CASE NO.

: CC 37/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

versus

RYNO VAN ZYL

CORAM: MAINGA, J

Heard on: 18, 19 & 20 January 2010

Delivered on: 22 January 2010
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RULING IN AN APPLICATION IN TERMS OF S174 OF THE CRIMINAL
PROCEDURE ACT OF 1977:
MAINGA, J.: [1] This is an application in terms of S 174 of the Criminal Procedure
Act 51 of 1977 for the discharge of the accused at the end of the State case. The
accused is charged with the murder of his biological father Louis van Zyl on 27 June
2007, at the family‟s home, erf 9, Omatako Street, Eros in the district of Windhoek.
The accused pleaded not guilty. He tendered a detailed explanation of his plea. For
the sake of brevity I regurgitate the last three pages of that plea explanation
pertaining to that fateful day. That part reads as follows: -
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“9. DATE OF INCIDENT (27 JUNE 2007)

(a) On the day of the alleged incident the deceased requested my

mother to type a letter for his sister who wanted to visit us. She was
struggling on the computer with a picture that she wanted to put on
the letterhead. The deceased slapped her at the rear of her head so
that her forehead hit against the monitor and I then assisted her.
The deceased came in and chased me away from the computer and
instructed my mother to finish the letter. He then went outside and
asked where the sjambok was as he wanted to hit the dog. He
could not find the sjambok and started hitting the dog with a piece of
wood. The dog came running into the house and sheltered with my
mother. He chased the dog out and again started hitting the dog.
At that stage I was not present but heard my mother telling the
deceased that it would not help to hit the dog in the house and that
he will stay inside out of fear. At that stage I was in the bathroom
busy brushing my teeth. I heard the deceased telling my mother not
to talk to him in that manner.
(b) I then heard something like a blow with a fist or a slap and looked
out of the bathroom door. I saw the deceased picking my mother up
by her throat, chocking her and taking her into the living room. I
heard a loud sound in the living room and it sounded to me that he
threw her against something. I heard my mother making strange
noises and I realized that the deceased was busy strangling her. I
heard my mother screaming „Ryno help‟. I then went to the living
room and at that stage I had my pistol with me.
(c) I saw the deceased and my mother on the floor of the sitting room
with him sitting on her busy strangling her. It was clear to me that
she was struggling to breath. I shouted to the deceased that he
must stop and his reply was „I will kill all of you today‟. I want to
mention at this juncture that I never previously saw the deceased
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assaulting my mother in this serious manner. I drew my pistol from

the holster and again shouted at the deceased that I will shoot and
that he must stop assaulting my mother. Despite this he kept on
strangling my mother who at that stage was in bad condition due to
the strangling. I then decided to fire a warning short into the couch
as they were on the floor beside it. Despite the warning shot the
deceased was still strangling my mother. At that stage I presumed
that he had a firearm on his body. I then fired two shots directly at
the deceased. I can just mention that at that stage I was in state of
severe shock and I cannot clearly remember the firing of the two
shorts at the deceased. After I fired the two shots the deceased
released his grip from my mother‟s throat.
(d) I immediately realized what happened and started crying and said to
my mother that I am sorry. At that stage my whole body started
shaking and I realized that I had to phone the Police. My mother
took me to their bedroom and I put the pistol on the bed in my
mother‟s bedroom. I then called Deputy-Commissioner Eben
Benade but he was not in Windhoek and he told me that he will
send the Police to our house. The Police arrived at our house,
inspected the scene and took me in custody.

When the accident occurred my only concern was the safety of the
life of my mother. I at that stage believed and still belief that if I did
not act as aforesaid the deceased would have strangled my mother
to death. My mother also sustained an open wound at the back of
her head when he threw her to the floor.

SIGNED AT WINDHOEK ON THIS 18TH DAY OF JANUARY 2010

RYNO VAN ZYL”

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[2] When accused pleaded at the district court on 24 January 2008, almost
seven months after the commission of the offence, he tendered the same or more or
less the same plea explanation. For the period of almost two years the State is
aware that accused‟s defence is that he killed in defence of a third party, in this case,
his own biological mother.

