation. In any event, the evidence of Mr Lin, an acoustic

engineer, cast serious doubt on whether witnesses who were 80 metres
and 177 metres away respectively from the accuseds house would be
able to differentiate between a man and a womans screams, if the
screams were from the toilet with closed windows.
Also militating against the conclusion that it was a womans
scream that was heard that morning is the following:
1. At the time of the incident there was no one else in the accuseds
house except the accused and the deceased. Therefore it could only
10
have been one of them who screamed or cried out loud.

2. According to the post-mortem examination report the deceased
suffered
horrendous
injuries.
conducted
the
post-mortem
deceased
and
compiled
the
Professor
examination
Gert
Saayman
on the
post-mortem
who
body of the
examination
report,
marked ANNEXURE GW715, noted four gunshot wounds. These

were on the head, one on the right upper arm, one in the right groin
and one in the right hand between two fingers.
In his evidence Professor Saayman described the wounds individually
as follows: The nature of the wound on the right hip was such that:
20
there would have been almost immediate instability or loss of stability

pertaining to that limb or hip. He explained that a person could transport
weight onto the opposite limb and stand only on one leg, but the
probabilities were that the injured person would become immediately
$
unstable. It would clearly also be a particularly painful wound.

As whether the two injuries, that is the arm injury and the groin
CC113/2013-/776
2014-09-11
3295
JUDGMENT
injury, were serious he explained that both the injuries were so serious
that either of them could have killed the deceased. The injury to the arm
was particularly devastating as the shot had fractured and shuttered the
right upper arm.
Describing the head wound, Professor Saayman
stated that that would have been an immediately incapacitating injury.

A person
sustaining
a wound
of that
nature would
be almost
immediately incapable of voluntary action of any kind. He or she would

probably also be immediately unconscious.
The
respiratory functions
would have been compromised substantially. There was also damage

to the brain as well as substantial fracturing of the base of the skull, but
minimal blood in the airways. This suggested that the deceased
probably did not breathe more than a few seconds after sustaining this
wound.
The shots were fired in quick succession. In my view, this means
that the deceased would have been unable to shout or scream, at least
not in the manner described by those witnesses who were adamant that
they had heard a woman scream repeatedly. The only other person who
could have screamed is the accused.
The question is: why did he scream? His version is that he
screamed after he had fired the shots when he realised that the
deceased was
not in the bedroom. That version
has not been
contradicted. The time of the screams and the reasons for the screams
make sense when one has regard to the chronology of the events of
that morning. The screams were heard just after four shots were fired
and before the three sounds from a cricket bat were heard.
CC 113/2013-/776
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JUDGMENT
167
I continue to explain why most witnesses got their facts wrong.

The fact that this case attracted much media attention, especially soon
after the incident and the fact that it became a topic in many homes,
also did not assist. Almost every witness who was asked under crossexamination if he or she had followed the news relating to the events of
14 February 2013 or the bail proceedings or the trial proceedings,
responded positively.
A few witnesses conceded that they discussed the case with
others before they took the witness stand. Mr Darren Fresco for
10
example, who gave evidence for the state in counts 2 and 3 stated that
when someone called him the day before he was to give his testimony,
to inform him that his name had been mentioned in court, he was
curious and wanted to know the details. He therefore took the witness
stand with foreknowledge of what he might be asked.
I venture to say that Mr Fresco was not the only witness with
such a disadvantage. I refer to it as a disadvantage, because it does
affect the credibility of a witness as a witness might unwittingly relayed
what he or she had heard elsewhere as though he or she had personal
knowledge of the events. I am of the view that the probability is that
20
some witnesses failed to separate what they knew personally, from what
they had heard from other people or what they had gathered from the
media.
The last reason why this court had to approach the evidence of
each witness with caution is that the incident happened in the early
hours of the morning when most of the witnesses who gave evidence
fLTW\
CC113/2013-mb
2014-09-11
3297
JUDGMENT
*
were in bed. Ms van der Merwe was in and out of sleep. Mr Johnson,
Ms Burger as well as Dr and Ms Stipp were aroused out of sleep by
either screams or what sounded like shots. Ms Burger described it as a
confusing night, while Dr Stipp got his times clearly wrong.
It was not
disputed that Dr Stipp heard the first sounds, heard screaming or

shouting, heard the second sound, went to the accuseds house and
assisted Mr Stander to call 911 in that order.
Counsel for the defence submitted correctly that the evidence of
Dr Stipp was unreliable as to the times when different events in this
10
matter unfolded. He submitted further that Dr Stipps evidence in some

instances was tailored with the objective of assisting the states
allegation. I do not agree with this submission. Dr Stipp had no interest
in the matter and would therefore have no reason to tailor his evidence
to assist the state. I do not believe that he coloured his evidence against
the accused.
On the contrary, he showed no bias against him. He told this
court that when he arrived at the accuseds house he observed a
destroyed accused attempting to resuscitate the deceased. That he was
praying to God to save the deceased, that as soon as the accused
20
learnt that he was a doctor he employed him to do something.
When
asked if he thought the accuseds distress appeared genuine to him, he

did not hesitate to respond positively. The facts above have been set
out to demonstrate the difficult terrain that this court had to traverse to
arrive at its conclusion.
It follows from the above that it would be unwise to rely on any
Em
CC113/2013-/776
2014-09-11
3298
JUDGMENT
*
evidence by the witnesses and this includes those witnesses called by

the defence who gave evidence on what they heard that morning
without testing each version against objective evidence.
Human beings are fallible and they depend on memories which
failed over time. Thankfully as it shall be clear from the chronology of
the events, this court is in a fortunate position in that it has objective
evidence in the form of technology which is more reliable than human
perception and human memory and against which all the other evidence
can be tested.
10
Phone records which tell us exactly who made the call, from
which cell phone to which cell phone and at what time, were made
available to this court and we took full advantage of that. There is also a
record of the duration of each call. It is significant that although most of
the timelines were initially introduced into evidence by the state, it was
the defence which analysed the timelines as set out hereunder and
addressed the court on each.
When I asked state counsel if the timelines were common
cause, his response was that only the recordings of the various calls
were common cause, giving an impression that the rest of the timelines
20
was disputed. However, there was no address forthcoming from the

state to disturb the timelines as set out hereunder.
In any event, one can safely use the phone records which were
made between
03:15:51
and 03:17 as a base to arrive at the
approximate times when the shots were fired, when the screams were
heard as well as when the sounds of the cricket bat was striking against
T>J\
CC113/2013-mb
2014-09-11
3299
JUDGMENT
] 70
the door were heard. In addition, the accuseds phone records are also
available. A perusal of this record show that at 03:19:03, which was
minutes after the sounds caused by a cricket bat were heard which was
approximately 03:17, the accused was on the phone calling Stander.
minute later he called 911. Thereafter, one and a half minutes later, he
called security.
I now proceed to set out the chronology of events:
I.
At 02:20 security activated guard track next to the house of the

accused.
10
2.
Approximately between 03:12 and 03:14 first sounds were heard.

These were shots.
3.
Approximately 03:14-15 accused was heard shouting for help.
4.
Approximately between 03:12 and 03:17 screams were heard or

screaming was heard.
5.
Approximately 03:15 accused was seen walking in the bathroom.
6.
03:15:51, the duration was 16 seconds, Dr Stipp telephoned the

Silver Lakes security.
7.
03:16, the duration was 58 seconds, Mr Johnson called and spoke

to Strubenkop security.
20
8.
03:16:13 Mr Michael Nhlengethwa made his first call
to security.
This call did not go through.

9.
03:16:36, the duration was 44 seconds, Mr Michael Nhlengethwa

made his second call to security.
10.
03:17 Dr Stipp attempted to make a call to 10111.
II.
03:17 second sounds were heard. These were cricket
bat striking
t'TV'A
CC113/2013-m/)
2014-09-11
3300
JUDGMENT
1
against the door.

12.
03:19:03, the duration was 24 seconds, the accused called Johan

Stander.
13.
03:20:05, the duration was 66 seconds, accused called 911.
14.
03:21:33, the duration was 9 seconds, the accused called security.
15.
03:22:05, duration 12 seconds, Peter Baba, the security, called

the accused.
16.
03:22 Baba, the security, arrived at the house of the accused.
17.
Approximately 03:22 Johan Stander and Clarice Viljoen arrived at

the house of the accused.
18.
Approximately 03:23-24 Dr Stipp arrived at the house of the

accused.
19.
03:27:06 Johan Standers call to 911 in the presence of Dr Stipp.
20.
03:27:14 Dr Stipp attempted to call security. This call did not
get
through.
21.
03:41:57 an ambulance arrived at security gate of Silverwoods

Estate.
22.
Approximately 03:50 paramedics declared the deceased dead.
23.
Approximately 03:55 police arrived at the accuseds house.
The chronology above gives a feel of where various witnesses

corroborate one anothers evidence and where they contradict one
another. An analysis of the evidence using the timelines as a basis will
also assist this court to determine whether the state has proved beyond
reasonable
doubt
that
the
accused
premeditation to kill the deceased.
had
direct
intention
and
CC113/2013-mb
2014-09-11
3301
JUDGMENT
1 72
The first sounds between approximately 03:13 and 03:14 it

seems to me from the analysis of the evidence that the first sounds
which were identified by the defence as the shots fired by the accused,
and which fact was not seriously disputed by the state were heard
between approximately 03:13 and 03:14. What is also clear is that the
screams that were heard shortly after the shots were fired and before
the second sounds which turned out to be the sounds of the cricket bat
striking against the door, could not have been those of the deceased as
she had then suffered devastating injuries.
10
Ms van der Merwe woke up around 01:56 to hear a one-sided

argument, later heard four gunshots in close succession. Her estimation
was that it was about three oclock. Soon thereafter she heard someone
crying out aloud. It seemed to her that it was a womans voice, but her
husband told her that it was the accused crying. Although it was not
established how her husband knew that it was the accused who was
crying, this piece of evidence is enough to throw some doubt on the
evidence of the witnesses who are adamant that they had heard a
woman scream.
Dr and Ms Stipp gave evidence that the screaming was heard
20
between the first and the second sounds. Mr and Ms Nhlengethwas

evidence was that the crying out loud occurred shortly after the first
sound. This version has a ring of truth.
I say this, because Mr Nhlengethwa called security at 03:16:36
to report the crying out loud. Lending credence to this is the evidence of
Mr Johnson and Ms Burger which was that the screaming occurred
CC113/2013-mf>
2014-09-11
3302
JUDGMENT
between approximately 03:12 and 03:17.

Ms Stipps time seem to be wrong as it does not accord with the
times of other witnesses. She relied on her radio clock to estimate the
time of the events as they unfolded. According to her when she woke up
the clock showed 03:02. She stated that her clock would have been
three minutes early. She was about to get up when she heard three
sounds which sounded like gunshots. She communicated this to her
husband who, having left the bedroom earlier to go to the big balcony,
returned to the bedroom to make a phone call.
At 03:15:51 Dr Stipp made a call to security and then at 03:17 he
attempted to call 10111. The timing of the call to security is important as
it is an indication that the time when Ms Stipp heard the gunshots must
have been much later than 03:02. I say this because from their evidence
it is clear that both Mr and both Dr and Ms Stipp regarded the incident
as an emergency which warranted prompt action, and there seems to
be no reason why they would delay seeking help. Hence, as counsel for
the defence correctly admit, it is unlikely that Ms Stipp would take as
long as 13 minutes before she and her husband could respond to the
emergency. It is more probable that the time Ms Stipp heard shots was
much later than the time that she mentioned.
What is interesting is that Mr Johnson too made his first call at
03:16. This call was made to Strubenkop security. This time is closer to
the time mentioned by the Stipps as the time Dr Stipp made a call to
security. Johnson made the call soon after he and his wife, Ms Burger,
had heard what they described as a woman screaming. They also heard
CC113/2013-/775
3303
JUDGMENT
a man shout help three times. It was only after this that they heard
what they described as gunshots. It is clear from the rest of the
evidence that these were actually sounds of a cricket bat striking
against the toilet door.
Ms Motshwane, a neighbour of the accused, woke up to hear a
man crying very loudly. In her statement she stated that when she heard
a man cry out loud it was about 03:20. This estimation too, in my view,
cannot be relied on as it was more like guessing as she did not look at
the time when she got up. What is also interesting about the evidence of
10
Ms Motshuane is that although she was an immediate neighbour of the

accused she did not hear the shots, but woke up when she heard a man
crying.
At the time the second sounds were heard Dr Stipp was on the
phone trying to call 10111. He described what he heard as three loud
bangs while Ms Stipp described the same sounds as three thud sounds.
The number of these loud bangs or thud sounds as well as the time is
consistent with the version of the accused that soon after he had
realised that the person behind the toilet door might have been the
deceased, he ran to the balcony from where he screamed for help, took
20
the cricket bat and proceeded to the bathroom where he struck the toilet
door three times with the cricket bat.
Having dealt with the gunshots and the cricket bat sounds, the
next question is: can the version of the accused that he is the one who
was screaming on the morning of 14 February 2013, reasonably
possibly be true? It is important to recap the states theory which was
EM
3304
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2014-09-11
JUDGMENT
175
that the accused and the deceased had an argument in the early hours
of that morning, an argument that was heard by Ms van der Merwe that
the deceased fled to the toilet, that the accused followed her there and
in the heat of further argument the accused shot and killed her. In
support of this theory state counsel pointed to the fact that amongst
other things the deceased had a cell phone with her and had locked
herself inside the toilet.
In my view, there could be a number of reasons why the
deceased felt the need to take her cell phone with her to the toilet. One
10
of the possible reasons may be that the deceased needed to use her
cell phone for lighting purposes as the light in the toilet was not working.
To try to pick just one reason would be to delve into the realm of
speculation.
The state also led the evidence of Whatsapp messages that
went to and fro the accused and the deceased a few weeks before the
deceased was killed. The purpose of such evidence was to demonstrate
to this court that the relationship between the accused and the
deceased was on the rocks and that the accused had a good reason to
want to kill the deceased. In a bid to persuade this court otherwise, the
20
defendant or the defence placed on record more Whatsapp messages

that painted a picture of a loving couple.
In my view, none of this evidence from the state or from the
defence
proves
anything.
Normal
relationships
are dynamic
and
unpredictable most of the times, while human beings are fickle. Neither
the evidence of a loving relationship, nor of a relationship turned sour,
EifA
&
CC113/2013-mb
2014-09-11
JUDGMENT
3305
176
can assist this court to determine whether the accused had the requisite
intention to kill the deceased. For that reason this court refrains from
making inferences one way or the other in this regard.
There is also the matter of partially digested food that Professor
Saayman found in the stomach of the deceaseds body during the post
mortem examination of the deceased. Counsel for the state submitted
that this fact was a strong indication that dinner was not at 19:00 the
night before as alleged by the accused, but closer to the time when the
deceased was shot dead. He argued that that would explain the
10
argument that was heard by Ms van der Merwe just after she had
woken up at 01:56. This argument seems to lose sight of the following:
1.
That the experts agreed that gastric emptying was not an exact
science. It would therefore be unwise for this court to even attempt
to figure out what the presence of partially digested food might
c
mean as the evidence before this court is inconclusive. However,

even if this court were to accept that the deceased had something
to eat shortly before she was killed, it would not assist the state as
the inference sought to be drawn by the state from this fact is not
the only reasonable inference. She might have left the bedroom
while the accused was asleep to get something to eat. What
20
complicates this matter is that it is not even clear when and if the
alarm was activated at any given time that evening or that morning.
2.
That Ms van der Merwe had no idea where the voice came from,
what language was being spoken or what was being said.
Accordingly, there is nothing in the evidence of Ms van der Merwe
CC 113/2013-rnjb
2014-09-11
3306
" 1 7 7
; JUDGM
that links what sounded like an argument to her to the incident at

