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[2017] ZAGPJHC 238
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S v M (171/2016) [2017] ZAGPJHC 238 (25 August 2017)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 171/2016
DPP
REF
:
10/2/1-165/2016
In
the matter between:
THE
STATE
and
M
,
M
Accused
JUDGMENT
ADAMS
J
:
[1].
This criminal
trial relates to the death of a young man, an innocent bystander, who
was literally caught in the cross – fire
between his mother and
her husband. The incident happened on Thursday, the 22
nd
of September 2016 – another day … another senseless
killing in the Republic.
[2].
Mr Mandla
George M (‘Mr M’) is a 34 year old man, who is charged
with a first count of murder, read with section 51(1)
and schedule 2
of the
Criminal Law Amendment Act 105 of 1997
, in that on or about
the 22
nd
September 2016 and at or near Doornkop, Soweto, he unlawfully and
intentionally killed S X (‘the deceased’), a minor
male.
There is no allegation in the indictment or the summary of the
substantial facts that the murder was planned or premeditated.
Mr
M
pleaded not guilty to this charge and, through Mr Pillay, who
appeared on his behalf in this matter, gave an explanation in terms
of section 115 of the Criminal Procedure Act, 51 of 1977
(‘the
Act’),
which disclosed the basis
of his defence. I shall return to that s 115 statement shortly.
By virtue of the provisions of s
51(1) and schedule 2 of the
Criminal
Law Amendment Act 105 of 1997
, there is applicable a minimum sentence
of imprisonment for life in the event of Mr M being convicted of pre
– meditated
murder as contemplated in the aforesaid
s 51(1)(a)
of the said Act. If it is found that that the murder was not planned
or premeditated than there is also applicable a minimum sentence
in
terms of s 51(2).
[3].
The second
count against Mr M is that of unlawful possession of a firearm, in
contravention of s 3 read with s 120(1) and 121, read
with schedule 4
of the
Firearms Control Act 60 of 2000
and s 250 of the Act, in that
on or about the 22
nd
of September 2016 and at or near Doornkop Mr M did unlawfully have in
his possession a firearm, the calibre of which is unknown
to the
State, without being the holder of a valid licence, permit or
authorization to possess such a firearm. Mr M pleaded guilty
to this
charge, and although he did not give a written statement in terms of
s 112(2) of the Act, Mr Pillay confirmed that the
plea of guilty was
in accordance with his instructions. Furthermore, and in response to
questions by me, Mr M confirmed that he
understood the nature of the
charge against him and that he pleaded guilty freely and voluntarily.
On the basis of his plea of
guilty and his s 112(2) explanation, I am
satisfied that Mr M is guilty on count 2 and he stands to be
convicted accordingly.
[4].
Count 3 is
that of unlawful possession of ammunition, in contravention of s 90
read with s 120(1) and 121, read with schedule 4
of the
Firearms
Control Act 60 of 2000
and s 250 of the Act, in that on or about the
22
nd
of September 2016 and at or near Doornkop Mr M did unlawfully have in
his possession ammunition, the calibre and quantity of which
are
unknown to the State, without being the holder of: (a) a valid
licence in respect of a firearm capable of discharging that
ammunition; (b) a permit to possess ammunition; (c) a dealer’s
licence, a manufacturer’s licence, gunsmith licence,
import,
export or transit permit or transporter’s permit issued in
terms of Act 60 of 2000, or being otherwise authorised
to possess
such ammunition. Mr M also pleaded guilty to this charge, and again
he did not give a written statement in terms of
s 112(2) of the Act.
However, Mr Pillay confirmed that the plea of guilty in respect of
this charge was in accordance with his
instructions. Furthermore, and
in response to questions by me, Mr M confirmed that he understood the
nature of the charge against
him and that he pleaded guilty freely
and voluntarily. On the basis of his plea of guilty and his s 112(2)
explanation, I am satisfied
that Mr M is guilty on count 3 and he
stands to be convicted accordingly.
[5].
The plea of
not – guilty in respect of the charge of murder was confirmed
by Mr Pillay as being in accordance with his instructions.
The s 115
explanation was tendered orally from the bar by Mr Pillay on behalf
of Mr M, who admits that he shot and killed the deceased
whilst under
the influence of alcohol, he having consumed seven ‘quarts’
(750ml) of ‘Hansa’ beers during
the course of the day. He
was extremely depressed after he had been involved in a fight with
his wife. He also indicated that he
made a statement to a Colonel
Duma shortly after the incident in question, but he had never had
sight of the statement until it
was shown to him by Mr Pillay on the
15
th
May 2017. Up to and until then, he had never seen that statement,
although he admits having signed it. He denies that the statement
correctly records what he told Colonel Duma on the day the statement
was made by him. What he narrated to Colonel Duma and what
the
statement conveys as what he told Duma are not the same. The
statement was never read back to him and the contents thereof
never
confirmed with him. In conclusion it was confirmed by Mr M, via Mr
Pillay, that he was extremely sorry for what he had done.
It was
never his intention to do what he did.
[6].
