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[2016] ZAECPEHC 61
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S v Booi and Others (CC6/2016) [2016] ZAECPEHC 61 (22 September 2016)
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REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, PORT ELIZABETH)
Case No: CC 6/2016
In the matter between:
THE STATE
And
NDUMISO BOOI
Accused
No. 2
MZOLIMO
MAKISI Accused
No. 3
MAWETHU
KHAKA Accused
No. 4
Coram:
Chetty J
Heard:
6, 7, 9, 12, 13, 15, 16 and 19 September 2016
Delivered:
22 September 2016
JUDGMENT
Chetty
J:
Introduction
[1]
The indictment cites four accused persons viz:-
“
Thandeka Mange
Accused 1
Ndumiso Booi
Accused 2
Mzolimo Makisi
Accused 3
Mawethu
Khaka
Accused 4”
It
is common cause that
Thandeka Mange
, enumerated as accused no.
1, died prior to the commencement of the trial. Notwithstanding, the
accused were referred to throughout
the trial as per the indictment
and this judgment follows suit. The first three charges relate to
events which occurred on 11 October
2012, and are preferred only
against accused no. 2. It is alleged that the accused, armed with a
firearm robbed
Oluwatoyin Alin Odufuwa
(Dr
Odufuwa
),
and
Zanele Jonga
of a VW Polo bearing the registration letters
and numbers FSJ 618 EC, a Blackberry Curve and a Nokia E63 cell
phones, an ipad 3
and 2 bags with certain paraphernalia at Ngwekazi
Street, Zwide, Port Elizabeth.
[2]
Count 4, preferred against all the accused, is a charge of conspiracy
to commit murder, in contravention of s 18 (2) (a) of
the
Riotous
Assemblies Act
[1]
.
It is alleged that during the period 11 October 2012 to 12 June 2013,
the accused conspired to,
inter
se
, and
with
Mange
to murder
Zanele
Jonga
.
[3]
Counts 5, 6 and 7, to wit, murder and the unlawful possession of a
firearm and ammunition concern the shooting of
Zanele Jonga
at
[…] Street, NU7, Motherwell, Port Elizabeth on 12 June 2013.
[4]
It is common cause that
Zanele
Jonga
(the deceased) was employed by Dr
Odufuwa
at his surgery at […] Street, NU7 Motherwell. It is
furthermore not in dispute that Dr
Odufuwa
is abroad and unlikely to return soon. The only evidence concerning
the hijacking are written statements by the deceased and Dr
Odufuwa
deposed to at the Kwazakhele Police Station the night of the
hijacking. The admission of these depositions as evidential material
was sought pursuant to the provisions of s 3 of the
Law
of Evidence Amendment Act
[2]
.
It provides as follows: -
“
3 Hearsay
evidence
(1) Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings;
or
(c)
the
court, having regard to-
(i) the
nature of the proceedings;
(ii) the
nature of the evidence;
(iii) the
purpose for which the evidence is tendered;
(iv) the
probative value of the evidence;
(v) the
reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence
depends;
(vi) any
prejudice to a party which the admission of such evidence might
entail; and
(vii) any
other factor which should in the opinion of the court be taken into
account,
is
of the opinion that such evidence should be admitted in the interests
of justice.”
[5]
The depositions are admissible in evidence for two reasons. Firstly,
in terms of subsection (a) in as much as none of the parties
raised
any objection thereto, and secondly, the interests of justice impel
their admission as evidence. It establishes that when
Dr
Odufuwa
stopped at the deceased’s residence for her to alight, they
were confronted by three armed males who robbed them of their
possessions and drove away with the doctor’s vehicle.
[6]
It is not in issue that during the course of that evening, Warrant
Officer
Lucinda Mels
(
Mels
), and a colleague, whilst on
routine patrol in New Brighton responded to a tracker signal and
discovered the hijacked vehicle outside
a home in New Brighton.
Mels
contacted radio control and the Local Criminal Record Centre (LCRC)
personnel were dispatched to the scene where the vehicle and
its
surrounds were photographed. A photo album, (exhibit “C”),
comprising the photographs taken was handed in by consent
and, those
of relevance, depict the vehicle on the verge and a firearm in the
front yard of the property.
