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[2010] ZAGPJHC 171
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S v Mkhabela (22/2009) [2010] ZAGPJHC 171 (10 May 2010)

SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 22/2009
DPP
Ref. No. JPV2008/023
Date:10/05/2010
In
the matter between:
THE
STATE
versus
JABULANI
HLENGANI
MKHABELA
................................................................
Accused
MEYER,
J
[1] The
accused, Mr. Jabulani Hlengani Mkhabela, has been arraigned for trial
on an indictment containing charges of the murder
of the late Mr.
Owen Mabundla (‘the deceased’) and of the assault of Mr.
Sevha Nuel Mabundla (‘Nuel’) on
30 August 2008.
[2] The
accused pleaded not guilty to both charges. He made a statement in
terms of
s 115(3)
of the
Criminal Procedure Act 51 of 1977
in
amplification of his plea. He proclaims his innocence. He avers
that he was attacked by a group of men, amongst whom the deceased
and
Nuel. He states his belief that his life and the lives of those in
his company were in danger. He denies that he intentionally
shot and
killed the deceased or that he intentionally assaulted Nuel.
[3] It
is undisputed that during the afternoon of 30 August 2008 from about
3:00 pm until about 6:00 pm, a performance of traditional
Shangaan
dancing took place in the street at Sphiwe Tavern, Phomolong Section,
Tembisa, Kempton Park. The performance was attended
by many people,
including the deceased and the state witnesses Nuel, who is a cousin
of the deceased, Jomo Benmore Tsungu, who
is also a cousin of the
deceased (‘Benmore’), Noza Herbert Mavundla, who is a
brother of the deceased (‘Herbert’),
and Bigboy Valoyi
(‘Bigboy’). They and many other people remained behind
at and in the vicinity of Sphiwe Tavern (‘the
tavern’)
once the performance had ended.
[4] Nuel,
Benmore, Herbert, and Bigboy each testified that at about 8:20 pm
they and the deceased stood in a group next to a red
VW Golf motor
vehicle (‘the Golf’) that was parked on the pavement
across the street from the tavern. A silver grey
Audi motor vehicle
(‘the Audi’) arrived and stopped in front of the Golf
close to where they were standing (Benmore
and Bigboy testified that
the Audi stopped partly on the pavement and partly on the street).
The Audi was driven by the accused
and had one passenger. The Audi
drove off and stopped a short distance away from where they were
standing (Nuel estimated the
distance at about 10 metres and Benmore
and Bigboy at about 3 metres). They considered that the Audi almost
collided with them
where they were standing at the Golf. Nuel,
Benmore and the deceased approached the accused while he was still
seated in the driver’s
seat of the Audi to enquire from him why
he drove in the manner as perceived by them. Bigboy and Herbert
remained standing at
the Golf. Nuel spoke to him. The accused
opened the driver’s door and got out of the Audi. He slapped
Nuel once in the
face (Herbert did not see where he was hit). Nuel
fell to the ground. The accused pulled out a firearm from his waist.
The accused’s
passenger grabbed or took the firearm from him
(Benmore, Herbert and Bigboy testified that the passenger cocked the
firearm after
he had taken it from the accused). Benmore and the
deceased ran away – Benmore to or in the direction of the Golf
(Bigboy
did not see where he was running to) and the deceased to the
end of the street where it forms a T-junction with Mdaka Street. The

accused and his passenger got back into the Audi, made a u-turn and
drove down the street towards the T-junction in the same direction
in
which the deceased had gone. They noted down the registration number
of the Audi at the suggestion of a person who approached
them (Nuel
and Benmore testified that it was Benmore who took down the
registration number).
[5] Upon
hearing that someone had been shot in the vicinity, they went to that
scene, which, according to the undisputed evidence
of Herbert and
Bigboy, was left at the T-junction at a point along Mdaka Street that
was not far from where they had originally
stood. They found that
the person who had been shot was the deceased. He was shot in the
left chest just below the shoulder (Nuel),
bleeding on the left side
of his chest (Benmore), or bleeding from the left shoulder (Herbert).
An ambulance and police officers
arrived at the scene. The deceased
had already died (Benmore and Bigboy). The emergency personnel at
the scene covered the deceased’s
entire body (Nuel and
Herbert).
[6] The
accused formally, in terms of
s 220
of the
Criminal Procedure Act 51
of 1977
, admitted the identity of the deceased (exhibit ‘A.1’).
He further formally admitted that the scene of the crime was
at No.
3852 Mdaka Street, Phomolong Section (exhibits ‘A.1’,
‘C’, ‘M’ and ‘N’).
Travelling
along the street in which the tavern is situated on the right hand
side, one reaches a stop sign where the street forms
a T-junction
with Mdaka Street. The scene of the crime was 75 metres from the
stop sign along Mdaka Street to the left.
[7] Ms.
