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[2019] ZAGPJHC 3
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S v Sibisi and Another (CC66/2017) [2019] ZAGPJHC 3 (25 January 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION FUNCTIONING AS MPUMALANGA DIVISION OF THE HIGH COURT
MZUKALIQWA
CIRCUIT, BREYTON
CASE
NO: CC 66/2017
In
the matter between:
THE
STATE
And
MKHETHENI
SIBISI (ACCUSED
NO. 1)
BONGANI
DLAMINI (ACCUSED
NO. 2)
JUDGMENT
TV
RATSHIBVUMO AJ
:
Criminal
Law and Procedure
–
Trial
within a trial – Admissibility of a confession taken after the
accused elected to have a legal representative. Admissibility
of bail
record in a trial after the accused was not warned in terms of
section 60 (11B) (c) of the Criminal Procedure Act.
Law
of Evidence
–
requirements
for a conviction on circumstantial evidence. Prima facie case made
for the State – the impact of closing the
defence case without
leading evidence – the right to remain silent. Failure by the
State to allege ‘common purpose’
in the indictment or
further particulars.
The two accused stood trial on charges of murder and
conspiracy to commit murder. The deceased was shot dead at his home
by two
men who fled the scene in a motor vehicle driven by a third
person, acting in furtherance of common purpose. Accused no. 1 was
arrested after the getaway car was involved in an accident while
driving away from the murder scene. A document was found in his
possession linking him to the murder and also implicating accused no.
2. Accused closed their case without leading evidence.
Held
,
that a confession taken from accused no. 1 after he had chosen to
have a legal representative, without affording him the opportunity
to
consult, was inadmissible.
Held
further
, that failure to warn accused
no. 1 in terms of section 60 (11B) (c) of the Criminal Procedure Act
results in the bail record being
inadmissible in a subsequent trial.
Held
further
, that the accused cannot be
convicted of murder based the doctrine of common purpose unless the
State had alleged common purpose
in the charge or further
particulars.
Held
further
, that while a charge can be
amended at any stage before judgment; the court will be slow to allow
the amendment where it appears
that it could be prejudicial to the
accused. The application to amend the charge brought after closing
arguments was as such refused.
1.
The two accused stood trial on three
criminal charges.
·
Count 1: Conspiracy to commit murder
in contravening sec 18 (2) (a) of the Riotous Assemblies Act, no 17
of 1956 (the Riotous Assemblies
Act). The State alleged that on 03
October 2016 at Sinqobile D, in the district of Amersfoort, the
accused did unlawfully and intentionally
conspire to aid or procure
the commission of or to commit an offence, to wit, to unlawfully and
intentionally kill Velly Thomas
Nkosi, a male person.
·
Count 2: Murder. It was alleged that
on the date and place as per count 1, the accused unlawfully and
intentionally killed Velly
Thomas Nkosi, a male person.
·
Count 3: Reckless or negligent
driving in contravening sec 63 (1) (a) of the National Road Traffic
Act, no 93 of 1996 (the
National Road Traffic Act). The
State alleged
that on the date and place as per count no. 1, the accused did
unlawfully and intentionally drive a vehicle, to wit,
a white Hyundai
i20 with registration no. FB 92 MX GP, recklessly or negligently.
2.
The accused were legally represented
throughout the trial. Mr. Venter, an attorney appeared for accused
no. 1 and Adv. Jacobs for
accused no. 2. Adv Poodhun appeared for the
State.
3.
The two accused pleaded “Not Guilty”
in respect of all the charges and offered no plea explanation in
terms of
sec 115
of Act 51 of 1977 (the Criminal Procedure Act).
4.
Introduction:
The
taxi industry can be very volatile and dangerous in South Africa.
Those at the risk of losing lives are the taxi association
bosses,
taxi owners, taxi drivers and the commuters who get caught in
crossfire. The sad part of it is that generally, the consumption
of
members of this industry cannot be blamed on some aliens; but they
fall at the hands of their colleagues and members of the
same
industry. And so it was that on 03 October 2016, between 17h00 and
18h00, it was the turn of a taxi boss, a chairperson of
a taxi
association and a taxi owner from Daggakraal to meet his fate. The
presence of his wife and children at home was not enough
to stop the
two men who entered the yard of Mr. Nkosi from firing several shots
at him leaving him dead. The piercing scream of
a wife in agony
alerted the neighbours who watched helplessly when the killers were
whisked away in a small white motor vehicle.
The same motor vehicle
was spotted by a man from the neighbourhood some 1,8 km away as a
Hyundai i20 with GP registration number
plate.
5.
This triggered the search for a white
Hyundai i20 with GP registration number plate. Some 30 minutes later
and 25 km away, a white
Hyundai i20 with registration no. FB 92 MX GP
was found having overturned and next to it was accused no. 1. A
document belonging
to accused no. 2 found in his pocket only in the
morning of the following day led to the arrest of accused no. 2. At
the back of
the document were the details of a motor vehicle
belonging to the deceased: Maroon Chevrolet Cruze with registration
number HVL
884 MP.
6.
It turned out that accused no. 1 not only
had accused no 2’s document, but they are friends and
colleagues in the taxi industry,
with accused no 1 working for a taxi
association and accused no. 2 being a taxi owner in the same taxi
association in Johannesburg.
It also turns out that the two of them
went together to Avis Car Hire in Sandton where the car (a Hyundai
i20 with registration
no. FB 92 MX GP ) was rented out to accused no.
1’s fiancé. Not only were the finger prints of the two
accused uplifted
from the rented car after it overturned, but the
cell phone records reflect that they travelled together from Sandton
to Mpumalanga
that very day. No direct evidence implicating the two
accused as the men who killed the deceased was led.
7.
Issues for determination
:
The court is called upon to determine if these facts which to a large
extent constitute circumstantial evidence, sufficient to
bring about
the conviction of the two accused. In other words, does the inference
sought by the State exclude all other reasonable
inferences? What are
the consequences of the State’s failure to aver in the
indictment that the accused acted in furtherance
of common purpose?
The court also has to determine the consequences of the accused
closing their case without leading evidence
in light of the evidence
presented by the State.
Summary
of facts:
8.
A total of 13 witnesses testified during
the trial including those who testified in a trial within a trial.
The two accused closed
their case without giving evidence.
Case
for the State
9.
Thobile Josephine Madonsela:
She testified that Velly Thomas Nkosi, the
deceased, was her husband. On 03 October 2016 the deceased came home
from work between
17h00 and 18h00 and parked the car in the garage.
As he walked from the garage to the main house door, two unknown men
walked into
the yard and approached the deceased outside the house
asking him if it was Nkosi’s house. The deceased asked them as
to
which Nkosi they were referring to. She then heard the gun shots.
When she got out, the deceased, the father to her 4 children was
lying lifeless in a pool of blood. The two men fled towards the
mountain behind her house. At the time of his death, the deceased
was
a taxi owner who was involved in a business with Majuba Company. She
knows that at the time of his death, the deceased had
realised that
his shares of the funds in Majuba were defrauded and he was fighting
for them.
