Botha v S (1074/2017) [2018] ZASCA 149; [2019] 1 All SA 42 (SCA); 2019 (1) SACR 127 (SCA) (1 November 2018)

Botha v S (1074/2017) [2018] ZASCA 149; [2019] 1 All SA 42 (SCA); 2019 (1) SACR 127 (SCA) (1 November 2018)

The Supreme Court of Appeal found that the appellant was attacked unexpectedly and violently by the deceased, who was the aggressor. While the appellant was justified in taking action to avert the attack, her response—stabbing the deceased in the upper chest with a steak knife—was excessive and disproportionate. The court held that although the appellant foresaw the possibility of death, she did not reconcile herself with that outcome, and her actions were impulsive rather than intentional. The evidence did not support a conviction for murder in the form of dolus eventualis, but did support culpable homicide, as a reasonable person would have foreseen the possibility of death resulting...

Citation
[2018] ZASCA 149
Parties
Appellant: Odette Botha; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 November 2018
Case Number
1074/2017
Procedural Posture
Criminal Appeal / Appeal From the Gauteng Local Division, Johannesburg
Outcome
Appeal upheld to the extent that the conviction and sentence for murder are set aside and replaced with a conviction for culpable homicide and a sentence of three years’ imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of 1977.
Judges
Tshiqi, Seriti, Zondi, Schippers, Mokgohloa
Legal Topics
Self Defence, Culpable Homicide, Dolus Eventualis, Mens Rea, Minimum Sentencing, Private Defence
Criminal Law Self Defence Culpable Homicide Dolus Eventualis Mens Rea Minimum Sentencing Private Defence

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 22 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Odette Botha

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal From the Gauteng Local Division, Johannesburg

Legal Issues

  1. 1 Whether the appellant's conduct constituted murder or culpable homicide.
  2. 2 Whether the appellant acted in self-defence and if the bounds of self-defence were exceeded.
  3. 3 Whether the appellant had the requisite intention (dolus eventualis) to kill the deceased.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant was attacked unexpectedly and violently by the deceased, who was the aggressor. While the appellant was justified in taking action to avert the attack, her response—stabbing the deceased in the upper chest with a steak knife—was excessive and disproportionate. The court held that although the appellant foresaw the possibility of death, she did not reconcile herself with that outcome, and her actions were impulsive rather than intentional. The evidence did not support a conviction for murder in the form of dolus eventualis, but did support culpable homicide, as a reasonable person would have foreseen the possibility of death resulting...

Court Disposition

Appeal upheld to the extent that the conviction and sentence for murder are set aside and replaced with a conviction for culpable homicide and a sentence of three years’ imprisonment under s 276(1)(i) of the Criminal Procedure Act 51 of 1977.

Orders

  • The appeal is upheld to the extent set out below.
  • The conviction of murder and the sentence of 12 years’ imprisonment are set aside.