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[2016] ZAECPEHC 14
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S v Parley (CC30/2014) [2016] ZAECPEHC 14 (18 April 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: CC30/2014
Dates
heard: 3-11.12.2015;
16.3.2016;
22.3.2016
Date
delivered: 18.4.2016
In
the matter between:
THE
STATE
vs
MZIYANDA
PARLEY
JUDGMENT
ON MERITS
TSHIKI
J:
[1]
The accused herein
Mr Mziyanda Parley
has been charged with
eight (8) counts that hereinafter follow:
Count
1 -
Robbery
with aggravating circumstances (read with
section 1(1)(b)
of
the
Criminal Procedure Act 51 of 1977
Count 2
-
Kidnapping
Count 3
-
Unlawful
possession of a firearm – in contravention of
section
3
read with
sections 1
,
103
,
117
,
120
(1)(a),
section 121
read with
Schedule 4 of the
Firearms Control Act 60 of 2000
and further read
with
Section 250
of the
Criminal Procedure Act 51 of 1977
.
Count 4
-
Unlawful
possession of ammunition – in contravention of
section
90
read with
sections 1
,
103
,
117
,
120
(1)(a) and
section 121
read
with Schedule 4 of the
Firearms Control Act 60 of 2000
and further
read with
section 250
of the
Criminal Procedure Act 51 of 1977
.
Count
5 -
Robbery
with aggravating circumstances (read with
section 1(1(b)
of
the
Criminal Procedure Act 51 of 1977
.
Count 6
- Murder
Count 7
-
Unlawful
possession of a firearm – in contravention of
section
3
read with
sections 1
,
103
,
117
,
120
(1)(a),
section 121
read with
Schedule 4 of the
Firearms Control Act 60 of 2000
and further read
with
Section 250
of the
Criminal Procedure Act 51 of 1977
.
Count 8
-
Unlawful
possession of ammunition – in contravention of
section
90
read with
sections 1
,
103
,
117
,
120
(1)(a) and
section 121
read
with Schedule 4 of the
Firearms Control Act 60 of 2000
and further
read with
section 250
of the
Criminal Procedure Act 51 of 1977
.
[1.2]
The accused pleaded not guilty to all the counts.
[1.3]
There is also a list of exhibits from A-L which reads:
A:
Admissions in terms of
section 220
of the
Criminal Procedure Act 51
of 1977
B:
Affidavit by J Swanepoel
C:
Copy of the register at Dora Nginza Hospital
D:
Photo album compiled by Constable Ceasar
E:
Sworn statement by Constable Ceasar
F:
Affidavit by M Mgwadleka
G:
Affidavit by NH Sonwabo
H:
Statement by L Davathe
I:
Statement by W/O M Devenish
J:
Affidavit by M Mgwadleka
K:
Statement by W/O Devenish
L:
Statement by O Dhaura
[2]
Evidence
[2.1]
The evidence of the first witness
Wonga
Titima
a security guard at Stormwater in Missionvale in Port Elizabeth was
robbed of his work firearm when he was on duty on the 7
th
November 2013 at about 18h15. It was his service firearm that
belonged to his employer, described as a Lager-semi-automatic
firearm. According to the evidence of this witness he was
approached by three men who entered and pointed him and his
two
colleagues with a firearm. The three men robbed and stole their
cellphones, two way radios and a sim card. The
witness was also
slapped on the right side of his face by one of the culprits.
They also tied their hands behind their back
with cable ties.
The first witness
Mr
Titima
could
not be able to identify his culprits.
[2.2]
The next witness
Thembakazi
Maphosa
confirmed
the evidence of the first witness. Her black cellphone a Nokia
E63 cellular phone which was valued at R1 999.00
was also
forcefully taken away from her by the three men. The two
witnesses were in guard of the Wendy house on the premises
of their
employer at Stormwater. The witness could also not be able to
identify her culprits.
[2.3]
After some time the first witness was called to identify the firearm
that was stolen during the robbery
and had identified it by,
inter
alia
,
it’s serial number.
