S v Nocuse and Others

• Jurisdiction: South Africa
• Judge: White J
• Judgment Date: 14 March 1995
• Counsel: A Z Gaju for first, third and fourth applicants L P Pakade for the second applicant
• Hearing Date: 21 February 1995
• Court: Transkei Supreme Court

White J:

Five accused were charged with having wrongfully killed and murdered the deceased, Mlungisi Dabula (count 1), and with having attempted to kill and murder the deceased's wife, Vuyokazi Dabula (count 2) and his three-year-old daughter, Andiswa (count 3). The first accused was acquitted on all three counts. The second to fifth accused were B convicted of culpable homicide on count 1 and of assault with intent to do grievous bodily harm on count 2. They were acquitted on count 3. Each was sentenced, both counts being treated as one for that purpose, to R1 000 or two months' imprisonment of which R500 or one month's imprisonment was suspended for five years on condition the accused is not convicted of any offence of which violence is an element, committed during that period. C The second to fifth accused now apply for leave to appeal against their convictions and sentences. I shall in this judgment, for the sake of convenience, continue to refer to the four applicants as the second, third, fourth and fifth accused. A

The facts of the case are both bizarre and tragic. When the police were D informed that the deceased, an insurance agent, was conveying the dead body of a child in his motor car (which was in fact Andiswa, who was sleeping on the back seat), they pursued it in a police van. The first accused, a policeman, was driving the police vehicle, and the second, fourth and fifth accused, also policemen, were armed and on the back of E the vehicle. The third accused, a member of the Transkeian Defence Force, was seated in the passenger seat. The police vehicle passed that of the deceased on two occasions and attempted to stop it, but it sped on. When the police vehicle caught up with the other vehicle on the third occasion, shots were fired at it, one of which struck and killed the deceased. The third accused testified that the three accused on the back of the police F vehicle were firing at the deceased's vehicle. As it was obvious to him that they were unable to hit it, he requested the second accused to hand him his firearm. When this was done, the third accused fired at the deceased's vehicle. It slowed down and stopped, and the deceased was then found slumped over the steering wheel. He had been shot fatally in the G head. The second, fourth and fifth accused denied that they had fired any shots, and contended that the third accused grabbed the firearm from the second accused and that he, the third accused, was the only one who fired at the deceased's vehicle.

Counsel for the second, fourth and fifth accused, Mr Gaju, has made various submissions in support of his contention that there is a H reasonable prospect of success on appeal. His main submission is that this Court erred in accepting the evidence of the third accused and rejecting that of the second, fourth and fifth accused. In its judgment the Court gave comprehensive reasons for doing so. Counsel for the third accused, Mr Pakade, was not far off the mark when he submitted that after the second, fourth and fifth accused had testified, their 'evidence was in I tatters'. They were not only poor witnesses, but their evidence was also highly improbable and unacceptable. I cannot accept that another Court will come to a different conclusion on this aspect and I must therefore reject Mr Gaju's first submission.

Mr Gaju's second submission is that there are contradictions in the J evidence of the deceased's wife, Dabula, and that of the third accused.

White J

A The Court does not agree that there are any contradictions, other than minor and immaterial contradictions which are understandable in testimonies of a high-speed chase in motor vehicles. The two witnesses corroborated one another on all major and important facts.

Mr Gaju also submitted that the Court erred in finding that there were B other means than killing the deceased by which he could have been prevented from fleeing, and have been arrested - s 49(2) of the Criminal Procedure Act 13 of 1983. This submission was echoed by Mr Pakade. In its judgment the Court stated...