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[2017] ZAGPJHC 329
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Nkomo and Others v S (A103/2017) [2017] ZAGPJHC 329 (19 September 2017)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT, SOUTH GAUTENG LOCAL DIVISION (JOHANNESBURG)
Case
No: A103/2017
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
XOLANI
BATISTA
NKOMO
First
Appellant
JESUS
EMMANUEL
MAVHUNDUSE
Second
Appellant
ZAMANI
MOYO
Third
Appellant
MALUSI
MOYO
Fourth
Appellant
KHULUMANI
DUBE
Fifth
Appellant
KHUMBULANI
NGWENYA
Sixth
Appellant
THEBE
MAXWELL
Seventh
Appellant
NOBLE
NYATHI
Eighth
Appellant
and
THE
STATE
Case
Summary
:
Criminal Law – trial court convicted eight appellants on
charges of murder, robbery with aggravating circumstances
and
malicious damage to property and each sentenced to imprisonment for
life, for fifteen years and for three years respectively,
the latter
two sentences to run concurrently – evidence of identification
and implication of the third, fourth, fifth and
sixth appellants not
satisfactory and their convictions and sentences accordingly set
aside - first, second, seventh and
eighth appellants’
convictions of murder and malicious damage to property and their
sentences pursuant to those convictions
confirmed – their
convictions of robbery with aggravating circumstances and their
sentences pursuant to such convictions
set aside and replaced with
convictions of theft and sentences of imprisonment for one year, the
latter sentence to run concurrently
with the sentence for malicious
damage to property – state failed to prove the act of applying
or threatening to apply force
to the person of the victim required
for a conviction of robbery.
JUDGMENT
MEYER
J (VAN DER LINDE J concurring)
[1]
Arising from an incident that happened on 21 June 2012 at the Durban
Deep shooting range (the shooting range) when the late
Mr Solomzi
Livingston Jafta (the deceased) was attacked by a group of men, who
also damaged the Nissan pick-up with registration
numbers and letters
JLF 495 GP (the pick-up) belonging to Mr Godknows Nkosyazi Motloung
(Mr Motloung) and stole certain items from
it, the first appellant,
Mr Batista Xolani Nkomo, the second appellant, Mr Jesus Emmanuel
Mavhunduse, the third appellant, Mr Zamani
Moyo, the fourth
appellant, Mr Malusi Moyo, the fifth appellant, Mr Khulumani Dube,
the sixth appellant, Mr Khumbulani Ngwenya,
the seventh appellant, Mr
Thebe Maxwell and the eighth appellant, Mr Noble Nyathi, were each
convicted on 29 April 2013 by the
Gauteng Local Division of the High
Court (Mophosho AJ) of murder read with s 51(1) of Act 105 of 1997
(count 1), of robbery with
aggravating circumstances as defined in s
1(1) of the Criminal Procedure Act 51 of 1977 (count 2) and of
malicious damage to property
(count 3).
[2]
On 3 May 2013, the trial court sentenced each appellant to
imprisonment for life pursuant to the conviction of murder, to
imprisonment
for a period of 15 years pursuant to the conviction of
robbery with aggravating circumstances and to imprisonment for a
period
of three years pursuant to the conviction of malicious injury
to property. The trial court ordered that each sentence of
imprisonment for three years pursuant to the conviction of malicious
injury to property runs concurrently with the sentence of
imprisonment for fifteen years pursuant to the conviction of robbery
with aggravating circumstances. The effective sentence
imposed
upon each appellant, therefore, is imprisonment for life. The
appeal of each appellant against his convictions and
sentences is
with the leave of the trial court.
[3]
The state relied on the eyewitness evidence of Mr Motloung and of Mr
Memory Skhumbuzo Phiri (Mr Phiri). It is common cause
that Mr
Motloung, Mr Phiri and each appellant conducted illegal gold mining
activities at a mine in Matholeville, Roodepoort (the
mine), which
mine is near the shooting range. They are all originally from
Zimbabwe. Mr Motloung testified that he
had been at the
shooting range with the pick-up during the afternoon on 21 June 2012
at about 16.00, waiting for a friend by the
name of Sonny. He
noticed the deceased being chased by a group of nine (or more) people
at a distance of about 15 metres
from where he was standing next to
the pick-up. Amongst the group were the eight appellants, who
were all known to him from
their illegal mining activities and some
of them were his ‘home boys’ from Zimbabwe. The
first, second, fifth,
sixth and seventh appellants were, according to
him, armed with stones and the first and seventh appellants were also
carrying
‘reinforce’ or metal rods of just under a metre
in length. The third and fourth appellants each were armed with
a metal knobkierie and the eighth appellant with an object that
resembled a panga or an axe.
[4]
According to Mr Motloung, the group was throwing stones at the
deceased while chasing him. The deceased was running towards
the pick-up. Some stones hit the pick-up as well. The
first appellant was one of the persons who was throwing stones
at the
deceased at that stage. The deceased tried to get into
the pick-up, but then proceeded to run past Mr Motloung
and onto the
shooting range. Mr Motloung asked the first appellant what was
happening, but he did not respond. Mr Motloung
was frightened
and he ran away from the pick-up after the deceased and those who
were chasing him had passed him. He observed
the continuation
of the attack on the deceased from a distance, which he estimated to
have been about 15 to 20 metres. The
visibility, according to
Mr Motloung, was clear and it was ‘a clear place with no
trees’. Mr Motloung witnessed
the second and fifth
appellants throwing stones at the deceased on the shooting range, the
third appellant hitting him with a metal
knobkierie, the seventh
appellant hitting him with a metal rod while the deceased was lying
on the ground, the eighth appellant
hitting him with his panga and
the fourth appellant assisting them in the attack. The deceased
was left in a position where
he was seated on the ground with his
upper body leaning against a fence. Mr Motloung gained the
impression that he was dead.
