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[2019] ZAGPJHC 432
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S v Mhlakaniphiseni (097/2018) [2019] ZAGPJHC 432 (13 September 2019)

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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO.:097/2018
THE
STATE
And
SHEZI
MANDLA MHLAKANIPHISENI
JUDGEMENT
MOLAHLEHI,
J
Introduction
[1]
The accused, Mr Shezi Mandla Mhlankaniphiseni, was arraigned before
this court on the charges of robbery with aggravating circumstances,

murder, attempted murder and contravention of the
Firearms Control
Act of 2000
. The charge of robbery is read with the provision of s 1
of the Criminal Procedure Act ( Act number 51 of 1977 ) read with the
provisions of s 51 (1) of the General Law Amendment Act ( Act number
105 of 1997and Schedule 2 of Act 105 of 1997and further read
with ss
92 and 280 of the Criminal Procedure Act . The two charges of murder
are to be read with s 51 (1) and Schedule 2 of the
CPA and further
read with  ss 92 (2) , 257, 258 and 270 of  Act 51 of 1977.
[2]
The accused was warned about the minimum sentencing regime that may
apply if convicted of the murder charges and or the robbery
with
aggravating circumstances. He pleaded not guilty to all the charges
and made a statement in terms in terms s 115 of the CPA,
in terms of
which he denied all the allegations against him. He also made several
admissions in terms s 20 of the CPA which were
read into the record.
[3]
The incident relating to the alleged robbery, murder and attempted
murder occurred on 10 November 2017 at Sams hardware store
(the
store).
[4]
In support of its case, the State presented evidence of the following
witnesses:
[5]
Mr Andries Makola
(Andries), who testified about events
leading to the shooting. He also testified about what happened on the
day in question and
about the identity of the accused.
[6]
Andries testified that on Friday, 10 November 2017, the incident
related to the charges proffered against the accused occurred
from
the time the store was re-opened after lunch. The store was reopened
upon the return of the owner from the afternoon prayer.
[7]
After the opening of the store, Andries proceeded to the security
door at the counter. He was at that point stopped by the accused,
who
referred to him as the "uncle." The accused told him to
stop because he (the accused) and the other person he was
with
"wanted to work." He was at that stage about to exit the
store through the glass door when the accused produced
a firearm and
pointed it at him.
[8]
At the stage the accused pointed a gun at him, Daniel Netshithuthuni
(Daniel) one of the employees at the store, was at the
security gate.
He was aware that Daniel also had a firearm. He seemed to have been
concerned that Daniel may confront the accused
and his
co-perpetrator. He signalled to Daniel to comply with the instruction
of the accused that they must return back into the
store. Daniel
complied, and both entered the counter area, followed by the accused,
walking towards where Mr Zaheere, the owner
of the store, was seated.
[9]
After passing, Zaheer, the accused demanded money, seemingly in an
aggressive manner. Zaheer told him to "relax" and
took
money in the money bag and threw it on the floor. At that point,
Daniel turned, looked back and took out his firearm. Andries

immediately whispered to Daniel to wait a bit as he was scared that
there would be a shoot-out in the store.
[10]
The fear of a shoot-out materialized immediately after Andries
whispered to Daniel not to produce his firearm. Gunshots were
shortly
after that fired in the store. In the process, Vernon and Daniel were
fatally wounded, and Zaheer seriously injured but
survived the
injury.
[11]
After the shooting, the incident was reported to the police who
arrived after some time.  Andries and Daniel's sister,
took him
(Daniel) to the nearest fire station in a van where they were
informed on arrival that he had passed away.
[12]
Although he did not see the co-perpetrator shooting Daniel, believed
it was him because of the manner he appeared to have been
shot.
[13]
Concerning the issue of the identification of the accused, Andries,
described him as being slightly taller than him, was not
‘that
dark but was coffee-coloured in complexion’. He had a short and
curly hair, which protruded below the woollen
hat he was wearing. The
hairstyle was what he referred to as the "Shembe Church"
hairstyle. He was wearing a work jacket.
In evidence in chief, he
stated that he could not describe how the co-perpetrator was dressed.
However, during cross-examination,
he stated that he was wearing an
overall jacket whose colour he could not recall. He persisted during
cross-examination that the
accused was the person who fired the
gunshots on the day in question. The incident took about seven
minutes, and it was during
daylight and was able to observe the
accused at the entrance of the store, when he proceeded to the
security door and when produced
the firearm.
[14]
Mr Mandla Sibanyoni,
(Mr Mandla) testified that he was at the
back of the store when he heard gun shots. He then heard the owner of
the store calling
for help. He did not see who was firing the shots.
[15]
Mr Sifiso Gumede
(Sfiso), also an employee at the hardware
store, testified that after the opening of the store at about 13h30,
he went behind the
counter to serve customers. He was with Andries,
David, Daniel and Vernon at the counter.
[16]
He further testified that while attending customers at the counter he
suddenly felt somebody grabbing him at the back. He looked
and saw
the accused who demanded money. The accused had a gun which he poked
into his ribs.
[17]
Zaheer, who at the time was seated on a chair, pleaded with him not
to shoot. He (Zaheer) opened the till, took money out and
threw it on
the floor. The accused enquired from him what he was doing in
throwing the money on the floor. After that, there were
gunshots
fired inside the store.
[18]
He saw the accused seated on the floor outside the store after the
shootings. He was wearing a blood-stained fawn T-shirt.
[19]
Sfiso further testified that after the shootings and while inside the
store, he heard people outside the store screaming and
saying that
the person (responsible for the shootings) ran towards the direction
of the railway line. He then joined and followed
the crowd to see
where the accused had gone to. He met with the police outside the
store.
[20]
After meeting with the police, they ran towards the railway line
which, according to him, is not very far from the store. They

