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[2016] ZAECPEHC 26
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S v Nombamba and Others (CC34/2014) [2016] ZAECPEHC 26 (19 May 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: CC 34/2014
In
the matter
between:
THE
STATE
And
SANDILE
KENNETH NOMBAMBA
TOBELA
BAILEY
MONDE
JACK
Accused
Coram:
Chetty J
Heard:
10- 13 May 2016; 16 – 18 May 2016
Delivered:
19 May 2016
JUDGMENT
Chetty
J:
[1]
For reasons which will become evident as this judgment unfolds, it is
apposite to commence with a prologue. The original indictment
enumerated four persons as the accused – one
Xhanti
Msizi
(
Msizi
)
(accused no. 1),
Sandile
Kenneth Nombamba
(accused no. 2),
Tobela
Bailey
(accused no. 3) and
Monde
Jack
(accused no. 4). The trial was due to commence on 3 May 2016. On the
morning of the hearing I was appraised that
Msizi
had entered into an agreement as envisaged in terms of S105A of the
Criminal
Procedure Act
[1]
(the Act) and, an order for separation of his trial from that of his
co-accused would accordingly be sought before Eksteen J. The
remaining accused, now enumerated as per the heading of this
judgment, entered pleas to the now amended indictment which
formulated
the multiple charges as follows:
“
Count
1:
THEFT
OF MOTOR VEHICLE
IN
THAT
,
between 17-18 June 2013, and at [... P. S.], Walmer Township, Walmer,
in the district of PORT ELIZABETH, the said accused, the
one, the
other or all of them acting in concert and in the execution of a
common purpose, did unlawfully and intentionally steal
an Isuzu KB
bakkie with registration number [B....]C, with a value of
approximately R18,000-00, the property of
Thandisizwe
Goodman Johannes
,
and/or in the lawful possession of
Thandisizwe
Goodman Johannes
.
Count
2:
MURDER
IN
THAT
,
upon or about 18 June 2013, and at Cele Street, Govan Mbeki, in the
district of PORT ELIZABETH, the said accused the one, the
other or
all of them acting in concert and in the execution of a common
purpose, did unlawfully and intentionally kill
Mzwandile
Eric Mbudu
,
an adult male, by shooting him with a firearm.
COUNT
3:
ROBBERY
(
read
with section 1(1)(b) of Act 51 of 1977)
IN
THAT
,
upon or about 18 June 2013, and at Cele Street, Govan Mbeki, in the
district of PORT ELIZABETH, the said accused the one, the
other or
all of them acting in concert and in the execution of a common
purpose, did unlawfully assault
Mzwandile
Eric Mbudu
,
and by intentionally using force and violence to induce submission by
Mzwandile
Eric Mbudu,
did take and steal from his immediate presence certain property to
wit a Toyota Corolla motor vehicle, with registration number
[F....],
with a value of approximately R45,000-00, his property or in his
lawful possession, and did rob him of the same.
COUNT
4:
ROBBERY
(
read
with section 1(1)(b) of Act 51 of 1977)
IN
THAT
,
upon or about 18 June 2013, and at Triangle Service Station, 177
Walmer Boulevard, Walmer, in the district of PORT ELIZABETH,
the said
accused the one, the other or all of them acting in concert and in
the execution of a common purpose, did unlawfully threaten
Farai
Nyahunzi
and/or
Thembekile
Patrick Toni
with a firearm and knives, and by intentionally using force and
violence to induce submission by
Farai
Nyahunzi
and/or
Thembekile
Patrick Toni
,
did take and steal from their immediate presence certain property to
wit
·
A
Blackberry Torch 9800 cellular phone;
·
Nokia
C201 cellular phone;
·
Cash
of approximately R1,500-00;
·
Merchandise
including biltong, cigarettes and chips, with a value of
approximately R10,500-00, their property or in their lawful
possession, and did rob them of the same.
