About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 251
|
|
Gomes v S (A827/2009) [2010] ZAGPPHC 251 (15 December 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASENO:A827/2009
DATE:
15/12/2010
In
the matter between:
PHILIP
GOMES
….........................................................................................
Appellant
and
THE
STATE
...................................................................................................
Respondent
J
UDGMENT
MAKGOKA,
J:
[1]
The appellant stood trial in the regional court, Witbank, on three
counts, namely, murder (count 1), attempted murder (count
2), and
unlawful pointing of a fire-arm (count 3). He was acquitted on the
last two, but convicted on the charge of murder, upon
which he was
sentenced to 15 years imprisonment, of which 5 years were suspended
on certain conditions. With leave of the trial
court, the appellant
is now before us on appeal against conviction only.
[2]
The participants in the matter are the following: the appellant and
his friend, Mr Collin Melville, Mr Christopher van Rooyen
(Christo),
Mr Jakobus Meyer (Koos), Mrs Katrina van Rooyen (Katrina), Mrs
Johanna Meyer (Johanna) and the deceased, Mr Christiaan
Botha. Both
Katrina van Rooyen and Johanna Meyer are daughters of the deceased
and are married to Christopher Van Rooyen and Jakobus
Meyer,
respectively, and are accordingly sons-in-law of the deceased. All
the four testified in the State's case, while the appellant,
Mrs
Susara Joubert and Melville testified for the defence. Without
intending any disrespect to the State witnesses, I would, where
the
context dictates, refer to them by their first names, due to the
similarities in their surnames.
[3]
It was common cause that the deceased in the murder count, Mr CJ
Botha, died as a result of a gunshot fired from the appellant's
licensed fire-arm. It was further common cause during the trial that
some of the State witnesses and the appellant were neighbours
in a
block of flats in Witbank, occupying flats no. 2 and 4 on the second
floor, respectively. There was bad blood between the
parties
manifesting in verbal exchanges in the past. On the day of the
incident, the State witnesses were moving house and in the
process of
removing their belongings from their flat to a trailer. During the
process Mr Van Rooyen and Mr Meyer encountered Mr
Melville, the
appellant's friend, at the stairways. A verbal confrontation ensued
between Van Rooyen and Melville.
[4]
Christo van Rooyen testified mainly on the attempted murder count.
Since the appellant was acquitted on this count, his evidence
is only
necessary as background information to the fatal shooting of the
deceased. He testified that after the first verbal confrontation,
and
while busy loading their belongings onto a trailer, another argument
ensued between him and the appellant, which degenerated
into a
physical brawl, during which the appellant assaulted him with a butt
of a fire-arm on his mouth. On the other hand, Koos
Meyer and
Melville were also engaged in a fist-fight, during which the
appellant fired a shot onto the ground, which ricochet and
struck him
(Van Rooyen) on his upper leg. From there he heard a second gun shot
but did not see who fired the shot. He became disorientated
and
laterfound himself in hospital.
[5]
Koos Meyer testified about the fight between him and Melville, and
that between Christo van Rooyen and the appellant. He further
testified that the appellant fired a shot onto the ground, which
ricochet and struck Christo van Rooyen's upper leg. After the
shot
was fired, the deceased, who was by then still in the flat, came
down. With his hands up, he approached the appellant and
requested
him to put down his firearm. The appellant shot the deceased at close
range and thereafter pointed the fire-arm at his
(Koos's) face and
uttered the following words: "Come you f— bastard, i will
kill you too." After that the appellant
just stood there with
folded arms, pulling faces at him and cracking jokes, as if nothing
ha happened.
[6]
Katarina van Rooyen testified that after the first gunshot, the
deceased came down from the flat and with his hands up, stood
at
approximately
VA
metres
from the appellant, requesting the appellant to put away his
fire-arm. The appellant, without uttering a word, shot the deceased.
The deceased collapsed to the ground. The appellant and Melville then
walked across the street to Melville's car. Later the appellant
returned to the scene, brandishing his fire-arm in a threatening
manner to the onlookers. She rushed back to the flat where her
mother
and baby were. The appellant followed her, and before entering his
flat, he said to her in Afrikaans: "Vanaand sal
julle boertjies
vrek ("Tonight you little
boers
will
die").