[3] Mr. Shileka for the State opposed the application. The thrust of his opposition
is that accused admitted killing the deceased, a fact which is common cause, and
therefore, is a prima facie case which the accused has to answer. He placed reliance
in that argument on the strength of the case of the State versus Manona, a South
African authority reported in the 2001(1) SACR 426 TKD, where Kruger AJ at 427F
stated: -

“An assault and the killing of a human being is an action which is prima facie
unlawful. Once it becomes common cause that the accused has assaulted or
killed the deceased or the victim in self-defence, an evidential burden is placed
on the accused to rebut the prima facie presumption of unlawfulness. In such
a case a discharge under S174 cannot be granted”.

[4] The case of Manona above is reported in a page and half and it is necessary
to preempt the whole judgment. The whole judgment reads as follows: -

Kruger AJ: This is an application in terms of s 174 of the Criminal Procedure

Act 51 of 1977 for the discharge of the accused at the end of the State case.
The accused pleaded not guilty. No plea explanation was given in terms of s
115. During cross-examination it emerged that the accused admitted having
shot the deceased but alleged that it was done in self-defence, as the
deceased and the deceased‟s companion attempted to rob the accused. The
State case was based solely on circumstantial evidence. No-one saw the
accused shooting the deceased. The first State witness appeared on the
scene after having heard a shot and seeing the accused leave the scene. The
State presented ballistic evidence which showed that the projectile which was
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found on the body of the deceased emanated from the revolver which was
found in possession of the accused immediately after the incident. That
evidence was not disputed in cross-examination. The prosecution has the
burden of negativing defences such as self-defence. See R v Patel 1959(3)
SA 121 (A), R v Moleko 1955(2) SA 401(A). In such case an evidential burden
is placed on the accused to present evidence to support private defence. See
Jonathan Burchell Principles of the Law Delict 1993 at 74 fn 37.

An assault and the killing of a human being is an action which is prima facie
unlawful. Once it becomes common cause that the accused has assaulted or
killed the deceased or the victim in self-defence, an evidential burden is placed
on the accused to rebut the prima facie presumption of unlawfulness. In such
cases a discharge under s 174 cannot be granted.

I am alive to the fact that the evidential burden on the accused can be
discharged by reference to the version of the State witnesses – see S v Ostilly
and Others 1977(2) SA 104 (D) at 107D-E; S v Heller and Another (2) 1964(1)
SA 524 (W) at 541.

In this case the State did not have a version at all of how the killing had
occurred. therefore it would be a simple matter for the accused to adduce
evidence setting out his self-defence. The accused would be entitled to an
acquittal if there is a reasonable possibility that he acted in self-defence. See
R v Patel (supra at 124A).

In the circumstances therefore, the accused having admitted and it being

common cause that he killed the deceased there is an evidential burden on
the accused to place evidence before the court showing circumstances of
private defence. Thus an application under s 174 cannot be allowed.
The application is refused.”
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[5] What is clear from the judgment above is that in that matter accused did not
offer a plea of explanation in terms of S 115, the State did not have a version at all of
how the killing occurred save that the killing had occurred and that the prosecution
has the burden of negativing defences such as self-defence.

[6] The proposition that the prosecution has the burden of negativing defences
such as self-defence, Kruger AJ extracted from R v Patel 1959(3) SA 121(A) at 123H
– 124A a matter which Mr. Shileka referred to in his argument, and R v Moleko
1955(2) SA 401(A) at 403F. (See also R v Ndhlovu 1945 AD 369 at p 381).

[7] It is necessary to reflect on R v Patel which Mr. Shileka referred to in his

argument. In that matter the court said the following: -

“The issue is not one of self-defence: it is one of killing in defence of another.

But the right is the same. Having consulting the old writers cited in Gardiner
and Lasdown, vol. 2 at p. 1549 (6th ed.), I approve of the following passage in
that work:

„A person has the same right to use force in the defence of another
from a threatened danger, as he would have to defend himself, if he
were the person threatened ……‟

The general principles mentioned by WATERMEYER, CJ, in R v

Attwood, 1946 AD 331 at p 340, are that an accused is entitled to an
acquittal on the ground that he was acting in self-defence if it appears
as a reasonable possibility on the evidence –

„(a) that he had been unlawfully attacked and had reasonable ground
for thinking that he was in danger of death or serious injury. (Though
there may be cases of lawful self-defence where the accused was
originally the aggressor R v Ndara, 1955(4) SA 182 (AD) at 184 E);
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(b) that the means of self-defence which he used were not

excessive in relation to the danger;

(c) that the means he used were the only or least dangerous means
whereby he could have avoided the danger‟.