proceeded beyond the railway line and found the accused seated on the
ground in the informal settlement. He was not wearing the
clothes he
had when he was in the store and also did not have his hat on. He was
however still wearing the T-shirt he had when
he was in the store,
but at that time the T-shirt was blood-stained.
[21]
He testified during cross-examination that he did not see the two
robbers enter the store. He further stated that on arrival
at the
informal settlement where the accused was seated on the ground, he
pointed him out to the police as the person who fired
gunshots in the
store.
[22]
About the identity of the accused Sfiso testified that he was able to
look and observe the accused at a close range. He saw
him for nearly
a minute. The fluorescent lights illuminated the store. He described
the accused as being of light complexion and
had loops on his ears.
He was wearing a striped T-shirt and a work suite and a black hat.
During cross-examination, he persisted
that the robbery took place
after they entered the store. And throughout that process, he was
behind the counter including at the
point when the accused pulled him
and pointed a firearm at him.
[23]
He also testified that at some point after the shooting, he saw the
accused seated at the door with blood on him. He did not,
however,
see him stand up and walk away. He only realized that he was no
longer there.
[24]
Sfiso conceded, during cross-examination, that he contradicted
himself about what he said in his statement to the police.

(para 8 of his statement). This relates to the number of
robbers who entered the store on the day in question. His explanation

for the contradiction is that he concentrated on the accused and not
his perpetrator during the robbery.
[25]
The other issue raised with Sfiso relates to the statement he made to
the police. He said he observed the accused standing
next to him, but
in court, said he saw him after his arrest by the police. He
explained that at the time of making the statement
to the police, he
was still traumatized.
[26]
Sfiso persisted during cross-examination that he pointed the accused
to the police when he found him seated in the informal
settlement.
[27]
Mr Joas Chipote,
an employee of another store next to Sams
hardware store situated at number 101 Union road, Kliptown, testified
that on the day
in question, 10 November 2017 at 13h50, he was
outside the store when he heard two gunshots. He then ran into the
street to see
what was happening.
[28]
He saw two men running on the street one of them holding a gun. One
of the men was wearing a blue work suit and a black winter
hat and
blue jeans. The other one had a blue overall.
[29]
The men ran towards the railway line. The train came as they were
about to cross the railway line and thus had to wait. After
the train
passed, they crossed the railway line and walked across to the
informal settlement, known as "Majampasporo."
[30]
After observing the two men cross the railway line, Chipote went back
to the store. He then heard people screaming about the
arrest of the
robber.  On arrival at the scene, he found one of the men seated
and his hat and his work suit were next to
him.  He described
the man as being tall, light complexion and had a muscular body.
[31]
During cross-examination, he denied that the accused had dreadlocks
and stated that he had an Afro-hair. He described the accused’s

hair on the day in court as being the same as it was on the day
of the arrest.
[32]
Mr Zaheer Abdul Moosa Rehman
(Zaheer), who as stated earlier,
is the owner of the hardware store where the robbery and murder took
place, described where the
hardware store is situated - opposite the
Soweto hotel and on the left thereof is Cavier Electronic shop. He
also testified that
there are eight CCV cameras installed in the
store and described where they are situated.
[33]
He testified that on his return from the Mosque, he instructed one of
his employees to open the store and after that, he went
behind the
counter with Sifiso, Andries and Daniel- Venon, joined him and sat at
the opposite side of the counter.
[34]
Soon after the arrival of Vernon, he heard Sefiso calling him
(Zaheer), and when he looked around, he saw an unknown person

