IN THE HIGH COURT OF SOUTH AFRICA
(\VESTERN CAPE DIVISION, CAPE TOWN)
In the matter between:
SAKHIWO KOBE
and
THE STATE
JUDGMENT
REPORTABLE
APPEAL CASE NO : 04/2022
CASE NO SSD240 /2019
APPELLANT
Neutral citation: Kobe v The State (Appeal Case no: 04/2022) [2025]
ZA WCHC (27 October 2025)
Coram: SHER, J et MA YOSI, AJ
Heard: 12 September 2025
Delivered: 27 October 2025
2
Summary: Appeal against conviction by Regional Court, Strand, of the
competent verdict of assault to do grievous bodily harm - fair trial rights in
the absence of forewarning regarding competent verdict - accused
represented.
ORDER
1 On appeal from: The Regional Court, Strand, against conviction.
2 The appeal is dismissed, and the judgment of the court a quo on
conviction is confinned.
JUDGMENT
Mayosi AJ (SHER J concurring):
Introduction
[I] This is an appeal against conviction only.
[2] The appellant, a serving police officer in the South African Police
Service (SAPS), was arraigned in the Regional Court, Strand, on a charge of
attempted murder in that, on 28 October 2016 whilst he was on duty, he
unlawfully and intentionally attempted to kill Mr Siphenathi Foto with a
firearm.
[3] He pleaded not guilty to the charge.
3
[4] Five witnesses were called by the State in the trial, namely:
[a] Mr Siphenathi Foto, the complainant in the case;
[b] His sisters, Ms Ncebakazi Foto (Ncebakazi) and Ms Akhona
Foto (Akhona);
[c] Mr Richard Foto, the complainant's father (Mr Foto); and
[ d] Mr Andile Tshongweni (Andile ), a friend of the complainant
who was present on the night on which the incident in question
occurred.
[ 5] On 30 September 2022 the appellant was found not guilty of attempted
murder, but guilty of the competent verdict of assault with intent to do
grievous bodily hann.
[ 6] On 10 October 2022 the appellant was sentenced to a fine of R6000 or
6 months imprisonment, wholly suspended for a period of 3 years on condition
that he is not convicted of assault committed during the period of suspension.
[7] The appeal is with the leave of the court a quo.
Relevant background facts
[8] The incident occurred at about 23h00 on the night of 28 October 2016
at Greenfields, Strand.
[9] The complainant was walking with four friends down Ralarala Street
returning from a tavern in the area, when a marked p_olice vehicle came driving
slowly down the road. Andile was one of the friends who were with the
complainant.
[10] After the complainant saw his cousin across the street, he crossed the
road to go and talk to him whilst his friends remained on the other side of the
street. The complainant's sister, Ncebakazi who was then at a nearby shop,
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testified that she saw the group on Ralarala Street that night. She saw her
brother cross the road, as well as the police van driving slowly down it.
[11] After the complainant crossed the road, the police van, which was
positioned between him and his friends, continued to drive at a low speed such
that it did not pass them as they walked in the same direction as the van was
driving down Ralarala Street. The complainant was on the side of the road
that was adjacent to the driver, whilst his friends, including Andile, remained
on the side of the road that was adjacent to the passenger in the vehicle. After
his brief conversation with his cousin, the complainant continued walking on
Ralarala Street towards his home which was close by on the same street, where
he lived with his father Mr Foto.
[12] The SAPS officers in the vehicle then called out to the complainant and
told him that they wanted to search him. He told them that he was in a hurry
and did not accede to their request. He testified that he was in any event close
to his home already; and in this regard, he was heard by Ncebakazi telling the
occupants of the police van: "No bra, I'm at home". The complainant
testified that as he understood his rights as a citizen, they included the right to
refuse to submit to a police search. He testified that he was exercising his
rights as a citizen on that evening when he refused to be searched by the
police.