10.
Raphael Sithole:
He
is a neighbour to the deceased. After the deceased was shot, he heard
a voice of a woman in agony, calling out his daughter.
As his
daughter got out in response, he followed. He observed two men
running out of the yard of the deceased towards a mountain
and turn
towards the road. A small white motor vehicle arrived and stopped
waiting for the two as they ran towards it. The car
left at a high
speed taking the direction of Wakkerstroom, leaving a lot of dust
behind. From where he was, he could not see the
car registration
numbers. He made two phone calls to Mr. Mnisi who stays on the side
of the mountain on the direction taken by
this motor vehicle in order
to alert him. He described the small white car and also confirmed the
pictures handed to him of a Hyundai
i20 as resembling the motor
vehicle in question.
11.
Testifying on 2016 events in 2018, the 66
years old witness could not remember the finer details he gave in a
statement he made
to the police. A statement handed in during cross
examination (see Exhibit J) elaborates that he made a phone call to
Mr. Mnisi
and asked him to get the car registration numbers of a
motor vehicle that was to drive past his house, since he stayed next
to
the road and that he made a second call to find out if he managed
to obtain them.
12.
Nhlanhla Vincent Mnisi:
He
testified that he left home in order to meet his girlfriend along the
same road that leads to Wakkerstroom. He took his father’s
cell
phone since his own phone was flat on battery. As he was walking home
with his lover, a phone call came through from Mr. Sithole
who,
thinking that the phone was with the owner, spoke quickly asking him
to get to the road and observe a white motor vehicle
and see if he
can take its registration number. As he was still on the phone, the
white motor vehicle drove past at a high speed.
All he managed to
observe was that it was a white Hyundai i20 with GP (Gauteng
Province) registration number plate.
13.
Moments later, a police van drove past and
the police asked him if he saw a motor vehicle whose description was
that of the white
Hyundai i20 that drove past, and he confirmed that
he did. He described the area as being so rural that hardly 15 motor
vehicles
drive by on that road per day, let alone those with GP
registration number plates since it is deep in Mpumalanga.
14.
Bongani Solomon Mkhwanazi
:
He is a police officer holding a rank of a
constable. He testified that he arrived at the scene where the
deceased was shot dead
and secured it. He is the one who searched the
deceased and took out his wallet with cash and cell phones. He was
also given a
brown envelope by the deceased’s brother, which he
said contained information the deceased wanted to be given to the
police
in case he dies. The deceased was certified dead by members of
EMS in his presence.
15.
Tshimangadzo Ndou
:
He is a police officer who held a rank of a constable in 2016. He
testified that on 03 October 2016 he was on duty patrolling
in a
police van when he received information from the police radio about a
shooting incident at Daggakraal. He also received information
that
the hit men fled in a white Hyundai with a GP registration number
which drove towards Wakkerstroom on a gravel road. He decided
to
drive along the same road towards Wakkerstroom. Before he reached
Wakkerstroom at and around 18h20, he found a car matching
the
description he was given having overturned on the side of the road.
It was a Hyundai i20 with registration number FB 92 HX
GP. He also
found accused no. 1 who was about 30 meters from the overturned motor
vehicle and was hitchhiking.
16.
He testified that he stopped the van and
proceeded to search accused no. 1 and found in his possession, a
firearm with no magazine.
Accused no. 1 also told him that he was a
driver of the overturned motor vehicle. His right wrist was injured
and he had scratches
on his arms. He also proceeded to search the
overturned motor vehicle wherein he found a firearm magazine amongst
other things.
Accused no. 1 did not have a licence for a firearm or
even a driver’s licence. He then read him his constitutional
rights
and placed him under arrest.
17.
A police detective, Cnst Kapa who was on
standby arrived and he handed the scene over to him while he (the
witness) took accused
no. 1 to the police station for detention. He
confirmed the photos of the motor vehicle in Exhibit B as reflecting
the said motor
vehicle he found having overturned that evening.
18.
Under cross examination by accused no. 1’s
legal representative, the witness denied that he was in the company
of another
police officer when he arrived at the scene where the car
had overturned. He also denied that upon searching accused no. 1, he
found a wallet or that accused no. 1 told him that his licences were
in it. He also disputed that there were other police officers
at
scene who arrived before him. He denied that he assaulted accused no.
1 accusing him of murder or that he demanded information
on others
who were involved.
19.
Bafana Josia Thabethe
:
He is a taxi owner who resides in Daggakraal. The deceased was a
chairperson of their taxi association. On the night the deceased
was
killed, he received a phone call notifying him of the incident. He
proceeded to the deceased’s house where he was told
of the
direction taken by the assailants. He followed in in his own motor
vehicle in search of the motor vehicle the hit men were
travelling in
and turned back without finding it.
20.
Later on, he and three other taxi owners
proceeded again towards Wakkerstroom in order to assist the police in
the search. This
time, they reached where they found a Hyundai i20
having overturned and accused no. 1 was already arrested and kept at
the back
of a police van. When he confronted accused no. 1 as to
where he was coming from, he told him he was from a girlfriend in
Daggakraal.
He suggested that accused no. 1 be taken to point out
that girlfriend but the police refused.
21.
Siphiwe Ben Ndlovu
:
He is a police constable attached to Amersfoot police station at the
detective branch. He testified that he saw accused no. 1
at
Wakkerstroom SAPS on 04 October 2016 after Cnst Kapa, the
Investigating Officer, had requested him to go and take him to
Amersfoort
SAPS. When he collected him, accused no. 1 was clad in a
blanket. At Amersfoot SAPS, he took accused no. 1 to Cnst Kapa’s
office for interviewing purposes. As they were talking to him,
accused no. 1 gave him a black plastic bag saying it contained his
wet clothes. He asked the witness to hang those clothes for him to
dry which he did.
22.
Before leaving the office to hang the
clothes; and in the presence of accused no. 1 and Cnst Kapa, he
opened the plastic and found
it contained jean pants, navy jacket,
Nike cap and a pair of shoe laces. He searched the clothes and inside
the right pocket of
the navy jacket he found a folded paper which he
opened. The said paper was written:
FARADAY TAXI ASSOCIATION:
ck no. 2206/03….JHB 2190. 25 Aug 2016.
To whom it may concern.
This is to certify that Bongani Dlamini ID [...] has
received an amount of R15 000 on behalf of BJ Dlamini’s
child.
Signed by BJ Dlamini.
At the back of the paper it is written:
France
[…]80.
Maroon
HVL 884 MP
Chev
Cruzu
23.
He testified that he then asked accused no.
