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[2011] ZAKZPHC 37
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Loubser v S (AR 685/10) [2011] ZAKZPHC 37 (30 August 2011)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 685/10
In the matter between
:
ANDREW DIRK LOUBSER
....................................................
APPELLANT
and
THE STATE
….......................................................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 30 August 2011
KRUGER et LOPES J J
[1] The appellant was
convicted on a charge of murder and two counts of attempted murder.
He was sentenced to ten years’ imprisonment
in respect of the
murder conviction and to five years’ imprisonment on each count
of attempted murder. The sentences imposed
in respect of the
attempted murder convictions were ordered to run concurrently. The
appellant was accordingly sentenced to an
effective term of fifteen
years’ imprisonment. Leave to appeal having been refused by the
trial Court, the appellant now
appeals against both conviction and
sentence after successfully petitioning the High Court.
[2] The facts, which are
largely common cause, can be briefly
outlined as follows:
The appellant was
employed at the Sneezewood Forest as a security officer. During the
morning of 10 July 2005 the deceased and the
two complainants were
illegally poaching in the Sneezewood Forest. The deceased and the two
complainants were hunting and were
armed with two shotguns. They were
accompanied by a pack of twenty-two hunting dogs. The appellant was
alerted to their presence
and as the deceased and the complainants
were exiting the forest and walking towards their vehicle the
appellant confronted them.
During the confrontation the appellant ,
who was armed with a shotgun, fired three shots at the deceased and
the two complainants.
The police later arrived at the scene and it
was discovered that the deceased as well as the two complainants had
been wounded.
The deceased later died as a result of the injuries
sustained.
[3] The appellant’s
defence was that upon confronting the deceased and the two
complainants they set their hunting dogs on
him. Whilst he was
defending himself against these hunting dogs, by firing shots at
them, he heard a shot being fired and upon
looking up saw two of the
complainants pointing shotguns at him. He thereafter fired two shots
in the direction of the deceased
and one of the complainants.
Thereafter he returned his attention to the dogs. He later saw one of
the complainants once again
raising a shotgun in his direction and he
fired a third shot in the direction of this complainant.
[4] The State disputed
the appellant’s evidence and based its case on the fact that
the dogs were not set upon the appellant
and the complainants did not
fire at or raised their firearms and pointed them at the appellant.
It is the State’s contention
that the appellant shot at the
complainants for no apparent reason. The Court
a quo
, in
convicting the appellant, accepted the evidence of the two
complainants as well as the two independent witnesses. The Court
a
quo
accepted that the appellant was not shot at nor was any
firearm pointed in his direction, nor was he attacked by the hunting
dogs
and that he shot the complainants for no apparent reason.
[5] In accepting the
evidence of the complainants and the two independent witnesses, the
Court
a quo
found that there were contradictions in their
evidence. However after examining each of these contradictions
concluded that they
were not material and accordingly the State
witnesses’ evidence could not be discredited. Mr. Labuschagne
for the appellant
has argued that the totality of the evidence and
the contradictions, render the State’s evidence unreliable.
[6] We turn now to
consider the evidence of the State witnesses. Mr. Makhaya Didi, the
complainant in Count 3, testified that as
they approached the
homestead where they had parked their van they met the appellant. He
immediately commenced shooting at them
and fired three shots. The
first shot struck the second complainant, Mr. Bhekwa, the second shot
struck the deceased, Mr. Nombambo,
and the third shot struck him. He
confirmed that at the time he was in possession of a shotgun. After
his two companions had been
shot he raised his one hand as a sign of
submission towards the appellant but was nonetheless shot. He
confirmed that the deceased
was armed with a shotgun whilst the
second complainant was unarmed. As a result of all three of them
being shot they all fell to
the ground and in particular the second
complainant was lying on the ground immediately in front of him. The
deceased was lying
on the ground behind him. As a result of the
shooting he sustained injuries on the side of his nose and on his
chest. He confirmed
that he had two cartridges in the firearm and
three in his pocket.