[3]
The next witness called by the state was
Mr
Luzuko Maneli
who is employed by the South African Police Service and has been in
the police service for about 12 years. At the time of
his
testimony in this case, he was a sergeant by rank and was stationed
at Kwadwesi police station. He was on duty on the
8
th
November 2013 from 18h00.
[4]
At that stage, he was still a constable by rank attached to the
Visible Crime Prevention. He was in full uniform.
His
duties were to conduct patrol crime prevention, stop and search and
other daily duties which are necessary to perform.
He was the
driver of the marked police vehicle they were using. He was on
the same duties with constable
Ngcuka.
At about 22h30 he and constable
Ngcuka
were approached by an African man who informed them that his motor
vehicle had been hijacked by African men who had used firearms
in
committing the offence and they took away his vehicle.
According to the complainant he had been robbed by three men.
His motor vehicle’s registration number was DRM 082 EC.
When the man was still relating the information the man saw
his
vehicle driven past them. He informed the police about this and
that the men who robbed him of his vehicle were in possession
of
firearms and when this happened they were at the Zwide satellite
station and were about to drive out to proceed to their area
of
policing. At the time when they were approached by the
complainant, they were still in the vehicle and not yet proceeded
out
and their vehicle was still stationery. They had to first calm
the victim down a little bit so as to be able to get the
core issues
that concerns the incident. The man had to inform them of the
registration number and the occupants and other
information relative
to the manner in which the incident took place. After they had
calmed him down as he was still anxious
and at some stage he gave
them its original registration number. When they were
discussing about how the vehicle was robbed,
the complainant’s
vehicle appeared and was driven past them. It was a white
bakkie. The police witness then proceeded
to chase the vehicle
leaving behind the owner of the vehicle who was robbed of his
vehicle. According to the witness there
was no heavy traffic
and they were able to locate and saw its particulars. According
to the witness the hijacked van was
the only bakkie that was on the
road and the bakkie was not speeding as a result they were able to
get closer to it and were able
to note its registration plates.
They noted that the registration plates were the same as those that
were given to them by
the owner.
[5]
They were able to see three occupants inside the vehicle, one was at
the back and the other two were in the front portion of
the vehicle.
According to the witness the number of the occupants correlated to
the three people who were described by the
complainant.
[6]
Through the radio or loudspeaker the vehicle was stopped by the
police. According to the witness he noticed the man in
the back
that was standing up and was already in a ready position with the
firearm in his hand. Having noticed this, the
witness became
ready in case there was an attempt to shoot by the suspect who was in
the back. After the shot was fired he
noticed that their
vehicle was jerking as if it was no more in control. The
witness was not able to ascertain whether the
man he shot fell or
jumped. The other one who was in front was also getting out and
at that stage the witness’s partner
was busy shooting at the
direction of the passenger that exited in front. The firearm
was also found at the back of the bakkie.
[7]
Mr
Saziwa
questioned the witness at length.
[8]
In his answers the witness informed the Court that he was in
possession of 131 rounds of ammunition including the extra 15
ammunition. He conceded that he had no independent recollection
as to the exact time that he was approached by the man whose
vehicle
was hijacked. He could not tell how far back the hijacking
incident took place when he got to report it at the police
station.
The witness could not even know how long it took him before he went
to report. The witness was also not able
to know whether or not
all the three men got into the vehicle when it was hijacked.
There was also no description as to what
these men were wearing or
whether they were black or white or coloured. Neither did he
inform the police whether the men
were actually armed or had firearms
with them. What he knows is that only two were armed.
According to the witness
the vehicle was with him for about 50 meters
before it was hijacked. The witness also conceded that when the
bakkie was taken
away from him it was not driven at a high speed.
[9]
According to the evidence of both state witnesses
Mr L Maneli
and
Constable Ngcuka
the injuries that accused sustained were
on his upper body.
Mr Maneli’s
evidence is that
they struck the accused whilst they were standing at the back of
their bakkie. The evidence of
Mr Maneli
clearly show
that “the passenger got out and my partner shot at him.
Q:
Do you confirm you said that – Do you recall saying that?
A:
Yes.
Q:
I also shot towards his direction.
