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- S v Mathekga and Another (Case no 717/2019) [2020] ZA SCA 77 (30 June 2020) (SCA)

Introduction
This is a regrettable and most unfortunate case in which police officials shot and killed one of their own colleagues, and shot and wounded another.

Role-players involved in this case
The late Const Tshomela who was fatally wounded;

Const Sidwell Khumalo who was seriously injured from a gunshot;

Const Mmereki Welcome Mathekga, accused no 1;

Const Johannes Thulani Mngomezulu, accused no 2;

Const Daniel Ndima, made a back-up call after he had been shot; and
an unknown bystander.

Relevant legislation
Section 49 of the Criminal Procedure Act 51 of 1977 (“the CPA”) as amended by the Criminal Procedure Amendment Act 9 of 2012, provides as follows:

“49. Use of force in effecting arrest

(1) For the purposes of this section -

(a) ‘arrestor’ means any person authorised under this [Criminal Procedure] Act to arrest or to assist in arresting a suspect;

(b) ‘suspect’ means any person in respect of whom an arrestor has a reasonable suspicion that such person is committing or has committed an offence; and

(c) ‘deadly force’ means force that is likely to cause serious bodily harm or death and includes, but is not limited to, shooting at a suspect with a firearm.

(2) If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing, but, in addition to the requirement that the force must be reasonably necessary and proportional in the circumstances, the arrestor may use deadly force only if -

(a) the suspect poses a threat of serious violence to the arrestor or any other person;

or

(b) the suspect is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of effecting the arrest, whether at that time or later.”

An English and Afrikaans version of this section 49 of the CPA, together with a brief discussion thereof, was published in Servamus: November 2012.

Discussion
On 14 January 2013 at around 13:45, the two accused police constables who were stationed, at the time, at Jeppe Police Station in Gauteng, as well as other police officials in the area of Hillbrow in Johannesburg, received a back-up call from Const Daniel Ndima, reporting that he had been shot while on duty. The suspect who shot Ndima, had apparently fled the scene and was being pursued on foot by two of Ndima‘s colleagues, namely Const Sidwell Khumalo and the late Const Tshomelo.
In response to the back-up call, the two accused police constables drove to Claim Street next to a taxi rank, in the centre of Johannesburg. As the two accused police constables approached the taxi rank, they saw two men armed with firearms and walking at a rapid pace. These two men disappeared behind a line of taxis. The two accused police constables, armed with an R-5 assault rifle and a Z88 9 mm pistol*, respectively, started shooting in the direction of the latter two men. The bullets went through the windows of the minibus taxis, as well as motor vehicles parked alongside the pavement.

Three minibus taxis and two motor vehicles, which were parked at the nearby taxi rank, were badly damaged by bullets. Twenty-nine spent cartridges were found on the scene in the aftermath of the shooting. An innocent bystander was also injured from a gunshot.

From the moment the shooting commenced until it stopped, everyone, including Const Khumalo, as well as the late Const Tshomela and taxi commuters, had attempted to hide to avoid being shot at. Some fled into the taxis and others out of them.

By the time the shooting stopped, the late Const Tshomela had been fatally wounded, after he had sustained gunshot wounds to the head, the neck, the chest and the back. Const Khumalo sustained wounds to his leg and both hands. Accused 1 found Const Khumalo inside a nearby shop into which he had fled for cover. It was only then that accused 1 realised that Const Khumalo was a member of the SAPS after the latter had identified himself.

In due course, the two accused police constables were charged before the High Court in Johannesburg (“the trial court”). Both were convicted of the murder of the late Const Tshomela, two counts of attempted murder relating to Const Sidwell Khumalo and the innocent bystander, as well as malicious damage to property relating to the taxis and other motor vehicles parked alongside the pavement. Both the accused police constables were sentenced to different terms of incarceration which were all ordered to run concurrently.

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(This is only an extract of this court case published in Pollex in Servamus: December 2020. If you are interested in reading about the Supreme Court of Appeal’s findings in this case and read the rest of the article, send an e-mail to: This email address is being protected from spambots. You need JavaScript enabled to view it. or contact Servamus’s offices at tel: (012) 345 4660/22/41. Ed.)

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