THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT

Case No:  105/09

In the matter between:

ANN ELIZABETH STEYN                                                                 APPELLANT

v

THE STATE                                                                                    RESPONDENT

Neutral citation:
Steyn v The State (105/2009) [2009] ZASCA 152
(27 November 2009).
Coram:

Mthiyane JA, Leach et Wallis AJJA
Heard:

17 November 2009
Delivered:

27 November 2009

Summary:
Criminal law – private defence – appellant shooting deceased who was
about to assault her with a knife – shooting not unlawful.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: High Court, Port Elizabeth (Nepgen J sitting as court of first
instance).

The following order is made:

The appeal succeeds and the appellant’s conviction and sentence are set aside.

________________________________________________________________

JUDGMENT
________________________________________________________________

LEACH AJA (MTHIYANE JA and WALLIS AJA CONCURRING):

[1] On the evening of 9 February 2007, the appellant shot and killed her
former husband, a man who for years had abused her, both mentally and
physically, and who had assaulted her earlier that evening. Pursuant to this
incident, the appellant was charged with murder in the High Court, Port
Elizabeth. Her plea that she had acted lawfully in self-defence was rejected and
she was convicted of culpable homicide. In the light of the weighty mitigating
circumstances which were present, the appellant was sentenced to three years
imprisonment, wholly suspended on certain conditions. With leave of the court a
quo, she appeals now to this court solely against her conviction.

[2] The appellant, who was 53 years of age at the time of the fatal incident,
had married the deceased in 1971, shortly after she had matriculated from the
Assumption Convent in Grahamstown. After her marriage, she and the deceased
lived in various towns in the Eastern Cape before they moved to Port Elizabeth in
1985 and took up residence at 6 Breda Street in the suburb of Vikingvale, the

scene of the fatal incident. By then, their relationship had substantially
deteriorated. The deceased, who was employed on the railways, worked long
hours and was often impatient with the children when he came home. This led to
great tension in the home, as did the fact that the deceased was extremely
jealous of the appellant and often accused her of forming relationships with other
men. But more significantly, the deceased drank heavily and continuously
abused the appellant, both mentally and physically. He often told her that he
would slit her throat with a smile on his face. He also regularly locked her in her
bedroom, at times for extended periods. So often did this occur that she took to
keeping food in her room to sustain her should she be imprisoned in this way. On
one occasion she was locked in her bedroom for an entire weekend.

[3] Eventually the appellant felt she could take no more and, in August 2002,
she divorced the deceased. After the divorce, the appellant was admitted to the
Lamprecht Clinic in George where she was treated for depression. Although the
appellant and the deceased were the joint owners of the former matrimonial
home, and it had been their intention to convert a section of the house into a
‘granny flat’ in which she would reside, the appellant was advised by a
psychiatrist not to return to the house. Consequently, after returning from George
she took up residence in a flat for which the deceased undertook to pay the rent.

[4] Unfortunately, financial restraints forced the appellant to give up this
arrangement and after two months she moved back to the former matrimonial
home where, although she no longer shared a bedroom with the deceased, her
life with him returned to what it had been before. The deceased continued to
abuse her mentally and physically and she did all the domestic duties expected
of a housewife. She often fled to her bedroom, which became both her sanctuary
and her prison. At times she locked herself in to prevent the deceased from
assaulting her while, on other occasions, the deceased ordered her to her room
or himself locked her in.

[5] The appellant was not in good health. She had required surgery to her
back after sustaining an injury but had continued to experience back and body
pain for which she took anti-inflammatory medication.  She had also undergone a
resection of her colon which resulted in her being obliged to eat small amounts of
food regularly throughout the day. In addition, not only did she require medication
for an ulcer which had to be taken after food but she was also on medication for
high blood pressure and cholesterol.