(13] The police van then accelerated at speed towards the complainant and
believing that the police wanted to hit him with the vehicle, he ran around it
and crossed the road again ( back to the side that he had crossed over from,
which was adjacent to the passenger in the police van), and ran away. The
complainant testified that an additional reason for him running away after the
van accelerated towards him was fear of being assaulted by the police, whom
5
he said were known to do this sometimes to people that they found in the
streets at night.
[14] In his evidence, Andile confirmed that after a short while of them
walking in this formation, he heard and saw the police van drive faster towards
the complainant as if they wanted to bump him, and the complainant then ran
away across the street.
[15] After he had crossed the road, as he was running away from the police
van, the complainant fell. He stood up and continued running; and as he was
doing so, he heard a gunshot coming from the direction of the police van. He
looked back and saw the appellant alighting out of the police van and he
continued to run away. The gunshot was also heard by Ncebakazi, although
she did not witness the incident unfolding.
[ 16] Andile testified that after the police van had come to a stop, the
appellant had alighted from the passenger seat and fired a shot at the
complainant whilst he was running away. The shot hit the complainant in the
back, and when he was shot, the complainant was facing forwards with his
back towards the police van, as he was running away. Andile's evidence was
that the complainant, whom he spent some time with that night, did not have
a weapon on him.
[ 17] After be heard the gunshot and continued running, the complainant
started to feel unwell - a sensation from the back to the front of his chest, as
though something had struck him. He showed the court a quo where a bullet
had struck him - on the right-hand side of his back below the shoulder blade.
He ran until he reached his sister, Akhona's house. When he arrived there, he
felt he had no strength. He told his sister that he had been shot by the police.
6
[18] In her evidence Akhona confirmed that this is what occurred after the
complainant arrived at her house, running, at about 23h00 that night. She saw
that he had been shot in the back 'on' his shoulder.
[19] Akhona and her friend helped the complainant to their father's home,
which was not far from her house. On the way, they were seen by Ncebakazi
who joined them as they proceeded to their father's house, after Akhona told
Ncebakazi that the complainant had been shot.
[20] En route to their father's house, they met up with the same police van.
Akhona said that the complainant told them that those were the police who
had shot him. According to the complainant, and as corroborated by Akhona,
the occupants of the police van called him over to them, to talk they said. The
complainant refused, for the reason that they had already shot him.
[21] After they arrived at Mr Foto' s home, Akhona and N cebakazi told their
father what had happened and Mr Foto took the complainant to the police
station. Mr Poto confinned that when he was brought to his house, the
complainant had been shot in the back, on his shoulder. Akhona testified that
her brother was crying at this point, saying that the bullet was burning him.
An ambulance took the complainant from the police station to Helderberg
Hospital where he was examined, x-rayed, treated and kept overnight for
observation.
[22] Mr Foto testified that later that night when he returned to his home from
the hospital, members of the community were gathered there and there were
many policemen as well, some of whom were policemen that he had met
earlier at the police station. One of these members called him and pointed out
to him two of his colleagues, who he said were the ones who had shot hjs son.
Mr Foto asked one of the two why they had shot his son. The SAPS member
7
he spoke to replied that it was not him who had shot the complainant; but
rather his colleague -the appellant.
[23] Mr Foto's evidence was that when he asked the appellant why he had
shot his son, he said that he suspected him of being in possession of
something, which he did not specify. In cross-examination, this conversation
was denied in the version that was put to Mr Foto, but it was alleged that the
appellant did suspect the complainant of carrying an object that looked like a
gun. Akhona confinned that she observed the interaction between her father
and the two policemen. She overheard the first policeman telling her father
that it was not him who had shot his son, but the appellant.
[24] The complainant testified that he took a long time to heal from his
gunshot injury. The bullet remains inside him. He still feels the pain,
especially on days with inclement weather. He tires easily and is unable to
work for long periods.
[25] The appellant's version was put to the complainant and other State
witnesses during their cross-examination, and it was said that the appellant
and his colleague, Sergeant Mawela would testify as follows for the defence:
[a] They accelerated the police van to give chase to the complainant.