[7]
Johanna Meyer testified that during the altercation that involved the
four men, she grabbed her baby from her sister Katarina,
and rushed
to the flat. Half-way the stairs, she heard a gunshot. She
immediately came down with the deceased. With his hands up,
the
deceased approached the appellant, asked him what he was doing and
requested the appellant to put away his firearm. The deceased
was
standing at approximately 2 metres from the appellant. The appellant
just looked and laughed at the deceased, and then fired
a shot which
struck the deceased, who collapsed onto the ground. The appellant
then said to her husband: "Ja, come you bastard,
I will kill
you."
[8]
The appellant's evidence (both in chief and in cross-examination) is
punctuated with a lot of inaudible portions. However, the
thrust is
clear. According to him, there was verbal confrontation involving
him, Christo van Rooyen, and Melville and Koos Meyer.
It turned into
a fist-fight, during which Koos Meyer produced a knife and charged at
him. He produced a
firearm
in
return.
He
fired
two warning shots onto the ground, one which ricochet and hit Van
Rooyen. The deceased later joined the fight and grabbed
him, trying
to take the firearm from him. He moved backwards, telling the
deceased: "Los my, ek gaan jou skiet. Los my, ek
gaan jou
skiet." ("Leave me alone, I am going to shoot you")
[9]
The deceased did not relent, but instead, grabbed him with both
hands. He then knew that the deceased was going to take the
gun away.
He could not break loose of the deceased's grip. During the scuffle a
shot went off and hit the deceased. He did not
at that point, intend
to shoot the deceased. He did not remember if he pulled the trigger,
but when the shot went off, the firearm
was already cocked but his
finger was not on the trigger.
[10]
Melville testified that the deceased grabbed the appellant's hand
which was holding the fire-arm. The appellant warned Van
Rooyen,
Meyer and the deceased several times that he was in possession of a
firearm and that he would shoot them. While the deceased
so grabbed
the appellant's hand, there was a struggle, during which a shot went
off.
[11]
In his judgment, the learned regional magistrate did not make any
credibility findings in respect of any of the witnesses,
nor evaluate
in any significant manner, such evidence. He seemed to proceed from
the premise that because he did not believe the
evidence of the
appellant and his witness, Melville, the appellant was therefore
guilty. It is a wrong formulation.
[12]
The proper approach in determining the guilt of an accused, is to
weigh all elements which point towards the guilt of the accused
against all those which are indicative of his innocence, taking
proper account of all 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:
S
v Chabaictla
2003
(1) SACR 134
(SCA).
[13]
Even if the court subjectively disbelieved the appellant, it was
still required to consider whether there was a reasonable
possibility
of his version being true. Before his version may be rejected it must
not merely be improbable, but it must be false
beyond a reasonable
doubt:
S
v Khubeka
1982
(2) SA 534(W)
; 5
v
Munyai
1986
(4) SA 712
(V);
S
v Jaffer
1988
(2) SA 84
(C);
SvV
2000
(1) SACR 453
(SCA).
[14]
In my view, Katrina van Rooyen's evidence on the shooting of the
deceased, should have been rejected. She made two inconsistent
statements on the aspect. In her statement to the police a day after
the incident, she stated that the deceased intervened in the
fight
between the appellant and Koos Meyer. In her evidence, she
contradicted this by stating that the deceased never intervened.
When
pressed on this in cross-examination, she conceded that her evidence
in court was a lie.
[15]
On the other hand, Koos and Johanna Meyer corroborated each other in
material respects on how the appellant shot the deceased.
There are
no inherent improbabilities in their individual and collective
evidence. The appellant's version that Koos had produced
a knife
should be rejected, it he had, the police would have found it on his
person, as they were on the scene shortly after the
deceased was
shot. The appellant himself testified that he told the police about
the knife. If indeed there was a knife, the police
would have
confiscated it. It is common cause that the deceased was at no stage
armed. When he approached the deceased requesting
him to put away his
firearm, his hands were up. He posed no danger whatsoever to the
appellant. There is therefore no basis to
reject the evidence of the
witnesses.