standing next to him on his left-hand side. The unidentified man who
pointed a firearm at him was about a metre away from him.
He observed
him for less than a minute.
[35]
The robber then demanded money which was in a bag. Zaheer took the
bag and threw it on the ground. The robber enquired as to
what he was
doing by throwing the money bag on the ground. The money handed to
the robber was in the sum of R9000,00.
[36]
After handing the money to the robber, Zaheer suddenly heard gunshots
whose direction he could not tell. He then tried to get
off the chair
but was shot in the face on the left-hand side before he could do so.
He fell and hit his head against steel stand.
The gunshots continued
for some time as he lied down, pretending to be dead. As he was lying
down, he saw Vernon and Daniel also
lying on the ground but did not
see the accused. He was after that taken to the hospital and was
admitted for one day.
[37]
He described the accused as a person who had ear lopes with a light
complexion, well build and was wearing either a blue or
green
overall.
[38]
Zaheer attended the identity parade of those suspected of the robbery
at the Diepkloof police station. He could not state with
certainty
that the accused is the person he pointed out at the identity
parade.  He explained that he was still traumatized
as the
parade was done soon after the incident and was still under
medication.
[39]
He stated that the reason he was able to identify the accused in
court was that he had calmed down and had the opportunity
to reflect.
Although he had discussed the incident with the employees, he did not
consider his identity with them. He could neither
recall the features
of the accused's hair nor could he remember whether he had a hat on.
The main feature through which he could
identify the accused were the
holes in his ears. He could not say whether he saw the holes at the
parade as the police refused
to allow him to get closer to the glass
that was dividing where he was with the suspects.
[40]
Sergeant Sekeleni,
of the Kliptown SAPS also part of the
Visible Police Unit stated that he was with Warrant Officer Mathebula
on the day in question,
10 November 2017 at 13h45. He was attending a
complaint from a member of the community. He then saw a group of
people on Union
road, calling on W/O Mathebula to come to where they
were. He at the same time received a call from their commander
informing them
that there was a robbery underway at the store.
[41]
They proceeded to the store where on arrival they found Sifiso
standing outside the store. He informed them that one of the
robbers
had run towards the railway line. He ran with him ( Sifiso) to the
direction of the railway line.
[42]
The accused was found seated not far from the railway line in the
informal settlement. Members of the community who were angry
at what
he was alleged to have done surrounded him.
[43]
The accused was found seating on the ground leaning towards his right
and appeared to be in pains. He was wearing a blue jean
and a
blood-stained T-shirt.
[44]
W/O Mathebula wanted to call an ambulance but was concerned that the
crowd would attack the accused. He decided not to wait
for the
ambulance but to arrest and took him (the accused) to the police
station.
[45]
Upon reaching the accused, Sfiso pointed him as the person
responsible for the robbery at the store.  After his arrest,
his
constitutional rights were explained and then driven to the police
station.  He was at the police station, searched and
a cell
phone, found on him was taken and placed in a forensic bag. (PAD
0016709). The pair of gloves were found at the scene where
the
accused was seated.
[46]
W/O Mathebula
of the Visible Police Unit at Kliptown police
station essentially confirmed what Sgt Sekelini stated. She testified
further that
at the time of the arrest, the accused was wearing a
brownish T-shirt with strips and was wearing blue jeans.
[47]
W/O Mathebula testified during cross-examination that Sfiso told her
that there was only one suspect who went the direction
of the railway
line.
[48]
Mr Andries Riad
is the owner of Kabir Electronics based at
Kliptown, assisted the SAPS with the footage of the CCTV footage
taken from the cameras
of his store. Refiloe, an IT specialist,
developed the footage of what happened on 10 November, from 13h45 to
13h55.
[49]
Col Maphoto
of the SAPS, Kliptown testified about the hand
gloves found near the railway line and not far from the accused was
found seated.
In my view, the evidence about the hand gloves
does not add any value in the consideration of this matter because
Col Maphoto
could not say how it related to the accused and the
robbery.  In other words, he could not say how the gloves ended
up where
they were found.
[50]
W/O Mthombeni
of the SAPS testified that on the day in
question, he heard over the two way radio that there was robbery at
the store. He proceeded
to the scene where, on arrival, he inquired
from the owner as to what happened. A gun and spent cartridges were
pointed out to
him. The deceased person who had been shot was lying
in the store.
[51]
Mr Mandla Moorosi
, (Mandla) the cousin of, Thabiso Moorosi
(Thabiso) one of the suspects, testified how a police officer
approached him at his home
and inquired about Thabiso. The police
said they were looking for him (Thabiso) because he had committed a
crime.
[52]
Mandla informed the investigating officer that Thabiso passed away
and showed him his death certificate. He also gave him the
cell phone
of Thabiso being […].
[53]
Cpt Moodley
of the Forensic Pathologist-Scientific Analysis
testified as an expert. He holds a Bsc degree and has three years of
experience
in analysing gunshot residue. He explained how the
characteristics of gunshot residue originating from the prime of a
gun can be
identified.
[54]
Capt Moodley analysed the samples which had been given to him by the
investigating officer. The sample tested negative for
gunshot
residue. This evidence must be rejected without much ado for it
provides no probative value in the resolution of this matter.
[55]
W/O Tefo Tshepo Ndlovu
, testified as an expert on video
footage analysis. He created a photo album from the video footage and
analysed each of the pictures
taken from the video footage.
[56]
Capt Mokhajoa
of the SAPS, Silverton ballistic unit testified
and confirmed the contents of his affidavit in terms of s212 of the
CPA. He testified
about the four sealed evidence bags he received on
10 September 2018 from Case Administration Ballistic Section. The
bags contained
the evidence concerning the fired cartridge cases,
bullets, bullet core and bullet collected as exhibits in the Orlando
Cas 471/11/2017
and the Kliptown Cas 195/11/2017 (Orlando Cas). The
evidence of what was contained in the bags is set out in this
affidavit, specifically
at paragraphs.  3.1 to 3.4 and 3.5 to
3.11. And the contents of the bag containing the evidence from the
Kliptown Cas is described
at paragraph 4.1 to 4.6 of the affidavit.
[57]
After examining and comparing the evidence in paragraphs 3.1 to 3.8
and 4.1 to 4.5 using the comparison microscope, Capt Mkhatshwa
made
the following findings:
a. The cartridge cases
mentioned in 3.1 marked 003TC1, 4.1 marked 549471/17 A5, A6, A7, A8
and 4.5 were fired in the same firearm.
b. The bullet mentioned
in 4.2 marked 549471/17 B4, B5 and 4.4 were not fired from the same
firearm as the test bullet mentioned
in 3. 4 marked 645ZTB1.
c. The bullet mentioned
in 4.2 marked 549471/17 B4 and B5 were not fired from the same
firearm as the test bullet jacket mentioned
in 3.8 marked 645XTB1.
d. It cannot be
determined if the bullet jacket mentioned in 4.4 was fired or was not
fired from the same firearm as the test bullet
mentioned in 3.8
marked 645XTB1.
e. The test bullet
mentioned in 3.8 marked 003TB1 was not fired from the same firearm as
the exhibit bullet mentioned in 4.4.
f. It cannot be
determined if the bullet mentioned in 4.2 marked 549471/17 B4 and B5
were fired or were not fired from the same
firearm as the test bullet
mentioned in 3.8 marked 003TB1.
g. The bullet mentioned
in 3.4 marked 577645/17 B1 and B3 were not fired in the same firearm
as the bullet and bullet jacket mentioned
in 4.2 marked 549471/17 B4,
B5 and 4.4.
h. He further testified
that paragraph 6.2 and 6.3 show that there are two other firearms
used in the shootings. He could not say
whether there were other
firearms used in the episode.
[58]
Dr Deren Lietigy,
the medical practitioner, specializing in
surgery and working in the trauma unit at the Pretoria University,
testified how he examined
the accused at the Chris Hanni Baragwanath
hospital. He noticed six wounds on his body, which were consistent
with bullet wounds.
He described the wounds on the body of the
accused. The accused had a wound on the anterior right chest and the
right chest at
the back. The shots, according to him, would have been
in the straight line between the two wounds. The trajectory between
the
two wounds on the left arm was also a straight line. The other
wounds were next to the area of the heart and the lumber area - back

