HIGH COURT BISHO JUDGMENT

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1 HIGH COURT BISHO CASE No. CC 16/99 In the matter between: THE STATE versus CHEMIST NONTSHINGA JUDGMENT EBRAHIM J: The accused, Chemist Nontshinga, has been arraigned on one count of murder and a count of attempted murder. He has pleaded not guilty to both counts. Mr Goosen who appears for the accused has, in terms of s 115(1) of the Criminal Procedure Act of 51 of 1977('the Act'), disclosed the basis of the accused's defence. On the charge of murder the accused's defence is that he acted in self-defence. On the charge of attempted murder he states that he lacked mens re a. Mr Goosen, on behalf of the accused, made certain admissions in terms of s 220 of the Act. These are contained in Exhibit 'A' which has been signed by him as well as the accused. The admissions confirm: (1) the identity of the deceased, (2) that the deceased sustained a gunshot injury to his head on 27January 1998, (3) that the deceased did not sustain any further injuries from 27 January 1998 until the post-mortem examination was conducted on 29 January 1998, (4) that the deceased

2 2 died on 28 January 1998 from the gunshot injury to his head, and (5) that the accused accepted the findings of the post-mortem report of Dr D T John dated 29 January State case The state called Adam Mpofu, Xolisile Mva and Thobela Theophilus Mgatyelwa, who are all warders at the Mdantsane Prison, to testify in proof of the allegations in the indictment. Their versions of what occurred are substantially similar. Consequently, I do not intend recounting the evidence of each witness save to refer, where appropriate, to specific details provided by a witness or to those instances where there are differences in the observations of the witnesses. Their evidence reveals that close to midnight on 27 January 1998 they were sitting on the steps leading to the entrance door of the Mdantsane Prison. The accused and the deceased, Mncedisi Gula, were also present. They were all conversing amongst each other when the official in charge, a Mr Rawana, approached them. He instructed the deceased, who was due to patrol on the outside of the prison, to fetch his firearm. On returning the deceased carried out certain safety procedures in regard to the firearm, engaged the safety catch, and placed the firearm in his holster and sat down. They carried on conversing. After a few minutes the accused cocked his own firearm and uttered words to the effect that the deceased was contemptuous towards him. Simultaneously the accused fired a shot which struck the deceased

3 in the back of his head, killing him. The bullet passed through the head of the deceased and lodged in the arm of Thobela Theophilus Mgatyelwa. As a result of the shot the deceased rolled down the steps and onto his back. The witness Mpofu ran to call Mr Sihlangu, the head of the prison, to inform him of the shooting. When Mr Sihlangu arrived he dispossessed the accused of his firearm. The witness Mpofu was then sent to the home of a Major Zake to fetch the keys to the telephone of the prison to enable them to telephone the police. All three witnesses deny that the accused shot the deceased in self-defence. They say that there was no reason for the accused to have defended himself. The accused was sitting next to the witness Mpofu on a wall which runs down the side of the steps while the deceased was sitting on the steps next to Thobela Theophilus Mgatyelwa. They were in front of, and below, the accused and the deceased was looking in front of himself when he was shot by the accused. At no stage did the deceased point a firearm at the accused nor did he have a firearm in his hand when the accused shot him. None of them heard the deceased say that he was going to shoot Lieutenant Konono's informer today. They were not aware that the deceased had previously said to the accused that he was Lieutenant Konono's 'impimpi' (informer). They were also not aware of any reason why the accused should have shot the deceased, nor were they aware of any animosity which may have existed between the two of them. Further, the deceased had not threatened to shoot the accused, nor had they quarrelled; nor were they aware of anything that the deceased may have

4 said which could have caused the accused to react in the manner that he did. 4 During cross-examination by Mr Goosen the witness Mpofu denied that a Sgt Mqulo was present when the shooting occurred. He had not asked the accused why he had cocked his firearm as he thought that he was about to enter the prison. He conceded that he had forgotten that he had said in his statement to the police (Exhibit 'C') that he had asked the accused why he had cocked his firearm. He had also forgotten that he had said in a statement (Exhibit 'D'), which he had made in respect of a disciplinary hearing involving the accused, that the accused had made derogatory comments concerning the deceased. He denied that the deceased had placed the firearm in his jacket pocket - he had placed it inside his waist band. He also denied the allegation that he (i.e the witness Mpofu) had been drunk on duty previously and that he bore a grudge against the accused for reporting him for this. The witness Xolisile Petros Mva stated that he asked the accused why he had cocked his firearm but that the accused had not replied. The comment which the accused made to the deceased prior to shooting him was, 'Your mother's arse, you are contemptuous towards me'. In reply to a question from the Court he said that when the police turned the deceased's body over they found his firearm on his body at his waist. The witness Thobela Theophilus Mgatyelwa, who is the complainant in Count 2, said that he did not see the accused fire the shot that killed the deceased and which