Thandiwe Masuku, a crew commander of ambulances and fire engines for
the Ekhuruleni Metropolitan Council, testified that
she attended at
No. 3852 Mdaka Street at about 9:45 pm. Her evidence is to the
effect that the person found lying on the ground
in blood was no
longer alive. The body that she testified about was probably that of
the deceased. The accused formally admitted
that the deceased died
on 30 August 2008 as a result of a single gunshot wound to the chest,
which he sustained at Phomolong Section
in the district of Kempton
Park and that the body of the deceased sustained no further injuries
from the time when the wound was
inflicted on 30 August 2008 until a
post mortem
examination was conducted by Dr. ECP Nothnagel on 3 September 2008
(exhibit ‘A.1’, paras 1 – 4).
[8] The
correctness of the facts and findings as recorded in the
post
mortem
report
of Dr. Nothnagel (exhibit ‘B’) has also been formally
admitted. The medical
post-mortem
examination conducted by Dr. Nothnagel revealed that the deceased’s
death had been caused by a gunshot wound through the
chest and
abdomen. In terms of his
post
mortem
findings
the entrance gunshot wound was a 9mm round wound with a 2 mm collar
of abrasion on the anterior aspect of the left shoulder.
The gunshot
wound tract penetrated backwards, downwards and to the right through
the muscles of the upper arm, the third rib on
the left side, the
upper lobe of the left lung, the cardiac sac, the left and right
ventricles of the heart, again the cardiac
sac, the diaphragm on the
left side, the liver, the intestines, the third lumbar vertebra, and
to the fourth lumbar vertebra where
a spent bullet was found.
[9] The
accused formally admitted that Const. Khumalo found a cartridge case
at the scene of crime and that Insp. Montjane found
a Z88 pistol with
serial number TQ 114021 at the residence of the accused. The
cartridge case and Z88 pistol were later subjected
to ballistic
examination by Capt. DSL Pieterse, and the correctness of the facts
and findings recorded in his ballistic report
were also formally
admitted. See: Exhibit ‘A.1’, paras 7 - 12; exhibit
‘C’, preamble, key to photographs,
photographs 2, 10, and
11; and exhibit ‘D’. Capt. Pieterse, through a process
of microscopic comparison, ascertained
that the cartridge case was
fired from the Z88 pistol (exhibit ‘D’). This was
confirmed by Capt. Pieterse when he
testified. The finding of the
cartridge case at the scene of the crime and of the Z88 pistol at the
residence of the accused accordingly
establishes a link between the
accused and the death of the deceased.
[10] The
unchallenged evidence of Nuel, Benmore, Herbert, and Bigboy is that
they attended an identification parade at the Kempton
Park SAPS on 16
May 2009 where each one of them individually pointed out the accused.
This is corroborated by the unchallenged
evidence of Insp. Frans
Rapitsoa, who arranged and conducted the parade. The accused and his
brother, Isaac Mkhabele, appeared
in the line-up at the
identification parade. The accused represented to Insp. Rapitsoa
that his name was that of his brother and
his brother represented
that his name was that of the accused. This is why Insp. Rapitsoa
recorded their names as such on the
identification parade form
(exhibit ‘K’).
[11] At
the close of the State case an application in terms of
s 174
of the
Criminal Procedure Act 51 of 1977
was made for the discharge of the
accused on both counts, which are the counts of murder and of
assault. This application was
evidently without merit and was
refused. The undisputed evidence of Nuel, Benmore, Herbert, and
Bigboy is that Nuel, followed
by Benmore and the deceased, approached
the accused while he was still seated in the driver’s seat of
the Audi; that the
accused opened the driver’s door and got out
of the Audi; that he slapped Nuel once; that Nuel fell to the
ground; that
the accused pulled out a firearm; that the accused’s
passenger took the firearm from the accused; that Benmore and the
deceased ran away; that the accused and his passenger got back into
the Audi, made a u-turn, and drove down the street in the same

direction in which the deceased was running; and that shortly
thereafter the deceased was found shot in the nearby vicinity.

Ballistic examination linked the cartridge case found at the scene of
the crime to the Z88 pistol found at the residence of the
accused.
Cross-examination of the state witnesses Herbert and Bigboy yielded
the informal admission by the accused of his presence
at the scene
where the deceased was found shot and dead. See:
S
v W
1963 (3)
SA 516
(A), at p 523 C-F;
S
v Magubane
1975
(3) SA 288
(N), at p 291 G – H;
S
v Mathlare
2000
(2) SACR 515
(SCA), paras [9] – [11];
S
v Maleka
2005
(2) SACR 284
(SCA), para [16];
S
v Maleka (2)
2005 (2) SACR 692
(SCA).
[12] The
accused testified that he, accompanied by Ms. Mavis Kekane (‘Mavis’),
Mr. Frederick Moremane (‘Freddy’),
Ms. Barbara Rasemphe,
and her child, Anzane Rasemphe were
en
route
to
Ivory Park when he, at the request of Freddy, stopped along the way
to buy liquor at the tavern. They were travelling in the
Audi, which
was driven by the accused. Two vehicles blocked the entrance to the
street (in which the tavern is situated) at the
T-junction (at points
‘X1’ and ‘X2’ indicated on exhibit ‘N’)
and it was not possible for the
accused to drive into the street.
