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[2020] ZAECPEHC 35
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S v Gxasheka (CC 06/2020) [2020] ZAECPEHC 35 (18 September 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Reportable/Not
Reportable
Case
No: CC 06/2020
In
the matter between:
THE
STATE
and
SIPHELELE
GXASHEKA
ACCUSED
JUDGMENT ON CONVICTION
MAKAULA
J:
[1]
The accused is charged with housebreaking with intent to murder,
murder, two counts
of attempted murder, unlawful possession of a
firearm and ammunition. The offences were committed on 15
August 2018 at 2[…]
R[…] Street, K[…], Port
Elizabeth. The deceased is Adrian Kammies. The attempted
murder charges relate
to D[…] B[…] B[…] W[…]
(D[…]) and her seven year old daughter A[…] W[…].
The three of them were inside the house when a person(s) fired shots
at them killing the deceased instantly. Fortunately
D[…]
and A[…] escaped unharmed.
[2]
D[…] testified that on 15 August 2018, she woke up at about
5h50 and boiled
water to wash with. The deceased woke up and
washed first and prepared to leave as he said he was going to work.
The
deceased left the house after 6h00. He went out and left
the door half opened. D[…] was at the dining room
undressing
A[…]. She told the deceased to shut the door
as cold wind was coming in. The deceased at the time was
standing
at the gate. Suddenly the deceased came back running.
Upon entering he immediately shut the door and locked it.
He
was simultaneously shouting at D[…] to call the police.
She was puzzled. As that was happening, a person
from outside
started to kick the door. They all ran to the bedroom.
The front door eventually opened. Having
entered the bedroom
the deceased shut the door and tried to lock it. The key fell
to the floor.
[3]
The deceased pushed against the door trying to prevent the person
from entering.
At the time she was standing behind the
deceased. As the pushing continued, she heard a gunshot.
The deceased ordered
her to lie flat on the floor. The deceased was
screaming at her to call the police. She went to the window
opened it and
shouted for help. She saw someone approaching
from outside with a gun in hand. She went away from the window
and lay
flat on the floor. That person put the gun through the
window burglar guards and shot several times at the deceased.
The deceased was still pushing against the door preventing the other
person from entering. After a while the shooting stopped.
She jumped up, took her child and ran out to her mother’s
house. She came back to the house after the police had arrived.
[4]
She testified that she made a statement to the police immediately
after the incident.
She was still shaken at the time.
Shock had the better of her to an extent that she did not reflect
properly in the statement
the events of the occurrence.
[5]
She testified under cross-examination about her daily living and the
love relationship
she had with the deceased. She further
testified that there is a security door at the front door of her
house which was clearly
depicted on the photographs which formed part
of the exhibits. She would lock the door using its key and also
the security
gate using a padlock. She is the only one who kept
the keys. The deceased had no access to the house. He
would
only gain access when she was around. The house belonged
to her grandparent and she lived with Ava only. The deceased
was not staying with them. He would come for a week and would
be away for days especially if there was a quarrel between
them.
[6]
The deceased informed her that he was working at Norwish Taxi rank
repairing watches.
Whenever he slept at her place, the deceased
would leave at 6h00 saying he was going to Rustin’s house so
that they may go
together to work since Rustin was working with
Taxis. The deceased, if he was to sleep at her house, would
come back between
20h00 and 20h30. Her evidence was that there
is no way, the deceased would have sold drugs from her house because
whenever
she was at work, the house would be locked. The
deceased did not have a duplicate key for the padlock even if he
would have
bought the door key.
[7]
She testified further that her house was not a dagga or drug post.
No drugs
were sold in her house. Furthermore, there was a
church house at the back of the main house in the same yard.
She therefore
denied that the accused previously bought dagga from
her house. She disputed the version of the accused that was put
to her
about the purchase of drugs at her house. She stated
that if the accused argued with people at the front door, she would
have heard them.
[8]
Sergeant George Rustler testified that on 15 August 2018, at about
6h30, he received
a report that a crime had committed at 2[…]
R[…] Street, K[…]. He attended to the complaint.
He
found the premises vacant. The security gate and the front
door were opened. He saw blood stains on the stoep.
He
entered the house and saw the deceased lying in one of the rooms.
He called upon his partner to cordon off the crime scene
immediately. He met with D[…] who appeared shaken and
could not speak. She told him that the deceased was her
boyfriend.
