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[2020] ZAGPJHC 198
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Nkomo v S (A15/2020) [2020] ZAGPJHC 198 (17 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
NO: A 15/2020
DPP
REF NO: JPV 2007/23
In the matter between:
NKOMO
,
MAKHOSINI Appellant
and
THE
STATE Respondent
Appeal against
conviction of murder based on the evidence of a single witness.
Appeal against conviction of unlawful possession
and pointing of a
firearm based on conflicting evidence. Appeal succeeds in part.
JUDGMENT
DE VILLIERS, AJ:
Introduction
[1]
The appellant, then accused number 2, had
been convicted on 31 August 2009 and sentenced on 02 September 2009
by the Honourable
Moshidi J. Leave to appeal the conviction and
sentence was granted by the Supreme Court of Appeal on 22 January
2018 on petition.
[2]
The appellant was one of four accused
persons. Accused number one (Mr Sheppard Ndlovu) died prior to the
commencement of the trial,
and accused number four (Mr Newman Mandla
Makaila) escaped prior to the commencement of the trial.
[3]
The
appellant was convicted and sentenced as follows:
[1]
First, events of 14
June 2006
[3.1]
Count
1 - Kidnapping of Mr Welcome Thebe on 14 June 2006; Sentence six
years imprisonment. There is no appeal pursued in respect
of this
conviction
[2]
and sentence. The
sentence had to run concurrently with the sentence in respect of
count 2;
[3.2]
Count
2 - Attempted murder of Mr Welcome Thebe on 14 June 2006; Sentence
eight years imprisonment. There is no appeal pursued in
respect of
this conviction
[3]
and sentence;
Second, events of 22 June
2006
[3.3]
Counts
3 - Murder of a police reservist, Constable Antony Mthombeni on 22
June 2006; Sentence life imprisonment;
[4]
[3.4]
Count
4 - Attempted murder of Mr Thomas Lebese on 22 June 2006; Sentence
ten years imprisonment;
[5]
Third, events of 20
August 2006
[3.5]
Count 7 - Unlawful possession of a firearm,
a 9mm pistol, on 20 August 2006; Sentence five years imprisonment;
[3.6]
Count 8 - Unlawful possession of 16 rounds
of ammunition on 20 August 2006; Sentence three years imprisonment;
[3.7]
Count 9 - Pointing of a firearm, the 9mm
pistol, at Constable Andries Sehlabela on 20 August 2006; Sentence
five years imprisonment;
Fourth, events between
1996 and 2006
[3.8]
Count
13 - Unlawfully residing in the RSA between 1996 and 2006; Sentence
two years imprisonment. There is no appeal pursued in
respect of this
conviction
[6]
and sentence;
Fifth, events of 17
October 2006
[3.9]
Count 15 - Escaping from lawful custody on
17 October 2006; Sentence five years imprisonment. There is no appeal
pursued in respect
of this conviction and sentence.
[4]
The appellant was represented by Adv Pillay
throughout the trial. He denied the charges. His defence to the
unlawful immigration
charge, count 13, was that he had held a (valid)
South African Identity document. He pleaded not guilty to the charge
of escaping,
count 15, as he allegedly only attempted to do so. Save
as aforesaid, he gave no plea explanation.
The test to be applied
with regard to the convictions
[5]
The convictions in respect of counts one,
two, three, four, thirteen and fifteen all rested on the evidence of
a single witness.
As will appear below, an issue in this appeal is if
the ballistic evidence that supported the convictions on counts three
and four,
could be sustained as there was conflicting evidence with
regard to the appellant’s possession of that firearm. If not,
the
issue would be if the convictions on counts three and four could
be sustained without such corroborating evidence. The assessment
of
the conflicting evidence is also relevant to the convictions on
counts seven, eight and nine.
[6]
Mbatha
JA (Navsa and Dambuza JJA concurring) in
Y
v S
[7]
succinctly
dealt with the test to be applied in criminal proceedings, including
the approach to a conviction based on the evidence
of a single
witness:
“
[45]
In criminal proceedings, the State bears the onus to prove the
accused’s guilt beyond a reasonable doubt. Furthermore,
the
accused’s version cannot be rejected solely on the basis that
it is improbable, but only once the trial court has found
on credible
evidence that the accused’s explanation is false beyond a
reasonable doubt. (See: S v
2000 (1)
SACR 453
(SCA) at 455B.) The corollary is that, if the accused’s
version is reasonably possibly true, the accused is entitled to an
acquittal. It is trite that in an appeal the accused’s
conviction can only be sustained after consideration of all the
evidence
and the accused’s version of events
.