[b] They wanted to search the complainant because he had acted in
a peculiar way by crossing the road; and they had noticed that he might
be carrying a firearm. When he ran away, they suspected that the
firearm was unlicensed, and therefore they wanted to arrest him.
[ c] As the complainant was running away with the fireann that they
would say was on the complainant's waist, they observed that he was
about to fire towards them. The complainant's failure to heed their
instruction, coupled with his fleeing from them led them to feel that the
complainant posed a threat to them.
8
[ d] As the complainant appeared to be turning to fire a shot at the
police, the appellant fired a shot in his direction.
[ e] The appellant fired the shot in order to stop the complainant from
fleeing, and in order to minimise the threat that he posed to the police.
[26] The complainant denied that he was carrying a firearm. This was
corroborated by Andile, who testified that at no stage during the time that he
was with the complainant that night did he have a gun on him.
[27) Neither the appellant nor Sergeant Mawela testified, for after the
appellant's application in terms of section 174 of the Criminal Procedure Act
51 of 1977 (the Act) was dismissed, the appellant elected not to testify and
closed his case without calling any witnesses in his defence. The appellant
was represented at all times during the trial.
[28] The appellant was entitled to elect not to testify, as part of his fair trial
rights entrenched in section 35(h) of the Constitution. The fact that an accused
is under no obligation to give evidence, however, does not mean that there are
no consequences attaching to their decision to remain silent when on trial. If
there is evidence calling for an answer and an accused person chooses to
remain silent, a court may well be entitled to conclude that the evidence is
sufficient, in the absence of an explanation, to prove their guilt.
[29] In Tshakwata & another v S, 1 the Supreme Court of Appeal held that
"[w}hilst the failure of the accused to testify may in appropriate
circumstances be a factor in deciding whether their guilt has been proved
beyond a reasonable doubt by the State, this is permissible only when the State
has at least established a prima facie case." The issue therefore, remains
whether or not the State has proved its case beyond a reasonable doubt.
1 [2014) ZASCA 45; (} also reported sub nom? S v Gerson 2014 JDR 0061 (SCA) at [10]).
9
[30] In deciding whether or not a prima facie case which has been made out
by the State has been converted into a case proved beyond reasonable doubt,
an accused's silence may weigh against him, because they could easily have
refuted the prima facie case by their evidence, if it was not correct.2
[31] Where, as in the present case, the State's case is based on direct
evidence, an accused's failure to answer credible evidence would lead to the
State's case being proved beyond reasonable doubt.
[32] In this case, the direct evidence presented by the State implicating the
appellant in the commission of the crime was as follows:
[a] The complainant was close to his home when the SAPS vehicle
accelerated towards him, which caused him to run away. This is
corroborated by Andile.
[b] The complainant was shot whilst he was running away, at a time
when his back was turned to the police and he was facing forwards.
When, after hearing the gunshot, he looked back, he observed the
appellant getting out of the passenger side of the police van. This is
corroborated by Andile, who testified that he saw the appellant shoot
the complainant whilst he was running away.
[ c] The fact that the complainant was shot by a member of SAPS at or
near Ralarala Street on 28 October 2016 is not disputed. The appellant
and the driver of the police van were, at the relevant time, the only
SAPS members present, conducting patrols.
[ d] Andile 's evidence was that it was the passenger in the police van,
namely, the appellant, who shot the complainant. This corroborates the
2 See R v Ismail 1952 (1) SA 204 (A); S v Nkombani & another 1963 (4) SA 877 (A); S v Mthethwa 1972
(3) SA 766 (A).
lO
complainant's evidence that after he heard the gun shot, he looked back
and saw the appellant coming out of the van.
[33] It was never disputed by the appellant that the complainant was shot
that evening; or that the injury he sustained was a gunshot; or that the reason
that he was admitted to Helderberg Hospital that night was due to a gunshot.
It was never put to the complainant, or Andile, that the appellant did not fire
a shot at the complainant; or that the shot that was fired did not strike the
complainant.
