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S v Motzemi (A206/2008) [2008] ZAWCHC 129 (1 February 2008)

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IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)



CASE NO: A206/2008



In the matter between:

MALCOLM MOTZEMI Appellant

And

THE STATE Respondent



JUDGMENT: FEBRUARY 2009



MEER, J




[1] On 26 May 2006 Appellant was convicted in the Mitchells Plain Regional Court on a count of murder and sentenced to nine years imprisonment. Appellant appeals against his conviction and sentence. Appellant pleaded not guilty in the Court a quo. Appellant however admitted that he shot and killed, the deceased, Boydel Hysamen, on the evening of 12 November 2003, but pleaded that he had done so in self defence. Appellant was one of two Accused before the trial court. Accused 2, was found not guilty.



[2] The grounds of appeal in essence are that the court erred in rejecting Appellant's version that he shot the deceased in self defence as not being reasonably possibly true and in accepting the state had proved the requisite intent on the part of Appellant. It is contended that the Court attached insufficient weight to the contradictions in the testimony of various state witnesses especially those concerning the circumstances during the shooting.


[3] In respect of sentence Appellant contends that the court erred in not considering all the surrounding circumstances and a lighter sentence is called for.



[4] The evidence, facts and circumstances which lead to the conviction of Appellant was as follows. The shooting occurred outside the deceased's house at Oudekloofstraat, Tafelsig, Mitchells Plain. The version of the State was that before the fatal shooting Appellant's co accused, Accused 2 and some others had been involved in a fight near the deceased's house. Accused 2 had pushed over the deceased's grandmother who appeared to have been part of the crowd that had gathered around. The deceased who had not been involved in the fight had apprehended Accused 2 for not helping her up. Although the deceased and Accused 2 had exchanged words, they did not come to blows. Accused 2 then left. Ms Hysamen, the deceased's mother testified that she heard Accused 2 saying after the fight, "Julie gaan nou sien as ek terugkom". Accused 2 drove off to return a fewr minutes later with Appellant m a white Toyota bakkie.



[5] The testimony of state witnesses Mr Witbooi, the deceased's father, Ms Hysamen, and their neighbour Mrs E De Silva pertaining to the shooting was as follows: the street was empty when the bakkie returned, unlike earlier during the fight, the crowd having dispersed. The bakkie came to a standstill in front of the deceased's house where the deceased was standing. The Appellant remained in the car whilst Accused 2 alighted and slapped the deceased. The deceased's mother pushed Accused 2 away. Appellant got out of the car, approached them and said he was there not to talk but to shoot. The deceased's mother who was between the deceased and Appellant tried to intervene but the Appellant shot the deceased over his mother's head, according to the State witnesses standing on his toes as he fired the shot.



[6] There were some discrepancies in the testimony of the State witnesses to the shooting, as alluded to on behalf of Appellant. According to Witbooi there were two people in the vehicle that returned after the fight namely, Appellant and Accused 2 who was driving. Ms Hysamen said that there were three people in the vehicle and Accused 2 was not the driver. Mrs De Silva testified that the deceased's mother had said to Appellant three times "you are not going to shoot my son". According to Witbooi the deceased's mother said nothing to the Appellant. Ms Hysamen testified to saying this once explaining her husband could not remember this as he was in a state of shock at the time. The deceased's parents said Accused 2 had indicated to Appellant with reference to the deceased "Hy was ook saam". Ms Hysamen, saying "My kind was nie saam nie".



