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NOT REPORTABLE

IN THE HIGH COURT Of SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: SS98/00

DATE:2000-08-08

In the matter between

THE STATE

and

JAKKALS MOTSHWANE...............................................................................................Accused

JUDGMENT

WILLIS J: Jakkals Motshwane to whom I shall hereinafter for the sake of convenience refer as the accused, stands indicted on one count of murder and a count of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977.

The first count is the murder count in which it is alleged that on or about 10 May 1999 and at or near the N12 highway in the district of Westonaria the accused unlawfully and intentionally killed Firoze Ebrahim Bhyat. The second count is the robbery count. It is alleged that at or about the date and at or near the place mentioned in count 1, the accused did intentionally and unlawfully assault Firoze Ebrahim Bhyat and with force and violence did take from him R55 930,00 in cash being the property of Firoze Ebrahim Bhyat or in his lawful possession and did thereby rob him of the same aggravating circumstances as defined in section 1 of Act 51 of 1 977.

The accused pleaded not guilty to both counts. Through his defence counsel he handed to court a written explanation of his plea of not guilty in terms of section 115 of the Criminal Procedure Act 51 of 1977.

It is common cause that at the time of the incident giving rise to the indictment, the accused had been in the employ of the deceased. It is common cause that the deceased operated a retail store in Klerksdorp; that the accused had been employed as a general assistant to load and unload the goods delivered to the store and that the accused did some shell packing work.

It is common cause that on the day in question the accused had been asked by the deceased to accompany him on a trip from Klerksdorp to Johannesburg to purchase stock for the shop.

It is common cause that the deceased took with him the amount of R55 930,00 which was in a number of plastic bags, one bag containing the other and transported in the vehicle.

It is common cause that the accused accompanied the deceased on this particular day.

It is common cause that the deceased died of injuries which he had sustained on the road from Klerksdorp to Johannesburg being the N12 in the district of Westonaria.

It is common cause that the deceased died as a result of a stab wound inflicted on his abdomen some 15 centimetres deep by the accused with a knife which is the common sort of kitchen knife readily available and which the deceased had for sale in his shop.

The accused's version to which I shall refer to in more detail later, is essentially this: while he and the deceased had been travelling on the N12 road, an argument broke out between the two of them over arrear wages or salary allegedly owed by the deceased to the accused; that during the course of this argument, the deceased had attempted to attack the accused; that the accused had succeeded in arresting the knife from the deceased and that in the course of the contest that took place between the deceased and the accused, the deceased had been accidentally stabbed.

The principal witness for the state was a Mr Johannes Coetzee. He was a 40-year old man at the time. He was a business consultant and a part-time lecturer at the Potchefstroom University for Christian Higher Education, On the day in question namely 10 May 1999, he had been travelling with a colleague who is a broker, one Mr Humpel, from Potchefstroom to Johannesburg in a white Mercedes-Benz. Mr Coetzee was the passenger in the vehicle. They left Potchefstroom approximately 15:00. Very shortly after the fourway stop near Fochvilie on this N12 highway, he noticed that there was in front of him a white bakkie which was pulling a trailer. Mr Coetzee testified in Afrikaans and said that the vehicle "het begin swenk" which he translated into English as snaked but which I think would be more accurately described as weaved as it was t ravelling up a gradient in the road in which section there was a double lane. The vehicle swung from left to right and back again. He immediately sensed that there was something mysteriously amiss. At that time he was travelling at approximately 120 to 125 kilometres per hour. The bakkie then stopped on the N12 highway. A part of the vehicle was on the tarmac and the remainder on the gravel on the side of the road. It stopped in such a way that the trailer which was being pulled by the bakkie was at right angles to the bakkie, the trailer being in the road. He saw a person stumble out of the vehicle from the driver's side. There is no dispute that this person would have been the deceased. The person who stumbled into the road, tried to draw their attention. Mr Humpel had travelled past the stopped bakkie pulling the trailer. Mr Coetzee said to him that there was something seriously amiss and that they should turn around and go back. The deceased had raised his hand into the air which suggested to him that he was being summoned by the deceased. The deceased held his stomach with his left hand. Mr Humpel turned around and they drove back in the direction of the bakkie and stopped there. He then saw the deceased run towards the accused and grab him with both hands just above his midrib. The deceased then began to collapse and did in fact fall to the ground. Mr Coetzee noticed the accused moving in the direction of Potchefstroom. He threw a plastic bag into the veld. The deceased had a lot of blood on his clothes. Mr Coetzee who has quite considerable knowledge of first-aid, and having attended first-aid courses, and having worked in the emergency sections of hospitals during his student days, Mr Coetzee immediately realised that the deceased was in mortal danger. He summoned emergency assistance on his cellphone and went to the deceased to see if he could be of any assistance whatsoever to him. The deceased said to him "catch him, the man has stabbed me and taken my money". Mr Coetzee described how various vehicles began to stop on the roadside; how nurses from the trauma unit stopped and attended to give first-aid to the deceased and how traffic officers and police officers arrived at the scene. He noticed the accused turning back towards a truck which had stopped. He had heard the accused saying in Afrikaans "ek het horn gesteek, want hy wou nie vir my die geld gee nie". He said that he saw his companion in the vehicle, Mr Humpel, go into the veld and collect the bag which the accused had thrown. Mr Humpel returned with this bag and it was handed over to the traffic police.