[7] Under
cross-examination however a totally different picture emerged. He was
confronted with the statement which he made to the
police two days
after the incident. In his statement he stated that the appellant
ordered him and his companions to sit down, using
the words
“hlala
phanzi”
shortly before any shots were fired. In
his evidence in chief and under cross-examination he initially denied
that anything was
said and thereafter stated that he could not recall
hearing the said words
“hlala phanzi”.
In
his statement he further mentioned that after the deceased and the
second complainant had been shot, he raised his hands surrendering
and pleading for mercy. This was in contradiction with his evidence
in chief wherein he testified that he raised only one hand
as he held
his firearm in the other hand. Finally, in his statement he stated
that he sustained injuries on his thighs, chest,
stomach and face.
This was in contradiction to his evidence in chief when he testified
that he only sustained injuries on his chest
and on his nose. A
further contradiction in his evidence emerged with regard to the
number of shotgun cartridges in his possession.
In his statement to
the police he stated that the shotgun was loaded with five cartridges
and that he had three in his possession.
He testified that he did not
fire any shots that day. He could provide no reason for the
discrepancies in his evidence.
[8] The complainant in
Count 2, Mr. Bhekwa, confirmed that he was in the company of the
deceased and the complainant in Count 3.
He also confirmed the
confrontation with the appellant, but contradicted the evidence of
Mr. Didi in that he heard the appellant
instructing them to
“hlala
phanzi”
. He however testified that the first
person to be shot was the deceased. He immediately turned and ran
away. As he was running
away, the appellant shot him. This was also
in contradiction to the evidence of Mr. Didi who testified that it
was Mr. Bhekwa who
was shot first and then the deceased. Didi also
did not mention the fact that Mr. Bhekwa ran away but testified that
he fell down
and was lying in front of him. He also contradicted his
police statement in that he did not mention to the police that he was
shot
whilst running away. He also testified that neither he nor his
companions set the dogs upon the appellant, nor did they shoot at
him
nor did they raise their firearms and point them at the appellant.
[9] Further
contradictions emerged when the two so-called independent witnesses
testified. Mrs. Priscilla Biyazi contradicted the
evidence of Mr.
Didi in that she heard the appellant ordering the men to sit down
prior to shooting at them. She also contradicted
his evidence by
testifying that it was the deceased who was shot first and thereafter
the complainant in Count 2. She further contradicted
Mr. Didi’s
evidence by stating that he had raised both his hands in the air and
was apologising at the time he was shot.
Interestingly though in her
evidence in chief she only mentioned that two shots were fired prior
to the police arriving at the
scene. Under cross-examination for the
first time she mentioned that the third shot was fired at the
complainant in Count 3. She
also contradicted the evidence of Mr.
Didi and Mr. Bhekwa by testifying that none of the complainants or
the deceased were armed.
She also did not see any of the complainants
or the deceased pointing a firearm or shooting at the appellant.
[10] Mrs. Constance
Biyazi who was in the company of Priscilla Biyazi contradicted the
evidence of both Mr. Bhekwa and Priscilla
Biyazi by testifying that
the appellant did not say anything to the complainants prior to
shooting them. She also contradicted
the evidence of Mr. Didi by
testifying that he had raised both his hands. Notwithstanding the
fact that she was closer to the deceased
and complainants at the
time, she did not see them in possession of any firearms. However,
she testified that the appellant was
in possession of a large firearm
and a
“side firearm”
. Finally she
contradicted the evidence of Mr. Bhekwa that he ran away at the time
of the shooting.
[11] As all these
contradictions centred around the incidents which occurred
immediately prior, during and after the shooting, we
do not accept
the Court
a quo’s
reasoning
that the contradictions were immaterial. It is noted that the Court
a
quo
disregarded the contradictions on the
basis that the shooting was common cause and that the deceased and
complainants were shot
at whilst having done nothing to the
appellant. The crucial contradiction in our opinion is the fact that
the two independent witnesses
testified that the deceased and
complainants were unarmed. This was in direct contradiction of the
evidence of the two complainants
who testified that the deceased and
the complainant in Count 3 were armed with shotguns.