[9]
He called on the relevant units of the SAPS to come to the scene.
He handed
the scene over to Sergeant Peta. At that stage he was
working at the crime prevention section and attended to complaints.
He knew most of the Drug Posts (that is houses where drugs were
sold). There were about nine drug posts in the Zinyoka area.
The house in R[…] Street, where the crime was committed, was
not one of the drug posts. On arrival at the house and
upon
looking around, he did not find any drugs. They use informers
and he would have known if the house was a drug post.
[10]
Sergeant Xolani Owen Peta is the investigator of this matter.
He was appointed to the SAPS
on 1 August 2007. He is attached
to the anti-gang unit which is Provisional Organised Crime Unit.
[11]
Sergeant Peta confirmed that on the day of the incident, he received
a call from Captain Swartbooi
to attend to the crime scene. On
arrival he took it over. Captain Swartbooi informed him that
the accused was a suspect
because of his finger prints which he
lifted from the crime scene. Captain Swartbooi furnished him
with the address of the
accused.
[12]
On 12 September 2018 he visited the house of the accused. He
could not find him.
He left a message with Asavela who is the
sister of the accused. He informed her that the accused was a
suspect in a murder
case. He obtained her particulars and in
turn he left his. He left a message with her that the accused
should contact
him. He was never contacted by the accused.
[13]
Again on 2 October 2018 he visited the accused’s homestead.
He found Asavela.
On 29 November 2018 he went to the accused’s
home again. He found Asavela and their mother. He
informed his mother
of the reason why the accused was wanted.
He further asked the accused’s mother to inform the accused to
contact him.
He received no communication from the accused.
On 3 April 2019 at 24h00 he went to the accused home. The
accused was
not at home and he left a similar message. He
eventually arrested the accused on 5 April 2019. That was after
he had
recruited an informer from the area where the accused lived.
The informer phoned him and alerted him to the presence of the
accused. He arrested him at Goniwe Street not far from the
accused’s home.
[14]
He approached the accused, introduced himself and informed him that
he was implicated in a crime
of murder that occurred at
Reconciliation Street through his finger prints. He informed
him that he was under arrest and
took him to the police station for
further processing. That was after he had informed the accused
of his constitutional rights
to remain silent, access to legal
representation and the right to apply for bail. The accused
informed him that he was 19
years old. It was at the time he
was taking his particulars and filling in the 14A detention form.
He asked him if
he had injuries on his body. The accused showed
him old injuries that were on his right leg and left leg below the
ankle.
The accused told him that he was shot at in 2018 by one
“Marcy”. The accused did not remember how he
sustained
the second old wound to his right leg. He reflected
the injuries in his pocket book and other relevant documents.
[15]
There was an issue about the accused age under cross-examination.
Sergeant Peta remained
steadfast that the accused gave out his age as
19 years at the time and he believed him to be so. Sergeant
Peta also confirmed
the age from the case profile of the accused.
He denied that the accused showed him his identity document. Be
that
as it may, it turned out that the accused was 16 years at the
time of the commission of the offence. That necessitated the
charge sheet to be amended to reflect the applicable legislation.
He arrested the accused and obtained his warning statement.
The
accused elected to make a statement to his lawyer.
[16]
Captain Kelvin Cecil Swartbooi is a Criminal Expert, Fingerprint
Expert, Crime Scene Investigator,
Laboratory Technician, Official
Police Photographer, Video Camera Operator, Draughtsman and Forensic
Fieldworker in the employ
of the SAPS. He testified that he had
been a Finger Print Expert for the past 22 years and has testified in
countless cases
involving fingerprints. His expertise in this
regard is not in dispute.
[17]
He testified that on 29 August 2018, during the period of operation
lockdown, he visited the
scene of crime. On arrival he
inspected the crime scene. He took photos and marked all the
points of interest like
a palm print which he found on the security
gate in the front door, blood stains, cartridge cases and bullets
found at the scene.
The photo album and key to plan he
completed were handed up as exhibits and as stated above were not
disputed by the accused.
[18]
For purposes of completion, I shall refer in a summary way how
Captain Swartbooi handled the
crime scene and the swabs he collected
from the blood stains. He collected and sealed the following
exhibits:
·
“
2 wet swabs (Exhibits “X”
and “W”) with possible Blood sealed them in a swab guard
box 13DCAD3233 collected
from the gravel road in front of the houses
22993 and 22994 Barberry Street and sealed them in an evidence bag
PA4001864862.
