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[2010] ZAGPJHC 178
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S v Mlombo (CC 25/2010) [2010] ZAGPJHC 178 (8 November 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
(
CIRCUIT
LOCAL DIVISION FOR THE EASTERN LOCAL DISTRICT
)
Case
No. CC 25/2010
Date:08/11/2010
In
the matter of:
THE
STATE
versus
JIKA
ELVIS MLOMBO
JUDGMENT
MEYER,
J
[1] The accused, Mr Jika
Elvis Mlombo, has been arraigned for trial on an indictment
containing charges of the murder of the late
Mr Timothy Daklaas
Mashego (‘the deceased’) (count 1), of the robbery of the
deceased of a 9mm parabellum calibre CZ
model 75 compact
semi-automatic pistol with serial number A4754 (count 2), of the
attempted murder of Mr Makhobeni Mkhesi Dlamini
(count 3), of the
unlawful possession of the deceased’s pistol and also a 9 mm
parabellum calibre vector model Z88 semi-automatic
pistol with serial
number obliterated (count 4), and the unlawful possession of eight
9mm parabellum and three 9mm bullets (count
5). All the
offences are alleged to have been committed on 3 September 2009 at or
near Kabokweni in the district of Kabokweni.
[2]
Adv Mnisi appears for the state and adv Mtshweni for the accused.
The accused pleaded not guilty to all the charges.
He was not
ask to make a statement indicating the basis of his defence nor was
one offered on his behalf.
[3]
During the course of this trial the state wished to introduce in
evidence certain pointings out and a warning statement that
had
allegedly been made by the accused. A trial-within-this-trial
was held to determine the admissibility of the disputed
pointings out
and statement. When I gave the rulings on their admissibility
at the conclusion of the trial-within-this-trial,
I indicated that
the reasons for the rulings would be given when judgment in the main
trial is given. The reasons had been
prepared before the
rulings were made. Such reasons are first given in the
paragraphs that follow, whereafter I return to
the main trial.
[4]
The trial-within-this-trial was held to determine the admissibility
of: (a) a pointing out that had
allegedly
been made by the accused on 3 September 2009 to
inter alia
Capt BP Mdaka and to Cst JT Baloyi, which resulted in the alleged
finding of two firearms, ammunition, a blue overall top, and
a brown
bag; (b) pointings out that had been made by
the accused to Capt (presently Col) C Mabasa on 4
September 2009,
from 09:45 am, of and at the scene where the incident had taken
place; and (c) a
warning statement that
had been made by the accused to Supt TM Pule at Kabokweni SAPS on 5
September 2009, at about 12:30 pm.
I should mention that the
determination of the admissibility of the warning statement was added
to the trial-within-this-trial
during the course of the state case
with the consent of all the parties concerned and the accused was
invited to have any state
witness who had testified prior thereto,
recalled.
[5]
The state and defence counsel were
ad idem
that the disputed
pointing out relating to the firearms and other items amounts to
admissions and that the disputed warning statement
to a confession.
I accordingly accepted such labelling. I was informed by the
state counsel that the disputed pointings
out of and at the scene of
the incident amount to admissions and the defence counsel submitted
that they do not amount to admissions
nor to a confession. I
accepted for the purpose of this trial-within-the-trial that they
amount to admissions.
[6]
The state must accordingly discharge the
onus
of proving
beyond reasonable doubt the requirements stipulated in
s 219A
of the
Criminal Procedure Act 51 of 1977
for the admission in evidence
of all the disputed pointings out and also that they had not been
obtained in an unconstitutional
manner. The disputed statement
may not be admitted, unless it is proved beyond reasonable doubt to
have been made by the
accused freely and voluntarily, while he was in
his sober senses, and without having been unduly influenced thereto
(the requirements
of
s 217
of the
Criminal Procedure Act). It
must also, in terms of s 35 of the Constitution of the Republic of
South Africa, be excluded if it was obtained in a manner that
violates any right in the Bill of Rights and if its admission would
render the trial unfair or otherwise be detrimental to the
administration of justice.
[7]
The defence counsel, on behalf of the accused, objected to the
admissibility of the alleged pointing out relating to the firearms
and other items on the grounds that the accused did not make such
pointing out and that he had been tortured. The admissibility
of the pointings out of and at the scene of the incident were
objected to on the grounds that they were not freely and voluntarily
made, because the accused had been assaulted and tortured by the
police. The admissibility of the warning statement was objected
to on the grounds that the accused did not make it freely and
voluntarily, because his making thereof had been preceded by assaults
and torture upon him while he was in custody and he had been
threatened that he would be killed and that he would end up dying
in
the cells if he did not cooperate. Such assaults, torture, and
threat were alleged to have induced him into making the
warning
statement. The accused confirmed his grounds of objection.
[8]
The state, upon whom the
onus
rests to establish the
admissibility of the pointings out and of the statement, led the
evidence of Cst JT Baloyi, Capt BP Mdaka,
Cst HE Nyati, Cst. JJ
Shongwe, Supt TM Pule, Col C Mabasa, Cst DD Sanderson, and Col TB
Mambame. Cst Baloyi was recalled
for further cross-examination
at the request of the defence. The accused elected to testify.
[9]
I interpolate to mention that information relating to what had
allegedly been said and pointed out by the accused prior to and
on
the occasion when the firearms and other items were allegedly found
had been testified about and disclosed before a determination
of the
admissibility thereof was made. Cst Baloyi was called as a
witness in the main trial. He testified about alleged
verbal
admissions and a pointing out which the accused had made and which
resulted in the finding of
inter alia
the firearm that had
allegedly been used in the killing of the deceased. I was
informed by the defence counsel that the requirements
of
s 219A
of
the
Criminal Procedure Act and
those of the Constitution relating to
the admissibility of admissions by an accused person were not in
dispute and that the accused
had no objection to such evidence being
led. I was informed that the accused denies that he was the
person who accompanied
the police when the alleged pointing out was
made and that the dispute between the parties was whether or not the
accused was the
person who had accompanied the police officers and
who had made the alleged pointing out. I accordingly did not at
that stage
order that a trial-within-a-trial be held. But, when
Cst Baloyi was cross-examined, it was put to him that he and other
members
of the SAPS assaulted and tortured the accused severely after
he had been arrested and they insisted that he knew the whereabouts
of the firearms. It was accordingly apparent that the
requirement of voluntariness was in issue. The fact that an
accused says that he was not the person who had made the pointing out
does not mean that a trial-within-a-trial does not have to
be held.
I raised the matter with counsel and it was thereafter agreed that a
trial-within-a-trial should be held
inter alia
in order to
determine the admissibility of the disputed pointing out relating to
the firearms and other items.