[46] …
[48]
The applicant was convicted on the evidence of a single witness,
which in order to be sufficient to convict, must be clear
and
satisfactory in every material respect. (See: S v Sauls
1981 4 All SA 182
(A).) It is trite that a
court will not rely on such evidence where the witness has made a
previous inconsistent statement, where
the witness has not had a
sufficient opportunity for observation and where there are material
contradictions in the evidence of
the witness. In Sauls
it
was held that there is no rule of thumb, test or formula to apply
when it comes to the consideration of the credibility of a
single
witness. Rather, a court should consider the merits and demerits of
the evidence, then decide whether it is satisfied that
the truth has
been told despite the shortcomings in the evidence”.
[7]
A
further principle to bear in mind is that court of appeal does not
easily interfere with findings of fact by the court a quo.
See
S
v Mafaladiso en Andere
,
[8]
translated by BR Southwood in
Essential
Judicial Reasoning:
[9]
“
'It
is true that a Court of Appeal will not lightly interfere with a
factual finding of the trial court - even if it is an inference
from
proved facts. But this proposition is nothing more than a guideline
and is not a legal rule.
R v
Dhlumayo and Another
1948 (2) SA 677
(A) op 695 in fine et seq) and where a Court of Appeal is satisfied
that the Trial Court has made a wrong finding of fact it must
rectify
it. (See
S v Mkohle
(supra at 100e-j);
President
of the Republic of
South Africa and
Others v South African Rugby Football Union and Others
2000 (1) SA 1
(CC) in paras [78] - [81]).,”
[8]
In
assessing the evidence, one has to have regard to all the evidence,
and consider the evidence as a whole. See the judgment by
Nugent JA
(Marais JA and Zulman JA concurring) in
S
v Mbuli
[2002] ZASCA 78
para 57:
[10]
“
It
is trite that the State bears the onus of establishing the guilt of
the appellant beyond reasonable doubt, and the converse is
that he is
entitled to be acquitted if there is a reasonable possibility that he
might be innocent (R v Difford
1937
AD 370
at 373, 383). In S v Van der Meyden
1999
(2) SA 79
(W), which was adopted and affirmed by this Court in S v
van Aswegen
2001(2) SACR 97 (SCA), I
had occasion to reiterate that in whichever form the test is applied
it must be satisfied upon a consideration
of all the evidence. Just
as a court does not look at the evidence implicating the accused in
isolation to determine whether there
is proof beyond reasonable doubt
so too does it not look at the exculpatory evidence in isolation to
determine whether it is reasonably
possible that it might be true. In
similar vein the following was said in Moshephi and Others v R
(1980-1984) LAC 57
at 59 F-H, which was cited
with approval in S v Hadebe & Others
1998
(1) SACR 422
(SCA) at 426 f-h:
"The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants
was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful
aid to a
proper understanding and evaluation of it. But, in doing so, one must
guard against a tendency to focus too intently upon
the separate and
individual part of what is, after all, a mosaic of proof. Doubts
about one aspect of the evidence led in a trial
may arise when that
aspect is viewed in isolation. Those doubts may be set at rest when
it is evaluated again together with all
the other available evidence.
That is not to say that a broad and indulgent approach is appropriate
when evaluating evidence. Far
from it. There is no substitute for a
detailed and critical examination of each and every component in a
body of evidence. But,
once that has been done, it is necessary to
step back a pace and consider the mosaic as a whole. If that is not
done, one may fail
to see the wood for the trees
."
”
[9]
Context is important in order to evaluate
the evidence as a whole.
The evidence
regarding the events of 14 June 2006
[10]
The conviction of the appellant for the
kidnapping and attempted murder of Mr Thebe on 14 June 2006 (counts
one and two) is relevant
to this matter only for contextual reasons,
as the appeal is not persisted with. Context is important in order to
evaluate the
evidence as a whole.
[11]
Mr
Thebe testified that he was kidnapped at gunpoint, and assaulted by a
group of assailants on 14 June 2006. He was questioned
about the
whereabouts of his brother, Sergeant Vusi Mbuyisa, a police officer.
The reason for the kidnapping was that his brother
had previously
arrested (some of) his assailants. The inference is that the
assailants sought revenge. Part of this group of assailants
was
“
Alex
”
[11]
and “
Shephard
”.
Mr Thebe managed to escape from his assailants, after he witnessed
the appellant getting out of the second car involved
in the
kidnapping, firearm in the hand. Mr Thebe stated that the firearm was
black. He was shot at, as he ran for his life. Later
the appellant
would deny having been in possession of a black firearm when
arrested, the firearm that would link him ballistically
to counts
three and four.