·
2 wet swabs (Exhibits “V” and
“U”) with possible Blood sealed in swab guard box
13DCAD3232 collected from
the gravel road in front of houses 22996
Barberry Street and 23011 Reconciliation Street and sealed them in
evidence bag PA4001864861.
·
2 wet swabs (Exhibits “T” and
“S”) with possible Blood sealed them in swab guard box
13DCAD3235 collected
from the gravel road in front of houses 23133
Reconciliation Street and sealed them in evidence bag PA4001864864.
·
2 wet swabs (Exhibits “R” and
“B”) with possible Blood sealed in swab guard box
13DCAD3234 collected from
the gravel road in front of house 23135
Reconciliation Street and from a cement slab near the front door on
the outside of the
same house and sealed them in evidence bag
PA4001864863.
·
2 wet swabs (Exhibits “C” and
“E”) with possible Blood sealed them in swab guard box
13DCAD3236 collected
from stoep and the lounge floor at house 23135
Reconciliation Street and sealed them in evidence bag PA4001864865.
·
2 swabs (wet and dry) being Exhibits “F1”
and “F2” with possible touch DNA sealed in swab guard box
13DCAD3238
collected from outside of the main bedroom door handle at
house 23135 Reconciliation Street and sealed them in evidence bag
PA4001864867.
·
2 swabs (wet and dry) being Exhibits “M1”
and “M2” with possible DNA sealed in guard box 13DCAD3237
collected
from the cartridge case found on floor underneath the
window of the main bedroom and sealed in evidence bag PA4001864866”.
[19]
Captain Swartbooi further collected cartridge cases and bullets
inside the house where the deceased
was killed. In the main
bedroom where the deceased was found lying, underneath the window, he
found five cartridge cases.
He also found one bullet in the
same room. In the spare bedroom, he found one bullet.
When the deceased was turned
over, one bullet and one cartridge case
fell from his body. In the toilet, he found a cartridge case
inside a plastic bowl
containing water which was placed on top of the
toilet seat. All the cartridge cases and the bullets were
sealed in evidence
bag PA6001861101.
[20]
Upon further investigations, he found a palm print on the burglar
gate as stated above.
He developed the palm print with an
orange fluorescent powder and enhanced it with a polilight flare
blue. On 2018-08-16
he compiled a giant arch with the
photographic fingerprint images to be scanned on AFIS and forwarded
the giant arch on the same
day to AFIS. On 2018-08-21 the giant
arch was forwarded back to him for verification. He verified it
and linked the
left palm print found on the security gate to Luncin
Gxasheka
alias
Spesh. He informed the investigator accordingly. His
evidence is not disputed in this regard.
[21]
In his
viva voce
evidence, Captain Swartbooi testified that the palm print left by the
accused on the security gate was very clear. The ridges
on the
palm print were wide and clear. He could see the start and end
points. There was no sweat on the palm print
because if the
hand was wet with sweat, it would have been visible on the image.
He further testified that the grip of the
accused was firm on the
security gate because the palm print was clear. He opined that
it is either that the accused opened
the gate with a tight grip or
found it open. He stated that if the security gate was closed,
the palm print would not be
in that position. Furthermore,
Captain Swartbooi said it is impossible for the accused to have left
such a print if he merely
leaned and held the gate while knocking.
It should be noted that all that Captain Swartbooi did at the scene
and elsewhere
is compiled in the photo album that was handed in by
consent and its correctness admitted by the accused.
[22]
The next witness who was called was Rebecca Kimberley Francis-Pope
who is a Warrant Officer in
the SAPS and attached to the Biological
Section of the Forensic Science Laboratory as a Forensic Analyst and
a Reporting Officer.
