IN THE NORTH GAUTENG HIGH COURT, PRETORIA (REPUBLIC OF SOUTH AFRICA)

Case No: CC 31/2011

In the matter between:

THE STATE

and

JACOBUS STEPHANUS ROUX - Accused

ACCUSED'S PLEA EXPLANATION IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCEDURE ACT NO.51 OF 1977 ("THE CPA") ON A PLEA OF GUILTY TO CULPABLE HOMICIDE ON A CHARGE OF MURDER AND TO THE CONTRAVENTION OF SECTION 65(1)(a) OF THE NATTONAL ROAD TRAFFIC ACT, ACT 93 OF 1996

1. I am the accused in this matter in which I am charged with murder and the offence of contravening section 65(1)(a) of the National Road Traffic Act, No.93 of 1996.

2. I have read the indictment, understand the allegations made therein and I plead guilty to the crime of culab1e homicide and the offence of contravening section 65(l)(a) of the National Road Traffic Act I enter this plea freely and voluntarily and without having been influenced thereto by anybody.

3. In pleading guilty to culpable homicide as aforesaid I admit that on 27 August
2010 in Schoeman Street, Arcadia, Pretoria unlawfully and negligently caused the death of, Johannes Ntshimane Mogale ("the deceased") by assaulting him.

4. I assaulted the deceased inside the motor vehicle by striking numerous blows with my right elbow to the left side of his face and head. Outside the vehicle I assaulted the deceased by hitting him with my fists and by throwing him down upon the ground. When I commenced the assault upon the deceased, I was acting in private defence, in that the deceased had unlawfully taken control of my motor vehicle and was in the process of kidnapping me to a destination unknown to me at the time.

5. I admit, however that I continued with the assault upon the deceased when he no longer posed a threat to me, in that my initial assault had rendered him incapacitated. I refer further to paragraph 9.

6. Although I was intoxicated at the time, my state of intoxication was not such as to render me criminally incapable in the sense that I still knew the difference between right and wrong and I still had the capacity to act in accordance with such insight. I accordingly admit also the element of knowledge of unlawfulness.

7. I admit that the deceased died as a result of the injuries he sustained in the course of the assault described above and that the report on a medico-legal post-mortem examination containing the findings of the medical pathologist, Dr. Seduma Mabotja, who conducted a post mortem examination upon the deceased's body correctly reflect the cause of death and the nature and extent of the injuries sustained by the deceased in the course of the assault as aforesaid. See further in this regard annexure I and paragraph 8 hereof.

8. I further admit that, following my assault upon the deceased, the deceased sustained no further injuries until such time as a medico-legal post-mortem examination was performed on the body of the deceased by Doctor S. S. Mabotja on the 27th day of August 2011. I admit further that the cause of death was correctly found to be: HEAD INJURIES WITH ASPIRATION OF BLOOD. I admit the content and correctness of the medico-legal postmortem examination report compiled by Doctor Mabotja and attach a copy thereof hereto marked Annexure 1.

9. I admit that the deceased died as a result of the injuries sustained during the course of my assault on him.

10. I admit further that the deceased was in life an adult male.

11. I further admit that all of the aforementioned occurred in the district of Pretoria and therefore in the division of the above Honourable Court.

12. In respect of the second count of a contravention of Section 65(1)(a) of the National Road Traffic Act, I admit that on the date and place as alleged in the indictment, I drove a motor vehicle with registration number BCCI 658 NC whilst under the influence of intoxicating liquor.

13. The facts upon which I base my plea of guilty are as follows:

13.1. On the 27th day of August 2010 I drove my VW Polo motor vehicle with registration number BOC 658 NC in Arcadia on my way home. I was on my way home, in Equestria. from the Eastwoods Tavern in Eastwood Street, Pretoria, where a number of friends and I had been drinking. I was intoxicated at the time.

Despite the fact that I was intoxicated, I was nevertheless able to distinguish right from wrong and to act in accordance with such insight.

13.2. At some stage, after I drove off from the Eastwoods Tavern, I was stopped by the deceased, who was in full uniform of the Tshwane Metropolitan Police Department. The deceased did not identify himself to me and neither did he display a nametag on his uniform.

13.3. The deceased ordered me out the vehicle and asked me whether I had been consuming intoxicating liquor. I replied in the affirmative, as I had been consuming liquor at the tavern. I am a professional rugby player and am a member of the Blue Bulls rugby team. At the time I was not scheduled to play in the upcoming match and therefore felt at liberty to take a break from my exercise and dietary program.

13.4. After I had confirmed to the deceased that I had in fact consumed a considerable amount of liquor the deceased proceeded to enter my motor vehicle. I was still standing outside the vehicle at this stage. It was not possible for me to see exactly what he did on the inside of the vehicle. As far as I know, only one of the other Policemen got out of their vehicle.

