In the matter between:

THE STATE

versus

CHEMIST NONTSHINGA

HIGH COURT BISHO

CASE No. CC 16/99

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

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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 1998.

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

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

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said which could have caused the accused to react in the manner that he did.

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

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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

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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.

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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.

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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.

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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.

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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

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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. In their respective versions they corroborate

each other in all material respects. They were forthright in their replies and

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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

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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.

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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

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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 1999

20 October 1999

Mr G.S. Twani

Mr A.B. Goosen

respect of the second count the accused is entitled to be acquitted of this charge.