The issues are clear therefore that the issues are limited to whether at the time the accused shot and killed the deceased he had the requisite intention, and if so, whether there was any premeditation. Notwithstanding the limited issues, a lot of evidence was led and counsel argued extensively over two days. It shall not be possible nor will it serve any purpose to rehash the evidence in detail, hence the summary of the evidence above. It should also be fruitless to attempt to repeat every submission by counsel. This court has, however, taken all the evidence, and that includes all the exhibits and all submissions by counsel, into consideration.
I may add that there were a number of issues which arose during the course of the trial. These issues took a lot of the court’s time and correctly so, as at the time such issues were important to the parties. The issues concerned were inter alia whether or not the police contaminated the scene, the length of the extension cord that went missing from the accuser’s bedroom and the authenticity of photographs of items depicted in various exhibits. Having regarded to the evidence as a whole this court is of the view that these issues have now paled into significance when one has regard to the rest of the evidence. The reason for that view will become clearer later in this judgment.
I proceed to analyse the evidence. I deal first with count 1. There were no eye-witnesses. The only people on the scene at the time of the incident were the accused and the deceased. Notwithstanding this fact, there was no indistinct 10:01:08 of witnesses who were willing to assist this court to determine what could have happened on the morning in question.
Several witnesses gave evidence regarding what they heard or what they thought they heard at the time of the incident. A few could, in addition, tell the court what they observed after the incident. This court is indebted to all those witnesses and this includes expert witnesses who sacrificed their time and resources to come and assist in this matter.
The record of the evidence runs into thousands of pages. Thankfully the nub of what is an issue can be divided into three neat categories as set out hereunder: Gunshots, sounds made by a cricket bat striking against the door and screams in the early hours of the morning. For purposes of this judgment, gunshots, sound made by a cricket back striking against the door and screams will be discussed together as they are to an extent inextricably linked.
It is common cause that on the morning of 14 February 2013, shortly after 3 o’clock various people heard gunshots, screams and other noises that sounded like gunshots emanating from the house of the accused. As stated before, various state witnesses heard screams that they interpreted as those of a woman in distress. They heard noises that sounded to them as gunshots.
The defence admitted that there were shots fired that morning, but added that there were also sounds of a cricket bat striking hard against the toilet door, and that the noises sounded similar and could easily have been mistaken for shots. This was not contradicted. During the course of the trial it became clear that some of the sounds that witnesses interpreted as gunshots were actually not gunshots, but sounds of a cricket bat striking against the toilet door. It was also not contradicted that the shots were fired first and that the striking of the door, using a cricket bat, followed thereafter.
That there was a misinterpretation of some of the sounds is clear from the following: It is common cause that only four gunshots were fired by the accused that morning, yet some witnesses stated that they heard more than four shorts while others heard less than four. This can only mean that some of the sounds that were heard and interpreted as shots could have been from the cricket bat striking against the door. It could also mean that some of the witnesses missed some of the sounds that morning, either because they were asleep at the time or their focus was elsewhere. For example, a witness could have been on the phone at the time.
Significantly Ms Burger refused to concede that she could have missed hearing the first sounds – that is the shots – as she might have been asleep at the time and that what she heard was a cricket bat striking against the toilet door. The evidence of this witness as well as that of her husband, Mr Johnson, is sought to corroborate her evidence, was correctly criticised in my view as unreliable. I do however think that they were unfairly criticised for having made almost identical statements to the investigating officer, Captain van Aardt. After all, they did not write their statements and had no say in the format of the statements. They merely related their version to Captain van Aardt who has his own style of writing and his own vocabulary. The witnesses could not have been expected to know why he wrote in the manner that he did and why
he had to concede that she had never heard him scream when he was facing a life-threatening situation. In any event, the evidence of Mr Lin, an acoustic engineer, cast serious doubt on whether witnesses who were 80 metres and 177 metres away respectively from the accused’s house would be able to differentiate between a man and a woman’s screams, if the screams were from the toilet with closed doors . used certain words and in what sequence. Captain van Aardt was the only one who could have explained that. He was not called to do so. That omission therefore cannot be used against the witnesses.
I do not think that Mr Johnson and Ms Burger were dishonest. They did not even know the accused or the deceased. So they had no interest in the matter. They also did not derive any pleasure in giving evidence. They stated that they were at first reluctant to come forward to give evidence until after the bail application, because they thought it was the right thing to do. They simply related what they thought they heard. They were, however, genuinely mistaken in what they heard as the chronology of events will show