Her qualifications in the field were not
in dispute. She has 11 years’ experience in biological
sciences. Her
analysis of the blood samples, and the results
she arrived at were not disputed by the accused. For that
reason, I shall
not delve much in the processes she undertook which
culminated in her findings. Suffice it to state that in
her execution
of her duties on 21/08/19, she received the case file
pertaining to Bethelsdorp CAS 189/08/2018, LAB 309796/18, LAB
297372/18 and
LAB 108765/19 and Kwazakele CAS 346/12/2016, LAB
158551/17 [Cluster ZD25/18/3/R] from the access control location
E1–30 WR
which is located at the Biology Section of the
Forensic Science Laboratory. The samples she received were
subjected by her
to DNA analysis by a process requiring skill in
biology. The results, she obtained were captured as follows:
“
The
DNA result obtained from the reference samples 16DBAG0410
(PA4002787870) [BETHELSDORP CAS 189/08/2018] and 16DBCD9258
(PA4003409740)
[KWAZAKELE CAS 346/12/2016] are the same. Please
refer to the above mentioned supplementary affidavit dated
2018-11-22, for
interpretation”.
[23]
She further received on 2018-11-19 the case file pertaining to
Bethelsdorp CAS 189/08/2018, LAB
309796/18; LAB 297372/18 and
Kwazakele CAS 346/12/2016 from the access control location E1–30
WR which is located at the
Biology Section of the Forensic Science
Laboratory. She also conducted a DNA analysis by a process
requiring skill Biology
and obtained the following results:
“
4.1
The DNA result from the Swab 13DCAD3233 [“W”] [“22994
Barberry Drive ground”]
[BETHELSDORP CAS 189/08/2018, Swab
13DCAD3232 [“U”] [“23011 Reconcilliation Str
ground”] [BETHELSDORP CAS
189/08/2018] and Swab 13DCAD3234
[“B”] [“Cement slab foot path between gate and
front door 23135 Reconcilliation”]
[BETHELSDORP CAS
189/08/2018] matches the DNA result from the reference sample
16DBCD9258 [KWAZAKELE CAS 346/12/2016]. The
most conservative
for this DNA result is 1 in 3.4 x 10⁹ trillion people”.
[24]
In the same process, she received the case file pertaining to
Bethelsdorp CAS 189/08/2018, LAB
309796/18 and LAB 108765/19.
She also conducted a DNA analysis by a process requiring skill in
biology the outcome of which
was the following:
4.1
The DNA result from the Swab 13DCAD3236 [“C”] [“Stoep
front door’”]
(PA4001864865) and Swab 13DCAD3236 [“E”] [Lounge floor
near door”] (PA4001864865) matches the DNA result from
the
reference sample 16DBAG0410 (PA4002787870). The most
conservative occurrence for this DNA result is 1 in 3.4 x 10⁹
trillion people”.
[25]
The upshot of the DNA results is that the blood samples obtained at
the scene of crime on the
stoep of the front door, lounge floor area
near the door, on the ground, cement slab foot path between the gate
and the front door
and the gravel road in front of the neighbouring
corner pink house at no 23133 Reconciliation Street matched the blood
sample or
DNA of the accused person.
[26]
Captain Luzuko Mathews Mdineka testified that he is in the SAPS
attached to the Ballistic Unit
of the Forensic Science Laboratory.
Amongst his qualifications and expertise, he is a Crime Scene
Reconstruction Expert having
received training on Advance Shooting
Incident Reconstruction in the United States of America. He
testified that he reconstructed
the crime scene in this matter and
produced Exhibits “M” and “N” which were
handed up by agreement and
admitted by the accused. His
expertise as a Crime Reconstruction Expert and Ballistic Expert are
common cause between the
parties.
[27]
Before, while doing his duties as a Ballistic expert at the forensic
science laboratory and as
contained in his ballistic report admitted
as Exhibit “F” in terms of section 212 of the Criminal
Procedure Act 51
of 1977 (the CPA) Captain Mdineka records thus:
“
On
2018/09/05 during the performance of my official duties I received
two intact sealed bags with number PA6001861101 and PA5001118306
marked inter alia BETHELSDORP CAS 189/08/2018 from Case
Administration of the Ballistics Section. I opened the bag and
found
the following exhibits:
3.1
Sealed evidence bag number PA6001861101 containing:
3.1.1
Six 9mm parabellum calibre fired cartridge cases marked by me
294141/18
G, N, M, O, P and K2.
3.1.2
Three 9mm calibre bullets marked by me 294141/18 J, K3 and Q.
3.2
Sealed evidence bag number PA5001118306 containing:
3.2.1
Five pieces of bullet fragments marked by me 294141/18 AA, BB, CC, DD
and EE”.