[5]
The group, according to Mr Motloung, then returned to the pick-up,
hitting it with stones and iron rods and the eighth appellant
chopped
it with his axe or panga. Its windscreen, doors, headlights,
indicators, side indicators, rear lights, tyres, rims,
carburettor,
air cleaner and steering were damaged and they took the car radio,
speakers, battery, steering lock and Mr Motloung’s
keys.
He estimated the value of the damage to be about R12 000. The
deceased was afterwards taken to the Leratong hospital
by a person
named Madoda. Mr Motloung noticed that the deceased’s
forehead was injured and his cheek was bleeding.
It is common
cause that the deceased died in hospital on 23 June 2012 at 06:00 as
a result of the head injuries that he had sustained
during the attack
upon him on 21 June 2012, which included skull fractures.
[6]
Mr Phiri testified that on 21 June 2012 at the time in question he
had been sitting next to the shooting range sifting sand
in an effort
to retrieve gold. He, according to his initial evidence, was
with the deceased and Mr Motloung, but he added
that they were many
who were working there on that day. A group of around 20 men,
according to Mr Phiri, emerged and passed
him and those in his
presence; some were carrying stones, others axes and others
‘metals’. Amongst those
in the group whom he had
known were the first, second, fourth, seventh and eighth appellants.
The group, according
to him, was throwing stones at the
deceased and some of the men were ‘using’ axes. The
deceased was running away
in the direction of the pick-up, which,
according to Mr Phiri, ‘was parked very close’. The
deceased hid behind
the pick-up, but the group pursued him and he
then proceeded to run towards the shooting range.
[7]
According to Mr Phiri the group then split into two at the pick-up;
some ran after the deceased onto the driving range
and others
remained at the pick-up. Mr Phiri could not estimate the
distance between him and the pick-up, but he said that
he was able to
see what was happening at the pick-up. The shooting range, he
said, was not far from him and he ‘could
see clearly’
what was happening on the shooting range. After the group had
followed the deceased onto the shooting
range, they assaulted him and
then left. The deceased, according to Mr Phiri, was lying on
the ground when the group left.
Mr Phiri believed that the
group was going to come back to where he and those in his company
were working and they accordingly
left and returned after about 30
minutes. Mr Phiri did not testify about the further events
about which Mr Motloung testified
when the group returned to the
pick-up.
[8]
On 22 June 2016, Mr Motloung reported the damage to and theft from
his pick-up to the Roodepoort SAPS when a police statement
was taken
from him. Another police statement was taken from him at the
Roodepoort SAPS on 26 June 2012, also dealing with
the attack on and
killing of the deceased. Captain Eugene Pienaar, who was
stationed at the Roodepoort SAPS assisted the
investigating officer,
Constable Obed Senosi, in arresting the first and second appellants
on 26 June 2012 and the seventh appellant
on 28 June 2012. They
were pointed out to Cpt Pienaar by Mr Motloung prior to their
arrests. Cnst Senosi arrested the
third, fourth, fifth and
sixth appellants on 27 June 2012 and the eighth appellant on 15
February 2012. They too were pointed
out to Cnst Senosi by Mr
Motloung prior to their arrests. On 20 August 2012, Mr Phiri
attended an identification parade
.
It is common cause
that all the appellants, except the eighth appellant, were in the
line-up at the identification parade and it
is undisputed that Mr
Phiri pointed out the first, second, fourth and seventh appellants.
The eighth appellant was not yet
arrested at the time.
[9]
Each appellant denied any participation in the attack on the
deceased, the damage to the pick-up or the theft of items from
it on
21 June 2012. Each one denied being part of the group who
committed those acts. Except for the seventh appellant,
each
one denied being present at the shooting range at the date and time
in question: the first appellant testified that
he had been at
the mine sifting sand to retrieve gold, but not at the place where
the incident happened; the second appellant
testified that he
had been visiting a friend by the name of Ahkim in Roodepoort, who
had told him that the deceased was being assaulted
by people; the
third, fourth, fifth and sixth appellants each testified that they
had been at home; and the eighth appellant
testified that he had left
for Zimbabwe on 18 April 2012 and only returned in August 2012.
The seventh appellant testified
that he had been at the bushes of the
shooting range sifting sand for gold and in his company, amongst
others, was Siphiwe Moyo.
A large group approached him, Siphiwe
Moyo and those in their presence, looking for the deceased. The
seventh appellant gave
them false directions to where the deceased
had been and the group left, following his directions. The
seventh appellant
then ran away and went home. The seventh
appellant called Mr Siphiwe Moyo as a witness, but his evidence did
not advance
the seventh appellant’s defence.
[10]
The trial court concluded that the state had proved the guilt of each
appellant beyond a reasonable doubt on all three charges.
The
trial court held that they committed the crimes in the execution of a
common purpose. It accepted the evidence of Mr
Motloung
incriminating all the appellants and that of Mr Phiri incriminating
the first, second, fourth and seventh appellants.
It rejected
the exculpatory evidence of each appellant. The trial court
considered Mr Motloung a single witness in respect
of his evidence
implicating the third, fifth, sixth and eighth appellants. It
recognised that his evidence and that of Mr
Phiri were not without
criticism, but was satisfied that the truth had been told by Mr
Motloung despite the shortcomings.
The trial court held the
evidence of the state witnesses to be credible and acceptable.
It further held that Mr Motloung-
‘
. . . was a truthful, genuine
and reliable witness in his identification of not only accused 1, 2,
4 and 7 who were pointed out
at an identification parade by Phiri,
but also of accused 2, 3, 5, 6 and 8. Motloung knew the accused
persons for periods
of between three to five years, he lived in the
same area as them. He had a good opportunity to observe them as
they chased
after the deceased, he was not only in their close
proximity as they assaulted him, even at the car, but also spoke to
accused
1 and asked him what was happening. He observed them as
they continued chasing after the deceased into the shooting range
and
continued assaulting him there. He observed them when they came
back to the motor vehicle and started causing damage
to it by stoning
and hacking it.’