1 as to the ownership of this document and he told him that he
received it from Bongani
Dlamini. When asked as to who Bongani
Dlamini was, accused no. 1 told him that Bongani Dlamini was one of
his colleagues and was
the person who brought him from Johannesburg
to Daggakraal in Mpumalanga. As for the details at the back of the
paper, accused
no. 1 indicated he had no knowledge of anything
therein. When he entered the car registration numbers found at the
back of this
paper, it reflected that these were the registration
numbers of a motor vehicle belonging to VK Nkosi, the man who was
shot dead
a night before in Daggakraal. The said paper was accepted
and marked as Exhibit K.
24.
Ayanda Colleen Magudulela
:
She testified that she was involved with accused no. 1 who is also a
father to her 4 year old child. She also knew accused no.
2 as a
person that accused no. 1 introduced to her as his friend. She gave
evidence on Exhibit C, a car rental agreement with Avis
Car Rental
that the police found in a motor vehicle after it overturned. She is
the one who signed Exhibit C and rented out a car
from Avis, Sandton
branch on 03 October 2016. She made a payment using a credit card
that belonged to her business named, Striving
Mind. The car rented
out to her was a white Hyndai i20, the same car in photo 1, 2 & 3
of Exhibit B. When she went to hire
this car at Avis branch in
Sandton, she was in the company of accused no. 1 and accused no. 2.
In fact it was accused no. 2 who
had brought accused no. 1 to her
home that day.
25.
She hired this car because she and accused
no. 1 were to go to KZN to see a child that was injured. After hiring
the car, the two
accused got into the Hyundai i20 while she drove the
Toyota Corolla belonging to accused no. 2 on her own. The two accused
drove
behind her to her home. Accused no. 2 left his car behind and
drove off in a Hyundai i20 together with accused no. 1 on the same
day. She does not know where they went to. The two did not return
that day. She only saw accused no. 2 the following day as he
came to
collect his motor vehicle, a Toyota Corolla. All that accused no. 2
informed her was that accused no. 1 was involved in
a car accident.
She did not ask for further details or whether accused no. 1 was
injured.
26.
She testified that she then contacted Avis
Car rental in order to ask them to track the whereabouts of the motor
vehicle, and they
informed her to contact Wakkerstroom Police
Station. A certain Dlamini from that police station gave her the
phone numbers of Cnst
Kapa who told her to come to Amersfoort Police
Station to make a statement, which she did.
27.
She further testified on Exhibit D, being
still pictures processed from a security camera inside Avis Car
Rental. According to her,
these photos were taken from Avis in
Sandton and reflect the true events of the date of 03 October 2016.
In Exhibit D, she identified
herself as a lady with braids to the
back. She further identified accused no. 1 and accused no. 2. Accused
no. 1 is the man wearing
a blue CRON jersey – see picture 11.
In picture 13, she identifies accused no. 2 as a man leaning against
the counter while
accused no. 1 is walking from the door towards the
counter where she was with accused no. 2. Accused no. 1 was on the
phone in
this picture. The Toyota Corolla in picture 21 belonged to
accused no. 2.
28.
She confirmed that her cell phone numbers
were [...]79 and [...]11 as reflected in Exhibit C item 15. She also
confirmed that accused
no. 1 called her in one of these numbers on 03
October 2016. She also confirmed having talked to accused no. 1 on a
landline phone
starting with numbers, 017 after she received a call
on her cell phone while on her way to Amersfoort Police Station.
29.
Mohale Edwin Kapa
:
He is the Investigating Officer in this matter. He was in the company
of Cnst Ndlovu when he went to collect accused no. 1 from
Wakkerstroom police station. He investigated the cell phones
belonging to accused no. 1 and accused no. 2 in order to establish
if
the two were together around the time the deceased was murdered. He
applied for “sec 205 co-ordinates.” This application
was
done through the prosecutor and was authorised by the magistrate in
Amersfort. The subpoenas were served on MTN and Vodacom’s
the
networks that the two accused’s cell phones used. This was for
outgoing and incoming calls and tower locations in the
first
application. In the second application it was for the towers
coordinates. He was given the coordinates and the towers addresses.
He gave the information to Sgt Koch to compile a report.
30.
Hendrick Johannes Strephanas Koch
:
He is a member of the SAPS holding a rank of a sergeant. He is
attached to LCRC in Ermelo. He is a crime scene investigator who
compiles maps, coordinates and crime scenes photographs. He has been
compiling maps for the past seven years. He received in-service
training and also trained himself on how to use google and google
earth. He has 17 years’ experience as a police officer.
He
testified that he was approached by the Investigating Officer with
request that he should compile a map with coordinates of
cell phone
data in relation to this case.
31.
He gave evidence in relation to Exhibit M.
He received pages 4-27 of this exhibit from Cnst Kapa, the
Investigating Officer and
proceeded to compile the rest of the pages
himself with the help of Blue Earth application or software. Blue
Earth only requires
coordinates and it will show the map which can be
printed out. Page 4 has coordinates, addresses and towers’
names from Vodacom.
32.
Pages 4-8 are the records that he was
informed pertain to accused no 1’s cell phone which was a
Vodacom number. He made compilations
dating from 10h30 on 3
rd
October 2016 until midnight on the same day. From the records
supplied, this would be until 20h42 since there are no records of
accused no. 1 using the phone that day afterwards. He marked the
times with arrows. The names of the towers used are 28 and he
marked
them A to BB on page 4. These allocated alphabets are also referred
to in the actual calls made as he marked on the right
side on pages 5
to 8. Pages 39 to 44 is the key to the map: Map 1 to 8 (pages 45 to
52).
33.
Page 9
is the start of the second cell
phone which he was told belonged to accused no. 2 which was an MTN
number. The coordinates start
from p. 11 to 25. The data usage of the
second cell phone is reflected on pages 26-27. Pages. 11-25 are the
records of cell phone
towers and to these, he allocated numerical
names: No. 1 to 15. The numbers he allocated to the towers are also
reflected on pages
26 and 27 on the right.
34.
The map on page 45 has 5 points being map A
to E which are Vodacom towers. Page 44 contains a key to map on
page 45, on page
43 is a key for map on page 46. Red colour is for
Vodacom number while yellow is for MTN. The keys on page 42 are for
maps on pages
47, 48 and 49. Tower V is on pages 47 and 48 for easy
reference. X and Y are towers reflected on map 4 and 5 for easy
reference.
The same goes for Z which is on both map 5 and 6. On page
51 he zoomed into the same towers that are on page 50. On page 52 he
reflected all the towers from A to BB. When the map is made smaller
(zoomed out) like in page 52, the points make a cluster as on
top
left. These figures reflect that the cell phone was within the
tower’s radius which is 30 km.
35.
Towers overlap to allow continuous cell
phone signal. From page 53 it is MTN towers, the key of which is on
page 38. Tower 16 is
a Vodacom tower being rented out to MTN. Its
usage is on page 27. The coordinates on BB are the same as tower 16.
