Summary of Judgment

1. Introduction

The proceedings were a criminal appeal to the Gauteng Local Division, Johannesburg, against a conviction for attempted murder. The appellant, Themba Motau, appealed against the decision of the magistrates’ court (the court a quo) which had convicted him on the basis that he and his co-accused had fired shots at police officers while attempting to evade arrest. The respondent was the State.

The appeal was heard on 28 November 2022 by Mabesele J and Mdalana-Mayisela J. The appeal court upheld the appeal and set aside the conviction and sentence at the conclusion of argument, with reasons to be furnished later. The court explained that reasons were reserved to avoid delaying the appellant’s release, given uncertainty whether he remained incarcerated and whether he had been able to raise bail (fixed at R10 000).

The general subject-matter of the dispute concerned whether the State had proved, beyond reasonable doubt, that the appellant (as an occupant of a pursued vehicle) had committed, or was legally responsible for, attempted murder arising from alleged shots fired at police during a pursuit in Senawana, Soweto.

2. Material Facts

On 1 November 2017 at approximately 20:00, police officers Magagula and Mofokeng were on patrol in an official police vehicle. They were acting on information concerning a suspect known as “Bruno”, said to have escaped from police custody. It was common cause in the evidence that conditions were dusty and it was dark.

Magagula testified that while driving in the Senawana area he observed vehicles near shops, including a Hyundai Getz and a Terios SUV. He claimed to have seen “Bruno” inside the Terios. When the police vehicle turned to approach, the vehicles drove off at high speed, and the police pursued them. During the pursuit, Magagula stated that he heard gunshots, fired three warning shots, and (due to darkness) only observed a spark from the direction of the Terios and that a bullet ricocheted off the ground from the direction of the Getz. Shortly thereafter, the police vehicle collided with a rock after Mofokeng lost control.

Mofokeng confirmed he was driving and that it was dusty. He attributed the loss of control to dust, shooting, and in particular the allegation that the Terios attempted to bump them off the road. In cross-examination, he maintained that shots were fired in their direction, but he did not explain how he could reliably observe this while driving in dusty, dark conditions, and he conceded he only saw sparks and did not see a bullet.

A separate police team, Van der Nest and Kgatla, responded to a radio complaint to assist officers chasing suspects. They received a description of a blue Hyundai Getz. Near Senawana Primary School, they stopped a Getz and found three occupants, including the appellant. Both officers testified that searches of the occupants yielded nothing. They then searched the vehicle and found a 7.64 Norinco firearm with a magazine and three live rounds, with the firearm located (according to Van der Nest) on the back seat behind the driver’s seat, and (according to Kgatla) underneath the driver’s seat. The occupants did not produce a licence when asked, and they were arrested for possession of an unlicensed firearm.

The appellant testified that he was employed as an administrative clerk at the Johannesburg maintenance court. He stated that he was asked by a person known to him as “Shimmy” to accompany him to Senawana to pick up the owner of the vehicle. He alleged that after the owner was collected, a BMW stopped them, three police officers approached, one fired a shot, and the occupants were instructed to alight and lie down. He was asked to point out “Bruno” but denied knowing him. He denied firing any shots and denied knowledge of the firearm allegedly found in the Getz.

The appeal court treated as material that the State relied on the police evidence about sparks and a ricocheted bullet under dark and dusty conditions, and on evidence that the appellant and other occupants tested positive for gunshot residue, while the appellant’s version was a denial of any shooting and of knowledge of the firearm.

3. Legal Issues

The central legal question was whether the State proved beyond reasonable doubt that the appellant was guilty of attempted murder arising from the alleged firing of shots at police officers during the pursuit.

This required evaluation of both factual issues (what occurred during the pursuit; whether shots were fired from the pursued vehicle(s); and whether there was reliable evidence placing a shot fired from the Getz in the direction of the police) and the application of law to fact (whether the proven facts met the requirements for attempted murder attributable to the appellant).

A further legal question, arising from the manner in which the case was prosecuted, was whether the State could prove who fired the shots, particularly where the State did not allege that the attempted murder charge was pursued on the basis of common purpose among the occupants.

