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[2010] ZAWCHC 596
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S v James and Another (SS 29/10) [2010] ZAWCHC 596 (2 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT
Case
No. SS 29/10
In
the matter between
THE
STATE
Versus
1.
KWANELE JAMES
…........................................................................
Accused
1
2.
MZUVUKILE THOSWA
…..................................................................
Accused
2
JUDGEMENT:
2 DECEMBER 2010
WEINKOVE,
AJ
The
accused were arraigned before this court on the following counts:
Count
1: Arson;
Count
2: Murder
Provisions
of the Act on Minimum sentences, 1997 (Act 105 of 1997) are
applicable
First
alternative contravening section 18(2)(a) of the Riotous Assembly
Act 1956 (Act 17 of 1956)
Second
alternative contravening section 18(2)(b) of the Riotous Assembly
Act, 1956 (Act 17 of 1956).
Count
3:Murder
Provisions
of the Act on Minimum sentences, 1997 (Act 105 of 1997) are
applicable
First
alternative contravening section 18(2)(a) of the Riotous Assembly
Act 1956 (Act 17 of 1956)
Second
alternative contravening section 18(2)(b) of the Riotous Assembly
Act, 1956 (Act 17 of 1956).
Count
4: Attempted Murder;
Count
5: Attempted Murder; Count 6: Attempted Murder;
Count
7: Contravening of Section 1(a) of the Witchcraft Suppression Act,
1957 (Act 3 of 1957)
Count
8: Contravening of Section 1(b) of the Witchcraft Suppression Act
1957 (Act 3 of 1957); and
Count
9: Contravening of Section 27(1) of the Explosives Act 1956 (Act 26
of 1956)
Alternatively,
contravening Section 28 of the Explosives Act, 1956 (Act 26 of 1956)
[1]
It is alleged by the State in respect of count 1 that on or about
2
nd
March
2009 at or near 54 529 Sidwadwa Street, Kuyasa in Khayelitsha
unlawfully and intentionally and with the intent to injure
NONJENGEZINYE MATWA in her property set fire to and thereby damage
or destroy her house, being an immovable structure, and the
property
or in the lawful possession of the complainant.
[2]
In respect of counts 2 - 6, it is alleged that on that night the
complainant, NONJENGEZINYE MATWA, her adult daughter YALEZWA
PUWANA,
her minor daughters, THEMBAKAZI MATWA and ANELISA MATWA, as well as
her minor grandson LIYEMA PUWANA were at her house
at 54 529
Sidwadwa Street, Kuyasa, Khayelitsha. During the night NONJENGEZINYE
MATWA and her children woke up to find the house
burning. When
NONJENGEZINYE MATWA tried to open the door she found it to be locked
or shut in such a manner that she was unable
to open it. Members of
the community arrived and kicked down the door and allowed them to
escape. Evidence of the remains of
a so-called petrol bomb was found
on the scene. The house was severely damaged.
[3]
All the victims were transported to hospital, but LIYEMA PUWANA
(minor grandson) and YALEZWA PUWANA (daughter) later died
in
hospital as result of burn wounds they sustained.
[4]
In respect of counts 7 and 8 the State alleges that the death of
LIYEMA PUWANA and YALEZWA PUWANA resulted from or is directly
related to any offence contemplated in Section 1(a) to (e) of the
WITCHCRAFT SUPPRESION Act, 1957. (Act
3
of
1957).
[5]
In respect of count 9, the State alleges that the accused wilfully
caused an explosion whereby life and property of NONJENGEZINYE
MATWA
were endangered. Alternatively were in possession of or had under
their control, an explosive under such circumstances
as to give rise
to a reasonable suspicion that they intended to use such explosive
for the purpose of injuring NONJENGEZINYE
MATWA and/or damaging her
house at number 54 529 Sidwadwa Street, Kuyasa, Khayelitsha.
[6]
Both the accused pleaded not guilty to all nine (9) charges and the
alternate charges.
[7]
Adv Haldenby on behalf of the accused gave a plea explanation in
terms of Section 115(1) of the Criminal Procedure Act, 1977
(Act 51
of 1977). Accused 1 denies any involvement in this crime and that he
was never at the crime scene at the material times.
His defence is
one of alibi, that he spent the night at accused 2's place where
they watched videos with two lady friends.
[8]
The plea explanation with regards to accused 2 is the same. If in
terms of Section 220 of the Criminal Procedure Act, 1977
(Act 51 of
1977) the defence made on behalf of both accused formal admissions,
as contained in Exhibit "A", regarding
the post mortem
examination on the bodies of the deceased. Dr GAVIN MARTIN KIRK
concluded that the cause of death in respect
of LIYEMA PUWANA was as
result of "burns" and Dr JANETTE VERSTER concluded that
the cause of death in respect of YALEZWA
PUWANA was "consistent
with burns and the consequences."
[9]
On 24 November 2010 the accused further formally admitted that the
sand collected on the outside of the window frame of the
bedroom
where the alleged petrol bomb entered the room, had been analysed by
Captain
Manqaba,
a Senior Forensic Analyst, and that he found that the exhibit
contained GASOLINE, which is comparable to the commercial
product of
petrol. That Captain Manqaba correctly noted his findings in the
forensic report. That the sand which was collected
on the crime
scene contained a commercial product namely "petrol" -
exhibits "M" and "N".
[10]
That Dr Khadah of the Khayelitsha Heath Centre on 2 March 2010
examined the complainant, NONJENGEZINYE MATWA and her two
daughters
ANELISA MATWA and THEMBAKAZI MATWA and she made the following
findings:
That
the complainant NONJENGEZINYE MATWA had burn wounds on her face and
arms - Exhibit "0";
That
ANELISA MATWA had inhaled smoke - Exhibit "P";
That
THEMBAKAZI MATWA had inhaled smoke - Exhibit "Q".
[11]
Photo's and key to photos of the scene of the crime were
provisionally handed in as Exhibit "B".
The
following aspects of this case appear to be common cause:
(a)
That the complainant NONJENGEZINYE MATWA resides at No 54 529
Sidwadwa Street, Kuyasa, Khayelitsha
(b)
That on the Sunday evening of 2 March 2009, she was sleeping in her
house with YALEZWA PUWANA (her adult daughter), THEMBAKAZI
MATWA
(her minor daughter), ANALISA MATWA (minor daughter) and LIYEMA
PUWANA (her minor grandson).
(c)
That on the said date complainant's house was set on fire by a
petrol bomb.
(d)
That LIYEMA PUWANA and YALEZWA PUWANA died of burn wounds sustained
during the burning of the house.
(e)
That NONJENGEZINYE MATWA, THEMBAKAZI MATWA and ANALISA MATWA all
received medical treatment for minor burn wounds and smoke
inhalation.
[12]
In view of the accuseds' plea explanation, the question the court is
required to answer in this case, is still whether the
accused
committed the crimes as set out in the charge sheet.
[13]
The State called several witnesses in order to prove its case.
