Criminal Law Cases Chapter 4 for Second Year LLB at University of Johannesburg PDF

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Criminal Law Chapter 4 Case Law S v Fourie 2001 (C)..............................................................................................................................................................2 R v Patel 1959 (A)................................................................................................................................................................3 Ex Parte die Minister van Justisie: in re S v Van Wyk.........................................................................................................4 S v Mogohlwane 1982 (T)....................................................................................................................................................5 Grigor v S 2012 (SCA).........................................................................................................................................................6 DPP v Pistorius 2018 (SCA)................................................................................................................................................7 S v Pistorius 2014 (GP)........................................................................................................................................................8 Steyn case (Article)..............................................................................................................................................................9 S v Goliath..........................................................................................................................................................................10 S v Leeuw...........................................................................................................................................................................11 S v Mostert.........................................................................................................................................................................12 S v YG 2018 (GJ)...............................................................................................................................................................13 Zurich v S 2010 (SCA).......................................................................................................................................................14 S v Jezile (WCC) 2015.......................................................................................................................................................15 S v Mogaramedi.................................................................................................................................................................16

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S v Fourie 2001 (C) Facts: Accused, regional court magistrate, charged with having contravened the speed limit one morning when he was late for work. Circumstances causing him to leave late were beyond his control. Pleaded not guilty & refused to pay fine. Did not deny he had exceeded speed limit but argued he should not be convicted as his act was not unlawful. Contended his act was not unlawful, not because the act was justified by one of recognised grounds of justification, but because according to him it was not in conflict with legal convictions of the community. He stated it is in the interests of the community that he should be in court. Relief on general defence of absence of unlawfulness. Claimed his conduct meets all elements for crime but it should be regarded as lawful as, in striving to arrive at court on time, he had driven his car with exclusive aim of furthering interests of the administration of justice. When he exceeded the speed limit, he did not aim at advancing his own personal interests, but those of State & administration of justice. Magistrate: accepted the defence Legal Question: Was Accused’s (respondent’s) conduct unlawful in accordance with the legal convictions of the community? Ratio Decidendi: Court held: first point of departure – determine if conduct is prohibited by the law on pain of conviction & punishment Court held: if conduct falls within definition of the prohibited conduct – it must still be shown that the act was not justified – only then will it unlawful Court held: there are number of recognised grounds of justification – but the list is not numerous clausus Court held: where conduct does not fall within recognised ground – boni mores criterion used as legal standard for determining the unlawfulness of the act Court held: determination of unlawfulness of particular act depends on value judgment as to what is reasonable in the circumstances based on considerations of morality & policy Court held: Road Traffic Act aimed to ensure the safety of those who utilise the roads – legislature regarded this interest so important that Act decreed that not even State would be exempt from the operation of the provisions Court held: conduct of Accused not proportionate – could have taken other measures to avoid the transgression Court Order: Guilty Notes: Where prohibited conduct does not fall within any recognised ground of justification, the boni mores criterion is used as the legal standard for determining the unlawfulness of the conduct – and the criterion requires a value judgment on what is reasonable in the circumstances based on policy & morality considerations

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R v Patel 1959 (A) Facts: Appellant’s (appealing from conviction of culpable homicide) brother had been struck by deceased on the back with a hammer &, as he was in a crouching position, the next hammer blow might have landed on his head. Appellant had in this crucial situation, used the only weapon to hand, his revolver. He had fired at the deceased & killed him. Legal Question: Did the conduct of the appellant exceed the limits of private defence? Ratio Decidendi: Court held: person has right to use force in defence of another from a threatened danger as he would have to defend himself, if he were the threatened person Court held: must not be an arm-chair critic – must take into account the exigencies of the occasion Court held: no one can be expected to take flight to avoid an attack if flight does not afford him a safe way of escape Court held: Accused entitled to an acquittal if there is reasonable possibility that he acted in self-defence Court held: appellant was suddenly confronted by an emergency not of his own creating, he had to act quickly, delay on his part might have proved fatal to his brother Court held: Crown did not prove beyond reasonable doubt that Accused exceeded bounds of justifiable homicide Court Order: Did not exceed the limits of private defence Notes: Private defence may be used to defend another – can act in private defence of another’s life