[12]
Sometime
after the incidents of 14 June 2006, Mr Thebe called Sergeant Alfred
Ndlovu, who worked with his brother, when he again
saw accused number
three, Mr Delay Moyo. This call led to the arrest of Mr Moyo. He also
identified Mr Moyo and “
Shephard
”
[12]
at a subsequent identification parade. Sergeant Alfred Ndlovu
testified that he had given his telephone number to Mr Thebe to phone
him should he come across his assailants, which he then did. Medical
evidence supported Mr Thebe’s version of having been
assaulted.
He also identified the appellant at an identity parade.
[13]
The
appellant’s counsel put the appellant’s version to Mr
Thebe. The version was that the appellant knew Mr Thebe, who
had met
him at a game shop that belonged to “
Imbuyisa
”
[13]
and at a Nando’s restaurant. Mr Thebe stated that the game shop
belonged to his brother, and that he did not recall meeting
the
appellant. He insisted that he did not know the appellant.
[14]
Mr Thebe was described by the court as
scared. He was “
shaking like a
reed
”, the court remarked,
although he denied being scared. Being intimidated is one reason why
a witness could seem scared in
the witness stand. I later address the
evidence of intimidation of two more witnesses. Adding weight to an
inference of witness
intimidation is the brazen attempt to find
Sergeant Vusi Mbuyisa by kidnapping and assaulting Mr Thebe, a step
so brazen that intimidating
state witnesses would not be an
improbable further step. However, in order to accept the evidence of
Mr Thebe, no finding of his
intimidation needs to be made. His
evidence was clear and satisfactory in every material respect.
[15]
Contextually, in not persisting with the
appeal on counts one and two, and in the light of the clear evidence
by Mr Thebe:
[15.1]
The appellant falsely denied knowing his
co-accused. He associated himself with them. This lie that must be
taken into account in
assessing the remainder of his version;
[15.2]
The appellant and his associates had done
the unthinkable, they sought revenge against a police officer for
arresting an associate
and was prepared to murder Mr Thebe in so
doing. This must be taken into account in assessing the remainder of
his version;
[15.3]
In carrying out the crimes set out in
counts one and two, the appellant was armed with a black firearm. He
has not given an explanation
what he did with this weapon, if he did
not keep possession thereof.
The evidence
regarding counts thirteen and fifteen
[16]
These two convictions are addressed here,
as their only relevance are that in respect thereof the appellant
also gave a false defence.
An appeal is not persisted with:
[16.1]
The appellant was an illegal immigrant and
had no explanation why his identity document reflected a town in
South Africa as his
place of birth. He could never have believed that
he was legally in the country. He was properly convicted; and
[16.2]
The appellant did not merely attempt to
escape as he alleged, he escaped from the court room, although he was
apprehended in the
court building. He was properly convicted.
The evidence
regarding the events of 22 June 2006
[17]
Mr Philane Ndlovu testified about the
events on 22 June 2006, counts three and four. Mr Lebese and a police
officer, the Constable
Mthombeni were driving a Volkswagen Golf when
an assassination was carried out on them. Constable Mthombeni was
shot several times
and died, Mr Lebese was shot twelve times and
survived, severely injured. The incident happened in broad daylight
in the Yeoville
area.
[18]
Mr
Philane Ndlovu saw the pursuit on the Golf from his balcony, and
heard gunshots. He saw the vehicles in Honey Street, Yeoville.
The
street ran past his flat. He saw the vehicles stop. He left his flat
on the first floor, and went to the scene. He saw the
left front
passenger get out of the pursuing Corolla vehicle, armed with what
looked like an AK47. It was Mr Sheppard Ndlovu, accused
number one.
Mr Sheppard Ndlovu shot at the Golf. He saw another person get out of
the Corolla, armed with a handgun, also shooting
at the Golf. He saw
a third person get out of the Golf. He saw two more armed persons get
out of the vehicle as weapons were distributed
between them. He was
about five metres away, he testified, and saw that he knew all of the
attackers: Mr Sheppard Ndlovu (accused
number one), the appellant,
“
Alex
”,
“
Mandla
”,
[14]
and “
Intra
”.
They all shot at the Golf. The driver of the vehicle was
“
Newman
”.
[15]
The Corolla had to make a U-turn to leave, as the road was a
dead-end.