(a)
Nonjengezinye Matwa, the complainant, was the State's first witness.
She resides at 54 529 Sidwadwa Street, Kuyasa, Khayelitsha.
She
described how on 1 March 2009, a Sunday night, she had gone to bed
and was sleeping in her room in the same bed with her
adult daughter
Yalesha Puwana and her daughter's child Liyema Puwana (her minor
grandson of 2 years). The complainant was sleeping
with her head at
one end of the bed and her daughter and grandchild sleeping at the
other end of the same bed. Her two (2) minor
children were asleep in
the kitchen. She said that at some time past 23h00 she was awoken
and heard voices outside and a knocking
at the door. She said a male
voice asked whether he could buy some offal [complainant sells offal
and sheep heads]. She heard
a male voice. Only one person spoke. She
did not recognise the voice of the person. She said she looked at
her watch; it was
about 23h10 at the time. She told the person she
did not have any sheep heads for sale.
She
further testified that she was not sure whether she was "sleeping",
but shortly afterwards she heard a "thing"
coming through
her bedroom window and when she looked she saw her children in
flames; they were burning. Another object thrown
at the kitchen
window exploded, but landed outside the house. YALISWA, the mother
of the child was burning and she had already
left of the bedroom.
The complainant stated that she then grabbed the child LIYEMA
PUWANA. She took a blanket and wrapped it
over the child. She then
shouted to THEMBAKAZI MATWA and ANELISA MATWA who were in the
kitchen area (her
[14]
The next state witness, THEMBAKAZI MATWA testified that she is 17
years of age and the daughter of NONJENGEZINYE MATWA. On
the evening
of Sunday 1 March 2009, she was sleeping in her mother's house in
the kitchen area with ANALISA MATWA (minor daughter).
She confirmed
the evidence of her mother regarding what happened that evening.
[15]
ANALISA MATWA stated that she is 13 years of age and the daughter of
NONJENGEZINYE MATWA. She testified that she slept in
the kitchen
area with her sister THEMBAKAZI MATWA on the Sunday evening of 1
March 2009. Her testimony about the events on that
evening, confirms
the evidence of her sister and her mother.
[16]
The State then called THULISA MALUWANE who was later identified by
her nickname, which was Nontiti. Her evidence was that
she was 18
years of age and at the time of the incident and was living with her
mother in a shebeen adjacent to the complainant's
house. A summary
of her evidence in chief was that on Sunday during the day, her
friend, a taxi driver, Andile arrived at the
shebeen. The accused
also arrived at the shebeen. She knew the accused from seeing them
in the area. Accused no 1 borrowed a
bottle that the family used to
keep water in the fridge. It was given to them by her mother who was
reportedly under the influence
of alcohol. Nontiti described it as a
"four-cornered two or three litre plastic bottle". Andile
then said she must
go with him to friends in MAKHAZA. The accused
then asked Andile for a lift to the BP garage to buy petrol. Andile
agreed to
give the accused a lift to the garage. According to
Nontiti, the accused alighted with the empty bottle at the garage
and filled
the container with "red" petrol. The accused
then climbed into the taxi with the container filled with petrol.
She
testified that she could see that it was petrol. The contents
was red and she also smelled it. She quarrelled with the accused
in
the taxi for using their mother's water bottle for the petrol. On
their way back to her house in Kuyasa, the accused alighted
with the
petrol near the SPARI - shop. She estimated the time at 5 o'clock
the afternoon when they came back to her house. She
further
testified that at approximately seven o'clock in the evening, she
saw the accused outside her house standing at a dustbin
drinking.
The accused were joined by XOLEWA and BABALWA. The four of them left
together, but she did not notice the time. She
further stated that
it is possible for her to drink the whole day and then only get
drunk at night when she goes to sleep.
[17]
Initially NONTITI made a good impression on this court and frankly
conceded that she was accustomed to drinking. As the case
proceeded
it appeared that on the day in question, she had started drinking in
the morning and continued to do so until later
afternoon/evening.
She drank a concoction which was described as "storm"
consisting of cider drink mixed with vodka.
In examination in chief,
Nontiti said she does not know how many bottles of "storm"
she drank. It seems most probable
that she was far drunker that day
than she would admit.
(a)
In cross-examination and when other witnesses were called, it became
increasingly apparent that Nontiti was not altogether
a reliable
witness, obviously because of the extent to which she had been
"imbibing" liquor that Sunday. The court
considered that
although she tried her best to recollect the events as accurately as
possible, she was confused. It would, therefore,
be dangerous to
accept any part of her evidence, unless that evidence was
corroborated by other acceptable testimony. The witness
was
cross-examined at length and her evidence revealed several
shortcomings and contradictions. As it would play no real part
in
the outcome of this case the court is not going to elaborate on
these aspects of her evidence. The issues corroborated by
the
testimony of Andile is, however, extremely relevant to this case and
is accepted by the court as true and convincing.
(b)
It follows from the aforegoing that the court accepts her evidence
that Accused No. 1 asked Nontiti's mother if he could borrow
a
container and was allowed to take the refrigerator water bottle. The
court further accepts that both accused requested Andile
to give
them a lift to the BP garage so that they could purchase petrol. The
court also accepts his and Nontiti's evidence that
the Accused took
the plastic bottle with them and when they got to the BP garage,
alighted from the vehicle and had the bottle
filled with petrol. The
court accepts that the container had petrol in it because both
Nontiti and Andile described the smell
of the petrol and Andile
confirmed Nontiti's evidence that she had reprimanded the Accused
for using the family water bottle
to convey petrol in it. Andile
said he heard this altercation and smelt the petrol.
(c)
As far as the time when this incident occurred is concerned, the
court prefers the evidence of Andile that this journey was
undertaken in the evening at about 21h00, not in the afternoon at
about 16h00 or 17h00, as stated by Nontiti in her evidence.
Both
accused admit they travelled in the taxi that evening, but deny that
they got out of the vehicle at the BP garage, or carried
any
container with them, or purchased any petrol, or conveyed any petrol
in a container. In this respect the court prefers the
evidence of
Nontiti to the extent that it is confirmed by Andile that he saw the
accused going towards the petrol pumps. We also
accept Nontiti's
evidence that when the container was filled with petrol it was
placed on the floor of the taxi in the seat-row
immediately behind
the driver, close to where Nontiti was sitting.
(d)
It is also common cause that both of the Accused requested to be
dropped off shortly before the taxi got back to Nontiti's
home and
they alighted at the shop which is called Spari.