Mr M made a
number of admissions in terms of
s 220
of the
Criminal Procedure Act
51 of 1977
and these admissions were recorded by me as such with the
consent of Mr M. These admissions are contained in exhibits ‘A’,
which incorporated by reference exhibits ‘B’ to ‘E’.
In summary, Mr M admitted that S X is the deceased
person mentioned
in the indictment, and that he died on or about the 22
nd
September 2016 at or near Doornkop. He also admits that the body of
the deceased sustained no further injuries from the time he
sustained
the injuries inflicted on or about the 22
nd
September 2016 until the post – mortem examination was
conducted by Dr P J Klepp on the 22
nd
September 2016. Mr M also admits that the findings and observations
of Dr Klepp as recorded in his post – mortem report dated
the
22
nd
of September 2016, are all correct. The autopsy and related
admissions are contained in exhibit ‘B’. Exhibit ‘C’
is a photo album, compiled by Warrant Officer Isaiah Mahlangu,
containing photographs depicting the scene of the crime where the
body was found, including some pictures depicting the body of the
deceased as found on the scene, and Mr M admits the truth and
contents thereof. It is also admitted by Mr M that on the 22
nd
September 2016 Ms N X retrieved a spent bullet from the inside
of a pillow on which the head of the deceased was resting
at the time
he was killed. On the 23
rd
September 2016 she handed this bullet to the investigating officer,
Constable Motha, who, in turn, sealed the bullet into a seal
bag no
PA5001750053 and booked same into SAP13 no 2465/16. Exhibit ‘D’
is a copy of SAP 13. Mr M furthermore admits
that on the 12
th
October 2016 Constable Motha forwarded the bullet in the sealed bag
under seal no PA5001750053, to the Forensic Science Laboratory
for
analysis, and that this exhibit was not tempered with from the time
it was received by Constable Motha until the time it was
handed in
for analysis at the Forensic Science Laboratory.
[7].
It is further
admitted by Mr M that on the 8
th
of November 2016 Warrant Officer Jason Errol Van Eeden, a Forensic
Analyst, conducted an examination and identification of the
bullet,
pursuant whereto he prepared and compiled a Ballistic Report, which
was exhibit ‘E’. The correctness and truth
of the said
report are admitted by Mr M, which includes a finding that the spent
bullet found at the scene was of a 9mm calibre.
[8].
The net effect
of these latter admissions is that, by agreement between the State
and the Defence, it became common cause that the
deceased died from a
single gunshot wound to the head, fired by Mr M.
[9].
In substantiation of the charges
against Mr M the State had tendered the evidence of four witnesses,
namely: Ms T N
(‘T’),
N X
(‘N’)
,
Warrant Officer Sipho Mdletshe
(‘Mdletshe’)
and Lieutenant Colonel Duma
(‘Duma’).
What follows are summaries of the pertinent and relevant details that
emerged from the evidence in chief and cross – examination
of
each witness.
[10].
T was the first witness called by
the state. She is sixteen years old, and she is the ‘adopted
daughter’ of the
wife of Mr M, that being N. She is presently
in grade 11 at school. I questioned her with a view to satisfying
myself that she
understood the importance and the seriousness of the
oath, and after hearing her responses to my questions I was satisfied
that
she indeed appreciated the exigency of giving truthful evidence
after having taken the oath.
[11].
She confirmed that the deceased was
known to her, and explained that he was the eldest son of the person
whom she regards as her
mother, that being N.
She also knows
Mr M as the husband
of her mother, but she does not regard him as her father.
[12].
She testified
that before
Thursday, the 22
nd
of September, 2016, the last time that she had seen the deceased
alive was on the previous evening of Wednesday, the 21
st
September 2016, shortly before he went to sleep, which was at about
after 22H00. At that stage the deceased was busy listening
to music
and sitting in the dining room, whilst she was busy washing dishes in
the kitchen. At some point at about the same time
Mr M came home, did
not greet any of them and went straight to the bedroom. Shortly
thereafter he left again after slamming the
door shut on his way out.
She thought that he was angry as he did not greet them, which is what
he normally did when he was angry
[13].
After Mr M had
stormed out the house, the
deceased
went to sleep in the lounge where he had made a bed on the floor. The
witness finished washing the dishes, and by about
24H00 she also went
to bed. By then the deceased was busy sleeping on the floor in the
lounge on his makeshift bed.
[14].
About ten minutes after she had gone
to bed, the witness heard someone entering the house. Immediately
thereafter she heard the
sound of a gunshot, whereafter she heard
this person leaving the house again. At some stage whilst he was
leaving T heard this
person use an expletive, suggesting that he was
angry.
The
witness then went to the lounge, where she found the deceased
bleeding from a head wound and she said that by then he was dead.
She
found him in the same place where she had left him sleeping earlier
on in the evening. After seeing the deceased lying there,
the witness
took her phone and went back to the bedroom. She attempted to
communicate with her mother by sending her a message,
to which she
did not receive a reply.
