S v Ndlovu (SS 062/2020; 10/2/11/1-064/2020) [2021] ZAGPJHC 890 (17 June 2021)

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[2021] ZAGPJHC 890
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S v Ndlovu (SS 062/2020; 10/2/11/1-064/2020) [2021] ZAGPJHC 890 (17 June 2021)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: SS 062/2020
DPP
REF NO: 10/2/11/1-064/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES/NO
17
June 2021
In the matter between:
THE STATE
and
NDLOVU,
SIPHIWE
GEORGE
ACCUSED
JUDGMENT
MUDAU,
J:
[1]
The accused, George Siphiwe Ndlovu appears
before this court charged in an indictment, which contains 11 counts.
For the sake of
brevity and clarity, the charges may be formulated
and reproduced as follows: murder read with the provisions of section
51(1)
and 51 (2) of Act 105 of 1997 (count 1); attempted murder read
with the provisions of section 51 (2) (c) of Act 105 of 1997
(counts 2 9);
unlawful possession of a firearm as well as
ammunition in contravention of the Firearms Control Act, 60 of 2000
(counts 10-11).
[2]
The accused is legally represented. He
pleaded not guilty to the charges but guilty to the competent verdict
of culpable homicide
in respect of count 1, which the state refused
to accept. The state also indicated that the facts upon which the
accused pleaded
were not consistent with its own case. The accused
presented a statement (“exhibit A”), in terms of section
112 (2)
of the Criminal Procedure Act 51 of 1977 (“CPA”)
in respect of count 1, and a plea explanation in terms of section 115

in respect of the remaining counts through his legal representative,
which he also confirmed. It is signed by the accused. Exhibit
A reads
thus:
“
STATEMENT
IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT, 1977 (ACT
51 OF 1977) IN RESPECT OF COUNT 1 AND PLEA EXPLANATION
IN TERMS OF
SECTION 115
OF THE
CRIMINAL PROCEDURE ACT, 1977
IN RESPECT OF THE
REMAINING COUNTS
I, the undersigned
SIPHIWE GEORGE NDLOVU
State as follows:
1)
I admit that I am the Accused, and that I
plead guilty to culpable homicide, on count 1 (the charge of murder).
I deny that I committed
murder. I emphasise that my plea of guilty on
culpable homicide is advanced freely and voluntarily, without having
been unduly
influenced by any person whatsoever, to do so.
2)
In respect of my plea of guilty of culpable
homicide, I admit that on or about the 29th of March 2020, at or near
[....] Gama Street,
Vosloorus, Boksburg, in the district of
Ekhuruleni North, I unlawfully and negligently caused the death of
Sibusiso A[....], an
adult male person. I interpolate to state that I
will more comprehensively elucidate my plea of guilty on culpable
homicide below.
3)
Albeit that I plead guilty to culpable
homicide in respect of count 1, it was explained to me that count 1
in respect of murder
attracts a minimum sentence as prescribed in
Section 51(1)
and
51
(2) of Act 105 of 1977. Counts 2 to 9, attempted
murder attracts minimum sentences as prescribed in Section 51(2)(c)
of Act 105
of 1977.
4)
The said provisions of both Sections 51(1)
and 51(2) of Act no 105 of 1977, as well as the minimum sentences
which are attracted
on competent verdicts were also explained to me
by my counsel. I understand the Minimum Sentencing Regime as
contemplated in the
relevant sections referred to above, as explained
to me by my Counsel.
AD COUNT 1:
5)
I deny that I intentionally caused the
death of Sibusiso A[....], on 29 March 2020, at [....] Gama Street,
Vosloorus.
AD COUNTS 2 - 9:
6)
I deny that on 29 March 2020, at [....]
Gama Street, Vosloorus, I unlawfully and intentionally attempted to
kill or injure any of
the following persons mentioned in counts 2 -
9:
1.1
A[....]1 A[....];
1.2
A[....]2 A[....];
1.3
S[....] A[....]3 A[....];
1.4
U[....] A[....];
1.5
B[....] A[....];
1.6
N[....] A[....];
1.7
Jabulani Dominic Buthelezi; and
1.8
Nkosingiphile Maphumulo.
AD COUNT 10:
7)
I deny that on 29 March 2020, and at [....]
Gama Street, Vosloorus, I unlawfully possessed a firearm namely, a
Muzzler Shotgun with Serial Number
AM34565.
Although I did not have a
valid license, or permit, or any explicit authorisation to possess
this firearm, my possession is based
on the defence of necessity as a
ground excluding any wrongfulness of my possession of the
aforementioned firearm.
AD COUNT 11:
8)
I deny that on 29 March 2020, and at [....]
Gama Street, Vosloorus, I unlawfully possessed ammunition to wit one
shotgun cartridge,
as stated in the indictment.
9)
I admit that I do not have a license to
possess a shotgun capable of firing the ammunition as contemplated in
the aforesaid paragraph.
I
thus admit that
I am not the lawful owner of shotgun capable of firing shotgun
ammunition as contemplated in the
Firearms Control Act 60 of 2000
, as
I did not know that live shotgun ammunition had been loaded in the
shotgun that I had used. I simply did not have the necessary

intention to possess live ammunition. Moreover, I did not foresee
that the firearm might have been loaded with shotgun ammunition.
FACTS ON WHICH I BASE
MY PLEA OF GUILTY OF CULPABLE HOMICIDE IN RESPECT OF COUNT 1:
10)
On 29 March 2020, I was employed by Magma
Risk Solutions Pty Ltd. as an investigator. This company mainly
renders security services,
and engages in investigations, mostly with
members of the South African Police Services, the Ekhuruleni
Metropolitan Police Department,
as well as other law enforcement
agencies.
11)
I beg the Courts indulgence to allow me to
attempt to comprehensively advance the facts on which I base my plea
of guilty, with
a view to having the Court understand the reason that
I attended the relevant scene on 29 March 2020, and how it came about
that
I fired shots with a shotgun referred to in this document.
12)
I was part of a task team which worked
hand-in-hand with senior police investigating units, to prevent
cash-in-transit heist’s,
recover stolen vehicle’s,
firearm’s, explosive’s etc.
13)
The President of South Africa announced a
national lockdown between the period of 27 March 2020 - 16 April
2020, in an attempt to
curb the spread of the Corona-Virus Pandemic.
Several Regulations were issued in terms of the Disaster Management
Act, whereby
South Africans had to remain in their houses, except to
perform or purchase essential services / products. These regulations
included
a ban on the sale of alcohol and prohibited all public
gatherings.
14)
Several support services, including the
South African Army, Police Reservists and Metropolitan Police, were
called up to assist
the South African Police Services to enforce said
Regulations.
15)
It is alleged in the summary of substantial
facts that the Ekhuruleni Metropolitan Police Department (EMPD) also
provided support
in the enforcement of the aforesaid Regulations. I
accept that on 27 March 2020, each member of the EMPD Intervention
SWAT Unit
(ISU), was issued with two boxes of plastic shotgun rounds,
a shotgun, a rifle and a 9mm pistol to use for crowd control in the

execution of these duties.
16)
On the 29th of March 2020, at about 07:00,
I left my house to continue working on a case (Norwood Cas
137/03/2020) that was assigned
to me, in order to obtain information
following the killing of a business man who drove on the M1 on Friday
the 13th of March 2020.
17)
Having left my house, I drove to Michelle
Avenue, near Meyersdal, and stopped at the Sasol garage. A few
minutes later members of
the SWAT team arrived. This Sasol garage is
a venue where EMPD members usually meet to discuss issues, buy food
etc.
18)
These EMPD members were known to me and
asked me whether I had any information that I could give them.
Following a brief discussion,
we all proceeded to Woolworths Food
Market to buy food. Having bought what we needed, members of the EMPD
received instructions
on their Whatsapp group that they needed to go
to Katlehong and Vosloorus, regarding information received relating
to drugs and
operation of illegal shebeens.
19)
I got into my car, as I had driven to the
garage alone. Before I could drive off, I heard someone shouting that
I should stop as
I could not drive alone due to the other EMPD bakkie
being packed with people. The members of the EMPD said that I should
let one
of their members’
drive with
me thereafter Constable Matyobeni got into the left front passenger
seat of my vehicle.
20)
Constable Matyobeni when getting into my
car, inter alia, had a shotgun with him. I then told him that I need
to drop food off at
my house for my children and that we must drive
via Thokoza. We all then left Michelle and drove in a convoy.
21)
I proceeded to my house, along with
Constable Matyobeni, to drop off the food.
22)
Having left my house, Mr Matyobeni located
the other members via phone. We went to Mavimbela section in
Katlehong, where we joined
the convoy.
23)
Having eventually left Katlehong, we were
crossing into Vosloorus and a marked bakkie was leading the convoy.
24)
We went to a certain address where people
were selling drugs. Upon arrival, people started running. A bag of
dagga and other small
packages of drugs were recovered. No one was
arrested.
25)
The convoy then proceeded to another house,
not far from the one where the dagga was found. Members of the police
jumped out of
their vehicles and went to the house where a large
number of people were sitting. Matyobeni similarly got out of my
vehicle, taking
his shotgun with him.
26)
I remained in the car as there was a lot of
chaos and total mayhem. People were running away from the house and
members of the police
were shooting at them with rubber bullets. Some
of the people that came out of the house started throwing cans,
bottles and other
objects at the police.
27)
I then noticed one officer following
someone to another house that was situated two houses from the house
the police initially entered.
An argument between one of the people
at the premises of the third house ensued. I could, however, not hear
what the argument was
about. A few seconds later, the officer was
dragged into the yard. I then got out of the vehicle in an attempt to
alert the other
officers who were still inside the first house. Other
officers were chasing people around.
28)
Another officer upon noticing what was
happening, rushed to the house. People that were at the first house
started gathering at
the gate of the house where the two officers
were present.
29)
I saw one officer running towards the cars
and then disappeared between the two bakkies that were parked next to
the house. When
I turned, I saw a shotgun lying between the cars and
I saw that Mr Matyobeni had been injured on his elbow as he fell. I
then took
the shotgun that had been lying on the ground and proceeded
towards the house where the two officers had been dragged in to
render
assistance.
30)
As I was approaching the gate, I had fired
a shot at the people that were at the gate. They scattered and I went
inside and fired
again towards the person, namely the deceased that
was dragging the officer, Mr Maphumulo towards the house. The
deceased did not
let go of Mr Maphumulo. The deceased was assisted by
an elderly lady who succeeded in dragging the deceased into what
seemed like
the veranda area and closed the trellidoor on the
veranda. As the deceased was behind the trellidoor, he pushed his arm
through
the opening in the trellidoor and grabbed Mr Maphumulo. It
seemed like he was relentless to relinquish his grip on Mr Maphumulo.

