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2016
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[2016] ZAGPPHC 106
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Mochadibane v S (A228/2015) [2016] ZAGPPHC 106 (2 March 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
REPUBLIC OF SOUTH
AFRICA
Case Number: A228/2015
DATE: 2 MARCH 2016
In the matter between:
NTSOEU OSIA SIMON
MOCHADIBANE
...........................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J
[1] The appellant was found guilty of
murder and attempted murder in the Magistrates court for the district
of Emfuleni, held at
Sebokeng. In respect of the murder charge, the
appellant received ten years imprisonment and in respect of the
attempted murder
charge, five years imprisonment.
[2] The appeal is only against
conviction.
FACTS
[3] On 16 March 2007, the appellant, a
police officer, attended at a certain shebeen. Whilst at the shebeen,
the appellant received
information that the deceased was in the
shebeen and was in possession of an unlicensed firearm. The appellant
accosted the deceased
and in the process the deceased managed to fire
a shot, which shot hit the appellant in his left shoulder.
[4] The appellant was admitted to
hospital and released on the 19th of March 2007. Late in the evening
on 19 March 2007, the appellant
received information about the
deceased’s whereabouts. The appellant proceeded to the house
where the deceased allegedly
was and shot both the deceased and the
complainant in the attempted murder charge. The appellant in his plea
explanation relied
on self-defence. The court a quo rejected the
appellant’s defence and found him guilty as charged.
GROUNDS OF APPEAL
[5] In his heads of argument and during
argument in court, Mr Strydom relied on the following grounds of
appeal:
(i) the contradictions and
improbabilities contained in the evidence of the state witnesses is
of such a nature that the evidence
should be rejected;
(i) the court a quo committed an
irregularity in refusing the appellant’s application in terms
of section 174 of the Criminal
Procedure Act 51 of 1977;
(ii) the appellant gave a reasonable
explanation for his conduct, which explanation should have been
accepted by the court a quo.
Section 174 application
[1] The application was brought at the
close of the State case on the basis that the evidence presented by
the state was not sufficient
for a reasonable court to convict the
accused. The argument was mainly based on certain contradictions in
the evidence of the state
witnesses. The court a quo considered the
application and in its judgment it stated Inter alia the following:
“Issues of credibility of state
witnesses are normally considered at the end of the trial and not at
the stage of the application
for 174. in order to succeed with an
application for a discharge on the ground that the state witnesses
lack credibility; it must
be dear that no reliance can be placed upon
the evidence of the state witnesses at all. ”
[2] Applying the aforesaid test, the
court a quo was of the opinion that the state made out a prima facie
case and the application
was refused. I agree with the court a quo
and am of the view that the court did not misdirect itself or erred
in refusing the application.
In the result, this ground of appeal
cannot succeed.
Evidence by state witnesses and the
appellant
[3] In the court a quo’s
judgment, the evidence of the state witnesses and that of the
appellant was comprehensively discussed
and analysed.
[4] The difficulty with the appellant’s
version is the fact that he approached the deceased’s place
with his firearm
cocked and ready to shoot. The appellant foresaw
that the deceased would be armed, but did not wait for back up before
he proceeded
to fire several shots into the house the deceased was
in. It is important to note that, although the appellant alleges that
the
deceased’s firearm was cocked and he was advancing in the
direction of the appellant, the deceased did not succeed in firing
a
single shot.
[5] The court a quo correctly found
that there was no unlawful eminent attack on the appellant or his
life when he fired the shots
and that his actions were rather
retaliatory than defensive.
[12] In the premises, I am of the view
that the appellant’s appeal has no merit and should be
dismissed.
I propose the following order:
The appeal against conviction is
dismissed.
N JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA J3AUTENG DIVISION, PRETORIA
I agree.
VRNS NKOSI
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
It is so ordered.
Appearances:
Counsel for the Appellant Advocate
Strydom
Instructed by B H Attorneys
Counsel for the state Advocate
Mashuga
Instructed by : State Attorney