Case No: 668/91

N v H

ANTONIO SOUSA DE OLIVEIRA Appellant

and

THE STATE Respondent

SMALBERGER, JA -

REPORTABLE
 Case No: 668/91
N v H

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between

ANTONIO SOUSA DE OLIVEIRA Appellant

and

THE STATE Respondent

CORAM: SMALBERGER, NIENABER, JJA,

et HARMS, AJA
HEARD: 4 MAY 1993
DELIVERED: 18 MAY 1993

J U D G M E N T

SMALBERGER, JA:

The appellant was convicted in the

Witwatersrand Local Division by STEGMANN, J, and two

assessors of murder (count 1) and attempted murder

(counts 2 and 3). The convictions followed upon a

shooting incident which occurred at the appellant's

 2

residence in Rewlatch, Johannesburg, on 25 September

1988. The appellant was sentenced to 12 years'

imprisonment on the murder count, and to 8 years'

imprisonment on each of the other counts. The

sentences were ordered to run concurrently, resulting in

an effective sentence of 12 years' imprisonment. The

appellant's subsequent appeal to the Full Bench of the

Transvaal Provincial Division was dismissed. With the

requisite leave he now appeals to this Court against his

convictions and sentences on all three counts.

From the evidence the following picture

emerges. The appellant was born in Madeira in 1956 of

Portuguese-speaking parents. His family emigrated to

South Africa in 1969. The appellant is illiterate.

His home language is Portuguese and he speaks only a

limited amount of English. From about 1974 the

appellant and a certain Mrs Cordeiro lived together as

husband and wife, initially in Boksburg and later in

 3

Rewlatch. At the time of the shooting incident the

appellant was in partnership with three of his brothers.

Between them they owned and ran a number of small shops

or businesses. The appellant assisted in the operation

of the partnership business at Langlaagte.

The complainant on count 2 was Mr Vusi

Nyandeni ("Vusi"). He commenced employment with the

appellant in Boksburg in 1981. He was then still a

teenager. When later that same year the appellant and

Mrs Cordeiro moved to Rewlatch, Vusi accompanied them

and took up residence in the servant's quarters at the

back of the house. He continued to live there, and to

be employed by the appellant, until the shooting

incident. In March 1988 one Tandi Adams moved in with

Vusi and lived with him in his quarters for the duration

of his stay there. Although the relationship between

the appellant and Vusi was essentially that of employer

and employee, it had developed in the course of time

 4

into a deeper, more friendly and trusting relationship,

a state of affairs that persisted until the shooting

incident.

The house occupied by the appellant at the

time was situated in an area described by various

witnesses, including certain policemen, as a dangerous

one. There had been a number of prior incidents of

robbery, housebreaking and theft committed against

inhabitants and properties in the neighbourhood. The

house stood on a corner plot and was bounded on its

western side by Impala Road and on its southern side by

Southern Klipriviersberg Road. In a fence adjoining

the latter road, at the eastern corner of the property,

there was a gate. This gate opened onto a cement

driveway which sloped gently downwards towards the

garage. The driveway was four to five metres wide and

lay between the house and a pre-cast concrete fence

which formed the eastern boundary. The area in

 5

question was a relatively confined one. There was a

wall which connected the far (north-eastern) corner of

the house with the garage. In the wall was a steel

door which gave access to the back yard where Vusi's

room was located. The route normally taken by Vusi to

his room would have been via the driveway and the steel

door. On the eastern side of the house there were two

windows overlooking the driveway. The first of these

(when proceeding down the driveway towards the garage)

was that of the spare bedroom; the second was that of

the bedroom shared by the appellant and Mrs Cordeiro.

The window of this room opened towards the left (i.e.

towards the garage). Both windows were burglar-proofed

(as indeed was the rest of the house).

I come now to the events of Sunday 25

September 1988. On that morning the appellant, Mrs

Cordeiro and Vusi, as they were accustomed to do, left

for the shop at Langlaagte at about 05:00. They

 6

carried on business until closing time at 13:00. Before

leaving the shop the appellant sent for a bottle of

whisky at a nearby shebeen. He and Vusi then

proceeded to partake of some drinks. Thereafter the

three of them left in the appellant's vehicle. They

took the day's takings with them. At Vusi's request he

was dropped in Hillbrow. The appellant and Mrs

Cordeiro proceeded to their home. There they had a

meal, and eventually both went to lie down and sleep.

