About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2015
>>
[2015] ZAGPJHC 296
|
|
S v Khaile (SS071/2015) [2015] ZAGPJHC 296 (9 December 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION, PALM RIDGE)
CASE NO: SS071/2015
DATE: 09 DECEMBER 2015
In the matter between
THE STATE
And
JOHANNES MOLEFE
KHAILE
........................................................................................
ACCUSED
J U D G M E N T
VAN OOSTEN J:
[1] The accused is charged on five
counts, comprising murder (count 1), attempted murder (count 2),
attempted robbery with aggravating
circumstances (count 3) and two
charges of unlawful possession of a firearm and ammunition (counts 4
and 5).
[2] The accused pleaded not guilty to
all counts and counsel for the defence informed the court that the
accused elected to exercise
his right not to disclose a defence.
[3] The charges arise from an incident
that occurred in the late evening on 13 March 2015, at the corner of
Zwelisha and Immink
street, Diepkloof, Soweto. The facts that the
deceased was shot and killed by two shots that were fired from the
firearm which
was subsequently handed to the police by one of the
state witnesses, have formally been admitted. The usual admissions
concerning
the identity of the deceased and the cause of death were
recorded in terms of
s 220
of the
Criminal Procedure Act 51 of 1977
.
In addition, a medical report in respect of injuries sustained by the
brother of the deceased, Bafana Mbatha, at the scene, as
well as a
ballistic report containing the results of the testing of the firearm
and a bullet retrieved form the body of the deceased,
were admitted
and handed in by consent. The test result revealed that the retrieved
bullet was fired by the firearm.
[4] The State called four witnesses to
testify. Three of the state witnesses, Bafana Mbatha, Sipho Ngwangwa
and his friend, Andile
Shange, testified that they were present at or
near the scene where the incident had occurred. Bafana Mbatha
testified, in summary,
that the accused approached him and the
deceased on their way, walking in the street, in search of their
uncle. The accused was
unknown to them. The deceased was talking on
his cell phone and
Bafana was answering a call of nature.
The accused asked the deceased to hand the cell phone to him. Bafana
intervened and told
the accused to ‘Voetsek, do not play like
that’. He said to the deceased ‘Let’s go’ and
they continued
on their journey towards Zone 1. The accused remarked
that the deceased had called his friends to ‘come and stand up
for
you’ and promised to return to get their cell phones. En
route they passed Sipho Ngwangwa and Andile Shange, who were at an
intersection. Shortly thereafter the accused turned up again, on this
occasion from behind. The deceased remarked ‘Here he
comes
again’. The accused produced a firearm and fired two shots at
the deceased. Bafana tried to grab the accused but the
accused
pointed the firearm at him, pulled the trigger but it jammed and
wouldn’t fire. The accused pulled the trigger a
second time but
nothing happened. Bafana wrestled with the accused and shouted for
help. Sipho and Andile arrived. They disarmed
the accused and Sipho
took possession of the firearm. The accused attempted to run away but
came up against a closed gate at a
yard. Members of the community
arrived on the scene and they assaulted the accused. He was held
until the police arrived and arrested
him. Sipho and the deceased’s
sister assisted in obtaining transport of the deceased to the
hospital. Sipho succeeded in
arranging transport and the deceased was
taken to hospital but died shortly thereafter. The cause of death is
recorded in the post-mortem
report as ‘gunshot wounds of the
abdomen and right arm’.
[5] Sipho, in the meanwhile, still
carrying the firearm, went home. A little while later Bafana, after
having made a witness statement,
took Warrant Officer Ratchikombo,
who is stationed at Diepkloof police station, to Sipho’s home.
Warrant Officer Ratchikombo
testified and confirmed that the firearm
with 5 rounds live ammunition was handed to him by Sipho at his home.
[6] Both Sipho and Andile testified
that shortly after Bafana and the deceased had passed and greeted
them at the intersection,
they heard two shots being fired. On their
approach to the scene Bafana was shouting for help. They both
assisted in pinning down
the accused and disarming him.
[7] The accused testified as the only
witness in his own defence. His version is a mirror image of the
state version. He testified
that it was after 23h00 and he was on his
way home having seen off his girlfriend at her home. He was followed
by two men. One
of them (Bafana Mbatha) turned around, faced him and
accused him of trying to rob them. This person came up closer to him
and slapped
him in the face. The accused noted that he had a firearm
in his hand. The other person (the deceased) was a distance of
approximately
10 to 12 meters away from them. The accused grabbed the
hand with a firearm and a scuffle for possession thereof ensued. He
had
both his hands on the hand with a firearm. Two shots went off. He
did not touch the firearm nor did he pull the trigger.