At this stage the witness did not
know where her mother was. She then started praying. At some point
she again came out of the bedroom
and, after she jumped over the body
of the deceased, she went out of the house through the kitchen door
to the house of their next
– door neighbours. From there she
called the police and then again tried contacting her mother, who she
was then able to
make contact with. The police arrived after a short
while and her mother thereafter.
When she went to the house of the
neighbours, she did not see Mr M or his vehicle anywhere.
[15].
She confirmed that the Mr M had been
known to her for a long time, ever since when she was younger. She
explained that when Mr M
arrived home at about 22H00 ‘he did
not seem okay’. It looked like he was angry. She noted that he
was angry because
he was the type of person, when angry, he would not
greet them. She expressed the view that he was seemingly walking
okay, implying
that he was not disorientated or particularly drunk.
She explained that when she went to bed at about 24H00 the doors of
the house
were not locked. This was so because, at that stage, Mr M
was not home yet, and usually when he was not home, they did not lock
the doors. When Mr M arrived home after midnight, she was of the view
that he had left the car outside the yard. When she went
to the
neighbours she couldn’t see either Mr M or the car.
[16].
The witness explained that when Mr M
came back the second time at about 24h00 there was no communication
between him and the deceased
as the deceased was asleep at that
stage. There was no noise emanating from the lounge / dining room
where the deceased was fast
asleep. If they had been communicating,
she would have heard them from the bedroom where she was sleeping,
but she heard nothing.
With reference to the photographs in
the exhibit ‘C’ T confirmed that these photographs depict
the deceased after he
had been shot by Mr M.
[17].
Under cross examination, the witness
confirmed that the last time she saw her mother was on the Monday
night of the 19
th
of September 2016. The incident happened on the Thursday, the 22
nd
September 2016. She could not tell where her mother had been on the
Tuesday.
On
a question whether it was usual for her mother to be absent from home
for long periods of time, she responded that it did happen
from time
to time that her mother would leave them, including the small
children, and disappear for a period of time without telling
anybody
where she had gone to.
Sometimes, according to the witness,
her mother would go to other towns in order to buy stock, that is
clothing to be sold in her
clothing business. The witness confirmed
that her mother did not sleep at home on the Monday before the
incident neither on the
preceding weekend. She saw her the last time
on Monday, thereafter she left with the little one, the one year old
child.
[18].
As far as the relationship between
Mr M and her mother is concerned, the witness indicated that it
looked like there was tension
between them and they were not on good
terms. She confirmed that she was expecting her mother to return home
on the Monday. She
also confirmed that on the evening of the incident
in question, that being the Wednesday, the 21
st
of September 2016, she went to bed late at only about 24H00. She
confirmed that her mother had phoned her on the Wednesday morning,
that being on the 21
st
September 2016, and requested her to go and collect the infant from
the crèche in the afternoon. However before that, she
was
supposed to check whether Mr M had collected the baby from the
crèche, and if not, she was supposed to go and collect
the
child. She did not ask her mother where she was at that stage.
[19].
She reiterated
under cross – examination that a
t
about 22H00 on that fateful evening when Mr M came home, the deceased
was sitting in the dining room and she (T) was in the kitchen
washing
the dishes. Mr M was angry and he did not greet those of them he
found at home when he arrived there. She further testified
that at
some stage she heard him leave the house.
[20].
It was put to the witness that Mr M
will say that he came home at about 20H00, and enquired from the
witness whether the small child
had been fed. Her response to this
proposition was that Mr M did not speak to her at all. In any event,
so the evidence of the
witness went, the baby had been fed shortly
after she had been dropped off by Mr M at about 20H00. On a question
by the court,
T indicated that on the night of the shooting she could
not see whether Mr M was drunk or not.
[21].
The next witness for the State was N
X. She confirmed that the previous witness, T, she regards as
her child, although she
is not her biological mother. She explained
that after T’s mother passed away, she took her in and she had
been living with
her since then. She took T in during 2014. The
witness confirmed that Mr M is her husband and that they have been
together since
2004. They were renting an RDP house at R1500 per
month. She explained that they stayed there with their five children,
whose names
are the following: the deceased, T, Surprise, Nobelo and
Molebule.
[22].
She confirmed that, but for T (T),
the other four were all her children. On a question as to where she
was on the night of the 21
st
September, 2016, she confirmed that she was in Nancefield in Soweto,
staying at a friend’s place. She explained that before
then,
she had gone to Vryheid, and on her way home she went via Witbank and
from there to Nancefield. She arrived in Nancefield
on Monday, the
19
th
September 2016, in the afternoon and at about 18H00 she went home in
Snake Park in Soweto. From there she left and went back to
Nancefield.
After she
arrived in Nancefield, s
he switched
her phone off so that Mr M could not reach her.
[23].
When she woke up the next morning
she received messages from Mr M, accusing her of having taken the
child, which, according to him,
meant that he was not the father of
that child and that she had taken the child to her real father. She
also testified that Mr
M was cheating on her and that was why, so she
explained, she was not prepared to sleep at home. His cheating made
her so mad and
she left home because of that. She explained that when
she left home in that way, it would be Mr M who would look after the
children.
[24].