[7] Similarly State witnesses G Frans, D Appolos and M Geneker differed in some respects as to what happened during the fight which preceded the shooting. They were all however adamant that it was Accused 2 and not his brother ( as was put to them by the defence), that had been involved in the fight that day. Apollis testified that Accused 2 had left the scene of the fight saying he was going to fetch the gun. Mr Witbooi had identified Appellant five days after the shooting at an ID parade, but had not recognised Accused 2 who was known to him. Witbooi explained that this was because whilst at the time of the shooting Accused 2's hair had been red, it was black at the ID parade


[8] The defence version was that Accused 2 had not been involved in the fight that preceded the shooting. Both Accused 2 and his brother Alfonso testified that it was the latter who had been involved. The court rejected this testimony, given that six state witnesses who knew Accused 2 as a regular visitor to the neighbourhood, had testified to the contrary. The magistrate observed that Accused 2 and his brother did not look alike,the one being short and thick set, and the other being tall and slender.



[9] Appellant's testimony was that on the night in question he had been driving the white bakkie and Accused 2 was in the passenger seat. They were on the way to a braai at Accused 2's girlfriend's house in Tafelsig. He drove slowly on account of the street being crowded, some The passenger door was opened and the crowd pulled Accused 2 out of the car referring to him in derogatory terms and saying "hy was ook saam". Appellant did not knowr what they were talking about- He got out of the car and saw Accused 2 down on the ground covering his face and being kicked by 6 or 7 people.



[10] Appellant said he saw a man writh a pickaxe. This prompted Appellant to take his gun from his holster and pointing it downwards, he kicked people away from Accused 2. The crowd moved back when they saw the gun. Appellant helped Accused 2 up and told him to get into the car. From the corner of his eye he saw someone coming with a knife in his hand, lifting it shoulder high. This person wras a step away. Appellant lifted his gun, one shot went off which hit the deceased. He then pointed his gun to the rest of the crowd, got into the car and drove to the police station where he reported that he had shot someone. Appellant denied the state's version of events. He could offer no explanation as to why all three state witnesses testified he had said he had come to shoot before shooting the deceased.



[11] Accused 2 could not explain why the state witnesses all testified he had been involved in the fight preceding the shooting. He said when the crowd had dragged him from the car, he had incurred injuries to his hands, shoulder, face and his mouth had bled. He was unable to satisfactorily explain how he had seen the person with the knife t given his description as to how he got into the car.


[12] In assessing the evidence the Court was alive to the discrepancies in the testimony of the state witnesses He noted also that at the time of the incident the deceased's father had been recovering from an illness and had observed some of the events from his lounge. The magistrate noted also that it was understandable that a mother confronted with the prospect of her son being gunned down, might not afterwards remember exactly what was said and how many times. The discrepancies were not considered to be material and the state witnesses1 testimony was accepted, the Court observing also that their version had withstood cross examination.



[13] In rejecting the version of the defence the magistrate aptly noted there was no explanation as to why there was a mob in the street intent on attacking Accused 2, and also that Accused 2's evidence as to how he was assaulted by the mob did not tally with the injuries he testified he had sustained. I note, too, as alluded to by Respondent, that Appellant's description of his position when he shot the deceased, does not tally with the injury to the deceased, as per the post mortem report which indicates an entrance wound to the right eye.



[14] The witnesses to the shooting all spoke with one voice on the crucial aspect as to how precisely Appellant shot the deceased, his intent and the words he had uttered before the shooting. The discrepancies in the detail of their telling the story, does not detract from this. They were competent and corroborative witnesses to the manner of the shooting and the Court was correct in accepting them to be so. A consideration of the testimony as a whole requires the juxtaposing of the strength of such corroborative evidence against the absence of any explanation on the part of Appellant as to why these three witnesses would attribute the intent to kill to Appellant, the absence of an explanation for the mob attack or an explanation as to why Accused 2's injuries did not tally therewith. This leads me to conclude that the State had proved its case beyond reasonable doubt and that the version of the Appellant was not reasonably possibly true,


[15] With regard to the sentence, in deviating from the minimum sentence of 15 years the court in my view adequately considered ali relevant factors pertaining to Appellant. Indeed, it may even be said that Appellant was fortunate to have attracted a sentence less than the prescribed minimum , in the circumstances.

[16] In view of all the above I would dismiss the appeal.


MEER, J



I agree



CLEAVER, J