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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVIUSION, PRETORIA

 

CASE NUMBER CC15/19

19/9/2019

 

THE STATE

 

vs

LIQHAYIYA TUTA                                                                                                            Accused

JUDGMENT

BAM, J

 

Appearances: For the State:        Adv A Roos.

For the accused:   Adv J Engelbrecht SC,

and Adv J Kuna

1.         The accused is standing trial on 2 counts:

Count 1: Murder: Committee at Sunnyside on 2 March 2018- the victim: Nkosinathi Kenneth Sithole;

Count 2: Attempted murder: At the same time and place as count 1: The complainant: Lawrence Magalefa.

 

2.         The accused pleaded not guilty to both counts and advanced no plea explanation.

3.         The summary of substantial facts reads as follows:

1.      The deceased and complainant in count 2 were employed by the South African Police Services. On 2 March 2018, the deceased and the complainant in count 2 were on patrol duty in an unmarked vehicle as part of Operation Fiela.

2.      The deceased and the complainant in count 2 noticed the accused and an unknown man crossing Relly Street. The accused was trying to hide a laptop or similar device under his jacket.

3.       The complainant in count 2 pursued the suspects on foot while the deceased looked for a good place where he could make a U-turn with the vehicle. They proceeded with the chase. The complainant returned to the car and they followed the suspects to the Shell filling station. The complainant in count 2 again pursued the suspect on foot and alerted the accused that he was a police officer and demanded him to stop.

4.       The deceased approached with the vehicle and stopped in front of the accused. The accused tried to flee but the deceased tripped him. The officials pinned the accused down. The accused said he was not aware that they were police officers.

5.       The complainant in count 2 produced his appointment certificate and demanded an explanation for the laptop. The accused did not answer. The complainant went to the car to fetch hand cuffs. The complainant in count 2 informed the accused that he is arrested for possession of suspected stolen property. The accused refused to be arrested and a fight ensued. The accused stabbed the deceased and the complainant with a knife and fled the scene on foot.

6.       The cause of death of the deceased as stated in the post mortem report is: "Sharp force trauma to the left eye (with transorbital craniocerebral penetrating brain injury."

 

4.         The accused made a number of formal admissions, including the following:

(a)       The identity of the deceased and the cause of death;

(b)       That the accused made a statement to a police officer as well as a pointing out of a certain scene.

 

5.          From the exculpating statement made by the accused to a police officer, and the exculpating statement he made during the pointing out, the accused's defence became known. It amounts to the following. On the night of the incident the accused and his friend were confronted and attacked by two men. In defending himself the accused stabbed his attackers with a knife he had in his possession. It was common cause that the "attackers" were in reality two policemen on official duty. It follows that the accused's defence firstly amounts to private defence, or more commonly known as self-defence, a defence excluding unlawfulness, where the test is objective, and secondly putative self-defence, which relates to the accused's state of mind and where the test is subjective, in respect of whether the accused genuinely, albeit mistakenly, believed that he was acting in lawful self­defence, or whether his belief was also held on reasonable grounds.

6.          The State adduced the following evidence:

5.1     Constable Lawrence Magalefa. The night of 2 March 29 he and Constable Sithole were on patrol duty in the Sunnyside area, Pretoria. There was an official police operation, Operation Fiela, in swing, due to the high rate of serious crimes in the area. The policemen were driving in an unmarked police VW Polo and patrolling the streets. Both were dressed in civilian clothing but were armed with standard hand firearms. They also wore bullet proof vests with the SAPS logo on the front part. At about 23h00 they noticed two men crossing the street, walking. One was hiding what looked like a laptop under his tracksuit jacket. It looked suspicious. The lighting in the streets was good and the policemen kept the men under surveillance. After having followed the men for some distance through the streets, sometimes on foot, the two suspects at a stage disappeared from view. The policemen however, on looking for them and noticing them again, decided to confront them. Constable Magalefa alighted and called out that they were police and that they should stop. The two suspects ran away. Constable Magalefa followed on foot in hot pursuit, but first had to take off his bullet proof vest because it slowed him down. Constable Sithole then blocked the two men with the Polo . The one with the laptop fell when he was tripped by Sithole and the laptop slid away from the man's body. Sithole then pinned him down with his knee on his back and Magalefa assisted to keep him down by stepping on his back and neck behind the shoulders. Magalefa asked him whether he thought that he could outrun the police. The man however struggled to get away but was kept pinned down by Sithole. The policemen identified themselves and asked the man why he attempted to run away. They got no answer. The policemen told the man that he was being arrested for being in possession of suspected stolen property. The other person that was with the suspect ran away . Magalefa then fetched his set of hand cuffs from the vehicle. Upon his return the suspect and Sithole were standing upright and when he attempted to cuff the suspect' s hands behind his back, he received a blow on the left side of his face. He became dizzy and the world was turning around . He was bleeding profusely. He also noticed that something has happened to Sithole. The suspect ran away. He was unable to use his cell phone due to his blood dripping all over the screen. A young man came to their assistance and reported to the close by police station. He was hospitalised for 34 weeks and was operated upon. His left eye has been blinded and he will probably experience future brain damage effects. He is still suffering and his health condition is bleak.

