THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case no:  547/07

In the matter between:

JOHANN GRIEBENOW

Appellant

and

THE STATE

Respondent
_______________________________________________________

Coram:
Navsa, Van Heerden JJA et Mhlantla AJA

Date of hearing: 18 February 2008
Date of delivery: 20 March 2008

Summary:
Private defence ─ appellant claiming he shot and killed deceased in
defence of life and limb ─ held that there had been no such threat and that appellant’s
actions were unlawful and consequently that he was guilty of murder ─ sentence of 12
years’ imprisonment appropriate.

Neutral citation:
Griebenow v S (547/2007) [2008] ZASCA 12 (20 March 2008)
_______________________________________________________
NAVSA JA

NAVSA JA:

[1] On 6 August 2002 in the Regional Court for the division of Northern-
Transvaal, the appellant, Mr Johann Griebenow, was convicted of the murder of
Mr Frederik Christiaan Johannes Watkins (the deceased) and, on 18 October
2002 was sentenced to 12 years’ imprisonment.

[2] The appellant unsuccessfully appealed his conviction and sentence to the
Pretoria High Court. With the leave of that court he now appeals further to this
Court against both his conviction and sentence.

[3] The deceased’s tragic and needless death resulted from what, by all
accounts, appeared to be a trivial argument that arose whilst the appellant and
the deceased were playing pool in a bar in Pretoria-West ─ the two apparently
entertained differing opinions concerning the rules that applied to the game. In
order properly to consider the circumstances surrounding the appellant’s death, it
is necessary to start at the beginning.

[4] The deceased, his girlfriend, his brother Mr Daniel Watkins (Daniel) and
various other persons decided to spend the night of 6 May 2000 at an
establishment called ‘Pool Masters’. As its name suggests, it is a pool saloon and
is located in a bar. The appellant and the others in his party were intent on
relaxing and enjoying themselves. Several of the deceased’s friends were
present. Alcohol was imbibed and a pleasant time was enjoyed by all.

[5] The appellant made an equally fateful decision. After spending the night in
the presence of family, with whom he had consumed a moderate amount of
alcohol, he was on his way home at approximately 01h00 the next morning when
he drove past Pool Masters and decided to stop there to play pool.

[6] The appellant and three others, including the deceased, formed a party of
four in order to play two-a-side pool. The appellant and the deceased were on
opposing sides. The consumption of alcohol continued and, at approximately
04h00 an argument broke out between the deceased and the appellant regarding
the rules of the game. Tensions arose and the owner of the saloon, recognising
the potential for trouble, pushed all the balls into the pockets of the pool table,
informed everyone that she was closing the premises and proceeded to lock-up.

[7] It is largely common cause1 that the appellant left the bar and shortly
thereafter the deceased, his brother and other patrons made their way out of the
building. There is a dispute about material events thereafter and particularly
about the critical moments leading up to the deceased’s death. It is unfortunately
necessary to deal in some detail with the evidence adduced at the trial.

[8] Mr Stracatox, the first state witness, who had been in the bar at the
relevant time and could best be described as the proverbial innocent bystander,
testified that Daniel followed the appellant as he made his way to the parking
area where his car was parked. Daniel was so intoxicated that he staggered
across the street in a ‘zig-zag’ fashion towards the appellant, shouting as he went
along. Daniel then returned from the parking area to the side of the road
alongside Pool Masters to summon the deceased, who at the time was already
making his way out of the building. The parking area adjoins a business called
Maxi-Tyre. It is across the road directly opposite Pool Masters.

[9] The deceased and Daniel together made their way across the road to the
parking area. Mr Stracatox heard heated words being exchanged and thereafter
heard a shot being discharged from a firearm. He heard a second shot being
fired and the deceased fell to the ground. It appeared to Mr Stracatox that at the
time immediately before the deceased fell to the ground, he was ‘backing off’ and

1 See the evidence to the contrary by the witness referred to in para 20 and the treatment of his
evidence as a whole in para 51.

did not seem aggressive. It is unclear from Mr Stracatox’s evidence whether he
was looking directly at the encounter at the time that the first shot was
discharged. It does not appear to be in dispute that the first shot did not strike the
deceased.