[28]
He examined the fired cartridge cases, bullets and bullet fragments
mentioned in 3.1.1 and 3.2.1
and compared the individual and class
characteristics marking transferred to them by firearm components
during the firing process
using a comparison microscope and found
that:
“
6.1
The cartridge cases mentioned in 3.1.1 marked 294141/18 N, M, O, P,
K2 were fired in the same firearm. (1
st
Firearm)
6.2 The cartridge
case mentioned in 3.1.1 marked 294141/18 G was fired in another
firearm (2
nd
Firearm)
6.3 It cannot be
determined if the bullets mentioned in 3.1.2 marked 294141/18 J, K3
and Q were fired or were not fired from
the same firearm.
6.4
The bullet fragments mentioned in 3.2.1 are unsuitable for
microscopic comparison due to damage”.
[29]
In sum, he concluded that two firearms were used.
[30]
On 15 August 2018 at about 10h20 he attended the crime scene.
The intention was to compile
a crime scene reconstruction, trajectory
and terminal ballistics. He produced Exhibits “M”
and “N”
as stated above. The scene was pointed out
to him by Constable Yali of the Port Elizabeth Gang Unit. On 16
August 2018
he also attended the post-mortem examination of the
deceased body at Gelvandale mortuary. At the scene his
intention and
scope of the forensic examination were to do:
·
Crime scene reconstruction and scene
photography.
·
Bullet trajectory examination.
·
Terminal ballistics.
[31]
During the crime scene examination he made the following
observations:
“
7.1
A bullet holes marked by me “A”, “A1”
in the
exterior and interior of main bedroom door. (
Sic
)
7.2
A bullet holes marked by me “B”, “B1”
in the
interior and exterior of main bedroom door. (
Sic
)
7.3
A bullet hole marked by me “B2” in
the exterior of second
bedroom door.
7.4
A bullet defect marked by me “A2” in
the wall just below
the window inside main bedroom.
7.5
A bullet defect marked by me “C” in
the wall next to the
door inside the main bedroom.
7.6
A bullet defect marked by me “B3” in
the wall behind the
door inside the second bedroom.
7.7
Four cartridge cases on the floor below the window
inside the main
bedroom.
7.8
One cartridge case on the floor underneath the
deceased inside the
main bedroom.
7.9
One cartridge case inside the washing basin on
top of toilet seat
inside bathroom.
7.10
One bullet found underneath the bed inside the main bedroom.
7.11
One bullet found on the floor below the window inside the
main
bedroom.
7.12
One bullet found on the floor inside the second bedroom”.
[32]
Having reviewed all that, Captain Mdineka concluded and made the
following possible scenarios:
“
8.1
The bullet hole marked “A”, “A1” and bullet
defect marked “A2”
were caused by one bullet perforating
the main bedroom door and hitting the wall below the window.
The bullet was found on
the floor next to the cartridge cases.
The door was most probably closed when this shot was fired.
8.2
The bullet hole marked “B”, bullet hole marked “B1”,
“B2”
and bullet defect marked “B3” were
caused by one bullet perforating the main bedroom door, second
bedroom door and
hitting the wall behind the door of the second
bedroom. This bullet was found on the floor in the second/spare
bedroom.
The trajectory conducted indicates the main bedroom
door was closed and second bedroom door was opened when this shot was
fired.
. . .”
[33]
On 30 April 2020 at about 11h15, Captain Mdineka attended the crime
scene again now at the request
of Sergeant Peta of the Port Elizabeth
Gang Unit with the same purpose as stated above. He established
during the scene re-enactment
the following scenarios:
“
5.1
There were minimum of two shooters involved at this scene and one was
positioned inside
the house shooting through a closed main bedroom
door while the second shooter was positioned outside the house
shooting through
an open main bedroom window.
5.2
The shooter inside the house fired the shot that perforated the
bedroom door as per
bullet hole marked “A” at the
deceased who was most probably blocking the door and bullet
trajectory can be followed
till it hit wall just below the window.
5.3
The shooter positioned outside the house fired minimum of six shots
towards the deceased
who was inside the bedroom and deceased
sustained several wounds to his upper body and head. One of
these shots perforated
the main bedroom door as well as the second
bedroom door. The bullet was found lying on the floor of the
second or spare
bedroom. The trajectory of this bullet
indicates that it may have struck leg/legs of the shooter positioned
inside the house”.
