S v Njara
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Makaula ADJP |
| Judgment Date | 17 August 2023 |
| Citation | 2023 JDR 3166 (ECB) |
| Hearing Date | 22 March 2023 |
| Docket Number | CA&R: 16/2022 |
| Court | Eastern Cape Division |
Makaula ADJP:
A. BACKGROUND.
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The appellant was convicted and sentenced on 22 October 2020 by the Regional Court for the Division of the Eastern Cape sitting at Peddie for attempted murder of Masibulela Ngamngam (Mr Ngamngam) and the murder of Hombakazi Gaga (the deceased). He was sentenced to ten (10) years’ and life imprisonment respectively. The appeal is against both conviction and sentence.
The deceased and the appellant were in a love relationship. Mr Ngamngam testified that he fell in love with the deceased in October 2017 and at that time the appellant was no longer in a love relationship with the deceased. However, the appellant contended that he was still in a love relationship with the deceased at the time of her untimely death on 22 January 2018. The deceased was killed with a firearm, at her home, which belonged to the appellant. The appellant alleged that the deceased was shot at by Mr Ngamngam when they were struggling over the firearm. Mr Mngamnga contended otherwise. The court a quo found that the deceased and Mr Ngamngam were shot by the appellant hence the appeal is before us.
B. THE FACTS.
Mr Ngamngam is a single witness regarding the events that led to the killing of the deceased. As aforesaid, they fell in love in October 2017. The deceased informed her that she was, before she met him, in a romantic
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relationship with the appellant which she ended. However, the appellant did not want to accept being rejected to an extent that he threatened to kill her.
On a certain day, the appellant gave him and the deceased a lift in his motor vehicle. When they got to near deceased’s home, where they were to alight, the appellant refused to let the deceased alight. The appellant instructed him to alight from the motor vehicle. The appellant drove off with the deceased. After a while, the deceased came back and made a report about the appellant. She had bruises on her knees and thighs. She informed him that the appellant while riding with her jumped from a moving motorcycle allowing the deceased to crash.
On a subsequent day the deceased showed him messages on her phone, which she alleged, were from the appellant. In the messages, the appellant was threatening to kill the deceased. One evening at about 22h00, the deceased requested him to accompany her to the police station to lay charges against the appellant. The police read the messages. They, together with the police went to the appellant’s home. He was not at home. The police asked the deceased to phone the appellant from her phone and ask him to come to his home. The deceased indeed phoned the appellant and put the phone on speaker so that everybody could hear the conversation. The deceased requested to meet with the appellant at his home. The appellant asked the deceased what the police wanted at his home and refused to come to meet them. The police gave up and they went
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home. The threatening messages continued to an extent that the deceased had to obtain a protection order against the appellant.
On 22 January 2018 the deceased was with Mr Ngamngam in her room. She went outside to brush her teeth. She suddenly came back and locked the door behind her. She reported to him that she saw the appellant coming towards her room. The appellant knocked at the door, and no one answered the knock. The appellant thereafter pushed the door open. The appellant asked to see the deceased outside. At that stage, the deceased was standing against the wall closer to a washing machine facing the deceased and he was seated on a sofa. He heard a gunshot. He immediately stood up and looked. The appellant was standing on the other side of the glass door. The appellant was carrying a gun and he fired a shot through the glass opening of the door at the deceased. The deceased fell on the other side of the washing machine. The appellant again shot at the deceased while she was lying on the floor. He turned and pointed the gun at him. He jumped for the appellant. They wrestled over the firearm. He testified as follows in this regard.
“. . . whilst we were wrestling, we ended up falling, and I was underneath and he was on top of me, and Your worship, I could feel then feel that my left leg was not balancing anymore.” (sic)
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At that stage they were already outside the yard in front of the gate. He managed to dispossess the appellant of the firearm. The appellant ran away. Thabiso called on him not to shoot at the appellant. He told Thabiso that the appellant had killed the deceased. He noticed that the firearm had jammed. There was a bullet stuck in its chamber. In hindsight, he thought that was the reason the appellant could not fire shots anymore and decided to let go of it. He proceeded and placed the firearm on top of the washing machine. The deceased was lying on the floor. There was a lot of blood on the floor. They took her to the hospital where she passed on.
After the struggle, he noticed that he had been injured. He was not sure at what stage the appellant shot at him. He assumed it was when he jumped at him because it was after that that he felt his leg going numb. He testified that he was of the view that the appellant had planned the killing of the deceased because he came on foot leaving his motorcycle at a distance away from the deceased’s home.
Mr Thabisa Manjezi confirmed the evidence of Mr Ngamngam insofar as it related to him. He was at his home when he heard three (3) gunshots. They were not fired in quick succession. He went to investigate. He saw men at the deceased’s home involved in a scuffle. They carried on until they exited the gate. It transpired later that it was the appellant and Mr Ngamngam. The appellant was
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overpowered, and he ran away. He noticed that they were struggling over a gun, which ended up with Mr Ngamngam. He shouted at him not to shoot the appellant. He enquired from him what had happened. Mr Ngamngam said the appellant shot at them and invited him to the deceased’s room. He saw the deceased lying in a pool of blood on the other side of the washing machine. Neighbours gathered and rendered assistance to the deceased. He noticed that Mr Ngamngam was also injured.
Constable Luyanda Hlekani testified that he had helped the deceased when she went to lay a complaint about the death threats she had been receiving from her ex-boyfriend. The ex-boyfriend was the appellant. Indeed, he responded to the complaint by visiting the home of the appellant. The appellant was not present at his home. The deceased phoned him on his cellphone. He spoke to the appellant as the phone was on loudspeaker. The appellant initially said he was busy with his goats. He asked the deceased why she was in the company of the police. The appellant then told the deceased that he was not going to come and meet them. His colleague, Constable Badu pleaded with the appellant to come but he refused. They gave up and...
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