Meanwhile Vusi had made his way to Alexandra to the

house of his brother, Mr Paul Peter Nyandeni ("the

deceased"). There they were joined by Mr Isaac Nzimande

("Isaac") and Mr Jochonia Modisaitsele ("Jochonia" - the

complainant on count 3). The four of them went to

Daveyton in Isaac's car to visit a brother of Vusi and

the deceased. On their way back to Alexandra, Vusi

asked Isaac to take him to the appellant's house. En

route they stopped at a cafe where Vusi purchased

 7

cigarettes and a large bottle of Coca-Cola. On arrival

at the appellant's house Vusi invited his companions to

his room to share the Coca-Cola he had bought. They

entered the premises through the gate and proceeded

along the driveway to the steel door. This was just

after 17:00.

What has been set out thus far is either

common cause or reflects factual findings made by the

trial Court which are not in dispute for the purposes of

the present appeal. With regard to the events that

followed, particularly those surrounding the actual

shooting, there was considerable divergence between the

State and defence versions.

According to the State witnesses (Vusi, Isaac

and Jochonia) they walked down the driveway quite

openly, past the two bedroom windows, to the steel

door. It was locked. Vusi knocked on the door in the

hope that Tandi Adams might be there to open it. His

 8

knock elicited no response from anyone. He then

proceeded to the front of the house where he rang the

door bell. There was no response there either. He

walked back towards the steel door. While he was doing

so Mrs Cordeiro appeared at her bedroom window. She

asked Vusi what he wanted. He requested that the steel

door be opened. The appellant then appeared at the

same window. He too enquired of Vusi what he wanted.

Vusi explained that he was trying to gain entrance to

his room. The appellant, noting Vusi's companions,

told Vusi that he had previously warned him not to bring

strangers onto the premises and that if it happened

again he would shoot him. The appellant then left the

window. He reappeared shortly thereafter armed with a

pistol, and without uttering a word he commenced firing

at Vusi and his companions.

The defence did not dispute that on the

afternoon in question the appellant fired at least six

 9

shots through his bedroom window. It is common cause

that the deceased died of a gunshot wound of the chest

when one of the bullets fired by the appellant struck

him in the back and penetrated his chest cavity.

Another bullet struck Vusi on the top of his head

penetrating his scalp. A third bullet narrowly missed

Jochonia, tearing a sleeve of the shirt he was wearing.

It was disputed, however, that the shots were fired in

the circumstances deposed to by the State witnesses.

The appellant did not testify at the trial. The

defence version of the events rests upon the evidence of

Mrs Cordeiro and a statement made by the appellant to

the police relating to the shooting which was proved as

part of the State's case.

Mrs Cordeiro's evidence was to the following

effect. She was awoken from her sleep sometime after

17:00 by the barking of their two dogs. She went to

the window of her bedroom and peeped out but did not see
 10

anything or anybody. She then proceeded to the

adjoining spare bedroom. On nearing the window of that

room she observed through the net curtain three or four

black men outside close to the window. They were in

the driveway. She did not recognise any of them. She

took fright at seeing them and ran back to her bedroom

where she shouted to the appellant: "Antonio, Antonio,

Antonio, there are unknown black men outside". At the

same time she heard glass break. She described herself

at that stage as being "highly excited and nervous".

The appellant woke up (what she termed "an abrupt

awakening"). He sat on the edge of the bed and said

to her: "Be calm, be calm, I will see what is going on

and I will sort this out". His pistol was lying on his

bedside table. The appellant then got up and

approached the window. She herself went to the

adjoining bedroom, but before she reached the window she

heard shots being fired. She then started screaming.

 11

(On her evidence there would have been no opportunity

for any discourse between the appellant and Vusi before

the shooting started.)

