Harry James Joshua v The State

The appellant's wife was robbed by two youths on 23 May 1994 while with her minor children. That evening, the appellant armed himself with a 12-bore shotgun loaded with six LG cartridges and, accompanied by his neighbour Tohier Hofmeyer, went searching for the robbers. They encountered five youths (including Marlin Mohammed, aged 17) drinking beer in a corner of a sports ground. The appellant demanded his wife's purse from Marlin. According to the defence, Marlin stood up with a beer bottle, threatened the appellant, and gave the command "up" whereupon the youths advanced to attack. The appellant shot Marlin, then fired further shots killing Fabian Rossouw (17) and Mervyn du Plessis (17), and wounding Ivan Mootjie (14). The appellant pursued Etienne Isaacs (Ivan's brother) who escaped. The appellant then went to the house of Abdurahman Hassan on Delft Main Road. According to the State, the appellant shot Hassan's dog, then shot and killed Johannes Jacobs and Hassan, and wounded Moses Gouws. The appellant claimed he acted in self-defence as the men were advancing on him with a knife. He was charged with five counts of murder and two of attempted murder.

• Whether the appellant acted in private defence when shooting the youths at the sports ground
• Whether the appellant's belief that his life was in danger constituted putative private defence
• The test for putative private defence and whether an honest but mistaken belief excludes dolus for murder
• Whether the appellant acted in private defence at Hassan's house
• The appropriate sentence for culpable homicide in circumstances of putative private defence

The appeal against convictions on counts 2 and 3 was upheld and each conviction was altered to guilty of culpable homicide. The sentences on counts 2 and 3 were set aside and replaced with 5 years' imprisonment each. The appeal against conviction and sentence on count 4 succeeded and the conviction and sentence were set aside (acquittal). The appeal against convictions and sentences on counts 5, 6 and 7 was dismissed. All sentences imposed were ordered to run concurrently, resulting in an effective sentence of 15 years' imprisonment.

In putative private defence, the test is subjective: if an accused honestly believes his life is in danger but objectively it is not, his conduct is unlawful but his erroneous belief may exclude dolus. The exclusion of dolus precludes a conviction for murder; at worst, the accused can be convicted of culpable homicide (applying S v De Oliveira 1993 (2) SALR 59 (A)). Where an incident occurs rapidly and an accused faces what he perceives as an imminent attack from multiple assailants, an honest but mistaken belief that some attackers still pose a threat (even when they may be turning away) can exclude dolus if the circumstances are considered objectively, including proximity, speed of events, and the accused's perception. The test for actual private defence remains objective: would a reasonable person in the accused's position have acted similarly.

The Court expressed concern about the inexcusable delay of almost 6 years between the granting of leave to appeal (2 October 1995) and the lodging of the record (14 August 2001). The Court noted that section 316(5) of the Criminal Procedure Act 51 of 1977 and Rule 52(1) of the Uniform Rules of Court require the registrar to transmit the record to the Supreme Court of Appeal without delay. The Court stated that the delay appeared to be attributable to the registrar of the Cape Provincial Division and reflected a lack of administrative safeguards. The Court welcomed the development of procedural rules in the office of the Director of Public Prosecutions to follow up on cases where leave to appeal had been granted, expressing hope that such delays would be avoided in future.

This case is significant in South African criminal law for clarifying the distinction between private defence and putative private defence, and the consequences of each. It establishes that where an accused honestly but mistakenly believes his life is in danger and that defensive action is necessary, this erroneous belief excludes dolus (intention), precluding a murder conviction. At worst, the accused can be convicted of culpable homicide. The case demonstrates the application of the objective test for private defence (would a reasonable person have acted similarly) versus the subjective test for putative private defence (did the accused honestly believe he was in danger). It also illustrates how courts must carefully consider the rapidity of events and the accused's subjective perception when evaluating putative private defence claims, while still applying objective evidence to test the reasonableness and honesty of the claimed belief.