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[2012] ZAWCHC 303
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Bamba v S (A67/2012) [2012] ZAWCHC 303 (3 September 2012)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE NO: A67/2012
In the matter between:
THtEMBANI
BAMBA
.........................................................................................................
Appellant
and
THE STATE
...................................................................................................................
Respondent
Judgment delivered: 3 September
2012
NYMAN A.J.
1. The appellant, Thembani Bamba, was
convicted of murder on 19 January ; 2011 in the Wynberg Regional
Court and he was sentenced
to ten (10) years’ imprisonment on
20 January 2011.
2. An application for leave to appeal
against the conviction was granted by the trial court.
3. The appellant enjoyed legal
representation in the trial court.
4. On 17 September 2008 the appellant
pleaded not guilty to the charge of the murder of Ludwe Golotile on
20 January 2007 by shooting
him with a firearm; It was explained to
the appellant that the minimum sentence legislation Was applicable to
the proceedings.
5. On the Saturday evening of 20
January 2007, armed members of the South African Police Service
carried out crime prevention operations
in Samora Machel informal
settlement, in Nyanga. These operations involved conducting patrols
where people who were found in the
streets, were stopped and
searched.
6. The
appellant, a detective constable, was dressed in plain clothes, but
Wore a khaki coloured bullet proof vest. The other policemen
were
dressed in police I uniforms. During the patrol, a police truck,
driven by the appellant, who; was accompanied by Constable
Lulamile
Galela and one other police officer: stopped next to a group of young
men who were standing next to the shacks; When the
appellant and
Constable Galela alighted from the truck,
:
stones y were thrown at the truck and the men ran away, whereupon the
appellant and Constable Galela pursued them. Soon thereafter,
the
deceased was found shot dead in the area.
7. The following day, a spent bullet
head and cartridge that were allegedly found in the vicinity of the
shooting, were handed to
the investigating officer. Ballistic
evidence linked the bullet head and cartridge to the appellant’s
firearm; ;
8. At the trial, the appellant denied
that he had fired his firearm the evening of 20 January 2007. He
furthermore denied that he
had shot the deceased. There were no eye
witnesses to the shooting. The issue for determination was therefore
whether it was proven
through circumstantial evidence that the;
appellant had shot the deceased.
9. The state
called eleven (11) witnesses. Themba Fondezi testified that on the
evening of the shooting, he paid Bhekithemba Qebetu
a visit. He was
sitting at the door of Mr Qebetu’s house. While he was busy
talking to Mr QebetuY he saw; the deceased passing
and he spoke to
him. Three minutes later, the deceased came back running and ran
around the corner into a dead end. Shortly thereafter,
he heard a
gunshot. He put his head outside and smelled the gun powder. As he
was talking to Mr Qebetu about the gunshot, two ;(2)
policemen passed
and went to the place where
the
deceased went. Another policeman joined them later on.
10. Mr Fondezi testified further that
he overheard one of the policemen saying, “here is the dog, we
found it and he is pretending
to be dead here now”. Mr Fondezi
then called out the deceased’s name and upon not receiving an
answer, he went around
the corner and found him sitting on an old
bath with his head bowed. When Mr Fondezi lifted the head of the
deceased, the deceased
gave his last breath. When he met Nondi
Golotile in the alley there afterwards, he and told him that his
brother had been shot.
11. Mr Fondezi
testified under cross-examination for the first time that when he
lifted the deceased’s head, he found a bullet-head
(intermittenily referred to as the “
projectile
”)
that had penetrated from the back to the front of the wound that was
on the side of the deceased’s heart. At this
time, there were
many people at the scene and he mentioned to them that the
bullet-head should be, handed to the deceased’s
brother.
12. BheKithemba Qebetu testified that
in the evening of 20 January 2007 he was sittiiig at home on the bed,
close to the door when
he saw the deceased running pass his house. He
asked the deceased why he was running but he received no reply. Mr
Qebetu then went
outside and he saw a policeman who was already
taking the corner. Thereafter he heard a gunshot. He and A ; Fondezi
then went outside
when the two policemen returned. Messrs Qebetu and
Fondezi then went to the deceased and there were already many people.