Pages 59-65 are
all the towers of Vodacom and MTN. Although these
phones were activated around the same time in the same area, he could
not estimate
the distance between them, which required him to
calculate using his laptop. An hour gap in the data transmission does
not reflect
a gap of an hour between them. It merely reflects that
calls or messages came in only at that time. The conclusion he
reached was
that the cell phones in this case moved from Gauteng to
Mpumalanga between the times he was asked being 10h30 to the end of
their
usage that day. He was also of the opinion that given the times
they used the various towers between them, these cell phones moved
from Gauteng to Mpumalanga together.
36.
Admissions:
The
two accused made admissions which were noted in terms of section 220
of the Criminal Procedure Act – see Exhibits N. O
and P. In
terms of these exhibits, the two accused admit the identity of the
deceased in this case; that the body of the deceased
sustained no
further injuries from the time it was found until the time the post
mortem was conducted. The cause of death as recorded
in the post
mortem report (multiple gunshot wounds) was also admitted. The
accused also admit that fingerprints were uplifted from
the motor
vehicle being a Hyundai i20 with registration no, FB 92 MX GP and
samples thereof were taken for forensic analysis and
compared with
their finger prints taken by the police; and were found to match. The
two accused admit therefore being linked to
this motor vehicle by way
of finger prints.
37.
Further admissions were made in respect of
the records furnished by Vodacom and MTN in respect of data, calls
made and received
and texts made or received in respect of cell phone
numbers, [...]24 (Vodacom) and [...]22 (MTN) as contained on pages
4-27 of
Exhibit M. The two accused admit the correctness of the
contents of these records as furnished by Vodacom and MTN.
38.
Trial within a Trial:
A
trial within a trial was conducted in order to determine the
admissibility of a statement – an apparent confession by
accused
no. 1. A number of witnesses testified for the State and for
the defence.
The court ruled against the
admissibility of the said statement
made to Cpt Phungwayo after he noted in a preamble to the said
statement that accused no. 1 opted to have a legal representative,
yet he proceeded to interview him without affording him the
opportunity to consult the said legal reprtesentative. Accused no.
1
also admitted to have made a statement but indicated that had he
known that what he was saying was being written down, he would
not
have made it since he had indicated that he wanted to meet a legal
representative first. For these reasons, I do not see it
necessary to
proceed and deal with the evidence led in a trial within a trial any
further than I did here.
39.
Admissibility of bail record
.
The State brought an application for the bail record of the bail
application made by accused no. 1 to be admitted as evidence
in this
trial. This application was opposed by the defence for accused no. 1
for reason that the court that heard bail did not
warn the accused
that bail proceedings could be used against him in a later trial. The
State conceded that from the record, it
appears that accused no. 1
was not warned in terms of section 60 (11B) (c) of the Criminal
Procedure Act that anything he says
in a bail application can be used
and shall be admissible in a later trial against him.
40.
Section 60 (11B) (c) of the Criminal
Procedure Act provides,
“
The record of the bail
proceedings, excluding the information in paragraph (a), shall form
part of the record of the trial of the
accused following upon such
bail proceedings:
Provided
that if the accused elects to testify during the course of the bail
proceedings
the court must inform
him or her of the fact that anything he or she says, may be used
against him or her at his or her trial and such evidence becomes
admissible in any subsequent proceedings.” [
My
emphasis
].
In
light of the failure to comply with the statutory provision during
bail hearing, the application to admit the bail application
record as
evidence in this trial was dismissed.
Failure to warn the accused as
provided in section 60 (11B) (c) of the Criminal Procedure Act is
fatal to this application. If bail
record is to be admitted as
evidence in a later trial, warning the accused of these provisions is
not discretionary but a mandatory
prerequisite - see
S
v Agliotti
2012
(1) SACR 559
(GSJ)
,
S v Madlala
2015
(2) SACR 247
(GJ)
and
S v Miya and
Others
2017 (2)
SACR 461
(GJ).
41.
With this evidence, case for the
State
was closed
.
42.
Inspection in loco
:
The legal representative for accused no. 1 asked for an
inspection
in loco
in respect of road from the
deceased’s home to the scene where the motor vehicle was found
having overturned, the second
scene where accused no. 1 was arrested.
This according to the defence for accused no. 1, was in anticipation
of an argument the
State may present to the effect that the only
inference that could be drawn is that the motor vehicle that was
found to have overturned
must have the same motor vehicle that drove
from Daggakraal. The defence wanted the court to observe that there
are other roads
that feed into this road making a possibility for
this motor vehicle to emanate from other directions other than
Daggakraal unavoidable.
This request was supported by counsel for
accused no. 2 and not opposed by the counsel for the State. The
request for
inspection in loco
was granted and conducted on 22 January 2019.
43.
Findings from the inspection in loco:
The distance from the deceased’s
house to where Mr. Mnisi indicated he spotted the white Hyundai i20
with GP registration
number plate is 1,8 km. 11,8 km from the
deceased’s home, the road makes a - junction, the right of
which goes to Volksrust
and the left goes to Driesfontein. We took a
turn to the left. 13.4 km from the deceased’s home, the road
makes another T-junction,
the left of which goes to Amersfoot and the
right goes to Wakkerstroom. We took the right direction. At 19.6 km,
23.5 km and 24
km, there are roads that join the road to
Wakkerstroom, the road from Volksrust to the right, to Derde Hoek to
the left and again,
Volksrust to the right respectively. The scene of
crash is 25.6 km from the deceased’s house. At the time of the
inspection,
the road used was quiet. The only time we encountered
other motorists was after we had travelled 24 km, and these were
three motor
vehicles. A fourth one drove past while we were
inspecting parts of the wreckage left at crash site.
44.
Accused no. 1 and accused no. 2 closed
their case
without testifying and they
called no witnesses.
45.
Closing arguments:
Counsel
for the State submitted that the accused should be found guilty as
charged in respect of all the charges although he was
non-committal
in respect of count no. 3. He conceded that he should have indicated
in the indictment that the State relies on the
doctrine of common
purpose but that for reasons he could not explain, he did not do so.
Counsel for the defence argued that there
was no case for their
clients to answer and as such, no negative inference should be drawn
on the basis that they closed their
case without testifying. It was
submitted that the accused should be given the benefits of doubt and
be acquitted.
46.
Application for the amendment of the
charge.
Following the engagement and
the concession by the State to the effect that there should have been
an indication that the State
would rely on the doctrine of common
purpose, there was an application brought by the State to have the
charge amended so as to
include this. The application was brought on
the date of judgment moments before it could be delivered. Needless
to say that the
application was vehemently opposed by the defence for
the two accused.
47.
An amendment to the
charge can be effected at any time before judgment. However, the
probability that the accused person will be
prejudiced is, of course,
greater as the trial proceeds to its end because the defence would
not have borne the amendment in mind.
In
casu
, the accused
chose to close their defence without leading evidence on the charges
they faced without any amendment. It cannot be
said that they would
have conducted their defence the same way had the State indicated its
reliance on the doctrine of common purpose.