13.5. When the deceased, however, alighted from my vehicle, he was in possession of a bottle of whisky which had been in the well in front of the passenger seat of the vehicle and which I had purchased earlier that day. He handed this over to one of the occupants of the Police vehicle. I cannot say whether the deceased was in possession of a firearm, I simply assumed that he was.

13.6. The deceased proceeded to the Police vehicle and shortly thereafter returned and ordered mc into the passenger seat. My wallet, with two credit cards, a debit card (in respect of two separate accounts I held with Absa Bank), my driving licence and no cash, had been in the open console between the front seats near the gear lever where I had put it. Although I had not realised this at the time, the deceased must have stolen my wallet, which was nowhere to be seen after the incident.

13.7. The deceased never stated that I am under arrest; he never indicated what he had in mind or where he was on his way to. He simply repeatedly sought to obtain pin number of my bank card. At a stage, he stated that if I provide him with the pin there would be no need for me to be arrested but if I did not do so I would be "fucked up".

13.8. I was bewildered, confused and extremely frightened. I did nol. know what the deceased's motive was, apart from the expressed intention to rob me of my money. I realised that the deceased, despite being a policeman, was intent upon perpetrating a very serious crime and that he may well kill me. I was accordingly in fear of my life but, nevertheless, resolved not to surrender my pin number, because I was fearful that I might be killed once the deceased had succeeded in robbing me of my credit cards, money or motor vehicle.

13.9. The deceased proceeded to drive around with me and repeated the demand for the pin number of my bank card. I continued to refuse to provide him with that information.

13.10. When we crossed the intersection of Schoeman and Richard Streets, I saw the N4 Highway looming before us. At that stage I was very concerned and extremely afraid of what the deceased intended to do with me. I asked him where he is going with inc and he again asked for the pin number. I again refused to provide him therewith; it was at this stage that the deceased said "now we are going to flick you up, now you will see what is going to happen to you".

13.11. At that stage, I realised that I was in a desperate situal.ion and that I would have to use any means at my disposal to get out of that situation. I resolved to defend myself by striking numerous blows with my elbow against the left hand side of his head and face. My purpose was to incapacitate him so as to prevent the continuation of the kidnapping. I accordingly lashed out suddenly and as forcefully as I could by striking the deceased with my right elbow against the side of his face repeatedly.

13.12. The deceased thereupon either jumped or tumbled out of the vehicle, which was then still moving.

13.13. I do not dispute the evidence of the State witnesses that I proceeded to further assault the deceased by hitting him against the head with clenched fists and by lifting him and throwing him to the ground.

13.14. I am at a loss to explain precisely what went through my mind when I rushed at the deceased outside the vehicle. I have anguished over this incessantly ever since the incident. I realise that I should have stopped any further assault upon the deceased when he had landed on the road outside the car. I was in a state of agitation and turmoil as a result of the incident, the likes of which I had never experienced before.

13.15. According to the State witnesses. I proceeded to assault the deceased where the latter was prone on the ground by hitting him with clenched fists; that I was screaming and yelling at the bystanders to call the police and that, at a stage when the deceased had evidently lost consciousness. I proceeded to piead with him to wake up so that he would "pull through'.

14. I further admit that in assaulting the deceased as I did I exceeded the boundaries of private defence and, although I never had the intention to murder the deceased, in assaulting the deceased as I described herein and my exceeding the boundaries of private defence, I acted negligently in failing to foresee that my actions might cause the death of the deceased. J therefore, admit that as far as mens rea is concerned, my conduct falls within the parameters of culpable homicide.

WHEREFORE I admit that I do not have any legal defence to the offences of culpable homicide, which offence is a competent verdict to a charge of murder and attempted murder in terms of the Provisions of Section 258 of the CPA and the driving of a motor vehicle in contravention of section 65(1 )(a) of the National Road Traffic Act.

THUS DONE AND SIGNI2I) AT PRETORIA ON THIS THE 9 DAY OF SEPTEMBER 2011.

JACOBUS STEPHANUS ROUX

Herein assisted by:

R. C. KRAUSE

Attorney for the accused

AND WHEREAS the State is represented by Advocates S. Mahomed, a Senior State Advocate, and Advocate 3. P. van der Westhuyzen, a State Advocate, of the office of the Director of Public Prosecutions, North Gauteng High Court - Pretoria. Advocate Mahomed has been duly authorised in writing, in terms of section I OSA( I )(a) of the CPA, by the National Director of Public Prosecutions to enter into this plea and sentence agreement on behalf of the State, a true copy of which is hereunto annexed marked Annexure "JSR 1". Advocate Mahomed has specific approval in terms of paragraph C6 of the Guidelines for Prosecutors relating to Plea and Sentence Agreements which is hereunto annexed as annexure "JSR 2";

AND WHEREAS the State and the defence entered into plea negotiations which culminated in an agreement on the terms set forth hereunder:

NOW THEREFORE the parties agree as follows:

1.1 The accused understands the nature and particulars of the charge and the summary of substantial facts as contained in the indictment.