[10] According to Mr Stracatox, after the deceased fell to the ground the
appellant ‘just kept shooting him’. I interpose to state that it is common cause that
the appellant shot and killed the deceased and that neither the deceased nor
Daniel was armed. A total of seven shots were fired. The appellant’s version of
events was that he had acted in self-defence and that consequently he had not
acted unlawfully. I will deal with his version in greater detail later in this judgment.

[11] Mr Stratacox testified that after the appellant had fired a number of shots
several bystanders went over to see if they could render assistance. It was too
late ─ the deceased was dead. It is common cause that a passing vehicle
stopped and that the appellant boarded it and travelled to the police station
where he reported the incident.

[12] Importantly, during the trial, counsel for the appellant put it to Mr Stracatox
that the appellant was already at his car when Daniel left the building.
Mr Stracatox agreed. It was accepted during the trial that the appellant’s car was
positioned approximately 100 metres away from Pool Masters. The following part
of Mr Stracatox’s evidence is significant:
‘Why wait for the assault? Why not get into your car and go home?’

[13] According to Mr Stracatox the deceased and his brother posed no threat
to the appellant at the time that the shots were fired. He saw the appellant shoot
the deceased repeatedly from a distance as the deceased lay on the ground.

[14] Mr Stacatox’s evidence that Daniel was so intoxicated that he staggered
across the street in the manner described above was unchallenged in cross-
examination.

[15] Mr Stracatox testified that at the time of the shooting the appellant was
standing with his back to his motor vehicle and the left-side of his body towards
Pool Masters. This means that the roll-down door alongside the parking area was
to the appellant’s right (the door features quite prominently in the appellant’s
evidence) and a wall in which a bullet hole was found would have been directly in
front of him.

[16] Daniel also testified in support of the State’s case. According to him all the
members of their party had consumed ‘a little too much’ alcohol that night. He
testified that when he left the building the appellant shouted at him from across
the road and was using foul language. The appellant threatened that he would
cause Daniel and the deceased to ‘bleed’.

[17] Daniel informed the deceased of this and the latter wanted to confront the
appellant about his behaviour. The two brothers then crossed the road and were
approximately one to two metres away from the appellant when the latter fired
the first shot into the ground. At that stage the deceased repeatedly told the
appellant to put the firearm away. The appellant responded by hurling abuse at
the deceased, whereupon the deceased told Daniel to make his way back across
the road.

[18] Daniel testified that on his way back to Pool Masters he had barely
reached the middle of the road when a number of shots were fired. He estimated
that seven shots in all, fired only seconds apart, were discharged. According to
Daniel, when he looked back as the subsequent shots were being fired, he saw
the deceased and the appellant approximately 60 cm apart. Accompanied by his

brother’s girlfriend, Daniel hastened to where the deceased lay dead while the
appellant walked away.

[19] Daniel denied that he had initially followed the appellant across the road
and that he had 'set his brother upon’ the appellant.

[20] Mr Dawid Janse van Rensburg was the third State witness. He confirmed
that a dispute had arisen concerning pool rules. He testified that the deceased
was angry and had put his pool cue down on the table and that the owner,
sensing trouble, had stopped the game and told them to take their argument
outside. Thereafter Daniel left the building, the appellant leaving shortly
afterwards. The deceased remained in the building for a while. He had to find his
girlfriend, who apparently had consumed too much alcohol and was in need of
assistance. He located her, led her down the stairs outside Pool Masters and
caused her to sit down on one of the steps.

[21] Mr Janse van Rensburg’s car was parked near the entrance to Pool
Masters. When he exited the building he saw Daniel returning from across the
road. Daniel was hysterical and informed Mr Janse van Rensburg and the others
standing with him that the appellant was in possession of a firearm and was
going to shoot the deceased. Mr Janse van Rensburg testified that he saw the
deceased and the appellant talking to each other and that there did not appear to
be a problem. One of the patrons reassured Daniel that the appellant would not
shoot the deceased as the two did not appear to be antagonistic towards each
other. However, as the group discussed approaching the appellant and the
deceased, the first shot was fired. The group cautiously crossed the road to see
what was happening. When Mr Janse van Rensburg and the others reached the
deceased they saw that he had been shot and the appellant was standing over
him.

[22] Mr Janse van Rensburg was unable to say precisely what had occurred
immediately before the appellant started shooting. He did not hear the abusive
language testified to by Daniel. He testified that he himself had consumed about
five beers before the incident.

