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[2021] ZAGPJHC 126
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S v Baloyi (SS14/2020) [2021] ZAGPJHC 126 (17 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: SS14/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE: 17/05/2021
In the matter between:
THE STATE
and
BONGANI BALOYI
JUDGMENT
MABESELE,
J
:
[1]
The accused is facing four counts of attempted murder and a count of
murder, read
with
section 51(1)
of the
Criminal Law Amendment Act,
105 of 1997
.
[2]
The allegations against the accused is that on or about 12 September
2012 and at or
near Christian de Wet Road, Roodepoort, the accused
did unlawfully and intentionally attempt to kill Urgent Mayo (Count
1).
[3]
On 3 October 2019 and at or near South African Drive and Central
Africa Republic Road,
Randburg, the accused allegedly did unlawfully
and intentionally attempt to kill Thabo Mashola (count 2) Shima
Marutha (Count 3)
and Tshepang Nkwana (Count 4) and did unlawfully
and intentionally kill Seja Nkwana (Count 5).
[4]
The accused pleaded not guilty to each count. With regards to count 1
and 5, respectively,
the accused pleaded self-defence. He made
admissions in terms of
section 220
of Act 51 of 1977 and admitted,
inter alia
, the course of death of the deceased in count 5,
being a “gunshot wound to the head, chest and abdomen” as
stipulated
in the medico-legal post-mortem examination report marked
exhibit ‘E’.
[5]
Lieutenant Colonel Marais testified on count 1. He has been in the
employ of the SAPS
for 24 years to date. He was stationed at the
Honeydew police station in 2012.
[6]
On 12 September 2012, around 07:12, Mr Marais, who was a passenger in
a state vehicle
which was driven along Christian de Wet Road toward
Honeydew, noticed the two vehicles parked outside Jean Fouche road.
The vehicles
were in the opposite direction not far from him. Three
people were standing next to the vehicles and arguing. One was
wearing a
police uniform and the other holding a firearm in his hand.
Having noticed that incident he asked his colleague, Eksteen, to make
a U-turn and drive to the area where the vehicles were parked. On
their arrival at the scene they stopped 20 metres behind the
two
vehicles. As he alighted from the vehicle and walked towards the two
vehicles he saw the person who had carried a firearm,
being the
accused, fire a shot at the person who was standing close to the
vehicles, being Moyo. After that incident he ran closer
to the
accused and disarmed him of the firearm. He did not witness any
physical fight between the accused and Moyo before a shot
was fired.
[7]
After Marais had disarmed the accused of his firearm he found out
from both of them
what they were arguing about. Since none of them
had given him a clear explanation he decided to arrest them.
[8]
Mr Thabo Mashola testified on counts 2 to 5. The deceased in count 5
was his brother-in-law.
Mashola testified that on 3 October 2019, at
approximately 19:00, he and his friend, Chicco, were in the company
of the deceased
and his 4-year-old boy in the deceased’s
vehicle. They were travelling to Honeydew. He occupied the front
passenger seat
and Chicco and the boy occupied the backseat. The
three of them (that is he, Chicco and the deceased) had consumed
alcohol earlier
that day but were not drunk. Along the way they
reached an intersection at the South African Drive and Central
African Republic
Drive. Immediately after they had driven through the
intersection a white golf which was travelling in the opposite
direction towards
them made a U-turn and drove in their lane behind
them. Thereafter the golf suddenly drove pass them and travelled
slowly in front
of them. Upon realising that, the deceased overtook
the golf and drove parallel it with the intention to ask the driver
of the
golf about his manner of driving. Since the windows of the
golf were closed the deceased was unable to talk to the driver. The
deceased decided to drive pass the golf and immediately stopped his
vehicle in front of the golf, thereby forcing the driver of
golf to
stop behind him. After both vehicles had stopped the deceased
alighted from his vehicle and approached the owner of the
golf. The
deceased did not carry anything in his hands. Few seconds after the
deceased had alighted from his vehicle he heard a
gunshot and a
bullet smashed the back window of the deceased’s vehicles while
he, Chicco and the little boy were still inside.