COUNT
5:
ROBBERY
(
read
with section 1(1)(b) of Act 51 of 1977)
IN
THAT
,
upon or about 18 June 2013, and at Shell Garage (Airport Motors), 147
Heugh Road, Walmer, in the district of PORT ELIZABETH, the
said
accused the one, the other or all of them acting in concert and in
the execution of a common purpose, did unlawfully threaten
Buyiswa
Jela
and/or
Zethembe
Mapasa
with
a firearm and knives, and by intentionally using force and violence
to induce submission by
Buyiswa
Jela
and/or
Zethembe
Mapasa
, did take and steal from their immediate presence certain property
to wit
·
Cash
of approximately R1,000-00;
·
Merchandise
including pies, chocolates and sweets;
·
MNT
cellular phone with IMEI number 868352002187520;
·
E250
Samsung cellular phone;
·
Wallet
containing R3,00-00 in cash, With a value of approximately R6,000-00,
their property or in their lawful possession and did
rob them of the
same.
COUNT
6
:
UNLAWFUL
POSSESSION OF A FIREARM
(in contravention of Section3 read with sections 1, 103, 117,
120(1)(a), and section 121 and also read with schedule 4 of the
Firearms Act, Act 60 of 2000, and further read with section 250 of
the Criminal Procedure Act, Act 51 of 1977) IN THAT
,
during the period 17-20 June 2013, and in the district of PORT
ELIZABETH, the said accused did unlawfully have in their possession
a
semi-automatic firearm, to with a 9mm Parabellum Star firearm with
no. 1391221, without holding a licence, permit or authorization
issued in terms of Act 60 of 2000 to possess the said firearm.
COUNT
7:
UNLAWFUL
POSSESSION OF AMMUNITION
(in contravention of Section3 read with sections 1, 103, 117,
120(1)(a), and section 121 and also read with schedule 4 of the
Firearms Act, Act 60 of 2000, and further read with section 250 of
the Criminal Procedure Act, Act 51 of 1977) IN THAT
,
during the period 17-20 June 2013, and in the district of PORT
ELIZABETH, the said accused did unlawfully have in their possession
ammunition, to with a 9mm calibre rounds, without holding a licence
in respect of an arm capable of discharging the said ammunition;
a
permit to possess the said ammunition; a dealer’s,
manufacturer’s or gunsmith’s licence; an import, export,
in-transit or transporter’s permit; or without being otherwise
authorized to do so.”
The
indictment furthermore alerted the accused to the mandatory minimum
sentences which were applicable
vis-à-vis
counts 2, 3, 4, 5 and 6.
[2]
Accused no. 1 pleaded guilty to counts 1, 4 and 5 and not guilty to
the remaining counts. In his written plea explanation tendered
pursuant to the provisions of sections 112(2), and 115 of the Act, he
admitted his presence at the various locales disclosed in
the
indictment and proffered an account of his involvement albeit under
the coercive influence of
Msizi
.
[3]
Accused no. 2 pleaded guilty on count 1, not guilty on counts 2, 3, 6
and 7 and guilty to theft on counts 4 and 5. In his written
plea
explanation, he adverted to his accidental presence at the various
scenes which unfolded that evening – he being an
unwitting
observer.
[4]
Accused no. 3 pleaded guilty to counts 1, 4 and 5 and not guilty to
the remaining counts. In his written plea explanation tendered
pursuant to the provisions of section 112(2), he admitted complicity
in the aforementioned offences. Apropos the remaining counts,
he
availed himself of his right to silence.
[5]
Given the ostensible defence of duress which underpins accused no.
1and, to a lesser extent accused no. 2’s participation
in the
multiple offences, it is apposite to introduce
Msizi
into the narrative at this juncture. He is a self-confessed murderer
and without any doubt a reproachful individual. Such castigation
should however not
per
se
warrant the rejection of his testimony. It was suggested during
cross-examination and in argument before me that given the agreement
concluded between himself and the state he has a motive to falsely
implicate the accused. The suggestions made and the implications
concerning his honesty are without foundation. In his testimony
before me he readily admitted his leading role. Furthermore, his
implication of the accused on the various counts is not of recent
vintage and a product of the plea agreement.
[6]
Under cross-examination by Mr
Crompton
,
Msizi’s
veracity and a fortiori, his credibility and reliability was sought
to be impugned by recourse to a confession which he deposed
to before
magistrate
Johan
Herselman
on 26 June 2013. The
statement, notwithstanding
Msizi’s
reservations
concerning certain of its content, mirrors, not only the factual
exposition expounded upon in the plea agreement but
his
viva voce
evidence.
