S v De Oliveira
|S v De Oliveira|
|Full case name||S v De Oliveira|
|Decided||18 May 1993|
|Citation(s)||1993 (2) SACR 59 (A)|
|Liability, Mens rea, Putative private defence, Dolus, Murder, Attempted murder|
|Judges sitting||Smalberger JA, Nienaber JA, Harms AJA|
|Decision by||Smalberger JA|
S v De Oliveira is a case in South African criminal law heard on May 4, 1993: an appeal from convictions and sentences for murder and attempted murder by Stegmann J in the Witwatersrand Local Division. LJ Lowies appeared for the appellant; DF Dörfling appeared for the State. Lowies was instructed by Galloways, Boksburg, and Naudes, Bloemfontein.
The evidence indicated that the appellant, Antonio de Oliveira, and his wife, a certain Mrs Cordeiro, lived in a house in a dangerous area where robberies and housebreakings were not uncommon. Their house, however, was secure and burglar-proofed.
One Sunday afternoon while the appellant and his wife lay sleeping in their home, Vusi Nyandeni, a longstanding employee of De Oliveira's, together with three of his friends, Paul Peter Nyandeni, Isaac Nzimande and Jochonia Modisaitsele, arrived at De Oliveira's house. They wished to get into Vusi's room at the back of the house, where he had lived since March 1988 with one Tandi Adams.
The steel door at the end of the driveway, giving access to the back yard, was locked. Vusi knocked at the door in the hope that Adams might be there to open it. At this point Mrs Cordeiro woke up. "There are unknown black men outside!" she told De Oliveira, who instructed her not to worry; he would sort the matter out.
De Oliveira picked up his pistol from his bedside table and went to the window overlooking the driveway, opened it and fired six shots. One of these hit Paul Peter, killing him. Another hit Vusi, injuring him.
At the trial De Oliveira's defence was one of putative self-defence. He did not testify at the trial. The court rejected this defence and sentenced the appellant to an effective twelve years' imprisonment.
On appeal, the unlawfulness of De Oliveira's conduct was not in issue; the only issue was whether or not the State had proved, beyond reasonable doubt, that De Oliveira had subjectively had the necessary intent to commit the crimes of which he had been convicted.
The court held that the difference between private defence and putative private defence was significant:
A person who acts in private defence acts lawfully, provided his conduct satisfies the requirements laid down for such a defence and does not exceed its limits. The test for private defence is objective—would a reasonable man in the position of the accused have acted in the same way. In putative private defence it is not lawfulness that is in issue but culpability ("skuld"). If an accused honestly believes his life or property to be in danger, but objectively viewed they are not, the defensive steps he takes cannot constitute private defence. If in those circumstances he kills someone his conduct is unlawful. His erroneous belief that his life or property was in danger may well (depending upon the precise circumstances) exclude dolus in which case liability for the person's death based on intention will also be excluded; at worst for him he can then be convicted of culpable homicide.
The court held further that, in the instant case, where De Oliveira had not testified as to his state of mind at the time of the shooting, whether or not he had had an honest belief that he was entitled to act as he did had to be determined with regard to such other evidence as reflected upon his state of mind, and inferential reasoning.
"One thing is abundantly clear," the court decided: "there is no evidence to suggest that the appellant's conduct had any racial overtones." This it determined in spite of Cordeiro's reference to the race of the men when she roused De Oliveira from his slumber, and in spite of the fact that in his statement to the police De Oliveira had made specific mention of their race.
There was also no indication, the court held, that any attack on the house or its occupants was imminent. De Oliveira had been in a state of comparative safety. In these circumstances, it was inconceivable that a reasonable man could have believed that he was entitled to fire at or in the direction of the persons outside in defence of his life or property. In the circumstances there was prima facie proof that De Oliveira could not have entertained an honest belief that he was entitled to act in private defence. He failed to testify as to his state of mind and to refute this prima facie proof. "His silence," held Smalberger JA, "must weigh heavily against him." As was said by Schreiner J in R v Mohr, "It is not easy for a court to come to a conclusion favourable to the accused as to his state of mind unless he has himself given evidence on the subject."
In the circumstances, therefore, the trial court had correctly rejected De Oliveira's defence. The court determined, however, that the appeal against the sentence had to be allowed. Sentence on the count of murder was altered from one of twelve years' imprisonment to one of nine years' imprisonment, and on the counts of attempted murder from eight years' imprisonment on each count to one of five years' imprisonment on each count. These sentences were to run concurrently.
- S v De Oliveira 1993 (2) SACR 59 (A).
- 1993 (2) SACR 59 (A).
- S v Ntuli 1975 (1) SA 429 (A) at 436E.
- 1944 TPD 105.
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