the house of the accused. What is of significance, however, is that
Mr Peter Baba, the security guard, was near the house of the
accused at 02:20 on patrol. There is no evidence that Mr Baba
heard or saw anything untoward at the accuseds house at the
time.
I now deal with the defence case. The accuseds evidence is important
as the accused is the only one who can tell this court how the incident
happened. This evidence shall therefore be set out in detail. The
10
accuseds evidence was that on the evening of 13 February 2014 at

about 19:00 he and the deceased had dinner at his house. Soon
thereafter he had gone to bed early as he was tired. He estimated that
the time was about 21:00.
In the early hours of the morning he woke up to find the lights
switched off. However, the sliding door was open and the two fans in the
doorway were on. He spoke briefly to the deceased.
Then got out of
bed to bring the fans inside, close the sliding door and draw the
curtains. It was pitch dark except for a slender blue LED light that came
from the amplifier. He picked up a pair of jeans belonging to the
20
deceased and was about to place it on the blue light to block it out when
he heard what sounded like the bathroom window sliding open and
striking the frame.
He thought it was an intruder gaining entry into his
home, coming to attack him and the deceased. He was on his stumps
and he felt vulnerable.
After arming himself with his firearm which he had removed from
BTfA
CC113/2013-/776
2014-09-11
3307
JUDGMENT
-
the left side of the bed where he had left it the night before, he told the
deceased to call the police, then proceeded to the passage which led to
the bathroom. He shouted more than once to the intruders to get out,
meanwhile he heard a door slam. The bathroom lights were off, but he
could see from the entrance that the bathroom window was open while
the toilet door was closed. There was no one in the bathroom. He did
not know whether the intruder or intruders were on a stepladder outside
the bathroom window or where inside the toilet. He had his firearm
pointed in front of him.
10
He then heard a movement inside the toilet and thought that

whoever was in the toilet was coming out to attack him. He gave
evidence as follows:
Before I knew it, I had fired four shots at the
door...
He went back to the bedroom only to find that the deceased was not in
the bedroom. It then occurred to him that the person he had shot at in
the toilet, might have been the deceased. He returned to the bathroom
and found the toilet door locked. He returned to the bedroom, opened
the sliding door and screamed for help. He then put on his prostheses,
20
returned to the bathroom and tried to open the door by kicking it. The
door did not budge.
He went back to the bedroom where he removed a cricket bat.
At the time he was screaming, shouting and crying out. Back in the
bathroom he struck the door with the cricket bat three times. When the
door panel broke, he removed the key which was on the floor and
178
CC 113/2013-/776
3308JUDGMENT
opened the door. The deceased was lying in a sitting position on the
floor with her head on the toilet bowl. After a brief struggle to lift up the
deceased
the
accused
finally
managed
to
carry
the
deceased
downstairs. He was descending the stairs when Mr Stander and his

daughter,
Ms Viljoen, walked in. Stander was responding to the
accuseds call for help that the accused had made earlier when he had
spoken to him on the phone.
I now deal with the accuseds defence. A perusal of the evidence of the
accused shows a number of defences or apparent defences. On the
10
version of the accused it was not quite clear whether he had intended to
shoot or not.
This was exacerbated by the fact that Dr Meryl Foster
called on behalf of the accused, placed on doubt the accuseds

culpability at the time of the incident. Dr Fosters evidence was that the
accused suffered from a General Anxiety Disorder which may have
affected his conduct at the time of the incident.
Before dealing with the implications of Dr Fosters evidence
however, it is convenient to scrutinize the evidence of the accused first
which might shed light on this defence. I have selected a few extracts
from the accuseds evidence.
20
The shooting was an accident. The accused said he shot in the

belief that the intruders were coming out to attack him. He did not have
time to think. He never intended to shoot anyone. He pulled the trigger
when he heard the noise. He fired into the toilet door. He did not
purposefully fire into the door. He fired shots at the door, but he did not
do so deliberately. He never aimed at the door. The firearm was pointed
CC 113/2013-mb
2014-09-11
3309JUDGMENT
180
at the door when he discharged his firearm as he got a fright. He

remembered pulling the trigger in quick succession. However, he could
not remember firing specifically four shots. He:
Fired before I could think, before I even had a
moment to comprehend what was happening.
I pulled the trigger at that moment when I heard the noise. I did not have
time to think about what was happening. He stated once more:
Before thinking, out of fear, I fired the shots.
The discharge of the firearm was accidental as he claimed that he did
10
not intend to discharge his firearm in that he was not meaning to shoot
at anyone. He:
Shot because I was at that point, with that split
moment, I believed somebody was coming out to
attack me. That is what made me fire out of fear. I
did not have time to think. I discharged my firearm.
When the accused was asked to explain what he had meant by
accident when he gave his evidence, he answered as follows:
The accident was that I discharged my firearm in
the belief that an intruder was coming out to attack
20
me.
So, the discharge was not accidental or was the
discharge accidental?
His answer:
The discharge was accidental, M'Lady. I believe
that somebody was coming out. I believed the noise
CC113/2013-/776
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JUDGMENT
181
that I heard inside the toilet was somebody coming
out to attack me or to take my life.
The accused stated that at no stage was he ready to discharge his
firearm, though the firearm itself was in a ready mode. He confirmed
that he had released the safety mechanism on the firearm in case he
needed to use the firearm to protect himself. Responding to a question
as to whether he had consciously pulled the trigger, he answered as
follows:
I did not think about pulling the trigger. As soon as
10
I heard the noise, before I could think, I pulled the

trigger.
The accused stated that he never thought of the possibility that he could
kill people in the toilet. He considered, however, that thinking back
retrospectively it would be a probability that someone could be killed in
the toilet. He stated that if he wanted to shoot the intruder he would
have shot higher up and more in the direction where the opening of the
door would be to the far right of the door and at chest height. I pause to
state that this assertion is inconsistent with that of someone who shot
without thinking. I shall revert to this later in my judgment.
20
Counsel for the defence argued that while the accused had in
fact approached the bathroom in a state of readiness to defend himself
and the deceased against a perceived threat, he did not consciously
discharge his firearm in the direction of the toilet door. He argued that
from the evidence of the accused, it is clear that the conduct of the
accused and the death of the deceased were an accident.
[11:02- 11:42]
B\W\
is ?
CC113/2013-mvn
2014-09-11
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JUDGMENT
| g2
In the same breath counsel for the defence submitted that the
fact that when the accused approached the toilet, he had the intention to
shoot to protect himself did not imply that the accused intended to shoot
without reason. If that had been his intention he would have discharged
his firearm when he arrived at the entrance of the bathroom.
Defence
counsel
argued
that the
evidence
of Professors
Derman, Vorster, and Scholtz as a whole, was consistent with that of the
accused when he stated
that he discharged
his firearm
in reflex
because he felt vulnerable and was fearful.

10
The above extracts and the submissions by defence counsel

show without a doubt that we are here dealing with a plethora of
defences. I proceed to deal with each of them in turn.
The first one is: Did the accused lack criminal capacity at the time that
he killed the deceased?
This defence that
the accused
may have
lacked
criminal
capacity or may have diminished his criminal capacity at the time of the
incident,
emerged during
repeatedly
told
this
the course of the
court
that
he
trial.
had no
The
time
accused
to
think
before he fired the shots or before he knew it he had fired four shots at
20
the door.
This raised the doubt whether the accused could be held
criminally accountable.
The inevitable question therefore was, amongst other things
whether or not the accused could distinguish between right and wrong
and whether he could act in accordance with that distinction.
Though not clearly expressed in so many words, the defence
CC113/2013-/77w?
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JUDGMENT
I 83
had the hallmarks of temporary non-pathological criminal incapacity. It

also sounded like the so-called irresistible impulse which was applied in
our criminal law prior to 1977, when it was replaced by Section 78(1 )(b)
of The Criminal Procedure Act 51, 1977.
In support of the defence, as I said earlier, Dr Vorster gave
evidence that the accused suffered from General Anxiety Disorder,
which may have affected his conduct at the time of the incident. The
implication of this evidence was that it became necessary for this court
to refer the accused for psychiatric observation.
10
Referral for observation in terms of section (78)(2) of The

Criminal Procedure Act 51 of 1977, following an order referring the
accused for psychiatric observation, a panel of experts was appointed.
These were three psychiatrists, namely Dr Kotze appointed to assist the
state, Dr Fine to assist the defence and Dr Pretorius to assist the court.
In addition, a psychologist Professor Scholtz was also appointed to
assist.
The psychiatrists compiled a joint report where they noted there
findings.
The report was submitted to the court and marked EXHIBIT
PPP. The relevant portion of this exhibit is to be found in paragraph 6.C

20
which reads thus:

At the time of the alleged offences, the accused did
not suffer from a mental disorder or a mental defect
that affected his ability to distinguish between rightful
or wrongful
nature of his deeds and a mental
disorder, or mental defect did not affect his ability to
CC113/2013-A77W?
2014-09-11
3313
JUDGMENT
*
|
act in accordance with the said appreciation of the

rightful or wrongful nature of his deeds.
Similarly the psychologist report marked EXHIBIT QQQ was submitted
to court and formed part of the record. The relevant part of the record is
on page 31 paragraph 6.1 and 6.2 which reads thus:
6.1. Mr Pistorius did not suffer from a mental
defect or mental illness at the time of the
commission of the offence that would have
rendered him criminally not responsible for
the offence as charged.
6.2. Mr Pistorius was capable of appreciating the
wrongfulness
accordance
of his act and/or acting

with
an
appreciation
of
in
the
wrongfulness of his acts.

Both state and defence counsel indicated to the court that they
accepted the findings as set out on EXHIBIT PPP and EXHIBIT QQQ.
However, counsel for the defence still submitted that, in the face
of the evidence of Professor Derman about the accused reaction to a
startle, it could not be said that the accused was criminally liable.
Counsel submitted that in determining the issue of whether the
accused was guilty of murder or culpable homicide, this court ought to
consider that the accused lacked criminal capacity at the time, as he
discharged his firearm because of an increase startled response.
He
pointed out that the startle response was reflexive. This meant that the
accused could not be held accountable as he lacked capacity in the
CC113/2013-/77w?
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185
involuntary reflexive response.

He submitted that whether this reflex fell under the act actus
reus or criminal capacity, made no difference as both negated liability.
Counsel for the defence further submitted that a finding that the
accused was guilty, could not be made as the accused could not be held
liable for a reflex discharge,caused by the increased startled response.
I disagree with this submission.
There is a huge difference as
submitted by state counsel, between a reflex action and involuntary

action.
The latter concept has the hallmark of a defence of non-
10 pathological insanity, as it gives the impression that the accused had no

control over his action when he fired the shots at the door.
That this
cannot be, is clear from the steps that the accused took from the
moment he heard the sounds of the window opening to the time he fired
the four shots.
There was no lapse of memory or any confusion on the part of
the accused. On his own version he froze, then decided to arm himself
and go to the bathroom. In other words he took a conscious decision.
He knew where he kept his firearm and he knew where his
bathroom was. He noticed that the bathroom window was open, which
20
is something that confirmed his correctness about having heard the

window open earlier. This is inconsistent with lack of criminal capacity.
In any event, the experts have already pronounced on this defence and
this court has not been given any reason not to accept their evidence.
Having regard to expert evidence and the evidence as a whole
this court is satisfied that at the relevant time, the accused could
CC113/2013-mvn
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distinguish
between
3315
JUDGMENT
186
right and
wrong
and that
he could
act
in
accordance with that distinction. It is also clear that the defence of nonpathological insanity has no foundation.
The second possible defence:
Putative private defence.
Counsel for
the defence submitted that the accused intentionally discharged the

shots in the belief that the intruder or intruders was, or were coming out
of the toilet, to attack him and the deceased. In this regard he referred
to the accuseds testimony, which testimony was contradictory in my
view. These are just some of the relevant extracts. He said:
10
"... that split moment I believed somebody was

coming out to attack me. That is what made me fire.
Out of fear. I did not have time to think.
Later the accused testified:
I fired my firearm as I believed that someone was
coming out of the toilet to attack me.
I do not know
how to put it in a different way.

Later still he said:
I thought that somebody was coming out to attack
me.
20
In the same breath the accused stated:

I never intended to shoot anyone. I got a fright from
a noise.
I did not shoot at anyone I did not intend to shoot at
someone, I shot out of fear.
I did not intend to shoot into or I did not intend to
CC113/2013-mvn
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3316JUDGMENT
shoot at anyone.
He was asked:
You never purposefully fired into the door?
The answer was:
No M'Lady I did not.
The question:
So you never wanted to shoot at robbers, intruders
coming out of the toilet?
The answer was:
That is correct.
The essence of the accuseds defence is that he had no intention to
shoot at anyone but if it was found that there was such an intention then
he shot at what he:
...perceived as an intruder coming out to attack me.
Counsel for the state, correctly in my view, submitted that if the accused
never intended to shoot anyone, he cannot rely on a defence of putative
self defence.
As stated above in evaluating putative defence the court will
apply a subjective test, as opposed to an objective test, which is used in
determining self defence.
In the present case the accused version is
that he had no intention to shoot at anyone, let alone the deceased. Yet
on his own version the accused armed himself with a loaded firearm
and approached what he thought was danger, with a firearm ready to
shoot.
It would be absurd, for instance, to infer from the accused
conduct, that he was going to hit the intruder over the head with it, as he
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3317JUDGMENT
188
could have easily used a cricket bat for that purpose.
This strange conduct of the accused was explained by Professor
Derman as a fight, as opposed your flight response. This court accepts
that the accused is a fight rather than a flight reaction person, as
Professor Derman testified.
This court also accepts that a person with an anxiety disorder as
described by Dr Vorster, would get anxious very easily, especially when
he is faced with danger. It is also understandable, that a person with a
disability such as that of the accused would certainly feel vulnerable,
10
when faced with danger.

I hasten to add however that the accused is not unique in this
respect. Women, children, the elderly and all those with limited mobility
would fall under the same category, but would it be reasonable if without
further ado, they armed themselves with a firearm when threatened with
danger.
I do not think so, as every case would depend on its own
merits.
The accused clearly wanted to use the firearm and the only way
he could have used it was to shoot at the perceived danger.
The
intention to shoot however does not necessarily include the intention to

20
kill. Depending on the circumstances of each case an accused may be

found guilty of dolus eventualis or culpable homicide. In this case there
is only one essential point of dispute and it is this:
Did the accused
have the required mens rea to kill the deceased when he pulled the
trigger? In other words, was there intention? The essential question is
whether on the basis of all the evidence presented, there is a
EM
CC113/2013-mvn
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3318
JUDGMENT
I 89
reasonable doubt concerning the accuseds guilt.

The onus of proof in a criminal case is discharged by the state if
the evidence establishes the guilt of the accused beyond reasonable
doubt. The corollary is that he or she is entitled to be acquitted, that is
the accused, if it is reasonably possible that he or she might be
innocent, see S v van der Meiden 1999 (2) SA 79 (W).
In the same
case the court warned against the danger of examining the version of
the accused in isolation for purposes of either convicting or acquitting.
The court emphasized the importance of looking at the evidence as a
10
whole and not piecemeal and then proceeded.