He explained that in
fact the deceased was on his way back to his vehicle when he heard
the first shot. The witness testified that
while the deceased was in
the process of getting into the vehicle he got out of the vehicle and
approached the driver of the golf
with the
intention to calm him down. When he reached the driver at his vehicle
he was pointed with a firearm and took cover on the other
side of the
vehicle. Thereafter he heard several shots. He ultimately ran across
the road and hide among the group of people who
were standing not far
from the crime scene. Lateron he noticed a police vehicle at the
intersection where the deceased had just
drove through before his
vehicle and the golf had stopped.
[9]
He saw the driver of the golf running to the police and handing over
the firearm to
them. He too, ran to the same police to inform them
that they were being shot at. As he was about to reach the police he
heard
the boy cry inside the vehicle of the deceased and he quickly
turned and ran to the deceased’s vehicle to safe the boy. The
witness testified during cross-examination that he made two
statements to the police. The first statement was obtained at the
crime scene and second statement obtained at the police station a day
or two latter. The witness was confronted with these two statements
and asked to explain the discrepancies insofar as they relate to the
conduct of the deceased at the golf after he had alighted
from his
vehicle. It was pointed out to him that in the first statement he
mentioned that the deceased knocked at the window of
the golf whereas
in the second statement no mention was made about the deceased
knocking at the window. His response was that he
was still angry when
he made the first statement and calm when he made the second
statement. He testified that he does not know
who shot the deceased
and how the deceased got shot. He disputed the version of the accused
that he took part in the assault on
him.
[10]
Mr Shima Marutha, known as Chicco, was in the company of Thabo and
the deceased when the deceased
drove pass the vehicle of the accused
and stopped in front of him. Thereafter the deceased alighted alone
from his vehicle and
did not carry anything in his hands.
[11]
The witness said that since he was playing with the little boy at the
backseat he did not notice
what happened between the deceased and the
accused after the deceased had alighted from the vehicle and
approached the accused
at his vehicle which was parked behind the
vehicle of the deceased. He said that the deceased came back and got
into his vehicle.
Immediately after the deceased had closed the door
he heard a gunshot and a bullet smashed the back window of the
vehicle of the
deceased. Thereafter he immediately took cover inside
the vehicle and protected the little boy with his body against the
glasses.
As he lifted up his head and look at the back he heard one
more bullet on the side of the deceased’s door. When he turned
his head to see who was firing a shot he saw a man pointing a
firearm. The deceased was still inside the vehicle. After he had
noticed that, he tried to open the door and escape. While he was
still struggling to get out of the vehicle he heard one more shot.
He
ultimately forced his way out of the vehicle. As he lifted up his
head he saw the deceased and the man standing together at
a short
distance away from the vehicle of the deceased. He does not know how
it came about that the deceased got out of the vehicle.
As he was
watching the deceased and the man next to him, he saw the deceased
crawl. Soon thereafter he heard a gunshot and the
deceased fell to
the ground. Shortly thereafter he saw the police vehicle at a four
way stop not far from him. The accused ran
to the police and gave
them a firearm. Thereafter the police put the accused inside the
police vehicle and drove with him to the
crime scene. From the scene
the accused was driven to the police station.
[12]
Dr Gina Rowe testified in respect of the wounds which were identified
on the body of the deceased
as per the medico-legal post- mortem
examination report marked exhibit ‘E’. The doctor
testified that one bullet penetrated
the right upper arm and went
through the right hand side of the chest and passes through the body
and exited on the left. She testified
that the shooter must have been
on the right side of the deceased when he fired the bullets that
penetrated the right upper arm
and shoulders and could have been
standing some distance away from the deceased. With regard to the
entrance wound in the left
frontal area of the head the doctor
testified that the bullet was fired at a close range (because of the
presence of a tattooing
in the left side of the forehead) and went
through the brain, mouth and tongue and through the lung. She
testified further that
the manner in which the bullet penetrated the
head into the body suggests that the deceased must have been in a
lower position
than the shooter.
