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[2020] ZAGPPHC 30
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S v Slender (CC59/2019) [2020] ZAGPPHC 30 (11 February 2020)
(Inlexso
Innovative Legal Services) / mr
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
REPORTABLE:
NO.
OF
INTEREST TO OTHER JUDGES: NO
REVISED
CASE
NO
: CC59/2019
DATE
:
2020.01.31
In the matter between
THE STATE
and
JOHN SLENDER
Accused
J U D G M E N T
JOHNSON,
AJ
:
The accused is an adult male
and charged with 4 counts. In the indictment, it is alleged that he
unlawfully and intentionally killed
Andries Monareng by shooting him
with a firearm (Count 1), that he attempted to kill Wiseman Qwabe by
shooting him with a firearm
(count 2) , that he contravened section
120 (6) (A) of the Firearms control Act by pointing a firearm at the
persons mentioned
in the first two counts (count 3) and that he
contravened section 120 (3) (B) of the same act by discharging or
handling a firearm
in a manner likely to injure or endanger the
safety of the persons mentioned in counts 1 and 2 (Count 4).
He
is represented by adv. Khumalo and he pleaded not guilty to all 4
counts. Admissions in terms of section 220 of the CPA were
made
during the trial which are contained in EXHIBIT D. The relevant
admissions as far as findings in my judgement is concerned,
are the
following: he admitted that the deceased is the person mentioned in
the indictment, that he died on 23 August 2019 as a
result of a
gunshot wound to the head, that the Post mortem report that was done
on his body, is correctly reflected in EXHIBIT
E; that the
bullet that was found in the head of the deceased was sealed in an
official bag with serial number FSB1050336 which
was handed in at the
Ballistic Section of the Forensic Science Laboratory, as well as the
rifle (serial number 331043) that the
accused used on the day of the
incident; and the correctness of Colonel Botha’s statement
(EXHIBIT. G) in term of sections
212 (4)(a) and (8)(a) of the
Criminal Procedure Act 51/1977.
Pule
Ramashale testified that he was across the gate, outside the Tshwane
University of Technology on 23 August 2018, selling bunny
chows.
At
about 17:45 6 – 7 police vehicles entered the campus. The
students closed the gate and barricaded it. After a few minutes
the
police wanted to exit. He heard 2 gunshots from inside the campus,
and the students dispersed. One police officer took up a
position on
the left side of the gate, and the accused the right. Both were armed
with rifles. The accused faced the students and
fired a shot which
apparently ricocheted off a bus or container, because he saw sparks.
He was approximately 6 – 7 meters
from the accused. The
students ran. There were no students in his immediate vicinity. He
took a few steps, aimed at the students
down the road and fired
another shot. No-one else fired any shots.
Wiseman
Qwabe, a student at the university, was on his way there to study
during the incident, when students came running towards
him. Near the
entrance he heard a gunshot from inside the campus, and ran away. He
looked over his shoulder and saw a policeman
whom he will not be able
to recognize coming from the gate. He heard a gunshot and felt heat
on his right buttocks. The deceased
fell down in front of him. He
realized that he was shot and he received medical treatment. The shot
entered his right buttocks
and exited his front right thigh.
After
the incident on 3 September 2019, he assisted the police to
reconstruct the scene.
Lucky
Masoma is a constable in the SAPS stationed at Soshanguve. He was in
the company of the accused during the incident and fired
warning
shots on instructions of Capt. Rapoo. While he was removing rocks at
the gate, the accused gave him cover by firing further
shots.
Joseph
Rapoo is a Capt. In the SAPS stationed at Soshanguve. A rifle with
serial number 331043 was issued to the accused on the
day of the
incident. He went to the university where an election was held, where
he was informed that a presiding officer was assaulted.
They rescued
him where after the students got violent. He called for back-up and
the accused and his crew, as well as other police
vehicles, arrived.
When they wanted to leave the campus, the gate was barricaded. He
instructed the accused and Constable Masoma
to fire warning shots to
enable them to remove stones which barricaded the gate. The situation
was very volatile. They would have
been killed if no warning shots
were fired.
EXHIBIT
G which the correctness of was admitted, states that the bullet that
was found in the head of the deceased, (Sealed in bag
with no FSB
1950336), was fired from the rifle with serial no 331043, which was
issued to the accused on the day in question. (See
paragraphs 3.1,
3.2 and 6 of EXHIBIT. G).
