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[2013] ZAECPEHC 53
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S v Bulawa and Another (CC11/12) [2013] ZAECPEHC 53 (18 October 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
Case No: CC11/12
Dates heard: 18-21/6/13;
15-17/10/13
Date delivered: 18/10/13
Not reportable
In the matter between:
THE STATE
and
LUNTU FREDDIE BULAWA
.....................................................................
Accused
1
MASIXOLE SONTI
....................................................................................
Accused
2
JUDGMENT
PLASKET, J:
[1] An incident occurred in the early
hours of 31 October 2010 at Nyutura Street, NU 4B, Motherwell, Port
Elizabeth that led to
the accused being charged with robbery with
aggravating circumstances, murder, two counts of attempted murder,
the unlawful possession
of a firearm and the unlawful possession of
ammunition. Both accused pleaded not guilty to all of these charges.
[2] Although the witnesses who
testified about the incident gave versions that differed as to
detail, it is common cause that the
incident occurred and that the
offences referred to in the indictment were committed. The accused
deny, however, that they took
part in the commission of the offences
despite being present when they were committed.
[3] According to Mr Bongani Kobo, the
first witness called by the State, he had returned to his home in
Motherwell, Port Elizabeth
for a short while from Randburg in Gauteng
where he now resides. He had made contact with friends and they had
gone out for the
evening. When they returned to his home in Nyutura
Street in the early hours of the morning, they saw a group of four
men standing
on the side of the road. One of them approached their
vehicle and spoke to one Siseko Frans, the deceased, who was seated
in the
front passenger seat.
[4] Without warning, the man who had
approached the vehicle opened fire on Frans, who was struck by four
bullets, three in the head
and one in the chest. He died on the spot.
Kobo jumped out of the vehicle and ran. He was shot in the back and
rendered a paraplegic.
His cousin, Xola Yantolo, who also tried to
run away, was shot in the arm before he got out of the vehicle. Kobo
was then searched
and a wallet containing cash and a number of bank
cards was stolen from him. The occupants of the vehicle were also
searched and
robbed of three cell-phones. Eleven shots were fired
during the incident. All of them were fired from the same firearm.
[5] None of those present knew any of
the four men. They were also not able to identify anyone. Not
surprisingly, given the nature
of the incident, none of the witnesses
was able to ascribe any specific conduct to any of the four men,
except for the man who
shot the deceased, Kobo and Yantolo. While
there are suggestions that more than one of the men took part in the
searching and the
robbing, the confused nature of this evidence, not
to mention the discrepancies in the evidence of the various
witnesses, makes
it impossible to conclude that anyone other than the
man who shot the deceased, Kobo and Yantolo was actively involved.
Even if
it is accepted that one of the men helped the armed man, it
is not possible to identify who that might have been out of the two
accused and the fourth man present on the version of the State
witnesses. (The man who shot the deceased, Kobo and Yantolo is dead.
He was referred to by his first name, Luvuyo. As I do not know his
surname, I shall also refer to him as Luvuyo.)
[6] Apart from the evidence that I
have outlined, the State also relied on the evidence of two further
witnesses as well as warning
statements and pointings out made by the
accused. The admissibility of the warning statement of accused 1 was
challenged and, after
a trial-within-a-trial, I ruled that it was
admissible. I shall return to that issue in due course.
[7] Mr Thembisile Msengana testified
that during November 2010, accused 2 had spoken to him about a
cell-phone that required repair.
Although accused 2 had said that he
would bring the cell-phone to him, he did not. Instead the cell-phone
was brought to him by
Mr Langa Mashelele, who said that he had
brought it on the instructions of accused 2. It was a Nokia N95.
[8] After he had unlocked the security
code – because that was the problem with the cell-phone –
he informed accused
2 that it had been repaired but accused 2 never
came to collect it. As a result, Msengana began to use it. He later
received a
message on the cell-phone from a policeman requesting that
he make contact with him. He did so and the policeman told him that
the police needed the cell-phone because it belonged to ‘a
person who had been robbed and killed’. Msengana’s
evidence was not disputed by accused 2.
[9] Mashelele confirmed that he had
received the cell-phone from accused 2 and had given it to Msengana.
Accused 2 was not present
when he had done so. He also testified
about certain admissions that, he said, both accused had made to him.
He said that they
had told him that they were present in a car with
Luvuyo in the early hours of the morning in NU 4 B, Motherwell when a
man approached
them on foot and asked what they were doing there.
Accused 2 told him that a shot was then fired and he got out of the
car and
ran away. Accused 1 told him that the person who approached
them had provoked them by asking what they were doing there and that
an exchange of gun fire ensued. It was apparent that both accused
attributed the shooting to Luvuyo.
[10] At this point, Mashelele having
deviated from his statement, was declared a hostile witness. When
confronted with his statement,
he identified it as his, confirmed
that he signed it, that it had been read back to him and that he was
satisfied with its contents.
