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  • S v Fortune (K/S 50/03) [2006] ZANCHC 110 …

S v Fortune (K/S 50/03) [2006] ZANCHC 110 (1 January 2006)

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Criminal Law
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Brief Summary

Criminal Law — Attempted murder — Evidence of intent — Accused charged with multiple counts including attempted murder and robbery — Defence of loss of control due to personal circumstances — Accused's actions during the incident, including assaulting his wife and firing at victims, indicative of intent to cause harm — Court finds no merit in the defence of lack of intent; conviction upheld.

Comprehensive Summary

Summary of Judgment


Introduction


This was a criminal trial in the High Court of South Africa, Northern Cape Division, Kimberley, in which the accused, Christo Brian Fortune, was arraigned on 31 charges arising from a sequence of violent incidents in and around Postmasburg on 1 July 2002. The State prosecuted the matter and the accused pleaded not guilty to all counts.


The matter proceeded to trial with the accused legally represented. A written plea explanation (Exhibit “A”) was handed in, in which the accused’s defence was framed as a loss of self-control following an incident with his wife, accompanied by an asserted lack of recollection and an absence of intention to kill, injure, or cause damage. The State led evidence from numerous civilian and police witnesses, supported by photographic exhibits and medico-legal documentation. The defence closed its case without calling any witnesses, and relied on the facts emerging from the State’s case.


The general subject-matter of the dispute concerned a violent spree involving an alleged domestic assault, the taking of firearms and ammunition from a police station, multiple shootings at members of the public, and a series of offences including robbery with aggravating circumstances, attempted murder, and murder. A substantial part of the trial concerned whether the accused’s asserted loss of control could found a defence of temporary non-pathological criminal incapacity (sane automatism), and whether the State proved criminal capacity and intent beyond reasonable doubt across the various counts.


Material Facts


The court relied on a largely sequential narrative established through State witnesses and corroborated by photographs, ballistics-related scene findings (such as spent cartridges), and medico-legal reports. Certain facts were common cause or effectively undisputed due to the accused not testifying and not materially challenging the core allegations.


At the accused’s home, the accused’s wife (a police officer) testified that on the afternoon of 1 July 2002 the accused appeared angry and not himself, assaulted her with open hands, pinned her down on a bed, and strangled her. After she escaped to the street, the accused returned about 10–15 minutes later armed with a knife, threatened to kill her, and injured her finger. Her injuries (including facial swelling, a broken lip, a finger wound, and scratch marks) were consistent with her account. Her grandfather and uncle (Rev Koopman) attended, assisted her and the children, and left after the situation was calmed. The court treated this evidence as establishing the factual basis for the assault count.


Later, Rev Koopman testified that the accused telephoned and stated that he had killed people and intended to kill himself, which the accused’s counsel put in issue; however, the broader sequence of events that followed was proved by multiple independent witnesses and objective indicators. It was admitted (via Exhibit “D1”) that the accused’s blood alcohol concentration was 0,13 g per 100 millilitres.


A significant part of the factual matrix concerned the Postmasburg Police Station. A police sergeant testified that the accused entered an office, advanced on him with a steak knife, and attempted to stab him. The sergeant escaped while the accused accessed the safe and removed firearms and ammunition. A logistics official later confirmed that, while the inventory reconciled earlier on 1 July 2002, specific firearms and ammunition were missing after the incident, corresponding to the items listed in the charge sheet.


From there, the court accepted evidence showing a series of incidents across Postmasburg. Witnesses described the accused shooting at or towards vehicles and people, including occupants of a Bantam bakkie (with a bullet striking the windscreen/dashboard area and damaging clothing), and shooting at a van occupied by a married couple at a four-way stop. Several witnesses placed the accused at Tom’s Café, where he entered armed with a rifle and pistol, fired shots, and shot individuals including a woman who sustained a shoulder gunshot wound, and a man who later died of gunshot injuries. Medico-legal documentation established the causes of death for deceased victims, including fatal head and other gunshot wounds.


The court also relied on evidence concerning Score Supermarket, where witnesses described the accused forcing entry and firing shots in the store, including shots directed toward persons taking cover. The court accepted that no one was shot inside the store, but treated the firing as relevant to attempted murder counts (with differing outcomes depending on the complainant-specific evidence).


At Postmasburg Tavern, the court accepted evidence that shots were fired into and within the tavern, resulting in multiple victims being shot and at least two persons dying of gunshot wounds. The court relied on corroboration between eyewitness accounts, the medical reports for those injured, and forensic fieldworker evidence about the number and type of spent cartridges found at the scene.


The court further accepted evidence relating to the Schoeman Motors petrol station, where petrol attendants and a motorist testified that the accused threatened them with firearms. A motorist (Mr Jacob Visser) testified that the accused shot him in the thigh and then took his vehicle. The court also relied on evidence of a further hijacking in which the accused shot and killed a man (Mr Donovan Patrick Olyn) at close range and then drove off with the deceased’s vehicle towing a trailer.


Finally, the accused was traced and arrested in the Beeshoek area after police efforts to locate him, during which he attempted to flee and then complied with police instructions upon confrontation. The arrest itself was not in dispute.


Where disputes existed, they were chiefly in the form of suggestions put in cross-examination (for example, denial of a telephonic conversation with Rev Koopman, or the accused’s asserted lack of intention and claimed memory loss). The court repeatedly noted that key portions of the State’s version on the substantive offences remained unassailed and that the defence led no evidence to provide an alternative account.


Legal Issues


A central legal issue concerned criminal capacity, specifically whether the accused’s plea explanation amounted to a defence of temporary non-pathological criminal incapacity (sane automatism) and, if so, whether the State disproved that defence beyond reasonable doubt. This was primarily a question involving the application of law to fact, requiring evaluation of the accused’s conduct and the psychiatric evidence, alongside inferential reasoning about voluntariness and conscious conduct.


A further set of issues concerned whether the State proved, beyond reasonable doubt, the elements of the individual offences across multiple counts. This included whether the evidence established intention in the required form, with the judgment expressly engaging with dolus eventualis on several shooting incidents and dolus directus in at least one murder finding. These determinations combined factual findings (what the accused did, where, and to whom) with legal characterisation (whether the proven conduct supported the form of intent alleged).


The court also had to decide whether, in counts where attempted murder was not proved beyond reasonable doubt, a conviction could properly follow on a competent verdict under section 258 of the Criminal Procedure Act 51 of 1977, resulting in convictions for offences such as pointing a firearm or assault with intent to do grievous bodily harm.


Court’s Reasoning


The court treated the accused’s plea explanation as raising a defence consistent with temporary non-pathological criminal incapacity, inferred from the assertion that the accused “lost total control” and could not remember what he commenced. The court approached the defence through the framework set out in S v Eadie 2002(1) SACR 663(A), emphasising that the State bears the onus to prove criminal capacity, but is assisted by the natural inference that a sane person who engages in conduct that ordinarily gives rise to criminal liability does so consciously and voluntarily, absent exceptional circumstances. The court further emphasised that an accused who raises such a defence must lay a foundation sufficient to create a reasonable doubt, that evidence in support must be carefully scrutinised, and that the court must decide capacity having regard to expert evidence and all the facts, including the nature of the accused’s actions during the relevant period.


In evaluating the defence, the court considered the psychiatric evidence (Exhibit “E”), which concluded that the accused was not mentally ill, was fit to stand trial in terms of section 77(1), and was able to appreciate the wrongfulness of the alleged offences and act accordingly. The psychiatrist’s evidence also described the defence of sane automatism as truly exceptional and typically brief, with behaviour that is stereotyped and not sustained, and highlighted the importance of assessing focused, goal-directed behaviour before, during, and after the incident.


Against that legal and expert framework, the court reasoned that the accused’s conduct, as revealed by the State’s evidence, displayed sustained goal-directed action over a prolonged period rather than brief, stereotyped automatisms. The court identified a sequence of deliberate steps: the accused’s initial assault and later return with a knife; his subsequent movement to the police station; the overpowering of a police officer with a knife and removal of firearms and ammunition; movement to multiple public locations where people were present; securing and changing transport; ensuring the vehicle was fuelled; telephoning and selecting locations; and conduct suggestive of evasion and concealment (including a chosen area near Beeshoek and attempted flight when confronted). The court treated these features as inconsistent with an “absent mind” state and as indicative of purposeful behaviour under conscious control.


The court also reasoned that, while marital conflict, unemployment stress, depression history, alcohol consumption, and emotional distress were canvassed in argument as contextual factors, these did not, on the evidence before it, meet the threshold of exceptional circumstances required for sane automatism. The court endorsed the principle (drawn from S v Eadie) that anger or giving in to emotion does not excuse criminal liability unless the accused was acting in a state of automatism. The court concluded that the State had disproved the defence beyond reasonable doubt, finding that the accused appreciated wrongfulness and acted with presence of mind, and that alcohol contributed to frustration but did not establish automatism.