It was also agreed
that the evidence of Cst. Baloyi should form part of the evidence at
the trial-within-this-trial. I will
obviously disabuse my mind
of the prejudicial evidence if it is held inadmissible.
[10]
Cst Baloyi testified that, as a result of information received, he
and other police officers had first gone to the scene of
the incident
and from there they went around in search of the suspect. They
received information that Cst Shongwe and Cst
Mkumbane had already
arrested the suspect and had taken him to the Kabokweni SAPS.
Cst Baloyi found the accused in his office
and Cst Mkumbane was with
him. Cst. Mkumbane left, because he needed to attend court.
Cst. Baloyi testified that he
was in the company of constables
Mkonza, Ngumane and Nyati. This evidence of Cst Baloyi was not
placed in issue when he was
cross-examined on behalf of the accused.
Cst Nyati testified that when he arrived, presumably at the place
where the accused
was found, he had already been arrested. Cst
Nyati testified that he was also present in the vehicle in which the
accused
was thereafter taken to the police station. It was put
to Cst Nyati that the accused had been tortured and assaulted in that
vehicle, which Cst Nyati denied. Cst Shongwe testified that a
person who had been following the accused led him and Cst.
Mkumbane
to where the accused was found. Cst Shongwe arrested him.
The three of them got into the front of the SAPS
open pick-up vehicle
that Cst Shongwe and Cst Mkumbane used at the time. They took
the accused directly to the CID offices
at the Kabokweni SAPS. He was
taken to the office of Cst Baloyi. It was put to Cst Shongwe
that the accused’s version
is that he had been taken to the
police station in a Combi vehicle and that he was assaulted in that
vehicle by police officers
who took him to the police station.
This was denied by Cst Shongwe and he also denied that Cst Nyati
accompanied them.
It was also put to Cst Sanderson that he had
at all times been present when the accused was tortured since his
arrest and that
the accused was tortured inside a Combi vehicle after
he had been arrested. Cst Sanderson denied that he was present
when
the accused was arrested.
[11]
The accused testified that he was arrested between 8:00 – 9:00
am on 3 September 2009 by two police officers who got
out of a white
Combi vehicle. Immediately upon his arrest he was taken in that
Combi to a place where he was told somebody
was killed. There
were a number of other police officers present in that vehicle.
They were altogether about 7 –
10 persons. He was then
taken to a certain place where he was told that somebody had been
following him. From there
he was taken to Cst Baloyi’s
office at the Kabokweni SAPS. The accused did not
testify in chief about any
assault upon him from the time of his
arrest until the stage when he was at the Kabokweni SAPS in the
office of Cst Baloyi.
His counsel pertinently asked him whether
it was his evidence that the assaults upon him had started at the
police station, which
he confirmed. Yet, it was put to some of
the state witnesses that the accused was tortured and assaulted by
police officers
in a Combi vehicle immediately after he had been
arrested and before he was taken to the police station. The
accused adjusted
his evidence when he was cross-examined and again
maintained that he was assaulted and that a tube was placed over his
head immediately
after he had been arrested and before he arrived at
the police station.
[12]
It is common cause that the accused was taken to Cst Baloyi’s
office at the Kabokweni SAPS. Cst Baloyi testified
that he
introduced himself and the other three constables in his company to
the accused. Cst Baloyi asked the accused whether
he knew
anything about the incident. The accused did not reply.
Cst Baloyi left the office for about 5 minutes.
Upon his
return, Cst Baloyi informed the accused that he was going to
interview him and he informed him of his relevant constitutional
rights. The accused expressed his willingness to cooperate and
to show Cst Baloyi where the firearms that had been used in
the
incident were hidden. This was confirmed by Cst Nyati when he
testified. Cst Baloyi’s interview with the
accused and
that he informed him of his constitutional rights were not placed in
issue when Cst Baloyi and Cst Nyati were cross-examined.
It was
put to Cst Baloyi that the accused denies that when he was questioned
he agreed to take Cst Baloyi to where the firearms
were hidden.
[13]
Cst Baloyi testified that he told Capt Mdaka, who was not part of the
‘interviewing team’, that the accused wished
to make a
pointing out of the firearms, and he requested Capt Mdaka to
‘accompany’ them. This was confirmed by
Capt Mdaka,
who testified that he was not involved in the investigation of this
case and he had not known the accused before.
Capt Mdaka
testified that Cst Baloyi informed him that the suspect wished to
make a pointing out of firearms, and, because Capt
Mdaka was a
commissioned officer, was requested to accompany them to ensure that
the suspect was making the pointing out voluntarily.
Capt
Mdaka, Cst Baloyi, and Cst Nyati each testified that they and
constables Mkonza and Ngumane and the accused travelled in a
Combi
vehicle to the place where the accused had wished to make the
pointings out. Capt Mdaka testified that he informed
the
accused of his constitutional rights before they had left. The
accused elected and expressed his willingness to proceed
with the
pointing out. Capt Mdaka informed him that he was a captain and
that if anything untoward happened to him he should
be at liberty to
report such to him. Capt Mdaka did not use the customary
pro
forma
for the purpose of the pointing out, he did not take notes
at the pointing out, and he did not arrange for a photographer to
take
photographs of what had been pointed out. Capt Mdaka was
clearly inexperienced in the conducting of pointings out. He
has been a member of the SAPS for eighteen years and a captain for
the past three years. He was not involved with crime
investigations. He had not conducted any pointings out before.
He only once observed a pointing out where a photographer
was also
not used. Capt Mdaka viewed his function as that of a
commissioned officer who was required to accompany the police
officers and the accused in order to ensure that the accused was
making the pointing out voluntarily. Cst Baloyi testified
that
the services of a commissioned officer from a different station could
not be obtained and that is why Capt Mdaka, who was
also stationed at
the Kabokweni SAPS but in a different unit, was requested to conduct
the pointing out.
[14]
Capt Mdaka testified that they travelled to Pola Park. Cst
Ngumane was the driver of the vehicle. Capt Mdaka, Cst
Baloyi,
and Cst Nyati each testified and corroborated each other that the
accused gave the directions to where they should travel.