[34]
He testified that the injuring sustained by the accused is
commensurate with his findings as
depicted in Exhibit “N”
in particular photo 6 of 9 which indicated the trajectory of the
bullet. He measured
in court the healed wound on the right leg
of the accused and found that it was 43cm in the front and 40cm at
the back from the
ground. He opined that from the window to the
last wall in the spare bedroom, the trajectory of the bullet
indicates that
it was going down because of the force of gravity.
He testified that the position of the healed marks on the right leg
of
the accused clearly establish that fact.
[35]
The accused testified that he woke up early on 15 August 2018 from
Zinyoka area and walked for
about 30 minutes to buy dagga at the
house of Ms Witbooi. He bought dagga from the house before.
The dagga he bought
from there was of good quality and was affordable
or cheaper. He arrived at the house. He found the door
closed and
also the security gate. He opened the security gate
as it was not padlocked. As he was about to knock four men
accosted
him. One of the men came to stand in front of him.
Simultaneously the others were kicking the door. At the time
he
was still holding onto the security gate with his left hand.
Two of them searched him and took his cellphone and R150.00
from his
pocket. He was pushed to the side and he leaned against
the wall with his left shoulder while still holding
the security
gate.
[36]
The door eventually opened. He was forcefully taken inside the
house. It was a combined
kitchen and a lounge (hall like) and
there were two doors to the left. One was opened and the other
was shut. The doors
were opposite each other. He stood
just before he could get to the doors. As he stood there, he
heard a gunshot and
felt like someone was kicking him from behind.
He realised that two of his assailants were no longer with them.
He
got an opportunity to run away. He could not run properly.
It was at that juncture that he realised that he had been
shot.
He walked between Desira’s house and a pink corner house which
was to his right. Behind the pink house
(which is depicted in
photos
25 and 26), he
turned to the right and walked to the tar road where he hitched a
hike to Dora Nginza hospital. He was treated
and told to go
home because the injury was not serious as his bone was not
fractured.
[37]
When he got home he lied to his mother by telling her that he was
shot at while being robbed.
He did not know who robbed him.
He lied because he knew that it would come out that he smoked dagga
something which he did
not want them to know about because he was
young. He got information from his sister one day that the
police were looking
for him because he was a witness in a matter.
She also gave him the business card which bore the particulars of
Sergeant
Peta. He decided not to phone Sergeant Peta because he
knew that witnesses get killed.
[38]
He was later arrested while he was walking from a shop with his
friend not far away from his
home. He produced his identity
document and gave it to Sergeant Peta. He was asked about his
age. He told them
that he was born in 2001. Sergeant Peta
also looked at his identity document. The police told him that
it was late
for them to take him to Narina House, which is a juvenile
centre, because they were rushing to knock off duty and worse because
it was a Friday.
[39]
Sergeant Peta asked him whether he had injuries. He told him he
had a healed gunshot wound
on his left leg. He was shot at by
one Marcy in 2018. He did not recall talking about the injury
on his right leg which
he sustained on the day of the killing of the
deceased. He denied ever been to Reconciliation Street because
he did not know
that area well. He denied having broken to that
house nor shooting at the deceased. He did not know that there
were
people in that house because he did not see anybody other than
the four men who robbed him.
A.
Analysis:
[40]
The state in this matter is relying on circumstantial evidence.
There is no direct evidence.
Ms Witbooi did not see who shot at
the deceased and them. She would only relate to what occurred
while the attack took place.
The other evidence that was led by
the State was that of the police who arrived after the fact.
They made observations, took
photos of the crime scene, lifted
fingerprints and reconstructed the crime scene as reflected above.
Even the accused who
arrived at the scene was of no assistance to the
court. He testified that a lot took place inside the house.
However,
he was unable to tell the court even the slightest detail of
what he saw and observed during the period he was with the
assailants.
He does not even know how he got injured and who
did what amongst the four people he found himself with when the
attack took place.
The court has to rely on the possibilities
and probabilities of the matter. It is now for me to engage in
inferential reasoning.
Inferential reasoning was developed “in
two well-reasoned cardinal rules” of logic which were referred
to in
R v Blom
1939 AD 188
at 202-203 as follows:
·
The reference
sought to be drawn must be consistent with all the proved facts.
If it is not, then the inference cannot be
drawn.