The statement subsequently made by the

appellant to the police reads as follows:

"On Sunday 1988/09/25 at about half past three

I went to sleep. At about twenty past five my
wife called me and said there were about four
or five blacks in the driveway. My wife
started to scream. I told my wife not to
worry. I would sort it out. I then took my
pistol from the table next to my bed and I
fired six or seven shots and these blacks ran
away. I saw afterward that two black males
were lying on the ground. I was not
thinking about anything at the time as I was
half asleep when I shot these shots. I was
not under the influence of liquor at the time
I fired these shots."

I do not propose to deal with the events that

followed on the shooting as they are not relevant to the

question of the appellant's guilt or innocence.

Suffice it to say that after the shooting the

deceased's body was lying at the south-eastern corner of

 12

the house; Vusi was lying in the middle of the driveway

where he had fallen after being shot. It is also

worthy of mention that when the appellant realised that

Vusi had been shot he immediately proceeded to render

assistance to him.

After carefully analysing the evidence the

trial Court concluded that the evidence of Mrs Cordeiro

could reasonably possibly be true, and that it could not

accept as the truth the evidence of Vusi, Isaac and

Jochonia that the appellant had recognised Vusi and

had spoken to him before firing directly at him and the

others. It is not necessary to traverse the trial

Court's reasons for arriving at its conclusions.

Suffice it to say that they are eminently sound and

persuasive. Apart from anything else, it is extremely

unlikely, given the nature of their relationship, that

the appellant would have fired at Vusi knowing that it

was him.
 13

It follows that the correctness of the

appellant's convictions must be judged in the light of

Mrs Cordeiro's evidence and his own statement. The

main issue revolves around the appellant's state of

mind at the time of the shooting. It is therefore also

pertinent to consider what was put on his behalf under

cross-examination, and the effect of his failure to give

evidence.

The impression gained from the appellant's

plea explanation at the commencement of the trial, and

what was initially put to certain of the State witnesses

under cross-examination, was that that he sought to

justify his conduct on the basis that he had acted in

defence of his life and/or property i.e. private defence

(or as it is still commonly, but less accurately,

referred to, self-defence) . (See as to the use of the

term "private defence", and the need to do so, Burchell

and Hunt: South African Criminal Law and Procedure :

 14

Vol I : p 322; Lawsa: Vol 6 : p 36; Snyman: Criminal

Law : 2nd Ed : p 97.) It subsequently transpired that

the defence was rather one of putative private defence

("putatiewe noodweer"). From a juristic point of view

the difference between 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 limits. 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 436 E). In putative private

defence it is not lawfulness that is in issue

but culpability ("skuld"). If 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. If in those

circumstances he kills someone his conduct is unlawful.

 15

His erroneous belief that his life or property was in

danger may well (depending upon the precise

circumstances) exclude dolus in which case liability for

the person's death based on intention will also be

excluded; at worst for him he can then be convicted of

culpable homicide.

On appeal the unlawfulness of the appellant's

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 of which he was convicted,

in other words, that he did not entertain an honest

belief that he was entitled to act in private defence.

Any argument based on the reasonableness of the

appellant's belief and conduct was not persisted in, and

rightly so.

The appellant did not testify as to his state

of mind at the time of the shooting. Whether or not he

 16

held an honest belief that he was entitled to act as he

did must therefore be determined with regard to such

other evidence as reflects upon his state of mind, and

inferential reasoning.

One can commence with the premise that no

reasonable man in the circumstances in which the

appellant found himself would have believed that his

life or property was in imminent danger. As appears

from Mrs Cordeiro's evidence (and the appellant's

statement), all that she told the appellant was that

there were a number of black men outside in the

driveway. According to Mrs Cordeiro, when she

reported this to the appellant she heard glass break.

The appellant makes no mention of glass breaking in his

statement. The only glass that broke on the premises

that evening was the Coca-Cola bottle, presumably when

it was dropped. At what precise stage this occurred is

not clear bearing in mind that material aspects of

 17

Vusi's version of the events were not accepted. What is

significant is that any noise that may have came from

breaking glass came from outside. It was not

suggested, and could not have been thought, that the

noise of breaking glass came from either of the bedroom

windows (or any other window of the house for that

matter). In other words, there was nothing to suggest

that attempts were being made at a forcible entry. At

the trial it was put to Vusi and his companions that

they had preceded along the driveway not openly, but

stealthily, so as to disguise their presence on the

property, a suggestion they denied. There was no

evidence to prove that they did so. Even if they had,

it would not be relevant as the appellant (and

accordingly the reasonable man in his position) was not

aware of the manner in which they approached.