Sithole passed away.

 

During cross examination he was confronted with the accused's version:

He was confronted by two men in a red Polo ; the men never identified themselves as policemen; he was under the impression that he was about to be kidnapped and robbed; he defended himself when he was attacked by the men.

This version was denied .

 

5.2       Professor L Blumenthal. He is a State Pathologist. He testified about the stab wound sustained by the deceased, Constable Sithole, which caused his death.

The entrance wound, caused by a sharp instrument was above his nose and penetrated his brain.

 

Defence case

6

6.1       Liqhayiya Tuta. He is the accused . He is a student of Law at UNISA. At the time of the incident he resided in the lndwe building in Sunnyside. The night of the incident he accompanied his friend home. Due to the fact that it is a dangerous area he carried a flip knife in his trouser pocket. Whilst walking on the side walk he noticed people in a red Polo. The Polo approached at speed and stopped next to them. The occupants addressed them in a language he did not know. They however , ignored the people and kept on walking. The driver of the Polo then alighted with a firearm in his hand which he cocked which made him run to the Shell garage where his friend caught up with him. The same person who had the firearm then approached and they started running again. The man with the gun came running towards him and he kept on running in the middle of the road. The Polo , driving at speed and stopped right in front of him. The driver alighted and tripped him. He fell on his back and the man stepped on his chest. When he asked the man what he had done, instead of answering him, insulted him, and swore at him. He was then pulled to his feet and taken to the red Polo where the men tried to forcefully push him into the vehicle. But he resisted and took out his knife and stabbed the man who held a tazer (electric shocking device). He saw a blue light in the distance and when he tried to run that way he was blocked by the second man and he stabbed him as well. (He was asked by Mr Engelbrecht to show how he stabbed the two men. He demonstrated by lifting his right hand and arm above shoulder height at level with his head, and executed a stabbing motion directly forward. Unfortunately Mr Engelbrecht is experiencing a sight problem and the accused was asked to repeat the demonstrat ion. He did it three more times in the same way despite the question by Mr Engelbrecht whether the stabbing was a side -way swipe.) He did not see where he stabbed the two men. He managed to break free and ran away. He then realised that the blade of his knife had broken off. At the first place of business he found open he told the security guard what had happened and handed the broken knife handle to him. The security guard however refused to let him in and he was chased away. At another place called club Yolo he also found a security guard who told him he would stop the next passing police vehicle. There were no blue lights visible. He explained to the security guards there were people who wanted to rob and kidnap him. No police vehicle passed and he ran to his residence where he again informed the security guard that he was ambushed by people who wanted to rob him, and that he had stabbed t hem. He then went to the fourth floor and reported to his friends what had happened. Later he used a friend's phone to call his sister and he told her as well what had happened. The next morning he and his sister reported to the police at Sunnyside that he was being kidnapped by people in a Polo. He did not know the registration number of the Polo and the police said he could not open a docket, but supplied him with a telephone number, but did not say whose number it was. The police turned him away. When he was later arrested at his residence he handed the denim jacket he was wearing at the time to the police. He denied that he had a laptop with him that night. He denied that the men involved told him they were police officers. After his arrest he made a statement to a police officer explaining what happened and also made a pointing out of the places where the incidents occurred.

 

Cross examination. The knife he had was a flip knife. He carried it in his trouser pocket. The insulting words the men used were "voetsek" and a Khoza insult. He admitted that he understands English. He again denied that the men said they were police and that he should stop. When asked why he did not immediately go to the close by police station, he said he did not know at the time where it was. When asked why he did not ask the security guards he came across to phone the police, he first said he was afraid and was panicking and then added that it did not cross his mind at the time. He also did not ask his friends or his sister to call the police that night. He conceded that his left pinkie had an obvious visible knife cut as depicted in several photographs of the pointing out album (10 and 12), and that it bled. After having seen his friend at the Shell garage he did not see him again that night.