[11]
Approaching the evidence of Mr Motloung with the necessary caution
that should be applied to evidence of identification (see
S v
Mthetwa
1972 (3) SA 766
(A), at p 768A-C) and to that of a single
witness (
S v Sauls and Others
1981 (3) SA 172
(A), at pp 179G
– 180G), especially a single witness with regard to
identification (see
S v Miggell
2007 (1) SACR 675
(C) at
678d-f), I am unable to find that the trial court erred in its
acceptance of the evidence of Mr Motloung relating to the
events
which unfolded at and on the shooting range during the afternoon on
21 June 2012 and of his identification and incrimination
of the
first, second, seventh and eighth appellants. Counsel for the
appellants, in my view correctly, also conceded that
the first,
second, seventh and eighth appellants were properly and adequately
identified.
[12]
Mr Motloung identified and implicated the first, second, seventh and
eighth appellants in the police statement that had been
taken from
him at the Roodepoort SAPS on 26 June 2012, a few days after the
incident and after the deceased had died. He
was able to refer
the police to some distinguishing features of those four appellants.
The probability that his identification
of each one of them was
reliable is strengthened by the fact that they were known to him
beforehand. (See
R v Dladla and others
1962 (1) SA 307
(A) at 310C;
S v Kolea
2013 (1) SACR 409
(SCA), para
21.) It is common cause that Mr Motloung and the first, second,
seventh and eighth appellants knew each other
for a few years prior
to the incident on 21 June 2012, although the exact number of years
was in issue. They all were originally
from Zimbabwe and some
of them were Mr Motloung’s ‘homeboys’ in Zimbabwe.
They all undertook illegal gold
mining at the mine in Roodepoort.
Furthermore, the incident took place in broad daylight, Mr Motloung’s
view of the
group chasing the deceased had not been impeded, he was
in close proximity to the group, particularly when they ran towards
the
pick-up and passed him and onto the shooting range and he had
adequate opportunity for observation, both as to time and situation.
(See
S v Mthetwa
(supra), at 768A;
S v Ngcamu
and another
2011 (1) SACR 1
(SCA), para 11.)
[13]
Mr Phiri identified the first, second, fourth and seventh appellants
at the identification parade which was held on 20 August
2012.
They were also known to him for a few years before the incident on 21
June 2012. I have mentioned that the eighth
appellant was not
in the line-up at the identification parade. But Mr Phiri also
identified him as one of the persons who
was amongst the group that
chased and attacked the deceased. Leaving aside the fourth
appellant to whom I return, Mr Phiri’s
evidence was
corroborative of Mr Motloung’s evidence of identification of
the first, second, seventh and eighth appellants
up to the point
where the group, according to his evidence, split into two groups at
the pick-up; the one group chasing the
deceased onto the
shooting range and the other remaining at the pick-up, and damaging
it. Mr Phiri conceded that he was actually
unable to say who
remained at the pick-up and who continued chasing and attacking the
deceased. Mr Phiri left the scene when
the group left the
shooting range and he did not witness that group returning to the
pick-up where they, according to Mr Motloung’s
evidence, then
damaged and stole articles from it.
[14]
I have mentioned that a police statement was first taken from Mr
Motloung on 22 June 2016 when he reported the damage to and
theft
from his pick-up to the Roodepoort SAPS prior to the death of the
deceased on 23 June 2012. I take into account that
the purpose
of police statements is to obtain details of an offence in order to
decide whether or not to institute a prosecution,
they are frequently
not taken down with accuracy and completeness, there may be language
and cultural differences between the witness
and the police officer
who takes down the statement and not every error by a witness and
every contradiction affects his or her
credibility as a witness.
(See:
S
v Gqulagha
1990 (1) SACR 92
(A);
S
v Mafaladiso en Andere
2003 (1) SACR 583
(HHA); and
S
v Govender and Others
2006 (1) SACR 322
(ECD).)
Mr
Motloung spoke in Zulu and this statement was taken down in English
without any interpretation. The following was
inter
alia
noted
in this statement:
‘
THE Regtration of the CAR is
JLF495gp, NISSAN RED Open BAKKIE. Some OF the suspect are
unknown to ME as Batista, JESUS and
NDBEESta. And FOUR OF them I
don’t know them. THE total amount of the Damagesd
property is R7 100 – 00.’
In
this statement reference was only made to the first, second and
seventh appellants and not to the eighth appellant. But
a
reading of this statement satisfies me that the police officer who
took it from Mr Motloung was probably inexperienced in taking
down
police statements or at least inattentive, that it was not taken down
with accuracy and completeness, that there might have
been language
differences between Mr Motloung and the police officer who took it
down and that the trial court was correct in disregarding
the
contradictions between this police statement and his evidence in
court.
[15]
I am, however, not satisfied that Mr Motloung’s identification
and incrimination of the third, fourth, fifth and sixth
appellants
was reliable in the light of his previous inconsistent police
statement which he had made at the Roodepoort SAPS on
26 June 2012.
This the state counsel, in my view correctly, conceded.
[16]
In that police statement Mr Motloung was quite clear that the
deceased and four of the nine persons who chased after the deceased
had been known to him. He named them - the first, second,
seventh and eighth appellants – and gave a brief description
of
their distinguishing features. He expressly referred to the
other members of the group as ‘the other five unknown
black
males’ or the ‘other people that I don’t know’.
That police statement, different to the police
statement that had
been taken from Mr Motloung on 22 June 2012 when he reported the
damage to and theft from the pick-up to the
Roodepoort SAPS, is
comprehensive and coherent and it cannot be said that it was not
taken down with accuracy and completeness.
The inconsistencies
between that police statement and his evidence at the trial when he
also included the third, fourth, fifth
and sixth appellants as having
been part of the group in question cast serious doubt on the
reliability of his evidence identifying
them. It must be
accepted on the totality of the evidence that Mr Motloung and the
third, fourth, fifth and sixth appellants
were known to each other.
