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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 487
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Ntuli v S (A63/12) [2014] ZAGPPHC 487 (3 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO: A63/12
DATE:
3 FEBRUARY 2014
NOT
REPORTABLE
In the matter
between:
BONGANI DESMOND
NTULI
.................................................................................................
APPELLANT
VS
THE
STATE
.............................................................................................................................
RESPONDENT
JUDGMENT
SWARTZ AJ
This is an appeal
against the conviction and sentence imposed upon the appeLLant by the
Mdutjana Regional Court.
The Appellant faced
charges of attempted murder, two counts of robbery with aggravating
circumstances and rape. He was convicted
by the trial Court and
sentenced to serve a 20 year prison sentence.
On
appeal the Appellant
challenges the reliability of the Respondent’s witnesses who
identified him on the charges of rape and robbery. On the charge
of
attempted murder, he alleges that he acted in self-defense.
In respect of
Count 11:
Dealing with the
attempted murder charge, the evidence of the appellant was that on
the evening of 11 November 2005 he was at home.
The complainant,
Police Inspector Sepato, dressed in civilian clothing, arrived at his
place. He was accompanied by Captain Nkoko.
They arrived in an
unmarked police vehicle. They did not introduce themselves as police
officers. Inspector Sepato kicked open
the door to his house and
fired a shot inside the house. He did not introduce himself as a
police officer prior to firing the shot.
The appellant was
armed at the time. He felt that his life was threatened and responded
by shooting at Sepato. He fired only one
shot. Only after shooting at
Sepato did Sepato introduce himself as a police officer. Had he known
Sepato and Nkoko were police
officers, because of an introduction, he
would not have shot at Sepato. He had dealings with Captain Nkoko
before the night of
this incident, who confirmed that the appellant
would not shoot at him. Five rounds of ammunition were found in the
appellant’s
gun after his arrest. Had he intended shooting at
the police in an attempt to escape arrest, he could have fired more
shots in
order to avoid arrest.
According to Sepato,
upon arriving at the appellant’s house he saw him through a
window. He introduced himself as a police
officer and called at the
Appellant three times to come out of the house before he proceeded to
kick the door and retreat.
When the appellant
did not respond to being called, Sepato noticed him through a gap in
the door. He saw the appellant holding a
firearm aiming and taking up
a shooting position. A shot was fired and he was hit. He had a
firearm in his right hand which he
transferred to his left hand and
the appellant was warned to surrender or take the risk of being
killed. By then he had already
fired one shot in the house.
According to Captain
Nkoko, Sepato kicked the door and before the door could be opened,
the appellant fired a shot that hit Sepato.
Thereafter Sepato took
cover. Sepato fired one shot through the door. Sepato fired a shot
after the appellant had shot at him.
Only thereafter the appellant
surrendered and was arrested.
Counsel
appearing
on behalf of the Appellant submitted that the attack by Sepato was
unlawful and exceeded the bounds of lawfulness and
if the appellant
did not act in self-defense then at least the court must find that he
acted in putative self-defense.
The contradictions
between the evidence of the two police witnesses are immaterial. It
is not in dispute that the two police officers
arrived at the
appellant’s residence in order to arrest him. They introduced
themselves by calling at him to surrender. Inspector
Sepato kicked
the door open and retreated to take cover when he was shot.
The appellant does
not dispute that he fired a shot but claims it was in self-defense.
Despite being informed that they were police
officers, the appellant
fired a shot at them. The appellant advanced no reason for thinking
that some people were coming to attack
him. There is no reason to
suggest that the trial court erred when it held that the Appellant
shot at the police in order to repel
arrest. When he realized that
his objective would not be achieved he surrendered. The appellant
knew that Sepato and Nkcko were
police officers wanting to arrest
him. He was armed and dangerous and he shot at the police in an
attempt to avoid arrest. He was
not acting in self-defense of an
unlawful attack on him.
The version of the
Appellant on count 11 of attempted murder is not reasonably possible
true and the appeal against the conviction
dismissed.
In
respect of count 4,
the
robbery of Zanele Mahlangu: The complainant and a friend were seated
inside a vehicle when the Appellant knocked against the
window of the
vehicle and he was ordered, at gunpoint, to step out of the vehicle.