(e)
Nontiti said that the Accused had offered as an explanation for
transporting the petrol that they intended to use it to fill
a motor
vehicle belonging to Accused No. 2's sister and then use that
vehicle to travel to another shebeen or bar in Delft known
as The
Italian Pub. The court does not accept this evidence because it is
not corroborated by Andile who, according to Nontiti,
was the one
who asked the question as to what they were going to do with the
petrol. Andile did not give such evidence and it
is denied by both
Accused. The importance of Nontiti's evidence, as read together with
Andile's evidence, is that on that Sunday,
shortly before the
incident, both Accused obtained possession of a plastic container
suitable to transport petrol, requested
Andile, who had a taxi, to
give them a lift to a BP garage, bought petrol, filled the container
with petrol and then got off
the taxi shortly before arriving at the
home of Nontiti and were later seen against at that place without
any petrol. Similarly,
the court prefers the evidence of Andile that
when he got to the BP garage, he did get out of the vehicle and he
inflated the
tyres of his vehicle, while both accused left the taxi
to fill the container with petrol, that the accused got back into
the
taxi with the petrol and that he, Andile, on his way back to
Kuyasa, dropped them off near the Spari shop.
[18]
The State called as a next witness BABALWA DONASHE. She is 19 years
of age and is employed in a restaurant. She testified
she met her
friend, the witness, Xolelwa at her house at about 20h00 on the
evening of 1 March 2009. She stated that they met
the two Accused at
22h30 outside the house of Nontiti. They were standing beside a
dustbin, drinking beer. There were some empty
beer bottles. She says
she and her friend were asked by Accused No. 1 to join them and they
shared a glass of beer between them.
The witness says that this was
the first glass of alcohol she'd had that day. She says that Accused
No. 1 then said they should
go to accused No. 2's hokkie, which
seems to be some kind of small shack where he was living behind his
family's home. She described
how accused No. 2 gave them music
CDs/videos and they watched the videos and listened to the music
over the TV set. She said
there was nothing to drink there and said
that the accused said they would go to buy some drink. She described
that after some
time both accused took off the shirts they were
wearing and each put on T-shirts. They were asked why they were
taking off their
shirts and putting on T-shirts, but they did not
reply. She described accused No. 2's shirt as being white with small
black stripes
and accused No. 1's shirt as being black with small
white stripes. She said she was unable to recall the colour of the
T-shirts,
but said that both were short sleeved. She said that when
her friend, Xolelwa, wanted to go with the Accused to buy the
liquor,
she was told she could not go because they felt that if she
went out she would want to go home. They then took about three empty
Castle bottles and they left. They claimed that they were going to
go to Nontiti's place to buy beers and they left the two girls
watching the videos. She said the bottles were brown in colour. She
said that after about 20 minutes they came running back and
said
that skollies were chasing them. She described them opening the door
in a rush and that they still had the empty bottles
with them in a
plastic bag. They then put the plastic bag down, took off the
T-shirts that they had been wearing previously and
put their other
shirts back on. She said the accused did not tell the girls why they
were again changing shirts. They then said
that all of them should
go together and look for beers and they did so. They left the shack
and walked in the direction of Xolelwa's
home - in the direction of
the Spari shop. She said that that must have been past midnight.
(a)
She said that near a creche in the vicinity they came across the
fire brigade and the two girls wanted to know what was happening.
She said she and her friend asked the person driving the fire engine
but they got no answer because it just continued on its
way. She
said that the fire brigade was moving in the direction opposite to
which they were walking, the witness then said she
left the group
and went home.
(b)
In cross-examination, the witness said that it was probably cold in
April at that time but she said that when the Accused
took off their
shirts, they took off long sleeved shirts and put on short sleeved
T-shirts.
(c)
In cross-examination, it was put to this witness that the Accused
will say that they did not change their shirts. They say
they put on
jerseys because it was cold. She emphatically denied any likelihood
that she could be making a mistake on this issue.
It was put to this
witness that the Accused will say they rushed into the house because
they were being chased by the Neighbourhood
Watch, who thought they
were skollies. The witness insisted that they said they were being
chased not by the Neighbourhood Watch
but by skollies.
(d)
It was put to the witness that the Accused will say they never saw
the fire engine at all. The witness said they heard a siren
and that
Accused No. 1 had said that perhaps the Neighbourhood Watch were
telephoning the Police. He had then suggested that
they all go back
to Accused No. 2's house and abandon the search for beer.
(e)
When Babalwa shouted to the fire engine driver where the fire was
they did not get a response but Accused No. 1 had said "nothing
of yours has burnt so let's go" [Record p.212(18)]. The court
regards this as a spontaneous response by accused 1. The question
is, how would he have known that nothing of the witness had been
burning.
[19]
The State called LOYISO MALINDI a constable stationed at Harare
police station. He stated that he has seven [7] years experience
in
the police service. Constable Malindi testified that he was on
routine patrol duty in the area on i
st
/2
nd
March
2009. At approximately half past twelve [12h30 am] on 2 March he
received a complaint from radio control that a house was
burning in
KUYASA. He then proceeded to the house which was reported to be
burning. It took him about 20 minutes with the police
van to get to
the scene. The siren of the police van was on. He was accompanied by
a colleague.
(a)
On his arrival people were extinguishing the fire in the house with
water and soil. He was then told that there were no people
inside
the house but that three persons, one a minor child, had been taken
to hospital by private car to be treated for burns.
(b)
The fire brigade arrived about 30 minutes later, but soon left as
the fire was extinguished.
(c)
Const Malindi placed a police cordon around the house and then
summoned Const Swart a police official to take photos of the
scene.
Const Swart arrived on the scene at 01h55 am and took photographs of
the house and scene. He took pictures inside and
outside the house,
including an exterior photo of a piece of cloth and broken green
beer bottle glass. [By agreement the photos
and key to photos were
handed in as exhibit "B".] He then also called the standby
detective Const NDWANE, who on arrival
then called the Dog Unit to
the scene. Detective Constable Malindi left the scene and went to
the Site B day hospital where he
found doctors attending to the
burned patients.
His
evidence does not really bring the matter much further, however,
Detective Constable Malindi's evidence that he received a
report at
12h30 am, confirms the complainant's evidence regarding the time
that her house was set on fire. His testimony also
corresponds with
the evidence of Babalwa Donashe and Xolelwa that when they left the
"hokkie" of accused 2 past 12
o'clock and on their way to
the Spari shop, they heard a siren (police van). The accused in
cross-examination stated that there
was a siren in the distance.
This
evidence clearly confirms that the accused were in the close
vicinity of the burning house, shortly after the incident occurred.
[20]
The State then called XOLEWA KEWUTI who testified that on Sunday 1
March 2010 at 11h00 pm. She was at her house with her
friend
BABALWA. They then decided to visit a friend NONTITI at her mother's
shebeen. She told the court that on arriving at the
shebeen at 11h30
pm, they met Kwanele [accused 1] and BEZA [accused 2]. They were
standing drinking outside the shebeen beside
a dustbin drinking.
BEZA [accused 2] invited herself and Babalwa to his shack to listen
to music. It took about 25 minutes to
walk to the shack. She stated
that the accused wore shirts with short sleeves. The accused then
said they were going to look
for beer at ENKANINI a shanty town near
Kuyasa. They changed their shirts and put on short sleeved T-shirts.
She never saw jerseys.
