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[2015] ZAGPJHC 166
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S v Ngwane and Another (SS211/14) [2015] ZAGPJHC 166 (21 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: SS211/14
DATE: 21 JULY
2015
STATE
And
PHUMLANI
NGWANE
......................................................................................................
ACCUSED
1
INNOCENT
HLELANI ‘MZAMELENI’
NGUBANE
....................................................
ACCUSED
2
JUDGMENT
I
WILL APPROACH THE JUDGMENT IN
FOUR PHASES
.
FIRST
PHASE:
SUMMARY OF EVIDENCE INCLUDING THE EVIDENCE OF THE TRIAL
WITHIN A TRIAL.
SECOND
PHASE:
MY REASONS FOR ALLOWING THE POINTING OUT AND STATEMENTS BY
ACCUSED NUMBER ONE FOR WHICH A TRIAL WITHIN A TRIAL WAS CONDUCTED.
THIRD
PHASE:
REASONS FOR ALLOWING EXHIBIT “M” THE WARNING
STATEMENT MADE BY SANDILE KHUMALO.
FOURTH
PHASE:
JUDGMENT ITSELF.
PHASE
ONE
SUMMARY
OF EVIDENCE
[1]
First state witness: Mr T Pablowitz
He testified that
he downloaded the surveillance footage. His evidence was not disputed
by the defence. His evidence was handed
in as EXHIBIT “1”
AND “2”.
The footage
depicts the robbery and shooting of the deceased. Digital
surveillance footage originating from various surveillance
cameras
installed at or near the Shell Garage and Denver Truck, a company
adjacent to the garage, was presented as Exhibit “2”.
Exhibit “1” consists of Google aerial maps depicting the
location, distance and route between the Shell Garage and
the Denver
Hostel as well as Google Street View images of the Shell Garage and
surrounding area. From the footage, it is clear
that the attack on
the deceased was executed by three men. The first two lodged the
initial assault with the third suspect, arriving
at the scene shortly
thereafter. He shot the deceased. The shooter entered the Shell
Garage premises within seconds after the first
two robbers who are
visible in the side street next to the Garage.
[2]
Second state witness: Mr. Siyabonga Ngubane
He is a relative
of accused 2, he testified that between 19h00 and 20h00 on 10 May
2013 accused 2 concealed a firearm on top of
the ceiling close to his
room. Accused 2 told the witness that it was his own firearm which he
will come and fetch at a later stage.
He did not tell the witness
anything further. During July 2013 the police arrived at Siyabonga’s
room and searched the ceiling
area where they discovered the said
firearm. Mr. Siyabonga Ngubane was present when the police recovered
the firearm. He further
testified that from the time accused 2 had
placed the firearm in the ceiling until the time it was recovered by
the police, he
did not touch it or tell anyone about it. He was
initially arrested for the unlawful possession of the firearm. The
case was however
later withdrawn against him. After having left
the firearm on the ceiling, accused 2 left for ‘Msinga’
where
he originated from. Mr. Siyabonga Ngubane does not know accused
1. Mr. Siyabonga Ngubane identified the shooter on Exhibit “2”,
as accused 2.
[3] He knows
accused 2 very well as a family member. He knows the way accused 2
walks. When accused 2 brought the firearm to his
room on 10 May 2013,
he was wearing the same hat (‘kotoi’) as he is wearing on
the footage. According to him the jacket
the accused was wearing in
Court was the same he had worn on the evening of 10 May 2013. There
were no problems and or conflict
between him and accused 2.
[4]
The third state witness: Mr. Ernest Thabiso Shabalala
He testified that
on 10 May 2013 he was at the Kwadlamini Tavern from approximately
15h00. At approximately 20H00, Sandile
Khumalo and another
unknown man arrived at the Tavern in a red vehicle. Sandile
approached him with two Toshiba laptops which he
had for sale. He
arranged for a buyer for the laptops, to wit, David Msomi. He took
the laptops to Msomi who bought them for R2700.
Ernest was driving a
4X4 Isuzu Double Cap Bakkie. Upon his return at the Tavern, he gave
Sandile R2000. Whilst at the Tavern he
did not see accused 1.
He was arrested and took the police to David Msomi where one of the
laptops he had sold to Msomi was
recovered.
[5] The footage
of the robbery was shown to Shabalala in Court during which he
identified the robber who was overpowered by the
deceased as Vusi
Khumalo. This evidence was not contested. Shabalala further testified
that initially he was accused 1 in this
matter. He however entered
into a Plea and Sentence Agreement with the State enabling the case
against him to be finalized.
[6]
4
th
State witness: Mr. Gabriel Thethane
He is a petrol
attendant at the Shell Garage. He explained that he had noted down
the registration number of a red car in which
the robbers fled. He
handed this information to the police.
[7] On 16 May
2013, he identified Sandile Khumalo at the same identification parade
at which Ernest Shabalala was in the line-up,
thus confirming the
evidence of Shabalala that Sandile was pointed out at the parade. Mr.
Thethane alleges that Sandile was the
driver of the get-away vehicle.
This evidence was not contested. During November 2013, he attended a
second identity parade where
he identified accused 2 as the person
who had shot the deceased.
[8] He further
confirmed that no one had told him or hinted to him who he would see
at the said parade and or who he was to identify.
This evidence was
not contested. He further testified that he did not see accused 2
again after the identity parade.
[9]
5
th
State witness: Constable Pretorius
He testified to
the arrest of Shabalala and Msomi as well as the recovery of the
Toshiba laptop which he later booked in at the
SAP 13 store of the
Cleveland Police Station.
[10]
6
th
State witness: W/O Raletsemo
He confirmed that
the laptop was later identified by the deceased’s mother as one
of the laptops which were robbed from the
deceased. He confirmed that
both Sandile Khumalo and Vusi Khumalo had since passed away.
[11]
7
th
State Witness W/O Van Der Schyff
A detective with
27 years’ service, held the I.D. parade where accused 2 was
identified. He rewrote the names of the attendees
as they first had
to write it down and state their addresses.
[12]
8
th
State Witness: Lt Col Mbotho
He is the
commander at the Cleveland Detective Branch. He testified to the
taking of the ‘Warning Statements’ of Sandile
Khumalo
(Exhibit “M”) and accused 1, Phumlani Ngwane (Exhibit
“K”) on 11 May 2013.
He confirmed that
he had taken a Warning Statement, Exhibit “K”, from
accused 1 on 11 May 2013. The statement contains
printed
Constitutional Rights which Lt Col Mbotho confirms he had read and
explained to the accused. During cross-examination by
defence counsel
for accused one it was put to Lt Col Mbotho that he did not read the
statement back to the accused nor did he give
the statement to the
accused to read. No version of any assault or coercion to make a
statement or pointing out was ever put to
Lt Col Mbotho.
[13]
9
th
State witness: Constable Nhlapo
He
testified to the arrest of accused 1 and Sandile Khumalo on 11 May
2013.
On 16 May 2013,
Ernest Shabalala, David Msomi, accused 1 and Sandile Khumalo were in
the line-up at a formal identity parade conducted
by the police.
Sandile Khumalo was pointed out at this parade. He further identified
Sandile Khumalo on photo 5, 6, 7 and 8 of
Exhibit “H”, a
photo album of the said parade. Sandile is visible as the person
holding number 21 in front of him.
This evidence was not contested.
[14] He testified
to the arrest of accused 1 and Sandile Khumalo who is now deceased.
Both accused 1 and Sandile were informed of
their Constitutional
Rights which were also explained to them at the scene.
When Accused 1
disputed this evidence, Nhlapo repeated this explanation in Zulu in
Court. The correctness of the explanation given
by him was not
contested.
[15] At the
police station, Cst Nhlapo issued both Sandile and accused 1 with
official Notice’s of Rights. (Exhibit “N”
and “O”).
As with the first explanation at the scene of arrest, accused 1
indicated that he understands. During cross-examination
by his
Counsel, accused 1 disputed that Nhlapo explained to him the Rights
noted on Exhibit “O”.
[16] Accused 1
does not contest that he did indeed sign for and received a Notice of
Rights
,
Exhibit “O”.
[17]
10
th
State Witness: W/o Motlaung
His
evidence is discussed at the trial within a trial, he testified in
both.
[18]
11
th
State Witness: Constable Mngomezulu
He testified to
the arrest of accused 2 in KZN on 23 July 2013 as well as certain
admissions accused 2 had made to them at the time
of the arrest. Such
admissions include him telling the arresting officer where he had hid
the firearm, that he blamed his other
gang members for his arrest as
they dropped a firearm in a pool of water at the crime scene and that
the white man did not have
a lot or any money.