What emerged from the statement and the
examination of Mr Mgenge (who appeared for the State) was that
accused 2 told him that
when the shooting started he ran away and
that he was told by accused 1 that Luvuyo had searched people in a
car and had stolen
cell-phones, a wallet and bank cards. His
statement also says that accused 1 told him that he had run away with
two cell-phones
while Luvoyo took the wallet and bank cards.
[11] I admitted a warning statement
made by accused 1. The basis for the objection to its admissibility
was that accused 1 had been
assaulted and threatened in order to
force him to make the statement and that his rights were not
explained to him by Captain Deon
Gerber, the policeman who took the
statement.
[12] Four witnesses testified on
behalf of the State in the trial-within-a-trial. They were Gerber,
Captain Christo van As, Warrant
Officer Monde Sithole and Warrant
Officer Siyabonga Sidinile. While their evidence may be liable to
criticism here and there, they
all created a good impression as
witnesses, giving evidence that was straightforward, frank and
honest. The evidence of all four
witnesses was consistent internally
and with each other.
[13] It emerged clearly from the
evidence of Gerber and Sithole, who had interpreted for Gerber from
English to isiXhosa and vice
versa, that accused 1 was apprised of
his rights and that they were explained to him. It emerged from the
evidence of Van As that
accused 1 had also been apprised of his
rights by him before he was taken to Gerber for the warning statement
to be taken. It was
also clear from the evidence of Van As in
particular that accused 1 could not have been assaulted in the manner
that he said he
was. As the place where the warning statement was
taken was one big open plan space, the assault would have taken place
in plain
view of everyone. Van As was adamant that no one assaulted
accused 1 and that if he had been assaulted he would have seen the
assault.
[14] In my view, the criticisms that
were levelled against Gerber do not carry much weight in so far as
the issues in dispute are
concerned. He can be criticised for not
filling in the standard form before and after the taking of the
statement with sufficient
care and his methodology of doing so may
have been somewhat idiosyncratic. That said, he was using a standard
form that was not
ideally suited for the purpose in that it was
drafted on the assumption that the investigating officer would always
be the person
who took a warning statement, whereas Gerber had
nothing to do with the investigation.
[15] I was not at all impressed with
accused 1 as a witness. Certain of his evidence in chief had never
been put to the witnesses
for the State when it should most certainly
have been, had it not have been a recent fabrication on his part. His
version as put
to the State witnesses differed in important respects
from his evidence. He was evasive whenever he found himself in
difficulty
during cross-examination, as was the case when he was
asked about his conflicting versions of who had assaulted him.
[16] When I had regard to the evidence
as a whole, I was satisfied that given the inherent strengths of the
State witness’
version, the limited scope for criticism of it,
the good impression that all four State witnesses made on me and the
inherent probabilities,
on the one hand, and the weaknesses of the
evidence of accused 1, the improbability of his version and the
criticisms I have levelled
against his evidence, on the other, the
version of the State witnesses was true beyond reasonable doubt and
the version of accused
1 was not reasonably possibly true. In the
result, I was satisfied that the State had discharged the onus that
rested upon it to
prove that accused 1’s warning statement had
been made freely and voluntarily, and that it was therefore
admissible.
[17] That brings me to the contents of
the warning statements made by both accused and the pointings out
that they made.
[18]
Accused
1 admitted in his statement that he was in the company of Luvuyo and
accused 2 at NU4B, Motherwell when a car with five
occupants stopped
and they were asked what they were doing there; that Luvuyo drew a
firearm and opened fire on the occupants of
the car; that accused 2
ran away; that Luvuyo searched a person who he had shot who was lying
on the ground, taking a wallet from
him; and that he then searched
the other occupants of the car, taking articles from them. Thereafter
he and Luvuyo ran away.
[19] They ran to accused 2’s
house where Luvuyo showed them three cell-phones and a wallet
containing cards. He asked accused
2 to throw the wallet and the
cards away, which he did. Luvuyo said that he was going home. He left
two Nokia cell-phones with
the accused and took the third cell-phone
with him.
[20] Accused 2 took both cell-phones.
He opened one of the cell-phones and replaced its sim card. Both of
the accused then went
to sleep. Accused 1 was later summoned by
Luvuyo and drove to his house in a car he had borrowed. He took
Luvuyo and his mother
to a supermarket to purchase groceries.
[21] In his pointing out, accused 1
pointed out: the place he had stood during the incident; where Luvuyo
had stood; the place where
the car stopped; the direction in which
the three of them ran away; and the direction taken by the driver of
the car while being
shot at by Luvuyo. The explanations that are
recorded are consistent with his warning statement.