They left the shack and she and BABALWA
stayed behind listening to music. Suddenly accused 1 and 2 came
rushing in without beer
and out of breath, saying they have been
chased by skollies.
(a)
Her evidence in chief and cross-examination differed from that of
her friend BABALWA, and but she was a less convincing witness
than
BABALWA. In some respects her version contradicted that of BABALWA
who was with her at the shack. When faced with the contradictions
between her version and that of BABALWA, she sometimes said she did
not remember. Although her evidence was generally unconvincing,
some
aspects of her testimony relevant to the case, was corroborated by
the evidence of BABALWA.
That
they met the accused on that evening outside NONTITI's place
That
they walked to the "hokkie" of accused 2 to listen to
music
That
the accused later changed their smart shirts by putting on short
sleeved T-shirts
That
the accused left the shack for about 20 minutes and came rushing
back, out of breath
That
the accused told Xolelwa and BABALWA they were chased by "skollies".
It
seems to us that the evidence of Babalwa and Xolelwa demonstrates no
more than that the accused had a clear window of opportunity
to
commit this offence. Their alibi is accordingly nonexistent.
[21]
The State called as a next witness ANDILE NOMNGANGA, 24 years of age
who told the court that he suffers from HIV and had
contracted TB.
He testified that in March 2009 he worked as a taxi driver of a
QUANTUM vehicle in Kuyasa, Khayelitsha. He stated
that on Sunday 1
March 2009 he arrived at NONTITI's house [shebeen] at about 6 pm
[18h00]. He was sitting there drinking beer
and playing music.
(a)
He only had half a glass of beer that evening and gave the balance
to his friend Sol. It them came to his mind that he needed
to put
air in the taxi's tyres as one had a slow puncture. At that time his
taxi was parked outside and NONTITI and her friends
were playing
music in the vehicle (taxi). Andile then asked Nontiti and her
friends to accompany him. As he got into the taxi,
accused 2 who was
with accused 1, approached him and asked where he was going. Andile
told accused 2 that he was going to the
BP garage in Makhaza. He
then told the court that Biza [accused 2] and Kwanele [accused 1]
asked for a lift as they wanted to
buy some petrol. He testified
that they were carrying a water bottle. [Nontiti in her testimony
said it was the water bottle
her mother used to keep water in the
fridge]. According to Andile it could have been a one litre water
bottle. He estimated they
left Nontiti's place at about 9pm and that
it took about 10 to 15 minutes to reach the BP garage at MAKHAZA. At
the BP Garage,
Andile said he inflated his tyres. He noticed that
the accused alighted and he saw them buying petrol. The accused then
came
back and climbed into the van.
(b)
Andile testified that he could smell the petrol and that he could
hear the accused 1 and Nontiti arguing about using her mother's
water bottle for petrol. It was smelling in the taxi and Nontiti
chided them for not putting the cap on properly. [His evidence
corroborates Nontiti's evidence regarding the quarrel over the
petrol in her mother's water bottle.] On his way back to Nontiti's
shebeen as he entered Kuyasa, the accused asked to be dropped off.
They alighted and disappeared among the RDP houses. Andile
then
drove to Nontiti's house where he at approximately 9h40 pm dropped
Nontiti and the children off and then went home.
(c)
In cross-examination, the defence put to the witness that the
accused would tell the court that there was no container. But
Andile
stuck to his evidence that Nontiti argued with them over the
container (water bottle).
(d)
The court was impressed with this witness. Throughout his evidence,
he distanced himself from the accused and from Nontiti
and her
friend, whom he constantly described as children. He made the point
that he did not mix with children and regarded himself
as an adult.
We find Andile a credible and convincing witness and have no doubt
that on this occasion the accused obtained a
lift with Andile, went
with him to the BP Garage in MAKHAZA and purchased petrol in a
container [plastic water bottle] which
they had borrowed from
Nontiti's mother.
[22]
The state called MONGEZI JAMES, the uncle of accused 1 as the next
witness. Mr James presented as a respectable middle-aged
man. He
testified he was telephonically summoned during March 2009 by his
sister, NONGONGA JAMES of Cradock and she requested
him to hurry to
her house in Kuyasa as there was a problem. NOMBONGO, his niece, was
living in his sister's house in Kuyasa with
accused 1 and his nephew
Xolani. He went to the house and noticed that the house opposite [in
front] of his sister's house was
burnt. Nombongo then made a report
to him about the burnt house. Kwanele [accused] was not at home; he
was told that Kwanele
was at work. People from the community
[residents] arrived and they made inquiries about the whereabouts of
Accused 1.
(a)
The residents then told MONGEZI to go to a community meeting to hear
what happened as he was accused 1's uncle. On arriving
at the place
in the street where the community members were, he found a girl and
a young boy [identified in evidence as accused
2] being interrogated
by community members. He did not know the two young people as he saw
them for the first time on that day.
Kwanele [accused 1] was not
present at this community meeting.
(b)
When the meeting ended, it was already late, so he asked the police
at Harare police station to take him to his house in Site
C. The
next morning the Tuesday, he went back to Harare police station to
look for accused 1 and found him there. Accused 1 was
carrying a
piece of paper in his hand asking for the investigating officer in
charge of the inquiry into the burning of the house.
Accused 1 was
not arrested at that stage.
(c)
The investigating officer (detective) then arrived. He said that no
one had laid a charge and that he must take accused 1
back to his
(uncle's) home in Site C and keep him there. If accused 1 was
required he would phone. Mongezi testified that as
they left Harare
Police station accused 1 disappeared. He went back to his house in
Site C and later took a taxi to Kuyasa. Mongezi
could not find
accused 1 at his sister's house. He then sat and waited for the
residents to arrive. Cousin Grey Witbooi also
arrived.
(d)
The residents then told them that they wanted to see accused 1 on
Wednesday at a community meeting. As they arrived back in
Site C,
they saw accused 1 leaving the house. They shouted to him to get
back inside the house and he did so. The witness described
how he
had a conversation with accused 1. His children, a girl of 17 and a
boy of 9 were in the house. They were sitting on a
bed watching
television. Grey Witbooi, was also present. Mongezi asked accused 1
what happened in Kuyasa and accused 1 gave him
a statement about
what happened in the presence of Mr Witbooi and the two children.
(e)
At this stage, the defence objected to admitting the statement made
by accused 1 to the witness on the grounds that the making
of the
statement violated accused 1's constitutional rights not to be
forced or compelled to make any admission or confession
and on the
basis that any statement made by accused 1 was not freely and
voluntarily made. Further that there was a causal connection
between
what was said to Mongezi James (uncle) and what then followed with
regards to with what was said to the police. Further
that accused 1
was acting under threat and intimidation from community members.
(f)
Adv Haldenby requested that the evidence regarding accused 1's
statement to Mongezi James, what was said at the community
meeting
and what was eventually given to the police should be held within
one trial within-a trial, as the different statements
could not be
separated into distinct sections.