[6] During the period December 2006 to January 2007 the deceased took
leave, and spent a great deal of his spare time drinking with his friends. This
resulted in the appellant becoming wracked with anxiety caused by her not
knowing when, in what condition or in what mood he would return home.
Although her doctor prescribed anti-anxiety medication for her, she felt it would
be best to escape from her domestic situation and to obtain professional
treatment. She therefore contacted her medical aid fund and ascertained that it
would be prepared to pay for another course of treatment for her at the
Lamprecht Clinic in George.

[7] I turn now to the events of Friday 9 February 2007. During the course of
the day, the deceased telephoned the appellant and told her to take meat out of
the freezer for him to braai that evening. She did so, and also prepared potatoes
to accompany the meal. The deceased arrived home after dark. He had clearly
been drinking and was not in a good mood. He went to light a fire on which to
cook the meat. Adjacent to the kitchen and the garage of the house was an
enclosed outside area, paved and roofed and referred to in evidence as being
the ‘braai room’.  On an external wall there was a fireplace for the making of
braaivleis fires and the cooking of meat. The floor level was lower than that in the
house, with access being gained through a door leading from the kitchen down
two steps to the lower level. The braai room was furnished with a wooden picnic
table and benches, and padded benches against two walls.

[8] The appellant poured the deceased a drink, took it to him and then seated
herself on one of the padded benches. She eventually plucked up sufficient
courage to tell the deceased that she had contacted her medical aid to ascertain
if it would pay for treatment for her anxiety at the clinic in George. On hearing
this, the deceased erupted. He verbally abused her in foul and offensive terms,
telling her that she had been born mad and would die mad. He then jumped up
from where he was sitting, grabbed her by the throat and began to hit her. When
the appellant’s pet German Shepherd dog jumped up, it drew the deceased’s
attention away from the appellant, and he released her in order to chase it out of
the room. She seized the moment to make her escape, and ran to her bedroom
where she locked herself in. The deceased shouted after her that she was to stay
in her room and that she would get nothing to eat that night.

[9] At some stage thereafter, the appellant prepared for bed and dressed
herself in a nightie. But she urgently needed to take her prescribed medication
and needed to have something to eat before doing so. Unfortunately she did not
have any food in her room that night and, in desperation, decided for the first
time to ignore an instruction from the deceased to remain in her room and go and
fetch one of the cooked potatoes she had earlier left in the kitchen. Scared and
upset as a result of the earlier assault, she armed herself with her .38 revolver
which she hoped would dissuade the deceased from attacking her again.

[10] Having armed herself in this way, the appellant unlocked her bedroom
door and set off down the passage, heading for the kitchen. When she reached
the open door leading into the braai room, she saw the deceased seated at the
picnic table eating his supper. He had the pot of potatoes on the table alongside
him. She hesitated and the deceased then looked up. On seeing her standing in
the doorway at the top of the stairs leading into the room, his reaction was both
immediate and violent. He screamed that he had told her to stay in her room and
that he had already told her that she would get nothing to eat. Holding the steak
knife that he had been using, he jumped to his feet and rushed at her, shouting

that he was going to kill her, a threat which appeared to be deadly serious.
Fearing for her life, she instinctively raised her revolver and fired a single shot at
the deceased before turning and fleeing back to her room where she locked
herself in. She then telephoned a friend of hers, a policewoman, who rushed to
the house to assist her. It was then ascertained that the deceased had been
fatally injured, the bullet having passed through his hand (which had presumably
been held up in front of him) before entering the body through the right upper
anterior chest wall some 9,5 cm below the right clavicle, passing through the right
lung and exiting the right chest posteriorly about 15 cm above the sacral bone.
The bullet caused a right-sided haemothorax and the collapse of the right lung.
From the position where he had been shot in the braai room, the deceased
managed to get into the kitchen before he collapsed and died from loss of blood.

[11] This version of events was given by the appellant when she testified. The
trial court found her to be a wholly satisfactory witness who there was no reason
to disbelieve. It therefore concluded that her version could reasonably possibly
be true and that her guilt or otherwise had to be determined on her own version.