In cases where the
accused face serious charges involving mandatory prescribed prison
sentences, the central and decisive particulars
have far-reaching and
important consequences. Accordingly the court will be slow to allow
an amendment at a late stage clearly
because such an amendment can
prejudice the accused person – see
S
v Samuels
2016 (2)
SACR 298
(WCC) para 10, and
S
v Mpambanso
2013
(2) SACR 186
(ECB)
.
The application was as such refused.
48.
It is trite that for a conviction to stand,
the State must prove its case beyond a reasonable doubt. There is no
duty on the accused
to prove his innocence. In order to answer if a
case for the State was proved beyond a reasonable doubt the court
must be satisfied
upon a consideration of all the evidence –
see
S v Van der Meyden
1999
(1) SACR 447
(W). It follows that it is wrong simply to ask oneself
whether the State witness is to be believed and then to find
accordingly.
Evidence ought not to be looked at piecemeal and in
isolation. All of it should be analysed and weighed together in
determining
whether the State has proved its case beyond a reasonable
doubt – see
S v Radebe
1991
(2) SACR 166
(T).
49.
Facts Not Disputed:
a.
The
deceased was shot dead at his home in Daggakraal by two men on 03
October 2016 between 17h00 and 18h00.
b.
The
two hit men ran out of a yard and were whisked away by a white motor
vehicle that sped off towards the direction of Wakkerstroom.
c.
The
deceased’s neighbour, Mr. Sithole saw the men being taken by
the car and called Mr. Mnisi on the other side to observe
the motor
vehicle’s registration numbers.
d.
Mr.
Mnisi observed that the motor vehicle that drove past him was a white
Hyundai i20 with GP registration number plates.
e.
Some
25.6 km from the deceased’s house, a white Hyundai i20 with
registration number FB 92 HX GP (Hyundai motor vehicle) was
found by
the police at about 18h20 having overturned.
f.
The
Hyundai motor vehicle was hired from Avis Car Rental in Sandton that
same day by accused no. 1’s lover, Ms. Magudulela.
g.
Accused
no. 1 and accused no. 2 went with Ms. Magudulela to Avis Car Rental
when she went to hire out the Hyundai motor vehicle.
h.
After
hiring out the Hyundai motor vehicle, Ms. Magudulela gave the car to
accused no. 1 who drove off together with accused no.
2.
i.
Accused
no. 1 works for a taxi association in Johannesburg whereas accused
no. 2 is a taxi owner in the same taxi association.
j.
The
deceased was a taxi owner and a chairperson of a taxi association in
Mpumalanga.
k.
Finger
prints of accused no. 1 and accused no. 2 were found and uplifted
from the Hyundai motor vehicle after it had overturned.
l.
Accused
no. 1 did not return home that day. Only accused no. 2 came back to
Ms. Magudulela on the following day in order to collect
his motor
vehicle that he had parked at her place a day before.
m.
Accused
no. 2 informed Ms. Magudulela that accused no. 1 was involved in an
accident.
n.
Cell
phone records of accused no. 1 and accused no. 2 supplied by Vodacom
and MTN, reflect that the two cell phones used the reception
towers
in the same vicinity around the same times between Sandton in Gauteng
and Wakkerstroom in Mpumalanga between 10h30 and 20h42
on 03 October
2016.
o.
The
police found and booked in an exhibit, being an invoice in the
letterhead of Faraday Taxi Association, Johannesburg; which reflects
a payment of R15 000 having been made to BJ Dlamini (accused no.
2) – Exhibit K.
p.
Exhibit
K contained car registration number, colour and make of a motor
vehicle of the deceased written at the back thereof.
50.
Facts in Dispute:
a.
Did
the accused kill the deceased? There is dispute as to whether the
accused were part of the three occupants of the Hyundai motor
vehicle
(including the driver) that whisked the two hit men away.
b.
Is
the motor vehicle that the police found having overturned the same
motor vehicle that whisked the two hit men?
c.
What
was the purpose of the two accused in visiting Mpumalanga?
d.
Where
did the police find the Faraday Taxi Association invoice –
Exhibit K?
51.
The impact of closing the case without
giving evidence.
The South African
Constitution guarantees every arrested person a right to remain
silent and to be presumed innocent. This right
entails that no
accused person is expected to prove his/her innocence, but the State
should prove his/her guilt. The right to remain
silent has
application at different stages of a
criminal prosecution. An arrested
person is entitled to remain silent and may not be compelled to make
any incriminating statement
that could be used in evidence against
that person. It arises again at the trial stage when an accused has
the right to be presumed
innocent, to remain silent and not to
testify during the proceedings.
52.
The fact that an accused person is under no
obligation to testify does not mean that
there are no consequences attaching
to a decision to remain silent during the trial. If there is evidence
calling for an answer
and an accused person chooses to remain silent
in the face of such evidence, a court may well be entitled to
conclude that the
evidence is sufficient in the absence of an
explanation to prove the guilt of the accused. Whether such a
conclusion is justified
will depend on the weight of the evidence.
53.
Similarly, if in the course of the trial
there is evidence
that a document was written by the
accused, who in turn fails to challenge that evidence, or raise
forgery as an issue, a court
may be entitled to hold that in the
absence of testimony from the accused the evidence is sufficient to
prove that the accused
was the author of the document. Whilst the
evidence to the contrary need not be the evidence of the accused,
there can be no quarrel
with the principle that the absence of
contrary evidence is relevant to the evaluation of evidence relied
upon by the State for
a conviction in a criminal trial. Once a
prima
facie case
is made demanding answers
from the accused, disputes by mere cross examination cannot suffice;
unless it is repeated as evidence
under oath and tested through cross
examination. – see
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC) at p 914 para A-D.
54.
This does not necessarily mean that once
the accused closes the case without leading evidence then the case
for State is automatically
proved beyond a reasonable doubt. The
State case still has to be evaluated if it proves the guilt of the
accused beyond a reasonable
doubt. The unfortunate position of the
accused is that once there is dispute between the defence’
version and that of the
State, since the defence’ version would
be exhibited only via cross examination and not evidence, the court
has no other
evidence to consider but that which has been tendered
under oath. The accused in that case can only pin his/her hopes on
that the
State would just score own goals in either failing to prove
the case against the accused, or through self-contradictions.
55.
Circumstantial evidence:
There is no evidence that directly implicates any
of the two accused. Eye witnesses cannot point out or identify any of
them. All
that is laid before the court is circumstantial evidence.
The ‘cardinal rules’ when it comes to inference to be
drawn
from circumstantial evidence, are trite, and were laid down in
R v Blom
1939
AD (1) 188 at page 202-203, namely:
(i) the inference sought to be drawn must be consistent
with all the proved facts. If it is not, then the inference
cannot
be drawn;
(ii) the proved facts should be such that they exclude
every reasonable inference from them save the one sought to be
drawn.
If they do not exclude other reasonable inferences, then
there must be a doubt whether the inference sought to be drawn is
correct.
56.