From a
certain point the accused directed them on foot with Cst Baloyi and
Cst Nyati walking next to him and Capt Mdaka following
at a distance
of about one and a half metres (according to the evidence of Capt
Mdaka). Capt Mdaka, Cst Baloyi and Cst Nyati
each testified
that the accused then pointed out a spot where Cst Baloyi should dig
for the firearms. Cst Baloyi (according
to Cst Nyati), or
constables Baloyi and Nyati (according to Capt Mdaka and Cst Baloyi),
then dug. Cst Baloyi testified that
they dug about 20
centimetres deep in loose sand. They came across a blue overall
top (according to Capt Mdaka and Cst Baloyi),
or a greenish one
(according to Cst Nyati). All three officers testified that
wrapped inside the overall top was a brown
bag and inside it two
firearms. Cst Baloyi described the bag as similar to a
toiletries bag. He testified that two
9 mm pistols were found
inside the bag. Capt Mdaka described the firearms as a CZ with
its serial number intact and a 9 mm
with its serial numbers
obliterated. Cst Baloyi could recall that one of the two
firearms had a serial number, but he was
unable to say whether or not
the other pistol had one. The three officers each testified
that they thereupon returned to
the Kabokweni SAPS. Capt Mdaka
went back to his office and had no further involvement in the
matter. Cst Baloyi ascertained
that there were bullets in the
firearms. This was confirmed by Cst Nyati. Cst. Baloyi
booked the firearms and ammunition
into the SAPS 13. Cst Baloyi
testified that the place where the firearms were found was about 1½
kilometres from the
place where the deceased had been shot and about
20 – 30 metres from where the accused had been arrested.
[15]
It was put to Capt Mdaka, to Cst Baloyi, and to Cst Nyati that the
accused denied that he made a pointing out of or that he
took them
and the other police officers to the place where the firearms were
found. Capt. Mdaka testified that he and the
accused were in
each other’s presence for about three hours and he was adamant
that he did not err in identifying the accused
as the person who had
made the pointing out which resulted in the finding of the firearms
and ammunition. Cst. Baloyi testified
that he was in the
presence of the accused altogether for about 5 – 6 hours, and
he too was adamant that it was the accused
who had made the pointing
out. Cst Nyati also insisted that no one else but the accused
accompanied them. It was put
to Cst Baloyi that the accused’s
version is that Cst Baloyi took him to the place where the firearms
had been found.
The accused contradicted this version when he
testified and denied this.
[16]
The accused testified that Cst Baloyi told the other police officers
who were present in his office that ‘they’
had found the
firearms. Cst Baloyi and the other police officers left the
office and returned with ‘the firearm’.
The accused
testified that he did not see how many firearms were brought by them
since he was handcuffed and made to lie on the
floor. The
accused’s evidence in this regard contradicted his version that
was put to the state witnesses. It
was put to Cst Baloyi that
the police officers showed the accused a bag with the firearms after
they had found it and to Capt Mdaka
also that the police officers
showed him the firearms.
[17]
The accused testified that Cst Baloyi told him that he had heard that
there were two persons involved in the matter and he
wanted to know
from the accused where the other person was. Cst Baloyi took
the accused’s cell phone and scrolled it
down. He called
a person with the accused’s cell phone and said to the accused
that that was the other person.
The accused’s evidence in
this regard, however, was not foreshadowed in the cross-examination
of Cst Baloyi or of Cst Nyati.
The accused also contradicted
this evidence when he was cross-examined. He then testified
that his cell phone was taken immediately
after his arrest and he
could not remember whether it was scrolled down on the way to or at
the police station. He also said
that this event had happened
at the time when Cst Baloyi switched the cell phone off in order to
book it into the SAP 13.
[18]
In his evidence in chief the accused testified that after Cst Baloyi
had called a person with the accused’s cell phone,
he and the
other police officers tortured and assaulted him by kicking him,
hitting him with open hands, and by placing a tube
over his face to
prevent him from breathing. I have mentioned that the evidence
of Cst. Baloyi that he was in the company
of constables Mkonza,
Ngumane and Nyati were not placed in dispute when he was
cross-examined. Cst Baloyi’s evidence
in this regard was
also corroborated by that of Cst Nyati. It was further not
suggested to either Cst Baloyi or to Cst Nyati
that Cst Sanderson was
also present in the office when the alleged assaults upon and torture
of the accused occurred. Yet,
when Cst Sanderson was
cross-examined, it was put to him that he was present with Cst Baloyi
and Cst Nyati at the police station
when the accused was tortured.
Such was subsequently also the evidence of the accused. The
accused further testified
that Col Mambame arrived and he asked the
police officers to take the accused to the cells. It was not
put to Col Mambame
that he attended at the office where the accused
was tortured. On the contrary, Col Mambame was not
cross-examined.
[19]
The accused further testified that he was taken to the cells and
locked up in solitary confinement. He was again tortured
in the
cells. The police officers took a dust bin and filled it with
water. He was handcuffed from behind and his head
was placed
inside the dust bin with water. But, under cross-examination,
the accused said that this incident happened inside
a garage outside
the cells where the bin had already been in place and water had
already been inside the bin. The accused
testified that he was
again taken to Cst Baloyi’s office during the course of that
evening for further torturing. His
hands were placed together
in an iron rod and his body was hanging from it and the police
officers called this method of torture
‘
a braai stand’
.
He was thereafter taken back to the cells and again locked in
solitary confinement. There he was again tortured by
means of
the tube which the police officers placed over his head.
Constables Sanderson, Baloyi and Bongani told him never
to tell any
other police officer that he had been tortured and he was threatened
to be taken in a Combi vehicle to an open veld
and shot if he did.
They warned him that they would return during the night. The
accused testified that constables
Sanderson and Baloyi had said to
him that they wanted information as to why the deceased was killed
during the torturing of him
on 3 September 2009.
[20]
The accused’s evidence about these events on 3 September 2009
essentially emerged when he testified. Most of the
material
aspects of his evidence, such as the different occasions when he had
allegedly been tortured and assaulted, the placing
of his head in a
dust bin filled with water, the ‘braai stand’ method of
torturing used upon him, and the threats made
to him, were not
foreshadowed in the cross-examination of the State witnesses, and
particularly that of Cst Sanderson, of Cst Baloyi,
and of Cst Nyati.
It was merely put to Cst Baloyi that he and other police officers
tortured the accused severely after he
had been arrested in order to
compel him to tell them where the firearms were hidden and for him to
confess to the killing of the
deceased. Cst Nyati was
only confronted with the alleged torturing of the accused in the
Combi vehicle. It was
put to Cst Sanderson that the accused had
been tortured in the Combi vehicle by the placing of a tube over his
head and that Cst
Sanderson was present with Cst Baloyi and Cst Nyati
when the accused had been tortured at the police station.
[21]
The accused testified that the last thing that had happened to him on
3 September 2009, was that police officers who did not
testify in the
trial-within-this-trial arrived at his cell late that night and they
took him to the court yard where they tortured
him by placing a tube
over his head. He testified that these officers smelt of
alcohol and they told him that he ‘
...was the one who killed
the deceased.’
This evidence contradicted the
accused’s version that was put to Cst Sanderson that he was
present whenever the accused
was tortured.