[23] In cross-examining Mr Janse van Rensburg the appellant’s legal
representative clearly accepted that the deceased had first tended to his
girlfriend before approaching the appellant. It also appears to have been
accepted that at the time that the deceased was taking care of his girlfriend, the
confrontation between Daniel and the appellant was taking place.

[24] At the conclusion of the defence case, the magistrate deemed it
necessary to call two witnesses he thought might be of assistance to the court.
The first was Dr Alida van der Hoven, a forensic pathologist who had performed
the autopsy on the body of the deceased. She described the wounds sustained
by the deceased. The first entry wound was at the side of the face. The bullet
had travelled through to the left side of the head. It appeared to have been fired
from the left-hand side in front of the body.

[25] The second entry wound was in the left shoulder. The bullet track
appeared to be from that point through the top of the left lung, perforating a major
artery that feeds the brain. The perforation of the artery would have resulted in
heavy bleeding. The next entry wound was through the left front part of the
deceased’s chest. The fourth entry wound was through the back of the
deceased’s neck. It would thus appear that the deceased was at some stage
definitely shot from behind twice.

[26] The other witness called by the court was Mr Johan Ewoudt Schoeman, a
ballistics expert who had performed tests with the weapon the appellant had
used to shoot the deceased. He found that, after shots were fired from the
appellant’s semi-automatic firearm bullet cartridges were ejected, and on a

cement surface, fell between five to seven metres away (to the right) from the
firearm.

[27] Referred to a photograph of the scene Mr Schoeman accepted that the
cartridges were fairly widely spread. Provided that the scene had been
undisturbed, he placed the appellant five to seven metres to the left of where the
cartridges had landed.2 Mr Schoeman marked an area midway between the
appellant’s motor vehicle and the abovementioned roll-down shutter door
alongside the parking area as the estimated position where the appellant must
have been standing when the shots were fired. He concluded that the appellant
would have been facing a wall alongside a grass verge with the roll-down door to
his right and Pool Masters to his left. As already indicated, a bullet hole was
visible on the wall in question.

[28] Under cross-examination Mr Schoeman accepted that, if the appellant had
been standing with his back to the roll-down door, some of the cartridges might
have struck the door and might have landed in positions shown on the
photograph.

[29] Although Mr Schoeman was unable to say precisely how far away from
the deceased the appellant was when he discharged any of the shots, he was
emphatic that the two could not have been closer to each other than 70 cm.

[30] I turn to deal with the appellant’s version of events. According to him,
when he first arrived at Pool Masters, he sat at the bar and engaged in
conversation with other patrons before being asked to join a two-a-side game of
pool. He accepted the invitation. The appellant and the deceased were on
opposing sides and an argument later ensued concerning the application of the
rules of the game. The appellant became very aggressive and wanted to engage

2 The police arrived at the scene very soon after the incident. It was never suggested on behalf of
the appellant that the scene had in fact been disturbed.

in a physical fight, but was restrained by others in the bar. According to the
appellant the deceased threatened in crude terms to beat him to death.

[31] The appellant testified that he was warned by another patron that there
was going to be trouble. Under threat and subjected to a torrent of abuse he left
the building. He was afraid and wanted to get away as fast as possible. As he
made his way to his motor vehicle which was parked approximately 100 metres
from Pool Masters, someone was behind him shouting continuously.

[32] According to the appellant, when he got to his motor vehicle his haste was
such that he inserted the wrong key into the driver’s door. He did not even look
over his shoulder at the person hurling abuse at him, his greatest desire being to
get away. However, before the appellant knew it there were two people right next
to him ─ the deceased and Daniel. The deceased, in particular, was very
aggressive and was using abusive language. According to the appellant the
deceased then struck him on the forehead, causing him to drop his keys on the
ground and retreat towards the roll-down door at Maxi-Tyre. Whilst retreating he
drew his firearm and fired a warning shot telling the deceased that he did not
want any trouble. Although he asked the deceased to leave him alone and to
summon the police, the deceased was undeterred and continued advancing
towards him. According to the appellant, he could eventually retreat no further as
his back was up against the roll-down door. In cross-examination he described
what happened next:  [D]ie oorledene [het] my gestorm.’ The appellant reacted to
this by firing continuously at the deceased from a position with his back against
the roll-down door, until all his ammunition was spent.