Just as it is the case in most instances,
satisfying the first rule is usually easy. It is a fact that the
deceased was killed and
that the two accused are placed
geographically not far from the scene of murder. The inference sought
to be drawn that the accused
killed him would be consistent with the
proven facts for these reasons. To be consistent does not mean they
did what is alleged,
but merely reflect that facts proved do not
exclude this possibility. Using the same principles in
Blom
,
supra
, the
court now has to answer if the inference to the effect that the two
accused murdered the deceased excludes other reasonable
inferences
that can be drawn. In evaluating evidence the court attempts to
answer this very question on whether evidence proved
exclude any
other reasonable inference, than the one sought by the State to wit,
the two accused killed the deceased.
57.
The Faraday invoice – Exhibit K
.
Although accused no. 1 disputed the evidence by Cnst Ndlovu to the
effect that he was the source of this document, I do not have
evidence before me that gives an alternative source than that of Cnst
Ndlovu. As highlighted above, when the disputed piece of
evidence is
the only evidence available, it stands to be admitted as such.
58.
Argument by the defence for accused no. 1
to the effect that such a document cannot be admissible as evidence
is rather a strange
one. Evidence tendered is not about documentary
evidence. It is evidence on what the witness observed or found. I do
not see any
difference between this kind of evidence and evidence in
which a person testifies about any other item such as a cell phone, a
book or a bank card that is found when a suspect is searched. It is
unheard of that the court can rule any such cell phone, a book
or a
bank card so found to be inadmissible as evidence. The only question
to ponder on is about whether there was such an event
as a matter of
fact. The argument would be well placed if it is to the effect that
the court should reject it is maybe because
the witness is not
credible. The least said on this argument the better.
59.
Beside the reason that the only evidence
giving the source of this document is tendered by the State, there
are more reasons why
the court should accept the version by Cnst
Ndlovu that he found the paper in the clothes of accused no. 1 after
he had asked him
to hang his wet clothes outside. Cnst Ndlovu proved
to be a reliable witness whose credibility remained intact throughout
his cross
examination. He proved to be a witness who does not
hesitate to tell a fact as it is irrespective of the damage it does
to the
case for the State. It is partially because of the honesty of
Cnst Ndlovu that the court ruled to exclude the evidence on
confession
allegedly made by accused no. 1 in that according to him,
accused no. 1 had a swollen cheek.
60.
The evidence by accused no. 1 in a trial
within a trial to the effect that he was sprayed with water finds
some corroboration from
Cnst Ndlovu who testified on the clothes
being wet and accused no. 1 being clad in just a blanket. When a
witness is willing to
give evidence favourable to his opponent when
it is deserved, the court will find it difficult to reject his
version when he gives
evidence that could be detrimental to the same
person. This becomes compelling when accused no. 1 chose not to
testify to deny
that he was the source. The court accepts that
Exhibit K was found in a pocket of accused no. 1 by Cnst Ndlovu.
61.
The contents of the Faraday invoice are
very damning. It is no wonder the defence was very adamant in
opposing its acceptance as
evidence. About 30 minutes after the
murder of the deceased at his home, accused no. 1 is found some 25 km
from the deceased’s
house. In his possession is an invoice
apparently issued to accused no. 2 by the Faraday Taxi Association.
It appears on the face
of the document that accused no. 2 was paid
R15 000 and signed to confirm receipt. The details of accused
no. 2 are not disputed.
The signature in this document also resembles
his signature where he had to sign the documents containing
admissions made in this
trial. This in essence makes a strong case
that this document could not have been just a piece of paper that
accused no. 1 picked
by the side of the road, but a document that was
issued to accused no. 2 by the Faraday Taxi Association.
Circumstances under which
it moved from accused no. 2 to accused no.
1 are unknown to the court.
62.
Even more damning is the fact that the
Faraday invoice contained the details of a motor vehicle driven or
owned by the deceased
in this case – a maroon Chevrolet Cruze
with registration number, HVL 884 MP. None of the accused gives
information on why
the details of the deceased or his car were in
this paper. It does not always follow that if one has the details of
another then
he meant to harm that person. One may have had the
details in order to approach the said person in order to apply for a
job, especially
when the person holds an authoritative position like
a chairperson of a taxi association. But if there is any positive and
godly
reason, it should be communicated. None of the accused came
clean to communicate such reasons. This cannot be surprising since
some 30 minutes before accused no. 1’s arrest, the owner of a
motor vehicle with the details of which accused no. 1 was carrying
in
his pocket, was shot dead. The question is whether this could be a
coincidence or not. I pause to explore the possibility of
existence
of other inferences that can be drawn from these facts and whether
these are reasonable.
63.
The defence for accused no. 1 raised an
argument to the effect that given a number of other roads that feed
into the road towards
Wakkerstroom, it cannot be inferred as the only
possibility that the motor vehicle that drove from Daggakraal must
have been the
one that overturned, some 25 km away. This argument
suggests that the Hyundai motor vehicle may have been coming from
other directions
such as Volksrust as opposed to coming from
Daggakraal. It is for this reason that the court was called to
conduct an
inspection in loco
.
64.
I am of the view that even without an
inspection in loco
,
this argument could have been validly raised by the defence. This is
because although Mr Sithole did not mention the two T-junctions
and
three other roads that feeds into this road before reaching
Wakkerstroom or the point where the car overturned, he had made
it
clear that there were small roads that feed into this road coming
from the farms alongside the road. It can as such be equally
argued
that the car that overturned could have emanated from one of these
farms and not Daggakraal.
65.
This argument however ignores the fact that
there is evidence under oath by Mr. Thabethe to the effect that when
he confronted accused
no 1 as to where he was coming from, accused
no. 1 informed him that he was from Daggakraal, where he was visiting
his girlfriend.
I do not have evidence by accused no. 1 to the effect
that he did not make such an allegation. The only evidence I have in
respect
of this aspect is that he said so. The court simply has to
accept this assertion since it is the only evidence before it.
Without
any further analysis of all other inferences regarding where
the Hyundai motor vehicle emanated from, the statement by accused no.
1 to Mr. Thabethe excludes all of these.
66.
Perhaps the court has to now analyse as to
whether there is a possibility that accused no. 1 would allege that
he came from Daggakraal
while he was from elsewhere, in line with
what I said above, so as to establish if there is “:own goals”
by the State
in this regard. I find this possibility to be unlikely.
There is evidence already on record to the effect that the motor
vehicle
that drove past Mr. Mnisi was a white Hyundai i20 with GP
registration number plate. Thirty minutes later, a white Hyundai i20
with GP registration number plate had overturned some 25 km away
along the same road that one would use when driving from Daggakraal
to Wakkerstroom. I say this mindful of the fact that the road from
Daggakrall had ended into a T junction and one had to join another
road by turning left. It is clear that these are the obvious turns
one would have to take when going to Wakkerstroom or to Johannesburg
for that matter.
67.