[7]
Detective Sergeant
Ashwell James Prinsloo
(
Prinsloo
)
visited the scene of the abandoned vehicle, was present when the
photographs were taken and sealed the firearm in a forensic bag.
Thereafter, and during the course of his investigation apropos the
hijacking,
Prinsloo
enlisted the aid of Detective Constable
Mvuyijeko Xhayimpi
(
Xhayimpi
), attached to the
Kwazakhele detective services, to conduct a photo identification
exercise with the deceased to determine whether
she could identify
any of the three hijackers.
Xhayimpi
was furnished with a
collage of twelve photographs wherewith to perform the exercise and
testified that the deceased pointed to
a photograph of accused no. 2
whereupon he conveyed the information to
Prinsloo
.
Approximately six months later, a formal identification parade was
held at the St Albans prison where the line-up included accused
no.
2. Warrant Officer
Xolile Smith
(
Smith
), tasked to
conduct the parade, testified that the deceased pointed out accused
no. 2.
[8]
The admission of the aforegoing oral testimony and photographic
evidence was tendered on a circumscribed basis. When
Xhayimpi
was called, and, as a precursor to the introduction of such
testimony, Mr
Stander
unequivocally disavowed any reliance on the reliability of the
deceased’s identification of accused no. 2. Such testimony,
he
declared was tendered, not as proof that the deceased had correctly
identified accused no. 2 as one of the hijackers, but as
one of
fact. Counsel for accused no. 2 fairly conceded that
consequently, an objection to the reception of such a fact would
be
misplaced. The concession was properly made. In
S
v V
[3]
Wessels J, articulated the position thus: -
“
In all criminal
cases the Crown must prove the facts which are required to be
established beyond a reasonable doubt. Facts in issue
are proved or
established by means of admissible evidence (i.e. testimony, either
on oath or after affirmation, or by means of
affidavit), formal
admissions tendered as such during the hearing of the matter and by
presumptions. In my view it is not correct
to state that an admission
of a fact made during the hearing is evidence thereof unless one
disregards the distinction between
evidence of a fact and proof
thereof and uses the former word as a synonym for the latter. This
distinction was sometimes (but
not always) present to the mind of the
draftsman. See, e.g., sec. 284 (1) where it is provided in the
Afrikaans text that an admission
shall be 'sufficient proof'
('voldoende bewys'), whereas the English text states that an
admission shall be 'sufficient evidence'
of the fact admitted. An
admission of a fact in issue results in that fact being considered
proved or established without receiving
evidence in regard thereto.
In appropriate circumstances a presumption has the same effect.
In my view the
Legislature, in enacting sec. 258 (1) (b) had present to its mind the
distinction between proof and evidence of a
fact and was, moreover,
aware of the various means by which facts in issue may be proved. It
therefore, in my view, used the word
'evidence' in the sense
suggested above.”
Conspiracy
to murder and murder
[9]
It is not in issue that the deceased was shot and killed whilst
seated in a stationary vehicle outside the surgery situate at
[…]
Street. Constable
Jacques Gilmer
(
Gilmer
), then
attached to the criminal policing unit of the Motherwell South
African Police Services, was on routine patrol and received
a report
of a suspicious vehicle in […] Street. Almost simultaneously,
occupants of a vehicle stopped him and reported having
heard gunshots
on the other side of […] Street.
Gilmer
hastened thence
and discovered the deceased in the vehicle and a passenger, one Ms
Zoliswa Halana
(
Halana
). It is common cause that the
deceased died on the scene as a result of multiple gunshot wounds.
Halana
was, for reasons not germane to this judgment, not
called as a witness and the warrant authorised for her arrest, was
cancelled
at the inception of the trial.
[10]
The case against the accused, as I shall in due course analyse, rests
to an appreciable degree, upon circumstantial evidence.
Thus, the
summary of substantial facts provided pursuant to the provisions of s
144 (3) of the
Criminal
Procedure Act
[4]
(the Act), appraised the accused that:
“
4. At all times
during June 2013 accused 2 was being detained at the St Albans
Correctional Facility in Port Elizabeth. Accused
2 at all times had a
cellular phone at his disposal whilst in custody. Prior to 12 June
2013 accused 2 contacted his girlfriend,
accused 1, and in
conjunction with accused 3 and 4 agreed to kill Zanele Jonga.