[19]
12
th
State Witness: Constable Dladla
He
testified to the arrest of accused 2 in KZN on 23 July 2013.
[20]
13
th
State Witness: ConstableZungu
He testified to
the arrest of accused 2 in KZN on 23 July 2013. He testified that
accused 2 said the firearm was with his cousin
Siyabonga.
[21
STATE WITNESSES FOR THE TRIAL WITHIN A TRIAL
The
1
st
official witness for the state was Warrant Officer
Motloung
He was the first
investigating officer. He testified that on 13 May 2013 he had warned
accused 1 and the other three detainees of
their rights before and
after their court appearance. On 15 May 2013 he again warned all the
detainees of their rights as they
were to attend an identity parade
on 16 May 2013. After the parade was held, Motloung again warned
accused 1 of his rights, especially
his right to silence as accused 1
wanted to convey, what can only be inferred to be incriminating
information. This followed after
he was informed that Motloung had
seen a person on the surveillance footage of the robbery dressed in
identical or similar clothing
to that the accused was wearing. On 17
May 2013 Motloung again warned accused 1 of his rights prior to the
pointing out.
[22] W/O Motloung
was appointed as investigating officer in this case. Four suspects
were in custody on this date. They were accused
1, Sandile Khumalo,
Thabiso Shabalala and David Msomi. When he received the case docket
he read the Warning Statements of Sandile
Khumalo and accused 1,
(Phumlani Ngwane.) The latter’s statement was exonerating in
nature. Motloung charged the four
suspects at which time he
explained them their Constitutional Rights. They were taken to the
Magistrate’s Court where the
case was placed on the court roll.
At Court, he was given an instruction to hold an identity parade.
After their court appearance,
he warned them again of their Rights.
[23] He was not
alone with accused 1 at any stage on that day. That was also the
first day that he had ever seen accused 1. He went
to the Shell
Garage to view the surveillance footage that was recorded on 10 May
2013.
[24] Motloung
returned to the Shell Garage where he again viewed the footage. He
realized that the clothing, (in particular the
pants and shoes), of
one of the suspects visible on the footage, was nearly identical to
the clothing accused 1 was wearing at
the time he had seen him on 13
May 2013.
[25] He did not
see or speak to accused 1 on the 14th of May 2013. On 15 May 2013
Motloung went to the holding cells where he informed
and warned all
four suspects of an identity parade that was scheduled to be
conducted on 16 May 2013. He was not alone with accused
1 on this
day. Subsequent to the identity parade, Motloung saw accused 1 in an
office used for interviews which is situated in
the cell area of the
police station. He informed accused 1 of the footage he had viewed in
which one of the robbery suspects wore
clothing nearly identical to
that of the accused. He explained that accused 1 was shocked when he
heard this. The accused then
spontaneously indicated to Motloung that
there is something he wanted to show the witness. He further wanted
to explain something
to Motloung.
[26] During
re-examination by the State, Motloung testified that when he told the
accused what he had seen on the video footage,
the accused never
denied that it was him on the footage.
[27] Motloung
stopped the accused from talking any further and explained to him his
rights to legal representation and that to silence
as the explanation
was incriminating in nature. He did this as he was not a commissioned
officer. The accused indicated that
he understood and that he
elects not to have a legal representative present.
[28] Motloung
booked the accused back into the cells and went to his commander, Lt
Col Mbotho. He explained to Lt Col Mbotho what
had happened and that
accused 1 wanted to show him something. Lt Col Mbotho arranged for an
officer to whom the accused could point
out/show that which he wished
to show.
[29] Motloung
denied that he had assaulted the accused during this interview. He
further denied that W/O Raletsemo was present during
the interview
with the accused. In this regard he explained that Raletsemo had
nothing to do with the investigation until he, Motloung
became
incapacitated to continue with his work. That occurred at the end of
July 2013. He does not know to whom the case docket
was booked out
after he had left work at the end of July 2013. He further denied the
allegation that this interview occurred in
his office.
[30] During
cross-examination by Adv Sidwell, Motloung explained that the reason
for the interview that day was to see the reaction
of accused 1 when
he told him about the footage and the suspect that was similarly
clothed as the accused.
[31] It was
further put to Motloung that he was supposed to warn the accused
prior to telling him of the footage as Motloung must
have anticipated
that accused 1 might incriminate himself. To this Motloung answered
that it is precisely the reason why he had
stopped accused 1 from
explaining/talking further as he warned him again of his right to
silence.
[32] The
confiscated clothing was entered into evidence as Exhibit “3”.
It consisted of a pair of ‘tekkies’,
a pair of denim
pants and a tracksuit top. In respect of the alleged assault it was
also put to Motloung that
Raletsemo referred to Motloung as Zack.
They sprayed a black rubbish bag with some sort of spray. They put
the bag over the accused’s
head which made it impossible for
him to breath. Motloung said he wanted the accused to talk as he, the
accused, knows the case.
He was told to
stamp his foot three times on the floor when he was ready to talk
whilst the bag was over his head. This instruction
was given a number
of times.
He did stamp
his foot on the floor a few times. When the bag was then removed the
accused told Motloung and Raletsemo that he knows
nothing. The bag
was then again placed over his head.
The accused
became very tired and weak, he was dazed. Water was then splashed on
him.
Motloung then
told the accused that he will take the accused to the Garage where
the accused can show him what happened. The accused
told Motloung
that he does not know the scene and or the crimes.
After the
water was thrown over the accused, Raletsemo left the office. Another
thin man came into the office. Motloung talked to
this man.
Motloung told
the accused that Sandile had said that the accused had done it.
Motloung further told him that he, Motloung would
take the accused to
the garage and show him where everything happened. Motloung also told
the accused that he must say he, (the
accused), knows and then
Motloung will help the accused to get bail or drop the case against
him. When the accused heard this he
agreed. Motloung, the accused and
another man then went to the garage.
At the Garage
the three of them were standing on the steps of the bridge opposite
the Garage. From there Motloung pointed out certain
scenes to the
accused.
Back at the
police cells, Motloung brought him food and said that is what he
wanted and that he was trying to help the accused.
The accused did
not sustain any injuries due to the assault.
When Col Nazo
took him for the pointing out on 17 May 2013, the accused did not say
anything about the assault because of fear that
it would be repeated
again. He made the pointing out as a result of the assault.
[33] Motloung
denied these allegations of assault and compelled pointing out. On 17
May 2013 W/O Motloung booked accused 1 from
the cells and took him to
his office prior to the arrival of the officer who was to assist with
the pointing out by the accused.
[34] He explained
that during this time he had again explained to the accused his
Constitutional Rights including the right to legal
representation and
his right to silence. He did this in order to establish if the
accused still wanted to proceed with the pointing
out and also to
ensure that the accused understood that he was not compelled to make
any pointing out should he not want to. He
further explained to the
accused that whatever he says will be written down and will be used
as evidence against him in Court.
The accused understood this
explanation.
[35] At the time
he saw the accused, Motloung did not know the identity of the officer
who would assist with the pointing out and
or at what time he would
arrive.
[36] The witness
denied that the accused was assaulted or intimidated during this
interview. This followed after it was put to the
witness that
on
17 May 2013 he had booked accused 1 out from the cells and took him
to his office. There Motloung would have explained to him
that he
must not tell the officer who was to assist with the pointing out
that he was assaulted and also that he does the pointing-out
out of
his free will.
[37] Subsequent
to this contact with accused 1, Motloung did not have any further
contact with the accused. He later received the
pointing out
documentation which he filed in the police docket. He confirmed that
Sandile Khumalo did not make any pointing out
or confession. On 18
May 2013 he confiscated the clothing which accused 1 was wearing
subsequent to booking same into the SAP 13
store.
[38]
2
nd
State Witness Cst Van Wyk
He took the
accused to Nazo and later received the accused from Nazo. He
testified that the accused did not complain to him about
anything.
[39]
3
rd
State Witness Cst Masethe
He was the police
photographer who took the photos. He did not see any visible
injuries.
[40]
4
th
State Witness W/O Mokoena
He was the driver
at the time of the pointing out. Accused two did not complain.
[41]
5
th
Witness Col Nazo
He testified to
the pointing out and the documentation completed by him prior to,
during and after the pointing out. From the said
documentation,
Exhibit “P”, it is noted that Col Nazo did explained and
warn accused 1 of his Constitutional Rights.
Col Nazo confirmed that
he indeed explained the recorded Rights to the accused.
He confirmed that
when he saw the accused on 17 May 2013, there were no visible
injuries on the accused. The accused said to Nazo
he was not
assaulted or coerced to make a pointing out. Photographs (Exhibit
“R”), taken prior to and after the pointing
reveal marks
on the face of the accused. Nazo testified that same were explained
by the accused as old scars he had sustained during
a previous motor
vehicle accident.
