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South Africa: North Gauteng High Court, Pretoria
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2015
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[2015] ZAGPPHC 481
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Masuku v S (A772/2013) [2015] ZAGPPHC 481 (8 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE
NO. A772/2013
In
the matter between:
CALVIN
MASUKU
Appellant
and
THE
STATE
Respondent
JUDGEMENT
DE
VOS J:
[1] This is an appeal
against the appellant's conviction on a charge of murder (count 1)
and a charge of attempted murder (count
4). After conviction the
Magistrate who convicted the appellant granted leave to appeal
against the said convictions.
[2] Both convictions
followed after a shooting incident took place near Thokazane Tavern
on 29 December 2004. The incident happened
at night at approximately
22h00. I pause to mention that the appellant was also charged with
two other counts as set out in counts
2 and 3 respectively. The
incident relating to counts 2 and 3 happened at a different time and
place and is not related to counts
1 and 4. The acquittal on
counts 2 and 3 followed upon the court's finding that it
depended on mostly hearsay evidence
which therefore rendered it
inadmissible. I will return to this aspect at a later stage in
this judgement.
[3] The State called
several witnesses. The eye-witness on count 1, Bheki Innocent
Mtsweni, testified that at about 22h00
he was as Thokazane Tavern. He
observed the appellant in discussion with the deceased. The deceased
wanted to run away and the
appellant grabbed him by the trousers. He
then observed the appellant shooting the deceased with a firearm in
the stomach. Thereafter
the appellant ran away. He also testified
that there was sufficient light for him to make his observations.
During cross examination
it was put to the witness that the
appellant was at the scene of the crime but that he was not
responsible for shooting the deceased.
The witness denied the
appellant's version and stated that he saw only the appellant with a
firearm. However, he conceded that
some of the other people who
accompanied the appellant might also have had firearms in their
possession. He also denied that a
person with the name of Lazarus,
who was accompanied by Tebogo, shot the deceased. Sipho Bata
Mathubela also testified as to what
happened on the night of the 29th
December 2004. He testified that he was in the company of the
deceased. Later in the evening,
the appellant arrived at the scene
together with some friends of his. Another friend of the witness was
chased and shot at by the
appellant. The appellant's friends also
participated in chasing the deceased. Thereafter, the appellant
called the deceased, indicating
that he wanted to discuss something
with him. The witness departed from the scene. Shortly thereafter he
heard the shot being fired.
He personally did not see the appellant
shooting the deceased. The chain evidence is not in dispute and was
properly admitted by
the appellant. It is common cause that the
deceased died as the result of a stomach wound. That concluded the
evidence on count
1.
[4]
Sipho Morathadi Ntashe is the complainant on count 4. He
testified that on the night of the incident he was on his way
to his
girlfriend. He passed a group of people. The appellant was with them.
After he passed, the appellant ran towards him and
pointed a firearm
at him. The appellant started to search him. At that stage he was
close to the appellant and he was facing him.
The Appellant started
firing shots and he was hit. Before the incident the appellant was
well-known to him. He further testified
that there was sufficient
light and the visibility was good, to such an extent that he was able
to identify the appellant.
During
cross-examination it was put to the witness that the appellant denies
that he was present at the scene of the crime and that
he was in
Pretoria on the night of the incident. The witness denied this
allegation.
[5] Warrant-Officer
Solomon Moshine was also called by the State to testify. He is
attached to the SAPS. He visited the scene
of the crime in regard to
count 1. He received information regarding the appellant's
involvement. He investigated the matter but
was unable to retrieve
any firearm. During cross-examination it was put to the witness that
the appellant was at the scene but
that the appellant did not shoot
the deceased. It was also put to the witness that the appellant will
say that he saw Tebogo and
Pat pointing firearms at the deceased and
that one of them shot the deceased.
That
concluded the evidence for the State.
[6] The appellant also
testified. The appellant denied his involvement in either of the
offences. The appellant admitted that he
was present at the scene
when the deceased in count 1 was shot, but stated that he was just an
innocent bystander. In
relation to count 4 the appellant
stated that he did not know the complainant and that he was in
Pretoria on the day of the incident.
