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[2016] ZAGPJHC 130
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S v Matjeke (049/2016) [2016] ZAGPJHC 130 (3 June 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 049/2016
DATE:
3 JUNE 2016
In
the matter between:
THE
STATE
And
WILLIAM
JABULANE MATJEKE
Summary
Trial
– Criminal law – Murder – Premeditated murder
– Driver of a motor vehicle fleeing the shooting
scene and
deciding to drive back to avenge the shooting of his passenger by
driving into a man he perceives to be the gunman –
wrong person
knocked down and killed – Impact of mistaken identity –
Accused having formed the intention to kill –
Dolus directus.
Driving under the influence of alcohol – reckless and negligent
driving – duplication of charges. Driving
with the
concentration of alcohol in blood above the statutory limit –
blood to be drawn within two hours.
The
accused, a taxi driver stopped at a hiking spot at night. Five hikers
refused to get in because he only had space for one passenger
left in
his motor vehicle. The accused and some of his friends got out and
pushed the hikers around prompting one of them to draw
a firearm and
shoot at the motor vehicle driven by the accused as the latter flee.
A short distance away, one passenger indicated
he was hit by a
bullet. The accused decides to drive back to avenge this with the
intention to drive into the gunman with a motor
vehicle. Some of his
passengers are opposed to this idea, two of whom even get off the car
and walk on foot alongside the road.
The accused drove back to the
shooting scene and found no one. On his way back he drives into one
of the two men walking on the
side road killing him, thinking that he
was the person who fired shots at his motor vehicle. It turned out
that he killed one of
the men who alighted from his car when he
decided to drive back. Concentration of alcohol in his blood which
was drawn some 4 hours
later was found to be 0.05 gram per 100 ml.
The prosecution charged the accused with several charges including
murder, drunken
and reckless driving of a motor vehicle.
Held
,
that, a mistake in the identity of the victim targeted does not alter
the fact that the accused formed a direct intention to kill
a human
being.
Held
,
further, that for a conviction on driving the motor vehicle under the
influence of alcohol, evidence needed to establish that
the accused
drove in manner that displayed that he was under the influence of
alcohol. That a conviction on this charge based on
the killing of the
deceased could be duplication of charges.
Held
,
further, that driving into the deceased and killing him not
indicative of driving under the influence of alcohol and /or reckless
driving when a decision to knock him down was taken prior to the
driving. That evidence established that the motor vehicle was
driven
well prior to the collision.
Held
,
further, that driving a motor vehicle with concentration of alcohol
in one’s blood above the statutory limit is not indicative
of
the mannerism of driving, but that it is an offence on its own. That
sec 65 (3) of Act 93 of 1996 requires that blood should
be drawn
within two hours from the time of the commission of the offence.
Held
,
further, that in driving back to the shooting scene, the accused
premeditated the commission of the crime of murder and sec 51
(1) of
Act 105 of 1997 was applicable.
JUDGMENT
RATSHIBVUMO
AJ
:
1.
William Jabulane Matjeke (the accused),
stood trial on five charges:
·
Count 1: Murder. The State alleged that on
07 March 2015 at Diepsloot, Randburg, the accused unlawfully and
intentionally killed
Tshililo Gift Mshueu, a male person.
·
Count 2: Attempted murder. The State
alleged that on the date and place as per count 1, the accused
unlawfully and intentionally
attempted to kill Johnson Chauke by
attempting to bump or drive over him with a motor vehicle.
·
Count 3: Robbery with aggravating
circumstances. It was alleged that on the date and place as per count
1, the accused robbed Ignatius
Phela of his cash, R220.
·
Count 4: Contravening sec 65 (1) (a)/(b) of
Act 93 of 1996 – Driving a motor vehicle under the influence of
intoxicating liquor.
This is alleged to have taken place on a public
road on the date and place as per count 1. The alternative charge is
that of contravening
sec 65 (2) (a)/(b) of Act 93 of 1996 –
Driving a motor vehicle while the concentration of alcohol in his
blood was above
0.02 gram per 100 ml, to wit, 0.05 gram per 100 ml.
·
Count 5: Contravening sec 63 (1) of Act 93
of 1996 – Driving a motor vehicle recklessly or negligently.
This is alleged to
have taken place on a public road on the date and
place as per count 1. The alternative charge is that of contravening
sec 64 of
Act 93 of 1996 – Inconsiderate driving.
2.
The accused was legally represented by
counsel, Mr. Mncwango attached to Justice Centre Johannesburg. The
State made it clear that
in case of conviction, a sentence in
accordance with sec 51 (1) and 51 (2) of Act 105 of 1997 would have
to be imposed in respect
of count 1 and count 3 respectively. The
accused pleaded Not Guilty to all the charges. No plea explanation
was tendered.
3.
Introduction:
3.1
It is not foreign for the courts to battle the question on whether a
motor vehicle can be used as a weapon the same way a criminal
would
pick a handgun to go and kill. Mr. Chretien once found himself facing
a charge of murder over the events of one Saturday
evening in 1979
(13 January).
[1]
That fateful
night, he had argued with members of a group before driving away. He
decided to drive back into the group, bumping
them with his motor
vehicle causing the death of one of them. Thirty six years later, on
a Saturday evening (07 March 2015), the
accused in this matter finds
himself in a similar situation. Coincidentally, after arguing with
members of a group, he drives away
the same way Chretien did, before
driving back to face the same group. The motor vehicle bumps into
Gift Mshueu who dies instantly.
3.2Shakespeare
once said about alcohol; it provokes the desire but takes away the
performance.
[2]
It would appear
from the facts in Chretien and in this case, alcohol consumption
plays a prominent role in turning a motor vehicle
into a weapon that
could be used in committing murder.