She found out about the shooting of
her son when her daughter, T, called her and explained to her that
she needed to come home because
Mr M had killed the deceased. She
went home, and on her arrival, there were many people milling around
her house, including the
police officers, and they would not let her
into the house. They did however require the birth certificate of the
deceased, and
to enable her to retrieve the certificate they let her
into the house. That was when she saw her son, the deceased, for the
first
time after his death.
[25].
Shortly thereafter her daughter, T,
gave a statement to the police officers who were on the scene. After
that the SAPS Pathologist
vehicle came and collected the body of the
deceased and removed same. They were taken to the Police Station,
where it was suggested
by the police that they should be taken to a
place of safety, as, according to the police it was not safe for
them. The witness
asked the police not to be taken to a place of
safety as she was the only one who could and needed to make funeral
arrangements.
They thereafter went to collect the deceased’s
clothes and went to Sebokeng. At some point, whilst in Sebokeng, she
discovered
a bullet in the pillow on which the deceased’s head
had rested when he was shot. She handed the bullet to the police.
[26].
Thereafter, whilst the witness was
busy arranging the funeral, she constantly received threatening
messages from Mr M. The first
message, which was in Afrikaans,
suggested that she (the witness) would be the next one whose brains
would be splattered. The second
message said that Mr M needed his
car, which was worth R20 000 and, and if she did not give him
his car she then would also
be on my way. The witness did not know
the whereabouts of Mr M at that stage. He was however arrested after
the funeral.
[27].
On a question relating to the
relationship between her and Mr M, the witness indicated that from
her side it was alright. The problem,
so she said, was from the side
of Mr M who was cheating on her with other women, some of whom she
had confronted on occasion. She
had spoken to Mr M about his
infidelity on many occasion, but to no avail.
[28].
N confirmed that she has five
children of her own, including the deceased, T and the three fathered
by Mr M. Mr M himself had three
other biological children of his own.
The deceased was her biological child, her first born, and the first
witness was her adopted
daughter. She confirmed that the deceased had
his own biological father, and she started being romantically
involved with Mr M
when the deceased was still very young. At the
time he was killed, the deceased was 16 years old.
[29].
She confirmed that, as far as she
could see, the deceased did not have a problem with Mr M. However, Mr
M seemingly had a difficulty
with the deceased. For example, from
time to time Mr M would insist on watching his own TV programmes
whilst the deceased was busy
watching his.
She also recalled an incident where
the deceased and the cousin of Mr M were involved in an accident,
which caused unpleasantness
in the family as Mr M had to pay the
damages of the owner of the other vehicle involved in the accident.
[30].
Mr M did not like the deceased. It
got to a point where Mr M suggested to her that they arrange for the
deceased to live on his
own by organising a room for him to stay in
outside of their home. The witness would however have none of this
[31].
Under cross – examination the
witness confirmed that at the time of the incident she was 32 years
old, and that she gave birth
to the deceased when she was only
fourteen years old. She met Mr M during 2002 and, at that time, he
was still in a relationship
with another woman, one S, with whom he
has children. During 2005 the witness and Mr M moved in together and
he broke off the relationship
with S. Subsequently, they got married
although Mr M did not pay labola for her. He had however paid labola
for S. She confirmed
that there were problems in the marriage, but
denied that they separated during the marriage. They did however
separate before
they got married. During 2016 she received an sms on
her cell phone, which Mr M saw. She denied however that it read, as
it was
put to her by Mr Pillay on instructions from Mr M: ‘Are
you coming to sleep with me today?’, or words to that effect.
The sms simply enquired from her whether she was going to Mpumalanga
so that she could meet the sender of the message. She confirmed
that
shortly thereafter she left Mr M by driving off, leaving him behind.
She went to Nancefield at her friend, Ntombi’s
place.
Thereafter, Mr M met with her friend, Ntombi, and her brother, Kenny,
and the dispute between them were resolved or so it
seemed. They
thereafter continued their relationship. During September 2016 she
went to Vryheid. She denied that she was supposed
to return on the
18
th
September. She always use to go away and she did not see a reason why
she should tell Mr M when she would return. She had gone
to Vryheid
to buy clothes from the Chinese shops, but she could not remember the
names of those shops. She denied that she was
going to steal clothes
from those shops. She went with three other persons on her shopping
trip to Vryheid. She stayed in Vryheid
for five days, and thereafter
went to Witbank. In Vryheid they stayed in a hotel, but she was not
able to recall the name thereof.
She went to Witbank because in
Vryheid she had not been able to acquire enough stock. She stayed in
Witbank for six days. During
that time she called Mr M and explained
to him where she was and what her plans were. She came back on the
20
th
September 2016. In the evening of Tuesday, the 20
th
September, she went to collect her small child from home and went
with him to Nancefield. She reiterated that she came back to
Johannesburg on Tuesday, the 20
th
September 2016, and went home on the same evening only to return to
Nancefield with her youngest child. She did not stay home on
that day
as she had already lost interest as she had been hurt by the sms’s
she had seen on his phone. She confirmed that,
in response to his
message accusing her of taking the small child to her real father,
she sent a message to him saying that he
should go and collect his
belongings and his dogs and leave the house. She confirmed that the
deceased would stay with Mr M when
she was on her trips outside of
Gauteng not at home.