[12] The court a quo recorded in its judgment that counsel for the state had
conceded at the trial that the appellant’s version could reasonably possibly be
true. However, in this court the state argued that there had been a
misunderstanding in that respect and, although it conceded that most of the
appellant’s evidence could reasonably possibly be true, it argued that her
description of how she had shot the deceased could not be accepted. This
argument was largely based on the presence of blood on the floor alongside the
bench on which the deceased had been sitting at the table facing the door from
which the fatal shot was fired, and the opinion of a police forensic scientist,
Superintendent Kock, who concluded that such blood had come from the wound
to the deceased’s left hand and that the deceased must therefore have still been
behind the table at the time he was shot. On the strength of this, the state argued
that the deceased could not have moved out from behind the table and been

rushing at the appellant when the fatal shot was fired; that the appellant’s version
of the shooting could thus not be accepted; that the court quo had consequently
erred in doing so; and that the appellant must have shot the deceased at a time
when he was no threat to her.

[13] This argument cannot be accepted. The value of an expert's opinion is
largely dependent upon the reliability of the proven facts upon which it is based.
In the present case, the precise movements of the deceased and the appellant
and the position in which they were in relation to each other as the material
events unfolded, are incapable of being accurately determined. The opinion
relating to the source of the relatively small quantity of blood found on the floor
alongside the table where the deceased had been seated is, in my view, largely
speculative, as is the opinion that it must have fallen to the ground at the instant
the deceased was shot in the hand. It must be remembered that the deceased
clearly moved about the room after he had been fatally injured, as is borne out by
the fact that he ultimately collapsed in another section of the house, and the
blood alongside the table which formed such an important foundation of Kock’s
opinion could well have come to be deposited there at any stage.

[14] It is unnecessary to subject the evidence on this aspect and Kock’s
opinion to much greater scrutiny. What we do know is that the fatal bullet passed
right through the body of the deceased before exiting at his back. If the deceased
was still seated or was even rising to his feet at the time he was shot, one would
have expected there to have been blood behind the table or on the seat where
he had been sitting. But there was none there, a fact which leads to the logical
inference that the deceased was probably not behind the table when he was
shot. The absence of blood behind the table is certainly consistent with the
appellant's version of the incident, and the presence of blood on the floor
alongside the table, which could been a result of his having been shot while he
moved towards the appellant, is no reason to reject her evidence as not being
reasonably possibly true.

[15] Importantly, the trial court formed a good impression of the appellant and
found her to have been a reliable witness. For the reasons already given, the
position of the blood on the floor is no reason to conclude that her description of
the shooting is unacceptable. She was the sole eye-witness to the incident and
there is no reason for this court to conclude that the trial court erred in deciding
the question of her guilt by having regard to her evidence of the events in
question as described above.

[16] I therefore turn to consider whether the court quo was correct in
concluding that, on her own evidence, the appellant had acted unlawfully. In
denying her guilt, the appellant relied on a plea of so-called ‘private defence’
(commonly referred to in circumstances such as the present as ‘self-defence‘)
which goes to negative unlawfulness and recognises that persons may lawfully
use such force as may be necessary to repel unlawful attacks upon them which
have either commenced or are imminent and which threaten their lives or bodily
integrity.1

[17] The court a quo held that when she left her bedroom in order to fetch a
potato from the kitchen, a reasonable person in the appellant's position would
have foreseen the possibility that the deceased, in the condition and mood he
was in, might attempt to attack her. It held that a reasonable person would
therefore not have proceeded to place herself in a position of danger where she
might be forced to use her pistol to defend herself. Accordingly it concluded that
the appellant had acted unreasonably and that the fatal incident could have been
avoided if she had telephoned for help and waited for assistance before she left
her room. The reasoning of the court was therefore that the appellant had acted
negligently and was guilty of culpable homicide.