Nuel appeared (at point ‘X3’ indicated on exhibit ‘N’,
which is at the
T-junction) and told him that he should reverse so
that one of the vehicles which was blocking the way could reverse and
get out
of the way. The accused added that Nuel ‘asked me what
kind of a stupid person I am and where do I come from.’ The

accused replied that he could not reverse since the suspension of his
car was too low. Under cross-examination he testified that
Nuel
approached him in an aggressive manner and the accused was frightened
by him. I refer to these events as the events at the
T-junction.
The accused drove past the obstacle by partly driving onto the
pavement, which is the one on the side of the tavern.
On the
furthest side of the tavern, as the accused was travelling, is a
butchery and spaza shop. The accused drove up to a point
just beyond
the butchery and spaza shop (point ‘X4’ indicated on
exhibit ‘N’).
[13] Freddy,
who was seated in the left rear of the Audi, alighted to buy alcohol
while the accused and his other passengers remained
seated. Nuel,
followed by Benmore and the deceased, approached the accused. Nuel
asked him why he did not reverse when they told
him to do so. The
accused ignored him. Nuel then poked the accused with a bottle while
saying to him ‘who do you think you
are.’ The accused
opened the driver’s door quickly. Nuel took one step backward
and threw his bottle at the accused.
The accused succeeded in
evading the bottle. He slapped Nuel with his open hand. Nuel fell
down. Benmore and the deceased then
also each threw a bottle from
which they were drinking alcohol at the accused. He bent and was
able to avoid being hit by the
bottles. As he rose from that
position, the accused noticed that Freddy was pulling out the firearm
that was tucked away at the
accused’s waist. The accused got
back into the Audi. Freddy went around the Audi. One of the two
persons who accompanied
Nuel went around the Audi to the side where
Freddy was and grabbed the firearm from Freddy. Freddy got back into
the Audi and
told the accused that the firearm had been snatched from
him. I refer to these events as the events at the Audi.
[14] The
accused noticed in his rear view mirror that the deceased was running
to the stop sign at the T-junction, and that he turned
left into
Mdaka Street. He also noticed that Benmore ran to a point across the
road from the tavern (point ‘X5’ on
exhibit ‘N’),
which point is about where the state witnesses testified the Golf was
parked. The accused made a u-turn
and drove in the direction in
which the deceased was running. The accused also turned left at the
T-junction into Mdaka Street.
When the accused noticed the deceased
about fifty metres away from the T-junction (point ‘X7’
on exhibit ‘N’),
he ‘quickly stopped’ and got
out of the Audi. The accused held his two hands together with his
index fingers pointing
horizontally forward and his thumbs upward
thereby simulating that he was holding a firearm, and he shouted:
‘I’ll
shoot you!’ Drop the firearm you have! The
accused ‘quickly went up to him and grabbed him.’ A
tussle or struggle
for the possession of the firearm ensued until the
accused succeeded in grabbing the firearm out of the hands of the
deceased.
The accused walked away while the deceased was still
standing. A gunshot was fired during the struggle before the accused
gained
the possession of the firearm. The accused did not see
whether or not the gunshot hit the deceased.
[15] The
accused is employed by the Department of Correctional Services. His
duties entail the tracing of people who have absconded.
He testified
that because he is a law enforcement officer he is permitted to carry
a loaded firearm at all times. The firearm
which he had in his
possession at the time of the incident under consideration was his
service pistol that belonged to the State.
[16] The
accused called Mavis and Freddy as witnesses in his defence. Freddy
turned out to have been the person to whom the state
witnesses
referred as the accused’s only passenger. Mavis and Freddy
testified that there was not only one passenger in
the Audi at the
time of the incident, but that Mavis, who is the accused’s
girlfriend, Freddy, who is Mavis’s uncle,
and Ms. Barbara
Rasemphe, who is Freddy’s wife, and their child, Anzane
Rasemphe, were also passengers in the Audi. They
both testified
about events at the T-junction; events at the Audi when bottles were
thrown at the accused and his firearm snatched
from Freddy; and the
chasing after the deceased by the accused to recover his firearm from
the deceased. I elaborate more on
their evidence later.
[17] Counsel,
Ms. Surrendra for the state and Mr. Mgiba for the accused, agreed
with me that Dr. Nothnagel should be recalled as
a witness after the
accused’s case had been closed. In considering his initial and
later evidence, we are concerned that
the opinions expressed by Dr.
Nothnagel are influenced by his view that the deceased was shot at a
distance further than 50 cm.
Such view is based on the absence of
evidence of soot deposition or tattooing which he observed when he
conducted the
post-mortem
examination
on the body of the deceased. The absence of soot deposition or
tattooing, however, is inconclusive in the determination
of the range
at which a person was shot without reliable evidence relating to the
nature of the clothing that covered the area
of an entrance wound and
the results of an examination of such clothing, which evidence is
absent in this case. We also consider
his opinion on whether the
deceased could have remained standing upright and for the struggle to
have continued for a while after
the deceased had been shot, given
the injuries which the deceased had sustained, as non-definitive.
[18] It
is convenient to first consider the charge of assault. That the
accused slapped Nuel in the face during the events at the
Audi is
common cause. What is in issue is whether or not the state has
proved beyond reasonable doubt that he did so unlawfully
and
intentionally.