[13]
Mr Thomas Nkwasho is in the employ of the South African Police
Services. He testified that on
3 October 2019 at about 19:00 he and
his colleague were patrolling around Cosmo City area in a marked
police vehicle. As they approached
a fourway stop on the South
African Drive Road, a certain boy stopped them and told them of the
shooting incident. While the boy
was still talking to them the
accused approached them with a firearm in his hand and told them that
people were fighting him and
he shot someone. After the accused had
handed a firearm to them they drove with him to the crime scene. Upon
their arrival at the
scene they found members of the community
surrounding the deceased on the ground. Having observed that
situation he called a backup.
After the arrival of the other police
officers he took the accused to the police station. He testified that
while the police were
busy making the arrangements for the detention
of the accused into the cells he heard the accused telling one of the
police officers
that he sustained injuries on the head, eye and knee
due to his involvement in a fight with the people on the road.
[14]
He looked at the accused and did not observe visible injuries.
However, he made the arrangements
for the ambulance to fetch the
accused. Thereafter he went back to the crime scene. He did not know
whether the ambulance eventually
arrived.
[15]
During cross-examination the witness was confronted with a warning
statement of the accused marked
exhibit “W” which was
taken at the police station wherein the police officer noted injuries
on the eye and left knee
of the accused. The witness did not dispute
the contents of the statement.
[16]
At the close of the state case the court
mero
motu
acquitted the accused on count 1 since he had no case to answer. It
emerged during the trial that Mr Moyo who was the complainant
in this
count voluntarily withdrew his complaint or charge against the
accused almost six years before the start of this trial.
No evidence
was led to justify the prosecution of the accused on count 1.
[1]
This is despite the fact that the state advocate had initially
undertook to present evidence of the investigating officers and
someone who was in the company of Mr Moyo when the alleged offence
was committed. The only witness who was called to testify did
not
advance the state case because he did not know why the complainant
was shot.
[17]
The accused took the stand. He first corroborated the evidence of the
state witnesses who were
passengers in the deceased’s vehicle
that he made a U-turn at the fourway stop and drove slowly in front
of the deceased
vehicle. He was driving alone. The deceased overtook
him and drove parallel to his vehicle. During that process the
deceased accelerated
and stopped in front of him. He too, was forced
to stop. His version is that after both the vehicles came to a halt
the accused
and two passengers alighted from the vehicle of the
deceased and approached him while he was still seated inside his
vehicle. The
deceased and two passengers banged the windows of his
vehicle and demanded that he should alight from the vehicle. During
that
process the two of them opened his driver’s door and
pulled him out of the vehicle. Thereafter they began assault him with
fists and hit him with a hard object on his right shoulder. They
ended up pushing him to the ground and continued to assault him
with
fists and kicking him to an extent that he became dizzy and felt
pains. While he lay on the ground he pulled out a firearm
from the
holster on his waist and one of them kicked his hand and the firearm
fell on the ground. He grabbed it and stood up. And
one of his
assailants grabbed it from his hand. At that stage the other two
assailants assisted their colleague to disarm him of
the firearm. As
he was fighting for a firearm he managed to cock it and a bullet went
off. Thereafter he ran away with the firearm
while one of his
assailant grabbed him from behind and was followed by his colleagues.
He ran for a distance of about 4 metres
before his assailant tripped
him and brought him to the ground and assaulted him again. While he
was on the ground the deceased
kneeled and throttled him and the
other two held both his hands and tried to disarm him of his firearm.
He testified that despite
all these, coupled with loss of strength,
he managed to pull the trigger twice and the bullets went off. As he
tried to stand the
deceased throttled him again and while he was in
the process of falling on the ground slightly on his back he fired
another shot
and the deceased fell on him. The other two ran away. He
stood up and saw the police vehicle at the fourway stop and rushed to
the police.