[32].
The witness confirmed the incident
of the car accident, but denies that Mr M had to pay the other party
for his damages. She was
the one who paid the damages. She confirmed
that on the 26
th
September 2016 she made a statement to police, in which she explained
what had happened. It was also put to the witness that Mr
M will
testify that because he thought she was sleeping with another man, he
became very depressed on the 21
st
September and he started drinking. Her response was that there was no
other person. She stated that she went to the house on the
20
th
September and he was there. It was put to the witness that it was the
intention of Mr M to kill her (the witness) and then himself,
and
that it was never his intention to harm the deceased.
[33].
The next witness on behalf of the
State was Warrant Officer Sipho Mdletshe
(‘Mdletshe”)
from the Tracing Unit of the South African Police Services. N and her
family are known to him, and he realised that when she came
to the
Police Station a few days after the shooting of the deceased. Mr M
and his family, in particular his parents, were also
well –
known to the witness. His evidence in a nutshell was that, after some
diligent police detective work, he tracked down
and arrested Mr M on
or about the 1
st
of October 2016 at an address in Dobsonville. On the day, although Mr
M was caught unaware by the presence of the witness, he offered
no
resistance to the arrest. He did seemingly avoid the witness prior to
being arrested as the witness had at some point before
then made
telephonic contact with him and had arranged to take him to the
police himself. However, Mr M subsequently avoided his
further phone
calls.
[34].
The last witness for the State was
Lieutenant Colonel Duma, who gave evidence in the trial –
within – a – trial
as well as in the main trial. In the
trial –within – the – trail he testified that he
was not involved in the
investigation of the charge of murder against
Mr M, and that on the 3
rd
of October 2016 he obtained from him a confession / admission, which
Mr M gave freely and voluntarily. The main portion of the
statement
reads as follows:
‘
On
2016.09.21 at about 22:00 at Snake Park Block residential address
unknown to me, there was a quarrel between S X, my stepson,
because
of his evil behaviour. It was on 2016.09.20 at about 19:30 to 20:00
where he used abusive language to me, I became furious.
I decided to
hire a firearm to kill myself and my wife, but it did not work. I
decided to shoot my stepson because of his evil
behaviour. I was
depressed by my wife who ordered me to go and take my children, and I
go and fired one shot towards him on the
head. He passed away. I
moved out. I took back the firearm to Thapelo – surname unknown
to me. Stays at Snake Park Block
4 House no unknown to me, but I knew
the place. I went to Saulsville. On 2016.10.01 at about 16:00 I was
arrested at Jabulani SAPS
and I was detained at Dobsonville SAPS.
That is all I have to say.’
[35].
Under cross – examination
during the trial within the trial, it was put the witness that at no
stage did he read back the
statement to Mr M after it was completed.
He denied this and was adamant that what was contained in the
statement was what he was
told by Mr M. It was also put to the
witness that Mr M denies that he said that he decided to hire a gun
to shoot his stepson because
of his evil behaviour. The witness
remained adamant that that is what Mr M told him.
[36].
Mr M, the accused, thereafter gave
evidence first in the trial – within – a – trial
and then in the main trial.
He confirmed that he was taken to Colonel
Duma to make the statement, and that it is his signature at the
bottom of each page and
at the end of the document. He confirms that
he explained to Colonel Duma that he had consumed alcohol but this
important fact
was not recorded in the statement. He also denies that
he told the Colonel he decided to hire a firearm to shoot his stepson
because
of his evil behaviour.
[37].
Under cross – examination in
the trial – within – a – trial, he admitted that he
mentioned to the Colonel
that the deceased used abusive words towards
him. Except, so he testified, it would have been in the context of
the deceased not
have gotten the kids ready for school on the morning
of the Wednesday, 21
st
September, and not on Tuesday, the 20
th
September.
[38].
Mr M also gave evidence in his
defence in the main trial. He confirmed that the deceased was his
stepson. He also confirmed that
N is his wife, and they have three
children together, namely a 9 year old, a 7 year old and a 1 year old
toddler. During August
2016, whilst they were sleeping at home, he
noticed a message received on his wife’s phone which was to the
effect that the
person sending the message to his wife enquired from
her as follows: ‘I thought that you were coming to sleep over.
Why did
you not come?’ This was of concern to him, but the next
day before he had a chance to confront his wife about the message
she
left him after driving off with his car. This issue was however
sorted out shortly thereafter with the intervention of the
brother of
his wife and her friend. Thereafter the relationship was good.
[39].
