S v Shilakwe
Jurisdiction | South Africa |
Judge | Brand JA, Ponnan JA and Shongwe JA |
Judgment Date | 01 June 2011 |
Citation | 2012 (1) SACR 16 (SCA) |
Docket Number | 614/2010 [2011] ZASCA 104 |
Hearing Date | 25 May 2011 |
Counsel | HL Alberts for the appellant, instructed by the Justice Centre, Pretoria and Bloemfontein. JJ Kotze (DPP, Pretoria and Bloemfontein) for the State. |
Court | Supreme Court of Appeal |
Ponnan JA (Brand JA and Shongwe JA concurring):
[1] On Sunday 30 November 2003 at approximately 5 pm Ms Florence Mazibuko was standing together with her friends, Maria and Abdul, outside Adam's Store in Klip River when she observed four men enter J
Ponnan JA
A the store and emerge with a two-litre cola drink. Whilst they were drinking the cola drink one of four complained that he was hungry. Two of them then re-entered the store ostensibly to purchase bread. After a short while, one of the two who had remained outside approached Ms Mazibuko and her friends. He drew a firearm, threatened to shoot them if they made a noise and ordered them into the store. Ms Mazibuko B described the firearm as a handgun that was brown in colour with a wooden handle.
[2] According to Ms Mazibuko, when they entered the store, one of the four men was emptying the cash register. Another had what she C described as a long firearm trained on Ms Hawa Ebrahim, the proprietor of the store. He then struck Ms Ebrahim in her face with the firearm, grabbed her hair and stamped on her. He threatened to shoot her if she did not supply him with the keys to the safe. When she did not comply he discharged his firearm. Ms Ebrahim eventually relented and produced the keys from her person and accompanied her assailant to the D safe. Ms Mazibuko became aware that a certain Mr Witbooi, who was alongside her, was whimpering. Concerned that he would attract attention to himself and her, she asked him to keep quiet. She then observed that a liquid was oozing out of his mouth and heard one of the group tell the person who was in possession of the long firearm: 'You have shot E him.' The group then made good their escape with two boxes that they had filled with cigarettes and other goods from the store. On leaving the store one of the four locked the door to the store from the outside.
[3] Shortly after the robbers had fled, Mr David Mbakaza, a security guard, arrived in a marked security vehicle at Adam's Store to purchase food. He was alerted by Ms Mazibuko to the occurrence of the robbery F and was informed that someone had been shot during its course. Mr Mbakaza set off in his vehicle in pursuit of the robbers. As he approached a railway bridge in close proximity to Adam's Store he noticed a white Toyota Venture motor vehicle parked under some trees. He drove past the Venture and proceeded in the direction of a nearby G informal settlement. He took the precaution of recording the registration particulars of the Venture. At the informal settlement Mr Mbakaza made a U-turn. On his way back he observed two males who, upon seeing him, started to run. He telephoned the police emergency number 10111 but there was no response. He thereafter dialled 112 and reported the H matter. He then realised that the Venture, which was being driven by a person with dreadlocks and had another occupant in the front passenger seat, was following him. No sooner had that realisation dawned on him when he fortuitously came upon a police vehicle and signalled to them.
[4] Captain Molotsi of crime intelligence and Constables Matsose and I Molefe had just set out from Adam's Store in pursuit of the perpetrators of the robbery when they came upon Mr Mbakaza. Responding to his signal they stopped the Venture and arrested its two occupants. Acting on the information furnished by Mr Mbakaza those police officers then set off in pursuit of the two men who had earlier been observed on foot.
[5] When the police officers came upon those two men, one of whom was J dressed in a white T-shirt and the other in a black T-shirt, they started
Ponnan JA
to run. Constable Matsose chased after the one in the black T-shirt, who A turned and shot at him with a shotgun. Constable Matsose lost sight of that person in the veld. In the meantime Mr Corné Kriek, a commando member, who had been alerted to the robbery, joined the police in their search for the suspects after having received a report from Capt Molotsi. He was alerted by the screams of a group of children who pointed in the B direction of a male in a black T-shirt running in the veld. As he approached that person, with his firearm at the ready, that person appeared to lose his footing and fell in the tall grass. Mr Kriek arrested him, handcuffed him and handed him over to one of the other police officers who had also joined the search, Sgt Malindi. Sergeant Malindi, C who searched the person in the black T-shirt immediately after his arrest, found a 12-bore shotgun cartridge in his pocket. Constable Matsose immediately recognised the person in the black T-shirt, who had been arrested, as the one who had earlier fired on him with a shotgun, whilst being chased.
[6] According to Capt Molotsi, the person in the white T-shirt was D prevented from making good his escape by a group of men who had arrived on the scene in response to his call for back-up. The person in the white T-shirt surrendered and he was also arrested and informed by Capt Molotsi that he was suspected of having been involved in the robbery at Adam's Store. The next day a search was conducted of E the area. Inspector Erasmus, who took over as the investigating officer of the case, came upon some boxes under the railway bridge. The contents of those boxes were subsequently identified as having been stolen from the store during the robbery. And Sgt Alfred Retief, whilst undertaking a sweep search of the area where accused 2 had been arrested, found a F shotgun which, according to him, appeared to have been recently discarded at that spot.
[7] The four persons arrested that day were formally charged with robbery, murder, the attempted murder of Const Matsose and the unlawful possession of firearms and ammunition. G
[8] The driver of the Venture, Mandla Innocent Sehatsane, was initially...
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2014 index
...115S v Sharp 2002 (1) SACR 360 (Ck) ...................................................... 254S v Shilakwe 2012 (1) SACR 16 (SCA) ................................................. 439S v Siebert 1998 (1) SACR 554 (A) ...................................................... 107S v Sigwahla 196......
-
2012 index
...178S v Shaw 2011 (1) SACR 368 (ECG) .................................................... 93-105S v Shilakwe 2012 (1) SACR 16 (SCA) ................................................. 339S v Sigwahla 1967 (4) SA 566 (A) ....................................................... 400S v Sithole 198......
-
An introduction to proof in South Africa
...SACR 76 (CC) para 51; S v Monyane 2008 (1) SACR 543 (SCA) para 21; S v Van Devent er 2011 (1) SACR 238 (SCA) para 8; S v S hilakwe 2012 (1) SACR 16 (SCA) para 11; S v Shiburi 2018 (2) SACR 485 (SCA) para 30; S v Oosthuizen 2020 (1) SACR 561 (SCA) para 20; S v Doorewaard 2 021 (1) SACR 235 (......