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[2010] ZAGPPHC 538
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Gudu v S (A124/07) [2010] ZAGPPHC 538 (30 April 2010)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NO: A124/07
DATE: 30 APRIL
2010
In the matter
between:
GCINLEHANI
WITBOOI
GUDU
.....................................................................................................
Appellant
and
THE
STATE
......................................................................................................................................
Respondent
JUDGMENT
1. This is an
appeal, with the leave of the learned judge, against a judgment of
Preller J, sitting in the circuit court at Witbank.
The appellant, a
52 year old man at the time of his trial, was convicted of the murder
of Ntsatsi Philemon Mogohloane, to whom
I shall refer as the deceased
and sentenced to imprisonment for 10 years. There is no appeal
against the sentence.
2. It is not in
dispute that on 31 October 2003, on the grass dividing island between
the two carriageways of the N4 highway near
Witbank, the appellant
fired one shot at the deceased from a 9mm pistol licensed to the
appellant, with the intention of killing
the deceased.
3. The events that
day must be seen against a taxi war which was raging in that area.
The appellant and the deceased were members
of different factions in
that conflict, shown on the evidence to be bitterly hostile to each
other.
4. Earlier during
the morning of 31 October 2003, the appellant, accompanied by one
Masina, had been confronted by a crowd of supporters
of a hostile
faction. There is a reasonable possibility that the deceased was one
of the members of that crowd. The crowd began
to attack Masina with
sticks and metal objects and the appellant fled. Masina was only
saved from death or very serious injury
by the intervention of a
bystander, Mr Khumalo, who appears from the record to have been a man
of courage and humanity.
5. Mr Khumalo, who
gave evidence for the appellant, said that shortly before 08h00 on 31
October 2003, at a stage during or immediately
before the crowd began
to beat Masina, a man (whom the witness identified as the deceased)
fired three shots from a firearm in
the direction of the fleeing
appellant. Mr Khumalo's evidence in this regard was broadly
corroborated by the appellant.
6. Masina laid a
charge arising from the assault upon him and on 22 January 2004, the
investigating officer, Inspector de Witt,
took a statement from the
appellant. In that statement, the appellant made no mention that
anybody had fired shots at him.
7. The learned judge
concluded, without dealing with the credibility of Mr Khumalo, that
the version of the appellant that he had
been fired upon by the
deceased earlier on the morning of 31 October 2003 was fabricated. He
accordingly found that no shots had
been fired at the appellant.
8. While the
appellant was an extremely bad witness and his account of the attack
on Masina and him was riddled with contradictions
and
improbabilities, I think that the learned judge erred in ignoring the
evidence of Mr Khumalo. I have described the unrest that
seethed
within the taxi owning and driving community as a war. I was not
exaggerating. Passions ran extremely high and, on the
evidence, many
of those involved in the unrest carried firearms. Indeed, at the time
of the assault upon Masina, the appellant
himself was armed with the
pistol with which he later shot the deceased. I am therefore prepared
to find that the appellant was
shot at by the deceased during the
morning of 31 October 2003, before the fatal shooting.
9. I turn to the
events of the fatal shooting itself. Although the precise time of day
of the shooting was not canvassed in the
evidence, it appeared from
the statement of the police witness, Inspector Kruger, that the
deceased was shot and killed at about
08h30 that morning. I accept
that the appellant was still emotionally affected by the attack on
him by the deceased some moments
before.
10. The grass
dividing island in the highway on which the fatal shooting took place
was about 13 to 15 metres wide. At that time
there stood, in the
highway adjacent to the island, a red minibus taxi belonging to a
member of the deceased's faction. This minibus
had been put out of
action in the conflict and abandoned. The deceased and three others
drove up in a blue Toyota Corolla to retrieve
the red minibus.
Inspectors Ainslie and Kruger and many other police officers were on
the scene. A crowd of members or supporters
of the appellant's
faction, and the appellant himself, were on the scene.
11. The deceased,
who was the driver of the blue Corolla, got out, apparently to make
preparations to tow away the red minibus.
The crowd became restive
and Kruger feared violence might erupt. He instructed the deceased to
get back into the Corolla and drive
away from the scene. The deceased
obeyed and started the engine of the Corolla. At that moment, the
appellant emerged from the
crowd and, right next to Kruger, fired a
shot through the open driver's window of the Corolla, striking the
deceased in the neck.