A:
correct
Q:
I believe this person was also armed. Do you remember saying
that?
A:
Correct
The
next question posed to Mr Maneli was:
Q:
You were asked further again on this point and your response was “I
did not see
a firearm in his possession” What is your
answer?
A:
No
Q:
Do you recall saying that?
A:
No.
The
record shows that the witness is misleading the Court because he had
given the Court the answer that he did not see a firearm
in the
possession of the accused.
[10]
The next question and answer which shows that there was no
justification for the two policemen to fire directly towards the
accused is on page 53 of the record which reads:
“
Mr
Saziwa
: Thank
you. M’Lord, I remember correctly yesterday
the question that
was asked was whether did he have a firearm when he was on the
ground, and my answer was the firearm was at a
distance, if I
remember correctly the question that was asked …. You were
starting from the point when the accused got out
of the vehicle, you
said the passenger got out of the vehicle. Do you confirm sir?
That is the answer you provided.
You made no mention of the
accused carrying a firearm pointing it towards your direction at all
yesterday … to answer “I
was not asked.”
[11]
The ultimate answer from the witness
Maneli
was
that he did not see the accused before Court with a firearm in his
possession which is why he said yesterday “I believed
this
person was not armed. I did not see a firearm in his
possession… If that was the case we would not have engaged
him
on this point. Under the same circumstances the same witness
responded by saying “when you fired shots and ---
I take it
from your evidence yesterday you also fired shots towards him ---
Answer: That is correct. The same conduct
was exhibited
by
Mr
Ngcuka
against the same witness without any justification. See pages
55 line 1-20. This conduct is also exhibited by
Constable
Ngcuka
on pages 9 of the record. None of the two state witnesses
Constable
Maneli
and
Constable
Ngcuka
had sustained injuries yet it is their evidence that there was an
exchange of fire between them and the accused. It was also
at
night when the contention happened. Their evidence that the
accused was in possession of a firearm is not reliable and
cannot be
accepted.
[12]
During his evidence
Mr Ngcuka
also misled the Court by
assuming that the accused was talking to the people at the front yet
he did not see him talk to such people.
This is so because
there was no proof that the accused was heard talking with such
people. He (the witness) in fact conceded
that he never heard
accused chatting with such people. The evidence on pages 102
line 1-20 shows clearly that the evidence
of
Mr Ngcuka
should,
like that of
Mr Maneli
, not be believed by this Court.
It would be inconceivable of this Court to accept the evidence of a
person who is heard to
have whispered at the front portion of the
vehicle whilst he is at the back of the vehicle more so a bakkie.
In any event,
the evidence relied on was heard by a person who was
not in such vehicle.
[13]
The evidence of the state witnesses in particular
Constable Ngcuka
on whether or not he touched the firearm that was found in the
vehicle occupied by the accused. In this regard,
Mr Ngcuka
was also questioned as follows:
Q:
Now with the position of that being the motor vehicle, where was this
firearm?
A:
It was in front but more to the side, not directly in front of the
vehicle.
It
is surprising for this witness to inform the Court he cannot remember
whether or not he had moved or touched the firearm.
As the
person who had kept guard of the same firearm the witness should have
given a direct and clear answer to the question posed
to him in this
regard.
[14]
In my view, both witnesses
Maneli
and
Ngcuka
gave unreliable evidence on not only on this issue but also on
whether the firearm was touched or not a point which is relevant
to
the outcome of this case. Yet according to the evidence of the
accused is that the firearm in question was moved by another
person.
The accused version in that regard is not tainted with doubt as
against what the two state witnesses have testified.
There is
also no evidence of the accused’s DNA or fingerprints of the
accused on the firearm in issue. There is also
no proof by way
of tests to show that the accused had touched or handled the firearm
in issue, whether for positive gun powder
residue at least there is
no such evidence.
[15]
The evidence of the accused is that he is 35 years old having been
born in [……] 1980. He has his own house
in B. P.
no BBO [......]. He also has his parental home in [......] M.