I was approximately three meters away from where Mr Maphumulo and the
deceased were when I fired the last three shots. Pursuant
to the last
two shots being fired, the deceased eventually let go of Mr
Maphumulo.
31)
After the deceased relinquished his grip on
Mr Maphumulo, Mr Maphumulo, Mr Buthelezi, and I left the yard. I am
not able to state
how many people were still present in the yard, at
that stage. I later heard that the deceased, Mr Sibusiso A[....],
demised.
32)
I wish to state in the strongest terms that
I was at no stage aware that the shotgun that I had picked up from
the ground was loaded
with live ammunition. I had my 9mm pistol fully
loaded with sixteen cartridges on my side which I could have used
instead of the
shotgun, if I had the intention to kill a person. I
picked up the shotgun solely and simply to use it should I come under
attack
in my attempt to assist Mr Maphumulo and concomitant hereto,
to assist Mr Maphumulo whilst he was man-handled and pulled towards

the veranda.
33)
I admit that my picking up of the shotgun
and using it to free Mr Maphumulo, at first blush, seems illegal. I
do, however, respectfully
submit, that due to the chaos and the
mayhem that prevailed at the time, I regarded the using of the
shotgun under these specific
circumstances as being legally
justified, as the only other defence mechanism I had was the 9mm
pistol which would, under the circumstances,
have resulted in
excessive force. I reiterate that I simply did not want to kill
anybody. I base my act of negligence on the fact
that the bullets
that were fired from the shotgun that I had used, which I believed
were rubber bullets, was at a short range of
approximately three
meters. Although I did not foresee that firing such shots at that
distance could kill the deceased, a reasonable
man, under the same
circumstances, would have foreseen that death may result if a rubber
bullet is fired from such a distance,
and would thus have refrained
from firing the rubber bullets in the direction of the deceased at
such a close range. I thus admit
that my conduct, when I so fired the
shots, was negligent.
AD FORMAL ADMISSIONS:
34)
My council (sic) explained to me the
provisions of Section 115(2)(b) and
Section 220
of the
Criminal
Procedure Act 51 of 1977
. I am aware that should I make a formal
admission in terms of the sections referred to above, the State is
relieved from proving
such fact/facts that are admitted.
35)
I attach to this document, formal
admissions that I am prepared to make and I marked same as “Exhibit
B”.”
[3]
It is proper to set out by way of
introduction to the evidence and issues raised in this matter, the
essential factual allegations
advanced by the prosecution in seeking
to establish its case against the accused. The indictment is a good
starting point. The
state alleges in the summary of substantial facts
that, on 29 March 2020, the accused, a private security officer
employed at Magma
Security, had information about an illegal
gathering of people at a tavern in Vosloorus where alcohol was sold
in contravention
of the regulations issued in terms of the
Disaster
Management Act 57 of 2002
. These regulations were enacted as a result
of the Covid-19 outbreak whereby people had to remain in their houses
except to perform
essential services or to purchase essential
products.
[4]
These regulations included a ban on the
sale of alcohol and prohibited all public gatherings. The accused met
the members of the
EMPD Intervention SWAT Unit (ISU) in Meyersdal
where he relayed his information to them. The ISU thereafter
travelled to Vosloorus
in their official vehicles to follow up the
information provided by the accused.
[5]
It is alleged that, Cst H Matyobeni from
ISU travelled with the accused to Vosloorus in the accused’s
private vehicle. He
took the firearms issued to him into the
accused’s car when they travelled together. On ISU’s
arrival in Gama Street,
Vosloorus, several officers approached the
tavern on foot, whilst others remained in their vehicles. The ISU
officers were armed
with their shotguns, which were loaded with
plastic bullets. Upon seeing the ISU’s approach to the tavern,
the patrons dispersed
and ran into the streets. Several members of
ISU fired shots with their shotguns at the people who were running
away. Cst H Matyobeni
was assisting his colleagues, but he had left
his fully loaded shotgun in the accused’s car.
[6]
While tracing the dispersed suspects, Cst J
Buthelezi met with the deceased, Sibusiso A[....], who was standing
inside his yard
behind a closed gate. The deceased and Constable J
Buthelezi had an argument. When Cst N Maphumulo heard this argument,
he went
to the deceased’s yard to intervene.
[7]
It is alleged that an unknown person opened
the gate and Csts J Buthelezi and N Maphumulo entered the deceased’s
yard. The
three of them grabbed and pulled at each other. The
deceased’s mother, B[....] A[....], saw what was happening and
also realised
that the ISU members were armed. With the help of
Ntombikhayise A[....], she pulled the deceased onto the veranda and
they closed
and locked the burglar gate behind them. Csts J Buthelezi
and N Maphumulo were still holding on to the deceased.
[8]
It is alleged that the accused came into
the deceased’s yard and walked to the veranda whilst in
possession of Cst H Matyobeni’s
shotgun. He pointed the shotgun
to the deceased and fired several shots at the deceased’s body,
whilst Csts J Buthelezi and
N Maphumulo, B[....] A[....] and
Ntombikhayise A[....] stood next to the deceased. The deceased fell
down and died shortly thereafter
as a result of a “shotgun
injury to the chest”.
[9]
It is also alleged that the shotgun’s
pellets dispersed and struck and injured A[....]1 A[....] (11 years
old), A[....]2 A[....]
(11 years old), S[....] A[....] (6 years old)
and U[....] A[....] (5 years old). They were inside the house in a
room next to the
veranda.
[10]
The accused made a number of formal
admissions in terms of
section 220
of the CPA. The formal admissions
(‘exhibit B’) comprise a large number of aspects such as
photographs that were taken
at the scene of the capital crimes, the
key and sketch plan of the scene, as well as the deceased’s
identity and the results
of the post-mortem examination report. The
accused formally admitted that the deceased in count 1, Sibusiso
A[....], died on 29
March 2020, the cause of death was determined to
be a “shotgun injury to the chest” as per exhibit C. The
post-mortem
report, exhibit C, also recorded that “the shotgun
injury to the chest associated with trauma to the left lung and heart
hemopericardium and left hemothorax. A representative number of small
pellets and a wad were recovered from the chest. A part of
the
shotgun shell was found on the posterior chest with no underlying
injury to the body”.
[11]
The accused formally admitted the medico
legal examination report, exhibit D, in relation to A[....]1 A[....],
the complainant in
respect of count 2. In this instance, the
attendant, Dr Mutshekwane concluded that the 11-year-old male, post
fall, sustained a
soft tissue injury to the left hand and left wrist.
The J88 report, exhibit E, in relation to the complainant in respect
of count
3, A[....]2 A[....], also formally admitted and depicted
that she sustained a soft tissue injury to the right foot. The J88
report,
exhibit F, in relation to the complainant in count 4, S[....]
A[....]3 A[....], depicted that the six-year-old child suffered soft

tissue injury to his upper lip and dental trauma. The J88 report,
exhibit G, in relation to U[....] A[....] depicted the five-year-old

child with shot wounds on the scalp, neck and back.
[12]
The forensic evidence presented by the
prosecution consisted in the main of evidence relating to the crime
scene in Gama Street.
The photograph albums, exhibits J and N were
submitted into evidence. These albums consisted of various
photographs depicting the
crime scene, Gama Street, the position of
the deceased and photographs of spent cartridges and other evidential
materials.
[13]
Exhibit K, is the forensic report in terms
of
section 212(4)(a)
and
212
(8)(a) of the CPA by Captain Mlindazwe
who is attached to the Ballistics Section of the Forensic Science
Laboratory as a Forensic
Analyst. After examining the damage on the
burglar door where the deceased was shot dead, the ballistic expert
concluded that the
damaged metal of the burglar door was pushed and
bent at an angle towards the right, possibly caused by pellets from a
shot shell,
not by a rubber bullet given the impact and the nature of
the damage. Exhibit K confirmed that the wounds on the left side of
the
chest and left arm were caused by the pellets which were also
visible under the skin on photo 10 and 11. The wounds on the heart,