During September there was another
incident. His wife went to Mpumalanga and said that she would return
on Sunday, the 18
th
September. She didn’t. Instead she informed him that she would
be coming home on the Monday, the 19
th
September 2016, but again on that day she informed him that she would
only be returning on Tuesday, the 20
th
September 2016. She also said that when she came home she would not
be staying there as she needed to take the baby to their family
home,
which is in fact what she did on the 20
th
September – she arrived home, took some clothes and the baby
and left again. Mr M was at home then. She confirmed to him
that she
still loves him. At about 22H30 that night he received a call from N
who wanted to know from him why he always had a problem
with her
visiting her family. The call got cut, and he went looking for her at
the house of her parents and also at her friend’s
house. She
was not there. He then went home. It was the morning of Wednesday,
the 21
st
September. When he arrived home the kids were not ready for school
yet, and he asked the deceased why this was so. The deceased’s
response was that he was sleeping and what was he supposed to do. In
the end the kids did not go to school. Mr M left and returned
home
later after he had gone to transport other children to school.
[40].
In the afternoon he received a
message from his wife saying that he should collect their baby from
the crèche. Immediately
thereafter she sent a further message
asking him exactly what it was that he wanted from her. This was
seemingly in response to
his attempts to contact her during the
course of that day. His response was that he wanted his car. A
further message then followed
from the wife to the effect that she
was still with her boyfriend and that he (Mr M) should just collect
his belongings and his
dogs from their home and leave. He did not
respond to this message. This made him very angry, and he wanted to
kill himself. This
was the fourth time that the woman he loves, his
wife, had gone to another man.
[41].
Thereafter, he did the afternoon
transporting of the children, whereafter he drove around aimlessly.
He also consumed alcohol –
in total seven quartz (750ml) of
‘Hansa’ beers. At about 20H00 he went home to check on
the children and to see whether
they had eaten yet. Thereafter he
went in search of the firearm, which he was able to obtain and he
then returned home at about
22H00. He went into the house ‘roughly’,
by which I assume he meant somewhat aggressively. This, according to
Mr M
irritated the deceased, who was lying on the sofa in the lounge.
Mr M testified that at that stage his state of sobriety was such
that
he could not even control himself. On Mr M entering the house, the
deceased, clearly annoyed, clicked his tongue to show his
annoyance,
and Mr M told him not to do that. He was still his father, so Mr M
reprimanded him. He then approached the deceased,
gun in hand, and
that was when the gun mysteriously went off and hit the deceased in
the head. Mr M then explained that, although
he is not knowledgeable
about firearms, the gun in his hand was not in a safe mode. The one
thing he did wrong, according to Mr
M, was that he took out the gun
when he approached the deceased. He did not want to shoot the
deceased. There was nothing the deceased
did to him that would have
made him want to kill him.
[42].
Mr M denies that in the days
following the death of the deceased he had sent threatening messages
to the N. He does not even know
Afrikaans. When he went home on the
night of Wednesday, the 21
st
September 2016, he was expecting that his wife would be home. He
would then have shot her and then himself. Mr M also testified
about
the incident during December 2015 when the deceased and the cousin of
Mr M had been involved in an accident with Mr M’s
car. He was
thereafter required to pay the damages of the owner of the other car.
The deceased then smashed his car, which angered
Mr M and this led to
tension with the deceased. In the end, he agreed to live with the
deceased. He did not intend to kill the
deceased. He was his child
and he had known him since he was three years old. He still hurts,
because ‘he was also my child’.
[43].
Under cross –
examination Mr M denied that the relationship between him and the
deceased was strained. He even taught the
deceased to drive a car. He
also denied that he took the deceased’s life because of his
‘clicking his tongue’
when Mr M arrived home. He also
denies that he went looking for his wife when he went home the second
time. He went home to sleep.
The first time he had gone home to make
sure that the baby had been fed. He confirmed that the deceased had
nothing to do with
the problems between him and his wife.
[44].
After the
shooting, Mr M returned the firearm to its owner, a friend of
Thapelo, who in turn was a friend of his. He felt obligated
to return
the firearm because the owner and his cronies made it quite clear to
him that if he did not return the firearm he would
be killed. He
confirmed that he had driven to and from the friend of Thapelo before
and after the incident, and it was suggested
to him by Mr Makua, who
appeared for the State, that he was still very much in control of his
actions. This then prompted Mr M
to retort that in fact it was a
struggle driving to and from the firearm people. He confirmed that
the fact that he acquired the
firearm showed clearly that he had
planned and had the intention to kill. He emphatically qualified this
proposition by saying
that the intention was to kill his wife and
then himself. He also states that when he arrived home the deceased
was on the sofa
and not sleeping on the floor as testified to by T.
He persisted with this version despite being confronted with the
evidence of
the photographs depicted the deceased on the floor after
he had been shot. According to him, T was lying about this.
[45].
Mr M also
explained that the reason why the firearm was in his hand was because
he was expecting his wife to be home, and he was
intending to shoot
her. The deceased was shot by mistake. All Mr M wanted to do was to
warn him, and the firearm mistakenly discharged
itself.
[46].
It was
furthermore put to Mr M it seems strange that if the firearm
discharged by mistake that the bullet hit the deceased in the
head.
His response was to the effect that that was just bad luck. Also, his
explanation for having the presence of mind to return
the firearm
after the shooting, having regard to his claim that his mind was not
clear, was to reiterate that he was not thinking
clearly. Also, so he
was asked under cross – examination, if the shooting was a
mistake, why disappear for days afterwards?