[16]
On the other hand, the appellant's evidence poses difficulties. It is
not clear from his evidence as to exactly what his defence
was. In
his plea explanation, the basis of his defence was disclosed as
private defence. During cross-examination by the prosecutor,
the
appellant's defence seemed to shift from private defence to an
unintentional discharge of a fire-arm. This is clear from the
following portion of the record during cross-examination:
"Question:
And
when he grabbed you with both his arms you fired the shot is that
correct?
Answer:
Ja
that is correct.
Question:
You
knew that if you shoot someone he is going to die, is that
Answer;
Ja
that is why I did not want to shoot him because ...
Question:
But
at the end of the day you did?
Answer:
I
had no choice.
Question:
Why?
Answer:
Because
he is much stronger than me. There is more than us fitter. They are
rugby
players and they play club rugby. You know they are tough guys and
they are drunk and, and if we did not have the gun we could
not have
a fight with those guys.
Question:
So
you shot him to stop him, is that correct?
Answer:
Ja.
Question:
Stop
doing what?
Answer:
Attacking
me, because he was going to take the gun. I tell you if I had, it was
just
a few more seconds he would have taken it because he is so strong. He
grabbed my arm at the time it was so hard you know.
[17]
Later on, the appellant testified that he shot the deceased because
he was concerned that the deceased might remove the firearm
from him,
but he did not know if he pulled the trigger on purpose to shoot the
deceased. Furthermore, the appellant stated that
he could not
remember pulling the trigger, but thought that the deceased was going
to climb on top of him and squash him to the
ground if he did not
shoot him. This is very incoherent, muddled and simply indicative of
an attempt to avoid the inescapable conclusion
that the appellant
shot the deceased in cold blood.
[18]
The appellant's conduct after the shooting of the deceased lends
credence to the version of the State. All the three State
witnesses
testified that the appellant just stood there and later moved over to
Melville's vehicle across the street. Both Koos
and his wife,
Johanna, testified that he threatened to shoot Koos, addressing him
in a derogatory manner. Katarina was also threatened
by the appellant
when she went up to her flat. Clearly, this is not the conduct of a
man who had just accidentally shot a person.
He did not summon
emergency medical care for the two injured men (Van Rooyen and the
deceased). All three witnesses testified about
him brandishing his
firearm randomly. The evidence of the three State witnesses depicts
the appellant in a fighting mood that fateful
day.
[19]
The version of the State witnesses is further supported by the object
facts. It is common cause that the police found only
two cartridge
cases at the scene. There was one bullet jacket; the other, or
fragments thereof, was lodged in the body of the deceased,
according
to the post mortem report. Mrs Joubert also confirmed the version of
the State witnesses that only two shots were fired.
[20]
The appellant could not have, objectively, acted in private-defence.
On the evidence, it is clear that by the time the deceased
arrived at
the scene, Van Rooyen, who had a tussle with him, had been subdued
with a gun shot to his upper leg. The deceased was
unarmed, and posed
no danger of any kind, to the appellant. To accept the version of the
appellant, one has to reject the totality
of the evidence of Koos and
Johanna Meyer, whom I have already found to have been credible
witnesses.
[21]
In light of the totality of the evidence, it is safe to accept the
State's evidence and reject the appellant's version as false.
It
simply cannot be reasonably possibly true.
[22]
The appeal is therefore dismissed.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
I
agree
PZ
EBERSOH
N
ACTING
J
UDGE
OF THE HIGH COURT
DATE
HEARD
:7
JUNE 2010
JUDGMENT
DELIVERED
:
15 DECEMBER 2010
FOR
THE APPELLANT
:
ADV DJ COMBRINK
INSTRUCTED
BY
:
HARVEY NORTJE WAGNER
FOR
THE DIRECTOR OF PUBLIC PROSECUTIONS
:
ADV A COETZEE