In considering these, the Court must beware of being an arm-chair critic and
must take into account the exigencies of the occasion. Thus the Union
Government (Minister of Railways & Harbours) v Buur, 1914 AD 273 at p 286,
INNES, AJ (as he then was) said

„Men faced in moments of crisis with a choice of alternatives are not to

be judged as if they had had both time and opportunity to weigh the
pros and cons. Allowance must be made for the circumstances of their
position‟.

[8] The court referred to Gardiner and Lansdown from p 1547 of vol. 2 of edition
with approval which the court found to be of sound common sense:

“The danger may in truth not have been great, but the jury must consider
whether a reasonable man, in the circumstances in which the accused was
placed, would have thought that he was in great danger. A weapon less
dangerous than the one used may have been at hand which would have
sufficed to ward off the threatened assault but the jury must not expect too
nice a discrimination or too careful a choice of weapons from a man called
upon in a sudden emergency to act promptly and without opportunity for
reflection”.
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[9] Lastly, the court said, the onus of negativing self-defence in a criminal case is
on the crown. R v Moleko 1955(2) SA 401 AD. Hence and accused is entitled to an
acquittal if there is a reasonable possibility that he acted in self-defence, considering
in the light of all the foregoing principles.

[10] In Patel above, the appellant fired a shot and killed the assailant of his brother
who attacked him using a hammer directed to the head.

[11] In conclusion the court went on to say: -

“The trial gave two reasons for holding that the appellant had exceeded the
limits of justifiable homicide. First, he had no reason to shoot at a man who
was a few feet away when the assault could easily have been prevented in
another way. Second, he was immediately thereafter at pains to conceal the
fact that he had used a fire-arm, which indicated a very guilty mind. This latter
factor is to be taken into account along with the others, but in my view it is of
little probative value, bearing in mind the circumstances. As to the first of the
above two reasons given by the trial court, it may well be that the danger could
have been averted by less drastic means. But, as already mentioned, one
must beware of being an arm-chair critic. The appellant was suddenly
confronted by an emergency not of his own creating. He had to act quickly.
Delay on his part might well have proved fatal to his brother Baboo: the next
hammer blow might have landed on his head, for he was in a crouching
position after the first blow on his back. According to the mark on Baboo‟s
back, the diameter of the head of the hammer must have been 1” to 1¼”. In
this critical situation the appellant used the only weapon to hand – his revolver.
He fired at the deceased. In my view the Crown did not prove beyond
reasonable doubt that in doing this he exceeded the bounds of justifiable
homicide.”
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[12] As I have already stated this application is brought in terms of section
174 of the Criminal Procedure Act. That section provides:

“If, at the close of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused committed the offence
referred to in the charge of any offence of which he may be convicted on the
charge, it may return a verdict of not guilty.”

[13] It is now trite law that “no evidence” in terms of the section means no evidence
upon which a reasonable court, acting carefully, may convict.

[14] Notwithstanding the interpretation of the words „no evidence‟ the issue still
rumbles on with divergent opinions on the subject. For the purposes of this ruling it is
unnecessary delve in the various opinions. I will confine myself to the considerations
of whether, there is evidence in this case on which reasonable man may convict, if
not is there a reasonable possibility that the defence evidence might supplement the
State case. If these considerations are answered in the positive accused should not
be discharged, but placed on his defence.

[15] I have already attended to the fact that Mr. Shileka made an attractive
argument that accused‟s own admission that he shot and killed the deceased
established a prima facie case which the accused has to answer.

[16] That argument in my opinion was made disregarding the fact in both
authorities. Mr. Shileka referred to it is stated clearly that the State bears the onus to
negativing defences such as self-defence. In casu the State failed abyssimally to
discharge that onus. In actual fact the defence raised by the accused came from the
mouth of the State witnesses. Ms. Van Zyl testified of the abuse and the humiliation
she endured for 21 years at the hands of the deceased, the events of the 27 June
2007 that led to the death of the deceased. Except that she was busy dieing at the
hands of the deceased when the shots were fired, she corroborates the defence
raised by the accused all the way. Pm the question by the court she went on to say
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the actions the accused took were the only means that saved her life. She went
on to say that accused could not dare come nearer the deceased, as the deceased
could have done to him what he did to her. She was of the opinion that deceased
intended to kill her, kill the accused and then committed suicide. She said deceased
was physically fit of athlete built.