[19] The
accused’s testimony about Nuel’s initial approach at the
T-junction and the aggression that he at that time
displayed towards
the accused were not foreshadowed in the cross-examination of Nuel.
Neither was his testimony that Nuel confronted
him with what had
happened at the T-junction when Nuel, followed by Benmore and the
deceased, confronted him a little later foreshadowed
in the
cross-examination of Nuel or Benmore. The evidence of Mavis and that
of Freddy also contradicts the accused’s evidence
that Nuel
approached him or that he displayed any form of aggression towards
the accused at that stage of the events.
[20] The
accused testified that he noticed that Nuel, Benmore, and the
deceased each had a bottle in their hands from which they
were
drinking alcohol when they approached him. Nuel was cross-examined
on whether he had consumed alcohol, but it was not suggested
to him,
or to Benmore, that the accused had seen them drinking alcohol. The
accused’s evidence that Nuel poked him with
a bottle was also
not put to Nuel. His evidence that Nuel threw a bottle at him when
the accused got out of the Audi and that
Benmore and the deceased
each threw a bottle at him once Nuel had fallen after the accused had
slapped him, is in conflict with
the version of the accused that was
foreshadowed in their cross-examination. It was put to Nuel that he
and his friends were very
aggressive, that they ‘threw an
assortment of beer bottles at the accused’ when they approached
him, that Nuel asked
him who he thought he was, and that the accused
got out of the Audi to question them as to why they were acting
aggressively.
It was put to Benmore that the accused stopped the
Audi at a point beyond the tavern (next to point 5 depicted on
exhibit ‘G’),
that Nuel, Benmore and the deceased
approached the accused in an aggressive manner, and that they, upon
their arrival, threw beer
bottles at the Audi and at the accused.
[21] When
cross-examined, the accused testified that he alighted from the Audi,
because he was angered by Nuel poking him with the
bottle. He was
able to avoid Nuel earlier on at the T-junction by driving away, but
he was no longer able to avoid him. He slapped
Nuel without saying
anything. I have mentioned that Nuel was not confronted with the
alleged incident at the T-junction. It was
put to Nuel that the
accused got out of his vehicle to question them as to why they were
acting aggressively and that he slapped
Nuel in order to protect his
property (presumably his car).
[22] The
accused testified that he did not produce his firearm at any stage
during the events at the Audi. His evidence in this
regard is in
total contradiction with his version that was put to the state
witnesses. It was pertinently put to Nuel and to Herbert
that, upon
realising that Nuel was not alone or that there was more than one
assailant (this was after he had hit Nuel), the accused
produced his
firearm. The reason why the accused produced his firearm that was
put to Nuel and to Benmore is also contradicted
by the accused’s
evidence. He testified that he had noticed Nuel, Benmore and the
deceased at the stage when they were approaching
the Audi.
[23] The
accused testified that he noticed that Freddy was pulling out the
firearm that was tucked away at the accused’s waist
after the
bottles had been thrown at him. Again, this evidence contradicts his
version that was foreshadowed in the cross-examination
of the state
witnesses. It was put to Nuel that the accused produced his firearm
and that his passenger took the firearm from
him as Nuel ‘correctly
put it’ in his evidence. What Nuel so ‘correctly’
said is that the accused’s
passenger grabbed the firearm from
the accused’s hand. It was also put to Herbert that, after the
accused had produced his
firearm, his passenger returned and disarmed
the accused.
[24] The
evidence of the accused, Mavis and Freddy about the events at the
Audi is materially contradictory. The undisputed evidence
of Nuel,
Benmore, Herbert, and Bigboy is that Nuel, followed by Benmore and
the deceased, approached the accused at this point
in time. This is
also the evidence of the accused. It is also common cause that the
accused is a tall man of 1,8 metres in height
and that Nuel is also a
tall man of about the same height. Yet, Mavis testified that a
‘short gentleman’ of about
1, 5 metres tall, who was
followed by four men, approached the accused while he was seated in
the Audi. The short man, who had
a bottle in his hand, asked the
accused ‘who do you think you are’; he poked the accused
with his finger on the forehead;
and he hit the accused with the
bottle on his head. The accused got out of the car; he grabbed this
short man; he asked him
‘what are you doing’; he
slapped him across the face; and the short man fell. Thereafter the
four others ran towards
the accused and they threw bottles at him.
Under cross-examination she testified that the short gentleman was
followed by three
men, who did not have bottles in their possession
when they were approaching the accused. They picked up the bottles
from the
ground and threw them at the accused. The three were
followed by another man who had three bottles in his possession.
[25] Freddy
testified that, upon his return from the tavern, he noticed a
commotion at the Audi. The accused was standing close
to the
driver’s door on the right hand side of the Audi and ‘more
than five’ people were throwing bottles at
him. Freddy’s
evidence is to the effect that bottles were thrown continuously at
the accused from the time that he returned
from the tavern until
after he had taken the accused’s firearm. In this regard he
said the following when he was cross-examined:
‘They were
still throwing bottles, but there were not as many as I saw at the
time when I came out of the tavern.’
