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[2021] ZAWCHC 237
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S v Mbangula and Others (CC23/2019) [2021] ZAWCHC 237 (18 November 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case Number:
CC 23 / 2019
In
the matter between:
THE
STATE
and
PATRICK
MBANGULA
Accused Number 1
NKULULEKO
GALENI
Accused Number 2
NKOSINATHI
MBONJWA
Accused Number 3
SIPHELELE
JENETE
Accused Number 4
MLINDELI
TSEPO
MKHENTANE
Accused Number 5
SIPHENATHI
XAXANE
Accused Number 6
Coram:
Wille, J
Heard:
8
th
of November 2021
Delivered:
18
th
of November 2021
JUDGMENT
WILLE,
J:
INTRODUCTION
[1]
This
is a criminal trial about alleged charges of conspiracy to commit
murder, attempted murder, murder and various counts of the
alleged
possession of unlicenced firearms and ammunition.
[2]
There
were initially six accused persons before court who were facing all
the charges as set out in the indictment. They will
be referred
to as set out in the heading to this judgment. Subsequent to
and during the commencement of the hearing of the
trial, accused
number (3) and accused number (5) were killed. Whether or not
there untimely deaths were in any manner connected
to or inextricably
linked to any of the issues in this trial, at this stage, remains
unknown. The remaining four accused
before court will be
referred to as the accused, unless otherwise specifically referenced.
BACKGROUND
FACTS
[3]
It is
alleged that during the period June 2017 to November 2017
[1]
,
the accused conspired to murder the deceased and further attempted to
murder the complainant on two separate occasions, by shooting
at him
with fire-arms. Connected to these charges were the allegations
that some of the accused were in possession of unlicenced
firearms
and ammunition.
[4]
In
addition, it is alleged that the accused murdered the deceased by
shooting him with a fire-arm. Similarly, connected to
this
murder charge are the allegations that some of the accused were in
possession of unlicenced fire-arms and ammunition.
[5]
Out of
caution and prior to any of the accused tendering a plea to the
charges as formulated, I engaged with the accused and their
respective counsel so as to ensure that they clearly understood that,
in connection with some of the charges as preferred by the
prosecution, the minimum sentencing regime found application. All
the accused confirmed that they understood and that they
were in
agreement that these minimum sentencing provisions had been explained
to them and that these provisions were part and parcel
of the charges
as set out in the indictment.
ISSUES
IN DISPUTE
[6]
All
the accused tendered a plea of not guilty to all of the charges
preferred by the prosecution. The accused, via their legal
representatives, offered up to the court a statement in terms of the
applicable criminal code.
[2]
The prosecution advances that the motive or reasons for these
crimes, allegedly committed by and on behalf of the accused
are the
following: that certain taxi associations in the area
[3]
,
had newly created their own funeral policy scheme: that each
owner was obliged to contribute R1500,00 towards this scheme:
that
in the event of non-payment, the owner’s taxi would not be
allowed to operate: that the complainant and
the deceased
refused to pay these newly imposed fees: that as a result the accused
conspired to murder the complainant on (2) separate
occasions: that
the accused killed the deceased and that in so doing, the accused
acted as a syndicate in the furtherance
of a common purpose or
conspiracy.
[7]
The
statement by the accused and list of admissions included the
introduction of the following evidential material, by consent,
namely: that a number of photographic albums with the ‘keys’
thereto describing the alleged crime scenes were
not disputed: that
the collection of certain evidence at the crime scene was not placed
in dispute: that the exhibits
that were recovered and retained
were not tampered with in any manner: that the content of the
ballistics reports were admitted
for the truth of the content
thereof: that the photographic identity parade album was
admitted into evidence: that
certain security footage was
admitted into evidence: that the post-mortem report of the
deceased was entered into the record
and no dispute was raised in
connection with the findings made therein.
THE
CASE FOR THE PROSECUTION
[8]
The prosecution tendered into evidence, the testimony of
no
less than seven
witnesses
in support of the charges preferred against the four remaining
accused. The remaining accused before court were,
accused
number (1), accused number (2), accused number (4) and accused number
(6).