The process o f reasoning which is appropriate to the application
of the proper test in any particular case will depend on the nature of the
evidence which the court has before it.
What must be borne in mind
however, is that the conclusion which is reached, whether it be to

convict or to acquit must account for all the evidence. Some of it might
be found to be false, some of it might be found to be unreliable and
some of it may be found to be only possibly false or unreliable but none
of it may simply be ignored.
The accused as a witness:
20
The accused was a very poor witness.
While during evidence in chief he seemed composed and logical, with a

result that his evidence flowed and made sense, while giving his version
under cross-examination he lost his composure.
Counsel for defence
sought to explain the accuseds poor performance on the witness stand

thus: The accused was suffering from enormous emotional stress; had
been traumatised by the incidents of 14 February 2013 and was under
CC113/2013-mvn
2014-09-11
3319JUDGMENT
1
medication when he gave his evidence.

This argument does not make sense in my view.
the following reasons:
I say this for
The accuseds performance during during
examination in chief could not be faulted.
It was only under cross-
examination that he contradicted himself and visibly felt uncomfortable.

In any event, this court was not appraised of the fact, that the factors
mentioned above might interfere with the accuseds ability to give
evidence.
It does not assist to mention them now when the trial is over. It
is so that most witnesses do find giving evidence an uncomfortable
experience, especially when they give evidence for the first time.
It
follows therefore that someone in the position of the accused, would find
giving evidence a harrowing experience as he re-lives the incident.
However, what we are dealing with here is the fact that the
accused was, amongst other things, an evasive witness.
there are several reasons for this.
In my view
He failed to listen properly to
questions put to him under cross-examination, giving an impression that

he was more worried by the impact that his answers might cause, rather
than the questions asked.
Often a question requiring a straight forward answer turned into
a point of debate about what another witness did or said.
When
contradictions were pointed out to him or when he was asked why

certain propositions were not put to state witnesses, he often blamed his
legal team for the oversight.
Although the untruthful evidence of an accused is of importance
CC113/2013-/77w?
2014-09-11
JUDGMENT
3320
I 91
when a court determines the guilt or otherwise of an accused, caution

must be exercised and courts ought to avoid attaching too much weight
to such untruthfulness.
The conclusion, that because an accused is untruthful he is
therefore probably guilty, must be guided against, as a false statement
does not always justify the most extreme conclusion.
In the present
case the deceased was killed under very peculiar circumstances.

There are indeed a number of aspects in the case which do not
make sense, such as:
10
Why the accused did not ascertain from the deceased when he
heard the window open, whether she too had heard anything.
Why he did not ascertain whether the deceased had heard him
since he did not get a response from the deceased before making
his way to the bathroom.
Why the deceased was in the toilet and only a few metres away
from the accused, did not communicate with the accused, or phone
the police as requested by the accused. This the deceased could
have done, irrespective of whether she was in the bedroom or in
the toilet, as she had her cell phone with her. It makes no sense to
20
say she did not hear him scream, get out.
It was the accused
version that he screamed on top of his voice, when ordering the

intruders to get out. Another question is:
Why the accused fired not one, one shot but four shots, before he
ran back to the bedroom to try to find the deceased.These questions shall unfortunately remain a matter of conjecture.
P H
CC 113/2013-/77W7
2014-09-11
3321
JUDGMENT
What is not conjecture, however, is that the accused armed himself with
a loaded firearm when, on his own version, he suspected that an
intruder might be coming in through the bathroom window. He was not
truthful when asked about his intentions that morning, as he armed
himself with a lethal weapon. The accused was clearly not candid with
the court when he said that he had no intention to shoot at anyone, as
he had a loaded firearm in his hand, ready to shoot.
However, as stated above, untruthful evidence does not always
justify the conclusion that the accused is guilty.
The weight to be
attached thereto must be related to the circumstances of each case. (S

v Mtswene 1985 (1) SA590 (A)).
There is also the question of onus. No onus rest on the accused
to convince this court of the truth of any explanation that he gives. If he
gives an explanation, even if that explanation be improbable, the court
is not entitled to convict, unless it is satisfied not only that the
explanation is improbable but that beyond any reasonable doubt it is
false.
If there is any possibility therefore of his explanation being true
then he is entitled to his acquittal.
(See Diffort 1937 (AD) 370). The
onus is on the state throughout to prove beyond reasonable doubt that

the accused is guilty of the offence with which he has been charged.
Should the accuseds version or evidence be found to be reasonably
possibly true, he would be entitled to his acquittal.
In count 1 the accused is charged with pre-meditated murder. In
respect of this charge the evidence is purely circumstantial.
That
CC113/2013-mvn
2014-09-11
3322
JUDGMENT
1 93
evidence is in essence about shots, about the screams and about

sounds of the cricket bat.
The fundamental rule in considering circumstantial evidence is
V
that in order to justify an inference of guilt, a court must be sure that

inculpatory facts are incompatible [indistinct] the innocence of the
accused
and
incapable
of explanation
on any other reasonable
hypotheses. The simple explanation from the accused is that shooting

the deceased dead was a genuine mistake, as he thought he was
shooting at an intruder behind the toilet door.
10
The timelines as set out in the chronology of events tip the

scales in favour of the accuseds version in general.
Viewed in its
totality the evidence failed to establish that the accused had the
requisite intention to kill the deceased, let alone with premeditation.
am here talking about direct intention.

The state clearly has not proved beyond reasonable doubt that
the accused is guilty of premeditated murder. There are just not enough
facts to support such a finding.
Counsel for the state submitted that even if the court were to find
that the accused shot the deceased, thinking that he was firing the shots
20
at an intruder, this would not assist him as he had intended to kill a

human being.
This was so because all the elements of the crime of
murder had been met, it was argued.

On the other hand counsel for the defence submitted that the
state was attempting to reintroduce the concept of transferred malice,
which was not part of our law. This brings the question whether we are
EM
CC113/2013-mvn
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JUDGMENT
194
really dealing with the question of transferred malice.

It might be convenient at this stage to say something briefly
about two concepts which often are confused, namely: aberratio ictus
and error in personae or error in objecto.
[12:12 - 12:21]
Abbaratio ictus (the going astray of the blow).
The abbaratio ictus
means the going astray of the missing blow or missing of the blow. In
abbaratio ictus A intends to kill B but misses him and kills C. It follows
that A has intentional respect of C only if he foresees of foresaw the
possibility of Cs death, in which event he would be guilty of murder
10
dolus eventualis or for culpable homicide.

If Cs death was reasonably foreseeable, in which event he
would be guilty of culpable homicide. On the other had error in objecto
cares where A, intending to kill B shoots and kills C whom he mistakenly
believes to be B.
In these circumstances A is clearly guilty of the
murder of C. (C de Wet and Swanepoel 142 JRL Milton has stabbed in

the dark a case of abberratio ictus 1968 (85) SA LJ 115-118. See also
Glenda
Williams
138).
His
intention
is directed
at
a specific
predetermined individual, although he is in error as to the exact identity

of that individual.
20
In other words A intends to kills the individual
irrespective of whether the name of the individual is B or C.

There is thus in the case of error in objecto so to speak an
undeflected mens rea which falls upon the person it was intended to
affect.
The error as to the identity of the individual therefore is not
relevant to the question of mens rea.
It is so that the abberatio ictus
rule derived support from two appellate division decisions namely: R v
(J # '
CC113/2013-/nw?
2014-09-11
3324
JUDGMENT
jJ
Kutswayo 1949 (3) 761 (A) and R v Khoza 1949 (4) 555 (A). In terms of
the rule then, because of As intention to kill, A is guilty of the murder of
C without the prosecutions having to establish an intention to kill C
specifically.
Recent case law however moved away from Leratio in
Kuswayo and Khoza on the basis that that [indistinct 12:24:54] was
founded on the outworn doctrine of Versari in re illicita and could no
longer be supported.
The current South African Law regarding criminal liability as set
out in S v Mtshiza 1970 (3) SA 747A. On page 752 Holmes JA explains
10
the legal position as follows, I leave out something:

"... nowadays criminal liability is not regarded as
attaching to an act or a consequence unless it was
attended by mens rea. Accordingly if A assaults B
and in consequence B dies, A is not criminally
responsible for his death unless:
a) He foresaw the possibility of resultant death, he
had persisted in his deed, reckless, whether death
ensued or not, or
b) He
20
ought
to
have
foreseen
the
reasonable
possibility of resultant death.

In a) the mens rea is the type of intent known as
dolus eventualis and the crime is murder.
In b) the mens rea is culpa and the crime culpable
homicide.
My view is that we are here not dealing with aberratio ictus as there was
fM
CC113/2013-mvn
2014-09-11
not deflection of the blow.
3325
JUDGMENT
It would therefore serve no purpose to say
anything more about it.

We are clearly dealing with error in objecto or error in persona,
in that the blow was meant for the person behind the toilet door, who the
accused believed was an intruder.
The blow struck and killed the
person behind the door. The fact that the person behind the door turned
out to be the deceased and not an intruder, is irrelevant.
The starting point however, once more is whether the accused
had the intention to kill the person behind the toilet door whom he
10
mistook for an intruder.

The accused had intention to shoot at the person in the toilet but
states that he never intended to kill that person.
In other words he
raised the defence of putative private defence.

In S v Adair Oliveira 1993 (2) SACR 59(A) at 63 and 64 a
distinction was drawn between private defence as a defence, excluding
unlawfulness, which is judged objectively and putative private defence
which relates to the mental state of the accused.
In that case
Smalberger JA stated:
From a juristic point of view the difference between
20
these two defences is significant. A person who acts

in private defence, acts lawfully provided his conduct
satisfies the requirements laid down for such a
defence and does not exceed its limit.
private defence is objective:
The test for
Would a reasonable
man in the position of the accused have acted in the
CC113/2013-mvn
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3326
JUDGMENT
197
same way?
In putative private defence it is not
lawfulness that is in issue but culpability...

If any accused honestly believes his life or property is
in danger but objectively viewed they are not, the
defensive steps he takes cannot constitute private
defence.
If,
in
those
circumstances,
someone, his conduct is unlawful.
he
kills
His erroneous
belief that his life or property was in danger may well

(depending on the precise circumstances) exclude
10
dolus in which case the liability for the persons death

based on intention will also be excluded. At worst for
him, he can then be convicted of culpable homicide.
In murder the form of culpability required intention, the test to determine
intention is subjective.
In the present case the accused is the only
person who can say what his state of mind was at the time he fired the
shots that killed the deceased.
The accused has not admitted that he had the intention to shoot
and kill the deceased or any other person for that matter.
On the
contrary, he stated that he had no intention to shoot and kill the

20
deceased.
The court is however entitled to look at the evidence as a
whole and the circumstances of the case to determine the presence or

absence of intention at the time of the incident.
In the present case, on his own version the accused suspected
that an intruder had entered his house through the bathroom window.
His version was that he genuinely, though erroneously, believed that his
CC113/2013-/T7W7
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JUDGMENT
life and that of the deceased was in danger.

There is nothing in the evidence to suggest that this belief was
not honestly entertained.
I say this for the following reasons:
The
bathroom window was indeed open, so it was not his imagination at

work when he thought he heard the window slide open.
He armed
himself with a loaded firearm and went to the direction of the noise. He
heard a door slam shut. The door toilet was indeed shut when he fired
four shots at it, after he heard a movement inside the toilet. On his
version he was scared as he thought the intruder was coming out to
10
attack him.
There is no doubt that when the accused fired shots
through the toilet door, he acted unlawfully. There was no intruder.
In
fact, the person behind the door was the deceased and she was dead.
I now deal with dolus eventualis or legal intent. The question is:
1. Did the accused subjectively foresee that it could be the deceased
behind the toilet door and
2.. Notwithstanding the foresight did he then fire the shots, thereby
reconciling himself to the possibility that it could be the deceased in
the toilet.
The evidence before this court does not support the states contention
20
that this could be a case of dolus eventualis.

On the contrary the evidence shows that from the onset the
accused believed that, at the time he fired shots into the toilet door, the
deceased was in the bedroom while the intruders were in the toilet.
This belief was communicated to a number of people shortly after the
incident.
CC113/2013-mvn
2014-09-11
3328JUDGMENT
199
At 03:19 the accused disclosed this to Johan Stander when he

requested him to come quickly to his house.
At 03:22 he told his version to Clarice Viljoen on her arrival, in the
company of her father Stander.
A few minutes later the same information was related to Dr Stipp
when he arrived at the accused house and lastly:
It was told to the police at about 04:00 in the morning the same day.
Counsel for the defence correctly argued that it was highly improbable
that the accused would have made this up so quickly and be consistent
10 in his version, even at the bail application before he had access to the
police docket and before he was privy to the evidence on behalf of the
state at the bail application.
The question is:
Did the accused foresee the possibility of the
resultant death, yet persisted in his deed reckless whether death

ensued or not? In the circumstances of this case the answer has to be
no.
How could the accused reasonably have foreseen that the shots
he fired would kill the deceased? Clearly he did not subjectively foresee
this as a possibility that he would kill the person behind the door, let
20
alone the deceased, as he thought she was in the bedroom at the time.
To find otherwise would be tantamount to saying that the
accuseds reaction after he realised that he had shot the deceased was
faked; that he was play acting merely to delude the onlookers at the
time.
,
Doctor Stipp, an independent witness who was at the accuseds
CC113/2013-pc
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JUDGMENT
200
house minutes after the incident had occurred, stated that the accused
looked genuinely distraught, as he prayed to God and as he pleaded
with him to help save the deceased.
There was nothing to gainsay that observation and this court has
not been given any reason to reject it and we accept it as true and
reliable. It follows that the accuseds erroneous belief that his life was in
danger excludes dolus. The accused therefore cannot be found guilty
of murder dolus eventualis. That however, is not the end of the matter,
as culpable homicide is a competent verdict.
[12:37 -14:16]
I now deal with negligence in culpable homicide cases. In terms

of Section 258 of the CPA, culpable homicide is a competent verdict to a
charge of murder. In determining whether the accused was negligent in
causing the death of the deceased, this court has to use the test of the
reasonable man.
In Burchell & Hunt, Principles of Criminal Law, 4th Ed. the test to
be applied to prove negligence is set out as follows:
(a) Would a reasonable person in the same circumstances as
the accused have foreseen the reasonable possibility of the
occurrence of the consequence or the existence of the
circumstance in question, including its unlawfulness.
(b)
Would a reasonable person have taken steps to guard

against that possibility and
(c)
Did the accused fail to take the steps which he or she
reasonably would have taken to guard against it. (Page 409.)

Only if these requirements above have been met, would the
CC113/2013-pc
2014-09-11
3330
JUDGMENT
.
2
accused be guilty of negligence.
Although the test for negligence is
objective, certain subjective factors are applied.

In S v Ngema, 1992 (2) SACR 651 (D) the following appears in
the headnote:
While it is clear in applying the test of the reasonable man
in determining
whether
or
not certain
conduct was
negligent, the days of fullblown objectivism
(see for
example R v Nbombela, 1933 AD 269 at 272) are passed

and
some
evidence
of
subjectivising
the
test
for
negligence is apparent. There is no warrant for departing

holus bolus from the old and well established reasonable
man test. The reasonable man himself, of course, evolves
with the times.
What was reasonable in 1933 would not
necessarily be reasonable today. What has happened in

practice however, is that the reasonable man is now to be
placed in the position of the accused. It is not clear from
decided cases, however, what is to be included and what
is to be excluded from this position. A balance between
the various ideas of what is to be included and what
excluded from the test, should be sought along the lines of
reasonableness.
touchstone
of the
One
must test
reasonable
negligence
person
of the
by the
same
background and educational level, culture, sex and race of

the accused.
The further individual peculiarities of the
accused alone, must be disregarded.
CC113/2013-pc
2014-09-11
3331
JUDGMENT
It was submitted on behalf of the accused that there could be no

doubt that disability did not form part of individual peculiarities and that
therefore, it must be taken into account in the concept of the reasonable
person representing:
A particular group of persons who are in the same
circumstances
as
he
is, with
the
same
ability
and
knowledge.
Counsel for the defence once more tried to persuade this court that the
accuseds disability, among other things rendered him vulnerable hence
10
his reaction that morning when he armed himself with a firearm and that
therefore he could not be found guilty of negligence.
As stated earlier, vulnerability is not unique as millions of people
in this country can easily fit into that category. In my view regardless of
what category of people we are dealing with, the answer to whether a
particular act is reasonable or unreasonable, has to depend on the
particular case of each case.
It was pointed out by counsel for the defence that the conduct of
the accused that morning, was brought about by a number of factors.
For example: His bathroom window was not fitted with burglar proofing.
20
Once again, that is not a unique feature as there are many people in
this country without form of security at all. Of course, as a fight rather
than a flight response person, the accused would not have been
expected to run from the danger.
However, there were other means
available to him to deal with what he considered a threat to his life.