[33] The appellant was adamant that he did not intend to harm the deceased.
According to the appellant he had carried a firearm on his person at all times
since being involved in a violent incident in Pretoria a few years earlier.

[34] The appellant was unable to describe the degree of intoxication of either
Daniel or the deceased. He did not see Daniel staggering around as described
by Mr Stracatox. He admitted that he had himself consumed a quantity of alcohol
at Pool Masters that night.

[35] Importantly, the appellant testified that when he first arrived at his motor
vehicle, after leaving Pool Masters, he realised that Daniel was the person who
had been shouting at him from the time that he had exited the building. Perhaps
even more significantly, his evidence was to the effect that whilst he was trying to
unlock his car door he heard the shouting from across the street ─ approximately
100 metres away.

[36] The appellant admitted that he had spent some time in the army and had
several years of experience in the handling of firearms. In attempting to explain
how the deceased could have been shot from the back, the appellant surmised
that the deceased might have staggered and turned as he was being shot at. He
denied that he had shot the deceased from behind. In response to a question
about whether he had aimed at any part of the deceased’s body which might
have caused less harm he responded by stating that he had simply fired a
number of shots at the deceased who was intent on harming him. He did not
know whether the deceased had been armed. He was unable to explain how the
cartridges were spread as widely as described earlier in this judgment.

[37] In his judgment the magistrate contrasted the appellant’s evidence on the
one hand ─ namely, that he was followed immediately after he left the building
and that the deceased’s brother arrived on the scene so quickly that he was
unable to get away in time ─ with the one consistent thread of evidence by the
first two witnesses for the state ─ namely, that Daniel did not leave the premises
immediately after the appellant and that it took some time before the deceased
emerged from the building. The magistrate accepted this part of the evidence,
which he noted had not been challenged in cross-examination.

[38] The magistrate held that the conclusion was compelling that the appellant
chose not to leave the scene, but waited for the further confrontation he must
have known would follow. In these circumstances, so the magistrate reasoned,
even accepting the appellant’s version of how the shooting occurred, the
appellant was unable to rely on self-defence. He consequently convicted the
appellant of murder.

[39] The magistrate considered that a minimum sentence of 15 years’
imprisonment was prescribed for murder in circumstances such as those of the
present case,3 unless there were substantial and compelling circumstances
justifying the imposition of a lesser sentence. It appeared from the report of a
probation officer that the appellant was 39 years old at the time of the trial. He
was married with a child born of that marriage. He and his spouse each had a
child from a previous marriage. The appellant and his wife were both in gainful
employment. His employer provided a glowing reference ─ his industry and
commitment were commended. He had a previous conviction of assault but this
had occurred more than 10 years before the event in question and was
disregarded by the magistrate.

[40] The magistrate took into account, in the appellant’s favour, that the
deceased had been aggressive from the time that the argument arose and that
there had thus been a measure of provocation.

[41] As against the appellant, the magistrate noted that there had been a tragic
loss of life and that the deceased’s two minor children had lost their father and
would now have only their mother to maintain and care for them. He also
emphasised that murder is a serious offence and that South Africa’s recent
history showed how readily people resorted to violence to settle their differences.
Considering the totality of circumstances, the magistrate concluded that there

3 See s 51(2) of Act 105 of 1997 ─ read with Part II of Schedule 2 to that Act.

were substantial and compelling circumstances justifying a departure from the
prescribed minimum sentence, but that a period of imprisonment was the only
appropriate punishment. He consequently imposed a sentence of 12 years’
imprisonment.

[42] In a brief judgment the court below (Ramagaga AJ, De Vos J concurring)
was critical of the appellant’s version. Ramagaga AJ had regard to the
appellant’s plea explanation in which he stated that he had been attacked by the
deceased and others whilst his evidence was that he had been attacked only by
the deceased. The court below also noted that it had been put to witnesses by
the appellant’s legal representative that the appellant’s version was that he had
been assaulted by both the deceased and his brother, whilst his evidence was to
the effect that he had been assaulted only by the deceased.

[43] The court below held that the magistrate had correctly concluded that the
appellant’s shooting of the deceased was unlawful and that his conviction on the
charge of murder was justified. Furthermore, that the magistrate had carefully
considered all the material circumstances relating to sentence and that there was
no reason to interfere with the sentence imposed.