as shown on photo 14, are consistent with those caused by pellets.
According to exhibit K, the deceased sustained injuries from
pellet
shots and not from rubber bullets.
[14]
The position of the deceased after his fall
was also admitted. The forensic evidence relating to the deceased
formed the subject
of the
section 220
submissions made by the
accused. It is accordingly not necessary to set out the nature of
this forensic evidence and the particular
evidential material found
on the scene of the crime in any further detail. Where necessary this
will be dealt with in the evaluation
and assessment of the evidence
presented by the prosecution and that presented by the defence.
[15]
The state called the following witnesses to
prove the charges against the accused: Ms B[....] M[....] A[....]; Ms
N[....] A[....];
Chief Supt Nhlapo and Capt Mlindazwe. The accused
was the sole witness to testify in his defence.
[16]
Ms B[....] A[....], a 64-year-old senior
citizen, testified that she is the deceased’s aunt. He lived
with her at [....] Gama
Street, Vosloorus. On 29 March 2020 between
12h00 – 13h00, she was inside her house with her 4
grandchildren and niece, N[....].
She went to her front yard where
she found the deceased and his friends, Charles and Thabo. The
deceased was mumbling while picking
up papers from the front yard
lawn. She asked the deceased what the matter was. The main gate was
closed, but not locked. Ms A[....]
was referred to “EXHIBIT J
PHOTO 32 AND 33” and she identified her house, the main gate
and the front yard where the
deceased was. The wall is high and one
is unable to see outside, but the main gate has some open spaces
which will allow one to
see outside the property.
[17]
Ms A[....] further testified that there was
someone outside the gate who then said “this boy is
disrespectful”. It was
a uniformed EMPD member. The deceased
was arguing with the EMPD officer and said “I saw what you
did”. He also said
words to the effect that “you fired
shots at people in their houses” to the EMPD officer. The main
gate was at that
stage closed but not locked. Approximately 4 –
5 more EMPD officers came to the gate. Ms A[....] rushed to the gate
and tried
to hold it closed while the officers tried to pull it open.
The officers who were aggressive however, overpowered her and opened

the gate.
[18]
About 3 or 4 EMPD officers who were armed
with firearms entered the yard and at least one short officer carried
a long-barrelled
firearm. The EMPD officers and the deceased were
arguing whilst they advanced to each other. Ms A[....] rushed to the
deceased
and, whilst standing between him and the EMPD officers,
pulled and pushed him onto the veranda through the slightly opened
burglar
gate. The EMPD officers were behind her.
[19]
N[....] who stood on the veranda, slam
locked the burglar gate once the deceased was pushed onto it. At that
stage, the accused
stood at the burglar gate and tried to pull it
open. The EMPD officers stood by when the accused tried to open the
burglar gate.
When she was referred to “EXHIBIT N PHOTO 4”,
Ms A[....] indicated she stood at marked position X3 after she pushed

the deceased onto the veranda. The accused was at marked position X4
when he tried to open the burglar gate and the EMPD officers
were at
a position she marked as X5.
[20]
Ms A[....] heard approximately 4 – 5
shots fired immediately after each other. The third shot she heard
was louder and different
to the others. She looked at the accused who
was firing the shots. He was holding a big, long firearm with his
arms in front of
each other at a slight upward angle, whilst pulling
the trigger repeatedly. The firearm was held in front of his stomach
while
he aimed at and shot the deceased. When referred to “EXHIBIT
N PHOTO 4”, Ms A[....] indicated that the accused stood
at
marked position X6 after stepping back when he shot at the deceased.
The EMPD officers were at that stage also in the vicinity
of X6. The
deceased stood at X7 when he was shot and, although he was close to
the burglar gate, he did not touch it.
[21]
Prior to shooting the deceased, the accused
did not say anything to him. The deceased fell down and the accused
left with the EMPD
officers. They did not approach the deceased prior
to leaving and she did not see anyone else in the yard. There was no
crowd of
people outside her yard before the deceased was shot.
[22]
Ms A[....] went to the back of her house
and entered through the kitchen door. She noticed her grandchildren,
the complainants in
counts 2 – 5, injured, and saw a blood
trail from the sitting room, which she followed through the dining
room and passages
up to the bedroom where the grandchildren were
hiding. Ms A[....] indicated that the front door next to the veranda
lead to the
sitting room. The burglar gate was damaged as per
“EXHIBIT N PHOTOS 7 AND 8” where the “bullet(s)”
pierced
through when the deceased was shot.
[23]
During cross examination, she testified
that the deceased offered no resistance when he was pushed behind the
burglar door to the
veranda. Furthermore, that the deceased was shot
at 3 or 4 times. In the process, she did not see the accused load the
firearm,
but shooting repeatedly as if changing gears. She vehemently
disputed a suggestion made to her that the accused shot the deceased

for the latter to release EMPD member, Maphumulo, after which she
dragged by the deceased behind the burglar gate. She called the

accused a liar and was willing to forgive him but for his lies. On
her version, the deceased was at all material times behind a
locked
burglar door and presented no danger to the officers nor touched
them.
[24]
N[....], a teacher by profession, is the
deceased’s cousin. She testified that on 29 March 2020, she was
at home in Gama Street,
Vosloorus, whilst preparing to dish up lunch
when the incident occurred. Her two small children, U[....] and
A[....]3, rushed in
and reported a shooting outside. She enquired
where her oldest children, A[....]2 and A[....]1, were and was
informed that they
were in the yard. N[....] went to the veranda to
call them in. When she did not see them outside, she assumed that
they used the
passage to the back and entered the house through the
kitchen.
[25]
Whilst on the veranda, on her version, she
witnessed an argument between the deceased and officers at the closed
main gate. On her
version, the deceased asked the officers “why
are you shooting them if they are in their homes?”. One of the
officers
shouted “this guy is disrespectful”. An officer
put his hand through an opening in the gate and tried to open the
pedestrian
gate from the inside. This pedestrian gate is part of the
main gate. N[....]’s aunt, B[....] A[....], stood at the gate
and
kept asking what was happening. There was no crowd or gathering
of people in the street.
[26]
N[....] was referred to “EXHIBIT N
PHOTO 5” and she indicated that she stood next to the front
door on the veranda.
The burglar gate on the veranda was partially
open. The deceased initially stood at the corner of the garage door
near a pillar,
visible on “EXHIBIT J PHOTO 33”.
[27]
At some stage, she saw a hand from outside
opening the “shooter” (lock) of the gate and two officers
entered, pushing
their way further into the yard. She confirmed that
Ms A[....], her aunt moved between the deceased and the officers and
pushed
the deceased backwards towards the veranda. The deceased did
not offer any serious resistance. The deceased is bigger than Ms
A[....]
and thus would not have submitted to being pushed to the
veranda had he wanted to resist. Her aunt initially had to pull the
deceased
away from the gate in order to push him onto the veranda.
The deceased and the officers continued to argue whilst the officers
approached the deceased. One of the officers was armed with a shotgun
which he held against his body in a slightly upward angle,
with both
his hands apart from each other. N[....] had now moved further onto
the veranda and was unable to see anyone else enter
through the gate.
The front door leading into the dining room was partially open.
[28]
N[....] confirmed that Ms A[....] pushed
the deceased onto the veranda through the partial opening. N[....]
stepped in front of
the deceased and closed the burglar gate. An
officer in a dark uniform tried to open the burglar door, but was
unable to as it
was a slam-lock door. He had a shotgun with him. The
deceased did not hold or grab anyone whilst he was pushed on the
veranda.
If he had done so, she testified that she would not have
been able to close the burglar gate. N[....] moved behind the
deceased,
towards his right side. The officer who tried to open the
gate stepped back, cocked the firearm and shot the deceased. There
was
another officer, dressed in a brown or khaki trouser and dark
top, to the left of the shooter.
[29]
N[....] testified that the shooter fired
several shots to the middle of the deceased’s body. The shots
did not sound the same.
The first few shots had a popping sound.
There was a shot which was louder than the rest. After the loud shot,
N[....] heard a
sound similar to marbles falling on tiles. She looked
around to see whether it was glass from a broken window.
[30]
When referred to “EXHIBIT J PHOTO
30”, N[....] explained that she was at marked position “Y”
at the time
of the shooting. The deceased stood at marked position
“Y1” and was a step behind the burglar gate. The shooter
stood
at marked position “Y2” when he shot the deceased,
which is less than 2 meters from the deceased. The other officer