On the individual counts, the court’s reasoning turned on witness reliability, corroboration, the absence of contrary defence evidence, and careful complainant-specific assessment of whether intent to kill was proved beyond reasonable doubt. The court accepted certain single-witness evidence (notably the police sergeant at the police station) as satisfactory and reliable. In respect of several shootings, the court reasoned that firing at occupied vehicles or into crowded venues supported dolus eventualis, and in one murder count it expressly found direct intent. Conversely, where the evidence did not establish that shots were directed with the requisite intent toward a specific complainant (or where the manner of injury was unclear), the court extended the benefit of the doubt and acquitted on those counts, sometimes substituting a competent verdict under section 258.


In relation to the accused’s choice not to testify, the court applied the principle that it was within the accused’s rights to remain silent, and that an adverse inference could only be drawn from uncontroverted State evidence, not from silence itself, with reference to S v Brown 1996 (21) SACR 49 (NC).


Outcome and Relief


The court rejected the defence of temporary non-pathological criminal incapacity (sane automatism), finding that the State had proved criminal capacity beyond reasonable doubt and that the accused acted consciously and with awareness of wrongfulness.


The accused was convicted on a substantial number of counts, including the assault on his wife with intent to cause grievous bodily harm, robbery with aggravating circumstances relating to the taking of state firearms and later vehicle robberies, unlawful possession of firearms and ammunition, multiple counts of attempted murder and murder as charged where the court found intent proved (often on the basis of dolus eventualis, and in at least one instance dolus directus).


The accused was acquitted on certain counts where the court found that proof beyond reasonable doubt was lacking on complainant-specific attempted murder allegations. In addition, in two instances the court invoked section 258 of the Criminal Procedure Act 51 of 1977 to convict on a competent verdict: one count was reduced to pointing of a firearm under the Arms and Ammunition Act, and another to assault with intent to do grievous bodily harm, after finding that attempted murder was not proved.


The excerpted judgment portion concludes with the verdicts on the counts. It does not set out a sentencing phase or an express costs order, and no order as to costs appears from the provided text.


Cases Cited


S v Brown 1996 (21) SACR 49 (NC).


S v Eadie 2002(1) SACR 663(A).


Legislation Cited


Criminal Procedure Act 51 of 1977 (including sections 1, 220, and 258).


Arms and Ammunition Act 75 of 1969 (including sections 2, 32(1)(a), 32(1)(e), 36, 39(1)(i), and related provisions referenced in the charges).


Mental Health Act (referenced in relation to certifiability in the psychiatric report, without the Act number specified in the provided text).


Rules of Court Cited


No rules of court are expressly cited in the provided text.


Held


The court held that the accused’s plea explanation amounted to a defence of temporary non-pathological criminal incapacity, but that this defence was disproved beyond reasonable doubt on the totality of the evidence, including the psychiatric report and the accused’s sustained, goal-directed conduct over an extended period.


The court further held that the State had proved the accused’s guilt beyond reasonable doubt on most counts, including multiple counts of murder and attempted murder based on the court’s findings on intention (often dolus eventualis, and in one instance dolus directus). Where the evidence did not establish attempted murder beyond reasonable doubt for particular complainants, the court acquitted on those counts, and in appropriate instances substituted convictions on competent verdicts under section 258 of the Criminal Procedure Act 51 of 1977.


LEGAL PRINCIPLES


The judgment applied the approach restated in S v Eadie 2002(1) SACR 663(A) to the defence of temporary non-pathological criminal incapacity (sane automatism). In that approach, the State bears the onus to prove criminal capacity, but is assisted by the natural inference that a sane person who commits conduct ordinarily attracting criminal liability acts consciously and voluntarily absent exceptional circumstances. An accused who raises the defence must lay a sufficient factual foundation to create a reasonable doubt, and any such evidence must be carefully scrutinised, with the final determination of criminal capacity resting with the court on all the evidence, including expert opinion and the nature of the accused’s conduct during the period in question.


The judgment reinforced that loss of temper, anger, emotional upset, or succumbing to temptation does not in itself excuse criminal liability. On the reasoning adopted from Eadie, an accused can only lack self-control in a legally exculpatory manner if acting in a state of automatism, which the court described (by reference to the evidence and Eadie) as rare and requiring sound evidential support.


The court also applied the principle that where attempted murder is not proved beyond reasonable doubt, but the proven facts establish a lesser offence, a conviction may follow on a competent verdict under section 258 of the Criminal Procedure Act 51 of 1977, as occurred in this matter in relation to pointing of a firearm and assault with intent to cause grievous bodily harm.


Finally, the court applied the principle (with reference to S v Brown 1996 (21) SACR 49 (NC)) that an accused is entitled to close a case without testifying, and that any adverse inference may be drawn from the uncontroverted State evidence, not from the accused’s silence as such.

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[2006] ZANCHC 110
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S v Fortune (K/S 50/03) [2006] ZANCHC 110 (1 January 2006)