The evidence of Mr Coetzee was corroborated in material respects by Mr Humpel and the various other witnesses mainly from the traffic police and the police force itself who testified.

His evidence is also materially corroborated by the facts which are common cause. Such discrepancies as there may be between his evidence and that of Mr Humpel, are in my view of no consequence given the overall circumstances of this particular case.

There is some discrepancy as to who precisely went to fetch the plastic bag and whether the accused pointed out the bag or whether he himself went either out of his own or in the company of others to fetch the bag. This discrepancy is in my view of no consequence because it is common cause that the deceased had been travelling with this bag of money for the purpose of buying stock in Johannesburg; that the accused removed the bag of money from the vehicle and threw it into the veld; that it was subsequently retrieved and that there was in the bag the sum of R55 930,00.

The doctor, Dr Van der Westhuizen, who conducted the post-mortem examination. He gave evidence as to the cause of death which I have already described. His evidence was consistent with the events described by Mr Coetzee save that the doctor believed that it was not reasonably possible if the assault had taken place in the vehicle for all the injuries which the deceased had sustained to have been inflicted by a person using his right hand. This aspect was clarified during the course of the evidence of the accused. It was quite clear from a number of demonstrations which he gave that the accused is a left hand person and that the accused in any event normally uses his left hand either to write or to pick up instruments. In any event it was the accused's own version that the injury sustained by the deceased was inflicted in the bakkie itself.

I have already said that the essence of the accused's version is that an argument broke out in the vehicle over arrear wages or salary alleged to have been owned by the deceased to the accused; that the deceased had attempted to attack the accused; that the accused had succeeded in arresting the knife from the deceased and that somehow by accident in the struggle in the vehicle the deceased had been injured with this knife.

There are a number of very unsatisfactory aspects to the evidence of the accused the most significant of which is the following: the accused was asked to describe on a step-by-step basis the sequence of events from when he had arrested the knife from the deceased to when he had alighted from the vehicle. He was asked this by counsel for the state and on at least two occasions by myself as well. This was a crucial aspect of the evidence for the defence and in evidence-in-chief of the accused was entirely thin on this aspect. The accused entirely omitted in his description given several times to mention any happening remotely consistent with the deceased having been injured never mind having been injured in the manner in which he was namely penetration of his abdomen with the knife. When confronted with this serious omission in his evidence, the accused attempted to explain how this had happened. He gave numerous demonstrations. These demonstrations could not explain how the entry wound had been inflicted.

I may mention, most significantly, that according to the accused he held the knife in his right hand. At the time when the deceased attacked him, he was attempting to open the door of the vehicle. His back would have been turned either wholly or partially and this in turn also depended on different explanations by the accused, it was impossible to see how the injury could have been inflicted on the deceased given that positioning in the vehicle. Moreover I find it impossible to believe that a stab wound of 15 centimetres deep could be inflicted into the abdomen of the deceased by accident. The blade of the knife was 15 centimetres long. It would have had to penetrate the abdomen of the deceased in its entirety to inflict a wound of this nature.

There is a further fundamental flaw in the evidence of the accused. He said that he had attempted to ward off blows being struck at him by the deceased - the deceased holding a knife and he, the accused, had been completely unarmed. Not a single laceration was found on the body of the accused. More particularly not a single laceration was found on his hands which he had used to ward off the blows.

It is common cause that the accused, other than a bite mark on his arm, had no injuries whatsoever at the time of the incident. It must also be borne in mind that the deceased had multiple injuries although the fatal one was that inflicted in the abdomen.

There is another fatal flaw in the evidence of the accused. He said that he had struggled to open the door of the vehicle to get out, the door having been locked. The door could only have been locked in one or two ways - either by himself or through a central locking system operated by the deceased. The accused chopped and changed his version as to how the door happened to have been locked but if the door had been locked through the central locking system and the deceased alighted from the vehicle before the accused, which was the version originally given, then when the accused attempted to alight the vehicle, the door on his side would not have been locked. When the accused realised his essential difficulty on this aspect, he chopped and changed his evidence as to who would have alighted from the vehicle first. He chopped and changed his evidence as to how the vehicle had been locked. This characteristic of the accused to chop and change his evidence, was a familiar pattern throughout. At one stage he said that he had worked for the deceased for three

years. At another stage for three months. At one stage he said he had not been paid for one month. At another stage he said he had not been paid for three months. He contradicted himself as to when he had complained to the deceased about not being paid. He contradicted himself as to when he laid charges with the Klerksdorp police as to the non-payment of wages. Interestingly enough, the accused made no attempt to lead evidence from the Klerksdorp police station as to the fact of him having lodged a complaint.