[19]
Afterwards
45 spent cartridges were picked up at the scene. The witness knew and
saw the appellant. He also knew the deceased, the
Constable
Mthombeni, with whom he had worked before, and he also referred to
him as “
Bafana
”
Mthombeni. Afterwards the witness phoned Sergeant Alfred Ndlovu and
“
Imbisa
”
[16]
to report the events.
[20]
What were the problematic aspects of this
evidence by Mr Philane Ndlovu?
[20.1]
Running towards the scene of an
assassination and standing there to observe the killing, constitute
unusual conduct, especially
the closer a person gets to the killing.
Standing five metres away, would have been unusual. However, the
accuracy of the distance
estimate of five metres was not addressed in
evidence or tested in cross-examination. In re-examination with
reference to a photograph,
the witness placed himself a greater
distance away, at the intersection between Honey Street and Fifth
Street. There was also a
reference in cross-examination to 15 meters
when the Corolla used by the assailants had to turn around to turn
into Fifth Street.
In re-examination the witness testified that he
was able to identify the attackers when the Corolla made a U-turn and
drove past
him. In the end, I was satisfied that the first reference
to five metres did not mean that the evidence by Mr Philane Ndlovu
was
unsatisfactory in that respect;
[20.2]
In
cross-examination Mr Philane Ndlovu testified that he called the
number 10111, when one expected confirmation of his evidence
that he
had called Sergeant Alfred Ndlovu and Imbisa
[17]
to report the events. This contradiction was not clarified. Sergeant
Alfred Ndlovu testified that the call was made to Sergeant
Masalesa,
who called him, and thereafter they talked to Mr Philane Ndlovu. This
evidence did not support the evidence by Mr Philane
Ndlovu. In
cross-examination Sergeant Alfred Ndlovu testified that the call was
made to
Sergeant
Imbuyisa. He then backtracked and said that he could not remember if
the call was first made to Sergeant Imbuyisa or to
him. The question
is whether this slight contradiction is determinative of the matter.
[21]
The evidence by Mr Philane Ndlovu was not
inherently problematic. He did not contradict himself on the material
facts, and his version
remained consistent. The one aspect that
raised a concern, was about a background fact that was not material.
His evidence was
clear and satisfactory in every material respect.
[22]
The further question is if the appellant’s
defence could be reasonably possibly true.
[23]
The appellant’s defence was he had
been framed for the murder. The motivation was that his nephew Alex
had escaped from custody
after money had been paid to Sergeant Alfred
Ndlovu to secure his release. Constable Mthombeni and Sergeant Alfred
Ndlovu “
were threatening him
”
to find Alex. He was unable to do so. He was given two weeks (at some
stage) to find Alex, or to face “
arrest
or death
”.
[24]
On the appellant’s version, the
pistol planted on him was the pistol of his nephew Alex (who must
have been the “Alex”
identified by Mr Philane Ndlovu). We
know that the pistol is ballistically linked to the events described
by Mr Philane Ndlovu.
In the absence of a defence that could be
reasonably possibly true, this is an immaterial matter with regard to
the convictions
on counts three and four, as the evidence by Mr
Philane Ndlovu was clear and satisfactory in every material respect.
[25]
Falsely accusing the appellant for the
murder of Constable Mthombeni, would have needed the cooperation of
Mr Philane Ndlovu. The
question would be what benefit there would be
in such conduct for Mr Philane Ndlovu. He was in custody when he
testified and was
no longer a police reservist (which he seems to
have been at some stage). The appellant’s counsel put the
appellant’s
version that he knew Mr Philane Ndlovu well, as he
and Constable Mthombeni used to visit Mr Philane Ndlovu. Mr Philane
Ndlovu denied
this. The closer the relationship, the less likely a
false accusation would be.
[26]
The appellant’s counsel put the
appellant’s version that he was a friend of Constable Mthombeni
and of Sergeant Alfred
Ndlovu. The appellant’s version is that
he and Sergeant Alfred Ndlovu would socialise, they were not mere
acquittances. It
seems improbable that:
[26.1]
Someone would frame a friend for murder.;
[26.2]
A police officer would take money, and be
able to secure the release of a prisoner despite the paper trail and
the different responsibilities
of officials in the criminal justice
system for such release; and
[26.3]
When that person to be released through
criminal conduct, escapes, the police officer would take the escape
personal. Sergeant Alfred
Ndlovu would later testify that the escape
took place by Alfred getting hold of a gun and escaping through a
prison kitchen. It
was not a police bungle.
[27]
Further the appellant was at least in the
company of Mr Sheppard Ndlovu (accused number one) on 14 June 2006,
despite his false
denials of having committed the crimes on 14 June
2006 (counts one and two) and in respect of counts thirteen and
fifteen.