(g)
Adv Haldenby further stated that she was not saying that the witness
Mongezi James threatened accused 1, but that certain
things happened
on the Monday and Tuesday when he spoke to this witness and when
accused no 1 went to the community meeting,
those factors were
playing on his mind and that he was acting under threat and duress
when he made the statements.
[23]
The court then commenced with a trial within a trial in respect of
the following statements made by accused 1 and accused
2
respectively:
(a)
the
verbal statement regarding the incident made by
accused 1 to his
uncle Mongezi James at his house in Site C.
(b)
the verbal statements regarding the incident made by accused 1 and
accused 2 at community meetings.
(c)
The written statement [confession] made by accused 1 to Capt
Mgwandla.
(d)
The written statement [confession] made by accused 2 to Capt van der
Merwe.
The
state called the following witnesses in the trial within a trial in
order to prove that the statements were made voluntarily
and without
any undue influence or threats [as alleged by the defence].
Mongezi
George James - uncle of accused 1;
Nopmbongo
James - sister of accused 1;
Khaniso
Nyudwana - a detective constable and also investigating officer in
this case [recalled on 3 November 2010];
Capt
Fumanukile Mgwandla from Khayelitsha police station in respect of
the statement made to him by accused 1;
Capt
Isak Johannes van der Westhuizen from the S A Police Station,
Harare;
Capt
Lenandi van der Merwe from the SA Police station. Harare in respect
of the statement made to her by accused 2.
After
the state called the said witnesses and the accused testified
regarding the admissibility of the statements, the court evaluated
the evidence and made the following order:
(a)
that the statement made by accused 1 to his uncle Mongezi James, be
provisionally admitted as being freely and voluntarily
made;
(b)
that is far as statements made at the community meetings by either
of the accused implicating themselves, nothing should be
admitted as
evidence. The court does not intend to say more on this issue as it
is self evident that these types of interrogations
do not produce
statements that can be regarded as being freely and voluntarily
made;
(c)
that the statement [confession] made by accused 1 to Capt Mgwandla
be provisionally admitted as being freely and voluntarily
made;
(d)
that the statement made by accused 2 to Capt van der Merwe be
provisionally admitted as being freely and voluntarily made.
After
conclusion of the trial within a trial the prosecution and defence
handed in a statement of agreement Exhibit "S"
whereby
they agreed that the evidence led within the trial within a trial be
admitted as evidence in the main trial, and be subjected
to
credibility assessment by the trial court,
except
any evidence emanating from the community meetings held with the
accused.
This
is in accordance with the court's ruling that such evidence be
regarded as inadmissible.
[24]
At this stage of the proceedings the defence approached the court to
allow the interposition of a defence witness who was
otherwise not
available in the ordinary course of the proceedings. The court
allowed the defence to call Babalwa Thuswa, the
sister of accused 2.
Her evidence will be considered as part of the defence case.
[25]
In view of the court's ruling that the confession made by accused 1
to Capt Mgwadla was admissible in evidence, the State
recalled the
witness to testify regarding the contents of the statement. He
confirmed the contents of the statement and read
it into the court
record as exhibit "K". In the statement accused 1 stated
that he on the day in question went to the
garage with Andile's taxi
and that he bought petrol. That he and accused 2 set the
complainant's house on fire. They used three
Amstel beer bottles
filled with petrol to set the house alight.
(a)
In cross-examination it was put to the witness that the statement
made by accused 1 was false. That the statement was simply
what
accused 1 was told to say by the police. The witness denied it. Capt
Magwadla stated that he wrote what accused 1 told him.
Further, that
accused 1 never told him that he was afraid to be sent back to the
community to confront them if he did not co-operate.
He testified
that he explained accused 1's rights and that there was no one to
fear. He assured him not to be afraid. Accused
1 appeared to be cool
and relaxed at the time he took the statement. Statement handed in
as exhibit "K".
(b)
Capt Mgwadla is an experienced police officer. The court was
impressed with his demeanour in court. He did not contradict
himself. Accused 1 had the opportunity to inform Capt Mgwadla of any
threats and/or any other concerns. The court is satisfied
that
accused 1 made the statement freely and voluntarily. The allegation
that accused 1 simply said what he was told by the police
to say, is
rejected in view of the fact that it was a very detailed statement
and would have been difficult for the accused to
memorise all that
information. The court is satisfied that accused 1 was properly
warned of his rights and had made a spontaneous
statement.
[26]
Mongezi James testified with regard to accused 1's statement to him
that he had a discussion with accused 1 on the Tuesday
night at his
house in Site C. The people present were himself, his cousin Grey
Witbooi and his two children. He asked accused
1 what is that he
did. He remained silent. After a while accused 1 told him he did do
something in Kuyasa. Then accused 1 said
that he burnt or set a
house alight in Kuyasa. Accused 1 told us that he set the
neighbour's house alight in Kuyasa. Accused
1 did not say why or
when he burnt the house. Mongezi James stated that they never
pressurised accused 1 to make the statement.
He denied asking
accused 1 many questions for a long time or forcing him to admit
anything.
(a)
In cross-examination it was put to the witness that accused 1 denied
any involvement in the incident. The witness then referred
to three
cellphone messages he received from accused 1 in October 2010. First
one saying "I have read your statement "boetie"
I was
asking that you try to change it. It is better that you don't go,
and if you do go then there will be a great problem.
I want us to
talk you don't want to". [Mongezi explained that "boetie"
means elder brother].
Second
message: "uncle, I ask you to listen to me. What I have to say
is very important."
Third
message: "I request you don't go to court. If you go to court
that will be the end of me. Please. Accused 1 stated
that he had no
access to cellphones in Pollsmoor.
(b)
Accused 1 denied sending the text messages. The only explanation
accused 1 could give was that he had no access to a cellphone
in
Pollsmoor Prison. Who else would send text messages relating to the
incident to Mongezi? The only inference that can be drawn
is that
accused 1 sent the text messages to his uncle. The text messages
refer to Mongezi as "boetie" or "uncle".
Accused
1 told the court that there was bad blood between him and his uncle
and that their relationship was not good. The court,
however, got
the impression that his uncle was very concerned about him. Mongezi
testified that he went to look him on more than
one occasion and
also took him to his house for the night for his own safety. The
accused 1 made the statement to his uncle within
the family
environment where he was among his own people. The uncle is an
immediate member of the family and brother of accused
1 's late
mother. Mongezi impressed the court as a calm and composed person
and found him to be a credible witness.
[27]
The State called Capt Lilandi van der Merwe to testify regarding the
statement (confession) she took from accused 2. Capt
van der Merwe
is a senior female Captain with the South African Police Services,
(more than 20 years service) She described in
detail how accused no
2 was brought to her and that he seemed cool and relaxed and
certainly not agitated. She described how
he had been brought to her
by Capt van der Westhuizen and described how accused 2 sat alongside
her at a table. She said that
he spoke coherently in English; she
described how he was properly warned of his rights in terms of the
Constitution and of his
rights against self-incrimination. As
indicated in my reasons for admitting the confessions made to the
two Captains, I find
that the evidence of the two Captains to be
satisfactory in every respect and that the statements made to them
were freely and
voluntarily made with full knowledge of rights in
law and in terms of the Constitution. The witness impressed with her
conduct
in court. She was precise, confident and clear in all
respects.