Verslagwaardig:
JA/NEE Sirkuleer onder
Regters: JA/NEE
Sirkuleer
onder Landdroste: JA/NEE
IN DIE HOOGGEREGSHOF
VAN SUID-AFRIKA
IN
THE HIGH COURT OF SOUTH AFRICA
(Noord-Kaapse
Afdeling / Northern Cape Division)
Case
Nr: K/S 50/03
In
the case between:
THE
STATE
And
CHRISTO
BRIAN FORTUNE
JUDGMENT
TLALETSI,
AJ
:
INTRODUCTION
1. Mr Fortune is
arraigned before this Court on 31 (Thirty One) Charges. I will not
repeat the allegations contained in these charges.
Suffice it to
summarize them as follows:
Assault with intend to
cause grievous bodily harm – 1 count.
Robbery with aggravating
circumstances as defined in Section 1 of Act 51 of 1977 – 4
counts.
Contravention of Sec
32(1)(a) of Act 75 of 1969 – unlawful possession of machine
firearm, R5 rifle – 1 count.
Contravention of Sec 2
of Act 75 of 1969 unlawful possession firearms (9 mm P 38 and 9 mm
Z88) - 2 counts.
Contravention of Sec 36
of Act 75 of 1969 – 1 count.
Contravention of Sec
39(1)(i) of Act 75 of 1969 (Pointing of firearm) – 1 count.
Contravention of Section
32(1)(e) of Act 75 of 1969 – 1 count.
Attempted Murder – 17
counts
Murder – 4 counts
2. To all these
charges Mr Fortune pleaded not guilty. He is assisted by Mr
Schreuder. Exhibit ‘A’ is a written plea explanation
signed by
him. The basis of his defence is that as a result of an incident
with his wife on the day of the incident, he lost total
control over
himself and cannot recall what he commenced (aangevang). He had no
intention or aim to kill, injure or cause any damage.
This statement
is dated 14
th
August 2003.
3. Inspector Shaun Vivian
Graham Jacobs is a police officer stationed at Kuruman in the
Criminal Record Centre. He is a trained official
photographer. He
has been in the police service for 12 years and for 3 years in the
Record Centre. After attending the scene at
Postmasburg where he
took photographs he compiled photo albums which have been useful to
this court by revealing the scene and proper
understanding of the
area.
Exhibit
‘B’ is Airial photographs of Postmasburg area with the following
points marked on this album.
Point
1 - SAPS Postmasburg
Point
2 - Toms Café
Point
3 - Postmasburg Tavern
Point
4 - Postmasburg Liquor Store and Shone Street
Point
5 - Score Supermarket
Point
6 - Schoeman Motors premises
Point
7 - Station Road, Newtown
Point
8 - Place where the accused was arrested.
I
will revert back to these points in more details at a later stage as
the evidence progresses.
AT HOME
4. Francis Claudine
Fortune is Mr Fortune’s wife. They have been married for about 5½
years and they have two children, a girl
aged 7 and a boy aged 4
years. She is a police officer stationed at Postmasburg Police
Station. Her evidence against her husband
is only admissible in so
far as it relate to the charge in which she is the complainant which
is assault her with intend to cause
grievous bodily harm.
5. On the 1
st
July
2002 in the afternoon, the accused found his wife at home with their
children. According to her he was not himself; or did not
appear as
usual. He had an expression on his face. A quarrel ensued and the
accused assaulted her with open hands. She ran to
the bedroom and
pinned her on the bed. He strangled her. She managed to escape and
went to the street. After some 10 – 15 minutes
he came and
attacked her with a knife threatening to kill her. Her finger was
injured by the knife. He locked himself in the house.
She phoned
for help. Her grandfather Paul Molaole and her uncle, Nico Koopman
came. They were present when she packed her clothes
as well as the
children as the accused quietly sat on the bed.
6. She sustained the
following injuries: Swollen and blue cheek, broken lip, cut wound on
the finger, and scratch marks on the neck.
These injuries are
consistent with the manner in which she described the assault. Rev
Koopman who is also a lecturer at Stellenbosch
University in theology
confirms his presence at the Fortune’s residence. He stated that
they found Mrs Fortune together with the
children. He knocked for
some time and the accused ultimately opened the door. He was holding
his cheek as if he was injured.
The accused and his wife were angry
and he calmed them down. The grandfather spoke strongly with the
accused for having injured
his wife and causing the children to stay
outside in the cold. Rev Koopman agreed with the accused to meet the
following day to
try and resolve their differences.
7. Mrs Fortune and the
children left with Rev Koopman and the grandfather. As she was
supposed to report for duty that afternoon,
she tried to phone the
Police Station to report her condition which made it impossible for
her to go to work. Later she received
a call from her husband on her
cellphone. She gave the phone to Rev Koopman at the request of the
accused. According to Rev Koopman
the accused told him that he has
killed 20 people and he has 8 bullets left with which he is going to
blast his brains. He pleaded
with him not to do it and wait for
their appointment the following day. The accused told him that it is
already late and nobody
want to listen to him. The accused phoned
twice and on both occasions he spoke to him. It was put to him that
the accused will
deny ever speaking to Rev Koopman on the phone.
Mrs Fortune identified the steak knife which her husband had as being
similar to
a knife in Exhibit B2 photo 34 – It is a sharp knife
with a black handle.
8. The accused is a
former police officer and was stationed at Upington and later at
Postmasburg. He has been unemployed for almost
2½ years. During
their marriage he never showed any emotions or mental blackout. On
this day her husband was smelling of alcohol
– He was not very
drunk. He appeared angry. She conceded to what Mr Schreuder on
behalf of the accused put to her that her husband
made attempts to
secure employment at various places without any success. This
affected him adversely. He was depressed. He was
once treated in
Bloemfontein by a psychologist for depression. This was before he
lost his employment as a police officer. According
to her the cause
of the depression could have been work pressure like many police
officers including herself. He liked his job as
a police officer.
9. He is a reserved
person and would not open up easily when he had problems. Her
husband accused her of an extra marital affair
with one Jacques
Brandt which she refuted. It is not necessary to make any finding in
this regard. On this day there was a stage
in which she was in the
company of this man and it is possible that her husband could have
seen them together. She says he gave
her a lift to a hairdresser.
She says ever since her husband was unemployed he felt very insecured
with her. He feared that Jacques
Brandt was taking her away from
him. Mr Fortune liked his children and spent some time with them.
10. It was further put to
her that according to Mr Fortune he was drunk and extremely angry
because of Brand, and he burst. She confirmed
that she remarked that
she is going to consult a lawyer the following day to institute
divorce proceedings. This was after the assault.
This aspect is
confirmed by Rev Koopman.
11. It was further put to
her that all what the accused remembers is that that evening he
phoned her on the cellphone and told her
that his clothes were full
of blood and he does not know how. She disputed this aspect. She
says the accused asked her if she heard
what he did, and demanded to
speak to Mr Koopman as that was the reason for his call.
This
is the evidence which was not disputed in cross examination regarding
count 1. No version regarding the assault came from the
accused.
THE DE WEE INCIDENT
12. Rosina De Wee is the
complainant in count 7. Her evidence is similar to that of her
husband Mr Willem De Wee. They were from
Kimberley traveling in a
white Bantam bakkie. They loaded two soldiers whom they gave a lift.
The bakkie stopped next to the bar
and Mr De Wee alighted to attend
to the passengers (soldiers), 3 children passed them running and got
into a building and closed
the door. Then the accused followed and
uttered some words which meant that he is not taken seriously. He
lifted a rifle and fired
at their direction. Himself and the two
soldiers took cover. They fled unharmed as he fired at the motor
vehicle. Mrs De Wee was
in the van sitting at the passenger seat
when the shots were fired. One of the bullets struck the windscreen,
dash board and went
through the passenger door. A bullet tore Mrs De
Wee’s jacket which is valued in the region of R300,00 – R400,00.
The van is
the same as the one in Exhibit B4, photo 12. It is shown
at the spot they parked it on arrival. The jacket is on photo 13 of
B4.
She confirmed the tear on the jacket. She did not sustain any
injuries. Mr De Wee further testified that at the time when the
accused fired the shots he was positioned at point CM on photo 11.
Mr de Wee had just alighted from the van and was next to the
driver’s
door which was open.
13. Photos 13 and 14 of
Exhibit B 4 show a fawn or beige coat with a belt. It has an open
cut or tear at the back almost right in
the middle. It is the tear
which the witnesses allege was caused by a bullet fired by the
accused. On phote 12 there is a Ford
Bantam, BHB 480 NC. At the
windscreen on the right front portion is a mark. According to Mr De
Wee the damages to this van amount
to R6 756,04. He handed in a
quotation from Voorspoed Panelbeaters dated 4/7/2002 as Exhibit ‘C1’
and the invoice in the amount
of R750,00. The repairs quoted for are
for the windscreen, dashboard and crash pad.
14. Mr De Wee cannot say
if the accused was drunk or not. He knew him as a police officer but
was not used to him. He did not appear
relaxed or normal. He looked
wild unlike the day when he testified and the accused sitting in
Court.
AT POSTMASBURG
POLICE STATION
15. That is the evidence
with regard to count 7. The State’s version that the accused
attempted to kill Rosina de Wee by shooting
her with a firearm remain
unassailed.
Sergeant Collen
Charles Marius Lock testified with regard to counts 2, 3, 4, 5 and 6.
He is 10 years in the police service and stationed
at Potmasburg.
On the 1
st
July 2002 he was at the police station in the
office shown in Exhibit B1 photo 1. He was sitting at a chair at
point EI. He heard
somebody entering through the wooden door shown
on the photo. When he looked back, he saw the accused. He greeted
him. He was
at point EJ which is between him and the steel save at
point EK. Sergeant Lock was busy working on the registers of the
firearms
as he was to hand over to the next shift that was to take
over at 7 pm.
16. The accused drew a
black handled steak knife and made an advance to stab him. He pushed
the seat in which he was sitting backward
in a bid to duck the stab.
The seat has wheels. He jumped towards the wall. The accused pushed
him against the wall and advanced
to stab him again. He ducked and
fell against the wall. The accused dashed to the save and took out a
pistol as well as the magazine.
Sergeant Lock escaped through the
wooden door and went to the Charge Office. He saw the accused
through an opening between the
Charge Office and that office, which
had some iron bars. He saw him take more weapons from the save. He
then looked around for
the shift which was to take over in a bid to
warn them about the accused. He could not find anybody. He met a
colleague, Sessie
Molele in her motor vehicle at the street. She is
a member of the Criminal Investigation Division (CID). They traveled
together
to the CID offices where they met Captain Witbooi and made a
report to him.
17. They drove back to
the Charge Office. On the way they heard shots being fired but could
not identify the place from which they
were fired. They did not find
the accused where he left him. They armed themselves and called for
reinforcement of other members
to conduct a search for the accused.
18. The accused was known
to him as they worked together at Postmasburg. He could not notice
anything wrong on his face or even a
smell of alcohol. According to
him the accused as an ex-policeman should have known that at that
time it was shift change time and
also that he stayed close to the