13. Constable
Galela testified that on the evening of the shooting, 'while hewasi _
on patrol in the police truck with the appellant
and Constable
Kubeni, he and the appellant disembarked from the truck next to a
group of young men in order to search them. The
young men threw rocks
at them and Constable
;
Galela and the appellant chased them. When the appellant was out of
Constable Galela’s sight into the shacks, he heard a
gunshot On
meeting,up with the appellant, Constable Galela asked him whether he
had fired the shot, whereupon the appellant gave
a denial in reply.
When they emerged from the shacks, they met Inspector Sebola who
asked them whether they had fired a'; shot
and they denied this. They
continued with their patrol. After ten minutes; ' all the members on
patrol met in the main road whereupon
they were asked by the Station
Commander if any of them had fired a shot. They all denied ; i that
they had fired the shot He then
told them to go to the police station
and hand in their fire-arms to Captain McEvoy.
14. Constable Kubeni testified that on
the night of the shooting, while he was on patrol in the police truck
with the appellant
and Constable Galela, he saw the appellant and
Constable Galela climbing out of the truck and running into the
shacks, they returned
after a few minutes and got back into the
truck.
15. Mondi
Golotile, the deceased’s brother, testified that on the night
of. the incident, he was standing With the deceased
on the pavement,
when police vehicles arrived. He ran into his
hokkie.
Thereafter he heard a gunshot. When he came out of his
hokkie,
he met up with th<e police who w^re comihg from the direction
where his,brother ran to. He exchanged .words with; the policemen
who
got into their vans and drove away. Afterwards he heard from
Lolithemba, his neighbour, that his brother had been shot by the,
police. He went to the deceased and found him with no sign of life
in: him.:Mr;;Gql6tile
:
;
then took the deceased to the hospital.
16. On the
following morning/ when Mr Golotile's returned to the place where his
brother was shot, he found a bullet-head. Thereafter,
the
photographer arrived; and Mr Golotile showed him where he had found
the deceased’s body arid where he had found the bullet-head
some distance away. Later on, he found a cartridge in front of his
hokkie.
He later handed both the bullet-head arid cartridge to Mr Booi.
17. Nkosiyedwa
Booi, who is employed as a Principal Investigator by the V
Independent Complainants Directive, testified that he
was charged
with the
:
investigation because there was an allegation that a police officer
was
:
involved in the shooting of the deceased. On Monday, 22 January 2007
when he took a statement from Mondi Golotile, he handed to
him a
bullet point to him. He also received a fired cartridge from Mr
Golotile. He then took the bullet-point to the Bellville
office for
safekeeping.
18. Mr Booi
testified further that on the same day he collected seven (7)
semiautomatic firearms and six magazines from Captain
McEvoy at
the SAP 13
;
storage safe at the Nyantja Police Station,. He took the firearms and
magazines, which were in two separate forensics bags, to
the offices
of the:; Independent Complaints Directive where they were entered
into,the firearms register. Thereafter they were
sent to the forensic
science laboratories.
19. The ballistics report from the
forensic science laboratories was handed in as evidence by agreement:
It: shows that the bullet
and cartridge were fired from the RAP
firearm that had been issued to the appellant. The RAP firearm Serial
number referred to
in the ballistics report, matched the serial
number of the firearm that was issued to Mr Booi on the evening of
the shooting,
20. After he received the ballistic
and medical reports, it was Booi’s: ; recommendation that the
appellant be charged with
murder.
21. In his
evidence, the appellant did not dispute the ballistic evidence. He
;
;;
admitted that he was in the area where the shooting took place but
denied: - that he fired a shot that night. He testified that
he had
brought the police truck hat he was driving, to a standstill, next to
a group of boys. The boys disappeared between the
shacks. He and
Constable Galela then pursued: these boys into the shacks and while
he was in amongst the shacks, he Heard >
a gunshot. Immediately
after the appellant heard the gunshot, he turned around and he saw a
person sitting as if he was drunk in
a
cul
de sac
.
22. According to the post-mortem
report, as testified by the pathologist, the cause of death of the
deceased was a gunshot wound
to the back through the chest.
23. In its
judgment, the trial court summarised the salient features of the
evidence against the appellant. In the trial court’s
opinion,
relevant-circumstantial evidence was corroborated by the appellant,
inter alia,
that he was at the scene of the incident with other police officials,
that he pursued some of the suspects amongst the; shacks,
that he was
in;the company of Constable Galela and that he found a man who was
seated, who turned out to be the: deceased.