Col
Botha, who authored EXHIBIT G, compiled a second report EXHIBIT. H,
wherein he reconstructed the scene with the assistance of
the
complainant mentioned in count 2, on 3 September 2018. According to
his reconstruction, the bullet hit the complainant in count
2 first,
and then the deceased as indicated on page 13 of EXHIBIT. H. The body
of the deceased after the shot, laid at an angle
of 90 degrees in
relation to the campus gate. A warning shot from inside the gate
would not have hit him. The bullet that he saw
in the head of the
deceased during the post mortem examination (EXHIBIT. H pages 5 and
6), which he attended on 24 August 2018,
was not a ricochet bullet as
there are no marks on it to indicate that.
After
an unsuccessful application in terms of section 174 of Act 51/1977,
the accused testified that he was under the command of
Capt. Rapoo on
the day of the incident. He was armed with a rifle. There was a riot
at the Tshwane University. When they wanted
to leave the campus, the
gate was barricaded and they were thrown with stones. Capt. Rapoo
instructed him and Const Masoma to fire
warning shots. He fired
warning shots into the soft ground to prevent harm. The students then
ran away. They opened the gate and
drove off. He never pointed a gun
at anyone and shot no-one. He only fired inside the gate in the
direction of a soft spot on the
ground towards the wall. Except for
the warning shots, he fired no other shots. He could not explain how
a bullet from his rifle
hit the deceased.
The
State does not seek a conviction on counts 3 and 4 are concerned.
As
far as counts 1 and 2 are concerned, it is common cause that there
was an uprising at The Tshwane University of Technology on
23 August
2018 during a Student Representative Council election when the
presiding officer was assaulted and abducted. The police
were
summoned to quell the violence. The accused, Const. Masoma and Const
Mathabatha who were in police uniform and in a marked
police vehicle,
was also summoned to the scene. It is further common cause that the
students closed and barricaded the exit gate
when the police wanted
to leave the campus with the injured presiding officer, and that they
also threw stones at the police. On
the instructions of Capt. Rapoo,
their commander, the accused and Masoma fired warning shots to scare
off the students to enable
them to remove the barricades and opened
the gate. It is also common cause that the deceased and the
complainant mentioned
in count 2 sustained gunshot wounds – the
deceased to his head and the complainant to his buttocks, and that
the deceased
died as a result of the bullet wound. A bullet was
retrieved from the head of the deceased and it was sent for ballistic
tests,
together with the two firearms of the accused and Masoma. The
only issue is whether the accused shot the deceased and the second
complainant or not, and if the court should find that he did, whether
the shooting was justified or not, and whether he had the
intention
to kill or not.
I
have carefully considered the evidence of the 1
st
SW Mr.
Ramashale. He is not a student, was not part of the student uprising,
and sold food from his shop opposite the campus gate
on Aubrey
Matlala Rd. He apparently did not know the deceased or the second SW
and had no interest in this matter. He is an independent
witness. I
observed him in the witness stand. He was self-assured and did not
contradict himself. It was suggested to him that
he had a motive to
tell lies because the students were his customers, which he denied.
This proposition was clearly mere speculation
and not based on any
facts or evidence at all. There is no doubt in my mind that he did
not have a motive to falsely implicate
the accused. His evidence was
clear and satisfactory in all material respects and I am satisfied
that he was a credible witness.
His
evidence that the accused held his rifle in a horizontal shooting
position and that he fired in the direction of the fleeing
students,
is corroborated by the complainant mentioned in count 2. Although he
could not identify the shooter, he testified that
the policeman with
the rifle pointed the rifle in his direction when he was shot. I am
also satisfied that Mr. Qwabe was a credible
witness. If he wanted to
give false evidence, he could have said that the accused was the
shooter, but he refrained from that.
Const.
Masoma testified that after the initial warning shots and while he
removed rocks from the entrance, the accused fired further
shots, but
he could not see in what direction he fired. This witness was as
deeply involved in quelling the violent behaviour of
the students as
the accused was, and they were colleagues. It is inconceivable that
he would have any motive to falsely implicate
the accused, and no
motive for him to want to do so, was put to him. His evidence in this
regard was furthermore not challenged
in cross-examination, and
points to the fact that the accused did fire further shots outside
the gate of the campus. This also
corroborates the evidence of the
first state witness.