[22] In his statement, accused 2 said
that at the time of the incident he was in the company of Luvuyo and
accused 1. A car stopped
next to them. Luvuyo drew a firearm and
opened fire. He then said:
‘
I
ran to a distance as Luvuyo [was] shooting several shots. After the
shots stopped I saw Luvuyo and Luntu [accused no 1] taking
cell-phones and a wallet from the occupants of the car.’
[23] He then joined them again and
they ran away. He was given two cell-phones. He put his own sim card
into one of them but could
not use the other because it required a
security code. He took this cell-phone to Mashelele who took it to a
person named Seven
(the nick-name of Msengana) but he never received
the cell-phone back from him.
[24] In his pointing out, accused 2
took Captain Stefanus De Bruin to the place where the incident
happened. He pointed out a ‘place
next to an electrical box’
and explained that ‘it happened here’. He then said that
he ran away and indicated
the direction in which he had run.
[25] Accused 2 denied that he had
implicated accused 1 in taking part in the robbery of the occupants
of the car but both Van As
and Sidinile, who had acted as
interpreter, were adamant that what was contained in the statement
was precisely what accused 2
had said. Both pointed out that the
statement was read back to him – and this was not denied –
and that he had signed
when he had expressed himself as being
satisfied with its contents.
[26] Both accused gave evidence.
Accused 1 testified more or less in line with his statement. He
confirmed that when the first shots
were fired accused 2 ran away and
that he – accused 1 – took a few steps back. From this
position he was able to see
that Luvuyo had a firearm and was
shooting into the car. When Luvuyo stopped shooting, he put his head
(and shoulders, I presume)
into the car to search its occupants. He
then searched the person lying on the ground. Having done this he
told accused 1 that
they had to run away.
[27] All three of them ran to the
house of accused 2. Luvuyo took out cell-phones and a wallet. He
removed cards from the wallet
and told accused 2 to throw them away.
He gave two cell-phones to accused 2 and asked him to ‘unblock’
one of them.
Luvuyo then left. He later contacted accused 1 to ask
him to borrow a car so that he could take him and his mother to a
supermarket,
which accused 1 did.
[28] Accused 2 testified that when he
heard gunshots he ran away and watched what happened from a distance.
He took no part in the
shooting and the robbery. When the shooting
stopped, Luvuyo told him to run away and all three of them ran to his
house. When they
arrived, Luvuyo gave him two cell-phones. He told
him that he could have one of them and that he must ‘unblock’
the
other. Luvuyo also, he says, gave him a plastic bag to throw
away. He claims that he did not know what was in the plastic bag.
[29] I shall say more of the quality
of the evidence of the accused when I assess the evidence. I turn now
to that issue.
[30] I believe that it is fair to say
that the evidence of the eye-witnesses was vague, short on detail
and, in places, contradictory.
That is not surprising: they had been
out on the town and had consumed alcohol; and the sudden, extreme
violence to which they
were subjected caused understandable confusion
in them. Their evidence does not identify their attacker or attackers
and, for the
most part, the acts they describe are the acts of a
single person who must have been Luvuyo. Given the quality of their
evidence
and the fact that they all spoke of four people being
present (and Kobo spoke of more than one person firing shots, which
is at
odds with the ballistic evidence), it would be unsafe to base a
conviction of either of the accused on their evidence.
[31] Similarly, the evidence of
Mashelele that both accused had made certain admissions to him is so
confused as to detail, and
incorrect in relation to facts that are
common cause, that little reliance can be placed on it or his
statement to the extent that
it seeks to implicate accused 1.
[32] The accuseds’ pointings out
contribute nothing more to the State’s case: they only confirm
what is common cause,
namely that the accused were present when
Luvuyo began to shoot at the occupants of the car. Their statements
are, by and large,
exculpatory: what emerges from both, and this is
consistent with their evidence, is that when Luvuyo opened fire,
accused 1 retreated
from his position next to the car and accused 2
ran away; that Luvuyo searched the occupants of the car; and that
they all ran
away together to accused 2’s house.
[33] When accused 1 gave evidence, he
deviated from his statement in certain respects. It is difficult to
determine why he did this
because he could derive no benefit from so
doing and the deviation could only impact negatively on his
credibility. He also added
to his version and did so mendaciously.
So, for instance, when he testified (during cross-examination) that
Luvuyo had threatened
to kill him and accused 2 as well as their
children and parents if they breathed a word of what they had seen,
he was clearly lying.
Once again, I cannot imagine what benefit he
hoped to derive from this lie.
[34] While there is certainly scope
for criticism of the evidence of accused 1, I cannot reject his
evidence as false beyond reasonable
doubt: in the light of the
paucity of acceptable evidence on the part of State witnesses, and
the other deficiencies that I have
alluded to, I cannot say that his
version is not reasonably possibly true.
[35] Accused 2 was a pathetic witness.