 

6.2         J Nkuna. He is a friend of the accused and a fellow student. On the night of the incident he and the accused and friends visited a pub where they enjoyed drinks. Later he went with the accused to the latter's residence. Whilst walking down a street they noticed a vehicle behind them and people calling in an unknown language. The accused said they must walk faster less they got robbed. A person then shouted from behind them and he heard the sound of the cocking of a firearm. Then they started running. He and the accused then split up. When he realised that the people were not following him he stopped . He decided to go home to sleep. He was distressed by the incident and the cocking of the firearm. He did not meet up with the accused that night. On his way home he came across a scene where many people were standing around . On the ground were two people, but hey were obscured by the surrounding crowd and he could not see them. One cried out that the police and an ambulance should be called. He then went home. He did not see any police bullet proof vests that night. He did not hear anybody calling out that they are "police".

 

Cross Examination.

He restated the accused had nothing with him when they left his residence. He said that the chase after them was not entirely on foot. (Upon questions by the court he could not explain what he meant by that, but said he did not see anybody running behind them.)

He was asked about the scene where he saw two people on the ground on his way home. The question was put to him why he did not check whether one of the men on the ground was perhaps the accused, his friend, he answered he was too scared and confused at the time.

He also said he was too shocked to check on the accused later that night and he did not call him because he had no airtime.

Concerning the evidence about the laptop and his evidence that the accused had nothing in his possession, he was confronted with the accused's statement made to the police that he had a gas light in his left hand at the time he was attacked. He had no answer.

 

Evaluation

7.         The State bears the onus to prove its case beyond reasonable doubt. There is no onus on the accused. If the accused's version is reasonably, possibly true, he is entitled to be acquitted.

However, in S v Trainor 2003(1) SACR 35 SCA, paras [8] and [9] it was emphasized that when the State's case is totally acceptable and undisturbed, there is no room for a finding that the accused' s version is reasonably , possibly true.

 

8.          The accused' s version, as mentioned above is that he acted in self-defence, and that he did not know that the people who attacked him were policemen executing their duties. As mentioned above, his defence amounts to putative self-defence. The test is subjective, in other words, what the accused had in mind, objectively considered.

9.          The State relies on the evidence of a single witness which calls for a cautionary approach.

10.        The circumstances of the police conduct were explained by Constable Magalefa in detail how it came about that the accused and his friend were kept under surveillance . The policemen patrolled the streets of Sunnyside in the execution of their duties. The reason why they followed the accused and another person in several streets in the area was that it appeared that he was hiding a laptop under his jacket. That aroused their suspicion and caused them to chase after the suspects, after having alerted them they were policemen and that they should stop. The suspects refused to stop and the police used force and strategy to stop the man with the laptop. After they arrested the man, who turned out to be the accused, before he managed to hand cuff him, resisted arrest and stabbed both policemen in the head. The other man got away.

11.         The version of the accused, concerning how it came about that the two policemen were stabbed, is in direct conflict with that of the State, that the assailants, without identifying themselves as policemen, out of the blue, confronted and attacked him, the accused, with the intent, as he thought, to kidnap and rob him, and that he then acted in self-defence by stabbing them in order to get away.

12.         Adv Roos, representing the State argued that the State's case was proved beyond reasonable doubt, whilst on the other hand, Adv Engelbrecht SC submitted that the accused's version is reasonably, possibly, true.

13.         In deciding the issues the court must consider all the evidence, including the circumstantial evidence holistically. And, as Mr Engelbrecht has correctly remarked, the probabilities are of material importance.

14.         The version of the accused, if accepted, will amount to a finding that it is reasonably possibly true that the two policemen, patrolling the crime ridden streets of Sunnyside, without rhyme or reason, pursued two innocent pedestrians, and violently, without having identified themselves as policemen, attacked the accused, justifying his retaliation to stab the two policemen with his knife in self-defence.

15.         Constable Magalefa made a good impression as a witness. He did not contradict himself and his evidence was clear and satisfactorily in every material respect.

16.         The following uncontested circumstances are material:

(i)          The two experienced policemen were tasked to patrol the crime ridden area of Sunnyside in accordance with a police project called Fiela, when they noticed two pedestrians;

(ii)         The policemen followed the two pedestrians for some time down several streets, for a considerable distance, and even losing sight of them at a stage. The policemen kept their vigilance and got sight of them again, and decided to move in.

 

17.       The reason why the policemen followed the two men was that they suspected that one of them was in possession of a suspected stolen object that looked like a laptop. This has the ring of truth, otherwise it has to be inferred that the policemen for an unknown reason targeted two innocent pedestrians, which does not make sense.