[12] Perhaps the most
unreliable aspect of the State’s evidence was the fact that all
the State witnesses denied that the
dogs were set upon the appellant
and that he fired shots at the dogs in order to ward them off. All
the State witnesses confirmed
that only three shots were fired, all
by the appellant, towards the deceased and the two complainants. The
Court
a quo
found, as
a fact, that none of the dogs attacked the appellant and also that
there was no cross-fire between the deceased and the
complainants on
the one hand and the appellant on the other. The Court
a
quo
failed to consider the undisputed
evidence that more than three shotgun shells were found at the scene.
Having accepted that only
three shots were fired, the Court
a
quo
failed to consider where the other
shotgun shells emanated from. Two scenarios arise as a result
thereof:
that the appellant was
attacked by the dogs and that he fired shots towards the dogs in
order to ward them off; or
that the deceased and/or
complainants fired shots at the appellant.
Neither of these
scenarios is in accordance with the State’s evidence against
the appellant or the finding of the Court
a quo.
This, in our
opinion, renders the State’s evidence unreliable and the
appellant ought to be given the benefit of the doubt.
[13] A further
consideration relates to the existence or non-existence of the
ballistic evidence. It is unfortunate that the ballistic
evidence in
this matter was dealt with in a somewhat haphazard and inadequate
way. The basic allegations of the State were that
the appellant
discharged a shotgun at the deceased and two complainants hitting all
three of them. The defence version was that
the deceased and the two
complainants fired at, or attempted to fire at the appellant, who
returned the fire. The weapons used
by the appellant, the deceased
and the two complainants were alleged to have been shotguns.
[14] In addition to the
aforegoing it is clear that the appellant himself discharged at least
one shot from a
“side-arm”
and the
witness
van der Kamp fired a
number of rounds from an R5 rifle.
[15] The problem with the
ballistic evidence is that no proper attempt was made to deal with
that evidence at the trial in such
a way as would have established :-
which of the numerous
firearms recovered at the scene were fired; and
an accurate count of the
number of cartridges recovered at the scene; and
the identification of
the firearms which discharged the projectiles which caused the death
of the deceased and the injuries to
the complainants.
[16] The above confusion
is demonstrated by a perusal of the record.
The following appeared :
at page 136 of the
record, the witness Mr Didi, the complainant on count 2, is
cross-examined and it is put to him by defence
counsel:
“
I was
provided with a ballistics reports which tested those guns and [the
report records] six 12 gauge shotgun calibre fired shot
shells, test
marked …[inaudible]’, I don’t know what it means
but what is important, it says there six shells
originating from
three 12 gauge calibre shotguns with the following serial numbers
,
and
then it quotes the serial numbers which means that that gun of yours
was fired, because they picked up one of the shells which
came –
well, at least one of the shells which came out of your shotgun.
COURT
Sorry before I allow that
question to be interpreted, does that report say that his firearm,
particular firearm did fire some shots?
MR KRUGER
Yes. There were six
shells fired by three shotguns and also indicating the serial numbers
of the guns”
.
[17] Unfortunately the
ballistics report referred to by Mr Kruger in cross-examination does
not form any part of the record. There
is also a reference in the
petition application to the presence of a further ballistics report.
That was also not adduced in evidence
at the trial. As neither of the
ballistic reports were contained in the appeal record, we have not
been able to have recourse to
them. One is then left with
considerable confusion with regard to the firearms used by the
various parties, whether or not they
were fired at the scene, and
which ones caused the injuries attributed to the deceased and
complainants.
[18] One of the problems
which arises with an analysis of the evidence is that two post-mortem
examinations were conducted on the
body of the deceased. One was
carried out by Dr Y S Bhana the district surgeon of Umzimkulu. He
concluded that the cause of death
of the deceased was a bullet wound
of the abdomen. It appears, however, from his evidence that his
examination of the deceased
was somewhat cursory, to the extent that
he was even unsure which vital organs of the deceased were damaged by
the bullet. He testified
that it was difficult to trace the bullet
and blamed this in part on the lack of facilities and equipment
available to him.
