IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO

DATE: 10 JANUARY 2022	       SIGNATURE

				

DATE: 18 JANUARY 2021				SIGNATURE

	    	                             DATE: 19 October 2020

	CASE NO.A223/2020

	

  In the matter between:		
		
ROLSTON PILLAY	              APPELLANT	

And		
		
THE STATE	             RESPONDENT

		
		
______________________________________________________________________
JUDGMENT
Delivered: This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 10 January 2022.
(
MOTHA AJ
INTRODUCTION
1.	The Appellant was convicted in the Regional Court, Benoni, on a count of Murder on 12 June 2020 and sentenced to 15 years’ imprisonment on 13 August 2020. The Appellant was legally represented throughout the trial. The following pages were missing from the record, pages: 186, 293, and 295. 

2.	The Appellant was charged with the murder of Vely Molala, a 17 year old male by shooting him with a firearm on or about 19 May 2017. He pleaded not guilty and presented the court with a written Plea explanation in terms of Section 115 (1) of the Criminal Procedure Act 51 of 1977 (“the Act”). 

3.	Furthermore, he made admissions in terms of Section 220 of the Act, inter alia, that he fired two shots with his service pistol in the direction of the deceased and that the deceased died on 19 May 2017 from the injuries sustained as per the post mortem report. 

4.	He was warned that the minimum sentence of 15 years in terms of the Criminal Law Amendment Act 105 of 1997, as amended, is applicable.

5.	The Appellant successfully applied for leave to appeal both the conviction and sentence. His defence is that of self-defence (private defence). The Appellant’s counsel confirmed that he was not relying on Section 49(2) of the Act. Furthermore, he confirmed that the Appellant would not be prejudiced by the absence of the missing pages because they were not material.
 AD CONVICTION
6.	The Court a quo has detailed the sequence of events. Therefore, it is unnecessary to rehash same save to focus on the following facts;

6.1.	The Appellant was a metro police officer who was on duty on the day in question. It bears mentioning that a reference to his statement is indispensable. Therefore, it is apt to mention the important parts thereof which read as follows: 

“I noticed two black males wearing civilian clothing running down Great North Road direction, Bunyan Street. Bunyan Street is a one- way street in a Northerly direction. I drove on the one-way road facing oncoming traffic, but I did so in a safe way with my blue lights and siren on. 

The two men were running next to the vehicle and trying to get away from the vehicle. I told them to stop as I wanted to question them regarding the robbery complainant but they ignored my request and continued running away from me.

I carried on following them on the oncoming road. I reiterated to them that they must stop as I wanted to enquire as to why they were running away from the police under suspicious circumstances. 

As I crossed onto Bunyan Street I once again instructed the two males to stop as I am a police officer. The two men were running next to each other. One of the men then pointed a firearm revolver into my direction and fired once into my direction. 

As my life was in danger I then returned fire with my service pistol into the direction of the two men who were still running next to each other. The men then ran onto the embankment on the grass section next to the road.

I got out of my vehicle in order to give chase on foot as I was unable to follow them further with my vehicle. As I got out of my vehicle another shot fired into my direction. 

As my life was in danger I took cover behind the barrier next to the road and fired a shot into the direction of the two men who were at that stage still next to each other whilst one of them was still pointing the firearm in my direction. The time was about 13H24. I saw one of the men falling down whilst the other one ran away. I called for backup”.

7.	I will revert back to this statement at a later stage.

8.	The State called three witnesses, Mr Mpilo Kubeka, a so-called street kid, Ms Motshepe an investigator in the EMPD and Mr. Naicker the investigating officer. The State relied on the evidence of a single witness, Mr Kubeka.

9.	It is worth noting that Mr Kubeka was well known to the Appellant. The Appellant used to take him to McDonalds to buy him food. 

MS. MOTSHEPE’S AND MR. NAICKER’S TESTIMONIES

10.	In short, Ms Motshepe stated that she was in the company of a senior Investigating officer from IPID, Thulani Magagula, when he received a call from the Appellant. 