In
casu
,
unlike in Chretien, the court has the privilege to hear what caused
the accused to drive back. The accused was not a lone occupant
of the
motor vehicle but there were other passengers with whom such a
decision was communicated. The question before the court
today is not
the impact of intoxication on the criminal capacity of the accused.
The crux in this case is rather the factual determination
on who
steered the motor vehicle into the deceased and for what reason.
Summary
of facts:
4.
A total of eight witnesses testified during
the trial, six for the State and two for the defence.
Case for the
State
5.
Ignatius Lesiba Phela:
He
testified on how he, on 07 March 2015, attended a birthday party at
Cosmo City at the invitation by the accused whom he constantly
referred to as Willie. He had gone to the party in the company of the
accused, the accused’s girlfriend and four other men,
including
Phineas and Kabelo. They had gone there in the accused’s Toyota
Venture that he also used also used as a taxi.
At the party they all
celebrated drinking alcohol. Their departure from the party was
troublesome and so was the rest of their
journey.
6.
They were seven in a motor vehicle when the
left around 20h00. The accused was the driver and he occupied the
front passenger seat.
The journey took an exorbitant amount of time
due to unfortunate events that followed, and he only reached his home
in Diepsloot
after 01h00. As they drove away, they were all drinking
alcohol. At some stage, the accused stopped for two men who were
hiking.
One of them happened to be known to the accused as a
colleague in the taxi industry. The accused stopped again at a spot
where
five men were hiking. These men would not enter saying the
motor vehicle was full. The insistence by the driver that they get in
irrespective of their stance resulted in an argument. He and the
driver got out of the motor vehicle to confront them.
7.
Gunshots were fired from this group before
they could reach them. As a result, they ran back to their motor
vehicle and the driver
sped off. As they drove away they realised
that one of their male companions was hit with a bullet. The accused
indicated that
he wanted to drive back to confront those people. He
testified that he was opposed to since those men were armed and they
were
not. The accused said he would bump them using his motor
vehicle. Despite his protests, the accused drove back to the hiking
spot.
8.
As they drove back, they saw two men
walking on the side of the road. They argued among themselves inside
the motor vehicle as to
whether these could be the same men who fired
the shots or not. He testified that he told the driver that the
pedestrians could
not be the ones because the hikers were all wearing
work suits and were chubby, unlike the two pedestrians. Irrespective
of this,
the accused veered the motor vehicle off the road to go and
bump them. All of a sudden, he saw a man on the windscreen and the
motor vehicle stopped in the bushes. After the motor vehicle stopped,
they could not see the man who was knocked by the motor vehicle.
All
he found was his wallet and one canvass shoe on the ground, and he
picked up that wallet. He suggested that they should search
for the
body of the man knocked down in the bushes so they could leave it at
a view of other road users, but the accused would
have none of that
since he was by then concerned over his damaged motor vehicle.
9.
They pushed the car in order to start it
and they drove away. As they drove away, another argument ensued
resulting in a physical
fight. The cause for the fight was that the
driver accused him of taking out cash from the wallet he had picked
up instead of handing
it over intact with its contents. He however
denied that he took some cash from that wallet. While driving, the
accused assaulted
him with a fist while Phineas, a man who was seated
behind his seat, held him on his neck by the arm. As he was held like
that,
the accused managed to search him and took a cell phone and
about R220 from him. The accused even took out a knife threatening to
stab him with it. They struggled for the possession of this knife and
when he got hold of it, he threw it out of the moving car.
From the
assault, he sustained an open wound on his head. A healed scar of
about 5 cm still reflected as he gave evidence. He was
also injured
on his right eye as a result of being hit with a fist by the accused.
10.
They continued fighting until they reached
Diepsloot Police Station. When he reported the incident to the
police, they did not take
him serious since he was drunk. They
eventually informed him that they would send police vans to the scene
of impact. They also
referred him for medical treatment. Days, later,
he wanted to withdraw the robbery charge after his R220, was paid
back to him
by Kabelo, the accused’s brother. However the
prosecution refused to withdraw the charge. He enjoyed a cordial
relationship
with the accused since they grew up together, and that
their mothers are very close to each other.
11.
He denied the defence’ version to the
effect that it was him who suggested that they should drive back to
the shooting scene
to fight back. He also denied that the accused
only agreed to drive back so that he could look at those men for him
to be able
to point them out to the police. He also denied that he
was the one who grabbed the steering wheel and swerved the car to
where
the deceased was walking. He challenged the defence saying had
accused made that report to the police, they would have arrested
him
instead. The reason he was not arrested is that he did not make it to
the police since it was an afterthought.
12.
Johnson Chauke
:
He testified that he was with the deceased, Gift Mshueu on 07 March
2015, the day he died. The deceased was his friend. They had
known
each other from 2006 when he arrived in Gauteng. On that fateful day,
they were together while the deceased was driving a
taxi. When the
deceased knocked off that evening, the two of them went to a hiking
spot to for taxis to Diepsloot. It was not long
before the accused
came driving his Toyota Venture and he stopped for them. The accused
and the deceased greeted as they knew each
other. The accused even
told the deceased not to pay since they were colleagues. As a result,
the deceased paid R10 which payment
was for this witness.
13.
They drove off travelling along Malibongwe
Drive before turning into R114 towards Diepsloot. Everyone inside the
motor vehicle including
the driver was consuming alcohol. Although he
was seated at the back where he could not see the type of alcohol the
driver was
consuming, he could see that Amstel beer was being passed
from one person to another.
14.
At the area called Makumane they stopped
for five men who were hiking by the side of the road. As these men
communicated with the
driver, they seemed not to understand each
other. The driver, the front passenger and the two men from the seat
behind the front
seat got out and the two groups pushed each other.