stood at marked position “Y3”.
[31]
After the shots were fired, the deceased
looked down to his chest. N[....] heard her children scream that they
were shot from inside
the house. She ran past the deceased into the
house. When she reached the front door, the deceased was sitting and
bent over as
if he was falling. Inside the house, N[....] noticed
blood drops from the dining room, which is adjacent to the front
door, up
to her bedroom where she found her injured children.
[32]
When she looked outside, N[....] saw the
officer and the shooter turn around, enter their vehicles and drive
off. N[....] rushed
to the garage through an inter-leading door in
the house and drove her children to the hospital for medical
assistance. There was
a group of people at their gate. Those people
were trying to assist the family to get an ambulance. N[....] did not
see any marked
EMPD or police vehicles in the street when she drove
off. She does not know whether the deceased was alive when she left,
but when
she earlier turned him over, he did not respond to her.
[33]
Chief Supt Nhlapo (“Nhlapo”) is
head of the SWAT unit in the EMPD to which he has been attached for 6
years. He confirmed
that several of his members, including Matyobeni,
were present during the incident. Although he does not have personal
knowledge
thereof, it is possible that Matyobeni’s officially
issued firearm was used on that day.
[34]
Nhlapo also testified that members of the
SWAT unit are issued with shotguns and rubber bullets, which are to
be used in the shotgun.
According to the EMPD standing orders,
members are not allowed to use any ammunition not issued by EMPD in
any firearm, including
the shotgun. EMPD has never issued live
shotgun ammunition for official operations and according to his
knowledge, it has never
happened that the SWAT unit used live shotgun
ammunition in operations.
[35]
He knows the accused as someone who
assisted SAPS and got to know him during operations where the SWAT
unit provided back up to
SAPS. He had never seen the accused in
possession of a shotgun. After the incident of 29 March 2020, Nhlapo
was informed that the
accused was with his members during the
incident.
[36]
Matyobeni is currently suspended from the
SWAT unit as a result of this incident. He is also currently facing
disciplinary action.
As the commander of the SWAT unit, he was
supposed to be informed of the circumstances wherein the accused
possessed and used Matyobeni’s
firearm, but his members failed
to give him a report. The incident was, however, referred for an
internal investigation. Matyobeni
did not inform him of any injury he
sustained on his elbow during the incident.
[37]
Capt Mlindazwe (“Mlindazwe”) is
attached to the Ballistics Unit at the Forensic Science Laboratory in
Pretoria. He confirmed
his qualifications and experience as set out
in “EXHIBITS K and L”. He attended the crime scene
in
casu
on 30 March 2020 for the purpose
of reconstruction after the scene was already cleared. The lady who
had pulled the deceased into
the house pointed certain things out to
him during his visit to the scene. He was informed that there was a
possibility that SSG
rounds were used during the shooting.
[38]
Mlindazwe explained that rubber shotgun
bullets have 2 rubber balls, which are held in a casing by a plastic
wad. It has propellant
which allows it to fire and all other
components that live ammunition will have. Rubber bullets are not
designed to kill a person,
although they may cause death. A live
shotgun bullet has steel pellets in the place of rubber balls. The
steel pellets are small
round balls and are designed to kill. Some
steel pellets are bigger than others. The cartridge displayed to the
court was emptied
and on counting the individual steel pellets, there
was a total of 220 steel pellets. A live shotgun bullet, although it
might
look the same as a rubber bullet, will feel heavier than a
rubber bullet as he explained.
[39]
In order for the burglar gate to be damaged
as displayed in “EXHIBIT K PHOTOS 3 AND 4”, the shooter
would have been
standing around 2 meters from the gate. Multiple
pellets would have caused the damage.
[40]
The shotgun used in the commission of the
offences was displayed to the court. It is approximately 1-meter-long
and can take 4 –
5 cartridges. When the shotgun is cocked, it
makes a heavy, loud clicking noise as demonstrated. He explained that
the cartridge
will be inserted in a tube and the barrel will be
empty. The tube will be pulled back to move a new cartridge into the
barrel whilst
ejecting the fired cartridge. The tube must then be
pushed forward to enable the shooter to pull the trigger. This is the
procedure
to follow before firing each bullet from the shotgun. It is
not a quick process for someone who is not experienced in the use of

a shotgun.
[41]
Mlindazwe testified that rubber bullets
will travel to the direction where the shooter aims it. With live
bullets, the pellets will
also travel towards the target, upon
leaving the muzzle, the pellets will start to spread and fall. The
closer the target is to
the firearm’s muzzle, the more
concentrated the pellets and injury on the target will be.
[42]
He was referred to “EXHIBIT K PHOTOS
11 & 12”. He testified that the pellets were starting to
spread. It is not
a contact shot, but the muzzle of the firearm would
have been approximately 2 meters from it. Mlindazwe was also referred
to “EXHIBIT
K PHOTO 4” and “EXHIBIT N PHOTO 4”
with reference to the children who were in the room next to the front
door.
He testified that, it is highly possible that people next to
and around the burglar gate can be struck by a pellet(s) as it
spreads
after hitting an object or a target. The live bullet he
demonstrated in court had 220 pellets and thus it would be probable
that
any of those pellets can hit anything in the vicinity of the
target.
[43]
A version was put to Mlindazwe for his
comment, specifically with regard to expected injuries from being
struck with pellets. He
was asked what he would expect if the
deceased’s arms were through the burglar gate whilst holding
onto a person in front
of him. Mlindazwe’s comment was that he
would have expected the person in front of the deceased to be
affected and be struck
with the pellets. Further, he also would have
expected the deceased to have injuries on his forearms. In
cross-examination, Mlindazwe
said that if the deceased stood sideways
with his left arm through the gate, the injuries on the upper left
arm could have been
sustained in that manner. However, those injuries
also could have been sustained if his left arm were next to his side.
[44]
Mlindazwe was asked to comment on the
“sound of marbles on the tiles” as testified to by
N[....] A[....]. He commented
that it might be the pellets. When he
considers the angle that the shots were fired from, its spreading at
the deceased’s
body and the damage to the burglar gate,
Mlindazwe is of the opinion that the pellets could have travelled
anywhere after it struck
the burglar gate. Anyone in the vicinity of
the burglar gate was at risk of being struck and injured by a pellet.
[45]
The pellets found in the deceased during
the post-mortem examination was of similar size as those shown in
court and could possibly
be shotgun ammunition. Mlindazwe confirmed
that, all ammunition with propellant can kill whatever is in front of
them.
[46]
With reference to “EXHIBIT N PHOTO
4”, a person in position X3 would not be struck if he or she
was leaning against
the wall. A person standing to the right and
behind the deceased would be in danger of being struck by shotgun
pellets. The shooter
himself was not at risk of being struck by a
pellet as the pellets would not bounce back at the angle it struck
the object. The
burglar gate was a secondary object and the shots
were not directed at it. A shooter would also not know where a rubber
bullet
might end up when it is shot as sometimes it will travel a few
meters and other times it will travel further. He did not make notes

with regard to the clothing worn by the deceased during the
post-mortem examination and the court should rely on the notes made

by the pathologist. He, however, remembers seeing the shell casing
shown in “EXHIBIT K PHOTO 15” when the deceased
was
turned around.
[47]
Mlindazwe was told that live ammunition was
fired. He had requested the cartridge casing in order to calculate
the distance the
shooter stood when he fired the shots at the
deceased. The cartridges he received were all from rubber bullets and
none of them
had the live ammunition. He never received the cartridge
from the police.
[48]
With regard to “EXHIBITS K” and
“C” - a wad that was found in the inner chest of the
deceased’s body.
When a shot is fired with live shotgun
ammunition, Mlindazwe testified, the wad will travel with the pellets
for 2- 3 meters, but
it will be the first to drop as it is heavy. The
fact that the wad was found inside the deceased’s body is
indicative of
the short distance the shooter was from the deceased.
The state thereafter closed its case.
[49]
The accused, as indicated, testified as a
sole witness in his own defence. At the time of the incident, he was
employed as an Investigator
at Magma Investigations. He worked with
SAPS, EMPD, JMPD and other law enforcement agencies to fight crimes
such as: ATM bombings,
CIT robberies and other Alpha or high priority
crimes.
[50]
On 29 March 2020, the accused left his home
in Thokoza in a white unmarked Golf 7 GTI, to the Sasol garage in
Meyersdal. He was
armed with a 9mm CZ pistol and a magazine with 16
rounds. He also carried an extra magazine with 16 rounds. His firearm
was holstered
on his waist. He intended to follow up information in a
matter he was investigating, but first had to buy groceries at the
Woolworths
Food Store, which he later loaded in the trunk of his car.
[51]
Whilst at the Sasol garage, several EMPD
vehicles arrived. The accused knew several of the EMPD members,
amongst others Constables
Buthelezi, Maphumulo, Matyobeni, Monaheng,
Sadike and Steenberg. The EMPD officers enquired whether the accused
had any “jobs”,
meaning information, for them. Whilst
speaking with Csts, Buthelezi and a female officer, he was told that
Nhlapo had instructed
them to go to 2 addresses via Mavimbela section
in Katlehong. Buthelezi requested the accused to accompany them and
he agreed.
[52]
Matyobeni travelled with the accused as the
EMPD bakkie was overloaded. Matyobeni got into the front passenger
seat and placed his
shotgun and rifle on the back seat. The accused
and Matyobeni first stopped at the accused’s house in Thokoza
to drop off
the groceries, where after, they joined the EMPD convoy.
[53]
The accused testified that when in Monageng
section, “we” went to a house with an outside tuck shop.
On “our”
arrival, there were a lot of people there. The
people saw the police vehicles and ran away. The police, including
Matyobeni, alighted
and chased the people on foot whilst firing
rubber bullets at them. No one was arrested, but “we”
recovered drugs.
The accused did not see whether Matyobeni fired his
shotgun.
[54]
Matyobeni returned to his vehicle and the
convoy left to Gama Street where they parked on the right side of the
street, facing the
oncoming traffic. The cars stopped from the first
to the fourth house. The police, including Matyobeni, alighted and
ran into a
house number 1081 with a huge zinc gate, visible on
“EXHIBIT J PHOTO 5”. The accused remained in his vehicle.
Matyobeni
had left with his shotgun.
[55]
The accused heard the sound of firearms and
people ran away through the zinc gate while others jumped the wall.
The police chased
some of those who were running away. The people who
ran away threw bottles, cans and stones at the police vehicles.
[56]
Buthelezi followed someone to the third
house and stood at the gate. The person he followed had entered the
yard and closed the
gate. The accused saw that Buthelezi and the
person had a conversation. Although he could not hear it, it seemed
like they had
an argument. The people who had run away from house
1081 were now moving towards Buthelezi from a distance away. The gate
opened
and someone dragged and pulled Buthelezi into the yard. The
accused alighted from his car and tried to scream to the police that