[7]
Msizi’s
implication of accused no’s 1 and 2 during the robbery of the
Toyota Corolla (Count 1) is detailed in the confession. It
moreover
finds corroboration in the testimony of Ms
Sheila
Sikiti
(
Ms
Sikiti
)
whom, it is common cause was seated in the Corolla on the accused’s
arrival on the scene. She described how she and the
deceased were set
upon by four persons whose faces were covered with only their eyes
being visible. She recounted her removal from
the vehicle by a person
she described as “
the
tall one
”.
That tittle of evidence finds corroboration in the testimony of both
Msizi
and accused no. 1. Accused no. 2’s initial version was that he
had throughout that episode positioned himself at the Isuzu
bakkie.
In response to a question by me he stated that he had begun the
process of running away when he saw his cohorts in the
Corolla and
that this propelled him to join them. Accused no. 2’s penchant
to tailor his evidence is self-evident and his
disregard for the
truth legion. I reject his testimony that he was a passive
bystander nonchalantly waiting at the bakkie
while the robbery took
place. The evidence conclusively establishes that he was the person
who manhandled Ms
Sikiti
out of the Corolla and held onto her whilst the deceased was forcibly
removed therefrom.
[8]
Accused no. 1’s version was shown to be a complete and utter
fabrication. He was a thoroughly disreputable witness and
his
evidence is clearly contrived. A cursory examination of the photos on
exhibit “U” establishes his criminal propensity.
The
video footage on exhibits 1 and 2 demonstrate quite unequivocally
that the front occupants of the Corolla acted spontaneously
and with
ardent resolve. Mr
Thembekile
Patrick Toni
,
the petrol attendant at the Triangle Service Station described how
the two persons who entered the shop after the gun wielding
person
were armed with knives and approached him. The agreed upon written
notes to the aforesaid video footage, (exhibit “P”),
which, it is common cause, depict three people entering the shop,
corroborates
Toni’s
evidence. Accused no. 1 admits in his plea explanation that when he
entered the shop he was carrying a knife. He furthermore admits
that
at the second garage he held the petrol attendant at knifepoint.
These actions demonstrate unequivocally that accused no.
1 was an
integral part of the group’s robbery escapades.
[9]
The question which thus falls for decision is whether the accused
are, by operation of the common purpose doctrine, guilty of
the
murder of the deceased. Mr
Mnyani
was constrained to concede that the evidence is woefully inadequate
to sustain a conviction against accused no.’s 2 and 3.
He
submitted however that accused no. 1 falls into a completely
different category and guilty beyond a reasonable doubt. To test
the
validity of the submission,
Mgedezi
[2]
beckons. Botha JA state the legal position thus: -
“
In
the absence of proof of a prior agreement, accused No 6, who was not
shown to have contributed causally to the killing or wounding
of the
occupants of room 12, can be held liable for those events, on the
basis of the decision in
S
v Safatsa and Others
1988
(1) SA 868 (A)
,
only if certain prerequisites are satisfied. In the first place, he
must have been present at the scene where the violence was
being
committed. Secondly, he must have been aware of the assault on the
inmates of room 12. Thirdly, he must have intended
to make
common cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a
common purpose
with the perpetrators of the assault by himself performing some act
of association with the conduct of the others.
Fifthly, he must have
had the requisite
mens
rea
;
so, in respect of the killing of the deceased, he must
have intended them to be killed, or he must have foreseen
the
possibility of their being killed and performed his own act of
association with recklessness as to whether or not death was
to
ensue. (As to the first four requirements, see Whiting 1986
SALJ
38
at 39.) In order to secure a conviction against accused No 6, in
respect of the counts on which he was charged, the State
had to
prove all of these prerequisites beyond reasonable doubt.”
[10]
The correct approach to considering the requirement of active
association was articulated in
Thebus
[3]
as follows: -
“
.
. .
the
duty of every trial court, when applying the doctrine of
common purpose, is to exercise the utmost circumspection
in
evaluating the evidence against each accused person. A collective
approach to determining the actual conduct or active association
of
an individual accused has many evidentiary pitfalls. The trial court
must seek to determine, in respect of each accused person,
the
location, timing, sequence, duration, frequency and nature of
the conduct alleged to constitute sufficient participation
or active
association and its relationship, if any, to the criminal result and
to all other prerequisites of guilt. Whether or
not active
association has been appropriately established will depend upon the
factual context of each case.”
[11]
As adumbrated hereinbefore, accused no. 1’s evidence falls to
be rejected in its entirety.
