S v Rala (Appeal)
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Pangarker AJ and Sher J |
| Judgment Date | 12 September 2023 |
| Citation | 2023 JDR 3437 (WCC) |
| Hearing Date | 11 August 2023 |
| Docket Number | A209/2022 |
| Court | Western Cape Division, Cape Town |
Pangarker AJ (SHER J concurring):
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Pangarker AJ (Sher J concurring)
Introduction
The appellant appeals against his conviction and sentence imposed by the Wynberg Regional Court on six serious offences which emanate from the same incident which occurred in Gugulethu. The appeal is dealt with in terms of section 19(a) of the Superior Courts Act 10 of 2013. The appellant was sentenced to life imprisonment for murder (count 1) and has an automatic right of appeal, and the appeal in respect of counts 2 to 6 is with leave of the Regional Court.
I summarize the charges and sentences imposed by the Regional Court as follows:
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Count 1: |
Murder read with section 51(1) of the Criminal Law Amendment Act 105 of 1997 – life imprisonment |
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Count 2: |
Robbery with aggravating circumstances – 15 years’ imprisonment |
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Count 3: |
Attempted murder of Constable Asanda Momoza – 10 years’ imprisonment |
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Count 4: |
Possession of an unlicensed firearm (9mm Parabellum Glock semi-automatic pistol) - 15 years’ imprisonment |
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Count 5: |
Possession of 7 x 9mm calibre live rounds of ammunition – 3 years’ imprisonment |
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Count 6: |
Attempted murder of Constable Kudwa Sambula – 10 years’ imprisonment |
To give more context to count 1, the State alleged that the appellant murdered Zolani Noethe by shooting him with a firearm and relied on section 51(1) of the Criminal Law Amendment Act (CLAA) [1] that the deceased’s death was caused by the appellant in the commission of robbery with aggravating circumstances where the appellant acted in common purpose with the deceased in the commission of such offence. In respect of count 2, the appellant was convicted of aggravated robbery of Constable Momoza’s
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Beretta semi-automatic service pistol and used a firearm during the commission of the offence. In respect of counts 3 and 6, the appellant was charged with and convicted of the attempted murder of Constables Momoza and Sambula by shooting at them with a firearm.
Proceedings in the Regional Court
The appellant was legally represented throughout the trial and he pleaded not guilty to counts 1 to 5, whereafter the matter was postponed on the first trial day. When the matter resumed on 28 September 2020, the State added count 6, to which there was no objection and in respect whereof, a plea of not guilty was also tendered. The appellant offered no plea explanation in respect of the six charges he faced.
The State called five witnesses, who were all police witnesses, and after the conclusion of Warrant Officer Engelbrecht’s evidence, the State closed its case. Thereafter, the appellant elected not to testify and closed his case. The record reflects that on the magistrate’s enquiry regarding count 1, the defence advised the Court that there would be no admissions as the State intended not pursuing the murder charge, presumably because there was insufficient evidence to secure a conviction.
However, on the next Court date, the State applied to re-open its case in order to admit into evidence the post-mortem report and further chain evidence related to the murder charge. The defence objected to the application and after hearing argument, the magistrate granted the State’s application to re-open its case.
As a result, the post-mortem report and chain statements were handed into evidence and marked as Exhibit B, and thereafter, the State closed its case. Pursuant to the magistrate’s ruling that the appellant was entitled automatically to re-open his case, the latter elected to testify in his own defence and called no witnesses. As the appeal is
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against conviction on all six charges, I proceed below to set out the material aspects of the evidence led during the trial in the Regional Court.
Evidence presented by the State
On 23 August 2017, at approximately 22h00, Constables Sambula and Momoza [2] of Gugulethu SAPS accompanied an ambulance and its personnel to NY147, a residence in Gugulethu. The police’s assistance was needed because ambulance personnel were regularly robbed when entering Gugulethu. Momoza was the senior colleague and the driver of the marked police vehicle and parked outside NY147 while the ambulance personnel attended to a patient inside the residence. Sambula was his passenger and was seated in the front passenger seat. The police were requested to assist the ambulance personnel to load the patient into the ambulance, but before they could alight from the vehicle, two males armed with firearms, approached the police vehicle from each side.