Security personnel are there to deal with such stress or emergencies.
?^M\
CC113/2013-pc
2014-09-11
3332JUDGMENT
All the accused had to do was to pick up his cell phone to call security
or the police.
He could have run to the balcony and screamed in the
same way he had screamed after the incident.
He was able to call
security after the incident. There is no reason or no explanation why he

could not do so before he ventured into the bathroom with a loaded
firearm.
Calling security, calling Stander and running to the balcony to
scream for help and to attract attention, probably would have taken as
much time, if not less, as it took to go to the bathroom and to discharge
those four shots. It is also significant that at the time that the accused
had the window slide open, he was nearer to the balcony than to the
bathroom.
Counsel for the defence urged this court to consider the peculiar
circumstances of the accused when determining the question whether
the accused, by firing the shots, acted negligently.
Growing up in a
crime-riddled environment and in a home where the mother was

paranoid and always carried a firearm, placed the accused in a unique
category of people. This would explain the conduct of the accused that
morning, when he fired shots at what he thought was an intruder, it was
argued.
I agree that the conduct of the accused
understood by looking at his background.
the conduct of the accused is just that:
excuse the conduct of the accused.
may be better
However, the explanation of

an explanation.
It does not
Many people in this country
experienced crime or the effects thereof, directly or indirectly at some

time or another. Many have been victims of violent crime but they have
CC113/2013-pc
2014-09-11
3333JUDGMENT
not resorted to sleeping with firearms under their pillows.

It also has to be borne in mind that the determination of what is
reasonable and what is not reasonable, would depend on the facts of
this particular case.
If the accused for example had awoken in the
middle of the night and in darkness saw a silhouette hovering next to his
bed and had in a panic grabbed his firearm and shot at that figure, only
to find that it was the deceased, his conduct would have been
understandable and perhaps excusable.
In such a case, he would not have been expected to call security
first as he would have been faced with a real emergency.
In this
instance however, this was not the case. The accused had reasonable
time to reflect, to think and to conduct himself reasonably.
On the facts of this case I am not persuaded that a reasonable
person with the accuseds disabilities in the same circumstances, would
have fired four shots into that small toilet cubicle. Having regard to the
size of the toilet and the calibre of the ammunition used in the firearm, a
reasonable person with the accuseds disability and in his position,
would have foreseen that if he fired shots at the door, the person inside
the toilet might be struck and might die as a result.
Evidence was led as to how far or how near the deceased may
have been from the door when she was struck by the shots. There was
also a debate about what calibre ammunition was used. In my view, all
that is not really relevant to the issue at hand.
The accused knew that there was a person behind the toilet door
and chose to use a firearm which was a legal weapon.
He was
CC113/2013-pc
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JUDGMENT
205
competent in the use of firearms as he had undergone some training.

I now revert to the relevant questions.
First: Would a reasonable person in the same circumstances as the
accused, have foreseen the reasonable possibility that, if he fired four
shots at the door of the toilet, whoever was behind the door, might be
struck by a bullet and die as a result?
The second question is:
Would a reasonable person have taken steps
to guard against that possibility?

The answer to both questions is yes.
10
The last question is: Did the accused fail to take steps which he should
reasonably have taken to guard against the consequence?
Again the answer is, yes. He failed to take any step to avoid the
resultant death
I am of the view that the accused acted too hastily and used
excessive force.
In the circumstances it is clear that his conduct was
negligent.
I am now dealing with count 2. The summary or the evidence of
substantial facts in terms of Section 144(3)(a) of Act 51 of 1977, reads
as follows :
20
In January 2013 the accused, while having lunch with

friends at a restaurant in Melrose Arch in Johannesburg,
handled the firearm of one his friends and a shot was
discharged.
This shot narrowly missed his friend and hit
the floor of the restaurant.
The friend referred to in this
paragraph is Kevin Lerena.
EM
CC113/2013-pc
3335JUDGMENT
2014-09-12
2" 0' 0
The state called two witnesses to prove this count. Samantha Taylor. I
will have to rephrase,
I am not talking about count 2. Count 3.
I am
talking about count 3. I will have to rephrase. I am talking about count

2, instead of count 3.
The summary of substantial facts in terms of Section 144(3)(a)
of Act 51 of 1977 reads as follows :
On a separate occasion on 20 September 2010, the
accused who is the licensed owner of a 9 millimetre pistol
fired a shot through the sunroof of a car while travelling on
10
a public road. There were other passengers in that car.

The state called two witnesses for this count, namely Samantha Taylor,
former girlfriend of the accused and Darren Fresco who was a friend of
the accused.
Both these witnesses were present in the vehicle when
the incident referred to in this count, occurred.

Ms Taylors evidence briefly was that she, Darren Fresco and
the accused, were returning from a visit at the Vaal River one afternoon,
when the vehicle they were travelling in was stopped by traffic officers
for speeding. Fresco was the driver at the time. While the traffic officer
was writing an infringement ticket, the accused who occupied the front
20
passenger seat, stepped out of the vehicle to see what was happening
with Fresco. A second officer had, in the meantime, walked to the front
passenger seat where the accused had left his firearm.
The officer
picked it up asking whose it was, and whether the owner had a licence
and, in the process ejected a bullet into the vehicle.
returned and had a verbal altercation with the officer.
The accused
After they had
3336JUDGMENT
CC113/2013-pc
2014-09-12
searched for and found the bullet, they left the scene. Both the accused
and Fresco who was still driving, were irritated by the officers and
minutes later, they joked about whether they should or should not shoot
at a robot.
The accused took his firearm and shot through the open
sunroof of the vehicle. Both Fresco and the accused laughed about the
incident. Ms Taylor could not say where the incident happened, as she
was not familiar with the vicinity.
Mr Fresco confirmed that the incident took place, although his
version was very different.
10
He, the accused and Ms Taylor were
travelling in one vehicle on the way from an outing at the Vaal River. He
was the driver.
The accused sat in the front passenger seat, while
Ms Taylor occupied the back seat. He confirmed that they were stopped
by traffic officers twice, once for speeding. He was asked by the officer
to step outside, which he did and while the officer was writing him a
ticket, the accused left his seat to join him. Another officer went to the
front passenger seat where he found the accuseds firearm, picked it up
and ejected the bullet in the process. This action irritated the accused,
who rebuked the officer for handling another mans firearm .
He told called the officer that his fingerprints were all over the
20
firearm and if anything were to happen he the officer, would be held

responsible. They left the scene soon thereafter. Without warning the
accused took out his firearm and fired a shot into the air through the
open sunroof.
He asked the accused what he was doing.
That is
Fresco asked the accused what he was doing, but he laughed at him.
He denied that the incident happened in the manner described by
ETH
CC113/2013-pc
201409-12
3337JUDGMENT
2q8
Taylor. His version was that he was very angry at what the accused had
done, as his left ear was left bleeding as a result.
The accused denied that he had said anything to the officer
about fingerprints on the firearm. He stated that he had explained to the
officer that he had left the firearm on the seat, simply because he did
not want to approach the police officer with a firearm on him. The police
officer who had ejected the bullet from his firearm, was the one who was
irritated and not him.
The accused also denied that he fired a shot
through the open sunroof.

10
The assessment of the evidence:
In respect of count 2 it was
pointed out by counsel for the accused that Taylor and
Fresco
contradicted each other regarding the allegation that the accused had
fired a shot through the sunroof of the vehicle. For that reason none of
the evidence led by the state in this regard was reliable, it was argued.
On the other hand, state counsel disagreed submitting that there was no
reason why Fresco or Taylor would want to falsely implicate the
accused.
To deal with the submissions above it is necessary to scrutinise
the evidence of the two witnesses.
20
Both Fresco and Taylor gave
evidence implicating the accused. They both said that on their way from
the Vaal, the accused fired a shot through sunroof while the vehicle was
moving.
However, there the similarities ended. They were both there
with the accused at the time of the incident. Yet their version on where
the incident happened, how it happened and why it happened, are so
dissimilar that one may be tempted to think that they were in fact talking
CC113/2013-pc
2014-09-12
3338
JUDGMENT
209
about different incidents. I shall proceed with each of these witnesses

in turn.
Fresco was not an impressive witness at all, when he gave
evidence regarding this count. In fact he was proved to be a dishonest
witness. He gave evidence that on their way to the Vaal on the day of
the incident, the accused had driven the vehicle at a speed in excess of
200 kilometres per hour and alleged that he had taken a photograph of
the speedometer at the time. Under cross-examination it emerged that
in fact, he is the one who drove at an excessive speed of 260 kilometres
per hour and there was an image captured on his phone, to prove it.
The effect of those lies must not be misunderstood.
Mendacity on one aspect of an witnesss evidence, does not
necessarily mean that the rest of the evidence will be tainted. It simply
means that caution is warranted.
In this case, however, there is more
reason for the exercise of caution.
Firstly, Fresco could not with
certainty say where the incident happened. During evidence in chief, he

stated that he was able to point out the specific spot where the incident
had happened to the police and made reference to what was depicted in
photographs 1143 to 1146.
Under cross-examination however, he stated that when he was
taken to the scene to point out the exact spot where the incident had
happened, he was able to point it out only after Captain van Aardt had
driven past the location, on no less than four occasions. Secondly, he
told an unlikely story that while they were driving back from the Vaal
after their vehicle had been stopped by Metro Police, the accused who
CC113/2013-pc
2014-09-12
3339JUDGMENT
was a passenger at the time, without any warning had fired a shot
through the sunroof.
When he asked him what he was doing, he just
laughed at him.
Taylor was the former girlfriend of the accused.
It is common
cause that the relationship between the two did not end amicably.
Taylor alleged that the relationship ended when the accused was
unfaithful to her. The accused also made a similar counter accusation.
It was clear from the evidence of Taylor that she had been hurt by the
manner in which the relationship had terminated.
10
The above, however, does not necessarily mean that she was
out to falsely implicate the accused. It simply means, like the evidence
of Fresco, Taylors evidence needs to be approach with a certain degree
of caution and this court has certainly done that. According to Taylor
after the three of them had left the place where their vehicle had been
stopped by Metro Police, Fresco and the accused laughed and they said
they wanted to shoot at a robot and :
Then Oscar shot a bullet out of the sunroof.
Unlike Frescos version that without saying anything, out of the blue, the
accused simply shot out of the sunroof, Taylors version has a ring of
20
truth.
In a criminal case, however that is never the end of the matter,
the question is always whether the state has proved its case against the
accused, beyond reasonable doubt. The accused denied the incident.
Defence Counsel correctly stated that even if it were to be found that
the accused was a poor witness, that fact would not assist the state
CC113/2013-pc
2014-09-12
3340
JUDGMENT
w
case as the court would then be faced with three poor witnesses. This
court does not have to believe the accuseds version. He bears no onus
to prove his innocence. Rather it is the state which has to persuade this
court that the accused is guilty beyond reasonable doubt of the crime
with which he is being charged.
The state witnesses contradicted each other, on crucial aspects
namely the circumstances under which the shot was fired; when and
where exactly the shot was fired. The evidence placed before the court
falls short of the required standard for a conviction in a criminal matter.
This courts conclusion is that the state has failed to establish that the
accused is guilty beyond reasonable doubt of this count, and has to be
acquitted.
I am now dealing with count 3. Paragraph 7 of the summary of
substantial facts in terms of Section 144(3)(a) of Act 52 of 1977, reads
as follows :
In January 2013 the accused while having lunch with
friends at a restaurant in Melrose Arch in Johannesburg,
handled the firearm of one of his friends and a shot was
discharged.
This shot narrowly missed his friend and hit
the floor of the restaurant. The friend that is being referred

to in this case, is Kevin Lerena.
It is not in dispute that the firearm, a Glock Pistol which belonged to
Fresco, discharged while in possession of the accused after he had
asked Fresco to pass him his firearm under the table.
Kevin Lerena, a boxer, gave evidence that he heard Fresco, as
CC113/2013-pc
2014-09-12
3341
JUDGMENT
he handed over the firearm, tell the accused that there was one-up.
Meaning there was a bullet up in the chamber.
Within seconds the
firearm was discharged. The shot damaged the floor very close to him
and his toe was injured by shrapnel.
However, the accused was
concerned at that moment that someone might have been hurt, and
apologised.
He asked if everyone was fine.
He then asked Fresco to
take the blame for what had happened as he wanted to avoid bad
publicity in the media.
Fresco in his evidence confirmed that the accused had asked to
10
see his firearm and confirmed that he also passed it on to him under the
table, that as he did so, he told the accused that there was one-up.
That the accused took the firearm and that soon thereafter, the firearm
discharged. Fresco also confirmed that the accused asked him to take
the blame for the discharge of the firearm.
When the owners
approached their table to seek an explanation, he told them that his

firearm had discharged when it got caught in the leg of his tracksuit and
fell on to the floor.
Mr Loupis, the owner of Tashas Restaurant, gave evidence that
on the day of the incident, the restaurant was full with approximately
20
220 people. It was lunchtime at the time and he was busy with patrons,
when he heard a loud bang that sounded like a gunshot. When he went
to investigate, Fresco apologised and told him that his firearm had
accidentally fallen off his trouser.
Soon thereafter the group paid the
bill. The accused and those in his company apologised and left.
The accused admitted that he took the firearm from Fresco, after
ETM
4 2 '
CC113/2013-pc
2014-09-12
3342JUDGMENT
017
L I0
he had asked for it. He had wanted to see it as he was planning to buy
a similar model. His version was that at the time he took it, he did not
realise that the firearm was loaded or that it had a magazine in it. He
wanted to make it safe, when a shot went off accidentally.
Counsel for the defence sought to explain his submission, what
might have caused the firearm to discharge.
In my view, it really does
not matter what caused the firearm toe to discharge, as that will not
assist this court in determining whether the accused was negligent. No
one has submitted that there
10
was an intention on the part of the
accused.
What is relevant is that the accused asked for a firearm in a
restaurant full of patrons and that while it was in his possession, it
discharged. He may not have intentionally pulled the trigger. However,
that in itself does not absolve him of the crime of negligently handling a
firearm in circumstances where it creates a risk to the safety of people
and property, and not to take reasonable precautions to avoid the
danger.
The version of Fresco was supported in material respects by that
of Lerena. Although Lerena did not know why the firearm was passed
20
from Fresco to the accused, he

one-up. After the firearm had
heard Fresco tell the accused there was

discharged, he also heard the accused
ask Fresco to take the blame for the incident.

The accuseds version,
on the other hand, was that he was
angry with Fresco for having
handed him a loaded firearm.
He
reprimanded him for doing so,
as people could have got hurt.
It is
iSDA
CC 113/2013-pc
2014-09-12
3343JUDGMENT
21
strange that this portion of the accuseds version was never put to either
Lerena or to Fresco.
An
inference is irresistible that no such
conversation took place at all.