During cross-examination the
appellant contradicted himself as to when he actually departed for
Pretoria. The appellant also called
Musi Kabene as a defence witness.
She testified about the whereabouts of the appellant for a period of
three days during 2004 and
2005. Her evidence is of very little value
as she could not recall the exact dates when the appellant was with
her in Pretoria.
In any case her evidence does not help the appellant
at all in so far as it relates as to what happened on the 29th
December 2004,
as he admitted that he was at the scene when the
shooting occurred.
[7] The Magistrate found
that the identity of the appellant was proven beyond a reasonable
doubt and that there was sufficient light
and opportunity to identify
the appellant as the person who shot the deceased in count 1 and who
injured the complainant referred
to in count 4.
[8] Before us the
appellant's counsel argued that the issue to be determined is not
about the appellant's identity, but about who
killed the deceased.
According to the appellant's version he was at the scene and he was
accompanied by about seven other young
men. He cannot say who fired
the shot but two of them, Patrick and Tumi, had firearms. It is
further contended that Bheki Innocent
Mtsweni is a single witness and
is the only State witness who positively identified the appellant as
the person who fired the shot
that killed the deceased. It is also
contended that the Magistrate failed to analyse the version of the
appellant and that the
appellant's version is reasonably possibly
true. It is further contended that the Magistrate failed to apply the
cautionary rule
and that there exists no corroboration for the
eye-witness on count 1's version that the appellant was the one who
shot and killed
the deceased. The complainant on count 4, Sipho
Ntashe's evidence was also criticised and it was submitted that he
made a
contradictory statement to the police, which was not handed in
as an exhibit. It was argued that Ntashe told the police that he
was
shot by Tebogo and his friends. In court he testified that he was
shot by the appellant His evidence was also criticised on
the basis
that he testified that the appellant searched him by using the barrel
of the firearm, and pushed it against him. It is
contended that this
is improbable and should be rejected as false. He was further
criticised in that he could not explain what
clothes the appellant
was wearing when he was attacked. The State, on the other hand,
supports the conviction on both counts. It
was pointed out that nor
the eye-witness on count 1 nor the complainant on count 4 had a
reason to lie and that the objective facts
support the conclusion
that the appellant was the assailant, that he was armed with a
firearm and shot both the deceased and the
complainant on count 4.
There was also no reason for both these witnesses to falsely
implicate the appellant. The court further
found that Bheki Mtsweni
had sufficient opportunity to identify the appellant and that he was
a credible witness with no motive
to falsely implicate the appellant.
The court also found that Sipho Ntashe, the complainant on count 4,
knew the appellant "very
well for a long time", and that
due to the prevailing light conditions, he had sufficient opportunity
to identify the appellant
as the assailant. The Magistrate further
concluded that the tendered evidence shows that the appellant was
identified as the perpetrator.
The Magistrate also evaluated the
evidence of the appellant and concluded that the evidence of the
defence witness did not assist
the appellant in any way, and that the
version of the appellant cannot be reasonably possibly true. Having
regard to the totality
of the evidence, the Magistrate duly evaluated
the evidence before him and accordingly the appellant was convicted.
[9] Having regard to the
totality of the evidence I cannot find that the Magistrate
misdirected himself.
All the relevant
facts were considered before judgement was
pronounced.
- 6 -
According to the
appellant's own version he was present at the scene when the shooting
took place. I am further satisfied that there
is sufficient
corroboration between the evidence of the State witnesses to prove
that the appellant was the aggressor who shot
both the deceased and
the complainant on count 4. The Magistrate correctly concluded that
the appellant was identified as the perpetrator
who committed the two
offences he was convicted of. Consequently, the appeal against the
conviction on both counts ought to be
dismissed.
[10]
I therefore make the following order:
a)
The convictions on both counts 1 and 4 are confirmed and the appeal
the said convictions
is dismissed.
__________________
DE
VOS J
JUDGE OF THE GAUTENG
DIVISION OF THE HIGH
COURT
I
agree.
______________________
HERTENBERGER-BRACK AJ
ACTING JUDGE OF THE
GAUTENG
DIVISION OF THE HIGH
COURT
It
is so ordered.