Buthelezi was dragged into the yard.
[57]
The accused saw Maphumulo run towards that
yard. When the people at the side of that house saw Maphumulo enter
into the yard, they
moved closer to it. The accused closed the door
of his car and tried to go to the vehicle behind his. He realized
that there were
still people coming out from house 1081. Matyobeni
came from the corner between his car and a van. Matyobeni was injured
on one
of his elbows. The shotgun he had was on the ground at the
left rear bumper of the accused’s vehicle. The accused took the

shotgun from the ground and ran to where Buthelezi and Maphumulo
were.
[58]
As the accused approached the gate, the
noise was louder and people were at the gate. He fired a shot at the
people at the gate.
The noise was from inside and outside the
premises. The people from outside were unhappy about what was
happening inside the premises.
[59]
The accused explained that he used the
shotgun and not his 9mm pistol as the 9mm pistol would kill people.
He used the shotgun because
he knew that it had rubber bullets which
are used to disperse people. When he fired a shot at the people at
the gate, they dispersed
and ran away. He then entered the premises
and saw a scuffle between the deceased and 2 police officers. They
were dragging and
insulting each other. He cocked the shotgun and
aimed at the deceased who was pulling the police and fired a shot.
[60]
There was an old lady who tried to
intervene and separate them. She pulled the deceased from behind
towards the house and shouted
“what do you want from outside?
Get inside the house” to him. The deceased was pulling
Maphumulo’s battle jacket
at the corner of the collar near the
shoulder. When they were about to reach the veranda, the old lady
pushed the deceased inside.
[61]
Maphumulo and Buthelezi were on the right
side. The accused did not know whether the burglar gate was locked,
but saw the deceased
stretch his hand and grab Maphumulo. There was
someone behind the deceased and that person was shouting. Maphumulo
tried to drag
the deceased and they were insulting each other. The
accused realized that the deceased did not want to break loose from
Maphumulo
and he fired three continuous shots at the deceased from
approximately 3 meters away. The deceased then released Maphumulo.
The
accused told Buthelezi and Maphumulo that they should leave the
premises as many people had gathered and he did not know how many

there were. They left in their cars.
[62]
The accused could not remember seeing
anyone else on the veranda when he fired at the deceased. When he
shot, he aimed and looked
only at the target. When he was firing in
succession, the accused focused on the way that the deceased and
Maphumulo were grabbing
each other. Maphumulo grabbed the deceased
with both arms outstretched and his sidearm was open. There were a
lot of people around
and anyone could have grabbed Maphumulo’s
firearm. Although the accused does not know how many people there
were, someone
could have taken the firearm in the commotion. Had he
known that there was a live round in the shotgun, he would not have
used
the shotgun. He did not use his 9mm firearm as it could have
taken a life. He knew how to operate a shotgun as he had trained in

the police.
[63]
After the incident, the accused got into
his vehicle with the shotgun. He found Matyobeni sitting on the
passenger side. Matyobeni
took the shotgun. They drove to a Sasol
garage not far from the incident.
[64]
During cross-examination, the accused
testified that, he was a trained police officer between 1995 –
1999. Although he cannot
remember everything about shotguns, he was
trained in its use while at the police college. He was trained to use
it with real and
rubber ammunition. The accused was also trained on
how to safely use a firearm, including how to fire a shot at his
target. He
was taught that the use of a firearm as a last resort will
depend on the circumstances he would find himself in as one must look

at the situation, identify the danger, and then decide whether to
engage or not. He was taught that a firearm is a dangerous weapon

that can cause death.
[65]
The accused confirmed that a person’s
vital organs, like the heart, liver and lungs, are in the chest area
where he would
aim and he knows that when any of those organs are
injured a person might die or be disabled. He agrees that
irrespective of the
type of firearm used, a shooter will be more
accurate in hitting his target the closer he is to the target.
[66]
He knows about cases where people have died
when they were shot with rubber bullets, for e.g. recently in
Braamfontein and also
an incident in Lenasia. He knows that the
police will shoot protesters with rubber bullets during strikes and
has knowledge of
people who have been injured or died as a result of
these rubber shots. He has heard about Andries Tatane, but did not
know that
he was killed with rubber bullets. The accused has seen
people who were injured by rubber bullets. They were swollen and, in
some
cases, their skin was torn off by the impact of the rubber
bullets. He agrees that rubber is volatile as the shooter will not
know
whether a bullet will travel 2 or 20 meters. Some rubber bullets
will have no effect on a human target, others will cause injuries

where the skin will tear and bruise, and others will cause death.
[67]
The accused obtained a firearm license in
2013 for self-defence and knows that he should use his firearm when
it is safe to do so.
His firearm must be on his holster when he
carries it or inside a safe when he is at home. Prior to using a
firearm, he must ensure
that the safety lock is on or off. When he
has time, he will check to see whether it is loaded or not. He will
also check his magazine
to see whether it contains ammunition before
putting it back in the firearm. Whenever he uses his firearm, he is
responsible for
whatever is inside it.
[68]
He also did not see Matyobeni take any
rubber rounds with him when he alighted at the tuck shop. Whilst
travelling from the tuck
shop, Matyobeni held the shotgun between his
legs. He did not see Matyobeni put any rubber bullets in his pockets
whilst on their
way to Gama Street or when he alighted at Gama
Street.
[69]
When they reached Gama Street, the convoy
parked next to the gate of house 1081 and the other cars parked in
front of it. The accused
parked in the street in “EXHIBIT J
PHOTO 1” on the place marked “Z”. After he parked,
the EMPD members
ran inside the yard of house 1081. Matyobeni took
his shotgun with him. The accused heard several shots, although he is
unable
to say how many. The shots came from inside house 1081 and
next to the gate. People ran out of the gate and they were shot from

inside the yard. As there was a lot of confusion, he was unable to
see who was shooting at who. Shots were also fired from outside
the
yard. Although he is unable to say who fired shots, the people who
ran from house 1081 did not have firearms. Some people ran
past the
accused and others ran to the corner behind him. The people who were
at the corner behind him threw empty glass bottles
and beer cans at
the EMPD cars. A glass bottle even broke in Gama Street.
[70]
When Buthelezi went to the deceased’s
house, the accused did not see other EMPD officers. He heard noise
and alighted from
his vehicle in order to alert the members about a
problem where Buthelezi was. When he alighted, the accused saw
Maphumulo. The
accused saw that Buthelezi and the person he argued
with grab and pull each other. Buthelezi was grabbed at the collar of
his jersey,
but as there was a wall that obscured his view, the
accused could not see how Buthelezi grabbed the other person. He
accepts that
Ms B[....] A[....] referred to Buthelezi as the short
officer as Buthelezi is short and Maphumulo is of similar height as
the accused.
Although Ms B[....] A[....] saw a big, long firearm with
Buthelezi, he did not see it.
[71]
When the accused alighted from his car, he
did not lock it. He was rushing and had no reason to lock it as he
was going to alert
members about the problem in front of him. He knew
that house 1081 was close by and that he even could have gone in
there to call
police officers. There was thus no reason to lock his
car. The accused accepts that when he left his car, Matyobeni’s
rifle
was still on the back seat. He also agrees that he did not
enter the yard of house 1081 to call for assistance.
[72]
He never engaged Maphumulo nor informed him
of the situation. The accused saw Matyobeni lean against the bonnet
of the vehicle behind
his. Matyobeni’s shotgun was laying on
the ground on the left passenger side. Although the accused saw that
Matyobeni was
injured, he did not engage him and did not speak to
him. He took Matyobeni’s firearm and did not follow or conduct
any safety
procedures. He did not check if the firearm was loaded or
with what it was loaded. The accused also did not load the firearm
and
assumes that it was loaded by Matyobeni, although he never saw
Matyobeni load it. The only person who had handled the shotgun was

himself and Matyobeni and thus either one of them must have loaded
the live ammunition in it. The accused also accepts Nhlapo’s

evidence that EMPD does not issue their members with live shotgun
ammunition.
[73]
The gate of house [....] was open. The
people at the gate were not happy with what was happening inside and
were swearing. He does
not know why the people did not enter the yard
through the open gate. After he fired the shot at the people at the
gate, they dispersed
and he did not see where they ended up.
[74]
When the accused entered the yard, the
deceased and Maphumulo pulled each other whilst facing each other.
Maphumulo’s back
was towards the accused. Buthelezi was
speaking or arguing with males inside the yard and was to the right
of the accused. His
focus was on Maphumulo and the deceased and as
such, the accused did not see whether Buthelezi left, moved or went
to assist Maphumulo.
[75]
When he shot at the deceased, he had moved
to the left in order to have a clear view of the deceased. The
accused aimed at the deceased
as he was the aggressor and he struck
the deceased on the lower part of his body.
[76]
The accused does not know what he would
have done if the shotgun did not have any ammunition in it. He might
have run away or he
might have fought. He did not think about such a
situation and he did not consider that a shot would not be fired. The
accused
never considered hitting the deceased with the butt of the
firearm and never considered physically intervening between Maphumulo

