Judge: In the present case, the accused is the only one that can state what frame of mind he was in when he shot the deceased.
Judge: He did however state that he did not intend to kill the deceased.
Judge: On his own version, he suspected that an intruder had entered his house. He honestly believed that his life and that of the deceased was in danger.
Judge: The bathroom window was indeed open, so it was not his mind at work. So he loaded his firearm, he heard the door slam shut.
Judge: On his version he was scared that the intruder was coming out to attack him.
Judge: The accused did act unlawfully when he fired his firearm at a closed door.
Judge: Did the accused objectively not see that the deceased was in the bathroom.
Judge: The evidence does not support the state's case, however the accused's version that the deceased was in bed when the accused fired the shots through the door.
Judge: This was stated to various other people. The accused told his version to John Stander and Dr. Stipp.
Judge: Counsel for the defense argued that the accused could not have made this up so quickly after the incident.
Judge: the question is, did the accused foresee the possability of her death?
Judge: How could the accused reasonably have forseen that the shots would have killed the deceased.
Judge: Let alone the deceased, as he thought she was in the bed in the bedroom.
Judge: Dr. Stipp an independent witness who was at the house minutes after the shooting. The accused pleaded to him to help save the deceased and he prayed for her life.
Judge: That however, the accused cannot be found guilty of pre-meditated murder, this is not the end of the matter as culpable homicide is a competent verdict
Judge: We will take an early lunch.
Judge: I now deal with negligence and capable homicide.
Judge: In determining whether the accused can be charged with capable homicide, we must look at a reasonable man.
Judge: Would a reasonable person have taken the steps to regard against this situation.
Judge: Page 409, only if these requirement as above be met would the accused be held not liable.
Judge: While it is clear in applying the tests of a reasonable man, a test for negligent is apparent.
Judge: The reasonable man himself of course evolves with the times. What was reasonable in 1933 would not be reasonable today.
Judge: A balance between what is to be included and what is to be excluded, should be sought along the lines of reasonableness.
Judge: The further individual particularities alone must be included.
Judge: It was submitted that disabilities cannot be taken into account. Counsel for the defense once more tried to convince the court that due to his disabilities he cannot be held liable for his actions.
Judge: In my opinion what we are dealing with has to be regarded as what is reasonable and what is not reasonable.
Judge: Counsel for the defense once again stated that there were many reasons as to why the accused reacted the way he did.
Judge: The open bathroom window, that was not fitted with burglar bars.
Judge: Security personel are there to deal with such security incidents.
Judge: There is no reason or explanation as to why he could not do so before he entered into the bathroom with a loaded gun.
Judge: To call for help, phone Stander and security probably took more time than it took to go into the bathroom.
Judge: Counsel for the court have asked this court to consider whether the accused acted negligently by firing those shots.
Judge: However the explanation of the conduct of the accused is just that, an explanation. It does not excuse the actions of the accused.
Judge: We must take into account that there are many people in this country who have experienced many crimes against them, do not sleep with a gun under their pillow.
Judge: If the accused had awoke to a sound and grabbed his gun and fired immediately and killed the deceased without moving around the room, then I would say that it is in self-defense.
Judge: However the accused had plenty of time to make decisions.
Judge: Evidence was led as to how near the deceased may have been when she was struck by the shots.
Judge: There was also in debate was what caliber was used in the firearm.
Judge: In my view all that is relevant was that the accused had used a firearm and fired at a closed door.
Judge: I now revert to my question. Would a reasonable person have shot at a closed door.
Judge: Would a reasonable person had taken reasonable steps to guard against that possibility.
Judge: The answer to those questions is yes. I am of the view that the accused acted to hastily and used with force.
Judge: I am in the view that the accused acted negligently.
Judge: I would have to stop here and continue tomorrow morning.