If they indeed formed part of the group that chased after the
deceased and attacked him one would
have expected Mr Motloung to have
said that to the police just as much as he had told the police about
the involvement of the first,
second, seventh and eighth appellants
who had also been known to him. The contradictions between that
police statement and his
evidence in court were not adequately
explained, are material to the issue of the third, fourth, fifth and
sixth appellants’
guilt and negatively impacts the reliability
of Mr Motloung’s identification and implication of them.
[17]
Mr Phiri corroborated Mr Motloung’s unsatisfactory evidence of
identification of the fourth appellant up until the point
where the
group chased after the deceased onto the shooting range. But Mr
Phiri was not a satisfactory witness at all.
His evidence
was not always clear and coherent and he contradicted himself and
also the evidence of Mr Motloung in several
material respects.
The trial court, in my view, should not have accepted his evidence
identifying and implicating the fourth
appellant.
[18]
Mr Phiri contradicted his evidence in chief when he said under
cross-examination that the deceased and Mr Motloung had not
been at
work on the day in question. He also contradicted his evidence
in chief when he said that he, Mr Phiri, had been
working with Beke
and Ndu on the occasion of the incident. He then contradicted his
evidence under cross-examination by saying
that the deceased and Mr
Motloung had been present, but that the deceased had not been
working. He further testified under
cross-examination that the
deceased had just been standing ‘on the other side’ and
that he was unable to say how far
away the deceased and Mr Motloung
had been from each other, because he, Mr Phiri, had been busy
working. He testified under
cross-examination that the deceased
and Mr Motloung each had been having a conversation with people known
to them and who had been
working when the group had been approaching
them. This evidence of Mr Phiri is irreconcilable with Mr
Motloung’s satisfactory
account of the events.
[19]
Mr Phiri contradicted his evidence in chief that the first, second,
fourth, seventh and eighth appellants had been amongst
the group of
men that followed the deceased onto the shooting range by saying that
the first and the fourth appellants had been
part of the group that
remained at the pick-up. Upon further cross-examination on that
aspect, Mr Phiri said:
‘
Well, I cannot say who was
there or who was not there as there were many people on (sic) that
place.’
And:
‘
Well, I cannot really point out
the people who actually attacked the deceased, but there was a point
in time where I saw them giving
chase to the deceased.’
[20]
Mr Phiri’s evidence of the group splitting at the pick-up is
irreconcilable with Mr Motloung’s evidence.
The deceased,
according to Mr Motloung, was running towards the pick-up while being
chased by the group, he tried to enter it but
instead continued
running onto the shooting range. Mr Motloung was frightened and
he ran away from the pick-up after the
deceased and those who were
chasing him had passed Mr Motloung at the pick-up. He observed
the continuation of the attack
on the deceased by the group on the
shooting range from a distance. The group returned to the
pick-up, ‘hitting’
it with stones and iron rods and the
eighth appellant chopped it with an axe or panga. This,
according to Mr Motloung, was
when the group also stole items from
the pick-up.
[21]
The trial court correctly in my view rejected the exculpatory
evidence of each appellant. Each one’s evidence had
material unsatisfactory features and the exculpatory versions of
particularly the first, second, seventh and eighth appellants
cannot
reasonably possibly be true in the light of the sufficiently strong
evidence that showed that the first, second, seventh
and eighth
appellants had in fact been part of the group that chased and
attacked the deceased, first to the pick-up and from there
onto the
shooting range. (See
R v Khumalo en Andere
[1991] ZASCA 70
;
1991 (4) SA
310
(A), at 327h.) The first, second, seventh and eighth appellants
were, in my view, correctly convicted of murder and of malicious
damage to property as charged. But on the totality of the
evidence the state failed to prove the guilt of the third, fourth,
fifth and sixth appellants on any one of the charges and the trial
court, therefore, ought to have acquitted them. It is
trite
that the trial court was obliged to consider the evidence as a whole
and such defects as there may be in the evidence of
the of the third,
fourth, fifth and sixth appellants do not materially assist the state
in discharging the
onus
if the evidence of the state witnesses
is open to serious criticism. (See
S v Jochems
1991 (1)
SACR 208
(A) at 211J.)
[22]
I now turn to the first, second, seventh and eighth appellants’
convictions of robbery with aggravating circumstances.
‘Robbery’, Streicher JA said in
Maneli v S
2009
(1) SACR 509
(SCA) para 6, ‘consists in the theft of property
by intentionally using violence or threats of violence to induce
submission
to its taking of the property’. In the present
case the first, second, seventh and eighth appellants and the men who
accompanied them obviously went back to the pick-up with the
intention to damage and to steal whatever they wanted to take from
it. But Mr Motloung, who at that stage was some distance away
from the pick-up and the group, did not resist the taking nor
were
the items stolen from the pick-up obtained by the use of violence or
threats of violence against the person of Mr Motloung.
The
evidence also does not establish that he submitted to the taking
because his will was overcome by fear. (See
LAWSA
Vol 6
First Reissue paras 313-315.) Theft being a competent verdict
on a charge of robbery in terms of s 260(d) of the CPA,
it follows
that the trial court ought to have convicted the first, second,
seventh and eighth appellants of theft instead of robbery
with
aggravating circumstances.
[23]
Finally the matter of sentence. The sentence of imprisonment
for fifteen years imposed upon each of the first, second,
seventh and
eighth appellants pursuant to their convictions of robbery with
aggravating circumstances must be set aside.
I consider a
sentence of imprisonment for a period of one year for each of the
first, second, seventh and eighth appellants appropriate
pursuant to
each one’s conviction of theft and for such sentence to run
concurrently with each one’s sentence of imprisonment
for three
years pursuant to the conviction of malicious damage to property.