Road, Kwazakhele in Port Elizabeth. He is married
with wife and
has his children. On the day in question the state alleges that
accused went to sign at Kwazakhele police station
as usual. He
thereafter got to Veeplaas and ended up at Kwamavela tavern where he
bought a soft drink. Whilst still
there he met one
Zet
who
was in company of his friend. He knows
Zet
f
rom
Kwazakhele location.
Zet
gave
him a hike to his home. He allowed the accused to board in the
back of the vehicle. On the way they met police
near Vista
University. He then told
Zet
to
obey the police instructions. Ultimately
Zet
s
topped
for the police. After
Zet
stopped the vehicle, gun shots went off and it was the police
that were firing shots
.
Zet
then opened the door.
Zet
had a firearm in his hand. The witness also opened and got out
of the vehicle and also ran away towards the houses.
He felt
that his leg had been broken. He had been hit by a bullet.
At the time he was struck by the bullets the witness
was running.
He then sat down because he could no longer run. He ran away
because he could hear the gunshots and did
not want to die in that
vehicle. According to him he was saving his life. He was taken
to the hospital.
[16]
He did not know the name of the person who was with
Zet.
When
Mr
Parley
was in the vehicle which it was hijacked he did not know that it had
been hijacked. He only knew it to belong to
Zet.
He was also not aware that the vehicle was in possession of
firearms. Accused says he was not aware that the occupants
of
that vehicle were carrying firearms and neither did he act in common
purpose with people who had robbed that vehicle.
Accused was
never part of or possessed a firearm and/or ammunition on the 8
th
November 2013. He denies that he was the one who actually
possessed the firearms and ammunition.
[17]
During cross-examination the accused insisted that his own house is
in Booysen Park. It is where he had been living for
the past
eight (8) years.
[18]
The witness
Ms
Merikjie Devenish
was called. She was called after the evidence of
Mr
Phumzile Ngcuka
.
She is a warrant officer by rank and has been employed in the SAPS
for 22 years and eleven months. She is attached
to the motor
vehicle theft investigation section.
[19]
On 8
th
November 2013 she was still in the same section but also included in
the hijacking section. She was already a warrant officer
by
rank and was on duty on that day.
[20]
She received a telephone call about the hijacking of the motor
vehicle and it was about 23h00. The scene was at about
near
Johnson Road near Vista University. She arrived at the scene at
about 23h40. Other police members of the police
arrived in
their vehicles. She found several marked vehicles at the scene.
The area of the scene was marked and cordoned
off before they got
into the marked scene. There were a lot of police officers at
the scene within their police vehicles.
Her scene was also
marked and did she not disturb the scene. It was surrounded by
a tape and was cordoned off.
[21]
She observed a Ford Bantam bakkie with doors open (this was the
vehicle allegedly stolen).
[22]
At the back of the bakkie on the load body there was a caps inside of
which there was a 9mm firearm with 22 rounds inside the
cap.
[23]
There was also a suspect on the scene who was taken for treatment.
The witness however did not see the suspect.
She, however, had
occasion to visit him in the hospital and interviewed him at about
02h30 in the early hours of the morning.
It was at Dora Nginza
hospital where she met the accused before Court. The witness
asked the accused if he knew the person
who was on the scene and he
said he only knew him by the name
Mbu
.
He, however, only knew the driver of the motor vehicle as
Zet.
The witness could not interview the witness at length as he was under
treatment.
[24]
Maneli
informed the witness that he had shot the accused with a firearm and
had him handcuffed by him.
[25]
When questioned, the witness testified that before she came to
the scene
Captain
Crouse
was at the scene and the witness could not say for how long was
Captain
Crouse
on the scene. She could not know who was in charge of the scene
before
Captain
Crouse
arrived. She also could not know how many other people were
walking on the scene before she arrived. When she arrived
at
the scene the only police officials were
Captain
Crouse
and both
Messrs
Maneli and Ngcuka
.
The witness also informed
Ngcuka
and
Maneli
to get out of the scene an indication that proir to the instructions
they were already inside or within the scene.
They
complied. Captain Crouse did not take the state case herein any
further.
