Mervyn De Vos v The State

On 17 July 2005, in the early hours of Sunday morning, the appellant (44 years old) was at a nightclub called 'Squeezas' in Kimberley with his niece's two sons. He met a friend, Mr Bloem, and they were forcefully removed from the club by security personnel ('bouncers'), Masuku and Isak, who believed they had been fighting. The appellant felt humiliated and drove to the police station to report the incident. He told Constable Malete he would fetch his gun and shoot those who assaulted him. He had no visible injuries at this time. About two hours later, the appellant returned to the club to collect his niece's nephews. According to the appellant, Masuku pulled him into the entrance and Sylvester (a security guard) struck him on the head with a baseball bat, followed by Masuku striking his left jaw with a bat. The appellant fell, retrieved himself by his car, and when Sylvester advanced toward him wielding a bat and threatening to kill him, the appellant fired a single shot from about 2 meters away. The bullet penetrated Sylvester's left cheek, exited near his right eye (causing him to lose his eyesight), and then struck patron Samuel Serata in the right leg. The appellant then drove to the police station where Malete observed blood on his hands and a swollen jaw. The district surgeon later found a fractured left jaw requiring surgery with metal screws and plates, bruising on the left forearm, a head wound, and bleeding in the mouth. The appellant spent eight days in hospital.

• Whether the appellant acted in self-defence when he fired the shot that injured two complainants
• Whether the appellant's version that he was assaulted with a baseball bat immediately before the shooting was reasonably possibly true
• Whether the appellant exceeded the bounds of self-defence
• When the appellant sustained his injuries and the significance of the timing of those injuries

The appeal was upheld. The order of the court below (Northern Cape High Court) was set aside. The convictions on two counts of attempted murder and the sentences were set aside.

Where an accused raises self-defence as a defence to attempted murder, and the objective evidence (including medical evidence of serious injuries sustained by the accused and contemporaneous observations by independent witnesses) supports the accused's version that he was assaulted immediately before firing the shot, and this version is reasonably possibly true, the State has failed to prove guilt beyond reasonable doubt and the accused must be acquitted. The timing and nature of injuries sustained by an accused claiming self-defence is critical evidence that must be properly weighed in assessing the credibility of that defence. Where such evidence corroborates the accused's version that he was under immediate violent attack, the defence of self-defence cannot be rejected merely because the accused had earlier made threats or armed himself before returning to the scene.

The court observed that it was 'probably irresponsible and even reckless' for the appellant to have returned to the club armed with his firearm after what had happened earlier, even though his stated purpose was to collect his niece's sons. The court also noted that arming himself before returning indicated he 'expected trouble.' These observations, while not affecting the outcome, suggest judicial disapproval of the appellant's decision to return to a volatile situation while armed, even if ultimately his use of the firearm was found to be in self-defence. The court also questioned the logic of the State's version by asking why the appellant would return to shoot Sylvester when, on the State's own case, it was Masuku and Isak who had treated him badly earlier.

This case reinforces important principles regarding the assessment of self-defence in South African criminal law. It emphasizes that courts must carefully evaluate the totality of evidence, particularly objective medical evidence regarding injuries, when assessing whether an accused's version of self-defence is reasonably possibly true. The judgment demonstrates the application of the well-established principle that where an accused raises a defence that is reasonably possibly true, the State has not discharged its burden of proof beyond reasonable doubt. The case also illustrates the proper approach to assessing credibility and the weight to be given to contemporaneous evidence (such as the police officer's observations and medical evidence) versus witness testimony. It serves as a reminder that courts should not focus solely on an accused's prior conduct or threats but must consider all circumstances when evaluating a claim of self-defence.