5 5 thereafter struck him in his own arm. He had only heard the shot. Prior to the shot being fired he heard the accused say, 7 had enough of you'. But, he did not know to whom this comment was directed. Due to the shock of being shot in the arm he left the scene without establishing what had happened to the deceased. He was taken to hospital where he received treatment for the bullet wound. During cross-examination he said that if the deceased had taken out his firearm he would have seen this as he was sitting next to him. This was the evidence for the state. Defence case The accused testified in his defence. He confirms that he was sitting outside the door to the prison as described by the three state witnesses. It is correct that the deceased and Dalimvolo Tshefu were present but he claims that a person named Mqolu was also present. He and the deceased had not experienced any problems before the evening of 27 January 1998 except for the deceased having stated that he (i.e the accused) was an informer. When he entered the gate to the prison grounds that evening he found the accused sitting on the steps. The deceased said to him, Today / am going to kill the informer of Konono'. But he did not respond to this. While they were sitting there the accused repeated this statement. The deceased then cocked his firearm and put it back in his pocket. He thought that the deceased was going to shoot him and took out his own firearm. He cocked his firearm, too, and held it in his hand. They remained seated. Shortly thereafter when he (i.e the accused) got up to go inside the deceased pointed his firearm at him. He gained the

6 6 impression that the deceased was going to shoot at him and thereupon, without aiming, shot at the deceased and took cover behind the wall. The deceased held his head, fell down, and rolled down the steps. He says that if he had not fired the deceased would have shot him. He did not notice that the bullet had also struck the complainant Thobela Theophilus Mgatyelwa. Thereafter he left to look for the official in charge. In the process Mr Sihlangu arrived and asked him for his firearm which he handed to him. He denied that he had shot the deceased in cold-blood. He had acted in self-defence since the deceased had a firearm. The version furnished by the witnesses was a fabrication. They were lying when they said that they had not heard the deceased say, ' Today I am going to kill the informer of Konono'. Also, the witness Mpofu bore him a grudge as he had reported Mpofu for being drunk on duty resulting in Mpofu's suspension. It emerged during cross-examination by Mr Twani, who appears for the state, that on each occasion that the deceased and the accused had met that the deceased had called him an 'impimpi' (informer). The witnesses were lying when they said that they had not heard him saying so. Other individuals had also heard him. Later, he retracted this and said that his colleagues were not present when the deceased called him an informer. He added that the deceased was not specific and, therefore, his colleagues were unaware that the deceased was referring to him. Later he said that he and the deceased were alone whenever this occurred. And,he had not reported the deceased's conduct as it was of no consequence to him that the deceased had called him an informer.

7 7 On the first occasion that the deceased had threatened to shoot him the deceased had not taken out his firearm. Further, he did not take this threat seriously. He only took it seriously on the second occasion when the deceased took out his firearm from his jacket-pocket. The deceased was seated but facing him when he shot him. His head was turned at a 90 degree angle towards him. The deceased pointed the firearm at him when he (i.e the accused) stood up. He then fired from a standing position. He had not said anything to the deceased prior to firing the shot. He insisted that the witnesses were not telling the truth about what had occurred and that the warder named Mqulo was present when the shooting took place. Moreover, there was no ill-feeling between the witness Mva and himself. In reply to questions from the Court he said that there had been no need for him to tell the witnesses that the deceased was threatening him as they had heard him doing so. He had also not told the deceased to put his weapon away nor had he warned the deceased that he would shoot. He did not call out to the others to see what the deceased was doing. He had told his counsel that he was unconcerned about the deceased saying that he was Lieutenant Konono's 'impimpi'. While the witnesses had lied about how the shooting occurred they had told the truth regarding the other events. It was true that their conversations were light-hearted and that they were joking. The witness Mgatyelwa was also truthful in saying that he (i.e the accused) had told the warder Tshefu that he wanted to apologise for injuring him. He did not think that the warder Mqulo would, if called to testify, tell the truth as he was the deceased's cousin. This concluded the case for the defence.