[22]
Cst Sanderson, who is the investigating officer, testified that he
had no involvement in this matter until the case docket
was handed to
him at about 07h30 on 4 September 2009. The commanding officer,
Capt Mnisi, informed Cst Sanderson that the
accused had wished to
make pointings out at the scene of the crime. Cst Sanderson
booked the accused out of the cells and
took him to an office where
he introduced himself to the accused as the investigating officer.
Cst Sanderson enquired from
him whether he was still willing to make
pointings out at the scene of the crime, which the accused
confirmed. Cst Sanderson
informed him that he was not compelled
to make pointings out and he informed him of his relevant
constitutional rights. Cst
Sanderson informed Capt Mnisi of the
accused’s willingness to still make the pointings out.
Capt Mnisi had already
on 3 September 2009 made the necessary
arrangements with Capt Mabasa to conduct the pointings out. Col
C Mabasa, who was
a captain at the time and stationed at Bushbuck
Ridge SAPS, confirmed this. He testified that Capt Mnisi
requested him on
3 September 2009 to conduct a pointing out as an
independent commissioned officer. He agreed.
[23]
It is common cause that Col Mabasa attended at the Kabokweni SAPS on
4 September 2009. Const Sanderson testified that
he signed the
occurrence book entry relating to the booking out of the accused from
the cells for the purpose of the pointings
out that were to be
undertaken by Col Mabasa. Cnst Sanderson testified that he was
informed that he was not permitted to
be involved in the interview
and pointings out. The accused testified that Cst Sanderson
told him to co-operate with Col
Mabasa and he agreed, because he had
been assaulted and because the police officers had shown him the
scene where the pointings
out were to be conducted before.
[24]
Col Mabasa testified that he interviewed the accused in an office
from 09h45. An interpreter, Cst ND Mduduzi, was arranged
and
present, but his services were not required since the accused
informed Col Mabasa that he knew more than eleven South African
languages and he was satisfied for the interview to be conducted
without the aid of an interpreter. Col Mabasa testified
that
the accused was fluent in English, Shangaan, and Seswati. The
accused’s proficiency in Shangaan was, according
to Col Mabasa,
even better than his own. There were no communication problems
between them. Col Mabasa testified that
he asked the accused
questions of a general nature, such as where he went to school,
before he commenced with the interview in
order to make the accused
feel at ease. Col Mabasa used a
pro forma
for the
purpose of the interview (exhibit ‘G’). Col Mabasa
introduced himself to the accused as a captain from
the Bushbuck
Ridge SAPS and he explained to him that he was not the investigating
officer and that he knew nothing about the case.
He showed the
accused his appointment certificate. Col Mabasa worked through
the
pro forma
with the accused. He read it in English
and interpreted it for the accused into Seswati. Col Mabasa
also spoke Shangaan.
On occasion the accused responded in
English. Col Mabasa ensured that the accused understood what
had been read and explained
to him. He recorded the accused’s
replies on the form in English. Before going over to a next
page the accused
signed the page that they had completed and his
thumb print was also placed thereon. It appears from the form
and from Col
Mabasa’s evidence that the accused’s rights
were read and explained to him, that he confirmed that he understood
them,
and that he elected not to exercise any of the rights.
Col Mabasa recorded that the accused’s clothing, his
appearance,
and his demeanour were good, and that he was
cooperative. Col Mabasa testified that he inspected the
accused’s body
for injuries. There were none and the
accused did not appear to him to be a person who had been assaulted.
Col Mabasa
also asked the accused whether he would like to be taken
to a hospital and be examined by a medical doctor. He also
showed
the accused a J88 form. The accused informed him that he
was fine and did not wish to be medically examined. Col Mabasa
noted the accused’s response on the
pro forma
that he
declined the opportunity afforded to him to be medically examined and
he indicated that he had no problem and wanted go
ahead with the
pointing out as soon as possible. Col Mabasa explained to the
accused that he had nothing to do with the investigation
of this case
and that the accused had nothing to fear of him. If he had been
forced, threatened or assaulted in any way to
make a statement or
point out anything, Col Mabasa was able to assist him and, if
necessary, arrange protection for him against
any harm. The
accused’s response as recorded by Col Mabasa was that he did
not have any problems. It further
appears from Col Mabasa’s
evidence and the replies of the accused as recorded on the form that
he was willing to make pointings
out, that he was not in any way
assaulted or threatened or induced to make the pointings out, and
that no promises were made to
him that induced him to make the
pointings out. It also appears that the accused informed Col
Mabasa that he had no injuries,
bruises, wounds or scars.
[25]
Col Mabasa, Cst ND Mduduzi (who was assigned to be the
interpreter), Cst Sigudla (the driver), Cst Shilowane (the
photographer),
and the accused travelled to the place where the
pointings out were to be conducted after the initial interview had
been completed.
The photographer travelled in his own car.
The accused gave the directions. They thereafter returned to
the Kabokweni
SAPS. Col Mabasa followed the same methodology as
during the initial interview. He again asked the accused
whether
he would like to be examined by a doctor. The accused
again declined the opportunity afforded to him. Col Mabasa
noted
the accused’s responses in Part 4 of the
pro forma
.
In terms thereof the accused
inter alia
expressed his
satisfaction that what he had pointed out and said had been noted
correctly and that every word was from his own mouth.
Photographs were
inter alia
taken of the accused at the time
of the initial interview and upon his return after the pointings had
been completed (exhibit ‘I’).
[26]
It was pertinently put to Col Mabasa that the accused did not dispute
that Col Mabasa explained to him his rights prior to
the making of
the pointings out and that the accused’s reason for having
agreed to make the pointings out was because he
had prior thereto
been assaulted, tortured, and threatened by Cst Sanderson and his
colleagues and that he was afraid of them.
A few aspects of the
evidence of Col Mabasa was disputed when he was cross-examined.
It was denied that the accused also
responded in English and it was
put to Col Mabasa that the accused only responded in Seswati.
It was put to Col Mabasa that
he completed the form and gave it to
the accused to sign. Col Mabasa testified that certain answers
that he noted on the
form as ‘
no at all’
were the
verbatim
answers of the accused. It was put to him that
the accused never answered ‘
no at all’
and my
understanding of Col Mabasa’s evidence is that he conceded that
such was rather his own interpretation of the accused’s
answers.