[28]
Nonbongo James testified that she is accused No. 1's older sister,
described how her mother fell ill in 2007 and then died
mysteriously. She testified for the state that Accused No. 1 said a
person in Nyanga could be consulted by the family. She said
that in
2008 Accused No. 1 said they should try to discover the reason for
their mother's death. She said that she, Accused No.
1 and the
previous witness (the Accused's uncle, Mongezi James) went to
Nyanga.
The
woman was "Abigail" some sort of fortune teller with a
"magic mirror". Only one visitor could gaze into
the
mirror, but could then tell what was seen. This occurred in
September 2008. Accused No. 1 and her uncle, Mongezi James, sought
to know why his mother died.
(a)
Accused No. 1 drank a potion, his shoes were removed and he sat
alone in front of "the mirror". As he watched, he
related
what he saw, denied by accused 1 later. He said he saw his mother in
their home in Kuyasa. He then saw complainant put
powder near or
under the door of the house. He saw his mother cross this powder
when she went out to work. Accused No. 1 described
the powder as
being whitish/black.
(b)
She said Abigail was paid R350 by Accused No. 1's uncle, Mongezi
James, and Accused No. 1's brother.
(c)
The witness described how on the night of the burning in the middle
of the night (after midnight) she heard screaming. She
described how
the house burned.
(d)
One day later she said that she was at a meeting when Accused No. 1
was being questioned by the community, but said that he
could not
answer as the investigating officer (Det Const Nduywana) arrived and
took him away.
She
did not know the reason why the house was burnt, but said community
members wanted to see Accused No. 1 and alleged they threatened
to
burn down the family house and murder the youngest brother,
(uncorroborated) She testified that on that Monday, immediately
after the burning down of the house, their younger brother, Xolani,
was sent to the Eastern Cape. This conflicted with evidence
from
Accused No. 1, who cites a date long after. She confirmed that a man
with the broomstick (Patrick) had wanted to hit Accused
No. 1. The
witness said Accused No. 1 did answer the community and the answers
made interrogators angry. Later, however she denied
seeing any
broomstick.
[29]
Detective Constable Nyudwana was the investigating officer in this
matter and his testimony and cross examination runs from
page 419 of
the record up to page 514. Most of this is cross-examination is not
relevant.
It
appears that he described his office as being room no 34 and later
corrected this to read room no. 10. Other than this, he
never
contradicted himself in any way.
He
described the circumstances of the arrest of the two accused and
described the circumstances under which they made statements
at the
community meeting. In view of the fact that this court has found
that any statements by any of the accused could not have
been freely
and voluntarily made it is not necessary to deal with this witness's
evidence in connection with what they said at
these meetings.
His
evidence is however relevant in connection with the circumstances
surrounding the making of these statements to the two captains
in
the police force on the 5
th
of
March. A great deal of time was spent in cross-examining this
witness as to what he told the two accused before they made
statements to the captains and the general challenge that was made
against his evidence that both the accused were fully informed
of
their constitutional rights and their
rights
not to implicate themselves in any statement. Again in the light of
the evidence given by the two captains concerned, it
is not
necessary to analyse in depth the cross-examination of this witness,
because in both instances, the captains who took
the statements from
the accused were unconnected with this prosecution and were actually
stationed at another police station.
No inroad into their testimony
was made by the cross examination of these witnesses and this court
is satisfied that the statements
made to the two captains were made
under circumstances where the accused were fully informed of their
rights; they had elected
to make these statements. The statements
were freely and voluntarily made.
(a)
Insofar
as an attack has been made on the credibility of Detective
Constable
Nyudwana, we as the court found him to be a satisfactory witness and
we are satisfied that his merits as a witness and
the demerits of
the accused as witnesses are beyond question. We found Detective
Constable Nyudwana to be a satisfactory witness
in every respect and
we prefer his evidence where it conflicts with the testimony given
by either of the accused.
Again
as previously indicated it is not necessary to rely on the evidence
of the Constable for the purposes of determining the
credibility of
the accused. However, we are satisfied that both accused voluntarily
elected to make statements and we accept
that they requested the
detective to take them to make written statements.
(b)
It
is significant that in cross-examining Detective Constable Nyudwana
it was put to him that accused 2 was "dragged out
of his home,
dragged out of his bed on Monday morning and taken to a meeting".
That evidence differs substantially from
the evidence ultimately
given by accused no 2's sister.
(c)
It is significant that this witness said that he had advised accused
no 1 and his uncle that they should not attend the meeting
of the
community the evening that he was ultimately arrested [record page
456 line 15]. Again, I do not propose to deal with
the events at
that meeting because I'm not satisfied that anything that either of
the two accused could have said at these community
meetings could
have been freely and voluntarily made.
(d)
This court is also satisfied that Detective Constable Nyudwana
properly and adequately warned both accused of the implications
of
them making a statement to the captains concerned and adequately
informed them of their rights in regard to the making of
statements
and in regard to the Constitution. In any event, we are completely
satisfied and it was certainly not challenged in
cross examination,
that both accused were again given proper and adequate warnings by
the Captains concerned and had their constitutional
rights explained
before they made any statements.
[30]
In the evidence of Captain Mgwandla, he described the accused no 1
as being cool and relaxed record p 544 line 15. The only
thing put
to him in cross examination was that accused no 1 will say that he
was actually very anxious and worried.
Because
of Ms Haldenby's complaint that she thought that she was only
cross-examining Constable Nyudwana on behalf of accused
no 1 he was
recalled for further cross-examination. She then proceeded to put
more statements on behalf of accused no 1, to this
witness. I do not
propose to saddle either the accused with any blame for the conduct
of Ms Haldenby save to note that her insistence
of cross-examining
Const Nyudwana "on behalf of accused no 2" seemed to me to
be contrived. Similarly I do not propose
to hold accused no 2
responsible for statements made on his behalf when Ms Haldenby said
that Const Nyudwana "started rushing
around and panicking"
when he received a phone call from accused no 1's uncle. That wasn't
the evidence which accused no
2 gave, he also for example said that
the Const said that he told accused no 2 that accused no 1's life
was in danger.
As
to whether Constable Nyudwana actually asked accused no 2 to
accompany him to the community meeting where he was apparently
going
to rescue accused no 1 with a police back-up, we cannot find accused
no 2's evidence on this respect acceptable at all.
He said that he
was asked to accompany the Constable in order to show him where the
meeting was and when he got there he was
asked to lie flat in the
vehicle so that the community wouldn't see that he was there. We
find this story far-fetched and highly
improbable.