8 8 The Court then subpoenaed Mr Mqulo, in terms of s 186 of the Act, to testify. He stated that he was not present when the shooting occurred and was unable to shed any light on the incident. He, Mr Rawana, Mr Tshefu, the witnesses and certain other individuals had been transported to the prison in the same vehicle. Mr Rawana and he went inside the prison while the others remained outside. When he returned the shooting had already taken place. He had been called by the witness Mpofu. He and the accused were not bad friends nor he and the deceased. He was unaware of any ill-feeling between the accused and the deceased and had never heard the deceased saying that the accused was Lieutenant Konono's 'impimpi'. He was shocked when he saw that the deceased had been shot and did not speak to anyone. He could not say whether the deceased had a gun in his hand. He confirmed, when cross-examined by Mr Goosen, that the deceased was his cousin. He denied that he had come from gate no. 2 at the prison just prior to the shooting nor had he been standing there after the deceased was shot. Evaluation of the evidence It is common cause that the accused fired a single shot which struck the deceased in the head and killed him. It is also common cause that the same bullet, after it exited the head of the deceased, struck the complainant Thobela Theophilus Mgatyelwa in his right arm. In regard to the count of murder the question that is to be answered is whether the accused was justified in firing at the deceased and had acted in self-defence.

9 9 On this issue the evidence of the state witnesses directly contradict that of the accused. The witnesses Adam Mpofu and Xolisile Mva state unequivocally that at the time that the accused fired the fatal shot the deceased was seated on the steps and looking in front of himself. At that stage, although the accused had handled the gun a few minutes earlier, he did not have his gun in his hands. While the witness Mpofu says that the deceased put the gun in his holster, and the witness Mva says that he placed it on his waist, both insist that he did not remove the gun thereafter. He also did not point it at the accused at any time. This is corroborated by Thobela Theophilus Mgatyelwa, the complainant in count 2. It emerged from their evidence that the deceased did not utter words to the effect that he was going to kill the informer of Konono. The only statement which was not in line with the general tenor of the light-hearted conversation that was taking place was that made by the accused. In the context of the amiable atmosphere which prevailed prior to the shooting, and the general conversation taking place, the comments of the accused would have drawn attention. From their evidence it is clear that this is in fact what happened. While the comments which each of them ascribes to the accused differ to a certain extent the differences are not such as to cast doubt on the reliability and trustworthiness of their observations. It would have been cause for suspicion though if their recollection of the accused's comments were the same, word for word. I do not find this evidence to be a fabrication on the part of these witnesses. Each of the state witnesses created a very favourable impression with the Court.

10 10 But, there are blemishes in the evidence of the witness Mpofu. He admitted that there were certain differences or omissions from his evidence compared to the statement (Exhibit 'C') which he had made to the police shortly after the incident and the statement (Exhibit 'D') in respect of the disciplinary hearing involving the accused. Thus, although he testified that they had not asked the accused why he was cocking his firearm he had in his statement to the police said so. Similarly in his testimony he had omitted to say that the accused had uttered derogatory remarks to the accused whereas he had stated this in Exhibit 'D'. In my view, these differences redound to the credit of this witness. In neither of the two instances did he, during his testimony, describe the events in such a manner that it can be said that the conduct of the accused was worse than what he had described in the written statements. If anything, the omission of the derogatory comments creates a far more favourable picture for the accused. It also indicates a lack of bias on the part of this witness. If he bore a grudge against the accused, as the accused alleges, it is certainly not reflected in his testimony. I do not find the differences, such as they are, to be of a substantial nature nor do they diminish his trustworthiness as a witness. He is a credible and reliable witness and I accept his evidence. The witness Xolilisile Petros Mva impressed as a witness. He did not contradict himself both during his evidence-in-chief nor when cross-examined. He answered questions in a forthright manner and was clear and precise on what had happened. There is nothing to suggest that he was relating anything more than what had

11 11 actually happened nor is there any indication that he was withholding evidence which may have been exculpatory of the conduct of the accused. He is a credible and honest witness and I find his testimony to be reliable. I have no hesitation in accepting that he has told the truth. The complainant in Count 2, Thobela Theophilus Mgatyelwa, impressed me equally, if not more so. It would have been an easy matter for him to have said that he actually saw the accused fire the shot which killed the deceased and thereafter struck him; but he did not do so and confined himself merely to stating that he had heard a shot and then felt that he had been hit. Prior to the shot being fired he had heard the accused say, 7 had enough of you', but he did not know to whom the accused was referring. Here, too, he could have incriminated the accused more directly by saying that these comments were aimed at the deceased. But he refrained from doing so and confined himself solely to what he had actually observed and heard. He was a credible witness and patently honest in his observations. His evidence is reliable and I accept same without hesitation. I do not find it necessary to evaluate the evidence of Nkululeko Lawrence Mgulo. He was not present when the shooting occurred and consequently can not shed any light on these events. As stated earlier the versions of the state witnesses regarding the shooting of the deceased are substantially similar. each other in all material respects. In their respective versions they corroborate They were forthright in their replies and