[26]
The evidence of this witness is also that the bakkie in issue the one
that was stolen had been removed if one compares the
images in
particular no 1. The witness’s response was that she
would not know if the bakkie was or could have been
removed.
[27]
Accordingly the witness said shots were exchanged at the scene
presumably between the police officers and the occupants of
the
vehicle that was chased. This evidence contradicts the evidence
told earlier in Court during their evidence. I
say so because
they told the Court that it was the suspects who fired shots at the
police and not the contrary.
[28]
In their evidence the main witnesses in this case, the police,
did not give the Court the impression that there
was an
exchange of fire because they were attacked by the people in the
bakkie (see pages 127 and 128).
(On
page 127 of the written record notes)
[29]
See page 128 – there was a difference in measurements some say
2-3 meters ie
Ngcuka
and the other saying 20-30 meters. The difference, in my view,
is ridiculous to say the very least.
[30]
There was also no explanation from both
Maneli
and Ngcuka
how that firearm was wrapped in a cap.
[31]
In his evidence
Mr
Ngcuka
informed the Court that he searched accused and found a USB from the
accused before Court. However, from the evidence of
the same
witness the USB was found next to the firearm, like the handkerchief
that was also next to the firearm. The person
who saw all these
items decided to put all of these items in one place. According
to the witness and in my view the only
conclusion is that the scene
was interfered with.
See
pages
132-135
Page
49
lines 11-15
[32]
When cross-examined the accused denied having robbed two security
guards of a firearm, cellphones and other items listed in
the charge
sheet. The witness also conceded that he is self-employed being
a bricks manufacturer and an electrician.
He is also a builder.
[33]
During cross-examination the witness (accused) denied that he was
telling lies in Court. According to him his story which
he gave
the Court is reasonably possibly true for the above reasons. He
was cross-examined at length by
Mr
Baartman
for
the state and despite the rigorous and lengthy cross-examination he
stuck to his version.
[34]
The
onus
of proof in a criminal case is discharged by the state if the
evidence established the guilt of the accused beyond reasonable
doubt. The corollary is that he or she is entitled to be
acquitted if it is reasonably possible that he or she might be
innocent.
These are not separate and independent tests, but the
expression of the same test (the proper test) when viewed from
opposite perspectives.
In order to convict, the evidence
must establish the guilt of the accused beyond reasonable doubt,
which will be so only
if there is at the same time no reasonable
possibility that an innocent explanation which has been put forward
might be true.
The two are inseparable each being the logical
corollary of the other. In whatever form the test is expressed
it must be
satisfied upon a consideration of all the evidence.
[35]
A criminal Court does not judge an accused’s version in a
vacuum as if only a charge sheet has been presented.
The state
case, taking account of its strengthens and weaknesses, must be put
into the scale together with the defence case and
weaknesses.
It is perfectly correct that the state case cannot be determined
first and if found acceptable regarded as decisive.
The state
case if it is the only evidentiary material before the Court, must in
all cases be examined first in order to determine
whether there is
sufficient evidentiary material in respect of all the elements of the
offence and whether there is not perhaps
in any event a reasonable
possible alternative hypothesis appearing therefrom. Precisely
the same approach is applicable
if the defence puts forward a
version. Taking into account the state case, once gain it must
be established whether the defence
case does not establish a
reasonable alternative hypothesis. That alternative hypothesis
does not have to be the strongest
of the various possibilities that
is, the most probable as that would amount to ignoring the degree and
content of the state’s
onus
.
In his evidence
Phumzile
Ngcuka
had told the Court that his statement was taken on the 9
th
the following day. The most important issue about the contents
of this statement is the fact that
Ngcuka
told
the Court in his evidence that the complainant came to report to them
at about 22hrs whereas
Mr
Maneli
informed the Court that the complainant had reported to the police at
about 20hrs. When questioned about this he informed
the Court
that he may have made a mistake because he thought it was already
past 20hrs. He also told the Court that if there
was anyone who
had touched the firearm he would have seen that. When the Court
questioned him about his evidence earlier
on this issue he could not
give a penetrating answer on why earlier he gave an answer that he
did not recall. He conceded
to the Court that those were two
different contradictory answers. When asked why he
suddenly decided to change from
his previous answer he told the Court
that he was trying to change from his previous answer. He
contended that by giving
the last answer he was thinking that his
last answer contradicts the previous one. He did not remember
if there was anyone
who touched the firearm. Further asked why
he changed his answer he responded by telling the Court that he was
asked the
same question by both counsel for the state and for the
accused. There can be no doubt in this case that the state
evidence
is not reliable for the reasons stated in this judgment.