The suspect who approached Sambula’s side of the vehicle, pointed a firearm at him. Sambula looked toward his colleague and saw another man [3] , whom he identified as the appellant. The appellant knocked with a firearm against the driver’s side of the vehicle, to instruct him that the officers should exit the vehicle. Momoza exited the driver’s side of the vehicle very quickly and managed to hit the armed man, grabbed his hand and pushed at him to avoid being shot. Momoza and the man became involved in a scuffle, and as Momoza tried to gain the upper hand, the man pointed the firearm directly against Momoza’s stomach and shot him.
Momoza’s Beretta pistol fell to the ground during the scuffle which had progressed to the opposite side of the road. After being shot, Momoza experienced numbness in his left leg and he fell to the ground and lost consciousness briefly. On regaining
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consciousness, he could not find his firearm and saw the man who shot him, approaching him and firing in his direction, but was unable to do anything due to his injury. Momoza assumed that the man had robbed him of his service firearm.
In the meantime, on the other side of the police vehicle, Sambula had also exited the passenger side. The suspect facing him pointed a firearm at him and demanded Sambula’s firearm and all the while, Sambula could hear shots being fired from the driver’s side of the vehicle. Sambula testified that he shot the suspect who pointed a firearm at him and then ran to Momoza where he saw his colleague lying face-down on the ground.
It was at that stage, as Sambula ran around the vehicle, that he saw the appellant approaching him with a firearm in one hand and Momoza’s firearm in his other hand, and continuing to shoot at him. Sambula returned fire and shot at the appellant who fell to the ground [4] on the other side of the road, but the shootout did not end there. Sambula, realizing that his ammunition was spent, ran back to the passenger side of the police vehicle to take cover, and all the while the appellant continued approaching and shooting at him.
Sambula managed to take an R5 rifle from the vehicle and fired two shots at the appellant who fell down opposite the police vehicle. Sambula ran to the appellant and proceeded to kick the firearms out of the appellant’s hands. Sambula then called for back-up assistance and ran to assist the injured Momoza.
Other police officers and another ambulance arrived on the scene and transported the appellant and Momoza to hospital for medical attention. Sambula pointed out firearms to police who arrived on the scene. The suspect whom Sambula had shot on the passenger side of the vehicle, had died on the scene.
Sambula estimated the appellant to have been 10 to 12 metres from him when he
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shot him and the latter fell on the other side of the road. As to the lighting on the scene, both police officers testified that there were street lights on the road and where the appellant was lying after the shooting. Furthermore, Momoza could clearly see the person who pointed the firearm at him and identified the appellant as the man with whom he had a scuffle and who had shot him. Neither of the two officers knew the appellant prior to the incident.
Sambula stated that he estimated the entire shooting incident lasted about 5 minutes and that the appellant wore dark clothes and a dark blue/navy-coloured beanie or cap on his head. On this aspect, Momoza was forthright that he could not describe the clothing which the appellant wore but that he was indeed wearing a cap, beanie or hood on his head. Furthermore, Sambula confirmed Momoza’s evidence that the appellant was in possession of two firearms, one of which belonged to Momoza.
Sambula and Momoza were adamant that there was no taxi rank in the area nor were there any taxis available at 22h00 in the vicinity where the shooting occurred. Sambula indicated that there were no other pedestrians present and that the appellant was alone in the street at the time of the robbery and shooting. Sambula also pertinently denied that the appellant ran when he heard gunshots: his evidence was that if the appellant’s version were true, one would have expected the appellant not to run in the direction of the shooting, which is what he did.
Sambula estimated being approximately one metre from the appellant when he approached Momoza’s side of the police vehicle. Momoza denied that he could be mistaken as to the identity of the appellant as they were involved in a scuffle and the latter had a firearm. Momoza elaborated that the appellant had looked at him when he knocked on the window with a firearm, that there was eye-to-eye interaction between them, and the appellant’s face was visible beneath the cap. Furthermore, he had a clear view of the appellant’s face.
Sergeants Mthunzi Mabeta and Luvuyo Mpangele of Gugulethu SAPS testified that
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on 23 August 2017 they were...
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