[28]
The defence raised by the appellant was not
reasonably possibly true. Even without corroborating evidence of a
ballistic link to
the crimes, I cannot fault the conviction.
The evidence
regarding the events of 20 August 2006
[29]
On 20 August 2006 the appellant was
arrested at his flat. There were four police officers present at the
arrest, and three testified
(Constable Sehlabela, Sergeant Alfred
Ndlovu and
Constable
Masalesa).
Sergeant Imbuyisa was killed before the trial.
[30]
Constable Sehlabela denied that the
appellant was found in possession of a Z88 pistol and ammunition
(counts seven and eight) and
denied that the appellant pointed a
firearm at him (count nine). The court in the end rejected the
evidence by Constable Sehlabela,
and convicted the appellant on all
three counts.
[31]
Constable Sehlabela testified that he was
instructed by
Sergeant Imbuyisa to assist
with an arrest, the arrest of the appellant. Constable Masalesa was
with the two of them in the vehicle.
Sergeant Imbuyisa phoned
Sergeant Alfred Ndlovu
to
be present too.
Sergeant Alfred Ndlovu had
a different version, he testified that he phoned Constable Sehlabela
and
Constable Masalesa, and that Sergeant
Imbuyisa was with him in his vehicle. He then backtracked and said
that Sergeant Imbuyisa
could have made the call to the other two.
Constable Masalesa was not asked to clarify this aspect of the case.
Constable Masalesa
did not testify about this background matter. It
is not a material dispute.
[32]
When the police officers arrived at the
flat, and found that the appellant was not present, they decided to
wait for him. Constable
Sehlabela testified that there were three
adults and one baby of between six months and a year old in the flat.
The police officers
split up. Constable Sehlabela stayed inside the
flat. It was unclear from his evidence where
Sergeant
Imbuyisa waited inside the flat, but he testified that Constable
Masalesa and
Sergeant Alfred Ndlovu
waited outside.
Sergeant
Alfred Ndlovu had a different version, and testified that Constable
Sehlabela and Constable
Masalesa
stayed inside the flat.
Constable
Masalesa testified that
Constable Sehlabela
and
Sergeant Imbuyisa waited inside the
flat, which may accord with the evidence of
Constable
Sehlabela. This is also where the appellant later testified he found
Constable Sehlabela and
Sergeant Imbuyisa,
namely, inside his flat. The conflicting evidence raises a concern, a
concern that is of particular importance
in assessing the conviction
in respect of count nine. Such a conviction requires a finding about
whom the witnesses were, and what
they could and did observe.
[33]
Constable Sehlabela testified that when the
appellant returned and entered the flat, he was followed by
Constable
Masalesa, and both Constable Masalesa
and
Constable Sehlabela
told the appellant to
surrender, which he did. He did not resist arrest and did not point a
firearm at him. The appellant agreed
with this evidence.
Constable
Sehlabela testified
that Constable Masalesa
searched the appellant, and found a firearm in his possession.
C
onstable Sehlabela described this firearm
as a small, brown firearm of about five centimetres long, with its
serial number filed
off. He was shown a firearm, a Z88 pistol, but
denied that it was the firearm in the appellant’s possession.
The explanation
given by the appellant during his arrest was that he
was given the firearm by Constable Mthombeni.
The
appellant disagreed with this evidence. According to him he only had
a (CZ75) magazine and ammunition in his flat. The two other
policemen
present had a different version.
[34]
Constable Sehlabela testified that
the
appellant had a child with him, which he left standing at the door.
Sergeant Alfred Ndlovu testified that the
appellant was carrying a small child, but one old enough to be able
to walk.
Constable Masalesa confirmed that
the appellant was carrying a baby. The appellant disagreed, and
testified that he had a ten-year
old child with him. It is not a
material dispute, but the three policemen agreed that the appellant’s
version was false.
[35]
According to Sergeant Alfred Ndlovu, the
appellant drew a gun and pointed it at Constable Sehlabela, raised it
in his direction,
when he entered the flat.
Constable
Masalesa confirmed the evidence stating that this happened when the
two police outside the flat “
were
just next to the door
” and after
the appellant had seen them. They testified that the appellant threw
the pistol on the ground. T
he pistol was a
Z88, 9 mm parabellum, with 15 rounds in the magazine and one in the
chamber
Constable Masalesa
confirmed
this evidence. This pistol was then booked in for ballistic testing.