[18]
On arrival at the fourway stop he informed the police that he was
under attack and shot someone.
After he had handed over his firearm
to the police he was put at the back of the police vehicle and the
police drove to the crime
scene. From the crime scene he was taken to
the police station and was arrested. He testified that he sustained
injuries during
assault.
[19]
During cross-examination the accused was referred to his affidavit
marked exhibit ‘X’
which was used by his counsel during
his bail application and it was pointed out to him that he mentioned
therein that at some
stage the assault on him stopped for a while,
this being inconsistent with his evidence-in-chief that at no stage
that the assault
on him stopped. The accused admitted that the
contents of the affidavit was read and interpreted to him in court
and he confirmed
their correctness. The accused did not call
witnesses.
[20]
It is common cause that there was a road rage and altercations which
resulted in the assault
of the accused and death of the deceased. The
accused sustained minor injuries on his right eye, left knee and
minor lacerations,
as noted by the police in the warning statement of
the accused marked exhibit “W”. One bullet was discharged
from the
firearm of the accused and smashed the back window of the
vehicle of the deceased in which a 4-year-old child was seated in the
backseat. Three more shots were discharged by the accused and hit the
deceased.
[21]
The accused pleaded self-defence. It is not in dispute that neither
the deceased nor his companions
had carried weapons with them.
[22]
The issues to be determined are the following:
I.
Who
assaulted the accused?
II.
Was the use of firearm by
the accused proportionate to the assault on him? And if not, did the
accused merely exceed the limits
of self-defence or committed a
premeditated murder?
III.
Did the accused attempt to
murder the occupants in the vehicle of the deceased when a bullet
from his firearm smashed the back window
of the vehicle?
[23]
During closing arguments both counsel incorrectly said that the
accused pleaded not guilty to
murder in accordance with section 51(2)
of Act 105 of 1997 whereas the accused pleaded not guilty in
accordance with section 51(1)
of the same Act as clearly indicated in
the indictment. Both counsel were again afforded an opportunity to
address the court on
this issue and have corrected themselves.
[24]
The evidence of Mashola is that after he had alighted from the
vehicle after the bullet had smashed
the window and was pointed with
a firearm by the accused he went on hiding and did not see what
happened to the deceased. This
evidence, as correctly argued by the
legal representative of the accused, does not advance the case for
the state insofar as it
relates to the count of murder. Although this
witness was not impressive, his evidence that he and Marutha did not
alight from
the vehicle with the deceased is corroborated by Marutha.
In any event the fact that the witness is unimpressive does not
necessarily
render his or her evidence inadmissible in that there are
various factors which may affect the demeanour of the witness in a
witness
box such as intimidation by the conduct of the cross-examiner
or the court room which the witness is not familiar with.
[25]
The two statements which were made by Mashola are consistent insofar
as his version is concerned
that he remained inside the vehicle when
the deceased approached the accused. His version the he was angry
when he made the first
statement and calm when he made the second
statement lateron at the police station has merit. The first
statement was taken by
the police at the scene when the witness was
looking at his brother-in-law lying stone dead on the ground after he
was shot.
[26]
The tendency by the police to obtain the statements from the
witnesses at the horrific crime
scene where their loved ones had just
been murdered is unacceptable. It can hardly be said that such
witnesses were in their sober
minds when they made such statements
although the legal representatives persist in their argument that the
witnesses made such
statements while the incidents were still fresh
in their minds and are not credible in that their statements differed
from their
evidence-in-chief. In fact what is fresh in the minds of
the witnesses at the crime scene is nothing else than the gruesome
murder
which they had just experienced and possibly the scream or
last words spoken by the deceased. Although the legal representatives
have the right to cross-examine the witnesses on their statements
which were taken at the crime scene there is nothing that debar
them
from being sensitive when cross-examining the witness on those
statements.
