DISTINCTION BETWEEN PRIVATE DEFENCE AND PUTATIVE PRIVATE DEFENCE

S v PAPU AND OTHERS 2015 (2) SACR 313 (ECB)

General principles of liability — Defences — Private defence — Distinction B between private defence and putative private defence emphasised.
General principles of liability — Defences — Private defence — When applicable — Police officials on remote farm, with battery of artillery with contingency plan to shoot if shot at, could not have entertained reasonable suspicion that quarry was at farm, and shot at deceased who was attempting to ascertain cause of disturbance and who fired shot when they refused to announce themselves — Defence of private defence rejected.
General principles of liability — Defences — Putative private defence — When applicable — Police officials on remote farm with battery of artillery with contingency plan to shoot if shot at, could not have entertained reasonable suspicion that quarry was at farm and shot at deceased who was attempting to ascertain cause of disturbance, fired shot when refused to announce themselves — Could not honestly believe that their lives were in imminent danger and were not entitled to fire into darkness directly at would-be attacker without firing warning shot — Conviction for murder upheld.

The three appellants, all seasoned policemen, set out on a night mission to arrest a suspect at the premises of the deceased whose farmhouse was in a remote area. They were armed with R5 assault rifles. Their presence at the farmhouse was detected by the deceased’s dogs and this alerted the inhabitants, some of whom ventured into the darkness to ascertain what was happening. The deceased called out to the appellants to announce their presence and when they failed to do so he fired a shot. This led to the appellants retaliating and a shot struck and killed the deceased. At their trial on a charge of murder the court held that the state had discharged the onus of proving that the appellants had not acted in either private defence or putative private defence and convicted them of murder. On appeal against their conviction and sentence of direct imprisonment in terms of the provisions of s 276(1)(i) of the CPA,
Held, that that the parties and the court a quo had conflated the two defences and it was apposite to emphasise the disparate nature of the two defences. A person who acted in private defence acted lawfully, provided his conduct satisfied the requirements laid down for such a defence and did not exceed its limits. The test was objective, namely whether a reasonable man in the position of the accused would have acted in the same way. In putative private defence, however, it was not lawfulness that was in issue but culpability, and if an accused honestly believed his life or property to be in danger, but objectively viewed they were not, the defensive steps he took I could not constitute private defence. If in those circumstances he killed someone his conduct was unlawful. His erroneous belief that his life or property was in danger might well exclude dolus, in which case liability for the person’s death based on intention would also be excluded; at worst for him, he could then be convicted of culpable homicide.
Held, further, that it was abundantly clear, as the trial court had correctly found, that none of the appellants could have entertained a reasonable suspicion that their quarry was on the farm. To thus proceed, under cover of darkness, to a remote farm, armed with a battery of artillery, and with a contingency plan foremost in their minds to shoot if they were shot at, was not only unreasonable but also foolhardy in the extreme.
Held, further, that the appellants’ reliance on putative private defence was also correctly found by the trial court to be misplaced. The appellants and, a fortiori, their contingent were all armed with assault rifles. When the deceased fired the first shot, the appellants, by their own admission, took cover behind a trailer before returning fire. The area was enveloped in darkness and they lay prone on the ground and could have retreated from a prone position. They could therefore not honestly have believed that their lives were in imminent danger. Shrouded in darkness and invisible to the perceived threat, they were in comparative safety and it was inconceivable that they could, in those circumstances, have believed they were entitled to fire into the darkness, directly at a would-be attacker, in defence of their lives, without even firing a warning shot. The trial court’s finding that the state had proved beyond a reasonable doubt that the appellants subjectively had the requisite intent, to found a conviction for murder, was undoubtedly correct. The appeal was dismissed.

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