[44] The use of force which would ordinarily be criminal is justified if it is
necessary to repel an unlawful invasion of person. Modern textbook authors
prefer the term ‘private defence’ to the expression ‘self-defence’ as the right to
employ force in justifiable circumstances extends beyond the defence of life and
limb.4

[45] In the present case the primary question is whether or not there had been
a threat to the appellant’s life. In my view, Mr Stracatox, whose sobriety was not
challenged, was a satisfactory witness. If anything, he was understated and was

4 See J M Burchell South African Law and Procedure ─ General Principles of Criminal Law Vol 1
3 ed (1997) p 72 and the authorities there cited.

willing to make concessions when they were justified. Importantly, his evidence is
consistent with the objective evidence given by Mr Schoeman as to the positions
the deceased and the appellant were in at the time of the shooting.

[46] Mr Stracatox’s evidence that Daniel had initially crossed the road before
returning to summon the deceased, who thereafter accompanied him back
towards the parking area, was not contested during cross-examination. As
indicated above, Mr Stracatox’s evidence that Daniel had staggered across the
road in a ‘zig-zag’ fashion was also unchallenged. There appears to me to be no
basis on which his evidence in this regard should not be accepted. Thus, it can
hardly be argued that Daniel on his own posed any kind of threat to the appellant
who was armed. This appears to discredit the appellant’s claim that he was afraid
as Daniel pursued him across the parking area.

[47] If, as stated earlier, Daniel in his highly inebriated state had to cross a
rather extensive parking area before covering the same distance again
accompanied by his brother, the appellant clearly had more than ample
opportunity to drive away. His evidence that he was afraid, panicked and had no
time to get away must therefore also be rejected.

[48] The court below rightly noted the variance between the appellant’s
explanation of plea and his evidence which tends to suggest that the appellant
made up the detail of his defence as he went along. This view is strengthened by
the fact that material parts of Stracatox’s evidence were unchallenged and
furthermore, by the fact that the plea explanation was in essence repeated in the
cross-examination of State witnesses, but yet not maintained during the
appellant’s testimony.

[49] The appellant’s version of events is at odds with the objective facts. The
cartridges were found widely spread indicating that the shooting did not take
place as described by the appellant. The concession by Mr Schoeman

concerning the possible deflection of the cartridges by the roll-down door does
not explain the wider spread of the other cartridges nor does it explain the bullet
hole in the wall alongside the parking area. The objective evidence, however, ties
in with the description by Mr Stracatox of how the shooting occurred and of the
distance between the deceased and the appellant at the fateful time.

[50] Moreover, the appellant’s description of how the deceased continued
‘storming’ at him, despite the warning shot being fired, is highly unlikely.
Mr Stracatox’s description that the deceased was retreating after the first shot, is
far more probable. All the indications are that the appellant was spoiling for a
fight. Once the inevitable confrontation occurred the appellant behaved in a
callous and violent manner.

[51] It appears to me that the evidence of Daniel can mainly be disregarded.
On his own evidence, he was intoxicated and on Mr Stracatox’s version he was
so drunk that he staggered from side-to-side. Mr Janse van Rensburg’s evidence
is not of any real assistance either.

[52] The magistrate erred in assuming in favour of the appellant that his
version was reasonably possibly true. In my view, for the reasons alluded to, the
appellant’s version can safely be rejected.

[53] For all the reasons set out above, the State in my view proved beyond
reasonable doubt that the appellant was guilty of the murder of the deceased.

[54] In respect of sentence, Mr Stracatox’s evidence that the appellant
continued to fire at the deceased who had already fallen to the ground is
pertinent. He was armed and was dealing with two persons who were intoxicated
and whom he could easily have avoided. On the other hand, it is clear that the
appellant and his brother had been aggressive and provocative. This is a
mitigating factor in favour of the appellant. In my view, the magistrate properly

took all the appellant’s personal circumstances into account and considered all
the relevant material, including the unfortunate reality that South Africans readily
resort to violence and the use of firearms. This is indeed a plague upon our
society and courts are duty bound to send out a message that it will not be
tolerated and will be met with the full force of the law.

[55] I agree with the court below that there is no reason to interfere with the
sentence imposed.

[56] In light of these conclusions the following order is made:
(a)
The appeal against conviction and sentence is dismissed.

_________________
M S NAVSA
JUDGE OF APPEAL

CONCUR:

VAN HEERDEN
JA
MHLANTLA
AJA