[27]
When he testified, the accused denied that he had told Col Mabasa
that he understood English, Shangaan and Seswati or that
he had told
him that an interpreter was not needed. The accused testified
that he did not know Shangaan nor did he have a
proper command of
English. He testified that Col Mabasa only communicated to him
in English and Shangaan and that he spoke
only in Seswati to Col
Mabasa. He testified that he and Col Mabasa did not always
understood each other. He testified
that he ‘
was
concentrating on his injuries’
and did not care about what
Col Mabasa was saying to him. Under cross-examination the
accused testified that Col Mabasa was
in a hurry. He denied
that Col Mabasa afforded him the opportunity to be medically
examined. He denied that he signed
the document and placed his
thumb prints thereon in the presence of Col Mabasa. He
testified that Cst Sanderson subsequently
gave him the documents to
sign. The accused’s evidence in this regard was not
foreshadowed in the cross-examination
of Col Mabasa and is
irreconcilable with his unchallenged evidence. The accused’s
denial of particularly his proficiency
in English is patently false
with reference to the unchallenged evidence of Supt Pule about his
proficiency.
[28]
The accused testified that once the pointings out had been completed
he was handed to Cst Sanderson, who enquired from him
how it went and
Cst Sanderson threatened him that if he had done ‘anything
wrong’ at the pointings out another person
would be conducting
another one and he would continue to be tortured. He was
thereafter taken back to the cells. This
evidence of the
accused was not foreshadowed in the cross-examination of Cst
Sanderson.
[29]
The unchallenged evidence of Cst Sanderson is that he again booked
the accused out from the cells at about 13h00 after the
pointings out
had been completed in order to obtain his identity document for
verification purposes and to confirm his residential
address for the
purpose of bail. Cst Sanderson and the accused, accompanied by
W/O Duma and Cst Mhlombo, travelled in a SAPS
Combi vehicle to
Pienaar Trust, which is a residential area where the accused
resided. Const Sanderson’s unchallenged
evidence is that
the case was not discussed on this occasion. The accused,
however, testified that
en route
to his place of residence the
Combi vehicle was stopped and Cst Sanderson ordered that he got out.
Cst Sanderson demanded
that he told the truth otherwise he would be
shot, left there, and they would say that he attempted to escape.
Cst Sanderson
demanded that he told them whatever he knew about the
case. Cst Sanderson then told him that they would not shoot him
and
that they would put him in the cells alive if he tells his family
that he had shot the deceased. When they returned to the
Kabokweni SAPS the accused was given a document containing his
rights. He was told by Cst Sanderson and by Cst Baloyi that
he
was not going to say anything from that moment on. They were
the ones who would do any talking. Cst Sanderson told
him that
he had received information that the accused was the one who had
killed the deceased and that he had been hired to do
so. Again,
the accused’s evidence was not foreshadowed in the
cross-examination of Cst Sanderson or of Cst Baloyi and
is
irreconcilable with the unchallenged evidence of Cst Sanderson about
this occasion.
[30]
Cst Sanderson testified that once they had returned from the
accused’s residence he asked the accused whether he would
be
willing to make a confession to a magistrate. He was informed
by the accused that he did not wish to make one to a magistrate,
because he did not trust the Kabokweni magistrates. Cst
Sanderson explained to him that he could also make one to a police
officer with the rank of captain or higher. He thereupon
informed the accused of his relevant constitutional rights.
The
accused confirmed to him that he understood his rights and he
expressed his willingness and he agreed to make a statement to
a
police officer from another police station who did not know anything
about the case. The evidence of Cst Sanderson relating
to this
occasion was not placed in issue.
[31]
Cst Sanderson testified that he contacted Supt TM Pule, who was
stationed at the SAPS Provincial Office in Nelspruit, and he
requested her to assist in the taking of a statement from the
accused. She agreed to assist and indicated that she would
be
available the next day, which was 5 September 2009. His
evidence on this aspect is corroborated by that of Supt Pule.
She testified that she had been a member of the SAPS since 1986 and a
superintendent since 2005. She was not involved in
the
investigation of this case. Cst Sanderson testified that he
revert to the accused and informed him of the arrangements
which he
had made.
[32]
The accused testified that Cst Sanderson attended at the cells on 5
September 2009. He told the accused that Supt Pule
would be
taking his statement and he demanded that he cooperate, because he,
Cst Sanderson, told him that he would also be present.
The
accused agreed to cooperate. The accused further testified that
Cst Sanderson told him that if he would fail to give
Supt Pule ‘
the
right statement’
it would be torn and re-written as the
police officers wished it to read. The accused testified that
Cst Sanderson told him
what he should say to Col Pule. Cst
Sanderson, Cst Baloyi and another police officer assaulted him ‘
a
little bit’
with their open hands before he was taken to
Supt Pule, which assault served as a reminder to him of his
obligation to comply in
making a statement. The accused’s
evidence in this regard was not foreshadowed in the cross-examination
of Cst Sanderson,
of Cst Baloyi, or of Cst Nyati. What was put
to Cst Sanderson is that prior to the accused having made the
statement to Supt
Pule, Cst Sanderson demanded that he confess to the
commission of the offence in question by threatening him that he
would be taken
back to the cells where Cst Sanderson would torture
and end up shooting him. It was not suggested to Cst Sanderson
that he
was the author of the statement which the accused was told to
make to Supt Pule.
[33]
Cst Sanderson testified that he showed Col Pule an office which she
could use for the purpose of the interview.
Supt Pule informed
him that he was not permitted in the vicinity of the interview.
Cst Sanderson booked the accused out for
the purpose of the
statement. He testified that by booking the accused out he
accepted the responsibility for the accused.
Most of the other
police officers were not prepared to take this responsibility in fear
that the accused might escape given the
charges against him and that
disciplinary action might be taken against the responsible officer if
an accused person escapes.
This explanation is plausible and it
is to be noted that Cst Sanderson was also the officer who booked the
accused out for the
purpose of his interview with Col Mabasa.
Cst Sanderson testified that he did not fetch the accused from the
cells nor did
he take him to Supt Pule. He left the police
station. His evidence on this aspect is corroborated by that of
Supt Pule.
She testified that Cst Sanderson gave her the keys
of an office which she should use for purposes of the interview.
She told
him that he was not needed at the interview. She
testified that police officers on duty in the charge office brought
the
accused to her.
[34]
The accused testified that Cst Sanderson and Cst Baloyi took him to
the office that was used by Supt Pule for the purpose of
the
interview. They entered the office with the accused.
Other police officers were waiting outside the office.
Supt
Pule told Cst Sanderson to remain in the office, because she did not
trust the accused. The accused testified that Cst
Sanderson was
going in and out of the office during his interview with Supt Pule.
It was, however, never suggested to Cst
Baloyi when he was
cross-examined on behalf of the accused that he was one of the
officers who took the accused into the office
which was used by Supt
Pule. The accused’s evidence is also in conflict with his
version that was put to Supt Pule
that Cst Sanderson and his
colleagues stood outside the office while she interviewed the
accused. The accused’s evidence
in this regard is in
conflict with Supt Pule’s unchallenged evidence that Cst
Sanderson did not enter the office prior
to the interview and his
evidence that Supt Pule requested Cst Sanderson to remain present
because she did not trust the accused
was also not put to her when
she was cross-examined on behalf of the accused.