MR
PETERS
[9]
Mr Peters testified about the content of certain emails between
himself and other
persons, including accused number (1). It may
be so that some of these emails were unfortunate in and by their
tone, but
they do not in any manner constitute any 'evidence' against
any of the remaining accused worthy of any probative weight or
consideration
with reference to the charges as preferred in the
indictment. Mr Peters also gave some evidence relating to the
administrative
structures of the various taxi organizations in the
area. This evidence however does not assist in any manner in
connection
with the core issues before the court.
MR
NOMANYAMA
[10]
He testified that he previously worked with the deceased and he is
also familiar with accused
number (1). Accused number (1) made
contact with him and advised him to advise his employer (the
deceased), to secure
a meeting with him at the offices of the
‘Ysterplaat’ Taxi Association.
[4]
He is also member of the YTA. At that time, accused
number (1) was the secretary general of the YTA, whilst accused
number (2) and accused number (4) were also associated with the
management of YTA.
MR
MGOMANA
[11]
He is the complainant. He was also a taxi owner, a member of
the YTA and a shareholder
in a company
[5]
that comprised of no less than one hundred shareholders, who in turn,
held a shareholding in the urban ‘My CityBus’
operation
. He suffered financially when certain taxi routes were lost
due to the introduction of the ‘My CityBus’
service.
During this period, accused number (2) was the deputy chairman
of the YTA, whilst accused number (1) was the secretary
general of
the YTA. He knew the deceased well and had known him for about
(6) years prior to his death. He testified in connection
with count
(2) and count (5) of the indictment with reference to his attempted
murder.
[12]
Firstly,
with
reference to what transpired on the 14
th
of September 2017 at the offices of the YTA. He was shot at by
two people. The one suspect was short and chubby, whilst
the
other suspect was taller and was darker in complexion.
[13]
He had a prior occasion to briefly observe these two persons in the
nearby vicinity, this before
they shot at him. His car was
riddled with bullets. He was shot at while he was seated in his
motor vehicle.
The bullets struck his motor vehicle mostly
emanating from the direction of the rear of his motor vehicle.
[14]
After he was initially shot at, he was approached by his two
assailants. He alighted from
his motor vehicle and drew his own
firearm. His assailants beat a hasty retreat and ran away. The
identification of
his assailants, was based on the following namely:
that one of the assailants was taller and darker in complexion:
that his other assailant was shorter in stature and was chubby and
that he had seen them briefly prior to their assault upon him.
[15]
He thereafter identified his two assailants at an identification
parade held at the police station.
This process took place in
January 2018. Most significantly, he denied that he went to the
police station during November
2017 to identify his two assailants by
way of a photographic album exhibited to him by the then
investigating officer. More
about this issue later in this
judgment.
[16]
As far as counts (5) and (6) of the indictment were concerned, he
testified that he was about
to exit certain offices
[6]
,
when a man appeared on the right hand side of his motor vehicle and
shot at him and his passenger. His passenger was killed
and he
also suffered several gunshot wounds. He could not identify his
assailant as the assailant was wearing a balaclava
at the time of the
shooting. He was admitted to hospital for his injuries and has
not completely recovered, as he still suffers
from intermittent
nosebleeds. After this incident, he had an occasion to
communicate with accused number (2) who then remarked
that he was
‘very strong’, this with reference to him as the
complainant.
MR
SIGGOLANA
[17]
In order to attempt to save valuable court time, I interposed the
evidence of this witness, prior
to the closure of the case for the
prosecution. I exercised my discretion to call him on a very
limited and discrete issue.
The limited issue was the
following, namely: that the complainant had testified that he
did not attend upon the police
station on the 26
th
of
November 2017: that he did not point out any suspects
with reference to any photographs on that day: that
this simply
did not happen: that the first time he pointed out any suspects
with reference to any photographs was at the
formal identification
parade held on the 24
th
January 2018 and, that his
statement under oath allegedly in support of this was incorrect and
wrong.
[18]
Mr Siggolana was the previous investigating officer in this matter
and at this time he was a
detective in the police. He joined
the police in 2005 and left the employ of the police during the
December of 2020. He
referenced an exhibit
[7]
and identified his handwriting on this exhibit. According to
him, the complainant signed this exhibit in his presence and
under
oath. This exhibit details how the complainant was shown some
photographs and he identified two suspects, including
accused number
(4), during November 2017 at the police station.