I am also mindful of the fact that accused
no. 1 would have been slow to incriminate himself by placing himself
at the murder scene
- Daggakraal. But this is not a man from the
local area. Besides Daggakraal which is the only area he came for,
where else would
he have told Mr. Thabethe that he was coming from?
It appears in my view that he had to say he was from Daggakraal not
only because
it was the truth, but also because he did not anywhere
else. This should explain why he was quick to distance himself from
the
crime scene by adding that he was visiting a girlfriend.
68.
The collusion between the two accused
:
The two accused did not coincidentally find themselves in Mpumalanga,
using the same or network towers not far from each other
around the
same time on the 3
rd
of October 2016. According to Ms. Magudulela, they are friends. They
also work for the same taxi association in Johannesburg where
accused
no. 2 is a taxi owner while accused no. 1 is said to be an employee.
The two accused’s conduct on the date of murder
appears to have
been a cooperation right from the start on whatever arrangement they
were attending to in Sandton.
69.
When Ms. Magudulela was tasked with the
role to hire out a car from Avis Car Rental in Sandton that day, both
accused no. 1 and
accused no. 2 were there tailing her. What happened
thereafter makes it obvious that the purpose for hiring this motor
vehicle
was not to go to KZN although this may have been the reason
Ms. Magudulela had. Accused no. 1 and accused no. 2 had other reasons
for which they immediately used the motor vehicle for. In extending
this cooperation, accused no. 2 left his motor vehicle at Ms.
Magudulela’s house and took a ride in the hired motor vehicle,
heading to Mpumalanga. What happened next is exhibited by
the cell
phone networks companies:
70.
The two accused (or at least their cell
phones) travelled to Mpumalanga to as far as Wakkerstroom together.
At some point, either
on this day or before, the Faraday invoice
belonging to accused no. 2 found itself in the hands of accused no.
1. Thirty minutes
after this motor vehicle had left Daggakraal, it
overturns while driving towards Wakkerstroom / Johannesburg (which is
the same
route). Around the same time that this motor vehicle was in
Daggakraal, the owner of a motor vehicle whose details were penned
down in the Faraday invoice – the deceased, who also happened
to be a taxi owner too, was being gunned down.
71.
While both the accused did not return back
to Ms. Magudulela that day, accused no. 2 did return the following
day to give a report
that accused no. 1 was involved in an accident.
The finger prints of both the accused were found inside the Hyundai
motor vehicle
after it had overturned. Accused no. 1’s DNA were
also found in the blood samples taken from the said motor vehicle.
72.
Credibility of State witnesses:
I have already alluded to the fact that the
credibility of State witnesses has to be weighed against the evidence
tendered by other
witness to see if there are no “own goals”
in the form of contradictions or being unreliable. There is nothing
upon
which an argument can stand to the effect that any of the State
witnesses may have been unreliable or not being a credible witness.
The court takes notes of the differences between the evidence of Mr.
Sithole against his own statement made to the police and against
that
of Mnisi.
73.
The fact that there are discrepancies is
not indicative of lies or that such evidence should be thrown away.
The totality of evidence
and circumstances under which such
statements are made should be taken into account. See
S
v Mkohle
1990 (1) SACR 95
(A) where it
was held that contradictions
per se
do not lead to the rejection of a witness' evidence; they may simply
be indicative of an error. Not every error made by a witness
affects
his/her credibility; in each case the trier of fact has to make an
evaluation, taking into account such matters as the
nature of the
contradictions, their number and importance, and their bearing on
other parts of the witness' evidence. As Williamson
J pointed out in
S v Oosthuizen
1982
(3) SA 571
(T), contradiction also reflects independence of witnesses
and lack of conspiracy against the accused. For this reason, I do not
deem it necessary to evaluate every loophole, contradiction or
discrepancy, no matter how trivial in this judgment.
74.
Mr. Sithole, a senior citizen aged 66, gave
evidence in 2018 on events that took place in 2016. Given the lapse
of time, one would
understand minor discrepancies in his evidence. It
could also be that what appears to be discrepancies could be a mere
misunderstanding
between him and counsel cross examining him. He
testified that he called Mr. Mnisi on his phone and did not find him,
yet in his
statement to the police; he wrote that he called Mr. Mnisi
and told him to go and observe the number plates of a motor vehicle
that would drive by his place.
75.
Mr. Mnisi on the other hand gave evidence
that supports Mr. Sithole’s statement to the effect that a call
came through instructing
the receiver (whom Mr. Sithole thought was
his father, Mr. Mnisi the senior) to go to the road and observe the
motor vehicle driving
by. Interestingly the defence for accused no. 2
is also critical of Mr. Sithole for not indicating when he gave
evidence that as
Mr. Mnisi later told him it was him (the son) who
received the call; he should have told the court that he called Mr.
Mnisi but
found the son.
76.
What if the evidence given by Mr. Sithole
was his way of doing exactly what counsel for accused no. 2 says he
should have done?
Mr. Sithole whose statement to the police makes it
clear that he called and instructed Mr. Mnisi to go and observe the
car on the
road, may have noticed by the time he came to give
evidence that when he called Mr. Mnisi, he could not find him since
the son
told him (about a month later – according to the son)
that he is the one who answered the phone, not his father. I do not
find any malice if a person alleges that he called another and could
not find him if all that he means is that the phone was answered
by
his son.
77.
Equally, the criticism of Mr. Sithole over
his evidence on the route taken by the getaway motor vehicle
regarding the U turn, the
turn or driving straight is unfair. The
reason for this is that counsel for accused no. 2 bases its criticism
on the
inspection in loco
conducted by the court in which he argues that the route observed
does not match the picture painted by this witness. When the
court
granted a request for an
inspection in
loco
it was for the reasons placed on
record by Mr. Venter to wit, to observe that there are other roads
that feed into this road. Had
a request been made for
inspection
in loco
for reasons that counsel now
criticises Mr. Sithole’s description of the road, the court
would have needed the presence of
the witness involved to point to
the court the locations testified on. Since this was not the purpose
of the
inspection in loco
,
the court did not even observe the aspects that counsel for accused
no. 2 is basing its criticism on. What was observed was placed
on
record and both legal representatives were allowed an opportunity to
add if anything was left out; and nothing was placed on
record which
could form the basis of this criticism.
78.
The court has also noted the criticism of
Mr. Mnisi by counsel for accused no. 2 to the effect that if he was
on the road and had
observed this Hyundai motor vehicle, he would
have observed a motor vehicle driven by Mr. Thabethe. While I have
noted the discrepancy
in this regard, I have also noted that counsel
for accused no. 2 failed to confront Mr. Mnisi with this state of
affairs so he
could respond. Was he going to confirm that he did see
Mr. Thabethe’s car and that maybe he forgot, or he was not
referring
to local motorists, or that by the time Mr. Thabethe drove
by, he was not there? We do not know because he was not confronted
about
this. In giving the defence the benefit of a doubt, this
discrepancy is not of material nature. Perhaps this could also
explain
why the defence did not even confront Mr. Mnisi over it.
79.