[19] It is clear from the
evidence of Sergeant Ngubo of the Gowanlea Police Station that Dr
Bhana agreed with Inspector Jwajwa that
the body of the deceased be
transferred to Umtata for a continuation of the post-mortem
examination which had been started by Dr
Bhana. Sergeant Ngubo
maintains that he attended the second post-mortem examination at
Umtata. His evidence records the following
:-
“
We did a
post-mortem on the body. I think it took us about two hours, and at
the end we found the bullets and the doctor said that
that bullet had
caused his death. The bullet which was in the body …
[inaudible].
And did you personally see the bullet?
… I saw it.
Yes? Anything else? … We took
that bullet … [inaudible]”.
[20] The recordal of the
report on the medico-legal post-mortem examination conducted on the
body of the deceased appears on four
pages from page 27. It refers in
no less that four places to
‘bullet wound’
.
This is the report compiled by Dr Y S Bhana. In a certificate of
post-mortem examination report signed by a district surgeon who
was
not Dr Bhana (presumably recording the continuation of the
post-mortem examination which was conducted at Umtata and which
document is also signed by Sergeant Ngubo), it refers to the cause of
death of the deceased as being “
bullet wound of the
abdomen”.
[21] It is unfortunate
that there is no indication on the record which would enable one to
identify the type of projectile which
is described as a “
bullet”
in the post-mortem examination report. This is of
importance because the evidence of the witnesses was that the
projectiles fired
from the shotguns were in the nature of small
ball-bearings. This is to some extent confirmed by the medico-legal
examination report
at page 33 of the record which indicates that the
witness Mr Didi sustained what is referred to in that report as
“pellet bruises”
.
[22] In addition, it is
clear that a number of shells were recovered from the scene in a most
unsatisfactory and haphazard manner.
Sergeant Ngubo in a statement
compiled by him records that he searched the scene of the crime but
was unable to find any cartridges.
He says that he was given two
empty cartridges by Inspector Mafeke which he was told had been
received from a witness Vusi Freeman
Biyaze. Those were an R5
cartridge and an empty shell of a shotgun. He also records that five
other empty shells of shotguns were
received from Mzamelais Biyaze
who told the police that he had picked up the cartridges from the
scene and that there were three
red shells and two green shells. In
addition his statement records at paragraph 8:
“
Two short
(sic
)
guns and live round of short (
sic
)
gun about fifteen (15) of them also handed to me by Captain Gcaba
which he said he recovered them from Captain van der Kamp”.
[23] The importance of
ballistic evidence is a trial such as this one cannot be
underestimated. The chaotic way in which the evidence
was collected
by the police and dealt with by the prosecutor, the learned
magistrate and defence counsel at the trial has been
of little
assistance in enabling one to determine the guilt or otherwise of the
appellant.
[24] Given the
unsatisfactory nature of the ballistic evidence, it is unclear from
the record which of the numerous firearms at
the scene were in fact
discharged at the scene and which one caused the death of the
deceased. It is insufficient to merely surmise
that because shots
were fired by the appellant in the direction of the deceased and the
complainants, that the firearm he used
was the one from which the
projectile which caused the death of the deceased was discharged.
This is because of the presence of
other firearms which were
discharged in what would appear to have been a rather haphazard
fashion at the scene of the crime, and
in close proximity to the
deceased.
[25] In all the
circumstances the ballistic evidence alone does not in any way assist
in reaching a conclusion as to the guilt of
the appellant.
[26] In conclusion, the
following order is made:
The appeal is upheld and
the convictions and
sentences are set aside.
_____________
KRUGER J
I agree
_____________
LOPES J
Appearances /
Appearances
For the Appellant
:
Mr. F. J. Labuschagne
Instructed by :
Wentzel Hoffmann
P O Box 4341
Montanapark 0159
For the Respondent :
Mr. R. Du Preez
Instructed by :
Director of Public Prosecutions
Pietermaritzburg
Date of Hearing :
18
August 2011
Date of Judgment :
30
August 2011