THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 403/09

Bruce-Lee Lutchman Naidoo
Appellant

and

The State                                                                       Respondent

Neutral citation:
Bruce-Lee Naidoo v The State (403/09) [2010] ZASCA 40
(30 March 2010)

Coram:
HEHER, MALAN JJA and SERITI AJA

Heard:

25 February 2010

Delivered:
30 March 2010

Summary:
Criminal law – self –defence – whether appellant acted in
self defence – whether appellant erroneously believed his
life was in danger – putative self defence – sentence of
years’
imprisonment
reduced
to
years’
imprisonment.

______________________________________________________________

ORDER

On appeal from:
North Gauteng High Court Pretoria (Murphy, Molopa
JJ sitting as court of appeal)
(a)
The appeal against conviction is dismissed.
(b)
The appeal against sentence succeeds. The sentence imposed by the
trial court is set aside and for it is substituted a sentence of
12 (twelve) years imprisonment.

JUDGMENT

Seriti AJA (HEHER AND MALAN JJA concurring):
[1] The appellant appeared before the regional court, facing one count of
murder. After evidence was led he was convicted as charged and sentenced
to fifteen years’ imprisonment. His appeal to the North Gauteng High Court
against both conviction and sentence was unsuccessful. He was granted
leave to appeal to this court by Murphy J.

[2] The appeal revolves around two issues, namely whether the appellant
acted in self defence when he shot and caused the death of the deceased, Mr
Robert Miller, and whether, when imposing the sentence, the trial court was
correct when it found that there were no substantial and compelling
circumstances which justified the imposition of a sentence lesser than the
sentence prescribed by section 51(2) of the Criminal Law Amendment Act 105
of 1997.

[3] It is common cause that on the day in question the deceased and
Messers Vernon Watson (‘Watson’), Marcus Ruiters (‘Ruiters’) and Barend
Barnard (‘Barnard’) drank alcohol at a certain place. In the evening, the
deceased drove them in a Toyota Corolla, to a barbershop and parked their
motor vehicle in a parking bay parallel with the pavement. In front of the motor

vehicle there was a bakkie belonging to the appellant parked with its nose
facing the nose of the Corolla.

[4] The deceased and his friends (but as the trial court correctly found, not
Watson who was left in the car) went to the pool tables adjoining the
barbershop where they encountered the appellant and other people. An
argument ensued between the appellant and the deceased leading to a fight.
The friends of the deceased joined in and assisted the deceased. The
appellant’s friends also took part in helping him. In the process the appellant
was assaulted and he sustained bodily injuries.

[5] The owner of the business premises, Mr Abdul Rocker came on the
scene and chased the deceased and his friends out. They went to their motor
vehicle. The deceased sat on the driver’s seat and Mr. Barnard on the
passenger’s front seat together with two young children and Watson on the
left back seat and Ruiters on the right.
.
[6] The appellant was also chased from the premises. He went to his
bakkie and, whilst standing in front of it, fired five bullets at the motor vehicle
in which the deceased and his friends were sitting. At that stage the appellant
was about three metres away from the deceased’s motor vehicle. The gun
shots hit that vehicle on the bonnet, front windscreen and radiator. The
deceased was struck by one of the bullets and later died.

[7] The state witnesses Watson, Ruiters and Barnard testified that when
the appellant fired their vehicle was stationary, idling and not in gear. Rocker
said that when he went out of the barbershop, just after the shooting, he found
the deceased’s Corolla idling.

[8] The appellant testified that when he left the barbershop the deceased
and his friends were standing on the sidewalk. They swore at him and
threatened to run him over. His mother and young brother came on the scene,
and his brother ran to him and held him by his leg. At that time, the four men
were inside their motor vehicle. The driver of motor vehicle was revving it and

it was jerking forward. He drew his firearm which was in a holster at his side.
He fired a shot at the motor vehicle’s engine. The motor vehicle continued
coming towards him and he fired a second shot. There was no positive
response from the driver. The Corolla continued coming towards him. He then
fired three more shots one after the other and the motor vehicle stopped.

[9] The trial court accepted the evidence of the state witnesses on how the
shooting occurred and rejected the version of the appellant. It accepted that
there was no attempt to run over the appellant with a motor vehicle. The trial
court further found that when the appellant fired he had the intention to kill the
driver.

[10] The full court which heard the appeal, after analysing the facts of the
case, agreed with the trial court that the evidence of Messers Watson, Ruiters
and Barnard was by and large credible and reliable and that the probabilities
supported their version. The trial court was aware of their intoxication and
approached their testimony with caution. It noted contradictions in the version
of the state witnesses but found them not to be material. It rejected the
appellant’s version and his defence on the grounds that it was highly
improbable.