We
prefer the evidence of Const Nyudwana that he knew perfectly well
where the meeting was being held because he lives and works
in that
area and he certainly would not take a co-accused with him to show
him the way.
To
the extent that it is relevant we do not accept the evidence given
by and on behalf accused no 2 that he was detained in a
holding cell
at the police station between 12 o' clock and 4pm. We prefer the
evidence of Const Nyudwana that people cannot be
held in a holding
cell for longer than 1 hour and it made no sense for the Constable
to hold accused no 2 at that time in a holding
cell until 4 pm and
then release him with the instruction that he return at 7pm.
Similarly we prefer the evidence of Const Nyudwana
that he did not
give accused no 2 a lift to Makasa to rendezvous with accused no 2's
sister the afternoon of his ultimate arrest.
For
reasons, we will later deal with, we find that the evidence of
accused no 2's sister on this and many other aspects unacceptable.
We consider that the whole question relating to the Const giving
accused no 2 to Macasar was engineered by accused no 2 and his
sister to create an area of conflict between himself and Const
Nyudwana. If it actually happened there was no reason for Const
Nyudwana to deny this episode, but there is every reason to try
create an area of conflict between the Constable's evidence and
the
evidence given by accused no 2 on a collateral issue. We also reject
the evidence given by accused no 2 and his sister that
they waited
at the police station until Constable Nyudwana returned from the
meeting with accused no 1 and his sister. They would
also wait at
the police station until accused no 1 was arrested and put in the
cells and thereafter accused no 2 was arrested.
This sequence of
events is highly illogical and we prefer Const Nyudwana 's evidence
that when he returned from the meeting he
contacted accused no 2 and
asked him and his sister to come back to the police station. By the
time they arrived, accused no
1 had been arrested and committed to
the cells. I also find quite unacceptable, the explanation given by
Ms Haldenby as to why
this remarkable story was not put when she was
cross examining the Constable on behalf of accused no 1 the first
time.
[31]
Capt van der Westhuizen was the Capt who took accused no 2 to make a
statement to Capt van der Merwe. He testified that he
took accused
no 2 and walked with him from the cells to the office where Capt van
der Merwe was waiting and handed him over to
Capt van der Merwe. He
said that he took accused no 2 after he had made his confession,
back to the cells. That evidence was
not challenged in cross
examination save to the extent that accused no 2 repeated his
allegation that Const Nyudwana took him
to make the statement and
that he first took him into an office where he allegedly told him
what to say. This witness' testimony
lends the lie to accused no 2's
statement and nothing in the cross examination changes this court's
finding that this was a very
senior and responsible Captain whose
evidence could be relied upon and whose testimony negates the
allegations made by accused
no 2 about his being influenced or
instructed by Const Nyudwana to make any particular statement to
Capt van der Merwe.
The
state then closed its case.
[32]
The defence elected to interpose the accused 2's sister Babalwa
Thuswa who testified on his behalf. She testified that she
is the
sister of accused 2, working as a social worker in Durban. At the
time of the incident, she too lived with the family
of accused 2 in
Kuyasa.
She
gave the court the appearance of a well educated [four year degree
from UWC] woman, but later in her testimony she appeared
to be not
so convincing. She said she did not know accused 1 prior to the
incident.
She
said the residents had forced her brother to attend a meeting but
they wanted accused no 1. She says a policeman left a phone
number
at their home asking them to go to Harare Police Station. They did.
She again saw her brother later. She said the investigating
officer
told her to take her brother for food and return him by 7pm (denied
by the investigating officer) she said accused 2
was "locked
up".) When they returned she said the policeman arrived and
took a call on his cell, took accused 2 and
went to get accused 1
from a resident's meeting (also denied by the investigating officer)
and the court thought it strange that
a policeman would take the
accused back to the community of which he was so afraid.
She
said thirty minutes later the investigating officer returned and
accused 1 was in a holding cell at that stage. Her brother
[accused
2] was taken into an office.
She
said she was called in and accused no 2 was crying - saying "I
am sorry". He was arrested, had his shoelaces and
belt removed.
Later
she told the court, her brother said "two men" had (he
told her) stolen his cell phone in the court cells.
[33]
The accused elected to testify. Each accused pleaded alibi and in
their testimony they insisted they had nothing to do with
the
incident nor had they been at the scene, or had in any way been
involved with the burning of the house. Further, the state
witnesses
in most instances lied and also the statements made to the uncle and
the confessions to the police had not been made
freely and
voluntarily as their legal rights had not been explained.
[34]
To sum up the salient facts of this case are as follows:-
It
is common cause that the complainant's house at 54 529 Sidwana
Street, Kuyasa was set on fire on Sunday evening 2 March 2009.
Further that the complainant's daughter and grandson died as result
of the fire and that complainant and her other two daughters
had to
receive medical treatment for burn wounds and smoke inhalation.
[35]
The state witnesses, THULISA MALUWANE (nickname Nontiti) and ANDILE
NOMNGANGA gave testimony in respect of the plastic container
[water
bottle] that was borrowed by the accused from Nontiti's mother, a
visit to the BP garage ([petrol station] in MAKHAZA
by accused 1 and
accused 2 in Andile's taxi to buy petrol the buying of the petrol
and transport of the container with petrol
by the accused to a point
near the SPARI shop where they requested to be dropped off. In their
evidence Nontiti and Andile corroborated
each other.
[36]
The evidence regarding the container with petrol runs like a golden
thread through the case.
[37]
The accused testified that both these witnesses were telling lies on
these issues. We reject this allegation and accept the
evidence by
Nontiti and Andile as the truth. In the confession made by accused 2
this evidence was confirmed. Accused 1 also
stated in his confession
that the petrol was used to make the bombs.
[38]
The witnesses BABALWA and XOLELWA testified that they met accused 1
and accused 2 on that Sunday evening at ±21h00
outside
Nontiti's house. They were invited by the accused to accused 2's
shack to listen to music videos. This evidence is confirmed
by the
accused.
[39]
According to the two ladies the accused left the shack late that
evening to buy beer. Both women testified that the accused
changed
their shirts and denied that they simply put on jerseys because it
was cold. Accused 1 and 2 accused the two ladies of
lying. What is
strange that these jerseys were not worn later that evening when the
accused and the ladies went out to buy beer.
Accuse 1 and accused 2
accused the two ladies of lying when they said that accused 1 and 2
after ±20 minutes returned
to the shack in a rush because
they were chased by "skollies". They say that BABALWA and
XOLELWA are lying on this
issue and insisted that they said they had
been chased by the neighbourhood watch.
[40]
The four of them shortly after the accused returned, left the shack
to buy beer. Babalwa testified that on the way a fire
engine came
past them and she shouted to the driver to find out where the fire
brigade was going. Accused 1 then assured her
that it was
unnecessary to find out where the fire engine was going because
"there is nothing of yours that is burnt".
How would
accused 1 know that?
[41]
The evidence of Babalwa and Xolelwa confirms that the accused left
the shack late in the evening and that they came running
back
breathing heavily. It does not really matter who chased them. When
they left the shack they heard a siren in the distance.