[24]
In sentencing the first, second, seventh and eighth appellants on the
charges of murder and of malicious damage to property
the trial court
exercised its discretion judicially and the cumulative effect of the
prescribed minimum sentence of imprisonment
for life imposed by the
trial court for each one’s conviction of murder and of
three years’ imprisonment for
each one’s conviction of
malicious damage to property does not induce a sense of shock (see
S
v De Jager
1965 (2) SA 616
(A) at 629B.) All the relevant
factors and circumstances were well considered and duly taken into
account by the trial court.
It correctly held that there were
no compelling and substantial circumstances that warranted the
imposition of a lesser sentence
than the prescribed one for the
individual convictions of murder. I also agree with the trial
court that the criminal acts
‘. . . in the present case were
executed with brazen and callous brutality’. Interference
with the sentences
imposed for the murder and malicious injury to
property convictions is not warranted.
[25]
In the result the following order is made:
(a) The third, fourth,
fifth and sixth appellants’ appeals against their convictions
of murder (count 1), of robbery with
aggravating circumstances (count
2) and malicious damage to property (count 3) and against the
sentences imposed upon them pursuant
to their convictions succeed.
(b) The first, second,
seventh and eighth appellants’ appeals against their
convictions of murder (count 1) and of malicious
damage to property
(count 3) and against their sentences of imprisonment for life and of
imprisonment for three years imposed pursuant
to those convictions
are dismissed.
(c) The first, second,
seventh and eighth appellants’ appeals against their
convictions of robbery with aggravating circumstances
(count 2) and
against their sentences of imprisonment for fifteen years imposed
pursuant to such conviction succeed in part and
each one’s
conviction of robbery with aggravating circumstances (count 2) and
sentence pursuant to such conviction are set
aside and replaced with
a conviction of theft and a sentence of imprisonment for one year,
which sentence is to run concurrently
with each one’s sentence
of imprisonment for three years pursuant to his conviction of
malicious damage to property (count
3).
(d) The trial court’s
orders are set aside and replaced with the following order:
‘
(i)
Accused 1, Mr Batista Xolani Nkomo, is found guilty of murder as
charged (count 1), of theft (competent verdict on count 2),
and of
malicious damage to property as charged (count 3) and sentenced to
imprisonment for life pursuant to his conviction of murder
(count 1),
to imprisonment for one year pursuant to his conviction of theft
(count 2) and to imprisonment for three years pursuant
to his
conviction of malicious damage to property (count 3). The
sentence of imprisonment for one year pursuant to accused
1’s
conviction of theft (count 2) is to run concurrently with the
sentence of imprisonment for three years pursuant to his
conviction
of malicious damage to property (count 3).
(ii)
Accused 2, Mr Jesus Emmanuel Mavhunduse, is found guilty of murder as
charged (count 1), of theft (competent verdict on count
2), and of
malicious damage to property as charged (count 3) and sentenced to
imprisonment for life pursuant to his conviction
of murder (count 1),
to imprisonment for one year pursuant to his conviction of theft
(count 2) and to imprisonment for three years
pursuant to his
conviction of malicious damage to property (count 3). The
sentence of imprisonment for one year pursuant
to accused 2’s
conviction of theft (count 2) is to run concurrently with the
sentence of imprisonment for three years pursuant
to his conviction
of malicious damage to property (count 3).
(iii)
Accused 3, Mr Zamani Moyo, is found not guilty and acquitted on count
1 (murder, read with s 51 of Act 105 of 1997), on count
2 (robbery
with aggravating circumstances as defined in s 1 of the Criminal
Procedure Act 105 of 1997) and on count 3 (malicious
damage to
property).
(iv)
Accused 4, Mr Malusi Moyo, is found not guilty and acquitted on count
1 (murder, read with s 51 of Act 105 of 1997), on count
2 (robbery
with aggravating circumstances as defined in s 1 of the Criminal
Procedure Act 105 of 1997) and on count 3 (malicious
damage to
property).
(v)
Accused 5, Mr Khulumani Dube, is found not guilty and acquitted on
count 1 (murder, read with s 51 of Act 105 of 1997), on count
2
(robbery with aggravating circumstances as defined in s 1 of the
Criminal Procedure Act 105 of 1997) and on count 3 (malicious
damage
to property).
(vi)
Accused 6 Mr Khumbulani Ngwenya, is found not guilty and acquitted on
count 1 (murder, read with s 51 of Act 105 of 1997),
on count 2
(robbery with aggravating circumstances as defined in s 1 of the
Criminal Procedure Act 105 of 1997) and on count 3
(malicious damage
to property).
(vii)
Accused 7, Mr Thebe Maxwell, is found guilty of murder as charged
(count 1), of theft (competent verdict on count 2), and
of malicious
damage to property as charged (count 3) and sentenced to imprisonment
for life pursuant to his conviction of murder
(count 1), to
imprisonment for one year pursuant to his conviction of theft (count
2) and to imprisonment for three years pursuant
to his conviction of
malicious damage to property (count 3). The sentence of
imprisonment for one year pursuant to accused
7’s conviction of
theft (count 2) is to run concurrently with the sentence of
imprisonment for three years pursuant to his
conviction of malicious
damage to property (count 3).
(viii)
Accused 8, Mr Noble Nyathi, is found guilty of murder as charged
(count 1), of theft (competent verdict on count 2), and
of malicious
damage to property as charged (count 3) and sentenced to imprisonment
for life pursuant to his conviction of murder
(count 1), to
imprisonment for one year pursuant to his conviction of theft (count
2) and to imprisonment for three years pursuant
to his conviction of
malicious damage to property (count 3). The sentence of
imprisonment for one year pursuant to accused
8’s conviction of
theft (count 2) is to run concurrently with the sentence of
imprisonment for three years pursuant to his
conviction of malicious
damage to property (count 3).
WRIGHT
J (dissenting)
[26]
I respectfully disagree with my learned brothers to some extent.