[36]
The appellant’s counsel put the
appellant’s version to Sergeant Alfred Ndlovu that after the
appellant’s arrest,
Sergeant Imbuyisa went to his motor vehicle
at the police station, and returned with a firearm. He then said to
those present,
that they should charge the appellant (with
possession) of that firearm. Sergeant Alfred Ndlovu denied the
appellant’s version.
Constable
Sehlabela
and Constable Masalesa were not
asked to comment on this version.
[37]
Importantly
Constable
Sehlabela confirmed that the pistol found on the appellant was booked
in for ballistic testing. No record of any pistol
other than the Z88
was produced.
[38]
Although it is common cause that the
appellant was arrested by the police officers, including
Constable
Sehlabela, Constable Sehlabela inexplicably was unable to identify
him in the dock and was adamant that he would have
been able to
identify the person whom they had arrested. He did deny the
appellant’s version that he was only in possession
of a
magazine for a CZ75 pistol.
[39]
The evidence of Sergeant Alfred Ndlovu had
the following problematic aspects:
[39.1]
It remained unclear where he was in
relation to the appellant when the appellant was alleged to have
drawn his weapon. The appellant
was inside the flat. According to
Sergeant Alfred Ndlovu, he and Sergeant
Imbuyisa
were outside, on opposite ends of the door to the flat, which they
approached in a tactical manner, and entered the flat
side-by-side.
Unless it was a wide door, this would not be easy to do. Later he
testified in cross-examination that he did not
enter the flat, but
was at the door when his other
two
colleagues went into the flat. The discrepancy in his version was not
clarified with him. In cross-examination he stated the obvious,
he
could not see the police officers inside the flat when the appellant
entered the flat. The question is, how could he have observed
the
pointing of the firearm?
It also seems
improbable that the weapon would not be pointed at the approaching
police officers, but at one inside the flat; and
[39.2]
Sergeant Alfred Ndlovu testified that the
appellant dropped a loaded pistol on the floor, when ordered to do
so. The appellant stood
upright when he did this. This is a dangerous
thing to do with a loaded weapon. However, this was not explored in
cross-examination.
[40]
The evidence of
Constable
Masalesa
had the following problematic
aspects:
[40.1]
On his own version he could not see into
the flat when the appellant drew the pistol;
[40.2]
He also testified that the appellant threw
a loaded pistol on the floor. Again, this was not explored in
cross-examination.
[40.3]
On his version, he and Sergeant Alfred
Ndlovu approached the flat side-by-side in the passage and thus not
from opposite ends.
[41]
The evidence of
Constable
Sehlabela
had the
following problematic aspects:
[41.1]
His refusal to accept a common cause fact,
that he helped to arrest the appellant, places doubt on all his
evidence;
[41.2]
His version about a second illegal pistol
that then disappears without trace after having been booked in for
ballistic testing,
is highly improbable.
[42]
Sergeant Alfred Ndlovu testified that
Constable Sehlabela was detained in the same prison as the appellant,
and endeavoured to give
this as a reason for the conflicting evidence
by Constable Sehlabela. Constable Sehlabela was held in prison for a
year on a charge
of hijacking a vehicle when he did not follow
procedures in booking a hijacked vehicle into custody. Inspector
Magongo confirmed
the period of detention. Witness intimidation may
have played a role:
[42.1]
The court a quo observed that Mr Philane
Ndlovu appeared to be scared. Inspector Magongo testified that the
family of Mr Philane
Ndlovu were placed under police protection after
alleged threats by accused number four, Mr Newman Makaila;
[42.2]
Sergeant Alfred Ndlovu received an
intimidating call. He testified that he received a call during the
investigation from someone
who identified him as “Bafana
Mthombeni”, the nickname of the constable killed on 22 June
2006. This person said that
he was at the mortuary, and wanted to
know when Sergeant Alfred Ndlovu would join him there. He thereafter
said that he would kill
Sergeant Alfred Ndlovu with the same AK47
that was used to kill Constable Mthombeni and to shoot his informant,
“Thabo”.
[43]
However, one cannot beyond reasonable doubt
find that Constable Sehlabela gave false evidence as he had been
intimidated. It is
not necessary to make such a finding in assessing
his evidence.
[44]
The court a quo was in a better position to
evaluate the evidence, but on the record, I believe one cannot find a
sufficiently coherent
case that the appellant raised a firearm in the
direction of Constable Sehlabela. I believe that this conviction in
respect of
count nine cannot stand. I do not make a finding that the
evidence in this regard by Sergeant Alfred Ndlovu
and
Constable Masalesa is false, only that the evidence to sustain the
conviction is insufficient.