5. On or before 12 June
2013 accused 2 furnished accused 1 with the contact details of Zanele
Jonga. On 12 June 2013 accused 2 phoned
accused 1 at her office.
Accused 1 in turn contacted accused 3 and 4 and placed them on a
conference call with accused 2. Later
in the day accused 1 contacted
Zanele Jonga in order to ascertain whether she was at the surgery of
Oluwatoyin Alin Odufuwa. Once
she had confirmed the presence of
Zanele Jonga accused 1contacted and informed accused 3 and 4 of the
whereabouts of Zanele Jonga.
Accused 3 and 4 proceeded to the
surgery.
6. At about 18h15 on 12
June 2013 Zanele Jonga left the surgery and climbed into a motor
vehicle parked in front of the surgery.
Accused 3 and 4 approached
her and fired numerous shots at her. She died on the scene. Accused 3
and 4 left the scene.
7. The accused, at all
times, acted in the furtherance of a common purpose.”
The
aforegoing encapsulates the essential and material facts which
underpinned the state case and is invariably furnished to enable
an
accused to prepare his/her defence. In
casu
, the accused were
forewarned that electronic data was an integral part of the state’s
armoury.
[11]
Thus, prior to the commencement of the trial, Counsel for the state,
sought various admissions from the accused thereanent,
those of
relevance articulated as follows: -
“
10. That at all
times during June 2013 accused 1 was being detained at the St Albans
Correctional Facility in Port Elizabeth;
11. That at all times
during June 2013 accused 1 had a romantic relationship with Thandeka
Mange;
12. That Thandeka Mange
was employed by metropolitan, Port Elizabeth;
13. That the number
0875425411 is an open telephone line at Metropolitan only to be
activated by a pin number;
14. That Thandeka Mange
had a pin number to activate 0875425411;
15. That at all times
during June 2013 accused 1 had a cellular phone with number […3]
at his disposal whilst in custody;
16. That Zanele Jonga was
employed at the surgery of Odufuwa at […] Street, NU-7,
Motherwell, Port Elizabeth;
17. That the landline
number of the surgery was […7];
18. That accused 2 at all
times during June 2013 utilised a cellular phone number […8];
19. That accused 3 at all
times during June 2013 utilised a cellular phone number […2];
20. That on 12 June 2013
telephonic contact was made between Mange, at her Metropolitan
office, and accused 1;
21. That on 12 June 2013
Mange contacted accused 2 and 3 and placed them on a conference call
with accused 1;
22. That later in the day
Mange contacted Jonga at the surgery in order to ascertain whether
she was at the surgery of Odufuwa;
23. That later in the day
Mange contacted and informed accused 3 and 4 of the whereabouts of
Jonga;
24. That accused 2 and 3
proceeded to the surgery;
25. That at about 18h15
on 12 June 2013 Jonga left the surgery and climbed into a motor
vehicle parked in front of the surgery;
26. That two assailants
approached Jonga, the deceased, and fired numerous shots at her;
27. That Jonga died on
the scene;”
[12]
In response thereto, accused no. 2 admitted only those facts listed
in paragraphs 8, 9, 10, 11, 12, 13, 16, 27, 28 and
29; accused no. 3
declined to make any admissions and gave notice “
to place
in issue at the proceedings, those facts mentioned in items 18, 21,
23, 24 of the state’s aforementioned notice”
.
Accused no. 4, whilst denying the factual averments made in the
state’s notice, responded to the content of paragraph 19
with
the retort, “
The allegations are noted.”
[13]
It will be gleaned from the aforegoing that the denial that the
accused were in possession of cellular phones compelled
the state to
adduce evidence to prove that: -
(i)
Accused no. 2 had, in June
2013, a cellular phone with number […1],
whilst incarcerated at St Albans,
(ii)
Accused no. 3 had, in June 2013,
a cellular phone with number
[…8],
(iii)
Accused no. 4 had, in June 2013,
utilised a cellular phone with no
[…2]
The
evidential material upon which the state relies rests almost
exclusively upon electronic data extracted from the records of
Mobile
Telephone Networks (Pty) Ltd, colloquially referred to as MTN.
[14]
The admissibility and evidential weight of data messages is regulated
by s 15 of the
Electronic
Communications and Transactions Act
[5]
.