The reasonable man in the appellant's position

would therefore only have known that there were

 18

strangers on the premises. He would also have been

aware of the fact that the area in question was a

dangerous one where robberies and housebreaking were not

uncommon. There was, however, no indication that any

attack on the house or its occupants had commenced or

was imminent. The appellant was in a situation of

comparative safety in his bedroom, in a secure and

burglar-proofed house and armed with a pistol. In

those circumstances it is inconceivable that a

reasonable man could have believed that he was entitled

to fire at or in the direction of the persons outside in

defence of his life or property (and that without even a

warning shot).

One would normally impute to a person in the

position of the appellant (in the absence of any

evidence by such person as to his state of mind at the

relevant time) a state of mind akin to that of a

reasonable man. In a given case, however, proved facts

 19

or circumstances may exist which would justify a

different conclusion. In the present instance there

are none. This is so even if it is permissible to have

regard, when dealing with the convictions, to the

evidence led on the appellant's behalf in mitigation of

sentence (a matter on which I refrain from expressing

any view), which led the learned trial Judge to hold

that the appellant has "a marked dullness of intellect"

and "has not been blessed with more than a comparatively

low level of intelligence". Even from someone with the

appellant's limited intellectual capacity one would

prima facie not expect a reaction different from that of

the reasonable man, having regard to the particular

circumstances of the present matter.

In the circumstances there was prima facie

proof that the appellant could not have entertained an

honest belief that he was entitled to act in private

defence. The appellant failed to testify as to his

 20

state of mind and to refute this prima facie proof.

His silence must weigh heavily against him. As

was said by Schreiner J in R v Mohr 1944 T P D 105 at

108:

" [I]t is not easy for a Court to come to a

conclusion favourable to the accused as to his
state of mind unless he has himself given
evidence on the subject."

(See too R v Deetlefs 1953(1) SA 418 (A) at 422 G; S v

- Kola 1966(4) SA 322 (A) at 327 F; S v Theron 1968(4) SA

61 (T) at 63 D - H.) The appellant's failure to

testify therefore resulted in the prima facie proof

that he did not entertain an honest belief that he was

entitled to act in private defence becoming conclusive

proof of that fact. The appellant's defence of

putative private defence was therefore correctly

rejected by the trial Court.

In his statement the appellant said, inter

alia, "I was not thinking of anything at the time as I

 21

was half asleep when I shot these shots". The

appellant's counsel sought to rely on this excerpt to

establish a defence. The nature of such defence is

not clear. The defence of putative private defence

implies rational but mistaken thought. It is

inconsistent with a lack of awareness of what you are

doing. The excerpt is therefore not relevant to that

defence. Nor do the words per se establish an absence

of intent. At best they might point to a lack of

criminal capacity or responsibility

("toerekeningsvatbaarheid") but the appellant's counsel,

correctly in my view, specifically disavowed any

reliance on such defence.

The excerpt must in any event be seen in its

proper context. It appears in a statement which formed

part of the evidential material before the trial Court.

It cannot be elevated to a proved fact. Its cogency

must be determined in the light of all the relevant

 22

evidence as well as in the context of the statement as a

whole. If regard is had to Mrs Cordeiro's evidence and

the rest of the appellant's statement it is quite clear

that he was aware of what he was doing despite an

"abrupt awakening". Mrs Cordeiro testified (as

previously mentioned) that the appellant said to her:

"Be calm, be calm, I will see what is going on and I

will sort this out", and his own statement records that

he told her "not to worry" and that he "would sort it

out". These utterances reflect presence of mind on his

part. His further acts in picking up his pistol, moving

to the window and opening it before shooting also show

an awareness of what he was about. His conduct was not

that of a person whose mind was befuddled with sleep.

That he was at all times aware of what he was doing is

also confirmed by what was put on his behalf under

cross-examination to certain witnesses, the precise

details of which need not detain us.