24. It was the viewpoint of the trial
court that for it to draw an inference from the circumstantial
evidence that it is the appellant
who killed the deceased,;::!) had
to prove that the bullet point that was found at the crime scene:
“
caused the fatal injuries
sustained by the deceased, or that it could: have been the only
bullet that could have killed the deceased
and that the bullet was
fired from the accused’s firearm”.
25. The trial court accepted as
evidence proven beyond a reasonable doubt that: the fired bullet and
cartridge were fired from the
appellant’s firearm, jn
consequence, the trial court made a finding that the only inference
that could be drawn from the
established and proven facts is that the
appellant was the person who fired a shot at the scene that caused
the death of the deceased.'
It was the trial courts viewpoint that:
“the evidence did not accommodate ' another reasonable
inference than the inference
that the accused fired the shot and
thereby killed the deceased”.
26. The trial court also accepted the
evidence of: Mr Golotile that the fired bullet and cartridge were
found at the scene;of the
crime. In the view of the cbiirt a: ; quo
it would have been practically impossible for Mr Golotile to have
obtained the exhibits,
unless he had access to the appellant’s
firearm. Furthermore, at the time when Mr Golotile found and produced
these exhibits,
the. appellant’s firearm was already in the
hands of the appellant’s superiors.
27. In its determination of whether
the act constituted murder or culpable homicide, the trial court made
a finding that because:
“
the deceased was shot from the
back and there was. no acceptable and ; suggested ground of
justification, the only finding the court
could make; wasj ' that
this was an act of murder”.
28. It was the
trial court’s opinion that even though there was evidence to
the effect that stones were thrown at the police
officers which could
have justified
:
self defence, given that the appellant denied that he fired the shot,
such': evidence could not be taken into account as a ground
of
justification.
29. The trial
court made a finding that on the facts and the evidence, there was
no: ground of justification in the matter. Manslaughter
and
dolus
eventualis \Ner&:
also ruled out
by the court and the trial court’s official finding was that
there:: was
dolus directus
in the fatal shooting of the deceased.
30. The submissions made on behalf of
the appellant in the grounds of appeal essentially rests upon two
grounds; firstly, that the
state failed to present evidence that
excluded the reasonable possibility that the appellant had no
interaction with the deceased,
given that Constable Galela had
testified, so it: was submitted, that he had not lost sight of the
appellant before the shot rangi
out; and secondly, that the ballistic
evidence was fraught with,uncertainty.for a number of reasons,
31. I find no
merit in the first ground of appeal. The record shows that Constable
Galela testified in his evidence in chief that
after he had heard the
gunshot, he had taken cover because he tried to look for or locate
the appellant, “because he was
already out of sight from [him]
into the shacks”. According to Constable Gaiela’s
evidence he met up with the appellant
and asked him if he had fired
the shot and he replied no. (See: Record, Part 1, 185: 20-25) In my
view, the only reasonable inference
that can be drawn from this
evidence is that Constable Galela had lost sight of the appellant, as
he in fact testified,
before
the gunshot. It is for this reason that he enquired from the
appellant whether he had fired the gunshot/
32. In my opinion, the second ground
of appeal is unsustainable. The state’s evidence that the fired
bullet and cartridge
were fired from the appellant’s firearm
was not challenged by the appellant. The sole challenge to the
ballistic evidence
that was raised on behalf of the appellant at the
trial was the cogency of the evidence regarding the manner in which
the spent
bullet-head and cartridge were found. On the evidence,
there is a discrepancy which could form the basis for such a
challenge and
which needs to be considered.
33. Mr Fondezi’s testified under
cross-examination that he had found a bullet when he lifted the
deceased’s head. The
bullet-head fell onto the top that the
deceased was wearing. He did not remember what he did with the bullet
head. He remembered
telling the onlookers that the bullet-head must
be given to Mondle; If Fondezi indeed found such a bullet point, it
would appear
to be a different drie from the one that the deceased’s
brother found the next day.
34. It was Mr
Golotile’s evidence that he found a bullet-head on the day
following
1
the shooting in the area where he found the deceased. He pointed out
the place where he found the bullet-head to the photographers,
which
point-out is depicted at point “A” on the photograph, a
short distance from point “B” on the photograph,
being
the place where the deceased’s body was found:
35. The contradiction in the
evidence;throws up two possibilities: either two different
bullet-heads were found, or only one bullet-head
Was. found by either
Messrs Golotile or Fondezi. If two bullet heads were found, then this
would raise a reasonable doubt that
the bullet-head that was tested,
was the bullet-head that caused the death of the deceased, given that
there is no forensic evidence
(such as blood or DNA evidence) that
established that the bullet-head that was tested was the one that
penetrated the deceased’s
body.