The accused contradicted himself as to when he had first seen the money. He contradicted himself as to when he had first seen the knife. He contradicted himself as to whether he had used his left or his right hand to open the door of the vehicle. He contradicted himself as whether it had been the deceased who raised the issue of the non-payment of money and the complaint or whether it had been he himself who did so. He contradicted himself as to whether the vehicle had been travelling or stationary when the deceased first attempted to take the knife out of the cubbyhole. He contradicted himself as to whom he had first reported the particular incident and described what he had done and why he had done so. He contra­dicted himself as to whether he had attempted to arrest the knife from the deceased, the knife had fallen to the ground or whether he had caught it before it had fallen to the ground.

There are aspects of the accused's evidence that are inconsistent with that which was put by his counsel to various witnesses. There were also aspects of the evidence of the state witnesses which were not disputed by counsel for the accused but which the accused himself chose to speak when he testified.

The blood stains on the denim jeans worn by the accused, are entirely inconsistent with the injury inflicted in the vehicle as he described it. The blood stains are also inconsistent with the accused's protestation that the deceased did not try and grab him once he had got out of the vehicle.

It is interesting that Mr Coetzee described how after the deceased had attempted to grab the accused, the accused had kicked him or appeared to kick him when the deceased was lying on the ground.

The accused denied that the vehicle in which he had been travelling with the deceased had moved in a strange fashion across the road before it came to a standstill. But the fact of the matter is this1, that something unusual must have occurred and something amiss must obviously have been happening for Mr Humpel to stop and turn around. They had been late for an important meeting in Johannesburg. They were anxious to get there. Something must have drawn their attention to this situation.

There is no reason whatsoever to disbelieve Mr Coetzee's evidence on this aspect and given that we know that the deceased was stabbed and died of an injury inflicted in his abdomen, the only reasonable explanation can be this: that the deceased was attacked by the accused while he was travelling at speed. This explains the movement of the vehicle. Given that the vehicle was travelling at some speed, it is impossible to accept that it was the deceased who initiated the attack.

There are perhaps a few other improbabilities. The evidence that the deceased was in arrear with the payment of wages, was denied by the first witness, Yusuf Bhyat, who is a relation of the deceased. He said that he personally paid the accused and he paid him on a weekly basis and that there were no arrears. The accused described how the deceased immediately before stopping the vehicle had told the accused that he did not want to anything more to do with him and that the accused should get out of the vehicle. This is strange for somebody who seeks the assistance of a person such as the accused to help him to load provisions. If the deceased had intended to dismiss the accused without paying him, the more logical and sensible thing to have done would have been to have done it before embarking on the trip with the accused. It makes no sense whatsoever that having taken the accused for the express purpose of assisting in the loading of the vehicle, he should require him to dismount from the vehicle out of irritation on the question of the non­payment of wages.

it is also important to note that it is common cause and the accused himself admitted this that all the other employees of the deceased had been paid up to date. No reason was ever suggested as to why the accused had been singled out for any specific reason.

In argument it was submitted as to the inadmissibility of the statement allegedly made by the deceased that the accused stabbed him and took the money. This evidence was challenged on the basis that it was hearsay.

It seems to me that this statement had satisfied the old test of admissibility on the basis that it was a dying declaration. In any event the Law of Evidence Amendment Act permits the admissibility of hearsay-evidence after the consideration of various factors. I considered these factors and in particular the fact that this evidence is not such that the entire case against the accused stands or falls apart depending on whether or not it is admitted. It simply completes a broader picture and certain inferences which I shall draw would follow whether this evidence had been tendered or not.

The accused's version that he took the money and threw it into the veld because he was worried that tsotsi's would come and take it, simply cannot be true. It is clear that Mr Coetzee and Mr Humpel had arrived on the scene straight away before the accused on his own version of events took the bag and went off. It was clear to the accused at that time that the deceased was in mortal danger. It must have been obvious to the accused that these two person had come to assist the deceased. They could not by any stretch of the imagination be described as tsotsi's. A further factor to be borne in mind is of course this dying declaration of the deceased which is inconsistent with the version of the accused. A further matter to be born in mind is that the accused contradicted himself as to when he had first seen the money and where it had been placed.

A survey of the evidence as a whole leads one irresistibly to the conclusion that the accused's evidence is false. It cannot reasonably possibly be true. The only inference that can be drawn is that the accused attacked the deceased while he was driving in order to take the large sum of money which was in the deceased's possession. The accused must have foreseen the possibility that the deceased would die as a result of this attack and nevertheless proceeded with his action.

The evidence does not justify the conclusion that the accused had a direct intention to kill the deceased but it compels the inference that there was what is known in lay terms as an indirect intention to kill what is referred to as dolus eventualis.

The evidence as a whole demonstrates beyond reasonable doubt that all the elements for murder in count 1 have been proven and also all the elements for count 2. On count 1, the murder count, the accused is found guilty. On count 2, the count of robbery with aggravating circumstances, the accused is found guilty.

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