[34] What was put to the complainant during cross-examination was that the
appellant would testify that he did not know whether or not the shot he fired
in the direction of the complainant had in fact struck him. If, going into the
trial the appellant did not know that the shot he had fired in the direction of
the complainant had in fact struck him, then it ought to have been clear to him
after the evidence of the complainant and Andile, as well as the remaining
witnesses, that there was now prima facie evidence that it did.
[35] The version that it was said would be testified to by the appellant was
one which placed him at the scene at the relevant time; and included the
prospect of the appellant testifying that he did, in fact, fire a shot in the
direction of the complainant in order to: ( 1) stop him and arrest him; and (2)
prevent him from posing a threat to the SAPS members. In other words, there
was prima facie evidence before the court a quo that the appellant intended
the shot that he fired to strike the complainant, in order to defuse or subdue
him.
[36] The magistrate found that the appellant had a case to answer, given that
the State witnesses placed him at the scene of the crime, and that, with
reference to his version as put to the State witnesses during cross examination,
the appe11ant had sought to explain the complainant's conduct that led to him
11
being shot, which on its own demonstrated that he did not dispute that he was
one of the two officers at the scene and that he knew what had transpired that
night, culminating in the complainant being shot. Furthermore, the
magistrate concluded that it was clear on the evidence before her that the
bullet that struck the complainant was fired from the firearm allocated to the
appellant who, according to his line of cross-examination, had an encounter
with the complainant.
[37] The magistrate, who saw and heard the witnesses and was steeped in
the atmosphere of the trial, made no adverse credibility findings against any
of the State witnesses, nor did she impugn the reliability of their evidence. In
the circumstances, I find no reason to reject or interfere with her factual
findings.
[38] The appellant's election not to place his version in the fonn of evidence
before the trial court had the effect that there was no evidence to gainsay the
prima facie evidence presented by the State implicating him in the
commission of the offence, which included the direct evidence of Andile that
he saw the appellant shoot the complainant as he was running away.
[39] There is another aspect in relation to which the appellant's failure to
testify did not assist his defence, namely, his purported reliance on section
49(2) of the Act for his actions on the night in question, which he suggested
he would testify about but elected not to. Section 49(2) permits the use of
force in effecting an arrest.
[40] In this regard, it was not put to the complainant that the appellant was
attempting to effect an arrest of him that night; or, crucially, that it was clear
to the complainant that an attempt to arrest him was being made .
[41] Section 49(2) sets out a number of requirements for the successful
invocation of its provisions, which include that the person against whom the
12
force is used must be a 'suspect' as defined in sub-section (1) .i.e. 'any person
in respect of whom an arrestor has a reasonable suspicion that such person
is committing or has committed an offence. '
[ 42] The entertaining of a reasonable suspicion embraces two distinct
requirements: that the arrestor subjectively entertains the relevant suspicion
(in casu the appellant's suspicion that the complainant was committing or had
committed an offence); and that there were reasonable grounds for
entertaining this suspicion. The appellant's subjective state of mind was
therefore a vital piece of evidence for his successful invocation of a defence
under this section. However, no evidence as to his state of mind was put
before the trial court, and it has been held that where an accused's state of
mind is involved the court may find difficulty in finding in bis favour where
he has not given evidence about it. 3
[43] The following contention is made in the appellant's heads of argument
in support of his purported section 49(2) defence: "The incontrovertible
version here is that the police had observed a shiny object on the person of
the complainant, who was then believed to be unlawfully carrying a firearm. "
[ 44] There are a number of difficulties with this contention.
[a] First, the appellant's version was nothing more than that - a
version. He gave no evidence to support it, as a consequence of which
it could not be tested.
[b] Second, the appellant's version that the complainant was
carrying a firearm was denied by him, and this was corroborated by
Andile. This evidence was not gainsaid.
[ c] Third, carrying a firearm is not, without more, unlawful.
3 Union Government (Minister of Railways) v Sykes 1913 AD 156 at 173-4; S v Kola 1966 (4) SA 322
(A); R v Deetlefs 1953 (1) SA 418 (A).