36. Given this
contradiction in the evidence, what, if any, impact does it have in
the determination of whether the state proved
its case beyond a
reasonable doubt? In
S v van Aswegen
2001 (2) SACR 97
(SCA) the court relied on the following passage in S
v Van der Meyden
1999 (1) SACR 447
(W) at 449G
for its decision that a
court should not base its decision on whether to convict or acquit on
only a portion of the evidence, but
that the decision had to take
into account all the evidence:
“
The proper test is that an
accused is bound to be convicted if the evidence establishes his
guiit beyond reasonable doubt, and the
logical corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent: The process of reasoning
which is appropriate to the
application of that test in any particular case will depend on the
:
nature of the evidence which the court
has before it What must be borne in mind, however, is that the
conclusion: which is reached
(whether it be to convict or to acquit)
must account for all the evidence. Some of the evidence might be
found tp be false; some
of it might be found to be unreliable; and
some otit might be found to be only; possibly
:
false or unreliable; but none of it
may simply be ignored,”
37. This leads
me to consider whether Messrs Golotile, or Fondezi’s evidence;
should be accepted in respect of the finding
of the bullet-head. The
trial court accepted Mr Golotile’s version, without referring
to the contradiction in evidence specifically.
1 agree. Mr Golotile
was steadfast in his evidence
;
pertaining to the finding of the bullet-head. He pointed out the spot
where he ; found the bullet-head to the photographers. I
have no
reiason to doubt his version. In contradistinction, Mr Fondezi’s
evidence was vague. His evidence was not given spontaneously
during
evidence in chief, but it was only disclosed under cross-examination
and in response to the question whether : he had found
any cartridges
or projectiles around the deceased. His reply was that when he lifted
the head of the deceased he found “a
piece of iron”.
When; he was asked what he did with the object he told the other
people who were standing around that “the
metal thing”
should be given to the deceased's brother. While Mr Fondezi testified
he did mention to Mr Golotile that he
had found the projectile, he
did not go further and state that he handed the projectile to him.
Under re-examination Mr Fondezi
testified that he did not know to
whom he gave the bullet head. It is therefore my opinion that\Mr
Golotile’s evidence in
respect of the finding of the
bullet-head is unacceptable.
38. In my opinion on the totality of
the evidence, only, one bullet-head was found. The primary basis for
my opinion is that it
is common cause that only, one gunshot was
fired in the vicinity, at the time that the deceased was mortally
wounded. Additionally,
there is no evidence that the deceased was
injured prior to the shooting, from a second gunshot : in my view,
further,, the totality
of the evidence supports the conclusion that
the| appellant fireci the shot that caused the death of the deceased.
The builet-head
and cartridge were collected from the scene by Mr
Golotile, who then handed over these exhibits to.Mr Booi. Given that
the.ballistic
report is not in dispute, the trial court’s
findings are based on facts that were proven beyond a reasonable
doubt. It is
not in dispute that seven (7) firearms and six (6)
magazines were handed to Captain McEvoy by the police officers
themselves and
that these exhibits were then placed them in exhibit
bags. In order to raise a reasonable doubt that the appellant fired
the firearm
himself, requires some evidence that someone else had
possession of his firearm between the time that he collected the
firearm
from the police station, to the time of handing it in to
Captain McEvoy. There is no such evidence and this possible
explanation
was not canvassed during cross-examination or any other
time during the proceedings by the appellant himself, or on his
behalf.
I am therefore in agreement with the trial court’s
findings that, “it accepts without any hesitation that the
fired
bullet and cartridge were fired from the accused’s
firearm”, and that “the evidence in this respect is quite
clear and unambiguous and solid”.
39. While it is correct that the
crime scene was not cordoned off. and . that members of the public
had free access, there was
no evidence that the exhibits were
tainted. In this case there are a number of independent facts which
point in the same direction.
This is important because even if some
of these facts can on their own perhaps be reconciled with the
appellants version, their
combined persuasive force show in my view,
that there is no: reason to disturb the findings of the trial .court
in this regard.