I am however satisfied that when the
police drove in pursuit of the getaway motor vehicle, it was after a
message was received over
the radio saying the assailants fled in a
white Hyundai i20 with GP registration number plates. When Mr.
Thabethe went on to search
for this car, he was looking for a white
Hyundai i20. This is clear in that on his way back to the deceased’s
chome, the
police asked him if he did not see a white Hyundai i20 and
he told them he was also on a lookout for it.
80.
Clearly, someone must have conveyed the
word which finally reached the police, Mr. Thabethe and everyone in
the know, that the getaway
car was a white Hyundai i20 with GP number
plates. This communication and the search took place before accused
no. 1 and his overturned
motor vehicle could be found. If Mr. Mnisi
is lying about having seen this car, the question would be who then
gave these details
to Mr. Thabethe and to the police who spread the
word over the police radio. The only evidence I have points to Mr.
Mnisi, and
I will accept it.
81.
The explanation given by Mr. Mnisi on why
he did not want to involve his lover in this matter is a reasonable
one. It may not be
what counsel for accused no. 2 may have preferred.
But Mr. Mnisi did not want the parents of his lover to know that she
was visiting
him through this case, for they were unaware of her
visits to him. To suggest that Mr. Mnisi’s father should have
been called
to give evidence is to take it too far because I do not
see anything of relevance that he could help the court with on the
guilt
or innocence of the accused.
82.
Lastly, the argument by counsel for accused
no. 2 to the effect that Mr. Sithole testified that he saw young boys
running out of
the deceased’s house deserves no comment since
it is not elicited out of the facts of this case and is misplaced in
my view.
What the record reflects is “men” not “boys”.
The court adopts the same approach to argument by the defence
for
accused no. 1 to the effect that evidence on the ownership of the
motor vehicle the registration number of which was found
in accused
no. 1’s pocket is hearsay in that Cnst Ndlovu asked someone to
check for him, is not elicited from the facts of
the case. The facts
are to the effect that Cnst Ndlovu went to a computer where he
confirmed the car ownership before coming back
to confront accused
no. 1 again.
83.
Findings:
Applying
the principles above to the facts of this case, I make the following
findings: The Hyundai motor vehicle was hired out
of Avis Car Rental
in Sandton by Ms. Magudulela, accused no. 1’s fiancé and
handed over to the two accused who had
a mission to accomplish in
Mpumalanga. The motor vehicle went as far as Daggakraal in
Mpumalanga. The details of a car (a maroon
Chevrolet Cruze) belonging
to another taxi owner in Daggakraal were penned down in accused no.
2’s invoice. This invoice
ended up in the hands of accused no.
1.
84.
Two men entered the house of the deceased
and asked the owner of this maroon Chevrolet Cruze (the deceased) if
it was Mr. Nkosi’s
house; and when he would not give a direct
response, he was shot and died instantly. The two men fled the scene
and where whisked
away in a white Hyundai i20 with GP registration
number plate. About 30 minutes later and some 25 km away, a white
Hyundai i20
was found having overturned. Only accused no. 1 was at
the crash scene and with him was the Faraday invoice that was only
retrieved
from his clothes the following morning.
85.
With all this evidence, the two accused
gave no evidence. I do not have their version to explain their
presence in Mpumalanga, why
they moved together from Sandton, why the
details of the deceased’s motor vehicle were in accused no. 2’s
invoice and
why the said invoice was with accused no. 1 or at least
evidence in denial of this.
86.
Each piece of evidence on its own might not
be enough to establish the guilt of the accused but the cumulative
effect of all the
pieces concludes the puzzle. This leads to only one
reasonable inference to wit, the two accused planned and executed the
murder
of the deceased. In the words of Watermeyer CJ in
R
v De Villiers
1944 (A) 493 on pp. 508 –
509, (quoted with approval by Desai J in
S
v Van Breda
(SS17/16)
[2018] ZAWCHC 87
(7 June 2018) para 759),
“
Not to speak of greater
numbers; even two articles of circumstantial evidence - though each
taken by itself weighs but as a feather
- join them together, you
will find them pressing on the delinquent with the weight of a
milestone … It is of the utmost
importance to bear in mind
that, where a number of independent circumstances point to the same
conclusion the probability of the
justness of that conclusion is not
the sum of the simple probabilities of those circumstances, but is
the compound result of them.”
87.
Just as the court took to task
counsel for the State, failure on the part of the State to allege in
the indictment or throughout
the trial that the accused acted in
furtherance of common purpose has fatal effect to the charge of
murder. Three people were involved
in this murder one of whom as a
driver of a getaway car. The driver of a getaway car can only be
guilty of the crime of murder
with the application of the doctrine of
common purpose – see
S v Thebus
and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) and
S v Mzwempi
2011 (2) SACR 237
(ECM).
From the evidence
before me, I cannot tell if any of the two accused may have been the
driver of the getaway car and if so, which
one. I do not have
information on the roles played by each of the two accused.
88.
The court does not know how the accused
would have conducted their defence had it been alleged in the
indictment or had the indictment
been amended before the case for the
State could be closed, to include its reliance on common purpose. A
possibility that the accused
could have chosen to give evidence under
oath cannot be excluded. Failure to aver the common purpose in the
indictment or further
particulars means the State cannot rely on
common purpose at the end of the trial – see
S
v Ndaba
2003 (1) SACR 364
(W) at para
102.
89.
It is on this technicality that the two
accused stand to be acquitted on a charge of murder. Had the State
alleged its reliance
on the doctrine of common purpose, the court
would not hesitate to convict. This failure has therefore denied full
justice to the
deceased and the people of Daggakraal and the citizens
of South Africa as a whole who are tired of crime. Equally, not an
iota
of evidence was led in support of a charge of reckless and
negligent driving against any of the accused. They stand to be
acquitted
on this charge too.
90.
The court is however satisfied that in
planning the murder of the deceased and taking all the steps
reflected above, obtaining a
hired car from Avis Car Rental in
Sandton, acquiring the details of the car driven by the deceased and
exchanging this between
themselves, embarking on a journey to
Daggakraal together and getting the deceased killed either by
themselves or through other
parties, the accused completed all the
elements of the crime of conspiracy to commit murder in contravening
section 18 (2) (a)
of the Riotous Assemblies Act, no 17 of 1956.
91.
The court finds therefore that the case for
the State was proved beyond a reasonable doubt in respect of count
no. 1.
92.
Verdict:
Count
1: Guilty as charged – all the accused.
Count 2: Not Guilty – all the accused
Count 3: Not Guilty – all the accused.
_____________________
T.V. RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Dates
Heard: 12-15, 21-22 February; 25-26 September; 01-05 October 2018;
21-24 January 2019.
Judgment
Delivered: 25 January 2019
For
the State: Adv. Poodhun
Instructed
by: Director of Public Prosecutions
Mpumalanga
For
Accused no. 1: Mr. Venter
For
Accused no. 2: Adv. Jacobs