[45]
With regard to counts seven and eight, any
conviction would require a finding that the evidence by Sergeant
Alfred Ndlovu
and Constable Masalesa
discharged the onus to prove the accused’s
guilt beyond a reasonable doubt on credible evidence, and the
accused’s explanation
is false beyond a reasonable doubt.
[46]
The appellant’s version is that
before this incident, in May or June 2006, he paid R3 000.00 to
Sergeant Alfred Ndlovu to
secure the release of Alex, who had himself
had sourced the other R9 000.00 demanded by Sergeant Alfred Ndlovu.
Alex was then released
three weeks later, and re-arrested three weeks
thereafter. (This date is presumably 14 June 2006.) Thereafter, the
appellant gave
Sergeant Alfred Ndlovu a further R4 000.00 to secure
the release of Alex. When this did not happen, Sergeant Alfred Ndlovu
returned
the money. In this enterprise (to take money to ensure the
release of Alex), Sergeant Alfred Ndlovu worked with Constable
Ntombeni.
Later, after Alex’s escape, Sergeant Alfred Ndlovu
asked for his help to find Alex. He gave him two weeks to do so.
Sergeant
Alfred Ndlovu denied the appellant’s version, and said
that he was involved in the shootout in which Alex was killed
[47]
The appellant took issue with the following
facts in the case for the prosecution:
[47.1]
A person not known to him was outside his
flat when he returned thereto on the day of his arrest. He greeted
this man who followed
him and produced a gun. That man did not
testify at his trial. On his version, it could not have been one of
the people he allegedly
knew, Sergeant Alfred Ndlovu and Sergeant
Imbuyisa, or the witnesses
Constable
Masalesa and
Constable Sehlabela. None of
the police officers agreed that there were more police officers on
the scene, and no further defence
witnesses were called. This version
was not put to witnesses for comment;
[47.2]
He identified the police officers at the
flat as reflected in the record as “Mbesa” (I assume he
meant Sergeant Imbuyisa)
and Constable Sehlabela. According to him
Sergeant Alfred Ndlovu only arrived later. He did no see
Constable
Masalesa.
None of the police officers
agreed and this version was not put to witnesses for comment;
[47.3]
During this interrogation he was hit with a
four-pound hammer. I would have expected that such an assault would
have left a victim
with visible injuries;
[47.4]
After his arrest, at the police station,
Sergeant Alfred Ndlovu asked Sergeant Imbuyisa with what crimes they
should charge the
appellant. Sergeant Imbuyisa suggested that he
should be charged with possession of the firearm of his cousin, which
they had found
at the cousin’s house (two weeks earlier). This
version was not put to witnesses for comment. Sergeant Imbuyisa
fetched the
firearm from his vehicle. It is improbable that the
police would after an unsuccessful attempt to arrest Alex two weeks
earlier,
not hand in the weapon for ballistic tests;
[47.5]
He knew Constable Mthombeni well, as they
were from the same village in Zimbabwe. Through him he got to know
Sergeant Alfred Ndlovu
very well. The two of them would socialise and
drink together. He gave Sergeant Alfred Ndlovu the balance required
to make up R12
000.00 for Alfred to be released (R3 000.00). Alex was
then released, but re-arrested. This time a balance of R4 000.00 was
required.
He met Constable Mthombeni and gave “them” the
R4 000.00, but this time Alex was not released. He demanded an
answer,
and Constable Mthombeni returned the money. This version is
materially different to the one put to Sergeant Alfred Ndlovu for
comment
in that Constable Mthombeni was not mentioned, and he did not
mention that the money was returned. I find it improbable that a
corrupt police officer would have returned the alleged payment;
[47.6]
Mr Philane Ndlovu falsely implicated him.
He had been a police reservist, and had worked with Constable
Mthombeni and Sergeant Alfred
Ndlovu. This version was not put to
witnesses for comment; and
[47.7]
He had in his possession when he was
arrested an extended magazine and 22 rounds of ammunition for a lost
firearm, a CZ75 pistol.
[48]
A conspiracy against the appellant would
have had to involve at least Mr Thebe, Mr Philane Ndlovu, Sergeant
Alfred Ndlovu, Constable
Malasela, and the procurement of an
unlicensed firearm (linked to the murder of Constable Mthombeni by
ballistic evidence). It
is an improbable long chain, requiring fine
timing to have had commenced at the latest on 14 June 2006 when Mr
Thebe was kidnapped.
It is extremely unlikely.
[49]
The court a quo found the appellant an
unimpressive witness. It seems to be an understatement. Almost on
every objectively determinable
fact, he gave false evidence. It is
clear that he had not put a proper version to witnesses, and that his
evidence did not accord
with the version put to the prosecution
witnesses. His version depended on a large number of improbabilities.