18.       In closing in on the suspects the probabilities favour the policemen that they alerted the suspects that they were policemen and instructed them to stop. The version of the accused that the attackers addressed them in a strange language and insulted them is absolutely implausible.

19.       The procedure then followed by the police to subdue the suspect and to attempt to handcuff him, is consistent with standard police practice.

20.       The criticism levelled at the State's case that the State did not prove where the accused got the laptop from and that the laptop was never retrieved, is of no consequence. It would have been a futile exercise to investigate where the laptop came from. The evidence that the laptop slid away from the suspect when he fell, has a ring of truth. The fact that it was not retrieved must be considered against the evidence that both policemen were put out of action and that many bystanders accumulated in that crime ridden area.

21.       The accused's version on the other hand, as referred to above is fraught with inconsistencies and improbabilities to the extent that it cannot be found to be reasonably, possibly true. For purposes of my eventual finding, I refer to inconsistencies and improbabilities, cumulatively considered, in more detail:

(i)        The improbability that the two experienced policemen on patrol duty on a specific mission and purpose, would, without rhyme or reason, attack an innocent pedestrian, after having addressed and insulted him twice in a strange language, and not with the standard and regulatory warning "Police - stop". In the statement the accused made to a police officer he stated that he was fluent in English and lsiXhosa. There is no logic in the accused's version that the policemen addressed and insulted him in a strange language before giving chase;

(ii)      The unreasonable and strange conduct of the accused, that, on his version, after having been attacked, and injured, he reported the matter to three sets of security guards, his friends and sister, without success or effect, and not calling the police, well knowing that two men were seriously injured, and he himself having sustained an open wound during an incident where he was attacked. His explanation that it did not crossed his mind, was clearly not true, and to say the least, unbelievable. What exactly he wanted from the security guards he never explained. He obviously had a motive not to report to the police soon after the incident because, and this is inferential reasoning, he knew that he had attacked and stabbed the policemen. Although there is no onus on the accused, it has to be remarked that his version that he reported to three sets of security guards, and his sister, as well as his friends, and at the police station the next morning, where he received a cold shoulder, was not substantiated at all. The latter part of the version must be considered against the objective facts that the police, who were surely aware that two police officers were seriously injured the previous night in their jurisdictional area, were not prepared to open a docket concerning similar facts that very morning. This is totally improbable . The version of the accused as to what he did after the incident, instead of calling on the police, just did not make sense, keeping in mind that he is an educated man. The accused's conduct in not reporting to the police that night is damning to his version.

The accused, in the exculpatory statement, admittedly made to a police officer, stated that he was arrested at his residence the next afternoon at 15h00 or 16h00. The two exculpatory statements made by the accused after his arrest seems to be a disingenuous afterthought. In any event, it has no evidential value in that the Law of Evidence provides that no person can corroborate himself with a previous consistent statement.

(iii)       The version that the two experienced policemen tried to force him inside the Polo without having handcuffed him or searched him, was emphatically denied by Constable Magalefa, and objectively considered seems to be highly improbable. The policemen were dealing with a suspect in a dangerous area and would surely have made sure that the accused was not armed and that he was hand cuffed before putting him into their vehicle. The accused's evidence in court how he stabbed the first policeman whilst he was pushed into the Polo, is inconsistent with the explanation contained in his statement to the police officer in which he said it was a sweeping movement. In any event, to execute the stabbing motion demonstrated by the accused in court, with his hand above shoulder height, within the small space in the back of the Polo whilst being forced into the vehicle, seemed virtually impossible.

(iv)       The accused also attempted to rely on the evidence of his friend and fellow student, Mr Nkuna, who seemingly witnessed the chase after the accused by men in a red Polo, but who could not explain why, after realising that he was not pursued and that the accused is the person the two men were after and not him, he did not, even from a distance, keep observation what was happening, and, more strangely, why he did not determine whether the accused, who a short time ago had been chased by dangerous armed "unknown men", was not one of the injured men on the ground (in close proximity of the red Polo) crying for the police and an ambulance. This conduct of Mr Nkuna, and his failure to advance any reason why he did not look for the accused after the incident, or even tried to make contact with him, well knowing that the accused was in danger when chased in that area by men who meant him harm, is so unreasonable that it could never pass muster. Mr Nkuna's explanation of what he did and what he did not, is that improbable that the only reasonable inference to be drawn is that he was acutely aware that the accused had attacked the two policemen.

 

22.        It follows that it is found that the State has proved its case beyond reasonable doubt and that the accused's exculpatory version of putative self defence should be rejected as false , subsequently concocted and not reasonably possibly true.