left.
[59]
Constable Mongoe
of the SAPS in Florida and employed in the
Visible Policing Unit, testified about the incident that occurred on
24 November 2017
and specifically at Orlando in Soweto.
[60]
He received a WhatsApp message from one of his colleagues informing
him about a robbery involving a Toyota Combi, registration
[…]
GP in the Langlagte area. He encountered the vehicle in question on
his way to the scene of the crime. He gave chase,
and the suspects
drove to the direction of Orlando.
[61]
The occupants of the vehicle fired shots at them as they were driving
away. At some point during the chase, the sliding door
of the Kombi
opened, and three persons jumped out and ran away.  The Kombi
came to a stop after hitting a road barrier.
One person who was
lying next to the sliding door was found dead.  The gun found
next to him was taken for forensic testing.
[62]
Ms Amanda Fouree
, a Voda Com employee, testified as an expert
witness concerning the data collected every time a call is made from
a cell phone.
[63]
Sgt Ndlovu
of the SAPS Organised Crime Unit in Gauteng
testified that he was appointed to investigate the crimes in this
matter. On 24 January
2018, he received information relating to the
address of Thabiso Moorosi. He visited the house and was told by his
cousin brother
that he had since passed away.  The cousin gave
him the cell phone number he used before passing away.
[64]
Sgt Ndlovu applied and received permission to conduct an analysis of
the cell phone number from the magistrate in terms of
s 205 of the
CPA
The
case for the defence
[65]
The accused was the only witness who testified in his defence. He
testified about the events of 10 November 2017 and in particular