[35]
Supt Pule testified that she did not know the accused. She used
a prescribed
pro forma
for purposes of the interview (exhibit
‘F’). She recorded on the
pro forma
that the
interview commenced at 12h30 on 5 September 2009. Supt Pule
introduced herself to the accused and showed him her
appointment
certificate. She explained to him the purpose of the
interview. The accused agreed for the interview to
be conducted
in the Seswati language. Supt Pule worked through the
pro
forma
with the accused. She read it to him in English and
interpreted it for him into Seswati. She recorded his responses
in English. She also gave the form to the accused to read,
because he told her that he was educated and had passed matric.
She read and explained his constitutional rights to him, which he
confirmed he understood. He elected to make a statement
and he
informed her that he did not wish to consult with a legal
practitioner before making the statement. The accused told
her
that he had no injuries, that he was not threatened, assaulted or
influenced to make the statement. He appeared to her
of sound
mind and he did not seem to be under the influence of liquor or any
other intoxicating substance or in a state of shock.
She wrote
down his statement. The statement was read by the accused and
he confirmed that he understood everything and that
the contents
thereof was true and correct. She and the accused signed
every page of the document. Upon completion
of the interview,
Supt Pule contacted Cst Sanderson, and when he arrived, handed the
accused’s statement to him. The
accused was no longer
present. Cst Sanderson and Supt Pule corroborated each other’s
evidence on this aspect.
[36]
Col Pule’s evidence was essentially not challenged or disputed
by the accused when he testified in the trial-within-this-trial.
The accused confirmed that Col Pule explained his rights to him and
that he understood them. The accused’s version
is
that he had been assaulted, tortured and threatened prior to making
the statement to Col Pule and such induced him into making
it, which
he otherwise would not have done. The accused’s evidence
that he was not the author of the statement that
he made to Col Pule
since its contents was dictated to him by and came from Cst Sanderson
only emerged when the accused testified
and was not foreshadowed
during the cross-examination of Cst Sanderson or of Col Pule.
The evidence of the accused on this
aspect is an obvious afterthought
and fabrication.
[37]
Col TB Mambame testified that he personally attended at the Kabokweni
SAPS cells at 07h00 on 4 September 2009. There
were twenty two
persons detained in the cells at the time. He personally
enquired from the detainees whether they had any
complaints.
The accused was present. Not one of the detainees raised any
complaint to him. Col TB Mambame
also referred to various
occurrence book entries wherein it was recorded that the accused
raised no complaints to the police officers
who visited the cells at
the time when he was detained. The probative value of the
information recorded in such entries,
however, depends on the
credibility of the police officers who visited the cells and no
application that the hearsay evidence be
admitted in the interests of
justice in terms of
s 3(1)(c)
of the
Law of Evidence Amendment Act 45
of 1988
was made on behalf of the state. Such evidence is accordingly
disregarded. The undisputed evidence of Cst Sanderson, however,
is that the accused never laid any complaint or charge against any
member of the SAPS. The accused also conceded that he
had until
this day not laid any complaint or charge against any member of the
SAPS. His reasons for not having requested
the assistance of
even his own counsel in pursuing the matter are not plausible.
[38]
The accused was a most unimpressive witness and his evidence on the
disputed issues untruthful and unreliable throughout.
He was
often evasive in answering questions during cross-examination or he
adjusted his evidence when the shoe pinched. There
were
material contradictions in his evidence and between his evidence and
what had been put by his counsel to State witnesses.
The
accused’s evidence about the events that followed upon his
arrest essentially emerged when he testified. Most of
the
material aspects of his evidence were not foreshadowed during the
cross-examination of the State witnesses. The accused’s
evidence that he was induced to make the pointings out and the
statement as a result of torture, assaults, and threats by and at
the
hands of members of the SAPS, and that the contents of the statement
which he made to Col Pule had been dictated to him by
and had come
from Cst Sanderson, is on the totality of the evidence, I am quite
satisfied, not reasonably possibly true.
[39]
The State witnesses were on the totality of the evidence credible
witnesses and their evidence reliable. Each one’s
evidence was coherent and satisfactory in all material respects.
They corroborated each other on material aspects.
There were a
few unsatisfactory features to their evidence,
inter alia
relating
to the issue whether or not the accused was taken to the police
station in a Combi vehicle after he had been arrested,
whether or not
other police officers also accompanied them from the place where the
accused had been arrested to the police station,
whether or not the
accused had first been taken to the scene of the incident before he
was taken to the police station, and relating
to the attestation of
the accused’s statement that he had made to Supt Pule.
Such unsatisfactory features on an assessment
of the totality of the
evidence turned out not to be material.
[40]
The State, on the totality of the evidence, discharged the
onus
of
proving beyond reasonable doubt the requirements stipulated in
s 219A
of the
Criminal Procedure Act for
the admission in evidence of the
disputed pointing out which had allegedly been made on 3 September
2009 and allegedly resulted
in the finding of two firearms,
ammunition, a blue overall top, and a brown bag as well as the
disputed pointings out which had
been made by the accused to Capt
(presently Col) C Mabasa on 4 September 2009 of and at the scene
where the incident had taken
place, and that the disputed pointings
out had not been obtained in an unconstitutional manner. The
State, on the totality
of the evidence, also discharged the
onus
of proving beyond reasonable doubt the requirements stipulated in
s 217
of the
Criminal Procedure Act for
the admission in evidence of
the disputed confession that had been made by the accused on 5
September 2009 to Col Pule and that
it had not been obtained in an
unconstitutional manner.
[41]
The ruling that was made on 28 October 2010, is that all the disputed
pointings out and confession are admitted in evidence
against the
accused.
[42]
I now return to the main criminal trial. The undisputed
evidence of the state eyewitness, Mr MM Dlamini, was that he
and the
deceased were friends. The two of them intended to go to
Nelspruit in the morning on 3 September 2009. Mr Dlamini
was
waiting for the deceased to fetch him at his house at Stand 220,
Phola Park. At about 8:00 am he heard the deceased’s
vehicle. He greeted his wife and went outside the house.
He walked about 3 metres from the front door when he noticed
that the
deceased was reversing his Toyota HiLux pick-up vehicle into Mr
Dlamini’s yard towards his house. Mr Dlamini
heard
gunshots and saw a person walking slowly towards the front of the
deceased’s reversing vehicle. The person was
repeatedly
firing gunshots at the deceased while his vehicle was reversing.
Mr Dlamini was surprised at what was happening.