Msizi’s
evidence that accused no. 1 was the first person to alight from the
Isuzu and proceed to the Corolla is admitted by him. The question
whether accused no. 1 himself took the firearm from the vehicle or it
was handed to him by
Msizi
is of no real moment. The fact of the matter is that whilst
Msizi
proceeded to turn and park the Isuzu, accused no. 1 returned to the
Corolla armed therewith. His version, that the purpose was
purely to
break the window, is pure drivel. Their common objective, from the
outset, was to secure possession of the vehicle. To
that end the
occupants, Ms
Sikiti
and the deceased were forcibly ejected from the vehicle.
[12]
Although Ms
Sikiti
stated that she heard a bang of a firearm against the driver’s
side window, the weight of the evidence clearly establishes
that the
two (2) shots which she heard were only fired once she and the
deceased had been removed from the vehicle. It is furthermore
abundantly clear from Ms
Sikiti’s
testimony that after she had been removed from the vehicle by accused
no. 2, that she saw the person whom she described as the
one holding
the firearm removing and dragging the deceased from the vehicle. On
the probabilities, that person was accused no.
1.
Msizi’s
evidence was that the ejected cartridge struck him on the hand
whereupon he took possession of the firearm from accused no. 1 and
shot the deceased.
[13]
Although there are undoubtedly imperfections in the testimony of
Ms
Sikiti
,
the probabilities favour the sequence of events as described by her.
It moreover finds corroboration in
Msizi’s
testimony and the inference can properly be made that in firing at
the deceased, accused no. 1 intended to kill him. It is merely
fortuitous that he missed his intended target. His active association
with
Msizi
,
who fired the fatal shot, is thus clearly established. Accused no.
1’s guilt on the murder charge has therefore been proven
beyond
any doubt.
[14]
The robberies at the Triangle and Airport service stations present
little difficulty. On
Msizi’s
evidence, three of them entered the Triangle service station. His
concession, under cross-examination by Mr
Crompton
that accused no. 2 could possibly have been sitting in the car does
not inure to accused no. 2’s benefit. The fact of the
matter is
that three of them entered the service station shop when it was
robbed. The probabilities are that it was he who entered
with accused
no. 1 and
Msizi
,
and participated in the robbery. His denial of any involvement in the
robbery at the Airport Motors service station is also clearly
contrived. His futile attempt to explain the anomaly concerning the
presence of the cashier demonstrated, quite unequivocally,
that he
was in the service station shop during the robbery.
[16]
Accused no. 3 pleaded guilty to counts 1, 4 and 5. Counsel for the
state fairly conceded that on the remaining counts he was
entitled to
his acquittal.
[17]
As regards counts 6 and 7, Mr
Mnyani
once more fairly conceded that only accused no.’s 2 and 3 were
entitled to an acquittal thereanent. He however submitted
that the
evidence adduced established the guilt of accused no. 1 beyond any
reasonable doubt. Mr
Skepe
however submitted that
Msizi’s
evidence that he regarded the firearm as his property negated any
suggestion that accused no. 1 possessed the firearm and ammunition.
It is not in issue, and was in fact admitted by accused no. 1, that
he was in possession of the firearm when he went to the Corolla.
His
purpose, as I have found, was to control the weapon to appropriate
the Corolla. The inference can thus properly be made that
ex
facie
his conduct, he had the necessary
animus
thereby rendering him guilty on both counts 6 and 7.
[18]
In the circumstances:
Accused
No. 1 is found guilty on each of counts 1 – 7.
Accused
no. 2 is found guilty on counts 1, 3, 4 and 5 and not guilty on the
remaining counts.
Accused
no. 3 is found guilty on counts 1, 4 and 5 and not guilty on the
other
counts.
_____________________
D
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State:
Adv M. Mnyani
National
Director of Public Prosecutions, Port Elizabeth
Obo
Accused No. 1:
Adv N. E. Skepe
Instructed
by Legal Aid, Port Elizbeth
Obo
Accused No. 2:
Adv R.D. Crompton
Instructed
by Legal Aid, Port Elizabeth
Obo
Accused No. 3:
Mr P.J. Schoonraad
Instructed
by Legal Aid, Port Elizabeth
[1]
Act No. 51 of 1977
[2]
S v Mgedezi and Others 1989 (1) SA 687(A).
[3]
S v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC)