S v Mavela

• Jurisdiction: South Africa
• Judge: Eksteen JA
• Judgment Date: 30 May 1990
• Citation: 1990 (1) SACR 582 (A)
• Hearing Date: 07 May 1990
• Counsel: W A King for the appellant at the request of the Court T N Price for the State
• Court: Appellate Division

Eksteen JA:

During 1986 the deceased, one Petrus Jacobus Fourie, was employed in Port Elizabeth by a construction firm called Clifford and Harris. Early on the morning of 7 July 1986 Fourie, acting in the course of his duty, set out from the firm's premises in a van belonging to G Clifford and Harris, and bearing its logo on the door. He was accompanied by one Jacobs who describes himself as 'the security'. On the back of the van were some nine or 10 labourers with their equipment. They proceeded to the township of Kwazakhele where they were to construct a manhole in one of the streets. They appear to have arrived at their destination some time after 7 o'clock. The labourers got off the van and unloaded their tools H and equipment. Fourie and Jacobs also got out, and Fourie went to show them where the manhole was to be constructed. Having given them their instructions Fourie returned to the van intending to go and fetch the bricks and other material needed for building the manhole. At the door of the van, and just before getting in, he turned to speak to the labourers again, when a shot rang out, and he collapsed next to the van. This was I between 7:30 and 7:45 am and the sun was already up. Jacobs, who was also about to get into the van, looked up in the direction from which the shot had come and saw a Black man standing some six metres away next to one of the houses, pointing a firearm at him. Two more shots rang out in quick succession and Jacobs took cover behind the van. Later he walked round to where Fourie was lying and found that he was bleeding from his left arm and his left side. In fact it appears from the post mortem report that J Fourie sustained two entrance wounds on the

Eksteen JA

A outer aspect of the left upper arm one centimetre in diameter and about half a centimetre away from each other. One of these bullets went right through the arm, penetrating the thoracic cage between the fifth and sixth ribs, passing right through the left ventricle of the heart, and lacerating the right lung.

Jacobs says that all the labourers had fled, so he picked Fourie up, put him into the van and drove back to Clifford and Harris' premises. An B ambulance was summoned but Fourie died as a result of his wounds.

Jacobs described their assailant as being a shortish man of medium build, wearing a dark brownish or greyish woollen cap, similar to a balaclava cap, with a reddish stripe in it, a black lumber-jacket (similar to the exhibit before the Court), a pair of grey trousers, and a pair of black boots (similar to another exhibit before the Court).

C Two of the labourers, Moolman and Schwartz, also gave evidence. Moolman says that when the first shot rang out and he heard the sound of the bullet, he ran for his life without so much as a backward glance. Schwartz says that on hearing the first shot he looked up and saw a Black man standing next to one of the houses with a revolver in his hand. He wore a cap and a black lumber-jacket. After that he fell down D and did not look up again. Moolman says he thinks some four shots were fired in all, but he could not be sure. Schwartz says there were five shots.

The State also called a 19-year-old man, Big Boy Mtuntwana, who lives within a few hundred yards of the scene of the crime. He says that while he was at home one morning he heard three shots ring out in quick succession. He went outside to see what was happening. While standing E next to his house he says he saw the appellant (whom he knew) and two companions run past the street behind his house. The appellant wore a dark brownish balaclava-like cap and a black lumber-jacket similar to the one before the Court, and in his right hand he held a firearm.

After an inspection in loco it was established that the appellant lived about 400 metres away from the scene of the shooting, and it was F common cause that Mtuntwana's house was situated between the scene of the shooting and the appellant's house.

Another State witness was the 65-year-old Petrus Miya, a relative of the appellant. He was a herbalist from Natal who was in the habit of visiting Port Elizabeth periodically for a few months at a time. When in Port Elizabeth he stayed in Kwazakhele very close to where the appellant G lived. During 1986 he says he happened to be at his house in Port Elizabeth. At about 8 o'clock one morning, as he was busy arranging things in his house, he heard a shot. On hearing the shot, he says he stopped what he was doing, stood still listening for a while, and then walked out to see what was happening. As he got to his front gate he saw the appellant come running down the street. He was alone, and wearing a black H lumber-jacket similar to the one before the Court, and a greyish-brown woollen cap with a stripe in it. He did not notice any firearm in the appellant's hands, but says that he may conceivably have had one.

Later that afternoon, towards sunset, the appellant came to his house, and asked him whether he could help him. Miya says he asked appellant what he wanted him to do. Appellant then told him that he had shot a White man I and wanted Miya to give him 'medicine' so that the police would not be able to find him. Miya asked him what the White man had done to him, whereupon the appellant replied that they did not want White people in their township. Miya then gave the appellant a stick to serve as a talisman although he knew full well that this would not safeguard him from arrest. Some time later Miya made a statement to the police.

Detective Warrant Officer Els, the investigating officer, arrested the appellant on 1 March 1988 - more than 18 months after the offence had J been committed.

Eksteen JA

A Both the black lumber-jacket and the pair of black boots which were exhibits before the Court were found by Els at the appellant's home.

As a result of what the appellant told Els shortly after his arrest, Els arranged for Captain Gouws to take the appellant out to the scene of the crime on 2 March to point out certain spots. Before leaving for Kwazakhele Captain Gouws duly informed the appellant that he was a justice of the peace, and warned him that he was not obliged to point B out anything but that, if he did, what he pointed out and what he might say would be noted down and could be used in evidence against him. The appellant indicated that he understood the warning and was still prepared to point out certain spots. Gouws, being satisfied that the appellant was in his sound and sober senses, asked the appellant whether he had been assaulted, threatened or influenced in any way to agree to point out the C spots, to which the appellant replied in the negative. Captain Gouws could see no signs of assault on the appellant, but in order to make doubly...