The
most compelling factual evidence which cannot merely be argued away,
is the forensic finding. Colonel Botha is a forensic expert
and
clearly has no interest in the outcome of this matter. He clearly had
no motive to influence the outcome of this matter and
no motive for
him to want to do so, was put to him. His evidence, which traced the
bullet that was found in the head of the deceased
to the rifle that
was used by the accused on the day of the incident, was not
challenged and I have no doubt to accept it. His
evidence as to the
fact that it was not a ricochet bullet because it had no marks on it
to indicate such, is also clear and acceptable.
This points to the
fact that the bullet which he concluded hit the complainant mentioned
in count 2 first and then the deceased,
came from the second shot
that the 1
st
SW saw him fire. It could not be the first
shot because the first one ricochet from the container.
Prima
facie it seems therefore, that the accused did fire shots at the
fleeing students, of which one hit the complainant in count
2 which
injured him, and thereafter the deceased which killed him.
This
conclusion does not lead to an automatic conviction. The court also
has a duty to consider the evidence of the accused. If
what he says
is reasonable, possibly true, he is entitled to the benefit of the
doubt in which case he is entitled to an acquittal.
The
overwhelming evidence that the fired bullet came from his rifle, left
the accused with no answer. He merely said that he did
not fire the
shot and could give no explanation as to how a bullet from his rifle
ended up in the head of the deceased. His evidence
that he shot at
no-one, can therefore not reasonably possibly be true. From all
accounts the warning shots had scared the students
off and there was
no justification at that stage to fire at them. It is also impossible
that any bullet that he fired inside the
gate into a soft surface,
would have hit anyone down the road. They were at a 90 degrees angle
from the direction he shot in, inside
the gate from where the warning
shots were fired. I think a court can take judicial notice of the
fact that bullets don’t
travel around corners. The shot could
only have been fired from outside the gate, down the road in the
direction of the students,
like the first SW had testified.
His
evidence is therefore rejected where it conflicts with that of the
state. In the absence of anything to the contrary, the prime
facie
evidence becomes conclusive proof of the allegations against him.
The
firing of the shots at the students after they had retreated, was
unjustified as they posed no danger at that stage. The killing
of the
deceased and the injury of the complainant mentioned in count 2 was
unlawful.
Mr
Khumalo argued that the accused did not have any intention to kill
anyone. The court is not privy to what the accused thought
when he
discharged his rifle at the students.
As
far as his intention is concerned, the court is not satisfied that
state proved that the accused had the direct intention to
kill the
deceased. It was dark during the incident and the students had
retreated a distance away. The question is whether he had
intention
in the form of
dolus eventualis
. This form of intention
is present where an accused did not intend to kill, but foresaw the
possibility of death ensuing,
he was reckless as regard to the
consequence and nevertheless proceeded with his conduct. The
test for intention in the form
of
dolus eventualis
is a
subjective one. The question is therefore whether the accused
subjectively foresaw that death might ensue. It
is of course
impossible for a court to look into the mind of an accused person to
see whether he had subjective foresight or not.
The only way
that this can be determined, is by inferential reasoning. In
S
v Sigwahla
1967 (4) SA 566
(A) at 570 the court said as follows:
“
Subjective
foresight, like any other factual issue, may be proved by inference.
To constitute proof beyond reasonable doubt
the inference must be the
only one which can reasonably be drawn. It cannot be so drawn
if there is a reasonable possibility
that subjectively the accused
did not foresee, even if he ought reasonably to have done so, and
even if he probably did so.”
The
accused discharged his rifle twice in the direction of the retreating
students. When he fired warning shots into the ground
earlier, he did
so specifically with the aim not to cause harm. He was thus aware of
the lethal consequence of firearms. He is
a police officer and no
doubt trained in the consequence of firing a firearm in the direction
of people. The only inference is
that he foresaw that the shot that
he fired in the direction of the students, would kill or seriously
injure someone. He was reckless
as to the consequence and proceeded
to shoot. I am therefore satisfied that he had the intention in the
form of
dolus eventualis
to kill the deceased and the
complainant mentioned in count 2.
He
is found guilty on counts 1 and 2 as charged.
He
is acquitted on counts 3 and 4.
…………………………
..
JOHNSON,
AJ
ACTING
JUDGE OF THE HIGH COURT
DATE
:
2020 02 11