S v Ratau

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Roelofse AJ
• Judgment Date: 01 August 2022
• Court: Mpumalanga Division (Main Seat)
• Docket Number: CC 46/2013
• Citation: 2022 JDR 2241 (MN)

Roelofse AJ:

[1]

A robber's accomplice is shot and killed by one of the robbers' victims during an attempted robbery. I have to decide in this matter whether the robber is guilty of the premeditated murder of his accomplice. This judgment finds that the robber is guilty of the premeditated murder of the accomplice.

Summary of the State's case

[2]

The State alleges that the accused (Mr Johannes Walter Ratau) and Mr Tony Lipson Madutela (the deceased) was being detained by the Police and being conveyed by Sergeant Lebone Walter Makhufola (Sergeant Makafola) and Ms Ngakwana Sarena Boloka (Ms Boloka) [1] in a minibus from Sekhukune to Mbombela.

[3]

On route to Mbombela, the deceased attempted to rob Sergeant Makhufola of his service pistol. At the same time, Mr Ratau also attacked Ms Boloka and also attempted to rob her of her service pistol. Sergeant Makhufola shot and killed the deceased during the attempted robbery. For the conviction of Mr Ratau, the State relies upon the doctrine of common purpose.

The charges and plea:

[4]

Mr Ratau stands trial before this court on charges of attempted robbery (Count1) and premeditated murder [2] (Count 2).

[5]

Mr Ratau pleaded not guilty to both counts. In his plea explanation, Mr Ratau said that he did not attempt to rob the police officers of their firearms and he did not murder the deceased.

2022 JDR 2241 p3

Roelofse AJ

[6]

Mr Ratau made admissions in terms of section 220 of the Criminal procedure act 51 of 1977. The State also, by agreement between it and Mr Ratau, handed in the report of the post mortem that was conducted upon of the deceased and a photo album which shows the scene of the crime. The post mortem report confirms that the deceased died as a result of a gunshot wound. This evidential material was not disputed by the deceased and was admitted into evidence.

[7]

The only dispute remaining to be resolved between the State and Mr Ratau was whether the accused attempted to rob the police officers of their firearms; whether Mr Ratau is guilty of murdering the deceased; and whether the murder was premeditated.

The evidence:

[8]

The State relied upon at the evidence of the two police officers, Sergeant Lebone Walter Makhufola and Ms Boloka.

Sergeant Lebone Walter Makhufola:

[9]

Sergeant Makhafola is based at the detective branch at the Sekhukune police station. He was on duty on 23 August 2012 and was requested to transport Mr Ratau and the deceased from Sekhukune to Mbombela in a minibus.

[10]

The deceased and Mr Ratau was seated in last row of the minibus. Ms Boloka was seated in the second row from the back, just in front to the deceased and Mr Ratau. Sergeant Makhafola was the driver of the minibus.

2022 JDR 2241 p4

Roelofse AJ

[11]

On the road between Sabie and Mbombela, Sergeant Makhafola heard a commotion at the back of the minibus. Sergeant Makhafola saw Mr Ratau leaning over Ms Bolka's seat. The next moment Sergeant Makhafola saw the deceased next to him. The deceased grabbed hold of the minibuses' steering wheel. Sergeant Makhafola fought with the deceased to remain in control of the steering wheel. A struggle ensued between the deceased and Sergeant Makhafola. At some stage the minibus came to a standstill and crawled backwards were after it stopped against a tree stump.

[12]

The struggle between Sergeant Makhafola and of the deceased continued. The deceased attempted to take Sergeant Makhafola's service pistol. Sergeant Makhafola prevented this from happening and succeeded to get the pistol from its holster. Sergeant Makhafola the warned the deceased that he would shoot him if he did not stop the attack. The deceased continued with his attack. Sergeant Makhafola fired a warning shot which penetrated the minibuses' roof. The bullet missed the deceased. The deceased continued with his attack upon Sergeant Makhafola. Sergeant Makhafola fired another shot. The bullet hit the deceased penetrating the deceased's heart. The deceased fell down. Sergeant Makhafola saw that the deceased made no further movements.

[13]

At that stage the struggle between Mr Ratau and Ms Boloka was continuing. Sergeant Makhafola managed to get out of the passenger door next to the driver seat and entered the big sliding door of the minibus. Sergeant Makhafola pointed his fire arm at Mr Ratau. Mr Ratau immediately ceased his attack on Ms Boloka and held his two arms over his head appearing to be shielding himself from a possible gun shot.