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Ex Parte die Minister van Justisie: in re S v Van Wyk Facts: Shopkeeper, Van Wyk, who shop was broken into repeatedly, took certain precautionary measures but without success. Van Wyk, in desperation & with the knowledge of police, rigged up a shotgun in such a way that person breaking in would trigger it off if he were to enter by a certain window or to go behind the counter to take goods. Expectation was that the shot would hit an intruder in the leg. Notice was placed on shop door warning intending shop-breakers about the rigged shotgun. One night, somebody broke in, set off the contrivance, & received a fatal wound. On a charge of murder, the shopkeeper invoked private defence & was discharged on that ground. Minister of Justice put questions to appellate division Legal Question: Can somebody rely on private defence if he kills another in protection of his property? Secondly, assuming answer to the first question is positive, had the limits of private defence been exceeded in the circumstances of the particular case? Ratio Decidendi: Court held: homicide committed in defence of property is permissible where circumstances are such that there is danger to defender’s body or life. Court held: where there is danger to person when they are defending against thief/arsonist, homicide committed in private defence will be permissible, but in this case the defence of property is purely incidental (not purely a defence of property) Court held: violence which would not endanger the life of attacker who is fleeing with property, even if no danger to body/life of defender, would be permissible Court held: as regards private defence in general, the threatened & the infringer’s interest are in most cases not equal in kind or value – commensurate retribution is not applicable for the purposes of private defence Court held: where person acts outside the legal order & flirts with death by infringing someone else’s right – why should the defender, who undoubtedly has right to defend his own rights, be branded as lawbreaker if he would rather kill than sacrifice his rights? Court held: allowing perpetrators to know that as long as they flee the scene as quickly as possible, any violence against them would be punished, would not deter the determined violator of another’s right from committing the wrongful act Court held: if knows he can get property back without violence, or property of negligible value, other less harmful methods available – not justified Court held: Van Wyk had already used other methods to try protect his property, he did not set up the shotgun in a way that it would hit an innocent person, nor did he set it up so that it was aimed to be lethal Court held: could not be proven Van Wyk exceeded limitations of private defence Court held: whether limits are exceeded or not very much depends on the circumstances Court Order: Answers to legal questions: 1) It is permissible to kill or injure someone in private defence in protection of property 2) State did not prove in the present case that the limits of private defence were exceeded Notes: Permissible to kill in private defence or property, depending on circumstances

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S v Mogohlwane 1982 (T) Facts: Deceased tried to take paper bag containing clothes, a pair of shoes, & some food from Accused. Accused resisted but deceased threatened him with an axe & gained possession of the bag. Accused immediately ran to his house some 350 metres away, fetched a table knife, returned to deceased & tried to regain his property. When deceased threatened Accused again with the axe, Accused stabbed him fatally with the knife, in order to prevent him absconding with his bag. Deceased died later as a result of the stab wound. Accused charged with murder Legal Question: Had the accused acted in private defence? Was the attack still ongoing? Ratio Decidendi: Court held: Accused did not have much in way of material goods, & property in question was indeed valuable to him Court held: initial robbery & violence/threatened violence was completed when Accused left for his home with the purpose of getting help (deceased by then was already in physical possession & control of the bag) Court held: accepted that a point is reached when robber & thief can no longer be physically attacked by victim as he wishes in order to regain stolen property – question is when is that point? Court held: cannot be reasonably expected for Accused to just accept with resignation that deceased’s overwhelming conduct totally stifled Accused’s resistance Court held: in both Accused’s mind & reality, there was no definite interruption in the action committed in private defence – process of private defence necessitated a visit to the house Court held: deceased was still at the scene of the crime, rummaging through the bag – theftuous intention continued & his overbearing attitude towards Accused did not change proven by the fact he had not left – he was still in the process of committing theft when Accused arrived & grabbed the bag Court held: entire encounter took place within a very short period of time Court held: criminal & civil process would not have offered Accused any redress, even if it is assumed such action was within his means Court held: State did not prove that Accused’s return to the scene was so far removed from the deceased’s theftuous conduct in time, space, & causal relationship that it could not be described as an instanter conduct Court held: State did not prove there could reasonably have been a less dangerous & effective means that Accused could have used to defend himself against the robbery Court held: Accused first tried to grab the bag again, & his small knife compared to the axe was not excessive Court Order: Accused acquitted – acted in private-defence Notes:

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Grigor v S 2012 (SCA) Facts: Appealing conviction of attempted murder & sentence of 6 years imprisonment. Road rage incident between appellant & complainant. Before the incident, complainant had just made u-turn in drive-way & then entered the road when, apparently, he noticed the vehicle driven by appellant “flying up” behind him in same direction. It overtook him, but whilst so driving, there was an exchange of gestures between them, consistent with both their perceptions that each had driven in an unacceptable manner. They eventually stopped – confrontation – fight ensued between them during which appellant inflicted several stab wounds on complainant with knife. Appellant was not only armed with a knife but also a fire-arm that he did not use. Complainant was unarmed. J88 – multiple stab wounds, sutured, surgery. Two doctors who treated the wounds both stated that several of the injuries were so serious the complainant could have died from bleeding if he had not received medical intervention. Appellant contended that he stabbed complainant in self defence – to succeed he would need to first show that defensive act was necessary in order to protect himself & that there was reasonable relationship between attack & defensive act. Appellant claimed complainant was the aggressor & continued advancing towards him even when he showed him the knife & also after he had stabbed him the first time & also after he inflicted the several other stab wounds. Complainant blamed appellant as the main aggressor & denied he continued to be aggressive & attack appellant during the fight. Legal Question: Had the limits of private defence been exceeded? Ratio Decidendi: Court held: improbable complainant would continue to advance & attack man armed with a knife when he himself had none Court held: medical evidence described the wounds as very severe & sustained through severe force Court held: medical evidence alone shows that appellant applied force that was far beyond what was necessary to avert any form of attack by complainant Court held: Snyman says the requirement that there be a relationship between attack & defensive act is in practice a matter of fact rather than of law Court held: use of the knife in retaliation & manner in which it was used was disproportionate Court held: there was no imminent threat to appellant’s life to justify the use of such force Court held: appellant exceeded the bounds of self-defence Court held: several other harmless means could have been adopted to avoid a physical confrontation Court Order: Appeal dismissed Notes: Possible Accused used private defence instead of provocation due to Eadie decision