One of the hikers drew a firearm. Upon seeing the firearm the driver
and his
companions ran back to the car. The gunman then fired three
shots at the car and the driver sped off. They drove about 500 meters
before one of the men in car indicated that he was hit by a bullet.
The accused responded saying he was not going to drive away
and just
leave the people who shot his companion. He then pulled to the right
hand side of the road and stopped the motor vehicle.
The deceased
pleaded with him not to drive back.
15.
The only female passenger who was said to
be the accused’s girlfriend also pleaded with him not to drive
back. It was at that
stage that the deceased suggested to the witness
that they should rather get out of the motor vehicle instead of going
back with
the others because they could get injured. The two of them
alighted from the motor vehicle and proceeded with the journey
towards
Diepsloot on foot. They were walking on the right hand side
of the road on the gravel part, away from the tarred road. They
walked on the motor vehicle tyre tracks caused by the motorists who
drive on the shoulders of the road to avoid traffic congestion
on the
tarred road. The deceased was walking on the left track closer to the
tarred road and the witness was on the right one,
further from the
tarred road facing oncoming traffic. He phoned Fhatuwani who resided
in the same yard as him to come pick them
up as it was unlikely that
they would get another lift.
16.
As they were walking, he noticed motor
vehicle lights from behind them. At that stage, the car was being
driven on their side of
the road at a high speed. He ran away even
further from the road into the bushes. He noticed that the deceased
was hit by a car
and he realised that it was the same Toyota Venture
they had alighted from moments earlier. He could not tell how this
car veered
from the left side of the road to the right side where
they were walking.
17.
After hitting the deceased, the car
stopped. As he remained hiding in the bushes, he heard the car
occupants asking each other saying
‘where are they?’ The
tall grass and darkness helped him to remain unseen as opposed to
them who were exposed to the
motor vehicle lights and its white
colour. They then talked about pushing the motor vehicle back to the
road since its engine was
off. They pushed it, it started and they
drove off.
18.
When Fhatuwani arrived, he showed him the
point of impact and where the Toyota Venture started to swerve off
since there were markings
in the bushes. They walked following the
tyre tracks into the bushes until they found the deceased lying in
the bushes, lifeless.
He was lying some 30 meters from where he was
walking when the motor vehicle hit him. No matter how loud the
witness shouted his
name, Gift Mshueu was not going to respond; for
he was no more. Fhatuwani took him to the police station in order for
him to report
the incident.
19.
At the police station they found the same
Toyota Venture and the same occupants. Upon seeing him, the accused
told the police, ‘here
is the person who was walking with the
person that I knocked down.’ The accused also told the police
that he and the deceased
are the ones who fired shots at his motor
vehicle. At the end, he was allowed to tell his version culminating
in him going with
the police to the scene where they found the
deceased’s body where he had left it moments earlier.
20.
He denied the defence’ version to the
effect that the deceased is the one who argued with the men who were
hiking but refused
to get into the motor vehicle saying as a hiker
himself, he had no reason to do so. He also disputed that the accused
was the only
person who got out of the motor vehicle to confront the
men who were hiking. The fact that he had not consumed alcohol that
day
gave him certainty of what happened inside the motor vehicle, in
particular, the fact that the driver also consumed alcohol. For
the
duration that he was a passenger inside the motor vehicle, the
accused was driving normally. He could not tell with certainty
if the
motor vehicle would have hit him too had he not run into the bushes.
21.
Fhatuwani Andries Ndou
:
He is the witness that Johnson Chauke (Chauke) phoned to pick them up
after he and the deceased had alighted from the car driven
by the
accused. He confirmed Chauke’s evidence on what happened when
he arrived there and that he is the one who took Chauke
to the police
station.
22.
Warrant Officer Jeremia Manare Mabotja
:
He is a police officer with 25 years’ police experience and he
is stationed at Diepsloot. He testified that on 07 March
2015 he
visited the scene of the incident and later proceeded to the police
station where he organised the pathologists and a photographer
to
attend to the scene. He interviewed the accused after warning him of
his constitutional rights as the suspect. The accused confirmed
that
he was indeed the driver and that he was willing to make a statement.
23.
The accused informed him that he was from a
party in Cosmo City and that he was travelling in the company of the
people who were
outside the charge office at that stage. As he drove
along he gave a lift to the deceased who was in the company of
Chauke. He
told him that he drove further and came across other
people who were hiking. He stopped and offered them a lift. Some of
the passengers
inside his motor vehicle told him that there was no
more space. He then drove off. As he was driving, gunshots were fired
from
outside. One of his passengers indicated that he was hit with a
bullet. He then stopped and told the passengers that they had to
drive back to fight those people. He then drove back to face the
people who fired the shots at his motor vehicle.
24.
The accused further told him that as he
drove, some of the passengers complained to him that it would be
risky to go and confront
armed people while they were not armed.
After hearing this, he made another turn driving back to Diepsloot.
As he was driving,
he saw the people who fired the shots walking on
the side of the road. He drove his motor vehicle to them and knocked
down one
of them. Throughout this interview, the accused reeked of
alcohol and his speech was slurred. The accused also confirmed that
he
had consumed alcohol. He then informed the accused that he was
arresting him for driving under the influence of alcohol. He arrested
the accused between 00h30 and 00h45. Between 00h45 and 01h00, he sent
the accused for his blood to be drawn for alcohol tests.
25.
Tshifhiwa Emmanuel Musinyali
.
He is the investigating officer in this matter. He visited the scene
of the incident some four or five months later in the company
of
Chauke. His role was to draft the sketch plan which was accepted and
marked as Exhibit E.
26.
Constable Tshiamo Joseph Thapedi
:
He is the police officer who received the accused from W/O Mabotja
and took him for blood to be drawn at Lodium Health Centre.