and the deceased. The accused thought that if he shot the deceased
with the rubber, he would stop fighting and the EMPD members
would
arrest him. He continued using the rubber bullets despite it not
having an effect on the deceased as he did not think about
what else
he could do. When the accused fired the shots after each other, he
did not have a chance to think.
[77]
When the accused was asked whether he had
decided to use whatever was in the shotgun, he evaded answering the
question directly.
He responded by saying that he took the shotgun
with the intention to disperse the people in front of the gate. He
further said
that if the shotgun had nothing inside it, nothing would
have happened. He said that when he was in the yard, he shot a person
in order to leave with the person who was attacked and that he did
not intend to fire everything that was inside the shotgun.
[78]
When shown “EXHIBIT N PHOTO 5”,
the accused indicated that the deceased stood on marked position “Z1”
when
he held Maphumulo who was at marked position “Z2”.
On “EXHIBIT N PHOTO 3”, the accused stood at marked
position “Z3” when he shot the deceased. He agrees that
Maphumulo stood in front of the place where the burglar gate
was hit.
The deceased faced Maphumulo whilst grabbing him and the accused was
to his side. The accused insists that according to
him, he stood
about 3 meters from the deceased when he shot him.
[79]
The accused shot the deceased because he
wanted the deceased to release Maphumulo and he feared that the
deceased could disarm Maphumulo.
He thought that if the deceased felt
pain, he would release and let go. He knows that the rubber would
have injured and hurt the
deceased when he fired the shot. The
accused aimed all shots to the chest and stomach area of the
deceased.
[80]
When he found Matyobeni in his car, he
explained to him what happened. When they were at the police station,
he asked Matyobeni
about the loud shot and whether they used
different rubber bullets. At that stage, the accused did not know
that a live round was
fired. He did not ask Matyobeni about his
injury. He also did not enquire about the possible arrest of the
deceased from Buthelezi
or Maphumulo.
[81]
In response to clarifying questions by the
court, the accused confirmed that the Andries Tatane matter was well
publicised on television
and media platforms, and that it was known
that he was killed by police who used rubber bullets. However, when
the accused took
the shotgun, he did not think about that and that a
person could be killed by a rubber bullet.
[82]
He knows about the use of force,
section 49
of the CPA, and that deadly force must be proportionate to the
danger. He confirmed receiving training as per the police training

manual, “Exhibit Q”, and with the use of shotguns,
“Exhibit R”. He did not have any training in crowd
control. He did not leave the situation at house [....] to the police
as someone was pulled inside the yard. The accused believed
that the
group at the gate would accost the police inside, injure them and
block them inside the yard.
[83]
His intention was to assist and not to kill
anyone. The accused admits that he was reckless in taking an object
intended to kill
without ascertaining what was inside it. He,
however, just wanted to help. He did not ask Buthelezi to help as
everything happened
fast. He focused on Maphumulo and did not look at
Buthelezi.
[84]
The court exercised its discretion in terms
of
section 186
of the CPA and called Constable Matyobeni to testify.
He confirmed that he attended the court proceedings
in
casu
, but was not at court on the
previous day. He was issued with a Glock pistol, a rifle and a
shotgun at the time of the incident.
As the owner of the shotgun, he
is the person who loaded ammunition in it whilst travelling with the
accused.
[85]
Whilst in Vosloorus, they went to a house
where liquor was sold. The house was full of occupants. The community
ran in different
directions as they were breaking lockdown
regulations. Some of people in the house attacked the EMPD members
with anything they
could find, e.g. chairs. Matyobeni’s
objective was to arrest at least one person. He grabbed a person and
went towards the
gate with the person. He realized that there was a
lot of community members and stones were thrown from different
directions. He
had to let go of the person he had. He fired shots to
the ground. His objective in firing the shots was to get out and seek
cover.
Although he is unsure how many shots he fired, it could be
two.
[86]
He wanted to go to the accused’s car,
but was confronted by four males who kicked him. Matyobeni fell on
his chest and his
firearm slipped. He was also kicked on his knees
and knelt down as he fell. That was the last time he saw his shotgun.
He does
not know where the accused was at that stage. Matyobeni does
not know how the live ammunition got into his shotgun, but he loaded

the shotgun with the ammunition that was given to him. His shotgun
takes 6 – 7 bullets.
[87]
Whilst inside the yard of house 1081, the
EMPD members were attacked with empty liquor bottles, full bottles,
bricks and anything
the community could get their hands on. Although
some of his colleagues were outside the yard of house 1081, he did
not see them.
He, however, thinks that if there were to look clearly,
they would have seen him in the process of being attacked. Matyobeni
was
injured on his elbows, his hands and palms, his knee and his
private parts. He made a report to Nhlapo, but he did not receive
medical assistance.
[88]
Matyobeni does not know how the accused got
his shotgun. He knows that the accused rescued him and put him inside
his vehicle after
the incident. They left thereafter. The accused
helped him to pick up his items like ammunition and wallet. He can’t
remember
what the accused told him when they left.
[89]
It
is trite that an accused person bears no onus whatsoever and he is
accordingly not required to prove any aspect of his defence
or to
persuade the trial court of anything.
[1]
An accused person is entitled to be acquitted if, upon an assessment
of the evidence considered as a whole, there is a reasonable

possibility that the version put up in defence to a charge may be
true. The court is obliged not decide the matter in a piecemeal

fashion but all the evidence in its totality must be considered.
[90]
As
stated in
S
v Chabalala
[2]
the
correct
approach is:
“…
to
weigh up all the elements which point towards the guilt of the
accused against all those which are indicative of his innocence,

taking proper account of inherent strengths and weaknesses,
probabilities and improbabilities on both sides and, having done so,

to decide whether the balance weighs so heavily in favour of the
State as to exclude any reasonable doubt about the accused’s

guilt.”
[91]
In
casu
,
it is common cause that the accused and several EMPD officers were in
Gama Street, Vosloorus, on 29 March 2020 where EMPD officers
shot at
people with shotguns and rubber bullets. It is common cause that two
EMPD officers entered the deceased’s yard at
[....] Gama
Street, Vosloorus, and that there was a verbal argument between them.
It is common cause that Ms B[....] A[....] intervened
and
pulled/pushed the deceased onto the veranda where N[....] A[....]
slam locked the burglar gate with the deceased on the inside.
It is
common cause that the accused armed himself with Cst Matyobeni’s
shotgun and entered the deceased’s yard at [....]
Gama Street,
Vosloorus. It is common cause that the accused fired at least 3 shots
with the said shotgun at the deceased whilst
he was behind the
burglar gate. It is common cause that the deceased was unarmed for
the entire duration of the incident. It is
common cause that the said
shotgun contained 1 round of live ammunition and that the deceased
died as a result of being shot with
that live round.
[92]
The following issues are in dispute:
92.1
Whether the accused loaded Cst Matyobeni’s
shotgun with live shotgun ammunition;
92.2
Whether the altercation between the
deceased and the EMPD members was verbal or physical;
92.3
Whether the deceased held on to Cst
Maphumulo at the time the deceased was shot and thus posed a danger
to Cst Maphumulo;
92.4
Whether there was a crowd at or near the
deceased house during the incident and whether that crowd posed any
danger to anyone;
92.5
Whether the accused had
mens
rea
in the form of
dolus
or
culpa
.
[93]
Counsel for the state asked for a
conviction in respect of count 1, the murder charge, on the base of
dolus eventualis
and
in respect of certain of the remaining charges to which I deal with
below in this judgment.
[94]
Counsel for the accused contends that the
evidence placed before the court does not show that the accused
committed any of the offences
preferred against him, except for the
competent verdict charge of culpable homicide for which he tendered a
plea of guilty.
[95]
From the common cause evidence, the
deceased challenged the police about shooting people in their houses
albeit behind the confines
of his gate. The independent evidence as
per “EXHIBITS H” and “J” shows that shots
were fired inside the
premises of house 1081. The accused further
confirmed that the EMPD officers fired at those inside the premises
of house 1081.
Ms A[....] testified that a short police officer who
the accused identified as Buthelezi, responded that “this
person is
disrespectful”. This is clearly the reason why the
argument started between the deceased and the EMPD officers. They did
not like being confronted and thus wanted entry to the premises. It
is improbable that the unarmed deceased would have pulled two
armed
EMPD officers into his yard. He was outnumbered and easily would have
been overpowered.
[96]
Ms A[....] is elderly, short and frail.
According to “EXHIBIT C”, the deceased was 1,7 meters
tall. Although he is slender,
the photos in “EXHIBIT “J”
depicts a well-built young man who does not appear to be weak and
powerless. It is
improbable that Ms A[....] would have been able to
pull and drag the deceased to the veranda if he was resisting her. He
appeared
much younger and stronger than her, as N[....] also
testified. It is thus more probable that the deceased was not
aggressive, was
not looking for a physical fight and that he was not
holding onto Maphumulo. The fact that N[....] A[....] was able to
close and
slam lock the burglar gate is indicative of the fact that
the deceased was not holding onto Maphumulo at the time. The
accused’s
version is that both Ms A[....] and the deceased were
pulling Maphumulo onto the veranda. The version of the accused is
thus clearly
improbable and untenable.
[97]
It is improbable that there would have been
a crowd inside or outside the yard of house [....] as one would have
expected them to
intervene if the EMPD members were man-handling a
civilian in his own yard. According to the accused, the crowd was not
happy with
what was happening inside the yard. Furthermore, the gate
was open and nothing prevented them from entering the yard. The
probabilities
are that if there was such a crowd, they would have
assisted the deceased and that they would have overpowered and
attacked the
EMPD officers.
[98]
The probabilities on the forensic ballistic
evidence thus favours the testimony of the eye witnesses (A[....]’)
and is contradictory
to the accused’s version, especially as
Maphumulo stood directly in front of the place where the burglar gate
was damaged.
On the accused’s own version and his knowledge
about firearms and rubber ammunition, the accused consciously put
Maphumulo
in danger of being struck with the rubber bullets. His
version is thus highly improbable.
[99]
When Mlindazwe was cross-examined, it was
proposed to him that the deceased could have sustained the injuries
to his upper left
arm if he stood sideways when he stretched his arm
through the burglar gate. This proposition was excluded by the
accused who was
adamant that the deceased faced Maphumulo. It is
furthermore contradicted by the angle at which the deceased was shot
and the fact
that the injury on the deceased’s chest has a
track from right to left. The evidence and version of both Ms’s
A[....]
is thus more probable.
[100]
The accused, on his version, accompanied
the EMPD members to gather information about a suspect, but yet he
only spent time with
Matyobeni, who travelled with him. Furthermore,
on his version, the accused remained in his car and did not have any
interaction
with the EMPD members, apart from Matyobeni. His latter
version is improbable. The accused joined the EMPD and actively
participated
as distilled from the objective facts.
[101]
If the accused’s version with regard
to Matyobeni not loading the shotgun in his presence and not taking
shotgun ammunition
with him when he alighted on two occasions was
true, it would mean that Matyobeni did not fire shots with his
colleagues on two
different scenes. The expert evidence from
Mlindazwe is that the specific shotgun takes 4 – 5 bullets.
Matyobeni was not
sure and estimated it to take seven bullets. The
expert evidence from Mlindazwe is to be preferred.
[102]
The accused’s testimony was that he
thought that the deceased would release Maphumulo when he shot him
with the rubber bullets
and that the deceased would then be arrested.
However, the accused fired continuously at the deceased and did not,
on his version,
give him an opportunity to release Maphumulo. Once
the deceased released Maphumulo on the accused’s version, the
accused
did nothing and left. He did not ask the deceased any
questions. He did not speak to the EMPD members. He did not ascertain
whether
anyone was injured or whether Maphumulo lost his firearm. His
version in this regard is thus improbable and his actions are
contradictory
to his intentions.
[103]
The accused did not see Matyobeni being
attacked by four males behind his vehicle. He could see that
Matyobeni was injured and was
aware of the fact that people were
still coming out of the yard of house 1081. The accused was unable to
ask any other EMPD officers
to assist him or Matyobeni. Despite
knowing that Maphumulo was giving back-up to Buthelezi, the accused
disarmed an injured Matyobeni
and rushed to house [....]. This
conduct of the accused is improbable as he literally chose to go to
an unknown danger whereas
he was in a position to assist Matyobeni
who also was in danger.
[104]
Both eye-witnesses to the incident, the
A[....] ladies, were, I find, impressive witnesses who clearly bore
no animosity or ill-will
towards the accused. They were extremely
good witnesses who had given evidence in an honest, straightforward
and credible manner.
Their respective statements to the police made
shortly after the incident were introduced. In the case of the first
state witness,
she provided that her reasons for initially getting
out of the house was because of her inner voice. In relation to Ms.
A[....]
Junior, the issue was whether the incident happened before or
after she served lunch. These are not material inconsistencies.
Accordingly,
I find no material contradictions in any of the evidence
tendered by both of them. Their respective evidence evidently
corroborated
each other in all material respects. I find that the
evidence by the eyewitnesses is not only credible, but reliable. From
their
evidence it is clear that the accused and the police officers
entered house number [....] forcefully and without justification.