about what happened on Union Road. He conceded in evidence in chief
that he had holes in his ears, he was wearing a blue trousers,
maroon
t-shirt, worn out and accordingly its colour had slightly changed. He
was referred to photo F on page 75 which reflected
his hairstyle at
the time.
[66]
Concerning how he suffered bullet wounds the accused testified that
he was walking on Union Road when he was shot. He did not
see who
fired the shots at him. He only realized at the hospital that he was
shot more than three times. After the injury he suffered
from the
bullet wounds he ran with other people who were running away from the
shootings. He tried to run away towards the informal
settlement but
as soon as he crossed the railway line which is not very far from
where he was shot at, he lost energy and set on
the ground.
[67]
While sitting on the ground feeling weak the police arrived and
arrested him. He disputed ever hearing any person pointing
him as one
of the robbers.
[68]
The police took his Samsung cell phone with the sim card number […].
[69]
He denied knowledge of the deceased, Thabiso and also that his cell
number was 06464377006. He denied having participated in
the robbery
that took place on the day in question.
The
general standard of prove in criminal matters
[70]
The
general standard of prove, to secure a conviction, is that the State
has a duty to prove its case against the accused beyond
a reasonable
doubt.
[1]
The standard does
not, however, require proof to be beyond the shadow of a
doubt.
[2]
This means
that the court is not required to convict an accused person only on
absolute certainty, but rather on justifiable
and reasonable
ground.
[3]
[71]
In
considering whether it is reasonable and justifiable to convict an
accused person the court is required to have regard to the
totality
of the evidence before it.  In other words the evidence before
the court should be evaluated holistically and assessed
in its
totality. The Court must consider inherent strengths and weaknesses
in the evidence, and consider the merits, demerits and
probabilities.
The approach to assessing and evaluating evidence was summarised in
S
v Trainor (468/01)
[2002] ZASCA 125
;
[2003] 1 All SA 435
as
follows:
“
A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be found
to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any evidence tendered. In considering
whether
evidence is reliable, the quality of the evidence must of necessity
be evaluated, as must corroborative evidence, if any.
Evidence, of
course, must be evaluated against the
onus
on any
particular issue or in respect of the case in its entirety. The
compartmentalised and fragmented approach of the magistrate
is
illogical and wrong.”
[72]
The nature of the evidence which the State
relied on in seeking to place liability on the accused for the
murder, robbery and attempted
murder in this matter is primarily
based on circumstantial evidence. It also relied on the doctrine of
common purpose.
[73]
The
approach to adopt when dealing with circumstantial evidence is dealt
with in
R
V Blom.
[4]
.
The court in that case referred to the two cardinal rules of logic
which govern the use of circumstantial evidence in a criminal
trial.
The first rule requires that the inference sought to be drawn must be
consistent with all proved facts. The second rule
is that the proved
facts should exclude every reasonable inference from them save the
one to be drawn. Failure to satisfy these
requirements would render
the inference drawn unsustainable.
[74]
In applying the two rules referred to above the
circumstantial evidence need to be considered in its totality
[75]
In
R
v De Villiers
,
[5]
the
Court held that:
“
The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative effect
of all of them together, and it is only after
it has done so that the
accused is entitled to the benefit of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be drawn.”
[76]
In
S
v Reddy
&
Others,
[6]
the
Court said the following regarding the assessment of circumstantial
evidence:
“
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-meal basis and to subject
each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the explanation given
by an
accused is true. The evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted dictum
in
R
v Blom
1939
AD 188
at
202-3, where reference is made to two cardinal rules of logic which
cannot be ignored.”
The
doctrine of common purpose
[77]
The
doctrine of common purpose has been defined by Burchell and
Milton,
[7]
in the following
terms:
“
Where
two or more people agree to commit a crime or actively associate in a
joint unlawful enterprise, each will be responsible
for specific
criminal conduct committed by one of their number which falls within
their common design. Liability arises from their
‘common
purpose’ to commit the crime.”
[8]
[78]
The
essence of the doctrine of common purpose is stated by  Snyman,
[9]
in
the following terms:
“
. . .  if two
or more people, having a common purpose to commit a crime, act
together in order to achieve that purpose, the
conduct of each of
them in the execution of that purpose is imputed to the others.”
[79]
It
is apparent from the authorities that liability in terms of the
doctrine of common purpose arises where the participants agree
or
associate together with others to commit a particular crime with the
requisite
mens
rea
.
The basis of common purpose can thus be by way of prior agreement
which may be express or implied. It may also be by way of association