The trigger, he said, was pulled by
Bafana Mbatha. He shouted for help and two men (Sipho and Andile)
arrived but instead of helping
him, they assaulted him.
[8] The state witnesses corroborated
each other in all material respects. Counsel for the defence
submitted that the state case
was ‘riddled’ with
improbabilities. In particular, so the argument went, the first
incident is a telling example of
improbability as it cannot be
accepted that a would-be robber would simply, unarmed, ‘risk
his life’ in requesting
the hand-over of a cell phone. There is
no merit in the argument. The accused was clearly aware of only the
deceased who was talking
on his cell phone. The appearance of his
brother after the demand for the handing over of the cell phone and
his reaction prompted
the accused to remark that the deceased was
calling back-up from his friends, which seems to have annoyed the
accused. I am unable
to find any improbability in the events as
described by Bafana Mbatha.
[9] Counsel further made much of the
fact that Sipho had kept the firearm in his possession instead of
waiting for the police to
arrive on the scene and then to hand it
over to them. Sipho, it must be remembered, was concerned about the
welfare of the deceased.
The police arrived when he was still
attempting to arrange transport at a nearby house. It was around
midnight. A crowd was gathering
and they were aggressive. With the
benefit of hindsight Sipho probably would have significantly
strengthened the state’s
case had he waited for the police to
arrive for the hand-over of the firearm. But his decision to take it
home, in my view, does
not open the door for an inference that it was
sinister in any way. Having considered the evidence as a whole, I am
not satisfied
that any valid reason exists for doubting the
credibility and honesty of the state witnesses.
[10] The accused was an unsatisfactory
witness. The crux of his version is that he was the victim of an
attempted robbery. He disingenuously
sought to shift the attempted
robbery and shooting on Bafana Mbatha. His evidence that the two
shots went off during the scuffle
with Bafana Mbatha and that both
shots miraculously happened to strike the deceased, who was some
distance away from them, and
then in the forearm and abdomen, is not
only far-fetched but also so improbable that it cannot be accepted as
reasonably possibly
true.
[11] Warrant Officer Ratchikombo
testified that he approached the accused in the Diepkloof police
cells, shortly after the incident
and that the accused was
un-cooperative. His evidence in this regard was not challenged in
cross-examination. The accused however,
testified that he had told
Ratchikombo his full version of the events. I accept the evidence of
Ratchikombo. The accused, had
he been a victim of an attempted
robbery, would have told Ratchikombo thereof and his failure to do so
justifies the inference
that his evidence is nothing but an
afterthought. On the probabilities there is moreover nothing to
support the accused’s
version and it is rejected as false. I
accept the evidence of the state witnesses that the accused was the
initial aggressor and
that he soon thereafter returned and shot the
deceased. (see S v Van der Meyden
1999 (2) SA 79
(W)).
[12] I accordingly find that it has
been proved beyond any reasonable doubt:
• that the accused at the first
incident intended to deprive the deceased and his brother of their
cell phones;
• that he shortly thereafter
returned, now armed with a firearm;
• that he fired two shots at the
deceased, with the direct intention to kill him;
• that the two shots in fact
struck and killed the deceased;
• that he thereafter twice
attempted to shoot Bafana Mbatha but that the firearm failed;
• that the accused was disarmed by
the state witnesses Sipho and Andile: and
• that Sipho, at the scene, took
possession of the firearm which he later handed to the police.
[13] Concerning count 3, I am not
satisfied that the state has succeeded in proving all the requisite
elements of an attempted robbery.
The accused, on the accepted
evidence, merely asked the deceased for his cell phone. Although he
promised to come back ‘to
get the cell phones’ there is
nothing to be found in his conduct at the second incident where the
shooting occurred, to justify
an inference of robbery. In this regard
at least a reasonable doubt exists and the accused, accordingly, is
entitled to the benefit
thereof. In regard to the remaining counts I
am satisfied that the state has proved the guilt of the accused
beyond all reasonable
doubt.
[14] In the result the accused is found
guilty on counts 1, 2, 4 and 5, as charged, and not guilty on count
3.
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
COUNSEL FOR THE STATE : ADV TP
MPEKANA
COUNSEL FOR THE ACCUSED : ADV JL
KGOKANE
DATES OF HEARING : 4, 8 & 9
DECEMBER 2015
DATE OF JUDGMENT : 9 DECEMBER 2015