11.	She found this to be strange because the Appellant was supposed to report to his officers in command first. She then attended the scene with Thulani Magagula. She spoke to the Appellant who told her that he had been shot at and stones were thrown at him. 

12.	She went back to the scene after two days or so and interviewed Mr Kubeka. She did not know the witness and saw him for the first time at the day of the incident. Under cross-examination it became clear that the witness statement was obtained on 12 July 2017, almost two months after the incident. 

13.	Furthermore, she was cross-examined at length about a half brick which was never captured in the photographs taken at the scene. Her evidence does not warrant further attention other than to state that there were contradictions about the presence of a half brick. 

14.	I agree with the court a quo that her evidence was not the best but it does not take the matter any further since she was not present when the shots were fired. 

15.	Nothing turns on the evidence of the Investigating officer, Mr Naicker, save to note the contradiction between his and Ms. Motshepe’s evidence on when the witness was first consulted. 

16.	The case pivots around dramatis personae who are Mr Kubeka and the Appellant. 
MR KUBEKA’S TESTIMONY
17.	The incident happened on 19 May 2017. Mr Kubeka’s evidence was heard almost two-years later on 03 May 2019. 

18.	He testified that he was begging at his usual spot between 13:00 and 14:00 in the afternoon on 19 May 2017. Whilst he was seated at corner Bunyan and N12 three young boys appeared and went past him. He stated that they were going to a school in Farrarmere. After 30 minutes only two of the boys re-appeared running. 

19.	Behind them was a metro police vehicle driven by the Appellant. He testified that he saw three gunshots fired by the Appellant. The first gunshot was fired by the Appellant next to the BP garage. When he heard that gunshot he saw that the Appellant had his hand outside the window of his motor vehicle and had fired into the air.  

20.	The second shot was fired when the Appellant had brought his motor vehicle to a halt. The two boys were at that stage going up a slope towards a railway line. It is the second shot that hit one of the boys who then fell down. 

21.	The third shot, according to Mr Kubeka, was fired by the Appellant when the second boy tried to rescue the one who had fallen. Upon hearing that shot the boy ran away. 

22.	The evidence of Mr Kubeka is borne out by the photographs taken at the scene. Furthermore, his evidence dovetails with the Appellant’s testimony in certain material respects. 

23.	For example, in his plea explanation the Appellant mentions that he fired a shot as a response to being fired at whilst still in his car. This corroborates the evidence of Mr Kubeka that he fired a shot whilst still in his car.

24.	Mr Kubeka was cross-examined at length and notable contradictions emerged. These were in relation to when he first saw the two boys whether they were running or walking. Further contradiction was his failure to properly account on what drew his attention to the boys. 

25.	He also contradicted himself as to whether he saw the Appellant firing the first shot or he just heard it. There were also contradictions between his statement and his evidence. However, his evidence that the two boys neither fired at the Appellant nor possessed any firearm remained uncontradited. If anything, this evidence was corroborated by the objective facts and the photographs taken at the scene.

26.	I agree with the court a quo that, taking into account the length of time that had passed before his testimony, his evidence was satisfactory in all material respects. Given that this was not a static scene and the time lapse between his testimony and the incident, it would be strange if there were no contradictions. 

27.	Dealing with contradictions between a witness statements and his or her viva voce evidence in S v Mafaladiso  the court held that:

“The legal approach to contradictions between two witnesses and contradictions between the versions of one and the same witness (such as between his or her viva voce testimony and previous statement) is, in principle (if not in degree) identical. After all, the purpose is in no way to prove which of the versions is the correct one, but to bring conviction that the witness may err, either because of a defective recollection or because of dishonesty (see Wigmore aw paragraph 1017). In the case of self-contradiction, in particular, Wigmore rightly states (tap paragraph 1018)...’’