Again, his response was
that he was confused.
[47].
As far as the
confession / admission before Colonel Duma is concerned, he denied
that portion where he is alleged to have said that
he decided to kill
the deceased because of his evil behaviour. He also confirmed that he
was ‘tipsy’ but not drunk
at the time of the shooting. He
could however not think clearly.
[48].
After the
evidence in the trial – within – a – trial was
concluded both counsel for the state and for the defence
addressed
argument to the Court. After considering the evidence and arguments
that had been presented I ruled that the statement
made by Mr M
before Colonel Duma on the 3
rd
October 2016 was admissible in evidence against him. The reasons for
my findings were to be provided when I delivered judgment
in the main
trial. These reasons now follow.
[49].
Colonel Duma
created a very favourable impression when he testified. Although
there were minor discrepancies in his version, these
were not of such
a material nature as to detract from his credibility. The attack on
the confession / admission was aimed primarily
against the recordal
of the statement. In particular Mr M denied that portion of the
statement which says that he allegedly stated
that he decided to
shoot his stepson because of his evil behaviour. The rest of the
statement is confirmed by Mr M albeit that
there is a difference
relating to the date and time when certain incidents occurred.
[50].
The state has
proved beyond a reasonable doubt that the confession / admission was
that made by Mr M to Colonel Duma freely and
voluntarily in his sound
and sober senses and without being unduly influenced thereto, and
that the contents were as stated by
Mr M to the Colonel.
Findings
[51].
Having considered all the evidence
and the admissions made by Mr M in terms of
s 220
of the
Criminal
Procedure Act, I
am of the view that the salient facts of this matter
are the following.
[52].
Mr M and his wife, N, who have three
children together, have been married since during or about 2005. The
deceased was the eldest
son of N from a previous relationship. Their
marriage was not as smooth sailing as it should have been and was
characterised by
numerous arguments, accusations of infidelity from
both sides and at least one or two break – ups. To describe
theirs as
somewhat of a tumultuous relationship would not be that far
of the mark.
[53].
There was also tension from time to
time between Mr M and his stepson, the deceased, but nothing serious
which would have caused
and / or motivated Mr M to want to take the
life of the young man. The big problem in their household appears to
have been between
the husband and the wife, and the kids were just
caught in the middle. The constant bickering and the continuous
fights may very
well have culminated in the text message from N on
Wednesday, the 21
st
September 2016, when she told Mr M to take his bags and leave.
[54].
This, coupled with the fact that in
his mind at least his wife was cheating on him and had found another
man, angered Mr M to the
point that he made a conscious decision to
end the life of his wife and thereafter to commit suicide. To that
end he decided that
he would obtain a firearm and use it to shoot and
kill first his wife and then himself. In order to give himself some
Dutch courage
he then consumed copious quantities of alcohol in the
course of the afternoon and the evening before the shooting. This,
although
it made him tipsy, did not make him drunk to the point where
he was not in control of his actions.
[55].
At about 24H00 on the morning of
Thursday, the 22
nd
September 2016, Mr M went home armed with a firearm, intending to
shoot and kill his wife and then himself. Although she was not
home
when he had been there earlier at about 22H00, he was hoping that by
the time he gets home the next time, which would have
been at 24H00,
she would have returned home. As it turned out, this was not to be.
When he got home, his wife was still not home,
and this sent him into
a rage and made him extremely infuriated. He then vented that anger
on the deceased who was fast asleep
on the floor in the dining room /
lounge, blissfully unaware of the terror which was about to be
unleashed on him.
[56].
After having shot the deceased Mr M
then left the scene in his car, drove back to the place of the friend
of Thapelo, and returned
the firearm. Thereafter, he evaded arrest
for approximately nine days, whereafter he was arrested.
[57].
Mr M’s version of events on
that fateful night accords in the main with my factual findings
above, with the significant exception
being that he denies that he
deliberately shot the deceased. As indicated above, his version is
that the firearm discharged accidentally
and by itself.
[58].
This version is not reasonably
possibly true. By all accounts, Mr M, when he arrived home at
approximately 24H00 was very upset.
His infuriation probably caused
him to shoot the deceased as his perverted way of getting to the
object of his rage, that being
his wife. To say that the firearm went
off by accident is highly improbable and so far – fetched that
it borders on the ridiculous.
What is also telling in that regard is
what happened after the fact. Mr M fled the scene of the shooting
immediately thereafter
and evaded the police for approximately nine
days. This, in my view, are not the actions of a person who
accidentally shot and
killed someone. As rightly submitted by Mr
Makua, the fact that a single fatal shot was fired to the head of the
deceased suggests
that it was deliberately fired and belies the
version of Mr M that out of the blue a shot went off.
I reiterate my view hat,
in the
context of all of the facts in this matter, the crucial part of the
version of Mr M, is highly improbable.
[59].