 23

The evidence establishes that the appellant

fired at least six shots in rapid succession into a

confined area (the driveway) while aware of the presence

of people there. Two of them were struck and one was

narrowly missed. Even if one accepts in the

appellant's favour that he had not previously seen the

people he fired at, he knew they were in the driveway.

He fired in the direction in which they would have had

to go if they had wanted to leave the driveway, which is

the direction they could have been expected to take.

He did not fire into the air. The injuries to the

deceased and Vusi, the result of direct hits, bear

testimony to the fact that at least some of the shots

had a trajectory likely to strike a person. In any

event there was a substantial danger of bullets

ricocheting off the walls adjacent to the driveway and

striking the persons on it. The only reasonable

inference to be drawn from the evidence, as well as the

 24

appellant's failure to testify, is that he must have

foreseen, and by necessary inference did foresee, the

possibility of death ensuing to the persons outside, but

reconciled himself to that event occuring. In the

circumstances he was correctly held to have had the

necessary intention to kill in the form of dolus

eventualis. His appeal against his convictions must

accordingly fail.

In passing sentence the learned trial Judge

took into account the objects of punishment and such

other considerations as are generally acknowledged to be

relevant to the determination of an appropriate

sentence. It is not contended that he misdirected

himself in any material respect. What is claimed is

that on a proper conspectus of all relevant factors, the

sentences imposed induce a sense of shock.

As I have mentioned, the appellant is a person

of sub-normal intelligence. The trial Judge accepted

 25

that he was not an aggressive person by nature, and that

there was no reason to fear that he would act in the

same way again. The evidence shows that he was

abruptly awakened by a nervous and excitable woman (Mrs

Cordeiro) who clearly overreacted to the presence of

what she perceived to be total strangers in the

driveway. The appellant did not allow himself much time

for reflection before embarking upon the course he

followed. What actually caused him to fire in the

irresponsible manner in which he did is largely a matter

for conjecture. However, Mr Dorfling, for the State,

fairly conceded that the appellant probably believed

that there was some danger looming. (This is not the

same as saying that he honestly believed that he was in

danger, which I have already found not to have been the

case.) Unfortunately, instead of contenting himself

with, at most, firing a warning shot, he grossly

overreacted to a situation which was not life-

 26

threatening in any way.

The appellant's conduct must be viewed in a

serious light. His precipitate action and

undisciplined and unlawful use of a firearm resulted in

the death of the deceased and serious injury to Vusi.

It is purely fortuitous that Jochonia was not also

seriously injured. There was no need for the appellant

to have fired a single shot, let alone six or more. At

the same time there was an unfortunate combination of

circumstances which contributed to the appellant acting

as he did - a situation unlikely to repeat itself. As

the trial Judge correctly remarked, "heavy punishment is

not necessary to prevent you from committing such crimes

again". One thing is abundantly clear - there is no

evidence to suggest that the appellant's conduct had any

racial overtones.

I am mindful of the fact that the question of

punishment is pre-eminently a matter for the discretion

 27

of the trial Judge, and that this Court will not lightly

interfere with the exercise of that discretion or arrive

at a different assessment of what constitutes an

appropriate sentence. Having said that, it seems to

me, on a proper conspectus of all relevant

considerations, that this is not a case which merits

punishment to the extent of that imposed. I am of the

view that a sentence of 9 years' imprisonment on the

murder count and 5 years' imprisonment on each of the

attempted murder counts would have been appropriate.

The difference between such sentences and those imposed

is sufficiently material or striking to compel

interference by this Court.

The following order is made:

1) The appellant's appeal against his

convictions is dismissed.

2) The appeal against the sentences is

allowed, and the sentences are altered to
 28

read as follows:

(i) Count 1 (Murder): 9 year's

imprisonment;

(ii) Counts 2 and 3 (Attempted

murder): 5 year's imprisonment
on each count.

(iii) It is ordered that the sentences

on all three counts are to run
concurrently.

3. The Registrar is directed to transmit a

copy of this judgment to the Department
of Correctional Services.

J W SMALBERGER
JUDGE OF APPEAL

NIENABER, JA )
HARMS, AJA ) concur