That
probably was the siren of Constable Malindi's police van. Constable
Malindi testified that he received a radio call a ±12h30
of
house burning in Kuyasa. The inference can be drawn that the house
was set alight after 12h00. His testimony corresponds with
the
evidence of Babalwa and Xolelwa that when they left the "hokkie"
of accused 2 about 5 minutes after they returned,
past 12 o'clock
the night on their way past a creche, they heard a siren (police
van). The accused in cross-examination conceded
that there was a
siren. We find that they had a window of opportunity to get to the
complainant's house and set it on fire.
[42]
Mongezi James, the uncle of accused 1 is a key witness in this case.
Although accused 1 tried to suggest a bad relationship
between
himself and his uncle, he failed to do so. The court is satisfied
that the statement made to his uncle, was made within
his family
environment, freely and voluntarily. We already dealt with this
issue. Accused 1 admitted that he set the house alight
in Kuyasa.
Accused 1's evidence that his uncle forced him to admit complicity
in the of the complainant's house, is unpersuasive.
After conclusion
of the trial within a trial, I admitted the statement made by
accused 1 to his uncle. The uncle also in cross-examination
testified that he received three text messages with a request that
he not go to court.
[43]
I have admitted the confession made by accused 1 made to Captain
Mgwadla and by accused 2 to Captain van der Merwe. After
the trial
within a trial was concluded, I admitted both statements as exhibit
"K" and exhibit "L" respectively.
Both police
captains made a good impression on the court and the court had no
hesitation in accepting that in respect of both
statements the
rights of the accused were properly explained and the statements
made freely and voluntarily. This evidence had
been fully dealt with
in this judgment. The fact that the confessions made to both
captains were long and detailed negates any
suggestion that they
were made to appease the investigating officer.
[44]
In both statements accused 1 and accused 2 admit they set the house
of the complainant alight.
[45]
Contents of the confessions confirm the circumstantial evidence of
the state witnesses regarding the issues relevant to this
case.
[46]
Both accused pleaded alibi and in terms of Section 115 gave a plea
explanation that they were not involved in this offence
or were at
the scene of the crime.
[47]
Throughout the trial the accused stuck to their alibi. According to
them witnesses were telling lies and statements made
by them were
false in all instances where the evidence implicated them.
[48]
Based on the evidence placed before the court the defence of an
alibi has failed dismally.
[49]
Accused 1 and accused 2 on their own confessions were involved in
the commission of the offences and they were at the scene.
[50]
The commission of the offences was probably as result of "revenge"
by accused 1. In cross-examination accused 1
admitted that he
believed that his mother had been bewitched by the complainant and
was to blame for her death. He also said
that he believed in
witchcraft. This would account for him taking revenge on the
complainant and her family. In the process accused
2 was a willing
partner. It is clear that the aim was to kill the complainant. The
plan however resulted in others being killed.
[51]
This is clearly a case of dolus indirectus. Hiemstra's Criminal
Procedure at page 258 reads as follows:
"Actual
indirect intention
(dolus
indirectus).
This
intent exists when the prohibited result (in murder, the death of
the deceased) is not a main intention, but the perpetrator
knows
that the prohibited result must necessarily follow if the main
purpose is sought. The perpetrator sets a house alight in
order to
burn to death the woman who is inside. If he perpetrator knows that
there are children with her, it does not help him
to allege that he
had no intent to harm the children."
[52]
The court is satisfied that the state proved beyond reasonable doubt
and we accordingly find that the accused 1 and accused
2 are guilty
of the following offences:
(i)
Count
1 - Arson;
(ii)
Count
2 - Murder;
(iii)
Count
3 - Murder;
(iv)
Count
4 - Attempted Murder;
(v)
Count
5 - Attempted Murder;
(vi)
Count
6 - Attempted Murder;
With
regard to counts 7 and 8 the state alleged that the accused are also
guilty of offences relating to the practice of witchcraft
as set out
in paragraphs 1(a) and 1(b) of Act, 3 of 1957 which provides as
follows:
"Offences
relating to the practice of witchcraft and similar practices.
Any
person who:
1
(a) imputes to any other person the causing, by supernatural means,
of any disease in or injury or damage to any person or thing,
or who
names or indicates any other person as a wizard:
(b)
in circumstances indicating that he professes or pretends to use any
supernatural power, witchcraft, sorcery, enchantment
or conjuration,
imputes the cause of death of, injury or grief to, disease in,
damage to or disappearance of any person or thing
to any other
person,"
The
evidence in this case does not reveal that either of the accused is
guilty of the conduct set out in the sub-paragraphs. At
most it
might be suggested that accused no 1 imputed the cause of death of
his mother to sorcery engaged upon by the complainant.
The problem
is that he imputed that circumstance to himself and not to any other
person other than perhaps some of his family
He did not pretend to
possess supernatural powers in order to come to that conclusion. He
claimed to have had a vision when looking
into a magic mirror.
Accused no 1 did not pretend to have supernatural powers and his
conduct was simply a misguided attempt
to murder the complainant
which ended up causing the death of two other people. I do not
accept that the Witchcraft Suppression
Act, has anything to do with
this matter and to prefer charges under this Act would in the first
place be misguided and in the
second place constitute a splitting of
charges. The accused are, therefore, acquitted of counts 7 and 8 of
the charge sheet.
In
respect of count 9 the state alleged that the accused contravened
section 27(1) of the Explosives Act, 1956 [Act 26 of 1956]
- causing
an explosion whereby life or properly is endangered.
Alternatively
contravening
of section 28(1) of the Explosives Act, 1956 [Act 26 of 1956] - a
person who is found to have in his possession
or under his control
any explosive under such circumstances as to give rise to a
reasonable suspicion that he intended to use
such explosive for the
purpose of injuring any person or damaging any property.
In
section 28(2) an "explosive" includes a "petrol
bomb". Adv Colenso argued that this Act had been repealed
by
the
Explosives Act, 2003
[Act 15 of 2003]. This Act has to date
still not been assented to. In terms of the Explosives Act 1956,
[Act 26 of 1956] a
petrol bomb is deemed to be an "explosive"
for the purpose of a section 28 offence. This provision is not
applicable
to section 27 of the Act. The inclusion of a petrol bomb
under "explosives" was clearly designed only for the
purposes
of section
28.
In
order to secure a conviction in terms of section 28(1) the court
must find that the accused was "
found
in
possession of the explosives ["petrol bomb"]. In this
instance the accused were not found to be in possession of
such
explosive.
The
extended definition of explosives is not applicable in respect of
section 27 of the Act. The accused are therefore acquitted
in
respect of section 27 and on the alternative of section 28 of the
Act.
I
would add that it is quite absurd for the Act to have a special
definition of an "explosive" for the purposes of section
28 whereas the rest of the Act has.a more reasonable and logical
definition of explosive.
WEINKOVE, AJ