They saw
the doctor around 02h20. The blood was placed in a forensic bag with
seal number AM814598. He handed over the forensic
bag to SAP 13
storage and it was registered under SAP 13 no. 179/2015
27.
With this evidence, case for the State was
closed.
Case
for the Defence:
28.
Jabulane William Matjeke
:
He is the accused. He testified that on 07 March 2015 he was from a
party in Cosmo City, driving to Diepsloot. They were seven
in the
motor vehicle. He was in the company of his friends Ignatius Phela &
Herman Seopa, his lover Marry Rammoki, his younger
brothers Kabelo
Matjeke & Phineas Matjeke and his cousin, Ngoana William Matjeke.
At the party he consumed three to five bottles
of Black Label beer
and he was under the influence of alcohol although he could
understand what was happening. He and Herman had
arrived at the party
around 11h00 and they left between 20h15 and 20h20.
29.
As he drove his car, he did not consume
alcohol. On the way, he stopped to give a lift to two people who were
hiking heading to
Diepsloot. When they entered his motor vehicle, he
realised that one of them was the deceased whom he knew as Rasta, a
fellow taxi
driver. He again stopped for three men who were hiking
also heading to Diepsloot. This he did after the deceased had
suggested
that he should stop and squeeze in those people. His Toyota
Venture was certified to carry only 10 passengers and there were nine
already. One of the men opened the front door and another opened the
rear one.
30.
There was an argument with the men who were
to have boarded at the back over the space in his motor vehicle. He
got out from his
motor vehicle and went to the back as he realised
their journey was not going to be pleasant. Once at the back he saw
that one
of the men was carrying a firearm facing down. He then went
back to the motor vehicle quickly. He saw from the mirror, a gunman
approaching his door. He immediately drove off fleeing. He heard
three gunshots, two of which hit his motor vehicle as he later
confirmed at the police station. After driving for a while, Herman
Seopa indicated that he was hit with a bullet on his right foot
and
he started to cry.
31.
Ignatius Phela (Phela) then indicated that
they could not just leave when someone had been shot suggesting that
they should go and
fight back. He then made a turn driving back. His
intention was not to revenge or fight back as suggested by Phela, but
to observe
the culprits so that he would be able to identify them to
the police later. Marry was also shot on her right foot, but at that
stage she was not aware of it. Only Marry was opposed to that idea of
driving back. Herman who was crying throughout only kept quiet
after
he made a turn to the scene of the shooting.
32.
Whilst driving, they kept arguing on
whether he should continue driving to the shooting scene or drive
home. By then he had also
calmed down. He made a turn and drove back
away from the shooting scene. After a short distance, Phela saw the
two men walking
on the right side of the road and shouted “here
are those people.” He looked up but did not see them; for the
car was
driving towards the bushes. This was caused by Phela who held
the steering wheel and forced it to turn. He could not apply the
brakes in time to stop the car. He heard the sound of the car
knocking something and it nearly capsized. When it stopped, they all
got out except Herman who was injured. They inspected to see what
caused the knocking sound but they found nothing. They pushed
the
motor vehicle back to the road and drove off.
33.
When Phela got back into the motor vehicle
he was carrying a grey wallet that the accused thought it was his own
wallet. As he drove
on, Phineas alleged that as they were pushing the
motor vehicle, Phela was busy searching a person. That information
did not sit
well with him. He however did not know who that person
was, for he was not aware that he had knocked a person at that stage.
He
then confronted Phela accusing him of turning the steering wheel
causing him to knock down a person. They then started arguing over
why he had searched a person.
34.
The argument led to a physical fight which
started when Phela hit him with a fist on his chest and he hit him
back. At that stage,
Phineas who was seated behind Phela grabbed him
(Phela) with an arm on the neck. He testified that while Phineas held
Phela by
the neck, he managed to search him. In his pocket he found a
grey wallet which had R50. The R50 note was torn into two in the
struggle
that ensued. He could not remember finding Phela’s
cell phone as he searched him. They drove up to Diepsloot Police
Station.
Phela kept turning causing the motor vehicle to hit the
concrete pots put on the sides of the road near the police station.
These
caused the motor vehicle to be damaged further breaking its
head lamp.
35.
He confronted Phela as to why he would
cause all these he responded that he wanted the accused to be like
him as he had been in
prison. At the police station he waited his
turn to be served. As he waited, a man entered the police station and
he recognised
that man as the person who was carrying a firearm at
the hiking spot. This man was later known as Chauke. He then told his
companions
that the said man was the one who was carrying a firearm.
His companions confirmed that he was indeed the same person.
36.
The moment Chauke gave his report to the
police; the accused explained that Chauke was the one who held a
firearm at the shooting
scene. Chauke however denied this saying he
is the one who was with Rasta, the deceased. Only then did he realise
that he was indeed
the man who was with the deceased. Up until then
he was not aware that the deceased was no longer in their company. He
did not
see the deceased alight from the motor vehicle. He then asked
Chauke where Rasta was. Chauke responded saying the person bumped
by
the accused was Rasta. The accused testified that upon hearing that,
he was so concerned that he felt like fainting.
37.
He testified that he had a turn to tell his
side of the story. The police realised that he reeked of alcohol.
They were not interested
in hearing from him, so they took him to the
other side of the wall and handcuffed him. It was there where W/O
Mabotja found him
and asked as to what happened and he explained. He
could not recall if he told W/O Mabotja that he drove back in order
to observe
the gunman since he was shocked that he knocked down a
person he knew. He denied telling W/O Mabotja that he drove after the
deceased
until he bumped him.
38.