4. Court’s Reasoning

The appeal court proceeded from the principle that the onus rests on the State to prove guilt beyond reasonable doubt to secure a conviction. The court assessed whether the State’s evidence met that standard on the attempted murder charge.

A key aspect of the court’s reasoning was the reliability and sufficiency of the observations made by the pursuing officers (Magagula and Mofokeng) in conditions described as dark and dusty, at night, during a fast-moving pursuit. The court noted that Magagula’s evidence amounted to seeing a spark from the direction of the pursued vehicle(s) and describing a bullet ricochet off the ground from the direction of the Getz. However, Magagula could not explain material aspects necessary to link that observation to an attempted murder of the police officers, including how far the police vehicle was from the point where the ricochet occurred before the collision, and the direction of travel of the ricocheted bullet relative to the police vehicle’s trajectory.

The court found that these explanatory gaps undermined the probative value of the observation in establishing that shots were fired at the police with the requisite intent for attempted murder, or even that a shot from the relevant vehicle was directed at them. Mofokeng’s evidence did not cure these deficiencies. Although he asserted that shots were fired at them, his evidence was regarded as unhelpful on the critical aspects, and he did not give a clear explanation of how he could reliably observe that shots were fired at them while driving in darkness and dust, beyond seeing sparks and without seeing a bullet.

On this basis, the court concluded that the State had failed to prove the attempted murder charge beyond reasonable doubt. The judgment recorded that counsel for the State correctly conceded this point.

The court further identified an additional evidentiary and legal difficulty: even if the State had proved that shots were fired from the pursued vehicle, the prosecution would still have faced the problem of proving which occupant fired the shots. The court emphasised that the State did not allege that the appellant and his co-accused were charged with attempted murder in furtherance of a common purpose, which meant that individual attribution remained essential on the State’s case as presented.

The court also addressed the reliance on gunshot residue results. It held that the fact that the appellant and the other occupants tested positive for gunshot residue did not, on its own, advance the State’s case sufficiently. This was because the State’s expert conceded that residue could be deposited on a person who did not fire a weapon where shots are fired in close proximity, and could also transfer through physical contact. The court treated this concession as reinforcing the need for the State to prove who actually fired the shots, which the State had not done on the evidence.

Taken together, these considerations led the court to the conclusion that the conviction could not stand.

5. Outcome and Relief

The appeal court upheld the appeal against the attempted murder conviction. The appellant’s conviction and sentence were set aside.

The judgment, as provided, did not set out a separate or express costs order, and none appears to have been made in the criminal appeal.

Cases Cited

No prior cases were cited in the judgment.

Legislation Cited

No legislation was expressly cited in the judgment.

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The High Court held that the State did not prove, beyond reasonable doubt, that the appellant committed attempted murder by firing at police during the pursuit. The court found that the police evidence regarding sparks and a ricocheted bullet, given the dark and dusty conditions and the absence of clarity on distance and trajectory, was insufficient to establish the required factual basis for attempted murder. The court further held that the gunshot residue evidence did not resolve the question of who fired the shots, particularly given expert concessions about secondary transfer and deposition in close proximity, and the State’s case was not framed on a common purpose basis.

Accordingly, the conviction and sentence were set aside.

LEGAL PRINCIPLES

The judgment applied the principle that the State bears the onus to prove an accused person’s guilt beyond reasonable doubt, and that a conviction cannot be sustained where material uncertainties and unexplained gaps in the State’s evidence prevent that standard from being met.

The judgment further applied the principle that where a criminal charge depends on identifying the individual perpetrator, the State must prove that attribution on the evidence presented, unless it advances and proves a legally recognised basis (such as common purpose) for attributing conduct committed by one participant to others. Where common purpose is not alleged, proof that an accused was merely present as an occupant of a vehicle implicated in an incident does not, without more, establish personal commission of the offence.

The judgment also applied the principle that forensic indicator evidence such as gunshot residue is not necessarily determinative of having fired a weapon, particularly where expert evidence acknowledges the possibility of deposition in close proximity or secondary transfer. In such circumstances, the State must still prove, by adequate evidence, the actus reus attribution required for conviction on the charge.