·
The proved
facts should be such that they exclude every reasonable inference
from them save the one sought to be drawn. If
they do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.
[41]
At the commencement of the proceedings, section 220 admission were
made by the accused.
Essentially he admitted the following:
41.1
The cause of death which was found by Dr Prudent Lulamile Mgobo to be
“Head and chest injuries
due to gunshots”.
41.2
The bullet point fragments that were collected by Dr Lulamile Mgobo
during the post-examination
in respect of counts 5 and 6.
41.3
The section 212 statement, photo album, plan and key attached thereto
of the crime scene that
correctly depicts and explains what it
purports to depict and explain as observed and photographed by
Captain Kelvin Cecil Swartbooi
on 15 August 2018 have been untampered
with. Collection of spent cartridges and bullet points from the
scene.
41.4
That the spent cartridges and bullet points were untampered with when
opened and examined by
Captain Luzuko Mathews Mdineka.
41.5
That the DNA
reference samples buccal swaps of the accused and the blood samples
collected by Captain Swartbooi from the scene were
not tampered with.
41.6
That the DNA profile
from reference sample Gxasheka S/16DBCD9258 in Kwazakele CAS
346/12/2018) (LAB158551/17 is the same as the
forensic DNA profile in
Exhibits in Bethelsdorp CAS 189/08/2018 (LAB297372/18) which was
analysed by Warrant Officer Morare Getrude
Morare on 05 October 2018
and that her findings are true and correct.
41.7
That the findings of Warrant Officer Rebecca Kimberley Francis-Pope
are true and correct in all
its contents, including observations,
findings and conclusion. Further that at the time of analysing
the blood samples had
not been tempered with.
41.8
That the DNA samples of the accused matched with those found at the
crime scene as analysed by
Warrant Officer Francis-Pope.
41.9
That the section 212 statement and the trajectory photo album and key
thereto correctly depict
and explain what the purport to depict and
explain, as observed and photographed by captain Mdineka on 15 and 16
August 2018 and
his report is true and correct in all its contents,
including.
41.10
The section 212 statement and trajectory reconstruction photo album
and key correctly depict and explain
what they purport to depict and
explain as observed and photographed by Captain Mdineka on 30 April
2020 and his report is true
and correct in all its contents including
observation, findings and conclusion.
41.11
The fingerprint (palm print) retrieved from the security gate by
Captain Swartbooi correctly depicts and
explains what it purports to
depict and explain as observed and photographed by him and his report
is true and correct in all its
contents including his observations,
findings and conclusions and that the accused admits that to be his
palm print.
[42]
The effect of these admissions is that all the evidence tendered by
the State was not in dispute.
The uncontroverted state evidence
is that the deceased died of gunshot wounds. Further that there
were two firearms by two
different shooters that were used when the
deceased was killed. It is further so that the evidence of
Captain Mdineka that
only one gunshot was fired from inside the house
should be accepted as a fact. Captain Mdineka says the shooter
was standing
in front of the bedroom door with the toilet to his
right hand side. The cartridge case was ejected on the right
side of
the firearm hence it ended up where it was found in the
plastic bowl. The only bullet is the one that was shot through
the
door and ended up below the window of the main bedroom. His
second uncontroverted evidence is the trajectory of a gunshot which
came from the window of the main bedroom through its door, second
bedroom door and hitting the wall behind the door and the bullet
being found on its floor. The trajectory indicates that the
main bedroom door was closed and the second bedroom door was
opened
when the shot was fired. Photo 6 of 9 of Exhibit “N”
depicts the position of the shooter standing behind
the door of the
second bedroom. It further depicts the trajectory of the shot
which was fired from the window hitting the
right leg below the
knee. The position of where the bullet struck the person
depicted as the shooter is in line with and
is in a similar position
to the healed gunshot wound which was sustained by the accused that
day.
[43]
There is nothing to gainsay the manner in which Captain Mdineka
reconstructed the scene.
It is the only possible scenario in
the circumstances of how the injury was sustained by the accused on
that day. The accused’s
evidence is to the effect that he
does not know how he sustained the injury and at what spot he was
standing at in the lounge area
of the house.
[44]
The accused’s evidence is full of inconsistences and
contradictions. It is confusing
as he also appeared to be.
He says a lot happened inside that house as intimated above.
But when asked to state a few
things that occurred there, he is
unable to mention even one. He virtually knows nothing about
what occurred in the house.