[11] The appellant’s counsel submitted that the trial court should not have
accepted the evidence of Messers Watson, Ruiters and Barnard when they
said that their motor vehicle was stationary when shot at. The submission was
that the state witnesses had a motive to tender false evidence against the
appellant as their friends was killed and they assaulted the appellant. There is
no merits in this. In S v Morgan and others1; S v Tshoko2 en ‘n ander; R v
Dhlumayo3 the court reiterated the principle that an appeal court is generally
reluctant to upset a trial court’s findings of fact and its assessment of the
credibility of witnesses. I am unable to find any reason why the trial court
should not have accepted the state witnesses’ evidence. There was no

1 1993 (2) SACR 134 (A) at p153 a-c.
2 1988 (1) SA 139 (AA) at 142I-143A.
3 1948 (2) SA 677 (AD) at 689.

objective evidence to suggest that they had a motive to give false evidence
against the appellant.

[12] The appellant’s counsel further submitted that the deceased could
(involuntarily) have put the gears of the motor vehicle into neutral after being
shot at. This submission is not based on reliable evidence and amounts to
speculation.

[13] The appellant testified that when the motor vehicle jerked towards him
he could not take evasive action because the pavement next to him was full of
people and the road to his left was busy with traffic. Later he changed his
evidence and stated that he did not think about taking any evasive action to
avoid being knocked down by the motor vehicle. His evidence was correctly
rejected by the trial court.

[14] Appellant’s counsel further submitted that if it is found, objectively
viewed, that the appellant’s life was not under threat, the appellant
erroneously believed that it was in danger and that he therefore acted in
putative self defence. The submission was further made that the erroneous
belief of the appellant excluded dolus and he should have been convicted of
culpable homicide only.

[15] The submission by the appellant’s counsel is without merits. The trial
court found, and I agree, that the deceased's motor vehicle was stationary
when the appellant fired at it. The appellant could not have reasonably
believed that his life was in danger – See S v Joshua4 and S v De Oliveira5.
The appellant fired directly at the front windscreen knowing that there was a
driver behind the steering wheel. His life was not threatened. It follows that the
appeal against his conviction should be dismissed.

[16] As far as sentence is concerned section 51(2) of the Act read in
conjunction with Part II of Schedule 2 provides that if an accused is convicted

4 2003 (1) SACR 1(SCA) at para 29.
51993 (2) SACR 59 (A) at 63i-64a.

of murder, the court shall impose a minimum sentence of 15 years.
Subsection (3) stipulates that the court may depart from the prescribed
sentence and impose a sentence less than the prescribed sentence if there
are substantial and compelling circumstances justifying the imposition of such
a sentence.

[17] When considering sentence, the trial court took into account the
personal circumstances of the appellant and the fact that the appellant was a
first offender. It also took into account nature and seriousness of the offence
and the interests of society. The trial court further said that although the
appellant was clearly a victim of assault, it could not find sufficient factors
justifying the imposition of a lesser sentence.

[18] As a general rule, a court of appeal will not interfere with the sentence
imposed by the trial court unless the trial court has failed to exercise its
discretion properly. This will be the case if there was a misdirection on the
part of the trial court – see S v Shapiro 6; S v Sadler 7and S v Michele. 8

[19] In passing sentence the magistrate accepted that the appellant had
been assaulted by the deceased and his friends. He, however, did not
consider that to be a substantial and compelling circumstance justifying the
imposition of a lesser sentence. He said that, despite the assault on him, the
appellant had the choice of withdrawing but instead went ahead and stood in
front of the Corolla in order to provoke a further confrontation. The full court
associated itself with this view. To my mind, however, it is precisely
circumstances such as the assault, the injuries he sustained and the anger
which possessed him that palliate the horror of the appellant’s crime and his
moral culpability. Neither court apparently attached weight to the combined
effect of these factors. That was, as I see it, a material misdirection which
entitles us to consider the sentence afresh.

6 1994 (1) SACR112 (A) at 124d-e.
7 2000 (1) SACR 331 (SCA) at 334d-g.
8 2010 (1) SACR 131 (SCA) at para H.

[20] The personal circumstances of the appellant, the fact that he was
assaulted prior to he shooting and sustained physical injuries and that he was
angry at the time of the shooting cumulatively justifies the imposition of a
sentence less than the prescribed sentence. In my view, after taking into
account all the relevant factors into account, a sentence of twelve years’
imprisonment is appropriate.

[21] (a)
The appeal against conviction is dismissed.

(b)
The appeal against sentence succeeds. The sentence is set
aside and for it is substituted a sentence of 12 years’ imprisonment.

W L SERITI
Acting Judge of Appeal

APPEARANCES:

FOR APPELLANT:
M van Wyngaard

Instructed by
Matwadia Attorneys, Springs

Mpobole & Ismail Attorneys, Bloemfontein

FOR RESPONDENT:
J J Kotzé

Instructed by
The Director of Public Prosecutions, Pretoria

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:

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.

* * *
The appellant Mr. Bruce – Lee Lutchman Naidoo a resident of Mackenzieville,
Nigel was convicted by the regional court Nigel of Murder of the deceased Mr.
Robert Muller. He was sentenced to Fifteen (15) years imprisonment.
He challenged his conviction and sentence.

According to the Supreme Court of Appeal Mr. Naidoo’s conviction was in order as
he did not act in self defence when he shot the deceased. The court felt that in the
circumstances of this case a sentence of fifteen (15) years imprisonment was
severe and it reduced the sentence to twelve (12) years imprisonment.