between the co-perpetrators. In general active association may be
evidenced by conduct of the co-perpetrators. It is not necessary
to
show that the participation of the co-perpetrators was causally
connected to the consequent crime.
[10]
The other principle governing common purpose is that it is not
necessary for the prosecutor to prove beyond reasonable doubt that

each of the co-perpetrators directly and/ or actively participated in
the unlawful conduct. Once the element of fault has been
satisfied,
then the conduct of the co-perpetrator of the crime is attributed to
the other participants. In other words what the
prosecutor needs to
establish is that one of the group members caused the consequent
crime. However, the intention of each of the
co-perpetrators must be
determined independently without reference to the mental state of the
other participants.
[11]
[80]
The
prerequisites in order to attract liability in a case based on the
doctrine of common purpose are set out in S v Mgedezi,
[12]
in the following terms:
a. The accused must have
been present at the scene where violence was committed.
b. He or she must have
been aware of the crime committed.
c. He or she must have
manifested his sharing of a common purpose by himself performing some
act of association with the conduct
of the others.
[81]
In
S v Thebus,
[13]
the
Constitutional Court in dealing with the doctrine of common purpose
held that:
“
If
the prosecution relies on common purpose, it must prove beyond a
reasonable doubt that each accused had the requisite
mens
rea
concerning the unlawful outcome at
the time the offence was committed. That means that he or she had
intended that criminal result
or must have foreseen the possibility
of the criminal result ensuing and nonetheless actively associated
himself or herself reckless
as to whether the result was to ensue.”
The
principles governing identification of an accused person
[82]
The
approach to adopt in dealing with the issue of identification of an
accused person was summarised by Legodi J, (as he then was)
in Phetla
and Another v S,
[14]
as
follows:
“
[1]
It is generally accepted that evidence of identification based
upon witness' recollections of person's appearance
is
dangerously unreliable unless approached with due caution. The
average witness's ability to recognise faces is poor, although
few
people are prepared to admit that they have made a mistake. On a
question of identification, the confidence and sincerity of
the
witness is not enough.
[2]
The often patent honesty, sincerity and confidence of an identifying
witness remain, however, a snare to a judicial officer
who does not
constantly remind himself of the necessity of disputing any danger of
error in such evidence.  The witness should
be asked by what
features, marks or indications they identify the person whom they
claim to recognise. Questions relating to height,
build, complexion,
what clothing he was wearing and so on should be put. A bald
statement that the accused is the person who committed
the crime is
not enough. Such a statement unexplained, untested and
uninvestigated, leaves the door wide open for possibilities
of
mistake.
[3]
A court has a duty to assess and evaluate the cogency of the evidence
of identification. Many of the criteria for assessing
what weight is
to be attached to evidence of identification are to be found in a
number of cases. The trustworthiness of the
witness's
observation, recollection and narration of, are all three factors
relevant to the assessment of evidence of identification
and are
affected by various factors.
'Because
of fallibility of human observation, evidence of identification is
approached by the court with some
caution. It
is not enough for the identifying witness to be honest.  The
reliability of his observation must also be tested.
This depends on
various factors such
as
lighting,
visibility and eyesight, the proximity of the witness, his
opportunity for observation, both
as
to
time and situation. the extent of his prior knowledge of the accused
and mobility of the scene. Corroboration of the suggestibility,

the accused's face, voice, build, gait and dress, the result of the
identification parade, if any, and of course. the evidence
by or
on behalf of the accused. The list is not exhaustive. These factors,
or such of them
as
are
applicable in
a
particular
case,
are
not individually decisive, but must be weighed one against the other,
in the light of the totality of the evidence and the probabilities."
[83]
In the present matter it was argued on behalf
of the accused that the evidence presented by the State was
insufficient to place
him at the scene of the crime on the day in
question.
[84]
It was submitted that the evidence of Andries,
relating to the identity of the accused should be rejected because
the twenty seconds
he claims to have observed the accused is too
short to be reliable in particular when regard is had to the fact
that on his own
version he was too shocked. His evidence is also
criticised on the ground that his description of the hair style that
the accused
was alleged to have been wearing is in conflict with the
one appearing on photos 73, 74 and 75 in the photo album.
[85]
Similarly, the evidence of Sfiso is criticised
on the ground that he observed the accused for a very short period
and was shocked
at the time he observed him. In support of this
contention the defence also referred to the CCTV CAM 02 picture 5 on
Exhibit “K”
which indicates that the suspects entered the
store at 13h33:44 and left it at 13h34:20 which means the incident
took 36 seconds.
[86]
Zaheer’s evidence is criticised on the
ground that he failed to identify the accused at the identity parade
which was held
at the Diepkloof SAPS premises on 17 December 2017. It
was further argued that his pointing out of the accused in court
should
be treated as dock identification and should thus be accorded
little weight.
[87]
The evidence that sought to link the accused
with Thabiso through the cell phone data and the crime scene in
question was also criticised
for not showing beyond reasonable doubt
that the data placed them at or near the scene of the crime prior to
the robbery. It was
argued that the proposition that the calls from
cell phone number 0646437006 should be rejected as the telephone
calls may have
been made by another person in whose name the phone
was registered in terms of the RICA records.
[88]
The version that Thabiso died at the scene in
the Orlando Cas and that the gun found next to his body was according
to the defence,
unsustainable because the State failed to prove that
the firearm found at the scene belonged to the deceased.
[89]
As indicated earlier in this judgment the State
led the evidence of three witnesses concerning the identity of the
accused. The
first witness in this regard is Andries who was stopped,
as he was exiting from the counter side through the red security gate
in the store, by the accused and the other robber. According to him
the robbers at that point were walking into the store. He observed