[27]
Most of the witnesses whose statements are taken at the crime scene
including streets are “poor”
(lacking knowledge or
ignorant about their rights due to illiteracy) and to regard them as
incredible witnesses in that their statements
differ from their
evidence-in-chief is to take away from them their self-esteem and
this cannot be encouraged. It is disrespectful
of someone’s
right to dignity to obtain the statement from someone in the street
and commission the statement in his absence.
[2]
[28]
Mashola and Marutha corroborated each other that the bullet smashed
the back window of the deceased’s
vehicle while they were
inside the vehicle with a 4-year-old child and the deceased was
already back to his vehicle. The evidence
of these witnesses persuade
me to accept that the bullet smashed the window while they were
inside the vehicle and did not alight
from it with the deceased when
he approached the accused.
[29]
With regards to the count of murder the state relies on the evidence
of Marutha. This is evidence
of a single witness and should be
approached with caution as stated in numerous decisions. In R V
Mokoena
[3]
it is stated that in
considering the evidence of a single witness the court should
investigate closely both the credibility of
the witness and the
reliability of the evidence given by that witness. The evidence must
be clear and satisfactory in every material
respect
[4]
.
[30]
Marutha testified that as he was struggling to get out of the vehicle
after the bullet had smashed
the window he saw the accused standing
next to the right door of the vehicle of the deceased and had pointed
a firearm. The deceased
was inside the vehicle. Shortly thereafter he
heard two gun shots. This version of the gun shots is strengthened by
the two cartridge
cases marked ‘C1’
and
‘C2’ respectly, found on the ground on the right side of
the deceased’s vehicle and the front side towards
the left, as
depicted in the photos 1 and 2 of exhibit ‘H’ and a
bullet mark on the right door as depicted in photo
24 of the same
exhibit. This version of Marutha is again strengthened by the
argument of the counsel for the accused during closing
argument that
he had no problem with it though he does not accept it. This last
phrase is correct in that the evidence is accepted
or rejected by the
court.
[31]
Marutha testified that he did not see how the deceased alighted from
the vehicle after he heard
the gun shots and seeing the accused
standing on the right door of the vehicle. He suddenly saw the
deceased and accused on the
island not far from the deceased’s
vehicle. The deceased carried nothing in his hands. He then saw the
deceased crawl and
fell on the ground and during that process he
heard a gun shot. This version of a shot is strengthened by a
cartridge case marked
‘C4’ next to the body of the
deceased as depicted in photo 39 of exhibit ‘H’.
[32]
When this witness mentioned that the deceased crawled counsel for the
accused asked him to physically
crawl in court to demonstrate that he
understands the meaning of the word. That exercise did not
materialise because it was stopped
by the court.
[5]
[33]
All the counsel, though understandably working under pressure most of
the time, should always
be mindful that every witness or accused has
inherent dignity and the right to have their dignity respected and
protected. Similarly,
the judicial officers (myself included) should
always guard against being harsh on counsel when questioning them
about certain
issues. All these are aimed at enhancing the decorum of
the court.
[34]
The evidence of Marutha insofar as it relates to how the deceased got
shot is clear and satisfactory
in every material respect and is
accepted.
[35]
The version of the accused is that after he was pulled out of the
vehicle by the three assailants
he was hit with fists and a hard
object on the shoulder and pushed to the ground and kicked and became
dizzy and felt pains. Based
on this version of events, I find it
improbable that the accused could have still managed to pull out a
firearm from the holster
on his waist and cock it while he lay on the
ground.
[36]
Furthermore, it is impossible that the accused would have managed to
pull the trigger three times
while he lay on the ground and being
throttled and had lost strength and both his hands held by his
assailants. Therefore, his
version that the bullet was discharged
from his firearm during physical attack by the deceased and his
companions is rejected as
not being reasonably possibly true.
[37]
Since there is evidence that the accused sustained minor injuries and
a finding that Mashola
and Marutha did not alight from the vehicle
with the deceased when he approached the accused the reasonable
conclusion is that
the accused was assaulted by the deceased.
