Makgatho v S

The incident occurred on 20 February 2004 at a tavern in Senobarana, Limpopo, where several people were drinking. The appellant arrived at the tavern and called Daphne, who refused to go to him. He returned to his vehicle, came back, and pulled Daphne. When others objected, the appellant slapped Daphne, Nicholas, and Stanley (twice). When questioned, the appellant took out a firearm, grabbed Stanley with one hand and fired a shot in the air. He then pointed the firearm forward and fired a second shot before leaving. One of the shots fatally wounded the deceased. The appellant claimed he acted in self-defense and that shots went off during a struggle over the firearm. The regional court convicted him of murder on the basis of dolus eventualis and sentenced him to 15 years imprisonment. This conviction and sentence were confirmed by the North Gauteng High Court (Pretoria), sitting as a court of appeal.

• Whether the evidence established that the appellant had the necessary intention in the form of dolus eventualis to support a conviction for murder
• Whether the State witnesses' evidence was reliable and trustworthy regarding who fired the fatal shot
• Whether the trial court correctly rejected the appellant's version of events as not being reasonably possibly true
• Whether substantial and compelling circumstances existed to justify a departure from the prescribed minimum sentence of 15 years imprisonment under the Criminal Law Amendment Act 105 of 1997

The appeal against both conviction and sentence was dismissed.

A person acts with dolus eventualis when he subjectively foresees the real (as opposed to remote) possibility that his conduct may cause death, and nevertheless persists in that conduct, reconciling himself to the possibility. The test for intention in murder cases is subjective, not objective. Where an accused discharges a firearm in a crowded public place, being fully aware of and reckless about the danger posed to those in the vicinity, this establishes the subjective foresight and acceptance of risk required for dolus eventualis. An accused's version must be reasonably possibly true to be accepted; a version that is improbable and palpably false, particularly when not put to State witnesses during cross-examination, may properly be rejected. Courts of appeal should not interfere with trial courts' findings of fact unless they are shown to be vitiated by material misdirections or shown by the record to be wrong. Similarly, appellate courts will not interfere with sentences absent misdirection, as sentencing is pre-eminently within the discretion of the trial court.

The court made observations about the importance of putting one's version to opposing witnesses during cross-examination, noting that the failure to do so significantly undermined the credibility of the appellant's version when it only emerged during his own testimony. The court also commented on the appellant's post-incident conduct (failing to render assistance or report to police) as being incongruous with his claim of accident, though this was not strictly necessary for the determination of dolus eventualis. The court noted approvingly the principle that appellate courts should not "seek anxiously to discover reasons adverse to the conclusions of the learned Judge who has seen and heard the witnesses and determined the case on the comparison of their evidence" (quoting Clarke v Edinburgh and District Tramways Company).

This case reinforces key principles in South African criminal law regarding dolus eventualis and the test for intention in murder cases. It emphasizes that the test for intention is subjective, not objective, and clarifies the application of dolus eventualis where an accused discharges a firearm in a public place with awareness of the danger posed to those in the vicinity. The case also demonstrates the appellate court's deference to trial courts' findings of fact and credibility assessments unless shown to be vitiated by material misdirections or demonstrably wrong. It illustrates proper application of the sentencing regime under the Criminal Law Amendment Act 105 of 1997 and the high threshold for finding substantial and compelling circumstances to justify departure from prescribed minimum sentences.