28.	Despite these contradictions Mr Kubeka’s credibility was not affected, as the court a quo found him to be a credible witness. The Law, in as far as credibility is concerned, is clear. In the matter of S v Leve the court held:

“The fundamental rule to be applied by a court of appeal is that, while the appellant is entitled to a re-hearing because otherwise the right of appeal becomes illusory, a court of appeal is not at liberty to depart from the trial court’s findings of fact and credibility unless they are vitiated by irregularity or unless an examination of the record of evidence reveals that those findings are patently wrong. The trial court’s findings of fact and credibility are presumed to be correct because the trial court, and not the court of appeal, has had the advantage of seeing and hearing the witnesses and is in the best position to determine where the truth lies. See the well-known cases of Rex v Dhlumayo 1948 (2) SA 677 (A) 705 and the passages which follow; S v Hadebe 1997 (2) SACR 641 SCA 645; and S v Francis 1991 (1) SACR 198 (A) 204C-F. These principles are no less applicable in cases involving the application of a cautionary rule. If the trial judge does not misdirect himself on the facts or the law in relation to the application of a cautionary rule but instead demonstrably subjects the evidence to careful scrutiny, a court of appeal will not readily depart from his conclusions.”

29.	On 05 November 2020 an application to lead new evidence was brought in terms of Section 309B(5) of the Act. In a nutshell, the new evidence is to the effect that Mr Kubeka was influenced by the investigating officer Mr Naicker and the other state witness Ms Motshepe to lie about the Appellant. 

30.	Secondly, it is that he did not mention that when he first saw the three boys, as they were going to Farrarmere, one of them had a firearm which was tucked in his trouser. The importance of this statement is muzzled by the fact that he never revealed this information to anyone. He stated the following:

“PROSECUTOR: So basically they never said to you do not say anything about any of the boys having a firearm, it is only that you did not mention it.
MR KUBEKA: Yes I did not mention that. The reason why it is because the lady, the metro lady has already told me that what if I am also involved, I would be involved one day what would happen if it would be me in that situation.”

31.	He, however, stood by his earlier testimony that when the two boys re-appeared they did not fire at the Appellant nor possess any firearm. Under cross-examination he stated that he was neither influenced by Mr Naicker nor Ms Motshepe when he made his statement. He stated the following: 

“PROSECUTOR: Even during the shooting when the accused was shooting you never saw this firearm.
MR KUBEKA: No I did not see the same firearm.

PROSECUTOR: So according to you the statement that was taken by Warrant Officer Pretorius here in court being assisted by interpreter Mr Jose you confirm that is the true reflection of what happened. 
MR KUBEKA: In Lizelle’s room?
PROSECUTOR: Yes.
MR KUBEKA: Yes.
PROSECUTOR: And you were not influenced in any way a bit by either Sergeant Naicker or even Ms Motshepe the Metor Police officer to make the said statement.
MR KUBEKA: No they did not.”

32.	This certainly puts to bed the attempt to create an impression that there was a conspiracy against the Appellant. Furthermore, this new evidence failed in its goal to  mudding the waters. I, therefore, agree with the sentiments expressed by the court a quo that: 

“Therefore it may be accepted as evidence on record. It is however also my view if I had to evaluate the evidence and attach some weight to it that on its own it would have no impact on the court’s conviction as no evidence except from the accused person that the deceased and/or his friend was armed at the time that he fired shots and apart from that there is also no evidence except from the accused person that the deceased and/or his friend would have fired any shots.  So I would not attach any value to the new evidence despite it being on record. It would not affect the judgement of this court at all.”

THE APPELLANT’S TESTIMONY
33.	I now return to his plea explanation mentioned under 6.1 supra. Having read his statement in terms of Section 115 (1) of the Act, which was commissioned on 28 May 2017, the Appellant confirmed the correctness thereof. This proved to be his undoing.

34.	Under cross-examination, the Appellant prevaricated and offered various contradictory versions. In his plea explanation the Appellant categorically states that he was pointed with a revolver which was fired into his direction. 