the front profile of the accused who at that point was about half to
a meter away from him. It was during the day and nothing obstructed

his view of the accused. It was during sunny day and the lighting
inside the store was good. The brightness outside store is confirmed

by the video footage.
[90]
Sifiso was the second witness to testify about
the identity of the accused. He saw the accused in the store at the
time he grabbed
and pointed a gun at him. It was at this point that
he looked and saw the accused who was very close to him. He was able
to observe
the accused for approximately one minute and his
observation in the store which was bright and clear was not
obstructed by anything.
He described the physical features of the
accused and how he was dressed.
[91]
He saw the accused again after the shootings
when he (the accused) was seated next to the door with a blood
stained T-shirt. His
version during evidence in chief and cross
examination was consistent regarding the features of the accused
including how his was
dress.
[92]
The third time that Sfiso saw the accused was
when he pointed him to the police at the point when he was seated on
the ground in
the informal settlement.
[93]
The third witness to testify in relation to the
identity of the accuse is Joao who described how he saw two men
running towards
the railway line after he heard gun shots not so far
from where he was. He describe how one of them was dressed in a black
winter
hat, blue work suit jacket and jeans. He joined the other
community members who followed the accused with his co-perpetrator
across
the railway line into the informal settlement. He found the
accused seated on the ground injured. He was certain that the accused

is one of the two men he saw running away after he heard the gun
shots in the neighbourhood.
[94]
The last witness to testify about the identity
of the accused is Zaheer, the owner of the store. He attended the
identity parade
but was unable to positively point at the accused. He
pointed the accused in court. His evidence is thus dock
identification.
[95]
In
dealing with the approach to adopt when dealing with dock
identification the court in
Mafikili
v S,
[15]
held that:
“
8]
The cases make it clear that evidence of a dock identification is not
inadmissible, as had been suggested in
S
v Maradu
, but
that a dock identification ‘may be relevant evidence, but
generally, unless it is shown to be sourced in an independent

preceding identification, it carries little weight’, as has
been held in
S
v Tandwa and others
.
3
As
with all evidence of identification, dock identifications carry with
them dangers of which a trial court must be acutely
aware. There is a
danger that a lay person on seeing accused persons in the dock,
‘feels reassured that he is correct in
his identification, even
though this may not have been the position were they were not there’:
and that ‘[t]o any member
of the public … the fact that
an accused is standing in the dock must naturally be suggestive of
him being one of the parties
involved in the crime, and no witness
can be blamed for making such an assumption, even though it is
incorrect’.
[96]
In the present matter Zaheer testified, before
pointing at the accused in the dock, that at the relevant time the
accused was slightly
in front of him, had the opportunity to look at
his face for less than a minute and the area they were in had good
lighting. His
description of the accused broadly confirms and is
corroborated by that of the other witnesses.
[97]
The other aspect of the identity of the accused
appears from the video footage. Although the degree of clarity and
quality of the
footage is not perfect the visuals shows the two
robbers as described by the witnesses. In this respect persons
dressed in the
similar manner as described by the prosecution
witnesses appear on the footage. A person wearing similar clothes and
a hat as described
by the witnesses appears on the footage.
[98]
In my view, having regard to the totality of
the evidence discussed earlier, the accused was beyond any reasonable
doubt placed
at the scene of the crimes cited in the indictment. In
other words the State has beyond any reasonable doubt shown that the
accused
is the person who together with his co-perpetrator carried
out the robbery, the murder and attempted murder at the store on the