The incident
occurred at about 19h00. The complainant was seated inside his
vehicle with a friend, John Mashiane. They were parked
outside on the
street. A kitchen light projected sufficient light to enable the
complainant to identify him. There was no evidence
of how far the
kitchen light was in relation to where the incident occurred, how
good the lighting was and what type of light it
was.
When Mahlangu saw
the appellant for the first time he was already next to his closed
window knocking at it with a gun. The appellant
was accompanied by
two assailants and it was submitted that they had distracted his
attention. The complainant and his friend were
ordered out of the car
and the complainant was ordered to lie on his stomach. This limited
his view of the appellant. The entire
incident lasted about 6-7
minutes. He could not give a description of the appellant to the
police. Mahlangu was shocked, scared
and feared for his life. Because
of his state of mind he could not properly focus on the identity of
the appellant.
Apart from the
evidence of the lighting projected from the house, there wg.s
evidence of a bakkie which approached them from the
front while the
appellant tried to open the rear door. This light further illuminated
the area around which they were parked.
The appellant denies
having committed the offence and offered an alibi. The complainant
who was cross-examined by the appellant
was adamant on the identity
of the appellant. The observation of the complainant was trustworthy.
That he had been robbed of his
vehicle at gun point was not placed in
dispute. The conviction on count 4 was correct. The appellant was
correctly identified and
there is no reason to interfere with the
Magistrate’s findings.
In respect of
counts 6 and 7:
It appears that
shortly after committing the robbery, on the very evening, at 20h45,
the complainant, E[...] T[...], was with her
fiance in a car. They
stopped at the gate with the intention of opening it and entering a
yard. Suddenly a white Jetta stopped
behind them, two people got out
of the car and wrestled with her boyfriend. She was forced into a
car. The car droye off, followed
by the Jetta.
Along the way they stopped at various places. Eventually, when
the
other occupants of the car got out of the vehicle to buy beers, she
was alone in the vehicle. He turned towards her where she
was seated
on the back seat. He attempted to kiss her and he raped her on the
back seat of the vehicle. She was ordered out of
the car and the next
day she reported the incident to the police, where after she treated
at Philedelphia Hospital. Some of her
jewellery was taken as well and
her cellular phone.
It was not disputed
that she was raped and robbed of her belongings. The appellant denied
that it was him and offered an alibi.
He was at his parental home in
Komatipoort after he had escaped from custody.
Both the complainant
and her fiancé, J[...] M[...], identified the appellant at an
identity parade held at a police station.
The appellant
contends that his identification by the complainant is unreliable.
She was only able to identify him after attending
some counselling
sessions. It would not have been easy for the witness to identify him
because there was no light in the car, she
could not identify the
appellant and she must have been coached to identify him at the
identification parade. The identity parade
was irregular.
The trial court
found that the complainant E[...] T[...] and T[...] N[...] were
credible witnesses. We are equally satisfied that
the complainant was
in the company of the Appellant for a considerable time and she had
enough opportunity to observe him in order
to make a positive
identification.
Despite the
submission that the witnesses were couched into identifying the
appellant at the identity parade, nothing on record
supports this
inference. There is nothing to support the allegation that the
identity parade was irregular.
The appellant was
correctly identified at the identity parade and the evidence of the
complainant was honest, credible and reliable.
There is no reason to
interfere with the trial court’s findings.
The state concedes
that there are some contradictions between the evidence of all these
witnesses in the various counts on which
they testified. The
contradictions are immaterial and do not diminish the credibility of
the witnesses with regards to the identification
of the appellant.
The
appeal on conviction on counts 4,6,7 and I are dismissed.
Regarding the
sentence imposed by the trial court in respect of each of the
convictions, the sentences imposed, having regard to
the seriousness
thereof are not disturbingly inappropriate, irregular or misdirected.
All the relevant circumstances were considered
and the trial court
ordered correctly that some of the sentences imposed ran
concurrently.
The appeal against
sentence is dismissed.
E SWARTZ
ACTING JUDGE OF
THE HIGH COURT
I agree
A A LOUW
JUDGE OF THE HIGH
COURT