[42]
6
th
Witness W/O Raletsemo
He was only
appointed as investigating officer during September 2013. Prior to
this date he had nothing to do with the case.
During
cross-examination it was put to Raletsemo that after the arrest of
accused 1 and during the period between 11 to 17 May 2013,
there was
one incident when he and Motloung conducted an interview with the
accused in the office of Motloung. During this interview,
accused 1
was assaulted by Raletsemo and Motloung as they wanted him to tell
them about this case. Raletsemo wanted the accused
to point out the
crime scene. The accused denied any knowledge of the offences.
Raletsemo left the office.
Raletsemo denied
these allegations. He testified that from 13 May 2013, he was at the
Palm Ridge Court where one of the cases he
is the investigating
officer of, went on trial. This enrollment was indeed confirmed
during cross-examination by counsel for accused
one as she verified
same from the Registrar’s file.
[43]
Accused One
The accused
testified that on 11 May 2013 there were approximately 8 people in
the room where he was arrested. Sandile Khumalo,
Sbu and Vusi were
amongst them. The names of Sbu and Vusi were never put to Cst Nhlapo
when he was cross-examined.
[44] The accused
testified that after the police had entered the room they ordered the
occupants to ‘hold’ the wall.
They did not say anything
else. However, when Nhlapo was cross-examined, it was put to him that
upon entering the room he said:
“It is your car downstairs”.
In further contradiction hereto, the accused further testified that
the police never mentioned
anything about the motor vehicle outside
when they were in the room.
[45] Nhlapo was
also confronted with the version that when he entered the room, he
had pointed his firearm. This version was not
repeated when the
accused testified.
The accused
testified that he and Sandile were kept in different police vehicles
after being removed from room 94. This version
was never put to
Nhlapo.
[46] The accused
testified that Cst Nhlapo, Lt Col Mbotho, W/O Motloung and Col Nazo
all lied when they testified to the fact that
they had warned the
accused of his Constitutional Rights. Therefore all lied except the
accused. This version, so it is averred,
is, for the reasons as set
out infra, inherently so improbable that it cannot be true.
[47] He further
testified how he was taken up the steps to the top of the bridge
opposite the Garage before being taken half way
down the steps again.
He explained that he sat on the steps in such a way that his legs
were hanging from the stairs. Motloung
would then have pointed to him
the different directions from which the robbers came including the
person who had shot the white
man. Motloung said that the shooters
name was Ngubane. He also showed the accused where the white man
died.
Motloung further
indicated to a concrete wall where the white man’s car was
parked. He further told the accused that one Sibiya,
who was the
‘frontman’ and who had planned the robbery, was standing
on the bridge.
[48] After this
evidence, the accused indicated that Motloung did not tell him
anything else except what he had mentioned in his
evidence.
The accused did
not confirm his initial version that was put to Motloung that after
this visit to the Garage Motloung had brought
him food in the cells.
The accused
testified that prior to the actual pointing out he was taken to
Motloung’s office where Motloung had told him
that the other
person was coming and that he, the accused must do as he had told
him. The accused agreed as he was afraid of a
further assault. He did
the pointing out because Motloung had told him to do so.
PHASE
TWO
REASONS
FOR JUDGMENT ON THE TRIAL WITHIN A TRIAL
[49] A dispute
arose about the admissibility of a pointing out with accompanying
statements made by accused 1 on 17 May 2013. The
dispute arose due to
an allegation by the accused that he was assaulted prior to the
pointing out which occurred on 17 May 2013.
[50] The court
finds that the pointing out and statements were not a confession but
an admission. The said statements do not unequivocally
acknowledge
accused 1’s participation in the robbery and murder, as it does
not exclude all other exonerating hypothesis.
The actual physical
actions of accused 1 in making the pointing out, without an
exculpatory explanation, amount to an admission
by conduct.
[1]
[51] In the trial
within a trial the state must prove that the evidence obtained must
have been obtained within the corners of our
Constitution
[2]
(especially section 35) and obtained from an accused “freely,
voluntarily and without undue influence.”
[3]
And another element that is overlooked, it must have been done whilst
an accused is in his sober senses.
[52] The state
called six witnesses and the accused testified in his own defence.
The state also relied, correctly, on the evidence
of Lt-Col Mbotho
and constable Nhlapo although they were not called in the trial
within a trial as witnesses. The basis for the
reliance is the fact
that they testified earlier in the main trial.
Concerning
this issue, Schutz, J ruled that evidence already gathered in the
main trial can be used in the trial within a trial.
[4]
He said: “It seems to me that it is the misapplication of
phrases like 'insulating the inquiry' (
per
Nicholas
AJA in
S
v De Vries
1989
(1) SA 228
(A)) and 'a watertight compartment' (
S
v Sithebe
1992
(1) SACR 347
(A)
at
351
b
)
that has led to the error.”
[5]
The judge said:
“
If
regard could not be had to the evidence already given or admitted in
the main trial, the trial-within-the-trial would hang in
the air, an
unsupported abstraction devoid of setting.”
[6]
[53]
I agree that the trial within a trial is not an isolated trial, the
learned judge Schultz, in my opinion correctly and aptly
says:”
After all, the trial-within-the-trial is but an evidentiary moment,
if sometimes a long moment, in a trial.”
[7]
I
ruled that the pointing out was to be admitted based on the
following:
1-
LEGAL REPRESENTATION
[54] From the
Charge Sheet, (Exhibit “S”), it is clear that accused 1
appeared in the Magistrate’s Court on 20
May 2013, 3 days after
the pointing out. The accused was legally represented by an attorney
with the surname Ramos.
No complaints of
any assault or forced pointing out was reported to the Court on
that day or on any of the other 29 Court
appearances that followed of
which the accused’s attorney was at Court on 24 occasions. The
accused admitted such omission
during cross-examination by the State.
2
- RIGHTS EXPLAINED
[55] If there is
one thing that the police at Cleveland could do, then it is reading
or telling rights. All state witnesses knew
the rights out of their
head and could say it better than a nursery rhyme.
At the police
station, Cst Nhlapo issued both Sandile and accused 1 with official
Notice’s of Rights. (Exhibit “N”
and “O”).
As with the first explanation at the scene of arrest, accused 1
indicated that he understands.
Accused one testified he
received the notice concerning his rights but it never crossed his
mind to read the Notice of Rights.
He just took it and placed it in
his pocket. He does not even remember what he did with the document.
This evidence of such conduct
is inherently improbable in the light
of the allegation of the accused that he did nothing wrong and that
he did not know why he
was arrested. If such a version was indeed
true, one would have expected him to do anything in his power to
understand why he was
detained. The court found him to be a very
intelligent person whilst testifying. However, he would be very
evasive when he battled
with a question put to him.
[56] During
cross-examination by his Counsel, accused 1 disputed that Nhlapo
explained to him the Rights noted on Exhibit “O”.
Nhlapo
repeated this explanation in Zulu in Court. The correctness of the
explanation given by him was not contested. I must remark
that I was
impressed in the way a constable could recite the rights without
looking at any notes.
3
- ASSAULT
[57] W/O/
Motloung testified that him telling the accused on 16 May 2013 about
the similar clothing he had seen on the footage of
the robbery lead
to the accused making a pointing out. Contrary hereto, the accused
alleged that the trigger to the pointing out
was an assault
perpetrated on him by Motloung and Raletsemo.
The truthfulness
of Motloung’s version of events and his denial of the
allegations of assault finds corroboration in the following:
The
evidence of Raletsemo that he was not present during this interview
with the accused as he had no involvement in the investigation
at
that stage. This evidence finds support in the fact that his
explanation, Col Nazo confirmed that the accused made the said
pointing out without hesitation but with certainty. The accused never
indicated to him that he was assaulted. This evidence was
not
contested.
The accused made
his second Court appearance only 3 days after the pointing out. His
attorney, Ramos, was present in Court. No complaint
was made or any
request to the Magistrate to intervene by way of altering the place
of detention or ordering that the accused be
medically examined. His
claim that the injury under his eye was visible. He therefore even
had proof of such an allegation, yet
he did not report it to the
Court;
[58] It is to be
noted that the details of the assault to which the accused testified
in his evidence in chief were never put to
Motloung or Raletsemo.
During cross-examination of the accused by the State, counsel for
accused one alleged that the version that
the accused did not sustain
any injuries was solely in respect of the allegation that a plastic
bag was put over his face. This
was never put to the witness.
