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[2016] ZAFSHC 62
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Ramohapi and Another v S (A115/2015) [2016] ZAFSHC 62 (31 March 2016)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : A115/2015
In
the matter between:-
MALEFETSANE
PAULUS RAMOHAPI
First
Appellant
KHOTSO
ELIAS KHEU
Second
Appellant
and
THE
STATE
Respondent
CORAM:
MOLOI,
J et CHESIWE, AJ
HEARD
ON:
15
FEBRUARY 2016
DELIVERED
ON:
31
MARCH 2016
MOLOI,
J
[1]
In this matter the appellants were given leave to appeal their
convictions on a charge of murder and a sentence of fourteen
(14)
years imprisonment of which six (6) years imprisonment was suspended
conditionally for five (5) years by this court on petition.
The
appellants and two others were charged in the regional court. The
appellants and their co-accused were all members of the South
African
Police Service.
[2]
The evidence is that on 30 May 2009 the deceased, one Booijie Manase
Tohlane was sought by the police on a charge of domestic
violence.
The police were called by the deceased’s wife and directed to
her home in E-section, Botshabelo. When the policemen
arrived at the
said home, the deceased was aggressive and attacked the two policemen
with a stick and also set his dog upon them.
The policemen, in
self-defence, deprived the deceased of the stick and shot the dog
dead. The deceased got into his motor vehicle
and drove away. The two
policemen pursued him in their vehicle and called for a backup from
other police and a high-speed chase
took place towards a certain
house in H-section Botshabelo.
[3]
When the appellant and his companion arrived at H-section the
deceased was still aggressive and the appellants and other policemen
fired warning shots to the ground in an endeavour to quell the
deceased down. It was later found that the deceased was fatally
shot
and had sustained approximately eight (8) gunshot wounds though the
gunshot wound to the thorax was found to have been the
one that
caused his death. At the scene at H-section ten spent cartridges were
found. It was determined through ballistic examination
that five of
the cartridges were fired from the fire-arms belonging to each
accused. At the post-mortem examination one bullet
head was found
lodged in the deceased’s body but it could not be determined
from which fire-arm it was discharged.
[4]
Evidence shows that before and after the appellants’ arrived at
the scene, many policemen at the scene fired shots. There
is no
direct evidence of which of the policemen fired a shot or shots at
the deceased. There is no evidence either that the appellants
had
common purpose to shoot and kill the deceased. This leaves the case
to be decided on circumstantial evidence:
R
v Blom
1939 AD 188.
In order that an inference of intention to kill by the
appellants to be drawn it is necessary that there be evidence to that
effect.
I have pointed out above that the mere fact that the ten
cartridges found at the scene were discharged from the appellants’
firearms is not sufficient to prove common purpose. The evidence, on
the contrary, is that several other policemen fired shots
at the
scene and their cartridges were not analysed, suggests inadequate or
poor investigation of the matter. Secondly is the inference
sought to
be drawn the only reasonable inference possible in the set of facts.
The answer is obviously no in the absence of the
linkage of the
cartridges found to the bullet head that caused the deceased’s
death.
[5]
It was contended on behalf of the respondent that the mere fact that
the cartridges found at the scene were fired from the appellants’
firearms the only inference to be drawn was that the appellants fired
the shots that killed the deceased. This logic evades me
as
cartridges cannot cause death but bullets heads can. It is the bullet
head that must be linked to the firearm to can justify
such as
inference especially in the circumstances where so many policemen
fired shots. Mr Monyamani who represented the first appellant
was
correct in equating the facts of this case with the facts of
Thembani
Bamba v The State
(20089/14)
[2014] ZASCA 219
(11 December 2014)
where Mocumie, AJA expressed herself as follows:
“
Applying
the test to the facts of this case, in the absence of ballistic
evidence linking the appellants’ firearm to the bullet
head and
fired cartridge allegedly found at the scene, in substance, the
inference the trial court sought to draw was not the only
inference
to be drawn from the proven facts.”
[6]
In the light of the finding I make in this matter the need to deal
with the issue of sentence falls away.
[7]
The following order issues:
The
appeal against the convictions succeed. Both the appellants are
acquitted.
______________
K.J. MOLOI, J
I
concur
_______________
S.
CHESIWE, A.J
On behalf of the first
appellant: Mr B.A Monyamani
c/o
Mphafi Khang Inc
BLOEMFONTEIN
On behalf of the second
appellant: Adv P.W. Nel
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. L. Zweni
Instructed
by:
The
DPP
BLOEMFONTEIN