[19]
He added that this was a common ‘practice' that existed at the
police station during this
time. By way of elaboration, this
practice was followed due to a written instruction issued out by the
cluster commander
[8]
at the
time. Moreover, that this practice was one of the
‘investigation tools’ used by the police during this
time
at this specific police station.
MR
STANDER
[20]
He was called to testify on a co-lateral issue. He was the
station commander at the police
station
[9]
at the time. According to him no such written instruction had
been issued out and he was not aware of any such practice at
all. In
his view, such a practice (if it indeed existed), would be unlawful.
In his experience, the process and procedures
in connection
with identification parades at this police station were treated as
‘holy ground’ in that, as far as he
was aware, strict
protocols were adhered to at all times.
MR
MDOKWANA
[21]
He is a policeman who took over the investigation of this case and is
the current investigating
officer. He is stationed with the
taxi violence unit specifically established within the police. He
was called to testify
about his efforts to locate a witness, Mr
Kiti. Despite his best efforts, he was unable to locate this
crucial witness.
I had previously during the course of the
hearing of this trial, issued out a warrant for the arrest for Mr
Kiti due to his non-appearance
at court.
[22]
Immediately prior to the hearing and during his ongoing
investigation, he had been in almost
daily contact with this
witness. He had taken this witness to consult with the advocate
for the prosecution on at least two
prior occasions. Mr Kiti
seemed to have gone into hiding immediately prior to the hearing and
just before he was due to testify.
He searched in vain for him
and even attempted to trace his mobile phone by attending upon the
police command centre.
[10]
[23]
In his view, Mr Kiti had been threatened and the chances of locating
him in order for him to
testify at the trial, were remote. In
addition, prior to the trial, Mr Kiti had been offered ‘witness
protection’
which he had declined because he was the sole
breadwinner for his family and he was the sole proprietor of a
business.
THE
REQUEST FOR A POSTPONEMENT
[24]
The prosecution requested a further postponement for more time to
locate Mr Kiti. Counsel
for the accused opposed this request.
The investigating officer, who was ‘on the ground’
so to speak, formed
the view that he would not be able to locate this
witness. In the circumstances, the granting of a postponement
would have
served no purpose. The application was refused and
the prosecution was left with no option but to close its case.
I
must emphasize and place on record that in my view the prosecution
did what it could to secure the attendance of the necessary witnesses
so that the trial could progress without delay. It would have
been extremely difficult, if not impossible, to foreshadow
that one
of its main and crucial witnesses would go into hiding and not
present himself to court in order to testify for the prosecution.
THE
APPLICATION IN TERMS OF SECTION 174 OF THE CPA
[25]
The legal representatives for the accused chartered an application
for a discharge of all the
accused. Wisely, this was not
opposed. The onus to convince the court that an accused should
be discharged, logically
rests with the accused. All that an
accused is required to do is to convince the court that there is no
evidence on record
upon which a reasonable court will convict.
[26]
The test is not whether a prima facie case has been proved against
the accused. Further, credibility
has no role to play in this
respect, unless the evidence is absolutely false. The section is
clear enough in that it provides that
if the court ‘is of the
opinion that there is no evidence’ against the accused, it may
acquit the accused.
[27]
Where sufficient evidence does not exist and there is no indication
that these deficiencies may
be overcome, the court should acquit the
accused. Most importantly, the court does not have to wait for
an application for
acquittal, as it may acquit
mero motu
.
Further, if there is no possibility of a conviction, besides having
the accused testify themselves and themselves giving incriminating
evidence, the accused are entitled to a discharge at the end of the
case for the prosecution. Finally, whether or not a discharge
falls to be granted at this stage, is clearly in the discretion of
the trial court. This discretion must obviously be exercised
judicially.
[28]
The evidence presented by the prosecution only to a very limited
extent references accused number
(2) and accused number (4).
This in connection with a single charge of attempted murder. No
other evidence was offered
up against any of the other accused
linking any of them to any of the other charges, as contended for in
the indictment.
The highwater mark of the case for the
prosecution in this connection was that some of the accused held
positions of leadership
within the YTA and sent certain
communications. I have dealt with the probative weight of these
communications. Accordingly,
accused number (1) and accused
number (6) are hereby acquitted and discharged.
[29]
The core issue in connection with this matter as far as the other two
accused are concerned,
is that of identification.