He too lied about matters that posed no danger to him, as well as
some that did. Despite
the fact that on both his and accused 1’s
evidence, he ran away and observed what happened from a distance, he
saw it as
necessary to try – vainly, as it happened – to
disavow seeing and knowing anything about the incident. Despite his
extremely poor showing in the witness box, I accept his evidence
(supported as it is by accused 1) that when Luvuyo opened fire,
accused 2 ran away and only joined Luvuyo and accused 1 when they ran
away from the scene.
[36] There is no evidence before me
that either of the accused formed a common purpose with Luvuyo to
commit murder and attempted
murder and there are no facts from which
such an inference may be drawn. (As to the elements of common
purpose, see
S v Mgedezi & others
1989 (1) SA 687
(A) at
705I-706C.) The only evidence before me is that of the accused which
is to the effect that neither of them were aware that
Luvuyo was
armed with a firearm and that they were surprised and shocked when he
drew it and opened fire. As they did not know
that Luvuyo was in
possession of a firearm and ammunition, there can be no question of
them being in joint unlawful possession
of the firearm and
ammunition. (See in this respect,
S v Mbuli
2003 (1) SACR 97
(SCA) para 71.)
[37] I have accepted that accused 2
ran away and accused 1 retreated from the car when Luvuyo opened
fire, and that the State has
failed to prove that either took part in
the robbery. There is no evidence of any act of association with
Luvuyo in respect of
the robbery: indeed, the evidence points to
active disassociation on the part of both accused.
[38] The findings that I have set out
above mean that both accused must be acquitted of all of the charges
against them. That, however,
is not the end of the matter for accused
2.
[39] He admitted in his evidence that
he took for himself one of the two cell-phones that Luvuyo had handed
to him. He stated too
that he did not know that the cell-phone had
been stolen. It is clear from his statement that he knew that the
cell-phones that
were in Luvuyo’s possession immediately after
the robbery were stolen during the robbery. That aside, he must have
known
that Luvuyo’s possession of the cell-phones was not
lawful because he had to put his own sim card into one to make it
work
and he determined that the other needed a security code to make
it work. Furthermore, according to accused 1, Luvuyo showed both
of
the accused the three cell-phones and the wallet when they arrived at
accused 2’s house, having run all the way from the
scene of the
robbery. As this was immediately after accused 2 had witnessed Luvuyo
robbing people of their possessions, he must
have known that the
cell-phones were stolen. His denial of this fact is not reasonably
possibly true and I reject it. It is clear
that he appropriated the
cell-phone with the intention of depriving its owner of possession
permanently. That means that while
he has been acquitted of robbery
with aggravating circumstances, he is guilty of the competent verdict
of theft of a Nokia 1100
cell-phone.
[40] Accused 2 admitted throwing away
a plastic bag. He stated that he did not know what was in the plastic
bag. Accused 1’s
evidence, however, is that accused 2 threw
away cards that had been in the wallet that Luvuyo had stolen.
Accused 1 said that Luvuyo
had placed the cards and the wallet on a
table, obviously in plain sight of accused 2, before he instructed
accused 2 to throw
the cards away. Given the poor quality of accused
2’s evidence and the probabilities favouring accused 1’s
evidence
on this aspect, I reject as false beyond reasonable doubt
accused 2’s evidence that he threw away a plastic bag and did
not
know that he may have been throwing away the cards. I find that
he knew that what he disposed of were the cards that had been in
the
wallet and that these had been taken by Luvuyo in the robbery.
[41] An accessory after the fact is
defined as ‘someone who after the completion of the crime
unlawfully and intentionally
associates himself or herself with the
commission of the crime by helping the perpetrator or accomplice to
evade justice’
(See Jonathon Burchell
South African Criminal
Law and Procedure
(Vol 1: General Principles of Criminal Law) (4
ed) at 527.) By disposing of the cards, accused 2 sought to dispose
of items that
were of no value to Luvuyo but which, if found in
Luyuyo’s possession would have been evidence linking Luvuyo to
the robbery.
By disposing of the cards, accused 2’s intention
must have been to assist Luvuyo to evade justice – to cover up
evidence
of his crime. Accused 2 is therefore an accessory after the
fact to robbery with aggravating circumstances.
[42] To sum up, my verdict is that:
(a) accused 1 is acquitted of all
charges;
(b) accused 2 is acquitted of all
charges but is convicted of the competent verdicts to robbery with
aggravating circumstances of–
(i) theft of a Nokia 1100 cell-phone;
and
(ii) being an accessory after the fact
to robbery with aggravating circumstances.
_________________________
C Plasket
Judge of the High Court
APPEARANCES
The State: S Mgenge of the office of
the Director of Public Prosecutions, Port Elizabeth
Accused 1: G Joubert, instructed by
Legal Aid South Africa
Accused 2: E Theron, instructed by
Legal Aid South Africa