Ray Of Hope For Zim Amputated Farm Labourer
Lebogang Mosikare | Monday October 10, 2016 17:58
Khunou shot Ncube at Diphateng lands near Radisele in 2013 over a payment dispute but the court ruled that he was acting in self-defence when he shot him.
Said Makhwade then: “I cannot find as a fact that the accused fired four shots at the complainant. I also find it reasonably possibly true that the shots were fired with the intent to scare rather than to kill the complainant.”
Making his submissions - before the High Court on Friday - of leave to appeal at the Court of Appeal (CoA) , Dick said he was abandoning his other grounds of appeal save for the issue of self-defence.
Dick said the second and third prosecution witnesses said that the respondent (Khunou) had a chance to escape instead of shooting Ncube.
“The respondent was not cornered and had an opportunity to get away. He got in his car and loaded his gun before shooting Ncube. He could have used that opportunity to get away if he felt that his life was under threat from Ncube. We submit that the respondent’s fear was interlaced with the intention to shoot Ncube,” said Dick.
He added: “We submit that the court should grant us passage to appeal at the CoA because Section 16 of the Penal Code that deals with self defence was not properly applied. The means used for self-defence was clearly excessive. The court did not weigh the evidence of the witnesses vis-à-vis that of the respondent adequately. The respondent should have at least been found guilty of attempted murder. Our case is based on facts and points of law.”
In response, Khunou’s attorney Kgololesego Segabo said he was confused as to how he was going to answer the applicant’s papers because he did not understand what the state was saying.
“At this stage, the state is only allowed to appeal on points of law but the state is saying that their arguments are based both on facts and points of law. “It is for the first time I hear of this. A careful look at the state’s papers is confusing. The state seems to be saying that the court erred in finding that the respondent acted in self-defence without explaining self-defence.
“We submit that the court in its judgement has never mentioned Section 16 of the Penal Code. The state’s citing of Section 16 is self-created since it was never mentioned anywhere in the judgement. There is no need to talk about the section further because it is not in the judgement…There is absolutely no reason for the court to grant the state leave to appeal at the CoA,” said Segabo.
Ruling in the matter has been reserved for November 4.