THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  503/09

In the matter between:

MERVYN DE VOS                                                                             APPELLANT

v

THE STATE                                                                                    RESPONDENT

Neutral citation:
De Vos v The State (503/2009) [2010] ZASCA 60
(1 April 2010).

Coram:
Mpati P; Mthiyane, Cachalia JJA, Theron and Saldulker AJJA
Heard:
9 March 2010
Delivered:
1 April 2010

Summary:  Criminal law – self-defence – appellant facing two counts of
attempted murder arising from a shooting incident at a nightclub. Appellant’s
version reasonably possibly true.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:  Northern Cape High Court, Kimberley (Bosielo AJP and
Majiedt J sitting as court of appeal).

The following order is made:

1.
The appeal is upheld.
2.
The order of the court below is set aside and the following order is
substituted in its place:

‘The appeal is upheld and the convictions and sentences are set aside.’

________________________________________________________________

JUDGMENT
________________________________________________________________
CACHALIA JA and SALDULKER AJA (Mpati P, Mthiyane JA, Theron AJA
concurring):

[1] The appellant, Mr Mervyn de Vos, who was 44 years old at the time of the
events discussed below, was convicted on two counts of attempted murder in the
regional court, Kimberley, on 2 October 2006. The two counts were taken
together for the purposes of sentencing and he was sentenced to seven years’
imprisonment. He appealed against his convictions to the Northern Cape High
Court (Bosielo AJP and Majiedt J). The respondent opposed the appeal and
gave notice of its intention to appeal against the leniency of the sentence. The
high court confirmed the convictions and increased the cumulative sentence on

the two counts to ten years’ imprisonment. This appeal, with leave of the high
court, is only against the convictions.

[2] The charges arose from an incident that occurred in the early hours of
Sunday, 17 July 2005, at a night club in Kimberley known as ‘Squeezas’, when
the appellant fired a single shot from his firearm, injuring two people. The shot,
which was fired at a Mr Gavin Sylvester at close range, caused the bullet to
penetrate his left cheek and exit near his right eye. (Sylvester is the complainant
in count 1.) After exiting from Sylvester’s face the bullet penetrated the right leg
of a Mr Samuel Serata. (The complainant in count 2.) Sylvester was employed at
the nightclub at the time to perform security duties. He lost his eye-sight in the
incident. Serata appears to have been a patron at the club. The appellant’s case
is that he fired the shot in self-defence – to ward off an attack by Sylvester.

[3] The state led the evidence of Sylvester and two of his colleagues Mr John
Masuku and Mr Isa Isak, who were also employed to perform security-related
functions at the club. They were colloquially known as ‘bouncers’. Their job was
to remove people who they considered to be trouble-makers from the club –
forcefully if necessary. It was their use of force in removing the appellant from the
club which precipitated the chain of events that culminated in the shooting.
Constable Malete was on duty on the night of the incident. He saw the appellant
twice that evening. The first was shortly after the bouncers had forcefully
removed the appellant from the club and he arrived at the police station to
complain about his treatment by them. The second was some two hours later
when the appellant returned to the police station after having fired the shot which
injured the complainants. Constable Alexander corroborated his colleague’s
testimony regarding the events related to the appellant’s second visit to the
police station.

[4] The appellant testified in his defence. He called two witnesses to support
his case. Mr Titus Bloem, a friend, testified regarding the circumstances of their

removal from the club. The second witness, Mr Andre Smit, the appellant’s
niece’s nephew, was at the club when the shooting incident occurred, although
he did not see what happened.

[5] By the time the matter was argued before us much of the evidence had
become common cause or was no longer disputed. The essential dispute turned
on whether the appellant had fired the shot during a life-threatening assault on
him by Sylvester and Masuku.

[6] The essential facts are these. The appellant arrived at the club with his
niece’s two sons at about 11 pm. They entered and the two young men went
their own way. The appellant then met Bloem. After a while the appellant and
Bloem were forcefully removed by Masuku and Isak, apparently because the
bouncers thought that the two men had been fighting with each other. They
denied that they had been fighting. Be that as it may, the appellant felt very
aggrieved and humiliated by the manner in which he was taken out of the club.

[7] He then drove to the police station a short distance from the club to report
the incident. There were two police officers on duty, Constables Malete and
Alexander. The appellant wanted the police to return to the club with him. But,
according to Malete, he was rude and aggressive. Malete could not calm him
down. During the course of their exchange the appellant said that he was going
to return to his home to fetch his gun so that he could return to the club to shoot
the people who had assaulted him. After he had left the police station Malete
made an entry in his occurrence book and in his pocket book. He also alerted the
police on patrol duty to be on the look-out. The appellant denied that he had
threatened to get his gun to shoot his assailants at the club but, we think, the
learned magistrate and the trial court correctly disbelieved his evidence on this
aspect. It is significant, however, that Malete confirmed a crucial part of the
appellant’s version – that he had no visible injuries at the time. The significance
of this evidence will become clear later.