In my view the court
a quo correctly rejected the appellant’s
defence as false beyond a reasonable doubt.
[50]
Having regard to all the evidence, one can
find that the appellant was found in the possession of the firearm
and ammunition as
charged. The limited matters that concerned me
about the evidence by Sergeant Alfred Ndlovu
and
Constable Masalesa are not enough to find on appeal that the court a
quo erred in believing them in this regard, and disbelieving
Constable Sehlabela.
[51]
As such the appellant was properly
convicted on all charges (one, two, three, four, seven, eight,
thirteen and fifteen), but not
on count nine.
Sentencing
[52]
In as far sentencing is concerned, a court
of appeal should only interfere in the limited cases. See the
judgment by Holmes JA (Corbett
JA and Kotzè AJA concurring) in
S v Rabie
:
“
1.
In every appeal against sentence, whether imposed by a magistrate or
Judge, the Court hearing the appeal -
(a) should be guided
by the principle that punishment is
"pre-eminently a
matter for the discretion of the trial Court"; and
(b) should be careful
not to erode such discretion: hence the further principle that the
sentence should only be altered if the
discretion has not been
"judicially and properly exercised".
2.
The test under (b) is whether the sentence is vitiated by
irregularity or misdirection or is disturbingly inappropriate
.”
[53]
This is not such a case.
[54]
Accordingly, I propose the following order:
1.
The appeal against the conviction and
sentence in respect of count nine is upheld and the conviction and
sentence are set aside;
2.
The remainder of the appeal is dismissed
____________________
DP de Villiers AJ
I agree and it is so
ordered
__________________
NP
Mngqibisa-Thusi J
___________________
VT Mtati AJ
Heard
on: 15 June 2020 by written submission at the election of counsel
Delivered
on: 17 August 2020 by uploading on CaseLines and by e-mail
On
behalf of the Appellant: Adv CJG Pillay
Johannesburg
Justice Centre
On
behalf of the Respondent: Adv PP Ranchod
Office
of the Director of Public Prosecutions
[1]
The
exact description of the crimes with reference to statutory law, is
not relevant to this appeal.
[2]
The
third accused (Mr Delay Moyo) was convicted too.
[3]
The
third accused (Mr Delay Moyo) was convicted too.
[4]
The
third accused (Mr Delay Moyo), obtained a discharge at the end of
the case for the prosecution.
[5]
The
third accused (Mr Delay Moyo), obtained a discharge at the end of
the case for the prosecution.
[6]
The
third accused (Mr Delay Moyo) pleaded guilty to unlawfully residing
in the RSA, count 14.
[7]
Y
v S
[2020] ZASCA 42
para 45 and 48.
[8]
S
v Mafaladiso en Andere
[2002] ZASCA 92:
“
Dit
is natuurlik so dat 'n hof van appèl nie ligtelike met 'n
feite-bevinding, selfs 'n afleiding uit bewese feite, van
'n
verhoorhof sal inmeng nie. Maar hierdie stelling is niks meer as 'n
riglyn nie en is nie 'n regsreël nie (
R
v Dhlumayo and Another
1948
(2) SA 617
(A) op 695 in fine ev) en waar 'n hof van appèl
oortuig is dat die verhoorhof 'n verkeerde feitebeslissing gemaak
het,
moet hy dit regstel. (Sien
S v
Mkohle
, supra, op 100 e - f;
President of the RSA and Others v
South African Rugby Football Union and Others
[1999]
ZACC 11
;
2000 (1) SA 1
(CC) op 42, [78] - [81].)”
[9]
BR
Southwood,
Essential
Judicial Reasoning
,
LexisNexis, Para 13.2.
[10]
S
v Mbuli
[2002] ZASCA 78
para 57
[11]
It
is not clear from the record if this was a reference to the
appellant’s nephew, referred to below.
[12]
A
ccused
number one, Mr Sheppard Ndlovu.
[13]
It
is not clear from the record if this was a reference to Sergeant
Imbuyisa who was present at the arrest of the appellant.
[14]
The
fourth accused was Mr Newman Mandla Makaila.
It
is not clear from the record if this was a reference to him.
[15]
The
fourth accused was Mr Newman Mandla Makaila.
It
is not clear from the record if this was a reference to him.
[16]
It
is not clear from the record if this was a reference to the deceased
Sergeant Imbuyisa.
[17]
It
is not clear from the record if this was a reference to the deceased
Sergeant Imbuyisa.