[27]
The first state witness was Mr Motloung. He was near a shooting range
in Roodepoort. At about 4pm on 21 June 2012 he was standing
next to
his car. He saw his friend Bheki Jafta, the deceased, being chased by
a group of about nine people. Included in the group
were all of the
appellants. He knew all of the appellants as co-workers mining gold
illegally, or otherwise associated with that
industry, which work
occurred close to the shooting range. The persons in the group were
armed with different items like stones
and a kind of metal bar about
two thirds of a meter long. Appellant 1 had a stone in his right hand
and a metal bar in his left
hand. Appellant 2 had stones in both
hands. Appellant 3 had a metal knob-kierie. Appellant 4 was
likewise armed. Appellant
5 was in possession of stones. Appellant 6
had stones in both hands and appellant 7 was in possession of a metal
bar and a stone.
Appellant 8 had a panga or an axe.
[28]
The group chased the deceased passed Mr Motloung and to the shooting
range. Mr Motloung asked appellant 1 what was happening
but got no
reply. The deceased had tried to seek refuge in Mr Motloung’s
car but could not enter the car and so he ran on.
Appellant 1
threw stones at the deceased and at Mr Motloung’s car. Mr
Motloung was not threatened but he was in danger of
being hurt
because of stones that were being thrown at the deceased who was very
close to Mr Motloung. Mr Motloung’s car
was damaged and various
items like keys, the battery, the steering lock and radio were taken
by members of the group. In particular,
a hammer was taken from the
car by the group.
[29]
Mr Motloung did not see appellant 1 use either stones or the metal
bar he was carrying other than appellant 1 throwing a stone
at the
deceased. Appellant 2 was throwing stones at the deceased. Appellant
3 assaulted the deceased with a knob-kierie. Appellant
4 assaulted
the deceased. Appellant 5 threw stones at the deceased while the
latter was lying on the ground. Appellant 6 was hitting
the deceased
with stones. Appellant 7 hit the deceased with a metal bar as the
latter was lying in the ground. Appellant 8 hit
the deceased with a
panga.
[30]
The attack on Mr Motloung’s car, for the most part, occurred
after the attack on the deceased.
[31]
Mr Motloung pointed out appellant 2 to the police on the street
shortly after the crime had been committed. Appellant 2 was
arrested
by Captain Pienaar. After the arrest of appellant 2, Mr Motloung
proceeded with the police and appellant 2 to the residence
of
appellant 1, which residence was pointed out by appellant 2.
Appellant 1 was then pointed out to the police by Mr Motloung.
Appellants 3, 4, 5 and 6 were arrested on the same day. Appellant 4
had been pointed out to the police on the way to appellant
1’s
residence when Mr Motloung saw appellant 4 washing gold. Appellants
3, 5 and 6 were with appellant 4 and were also arrested.
[32]
Appellant 7 was not at home when Mr Motloung and the police went to
arrest him but shortly thereafter the police received a
call that
appellant 7 was at home. When Mr Motloung and the police arrived at
the home of appellant 7 they found appellant 7 and
the hammer that
had been taken from Mr Motloung’s car during the attack.
[33]
Mr Motloung was unable in evidence to describe any particular
identifying features of the hammer which showed that it was his.
The
hammer is of the tomahawk type and is commonly used in the illegal
gold mining industry.
[34]
According to Mr Motloung, appellant 8 was arrested at his house just
as he was trying to run away.
[35]
If Mr Motloung’s memory served him correctly, appellants 1 and
2 were arrested on the day of the crime and appellants
3, 4, 5, 6 and
7 were arrested the next day. Mr Motloung was not sure of the date of
appellant 8’s arrest.
[36]
Mr Motloung was not present at a subsequent identity parade.
[37]
At one point in his evidence he had mixed up, momentarily, the names
of appellants 5 and 6. In my view, this is insignificant
in that all
the appellants were known to Mr Motloung and the first names of
appellants 5 and 6, Khulumani and Khumbulani might
understandably be
momentarily confused.
[38]
Mr Motloung’s evidence gives me much cause for concern. On 22
June 2012, that is the day after the crimes, and at about
9:30am Mr
Motloung made a statement to the local police. In that statement he
said that he saw about seven men running after the
deceased. He
stated further that he recognised appellants 1, 2 and “Nobeesta”.
He stated that he did not know the other
four. Mr Motloung did not
explain in evidence the startling discrepancy between his clear
identification in the witness box of
all 8 appellants and his clear
statement to the police the day after the crimes. In this statement
Mr Motloung speaks of seven
men running after the deceased, Mr Jafta,
but there is no mention of any attack on Mr Jafta. During
cross-examination Mr Motloung
said that the day after the crimes he
went to the police station to report the damage to his car, and not
to report the murder
of the deceased. He said in evidence that
when he mentioned the murder to the police they told him that the
victim, Mr Jafta,
who at that time was in hospital, could lay a
charge of assault later on.
[39]
On 26 June 2012, that is five days after the crimes, Mr Motloung made
another written statement to the police at Roodepoort.
In it he
stated that he knew four of the approximately nine men involved in
the crimes namely appellants 1, 2, 8 and “Turbie”.
This
latter name may be a reference to appellant 7 whose first name is
Thebe. In evidence Mr Motloung did not explain the
striking
discrepancy between his ability to name only four persons in his
second statement and his apparent ability to identify
all eight
appellants during the trial.
[40]
The ability of Mr Motloung to name only some of the attackers in his
statements to the police impacts seriously on the reliability
of his
dock identifications of all of the appellants and not only of those
whom he was not able to name in his statements to the
police.
[41]
Mr Phiri testified next for the state. On 21 June 2012, between
2:30pm and 4pm Mr Phiri was with the deceased and Mr Motloung.
Mr
Phiri saw a group of about twenty people. The group passed Mr Phiri
and went to the deceased. Members of the group carried stones,
axes
or metal bars. Appellants 1, 2, 4, 7 and 8 were part of the group.