His evidence in this
regard is obviously contradictory to that of the accused who
testified that only three bottles were thrown
at him. Freddy also
contradicted himself on whether it was dark or whether the area was
well lit and why he was unable to say
what type of bottles were
thrown at the accused.
[26] It
is common cause that Freddy took a firearm from the accused. The
only issue is whether he grabbed the firearm from the
accused after
the accused had produced it, which is the unchallenged evidence of
the state witnesses, or whether he took it from
the accused’s
waist, which is the evidence of the accused, Mavis, and Freddy.
Freddy testified that, upon realising that
there were people throwing
bottles at the accused and upon seeing the firearm tucked in at the
hip of the accused, he went to the
accused and took the firearm from
him in order to keep it safe inside the Audi. We find it improbable
that Freddy would have disarmed
the accused had he indeed been under
attack by a group of more than five men. His firearm was probably
the only weapon with which
he could have defended himself against the
alleged attack. Freddy testified that he took the firearm from the
accused because
he was worried that the accused’s assailants
might end up taking it. It is improbable that Freddy, in such
circumstances,
would have tried to safeguard the firearm by intending
to put it in the Audi where his wife and child were seated and
thereby placing
them at risk by attracting the assailants to where
they were seated. It is common cause that the events at the Audi
came to an
end once or soon after the firearm had been taken from the
accused.
[27] To
sum up thus far, the accused, Mavis, and Freddy contradict each other
in material respects insofar as their evidence relevant
to the charge
of assault is concerned. There are material contradictions between
the evidence of the accused and his version that
was put by his
counsel to state witnesses. Certain material aspects of the
accused’s evidence were not foreshadowed in the

cross-examination of the state witnesses. The accused and his
counsel were afforded whatever time they required for consultations

when it was indicated that he wished to consult with his counsel or
when his counsel wished to take instructions from him. The
evidence
of Mavis on material issues is at odds with the common cause facts
and rather corroborates the evidence of the state witnesses
that
there was only one passenger in the Audi. The exculpatory version
put forward by the accused, insofar as the charge of assault
is
concerned, and the evidence of his witnesses on the disputed issues,
are, on the totality of the evidence, in every respect
palpably
false.
[28] There
are unsatisfactory features to the evidence of Nuel. Notably, his
testimony that the Audi almost collided with them
when it initially
stopped in front of the Golf where they were standing. They had to
move once it stopped and that is why Nuel
believed it almost collided
with them. The evidence of Benmore, Herbert, and Bigboy, contradicts
his evidence on this issue.
Their evidence is that the Audi almost
collided with them once it proceeded further after it had initially
stopped in front of
the Golf where they were standing. Their
evidence on this issue is on the totality of the evidence accepted.
[29] Nuel
contradicted himself on a few aspects, such as: whether or not there
were vehicles present in the street at the time
of the incident other
than the Golf and the Audi; the positions in which they stood at the
Golf (in a circle or in a line); and
the direction that they or each
one of them were facing. There are also contradictions between the
evidence of Nuel and a police
statement which he had made later on
during the evening in question (exhibit ‘F’), but such
contradictions are, in
our view, to be ascribed to communication
problems between him and the officer who took down his statement in
English (Nuel spoke
Sepedi, the officer Setsonga, and the statement
was written in English) and his emotional state at the time when he
made the statement.
His evidence, insofar as it is relevant to the
charge of assault, is in almost all its material respects
corroborated by that
of Benmore, Herbert, and Bigboy. Nuel is, we
are satisfied, not a lying witness. His recollection on a few
aspects is imperfect.
The unsatisfactory features in his evidence,
on the totality of the evidence, do not impair his credibility as a
witness or the
reliability of his evidence on the many other material
aspects relevant to the assault charge, particularly those that are
corroborated
by the evidence of Benmore, Herbert and Bigboy.
[30] Contrary
to his evidence that the firearm was not pointed at anyone, it is
stated in Benmore’s police statement (exhibit
‘H’),
which was made later on during the evening in question, that he
called the police to report the pointing of a
firearm since the
accused pointed the firearm at the deceased. Benmore denied that he
said this to the police. Again, different
languages were used
between him and the officer who took his statement, Benmore was still
in shock at that time, and we accept
that he could have missed the
error made in his statement when it was read back to him. Not one
witness for the state or for the
defence suggested that the accused
pointed a firearm at the deceased at that stage of the events.
Benmore was also criticised
for not having mentioned in his statement
his evidence that when Nuel, Benmore, and the deceased arrived at the
Audi, Nuel greeted
the accused and asked him whether he wanted to
collide with them. This omission too, in our view, does not detract
from his credibility
as a witness and his reliability on the other
issues which he testified about insofar as the charge of assault
against the accused
is concerned.
[31] Bigboy
and particularly Herbert were hardly cross-examined. Their evidence,
insofar as it pertains to the charge of assault
against the accused,
is coherent, satisfactory in all material respects, and reliable in
the light of all the evidence. They corroborated
each other on most
of the material aspects. Each one’s evidence is also in most
of the material respects corroborated by
that of Nuel and Benmore.