Police Station with a gate in between the two yards.
19. They
received information that he was traveling in a (white) golf and they
looked for it without success. Later they heard that
he was now
traveling in a Jetta. As they feared that the accused might harm his
wife, they went to her parental place to shift her
to a secure and
safe place. As they were in the company of the wife, her cellphone
rang. They discovered that it was the accused
and traced the numbers
he called from to Beeshoek area. The search then moved to Beeshoek.
The reinforcements had increased at
this stage. Upon arrival at the
entrance of Beeshoek mine they tried to block all the entrances to
prevent any escape.
20. They spotted a
Toyota Corolla they learnt he was traveling on. As it drove past
them they stopped it. Sergeant Lock was with
his colleague,
Inspector Pogisho Diphoko. He stopped about 9 metres towards them.
Sergeant Lock went out through the left door
of the motor vehicle.
The accused then drove past them and stopped at point 8 (ii) of
Exhibit B on photo 8. They stopped at point
8 (iii). The accused
went out of the motor vehicle and ran towards the wall (precast wall)
and jumped over. Shots were fired at
his direction by Sergeant Lock
about 2 – 3 shots with an R5. He then jumped back and screamed
that “he is Christo”. Inspector
King and John Boucher arrived
and lit him with their motor vehicle’s headlamps. Inspector King
instructed him to lie on the ground.
He complied. He was searched
and arrested. Both Inspector Diphoko and Mr Boucher confirm the
place of the arrest and the shots
that were fired. There is however
a contradiction between the two as to who actually caused and
effected the heroic arrest. The
contradiction is immaterial as the
arrest is not in dispute. I am not called upon to decide who should
receive a reward, if any.
21. The Head of
Logistics, Ms Hansen, at Postmasburg Police Station testified. She
checked the registers and the save on the 2
nd
July 2002.
She discovered that the records and the inventory as at the morning
of the 1
st
July 2002 reconciled. However the records after
the incident of the 1
st
July 2002 did not reconcile. She
discovered the following items missing:
1 X R5 Rifle serial no
348167,
9 mm Parabellum P38 with
serial number 431183,
9 mm Parabellum Z88,
serial no Q100881,
2 X R5 magazine with 60
rounds.
P38 magazine with 8
rounds
3 X Z88 magazine with 38
rounds.
These items are the same
as those listed in count 2 in the Chargesheet. There is no evidence
tendered to dispute these allegations
as a result of her evidence as
corroborated by Sergeant Lock remain uncontroverted.
THE RED GOLF
INCIDENT
22. Sabel Pauline Esau,
Hendrich Horatio Bessies and Dirk Khuduga Mocwane know the accused
very well. The former two were in his
company at Vliegveld where
they all enjoyed some liquor on the previous Saturday. They never
quarreled or had problems.
23. On Monday, Mr Esau
gave Messrs Bessies and Mocwane a lift to town. He met them on his
way to town. Mr Bessies sat on the front
passenger seat and Mocwane
at the rear seat of the red Golf. Mr Bessies was to be offloaded
next to the Bar. As they approached
the accused emerged from a
corner and fired shots at their motor vehicle. The driver had no
time to switch the engine off. He got
out of the motor vehicle and
fled to the direction of the Police Station. Mr Mocwane who is a
police officer at Postmasburg also
fled from the motor vehicle after
having hid himself for cover next to the rear wheal. Mr Bessies took
cover beneath the dashboard
as the shots were being fired.
24. The
firing stopped and he saw the accused next to the motor vehicle.
Bessies opened the door and stood between the motor vehicle
and the
open door. He saw the accused having an R5 rifle and a pistol in his
hands. He pressed the pistol against his head on the
side and
ordered him to leave. He later pleaded with him to take the motor
vehicle and leave. He was frightened and helpless.
The accused left
him, got into the car and drove off as Bessies ran away.
25. This incident took
place at Exhibit B point no 1. Exhibit B 6 photo 1 shows the Red
Golf. Photos 12, 13, 14 show bullet marks
on the motor vehicle.
They were on the bonnet as well as the front passenger door. They
were all fired when Bessies was still in
the motor vehicle. No shots
were fired after Bessies alighted from the motor vehicle.
26. According to all
these three witnesses the accused looked normal and not drunk. At
least Bessies observed him when he was close
to him when he pressed
the firearm against his head. Shirley Vorster in her evidence also
made mention of the accused firing shots
at the Red Golf belonging to
Sabel Esau. This evidence reveal that the accused robbed this motor
vehicle using the firearms which
were in his possession.
5 STER TAKE AWAYS
AND CAFé
27. Mr Andries Jacobus
Burger is a victim in count 29. He is the owner of the Motel at
Postmaburg. At about 6.45 pm he was at 5
Ster Take Aways and Café
when he heard a gunshot. He then ordered his staff to close the Café
and the Bottle Store and informed
the police about what he heard. He
went outside and stood next to the wall on the side of the Café on
photo 6 of Exhibit B6. Photo
11 shows the scene or area of 5 Ster
Take Aways and Café and Andrisha Liquor Store. He was standing at
point CH. He saw the petrol
attendant pass followed by a person.
This person left the petrol attendant and pointed a firearm at him.
He ordered him to get
out from where he was hiding. It looked like
an R4 rifle. He obeyed the instruction. He ordered him to get into
a motor vehicle
which was parked at point DG next to the Bottlestore
on photo 11. A person came walking along the street and the accused
went to
him and spoke to him. Mr Burger then drove away to the
Police Station. As it was dark he could not identify this person.
28. From
the Police Station he phoned his staff to lock the business. The
shot he heard was at the filling station which is 40 –
50 m away
from the Motel. This person held him by his jacket and pointed him
with the firearm. He did not smell any liquor from
him. It was a
(red) Hilux Bakkie which had just parked there. He did not know the
owner of the motorvehicle. This is the evidence
relating to count 29
being pointing the complainant with an R5-automatic rifle. There is
no evidence that contradict or discredit
the witness.
THE REINECKE FAMILY
INCIDENT
29. Mr Diederick Johannes
Reinecke and Mrs Reinecke testified as victims in count 8. Mr
Reinecke is the owner of S M Construction,
and on this day he
traveled with his wife in a van to a function which was to start at 7
pm at the Hotel. They stopped at a 4 way
stop shown on Exhibit B,
photo 3 at point H. They saw a person next to the Bottle store on
their opposite side having a firearm
in his hand. He was next to a
white small van having a canopy. As their Van entered the 4 way
intersection, the person looked at
them and pointed a finger at them.
With the right hand he raised a firearm and fired 3 shots at them.
Mr Reinecke pinned his wife
downwards and fled. He stopped next to
the Hotel. They discovered a bullet mark on the left side of the
van. He identified the
van and place where he stopped at Exhibit B4
photo 15. The shot is shown on photo 16 and the repairs would cost
about R800,00.
He is corroborated by his wife on these events. They
were in the van when the shots were fired.
TOMS Café
30. Inspector Ben Phete
is a police officer stationed at Postmasburg in the Criminal
Investigation Division. On this day he was in
the company of his
wife driving a motor vehicle from the telephone booths next to the
road. As he drove slowly next to Toms Café,
he saw the accused walk
past a metallic blue Mazda motor vehicle bearing GP registration
number plates. He noticed that it was the
accused and was having a
rifle in his hand. The accused entered Toms Café. Inspector Phete
heard two shot being fired inside the
Café. He saw him again
emerging from that place and firing shots and ran to the western
direction. He informed inspector Trevor
Olivier.
31. His evidence joins in
with that of Mr Abednego Bear who is a victim in count 11 as well as
other witnesses who testified about
the events at Toms Café. The
accused did not appear drunk to him. He was normal.
32. Inside Toms Café
Betta Barends saw the accused who is known to her enter the shop and
stood next to the cool drink refrigerators.
She noticed the two
firearms, one small and one big. She then called her colleague
Shirly Vorster who was in the kitchen to come
and see. She came,
looked at the accused and went back to the kitchen. The accused
demanded a cool drink and Mrs Dauth, the owner,
told him he can have
it. He took a cool drink from the fridge and placed it on the
counter. She called Ms Vorster again from the
kitchen and she came.
The accused then fired two shots on the floor. They then fled to the
back at the kitchen. Those who fled
were Ms Barends, Vorster and two
black persons who were in the shop. It is not clear whether any shot
was fired directly at them.
As they were out at the back they heard
Mrs Dauth scream that he shot her. She came running to them and they
assisted her. According
to Mr Barends she was holding her left upper
arm towards the shoulder and it was bleeding. She send her for a
handbag which she
went to fetch at the counter after the firing of
bullets had stopped. They switched off the lights and later when
they discovered
that the accused had left, they switched the light
on.
33. Ms Barends says that
Mr Dauth was lying behind the counter. Dr Calitz was called and
attended to Mrs Dauth. According to Ms
Vorster she noticed a pistol
that the accused possessed on top of the counter. She says then
Sabel Esau (Lux) came with a red Golf
motor vehicle and Mr Fortune
fired at the red Golf. The owner of the shop Mrs Niemand came at a
later stage. She knows accused
very well as he married his cousin.
The witness pointed at points in Exhibit B2 photo 2 where the accused
was standing when the
shots were fired. The firearm she saw on the
counter is the same as the one on photo 32 of Exhibit B2.
34. Mrs Catharina Dauth
who is the victim in count 12 corroborated Betta Barends and Shirley
Vorster about the events at Toms Café.
She knows the accused well
as an ex-police officer who worked with their son Francois when he
was a police reservist at Postmasburg.
They evenly regarded him
almost as a family friend. He was a friendly and pleasant person.
Her husband wanted to close the door
but it was too late as the
accused managed to enter the Café. There were other people inside
the shop. He put a firearm against
his head but did not fire any
shot as it was apparently empty according to her. Her husband tried
to calm the people inside the
shop. He at some stage lifted a
telephone behind the counter in a bid to call the police. The
accused shot him with the handgun
as the telephone was on his ear and
hand. He fell behind the counter with his hand on his face. The
accused demanded a cold drink
in a rude manner. Mrs Dauth told him
that he can have it. He took and drank one lemon twist soft drink
and poured Mr Dauth on his
head and face. He thereafter took what
she called an automatic firearm and fired at random. He also leaned
over the counter and
shot her husband at close range.
35. As she was crawling
past other people hiding behind the counter and moving past the
sandwich stand the accused shot her on her
right shoulder. He later
left and was assisted by her colleagues and Dr Calitz and was
ultimately taken to hospital.
36. Her hand was injured
and even today she is right handed but cannot use this hand as she
cannot lift it. She is still receiving
medical treatment. This
incident has traumatized her.
37. Mr John Boucher who
is a police reservist confirms that when he entered Toms Café he saw
Mr Dauth lying face down behind the
counter. He also saw Mrs Dauth
in the kitchen injured and bleeding according to him he instructed
the ladies who were assisting
her to block the wound on the shoulder
with her hand so that she should not bleed profusely.
38. Mr Abednigo Bear is a
victim in count 11. He is a resident of Newtown, Postmasburg. On
