SCA dismisses appeal by cops who mistakenly killed colleague

01 July 2020 - 07:03 By ERNEST MABUZA
Two police officers who shot and killed a fellow officer during a chase in the Johannesburg CBD were convicted of murder.
Two police officers who shot and killed a fellow officer during a chase in the Johannesburg CBD were convicted of murder.
Image: Gallo Images/ IStock

The Supreme Court of Appeal (SCA) on Tuesday reduced by two years a sentence imposed on two police officers who shot and killed one of their own during a chase in the Johannesburg CBD in January 2013.

However, the court refused to set aside their conviction for murder.

Mmereki Welcome Mathekga and Johannes Thulani Mngomezulu responded to a call to search for the suspect who had shot their colleague.

Upon arrival in the vicinity of where the shooting took place, they observed two men in civilian clothes holding firearms and walking briskly.

Mathekga and Mngomezulu did not know that one of those men was police officer who was also on the trail of the suspect.

Mathekga and Mngomezulu fired several shots in their direction.

Constable Michael Tshomela was fatally wounded and his colleague, Constable Sidwell Khumalo, and a civilian were injured.

The two men were convicted of murder, two counts of attempted murder and malicious damage to property.

They were each sentenced to 15 years’ imprisonment on the murder charge and five years on the attempted murder of one of the bystanders. Their sentences were ordered to run concurrently, effectively meaning they were to serve 15 years in jail.

The high court in Johannesburg granted them leave to appeal to the SCA. The appellants maintained they did not have the direct intention to kill the deceased.

They asserted their conduct was only negligent because they had acted unreasonably. At worst, they were guilty of culpable homicide, not murder.

In the majority judgment penned by Judge of Appeal Baratang Mocumie and supported by three other judges, the court said once the trial court concluded they had fired directly at their colleagues with intent to kill, there was no room for a finding they were merely negligent.

However, Mocumie reduced their 15 year sentence to 13 years. She said the reduced sentence would be proportionate to the crime and the criminal and legitimate needs of society.

In a dissenting judgment, Judge of Appeal Tati Makgoka agreed that the appeal against conviction should fail, but said he would have imposed a sentence of eight years imprisonment, half of which was to be suspended.

Makgoka said the appellants were reported to be responsible citizens, with no history of violence or substance abuse.

“They had stable homes and sufficient family support systems. They both verbalised remorse for their part in killing their colleague and injuring another, which had caused them much anxiety and regret.”

Makgoka said they were both found to be suitable candidates for a sentence of correctional supervision.