He does not know what his
assailants did after entering the house. He did not see them
push the main bedroom door.
He did not see them shooting
through the door. This is even though he claimed to have left
the house after sustaining the
injury. Ms Witbooi testified
that the attempt by the assailants to gain entry in the main bedroom
stopped after shots were
fired through the main bedroom window
towards the door which the deceased barricaded by using his body.
Having regard to
the evidence that the only shot that went through
from the window is the only one that struck the person in that room,
it is inevitable
not conclude that that person was the accused.
He is the only person who was injured in that house other that the
deceased
in the absence of any evidence to the contrary.
[45]
The front door which the accused and others, according to him, went
through to gain access to
the house is located almost a metre from
the bedroom window through which the shots were fired. The
accused says he went
out on realising that two of the assailants were
not with them. It was after he had been shot and the firing had
started.
Surprisingly enough he did not see the person who was
firing through the window. That is impossible in the
circumstances.
He was not accosted and was allowed to leave the
scene despite the fact that he was forcibly taken into the house.
[46]
The accused as alluded to said that when he left he walked between
the two houses and turned
behind the corner house or the pink house.
When asked about his blood spots in front of the pink house on the
gravel road
as dealt with in the evidence of Captain Swartbooi, he
was unable to answer how his blood got there. It meant that he
was
lying.
[47]
The accused even lied about the fact that he was pushed whilst
holding the security gate to a
point that he remained holding the
security gate while his left shoulder was against the wall with him
facing the right side of
the house. Photo 51 clearly
establishes that would have been impossible. If his shoulder
was against the wall, he certainly
would be facing the inside of the
house. Furthermore, considering that the gate protruded against
the wall it would have
been impossible for his left palm print to
have been in that position because essentially the frame of the
security gate would
have been right towards his back away from the
shoulder as he would be facing the inside of the house.
[48]
Ms Witbooi and Sergeant Peta testified that there is a church
building in that yard. It
is incorrect therefore that the house
may be a drug post as suggested by the accused. Sergeant
Rustler testified that the
house was not a drug post because as
police officers they know the drug posts in the area.
[49]
There are numerous other improbabilities in the evidence of the
accused which leave his evidence
to be less cogent. I need not
exhaust all of them for purposes of establishing that the evidence of
the accused is not reasonable
and probably true. With all that
has been dealt with above, his evidence stands to be rejected as
false. He is one
of the people who shot at the deceased and was
unfortunately injured by his co-perpetrator. He was a poor
witness whose credibility
left much to be desired. I
therefore find that based on the circumstances of this matter, the
State has established
the guilt of the accused beyond reasonable
doubt. As alluded to two firearms were used in the commission
of the offences.
It is only reasonable to infer that the
accused was in possession of the firearm and ammunition at the time.
[50]
The deceased, according to Ms Witbooi came back to the house
running. Upon entering he
closed and locked the front door and
shouted at her to call the police. They all got into the main
bedroom and the deceased
closed the door and attempted to lock it.
At the time the assailants had kicked opened the front door and were
inside the
house. They were struggling to open the bedroom door
when the deceased screamed at her to call the police and lie down on
the floor. She ignored him and went to the window, opened it
and called for help. It is at that stage that she saw
a person
approaching carrying a firearm. With all the shouting, surely
the accused must have realised that there were other
people in the
house other than the deceased. Despite that they continued to
fire several shots into that bedroom. It
was foreseeable that
those people could be killed in the process. Regardless, the
accused and his co-perpetrator carried
on with firing through the
closed door. Therefore, the accused did attempt to kill Ms
Witbooi and her seven year old child.
They were fortunate to
come out unchartered. I therefore find the accused guilty as
follows:
Count 1:
Housebreaking with the intent to murder.
Count 2:
Murder.
Count 3:
Attempted Murder.
Count 4:
Attempted Murder.
Count 5:
Unlawful possession of a firearm.
Count
6: Unlawful
possession of ammunition.
____________________
M MAKAULA
Judge of the High
Court
Appearances
:
Counsel
for the State:
Adv R Ahmed
Director
of Public Prosecutions
Port
Elizabeth
Legal
Representative for the Accused:
HMA Bence Attorneys
Mr H
Bence
Port
Elizabeth
Date
conviction delivered:
18 September 2020