S v Madiki

• Jurisdiction: South Africa
• Judge: Ebrahim J, Ludorf J, Luthuli AJ
• Judgment Date: 07 December 2008
• Docket Number: CA & R 40/2005
• Court: Transkei Division
• Hearing Date: 01 November 2005
• Citation: 2008 JDR 0956 (Tk)

Ebrahim J:

Introduction

1.

In the Court a quo the appellants were charged with, and convicted of one count of murder and two counts of attempted murder and sentenced to an effective period of imprisonment of twenty (20) years. The appellants, with the leave of the Court a quo, now appeal against their convictions.

2008 JDR 0956 p2

Ebrahim J

2.

The appellants, represented by Mr Ndengezi on the instructions of the Legal Aid Board, obtained leave to appeal on 9 September 2002 but failed to prosecute the appeal timeously. They consequently seek condonation for their failure to do so. Mr Lepheana, who appears for the State, has not opposed the application.

The grounds of appeal

3.

The appellants have specified numerous grounds of appeal. Essentially these are that the trial Court misdirected itself in various respects. Firstly, in concluding that the contradictions and inconsistencies in the State case were not material. Secondly, that the unsatisfactory features in the evidence of the appellants were of a material nature and their versions were thus false and not reasonably possibly true. Thirdly, that the appellants shared a common purpose when the offences were committed.

4.

The pertinent issues for consideration in this appeal are encapsulated in the following two questions:

(a)

Did the gunshots emanate from any of the appellants and, if so, which appellant inflicted the gunshot wound that caused the death of the deceased in count 1?

(b)

Did the trial Court err in holding that the evidence established that the appellants had acted in concert and shared a common purpose in respect of each of the offences in the indictment?

2008 JDR 0956 p3

Ebrahim J

The salient facts relating to the shooting incident

5.

The charges against the appellants arise out of events that occurred on the morning of 4 April 1998 at a graveyard in Payne Locality, Umtata. Zolile Maya and various other individuals were in the process of preparing a grave for the burial of his father when the appellants arrived. The appellants enquired how they had gained entry and requested them to leave the graveyard so that they could discuss the matter. Accordingly, they proceeded to where the appellants had parked their motor vehicles. The deceased, Msakaula, arrived accompanied by a number of people. The deceased asked Zolile Maya why they had stopped working on the grave to which the fourth appellant responded that he had to wait for an explanation. Mlamli Memeza then arrived and he, too, asked why work had stopped. Thereupon the fourth appellant and Mlamli Memeza exchanged words. The fourth appellant was at his motor vehicle and tried to open the right-hand side door but Mlamli Memeza prevented him from doing so.

6.

At this stage, there were two gunshots. According to Zolile Maya the first appellant was pointing a firearm at the deceased who was holding his hands to his chest, which was bleeding, and the deceased had then run away. There were more gunshots and Dennis Zonke fell down, bleeding from the thigh. Soon thereafter, the fourth appellant went to where the deceased was lying on the ground and fired a shot at him. Thereafter the

2008 JDR 0956 p4

Ebrahim J

four appellants boarded their motor vehicles, two in each, and drove off with their clenched fists raised in the air as a sign of victory. The four appellants were later arrested and charged, presumably, with the offences on which they were subsequently arraigned.

Analysis of the evidence

7.

The evidence establishes beyond a reasonable doubt that the only persons who were in possession of firearms were the four appellants. There is no credible evidence to substantiate that any other individual was at any stage in possession of a firearm.

8.

It is common cause the shooting incident commenced with two shots being fired. At this stage the fourth appellant and Mlamli Memeza were engaged in physically struggling with each other. It is evident that the fourth appellant could thus not have fired...