Lerena was a good witness and I did not detect any indication of
bias against the accused. This court was given no reason to reject his
evidence and that evidence is accepted in toto as true and reliable.
It
follows therefore that this court also accepts the evidence of Fresco in
this regard.
From the evidence led through Mr Rens in respect of count 1,
10
the accused was sufficiently trained in the use of firearms and that
would include the responsible handling of firearms.
He should not
therefore have asked for a firearm in a public place such a restaurant

full of people, let alone handle it. In my view the state has proved
beyond
reasonable
doubt that the
accused
contravened
section
120(3)(b) of the Act.

In respect of count 4, the state alleges that the accused
contravened Section 90 read with other relevant sections of the
Firearms Act, by unlawfully possessing 38 x 38 rounds of ammunition at
his house at 286 Bush Willow Street, Silver Lakes Country Estate,
20
Silver Lakes with any right to possess the said ammunition.

It is convenient at this stage to deal first with the relevant law.
Section 90 of the Firearms Control Act, 60 of 2000 (the Firearms Act)
provides :
90. Prohibition of Possession of Ammunition.
No person may possess any ammunition unless he or
etitA
6=2?
CC113/2013-pc
2014-09-12
3344
JUDGMENT
215
she
(a)
Holds a licence in respect of a firearm, capable

of discharging that ammunition;
(b)
Holds a permit to possess ammunition;
(c)
Holds a dealers licence, manufacturers licence,

gunsmiths licence, import/export or in transit
permit, or transporters permit issued in terms of
this Act; or
(d)
10
Is otherwise authorised to do so.
Section 120(1)(a) of the Firearms Act, provides as follows :

1.
A person
is guilty of an offence if he or she
contravenes or fails to comply with any :

(a)
provision of this Act.
The accused made admissions in terms of Section 220 of the CPA, that
he did not possess a licence to possess the ammunition found at his
house, but denied that he contravened the Act. Counsel for the defence
submitted that possession means there must be the physical detention
and an intention to possess at the same time.
In other words there
must be, in addition to detention, animus.

20
In support of this submission, he relied on the matter of

S v Qwanda, 2013 (1) SACR 137 (SCA).
In that matter the appellant
appealed against the dismissal by a High Court, of an appeal against

his conviction on charges of possession of arms and ammunition in
contravention of Sections 32(1 )(a) and 32(1 )(e), of the Arms and
Ammunitions Act, 75 of 1969. At the time of his arrest, he was the driver
CC113/2013-pc
2014-09-12
3345JUDGMENT
*
216
of a vehicle that was conveying him and two others to rob a bank.
Sitting next to the appellant in the vehicle there was another man who
carried an MK-47 Rifle and ammunition.
It was not clear whether the
appellant was aware of the firearm in his companions possession. The

companion absconded during the course of the trial. The only question
was whether the state had established that the appellant possessed the
firearm jointly with his companion.
The court held accepting that the
appellant had conspired with his companions to commit robbery and

were even aware that some of his co-accused possessed firearms for
10
the purpose of committing the robbery. Such knowledge on his part was
not sufficient to establish that he had the intention to jointly possess the
firearm and ammunition.
Accordingly the conviction on the firearms
charges, were set aside.

From the above it is clear that the state must prove that the
accused had the necessary mental intention (animus), to possess the
firearm before there can be a conviction.
I will re-read that.
From the
above it is clear that the state must prove that the accused had the
necessary
mental
intention
(animus)
to
possess
firearm,
or
ammunition before there can be conviction. That it is quite possible to

20
possess a firearm innocently, is clear from the fact that if a person who
has no licence to possess a firearm were to pick up a firearm from
where the owner had forgotten it solely with the intention to return it to
its owner, it will be an aberration of justice if he were to be convicted of
possession of a firearm, as he clearly lacked intention to possess it in
the legal sense. In this regard see S v Majikazana, 2012 (2) SACR 107
ETTW'
CC113/2013-pc
2014-09-12
3346
JUDGMENT
217
(SCA).
In the present case counsel for the state made much of the fact
that the accuseds father refused to make an affidavit, confirming that
the ammunition found in the possession of the accused, belonged to
him. In my view that does hot assist the state. The accuseds version is
that the ammunition belonged to his father and that he had no intention
to possess it. The fact that there is no corroboration for the accuseds
version, does not assist at all. Accordingly what the state needed to do,
was to introduce evidence to the contrary.
10
It did not do so.
accuseds version therefore remains uncontroverted.
The
The state has
failed to prove that the accused had the necessary animus to possess
the ammunition. He therefore cannot be found guilty on this count.
In conclusion, I would like to recap on the four counts that the
accused has been found guilty of.
Count 1: In respect of count 1 the allegation was that the accused and
the deceased had an argument.
That the deceased ran and locked
herself in the toilet and that the accused followed her there, and fired
shots at her through the locked door. Three shots struck her and she
died as a result.
20
Evidence led by the state in respect of this count was purely

circumstantial. It was not strong circumstantial evidence. More over the
evidence of various witnesses who gave evidence on what they heard,
in what sequence and when, proved to be unreliable.
The accused denied the allegations.
Notwithstanding that he
was an unimpressive witness, the accused gave a version which could
PTN\
CC113/2013-pc
2014-09-12
3347
JUDGMENT
.
reasonably possibly be true. In criminal law that is all that is required for
an acquittal as the onus to prove the guilt of an accused, beyond
reasonable doubt, rests with the state throughout.
The version of the accused was that he fired shots at the toilet
door, because he thought there was an intruder inside the toilet.
The
sequence of events namely the shots, the screams, the shouts of help,
the sound of a cricket bat striking against the toilet door, the calls made
by various witnesses to security to report screams and or shots, are
more in line with the version of the accused.
10
Although it is not necessary for the state to prove motive, there

is no basis on which this court could make inferences of why the
accused would want to kill the deceased. In addition there is objective
evidence in the form of phone records. This too supports the version of
the accused.
Furthermore the conduct of the accused shortly after the
incident, was inconsistent with the conduct of someone who had

intention to commit murder.
He acted promptly in seeking help soon
after the incident. He shouted for help. He called a friend, Stander. He

called 911. He called security, although he could not speak as he was
crying.
20
He prayed to God to save the deceaseds life.
He was seen
trying to resuscitate the deceased and he pleaded with Dr Stipp to help

and he was distraught.
From the above it cannot be said that the accused did not
entertain a genuine belief that there was an intruder in the toilet, who
posed a threat to him. Therefore he could not be found guilty of murder
dolus directus. This court has already found that the accused cannot be
kTW\
CC113/2013-pc
2014-09-12
3348
JUDGMENT
.
~
2
guilty of murder dolus eventualis either, on the basis that from his belief
and his conduct, it could not be said that he foresaw that either the
deceased or anyone else, for that matter, might be killed when he fired
the shots at the toilet door. It also cannot be said that he accepted that
possibility into the bargain.
I might just add that in respect of the first leg of the test in dolus
eventualis, Burchell & Hunt: General Principles of Criminal Law, states the
following on page 371 :
The courts have warned against any tendency to draw the
inference of subjective foresight too easily.
For example in S v Bradshaw, 1977 (1) PH860 (A) Wessels JA stated :
The court should guard against proceeding too readily from
ought to have foreseen to must have foreseen and thence
to
by necessary inference in fact foresaw the possible
consequences of the conduct being enquired into.
The
several thought processes attributed to an accused must be

established beyond any reasonable doubt. Having due regard
to the particular circumstances which attended the conduct
being enquired into.
In S v Sigwatla, 1967 (4) SA 566 (A) Holmes JA expressed the degree
of proof in the following terms :
Subjective foresight like any other factual issue, may be
proved by inference to constitute proof beyond reasonable
doubt.
The inference must be the only one which can
reasonably be drawn.
It cannot be so drawn if there is a
CC113/2013-pc
2014-09-12
3349
JUDGMENT
reasonable possibility that subjectively the accused did not

foresee, even if he ought reasonably to have done so and
even if he probably did do so.
Evidential material before this court however, show that the accused
acted negligently when he fired shots into the toilet door, knowing that
there is someone behind the door and that there was very little room in
which to manoeuvre.
A reasonable person therefore in the position of the accused,
with similar disability would have foreseen that possibility, that whoever
10
was behind the door might be killed by the shots and would have taken
, steps to avoid the consequences and the accused in this matter failed to
take those consequences.
I am dealing with count 2 in a summary form . In this count the state
alleged that in September 2012, while driving in a vehicle with other
passengers on a public road, the accused unlawfully discharged a
firearm without good reason to do so, by firing a shot with a 9 millimetre
pistol, through the open sunroof.
The alternative count is that the accused discharged the firearm to whit,
his 9mm pistol with disregard for the other passengers in the car and or
20
in the vicinity.
In this count the state failed to prove the guilt of the
accused beyond reasonable doubt.

In respect of count 3 : the state alleged that in January 2013 at Tashas
Restaurant, a public place, the accused unlawfully discharged a firearm
to wit: a Glock 27 pistol without any good reason to do so.
The first alternative is that at the same place on the same day, the
pYA
CC113/2013-pc
2014-09-12
JUDGMENT
2
3350
accused negligently used a firearm to wit: a Glock 27 pistol and caused

damaged to the floor of the restaurant.
The second alternative to this count, is that at the same place and the
same day, the accused discharged a firearm to wit: a Glock pistol at a
table in the restaurant among other patrons in a manner likely to
endanger the safety of the people at his table, and or other patrons on
the property of the restaurant.
The accused erred in discharging the
' firearm mentioned, showing a reckless disregard for the safety of the
patrons on the property of the restaurant.
10
Count 4 : The allegation was that on or about 16 February 2013 at or

near 286 Bush Willow Street, Silver Lakes Country Estate, Silver Lakes
in Pretoria, the accused was unlawfully in possession of ammunition to
wit 38, .38 rounds without being the holder of a licence in respect of a
firearm capable of discharging that ammunition, a permit to possess
ammunition, a dealers licence, gunsmith licence, import, export or in
transit permit, or transporters permit, issued in terms of the Firearms
Control Act, 60 of 2000, or is otherwise authorised to do so. In respect
of this count the state failed to prove beyond reasonable doubt, all the
elements of the charge.
20
Mr Pistorius, please stand up.
Having regard to the totality of
this evidence in this matter, the unanimous decision of this court is the
following:
Count
1:. Murder,
read with
Section
51(1) of the
Criminal
Law
Amendment Act, 105 of 1997, the accused is found not guilty

and is discharged.
Instead, he is found guilty of culpable
C C113/2013-pc
2014-09-12
JUDGMENT
_
2
3351
homicide.
Count 2:
Contravention of Section 120(7)7 of the Firearms Control Act

60 of 2000 and the alternative count, that is contravention of
section 120(3)(b) of the same act, the accused is found not
guilty and discharged.
Count 3:
Contravention
of
Section
120(7),
alternatively
section
120(3)(a) and further alternatively section 120(3)(b) of the

Firearms Control Act 60 of 2000, the accused is found guilty
of the second alternative that is the contravention of Section
120(3)(b).
Count 4 :
Contravention of Section 90 of the Firearms Control Act 60

of 2000 the accused is found not guilty and discharged.
223
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
Reportable
Case No: 96/2015
DIRECTOR OF PUBLIC PROSECUTIONS, GAUTENG
APPELLANT
and
RESPONDENT
Neutral citation: Director o f Public Prosecutions, Gauteng v Pistorius

(96/2015) [2015] ZASCA 204 (3 December 2015)
Coram:
Mpati P, Mhlantla, Leach and Majiedt JJA and Baartman AJA
Heard:
03 November 2015
Delivered: 03 December 2015

Summary: Criminal Law and Procedure appeal under s 319 of Criminal
Procedure Act 51 of 1977 conviction, on a competent verdict to be regarded as
an acquittal on the main count and does not debar an appeal on a question of law
reserved.
Legal intention in the form of dolus eventualis trial court incorrectly applying
the principles thereof constitutes an error of law.
Inference of fact to be drawn from the totality of the evidence trial court not
talcing all the relevant evidence into account in determining the presence or
otherwise of dolus eventualis this also constitutes an error of law.
On a proper conspectus of all the evidence, the trial court ought to have found
that the accused had been guilty of murder and not culpable homicide, and that
his defence of putative private defence could not be sustained. Conviction of
culpable homicide and the sentence imposed for that offence set aside under
s 322 of CPA and the matter remitted to the trial court to impose sentence
afresh.
ORDER
On appeal from: Gauteng Division, Pretoria (Masipa J with two assessors

sitting as court of first instance):
1 The first two questions of law reserved are answered in favour of the Director
of Public Prosecutions.
2 The accuseds conviction and sentence on count 1 are set aside and replaced
with the following:
dolus eventualis
3 The matter is referred' back to the trial court to consider an appropriate
sentence afresh in the light of the comments in this judgment.
224
225
JU D G M E N T
Leach JA (Mpati P, Mhlantla and Majiedt JJA and Baartman AJA

concurring)
[1]
This case involves a human tragedy of Shakespearean proportions: a
young man overcomes huge physical disabilities to reach Olympian heights as

