THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 607/11

In the matter between:

CRAIG WILLIAM GRIGOR

Appellant

and

THE STATE

Respondent

Neutral citation:
Grigor v The State (607/11) [2012] ZASCA 95 (1 June 2012)

Coram:
Van Heerden, Snyders and Tshiqi JJA

Heard:

16 May 2012

Delivered:
1 June 2012

Summary:
Attempted murder – self defence – must be a balance between
the attack and the defence – bounds of self defence exceeded – sentence not
shockingly inappropriate.
______________________________________________________________________
ORDER
______________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Msimeki J and Mabuse AJ sitting
as court of appeal):
The appeal against the conviction and the sentence is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
TSHIQI JA (VAN HEERDEN AND SNYDERS JJA CONCURRING)

[1] The appellant in this matter was convicted by the regional court magistrate,
Benoni, on a count of attempted murder and was sentenced to six years’ imprisonment.
He appealed to the North Gauteng High Court, Pretoria, leave having been granted by
the regional court magistrate, against both the conviction and sentence. His appeal to
the high court was dismissed. His appeal is now before us, with the leave of this court,
against both the conviction and sentence.

[2] The appeal arises from a road rage incident that occurred on 11 January 2008
along Kirshner Road, Benoni, between the appellant and the complainant. Before the
incident the complainant had just made a u-turn in a drive-way and then entered the
road when, according to him, he noticed the vehicle driven by the appellant ‘flying up’
behind him in the same direction. It overtook him.  Whilst so driving, an exchange of
gestures, consistent with both their perceptions that each had driven in an unacceptable
manner took place between them. Their respective versions on what really occurred
differ. At some stage they both alighted from their respective motor vehicles.

[3] The appellant testified that he stopped his motor vehicle first and made what he
called an ‘emergency exit’. He advanced towards the complainant’s vehicle which was
parked behind his and stopped next to the rear fender of his own vehicle. The
complainant also alighted from his own vehicle and advanced towards the appellant and
pushed him.  The only inference to be drawn from their behaviour at this stage is that
they were both angry and ready to confront each other. Consequent to this, a fight
ensued between them, during which the appellant inflicted several stab wounds on the
complainant with a knife. At the time the appellant was not only armed with a knife but
also had a fire-arm, which he did not use. The complainant was unarmed. There were
no independent witnesses to the fight.

[4] After the fight the complainant drove home and was, shortly thereafter,
hospitalised and had to be sutured and to undergo surgery. The medical report
completed by an authorized medical practitioner (J88) and which was submitted as
evidence notes the following clinical findings on admission:
‘Stab wounds (multiple) on the face, chest, abdomen, (R) thigh…, facial wound sutured in
casualty, patient referred to surgeon on call, patient was taken to theatre’.
Dr Malanda who had completed the J88 was called to testify. He described the stab
wounds as a deep laceration on the face, a big laceration on the right thigh which was
deep, involving the muscles on the middle aspect of the leg. He sutured the facial
wound himself. He described the wound on the abdomen as a deep wound below the
ribs which penetrated the abdomen. He was not able to repair this wound and decided
to refer it to a surgeon. Dr Snyders, the surgeon, testified and confirmed Dr Malanda’s
evidence pertaining to the nature of the wounds.  Both doctors stated that several of the
injuries were so serious that the complainant could have died from bleeding if he had
not received medical intervention.

[5] The defence raised by the appellant was that he stabbed the complainant in self
defence. In order to succeed in his defence the appellant had to show, first, that the
defensive act was necessary in order to protect himself and also that there was a
reasonable relationship between the attack and the defensive act.

[6] The gist of the appellant’s evidence was that the complainant was the aggressive
party in that he was rude towards him from the moment they met and continued to be
aggressive after they had both alighted. During the fight, so stated the appellant, the
complainant continued advancing towards him unabated even when he showed him the
knife, also after he had stabbed him for the first time, and also after he inflicted the
several other stab wounds on him. The complainant blamed the appellant as the
aggressor. He admitted that he was annoyed at the manner in which the appellant had
been driving and that he used rude sign language towards the appellant to express his
irritation, but denied that he was aggressive. He also agreed that he pushed the
appellant after they had alighted from their respective vehicles. He denied the further
aspects of the appellant’s evidence suggesting that he continued to be aggressive and
to attack him during the fight.

[7] Both the appellant and the complainant sought to blame each other for the
manner in which the incident progressed and ultimately led to the injuries to the
complainant. The trial court was as a consequence left with two conflicting versions on
the facts. The proper approach for the trial court in such a case was to make a
determination whether in light of all the probabilities, cumulatively, the State had proved
the guilt of the accused beyond a reasonable doubt. This the magistrate did and in so
doing correctly rejected the version of the appellant as improbable to the point of not
being reasonably possibly true for the reasons that follow.