this day after buying his groceries at
Score Supermarket he went to
Tom’s Café to buy sugar which was not available at Score
Supermarket. After receiving the packet
of sugar from the attendant,
his foot was about 20 cm from the door, he heard a loud bang
close by. He tried look around but
fell outside the shop at point
‘B’ of Exhibit B2 photo 1. The bullet struck him whilst inside
Toms Café. His groceries also
fell from him. He then noticed a
person standing next to him with a rifle pointed at him whilst lying
on the ground. He was operating
it and it made two roaring sounds as
if it was empty. He identified the rifle as similar to Exhibit 4.
He regained his consciousness
and fled. He ultimately went to the
hospital. His right upper arm was injured and described what he
called an entry and an exit
wounds. He is presently healed as he can
use the hand, though at times he experience some difficulties.
39. Although
he did not know his assailant he saw him the same night when he was
standing next to him with the rifle. The other witness
who came to
Toms Caffe after the shooting is Inspector Pogisho Diphoko.
According to him inside the shop behind the counter he saw
a white
man shot, and also heard a woman crying in the kitchen. As he
entered the kitchen he noticed that it was Francois Dauth’s
mother.
He also noticed a 9 mm pistol and a knife with a black handle on the
counter.
40. Exhibit D12 is a
Medical Report by Dr J Veldsman on the 7/7/2002. It shows that
Catharina Dauth had a shotwound on the right
shoulder. There is no
exit wound. The entry wound is on her back. The evidence is
consistent with the injury.
Exhibit D2 is a report
by the District Surgeon Dr G A Isaacs. On the 5
th
July
2002 he examined the body of Francois Arnols Dauth, victim in count
14. According to the district surgeon he discovered the
following:
a) Gunshot wound through
the head with destruction of the right hemisphere and midbrain.
b) Gunshot wound through
the left hand.
c) Gunshot wound through
the left thigh with compound fracture femur.
The cause of death
according to the doctor’s findings is severe brain damage due to
gunshot wound to the head.
SCORE SUPERMARKET
41. On the same evening
Mr Erico Tofarides a salesman from Germiston was standing outside
Score Supermarket with Mr Alfred Suren Johanssen,
who was the store
manager at Score at the time. They were busy smoking when they heard
sounds of gunfire in the vicinity of Toms
Café. They saw people
running to different directions and screaming. In that commotion
they noticed a man having a rifle in his
hand firing shots and
walking towards their direction. Shots were fired on air and at
different directions.
42. As people ran towards
their direction they went into the store and Mr Johanssen closed the
doors. People kept on coming and entered
the store. The manager
closed the door at least two to three times after being opened by
people who were desperate for cover. The
gun man forced the door
open and entered the store. He started firing inside the store from
the door and moved inside. One of the
shots struct a telephone
instrument on the pulpit which is about 1½ m high and used as an
office. As it sparked fire it became
clear to those who were in
doubt that these were not blanks but live ammunition. Mr Johanssen
hid himself at the office which is
on the upper level of the store.
43. Mr Tofarides together
with Mr Johannes Botha, an employee at Score supermarket took cover
at fruit and vegetables stand inside
the shop. This area is shown in
Exhibit B5 photos 5, 9, 14 and 15. The gunman walked towards this
area. The man noticed them and
walked towards them. According to Mr
Tofarides he stood up and raised his hands and requested the gunman
to take it easy and talk.
He then turned the rifle towards him.
Seeing that he was serious he dived behind the fruit and vegetable
shelves as the man fired
two shots at him. He felt the bullets
moving over his head. The gunman them turned and moved towards the
other side of the store.
There is a bullet mark shown on photos 14
and 15 of Exhibit B5. The mark is on the refrigerators containing
vegetables.
44. Messrs Tofarides and
Botha and a third person moved towards the back of the long vegetable
refrigerator and took cover there.
A shot was fired towards their
direction. He crawled down the passage. They heard something
falling which they believed to be
an empty magazine. They reached
the butchery section of the store where they hid themselves inside
the cooling room with cacauses.
45. On the other section
of the store, Mr Joshua Monyamani, who is an employee of Score
supermarket, was busy with his duties at the
bakery when the gunman
entered the store and fired shots. He recognized this man as Fortune
who was a friendly police officer who
once arrested him for
drunkenness. He saw him pull the magazine off his firearm and
refilled it. It was a big gun which is foldable.
The man started to
fire at all directions. He then started to move to his direction.
As he was 15 – 20 paces Mr Monyamani ran
into the bread oven and
hid himself therein and closed the oven door. When he got inside the
oven the gunman was not shooting.
He spent about 15 minutes in that
unpleasant heat of the oven. He went out when it was quiet. He saw
the gunman walk out of the
shop. He saw the man having a big gun as
well as a small gun. He then informed other people that he is gone
and people who were
in the butchery cooling room got out after making
sure that it was an employee who called them out and not a trap.
46. No one was shot
inside the store. To these four witnesses, i.e. Tofarides,
Johanssen, Monyamani and Botha, the accused did not
appear drunk, he
appeared normal but angry. Mr Erico Tofarides is the complainant in
count 10, Mr Johannes Botha is the complainant
in count 9. Both
Messrs Monyamani and Johanssen are not complainants.
47. Mr John Boucher in
his testimony saw Mr Fortune heading towards Score Supermarket having
a pistol and a rifle which could either
be an R4 or R5 in his hands
firing shots. He saw him enter Score Supermarket. He also saw him
leaving Score Supermarket. He further
saw a white lady coming out of
Score Supermarket holding her leg. The identity of this woman has
not been revealed to this Court
as well as the circumstances relating
to her injury if any. Inspector Edward Vertuin discovered 9 empty
cartridges at Score Supermarket.
POSTMASBURG TAVERN
48. Martin Visser, a 21
year old man is a victim in count 18. On this day he was sent to
town to draw some money. As he was walking
along the street he heard
gunshot sounds. He saw a person with one big gun and two small guns.
He turned to the direction of Score
Supermarket. He looked at this
person approaching him. He then fired a shot that struck him on his
right shoulder. He fell. He
stood up and ran into the tavern.
49. This person also
entered the tavern. The man shot him on his left arm and the bullet
went through up to his stomach. He then
lost his consciousness and
only saw himself at the hospital. The two small guns were on his
waist submerged from the trouser and
the big gun in his two hands.
He did not know the person at the time. He pointed him in Court. He
received medical treatment at
Kimberley Hospital. He was admitted
for 27 days, discharged and attended the dressing of his wounds for 2
weeks at Postmasburg Hospital.
He was operated on the stomach and he
experience pains at times on the operated area and the wound.
50. Exhibit D10 is a
form J88 or Medico-legal examination report completed by a Medical
Practioner named Cesar Carees Ramon on the
1
st
July 2002
at 23h50. The person examined is Martin Visser whose clothes had
blood spots. He had wounds on his shoulder, abdomen and
forearm.
They are gun shots which are life threatening without medical
attention, according to the doctor. His mental health and
emotional
status is described as shocked.
51. Mr Tembuxolo Cedric
Mdokwe was in the company of his friend Bruce Bosman. He stood at
the door of the tavern. Mr Bosman had
entered the Tavern to buy
cigarettes at the counter. As he stood there he saw a man who
appeared to be fighting with a woman at
Toms Café area. The woman
ran away from him towards the telephone’s area. The person came
towards the tavern having a big gun
shooting at random. Mr Mdokwe
ran inside the tavern to warn his friend about this person and for
them to leave. His friend did
not take him serious. He was sharing
the cigarette with other people. Someone took him serious and ran
out. He also made an attempt
to run out but only to find out that he
was late as the gunman was now close to the tavern. He warned Mr
Bosman to go for cover
and he himself took cover behind a pillar
inside the tavern. A few seconds later a person fired shots into
the tavern from the
door. The many people who were inside the tavern
ran around screaming and looking for cover. The shooting inside the
tavern stopped.
He heard shots being fired outside.
52. He discovered Bruce
Bosman, also known as Taxi on top of a pile of people bleeding
profusely. He shook him but did not respond.
He then left him and
jumped out of the building through a toilet window. There was a high
wall and where he was he did not feel
safe. He then ascended the
wall and hid himself at the roof of the Tavern building. He was
joined by somebody at the roof. The
police came and cordoned the
place. Fearing to jump down the front of the building as he ran the
risk of breaking his legs or being
mistaken for the gunman and be
shot by the police, he returned into the tavern the way he went out.
He injured his leg in the process
of ascending the wall.
53. He knew the accused
as a good and friendly person and earlier that day the accused was at
his caravan where he invited him for
a braai meat. The accused and
someone else were drinking two 375 ml bottles of Richelieu brandy,
two halves in local parlance.
Phenyo Bruce Bosman’s
body was seen by the District Surgeon on the 5
th
July 2002
at 09h30. According to Exhibit D4 he had died 97.9 hours prior to
the examination. The body had:
i) Gunshot wound through
right buttock
ii) Gunshot wound left
lower back, deflected of 3
rd
lumbar vertebra, through the
mesentery of the small bowel, right lobe of liver, diaphragm, right
lower lobe of lung, Rib 8 and lodged
in muscle of right lateral
chest.
The cause of death is
described as Hypovalaemic shock due to gunshot wounds through right
lung, lower right kidney and mesentery of
small bowel. Mr Bruce
Bosman is the victim in count 22.
54. Mr Isaac January
was inside the Tavern when the shots were fired. He was seated at
the 3
rd
table from the corner. He hid himself under the
table. He could see a person having a long gun and a small one.
This person was
wearing white takkies and a pair of jeans trousers.
After the shots were fired by this man he saw people lying on the
floor. The
gunman went outside, and returned into the tavern. He
looked around and left again. They discovered a long gun magazine
which they
handed over to the police. The table he occupied is shown
in Exhibit B2 photo 2 and is covered with a Castle Lager table cloth.
55. Among the people
who were inside the Tavern is his relative Reuben Holele. He is also
known as Konke. At the time of the shooting
the deceased was
standing next to the snooker table. He identified the body of a
person in photos 6 and 7 of Exhibit 3 as the body
of Reuben Holele.
Exhibit D3 is a report of the District Surgeon and a Forensic Medical
Officer, Dr George Albertus Isaacs who examined
the body of Reuben
Holele on the 5
th
June 2002 at Upington. According to the
report he discovered the following:
1. Gunshot wound through
sternum, left Lobe of Liver, Mesentery of small bowel and lodged in
buttock.
2. Gunshot
right shoulder through right lung and lodged in right lobe of liver.
3. Gunshot wound through
left lung posteriory.
The findings reveal the
cause of death as Hypovolaemic shock due to gunshot wounds through
lungs and liver.
56. Mr January knows the
accused and on the day of the incident he was at the tavern at about
15 hrs. He played snooker and did not
notice if he drank any liquor.