an athlete; in doing so he becomes an international celebrity; he meets a young
woman of great natural beauty and a successful model; romance blossoms; and
then, ironically on Valentines Day, all is destroyed when he takes her life. The
issue before this court is whether in doing so he committed the crime of murder,
the intentional killing of a human being, or the lesser offence of culpable
homicide, the negligent killing of another.
[2]
It is common cause that in the early hours of 14 February 2013 the
respondent, Mr Oscar Pistorius, shot and killed the 29 year old Miss Reeva
Steenkamp at his home in a secured complex known as Silver Woods CountryEstate in the district of Pretoria. Pursuant to this, he was tried in the Gauteng
Division of the High Court, Pretoria on several charges, including one of the
murder of Miss Steenkamp. Throughout the proceedings in the trial court, the
respondent was referred to as the accused and, for convenience, I intend to do
so as well. I trust that those near and dear to her will forgive me if I refer to
Miss Steenkamp at times by her given name of Reeva, although I shall
endeavour to do so only where it is necessary to emphasize her identity. I shall
otherwise refer to her simply as the deceased.
ElW\
[3]
The proceedings in the trial court were attended by unprecedented
publicity. As far as I am aware, for the first time in the history of this country
the trial was covered on live television (as was the appeal in this court).
Although I did not follow the proceedings closely, it was impossible not to leam
that although it was common cause that the accused had shot and killed the
deceased, the trial court had found him not guilty of her murder but guilty of
culpable homicide. Contending that the trial court erred on certain legal issues,
the Director of Public Prosecutions, with leave of the trial court, now appeals to
this court on questions of law reserved, arguing that the appropriate conviction
would be one of murder.
[4]
. ..
It is necessary at the outset to clear a technical issue out of the way. The
appeal to this court relates solely to count 1 of the indictment, namely, the
alleged murder of the deceased. The accused was not charged in the alternative
with the lesser offence of culpable homicide. It was unnecessary for the State to
do so as s 258 of the Criminal Procedure Act 51-of 1977 (the CPA) provides
that if the evidence led on a charge of murder does not prove that offence but the
offence of culpable homicide (or numerous other offences unnecessary to
mention for present purposes) the accused may be found guilty of the offences
so proved5. That is what happened in the present case. The trial court held that
the State had not proved that the accused was guilty of the murder but had
shown that he was guilty of culpable homicide. Relying on s 258 it accordingly"
found him guilty of the latter offence.
[5]
The appeal to this court relating to this conviction is brought in respect of
questions of law reserved under s 319 of the CPA. That section provides:
*(1) I f any question o f law arises on the trial in a superior court o f any person for any offence,
that court may o f its own motion or at the request either of the prosecutor or the accused
reserve that question for the consideration o f the Appellate Division, and thereupon the first-
I.
'5
mentioned court shall state the question reserved and shall direct that it be specially entered in
the record and that a copy thereof be transmitted to the registrar o f the Appellate Division,
(2) The grounds upon which any objection to an indictment is taken shall, for the purposes o f
tins section, be deemed to be questions o f law. 1
[6]
Section 322 of the CPA prescribes the powers that may be exercised by a
court of appeal hearing an appeal relating to any question of law reserved under
s 319. I shall deal with these provisions in more detail in due course, but it
suffices to mention at this stage that s 322(4) provides that in an appeal by the
prosecutor where a question of law has been reserved in the case of an acquittal,
and the court of appeal has given a decision in favour of the prosecutor, the
court of appeal may order that such of the steps referred to in s 324 be talcen as
the court may direct5. This corresponds with the provisions of s 369 of the
CPAs predecessor, Act 56 of 1955, which in turn reflected the wording of its
predecessor s 374 of Act 31 of 1917. In Solomons,2 following the decision in
Gani? this court held that the effect of s 369 of the 1955 Act was that the State
can only have a question of law reserved should there be an acquittal of the
accused.
[7]
After Solomons and Gani, this court held that an acquittal envisaged by s
322(4) had to be a total acquittal, and that did not include a case in which a
competent verdict had been entered in place of the charge upon which the
accused had been arraigned in the charge sheet. Thus in Seekoei,4 where an
accused had been charged with housebreaking with intent to rob and robbery
with aggravating circumstances, but convicted on the competent verdict of the
lesser offence of housebreaking with intent to steal and theft with aggravating
1The reference to the Appellate Division in the section must for present purposes be taken as an appeal to this
court.
2 R v Solomons 1959 (2) SA 352 (A).
3 R v Gam & others 1957 (2) SA 212 (A).
4 S v Seekoei 1982 (3) SA 97 (A).
227
228
circumstances, it was held there had not been an acquittal as intended by
s 322(4). The court went on to hold that in consequence of there having been no
acquittal, the trial court had impermissibly reserved a question of law for
determination under s 319.
[8]
At first blush this decision seems to provide an obstacle to the States
appeal on points of law in the present matter as, although the accused was not
convicted of the murder with which he had been charged, he was convicted on
the competent verdict of culpable homicide - and thus there was not a total
acquittal on the murder charge making it permissible for the trial court to
reserve points of law as it did. However, the matter does not end there. As was
argued by the State, the accused could quite easily have been charged with
culpable homicide as an alternative charge to that of murder. If that had been
done, and the accused found guilty of culpable homicide, the court would have
been obliged to acquit him on the murder charge, and.in that event the ratio of
the decision in Seekoei would not operate to bar an appeal on a point of law in
respect of that charge.
[9]
The decision in Seekoei has been a matter of controversy, and doubt has
been expressed in this court on the correctness of the reasoning.5 It is after all
somewhat artificial to regard an accused found guilty of the lesser offence of
culpable homicide not to have been acquitted of the more serious charge of
murder. But any "dispute on this has been resolved by the decision of the
Constitutional Court in Basso n 6 In that matter, after considering the legislative
history of s 319(2) of the CPA, the court held that there is nothing in this
language to suggest that the State may only request the reservation of questions
5 See S' v Mene 1978 (1) SA 832 (A) at 838A-C.

6 S v Basson 2007 (1) SACR 566 (CC.
229
directed at the conviction or acquittal of the accused5.7 In the light of this,
counsel for the accused accepted that the limitation upon the States right to
appeal on a point of law as prescribed in Seekoei could no longer be regarded as
good law and that there could be no objection to the appeal proceeding in
respect of the points of law reserved in the trial court, notwithstanding the
conviction of the accused on the competent verdict of culpable homicide. This
concession was correctly made.
[10] In the light of this, I turn to the issues raised in the appeal. In order to do
so it is necessary to paint the factual backdrop to the points of law debated
before us.
..
[11] The accused was bom with deformed legs, the fibula on each side having
been missing. Consequently, before his first birthday, both of his legs were
surgically amputated below the knee and, since then, he has had to rely on
prosthetics. Despite such a severe physical handicap, he made his way bravely
into the world and, at school, although he' described himself in evidence as
having been never really much of an academic5, he participated in various
sports. It was during the course of rehabilitation from a knee injury sustained
playing rugby that, in early 2004, he started training with a biokineticist at the
University of Pretoria who encouraged him to participate in a disabled athletics
meeting. He did and the rest, as they say, is history. It is unnecessary to detail
the accused's spectacular athletic career which followed. Suffice it to say that he
was awarded a sports bursary by the University of Pretoria and competed at an
international level in both disabled and able-bodied athletic events. He won
numerous international medals, including gold medals at the Paralympics.
Having persuaded the International Athletic Federation that he enjoyed no
advantage by using prosthetic legs, the accused represented South Africa in both
7 Para 148.
the Olympic and the Paralympic Games of 2012, His athletic achievements not
only brought him international fame but also into contact with charities, and for
his humanitarian work in the world of prosthetic and prosthetic developments he
was awarded an honorary doctorate from the University of Strathclyde in
Glasgow.
[12]
The accused met the deceased on 4 November 2012 when they were
separately invited by a mutual Mend to lunch at a motorcar track-day event. She

agreed to accompany him to the South African Sports Awards function that
evening. Romance quickly blossomed and they became intimate. As so often
happens with romantic relationships, especially in their youthful stages, theirs
was attended by petty conflict and tensions as evidenced by a transcript of text
messages that had passed between them that was handed in as an exhibit at the
trial. But despite these hiccups, the deceased at times slept over at the accuseds
home.
[13] She did so on the night of 13 February 2013. In the early hours of the
following morning, screams, gunshots, loud noises and cries for help were
heard, emanating from the accuseds house. Within minutes, a Mr Stander and a
Dr Stipp, the latter a medical practitioner, arrived at the accuseds home. There
they found the accused in a highly emotional state, kneeling alongside the
deceased who was lying on the floor at the foot of the stairs leading to the
sleeping quarters of the house. She had been carried there by the accused from
an upstairs bathroom where the shooting had taken place. She had been shot
several times and was mortally wounded. The severity of her injuries was such
that she was not breathing and Dr Stipp was unable to find a pulse. If she was
still alive at that time, she died soon after. In due course the accused was
charged with her murder in the Pretoria High Court.
[14] It was common cause at his trial that the accused was responsible for the
death of the deceased in that he had fatally injured her when he fired four shots
with a 9mm pistol through the door of a toilet cubicle in the bathroom adjacent
to his bedroom. Relying upon a web of circumstantial evidence, including the
screams that had been heard before the sound' of the shots that the accused had
fired, the State attempted to persuade the trial court that the accused had
threatened the deceased during the course of an argument, that she had locked
herself into the toilet cubicle in the bathroom to escape from him, and that he
had thereupon fibred the fatal shots through the door and killed her.
[15] The accused, on the other hand, alleged that he had awoken from his sleep
in the early hours of the morning. It was very warm and, when he sat up, he
noticed that two fans he had earlier positioned near the sliding door in the room
leading onto a balcony were still running and the door was still open. Although
it was dark in the room, he was aware that the deceased was awake in the bed
next to him as she rolled over and spoke to him. He got out of bed, brought the
two fans into the room, closed and locked the sliding doors, and drew the
curtains. It was very dark in the room, the only light being from a small LED on
an amplifier at the TV cabinet. He noticed a pair of jeans lying on the floor, and
had just picked them up in order to place them over the amplifier to cover the
light when he heard the sound of a window opening in the bathroom. The
bathroom is situated not directly adjacent to the bedroom but down a short
passage lined with cupboards. He immediately thought that there was an
intruder who had entered the house through the bathroom window, possibly by
climbing up a ladder. He quickly moved back to his bed and grabbed his 9mm
pistol from where he kept it under the bed. As he did so, he whispered to Reeva
to 4get down and phone the police before proceeding to the passage leading to
the bathroom. He was not wearing his prosthetic legs at that stage and,
overcome with fear, he stalled screaming and shouting both for the intruder to
10
get out of his house and for Reeva to get down on the floor and to phone the
police. When he reached the entrance to the bathroom, he stopped shouting as
he was worried that the intruder would know exactly where he was. As he
neared the bathroom he heard the toilet door slam. Photographs of the bathroom
showed that facing the passageway entrance there is a shower cubicle
immediately adjacent to a toilet cubicle, the latter having an external window.
The toilet cubicle is fitted with a door, and is very small. Also in the bathroom is
a triangular built-in corner bath, immediately to the left as one enters.
[16] According to the accused, he had his pistol raised in a firing position with
his arm extended ahead of bim. Peering around the wall at the end of the
passage, he saw that there was no one in the bathroom itself but that the toilet
door was closed. He alleged that at -that point he started screaming again, telling
Reeva, who he presumed was in the bedroom, to phone the police. He then
heard a noise coming from inside the toilet and promptly fired four shots at the
door. After that he retreated to the bedroom where he found that Reeva was no
longer there. It then dawned on him that it could be her in the toilet. In panic he
went back to the bathroom and tried to open the door, but found it to be locked.
He then started screaming for help, put on his prosthetic legs, and
unsuccessfully tried to lack open the door. He then grabbed a cricket bat which
he used to bash out a piece from the door, and seeing the key lying on the toilet
floor, he unlocked the door and found Reeva slumped with her weight on the
toilet bowl. She was not breathing. He held her, and at some point thought he
heard her breathing. And so he pulled her into the bathroom before telephoning
another resident of the estate, Mr Stander, (the phone call was made at 3:19)
followed by the emergency number of Netcare 911, a paramedic organisation (at
3:20), and then the estates security (some 90 seconds later). He thereafter
carried Reeva down the stairs where he was found, first by Mr Stander and
shortly thereafter by Dr Stipp, when they arrived at the house.
7W\
11
[17] With ample justification, the court found the accused to have been 4a very
poor witness. His version varied substantially. At the outset he stated that he
had fired the four shots before I knew it and at a time when he was not sure if
there was somebody in the toilet. This soon changed to a version that he had
fired as he believed that whoever was in the toilet was going to come out to
attack him. He later changed this to say that he had never intended to shoot at
all; that he had not fired at the door on purpose and that he had not wanted to
shoot at any intruder coming out of the toilet. In the light of these
contradictions, one really does not know what his explanation is for having fired
the fatal shots, an issue to which I shall revert in due course. There were other
inherent improbabilities in his version, some of which were mentioned by the
trial court in its judgment.
[18] It is not necessary to examine the accuseds credibility in any greater

detail for purposes of this judgment as, despite these deficiencies, the trial court
concluded that it had not been shown that the States version that there had
been an argument between the accused and the deceased which had led to her
fleeing to lock herself into the toilet and him then shooting her through the door
was true beyond a reasonable doubt; and that the State had not shown that the
accused had fired at the toilet door for any reason other he had thought there
was an intruder behind it. It therefore concluded that it could not be said that the
accused did not entertain a genuine belief that there was an intruder in the toilet
who posed a threat to him, and therefore he cannot be found guilty of murder
dolus directus\ Although it is not clear from the judgment, this finding appears
to have been based on the reasoning that the accused could not be found guilty
of murder with direct intent as he had not known Reeva was in the toilet (the
correctness of this latter conclusion was not an issue raised in this appeal).
12
[19] Importantly, the trial court went on to find that the accused, in shooting as
he did, had not done so with so-called legal intent or dolus eventualis (an issue
that lies at the heart of this appeal). However, it found that the shooting had
been unlawful and that, although the accused had not had the necessary
intention to kill the deceased, he had done so negligently and was therefore
guilty of culpable homicide. The accused was thereupon sentenced to five
years imprisonment capable of being converted to correctional supervision
under s 276(l)(z) of the CPA.
[20] It was pursuant to this finding that the State sought, and obtained, the trial
courts leave to appeal to this court in respect of questions of law reserved under
s 319 of the CPA. The questions, so reserved, were the following:
l. Whether the principles o f dolus eventualis were correctly applied to the accepted facts
and the conduct of the accused, including error in objecto.
.'
2. Whether the court correctly conceived and applied the legal principles pertaining "to
circumstantial evidence and/or pertaining to m ultiple defences by an accused.
3. Whether the court was correct in rts construction and reliance on an alternative version of
the accused and that this alternative version was reasonably possibly true.
[21] It is probably wise at this stage to briefly explain the ambit of this appeal
and what this court may consider. As a general rule, an appeal is a complete
rehearing, without the leading of evidence, in which a trial courts conclusions
of both fact and law may be challenged by having regard to the evidence on
record. As a general rule, then, a person convicted of a crime may, on appeal,
challenge the credibility of the witnesses who testified at the trial as. well as the
factual findings made by the trial court upon which the conviction was based.
The trial courts conclusions on matters of law relevant to the conviction may
also be disputed.
13
[22] However, in a case such as this, where effectively the State seeks to
appeal against the acquittal of the accused (in this instance on the charge of
murder) and the appeal is brought under the provisions of s 319 of the CPA,
. different considerations apply. Of course the State may well feel justifiably
aggrieved by a trial court acquitting an accused person when, on the facts of the
case, a conviction should have followed, but in such a case, as was observed by
Corbett CJ in Magmoed the traditional policy and practice of our law is that
an acquittal by a competent court in a criminal case is final and conclusive and
may not be questioned in any subsequent proceeding.
[23] Consequently, as opposed to an accused who has the benefit of appealing

against a conviction based on alleged incon*ect factual findings, the State may
not appeal against an acquittal based solely on findings of fact. And as
Chaskalson CJ pointed out in Basson:9
Prior to 1948 [the State] could also not appeal against a finding o f law made in a tria l before
a Judge which resulted in the acquittal o f an accused person. In 1948 the Criminal Procedure
Act then in force was amended to make provision for the reservation of questions o f law at
the instance o f the State in terms substantially similar to s 319 o f the present A c t5
[24] In the light of these decisions, the State has no right to appeal save where
there is a statutory right bestowed on it to do so. In this instance its right is
limited to the three questions of law reserved, quoted above. This court cannot
interfere, for example, with the factual decision made by the trial court rejecting
the States version that there had been a disagreement between the appellant and
the deceased that led the deceased to hide herself in the toilet to escape from
him, before being shot. The matter must therefore proceed, as was accepted by
the State, on the basis both that its rejected version cannot be reconsidered and
that it has not been shown that the
8Magmoed v Janse van Rembvrg& others 1993 (1) SACR 67 (A) at 101g-i.
9S v Basson 2004 (1) SACR 285 (CC) para 108.
235
accused had acted with the direct intention to kill the deceased. The States case
before this court therefore revolved primarily on whether the trial court had
erred in regard to the issue of dolus eventualis.
[25] It is necessary to explain certain of the issues that arise for consideration
in a murder case. Over the years jurists have developed what has been referred
to as the grammar of criminal liability.10 As already mentioned, murder is the
unlawful and intentional killing of another person. In order to prove the guilt of
an accused on a charge of murder, the State must therefore establish that the
perpetrator committed the act that led to the death of the deceased with the
necessary intention to kill, known as dolus. Negligence, or culpa, on the part of
the perpetrator is insufficient.
[26] In cases of murder, there are principally two forms of dolus which arise:
dolus directus and dolus eventualis. These terms are nothing more than labels
used by lawyers to connote a particular form of intention on the part of a person
who commits a criminal act In the case of murder, a person acts with dolus
directus if he or she committed the offence with the object and puipose of
killing the deceased. Dolus eventualis, on the other hand, although a relatively
straightforward concept, is somewhat different. In contrast to dolus directus, in
a case of murder where the object and purpose of the perpetrator is specifically
to cause death, a persons intention in the form of dolus eventualis arises if the
perpetrator foresees the risk of death occurring, but nevertheless continues to act
appreciating that death might well occur, therefore gambling as it were with
the life of the person against whom the act is directed. It therefore consists of
two parts: (1) foresight of the possibility of death occurring, and (2)
reconciliation with that foreseen possibility. This second element has been
expressed in various ways. For example, it has been said that the person must
10 See CR Snyman Criminal Law 5th ed (2008) at 29.
15,
act reckless as to the consequences (a phrase that has caused some confusion
as some have interpreted it to mean with gross negligence) or must have been
reconciled7with the foreseeable outcome. Terminology aside, it is necessary to
stress that the wrongdoer does not have to foresee death as a probable
consequence of his or her actions. It is sufficient that the possibility of death is
foreseen which,- coupled with a disregard of that consequence, is sufficient to
constitute the necessary criminal intent.
[27] These are the basic principles to be borne in mind in considering the first
of the three legal questions reserved for decision in this appeal. The first relates
specifically to whether the trial court properly applied these principles to the
facts that it had found had been proved. In considering whether it did, it is
necessary to quote fairly fully the trial courts reasoning relevant to whether theaccused had acted with dolus eventualis when he fired the fatal shots through
the door of the toilet cubicle. In this regard it said the following:
I now deal w ith dolus eventualis or legal intent. The question is:
1.
D id the accused subjectively foresee that it could be the deceased behind the toilet
door and
2.
Notwithstanding the foresight did he then fire the shots, thereby reconciling him self to
the possibility that it could be the deceased in the toilet?