[59] The accused
added details of the alleged assault which were never put to the
witnesses. This omission, negatively impacts on
the credibility and
probative value thereof. This, coupled with two years silence, proves
that his version of the alleged assault
is a recent fabrication.
The accused
admitted that he had told Thabiso Shabalala of the assault on him. It
would therefore be expected that any injuries
and or physical signs
would have been visible to Shabalala.
[60] The police
photographer who took the photos did not see any visible injuries.
The court looked at the photos and could not
be convinced that it
depicts somebody who was assaulted. There are photos where the face
is showed as a close-up photo, if I were
the person taking the photos
I would not dream that he was assaulted, if I was in charge of the
pointing out, and I saw what looked
like marks and it was explained
that it was old scars, then I would have believed it. Even the photos
at the garage do not show
one side of the face to be more swollen
than the other side. I do not see how the court could rule on
the photos that an
assault took place.
4
- POINTING OUT NOTES
[61] The contents
of paragraph 8 of Exhibit “P”, (the pointing out notes)
where it is recorded that “I got the
information from the
investigating officer” was explained by Col Nazo to mean that
the Investigating Officer explained to
the accused about a pointing
out. This accords with the evidence of Motloung in that the latter
had warned the accused of his rights
prior to the pointing out
including the consequences of such a pointing out. The accused’s
concession that Nazo may have
understood that sentence as Nazo
testified further corroborates the version of Nazo.
The
sentence would have been open for interpreting that Motloung gave the
information about the case to the accused, but it is brought
to
naught when one compares the accused’s version and his
evidence.
5
- CLOTHING
[62] Motloung had
booked the clothing of accused 1 in at the SAP 13 store and presented
it to Court thus accepting the risk of being
challenged on his
observation that the clothing was similar to that of the robber
visible on the footage. This conduct and certainty
of Motloung,
coupled with the fact that there are definite similarities between
the shoes and pants, (the shoes have white soles
with dark upper side
with what can be described as white connecting line on the side which
is the Nike sign and dark pants), underscores
his honesty and bona
fides especially in respect of the events that preceded the pointing
out. The similarities exclude any possibility
of him having
influenced the accused to incriminate himself by using a falsity.
[63] The first
accused admitted during cross-examination that Motloung did tell him
about his clothing being visible on the footage.
There is nothing
inherently wrong when a policeman gathers evidence from an accused.
But the accused had a chance to hand over
his clothes, and as the
State put it he could have said: “I am telling you, you are
making a mistake”.
6
- SANDILE KHUMALO AS ALIBI WITNESS
[64] The accused
testified that he was assaulted mainly because he denied any
knowledge about the offence. In this regard it is
important to note
that on his own version he was ‘babalas’ on 11 May 2013
at the time of his arrest as he and Sandile
were drinking at the
Kwadlamini Tavern from the previous evening until the early morning
hours. Sandile was an alibi witness of
the accused. This fact was
confirmed by the accused during cross-examination by the State.
Sandile was arrested and detained with
the accused. He made an
exonerating statement which did not include any reference to any
drinking session with accused 1 at the
Kwadlamini Tavern as part of
an alibi.
Accused 1 never
told Lt Col Mbotho or Motloung about his alibi which could have been
verified by Sandile who was also in custody.
Such disclosure would
have surely prevented the alleged assault, hence the inevitable
inference that such assault never occurred.
The state has a
valid point by arguing that although accused 1 alleges that Sandile
was allegedly assaulted at the time of his arrest,
such alleged
assault did not result in a fabricated confession or pointing out.
The state is correct to say this proves that accused
1 was never
assaulted and that he did indeed make the pointing out freely and
from his own knowledge.
7
- COACHING BY W/O MOTLOUNG
[65] The accused
testified in chief that Motloung had showed him from what directions
the robbers came. He never mentioned the name
Vusi and only referred
to the shooter as Ngubane. However, the accused told Nazo that Vusi
pulled out a firearm and cocked it as
they approached the white man.
The two struggled for the gun. This information originated from
the accused’s own knowledge.
In his evidence
in chief the accused did not testify about any information given to
him by Motloung as to what happened with the
bags with laptops and
the Galaxy phone of the deceased during and after the robbery,
however in the pointing out notes it is recorded
that the accused
explained that after the shooting Vusi had taken same. Yet again it
cannot but be inferred that this information
came from the accused’s
own knowledge.
The accused never
testified to the exact instructions Motloung would have given him in
making the pointing out as these facts only
came to light during
cross-examination by the State.
8
- EVIDENCE NEVER PUT TO WITNESSES
[66] The
following evidence of the accused was never put to Motloung or
Raletsemo:
The accused, for
the first time in the trial within the trial alleged that the assault
was the cause of the injury under his right
eye. In this regard Nazo
testified that the accused had told him that the marks of old
injuries on his face were as a result of
a motor vehicle accident.
This evidence was not disputed. During cross-examination by the
State, the accused further added to his
second version that he only
told Nazo about the old scars and not the injury under his right eye.
The accused admitted that he
did not tell Nazo about the assault or
that Motloung coached him to make the pointing out as he was afraid
of further assaults.
9
- CONCLUSIONS
[67] The State
witnesses were consistent when testifying. Their evidence is without
any material contradictions or improbabilities.
They corroborated
each other in all material respects. They testified with confidence
and made a good impression when testifying.
The same cannot
be said about accused 1. He was evasive as witness. He also added to
versions and he changed his versions without
explanations or with
feeble explanations. The state proved its case beyond
reasonable doubt.
PHASE
THREE
ADMISSION
OF EVIDENCE IN TERMS OF THE PROVISIONS OF SECTION 3 OF ACT 45 OF 1988
[68]
The court ruled that the statement made by Sandile Khumalo be allowed
as evidence. He is deceased but was also a co-accused.
He was
arrested on 11 May 2013 and thereafter made a statement to Col
Mbotho. In the said statement he explained that he was indeed
the
driver of the Red Aveo and that he had gone to the Shell Garage at
the request of Vusi, who had also since passed away. The
statement of
Sandile is exonerating in nature.
The court however,
said that the probative value was still to be ascertained.
[69] The following
were the reasons for allowing the evidence:
INTERESTS
OF JUSTICE AS RATIONALE FOR THE APPLICATION OF
SECTION 3(1)
OF THE
LAW OF EVIDENCE AMENDMENT ACT 45 OF 1988
1.
The interests of justice includes the expectation that those guilty,
be convicted and those not guilty, be acquitted.
2.
In more practical terms that the interests of justice typifies a
variable that occupies the one scale of justice
viz a viz
the
interests and rights of an accused person. Upon the mere
establishment of each, inevitable mutual exertion of influence is
bound to follow.
Key
v Attorney General, Cape Provincial Division
[1996] ZACC 25
;
1996 (2) SACR 113
(CC).
[70]
The
court looked at the factors which the said act prescribes in
section
3:
(i)
The nature of the proceedings: The current matter is a criminal case.
(ii)
The nature of the evidence: The statement of Sandile could confirm
the reliability and therefore the accuracy of Mr. Thethane’s
observation ability and his identification of Sandile as driver of
the ‘get-away’ car. The statement of Sandile was
taken
down by Col Mbotho at 10h20 on 11 May 2013, thus approximately 16
hours after the robbery and shooting of the deceased.
(iii)
The purpose for which the evidence is tendered: The purpose for the
application for the admission of the statement is aimed
at rendering
corroboration for the accuracy of Gabriel’s identification of
Sandile as driver of the ‘get-away’
car and also to be
considered in respect of the reliability and therefore the accuracy
of Mr. Thethane’s observation ability
pertaining to his
identification of accused 2 as the shooter.
(iv)
The probative value of the evidence: The credibility and reliability
of the statement made by Sandile finds material corroboration
in: The
uncontested evidence of Ernest Thabiso Shabalala that Sandile was the
driver of a red car when he brought the laptops to
Shabalala on 10
May 2013 to be sold; The uncontested evidence of Cst Pretorius and
Raletsemo proving that the laptop sold by Sandile
on 10 May 2013,
which was recovered from David Msomi belonged to the deceased; The
statement of accused 1, Exhibit “K”,
implicating Sandile
as the driver of the red Aveo when they came from KZN shortly before
the robbery and murder.
(v)
The possibility of prejudice: the admission of hearsay evidence will
always be prejudicial to the party against whom it is allowed,
because the source of the evidence is not present to be cross
examined. But as the author is deceased, one should make room for
this.
(vi)
Any other factor: The court took into account the fact that Sandile
appeared in court and it was never put on record by him
or his lawyer
that he suspected foul play or that he was assaulted. He was
satisfied that he distanced himself from the crime.
Yet he fully
knew, being caught with the Aveo whose details came from an
eyewitness, that he was linked to the crime scene.