I also have no hesitation in
rejecting Mr M’s version of the events on the basis that he was
an extremely poor witness and
on numerous occasions tried to correct
his evidence when he realised his answers were incriminating. In his
evidence there were
contradictions, inconsistencies and other
improbabilities. Most notably is the fact that in his
s 115
plea
explanation he had stated that the reason why he shot and killed the
deceased was because he was under the influence of alcohol,
coupled
with the fact that due to his wife’s behaviour he was depressed
and emotional. This is in direct contradiction to
his evidence that
the gun went off accidentally, with the bullet hitting the deceased
in the head because of ‘bad luck’.
This is a material
contradiction in the version of Mr M.
[60].
I am therefore satisfied that, all
things considered, the irresistible conclusion to be drawn from all
the proven facts is that
Mr M intentionally killed the deceased.
[61].
In drawing these conclusions I am
fully aware of the warning by Smalberger AJA in
S
v Mtsweni
, 1985(1) SA 590 AD at 593I –
594D against inferring guilt necessarily from dishonest testimony by
Mr M. However, Mr M’s
version is so unsustainable and his
evidence of such poor quality that the conclusion can, in my
judgment, be safely drawn,
[62].
In
R v
Blom
,
1939 AD 188
at 202 – 203 it
was held that when reasoning by inference the inference sought to be
drawn must be consistent with all the
proved facts and these facts
must be such that they exclude every reasonable inference from them
save the one sought to be drawn.
By no stretch of the imagination is
Mr M’s guilt inconsistent with any proven fact. In my view, no
reasonable inference may
be drawn from any proven fact which points
to his innocence. In that regard what weighs heavily on my mind is
the evidence relating
to single fatal gunshot wound to the head of
the deceased, which appears to have been inflicted quite deliberately
and goal driven.
[63].
I am therefore satisfied that the
State has proven beyond a reasonable doubt that Mr M had the
intention to and in fact did kill
the deceased.
[64].
I now consider the likelihood that
the murder was planned or premeditated.
[65].
As indicated, I am satisfied that
the evidence adduced by the State proves beyond a reasonable doubt
that Mr M is guilty of the
crime of murder. However, the evidence
falls short of proving that he acted with premeditation or had
planned the murder. Mr M
had clearly planned to shoot and kill his
wife, and if he had succeeded in doing that he would no doubt have
been guilty of premeditated
murder. However, when he could not find
her, his intentions and anger were soon directed at the deceased. The
question is can this
planning and premeditation be attributed to Mr M
in relation to his shooting of the deceased. The answer, in my view,
is no. The
requirement of premeditation must be specifically directed
at a particular act.
[66].
It appears that Mr M may have acted
on the spur of the moment because of the circumstances. He was
furious with his wife for her
behaviour towards him. His anger
reached a boiling point by her telling him to move out of the house,
and was aggravated by the
consumption of alcohol. It was also argued
by the State that the premeditation is also proven by his statement
to Colonel Duma
that Mr M decided to shoot his stepson because of his
evil behaviour. However, this statement should be read in the context
of
the sentence immediately preceding this averment. The important
part reads thus: ‘I decided to hire a firearm to kill myself
and my wife, but it did not work. I decided to shoot my stepson
because of his evil behaviour’. My view is that a proper
reading of this statement is corroboration for my view that, when Mr
M did not find his wife home, he on the spur of the moment
decided to
shoot and kill the deceased.
[67].
It is by no means enough for there
to be a suspicion in regard to whether he acted in a premeditated
manner or not. The onus rests
on the State to prove this beyond a
reasonable doubt. I do not consider that the evidence goes far enough
in this respect and I
therefore cannot find that the murder was
either planned or premeditated.
[68].
On the second charge of unlawful
possession of a firearm, I have already indicated above that, on the
basis of Mr M’s plea
of guilty and his
s 112(2)
plea
explanation, I am satisfied that he is guilty of this offence. The
evidence led during the trial has also confirmed the guilt
of Mr M
beyond a reasonable doubt. He had acquired the firearm from a friend
of Thapelo and he used it to shoot the deceased shortly
after
midnight on Thursday, the 22
nd
September 2016.
[69].
The same applies to count 3, that
being unlawful possession of ammunition.
[70].
I am therefore satisfied that Mr M
is guilty beyond a reasonable doubt of all three charges against him.
ORDER
In
the result, my verdict is as follows:-
1.
Count 1 – The murder of S X, read
with
section 51(2)
and schedule 2 of the
Criminal Law Amendment Act
105 of 1997
:
Guilty
.
2.
Count 2 – Unlawful possession of a
firearm:
Guilty
.
3.
Count 4 – Unlawful possession of
ammunition:
Guilty
.
_________________________________
L ADAMS
Judge of the High Court
Gauteng Local Division,
Johannesburg
HEARD
ON:
16
th
– 19
th
May 2017 & 21
st
–
24
th
August 2017
JUDGMENT
DATE:
FOR
THE STATE:
25
th
August 2017
Adv
Makua
INSTRUCTED
BY:
Office
of the National Director of Public Prosecutions, Gauteng Local
Division, Johannesburg
FOR
THE DEFENDANT:
Adv
Pillay
INSTRUCTED
BY:
Legal
Aid South Africa