IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: A339/2010

DATE: 12 NOVEMBER 2010

In the matter between:

and

DAVIS. J:

It appears that he moved to the dwelling of a third party, Ms April, with whom the appellant was having an affair. It is clear that a physical confrontation ensured between Patrick and his father. It is clear that Patrick was extremely upset by his father's infidelity to his mother. Whoever started the particular confrontation, is not necessarily critical to the resolution of the dispute. What did happen, was that Patrick assaulted his father with his bare hands and his father, the appellant, fell on the floor. Patrick left the house of Ms April whom, I should add, was a witness to the confrontation, and returned to the common home.
There he found his mother in the kitchen and she had to tender to his swollen hand, that is the hand which was injured as a result of the assault which he had inflicted upon his father. It appears that she was placing ice on the injured hand, when the appellant arrived. A further confrontation took place in the kitchen. The appellant was armed. A verbal encounter then took place. Shots were fired by the appellant in the direction of both Patrick and Ms Langeveldt, who were both wounded. Patrick fell on the dwelling's stoep. Ms Langeveldt fled to the neighbours.

As a result of his wounds, Patrick was taken to the Tygerberg Hospital where he required an operation. He spent three days in hospital. The wounds that were inflicted were of such a nature that he could count himself fortunate to still be alive. If the bullet had entered at a slightly different projectory, he would not have been alive to tell his story.   Ms Langeveldt, also suffered injuries to her left shoulder, her left cheek and to her right hand and she required attention in hospital for some 10 days. There can be no doubt from the evidence that both the injured parties had been placed in a potentially life threatening situation as a result of the shots.

"The proposition is well established in our law that a person has the necessary intention to kill if he appreciates that the injury which he intends to inflict on another, may cause death, and nevertheless inflicts that injury reckless whether the death will ensue or not. Thus the prosecution is required to prove beyond a reasonable doubt that the appellant subjectively understood that his act may very well cause death or injury, not that he should or ought to have understood it at the time. That question of fact requires adjudication in the same manner as in the case where the Court seeks to draw a conclusion in respect of whether the accused had the requisite intent."

All of this is accepted law. In this case Mr Moller contended that the appellant was under influence of alcohol. Secondly, whatever intent he had, it could not have been to cause the death of either of the two complainants. As to the question of alcohol, the medical evidence is highly unsatisfactory in that the test was taken at a time which does not provide this Court with any definitive guidance as to the state of alcohol which was in the body at the time.

But the court does not have to go so far as to engage in rhetorical devices. The appellant stated his intention. A couple of passages from the evidence will suffice. Under cross-examination he is asked the following"

"U gaan vir u vuurwapen en wat wou u met die vuurwapen maak? — Edelagbare, vuurwapen kan mense seer maak, kan skiet. Dit kan wees dat ek probeer het om ook om horn te dwing om te luister wat ek probeer se. Hier kom hy en hy kom weer om te slaan.

In short, if one examines the evidence of the appellant under cross-examination, he denies that he sought to kill either of the complainants.  But he goes on to say:

"Edelagbare soos wat ek ook vir die Hof alreeds gese het, ek het my vuurwapen - ek was woedend, Edelagbare. Ons kan die ding nog uitsorteer, Edelagbare, met alle respek teenoor die Hof, toe ek by die deur inkom, die seun kom na my toe, die hand word gemasseer of iets aan my aangesmeer."

In short, the magistrate defined the key question as:

"Of die beskuldigde se verhandelinge willekeurig was al dan nie, of sy handeling vrywillig was en/of hy meganies opgetree het en sy handeling dus uitgesluit is."

In my view, therefore, there can be no doubt, even though all that has to be determined is beyond a reasonable doubt that the appellant came to the house of his wife, armed with a weapon, with the intent to cause harm. Harm was caused. The version that he put up was tailored to suggest that he was under attack and, therefore, acted in self-defence, or alternatively that he was so intoxicated that he did not know what he was doing. Both versions were correctly rejected by the magistrate for the reasons that I have already articulated and in my view, there is no justification with interfering with the conviction.

Professor Bezuidenhout also emphasised the trauma which the appellant himself encountered subsequent to the incident in 2006, that he had had various physical illnesses, including an epileptic incident and that he lived with the shame and the regret for some considerable while thereafter.    Furthermore
Professor Bezuidenhout emphasised the very limited rehabilitative advantages of a term of imprisonment, and then said:

The   magistrate   took   account   of   all   the   factors   which traditionally are raised insofar as sentence is concerned, and indeed towards his sentence said this:

It is correct that there are factors in favour of the appellant insofar as his own background is concerned and those were taken into account by the magistrate. They were certainly emphasised by Professor Bezuidenhout. But this was a violent crime. These are two convictions for attempted murder in a society in which violent crime represents a foundational attack on the very constitutional enterprise which this country engaged upon in 1994. It cannot be over emphasised, that courts need to deal with violent crime in the most serious possible way. To the argument that imprisonment never really has a rehabilitative effect, the answer must be well then nobody will ever be sentenced to a term of imprisonment, because the argument will always be raised, and inevitably so, that imprisonment does not work.

I accept readily that there are huge difficulties with regard direct terms of imprisonment, but, in my view, when violence is the core of the offence, one has to look very carefully for compelling justification before an alternative sentence is imposed. In this case, the magistrate took account of these factors and there is no compelling justification to conclude that there was a misdirection of a kind which would justify this Court in interfering in the sentence.

In the result, therefore, I would dismiss the appeal and confirm both the conviction and the sentence.