[17] All the witnesses who were on the scene related the injury saw on the back of
the head of Ms. Van Zyl, particularly Chief Inspector Malan, who related reddish
marks which she referred to as bruises on the throat area of Ms. Van Zyl. Dr. Stolze
described the wound at the back of the head as a cut deep onto the bone, ± 4cm in
length. While he did not observe the bruises in the throat are, which he referred to as
reddish marks, he did not rule out that they were present and vanished before Ms.
Van Zyl was examined by him. He corroborated the evidence of the other witnesses
that she was in a state of shock and prescribed pills to calm her down.

[18] On the evidence presented by the State, there can be no doubt that Ms. Van
Zyl was, at the time deceased was shot and killed, in a threatening danger. R v Patel
supra which Mr. Van Vuuren referred to is authority for the statement that a person
has the same right to use force for the defence of another from a threatened danger,
as he would have to defend himself, if he were the person threatened.

[19] Accused in his plea explanation states that he heard his mother screaming for
help. His mother confirmed that she called the accused for help. This was after he
heard a huge bang in the lounge and heard his mother making some strange noises
and he realized that deceased was busy strangling her. Under the circumstances he
had to act with deliberate speed to avert the danger in which his mother was. He
drew his pistol (which he habitually carried for protection, in actual fact, forced upon
him by the deceased). He shouted to the deceased to let go of his mother. To that
plea deceased must have said he was going to kill Ms. Van Zyl and the accused. He
fired a warning shot in a couch next to where his mother was being strangled.
Detective Warrant Officer Amakali confirmed that he retrieved the third cartridge
underneath the couch. Knowing that deceased was obsessed with fire-arms and
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possibly had a fire-arm on him he fired two other shots at the deceased in the
head and back, the shot in the head fatally killing him.

[20] Even if I were to find that a prima facie case has been established for the
reasons of the admission made by the accused that he shot and kill his father as
contended for by Mr. Shileka and that accused bears the evidential burden to rebut
the prima facie presumption of unlawfulness, it is my view that the evidence that
came out of the State witnesses mouths discharged that burden. In S v Ostilly and
others 1977(2) SA 104 D C. L. D at 107D-E Kumleben, J stated: -

“Finally, I should mention, since the question was raised and is relevant that
the fact that there is an onus placed upon an accused person to disprove an
element of an offence is in itself no automatic bar to the grant of an application
in terms of S 157(3) (Section 157(3) of Act 56 of 1955 is the equivalent of S
174 of Act 51 of 1977). The facts on record as part of the State case may
have the effect of discharging such onus. (See S v Heller and Another (2)
1964(1) SA 524(W) at 541”.

[21] Having taken care of the concerns of the Prosecution one word on whether
there is a reasonable possibility that the defence evidence might supplement the
State case. Not a chance, accused will repeat what he placed in his plea
explanation, the evidence which Ms. Van Zyl have already placed on record. There
are no suggestions or indications from the State that she was not a credible witness.
Her evidence without question was accepted as the truth of what happened when
deceased was killed.

[22] The fact that accused could have used other means other then the fire-arm or
direct the defence at some other parts of the body, is neither here nor there, given
the fact that he thought the deceased had a fire-arm and the position he was in as he
strangled Ms. Van Zyl. The parts of the body exposed to the accused were in my
opinion all vulnerable. Given the violent nature of the deceased even if accused had
used other means of the fire-arm, the assault on him should have been blow that
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would have rendered him completely incapacitated and released his grip on
Ms. Van Zyl. The circumstances was a sudden emergency that required accused to
act promptly and without opportunity for reflection, the choice of weapons and where
the blow was directed should yield to the exigencies of the occasion.

[23] That means therefore that at the stage, there is evidence upon which a
reasonable man might find that the accused committed the offence with which he is
charged and I am therefore entitled to act accordingly under s 174.

[24] Consequently the application succeeds. Accused is found not guilty, acquitted
and discharged.

____________________
MAINGA, J
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ON BEHALF OF STATE: Mr. Shileka

Instructed by: The Prosecutor General

ON BEHALF OF RESPONDENT: Mr. Van Vuuren

Instructed by: Directorate of Legal Aid