He looked at
the person to see who he was. The person was about 10 –
14 metres away from him when Mr. Dlamini saw his
face for the first
time and he was getting closer to Mr. Dlamini as he continued to
approach the deceased’s reversing vehicle
and shooting at the
deceased. Mr Dlamini was unable to estimate how many shots were
fired other than to say they were many.
[43]
Mr Dlamini testified that upon realising that he was looking at him,
the person pointed his firearm at Mr Dlamini and he fired
a shot at
him. This was at a point when the person was about 7 metres
away from Mr Dlamini. Mr Dlamini believed that
a second gunshot
was also fired at him even though he did not see the firing thereof,
because of the quick succession in which
it followed the first one
that was aimed at Mr Dlamini. Once the first gunshot was fired
at Mr Dlamini, he turned around
and ran away towards the back of his
house and into the street.
[44]
Mr Dlamini testified that once he was outside his premises, he called
the SAPS with his cell phone on the number 10111 and
reported the
incident. Mr Dlamini believed that the police would take a long
time before they attend at his house and he
therefore took a taxi and
went to a police station. Upon his arrival he was told that
police vehicles had already been despatched
to his house.
Police officers took him home. He noticed the rear of the
deceased’s vehicle stationery against
his house.
Other police officers arrived with the accused, who had already been
arrested.
[45]
Mr Dlamini’s evidence is consistent with and corroborated by
the admissions which the accused had made in terms of
s 220
of the
Criminal Procedure Act. The
correctness of the contents of the
sketch plan and photo-album of the scene of the incident is formally
admitted. They depict
the deceased’s green Toyota Hilux
pick-up stationary with its rear end at right angles against Mr
Dlamini’s house.
Cartridges and spent bullets were spread
over the area about which Mr Dlamini had testified. Eight 9 mm
cartridges and two
spent bullets were found at the scene. Four
bullet holes appear in the driver’s door of the deceased’s
vehicle,
one in the right rear view mirror, another two in the
windshield, and bullet holes also appear in the house of Mr Dlamini.
The body of the deceased was found in the vehicle, bleeding, and his
bullet wound injuries are visible.
[46]
It is formally admitted that the deceased died on 3 September 2009 as
a result of gunshot wounds which he had sustained on
that date.
It is admitted that the deceased sustained no further injuries from
the time he had sustained the said injuries
on 3 September 2009 until
a post-mortem examination was conducted on his body by Dr MH Wadee on
8 September 2009. The facts
and findings of the post-mortem
examination recorded by Dr Wadee in the post-mortem report (exhibit
‘B’) are formally
admitted to be correct. The cause
of death is recorded as ‘
multiple bullet wounds’
.
Entrance wounds were found: in the left upper arm with
the corresponding exit wound in the superior shoulder
area; in
the left side of the face with the exit wound in the left occipital
area; in the left side of the forehead
and the bullet was found
under the skin; in the right renal area and the bullet was
found under the skin; and through
the left hand with the exit
wound in the left wrist area. The deceased sustained a fracture
of the occipital skull.
[47]
Mr Dlamini was an honest witness and his identification evidence of
Mr Dlamini, viewed in the context of all the evidence,
is
sufficiently trustworthy and reliable. The incident happened in
the morning while the sun was shining. Mr Dlamini
had no
eyesight deficiency and did not wear spectacles. The person who
shot at the deceased was in close proximity to Mr
Dlamini. The
person’s face was not covered. Mr Dlamini was looking
directly at the person from a distance of
about 10 - 14 metres to a
distance of about 7 metres away from him. Mr Dlamini had good
reason to take good notice of the
person who was firing continuously
at the deceased. Mr Dlamini was surprised at what was happening
and he wanted to see who
was shooting at the deceased. Mr
Dlamini’s view of the person was not obstructed in any way.
Mr Dlamini was able
to observe the clothes which the person was
wearing, which was a two piece blue overall. Mr Dlamini was not
able to identify
the accused by any facial characteristics. It
is, however, often difficult to describe a person and the inability
of a witness
to do so is not necessarily fatal when considering the
question whether the person has been properly identified by the
witness.
See:
S v Pretorius and Another
1991 (2)
SACR 601
(A), at p 607i. When the accused was brought back to
the scene the image of the person who shot at the deceased was still
fresh in the mind of Mr Dlamini. The accused was still wearing
the same overall trousers, but no longer the overall top.
He
was wearing a t-shirt with ‘
black and white spots’
.
[48]
The evidence of Mr Dlamini identifying the accused is also in certain
respects corroborated by the evidence of Mr A Chauke.
He heard
the firing of gunshots at about 8:00 am on the morning in question
and went to investigate what was happening. He
was accompanied
by a person who earlier on had cut his hair. From a distance of
more than 20 metres Mr Chauke saw a person
armed with a firearm
standing next to the passenger side of a Toyota pick-up vehicle.
The person wore a two piece blue overall
and a light brown cap, which
did not hide his face. The person also wore white gloves.
Mr Chauke noticed that the person
was placing the firearm and gloves
into a bag which he had with him. By the time the person had
left the motor vehicle he
was no longer wearing the blue overall top,
but a white t-shirt with ‘
small black spots’
.
Mr Chauke called the police with his cell phone. He followed
the person and kept him within his eyesight while he
was continuously
in communication with the police. Police arrived and Mr Chauke
pointed the person out to them. The
accused was running away.
Other police officers arrived and Mr Chauke got into their vehicle
and directed them to where the
person had gone. The person was
still wearing the same clothes. He was arrested. Mr
Chauke did not see the person’s
face. Mr Chauke was a
credible witness and his evidence reliable. He was hardly
cross-examined.
[49] The evidence of Mr
Dlamini identifying the accused is corroborated by the confession,
which the accused had made to Supt Pule
on 5 September 2009.
The accused’s confession also corroborates the evidence of Mr
Chauke. It became common cause during
the evidence of the accused
that Supt Pule accurately recorded in exhibit ‘F.1’ what
the accused had told her.
The first part of the accused’s
confession reads as follows:
‘
I make the statement out of my
free will in front of the police. I did not need a lawyer and
want to talk to the police not
to the magistrate as explained to me
because I am not hiding anything, as I have already shown the police
where the incident of
murder happened. I shot Timothy Mashego
at about 08:00 to 09:00 on the 03.09.2009 at Phola Park and I ran
away ± 2
km. While I was running I met police and I
decided to hide the weapon which I was having in the bush. I
hide the weapon
and went to a certain house where there was an old
car standing pretending to buy it as I was misleading and hiding from
the police.
The police saw me and arrested me ... . ...
The police asked me where was the weapon. I took them where I
hide
it. ... I told them that I bought the weapon 2 – 3
weeks back at Pienaar Trust.’
