S v Joshua

• Jurisdiction: South Africa
• Judge: Nienaber JA, Cameron JA and Mpati JA
• Judgment Date: 31 May 2002
• Citation: 2003 (1) SACR 1 (SCA)
• Docket Number: 332/2001
• Hearing Date: 09 May 2002
• Counsel: W A King for the appellant at the request of the Court. C A Cilliers for the State.
• Court: Supreme Court of Appeal

Mpati JA:

[1] The appellant was arraigned before Rose-Innes J and two assessors in the Cape Provincial Division on five counts of murder (counts 1 - 3 and 5 and 6) and two of attempted murder (counts 4 and 7). He was acquitted on count 1 but convicted as charged on the remaining B counts. He was sentenced to 15 years' imprisonment on each of the four remaining murder counts and five years' imprisonment on each of the two attempted murder charges. All the sentences were ordered to run concurrently, with the result that the effective term of imprisonment is 15 years. Rose-Innes J granted the appellant leave to appeal to this C Court against the convictions and the sentences imposed.

[2] The charges against the appellant arose from the following facts. The appellant and his family lived in Welgelegen Avenue, Delft, Cape Town. During the afternoon of 23 May 1994 the appellant's wife was robbed of a sum of R200 in the presence of her two minor children (a girl aged 12 years and a boy aged 8 years) after she had D made purchases of household necessities. When she arrived home she telephoned the appellant, who was at work, and reported the robbery to him. She informed him that she had been robbed by two youths of whom one had held a knife to her throat. From the description she gave him E the appellant had an idea of who his wife's robbers were. Later that evening he and his wife discussed the robbery over supper. At approximately 20h30 he requested his next-door neighbour, Tohier Hofmeyer, to accompany him in search of his wife's robbers. Hofmeyer agreed. The appellant went into his house and armed himself with his 12 bore calibre Mosberg pump action single barrel shotgun which he fully loaded with six cartridges, while Hofmeyer waited outside. He was well F trained in the use of this type of firearm. He took an additional six cartridges and concealed the shotgun under his overcoat.

[3] When fully loaded the gun holds five cartridges in the magazine and a sixth in the chamber. The cartridges are designated 'LG', which indicates that the shot or pellets inside the cartridge G are the largest available. There are eight pellets in a cartridge.

[4] Across the street in front of the appellant's house is a large sports ground fenced with a vibracrete wall. The appellant and Hofmeyer entered the sports ground through a gate in Welgelegen Avenue H and walked across the length of the sports ground towards the far left-hand corner which abuts Delft Main Road. On approaching that corner they heard voices and on walking further they saw a group of five youths sitting in an 'L'-shape against the wall in the corner. These youths were drinking beer and, according to the appellant, smoking what he believed was dagga. The appellant and Hofmeyer walked I up to the youths, where, standing from a distance of approximately two to three paces from them, he demanded his wife's purse from one of them, who fitted the description given to him by his wife as one of her robbers. It is not in dispute that this youth was Marlin Mohammed (Marlin), a 17-year-old J

Mpati JA

schoolboy and the deceased in the first count. A I shall deal with the detail of what followed later in this judgment but the upshot of it all was that the appellant fired four shots with his shotgun, with the result that three of the youths, namely Marlin, Fabian Rossouw (Fabian) (a 17-year-old, the deceased in count 2) and Mervyn du Plessis (Mervyn) (also 17 years old, the deceased in count 3) were fatally wounded. Another youth, Ivan Mootjie, 14 years old at the B time and the complainant in count 4 (attempted murder), was badly injured in his left upper arm.

[5] Ivan Mootjie's brother, Etienne Isaacs (Etienne), managed to run away but was pursued by the appellant who, during the chase, loaded two more cartridges in his shotgun. Etienne was eight paces C ahead of him. At a certain stage the appellant took aim at Etienne but decided against shooting him. Etienne jumped over the wall of the sports ground and ran into a side street which led him into Delft Main Road. He testified that he ran along Delft Main Road, passed the house of one Abdurahman Hassan (deceased in count 6) and hid in the bushes along Delft Main Road. D

[6] The appellant, having loaded more cartridges in the shotgun, climbed over the wall and followed Etienne to Delft Main Road. He testified that when he entered Delft Main Road he saw Etienne enter Hassan's house. Hassan was unknown to him. He ran along Delft Main Road and when he came close to Hassan's house, which was approximately E 175 meters from the scene of the shooting at the sports grounds, he saw three men standing at the door. The door was open. As to what happened then the versions of the State and the defence differ.

[7] Moses Gouws, 30 years of age and complainant in count 7 F (attempted murder), testified that during the evening in question he, Hassan, Johannes Jacobs (deceased in count 5) and Faizel Pietersen were in an outside room in Hassan's house when an unknown man (the appellant) peeped through a window and asked about a youth who had allegedly run through the property. At that stage Hassan was busy preparing supper for them and was peeling potatoes. He had a G fixed-blade knife in one hand and a potato in the other. Hassan then opened the door and the three of them (Hassan, Jacobs and the witness) stood at the door, with Jacobs slightly behind and to the side of Hassan and the witness behind them but inside the room. The appellant was approximately two to three paces from them. Hassan's dog came H around the corner of the house and barked at the appellant but did not charge or threaten to bite him. The appellant suddenly took out a firearm from underneath his long overcoat and shot the dog. It fell and died close to the door. When Hassan asked why the appellant had shot his dog the appellant turned and shot Jacobs, who fell and died where I he had been standing in the doorway. Thereafter the appellant shot Hassan, who staggered forward as a result of being shot. He asked the appellant: 'Skiet jy nou vir my ook?', whereupon the appellant fired a second shot at him. Hassan, who still had the knife and a potato in his hands then fell down.

[8] Gouws continued that when he realised what was happening he J

Mpati JA

turned around and ran further into the room. While doing so another A shot went off and he felt a burning pain in his right shoulder, as a result of which he fell to the floor. A further shot was fired which struck the wall above and ahead of him. He was approximately five paces from the door when he was shot from behind. He called out to Faizel Pietersen, who was hiding behind a cupboard, that he also had been shot. He assumed, from the position where he was when he was shot, that B the appellant must have moved from where he had been standing when he shot Jacobs and Hassan. Gouws testified that the appellant, after shooting him, entered the room and kicked him, saying: 'Ja, jy is ook vrek.' He went out after the appellant had left and he sat outside until an ambulance arrived and conveyed him to Tygerberg Hospital. C

[9] Gouws's version is supported in material respects by Faizel Pietersen, although there are certain discrepancies in their testimony. While Gouws testified that after Hassan had opened the door he did not say anything, Faizel Pietersen testified that Hassan enquired from the appellant whether he could help him ('kan ek jou D help?'); that after the door was opened, Hassan and Jacobs stood at the door, with Hassan slightly outside, although the witness was unable to say how far from the door Hassan was...