[71] The
considerations contained in section 3(1)(c) of the Act, and the
interests of justice made the court admit the statement
of Sandile in
order to corroborate the accuracy and reliability of the identifying
evidence of Mr. Thethane.
[72]
PROBATIVE VALUE AS OF THIS DAY
Today in this
judgment the court will not make use of the statement. The reason
being that since the court allowed the statement,
the Constitutional
Court has also ruled that extra curial statements from one accused
are inadmissible against other accused. The
state reasons that this
is not the case as the statement is merely corroboration for evidence
given by witnesses. I also was of
the same view, hence the reasons
given above under (iv).
[73] Yet what the
state confirmed is that Sandile was a co-accused. He is not one
anymore. What would have been the position if
he was a section 204
witness? At least then he could have been cross-examined. But he
stands as a co-accused, if he was alive then
it would not have been
used against any accused even if the court ruled it to be admissible.
At the very worst for the co-accused
he could have testified against
or for them!
[74] In 2014 the
Supreme Court of Appeal made it clear that admissions should be
treated as confessions.
[8]
The
court expressed itself as follows:
[9]
“
In
S
v Ralukukwe
2006
(2) SACR 394
(SCA)
this
court thought it important to draw a distinction between admissions
and confessions, reasoning that s 219A, referred
to above, did not in
express terms bar the use of admissions by an accused against his
co-accused. Section 219A was contrasted
with s 219 which expressly
forbade the use of a confession by one person against another.”
[75] It is not
immediately apparent on what basis such a distinction can be
drawn. As we have shown with reference to the earlier
authorities, no
such distinction existed at common law. Moreover, s 219A in terms
provides that: '(E)vidence of any admission made
extra-judicially
by
any person
in relation to the commission of an
offence shall . . . be admissible in evidence against
him.
'
[Our emphasis.] Quite clearly the 'any person' and 'him' refer to one
and the same person — the maker of the statement.
Thus,
although there is no statutory bar as with a confession, the
legislature, consistent with the common law, albeit less
emphatically,
has secured the same protection in s 219A for
a co-accused in respect of an admission as it did in respect of
a confession.”
[76] The
Constitutional Court per Theron, J.A. has now confirmed that
extra-curial admissions of an accused are inadmissible against
co accused.
[10]
It
was held that it could not be admissible in terms of
section
3
of
the
Law
of Evidence Amendment Act
45 of 1988
.
The court concluded: “The common law position before
Ndhlovu,
that
extra-curial statements against co-accused are inadmissible, must be
restored. Admitting extra-curial admissions against
a
co-accused unjustifiably offends against the right to equality before
the law.”
[77]
Theron, J.A. did not make a ruling on the “Common law
exception”. The common law exception was only touched upon.
[11]
In par 39 and 40 the remarks are as follows: “At common law,
there is an exception to the exclusion of extra-curial statements
of
co-accused: if the statement constitutes an “executive
statement” by an accused, it may be admissible against a
co-accused if it was made in furtherance of a common purpose or
conspiracy. There must be other evidence (
aliunde
)
to establish the existence of a common purpose before the statements
can be taken into account. The State would have us
pronounce on
whether this common law exception survives a finding of
constitutional invalidity of the admissibility of extra-curial
statements of an accused against a co-accused. It is not necessary to
determine this issue. The facts do not arise.
The
extra curial statements here were not “executive” in
nature, as conceded by the State, and would not fall
under this
exception. Determining this matter without any factual matrix
to guide our understanding is unnecessary and undesirable.
This
question was not fully ventilated before us and we thus have
insufficient information to make a determination in that regard.”
[12]
[78]
Hoffmann and Zeffertt
[13]
explain this by distinguishing between two types of statements that
relate to common purpose. These are “executive
statements” and “narrative statements”. The
former are made in furtherance of a common purpose and are
admissible
evidence against a co-accused while the latter are an account or an
admission of a past event. Narrative statements
are not
admissible against a co-accused because admissions in general are not
vicariously admissible but may be admissible against
the person
making them. In other words in order to be admissible, the
statement needs to form part of the acts done in the
commission of
the crime.
The conclusion
therefore is that the evidence in the trial within a trial can only
be allowed against the accused person and not
his co-accused.
PHASE
FOUR
JUDGMENT
[79] The accused
are arraigned in the High Court on four counts as set out in the
indictment. The accused pleaded not guilty to
all the counts. In his
plea explanation, accused 1 denied that he was at the crime scene on
10 May 2013. He also denied any knowledge
of the crime. Accused 1
further alleged that on the said date he was at the Kwadlamini Tavern
from the late afternoon until that
night. He also denied the
allegations of unlawful possession of firearms and or ammunition.
In his plea
explanation, accused 2 did not deny that the alleged offences were
committed. He however denied any involvement in such
offences. He
further proffered an alibi by alleging that he was in Kwa-Zulu Natal
on the 10
th
of May 2013.
[80] Both accused
made certain formal admissions in terms of the provisions of
section
220
of Act 51 of 1997, which are recorded in Exhibit “A”.
At the end of the trial accused 1 made a further admission
which was
recorded on Exhibit “AA”.
[81] Both accused
were legally represented throughout the trial. The main point of
dispute is the identity of the perpetrators who
accosted, robbed and
shot the deceased as it is common cause, especially from the evidence
given by the first witness, Mr T Pablowitz
whose evidence was not
challenged. The evidence presented by him and by surveillance renders
it beyond dispute that the three attackers
visible on the
surveillance footage, acted in the furtherance of a prior agreement
to commit the crime of robbery with aggravating
circumstances with
the foreseen ability that such actions could result in the further
perpetration of murder as set out in the
indictment, alternatively
that they acted in the furtherance and or in the execution of a
common purpose.
[82] The Court
must make a value judgment about the footage. The Court cannot but
agree with Van Dijkhorst J, who was particularly
alive to the
fallibility of human memory when he commented on the value of video
footage, in the matter of
S v Baleka and Others
(1)
1986 (4)
SA 192
(T), when he remarked as follows: “…
it does
not suffer from fading memory as do witnesses. The camera may be
selective, but so is the witness’s recollection,
even more so.
The best word artist cannot draw his verbal picture as accurately and
as clearly as does the cold eye of the camera.
Not to mention the
faltering witness who has difficulty in expressing himself.”
In this case
before the court, the video footage confirmed the methods used by the
robbers, the onlookers, the perpetrators. In
years to come security
cameras will be upgraded so that by zooming in one would be one
hundred percent sure about the identity
of those depicted on the
cameras.
[83] Although the
admissibility of Exhibit “1” and “2” was not
contested, the evidence of T Pablowitz and
Mr. Thethane were
presented in order to authenticate the footage and photographs. Such
authentication, occurred in accordance with
the principles governing
the admission of real evidence as set out in
S v Mdlongwa
2010
(2) SACR 419
(SCA) at 424 [14].
[84] The accused
testified in their own defence. Accused two called one witness. The
state called 13 witnesses in the main trial.
[85] The state
relied on identification witnesses. Concerning this, one should bear
in mind what was said in
S v Mehlape
1963 (2) SA 29
(A)
“
In a case
involving the identification of a particular person in relation to a
certain happening, a court should be satisfied not
only that the
identifying witness is honest, but also that his evidence is reliable
in the sense that he had a proper opportunity
in the circumstances of
the case to carry out such observation as would be reasonably
required to ensure a correct identification.
The nature of the
opportunity of observation which may be required to confer on an
identification in any particular case the stamp
of reliability,
depends upon a great variety of factors or combinations of factors
which may have to be investigated in order to
satisfy a court in any
particular case that an identification is reliable and trustworthy as
distinct from being merely bona fide
and honest. It is necessary,
however, for the court to be properly satisfied in a criminal case on
both these aspects. If, in regard
to a question of identification,
any reasonable possibility of error in identity has not been
eliminated by the end of a criminal
case, it could clearly not be
said that the State has proved its case beyond reasonable doubt.”
Evidence
concerning accused number one
The
Pointing out
[86] The Court
found the evidence of the pointing out made by accused one to be
legit. The accused pointed out the direction from
which he and Vusi
came before Vusi accosted the deceased. He also showed Nazo from
where Ngubane came before firing at the deceased.
He further
indicated where the deceased’s vehicle was parked.
In explaining the
pointing-out he explained that he was with Vusi when they approached
the deceased. Vusi cocked his firearm before
the deceased grabbed him
and they struggled for the firearm. Ngubane arrived and shot the
deceased. Vusi grabbed the bags and they
ran to the car that was
driven by Sandile. The person who planned the robbery, Sibiya was
standing on the bridge. Accused one gave
detailed descriptions of the
place and people at the scene as follows: Accused 1 pointed on the
ground and towards the West when
stating: “
We came from this
direction”.