He does not know if the accused and the deceased knew each other.
His evidence related in particular
to Count 21, being the murder of
Reuben Holele.
57. Ms Angelina Ranthaka,
was also at the Tavern. When she heard the sound of the gunshot she
ran towards the area of the toilets
together with other people. She
joined the people who jumped out of the building through the toilet
window. On the outside she
made an attempt to climb over a wall but
lost consciousness. When she regained her consciousness she
discovered herself to be lying
there alone. She recollected that she
went out of the building through the toilet window. She felt her
clothes to be wet on the
left waist. She lifted her jacket to
inspect her body. She discovered a wound on her waist. She screamed
for help and two policemen
arrived and assisted her. She was taken
to Kimberley hospital where they discovered another wound on her
body. She spent two months
in hospital and after that she attended
treatment for two weeks. The wounds are not completely healed as she
experiences some pains
at times. She did not see the person who shot
her.
58. Exhibit D8 is a
Medical report completed by Dr E Blom. The latter examined the
complainant on the 1
st
July 2002 at Kimberley Hospital
complex. The clothes were bloodied and gunshot wounds were
discovered, the entry and exit wounds.
There was no active bleeding
at the time. Ms Angeline Ranthaka is the complainant in count 17,
that of Attempted Murder.
59. Ms Sylvia Keolodile
was present at the Tavern. She stood up and moved towards the
counter to buy beers. She was facing the bar
attendant lady. The
latter screamed and told her to look back. As she tried to look back
she was already shot. She fell and the
next moment she discovered
herself at Kimberley Hospital. She was shot on the right side of the
upper body. She also received treatment
at Postmasburg.
Dr Calitz completed a
medical report in which he noted clinical findings on 01/07/2002. He
discovered a gunwound on the right lung
with Pneumo-Hemotoratus. He
also wrote the following remark:
”behandeling in Kimberley
Hospitaal (uiters gevaarlike besering) Klemlut R”
60. Ms Keolodile
testified further that the bullet is still in her body and says that
she has been advised that it is risky to remove
it. She did not see
the person who shot her. She is the complainant in Count 16, being
that of Attempted Murder.
61. Mr Marius de Koker
was sitting at the counter of the tavern consuming the beer he was
invited for. The music was loud. As they
were drinking one Malgas
pulled him down and warned him about a shooting. He then hid behind
a pillar and the table also covered
them. There was pandemonium as
the music played loud, people screamed and shots being fired. Sylvia
fell on top of his leg. He
pulled his leg with difficulty and later
discovered that he was shot on the leg. He was transported to
Postmasburg hospital in an
ambulance. He was later taken to
Kimberley Hospital where he was operated on the 10
th
July
2002 and discharged on 15 July 2002. He is not completely healed.
62. He was seen by Dr
Cesar Caras Ramons on the 1
st
July 2002 at Kimberley
Hospital. The doctor completed Exhibit D11. He discovered a thigh
gunshot wound without exit and fermur fracture
and artery cut. He
did not know the accused before that day. He does not know why he was
shot. He is the complainant in count 20
being that op Attempted
Murder.
63. Mr Jan Johannes de
Koker testified that he was also in the Tavern enjoying some bears.
He heard gunshots and as he turned, he
saw the accused who he knew to
be a former policeman. He was standing at the door with a rifle in
his hands. The latter pointed
the rifle at him. He ducked but he
was shot on the left upper arm. He fell onto the floor. The accused
fired again and he shot
him on the left lower rib.
64. He was later
carried to an ambulance and taken to Kimberley Hospital. He was
admitted from the 1
st
of July 2002 to the 7
th
August
2002. He was readmitted on the 18
th
August 2002 for the
purpose of conducting an operation. He never had problems with the
accused, he knew him and that he was employed
at Russels Furnishers.
65. Inspector Edward
Fortein who investigated the scenes as a forensic fieldworker
attended at the tavern. He discovered at least
13 R5 empty catridges
at various places inside the tavern. He also discovered 5 X 9mm empty
cartridges as well as an R5 rifle empty
magazine.
SCOEMAN MOTORS
66. Messrs Gerhardus
Witbooi and Anthony van Zyl are employed as petrol attendants at
Schoeman Motors. The latter was busy serving
a customer with diesel
when a red golf driven by the accused arrived and stopped next to a
pump. Mr Witbooi approached the motor
vehicle with a view to assist.
The driver got out of the motor vehicle. He told Mr Witbooi to fill
up. He went around the motor
vehicle to take the keys to open the
petrol cap. The accused bowed into the motor vehicle and took out a
firearm with his left hand.
He put the firearm against his head and
ordered him to fill up. He became frightened and offered him the
money bag. The accused
did not accept it and ordered him to fill up.
67. A white Jetta motor
vehicle arrived at the petrol station. The accused directed his
concentration at this motor vehicle. Mr
Witbooi got an opportunity
to warn Mr Van Zyl about the danger and they ran away. The accused
fired shots at them and they felt
the bullets speeding past their
heads. Mr Witbooi described it as fire or flame moving past him. He
turned to the Motel for cover.
Mr Van Zyl testified that he had to
jump over a high fence and went straight to Newtown.
68. The driver of the
white Jetta is Mr Jacob Visser. He testified that on arrival he
waited for the petrol attendant to finish servicing
the red Golf and
for his turn to come. The accused looked at him and pointed a
handgun at him and ordered him to stand still otherwise
he will shoot
him. The petrol attendant fled. The accused fired shots after the
attendant. The latter fell and he does not know
if he shot him. The
accused then pointed the gun at his leg and shot him. He fell. The
accused ordered him to stand up. He complied
and his car keys fell.
He picked them up. He ordered him to fill the car with petrol. The
accused held his hand with the pump
as he filled, with the firearm
pointed at him with the other.
When the car was full and
having returned the pump, he demanded his car keys. He handed the
keys to him. The accused then pointed
him with the firearm and
ordered him to go. He jumped with one foot away from the accused.
The accused drove off with the motor
vehicle. He heard people’s
voices and he screamed for help. He was taken to hospital where he
was admitted for a month. His
thigh is not fully healed as it is
painful at times. He has to attend checkup. He identified the white
Jetta motor vehicle in Exhibit
B7 photo 8 as his motor vehicle. When
the accused robbed him of his motor vehicle, the left from wheel was
not flat. The left front
window was not broken and the car did not
have a bullet mark. When the accused shot him on the thigh, he
pointed the firearm directly
at his thigh. He is the complainant in
count 27 which is Attempted Murder and count 28 being Robbery of the
motor vehicle with aggravating
circumstances. Mr Gerhardus Witbooi
is the complainant in count 26 and Mr Anthony van Zyl is the
complainant in count 25. Both
counts relate are Attempted Murder.
At the scene the forensic fieldworker, Inspector Fortein discovered 3
9 mm empty cartridges;
1 X R5 empty cartridges on top of the Isuzu
Van which Mr Van Zyl was serving.
THE OLYN FAMILY
INCIDENT
69. The deceased Mr
Donovan Patrick Olyn was driving his Corolla motor vehicle. He was
accompanied by his wife Macdolene Olyn, brother
and two children.
They were to drop keys at their business, Arthed Tavern. As they
were traveling Mr Fortune approached their vehicle
driving a white
Jetta belonging to Mr Visser. He collided and forced the Corolla out
of the road. Mr Olyn went out to inspect what
is happening. Mrs
Olyn noticed Mr Fortune who she knew point a firearm at her late
husband. The latter screamed at the accused
to make him aware that
it was himself Rasta, as he was commonly known. The accused shouted
informing them that he is hijacking them.
He then shot Mr Olyn at
close range. His daughter screamed, asking the accused what her
father had done for him to shoot him.
Mrs Olyn told the children to
flee as she also fled. When she looked back, she saw the accused
pull her husband away from underneath
the Corolla motor vehicle, and
thereafter drove with the Corolla motor vehicle leaving the Jetta on
the scene. They reported the
matter to the police. The accused left
pulling a white trailer which was hooked unto their motor vehicle.
The trailer was discovered
by Captain Jan Witbooi next to Uitsig at
Beeshoek. The Corolla motor vehicle is the one which the accused was
driving at the time
of his arrest at Beeshoek.
70. Mr Donovan Patrick
Olyn’s body was examined by the forensic Medical officer, Dr George
Albertus Isaacs on the 5
th
day of July 2002. According to
Exhibit D5, the following wounds were discovered:
i) Gunshot wound right
clavicle through the mediastinum with transaction of right common
carotid artery and trachea out through the
left ribs 3 and 4
posteriorly.
ii) Haeothorax left with
500 ml blood.
The cause of death is
described as “Hypovalaemix shock due to gunshot wound through the
mediastinum common carotic atery right and
left lung.”
The deceased is a victim
in count 30, being murder as well as in count 31 being Robbery with
aggravating circumstances.
71. Annexure “D” is a
document handed in in terms of Section 220 of Act 51 of 1977. It
contains admissions made by the accused.
He admit the contents of
the fact that the bodies of the deceased in the Murder counts did not
sustain any injuries other than those
found by the Forensic Medical
Officer. The medical findings are also admitted as correct. Exhibit
“D1” being the forensic result
of the blood specimen of the
accused indicate that the concentration of alcohol in the accused’s
blood specimen was 0,13 g per
100 milliliters. This aspect is
admitted by both the State and the defence.
72. The last witness for
the State was Dr Sean Kaliski, a specialist Psychiatrist and Head of
Psychiatric Unit at Valkenberg Hospital
since 1996. His experience
can in no way be questioned. He holds BA in Psychology and Law;
MBCHB; London Fellow of College of Psychiatry;
Masters Degree in
Medicine and Psychiatry and PHD. He has a vast experience in the
evaluation of defendants or accused persons in
violent crime sent for
evaluation. He led a team which evaluated and observed the accused
and prepared a report handed in as Exhibit
‘E’. The nature of
the enquiry included psychiatric interviews, physical examination,
assessment by clinical psychologist, observation
of ward psychiatric
nursing staff and occupational therapist, social worker’s report
and information from the Court. Their conclusion
is that:
1. Clinical Diagnosis:
Not mentally ill.
2. He
is not certifiable in terms of the Mental Health Act.
3. He
is fit to stand trial in terms of Section 77(1), and
4. He was able to
appreciate the wrongfulness of the alleged offence, and act
accordingly.
73. The
report also discloses the accused’s background as having a long
history of alcohol abuse and in 1998 he was admitted to
Aurora Clinic
for rehabilitation. He lost his employment in 1998. His drinking
has accelerated; at the time of the alleged offence
he had consumed
liquor. He accused his wife of an extra marital relationship. He
felt very angry.
DEFENCE CASE
74. What has been set
out above is the evidence as tendered by the State. The accused
closed his case without tendering any evidence.
It is within his
rights not to testify and an adverse inference can only be drawn from
the uncontroverted evidence of the State
and not from the accused’s
silence. See:
S v Brown
1996 (21) SACR 49
(NC).
75. The accused’s
defence is that as a result of an incident with his wife on the day
of the incident he lost total control over
himself and cannot
remember what he commenced. He had no intention to kill or injure