He denied that he took R220 from Phela. He
denied having been in possession of a knife. He admitted having
punched Phela and that
he sustained a swollen eye. He also admitted
that Phela bled from the head after he hit him with a fist that had a
ring in one
of the fingers. He disputed that he was travelling at a
high speed saying he was driving at 40 km/h. He also testified that
he
only heard that Kabelo paid the money to Phela when he was
released from prison. Kabelo told him that this happened after Phela
came to his place to demand money.
39.
Kabelo Matjeke
(Matjeke)
also testified for the defence. He is a younger brother to the
accused, born of the same mother. At the time he gave evidence
he
resided with the accused in the same yard but not the same house. He
was one of the passengers in the taxi driven by the accused
that
night. His evidence corroborated that of the accused and as such I
see no reason to repeat the same here, except where necessary.
40.
He also testified that he was seated
between Marry and Phineas on a seat behind the front one. He could
not hear everything discussed
between the accused and Phela. He did
hear Phela shout, ‘here are those people’ but did not see
them because he immediately
bent his head down to avoid being hit in
case the said people would shoot again. He did not see or hear the
sound of a motor vehicle
collide with anything except when hitting a
ditch where it finally stopped. He also testified that although he
did not see the
man who fired shots at the hiking spot, when the
accused pointed out Chauke as the said person, he and other
companions confirmed
to the accused that he was indeed the said
person. In so doing, he admitted that they were falsely accusing
Chauke.
41.
With this evidence,
case
for the defence
was closed.
42.
Closing
Address:
The
State’ counsel addressed the court asking for conviction in
respect of counts 1, 2 & 3. He submitted that in respect
of count
1, evidence showed that the accused premeditated the commission of
the crime of murder. He conceded that a conviction
could not stand in
respect of the remaining counts for reasons that it would be
duplication of the charges. The defence’
counsel submitted that
the accused should be acquitted in respect of all the charges. The
reason for this was that Phela, the key
State witness was too drunk
and as a single witness, he was unreliable.
43.
It
is
trite
law
that for a conviction to follow, the State must prove its case beyond
a reasonable doubt. It is part of this dictum that there
is no duty
on the accused to prove his innocence and that in case there is a
version for the defence, and should the same be reasonably
possibly
true, he would be entitled to an acquittal. These are not separate
and independent tests, but the expression of the same
test ('the
proper test') when viewed from opposite perspectives. In order to
convict, the evidence must establish the guilt of
the accused beyond
reasonable doubt, which will be so only if there is at the same time
no reasonable possibility that an innocent
explanation which has been
put forward might be true. The two are inseparable, each being the
logical corollary of the other. In
whichever form the test is
expressed, it must be satisfied upon a consideration of all the
evidence –
S
v Van der Meyden
[3]
.
44.
This
approach has been referred to with approval in a number of decisions
handed down by both the High Courts and Supreme Court
of Appeal. In
S
v Combrink
[4]
,
Shongwe JA said “
It
is trite that the state must prove its case beyond reasonable doubt
and that no onus rests on an accused person to prove his
innocence.
The standard of proof on the state and the approach of a trier of
fact to the explanation proffered by an accused person
has been
discussed in various decisions of this court and of the high courts
(see
R
v Difford
;
[5]
S
v
Van der Meyden
[6]
).
It suffices for present purposes to state that it is well settled
that the evidence must be looked at holistically.”
45.
It is common cause
that
the accused was the driver of a Toyota Venture that knocked down and
caused the death of the deceased. He was behind the steering
wheel at
the time of the impact. At that stage, there were seven occupants in
the motor vehicle including the accused, Matjeke
and Phela. It was
Phela who after the collision, got into the motor vehicle carrying a
wallet belonging to the deceased. An argument
ensued between Phela
and the accused over that wallet or the contents thereof culminating
in a physical brawl in which the accused
punched Phela who
consequently sustained a swollen eye and an open wound on the head.
The accused also searched Phela while driving,
with the help of
Phineas who while seated behind Phela, managed to grab him on the
neck from behind using his arm.
46.
All the occupants of the motor vehicle at
the time of collision had consumed alcohol that day. The driver drove
the motor vehicle
well or normally. He had a confrontation with the
men who were refusing to board his motor vehicle after he had stopped
for them.
The confrontation led to him fleeing in a motor vehicle
while one of the said men fired three shots, two of which hit his
motor
vehicle. Upon realising that one of the passengers was injured,
the accused drove back to the spot where the shots were fired. When
the men could not be found, he drove back. It was as he drove back
that his motor vehicle was made to collide with the deceased
who was
walking with Chauke on the right hand side of the road.
47.
It is further common cause that Chauke and
the deceased had been passengers in the said motor vehicle having
been offered a lift
shortly before they could reach the hiking
spot where shots were fired. The two were still passengers in the
motor vehicle
when a decision was taken to drive back to the shooting
scene, and they decided to rather alight than to risk the danger of
being
shot at. It is further common cause that when the accused saw
Chauke at the police station, he accused him of being the person who
together with his companion, fired shots at him or his motor vehicle.
48.
Issues for determination
:
Was the accused on duty as he drove his motor vehicle that evening?
Counsel for the defence argues the relevancy of this aspect
in that
the minimum quantity of alcohol acceptable in the blood system of a
professional in terms of Act 93 of 1996 (the National
Road Traffic
Act), applies only if the said professional driver is on duty. There
is dispute further as to whether Phela wanted
the accused to drive
back to the shooting scene or he was opposed to that.
49.
There is also a dispute as to why the
accused finally turned the motor vehicle and drove to the shooting
scene. Either he drove
back in order to go and avenge the shooting,
or he merely wanted to observe the face of the assailant so he could
identify him
to the police. Was it the accused who deliberately aimed
his motor vehicle into bumping the deceased or it was Phela who took
control
of the steering wheel causing the motor vehicle to swerve out
to knock him? Was anything taken from Phela by the accused when he
searched him?