Furthermore, it is clear that the deceased was shot without
justification.
[105]
The version by the state witnesses that the
accused and the police officers entered the premises without
justification was not seriously
challenged. From the evidence, it is
clear that the deceased was confronted in the sanctity of his own
home for no justifiable
purpose other than that he voiced his
unhappiness to the police who were out in the street shooting unarmed
and innocent victims.
[106]
The accused, on the other hand, was a poor
witness. In his
section 112(2)
statement, it alleges the two police
officers were dragged into house number [....]. Whilst explaining the
events of the day, it
turned out that the officers entered house
number [....] in turn. He fails to explain in detail how constable
Buthelezi was dragged
into the yard of house number [....]. It is
unfathomable that members of the community, or for that matter, the
occupants of house
number [....] would have dragged the police inside
the yard. Not only is the accused’s version in that regard his
ipse dixit
,
a bare assertion, but contradicted by the state’s eyewitnesses.
At any rate, this is not supported by the objective facts.
Neither
was it suggested in argument before this court. I have no doubt that
the police, who were out in full force, would have
countered such
behaviour and responded with mightier force. The suggestion that
there were lots of people at [....] is not supported
by any objective
evidence because on the version of the accused, the people who had
gathered outside the gate dispersed after he
fired the initial shot.
[107]
Quite
evidently and as one would expect, members of the community were
running away from the police after 1081 was raided. From
the
objective evidence, the only people present inside the yard of [....]
were family members of the deceased as well as two of
his friends.
That can hardly be described as a crowd. I find it highly improbable
that there was any threat to the police present,
their physical
integrity, or firearms in their possession. The deceased was not
suspected on reasonable grounds of having committed
a crime involving
the infliction or threated infliction of serious bodily harm for
purposes of
section 49(2)
of the CPA justifying a confrontation with
the police and the accused.
[3]
As indicated above, the accused’s evidence in this regard was,
in any event, seriously challenged by the state witnesses
whose
evidence I have already found to be more credible than that of the
accused.
[108]
There was criticism against parts of the
summary of substantial facts which accompanied the above. By way of
example, it was alleged
in the summary that, “Cst Matyobeni was
assisting his colleagues, but he had left his fully loaded shotgun
inside the Accused’s
car” contrary to the testimony led
during the trial. Also, that the accused “pointed the shotgun
to the deceased and
fired several shots at the deceased’s body
whilst Constable Buthulezi and N Maphumulo, B[....] A[....], and
Ntombikhayise
A[....] stood next to the deceased”.
[109]
But,
as counsel for the accused rightly conceded, an indictment as
envisaged in terms of
section 144(3)(a)
of the CPA and the evidence
led as a summary of substantial facts, is not evidence and cannot be
construed as admitted facts. It
is nothing more than a statement of
material facts to inform the accused of the allegations against him
and the State is not required
to set out exactly what evidence will
be led to prove these allegations.
[4]
To the extent that the summary is at odds with part of the evidence
led to during the trial, this was clarified as the witnesses
were
subject to cross-examination. The accused suffered no prejudice in
this regard. There was no suggestion made that he suffered
any in
that respect.
[110]
As for the
section 186
witness, Constable
Matyobeni, his evidence is compromised as he sat through the trial in
court but for one day towards the end
of the accused’s
cross-examination. Constable Matyobeni, with the support of both
counsel, was in the interest of justice
called by this court to
clarify how the shotgun ended up with the accused. He could not give
a clear answer. His evidence is therefore
not reliable. In any event,
it has been contradicted by the version of the accused in crucial
parts particularly with regard to
how he ended up in the accused’s
car after the incident. I find it astonishing and therefore
unbelievable that the alleged
attack on him by four men would have
gone unnoticed by his colleagues, including the accused. I also find
it unbelievable that
his own colleagues would have left him
unattended and not refer him to hospital for medical attention had he
suffered the kind
of injuries complained of, including visible
injuries. Constable Matyobeni has reasons to mislead. One primary
reason is that he
is facing misconduct charges and is yet to answer
truthfully as to how he relinquished the possession of his shotgun to
the accused.
[111]
In our law
dolus
eventualis
is generally defined as
follows:
“…
a
person acts with
dolus
eventualis
if the commission of the unlawful act or the causing of the unlawful
result is not his main aim, but (a) he subjectively foresees
the
possibility that, in striving towards his main aim, the unlawful act
may be committed or the unlawful result may ensue, and
(b) he
reconciles himself to this possibility.”
[5]
[112]
Burchell
and Hunt
[6]
state that the
"recklessness" required for dolus eventualis:
"…means the
taking of a conscious risk. The accused foresees the consequence in
question as a real possibility and yet
persists in his conduct
irrespective of whether it does result or not... It seems in every
situation where the accused does foresee
the consequence as at least
a real possibility and nevertheless persists in his conduct
irrespective of whether it results or not,
he does consciously take
the risk of it happening."
[113]
The
distinguishing feature of
dolus
eventualis
is,
as Jansen JA stated, “the volitional component: the agent (the
perpetrator) “consents" to the consequence
foreseen as a
possibility, he "reconciles himself" to it, he "takes
it into the bargain”.
[7]
[114]
In
the case of murder, a person acts with
dolus
directus
if
he or she committed the offence with the object and purpose of
killing the deceased.
Dolus
eventualis
arises
if the perpetrator foresees the risk of death occurring, but
nevertheless continues to act appreciating that death might
well
occur, therefore ‘gambling’ as it were with the life of
the person against whom the act is directed. It therefore
consists of
two parts: (1) foresight of the possibility of death occurring, and
(2) reconciliation with that foreseen possibility.
The perpetrator
does not have to foresee death as a probable consequence of his or
her actions – if the possibility of death
is foreseen with a
disregard of that consequence, the intention to murder is present.
[8]
[115]
In the instant case, the accused took
Matyobeni’s shotgun and, on his version, without knowing what
was inside it. He did
not know whether it had ammunition in it, what
type of ammunition it had and how much ammunition it had. From the
common cause
evidence, the deceased whilst in his yard confronted the
police about shooting people in their houses. From the common cause
evidence,
the accused shot the deceased with a Muzzler 12-gauge
shotgun which can fire any 12-gauge shots in respect of which he had
received
training. According to “Exhibit R”, the shotgun
manual: “under no circumstances should the trigger be pressed

