Mmereki Welcome Mathekga and Johannes Thulani Mngomezulu v The State

On 14 January 2013, two police officers (the appellants), Constables Mathekga and Mngomezulu, responded to a backup call after their colleague Constable Ndima was shot. Upon arriving at a taxi rank in Hillbrow, Johannesburg, they saw two men walking rapidly with firearms. These men were in fact fellow police officers, Constables Khumalo and Tshomela, pursuing the suspect in civilian clothing. The appellants immediately opened fire with an R5 assault rifle and a Z88 9mm pistol without warning. They fired 29 rounds, hitting three minibus taxis and two motor vehicles. Constable Tshomela was fatally shot multiple times (head, neck, chest and back). Constable Khumalo was seriously injured (leg and both hands), and a bystander was also injured. The appellants only realized they had shot fellow officers after the shooting stopped. They were convicted of murder, two counts of attempted murder, and malicious damage to property in the Gauteng Division of the High Court, Johannesburg, and sentenced to 15 years' imprisonment on the murder count (with other sentences running concurrently).

• Whether the appellants objectively and/or subjectively believed their actions were justified by section 49(2) of the Criminal Procedure Act 51 of 1977
• Whether the appellants had the direct intention (dolus directus) to kill
• Whether the trial court misdirected itself in applying section 51(1) of the Criminal Law Amendment Act 105 of 1997 requiring proof that the appellants knew the deceased was a police officer
• Whether a sentence of 15 years' imprisonment was appropriate in the circumstances

The appeal on conviction for murder was dismissed in respect of both appellants. The appeal on sentence succeeded partially. The order of the High Court was set aside and substituted with: 'In respect of murder, each accused is sentenced to thirteen (13) years' imprisonment.' (Majority judgment: Mocumie JA with Cachalia, Mokgohloa and Dlodlo JJA concurring. Makgoka JA dissenting on sentence.)

The binding legal principles established are: (1) Section 49(2) of the CPA requires that before police may use deadly force: (a) there must be an attempt to arrest; (b) the suspect must be resisting or fleeing; (c) it must be clear to the suspect that an arrest is being attempted; (d) the force must be reasonably necessary and proportional; and (e) the suspect must either pose a threat of serious violence or be suspected on reasonable grounds of having committed a crime involving serious bodily harm with no other reasonable means of arrest. (2) Police officers, as trained professionals, are expected to know the legal requirements for the use of force and cannot claim subjective belief in lawfulness when their actions clearly fall outside statutory protections. (3) Section 51(1) of the CLAA (prescribing life imprisonment for murder of a law enforcement officer) only applies where the offender knew or ought reasonably to have known that the victim was a law enforcement officer performing their functions as such. The phrase 'performing his or her functions as such' requires that the officer's actions alert the offender to their status. (4) Where a trial court misdirects itself on the applicable sentencing regime, an appellate court is entitled and duty-bound to consider sentence afresh. (5) In determining whether substantial and compelling circumstances exist to deviate from prescribed minimum sentences, courts must consider the prescribed sentence as the benchmark and assess all circumstances including the offender's personal circumstances, the nature of the offense, and the interests of society.

Mocumie JA made several important obiter observations: (1) Police training programs should be reviewed and reinforced regarding the use of force in arrest situations, stating: 'This judgment must be brought to the attention of those responsible for training the members of the police service so that they begin to train members of the police service appropriately – to reinforce the orders under the Police Service Act 68 of 1995 on the use of force in arresting a suspect(s).' (2) The Constitutional Court's guidance in Walters was emphasized: that the state must set an example of measured responses and demonstrate seriousness about human rights even for suspected criminals, stating that excessive use of force is 'both socially undesirable and constitutionally impermissible.' (3) The Court noted the lack of genuine remorse, observing that the appellants expressed sorrow for killing 'a colleague' rather than another human being, and never reached out to the victims' families. Makgoka JA in dissent made significant observations about: (1) The appropriateness of correctional supervision even for serious crimes like murder where moral blameworthiness is reduced by unusual circumstances. (2) The shift in sentencing philosophy toward rehabilitation and away from pure retribution, citing the Constitutional Court in S v Williams. (3) Concerns about economic inequality in the criminal justice system, noting that wealthier accused can afford expert psychological testimony that may assist with sentencing, while poorer accused cannot, cautioning against creating 'two streams of justice; one for the rich and one for the poor.' (4) The psychological impact of the increasing killing of police officers by criminals, which was not investigated as a possible factor in the appellants' conduct. (5) The reduction from 15 to 13 years being largely 'symbolic' and not reflecting meaningful appellate success, potentially rendering the appeal success 'impotent.'

This case is significant for: (1) Clarifying the requirements for police officers to rely on section 49(2) of the CPA when using deadly force - emphasizing that arrest must be attempted, force must be necessary and proportional, and the suspect must pose a serious threat. (2) Reaffirming constitutional values regarding police use of force, citing Ex parte Minister of Safety and Security: In re S v Walters that the state must demonstrate measured, rational and proportionate responses and respect for life, dignity and physical integrity. (3) Interpreting section 51(1) of the CLAA to require actual or constructive knowledge that the victim was a law enforcement officer performing their functions - it does not apply where the perpetrator could not reasonably be expected to know the victim's identity. (4) Illustrating judicial approaches to sentencing police officers who commit serious crimes while on duty, balancing the seriousness of the offense against unusual circumstances and the officers' backgrounds. (5) The dissent provides important jurisprudence on when correctional supervision may be appropriate even for serious offenses like murder, and raises concerns about unequal access to justice for wealthy versus poor accused persons.