50.
Inadmissible
evidence:
Evidence
was led through W/O Mabotja on the report that was made to him by the
accused. In closing address, the defence submitted
that such evidence
should be declared inadmissible because it amounted to a confession
and a number of prerequisites for a valid
confession were missing.
The said statement is to the effect that when the accused saw the
deceased and Chauke walking, he charged
unto them into the bushes
until he bumped into the deceased. The State conceded that such a
statement amounted to a confession
and is inadmissible.
51.
In
criminal trials defence’ counsel needs to stand guard against
inadmissible evidence being led. It is incumbent on the defence
to
object so the court is able to rule on the admissibility of such
evidence before it is on record. One would expect that with
the
common practice that the contents of the docket are disclosed before
the trial, the defence would be on alert as to what evidence
each
witness is likely to give when called to testify. In that case the
court can be informed well in advance that the admissibility
of
evidence or a portion thereof is contested. In so doing, a trial
within a trial could be held for the determination of the
admissibility of such evidence.
[7]
52.
The
duty to avoid inadmissible evidence is not exclusively on the
defence’ shoulders. The public prosecutor’s paramount
duty is to help the court to ascertain the truth and arrive at
justice as opposed to securing a conviction at all cost.
[8]
Had both counsel been alert to their responsibilities during trial,
the court would not be faced with having to sift the evidence
on
record to declare on its admissibility at this stage of the trial. It
is however not uncommon for the courts to have to rule
on the
admissibility of the evidence on record; for judicial officers, by
reason of their training and experience can disabuse
their minds of
any irrelevant personal beliefs, inadmissible evidence or
predispositions.
[9]
53.
A
confession
is an unequivocal acknowledgement of guilt which, if it were made in
a court of law, would amount to a plea of guilty.
[10]
There is no doubt that the alleged statement is an admission of all
the elements on a crime of murder or at least other crimes
that are
competent verdicts in respect of that charge.
[11]
Sec 217 of Act 51 of 1977 (the Criminal Procedure Act) provides,
217.
Admissibility of confession by accused
(1) Evidence of any
confession made by any person in relation to the commission of any
offence shall, if such confession is proved
to have been freely and
voluntarily made by such person
in his sound and sober senses
and without having been unduly influenced thereto, be admissible in
evidence against such person at criminal proceedings relating
to such
offence: Provided -
(a)
that a confession made
to
a peace officer
,
other than a magistrate or justice or, in the case of a peace officer
referred to in
section
334
,
a confession made to such peace officer which relates to an offence
with reference to which such peace officer is authorized to
exercise
any power conferred upon him under that section, shall not be
admissible in evidence unless confirmed and
reduced
to writing in the presence of a
magistrate
or
justice
;
and… [
own
emphasis
]
54.
Given the fact that the accused was
admittedly not sober when W/O Mabotja interviewed him, his rank and
that it was not reduced
to writing, this should explain why the
State’ counsel made a concession, and I think rightly so. The
piece of evidence in
contention is therefore declared inadmissible
and the court would not have to attach any weight on it for purposes
of judgment.
55.
Single
witness:
It
is so that Phela is a single witness in respect of all the charges
the accused faces. When faced with evidence of a single witness,
cautionary rules have to apply – see
R
v Mokoena
[12]
.
In that matter, De Villiers JP pointed out that for evidence of a
single witness to bring about a conviction it must be satisfactory
in
all material respect. However, in
S
v Sauls and Others
[13]
,
the Appellate Division pointed out that “the cautionary rule
may be a guide to a right decision, but it does not mean that
the
appeal must succeed if any criticism, however slender, of the
witness’ evidence was well founded.” To this end,
the
Appellate Division held that the cautionary rule does not replace
common sense. In holding this, the appeal court was amplifying
section 208 of the Criminal Procedure Act which provides that
conviction may follow after evidence of a single competent witness.
56.
Credibility:
Just
like all the cases where the State’s version is on the opposite
end of the field as compared to that of the defence,
the case stands
or falls on the credibility of the witnesses. Phela proved to be a
credible and reliable witness. After he was
subjected to lengthy
cross examination, he remained steadfast to his version and was able
to demonstrate how illogical the defence
version was, as it was put
to him. He did not show any bias against the accused. In fact he
enjoyed a cordial relationship with
the accused who he described as
being close to him from their days at school and their mothers being
close to each other. At some
stage he even wanted to withdraw the
charges he had laid against the accused but the prosecution declined.
57.
He could have exaggerated the case against
the accused by claiming that the accused took his cell phone which
would only be in line
with common sense, but he opted not to, saying
he did not see him take it out of his pocket. He did not just give
evidence painting
the accused in black and placing himself on holy
ground. Where necessary, he placed himself in the wrong like when he
testified
on how he joined the accused to go and confront the hikers
who were refusing to enter the motor vehicle. Surely that was an act
of provocation or aggression on the people who had a right to choose
if they wanted to be passengers in the motor vehicle driven
by the
accused, especially when it would be overload.
58.
Phela’s version of events is in line
with all the undisputed facts. The accused’s version on the
other hand lacks common
sense and logic and it is not in line with
the undisputed facts. The accused wants the court to believe that he
was not on duty
or driving his motor vehicle for financial gain, yet
the reason for this fiasco is that he desperately wanted passengers
who would
pay him even though he did not have space for them to sit
in the motor vehicle.
59.
