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[2016] ZAECPEHC 37
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S v Matinjwa and Another (CC21/2014) [2016] ZAECPEHC 37 (3 May 2016)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: CC21/2014
In
the matter between:
THE
STATE
And
NYANISO
PATRICK ANELE MATINJWA
SIPHUMELELE
PHETHELO
Accused
Coram:
Chetty J
Heard:
19 April 2016 – 28 April 2016
Delivered:
3
May 2016
Chetty
J:
[1]
At approximately 10 p.m. on the evening of 16 December 2014 the sound
of a gunshot shattered the peace along the Swartkops river
in Port
Elizabeth. Two anglers, Messrs
Rodney
van der Mescht
(
van der
Mescht
)
and
Pieter
Michael Rudolph Kitching
(
Kitching
),
standing on the Bluewater Bay bank of the river saw three persons
converging at the high water mark on the opposite bank and
rapidly
proceeding to a black golf motor vehicle parked along the road above
the river bank. The vehicle reversed for some distance
without the
lights being switched on and disappeared from view. The gunshot
initially troubled the anglers.
Van
der Mescht
telephoned a friend, one
Bruce,
who resided across the river, to enquire if everything was okay, and,
placated by
Bruce’s
answers, he and
Kitching
continued their pastime.
[2]
The gunshot however heralded a portentous discovery later that
evening. Prior to departing
Kitching
has occasion to walk along the jetty whence the gunshot had sounded
earlier the evening and stumbled across the prone body of the
deceased. From his observations,
Kitching
deduced that the cadaver had been shot and further observed that
given the state of the deceased’s fishing rod, the deceased
had
been shot before he had had an opportunity to prepare his rod for
angling. It is not in issue that the police were summoned
and
the cadaver removed.
[3]
It is furthermore common cause that shortly before midday on 17
December 2016, three (3) members of the South African Police
services
tactical response unit, responding to a complaint, encountered the
stationary blue golf the bonnet of which was open.
Constable
Mfundo
Tola
(
Tola
),
the driver of the police vehicle observed a person with tinted hair
standing in front of the golf and stopped to allow his colleagues,
Constables
Owen
Phangiso (Phangiso)
and
Mawande
Tolom (Tolom),
to alight. Whilst parking the police vehicle
Phangiso
ordered the person occupying the driver’s seat to exit the
vehicle. It is not in issue that the vehicle had no number plates.
Tolom’s
evidence that during the search of accused no.’s 1 and 2 he
found a black wallet and firearm on their person respectively
was
corroborated by
Phangiso
and I accept their evidence hereanent unreservedly. In
contradistinction the accused’s denial that the aforementioned
items
were found on their person is, in conformity with the entire
body of their testimony contrived and falls to be rejected as false.
[4]
The sudden appearance of
Tola
,
Phangiso
and
Tolom
at the area where the golf had been parked was however not
fortuitous. The radio report which had guided the police to the area
had been precipitated by a complaint lodged with Warrant Officer
Gerhard Ackerman whilst on patrol in Motherwell on the morning
in
question. He had been approached by two young boys,
Thandalwethu
Mbanda
and
Xolani
Pheta
who reported having been robbed a short while earlier by a gun
wielding individual. It is not in issue that their description of
the
area where the offence had been committed led the tactical unit to
the vicinity of the golf.
[5]
Although there are conflicting versions of what transpired during the
initial encounter between the boys and the accused, the
fact that
they met is common cause. The point of departure is whether they were
robbed of their possessions as deposed to by them
or voluntarily
handed over the goods as a form of security as alleged by accused no.
2. As adumbrated hereinbefore, I can place
no reliance whatsoever on
the testimony of either accused. The entire body of their evidence
falls to be rejected as false. I accept
that accused no. 2 robbed
Mbanda
of his cellphone and R20, 00 whilst accused no. 1 was sound asleep in
the passenger seat.
[6]
Tola’s
discovery of the wallet in accused no. 1’s right rear pocket
yielded, on closer inspection, a driver’s licence and
a number
of bank cards bearing the surname
Ovrenovits
.
It is not in dispute that the wallet and its contents belonged to the
deceased.
Tolom’s
further enquiry via official channels vis-à-vis the
particulars displayed on the vehicles licence disc established that
the golf had been “hijacked” in Swartkops the previous
evening. What transpired at the scene therefore is of no real
consequence. The end result saw the two accused being incarcerated at
the Swartkops police station.
[7]
At approximately 18:30 that evening the two accused were booked out
of the Swartkops police station by Sargent
Makaleni
and Constable
Tsitsi
of the Motherwell police station and transported to their offices and
returned later the evening. It is not in issue that on the
morning of
19 December 2014, accused no. 2 made a statement to Detective
Lieutenant Colonel P J
Smidt
at the Motherwell police station. The admissibility of the statement
was challenged on the basis that it had not been made fairly
and
voluntarily and without undue influence. I ordered that a trial
within a trial be held to determine the issue and, after
the
adduction of evidence thereanent, ruled the statement admissible as
evidence against accused no. 2.