[36]
Furthermore the admissions in terms of
section 220
of the CPA do not
assist the state so as to secure a conviction on any of the counts.
This cannot be so when the evidence
relied upon by the state is in a
poor state. The accused’s denial of all the counts is
reasonably possibly true. In
view of the reasons for judgment herein
the state cannot even rely on the
dolus
indeterminatus
relied
on by counsel for the state. The state case must also not be
weighted up as an independent entity against the defence
case as that
is not how facts are to be evaluated herein. Merely because the
state present its case first does not mean that
a criminal Court has
two separate cases which must be weighed up against one another on
opposite sides of the scale.
[37]
The answers given by the two police witnesses leave much to be
desired. They appear to give answers which are inconsistent
with what would have happened as described by the evidence led by
other witnesses. For instance, on page 58 line 10-20
it
was put to the witness:
Q:
that accused was not in possession of a firearm and he was not when
he was shot by
you (
Mr Maneli
) and your colleague, when he
fell he was not close to a firearm. Do you have any response to
that?
A:
No reply from
Mr Maneli
.
The Court had to insist
for an answer after and after a long time the witness responded thus:
A:
He was having a firearm.
The
answers given by the state witnesses also do not make sense for
Mr
Maneli
to tell the Court that he did not pay much attention as to where the
accused fell yet he was shot by him and his colleague.
[38]
Counsel for the state had insisted that accused should be convicted
of the offence of robbery at Stormwater in Missionvale.
In my
view, there is no evidence which led to the legal conclusion that the
accused was the person or was one of the people who
robbed the
victims at Stormwater. There is also no conclusive evidence
from the state to conclude that the two offences at
Stormwater and
the hijacking were related to each other so as to be able to legally
conclude that they were committed by the same
people. The first
offence at Stormwater was committed at about 18hrs in the early
evening whereas the second offence of the
robbery of
Mr
Oswell Dhura’s
motor was according to evidence not committed by one person.
The first count was committed at about 18hrs whereas the car
hijacking was committed at about 22hrs meaning that they were
committed within a period of about four hours. As I have
indicated
supra
no
one was identified in respect of the first offence of robbery.
The same applied to the other offence of robbery of a motor
vehicle
belonging to
Mr
Dhura.
No
one was identified as having committed the offence. The
evidence led in Court is not sufficient to convict the accused.
[39]
Accused defence to the offence of hijacking is that he had hitch
hiked from that vehicle. In my view, there has
been no
conclusive evidence to show that the accused had acted in concert and
in the execution of a common purpose with the people
who committed
the offences in issue. In my view, the accused’s
explanation that he never committed the offences is
reasonably
possibly true. This is confirmed by the evidence of the accused
person which when compared to that of the state
evidence it is
reasonably possibly true. I have no reason to believe that the
accused version is false beyond a reasonable
doubt. This makes
sense more so that the evidence of the state witnesses, the two
police officers
Mr
Maneli and Mr Ngcuka
had given contradictory and false evidence. I have no reason to
believe that the accused version is not reasonably possibly
true.
In my view, even the evidence relied on by the state contained in the
list of exhibits does not improve the state case
herein. Oral
evidence led by the police witnesses
Maneli
and
Ngcuka
was
very poor and therefore unreliable.
[40]
In the result the accused is hereby given the benefit of the doubt
and he is found not guilty and discharged on all counts.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
Counsel
for the State
:
Adv Baartman
Instructed
by
:
Director of Public Prosecutions
PORT
ELIZABETH
Counsel
for the Defence
:
Mr Saziwa
Instructed
by
:
Legal Aid Board of South Africa
PORT
ELIZABETH