13
[d] Fourth, the appellant placed no evidence before the trial court to
demonstrate that his suspicion that the alleged firearm was 'unlawful'
was based on reasonable grounds.
[ 45] Whilst the appellant under this ground of appeal complains that his
version cannot be rejected on the grounds that it appears improbable, it bears
remembering that the appellant placed no evidence before the trial court in
support of his version. In truth, there was no section 49(2) defence that was
properly mounted by the appellant and supported by the necessary evidence
before the court a quo. In the circumstances, this issue does not arise for
consideration in this appeal.
[ 46] I turn now to consider the appellant's main grounds of appeal.
There was no evidence supporting the competent verdict
[ 4 7) The appellant contends that the court a quo misdirected itself in finding
him guilty of assault with intent to do grievous bodily harm.
[ 48) In support of this ground of appeal the appellant contends, in the main,
that there is a material incongruence in the court quo's reasoning in finding
him guilty on the competent verdict, having acquitted him of attempted
murder in the circumstances of this matter.
[ 49] This contention cannot be sustained when regard is had to the
magistrate's reasoning in the court a quo, as well as the provisions of section
258(2) of the Act.
[50] The magistrate acquitted the appellant on the more serious charge of
attempted murder primarily because of the State's failure to lead the evidence
of either the doctor who examined the complainant, or the doctor who
completed the J88 medical report in the absence of the doctor who examined
14
him. The magistrate reasoned that attempted murder is a serious offence and
it was therefore necessary for the doctor to explain not only the nature of the
injuries sustained by the complainant, but also how such injuries might or
could have led to his death; and in the absence of such valuable evidence, the
court a quo had no basis upon which to conclude that the appellant had
attempted to kill the complainant.
[ 51] The magistrate thereafter found, rightfully in my view, that the matter
did not end there.
[52] Section 258(b) of the Act stipulates that if the evidence on a charge of
murder or attempted murder does not prove either of these offences as the case
may be, but the offence of assault with intent to do grievous bodily harm, the
accused may be found guilty of such offence.
[ 53] In further support of this ground of appeal, the appellant contends that
once the court a quo had accepted that the essential element of unlawful
conduct was absent in that it could not be proved that the bullet which struck
the complainant came from the complainant's firearm, the issue of a
competent verdict did not even arise.
[54] This contention is unfounded, for nowhere in its judgement did the
court a quo accept: (1) that the element of unlawful conduct was absent; or (2)
that it could not be proved that the bullet which struck the complainant came
from the appellant's firearm. On the contrary, as I have referred to above, the
magistrate found, in terms, that it was clear that the bullet that struck the
complainant was fired from the firearm allocated to the appellant. According
to his own version which was put to the State's witnesses during cross
examination, he confirmed that he had an encounter with the complainant on
the night in question; essentially placing himself at the scene of the crime that
the State's witnesses had testified about.
15
[55] Furthermore, the magistrate found that by means of this very same line
of cross*examination, the appellant had set out what he said would be his
evidence of the circumstances that led to him shooting in the direction of the
complainant, which demonstrated that the appellant admitted that he was one
of the two officers involved, otherwise he would not have lmown what
transpired.
[56] There is no incongruence in the magistrate's reasoning, given the court
a quo's powers in section 258(b) of the Act and her factual findings in this
case. I find no reason to interfere with the magistrate's factual findings and
reasoning on this score. The magistrate was also correct in finding that the
nature of the assault which the appellant perpetrated constituted more than an
ordinary assault, and was one committed with intent to at least cause serious
bodily harm, a consequence which any reasonable person firing a gun at
another would foresee.
Absence of forewarning regarding the competent verdict
[ 57] The chargesheet did not state that the State intended to pursue a
competent verdict in terms of section 258(b) in the event that the crime that
was specifically charged was not proved. The magistrate raised the issue of
competent verdicts for the first time in the course of the trial, during the
prosecutor's address opposing the appellant's application for a discharge in
terms of section 174 of the Act, after which the appellant's counsel had the
opportunity to respond and address the issue as raised. The State accepted that
assault with intent to do grievous bodily hann was indeed a competent verdict
in this case, but nevertheless contended, incorrectly in my view, that it was
not relevant in this particular instance.