[18] Counsel for the appellant argued that the court a quo had misdirected
itself in this regard by confusing the question of unlawfulness with the test of

1 See C R Snyman Criminal Law 5 ed at 103-107.

negligence or culpa, and submitted that the issue of whether the appellant was
guilty of negligence or culpa would only arise once it had first decided that her
conduct was unlawful. This argument is not without substance. It is indeed so
that when an accused raises a plea of private defence, the court’s initial inquiry is
to determine the lawfulness or otherwise of the accused’s conduct and that, if
found to be lawful, an acquittal should follow.2 At the same time, however, it is
clear from its judgment that the court a quo specifically turned its attention to the
question of the lawfulness of the appellant’s conduct and, in considering that
issue, the courts often do measure the conduct of the alleged offender against
that of a reasonable person on the basis that reasonable conduct is usually
acceptable in the eyes of society and, consequently, lawful.3 In the light of the
circumstances of the present case where the facts are known, it is unnecessary
to decide whether the court a quo misdirected itself in the manner suggested as
this court can itself determine the lawfulness of the appellant’s conduct on those
facts.

[19] Every case must be determined in the light of its own particular
circumstances and it is impossible to devise a precise test to determine the
legality or otherwise of the actions of a person who relies upon private defence.
However, there should be a reasonable balance between the attack and the
defensive act as ‘one may not shoot to kill another who attacks you with a
flyswatter’.4 As Prof J Burchell has correctly explained ‘. . . modern legal systems
do not insist upon strict proportionality between the attack and defence, believing
rather that the proper consideration is whether, taking all the factors into account,
the defender acted reasonably in the manner in which he defended himself or his
property’.5 Factors relevant to the decision in this regard include the following
(the list is by no means exhaustive):

2 J Burchell Principles of Criminal Law 3 ed at 243.
3 Snyman op cit at 113-114.
4 Snyman op cit at 109.
5 Burchell op cit at 241.

 the relationship between the parties
  their respective ages, gender and physical strengths
 the location of the incident
  the nature, severity and persistence of the attack
 the nature of any weapon used in the attack
 the nature and severity of any injury or harm likely to be sustained in the
attack
 the means available to avert the attack
  the nature of the means used to offer defence
  the nature and extent of the harm likely to be caused by the defence.6

[20] Counsel for the state submitted that the appellant had not acted
reasonably in warding off the deceased’s attack. First, she argued that the
appellant was a police reservist trained in the use of firearms and conflict
resolution and could therefore either have persuaded the deceased not to attack
her or, at the very least, fired a warning shot to deter him. Secondly, it was
argued that the appellant could have fled to her bedroom and thus avoided being
assaulted without the necessity of shooting at the deceased.

[21] Whether a person is obliged to flee from an unlawful attack rather than
entitled to offer forceful resistance, is a somewhat vexed question.7 But in the
light of the facts in this case, it is unnecessary to consider the issue in any detail.
It could not have been expected of the appellant to gamble with her life by turning
her back on the deceased, who was extremely close to her and about to attack
her with a knife, in the hope that he would not stab her in the back.8 She would
have had to turn around in order to return to her bedroom, by which time the
deceased would have been upon her and flight would have been futile. The
appellant testified that the deceased would probably have caught her before she

6 S v Trainor 2003 (1) SACR 35 (SCA) at [13]; Snyman op cit at 111-112 and Burchell op cit at
241.
7 See eg Snyman op cit at 107-109.
8 In this regard I endorse the view of Snyman op cit at 108.

reached her room, and that appears to be a reasonable assumption. That being
so, the appellant cannot be faulted for offering resistance to the deceased rather
than attempting to flee from him.