12 12 answered questions honestly and without hesitation. It is evident, too, that they did not collude with each other and fabricate a story to wrongfully implicate the accused. In short, I find no indication of any kind that they have lied as alleged by the accused. I turn now to the defences raised by the accused. It is quite apparent that the evidence of the state witnesses contradict the accused's claim that he shot the deceased in self-defence. Their evidence does not reveal that there was any imminent, nor a prior, threat by the deceased that he was going to shoot or kill the accused. The deceased did not say anything, nor did he carry out any physical act, which necessitated that the accused defend himself by shooting the deceased. The evidence of the accused himself does not substantiate his claim that he acted in self-defence. He claims that on two occasions that evening the deceased uttered threats that he was going to kill him. Yet, on neither occasion did he react to this in any manner whatsoever. It is improbable that he would have kept quiet in the face of such threats. Yet, at no stage did he think that it was necessary to talk to any of the others about the threats. Strangely, too, he did not find it necessary to leave but remained and was part of the conversations of the group despite the supposed threats. It is obvious that he did not consider the threats, if there were any, to be of a serious nature. It is apparent, as all the witnesses have testified, that such threats were in fact never uttered by the deceased. Even at the stage when the deceased pointed his

13 13 firearm at him, as the accused has claimed, he did not express any alarm or call out to the others to intervene nor did he attempt to get out of harm's way. It is improbable that he would have kept quiet in such circumstances. At the very least there would have been some reaction from him, in the form of expressing alarm or to call upon the others to intervene, to ensure that the deceased desisted from carrying out his threats. His silence in the face of verbal threats to kill him, and of conduct on the part of the deceased which he interpreted as reinforcing the threats, defies belief. The events as described by the accused are manifestly a fabrication. The accused was a poor witness. He was evasive in answering questions and on a number of occasions provided answers which were improbable. Moreover, much of his evidence regarding the relationship between the deceased and himself prior to the day of the shooting contradicted his instructions to his counsel. Thus, whereas counsel's questioning of the various witnesses highlighted that ill-feeling existed between the accused and the deceased this was not the testimony of the accused. Moreover, he claimed that he had in fact told his counsel that he had not been upset at the accused for saying he was Konono's 'impimpi'. Initially he claimed that the deceased had, at various times and in the presence of the witnesses and others, referred to him as Lieutenant Konono's 'impimpi'. Later he said that no one was present when this occurred, and then again, that the deceased did not specifically say this so that others could hear. Finally, he claimed that all the witnesses had fabricated their version of the shooting and had lied to the Court.

14 14 The accused has manifestly not been open and honest with the Court. He continuously adjusted his story until his answers to simple and straight-forward questions were, on various occasions, deliberately vague and as a consequence nonsensical. I find his version in respect of the shooting of the deceased and his account of his prior relationship with the deceased to be riddled with untruths, contradictions and improbabilities. I reject his version of the circumstances leading up to the shooting of the accused as well as his description of how it occurred. It is his version of the events of the night of 27 January 1998 which is a fabrication and not that which the witnesses have related. He has also fabricated the events regarding his relationship with the deceased. The evidence establishes that when he shot the deceased there was manifestly no threat to his person nor any need to defend himself against an impending or perceived assault from the deceased. I am satisfied that the state has proved beyond a reasonable doubt that the accused's shooting of the deceased was unlawful and intentional and that he had the necessary mens rea to cause the death of the deceased. In regard to the second count the state seeks a conviction on the same evidence that it has tendered in respect of the first count. However, this evidence does not show that the accused foresaw that the shot which he fired at the deceased would pass through the deceased's body and strike someone else and cause his/her

15 15 respect of the second count the accused is entitled to be acquitted of this charge. In the result the accused is found guilty of the murder of Mncedisi Gula. In respect of the second count in the indictment the accused is found not guilty and acquitted of the attempted murder of Thobela Theophilus Mgatyelwa. JUDGE OF THE HIGH COURT, BISHO DATE: 20 OCTOBER 1999 Heard on the: Judgement delivered on the: Counsel for the state: Counsel for the Defendant: 20, 21, 23, 27 of September October 1999 Mr G.S. Twani Mr A.B. Goosen

IN THE GAUHATI HIGH COURT

IN THE GAUHATI HIGH COURT (THE HIGH COURT: ASSAM: NAGALAND: MIZORAM AND ARUNACHAL PRADESH) Criminal Appeal (J) No. 119 of 2015 Md. Jamaluddin & Another -Versus- The State of Assam & Another Appellants