16
[58] According to the appe11ant, these circumstances raise the following
issues in this appeal.
[a] First, whether an accused who has not been forewarned by either
the State or a court of the possibility of a conviction on a competent
verdict, even where such accused is legally represented, may be so
convicted.
[b] Second, whether it is open to the court to convict an accused on
a competent verdict, even where the State categorically rejects a
conviction on the basis thereof, as is said to have happened in this
matter.
[59] The first question is not novel, and the facts of this case raise no new
legal issues in that regard. The legal prescripts that answer this question have
been crystallised by the courts into the following principles.
[ 60] An accused has a right to know the case he has to meet, which finds
expression in section 35(3)(a) of the Constitution. It is, however, not
necessary that competent, alternative verdicts should formally be mentioned
in the charge sheet. 4
[61] The legality of competent verdicts is subject to the principle that the
accused should not be prejudiced in the presentation of their case. In S v
Mwali,5 the Appellate Division (as it then was) held as follows:
'That would be a competent verdict in terms of section 264( 1 )(b) of the Criminal
Procedure Act 51 of 1977. The possibility of such a conviction was not brought to
Mwali's attention at any stage, but the decided cases show that that is not
4 S v Velela 1979 (4) SA 581 (C).
5 1992 (2) SACR 281 (A). The accused had been charged w ith theft which could not be proved on the
facts. The State then pursued conviction for a competent verdict under section 36 of the General Law
Amendment Act 62 of 1955.
17
necessarily a bar to such a course. It is weU established that it is desirable that, if
the State contemplates asking for an alternative verdict in terms of s 264(1), the
offence concerned should be formally charged as an alternative, or it should be
brought to the notice of an accused during the course of the trial that he can be
convicted of one of the offences mentioned in section 264(1 ). Even though neither
course be followed, however, the accused would not be entitled to succeed in an
appeal against or review of the conviction unless it appeared that he was prejudiced
by the failure. '6
[ 62] Prejudice is a question of fact,7 and there can in principle be no
prejudice if the accused, as in the present case, had legal representation. See
in this regard, the decision of the Supreme Court of Appeal in S v Jasat.8 The
accused was aware, before he elected not to give evidence and thereafter
closed his case, that the court a quo was considering a competent verdict in
terms of section 258 of the Act. His counsel had the opportunity to address
the court a quoin this regard when he applied for the appellant's discharge at
the end of the State's case, and the record shows that he did in fact do so. It
must therefore have been clear to the appellant and his counsel that, on the
basis of the evidence which had been tendered by the State he was potentially
at risk of being convicted on the alternative, competent verdict of assault with
intent to commit grievous bodily harm, if he did not put up any evidence to
countervail it. Despite knowing this the appellant chose not to put up any
evidence. No issue of prejudice was asserted by the appellant, before the court
a quo and in this appeal; nor, given the circumstances, could he.
(63] As to the second question posed by the appellant, the State's view in
the court a quo that a competent verdict was not relevant in this particular case
6 At 284B- D.
7 See generally R v Dayi & others 1961 (3) SA 8 (N), at 9D - G; and S v Velela, supra at 5860.
7 See generally R v Dayi & others 1961 (3) SA 8 (N), at 9D - G; and S v Velela, supra at 5860.
8 1997 (I) SACR 489 (SCA) 493H - 494A.
18
patently did not accord with the applicable statutory provisions. It did not in
any event preclude the court a quo from itself considering the applicable
competent verdicts, a position which was confirmed in S v Marothi,9 where
it was held that presiding officers have a responsibility to consider competent
verdicts on a specific charge and should not leave it to prosecutors to alert
them thereto .