[32] The
inability of the state witnesses - Nuel, Benmore, Herbert and Bigboy
- to give accurate accounts on matters, such as where
precisely each
one in their group stood on the pavement at the Golf (besides their
evidence that Herbert and Bigboy leaned against
or stood in a
position with the Golf immediately behind them), whom of them the
Audi almost collided with, who moved away after
it had happened, and
their differing accounts on matters, such as whether the Audi paused
next to them after it had left the point
where it first stopped and
before it reached the point where the assault took place (Benmore
testified that the Audi briefly stopped
next to them at which stage
Nuel asked the accused whether he wanted to collide with them, and
Herbert testified that Nuel at
that stage asked him why he did not
hoot for them so that they could give way), whether the accused said
anything to Nuel when
he was approached by Nuel, Benmore, and the
deceased (Benmore and Herbert testified that the accused said to them
‘what were
you saying’), what precisely Nuel said to the
accused (Nuel testified that he only greeted him; Benmore testified
that Nuel
greeted him and asked whether he wanted to collide with
them; Herbert testified that he did not hear the conversation
between
the accused and Nuel; and Bigboy was not asked about the
conversation), whether the accused stepped on Nuel once he had fallen

(Benmore said he put his foot on Nuel’s chest, and Bigboy said
he put his foot on Nuel’s head), whether the deceased
also
spoke to the accused (Nuel and Benmore testified that the deceased
also apologised to the accused), are by and large to be
expected in
circumstances where various eyewitnesses recount their observations
in regard to events which took place eighteen months
previously. The
differences which emerge upon a comparison of the evidence of Nuel,
Benmore, Herbert, and Bigboy, in our judgment,
are by and large
immaterial and insignificant as far as such differences pertain to
the charge of assault.
[33] We
are satisfied that the totality of the evidence proves beyond
reasonable doubt that the accused did not have bottles thrown
at him
and was not assaulted. Upon being confronted – rightly or
wrongly – with the manner in which he drove, the
accused
assaulted Nuel by slapping him in the face and the accused thereupon
pulled out his firearm. The only reasonable inference,
on the
totality of the evidence, is that the accused’s passenger,
Freddy, grabbed the firearm from the accused, because the
accused was
acting irrationally. When this happened the events at the Audi
ended. It has, we are satisfied, been proved beyond
reasonable doubt
that the accused unlawfully and intentionally assaulted Nuel.
[34] I
now turn to a consideration of the charge of murder. It is common
cause that after the accused’s firearm had been
taken by his
passenger, Freddy, at the time of the events at the Audi, the
deceased ran away to the T-junction and left into Mdaka
Street. The
accused and Freddy got back into the Audi. The accused drove in the
same direction in which the deceased had run.
The accused testified
that he did this, because, upon entering the Audi, Freddy told him
that the deceased had snatched the firearm
from him when he was about
to enter the car. Freddy testified that he had gone around the front
of the Audi to the left rear passenger
door after he had taken the
firearm from the accused. When he was about to open the door to get
in, somebody came from behind
him and snatched the firearm from his
right hand in which he held it. Freddy saw the person running down
the street to the stop
sign at the T-junction and he told the accused
about the snatching when he, Freddy, got into the Audi. The accused
testified that
he turned left into Mdaka Street and drove in the
direction in which the deceased had run.
[35] The
accused travelled for a distance of about 50 metres along Mdaka
Street when he ‘spotted’ the deceased. Freddy
confirmed
to him that that person was the person who had taken the firearm.
The deceased was coming out of one of the houses or
properties. Upon
seeing them, the deceased turned and tried to hide. The firearm was
tucked inside the front part of the deceased’s
pants. The
accused got out of his vehicle, he held his two hands together
simulating that he was holding a firearm, and he shouted:
‘I’ll
shoot you! Drop the firearm you have!’ The accused ran to the
deceased and he grabbed him. A tussle
ensued for the possession of
the firearm. A shot was fired at a stage of the struggle when their
arms were raised above their
heads. The deceased was holding onto
the butt of the firearm with both his hands while he was pulling it
away from the accused
in a downward direction. The accused’s
left hand was clutching onto the hands of the deceased and his right
hand holding
onto the barrel of the firearm while he was struggling
to pull the firearm out of the deceased’s hands by pulling the
barrel
upwards.
[36] It
is common cause that the deceased was fatally wounded by a bullet
that was fired from the accused’s service pistol.
The defence
raised by the accused is that he defended himself against the
deceased’s act of theft of his service pistol
and that the
fatal shot was fired during the struggle between the accused and the
deceased for possession of the firearm. Mr.
Mgiba, on behalf of the
accused, submitted that the killing of the deceased was therefore not
unlawful. He also submitted that
the accused did not have the
legally required intention to bring about the death of the deceased.
[37] The
evidence of the accused and of Freddy and that of Mavis are
contradictory on aspects relating to the events which immediately

preceded the shooting of the deceased. Mavis testified that after
the firearm had been snatch from him, Freddy went to the accused,
who
at that stage was standing on the right hand side of the Audi and
about to enter it, and he told him that the firearm had been
taken.