23.         The accused is convicted on both counts as charged: Count 1: Murder;

Count 2: Attempted murder.

 

 

 

AJ BAM

JUDGE OF THE HIGH COURT

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case Number: CC15/2019

 

The State

 

vs

 

LICHAVIVA TUTA                                                                                                              Accused

 

JUDGMENT: SENTENCE

BAM J

1.         The accused was convicted on a charge of murder and a charge of attempted murder. The facts are simple. On 2018 two policemen on routine patrol in the crime ridden Sunnyside, dressed in civilian clothes, attempted to arrest the accused after having given chase, firstly in their unmarked motor vehicle and then on foot, when the accused tried to get away. They suspected him of being in possession of stolen property. The two policemen managed to over-power the accused, and whilst one was keeping the accused under control, the other went to the vehicle to fetch the handcuffs. The accused then drew a knife and stabbed the policeman holding him in in the eye. When the other policeman rushed to assist his colleague the accused stabbed him in the head. The first policeman apparently died on the spot and the second policeman was incapacitated and hospitalised for a long time.

2.          To impose the most appropriate sentence is an onerous and difficult task. The purposes of sentence are : (i) Retribution -that is the punishment itself: (ii) Deterrence; (iii) Prevention; and (iv) Rehabilitation.

3.          The accused was convicted in respect of count 1 of the murder of a policeman on duty. The Act on Minimum sentences of 1998 provides for sentence of imprisonment for life were an officer of law was killed in the line of duty. However, the same Act provides that in the event of the existence of substantial and compelling circumstances justifying a lesser sentence, the Court shall impose a lesser sentence.

4.          In considering whether such circumstances exist the court has to take into account the personal circumstances of the accused, the nature and extent of the crime, and the interests of the community. The latter also includes that the sentence must be victim centred. It means that it has to be taken into account what the impact of the crime was on the victims and/ or his family. Both were married with families to maintain.

5.          A pre-sentence report of the accused was submitted. It forms part of the record. The following aspects were emphasized: The accused was born on 2 November 1996. He was 21 years and three months at the time the crimes were committed. He is a law student at UNISA in his second year. He received a good upbringing at home by parents who were steadfast and educated, and experienced a bonded family life.

6.          The nature of the crimes is extremely serious . A policeman was killed in the line of duty, and his colleague, the complainant count 2, was very fortunate to escape death. The latter’s eyesight is severely affected and he was maimed for life.

7.          It is almost on a daily basis reported in the media that police officers are killed in the line of duty. It is matter of grave concern. It concerns the whole nation. Policemen put their safety at stake to serve members of the public. Many offenders do not show any respect to the police. It appears that very little can be done to protect them, and that it accordingly calls for effective steps to be taken by the courts, and that is to impose severe sentences.

8.          There seems to be a tendency that young people are more and more involved in cases where the victims were mercilessly killed. It is a common phenomenon that men of the accused's age commit serious crimes with total disregard of the sanctity of human lives.

9.          In this case it was remarkable that the accused roamed the crime ridden streets of Sunnyside, at night, and armed with a deadly weapon. The question arising is what went wrong with the accused since his upbringing and education was good. He was not a youth anymore, but showed a total disrespect for law and order.

10.       ln matters of this degree of seriousness the personal circumstances necessarily recede into the back ground. It is however kept in mind.

11.       The second victim was re-employed after his recovery, but is still suffering physically.

12.       The few circumstances in favour of the accused are the fact that he was 21 years and 3 months at the time of the commission of the crimes, that he is a first offender, and that the crimes were not pre-meditated.

13.         However, as referred to above, the aggravating circumstances concerning both crimes, are overwhelming.

14.         The accused showed no compassion towards his victims or any remorse, and maintains his innocence. Although a lack of remorse is not aggravating, it shows his hard core attitude towards other humans.

15.         After consideration of all the circumstances I am not satisfied that the personal circumstances of the accused justify the finding that substantial and compelling circumstances exist to deviate from the prescribed minimum sentence in respect of count 1.

16.         The accused was convicted of a Schedule 6 crime, the murder of a policeman, performing his functions, and this court cannot deviate from imposing the minimum sentence in respect of count 1.

17.         The attack on the complainant count 1 differs from count 2 in that the complainant in respect of count 2 was but fortunate to survive.

18.         He is sentenced as follows:

1.    Count 1: life imprisonment;

2.    Count 2: 15 imprisonment.

 

 

A J BAM JUDGE OF THE HIGH COURT

19 November 2019

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