[ 64] In the circumstances of this case, the court a quo applied the correct
legal principles in its consideration of the accused's fair trial rights in the
context of how the issue of the competent verdict was raised during the course
of the trial. The trial court's conclusion that there was no prejudice to the
accused cannot be faulted by this Court, and accordingJy, there can be no
vitiation of the trial for this reason.
The J88 and the ballistic report
[65] The appellant sought to make much of the fact that the evidence of the
doctor who completed the J88 was not led at the trial; and the contents of the
J88 itself were not proven in evidence by the State. These contentions were
rather cynical, considering that the J88 was introduced into the proceedings
by the appellant's counsel, who sought to refer to its contents in advancing
the appellant's defence. The submission that was made was that the angle at
which the bullet struck the complainant was critical in deciding the matter,
as it would explain whether it was a direct hit or perhaps ricocheted off another
surface before it hit him. It was also pointed out thatt according to the findings
of the doctor who examined the appellant there was uncertainty as to whether
9 Referred to by Du Toit et al in Commentary on the Criminal Procedure Act, [Service 68, 2022), at 26 4.
19
the bullet which struck him entered his body, as it could not be found on
examination. Notwithstanding this, however, the examining doctor concluded
that the appellant had sustained a gunshot injury.
[ 66] As for the ballistics report, the submission was that it had not been
proven that the complainant was struck by a bullet emanating from the
appellant's service pistol and, on the evidence, it could not be said for certain
that the complainant was indeed struck directly by a shot fired by the
appellant.
[67] I fail to see the relevance of these submissions, when regard is had is to
the totality of the factual evidence that was before the trial court. As I have
stated earlier in this judgment, the appellant never disputed that the
complainant was shot that evening; or that the injury that be sustained was a
gunshot; or that the reason that he was admitted to Helderberg Hospital that
night was due to a gunshot. It was never put to the complainant, or Andile,
that the appellant did not fire a shot at the complainant; or that the shot that
was fired did not strike the complainant. In fact, as was previously pointed out
it was pertinently put to the complainant during cross-examination that the
appellant had fired a shot 'in his direction'.
[68] The overwhelming direct evidence that was before the trial court, which
the appellant failed to contradict, was that he shot the complainant \vith his
service pistol whilst he was running away, and the bullet hit the complainant
in his back, just below his right shoulder blade. It is not apparent from the
appellant's submissions why, in the light of this evidence, facts relating to the
path of travel of the bullet that struck the complainant were critical to assist
the trial court in determining the matter. In my view, once again, when regard
is had to the totality of the evidence of the State witnesses, these submissions
were of no consequence to the determination of the case. In light of the
20
appellant's concession during the cross-examination of the complainant that
he had fired a shot 'in his direction' it was surely immaterial whether it struck
the complainant directly, or only after it had ricocheted off something else.
This may have been a material consideration if the appellant's case was that
he had not fired a shot directly at the complainant, but rather as a warning shot
aimed somewhere else, and the complainant was inadvertently and
unintentionally injured in the process. But this was not the version which was
put to the complainant or any of the other State witnesses.
[69] Moreover, it is apparent from the court a quo's judgment that its
decision on conviction was based on the factual evidence before it, which
proved beyond reasonable doubt the guilt of the appellant on the competent
verdict of which he was convicted. The contents of the J88, which was
introduced as an exhibit by the appellant during the trial, had no bearing on
the decision other than that it confirmed facts that were in any event common
cause, i.e., that the complainant was treated at Helderberg Hospital on 28
October 2016 for a gunshot wound.
[70] The appellant's submissions relating to the J88 and the ballistics report
consequently have no merit, and do not take the issues raised in the appeal
any further.
Conclusion
[71] For all the reasons set out in this judgment, the appeal must fail and, in
the circumstances, the following order is proposed:
21
a) The appeal is dismissed, and the judgment of the court a quo on
conviction is confirmed.
NMAYOSI
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
APPEARANCES
For appellant:
For the State:
MSHER
JUDGE OF THE HIGH COURT
Advocate Th embalihle S. Sidaki, Cape Bar of Advocates
Advocate SM Galloway, National Prosecuting Authority