I have mentioned that the evidence of the accused and of Freddy is
that Freddy told the accused about the snatching of
the firearm once
Freddy got back into the Audi. It is further common cause that only
the deceased ran down the street towards
the T-junction and that
Benmore ran to or in the direction of the Golf, which was parked only
a few metres away from where the
events took place at the Audi.
Mavis, contrary to the evidence of the accused and of Freddy,
testified that Freddy pointed out
the ‘youngster’ who had
taken the firearm while they were still driving towards the stop sign
in the street in which
the tavern is situated. He, according to
Mavis, stood with someone next to the street not far away from the
stop sign and he ran
away when he was pointed out. The accused
stopped and got out of the car. The ‘youngster’ was
running away and the
accused ran after him, chasing him. The
deceased ran to a house and the chasing continued into that house.
Mavis estimated the
distance that the accused was chasing the
‘youngster’ at about 40 metres. The accused later
returned with a firearm
in his hand. It is common cause that the
incident took place at No. 3852 Mdaka Street, which is in a different
street from the
one where Mavis testified that the accused stopped
and started to give chase to the deceased. She evidently testified
about
events that she would not have been able to see from where she
was allegedly sitting in the front passenger seat of the Audi. We,

on the totality of the evidence, do not consider Mavis to be a
credible witness. Her evidence is not reliable, and it is rejected

in its entirety.
[38] There
are also material contradictions between the evidence of Freddy and
that of the accused. Freddy testified that the accused
did not turn
left at the T-junction into Mdaka Street in order to follow the
deceased, but to go home. He testified that they
were not going to
search for the ‘youngster’ who had taken the firearm.
They realised nothing could be done. They
did not see which
direction the youngster had taken when they reached the stop sign and
it was merely a coincidence that the accused
had taken the same
direction. They drove for a short distance – about 100 metres
– along Mdaka Street, when Freddy
‘spotted the
youngster’. Freddy identified him by the colour of his
clothing and by his height. He was standing with
somebody else.
Freddy told the accused that that person was the one who took the
firearm from him. The accused stopped and alighted
from the Audi.
The ‘youngster’ started to run away when he saw the car.
The accused ran after and gave chase to him
into a nearby house. The
Audi was stopped on the road surface and Freddy parked it on the side
of the street. After a short while
the accused returned to the
vehicle with the firearm.
[39] The
accused’s evidence relating to these events is also not without
contradiction. A few examples suffice. In his evidence
in chief the
accused testified that the deceased took out the firearm while he was
facing in the direction of the house from which
he had come
immediately before the accused approached him, and, when he was
cross-examined, the accused testified that the firearm
came out from
the front of the deceased’s trousers once the tussle had ensued
between them for possession of the firearm.
It was put to Nuel that
one of his friends had taken the firearm from the accused’s
passenger and that the accused got back
into his car in an attempt to
get away from this scene in order ‘to avoid a situation where
the gun that was taken away was
used to harm other people.’
This version is contradicted by the accused’s evidence that he
did not see where Freddy
had gone after he had taken the firearm from
the accused or that he did not see the deceased taking the firearm
from Freddy. The
snatching of the firearm was only reported to him
once Freddy got back into the Audi.
[40] It
is, however, trite that lies in themselves or improbabilities in an
accused’s version do not establish the guilt of
an accused
person. See:
S
v Steynberg
1983
(3) SA 140
(A), at p 146A - E;
S
v Mtsweni
1985
(1) SA 590
(A);
S
v Shackell
2001
(2) SACR 185
(SCA). The question is whether the state has discharged
the burden upon it of proving his or her guilt beyond a reasonable
doubt.
[41] The
accused alone is able to give evidence about the circumstances in
which the deceased received the fatal gunshot wound.
Freddy
testified that he did not witness the struggle or firing of the shot.
Mavis also did not claim to have witnessed that.
The state
witnesses - Nuel, Benmore, Herbert, and Bigboy - testified that they
did not witness that part of the incident. The
accused’s
exculpatory evidence and his explanation about the struggle between
him and the deceased for the possession of
the firearm are in
material respects unsatisfactory. We accept that much of the
accused’s elaborate step by step account
of the struggle that
occurred about eighteen months ago and what must have been a fast
moving incident is perhaps hypothesis -
elicited from him in
cross-examination or given in answer to my questioning - in an
attempt to furnish a plausible account of an
event that is not
necessarily capable of a precise, coherent, and reliable explanation.
We, to use the words of Greenberg, JA
in
Goodrich
v Goodrich
1946
AD 390
, at p 396, ‘... guard against the intrusion of any idea
that a party should lose his case as a penalty for perjury’
and
we bear in mind what Feetham, J said in
Maharaj
v Parandaya
1939
NPD 239
, at p 243:
‘
Some innocent people
meet accusations by simply telling the truth. Others, who may be
equally innocent of the accusation, take
refuge in some invented
story, because they are not satisfied that the truth alone would be
sufficient to carry conviction.’
[42] We,
of necessity, must do without the aid of a reliable account of the
struggle. See:
S
v Steynberg
1983
(3) SA 140
(AD), at p 148C-D;
S
v Coetzer
2000
(2) SACR 169
(WLD), at pp 171 i – 172 d. The fatal gunshot
wound and its tract through the muscles of the left upper arm,
backwards,
downwards and to the fourth lumbar vertebra, although not
consistent with the account of the struggle given by the accused, is
logically not inconsistent with a shot that was fired somewhat wildly
during the course of a struggle.