day in question.
[99]
It follows that the version of the accused that
he was never in the store at the time the offences were committed
stands to be rejected
on the ground that it is not reasonably
possibly true. The version is inherently improbable. It does not make
sense that a person
injured as the accused was, would run for close
to a kilometre without seeking refuge in the near shops that he ran
pass as he
was going towards the railway line. The danger or attack
was on his version not so imminent that he could not enter any other
store
in the neighbourhood. This is confirmed by the version that he
and his co-perpetrator could afford to await for the train to pass

before crossing over the railway line. This version was not disputed
by the accused.
[100]
I now proceed to deal with the issue of common
purpose having found that the accused was positively identified
beyond any reasonable
doubt as one of the perpetrators of violence
against the deceased and the owner of the store on the particular
day.
[101]
The inference to be drawn from the
circumstances leading up to and the surrounding infliction of the
fatal attack on the deceased
and the serious injury on the other
victims including the owner of the store is that the accused and his
co-perpetrator had the
intention to cause fatal injuries on their
victims.
[102]
The accused and his co-perpetrator were armed
when they approach Andries and as they proceeded to enter the store.
The only inference
to be drawn from the proven facts is that the
accused and his co-perpetrator did foresee that there might be
resistance to their
plan to rob the store from people inside the
store. They in the circumstances foresaw death occurring as they
sought to implement
their plan.
[103]
Having foreseen the possibility of death
occurring the accused and his co-perpetrator reconciled themselves
with the foreseen possibility
and proceeded to enter the store and
carried out their plan.
[104]
The fact as presented by the state shows that the accused was present
at the time the shooting took place in the store. He
was aware of the
action of his co-perpetrator. He never retreated or even called upon
him to stop or disassociate himself with
the violent action of the
other robber. The accused did not only make common purpose with his
co-perpetrator in committing the
offences but manifested in sharing
the common purpose by acting and performing the same act as that of
his co-perpetrator.
[105]
The inference drawn above is consistent with all the proven facts and
thus in the circumstances, I find that the accused had
prior to the
execution of the crime armed himself with a firearm and ammunition
which he used in the execution of the plan to rob
the store. He thus
did foresee death occurring in the course of the execution of their
plan but was reckless as to the consequences
thereof.
[106]
The cumulative effect of all the proven facts lead to the inference
of guilt being the only reasonable one.  I am in
this respect
satisfied that the State has proved the guilt of the accused beyond
any reasonable doubt in relation to all the charges
proffered against
him.
[107]
In the circumstances Mr Mandla Shezi you are found guilty of all the
charges that appear on the indictment. In other words
you are found
guilty of the following:
1. Count I guilty of
robbery with aggravating circumstances.
2. Count 2 guilty of
murder.
3. Count 3 guilty of
guilty of murder.
4. Count 4 guilty of
attempted murder.
5. Count 5 guilty of
unlawful possession of firearm.
6. Count 6 unlawful
possession of ammunition.
E
Molahlehi
Judge
of the High Court
Representation:
For
the State: Adv Surrendra -the Department of Public Prosecution
For
the defence: Adv Simpson – Legal Aid South Africa
Judgment
delivered: 13 September 2019
[1]
S
v Mthethwa (CC03/2014)
[2017] ZAWCHC 28
(16 March 2017) at paragraph
[65].
[2]
Ibid
[3]
Ibid
[4]
1939
AD 288.
[5]
1944
AD 493
.
[6]
1996
(2) SACR 1 (A).
[7]
Burchell and Milton
Principles
of Criminal Law
2
nd
ed
at 393.
[8]
The
definition was referred to with approval in Thebus and Another v S
(CCT36/02)
[2003] ZACC 12
;
2003 (6) SA 505
(CC);
2003 (10) BCLR 1100
(CC) (28 August 2003). In this case the constitutionality of the
doctrine of common purpose was unsuccessfully challenged.
[9]
Snyman
Criminal
Law
4
th
ed
at 261.
[10]
See
S v Sefatso
1998 (1) SA 868
at 895. This judgment confirmed those
decisions that overruled the cases that had held that the doctrine
of common purpose required
causal connection between the act of the
accused and the consequent death to be shown.
[11]
See
S v Leroux  and Others 2010 (2) SARC 11 (SCA), where the court
found on the authority of S v Mgedezi
1989 (1) SA 687
, that the
conduct of “the individual accused should be individually
considered with the view to determining whether there
is sufficient
basis for holding a particular accused person is liable
on
the ground of active participation in the achievement of a common
purpose that developed at the scene.”
[12]
(415)/1987)
[1988] ZASCA 135.
[13]
2003
(2) SACR319 (CC).
[14]
A632/2015)
[2016] ZAGPPHC 555 (24 June 2016).
[15]
(CC56/01)
[2009] ZAECBHC 11 (8 December 2009).