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DPP v Pistorius 2018 (SCA) Facts: Respondent had shot his girlfriend with heavy-calibre pistol through wooden door of toilet in his home, alleging he thought there was an intruder in toilet. Respondent’s conviction of culpable homicide had been set aside on appeal to HC & matter remitted back HC for sentence on basis that respondent was convicted of murder with dolus eventualis which would need to be changed. HC found there were substantial & compelling circumstances justifying sentence less than statutory minimum of 15 years’ imprisonment that would otherwise have been imposed. State appealed against sentence. Legal Question: What factors might affect the reasonableness of Accused’s prohibited conduct? Ratio Decidendi: Court held: respondent did not fire a warning shot, as he thought that if the bullet ricocheted it might harm him – respondent was well trained in the use of firearms Court held: aggravating factors: a) Accused used lethal, high-calibre firearm & ammunition; b) He fired 4 shots into toilet door knowing full well that there was someone behind the door; c) Toilet was a small cubicle & there was no room for escape for person behind the door; d) Accused had been trained in use & handling of firearms; e) He did not fire a warning shot Court held: respondent was not “genuinely remorseful” as HC claimed, & had not offered an explanation nor taken the court fully into his confidence Court held: it is clear respondent is unable to appreciate the gravity of the crime he has committed Court held: HC’s sentence was shockingly lenient, to a point where it had the effect of trivialising this serious offence Court Order: HC sentence of 6 years set aside and respondent, who had already served 12 months of imprisonment & 7 months of correctional supervision, sentenced to imprisonment for 13 years & 5 months Notes:

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S v Pistorius 2014 (GP) Facts: Accused shot the deceased through a bathroom door, firing 4 shots with his pistols. Accused alleges he thought an intruder had climbed in through the window. Legal Question: Did Accused have the requisite intention? If so, was there any premeditation? Had Accused validly acted in private defence? Was his conduct/defence reasonable? Ratio Decidendi: Putative private defence – Accused submitted that he intentionally discharged the shots in the belief that intruder(s) were coming out of the toilet to attack him & deceased. Raised defence of putative private defence – alleged he had intention to shoot at person in the toilet but that he never intended to kill that person. Court held: if Accused never intended to shoot anyone, he cannot rely on defence of putative self-defence Court held: private defence – judged objectively – excludes unlawfulness Court held: putative private defence – judged subjectively – relates to the mental health of Accused (culpability) – if Accused honestly believes his life/property is in danger but objectively they are not, the defensive steps he takes cannot be private defence – however the erroneous belief may well (depending on the circumstances) exclude dolus Court held: Accused acted unlawfully when he fired shots through the toilet door – there was no intruder Court held: Accused’s erroneous belief that his life was in danger excludes dolus Court held: where person has disability, put yourself in shoes of person with that disability – was the conduct reasonable for that person with that disability? Court Order:

Notes: Putative private defence may exclude intention Applied wrong test in respective of private defence at element of unlawfulness – compared Accused’s conduct with that of reasonable person In private defence test – was the conduct reasonable? (No comparison like reasonable person test)

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Steyn case (Article) Facts: Appellant shot & killed her ex-husband, a man who had allegedly subjected her to years of mental & physical abuse. She admitted killing the deceased but claimed she acted in self-defence. Her evidence was that deceased had been drinking & was in a bad mood, factors which tended to make him more violent. At one point he quarrelled with appellant, swearing at & assaulting her. She escaped & locked herself in her bedroom, after which deceased ordered her to stay in her room & said she would get nothing to eat that night. However, she needed to eat in order to take certain prescribed medication, so after a while she armed herself with her firearm (with which she had trained but was not overly proficient) & headed for the kitchen to fetch food. On the way, she saw deceased eating in braai area using a steak knife. When he saw her, he rushed at her with the knife, shouting that he would kill her. Appellant responded by shooting him once in chest & then fleeing back to her bedroom. She locked herself in & summoned help. Deceased was later found dead in the kitchen & appellant was charged with murder. Court a quo found she had acted unreasonably in placing herself in a position of danger where she might be required to defend herself with her firearm. It held she could have avoided the...