The bullet travelled through the body of the
deceased and struck a passenger in the rear of the Corolla in the
knee.
12. Kruger, with the
assistance of Ainslie, tried to arrest the appellant. Kruger took the
appellant's pistol from him, without
resistance from the appellant
and put the pistol in his, Kruger's, pocket. The crowd closed in.
According to Kruger, one of the
persons in the crowd thrust an object
under Kruger's bullet proof jacket and warned him, on pain of death,
to release the appellant.
It is common cause that the appellant was
not arrested on the scene.
13. The Corolla
began to move and, after a few metres came to a halt when it collided
with a white minibus on the island.
14. Kruger opened
the driver's door and the deceased fell out, only his feet remaining
in the Corolla. The deceased probably died
on the scene.
15. The accused
handed himself over to the police some few days later.
16. At the trial
before the learned judge, the appellant admitted shooting the
deceased. The evidence shows that the deceased intended
to kill the
deceased. The learned judge made a finding to that effect. This
finding has not been challenged on appeal.
17. The appellant's
defence, disclosed for the first time at his trial, was that he had
acted in self-defence or in putative self-defence.
The factual basis
for this defence was an allegation by the appellant that as he
approached the Corolla, he saw the deceased reach
under his seat and
bring out a pistol which the deceased then held on his lap, by the
barrel, with the barrel of the pistol pointing
upwards. The appellant
then, so he said in effect, realised that his life was in danger and
that it was a case of kill or be killed.
So the appellant drew his
own pistol and killed the deceased.
18. The learned
judge found that this defence was a concoction and not reasonably
possibly true. The learned judge accepted the
evidence of the police
witnesses in all respects. There was ample justification for these
findings. I list a number of reasons
why this, in my judgment, is so:
18.1 The appellant
said that he approached the deceased to tell him to leave the scene.
But the police had already told the deceased
to do so and the
deceased had re-entered the Corolla and started the engine, obviously
in preparation for leaving the scene. The
appellant's version in this
regard is most improbable. It is much more likely that the appellant
approached the deceased because
he had recognised the deceased and
had decided to murder him, in revenge for the attack on the appellant
a short time earlier.
18.2 Kruger and his
colleagues thoroughly searched the scene and the Corolla. They found
two of the three passengers in possession
of firearms, which they
seized. These firearms were licensed to the passengers in question
and were later returned to them. The
deceased was searched. No
firearm was found upon him. The rear seat passenger who was wounded
was searched. No firearm was found
on him. No firearm was found in
the Corolla itself but the police found in the Corolla a spent round
which was proved ballistically
to have been fired from the
appellant's pistol.
18.3 It was urged
upon us on behalf of the appellant that the deceased might have
borrowed one of the passengers' weapons to shoot
the appellant and
that the passenger might have retrieved the weapon after the fatal
shooting. I regard this suggestion as so speculative
and so
improbable that it cannot reasonably possibly be true.
18.4 Kruger was
within a few metres of the appellant when he fired the fatal shot. He
went almost immediately to the Corolla after
the shooting. There
simply was not enough time for any of the passengers to retrieve the
alleged weapon from the deceased, let
alone any discernable motive
for doing so.
18.5 The defence of
self defence was disclosed at an extremely late stage. The appellant
testified in his bail application and denied
being on the scene at
all. He explained that he had lied in his evidence at the bail
application because his attorney had advised
him to do so. This shows
that the appellant is a person who is prepared to lie under oath if
he thinks he can get away with it.
18.6 In my view, the
appellant invented the absurd story that the deceased had held the
weapon by the barrel on his lap in an attempt
to meet the prosecution
case that none of the police officers on the scene had seen any such
weapon.
18.7 I find that the
true reason, established beyond any reasonable doubt, for the killing
was that the appellant, recognising the
deceased as the man who had
shot at him a short while earlier, decided on the spur of the moment
to revenge himself and impulsively
stepped forward and shot and
murdered the deceased.
19 For these
reasons, I would dismiss the appeal and confirm the conviction and
sentence.
NB Tuchten
Acting judge of the
High Court
16 April 2010
I agree.
PM Mabuse
Acting judge of the
High Court
16 April 2010
I agree; it is so
ordered.
MF Legodi
Judge of the High
Court
16 April 2010