[50] It appears from the
accused’s confession and from his evidence in court that he and
the deceased’s wife formed
a love affair during 1997. The
accused killed the deceased on 3 September 2009 to bring an end to
the deceased’s unrelenting
revenge from which the accused tried
in vain to flee. The accused told Supt Pule that he was traced
wherever he attempted
to hide from the deceased. He was once
shot at by the deceased and threatened to be killed and fire-arms
were pointed at
him by the deceased and by those who acted for him.
Once police officers arrived at his house and confronted him with the
relationship he had with the deceased’s wife. An assault
upon him followed whereafter he remained in a coma for three
days.
He was taken by ambulance to the Rob Ferreira hospital. He laid
a charge at the Nelspruit SAPS. The State,
I should add, did
not disprove these allegations of the accused. The concluding
paragraph of the accused’s confession
reads:
‘
I decided to kill Mashego as I
was tired of running away from him. He was having money and
could do anything. I then
shot him and I did not know how many
times and I was arrested.’
[51] The evidence of Mr
Dlamini identifying the accused and implicating him in the killing of
the deceased is also corroborated
by the evidence of the accused.
He is a sophisticated businessman. He spoke at length directly
to me and often made
eye contact. He did not show any remorse.
However, his bitterness and hardness towards the deceased and about
what
he said he had to endure as a result of his unrelenting revenge,
was obvious to me. In giving evidence he confirmed and adopted
most of what is written in his confession. He admitted to
pointing out to members of the SAPS the scene of the incident as
well
as the firearm with which he admitted he had shot the deceased
several times.
[52]
The accused testified that he realised he could no longer run away
from the deceased, because he kept on finding him even after
the
affair between the accused and the deceased’s wife had
terminated for several years. The accused resolved to hunt
for
the deceased instead. He had bought a firearm without a serial
number and ammunition on the streets about a week or two
before he
shot the deceased. In the morning on 3 September 2009, he
noticed the deceased driving into Pola Park. The
deceased did
not notice him. The accused did not have his firearm with him.
He fetched it, searched for the deceased,
and found him sitting
inside his vehicle outside Mr Dlamini’s house. Upon
seeing the deceased, the accused shot at
him several times with the
direct intention to kill him. The accused said: ‘
I
went there to do what I wanted to do and I did it.’
This happened between 8:00 – 9:00 am.
[53]
The accused also testified that he had acted in self-defence when he
shot the deceased. He testified that the deceased
was a
dangerous man and he killed the deceased because of his perception
that the deceased posed a threat to his life and limb.
He
bought the firearm in order to defend himself against any attack from
the deceased or those acting for the deceased. The
accused,
however, admitted that his attack upon the deceased was a surprise
attack and that the deceased did not pose any threat
to him at the
stage when he shot him. Private defence is justified against an
attack already commenced or immediately imminent.
‘”Defence”
against an anticipated future attack or a completed attack is not
justified.’ See:
LAWSA Vol 6 (First Reissue) para
43. Any future harm to the accused could effectively have been
avoided by other means.
The accused’s use of force at the
time when he shot the deceased was clearly not necessary in all the
circumstances.
There is simply no question of self-defence.
[54]
The totality of the evidence establishes the accused’s guilt of
the murder of the deceased (count 1) beyond any reasonable
doubt.
The murder was planned and the accused acted with direct intent.
[55]
I now turn to the charge of robbery of the deceased’s pistol
(count 2). Cst Baloyi testified that the pointing
out made by
the accused resulted
inter alia
in the finding of two pistols,
which he booked into the SAP 13. The investigating officer, Cst
Sanderson, testified that he
compared the serial number of one of the
two firearms which he found in SAP13/11/76 with the number reflected
on the deceased’s
licence to possess a firearm (exhibit ‘J’)
and he ascertained that they matched. The state did not present
evidence
that Cst Baloyi booked the firearm, which Cst Sanderson
compared with the deceased’s firearm licence, into SAP13/11/76,
nor
did it present the firearm in evidence to establish that Cst
Sanderson’s comparison of the numbers was accurately
performed.
The accused denied the evidence of Cst Baloyi that
two firearms were found as a result of his pointing out. He
testified
that only the firearm with which he had shot the deceased
was found as a result of his pointing out. The accused’s
evidence on this issue finds resonance in the evidence of the state
witness, Mr Chauke, who testified that he saw a person with
a firearm
standing next to the passenger side of a Toyota pick-up vehicle and
he further noticed that person placing the firearm
in a green bag.
The evidence presented by the state is inadequate and the accused’s
guilt on this charge of robbery
has in the light of all the evidence
relevant to this charge not been proved beyond a reasonable doubt.
[56]
Count 3 is the charge of the attempted murder of Mr Dlamini.
The accused testified that he saw Mr Dlamini while he was
shooting at
the deceased, but that he did not look at him much, because he ‘
...
did not go there for him.’
Mr Dlamini testified that
his view of the accused was unobstructed. It must be accepted
that the accused’s view
of Mr Dlamini was similarly
unobstructed. The accused may very well have seen Mr Dlamini
before Mr Dlamini had noticed that
he was looking at him. The
accused denied Mr Dlamini’s evidence that he turned his firearm
towards Mr Dlamini and that
he fired at him. He testified that
had he pointed his firearm at Mr Dlamini he could have shot him
also. He insisted
that he was firing at the deceased only.
It is common cause that no bullet struck Mr Dlamini, not at the close
range of 7
metres about which Mr Dlamini testified, or when he turned
in very close proximity to the accused, or while he was running
away.
I have found Mr Dlamini to be a good and credible
witness. The accused’s evidence on this issue may,
however, be reasonably
possibly true. This does not mean that
Mr Dlamini was untruthful on this aspect. It means that the
accused must get
the benefit of the doubt. The state,
accordingly, has not proved the guilt of the accused on the charge of
attempted murder
beyond a reasonable doubt.
[57]
Finally, counts 4 and 5. The evidence establishes the guilt of
the accused of having been in unlawful possession of the
firearm and
ammunition with which he had shot the deceased beyond any reasonable
doubt. Cst Baloyi testified that the firearm
was found after
the accused had pointed out the spot where he had hidden it.
His evidence on this aspect is corroborated
by the confession of the
accused and by the accused’s own evidence that he did not have
a licence to possess a firearm and
that he bought the firearm and
ammunition on the streets.
[58] In the result the
accused, Mr Jika Elvis Mlombo, is found:
1. guilty, as
charged, of the murder of the late Mr Timothy Daklaas Mashego (count
1);
2. guilty of the
unlawful possession of a 9 mm pistol (count 4);
3. guilty of the
unlawful possession of 9 mm bullets (count 5); and
4. not guilty and
discharged on count 2 (robbery) and on count 3 (attempted murder).
P.A.
MEYER
JUDGE
OF THE HIGH COURT
8
November 2010