The accused further wants the court to
accept that he drove back in order for him just to observe the man
who fired shots at him,
yet he testified that when he left the
shooting scene, he had seen the gunman very well. I do not see a need
to observe this armed
man for the second time irrespective of the
risks involved, unless there were extra reasons. Phela’s
version that it was
the accused who decided to drive back so he could
revenge, finds corroboration from Chauke who at that time was still a
passenger
in the motor vehicle. Chauke indicated that the deceased
opted that they should get out of the motor vehicle after he failed
to
persuade the accused that he should not drive back.
60.
The accused also claims that he was driving
at 40 km/h on a straight road when Phela brought to his attention
that there were people
on the road. The court finds it improbable
that if such was to have happened, the accused would fail to see the
said pedestrians
since he was facing the same direction they were. In
fact he was in a better position to see them since they were on the
right
and the motor vehicle is right hand driven.
61.
It is also highly improbable that as Phela
forced the motor vehicle to drive across the centre line, the
oncoming lane and then
to the deceased who was out of the road,
travelling at that speed, he would fail to timeously apply the brakes
for the motor vehicle
to stop. The version by both the accused and
his brother Matjeke to the effect that even after the collision, they
did not know
they had hit a person is not only contradicted by Phela,
but also by Chauke who while he remained hiding, he could hear the
accused
and his companion ask each other as to “where are
they?”
62.
The fact that none of the other six
passengers in the motor vehicle observed Phela grab the steering
wheel to cause it to collide
with the deceased leaves the accused’s
version more than just suspicious. Five of those passengers happened
to be his relatives.
The court struggles to understand the cause of
the fight between the accused and Phela after the collision, on the
version of the
accused. The accused claims to have been touched by
the allegation that Phela was searching a person, yet he did not know
who the
person was or under what circumstances that person was
searched, especially if this would lead to a physical fight.
63.
Phela’s version to the effect that he
was attacked because the accused believed that he was handing over a
wallet after emptying
it first makes sense; for this can be a reason
for people to fight. Phela’s version is in line with Chauke’s
in that
Chauke alleges that the motor vehicle occupants did not
search and find the body of the deceased. There is no way therefore
that
Phela could have searched the deceased. Chances of such
allegation being made by Phineas albeit false appear to be unlikely.
Even
if it was made, it clearly would be false and therefore not
justifying any deed of taking anything from Phela
64.
For these improbabilities, the court cannot
find the accused and Matjeke as credible witnesses. Had the collision
been caused by
Phela as testified by the accused, one would have
expected that the accused would have told this to the police at the
earliest
possible stage. Instead, just as Chauke testified, the
accused informed the police that he knocked down a person who was
shooting
at him. This version is more in line with what Phela and
Chauke said that the accused drove back in order to avenge the
shooting
of his companion and he did this using a motor vehicle.
65.
The accused also alleged that as they
continued arguing, while he drove back to the shooting scene, he was
convinced that he should
turn back since he had by then cooled a
little. But when he was pressed for answers, he alleged that he drove
to the shooting scene
and did not find the men and as a result, he
drove back towards Diepsloot. This is clearly a contradiction.
66.
The court finds
that
the accused drove back the motor vehicle with the sole intention to
knock down the man who had shot at his motor vehicle. The
court also
finds that the accused was under the mistaken belief, as he still was
when he saw Chauke at the police station, that
Chauke and the
deceased are the men who fired shots at his motor vehicle. For this
reason, the accused did what he had driven back
to do, which was to
avenge the shooting of his companion. The court also accepts Phela’s
version that his own cash was taken
by the accused who was under the
mistaken belief that Phela had emptied the wallet instead of giving
it with all its contents.
67.
There is therefore no evidence that the
accused drove the motor vehicle under the influence of alcohol, or
recklessly. To the contrary,
Chauke who had not consumed any alcohol
alleged that the motor vehicle was driven well. The court is also of
the view that this
could be a duplication of charges. The accused
either intentionally used his motor vehicle as a weapon or an
instrument to commit
murder; or he caused the death because of being
under the influence of alcohol.
68.
If the court accepts Chauke’s version
that he only ran away after the deceased was already knocked down, it
cannot be that
had he not fled, the accused would have bumped him.
The reason why Chauke remained in hiding after the collision could be
that
he feared that the accused would drive the motor vehicle again
and knock him down too. This however does not mean that in the same
collision that killed the deceased, the accused also wanted Chauke to
be knocked down.
69.
The court accepts that the crime of
contravening sec 65 (2) (d) of the National Road Traffic Act can be
committed in conjunction
with other crimes that the accused faces in
count 1, 2 and 3. However sec 65 (3) of the National Road traffic Act
provides,
If,
in any prosecution for an alleged contravention of a provision of
subsection (2), it is proved that the concentration of alcohol
in any
specimen of blood taken from any part of the body of the person
concerned was not less than 0,05 gram per 100 millilitres
at any
time within two hours after the alleged contravention
, it shall
be presumed, in the absence of evidence to the contrary, that such
concentration was not less than 0,05 gram per 100
millilitres at the
time of the alleged contravention, or in the case of a professional
driver referred to in section 32, not less
than 0,02 gram per 100
millilitres, it shall be presumed, in the absence of evidence to the
contrary, that such concentration was
not less than 0,02 gram per 100
millilitres at the time of the alleged contravention. [
own
emphasis
]
70.
This
lacuna should explain why the State abandoned its push for a
conviction on the alternative charge to count 5 given the hours
that
lapsed from the last time the accused was behind the steering wheel
until blood was drawn from him. The calculation of two
hours does not
start at the time of arrest as W/O Mabotja suggested in his evidence,
but from the time the suspect was in the driver’s
seat while
the engine was running, unless the time of arrest is the same time
the driver was in the driver’s seat while the
engine is
running.
[14]
71.
According to Phela, the deceased may have
been knocked down around 22h00 and they arrived at the police station
with the accused
driving the motor vehicle between 22h00 and 22h30.