2022 JDR 2241 p5

Roelofse AJ

[14]

Sergeant Makhafola testified that the deceased and Mr Ratauthe were cuffed to each other with a chain that was cuffed to one of each other's ankles. The chain between the cuffs was approximately 600 mm long.

[15]

Sergeant Makhafola reported the incident to his superiors. Members of the Sabie police station arrived and took control of the crime scene.

[16]

Under cross examination Sergeant Makhafola was challenged on the likelihood that the deceased could have reached Sergeant Makhafola at the drivers' seat while the deceased and Mr Ratau were chained together. Sergeant Makhafola's response was that it was possible because the deceased pulled him from the drivers' seat. Sergeant Makhafola ended up at behind the driver's seat of the minibus in the struggle. In addition, Sergeant Makhafola testified that if the deceased and Mr Ratau's legs were stretched while attached to the ankle chain and therefore it was possible for the deceased to reach Sergeant Makhafola where he was seated while Mr Ratau was fighting Ms Boloka.

[17]

It was put to Sergeant Makhafola that Mr Ratau's version would be that he never attacked Ms Boloka and that he was only in handcuffs and not chained by his ankle to the deceased. This Sergeant Makhafola denied. Sergeant Makhafola referred to the photo album of the crime scene where it can be clearly seen that Mr Ratau was chained to the deceased. Upon this response, it was put to Sergeant Makhafola that it would be Mr Ratau's version that he was chained to the deceased after the deceased was shot. This Sergeant Makhafola denied.

Ms Boloka:

2022 JDR 2241 p6

Roelofse AJ

[18]

Ms Boloka testified that she was with Sergeant Makhofola when they conveyed Mr Ratau and the deceased. Ms Boloka confirmed Sergeant Makhafola's evidence over the positions where she, the deceased, Mr Ratau and Sergeant Makhofola were seated in the minibus.

[19]

Ms Boloka testified that Mr Ratau grabbed her from behind and covered her eyes with both his hands. Mr Rarau also applied force to her neck. Ms Boloka succeeded to remove Mr Ratau's hands from her eyes. During the attack, and after Ms Boloka succeeded to remove Mr Ratau's hands from her eyes, Ms Baloka attempted to go forward to assist Sergeant Makhafola but Mr Ratau grabbed her by her hair and pulled her back.

[20]

Ms Boloka saw that her handbag had fallen to the floor of the minibus during the struggle with Mr Ratau. She reached out for her handbag because her service pistol was in the handbag. Mr Ratau got hold of the service pistol and grabbed it by its bud. Ms Boloka held the pistol by its barrel. A struggle in ensued over the pistol. Ms Boloka saw that the deceased was grabbing the steering wheel of the minibus while Sergeant Makhafola was preventing the deceased from doing so.

[21]

Ms Boloka also saw that there was a struggle between Sergeant Makhafola and the deceased at the seat behind the driver's seat when the minibus came to a standstill. This was while she was still busy fighting off Mr Ratau. Ms Boloka heard a gun shot being fired. Prior to the gun shop being fired, she heard Sergeant Makahafola warning the deceased that if he does not stop his attack, he would be shot. After the first gunshot Ms Boloka heard another gunshot.

2022 JDR 2241 p7

Roelofse AJ

[22]

Ms Boloka testified that she saw Sergeant Makhafola exiting from the passenger door of the minibus and entering into the sliding door of the minibus. Sergeant Makhafola pointed his service pistol at Mr Ratau who immediately stopped his attack on Ms Boloka.

Mr Ratau:

[23]

Mr Ratau testified that he was being conveyed in the minibus with Sergeant Makhafola, Ms Boloka and the deceased. Mr Ratau saw the deceased storming to Sergeant Makhafola. Mr Ratau testified that he was only in handcuffs and that he was not cuffed with an ankle chain to the deceased prior to the deceased launching his attack. Mr Ratau testified that he did nothing while he was seated at the back seat of the minibus. He did not did not attack Ms Boloka. Mr Ratau testified that, after the minibus came to a standstill and the deceased was a shot, Sergeant Makhafola chained Mr Ratau's ankle to the deceased's ankle after the deceased had already died. Mr Ratau denied the version of the state witnesses.

Evaluation of the evidence:

[24]

The...