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Student constable Sipho Mbatha should not be found guilty of murder but possibly culpable homicide, the High Court in Johannesburg heard on Wednesday.
“The State hasn't proved a case of murder beyond reasonable doubt,” said advocate Kenneth Manyage, for the defence.
Manyage advised the court to consider the contradictions in the testimony of several witnesses.
He said one witness told the court that Thato Mokoka, 16, crawled out of his shack after being assaulted by a police officer who was inside.
Another witness told the court Mokoka walked out of his shack with his hands in the air. This witness also placed a second police officer next to Thato moments before he was shot. No other witness mentioned this officer.
Mokoka was shot dead outside his grandmother's house in Braamfischerville Soweto, on February 14, during a police raid on the premises.
Judge Kathleen Satchwell disputed Manyage's submissions.
“Everybody will experience or see things differently... That's acceptable... .We need to look at the main issues in the case and that is what was the intention of the accused.”
Manyage argued Mbatha had not been told whether Mokoka had been searched or not. He said Mbatha could have thought Mokoka still posed a danger.
Satchwell again disputed this.
“If the accused had given evidence and said he thought of searching the deceased, I wouldn't have disputed that.
“But no other witness has mentioned anything about a search, so to me that doesn't exist.”
Satchwell said the events before the shooting were not relevant. She needed to understand how and why it happened.
“Did the shooter intend to press the trigger and perhaps he was negligent of the consequences? Or did the shooting happen as a result of negligence or being careless?”
She said she still could not understand why Mbatha chose to not take the stand.
Earlier, the State presented its closing arguments. Advocate David Mothibe advised the court to hand down a guilty verdict.
“This is a point-blank shooting,” said Mothibe.
He argued that all the evidence showed Mbatha intended to kill Mokoka. He continued to hold his R5 rifle towards Mokoka, despite being advised to leave the scene as no weapon had been found. Mothibe told the court Mokoka posed no danger to anyone on the scene.
The State argued that the number of shots fired and the body parts hit suggested intention. Four bullets entered Mokoka's body, causing eight wounds, mainly in his back and head.
The court was told Mbatha said “Ngenzeni” (What have I done?) after the shooting. This was an admission of guilt, argued Mothibe.
Mothibe criticised Mbatha for choosing not to testify.
“He knows that his version wouldn't be the truth.”
Throughout the proceedings Manyage told the court Mbatha's rifle went off accidentally as he bent over to search a prone Mokoka.
Said Satchwell: “I find this version believable. It could be that Mbatha was reckless. It could have been culpable homicide, but this version presented by Manyage falls away because the accused did not give evidence.”
Both the State and defence have closed their arguments.
Judgment was expected to be delivered on Friday. - Sapa