40. The finding
that the appellant fired the. shot that killed the deceased means
that the appellant’s, falsely denied firing
a shot that
evening. The fact that an; accused is a liar does not by itself
indicate guilt.
:
The all important question; : remains whether the, state case has on
an evaluation of all the facts been proved beyond reasonable
doubt.
41. I turn to
consider what form of fault was proven. The test for intention is
purely subjective. It must in this case, be the
only reasonable
inference from all the facts that the appellant subjectively
intended to kill the deceased (dolus directus) or
foresaw the
possibility that the deceased could be killed by the
:
:
shot fired by him (dolus
eventualis). The appellant’s subjective mental stafe may be
inferred from the objective facts
that were proved. The mental state
;
required for culpable homicide, on the other hand, is negligence.
The. test for V negligence is objective. The question is whether
the
reasonable person in the position of the appellant would have
foreseen the possibility that the deceased’s death may
result
from the shot fired, whether the reasonable person would have taken
steps to guard against such possibility and whether
:
the appellant’s conduct deviated from what the reasonable
person would have done in the circumstances.
42. I am of the view that this is not
a case of culpable, homicide,, byt that the trial court nevertheless
erred in finding dolus
directus as a basis for murder. On the proven
facts of the case, and in the absence of an explanation . .from the
appellant who
fired the shot, the only reasonable inference to be
drawn is that the appellant fired the bullet in the dark in the
direction
of: the deceased, without having the direct Intention of
killing the deceased but having foreseen that the shot may cause the
death of the deceased. In my view, the finding of dolus directus as
the. basis for the conviction, of niurder should be substituted
with
a finding of dolus eyentualis.
43. It is generally accepted.that
murder based oh dolus eventualis is morally less reprehensible than
a murder committed with
dolus directus and should generally result
in a lesser sentence. In the absence of an appeal against sentence,
counsel was asked
to make submissions on whether this court may
consider and if satisfied substitute the sentence with a lesser
sentence.
44. Counsel on
both sides submitted that confirmation of a conviction but on
different facts or with a different form of intent,
will have an
effect on sentence and will leave it open to this court to
substitute its own sentence. (See: R v Latib
1954 (3) SA 81
(T)).
There is, however, no authority regarding appeals to support the
view that a high court, sitting as a court of appeal from
a lower
court (as opposed to a court exercising powers of review) may
disturb the
sentence if there is. no appeal against sentence.
This court’s jurisdiction in respect of appeals is determined
by statute.
Section 309 (1) (a) read with section 309 B of the
Criminal Procedure Act No 51 of 1977
stipulates that there is no
appeal, save with leave being granted and that an accused must apply
for leave to appeal against
a conviction, sentence.or order. (I.
refer to the
Criminal Procedure Act hereinafter
as • the Act”).
Sub-section 309 6 (3)(a) of the Act provides that every application
for leave to appear must set forth
clearly and specifically, the
grounds upon which the accused desires to appeal. The appellant has
not sought leavie
:
to appeal against- sentence and there
is no appeal against sentence. In Sefatsa and Others v Attorney-
General, Transvaal, Arid
Another
1989 (1) SA 821
(AD) at 839 B-J the
court held that neither a Provincial Division nor the
Appellate
Division has inherent jurisdiction to reopen a trial. Their
jurisdiction relating to criminal appeals is prescribed by the
Criminal Procedure Act 51 of 1977
and a court cannot have an
inherent jurisdiction which will entitle it to act contrary to the
express provisions of the Act.
In my view this is also not a case
which should be dealt with under this Court’s powers of review
in terms of
section 304
(4) of the Act and where this court,
exercising powers of review, should interfere with the sentence.
This is a case which should
rather be remitted back to the trial
court for the purpose of reconsidering the sentence in the light of
this judgment.
R.M. NYMAN, AJ.
Acting
judge of the High Court
I
agree and make the following order:
1.
Save as set out in paragraph 2 hereunder, the appeal against
conviction is dismissed.
2. The conviction of murder is
confirmed but the basis of the. conviction is changed from dolus
directus to dolus eventualis
3. The matter
is remitted back to the trial court for the purpose of.
reconsidering and imposing a fresh sentence in the light
of the
finding in paragraph 2 above
.
W.J.
LOUW, J
Judge
of the High Court