On a question from Col Nazo, accused 1 added
that it was “
myself and Vusi.”
(See: Photo 11 of
Exhibit “R” and Exhibit “P”).
[87] From the
screen prints of Cam 12 and 5 of Exhibit “2”, it is clear
that the first two perpetrators did in fact
approach the deceased
from the side street adjacent to the Garage as was pointed out by
accused 1. Accused 1 indicated that “
Ngubane came from that
side.”
(See Exhibit “R”, photo 12). He further
stated that “Ngubane
shot the white man whilst he and Vusi
were still on the ground as the white man was struggling with Vusi
.”
[88]
Corroboration as to Accused number one’s pointing out
The pointing out
is seen as an admission. Accused number one’s pointing out is
corroborated and
confirmed i
n the
following evidence:
1
st
corroboration
: The direction from which ‘Ngubane’
came as pointed out by accused 1 finds corroboration in footage
contained in Cam
12 and 5 of Exhibit “2” .
2
nd
corroboration
: The identification of ‘Ngubane’
as referred to by accused 1 finds corroboration in the evidence of
Siyabonga Ngubane
who identified accused 2, (Innocent Ngubane) as the
person depicted on the footage as the shooter. He further testified
that accused
2 hid the murder weapon in the ceiling near his room in
the Denver Hostel on 10 May 2013 at approximately 20:00.
[89]
3
rd
corroboration
: Mr. Gabriel Thethane corroborates the
statement of accused 1 in that he identified accused 2 at an identity
parade held on 16
November 2013, as the shooter.
[90]
4
th
corroboration
: The statement of accused 1 that
“”Ngubane’ shot the ‘
white man’
,
finds conclusive corroboration in the Ballistic Reports proving that
the spent cartridges found at the crime scene were fired
from the
firearm accused 2 had hid in the ceiling near Siyabonga’s room
at the Denver Hostel on 10 May 2013.
[91]
5
th
Corroboration
: Accused 1 pointed the place where the
deceased’s vehicle was parked as per photo 13 of Exhibit “R”.
This pointing–out
is corroborated by the footage visible on Cam
13, Exhibit “2”.
6
th
Corroboration
: The correctness of the footage and
therefore the positioning of the vehicle of the deceased were further
confirmed by Mr. Thethane.
[92]
7
th
Corroboration
: Accused 1‘s explanation that “
He
came from the shop and as he opened the back of the car to load two
bags he was carrying, Vusi took out the firearm, cocked it
as we
approached him, the white man turned and charged at Vusi, they
struggled for the firearm (handgun) and both fell on the ground
here..”,
is similarly corroborated by the footage contained
on Cam 13 on Exhibit “2”. The footage contained on Cam 5
clearly
shows how “Vusi”, pulled out a firearm prior to
the altercation with the deceased.
8
th
Corroboration:
Accused 1’s explanation that Vusi was
armed is further corroborated by the fact that a pistol was indeed
found in the
pool of water where the deceased had overpowered Vusi.
This pistol is depicted in photo 7 and 8 of the Crime Scene Album,
Exhibit
“C”.
[93]
9
th
Corroboration:
The explanation of accused 1 implicating Ngubane
as the only shooter, so it is averred, finds conclusive corroboration
in the fact
that the two spent cartridges that were found on the
crime scene, were linked to the firearm accused 2, Innocent Ngubane,
hid in
the ceiling near room 60 at the Denver Hostel after the
shooting. No ballistic evidence was found in order to link the
firearm
that was found in the pool of water, thus the firearm Vusi
possessed.
[94]
10
th
Corroboration
: By way of inferential reasoning coupled with the
footage as contained in Exhibit “2”, it is clear that
Vusi did not
fire any shots, thus rendering the version of accused 1
that Ngubane fired shots true.
11
th
Corroboration:
Accused 1 explained that after the shooting, “
Vusi
woke up, went to the car and took the two bags the white man was
carrying”.
This statement is corroborated by the footage
contained on Cam 5 of Exhibit “”2”, of which screen
prints are
attached hereto, which clearly depicts the correctness of
the statement of accused 1.
[95]
12
th
Corroboration
: Accused 1’s statement that after Vusi had
removed the bags they ran “
to where our get-away car was
waiting, it was driven by Sandile Khumalo”.
This statement
is corroborated by the footage contained on Cam 6 of Exhibit “2”
which clearly shows accused 1 and Vusi
running away whilst each one
is carrying a black bag. Cam 16B of Exhibit “2” depicts
the ‘get-away’ car
and two people getting in to same.
13
th
Corroboration
: Mr. Thethane’s evidence that he had seen the
suspects entering into the “get-away” car which was
driven by the
person he later identified, to wit, Sandile Khumalo,
further corroborates this statement of accused 1.
[96]
14
th
Corroboration
: Thabiso Shabalala’s evidence
that on 10 May 2013 at approximately 20:00 he had received two black
bags with laptops from
Sandile Khumalo in order to find a buyer to
sell to, so it is averred, conclusively establishes the correctness
of accused 1’s
statement.
[97]
15
th
Corroboration
: Accused 1 pointed out the place where
the “
white man”
and Vusi fought as per photo 14 of
Exhibit “R”. This pointing-out corresponds with the
footage contained on Cam 5 of
Exhibit “2”.
[98]
16
th
Corroboration
: Accused 1’s admission that he
was in the company of Vusi at the time of the robbery and shooting,
finds corroboration in
the fact that the shoes and pants confiscated
from accused 1, resemble similar colors as that visible on the
footage. The trousers
are dark grey in color and the shoes are dark
on top with white soles.
The court again
confirms that the court itself, could clearly see the similarities of
the clothes and shoes. It does not take an
expert to see this.
However, if the footage was the only means of identifying the accused
and if the clothes were not handed in
as an exhibit, then the state
would have had difficulty on proving its case based solely on the
footage.
[99]
The
conclusion is clear
: Accused one knew what happened as he was
there. The court is also at liberty to find that his evidence of the
pointing out is
corroborated at least 15 times.
Accused one was
on his own version also in the company of Sandile after the robbery
as they were drinking at the Kwadlamini Tavern
on the evening of 10
May 2013 until the morning hours of 11 May 2013. This as it was put
to Nhlapo that he and Sandile were still
‘babalas’ at the
time of his arrest.
Accused one
contradicted his earlier version as he later alleged that he only saw
the red car on the Wednesday of their arrival
and when he was
arrested.
[100] The accused
testified that he sought to come to Johannesburg to see the city as
he had never been here before. This version
of the accused is
inherently so improbable that it cannot be true. Contrary to what is
submitted to be expected conduct of a tourist,
the accused further
had great difficulty in explaining what he had seen and where he had
been to when he allegedly joined Sbu and
Vusi on a tour of
Johannesburg on 10 May 2013.
[101] On 16 May
2013, thus prior to the pointing-out, Motloung told the accused about
the similarities between the clothing of one
of the robber’s
visible on the surveillance footage and that the accused was wearing.
Motloung testified that the accused
was shocked and that he did not
deny that it was him on the footage. The accused then started to make
a report to Motloung which
was incriminating. The fact that the
accused was shocked and made no attempt to deny that there were
similarities and or deny that
it was indeed him on the footage,
amounts to an admission by conduct.
Nombewu
1996 (2) SACR 396
(E);
Qolo
1965 (1) SA 714
(A)).
[102] The accused
remained silent for two years before disclosing that he had an alibi.
The version of the accused does not refer
to specific times as to
when he arrived at the Tavern and when he left.
Ernest Shabalala
testified that on 10 May 2013 from approximately 15:00 until Sandile
arrived at approximately 20:00, he was outside
the Kwadlamini Tavern.
This evidence was not contested. He did not see accused 1 at the
Tavern. This evidence of Shabalala was
similarly not contested. Based
on these facts it means that accused 1 could not have been in the
company of Sandile at the Kwadlamini
Tavern before 20:00 on 10 May
2013. As the robbery occurred at approximately at 17:50, the accused
is therefore left with no version
as to his whereabouts at that time
as Shabalala did not see him at the Tavern from his arrival at 15:00.
[103] The fact
that Shabalala was detained with accused 1 from 11 May 2013 renders
it impossible that if he had seen accused 1 at
the Tavern he would
not have recognized him. At the end of the State’s case, the
accused realized this impairment. He attempted
to rectify the problem
by materially amending his evidence. He now alleged that he was at
the tavern with one Sbu and Vusi from
a time after 16h00. Sandile now
only arrived between 20h00 and 21h00. Shabalala was a credible
witness. He at no stage implicated
accused 1 or 2 in any way. In this
regard it is also significant to note that when Shabalala was
cross-examined by counsel for
accused 1, the version that accused 1
was at the tavern was never put to him.