[8] The complainant admits that he was the one who started the fight by pushing the
appellant. It is not necessary to analyse what he sought to achieve in doing so because,
whatever it was, it is clear that he was motivated by his own anger at that stage.
However, it must have dawned on the complainant very soon after he had initiated the
fight that the odds were against him when the appellant produced a knife which he,
according to him, showed to the complainant. That the complainant would continue to
advance towards a man carrying a knife and continue attacking him whilst he was being
stabbed, whilst he himself did not possess any weapon is difficult to believe. Even
according to the evidence of the appellant, the knife was always in his possession.
There was no evidence that the complainant overpowered the appellant at any stage.

[9] The most damning objective evidence against the appellant is the severity of the
injuries sustained by the complainant. Dr Malanda described the wound in the abdomen
as ‘really deep’. Dr Snyders stated that the particular laceration was such that one of the
complainant’s ribs was also severed. According to him such injuries were sustained
through severe force. That medical evidence alone shows that the appellant applied
force that was far beyond what was necessary to avert any form of attack by the
complainant. It also controverts the evidence of the appellant that the injuries were
sustained because the complainant kept on advancing towards him whilst he was
holding or swinging the knife in front of him. It also has to be taken into account that the
appellant did not sustain any injuries during the fight.

[10] C R Snyman Criminal Law 5ed (2008) at 109 states that it is not feasible to
formulate the nature of the relationship which must exist between the attack and the
defence in precise and abstract terms and that the requirement that there must be a
relationship between the attack and the defensive act is in practice a matter of fact
rather than of law. The learned author states correctly, in my view, that there ought to
be a certain balance between the attack and the defence, after all, he says, ‘you may
not shoot and kill another person who strikes you with a fly–swatter’. At best for the
appellant, the threat he was faced with was a threat of assault. The use of the knife in
retaliation and the manner in which it was used was disproportionate. Even if he was
angry and wanted to retaliate and confront the complainant, there is no basis to find that
he was justified in using the knife nor the consequent force he used in stabbing the
complainant. That the knife was used repeatedly to inflict multiple stab wounds is telling.
There was, after all, no imminent threat to the appellant’s life to justify the use of such
force. The actions of the appellant in the premises exceeded the bounds of self
defence.

[11] The facts of this matter, even on the appellant’s version, show that he had
several other harmless means he could have adopted to avoid a physical confrontation.
He could have driven off and ignored the complainant. When this option was explored
with him he stated that he had stopped there to avoid the complainant because he
realised that the complainant was unhappy that he, the appellant, had overtaken him.
He also testified that he stopped because he was close to his work place and did not
want the complainant to see his work place for fear of his safety. This explanation is

implausible. It is nonsensical for the appellant to suggest that he would have stopped
his vehicle, alight from it hastily and advanced towards the complainant if he simply
wanted to avoid him.

[12] When the appellant was asked to explain why he made an ‘emergency exit’ from
his vehicle, he stated that whilst driving he had slipped into an embarkment which was
250 millimeters high and that his wheels were stuck against the embarkment such that
he would not have been able to drive away from the scene. Later on during the trial his
own witness, also his employer, stated that the spot was a slope and not an
embarkment and that one would probably turn a sedan there easily without causing
damage to the vehicle. Even if appellant’s version that he had driven into an
embarkment is accepted, he could have simply remained in his vehicle.

[13] There is accordingly no basis to interfere with the reasoning of the magistrate. As
it is uncontroverted that the injuries inflicted were such that the complainant would have
died if he had not received medical intervention, the conviction of attempted murder (the
form of fault being dolus eventualis) also stands.

[14] I now turn to consider the sentence imposed by the magistrate. There was no
persuasive argument intimating that the magistrate misdirected himself in imposing the
sentence nor that the sentence was shockingly inappropriate. A perusal of his judgment
on sentence shows clearly that the magistrate took into account all the relevant factors

before imposing sentence. Apart from the personal circumstances of the appellant and
the interests of society and also the other trite considerations, the magistrate considered
the nature and the circumstances in which the offence was committed. The magistrate
was prepared to accept as mitigating factors that there was no premeditation, that the
incident occurred at the spur of the moment and that there was some form of
provocation. He accepted that the appellant made a mistake but stated, correctly in my
view, that the incident was a serious mistake that merited punishment. The magistrate
further stated that there were options that could have been taken by the complainant to
avoid the incident and concluded that he thus had to face the consequences of his
actions. There is therefore no basis to interfere with the sentence imposed by the
magistrate and the appeal against sentence must also fail.

[15] In the result:
The appeal against the conviction and the sentence is dismissed.

_______________________
Z L L Tshiqi
Judge of Appeal

APPEARANCES
APPELLANT:

RC Krause

Instructed by David H Botha Du Plessis,
Kruger and
Symington & De Kok

Bloemfontein

RESPONDENT:

Adv LA More

Instructed by Director of Public Prosecutions

Bloemfontein