Homeless man had not intended to fight officer who shot him dead, claims witness

• Dumisani Joxo had not intended to fight the law enforcement officer who shot him dead, a state witness said in the trial of a Cape Town law enforcement officer accused of murdering the homeless man.
• The officer, Luvolwethu Kati, has pleaded not guilty to the charge of murder.
• He told the court in a statement that he had been acting in self-defence when the shot which killed Joxo went off.

Dumisani Joxo had not intended to fight the law enforcement officer who shot him dead, state witness Linda Mbuqe told the Wynberg Regional Court in Cape Town on Monday.

Mbuqe was testifying in the murder trial of law enforcement officer Luvolwethu Kati, who shot and killed Joxo in Rondebosch in January 2022.

Kati has pleaded not guilty to the charge of murder. In a statement read out by his lawyer in court, Kati said that he had been acting in self-defence.

Mbuqe previously testified that on the morning of the incident he made himself something to eat so that he could take medication. Mbuqe said he boiled water in a pot over a fire and made pap. He said law enforcement officers arrived and kicked over the pot.

On Monday, Mbuqe told the court he had grabbed a pickaxe and walked towards Kati. He admitted that he was angry. He said he told Kati that he was hungry and needed to eat to take his medication. Kati’s female colleague took the pickaxe from Mbuqe.

At this point, Joxo came out of his tent. Mbuqe said Joxo was angry when he heard that Kati had knocked over the pot and started swearing at the officer.

Mbuqe said Kati moved towards him, pushed him in the face with one hand and pulled the trigger with his other hand. The bullet hit Joxo who was standing behind him.

During Mbuqe’s cross-examination, Kati’s attorney John Riley said, “If I understood your testimony correctly, even though the female law enforcement officer took the pickaxe from you, you still advanced towards my client which caused him to move backwards. And the reason why you did that is because you were not scared of him.”

Mbuqe told the court that after the other officer had taken his pickaxe, he calmly approached Kati to ask him to buy something else to eat since he had knocked over the pot of pap.

Riley asked Mbuqe if he approached Kati with the intention to fight, but Mbuqe denied this and told the court that he was “speaking nicely” to Kati.

“If you were speaking calmly to him and nicely, there would have been no reason for my client to retreat,” Riley said.

“I was speaking nicely to him,” said Mbuqe, “but he retreated because he wanted to stand where everyone could see him … I just approached him as a man and just wanted to speak to him.”

Riley argued that Mbuqe and Joxo had approached Kati with the intention to fight him and take his firearm from him. “Both of you were angry. Both of you were going to show him that you were not scared of the firearm.”

Mbuqe denied this.

At the end the cross-examination, Riley argued that at the time Joxo was shot he was armed with a knife and Mbuqe was armed with a pickaxe. Riley told the court that according to state witnesses and Kati, a knife had fallen from Joxo’s pocket after he was shot. Mbuqe said that if Joxo had a knife on him, it was not intended to be used to attack Kati.

Joxo’s partner, Christin Coleridge, was the second witness.

She said that she and Joxo were in their tent when she heard Mbuqe shouting that someone had knocked over his porridge. She left the tent to see what was happening, and saw Mbuqe fetch his pickaxe.

“They were busy arguing and swearing at each other in Xhosa. Linda [Mbuqe] was trying to demand that the law enforcement officer buy something else for him to eat,” she told the court. Coleridge said Kati had his firearm out and was pointing it towards Mbuqe.

“Linda was still holding the pickaxe, wanting to hit the law enforcement officer. He [Kati] told Linda, ‘Hit, hit. I want you to hit me’. That’s when I came and said, ‘Excuse me, why are you pointing a gun? You can see there are kids here’.”

She said at this stage Kati’s colleague took the pickaxe from Mbuqe and threw it aside.

But Mbuqe and Kati were still arguing with each other. “I told [Kati] he had pepper spray on him, so why must he pull his gun out?” said Coleridge.

She said the argument between Mbuqe and Kati became heated, and “they were being very aggressive towards each other”. She said Mbuqe told Kati to put his gun away and “fight him like a man”, after Kati refused to make up for the porridge he knocked over.

Coleridge said she tried to intervene by standing in front of Mbuqe. Joxo was still in the tent at this stage and Kati’s colleague was telling Mbuqe to calm down, Coleridge said.

When her efforts did not work, she returned to the tent to tell Joxo what was happening but she did not want him to intervene. Joxo left the tent, telling her he wanted to urinate.

Coleridge said she saw Mbuqe duck down and “come back up in a motion that looked like he wanted to take the law enforcement officer’s gun”. At that point, Kati hit Mbuqe, said Coleridge. Joxo then started shouting at Kati. Coleridge said she pulled at Joxo and tried to hold him back, but he started swearing at her and Kati.

“When I saw the law enforcement officer pull his gun out I pulled Dumsa [Joxo] back. But the shot went off,” said Coleridge.

She became emotional and was unable to complete her testimony. Magistrate Heather Paulse adjourned proceedings till Wednesday.

Published originally on GroundUp.

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