[104]
The alibi is false for the following reasons:
One: he never
disclosed his alibi (the new and amended version thereof), to
Constable Nhlapo, the arresting officer and Col Mbotho
who had taken
his Warning Statement, Exhibit “K” on 11 May 2013.
Two: The accused
alleged that Sbu and Vusi were also in the room where Nhlapo had
arrested him and Sandile. Lt Col Mbotho was also
never requested to
get someone to collect Sbu and or Vusi in order to verify his alibi
as they were available in room 94 of the
Denver Hostel.
Three: He also
made no attempt to tell Motloung on 13 May 2013 prior going to court.
His alibi witness, (on his initial version),
Sandile Khumalo was also
arrested and therefore available at all times to confirm the truth of
the alibi.
[105] The state
witnesses implicating accused one were reliable, honest and truthful.
They had no reason to falsely implicate accused
one. The same cannot
be said, I already gave an opinion about accused one’s
trustworthiness and again confirm that he is
a liar.
[106]
The case against Accused Two
Accused two had
been identified at an I.D. parade by Siyabonga Ngubane. Mr. Ngubane
linked accused two with the murder weapon within
less than 3 hours
after the robbery when testifying that accused 2 hid the firearm in
the ceiling at or near his room at the Denver
Hostel on 10 May 2013.
The same witness, who is a relative of accused 2 identified accused 2
on the video footage contained in
Exhibit “2” as the
shooter.
This
identification is based on the fact that he knows accused 2 and even
the way he walks too, very well. He further identified
the cap the
shooter is seen wearing on the footage as the same cap the accused
was wearing on 10 May 2013. He knows this cap as
accused 2 had worn
it before.
[107] Mr.
Siyabonga Ngubane and Thethane corroborated and supported one another
as far as the identity of Accused two is concerned.
Mr.
Siyabonga Ngubane had no conflict with the accused, only during
cross-examination did accused two allege that there was indeed
conflict between him and Mr. Siyabonga Ngubane due to the sale of two
puppies for which the latter wanted his money back. A new
version for
which he could not give an explanation why this version was never put
to Siyabonga.
[108]
Accused two initially testified that he was never in Johannesburg
before his arrest. This version was later amended in a contradictory
manner when he explained that when he came to Johannesburg driving a
taxi, he would stay in Vosloorus. This evidence fully corroborates
the evidence of Mr. Siyabonga Ngubane when he testified the accused
had told him that he stayed in Vosloorus.
[109]
Mr. Thethane identified accused 2 at an identity parade that was held
on 16 November 2013 as the person who had shot the deceased.
The
integrity of the parade was not contested.
What
was contested is the fact that Thethane in a previous statement
shortly after the murder, said that he would not be able to
identify
the accused. Yet this stands in contrast to how he explained that the
conditions prevailing at the time were good thus
enabling him to see
well. There were lights which were shining whilst he saw the shooter
from a relatively short distance. This
evidence was not contested.
[110]
The court finds that Thethane was an honest witness. He indicated
that he cannot identify any of the other two robbers who
had entered
the premises on foot. This evidence accords with the fact that
accused 1 was also at the first parade where Mr. Thethane
only
identified the late Sandile Khumalo.
[111]
Statement by Mr. Thethane
Why would Mr.
Thethane say in a statement that he would not be able to identify the
accused if he then did it? My impression from
the video footage is
that there were enough lights on, it was not pitch dark yet, the
garage is well lit, he had ample time to
observe, it was a traumatic
event. Mr. Thethane is a very clever man who acts swiftly and calmly
in times of danger. The video
footage speaks for itself, he observed,
watched, took the number down calmly. He did not panic as the other
petrol attendants did,
they rushed to the deceased and backed off, we
do not see one attendant trying to save his life, alternatively they
could have
thought that it was to no avail.
[112]
The court is mindful that eyewitness memory is vital and unless
contradict, proved to be false, it is valuable
to draw inferences.
Memory is a constitutive process involving a complex retrieval system
sampling an extensive knowledge base.
It has also been established
that “Quite often the original “eye-witness” of
today himself trims the story to
its bare essentials; and at other
times (a most important matter) the one who first writes it down,
keeping an eye on his space,
trims it.”
[14]
[113]
There are some specific conclusions that can be drawn from the study
of recollective memory by psychologists.
The following factors seem
to be important:
[15]
1) Unique or
unusual event. The common notion is that such events are more likely
to be remembered. The unexpectedness of the event
makes it more
memorable.
2) Event that is
important to a specific person. What we forget is the trivial
and the insignificant which might not be insignificant
for other
people.
3) An event in
which a person is emotionally involved. However, evidence on the
effect of emotion on memory is in fact quite complex.
4) Dating: There
is much evidence that collective memories exclude absolute time
information from most events. A typical recollection
will include
information on location, actions, persons, emotions, and the time of
day but the recollection of dates are very uncommon.
If people
wish to date these memories, they usually do so by inference from
other information that the memory does contain.
S v Bruiners
1998 (2) SACR 432
(SE), compelling an analyses of the purpose of
such statements, its nature, their impairments and the manner in
which same ought
to be assessed.
[114]
The purpose of a police statement is to obtain details of an alleged
offence enabling a decision whether or not
to institute a
prosecution. The police statement of a witness is not intended to be
a precursor to that witness’ evidence
in court; such statements
are usually taken down in a language other than the mother tongue of
the deponent or the officer recording
same. The contents of the
statements do not resemble the
ipse dixit
of the later
evidence of the witness and therefore constitutes a mere summary of
events. The statement is not taken down whilst
the witness is under
cross-examination, therefore explaining why it is not surprising that
oral evidence would often differ from
that contained in a statement.
[115]
If I now test the above with the contents of two statements Mr.
Thethane had made to the police, both statements
were recorded in
English, then in the first Statement: 11 May 2013 It is noted in
paragraph 6 of the statement that “
I won’t be able to
identify the suspects because there was dark outside”.
The witness was
cross-examined at length in respect of this sentence as he had
identified accused 2 as the shooter at an identity
parade on 16
November 2013, thus approximately 6 months after having signed the
above statement. Mr. Thethane denied that he had
told the police
officer who took down the statement that he cannot identify the
suspects. He testified that he in fact told the
officer that he can
identify the suspect(s). Although he signed the statement, he denied
that the statement was ever read back
to him or that it was given to
him to read.
[116] During
re-examination it was confirmed that Mr. Thethane is Pedi speaking
and the officer who took the statement was Zulu
speaking. They
communicated in Pedi. No interpreter was used in the taking down of
the said statement.
[117] A further
point of dispute arose from the contents of paragraph 3 of the
statement in which it is noted that: “
I then suddenly saw
two other suspects coming also and I heard a sound of a gun”
.
In his evidence in chief, Mr Thethane testified that he had heard 2
gunshots. He was confronted by counsel for accused two with
this
aspect as an alleged contradiction in his version
vis a vis
the contents of his statement.
[118] Gabriel’s
denial that he had told the police officer who took the first
statement that “
I won’t be able to identify the
suspects because there was dark outside”
, cannot be faulted
as the Zulu speaking officer conversed in Pedi with Mr. Thethane with
no interpreter. Cst Ndlovu who testified
for the defence admitted
that no interpreter was used. He further admitted that he made a
mistake in respect of the true meaning
of the description of what the
deceased had done with the two laptop bags. On his evidence, so it is
averred, it cannot be excluded
those language barriers might have
caused a recording in error.
[119] During
cross-examination Mr. Thethane was asked a question as to why he
would sign a document if he did not know the contents
thereof. Mr.
Thethane explained that he was convinced that what the police officer
recorded was correct.
[120] Gabriel’s
identification of Sandile and later accused 2, finds material
corroboration in the evidence of other witnesses
not related to him.
This fact, renders sufficient support for the truthfulness of his
version that he did in fact tell the police
officer who took down his
first statement that he can identify the suspects.
[121] I found Mr
Thethane to be an honest and reliable witness, never hesitating and
being open and frank in answering questions,
this apparent
contradiction can only be put at the police officer’s feet.
Weinkove AJ, in
Johnson v Road Accident Fund
2001 (1) SA 307
(C) at 310H 311E
gives a superb summary:
“
The
real test of truth does not lie in a comparison between what the
witness is alleged to have told someone else and what he now
tells
the Court. What a witness is alleged to have told someone else leaves
room for misstatements, misunderstandings and misconstructions.