[38]
The question now is whether the accused’s plea of self-defence
is sustainable. A person
acts in self-defence, and his or her act is
therefore lawful, if he or she uses force to repel an unlawful attack
which has commenced,
or is imminently threatening, upon him or her
bodily integrity, property or other interest which deserves to be
protected provided
the defensive act is necessary to protect the
interest threatened, is directed against the attacker, and is
reasonably proportionate
to the attack (Snyman Criminal law, p.102)
[39]
The accepted versions of Mashola and Marutha that the deceased was
already at his vehicle when
the bullet smash the window suggests that
the accused had fired a bullet after the deceased had gone back to
his vehicle after
he had assaulted him. This conclusion is
strengthened by the version of the accused which is stated in his
affidavit marked ‘X’
that the assault on him stopped for
a while. Therefore, it cannot be said that the accused discharged a
bullet to repel any attack
on him. In addition, the evidence of Dr
Rowe that the person who shot the deceased on the right arm and
shoulder must have been
standing at a distance away from him suggests
that the accused was not being assaulted when he fired shots.
[40]
After the accused had fired the first shot he approached the deceased
in his vehicle and fired
more shots. Another shot was fired when the
deceased was outside the vehicle on the island and hit the deceased
on the left side
of the forehead below the hairline and went through
the mouth and the lung into the spinal column. Since the first shot
was fired
until the last shot on the island, the deceased, according
to the evidence of Marutha, had not pose any threat to the accused.
[41]
The question now is whether the accused merely exceeded the bounds of
self-defence or committed
a premeditated murder.
[42]
The term ‘premeditation’ refers to an action of planning
something (especially a
crime) beforehand. The plan may take a long
or short period of time depending on how soon the planner intends to
achieve the results.
[43]
The accused fired the first shot when the deceased was no longer near
him and not posing any
threat to him. When the accused approached the
deceased inside his vehicle he had already planned to murder the
deceased in that
he fired more shots. This plan to murder the
deceased is also demonstrated by the accused’s conduct of again
firing a shot
on the deceased’s forehead on the island despite
the fact that the deceased had not pose any threat to him. For these
reasons
the accused should be guilty of murder as charged.
[44]
The accused fired the first shot which smashed the window of the
deceased’s vehicle in
which there were three passengers.
Undoubtedly, the accused ought to have foreseen the possibly that the
passengers may be present
inside the vehicle but nevertheless decided
to fire a shot at the vehicle. Therefore, the accused is also guilty
of attempted murder
as charged.
[45]
I wish to express my displeasure by the unprofessional manner in
which both the counsel conducted
themselves at the time they were
listening to the evidence of a witness in the recording machine.
Counsel should always respect
both the court and members of public in
court.
[46]
In the result, the following order is made:
1.
The accused is acquitted
on count 1.
2.
He is guilty on
counts 2,3,4,5 as charged.
M. M MABESELE
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Date of
Judgment
:
17 May 2021
For the
State
:
Adv Dube
Instructed
by
:
Office of the Director of Public Prosecution
For the
Accused
:
Mr Lisha
Instructed
by
:
Lisha Attorneys
[1]
See
S V Vusi Mjoli (case no: SS 44\2020) wherein evidence was led to
justify the prosecution of the accused on certain counts
despite the
complainant having withdrew her complaint against the accused who
subsequently murdered her.
[2]
See
the evidence of the police officer (Commissioner of Oaths) in S V
Govender and Another Case No: SS103/2019
[3]
1958(2)
SA212at 215 (T)
[4]
Mocke
V S
[2008] ZASCA 80
;
[2008] 4 All SA 330
(SCA) See also,
section 208
of the
Criminal
Procedure Act, 51 of 1977
[5]
See
S V Rampai (case no:
SS 122/2018)
wherein state counsel (female) is
encouraging the accused (female) to undress and show the presiding
judge (male) the injuries
on her breasts despite the fact that the
J88 was admitted as evidence. The accused was stopped from doing so
by the court and
defence counsel