unless you have checked the chamber and magazine of the weapon for
any rounds”. He did not perform any safety procedures
nor did
he ask Matyobeni anything about the firearm. The aim and purpose of
these precautionary steps evidently are to prevent
an accidental
death. The accused was aware of these steps, but recklessly, as he
conceded, failed to follow any of them.
[116]
The accused was trained in the use of
firearms whilst at the police college. During his employ as a
security investigator, he also
obtained knowledge and experience in
the use of firearms including shotguns. He also has knowledge as to
when he is allowed to
use his firearm.
[117]
The accused did not seek help from any EMPD
officer. He testified that he could have gone into the yard of house
1081 to ask for
help as it was close to where he was. He however
failed to do so, even though it was a consideration he had. He did
not rush to
Maphumulo in order for them to act together as a team to
assist Buthelezi. Despite knowing that he has limited knowledge and
practical
training in the use and operation of shotguns, he persisted
in his objectives. When his actions are considered, it is clear that

the accused’s intention was to take Matyobeni’s shotgun
and to use it, irrespective of what was inside it, he had reconciled

himself with the use of the firearm and its contents to reach his
objectives. On the facts
in casu
,
the accused had no legal, lawful or legitimate reason to take and
possess Matyobeni’s shotgun.
[118]
The accused conceded that he was aware of
the well-publicized death of Andries Tatane who died when police
officers shot him with
rubber bullets. He also knew about other cases
where people died as a result of rubber and personally saw injuries
caused by rubber
bullets, specifically where a person’s skin
was torn open. He is aware of the volatility of rubber – that
some will
travel further than others. Although he personally did not
witness a person dying as a result of being shot with rubber, he knew

that it could happen.
[119]
The accused testified that when he took
Matyobeni’s firearm, his intention was to assist and not to
kill. However, when he
entered the deceased’s yard and shot the
deceased, his intention was, on his version, to hurt or injure him to
the extent
that the deceased must release Maphumulo, which version
was dismissed. He continuously shot the deceased in the chest area
where
vital organs are situated, knowing that injury to these vital
organs may be lethal. The accused did not fire one shot at the
deceased,
but fired several shots one after the other without
pausing.
[120]
The accused did not think about or consider
alternative ways to diffuse the situation. He also did not consider
what he would have
done if the shotgun did not have any ammunition in
it. This is indicative of him reconciling himself to the use of
whatever was
inside the shotgun.
[121]
As the accused is adamant that he did not
take the shotgun with the intention to kill anyone, his subsequent
actions must be considered
to determine his intention at the time he
shot and killed the deceased. In other words, did the accused
subjectively foresee that
he could have killed the deceased and did
he, despite that foresight, reconcile himself with the possibility of
the deceased’s
death.
[122]
The accused had the subjective knowledge on
his own admission that a person can be killed and injured as a result
of the use of
rubber bullets. When he took the shotgun, he knew what
safety procedures he should have performed, but he failed to do any.
[123]
Whilst inside the yard of house [....], the
accused did not consider any other options apart from shooting the
deceased with whatever
was inside the shotgun. He did not shout for
help from EMPD members. He did not call for back up at any stage. His
focus and aim
were directed at the use of the shotgun and at shooting
the deceased.
[124]
The
deceased was behind the burglar gate and posed no to danger to
anyone. He did not have any weapon with him. Despite this, the

accused, on his version, fired three shots at the deceased’s
chest area one after another where all his vital organs are.
He did
not stop after the first shot to give any further consideration to
his actions. In some cases, the possibility of death
will be a remote
possibility and the perpetrator might think that death might not
occur. Yet, he is aware that it is a remote possibility.
If the
perpetrator persists with his action, despite awareness of the remote
possibility of death, it will be proved that he acted
with the
intention to cause death.
[9]
[125]
The question which remain is whether the
accused reconciled himself with the possibility of the deceased’s
death and acted
with disregard to this possibility. In other words,
did the accused subjectively think or foresee that death would not
occur if
he continued with his actions. The accused testified that he
did not think about Andries Tatane when he acted and that he did not

want to kill anyone when he started the sequence of events. Firearms
by their nature are designed to kill. However, the accused
reconciled
himself with the use of the shotgun to achieve his goal without
ascertaining the nature of the ammunition that was loaded.
As it
turned out, there was a live ammunition round that had been loaded.
It had not been established beyond doubt that it was
the accused who
loaded the live ammunition. He did not consider any other option but
shooting the deceased. Despite the specific
knowledge he has, he
disregarded all safety precautions and fired excessively at the
deceased. The consequences of his actions
were immaterial to him as
is also evident in his conduct after shooting the deceased.
[126]
He fired continuously at the deceased who
was in a closed and confined space. The deceased was unarmed. He did
not consider less
invasive options to reach his objectives. It is
fair to conclude that the accused thus reconciled himself with the
possibility
of the deceased’s death. In firing with a shotgun
at the deceased who was behind the burglar gate, the possibility of
death
was obvious. Furthermore, when firing at least three shots at
the deceased at a distance of approximately 2 meters, the possibility

of death is clearly obvious.
[127]
In my view, the accused did not act out of
necessity as suggested, but was at all times able to foresee, and did
foresee, the consequences
of his acts and did accordingly, form
the intention to kill the deceased. He shot the deceased not
once, but four times, and
he then casually left from the scene with 2
other officers where he had killed him. In my view, the accused must
have foreseen,
and did foresee, that the shots which he was firing on
the deceased would cause his death, and he nevertheless shot him,
reckless
whether death resulted or not. As indicated, the shotgun
injury to the chest, which proved fatal, left a gaping hole
associated
with trauma to the left lung and heart
.
[128]
On
the vexed question whether the accused intended to cause death of the
deceased, the law in this regard is settled and very clear.
“If
a person foresees the possibility of death resulting from his deed
and nevertheless does it, reckless whether death ensues
or not, he
has in law the intention to cause death” per Holmes JA.
[10]
I
find that, at the time of shooting the deceased, the accused had the
necessary intention in the form of
dolus
eventualis
.
I accordingly find that the State proved the commission of the
offence of murder in respect of count 1.
[129]
Despite that fact that the accused had the
necessary intention to kill the deceased, it must be proved that he
also had the intention
to murder the complainants in counts 2 –
9. The state in closing argument, did not call for convictions in
respect of counts,
2, 6, 8 and 9 due to lack of sufficient evidence
to sustain the convictions. The evidence before this Honourable Court
does not
sustain the said conviction on all of the charges. However,
with regard to counts 3 – 5, the four child complainants were

injured as a result of the spread of the pellets fired by the
shotgun. Their injuries are contained in “EXHIBITS D –

G”. The complainants in counts 6 – 7 were in close
proximity to the deceased but not affected when the accused fired

these shots at him. The accused when he fired, knew that rubber
bullets are volatile and that they could end up at any given place.

He intended to hurt and injure in firing several shots. Accordingly,
I find that he also foresaw the possibility of death and reconciled

himself with it. I find that the guilt of the accused in respect of
counts 3-5 were proved, but not 2,6, 7,8 and 9.
[130]
It
is common cause that the accused possessed a shotgun and at least one
live shotgun bullet at the time of the commission of the
offences. He
however denies that his possession was unlawful. Despite subjectively
thinking that he had lawful possession of the
shotgun, the accused
did not have justification for his possession and use of the shotgun.
There is no putative ground for the
justification of the lawful
possession of a firearm.
[11]
[131]
The accused is unable to rely on
self-defence or necessity as a ground of justification for his
possession of the shotgun. On the
facts as presented by the State,
there was no unlawful attack on the accused nor on Maphumulo and
Buthelezi. In fact, there was
just a verbal argument that was
escalating. Furthermore, the deceased was unarmed and behind a locked
burglar gate. There was no
imminent attack or danger to the accused
and Maphumulo that was presented by the deceased. The use and
possession of the shotgun
was also not necessary to ward off any
attack as there were, at any rate, other options available in the
circumstances. The accused’s
possession of the shotgun and
ammunition was unlawful and a conviction is justified.
[132]
In all the circumstances, I conclude that
the state proved beyond reasonable doubt that the following offences
in respect of which
the version by the accused, in turn, is not
reasonably possibly true. The accused is convicted as charged for
murder read with
section 51(2)
of the
Criminal Law Amendment Act 105
of 1997
in respect of count 1; and as charged in respect of counts
3-5; 10 and 11. The accused is acquitted in respect of counts 2,6,7,

8 and 9.
T P MUDAU
Judge of the High
Court
Date of Judgment:
17 June 2021
APPEARANCES
For the
State:
Adv R Barnard
Instructed
by:
DPP Johannesburg
For the Accused:
Adv F Roets
Instructed
by:
Botha Attorneys
[1]
S v
Jochems
1991
(1) SACR 208
(A) at 211F.
[2]
2003 (1) SA SACR 134 (SCA) at 139I–140A.
[3]
See
generally
S
v Mathekga and Another
2020 (2) SACR 559
(SCA) at para 16.
[4]
S
v Van Vuuren
1983
(1) SA 12 (A).
[5]
C
R Snyman,
Criminal
Law
,
Sixth Edition, p 178.
[6]
South
African Criminal Law and Procedure
,
Volume
1, p 152-4.
[7]
S
v Ngubane
1985
(3) SA 677
(A) at 685D.
[8]
See
Director
of Public Prosecutions, Gauteng v Pistorius
[2015]
ZASCA 204
;
2016 (2) SA 317
(SCA) at para 26.
[9]
S
v De Bruyn En ‘n Ander
1968
(4) SA 498
(A) at 501G – H.
[10]
In
S
v Mini
1963 (3) 188 (AD) at 190F.
[11]
CR
Snyman,
Criminal
Law
,
4
th
Edition, page 101.