The blood should therefore have been taken from the accused by no
later than
00h30. According to Const Thapedi, blood was only drawn
from the accused at 02h20. This count cannot stand. For these reasons
the
question on whether the accused was on duty does not arise for
purposes of a conviction, but surely plays a role on the credibility
finding as highlighted above.
72.
It is clear from the facts that alcohol may
have had a minimal role in influencing the accused that evening. This
could explain
why both the accused and Phela did not notice Chauke
and the deceased alight from the motor vehicle. The possibility that
the deceased
and Chauke may have sneaked out to avoid further
confrontation with the visibly irritated accused cannot be excluded
either. There
is however no evidence to suggest that his criminal
capacity was impaired or diminished in any manner. This was not even
alleged.
73.
What is certain is that the accused drove
back after uttering the words to the effect that he could not just
drive away and leave
the people who injured his companion. He further
indicated that he planned to drive into them. The accused may not
have desired
to knock down and kill his colleague whom he referred to
as Rasta. He however drove back with the intention to do what he did
which
was to drive into the person he believed fired shots at his
motor vehicle moments earlier. Even after the impact, the accused
still
believed he knocked down the person who fired the shots, as he
declared to his companions at the police station.
74.
The
identity of the victim is immaterial on a charge of murder. In
Director
of Public Prosecutions, Gauteng v Pistorius
[15]
the
court of appeal held,
“
What
was in issue, therefore, was not whether the accused had foreseen
that Reeva might be in the cubicle when he fired the fatal
shots at
the toilet door but whether there was a person behind the door who
might possibly be killed by his actions. The accused’s
incorrect appreciation as to who was in the cubicle is not
determinative of whether he had the requisite criminal intent.
Consequently,
by confining its assessment of
dolus
eventualis
to whether the accused had
foreseen that it was Reeva behind the door, the trial court
misdirected itself as to the appropriate
legal issue.”
75.
What made the Supreme Court of Appeal to
find that Mr. Pistorius had the criminal intent in the form of
dolus
eventualis
is not his lack of knowledge
of who was behind the door, whether it was the intruder or Reeva; but
his reconciliation with the
possibility that there could be a person
who may die when he fires the shots into the door. In this case, the
accused did not have
to reconcile himself with any possibility
because he formed a direct intent to kill and he drove into a man
that he indeed killed,
only to find he killed the wrong man. The
mistake in the identity cannot alter the fact that he had formed
dolus directus
to commit murder.
76.
Premeditation:
The
last aspect is whether there was any premeditation as argued by the
State. In evaluating if murder was premeditated; the period
between
the accused forming the intention to kill, and its carrying out is of
cardinal importance, but not determinative of premeditation.
[16]
In my view, the difference between murder committed in a spur of the
moment compared to premeditated murder is not about the period
that
lapses between the forming of the intention and executing it, but the
opportunity one has to change one’s mind. Had
the accused
killed the man who fired shots at him or a member of that group at
the time of the shooting; that would have been committed
without any
premeditation on his part.
77.
In
S
v Mgibelo
[17]
Mudau AJ (as he then was) did not attach much weight to the 16 hours
that lapsed from the incident that could be said to be the
provocation of the accused (finding her lover with another woman in
bed) to the time she committed the murder; but the opportunity
she
had to change her mind after making that decision. When one is
provoked and decides to kill there and then, he or she lacks
the
opportunity to decide and consider whether to change that decision
while away from the scene of execution. I am satisfied therefore
that
the accused had moved away from the shooting scene and no one was in
danger at that stage. The accused stopped on the side
of the road
which allowed the deceased and Chauke to alight. At that stage, the
accused planned the murder and how he would execute
it. At that
peaceful moment on the side of the road, he also had the opportunity
to change his mind and not go ahead with his plans.
He however
decided to drive back in search of the person he had decided to kill.
That in my view was premeditation to commit murder.
78.
The court finds that the case for the State
was proved beyond a reasonable doubt and that the version of the
defence is improbable.
The defence’ version is as such rejected
as not being reasonably possibly true.
79.
The accused is found Guilty as charged
in respect of counts 1 & 3. He is however found Not Guilty in
respect of counts 2, 4
& 5.
Section
51 (1) and 51 (2) of Act 105 of 1997 is applicable in respect of
counts 1 and 3 respectively.
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Dates
Heard: 25 & 31 May; 01 & 02 June 2016
Judgment
Delivered: 03 June 2016
For
the State: Adv. Mkhari
Instructed
by: Director of Public Prosecutions
Johannesburg
For
the Accused: Adv. Mncwango
Instructed
by: Legal Aid South Africa
Johannesburg
[1]
S
v Chretien
1979
(4) SA 871
(D) and
S
v Chretien
1981 (1) SA 1097
(A)
[2]
Macbeth,
Act II Scene III.
[3]
1999
(1) SACR 447
(W)
[4]
2012
(1) SACR 93
(SCA)
[5]
1937
AD 370
at 373
[6]
Supra
at
448F-I
[7]
S
v Magwaza
2016 (1) SACR 53
(SCA)
[8]
S
v Maliga
2015
(2) SACR 202
(SCA) at 208G
[9]
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999] ZACC 9
;
1999
(7) BCLR 725
(CC) at para 40.
[10]
R
v Becker
1929
AD 167
[11]
See
sec 258 of Act 51 of 1977.
[12]
1932
OPD 79
[13]
1981
(3) SA 172
(A) at 180 E
[14]
S
v Tentelil
[2003]
1 All SA 327
(C)
[15]
(96/2015)
[2015] ZASCA 204
(3 December 2015) at para 32.
[16]
S
v Raath
2009
(2) SACR 46
(C)
[17]
2013
(2) SACR 559
(GSJ)