The evidence before this court does not support the states contention that this could be a case
o f dolus eventualis.
On the contrary the evidence shows that from the onset the accused believed that; at the time
he fired shots into the toilet door, the deceased was in the bedroom while the intruders were
in the toilet. This beliefwas communicated, to a number ofpeople shortly after the incident
After recording that the accused had told the persons who first arrived on the
scene, including Dr Stipp and the police, that he had shot the deceased believing
that she was an intruder, the court continued:
Counsel for the defence correctly argued that it was highly improbable that the accused
would have made this up so quickly and be consistent in his version, even at the bail
237
16"
238
application before he had access to the police docket and before he was privy to the evidence
on behalf o f the State at the bail application.
The question is: Did the accused foresee the possibility o f the resultant death, yet persisted in
his deed reckless whether death ensued or not? In the circumstances o f this case the answer
has to be no. Although during argument counsel for the state referred to a good grouping o f
bullets fired at the door as proof that there was intention to k ill the person behind the door
there was nothing in the evidence to support this.
How could the accused reasonably have foreseen that the shots he fired would kill the
deceased or whoever was behind the door? Clearly he did not subjectively foresee this as a
possibility that he would Idll the person behind the door, let alone the deceased, as he thought
she was in the bedroom at the time. The version o f the accused was that had he intended to
Mil the person behind the door he M>ould have aimed higher at chest level. This was not
contradicted
To find an intention to k ill the deceased, in particular, would be tantamount to saying, inter
alia, that the accuseds reaction after he realised that he had shot the deceased was faked; that
he was play acting merely to delude the onlookers at the time.
Doctor Stipp, an independent witness who was at the accuseds house minutes after the
incident had occurred, stated that the accused looked genuinely distraught, as he prayed to
God and as he pleaded w ith him to help save the deceased.
There was nothing to gainsay that observation and this court has not been given any reason to
reject it and we accept it as true and reliable. This court also accepts that there was no
intention to k ill the person behind the door. It follows that the accused s erroneous belief that
his life was in danger excludes dolus. The accused, therefore cannot be found guilty of
murder dolus eventualis. (The
italicised emphasis is mine.)
[28] I find the reasoning in this passage to be confusing in various respects.

The rhetorical question How could the accused reasonably have foreseen that
the shots he fired would kill the deceased or whoever was behind the door?
wrongly applies an objective rather than a subjective approach to the question of
dolus. The issue was not what was reasonably foreseeable when the accused
'EifA
17
fired at the toilet door but whether he actually foresaw that death might occur
when he did so. As Holmes JA emphasised in Sigw ahla1
The distinction must be observed between what actually went on in the mind of the accused
and what would have gone on in the mind o f a [reasonable person] in the position of the
accused. In other words, the distinction between subjective foresight and objective
foreseeability must not become blurred.
Moreover, the question indicates that the court found the presence of a person
behind the door not to have been reasonably foreseeable; but this is at odds with
its subsequent conclusion that the accused was guilty of culpable homicide on
the basis that a reasonable person in the same circumstances would have
foreseen the reasonable possibility that the shots fired at the door of the toilet
might kill whoever was in the toilet,
[29] Furthermore, the finding that the accused had not subjectively foreseen
that he would kill whoever was behind the door and that if he had he intended to
do so he would have aimed higher than he did, conflates the test of what is
required to establish dolus directus with the assessment of dolus eventualis, The
issue was not whether the accused had as his direct objective the death of the
person behind the door. What was required in considering the presence or
otherwise of dolus eventualis was whether he had foreseen the possible death of
the person behind the door and reconciled himself with that event. The
conclusion of the trial court that the accused had not foreseen the possibility of
death occurring as he had not had the direct intent to kill, shows that an
incorrect test was applied.
[30] There was a further fundamental error. It is apparent from the extract of
the judgment quoted above, in particular the two questions posed at the outset
and the passages that I have emphasized, that the trial courts consideration of
11S v Sigwahla 1967 (4) SA 566 (A) at 570C-E.
239
240
dolus eventualis centred upon whether the accused knew that the person in the
toilet cubicle was Reeva, and its conclusion that dolus eventualis had not been
proved was premised upon an acceptance that, as he had thought Reeva was in
the bedroom, he did not foresee that she was the person in the toilet. Simply put,
the finding was that as the accused did not realise that it was Reeva in the toilet,
he did not foresee that his action in shooting could cause her death and he could
not be held guilty of her murder.
[31] This finding goes to the heart of the first question of law reserved ie
whether the principles of dolus eventualis, including so-called 4error in
objecto9, were properly applied. In this regard, it is necessary to stress that ..
...
although a perpetrators intention to kill must relate to the person killed, this
does, not-mean- that a perpetrator must know or appreciate the identity of the
victim. A person who causes a bomb to explode in a crowded place will
probably be ignorant of the identity of his or her victims, but will nevertheless
have the intention to kill those who might die in the resultant explosion.
Reverting to the lexicon of a lawyer, this is known as intent in the form of so*
19 *
called 'dolus indeterminatus ie the killing of an indeterminate person. It is not

a form of intention apart from dolus directus or dolus eventualis; it is merely a
label meaning that the perpetrators intention is directed at a person or persons
of unknown identity. A perpetrator can therefore act with dolus indeterminatus
1n
simultaneously with dolus eventualis. For example, as Snyman points out, and
as this court has recently observed,14 our courts have consistently held persons
engaged in a wild shootout in the course of an armed robbery to be liable for
murder on the .basis of their having acted with both dolus eventualis and dolus
I
indeterminatus where persons were killed as a result.
T^
12 Compare eg S v Mavhvngu 1981 (1) SA 56 (A) at 66H.

13 CR Snyman, Criminal Law 5ed (2008) at 200 - 201.
14Nkosi v The State (20727/14) [2015] ZASCA 125 (22 September 2015) para 5.
15 See eg SvNhlapo & another 1981 (2) SA 744 (A).
v e
[32] What was in issue, therefore, was not whether the accused had foreseen
that Reeva might be in the cubicle when he fired the fatal shots at the toilet door
but whether there was a person behind the door-who might possibly be killed by
his actions. The accuseds incorrect appreciation as to who was in the cubicle is
not determinative of whether he had the requisite criminal intent. Consequently,
by confining its assessment of dolus eventualis to whether the accused had
foreseen that it was Reeva behind the door, the trial court misdirected itself as to
the appropriate legal issue.
[33] This conclusion shows the fallacy in the submission of counsel for the
accused that the first question of law raised solely a question of fact. Since the
question as to the form of the intention of an accused in a case of murder
invokes a factual enquiry, at best for the accused the first question reserved
invokes an issue of mixed fact and law. As there was an incorrect application of
the legal issue, the first point of law reserved must be determined in favour of
the State.
[34] A further issue which arises in respect of dolus eventualis overlaps with
the second point of law reserved for decision, namely whether the legal
principles relating to circumstantial evidence were correctly applied. As this
court has pointed out,16 while the subjective state of mind of an accused person
in a case such as this is an issue of fact that can often only be inferred from the
circumstances surrounding the infliction of the fatal injury, the inference to be
properly drawn must be consistent with all the proved fact. It is thus trite that a
trial court must consider the totality of the evidence led to determine whether
16 Inter alia, in S v Dlodlo 1966 (2) SA 401 (A) at 405G-H.
241
-20
2 4 2
the essential elements of a crime have been proved.17 As Nugent J stated in Van
der Meyden,18 a passage o ft cited with approval in this court:19
The proper test is that an accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process o f reasoning which is appropriate
to the application o f that test in any particular case w ill depend on the nature o f the evidence
which the court has before it What must be borne in mind, however, is that the conclusion
which is reached (whether it be to convict or to acquit) must account for all the evidence.
Some o f the evidence might be found to -be false; some o f it might be found to be unreliable;
and some o f it might be found to be only possibly false or unreliable; but none o f it may
simply be ignored.
[35] In Magmoed one of the parties had been an accused in previous criminal
proceedings during which he had made certain vital admissions relevant to the
issues in the subsequent proceedings. An application to use the evidence in the
previous proceedings was ruled inadmissible, and the issue arose whether this
ruling was an issue of fact or of law. Corbett CJ held that the trial court, which
had ruled the evidence to be inadmissible, had erred as a matter of law, and that
it would have served the due administration of justice5for the evidence to have .
been admitted.
[36] There seems to me to be no difference in principle between the exclusion

of relevant evidence by ruling it inadmissible and excluding such evidence, once
admitted, by not taking it into account to decide the issues in dispute. In either
event the judicial process becomes flawed by regard not being had to material
which might affect the outcome. As much as excluding evidence on the basis of
admissibility is a legal issue, it seems to me to also be a legal issue should
17 Sv Libazi & another 2010 (2) SACR 233 (SCA) para 17.
18S v Van der Mey>den 1999 (1) SACR 447 (W) at 449j-450c,
19 EgS v Mdlongwa 2010 (2) SACR 419 (SCA) para 11.
20 At 827G.
EVYA
account not be taken of any evidence placed before court which ought to be
weighed in the scales,
[37]
Illustrative of this, is the decision of the Canadian Supreme Court in
RvB> to which counsel for both sides referred us. The accused in that case had
been charged with assault, an allegation they denied. The trial judge acquitted
them but the Court of Appeal allowed the Crowns appeal and ordered a new
trial. In doing so, it acknowledged that under the Canadian Criminal Code,
similar to the position in this country, it was not open to an appellate court to
consider the reasonableness of a trial judges findings of fact, but stated it could,
determine whether the trial court had properly directed itself to all the relevant
evidence bearing on the relevant issues. It held that the trial judge had ignored
certain evidence, or failed to mention it and, in doing so, displayed a lack of
appreciation of the relevant evidence which could have had a bearing on the
result. This justified an appeal court interfering with the decision. In a further
appeal, this time by the accused, the Supreme Court of Canada confirmed the
order of the Court of Appeal. In doing so, Wilson J stated that although it had
not been open for the Court of Appeal to overturn the acquittal if it found it to
be unreasonable or unsupported by the evidence, it could do so on questions of
law and that an appeal would lie where the question of law originates from the
trial judges conclusion that he or she is not convinced of the guilt of the
accused because of an erroneous approach to, or treatment of, the evidence
adduced at trial.22 After referring to the judgment of the majority of the
Canadian Supreme Court in Harper23 in which the court had held that where the
record, including the reasons for judgment, discloses a lack of appreciation of
relevant evidence and more particularly the complete disregard of such
25 R V B (G) (1990) 56 CCC (3d) 181 (SCC); (1990) 2 SCR 57.

22 Para 28.
23 Harper v R [1982] 1 SCR 2, 65 CCC (2d) 193J 33 DLR (3d) 546 40 NR 255.
22
evidence a court of appeal could intervene, Wilson J cited with approval24 the
following comment of Marshall JA in a judgment of the Newfoundland Court of
Appeal m R v Roman,
a case also involving an acquittal (a passage which
counsel for the accused conceded in this court would also amount to an accurate
reflection of our law):
There is a distinction between reassessment by an appeal court o f evidence for the purpose
o f weighing its credibility to determine culpability on the one hand and, on the other,
reviewing the record to ascertain if there has been an absence -o f appreciation o f relevant
evidence. The former requires addressing questions o f fact and is placed outside the purview
o f an appellate tribunal. . . the latter enquiry is one o f law because if the proceedings indicate
a lack o f appreciation o f relevant evidence, it becomes a reviewable question, o f law as to
whether this lack precluded the tria l judge from effectively interpreting and applying the law.4
[38] In the present instance, although the question of the accuseds intention at
the relevant time is one of fact to be determined by inference, there regrettably
does appear to have been such an absence of appreciation of material evidence
relevant to that issue. In this regard, the failure of the court to take into account
the evidence of Capt Mangena , a police forensic expert, whose evidence as to
the reconstruction of the crime scene was found by the court to have been
particularly useful, is of particular importance. Having regard to the position
of the bullet holes in the door, the marks the bullets left in the toilet cubicle and
the position of the injuries on the deceaseds body, and after making use, inter
alia, of laser technology, he determined that the deceased must have been
standing behind the door when she was first shot and then collapsed down
towards the toilet bowl. Although the precise dimensions of the toilet cubicle do
not appear from the record, it is clear from the photographs that it is extremely
small. And it is also apparent from the reconstruction and the photographs,
demonstrating with laser beams and steel rods the path each bullet had travelled,
24 Para 34.
23 R v Roman (1987), 38 CCC (3d) 385, 66 Nfld. & PEIR 319,204 APR 319.
23
that all the shots fired through the door would almost inevitably have struck a
person behind it. There had effectively been nowhere for the deceased to hide.
[39] In addition, Capt Mangena testified that the Black Talon ammunition the
accused had used was specifically designed for the purpose of self-defence. It
would penetrate a wooden door without disintegrating but would mushroom on
striking a soft, moist target such as human flesh, causing devastating wounds to
any person who might be hit. The veracity of this is bome out by the
photographs depicting the injuries the deceased sustained, correctly described
by the trial court as being horrendous.
[40]
All of this was circumstantial evidence crucial to a decision on whether
the accused, at the time he fired the fatal four shots, must have foreseen, and
therefore did foresee, the potentially fatal consequences of his action. Afrd yet
this evidence was seemingly ignored by the trial court in its assessment of the
presence of dolus eventualis. Had it been taken into account, the decision in
regal'd to the absence of dolus eventualis may well have been different. In the
light of the authorities I have mentioned, to seemingly disregard it must be
regarded as an error in law.
[41] Consequently, the first two questions reserved for decision must be
answered in favour of the prosecution to the extent that I have indicated. I thus
turn to the third question, namely, whether the trial court was correct cin its
construction and reliance of an alternative version of the accused and that this
alternative version was reasonably possibly true. The question as posed is
vague. Questions reserved for decision under s 319 of the CPA should be clearly
formulated so that this court can identify with precision the legal issue it is
called upon to decide. At best for the State, the question asks no more than
whether the accuseds version accepted by the trial court was reasonably
245
24
possibly tine. This is a factual decision. As already set out, and on the strength
of the authorities to which I have referred, a finding of fact falls beyond the
scope of what this court may decide under s 319. In any event, in the light of my
findings in regard to the first two questions, the third question, even if it can be
construed as being a point of law, seems superfluous.
[42] To summarise,, in regard to the questions of law reserved for decision of

this court:
(1) The principles of dolus eventualis, including error in objecto, were
incorrectly applied to the facts found to be proved relevant to the conduct of the
accused; and
(2)
The trial court did not correctly conceive and apply the legal principles
pertaining to circumstantial evidence.
[43] The question then becomes, what should this court do in the light of these
findings? The powers of a court in. the case of an appeal on a question of law
reserved are set out in s 322 of the CPA as follows:
(1) In the case o f an appeal against a conviction or o f any question o f law reserved, the court
o f appeal may-
(a) allow the appeal if it thinks that the judgment o f the trial court should be set aside on the
ground o f a wrong decision o f any question o f law or that on any ground there was a failure
o f justice; or
(b) give such judgment as ought to have been given at the tria l or impose such punishment as
ought to have been imposed at the trial; or
(c) make such other order as justice may require:

Provided that, notwithstanding that the court o f appeal is of opinion that any point raised
might be decided in favour o f the accused, no conviction or sentence shall be set aside or
altered by reason o f any irregularity or defect in the record or proceedings, unless it appears
to the court o f appeal that a failure o f justice has in fact resulted from such irregularity or
defect.
246
25
247
(4) Where a question o f law has been reserved on the application o f a prosecutor in the case
of an acquittal, and the court o f appeal has given a decision in favour o f the prosecutor, the
court o f appeal may order that such o f the steps referred to in section 324 be taken as'the
court may direct.5
[44] Under s 324 of the CPA, referred to in s 322(4), where there has been a
misdirection of law, as has occurred in this case, proceedings in respect to the
same offence may again be instituted before another judge and assessors.
Accordingly, it is a permissible option for this court to set aside the conviction
of culpable homicide on count one of the indictment and order that the accused
be tried de novo on that count. However, given the protracted nature of the trial
that has already taken place, the issues that were involved, the time that has
already elapsed and the unfairness that may result if witnesses have once again
to testify,26 it would seem to me to be wholly impracticable and not in the public
interest to follow that course. Indeed neither side pressed for such an order.
[45] Counsel for the accused drew our attention to the fact that the accused has
already served the period of direct imprisonment envisaged by the period of
correctional supervision imposed upon him by the trial court, and argued that
apart from answering the questions of law, this court should exercise its
discretion under s 322 to make no further order. However, in my view, that too
is undesirable. The interests of justice require that persons should be convicted
of the actual crimes they have committed, and not of lesser offences. That is
particularly so in crimes of violence. It would be wrong to effectively think
away the fact that an accused person is guilty of murder if he ought to have been
convicted of that offence.
26
Compare Magmoed at 827I-J.
26
[46] In my view, the option which most readily presents itself as being in the
interests of justice is to consider whether on the facts found proved, the trial
court erred in drawing the inference it did as to dolus eventualis. This is so as in
an appeal of this nature this court is in as good a position as the trial court in
drawing inferences of fact from proven facts.27 In my view, then, the interests of
justice require this court on an acceptance of the facts found proved, if of the
view that the incorrect conclusion was reached in respect of dolus>to set aside
the conviction of culpable homicide on count 1.
[47]
The pertinent issue then becomes whether, on the primary facts found
proved, considering all of the evidence relevant to the issue, and applying the
correct legal test, the inference has to be drawn that the accused acted with dolus
eventualis when he fired the fatal shots. In this regard the following observation
of Brand JA in Humphreys is to the point:
[L]ike any other fact, subjective.foresight can be proved by inference. Moreover, common
sense dictates that the process o f inferential reasoning may start out from the premise that, in
accordance with common human experience, the possibility o f the consequences that ensued
would have been obvious to any person o f normal intelligence. The next logical step would
then be to ask whether, in the light of all the facts and circumstances of this case, there is any
reason to think that the appellant would not have shared this foresight, derived from common
human experience, with other members o f the general population.
[48] In arguing that the State had failed to show that the accused lacked the
necessary subjective intention in respect of both elements of dolus eventualis,
counsel for the accused emphasised the accuseds physical disabilities, the fact
that he had not been wearing his prostheses at the time and that he had thus been
27 R v Dhlvmayo 1948 (2) SA 677 (A) at 705-6, S v Crossberg 2008 (2) SACR 317 (SCA) para 149 and Minister
o f Safety and Security & others v Craig & others NNO 2011 (1) SACR 469 (SCA) para 58.
28 S v Humphreys 2015 (1) SA 491 (SCA) para 13.
cJ?
27
particularly vulnerable to any aggression directed at him by an intruder. He also

placed considerable emphasis on the psychiatric evidence that the accused
suffers from a general anxiety disorder, and would become anxious very easily
in a situation of danger, although he also has a cfight rather than flight reaction.
The argument appears to have been that in the circumstances that prevailed, the
accused may well have fired without thinking of the consequences of his
actions.
[49] In my view this cannot be accepted. On his own version, when he thought
there was an intruder in the toilet, the accused armed himself with a. heavy
calibre firearm loaded with ammunition specifically designed for self-defence,
screamed at the intruder to-get out of his house, and proceeded forward to the
bathroom in order to confront whoever might be there. He is a person welltrained in the use of firearms and was holding his weapon at the ready in order
to shoot. He paused at the entrance to the bathroom and when he became aware
that there was a person in the toilet cubicle, he fired four shots through the door.
And he never offered an acceptable explanation for having done so.
[50]
As a matter of common sense, at the time the fatal shots were fired, the
possibility of the death of the person behind the door was clearly an obvious
result. And in filing not one, but four shots, such a result became even more
likely. But that is exactly what the accused did. A court, blessed with the
wisdom of hindsight, should always be cautious of determining that because an
accused ought to have foreseen a consequence, he or she must have done so. But
in the present case that inference is irresistible. A person is far more likely to
foresee the possibility of death occurring where the weapon used is a lethal
firearm (as in the present case) than, say, a pellet gun unlikely to do serious
harm. Indeed, in this court, counsel for the accused, while not conceding that
the trial court had erred when it concluded that the accused had not subjectively
foreseen the possibility of the death of the person in- the toilet, was unable to
actively support that finding. In the light of the nature of the firearm and the
ammunition used and the extremely limited space into which the shots were
fired, his diffidence is understandable.
[51]
In these circumstances I have no doubt that in firing the fatal shots the
accused must have foreseen, and therefore did foresee, that whoever was behind
the toilet door might die, but reconciled himself to that event occurring and
gambled with that person's life. This constituted dolus eventualis on his part,
and the identity of his victim is irrelevant to liis guilt
[52] As a final counter to the States case, it was argued that although the
accused had not acted in private or so called self-defence5 there had in fact
been no attack upon him that he had acted to ward off he had genuinely but
erroneously believed that his life was in danger when he fired the fatal shots. As
opposed to what is commonly known as self-defence, this is so-called putative
private or self-defence. The principles relevant to these two defences were
authoritatively dealt with by this court in De Oliveira, and were explained by
Smalberger JA as follows:
The test for private defence is objective would a reasonable man in the position of the
accused have acted in the same way (S v Ntuli 1975 (1) SA 429 (A) at 436E). In putative
private defence it is not lawfulness that is in issue but culpability (skukf). I f an accused
honestly believes his life or property to be in danger, but objectively viewed they are not, the
defensive steps he takes cannot constitute private defence. I f in those circumstances he kills
someone his conduct is unlawful. His erroneous belief that his life or property was in danger
may well (depending upon the precise circumstances) exclude dolus in which case lia b ility
for the persons death based on intention w ill also be excluded; at worst for him he can then
be convicted o f culpable homicide.
29 S v De Oliveu-a 1993 (2) SACR 59 (A) 63i-64b.
29
On appeal the unlawfulness o f the appellants conduct was not in issue. Accordingly the only
issue was whether the State had proved beyond all reasonable doubt that the appellant
subjectively had the necessary intent to commit the crimes o f which he was convicted, in
other words, that he did not entertain an honest belief that he was entitled to act in private
defence. . . 5
[53] The immediate difficulty that I have with the accused's reliance upon
putative private defence is that when he testified, he stated that he had not
intended to shoot the person whom he felt was an intruder. This immediately
placed himself beyond the ambit of the defence, although as I have said, his
evidence is so contradictory that one does just not know his true explanation for
firing the weapon. His counsel argued that it had to be inferred that he must
have viewed whoever was in the toilet as a danger. But as was pointed out in De
Oliviera30 the defence of putative private defence implies rational but mistaken
thought. Even if the accused believed that there was someone else in the toilet,
his expressed fear that such a person was a danger to his life was not the product
of any rational thought. The person concerned was behind a door and although
the accused stated that he had heard a noise which he thought might be caused
by the door being opened, it did not open. Thus not only did he not know who
was behind the door, he did not know whether that person in fact constituted any
threat to him. In these circumstances, although he may have been anxious, it is
inconceivable that a rational person could have believed he was entitled to fire
at this person with a heavy calibre firearm, without taking even that most
elementary precaution of firing a warning shot (which the accused said he
elected not to fire as he thought the ricochet might harm him). This constituted
prima facie proof that the accused did not entertain an honest and genuine belief
that he was acting lawfully, which was in no way disturbed by his vacillating
20 S v D e Oliveira 1993 (2) SACR 59 (A).
30
and untruthful evidence in regard to his state of mind when he fired his
weapon.31
[54] In order to disturb the natural inference that a person intends the probable
consequences of his actions, the accused was required to establish at least a
factual foundation for his alleged genuine belief of an imminent attack upon
him. This the accused did not do. Consequently, although frightened, the
accused armed himself to shoot if there was someone in the bathroom and when
there was, he did. In doing so he must have foreseen, and therefore did foresee
that the person he was firing at behind the door might be fatally injured,- yet he
fired without having a rational or genuine fear that his life was in danger. The
defence of putative private or self-defence cannot be sustained and is no bar to a
finding that he acted with dolus eventualis in causing the death of the deceased.
[55] In the result, on count 1 in the indictment the accused ought to have been
found guilty of murder on the basis that he had fired the fatal shots with criminal
intent in the form of dolus eventualis. As a result of the errors of law referred to,
and on a proper appraisal of the facts, he ought to have been convicted not of
culpable homicide on that count but of murder. In the interests of justice the
conviction and the sentence imposed in respect thereof must be set aside and the
conviction substituted with a conviction of the corcect offence.
[56] Of course the accused has now served a portion of the sentence imposed
upon him in respect of the lesser offence of culpable homicide. But the issue of
what would be an appropriate sentence was not debated before this court, quite
properly, particularly in the light of the Constitutional Courts judgments in
Nabolisa32 and Bogaards33 as the matter must be sent back to the trial court for
31 Compare De Oliveira at 64H-65C.
32 S v Nabolisa 2013 (2) SACR 221 (CC) para 82.
WfA
aA
sentence to be imposed afresh. In doing so, obviously whatever punishment has

already been served by the accused in respect of the incorrect conviction of
culpable homicide will be taken into account.
[57] Before closing, it is necessary to make a final comment. The trial was
conducted in the glare of international attention and the focus of television
cameras which must have added to the inherently heavy rigors that are brought
to bear upon trial courts in conducting lengthy and complicated trials. The trial
judge conducted the hearing with a degree of dignity and patience that is a credit
to the judiciary. The fact that this court has determined that certain mistakes
were made should not be seen as an adverse comment upon her competence and
ability. The fact is that different judges reach different conclusions and, in the
light of an appeal structure, those of the appellate court prevail. But the fact that
the appeal has succeeded is not to be regarded as a slight upon the trial judge
who is to be congratulated for the manner in which she conducted the
proceedings.
[5 8] The following order is made:

1 The first two questions of law reserved are answered in favour of the Director
of Public Prosecutions.
2 The accuseds conviction and sentence on count 1 are set aside and replaced
with the following:
dolus eventualis
3 The matter is referred back to the trial court to consider an appropriate

sentence afresh in the light of the comments in this judgment.
33 S v Bogaaids 2013 (1) SACR 1 (CC) paras 74 and 75.
L E Leach
Judge of Appeal
33
255
Appearances:
For the Appellant:
G C Nel (with him A Johnson;; DWM

Broughton and JS Grant)
Instructed by:
Director of Public Prosecutions, Pretoria

Director of Public Prosecutions,
Bloemfontein
For the Respondent:
B Roux SC (with him .S Jackson and

R Adams
Instructed by:
Barnard Inc, c/o Pretorius Le Roux

Attorneys, Pretoria
McIntyre & Van der Post, Bloemfontein
<&!?

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

In the matter between:

OSCAR LEONARD CARL PISTORIUS

DIRECTOR OF PUBLIC PROSECUTIONS,

Appellants Heads: SCA

Respondents Heads: SCA

m THE CONSTITUTIONAL OF SOUTH AFRICA

In the matter between:

OSCAR LEONARD CARL PiSTORIUS

DIRECTOR OF PUBLIC PROSECUTIONS,

RESPONDENTS NOTICE OF INTENT50N TO OPPOSE

1. TAKE MOTICE THAT the Respondent intends to oppose this application

2. TAKE FURTHER NOTICE THAT the Respondent will in opposition to this

SIGNED at PRETORIA on this 20th day of January 2016

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS: GAUTENG

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

In the matter between:

OSCAR LEONARD CARL PISTORIUS

DIRECTOR OF PUBLIC PROSECUTIONS,

AFFIDAVIT IN TERMS OF RULE 19(4)

I am employed by the National Prosecuting Authority (NPA) as a Senior Deputy

Respondent before this Honourable Court.

4. The Applicant is Oscar Leonard Carl Pistorius.

9. The Supreme Court of Appeal (SCA), in a unanimous judgment of a Full Bench,

1 Judgment of the trial Court, attached as Annexure B.

It is our respectful submission that the SCA

THE SCA JUDGMENT

The SCA summarised the Applicants background and the circumstances of

The incident was summarised at para [13].

The findings and sentence were summarised at paras [18][19].

[t]he matter must therefore

"... This conclusion shows the fallacy in the submission of Counsel

4At para [23] of the SCA judgment.

knowledge of unlawfulness. The Applicant eschews any possible support

At para [28], the confused reasoning of the Court a quo in adopting a an

as there was an incorrect application of the

All o f this was circumstantial evidence crucial to a decision on

consequence of his actions ... [Tjo seemingly disregard it must be

The SCA demonstrated its cautious approach as to its powers in relation to

It found that based on practical

8 See para 88 of the Affidavit in Support of Application for Leave to Appeal.

considerations and the argument by the Applicant and the Respondent, it

The SCA then embarked on a second phase of the application by

The SCA identified and discussed the crux of an evaluation of the

.. he fired four shots through the door. And he never offered an

9At paras [46]-[51] of the SCA judgment.

but has totally

The above-mentioned hurdles remain standing and have not been

11At para [53] of the SCA judgment.

The SCA committed three errors of law, namely:

it failed to apply the second component of dolus eventualis which the

it failed to consider the Applicants knowledge of unlawfulness as far

it introduced an objective consideration of the rational person into

in particular putative private defence,

reintroduced the defunct presumption that an accused intends the

24.The insurmountable hurdle for the Applicant to overcome in convincing this

142000 (1) SACR 633 (SCA) at para [47] (emphasis added).

THE TEST FOR APPEALABILITY AND JURISDICTION