1.2 The accused confirms the terms of this agreement and the admissions of the allegations made in the indictment as pleaded in the pica explanation which is annexed hereto and marked Annexure ‘JSR 3'.

1.3 The accused admits that he freely and voluntarily entered into this agreement whilst in his sound and sober senses, and without having been unduly influenced thereto, and that he was assisted by his legal representatives in executing this agreement.
1.4 The accused had indicated from the onset that he wished to plead guilty to the crime of culpable homicide and the driving of a motor vehicle under the influence of intoxicating liquor in contravention of section 65(1)(a) of the National Road Traffic Act.

1.5 The accused records that he has been made aware of the provisions of Section 105A of the CPA, and that he has also been made aware that this agreement is not binding on the Honourable Court;

1.6 The accused further admits that before entering into this agreement he was informed of the following rights:

1.6.1 That he is presumed innocent until proven guilty beyond a
reasonable doubt;

1.6.2 That he may remain silent and not testify during the course of the proceedings; and

1.6.3 That he is not compelled to give self-incriminating evidence.

2. The State has consulted with the police officials charged with the investigation of the matter, Lieutenant Colonel Maluleke, Inspector Mabena and Constable Mafanele. An affidavit of Lieutenant Colonel Maluleke is annexed hereunto as annexure "JSR 4". In so doing the State has complied with Section 105A(l)(b)(i) of the CPA.

3. The State has given due regard to the nature and circumstances relating to the offence, the personal circumstances of the accused person and the interests of the community. In so doing the State has complied with Section I 05A(1 )(b)(ii).

4. The State has consulted with the witnesses and, in particular, with the family of the deceased and afforded them an opportunity to make representations regarding the contents of this agreement. The family of the deceased has been requested via a duly authorised spokesperson to depose to an affidavit in which they express their view on the issue of sentence.

The affidavit of the wife of the deceased is annexed hereunto and marked Annexure ‘JSR 5'. The affidavit is herewith annexed as if specifically incorporated into this agreement. The State has accordingly complied with the Provisions of Section 105A(1)(b)(iii).

5. NOW THEREFORE the parties agree as follows:

5.1 That the State will accept the pleas of the accused in respect of the crime of culpable homicide and the driving of a motor vehicle under the influence of intoxicating liquor in contravention of section 65(1)(a) of the National Road Traffic Act.

6. RELEVANT FACTS OF THE CASE:

6.1 On the 27th day of August 2010 and at approximately 01h40, the accused drove his VW Polo motor-vehicle bearing registration number BGC 658 NC along Schoeman Street, a public road in the district of Pretoria.

6.2 The deceased, Johannes Ntshimane Mogale, a Sergeant in the Tshwane Metropolitan Police, in the employ of the Tshwane Metropolitan Council, was on duty together with Mbulaheni Churchill Nethombonj ("Nethomboni") and Mothoka Lucious Seerane ("Seerane") during the early hours of the morning in question. Seerane and Nethomboni were also and still are members of the Tshwane Metropolitan Police.

6.3 The Police vehicle allocated to the deceased was a marked Metropolitan Police vehicle equipped with blue lights and a yellow and blue checkered band along the sides with the Tshwane Metropolitan Police ensign depicted on the front doors and the bonnet of the vehicle The deceased's aforementioned colleagues, Nethomboni and Seerane were present as the crew in the same vehicle.

6.4 The deceased and the aforesaid Nethomboni and Seerane ordered the accused to stop at the corners of Schoeman and Festival Streets, alleging that he was driving his vehicle under the influcncc of intoxicating liquor.

6.5 The accused admits that he was under the influence of intoxicating liquor, having imbibed a number of drinks at a restaurant by the name of Eastwoods some distance from the place where he had been stopped. In the event of a motorist being suspected of driving whilst under the influence of intoxicating liquor, a Police official is required to place such a person under arrest and to convey such a person forthwith to the Police station in the area of the arrest, where he should have been detained pending further process of the law.

The accused should, furthermore, have been so conveyed in the Police vehicle concerned.

6.6 The deceased failed to place the accused under arrest and, instead, proceeded to drive off in the vehicle of the accused, with the latter occupying the front passenger seat, to an unknown destination. The said Nethomboni and Seeranc followed in the Police vehicle.

6.7 Whilst driving the accused's vehicle the deceased demanded from the accused the particulars of the latter's bank card which the accused refused to reveal. The deceased repeatedly made the same demand, in increasingly threatening and overtly aggressive tones.