[8]
In determining the issue whether the state discharged the onus of
establishing that accused no. 2 made the statement freely
and
voluntarily, in his sound and sober sense and without having been
unduly influenced thereto, I must at the outset record that
upon a
conspectus of the testimony adduced, accused no. 2’s testimony
is contrived and clearly false. It is unnecessary to
traverse the
evidence adduced on behalf of the state. Each of the witnesses were
clearly truthful and honest and I unreservedly
accept that accused
no. 2 made the statement freely and voluntarily and without having
been unduly influenced thereto. The accused’s
contrary
assertions were shown to be demonstrably false.
[9]
Accused no. 2’s evidence that he was at his house and fetched
on the morning of the 17
th
by accused no. 1 is in direct
conflict with contents of his statement. His evidence that part
of the content of the statement
emanated from Warrant Officer
Berg
(
Berg
) and the remainder, a product of his own fertile
imagination, is clearly false regard being had to the narrative
contained therein.
The specificity and detailed description of the
events which unfolded represents a firsthand account of the events
which unfolded
on that fateful night. The statement moreover finds
corroboration in the evidence of
van der Mescht
,
Kitching
and Warrant Officer
Hannigan
. On the Morning of 17 December
2014, the latter retrieved a fired cartridge case in the river in
close proximity to where the deceased’s
body had been
discovered. It is not in dispute and in fact formally admitted, that
the cartridge case had been fired from the Glock
firearm which
Constable
Tolom
found on accused no. 2. His denial that it was
found on his person is patently false.
[10]
The movement of accused no. 2 and his cohorts on the riverbank
immediately prior to the shooting and thereafter moreover finds
corroboration in the evidence of both
van
der Mescht
and
Kicthing
and provides the death knell for accused no. 2’s version that
he was not the author of the statement.
[11]
Accused no. 1’s evidence that he was not at the scene of the
murder and that the wallet had not been found on his person
is
clearly false. He was a pathetic witness and his testimony falls to
be rejected in its entirety. The presence of both the wallet
and the
vehicle on him and in his immediate vicinity respectively called for
an explanation. The version tendered was clearly false
and the
inference is inescapable that he was at the scene when the deceased
was killed and robbed of his possessions. An objective
appraisal of
the evidence establishes the falsity of accused no. 1’s
testimony that he spent the night at home and was fetched
therefrom
by accused no. 2 the following morning. The policemen who arrested
him were in no doubt that he reeked of alcohol. The
boys both
confirmed that he was asleep in the passenger seat of the vehicle. A
search of the vehicle moreover revealed empty beer
bottles. Accused
no. 1’s belated attempt under cross-examination to allege that
he moved from the driver’s seat to
the passenger seat to smoke
dagga is clearly contrived. Holistically viewed, his alibi is a
complete and utter fabrication.
The accused’s continued
association the following day with the deceased’s possessions
in tow establishes beyond any
doubt that they shared a common
purpose. In such circumstances it matters not which of the two
accused fired the fatal shot –
their common design render both
liable for the death of the deceased.
[12]
Ms
Coertzen
however submitted that the evidence adduced was wholly insufficient
to found a conviction on counts 4 and 5. The argument is no
doubt
premised upon the acceptance of the state’s evidence that
accused no. 2 fired a shot at the initiation school and was
found in
possession of the firearm. The question whether an inference may
legitimately be drawn that there was a joint intention
to possess the
firearm must perforce commence with an analysis of the facts.
[13]
From his observation point across the river,
van
der Mescht
observed three (3) persons who had congregated prior to the arrival
of the golf. According to
Kitching
the vehicle left the scene and returned approximately two (2) minutes
later. He noticed the same group of persons and two (2) minutes
later
a shot rang out. The three (3) persons moved towards the parked
golf and stood there for about four (4) minutes before
the vehicle
drove off without the lights being switched on. After the shot rang
out,
van
der Mescht
had
observed a person walking away from the jetty, meeting up with the
two (2) others and walking towards the golf. As adumbrated
hereinbefore, accused no. 1 was, on the probabilities, one of the
three (3) persons. On the totality of the evidence I am satisfied
that the inference that the accused had the intention to possess the
firearm is entirely permissible.
[14]
I am therefore satisfied that the state discharged the onus resting
upon it. In the result accused no. 1 is convicted as charged
on
counts 1, 2, 4 and 5. Accused no. 2 is convicted as charged on counts
1, 2, 3, 4, 5 and 6.
____________________
D.
CHETTY
JUDGE
OF THE HIGH COURT