35.	This changed under cross-examination when he said:  

“More than a kilometre I heard a shot. I saw the firearm which looked like a revolver. I heard a shot. I stopped the vehicle. I jumped out. I was not sure exactly I heard that shot. The next thing while I am looking at these guys the shot comes to me. I had to go on the floor. ”

36.	Still under cross-examination and contrary to the plea explanation, he mentioned that he only saw the revolver when he had gone out of his car. He stated the following: 

“ACCUSED: It came from that direction
PROSECUTOR: So you did not see who discharged this shot?
ACCUSED: No, no.
PROSECUTOR: You just heard the sound of a firearm?
ACCUSED: That is correct yes
PROSECUTOR: And at what stage do you see the firearm?
ACCUSED: When I got out of the vehicle and I was going in that direction I saw that firearm pointing at me and I went on the floor when I heard the second shot.”

37.	It was his testimony that the distance between him and the two boys was plus, minus ten metres, when he fired at them. It is at this distance that he saw the revolver carried by one of the boys for the first time.

38.	I find this highly improbable especially when he said: “After laying on the floor and seeing, you know then I saw the revolver that is why I heard that shot.”  

39.	Hence, I am in agreement with the court a quo that having regard to the tall grass between where the two boys were and where the Appellant says he was when he fired the first shot, it was almost impossible to see the revolver whilst lying on the ground and hiding behind a barrier.

40.	The objective facts arrived at ex post facto do not help the Appellant’s case in that the measured distance between where the Appellant fired, also confirmed by his counsel, his first shot and where the deceased was is 43, 6 metres. 

41.	Furthermore, it is strange that he was able to identify the revolver with precision and yet he could not tell who was holding the revolver between the boys. This failure is illustrated under cross-examination where the following was stated: 

“PROSECUTOR: Who had the firearm amongst the two boys?
ACCUSED: I do not even remember size, heights or whatever of those people. As I’m saying that fire that I saw and the firearm was fired in my direction I went on the floor, the very same direction I returned fire where I saw somebody.”

42.	Contrary to his plea explanation, he mentioned firing two shots when he was outside his motor vehicle lying on the ground. This takes the tally of the shots he fired to three if one has regard to the plea explanation. Materially this corroborates the version of Mr Kubeka that the Appellant fired three shots.

43.	 The Appellant’s counsel made a meal of the fact that the cartridges were found in two different places namely, B and C. He submitted that if Mr. Kubeka was correct both the cartridges would have been found on one spot. 

However, corroborating the evidence of Mr. Kubeka, the Appellant’s testimony is that the second shot was also fired at the same spot when he was lying on the ground. The Appellant stated the following:

 “PROSECUTOR: Okay, you hid under the barrier, you discharged one shot? 
ACCUSED: That is correct 
PROSECUTOR: What happens from there?
ACCUSED: I cannot remember with exactly the first shot. I do not remember exactly but I fired on and then I fired two.” 

44.	The Appellant’s counsel conceded on more than three occasions that the Appellant was not the best of witnesses. Whilst I agree with the Appellant’s Counsel I would go further than that and say he did not act in self defence especially if regard is heard to the following interaction:  

 “PROSECUTOR: You say you go on the floor that is when a shot came out?
ACCUSED: No, no, no. From me a shot came out. Basically here I am driving here. I hear a sound of a firearm. I jump out. I am looking at you and the other guy, two people together. I am looking at a firearm. Next thing a shot and I am on the floor. I was not even sure if I was shot at that stage.”

45.	The last sentence deals a deadly blow to the Appellant’s version that he acted in self-defence. Private defence is defined by CR Snyman as follows:

“A person acts in private defence, and her act is therefore lawful if she uses force to repel an unlawful attack which has commenced or is imminently threatening upon her or somebody else’s life, bodily integrity, property or other interests which deserves to be protected, provided that the defensive act is necessary to protect the interest threatened, is directed against the attacker and is reasonably proportionate to the attack.”

46.	The court a quo was correct in pointing out that the defence of private defence needs to meet certain requirements before it can be accepted. I am also satisfied that the court was alive to the dicta in  S v Ntuli that in determining whether the appellant’s action was lawful or not the court should not judge the events like an armchair critic. 

47.	One should actually put oneself in as far as possible in the shoes of the accused person and see whether he acted lawfully or not. The Appellant could not have acted in self-defence especially when his viva voce evidence is to the effect that:

 “I cannot remember exactly the first shot. I do not remember exactly but I fired on and then I fired two.”

48.	If the last statement is correct, the defence of self-defence must fail. The Appellant’s testimony is riddled with improbabilities and inconsistencies. He failed to explain why the entrance wound was on the side of the deceased when his testimony is that they were facing him. His response to the court’s questions shed more light. He stated the following:

“COURT: Were they facing you?
ACCUSED: Yes, Your Worship when they fired, yes that is correct
COURT: How many shots did you fire?
ACCUSED: I fired two Your Worship 
COURT: Whilst they were facing you?
ACCUSED: That is correct Your Worship
COURT: Are you dead sure of that, they were no longer running away?
ACCUSED: Yes Your Worship I am sure.
COURT: Are you dead sure of that?
ACCUSED: I am sure.
COURT: Then how come this guy is shot in the side?
ACCUSED: They were running up the bank that way, running up the bank like this, they were facing me this way…”

49.	It is telling that the Appellant’s counsel conceded that the deceased did not possess any firearm. As a corollary the deceased could not have posed a mortal threat to the Appellant which justified the use of lethal force. There was no gun residue found on the deceased nor was there any firearm found. 

50.	The Appellant’s counsel submitted that the principle that an accomplice to murder can be charged with the murder of the deceased is applicable here. He relied on S v Nkosi. 

51.	The facts of this case are clearly distinguishable from S v Nkosi. For starters the deceased was not an accomplice to murder and common purpose cannot be gleaned from running with his companion. Secondly, the fact that neither the Appellant’s car was hit with a bullet nor was the barrier hit, shows that the Appellant was not shot at.

52.	It is clear that the Appellant did not act in self-defence and his version is a fabrication which was rejected by the court a quo. Mr Kubeka is a single witness and was found to be credible despite a few contradictions which were not material. 

53.	Section 208 of the Act makes it clear that an accused may be convicted of any offence on the single evidence of any competent witness. I am satisfied that the court a quo took this into account and applied the necessary caution in dealing with the witness as stated in S v Sauls and Another where the court said:

“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of the single witness…The trial judge will weigh his evidence, will consider its merits and demerits and, having done so will decide whether it is trustworthy and whether, despite the fact that there are shortcomings or defects or contradictions in the testimony, he is satisfied that the truth had been told.” 

54.	It is trite that in criminal cases the onus rests on the State to prove its case against the accused beyond reasonable doubt. In S v Van der Meyden the test is set out as follows: 

‘‘The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see, for example R v Difford, 1937 AD 370 at 373 and 383).’’

55.	In the matter of S v Trainor, the court stated the following:

“A conspectus of all the evidence is required. Evidence that is reliable should be weighed alongside such evidence as may be found to be false. Independently verifiable evidence, if any, should be weighed to see if it supports any of the evidence tendered. In considering whether evidence is reliable the quality of that evidence must of necessity be evaluated, as must corroborative evidence, if any. Evidence must of course be evaluated against the onus on any particular issue or in respect of the case in its entirety. The compartmentalised and fragmented approach of the magistrate is illogical and wrong.”

56.	Looking at the totality of the evidence, I can find no reasons to interfere with the trial court’s decision. Therefore, in the absence of any misdirection in the trial Court’s conclusion and acceptance of the evidence of the witness, the Appeal against conviction must fail. 

AD SENTENCE
57.	The Appellant’s is convicted of an offence which falls within part 2, schedule 2, of the Criminal Law Amendment Act 105 of 1997 which provides for a Minimum Sentence of 15 years imprisonment. In order to deviate from the minimum sentence, the court must find substantial and compelling circumstances present which will justify the imposition of a lesser sentence than the one prescribed. 

58.	The issue of sentence falls exclusively within the discretion of the trial court. There is a plethora of cases to the effect that: 

“In any appeal against sentence, whether imposed by a Magistrate or a Judge, the court hearing the appeal- 
(a)	should be guided by the principle that punishment is pre-eminently a matter for the discretion of the trial court and;
(b)	should be careful not to erode such discretion: hence the further principle that the sentence should only be altered if the discretion has not been ‘judicially and properly exercised’.
The test is whether the sentence is vitiated by irregularity or misdirection or is disturbingly inappropriate.”