It
certainly cannot be contended that the
evidence
of the witnesses for the prosecution, was in any manner, reliable or
credible. Particularly, taking into account
the alleged
positive identification of accused number (2) and accused number
(4). The version of events by the complainant
may very well
constitute a tailoring of his evidence in an attempt to explain his
alleged identification of the perpetrators. Alternatively,
he may be
genuinely mistaken as to the identity of his assailants.
[30]
I have given careful consideration to the evidence of the witnesses
for the prosecution.
There are indeed some inconsistencies in
this evidence, which would render the veracity thereof suspect.
By way of example.
The complainant identified as one of the
persons who shot at him, as a person who was fair in complexion and
shorter and chubby.
The person was identified by him and was
arrested and indicted. These charges were subsequently
withdrawn after it
was established that this person so arrested and
identified was incarcerated at the time on a totally discrete and
unrelated charge.
Clearly, in these peculiar circumstances, the
complainant was genuinely mistaken.
[31]
The evidence of the identification of the accused by the complainant
was not sufficient.
I say this because of the following,
namely: that he only saw the accused for a very short time:
that they fired shots
into the rear of his motor vehicle: that
they approached him from the rear and then ran away: that they
were previously
unknown to him and that the complainant himself had
suffered a traumatic experience as his motor vehicle had been riddled
with
bullets.
[32]
Further, in my view, no evidence was tendered to demonstrate that the
remaining accused participated
in the commission of any actions that
were directly linked to the attempted murder of the complainant or
the death of the victim
as alluded to in the charges as formulated in
the indictment.
[33]
My reasoning on this latter aspect is that the evidence does not show
that the remaining accused
consciously associated themselves with the
death of the victim or the attempted murder of the complainant. In
my view, these
accused do not fall into the category of accomplices
in respect of the charge of murder or attempted murder.
Further, the
evidence in this case, does not establish the doctrine
of a common purpose between the actions of any of the accused and the
death
of the victim or the attempted murder of the complainant.
[34]
Burchell
[11]
and
Snyman
[12]
,
both define and elaborate upon the doctrine of common purpose in the
following terms:
‘
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from
their “common
purpose” to commit the crime’
and
‘…
the essence of
the doctrine is that if two or more people, having a common purpose
to commit a crime, act together in order to achieve
that purpose, the
conduct of each of them in the execution of that purpose is imputed
to the others’
[35]
None of these requirements are met in the current matter. That
having been said,
the
more modern legal approach to be adopted in connection with the
doctrine of common purpose has now been eloquently formulated
by
Swain, AJA (as he then was)
in
Maselani
[13]
,
as follows:
‘
It
is not necessary to prove that this consequence was foreseen by the
members of the common purpose… provided it is established
that
one, or the other, or all of them inflicted such harm’
[36]
Having considered all the evidential material, including, inter alia,
the formal admissions,
the informal admissions and the evidence
presented on behalf of the prosecution, I find
that
there is no evidence on record upon which a reasonable court will
convict
the
remaining accused in connection with the charges as formulated in the
indictment. Put in another way, I find favour with
the
application on behalf of the accused for a discharge on all counts of
the indictment.
[37]
In the result, the following order is issued in connection with the
charges as formulated in
the indictment:
1.
Accused
number (1) is found not guilty and acquitted on all charges.
2.
Accused
number (2) is found not guilty and acquitted on all charges.
3.
Accused
number (4) is found not guilty and acquitted on all charges.
4.
Accused
number (6) is found not guilty and acquitted on all charges.
E
D WILLE
(Judge
of the High Court)
[1]
The
relevant period.
[2]
Section
220 of the
Criminal
Procedure Act, 51 of 1977 (The ‘CPA’).
[3]
The
area referred to was known as the ‘Joe Slovo’ informal
settlement.
[4]
The
‘YTA’
[5]
This
company was styled ‘Kidrogen’
[6]
The
offices at ‘Kidrogen’
[7]
Exhibit
‘P’
[8]
General
Jordaan
[9]
The
police station situated in Milnerton
[10]
The
‘War Room’
[11]
Burchell,
Principles
of Criminal Law
-
5 ed (Juta, Cape Town 2016) at 417
[12]
Snyman,
Criminal
Law -
5 ed (Lexis Nexis , Durban 2008) at 269
[13]
S
v Maselani
2013 (2) SACR 172
(SCA)