The group chased the deceased, pursuing him behind Mr Motloung’s
car and then to the shooting range. Some members of the group
remained behind and hit the car. Mr Phiri could see clearly
the
group assaulting the deceased at the shooting range. Mr Phiri knew
appellants 1, 4, 7 and 8 as illegal gold mine workers.
[42]
An identification parade was held on 20 August 2012, some two months
after the incident. Mr Phiri attended the parade. The
relevant
identification parade form, SAPS 239, forms part of the record but
for at-least one missing page. Paragraphs 18 –
23 of the SAPS
239 appear to be missing. Paragraph 24 records the names of only
twenty persons taking part in the parade. Photo
9 refers to a
twenty-fourth person standing in the line. Photo 10 refers to a
twenty-seventh person standing in the line. Photo
3 refers to “
fourth
to seventh
” persons standing in the line. This
description is incorrect if photo 2 is correct with its description
of the “
first three black males
” from the left
side. Other photographs of the persons in the line have incorrect
descriptions of position in the line.
[43]
In paragraph 25(1) of the SAPS 329 form it is recorded that the
person standing at position 21 was identified by Mr Phiri.
Nowhere on
the form is there any mention of a person standing at position 21.
Under paragraph 25(1) it is further recorded
that the persons
standing at positions 17 and 8 were identified. Standing at position
17, according to paragraph 24 and if the
position is correct given
the general confusion in the recording and presentation of what
happened at the ID parade, was appellant
4, Malusi Moyo. Standing in
position 8, according to paragraph 24, if that is where he actually
stood, was appellant 2, Emmanuel
Jesus Mavhunduse.
[44]
Paragraph 24 records the names of twenty persons in the line-up.
Paragraph 25(1) records that the persons standing at
places 21, 17
and 8 were identified. According to paragraph 24 there was no
twenty-first person. In paragraph 25(2) the names of
four persons are
written down as having reacted normally during the pointing out.
These persons are Maxwell, Malusi, Xolani and
Emmanuel. Presumably
these are appellants 7, 4, 1 and 2 respectively. However, no person
described as Maxwell is recorded as having
taken part in the parade
in paragraph 22 (or more particularly places 12 – 20, places 1
– 11 being part of the missing
page) or in paragraph 24 which
records the positions of the twenty persons recorded as standing in
the line-up.
[45]
Only appellants 2 and 4 are recorded in paragraph 24 as having been
in the line-up and in paragraph 25(1) as having been pointed
out
after a specific amount of time and in paragraph 25(2) which
sub-paragraph records reaction during the pointing out.
[46]
Under cross-examination Mr Phiri conceded that he could not say “
who
was there or who was not there as there were many people at that
place
”. He also conceded that “
I cannot
really point out the people who actually attacked the deceased, but
there was a point in time where I saw them giving chase
the
deceased
”.
[47]
In cross-examination he conceded, when asked how he could have
observed both the actual attack at the shooting range on Mr
Jafta and
the attack on Motloung’s car, that “
I was in shock, so
my eyes were running all over the place, so I could see both
scenes
.”
[48]
Captain Pienaar testified. He arrested appellants 1 and 2 on 26 June
2012 at the instance of, and on their pointing out by
Mr Motloung.
Likewise, appellant 7 was arrested on 27 June 2012.
[49]
A hammer was confiscated from the home of appellant 7 on his arrest.
Appellant 7 had claimed then that the hammer was his and
used for
crushing rock. Captain Pienaar told the court that Mr Motloung had
identified the hammer as his by its unique looks, particularly
the
length of the handle, the cut of the handle and an initial that was
on the hammer. Be that as it may, when Mr Motloung testified
he was
unable to point to specific identifying features in the hammer.
[50]
Appellant 1 testified saying that he was working at the relevant time
at a dam in Roodepoort, sifting sand. He did this from
about 10am to
5pm. He was not part of the group which attacked the deceased. He
testified that perhaps Mr Motloung had implicated
him falsely because
in 2011 Mr Motloung had stabbed appellant 1’s younger brother
Praymore Nkomo. Appellant 1 knows appellants
2, 3, 4 and 8. He does
not know appellants 5, 6 and 7. During cross-examination appellant 1
stated that his brother had been stabbed
earlier, not only by Mr
Motloung but also by Mr Phiri, the latter two having acted together.
[51]
Appellant 2 testified. At the time of the crimes appellant 2 was in
Hillbrow. He returned to the Roodepoort area on the
afternoon
on the 21
st
of June 2012 between 3:30pm and 4pm. He was
with a fellow illegal gold miner named Akhim. He left Akhim’s
place at about
4pm. At Akhim’s place he had heard, from Akhim,
that the deceased, whom he knew, was being assaulted by people. He
did not
ask Akhim how Akhim knew. Appellant 2 maintained his
innocence when it was put to him in cross-examination that he could
not have
learnt of the attack from Akhim as the attack was happening
when appellant 2 claims he was at Akhim’s place. Appellant 2
admitted in cross-examination that his alibi had not been disclosed
in his bail application. Akhim did not testify, apparently on
the
grounds of unavailability.
[52]
Appellant 3 testified. He was sleeping at home when the attack took
place. He had been working underground until about 11am.
He was
tired, went home and went to bed. He does not know the deceased. He
saw Mr Motloung for the first time when he was arrested
on 27 June
2012. He had been pointed out to the police by appellant 1,
rather than by Mr Motloung. He was pointed out by
appellant 1 after
Mr Motloung had told appellant 1 to point out appellant 3. He
conceded in cross-examination that his evidence
about his arrest had
not been put to Mr Motloung when the latter was cross-examined. He
maintained that he did tell his attorney.
[53]
It happens, not infrequently in trials, both civil and criminal that
while a litigant is being cross-examined, she is challenged
on the
fact that the testimony given by the litigant had not been put to
earlier witnesses. The duty to put a version derives from
the
accepted fact that a party may not at the end of the trial argue that
a witness’ contrary evidence on a point is to be
disbelieved
and the first party’s evidence accepted unless the first
party’s evidence will have been put to the witness.