The accused concluded :-

6.7.1 that, despite the status of the deceased as a policeman in full uniform and apparently on duty, he was on a criminal frolic of his own, but that the deceased's true intentions as regards the accused was unknown.

6.7.2 One of the possibilities was that the deceased intended killing the accused.

6.7.3 The deceased seemed bent on carrying out his threat to steal the accused's money.

6.8 The accused accordingly resolved to get away from the deceased by whatever means and proceeded to assault the deceased in order to incapacitate him so as to make his escape.

6.9 The deceased died as a result of the injuries sustained in the course of' this assault. The circumstances under which the assault was perpetrated and the nature thereof are addressed in more detail in the plea explanation hereunto attached, marked annexure "JSR 3".

6.10 The accused was under the influence of intoxicating liquor at the time of the incident.

7. The following considerations were taken into account:

7.1 The nature and seriousness of the crime and the circumstances in which the crime was committed.

7.2 The circumstances in which the crime was committed with specific reference to the fact that the deceased was acting in breach of their duties as Metropolitan police official.

7.3 The fact that the deceased lost his life and the impact that his death will have on his family.

7.4 The personal circumstances of the accused and the impact that the crime has had on his personal situation.

7.5 The fact that the accused has no previous convictions of a violent nature, is in fact not prone to violence, has no history of violence and that it is accordingly unlikely that he will commit a similar offence in future.

7.6 The interests of society has also been taken into account with specific reference to the fact that the crime was brought about in part by the unlawful conduct of the deceased, which fact, on the one hand, tends to ameliorate the moral blameworthiness of the accused to an extent, without, on the other, rendering the death of the deceased any the less regrettable.

7.7 The extent of the injuries sustained by the deceased is, at least in part, explicable with reference to the fact that the accused is a large person of unusual physical strength who, through no fault of his own, save indirectly for his state of intoxication, found himself in a situation of emergency which, at its commencement, justified the application of physical force and is, in the circumstances, not indicative of inherent vice on the part of the accused.

7.8 The fact that the accused pleaded guilty, has shown remorse, accepts responsibility for his conduct.

8. WHEREAS all the parties have complied with all the requirements of the Act, namely the provisions of section 105A of the CPA.

9. MITIGATING FACTORS:

The following aspects arc common cause in mitigation of sentence:

9.1 The accused is a first offender in accordance with his list of previous convictions hereunto annexed as annexure "JSR 6".

9.2 The accused has no history of violence.

9.3 The accused pleaded guilty and is prepared to shoulder the consequences of his conduct and has undertaken to make recompense to the family of the deceased.

9.4 The accused is remorseli.il for what he has done. The accused has approached the deceased's family and has expressed his remorse for the fact that he caused the death of the deceased. Upon a specific question by the brother-in-law of the deceased in this regard, the accused explained to the family what happened on the night in questions which explanation the family accepted. The family in the person of Mr Alfred Mogale, the deceased's brother, has indicated that he has experienced a sense of closure as a result of the accused's approach to them and has indicated that the accused's attitude and explanation have enabled him to forgive the accused, which forgiveness the faimly has expressed to the accused during the meeting as aforesaid.

9.5 On the other hand, the family pointed out that the widow Mrs Margaret Mogale has three minor children to support and that financial compensation is necessary to alleviate her financial flce hardship.

9.6 The accused is generally described by those who know him and by those who have known him in the past as a "gentle giant" with no violent or aggressive tendencies whatsoever, it is accepted that it is unlikely that the accused will reoffend.

In terms of section 297(l)(b) of the CPA the accused is sentenced to 5 (five) years' imprisonment which period of imprisonment is suspended for a period of 5 (five) years on condition:

• That the accused is not convicted of murder, culpable homicide or any offence of which violence is an clement and to which he is sentenced to imprisonment without the option of a fine.
• That the accused pays by way of a compensatory fine an amount of R 750, 000.00 to the wife of the deceased, Mrs Mogale, of House number 0069, Block "C" Shakung Village, Brits, which amount shall be deposited into the bank account of Mrs. Margaret Mmatee Mogale [...] held with Absa Bank Limited, [...] before Friday 16 September 2011 at 12h00.
• In terms of section 103 of the Firearms Cono1 Act, Act 60 of 2000, the accused is not deemed unfit to possess a firearm.

THUS DONE AND SIGNED AT PRETORIA ON THIS THE 9^th DAY OF SEPTEMBER 2011

JACOBUS STEPHANUS ROUX

O.b.o THE ACCUSED R. C. KRAUSE

Attorney for the accused.

THUS DONE AND SIGNED AT PRETORIA ON THIS THE DAY OF SEPTEMBER 19 2011.

ADVOCATE S MAHOMED
SENIOR STATE ADVOCATE

Source: http://twitter.com/#!/barrybateman (the full document can be accessed here)

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