anybody or cause damage. The details of the
incident with his wife
have not been disclosed in his plea explanation or in evidence.
Reliance will be place on the proven and
undisputed facts in the
State case.
76. The basis of the
accused’s defence is temporary non-pathological criminal
incapacity. This can be inferred from the use of
the words that he
“lost total control over himself”and that “cannot remember what
he started or did”. Supreme Court of appeal
has not settled what
is referred to a confusion caused in interpreting previous decisions
of the Supreme Court of Appeal and has
restated the test in
S v
Eadie
2002(1) SACR 663(A) at 666 a – d as follows. That the
State bears the
onus
to prove that an accused person had
criminal capacity at the relevant time. The approach is:
(i) in
discharging the
onus
the State is assisted by the natural
inference that in the absence of exceptional circumstances a sane
person who engages in conduct
which would ordinarily give rise to
criminal liability, does so consciously and voluntarily;
(ii) an accused person
who raises such a defence is required to lay a foundation for it,
sufficient at least to create a reasonable
doubt on the point;
(iii) evidence
in support of such a defence must be carefully scrutinised;
(iv) it
is for the Court to decide the question of the accused’s criminal
capacity, having regard to the expert evidence and all
the facts of
the case, including the nature of the accused’s actions during the
relevant period.
77. Mr
Schreuder argued on behalf of the accused and submitted that there
are circumstances which form the basis for the accused’s
defence.
These aspects are all found in the State case and are common cause.
The fact that the accused had marital problems and
accused his wife
of infidelity. Whether the accusation was false or not remained a
perception which affected him adversely. He
lost his employment as a
police officer which he liked so much. All attempts to secure
employment were unsuccessful. He has a history
of alcohol abuse and
on the day of the incident he had consumed alcohol. He was denied
his opportunity to talk with Mr Koopman
to address his problems by
the presence of his wife and in-laws in the bedroom. There was a
threat of divorce by the wife. His
children were taken away from
him. He was emotionally distressed.
78. Mr Nekosie on
behalf of the State argued that all the above circumstances did not
qualify the accused as a candidate for the defence
of sane
automatism. Dr Kaliski’s evidence is of assistance. Incidentally
he also testified in the case of
S v Eadie
and the test laid
down by him met the Court’s approval. This view is that a person
claiming to have acted as the accused should
have been in a state of
sane automatism which is caused by a great deal of stress producing a
state of internal tension building
to a climax which in most cases is
reached after enduring ongoing humiliation and abuse. It may be
derived from epilepsy. During
such a state a person’s mind is
absent. He is unable to engage in purposefully goal directed
behaviour, which is not very well
rehearsed. He/she usually claims
amnesia. The defence according to him, has to be truly exceptional.
It is a behavior which is
stereotyped and should not last long. It
must be of relatively brief duration. It will fit a person who
incidentailly by chance
picks up a weapon next to him and over a
second or minute strikes a person or per chance kills the victim.
79. He testified that it
is common for people to lose their temper and commit regrettable acts
when they should have known better.
He confirmed an example of a
soccer player who tackles an opponent from behind blatantly in full
view of the referee and his assistants
and claim to be innocent. The
accepted approach is to consider the accused’s focused and
goal-directed conduct before, during
and after the incident in
question in relation to his state of mind.
80. Considering the
accused’s conduct, once again as extracted from the State’s
evidence as I never had the benefit of the accused’s
version and
evidence, the following aspects cannot be ignored:
1. the accused quarreled
and assaulted his wife inside the house and she fled.
2. after
a lapse of 10 – 15 minutes he goes outside and this time with a
knife and fight her again outside, and cut her with the
knife.
3. he
returns to the house with the knife wherein he locked himself.
4. after
a long time Rev Koopman came with his in-laws and after some talk and
an agreement about an appointment for the following
was concluded.
5. he
stays alone in the house having been left calm by Rev. Koopman.
6. after
sometime he takes the knife and walks to the Police Station.
7. with
the knife he overpowers sergeant Lock and takes the arms and
ammunition. This include a heavy automatic weapon.
8. he
fires no shots at the Police Station. He walks up to the shopping
complex.
9. he
chooses his target places such as Toms Café, Tavern, Score
Supermarket and Petrol filling station. At these places he knows
there are people.
10. He
secures transport and ensures that it has sufficient petrol.
11. he
is in a position to phone his wife’s cellphone and as Dr Kaliski
says, he is able to punch the correct numbers into the phone.
12. He
abandons a trailer which could have caused him inconvenience when he
drives around.
13. From
the evidence it seemed he chose Beeshoek Compound or mine area as a
hiding place.
14. He
invites Rev Koopman to see him at Beeshoek not himself going to him
as he had the transport in the form of a Corolla motor
vehicle.
15. he threatened to take
his own life with bullets.
16. when he sees the
police he runs away and stop when shots are being fired.
17. he complies with the
instructions when being arrested.
18. the possibility is
that he knew that was is in danger when he had no bullets left in his
possession to resist arrest.
19. According
to Dr Kaliski he was in a position to relate a step by step account
of what happened and evenly contradicted state witnesses
where
necessary.
70. From
what I have said it shows that the events endured for a long time
which negative any idea of automatism. There is no evidence
from his
side to suggest when he regained the control over himself. I am of
the view that the accused was very angry on this day
and that alcohol
intake contributed to his frustrations. He decided to vent his anger
by being violent and destructive. He performed
all his actions with
the presence of his mind. He could appreciate the wrongfulness of
his actions and did not care about the consequences.
He was in full
control of himself because he was not acting in a state of
automatism.
71. The following
words of the Supreme Court of appeal in
S v Eadie
(supra) at
690 c are instructive to this Court.
“
no
self-respecting system of Law can excuse persons from criminal
liability on the basis that they succumbed to temptation …
One
has free choice to succumb or to resist temptation. If one succumbs
one must face the responsibility for the consequences.”
At p 693 g the Court had
the following to say:-
“
The
deceased’s aggressive and provocative behavior did not entitle the
appellant to behave as he did. It must now be clearly understood
that an accused can only lack self-control when he is acting in a
state of automatism. It is by its very nature a state that will
be
rarely encountered. In future, courts must be careful to rely on
sound evidence and to apply the principles set out in the decisions
of this Court. The message that much reach society is that
consciously giving in to one’s anger or to other emotions and
endangering
the lives of motorists or other members of society will
not be tolerated and will be met with the full force of the law.”
I am therefore satisfied
that the State has succeeded in disproving the defence of non
pathological incapacity beyond a reasonable
doubt.
Count
1
: with Intention to Cause Grievous Bodily Harm
Both
Mrs Fortune and Rev Koopman were reliable and satisfactory witness
who corroborated each other in all material respects. The
State has
succeeded in proving the guilt of the accused beyond a reasonable
doubt. The accused is
committed as charged
.
Count
2
: with aggravating circumstances
Sergeant
Lock being a single witness was a satisfactory and a reliable witness
who did not contradict himself in any material respect.
The evidence
shows that the accused used a knife to rob a police officer of the
items listed in the charge sheet at Postmasburg
Community Service
Centre. Inspector Hansen’s evidence corroborates Sergeant Lock’s
evidence. The State has discharged its
onus
and as a result
the accused is
convicted as charged
.
Counts 3 &
4
: of Section 32(1)(a) read with Sections 1.32(7), 39(1)(h) and
39(2)(aA)(ii)(aa) of Act 75 of 1969.
There
is overwhelming evidence by most of the State witnesses that the
accused was in possession of an R5 machine rifle. There is
evidence
that he possessed 60 R5 ammunition. The evidence of Inspector S V G
Jacobs that an R5 is a machine rifle was not disputed.
The State has
discharged its
onus
and the accused is
consequently
convicted on both counts
.
Counts 5 &
6:
of Section 2 read with sections 1.39(1)(h) and 39(2)(a)(i) of
Act 75 of 1969.
The
evidence reveals that the accused was in possession of a 9 mm
Parabellum caliber Walther Model P38 pistol and a 9 mm Parabellum
Vektor model Z88 with the necessary licences. There is no doubt that
he possessed the ammunition without having the licence for
the
firearms out of which the ammunition could be fired. The accused is
consequently
convicted of counts 5 and 6 as charged
.
Count
7
: Murder
I
am satisfied that the accused fired shots at the motor vehicles in
which Rosina de Wee was seated and reasonable foresaw that the
bullet
might kill her
. He is consequently convicted as charged
.
Count
8
: Murder
By
firing shots at the passing Reinecke family he satisfied the
requirements of
dolus eventualis
is
consequently
convicted as charged.
Count
9 and 10
: Murder
These
counts relate to the attempted murder of Johannes Botha and Tofarides
at Score Supermarket. Mr Botha in his evidence states
that he was at
the fruit and vegetables shelves and a shot was fired in that
direction. It struck the refrigerator. I am not satisfied
that
count 9 has been proved beyond a reasonable doubt. The evidence of
Mr Tofarides, the complainant in count 10 is that he spoke
to the
accused in an attempt to calm him down and he pointed a firearm at
him and fired a shot. This is the bullet that struck the
refrigerator. I am satisfied that count 10 has been proved beyond a
reasonable doubt. The accused is
found not guilty of count
9
and is
found guilty of count 10.
Counts
11, 12, 13, 14
: Murder and Murder
The
attempted murder on Mr Abednigo Bear, Catharina Dauth and the Murder
of Mr Francois Arnols Dauth have been proved beyond a reasonable
doubt and the accused is
found guilty of counts 11, 12 and 14.
The
attempted murder of Shirley Vorster and Betta Barends have not been
proved beyond reasonable doubt, and the accused is consequently
found not guilty and discharged of count 13
. In count
14 I make a finding that the accused had direct intent to kill Mr F A
Dauth in count 14.
Count
15
: Murder
With
regard to the attempted murder of Ruben Sebako doubt exist in my mind
as to whether the accused attempted to kill him. There
is
insufficient evidence relating to the manner in which he sustained
the injuries. The accused is entitled to the benefit of the
doubt
and is found
not guilty and discharged
.
Counts
16, 17, 18, 19, 20, 21,22
: Murder and Murder
As
outlined before in relation to the events at the Tavern I am
satisfied that the State has proved
dolus evantualis
on the
part of the accused.
All
the witnesses corroborated each other about the events inside the
Tavern. They were satisfactory witnesses and were corroborated
by
the findings of Inspector Fortein. The accused is consequently found
guilty on all these counts
.
Counts
23 & 24
: Murder and Robbery with Aggravating
Circumstances
In
these counts the accused fired shots at a motor vehicle in which
Sabel Esau, Haratio Bessies and Khudugo Mocwane were the occupants.