[22] Turning to the relevance of the appellant’s training as a police reservist,
her training in respect of both the use of her firearm and conflict management
appears to have been elementary, to say the least. The appellant was no expert
in the use of a firearm. Several years previously she had been given a single
lesson on how to strip and clean a weapon. This was followed by a single
session of firing a pistol on a range. That was the only firearm training she had
ever received, and she was certainly not well versed in the use of a handgun.
Indeed, she had never previously fired the revolver she used to shoot the
deceased. Her conflict resolution training was no more advanced. It consisted of
no more than a debate in which she and a colleague had advanced contrary
standpoints on an issue. This had happened on a single occasion and the
appellant can hardly be considered an expert in conflict management.

[23] Far more important is the fact that the history of the relationship between
the appellant and the deceased was such that she had never been able to resist
him or his unlawful assaults during the many years that she had been the subject
of his abuse. This shows that her training in conflict management had been of no
use to her in her daily life. The appellant must therefore be judged in the light of
the fact that she was a woman who had previously been unable to resist the
deceased’s physical abuse and was both scared of him and thoroughly
dominated by him. On the night in question, she urgently needed to get some
food in order to take the medication she required. She was frightened and in an
emotional state as a result of having been assaulted by the deceased. She was
entitled to leave her bedroom, in her own home, and go to the kitchen to get a
potato. There was nothing unlawful in her action in doing so, and it cannot have
been expected of her to telephone for assistance every time she needed to do
something in her own home. She then came face to face with the deceased and

it was he, and not she, who acted unlawfully by attempting to attack her with a
knife.

[24] In considering the lawfulness of the appellant’s conduct, it is necessary to
keep in mind that she was obliged to act in circumstances of stress in which her
physical integrity and indeed her life itself were under threat. It is necessary in
such circumstances to ‘adopt a robust approach, not seeking to measure with
nice intellectual calipers the precise bounds of legitimate self-defence’.9 Adopting
that approach, the appellant in my view did not act unlawfully. She found herself
in a position of great danger in which her life was under direct threat. There can
be no doubt that in these circumstances she was entitled to use deadly force to
defend herself. Had she not done so, it might well have cost her her life. In these
circumstances her instinctive reaction, as she described it, of shooting at the
deceased, who was seemingly hell-bent on killing her, was reasonable and the
court a quo erred in finding otherwise.

[25] For the above reasons, the appellant’s plea of ‘self-defence’ ought to have
been upheld. The appeal succeeds and the conviction and sentence are set
aside.

_______________
L E LEACH
ACTING JUDGE OF APPEAL

9 Per Holmes JA in S v Ntuli 1975 (1) SA 429 (A) at 437.

APPEARANCES:

COUNSEL FOR APPELLANT:   A Hatting
INSTRUCTED BY:
Roelofse & Roelofse Ing, Port Elizabeth
CORRESPONDENT:
Symington & De Kok, Bloemfontein

COUNSEL FOR RESPONDENT: L Williams
INSTRUCTED BY:
The Deputy Director of Public Prosecutions,
Port Elizabeth
CORRESPONDENT:
The Deputy Director of Public Prosecutions,
Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal

Date:
27 November 2009

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.

A E STEYN v THE STATE

The appellant was tried in the High Court, Port Elizabeth, on a charge of murder
rising out of an incident that occurred on 9 February 2007 when she shot and
killed her former husband who was in the process of attacking her. The trial court
concluded that she had acted negligently and unlawfully in that she had armed
herself with a firearm before placing herself in a position of danger, well
appreciating that the deceased might attack her and, if he did so, she might be
compelled to shoot. The appellant was therefore convicted of culpable homicide.

On an appeal to the Supreme Court of Appeal, it was held that the appellant had
not acted unlawfully on the evening in question and had been entitled to act to
defend herself against the deceased who was armed with a knife and whose
stated intention was to kill her. In the light of the particular circumstances of the
case, the Supreme Court of Appeal found that the appellant could not be faulted
for not having fired a warning shot or for failing to flee to her bedroom. It
concluded that her action in shooting the deceased had not been unlawful and
that she should not have been convicted of culpable homicide.

In the result, the Supreme Court of Appeal upheld the appeal and set aside the
appellant’s conviction and sentence.