[43] It
would not, in all the circumstances, have been unlawful for the
accused to have followed the deceased, to have grabbed him,
and to
have wrestled with him in defence against the deceased’s act of
theft of the accused’s service pistol if it
was indeed snatched
by the deceased. Refer generally to
Ex
parte Die Minister van Justisie: In re S v Van Wyk
1967
(1) SA 488
(A) and
S
v Texeira
1980
(3) SA 755
(AD), at p 765 A – C, and in particular to
S
v Mogohlwane
1982
(2) SA 587
(T). Such acts, if they were acts of recovery, were
resorted to and followed through
instanter
or forthwith
and formed part of the
res
gestae
of
the snatching of his service pistol by the deceased, if it was
snatched by him. See:
S
v Mogohlwane
(supra)
,
at pp 590G – 593G. The accused, if his version is reasonably
possibly true, approached the deceased unarmed. It is not
suggested
that the deceased was known to the accused. The state has in such
event not proved that there was a less dangerous and
effective method
reasonably available to the accused to defend himself against the
theft of his service pistol. See:
Ex
parte Die Minister van Justise (supra)
,
at pp 497H – 498C and p 501D –E and
S
v Mogohlwane (supra)
,
at p 594B – C. If it is reasonably possibly true that the
gunshot, which fatally wounded the deceased, went off during
the
struggle for the possession of the firearm between the deceased and
the accused, then it follows, in all the circumstances
of this case,
that the state has failed to prove beyond any reasonable doubt that
the accused had acted unlawfully or intentionally
or with a lesser
form of
mens
rea
.
[44] When
all the elements which point to the guilt of the accused are weighed
against all those which are indicative of his innocence,
we find
ourselves unable to conclude that ‘... the balance weighs so
heavily in favour of the State as to exclude any reasonable
doubt
about the accused’s guilt.’ See:
S
v Chabalala
2003
(1) SACR 134
(SCA), para [15]. What is decisive for us is the issue
of the alleged snatching by the deceased of the accused’s
service
pistol from the accused’s passenger, Freddy, at the
time of the events at the Audi.
[45] The
evidence of the state witnesses - Nuel, Benmore Herbert, and Bigboy -
is materially contradictory on the issue in whose
possession the
firearm was at the time when the accused and his passenger got back
into the Audi once the events at the Audi had
ended. Nuel, Herbert,
and Bigboy testified that Benmore and the deceased ran away
immediately after the accused’s passenger
had disarmed the
accused. They did not suggest that the accused had taken back his
firearm from his passenger before he and his
passenger got back into
the Audi. Benmore testified that he retreated in the direction of
the Golf and that the deceased ran away
after the accused had taken
back his firearm from his passenger. Benmore did not suggest that
the accused’s passenger had
taken back or had been given the
firearm before the accused and his passenger got back into the Audi.
Bigboy pertinently testified
that the accused’s passenger still
had the firearm in his hand when he and the accused got back into the
Audi. This contradiction
in itself proves only that one or more or
all of the state witnesses are erroneous on the issue in whose
possession the firearm
was at the time when the accused and his
passenger got back into the Audi and left. We are unable to find
that the evidence of
Nuel, Herbert, and Bigboy is to be believed in
preference to that of Benmore on this contradictory and material
issue. We can
only conclude that their evidence on this issue is not
reliable and does not rebut that of the accused and of Freddy beyond
a reasonable
doubt.
[46] The
evidence of the accused and of Freddy that the deceased had snatched
the firearm from Freddy before he ran away cannot,
on the totality of
the evidence, be held not to be reasonably possibly true. It is
common cause that the deceased, unlike Benmore
and Nuel, did not
return to their group of friends at the Golf. Instead, the deceased
ran away to the T-junction and left into
Mdaka Street. The accused
did not chase after Nuel or Benmore. He chased after the deceased.
One of a few inferences which may
reasonably be drawn from these
proven facts, in the light of the unreliable state evidence on the
question of who had the possession
of the firearm at the time when
the accused and Freddy got back into the Audi, is that the deceased
ran away, because he had snatched
the accused’s service pistol,
and that the accused followed the deceased in defence against the
theft. It cannot, from the
proven facts, be inferred beyond
reasonable doubt that the deceased ran away for a reason of his own,
such as that he was frightened,
and that the accused followed or
approached him with evil intent.
[47] The
inevitable conclusion is that it cannot, from the proven facts, be
found beyond reasonable doubt that the accused unlawfully
and
intentionally brought about the deceased’s death or that he
acted with any lesser form of
mens
rea
.
[48] In
the result, the accused is found:
a. not guilty and he is
discharged on count 1, which is the charge of the murder of the late
Mr. Owen Mabundla; and
b. guilty as charged on count
2, which is the charge of assault upon upon Mr. Sevha Nuel Mabundla.
P.A. MEYER
JUDGE OF THE HIGH COURT
10 May 2010