[8] The appellant returned to the club a few hours later, to collect his niece’s
two nephews who he had left there earlier. It was some time after 2 am. The
state disputed Smit’s evidence that he was at the club that night but was unable
to gainsay it. And for present purposes we must accept his testimony that he
was.

[9] The appellant testified that when he arrived on the scene he did not see
the boys outside the club. So he looked through the doorway to see whether they
were inside, but could not see them. He then saw Masuku and Sylvester.
Masuku, he testified, pulled him into the entrance and Sylvester hit him over the
head with a baseball bat. He staggered backwards – then Masuku swung a
baseball bat he was holding and struck him on his left jaw. The appellant said he
became confused and recalled falling to the ground. He pulled himself up next to
his car, which he had parked in front of the club and tried to support himself by
placing his hands on the car. He noticed that his keys had fallen out of his pocket
during the fracas. He recalled trying to support his injured jaw with his left hand
while this was happening. He then stepped forward towards the club to retrieve
his keys. And as he did so he saw Sylvester move towards him wielding a
baseball bat. He heard him utter expletives to the effect that he was going to kill
him. As Sylvester moved towards him and at a distance about 2 meters from him,
the appellant reached for his gun and fired a shot at him.

[10] The state’s case was that after the appellant had been taken out of the
club he armed himself with his firearm, and returned later, intent on exacting
revenge for the way he had been treated earlier. And unprovoked, he fired a shot
at Sylvester. Although the state did not contest that the appellant had also
sustained injuries during the course of the evening, its case was that he was not
injured at the time of the shooting and also that there had not been any fight
between the state witness and the appellant during the shooting.

[11] After firing the shot, which struck both complainants, the appellant got into
his car, reached for his spare keys, which happened to be in the vehicle, and
drove to the police station. It is of some significance that when he entered the
police station this time Malete noticed that he had blood on his hands and that
his jaw was swollen.

[12] Some time later that morning the appellant was taken to the district
surgeon, who recorded that the appellant’s left forearm was tender and bruised,
that his left jaw had been fractured and was very tender. He was wounded on the
head but did not need stitches. There was also bleeding in the mouth. The
appellant spent eight days in hospital recovering mainly from the injury to his
jawbone, which necessitated the insertion of metal screws and plates during
surgery. He had clearly been badly injured.

[13] Neither the learned magistrate nor the high court accorded any weight to
the circumstances under which the appellant sustained these injuries. Instead
they placed their emphasis on Malete’s evidence regarding the appellant’s threat
to arm himself so that he could exact revenge on those who had assaulted him
earlier. And from this emphasis, the rest followed. They implicitly accepted the
evidence of the state witness that they had not used any violence when the
appellant arrived at the club on the second occasion, least of all with baseball
bats. On the evidence of the state witnesses baseball bats were not kept on the
club premises. I should mention that Bloem, during his testimony, was asked by
counsel for the state whether he had ever seen baseball bats on the premises –
his reply was that he had not seen any on that night but that he had, on previous
visits to the club, seen a ‘kierie’. His description of the ‘kierie’ resembled that of a
baseball bat, which places the state’s version that no baseball bats were kept on
the premises in doubt.

[14] Counsel for the state had considerable difficulty explaining how the
appellant had sustained his injuries. He submitted that the appellant was injured

at the time that he was first removed from the club. That submission is fanciful
and improbable for two reasons. First, Malete would have noticed these injuries
when he saw the appellant at the police station on the first occasion. Malete’s
evidence that he noticed the injuries only on the second occasion is consistent
with the appellant’s version that he had sustained the injuries at the time of the
shooting.  Secondly, with a fractured jaw, it is difficult to accept that the appellant
would have returned to the club in this condition to exact revenge two hours later.

[15] The other evidence that the state had difficulty with was a statement that
Isak had made to the police shortly after the incident, which contradicted his oral
testimony that they had not been involved in an altercation with the appellant at
the time of the shooting. In it he says clearly that when the appellant arrived on
the scene for the second time they had a fight. But during his oral testimony he
was not able to explain why he had said this in his statement. This lends further
support to the appellant’s version that he was assaulted just before shooting
Sylvester. Moreover, one must ask why he would return to shoot Sylvester when,
on the state’s version, Masuku and Isak – not Sylvester – had treated him badly
earlier on.

