140915OPJudgment

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CC113/2013-mvn 3328 JUDGMENT 2014-09-11 - 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 accused’s 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 accused’s iAfrica Transcriptions (Pty) Ltd / hvr
CC113/2013-pc 3329 JUDGMENT 2014-09-11 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 accused’s 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] 10 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, 4 th 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 20 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 iAfrica Transcriptions (Pty) Ltd / hvr
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140915OPJudgment

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