The
inference sought to be drawn against the litigant being
cross-examined when a version was not put, is that the testimony is
a
recent fabrication. The logic here is that if the testimony was not
recent fabrication it would have been put to the earlier
witness.
What litigants tell and do not tell their lawyers in consultation
with litigation in mind is privileged. The privilege
is that of the
litigant. The litigant, for example appellant 3 in the present case,
may waive the privilege but very often this
appears to happen without
the litigant knowing of the right. The lawyer for the litigant,
sitting in court while her client is
being cross-examined is in a
difficult position. It may be that the lawyer may not waive the
privilege without the authority
of the client. Compare
R v Matonsi
1958 (2) SA 450
AD. If the lawyer does nothing when a litigant, like
appellant 3, claims that the lawyer was told in consultation of a
fact that
should properly have been put to an earlier witness in
cross-examination the lawyer appears to admit to having made an
error. If
the lawyer stands up and says that the fact was not told to
the lawyer in consultation, the lawyer drives a wedge between herself
and client.
[54]
In the evidence of the appellants generally, there are numerous
instances where the appellants’ evidence is challenged
along
these lines. The legal representatives of the appellants concerned
remained silent. In doing so they maintained their clients’
privilege. It leaves open the question of whether the version not put
to earlier witnesses is in fact recent fabrication.
[55]
Appellant 4 testified. On 21 June 2012 he was underground. He had
been there since the day before. On the morning of 21 June
2012 he
came up from underground and went straight to the crushing place.
Appellant 3 had come up from underground early on the
morning of 21
June 2012. Appellant 3, who had been with appellant 4 had told the
latter that appellant 3 had come up from underground
about 11am. The
crushing place is very close to where appellant 4 resides. After
leaving the crushing place appellant 4 went home,
bathed, ate and
went to sleep. He woke up at night. He was arrested on 27 June
2012. Appellant 4 was pointed out by appellant
1. Mr Motloung was
told by the police to point out appellant 4 and appellants 1 and 3.
Appellant 4 does not know the deceased.
In cross-examination
appellant 4 stated, in my view implausibly, that he and appellant 3,
with whom he had shared a cell had never
discussed the matter.
Appellant 4 could not explain why appellant 3 had not given testimony
about the two of them having come up
from underground together.
[56]
Appellant 5 testified. At about 4pm on 21 June 2012 he was at home.
He had not worked that day although sometimes he does work
mining
illegally. He was not part of the attacking group and did not know
the deceased. When he woke up on the morning of 27 June
2012 he went
and met appellant 3 and appellant 4. This was at the tap where sand
is washed for gold. The police arrived and he
was arrested.
Appellant 1 pointed out appellants 3 and 4. Appellant 5 was arrested
simply because he is a Zimbabwean. Appellant
5 was not pointed out at
an identification parade. He testified that Mr Motloung never pointed
him out, even in court. (This latter
testimony was incorrect as
appellant 5 had been directly identified in court by Mr Motloung).
[57]
Appellant 6 testified. He woke up early on the morning of 21 June
2012 and went to the top of a hill to pray. That was at about
6am. He
prayed for about two hours. He went straight home afterwards,
arriving shortly after 8am. He went back to sleep, woke up
and then
washed his car. He then stayed at home and rested. He was alone
on the day in question. He was present at the identification
parade
in August 2012. Mr Phiri did not point him out at the parade.
He said in cross-examination that his alibi defence
had been told by
him to his lawyer but that it had not been put to the relevant state
witnesses.
[58]
Appellant 7 testified. At about 4pm on 21 June 2012 he was at home.
He was with a person named Siphiwe. On the day in question
he had
been at the bushes of the shooting range with Siphiwe and a person
named Noktula sifting sand for gold. That day, a group
of about sixty
people had come towards the three of them. He did not know any
persons in the group. None of the appellants were
part of the group.
They were looking for the deceased. Appellant 7 told them that he did
not know where the deceased was. Nevertheless,
he directed them,
wrongly and on purpose, towards a dam. Appellant 7 then ran away to
his house leaving Siphiwe and Noktula behind.
He did not witness the
assault on the deceased.
[59]
Appellant 7, in cross examination claimed that he had given the group
wrong directions because he was scared. In the same breath
he said
that he intended to run to the deceased to warn him that the group
was looking for him. Appellant 7 claimed, in my view
somewhat
implausibly, not to be able to say if the group was armed.
[60]
Siphiwe Moyo testified for appellant 7. He said that on 21 June 2012
he last saw appellant 7 between 11am and 2pm. This evidence
does not
operate as an alibi as the events in question occurred after 2pm.
[61]
Appellant 8 testified that he had left for Zimbabwe on 18 April 2012
and returned in August 2012. He was an illegal immigrant
to South
Africa and did not have any passport. He made a vague reference to a
person, Bheki Mpofu whom he suggested could confirm
his alibi.
Under cross-examination, even on appellant 8’s version it
turned out that Bheki Mpofu would not be able
to confirm the alibi.
[62]
Generally speaking, none of the appellants gave convincing testimony.
But they do not have to convince as they have no onus.
So long as
their testimony is reasonably possibly true they are entitled to be
acquitted. The evidence of the state, considered
in the light of all
the evidence is unreliable to a worrying degree. The evidence of the
appellants is in my view reasonably possibly
true, if only just,
given the weaknesses in the state’s case.
[63]
I would have allowed the appeals of all eight appellants on all three
counts.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
G.
WRIGHT
JUDGE
OF THE HIGH COURT
W.H.G.
VAN DER LINDE
JUDGE
OF THE HIGH COURT
Date
of hearing: 15 September 2017
Date
of judgment: 19 September 2017
Counsel
for the appellants: G.Y. Sidwell
Instructed
by: Legal Aid South Africa, Johannesburg
Counsel
for the state: J.M. Tloubatla
Instructed
by: Director of Public Prosecutions, Johannesburg