59.	It was further stated in S v Anderson that: 

“Over the years our Courts of appeal have attempted to set out various principles by which they seek to be guided when they are asked to alter a sentence imposed by the trial court. These include the following: the sentence will not be altered unless it is held that no reasonable man ought to have imposed such a sentence, or that the sentence is out of all proportion to the gravity or magnitude of the offence, or that the sentence induces a sense of shock or outrage, or that the sentence is grossly excessive or inadequate, or that there was an improper exercise of his discretion by the trial Judge or that the interest if justice require it.”

60.	It is still important to look at the triad highlighted in S v Zinn. The following personal circumstances were placed before the court:

60.1.	The Appellant was a 35 year old first time offender;
60.2.	The Appellant was gainfully employed as a traffic officer;
60.3.	The Appellant is the father of 2 minor children and a family man;
60.4.	The Appellant is the sole provider for his family;
60.5.	The Appellant was on duty when the offence was committed;
60.6.	The Appellant acted after having received a report of a robbery at a school;
60.7.	The fact that the Appellant is of ill health and use chronic medication;
60.8.	The prevailing circumstances under which the offence was committed;
Seriousness of the offence:
61.	The Appellant was convicted of a serious offence. Any murder of a young soul deals a heavy blow to the future of this country. There was no proof that the deceased had committed any offence, let alone shot at the police officer. One would expect the police officers to be well trained to deal with the youth and their exuberance not to snuff life out of them. The sense of Ubuntu is of paramount importance in every sphere of our lives. Accordingly, one would expect the police to exhibit Ubuntu in their operation. 

Interest of the community:
62.	The community needs to be protected against wanton destruction of life. The police are expected to be the torch bearers when it comes to protecting the community and human life. 

63.	Unfortunately, there is a trend of the police taking the law into their own hands. As correctly pointed out by the court a quo this reached a crescendo during the lockdown period. This must not be allowed to go unabated. 

64.	Appellant’s counsel submitted that the Appellant was acting during the performance of his duties and that can be considered as an exceptional circumstances which will allow the court to deviate from the minimum sentence. He also relied on the seminal case S v Rabie where the court stated:

“Punishment should fit the criminal as well as the crime, be fair to society and be blended with a measure of mercy according to the circumstances”

65.	The Appellant’s counsel also relied on S v Malgas in particular where the court stated the following:

“If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.”

66.	However, one cannot fully understand S v Malgas without also looking at paragraph 25 (C) and (D) where the court held:

“Unless there are, and can be seen to be, truly convincing reasons for a different response, the crimes in question are therefore required to elicit a severe, standardised and consistent response from the courts.

The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.”

67.	I agree with the court a quo that the imposition of a sentence in terms of Section 276(1)(i) of the Act, as argued by the Appellant’s counsel, which sentence will limit the court’s discretion to a maximum period of 5 years, would be far too lenient.  In fact it would be shocking as a stronger message needs to be sent to those with the power of the powder keg. 

68.	The court a quo could not find any substantial and compelling circumstances to impose a lighter sentence, neither can I. Therefore the trial court correctly imposed a minimum sentence with regard to the count of murder.  Accordingly, I do not have reasons to interfere with the sentence imposed by the trial court.

In the result I make the following order:
ORDER
1.	Appeal against both the conviction and sentence are dismissed. 

_____________________________________
MOTHA AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

I concur
						_____________________________________
                                                                                                 PORTIA D  PHAHLANE
   			                                                          JUDGE OF THE HIGH COURT
  		                         GAUTENG DIVISION, OF THE HIGH COURT, PRETORIA     

Date of hearing: 25 November 2021

Date of judgment: 10 January 2022

Appearances: 

For the Appellant: Adv. M van Wyngaard
(Instructed by: Leoni Naude Inc Attorneys).

For the Respondent: GJC Maritz
(Instructed by: Director of Public Prosecutions).