[16] We accept that the appellant had armed himself before returning to the
club. But his evidence that he had returned to collect his niece’s sons – not to
exact revenge – cannot be rejected – particularly in light of the fact of Smit’s
evidence that he was in the club at the time. Of course it is clear that the fact that
he returned to the club with his firearm meant that he expected trouble. And it
was probably irresponsible and even reckless for him to have gone back after
what had happened earlier. However, once it is accepted that the appellant could
only have sustained the injuries at the time he came back to the club, as we
believe we have to, it follows that his version that he acted in self defence when
he discharged a shot from his firearm cannot be rejected as false.

[17] We should add that both the learned magistrate and the high court found
the appellant, on his own version, to have at least exceeded the bounds of self
defence by retaliating when he could have left. But this conclusion could only be
reached by rejecting his version that Sylvester had attacked him with a baseball
bat. And we do not think we can. Indeed counsel for the state properly conceded
that if we accept that the appellant was injured immediately before the shooting,
as he testified he had, the only conclusion is that the appellant’s version that he
had fired in self-defence was reasonably possibly true.

[18] For these reasons the appeal must succeed. The following order is made:

1.
The appeal is upheld.
2.
The order of the court below is set aside and the following order is
substituted in its place:

‘The appeal is upheld and the convictions and sentences are set aside.’

______________
A CACHALIA
JUDGE OF APPEAL

_______________
H SALDULKER
ACTING JUDGE OF APPEAL

APPEARANCES:

APPELLANT:

J Nel
Instructed by Honey Attorneys, Bloemfontein

RESPONDENT:

T Barnard
Instructed by Director of Public Prosecutions,
Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL
From:  The Registrar, Supreme Court of Appeal
Date:  1 APRIL 2010
Status: Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

SIBUSISO KHOZA & OTHERS v THE STATE

The Supreme Court of Appeal (SCA) today dismissed the appellants’ appeal against
their convictions and sentences imposed by the North Gauteng High Court, Pretoria.
Two cash-in-transit heists occurred. The first one took place on 11 November 2002
at Mooinooi, in the district of Brits. The second one occurred near Phokeng,
Rustenburg on 18 November 2002. The appellants were arrested approximately
three hours after the second robbery, at a village about seven kilometres from the
scene. They were found in possession of firearms, ammunition and cash.

The appellants were charged on 20 counts in connection with these incidents. At the
end of the trial, the trial judge found the appellants to be unsatisfactory witnesses
and rejected their alibi defences. He also rejected their version that the police had
caught the actual robbers, but released them to appropriate the stolen money for
themselves and then arrested and framed them by planting some of the money and
weapons on them, on the basis that it was so improbable and beyond belief that it
could not reasonably be true when seen in the light of the totality of the evidence.
They were acquitted on the Mooinooi charges. In regard to the Phokeng incident, the
judge convicted them of robbery with aggravating circumstances, unlawful

possession of machine guns and ammunition as well as malicious injury to property.
The first appellant who had been convicted on two charges was sentenced to 26
years’ and the other appellants to 35 years’ imprisonment respectively. The trial
judge also dismissed an application to note special entries on the record in terms of
s 317 of the Criminal Procedure Act.

The SCA had to consider an application for leave to appeal against the refusal by
the trial judge to enter these special entries as well as the appeal against convictions
and sentences imposed.

Regarding the special entry, the SCA held that a finding that a trial was rendered
unfair by the presence of an irregularity was not enough to vitiate the proceedings
unless the irregularity was such as to have that effect or there had been a failure of
justice in that the evidence unaffected by the irregularity was insufficient to prove the
guilt beyond a reasonable doubt. The court went on to say that even if the trial judge
had not interrupted counsel or his cross-examination in any respect, and that the
witnesses had been left to their own devices rather than assisted by leading
questions, the outcome of the trial would have been the same, ie, a finding of guilt
beyond a reasonable doubt.

In regard to the appeal against conviction based on the merits, this court held that no
valid criticism could be levelled against the evidence of the state witnesses and that
the trial court did not commit any misdirection when it accepted their evidence. It
found the appellants’ alibi defences to be flawed and highly improbable. This court
accordingly dismissed the appeal on the merits. In so far as the appeal against
sentence is concerned, the court found no misdirection by the trial court. It found the
sentences to be commensurate with the seriousness of the offences, the
circumstances of the appellants as well as the interests of society and therefore
concluded that there was no basis to interfere. Finally, the court expressed its
disapproval at the legal representatives of the appellants for failing to comply with
the rules of court relating to the filing of heads of argument. In the result, it issued an
appropriate costs order against them.

In the result the SCA dismissed the appeal against convictions and sentences.

---ends---