He had
dolus eventualis
, and as a result of the use of the
firearm he manage to dispossess them of their red Golf motor vehicle.
I am satisfied that the
State has succeeded to proof the guilt of
the accused beyond reasonable doubt and he is
found guilty on
both counts.
Count
25
: Murder
These
counts relate to the Petrol attendants at Schoeman Motors. Mr
Anthony van Zyl’s evidence clearly indicated that having heard
shots being fired he ran for his life. He says in his running he
heard something moving past his head at high speed. I do not have
satisfactory evidence that a firearm was pointed at him and fired.
It should be remembered that as he was frightened he could have
genuinely believed that a bullet went past him. This is not the only
inference that can be drawn under the circumstances. The accused
is
entitled to the doubt that exist and he is consequently
found
not guilty and discharged of Attempted Murder.
Count
26
: Murder
This
count relate to Mr Gerhardus Witbooi who is a petrol attendant at
Schoeman Motors. His evidence revealed that the accused pointed
him
with a firearm against his head and instructed him to fill up the car
with petrol. He offered the money bag which the accused
did not
accept. As pointed out earlier he managed to escape and as he turned
at the corner of the Motel a fire went past him and
he believed that
it was a bullet. On the same reasons I am not satisfied that a
charge of Attempted Murder has been proved beyond
a reasonable doubt.
The evidence proves the charge of pointing of a firearm. The
accused is therefore not found guilty of Attempted
Murder. In terms
of Section 258 of Act 51 of 1977 the accused is
found guilty of
Contravention of Section 39(1)(i) read with Sections 1 and 39(2)(d)
of Act 75 of 1969 i.e. Pointing of firearm.
Count 27 &
28
: Murder and Robbery with Aggravating Circumstances
This
count relate to Mr Jacob Visser about the incident at Schoeman
Motors. The complainant’s evidence indicate that the accused
was
close to him and he pointed a firearm at his leg and shot him on the
thigh. I am not convinced that with this evidence that,
the accused
made an attempt to kill Mr Visser. The evidence proves that by
shooting him directly on the thigh he intended to injure
him and
render him immobile. This was done immediately after one of the
petrol attendants fled. The accused is
found not guilty of
Attempted Murder
. In terms of Section 258 of Act 51 of 1977
he is
found guilty of Assault with intent to cause grievous
bodily harm
. Regarding
count 28 he is found guilty as
charged
.
Count
29
: of a Firearm
As pointed above the
accused pointed Mr Andries Jacobus Burger with a firearm and held his
shoulder with the other hand and directed
him to a motor vehicle. He
is found guilty as charged.
Count 30 &
31
: and Robbery with Aggravating Circumstances
These charges relate to
Mr Donovan Patrick Olyn. The accused shot at him at close range and
killed him. He shot him on the chest.
The post-mortem examiner
observed that:-
“
The
bullet entered the right anterior chest above the clavicle and passed
through the upper lobe of the right lung, the medial end
of the
clavicle, transected the right common carotid artery and the trachea,
fractured the 2
nd
thoracic
vertebra, passed through the upper lobe of the left, deflected off
the 2
nd
rib and passed through the 3
rd
and
4
th
ribs posteriorly on the left
to
exit through the left scapula posteriorly.”
This
is in my view clear instance of
dolus directus
. One should
bear in mind that the accused as a policeman underwent training in
specialized weapons in Oudtshoorn in 1995
. The accused is
convicted of counts 30 and 31 as charged.

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