The
statement, however carefully drafted, can never be as reliable as
listening to the ipsissima verba of the witness himself.
Signing or
otherwise confirming the content of a previous statement does not
remove the inherent deficiencies of the hearsay nature
of the
evidence and all its other inherent faults. The best test of the
accuracy and truth of what a witness says lies in an independent
assessment of his actually spoken words. It lies in the Court’s
ability to observe and note any degree of hesitancy or uncertainty
which may or may not attend upon a concession by the witness or his
affirmation of a given fact. Ultimately this Court is the trier
of
facts of the case and the credibility of a witness does not entirely
depend on the score he may achieve in testing inconsistencies
between
what he now says and what someone else says he told them.”
[122] I found
accused two to be an evasive witness, changing his version as was
very clear from saying that “me and Siyabonga
don’t get
along in the family”, only when cross examined by the state. He
even stated that if Siyabonga said they grew
up together, then he is
lying. Also, his evidence that Siyabonga would frame him for the
firearm just because they had a row about
puppies, cannot stand.
[123] Mr.
Siyabonga Ngubane was an honest witness. No lies came from his lips.
Mr. Thethane who identified the accused was an honest
witness. The
same cannot be said about accused two. He was evasive and at some
stages confrontational. His versions are impaired
by material
contradictions, amendments and improbabilities.
The state proved
its case beyond all reasonable doubt.
[124]
COMMON PURPOSE
Can it be said
that both the accused
at all times
relevant to the offences, acted with the co-accused as well as the
late Vusi Khumalo and Sandile Khumalo in the furtherance
of a common
purpose to rob the deceased with the foreseeability that shots may be
fired which will cause injury or death to the
deceased?
[125]
The common purpose is clear from the footage as contained on Exhibit
“2”:
One: The first
two robbers approached the deceased directly just as he was busy
loading the laptops in the boot of his car.
Two:
The usage of a getaway car.
Three: The
robbers did not intend to go to the cash office but went straight for
the deceased.
Four:
The robbers targeted the bags.
Five:
The robbers ran away after the shots were fired.
Six: The robbers
clearly worked together, they worked together to overpower the
deceased and did not hesitate to use force and the
second armed
carrier came in to help.
The only
conclusion is that the robbers worked together with a common purpose.
The robbery was pre-planned.
[126]
DOLUS EVENTUALIS
Dolus
eventualis
in relation to
murder is present where the accused, without an actual intent to
kill, but foreseeing the real possibility of his
or her act resulting
in death to another, persists in it, reckless of whether death ensues
or not. The multiple aspects of
this form of intention have been
described as: Subjective foresight of the possibility, however
remote, of his unlawful conduct
causing death to another. Persistence
in such conduct, despite such foresight. An insensitive recklessness
(which has nothing in
common with
culpa
).
The conscious taking of the risk of resultant death, not caring
whether it ensues or not. The absence of actual intent to kill”.
S v De Bruyn
1968
4 All SA 211
(A); 1968 4 SA 498 (A).
[127] Accused 1
did in fact foresee and reconciled himself with the deadly
consequence that should the firearms possessed by Vusi
and accused 2
be used during the robbery, hence the inference that he acted with
dolus eventualis
in respect of the murder of the deceased.
Accused two fired
the shots as is clear from the video footage and evidence. He
intended to kill.
[128]
UNLAWFUL POSSESSION OF FIREARMS AND AMMUNITION
The admitted
ballistic Reports in respect of the two recovered firearms, Exhibit
“D” and “E”, so it is averred,
proves beyond
all doubt that the two firearms are indeed firearms as defined in
section 1 of the firearms Control Act, Act 60 of
2000.
[129] The robbery
was pre-planned with each robber having a specific role, which
included firearm carriers, back-up support and
‘get-away’
driver, this means that each robber was aware of his role and that of
his co-perpetrators. Accused 1 must
have known that Vusi and accused
2 were armed. Considering the detail of planning done prior to the
robbery, accused 1 must
have agreed to an arrangement that Vusi
and accused 2 would possess the firearms on behalf of the group and
themselves prior to,
during and after the robbery.
[130] I follow
the reasoning in
S v Mtsweni
1985 (1) SA 590
(A) at 594B-D
where
Smallberge
r AJA dealt with the difference between
inference and speculating by referring to the remarks of Lord Wright
in
Caswell v Powell Duffryn Associated Collieries Ltd
[1939] 3
ALL ER 722at
733 which was quoted in
S v Essack and Another
1974
(1) SA 1
(A) at 16D, when he stated
that “there can be no
inference unless there are objective facts from which to infer the
other facts which it is sought to
establish. In some cases the other
facts can be inferred with as much practical certainty as if they had
been actually observed.
In other cases the inference does not go
beyond reasonable probability. But if there are no positive proved
facts from which the
inference can be made, the method of inference
fails and what is left is mere speculation or conjecture.”
[131] The
requirements for joint possession of the firearms as were set out in
S v Mbuli
2003 (1) SACR 97
(SCA) by Nugent J.A. at paragraph
71:
What is prohibited by both those sections
is the existence of a state of affairs (ie having possession of an
armament, or a firearm,
as the case may be) and a conviction will be
competent only if that state of affairs is shown to exist. That state
of affairs will
exist simultaneously in respect of more than one
person if they have common (or joint) possession of the offending
article. Their
contravention of the relevant section in those
circumstances does not arise from an application of the principles
applicable to
common purpose (which is concerned with liability for
joint activity) but rather from an application of ordinary principles
relating
to joint possession. Common purpose, and joint possession,
both require that the parties concerned share a common state of mind
but the nature of that state of mind will differ in each case.
[132]
Perhaps Olivier JA had in mind the principles of joint
possession, rather than the doctrine of common purpose, when he said
in
S v Khambule
2001 (1) SACR 501
(SCA) at para [10]
that there is no reason in principle why a common intention to
possess firearms jointly could not be established
by inference, but I
do not agree with the further suggestion that a mere intention
on the part of the group to use the
weapons for the benefit of all of
them will suffice for a conviction. In my respectful view, Marais J
set out the correct legal
position (apart from a misplaced reference
to common purpose) when he said the following in
S v Nkosi
1998 (1) SACR 284
(W) at 286
h
-
i
:
'The issues which
arise in deciding whether the group (and hence the appellant)
possessed the guns must be decided with reference
to the answer to
the question whether the State has established facts from which it
can properly be inferred by a Court that:
(a)
the group
had the intention (
animus
) to exercise possession of the guns
through the actual detentor and
(b)
the actual
detentors had the intention to hold the guns on behalf of the group.
Only if both requirements are fulfilled can
there be joint possession
involving the group as a whole and the detentors, or common purpose
between the members of the group
to possess all the guns.'
[133]
The Court makes the following order:
1. Accused one
and two are found guilty of the following charges:
1.1.
Count 1 - Robbery with aggravating circumstances;
1.2.
Count 2 – Murder;
1.3.
Count 3 – Contravention of section 4 of the Firearms Control
Act - Unlawful possession of a firearm;
1.4.
Count 4 – Contravention of section 9 of the Firearms Control
Act – Unlawful possession of ammunition.
M KLEIN
ACTING JUDGE OF
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the State: Adv D Van Wyk
Counsel
for accused 1: Adv G Sidwell
Counsel
for accused 2: Adv J Penton
Date
of Hearing: 14 April 2015
Date
of Judgment:21 July 2015
[1]
Sheehama
[1991] ZASCA 45
;
1991
(2) SA 860
(A).
[2]
Act
108 of 1996
[3]
S
v Melani 1996(1) SACR 335 (E) at 339 f-g
[4]
S
v
Muchindu
2000
(2) SACR 313
(W)
[5]
S
v
Muchindu
2000
(2) SACR 313
(W)
[6]
S
v
Muchindu
2000
(2) SACR 313
(W)
[7]
S
v
Muchindu
2000
(2) SACR 313 (W)
[8]
S
v Litako and others
2014
(2) SACR 431 (SCA)
[9]
S
v Litako
,
p
ar
53, 54
[10]
Mhlongo
v S; Nkosi v S
[2015]
ZACC 19
[11]
Mhlongo
v S; Nkosi v S
[2015]
ZACC 19
at
par 39 and 40
[12]
Mhlongo
v S; Nkosi v S
[2015]
ZACC 19
at
par 39 and 40
[13]
The
South African Law of Evidence
4
ed (Butterworths, Durban 1988) at 190
[14]
Glason,
T F “The Place of the Anecdote,”32 (1981) p 145.
[15]
Brewer,
“What is recollective memory?” at p 39 in D.C.
Rubin, ed., “Remembering our Past”. (p86),
Cambridge
University Press, 1996