It provides as follows:
“
15
Admissibility and evidential weight of data messages
(1) In any legal
proceedings, the rules of evidence must not be applied so as to deny
the admissibility of a data message, in evidence-
(a) on the
mere grounds that it is constituted by a data message; or
(b) if it is
the best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that
it is not in its original
form.
(2) Information in the
form of a data message must be given due evidential weight.
(3) In assessing the
evidential weight of a data message, regard must be had to-
(a) the
reliability of the manner in which the data message was generated,
stored or communicated;
(b) the
reliability of the manner in which the integrity of the data message
was maintained;
(c) the
manner in which its originator was identified; and
(d) any other
relevant factor.
(4) A data message made
by a person in the ordinary course of business, or a copy or printout
of or an extract from such data message
certified to be correct by an
officer in the service of such person, is on its mere production in
any civil, criminal, administrative
or disciplinary proceedings under
any law, the rules of a self regulatory organisation or any other law
or the common law, admissible
in evidence against any person and
rebuttable proof of the facts contained in such record, copy,
printout or extract.”
[15]
It is common cause that
Mange
was employed at Metropolitan
Life Insurance as a financial advisor and involved in a relationship
with accused no. 2. Mr
Leon Pretorius
(
Pretorius
),
Metropolitan’s manager of forensic services had access to the
company’s internal polycom system and telephone records.
His
uncontroverted evidence was that the telephone number to reach the
division in which
Mange
was employed was […1]. Outgoing
calls could only be made utilising an individual pin number allocated
to each employee.
Mange’s
personal pin number was,
according to company policy, for her exclusive use. It is not in
dispute that her cell phone number was
[…3].
[16]
The question whether accused no. 2 had access to a cellular phone
whilst incarcerated at St Albans is easily resoluble.
During the
course of the trial it had been put to all and sundry that by virtue
of the correctional facilities’ prohibition
on the use of
cellular phones by prisoners, accused no. 2 could not and did not
have access to a cellular phone during the period
of his
incarceration. The assertion made is demonstrably false as evidenced,
perhaps inadvertently, by the accused himself. It
is common cause
that accused no. 2 was arrested in 2012 and has remained in custody.
In paragraph 4 of the admissions made pursuant
to the provisions of s
220 of the
Criminal
Procedure Act
[6]
,
accused no. 2 admitted “
that
exhibit “T” are extracts of cell phone messages retrieved
from the cell phone of Thandeka Mange. The content of
the sms
messages are admitted as correct.”
Exhibit “T” records nine sms messages to and from number
[…0] between the period 12 October 2013 and 22 November
2013.
[17]
It is common cause that accused no. 2’s alias is
Twenty
.
Whatever doubt there may have been is dispelled by the sms to Mange
on 12 October 2013 “
please call Twenty at […0]”
and the sms to his attorney,
Macgeer
“
Mr MacGear,
it’s me Ndumiso Booi do we stand a chance of getting bail on
this matter”.
Although the cellular number utilised by
accused no. 2 is different to that which the state alleges he used
during June 2013, the
aforegoing evidence demonstrates, quite
unequivocally, that accused no. 2 had access to a cellular phone
during the period of his
incarceration.
[18]
The evidence adduced by the state proves beyond any doubt that
accused no. 2 used the cellular number […1]. As
adumbrated
hereinbefore
Mange
was taken into custody and questioned by
Lieutenant Colonel
Michiel Christiaan Grobbler
(
Grobbler
).
He testified that she had two cellular phones in her possession and
during the interrogation he telephoned accused no. 2 on that
cellular
number under her contact details. When accused no. 2 answered and
heard his voice he dropped the telephone. He redialled
the number and
when he informed accused no. 2 that his girlfriend had been arrested
he once more ended the call. Although
it was put to
Grobbler
that the accused refuted being a party to the telephone call, the
denial is clearly false.
Mange’s
cell phone contact
details establish that the number […1] was that of accused no.
2.
[19]
Warrant Officer
Thembinkosi Mooi (Mooi
), attached to the South
African Police Services’ Cyber Investigation Unit extracted the
contact details stored in
Mange’s
cellular phone,
downloaded them onto a compact disc and printed those of relevance to
these proceedings. The collated data, handed
in as exhibit “O”,
records the following under entry: -
“
- no 335,
the name Mawe2 and phone number
[…2]
- No. 768,
the name Twenty wam and phone
number […1]
- No 833
the name Yhima and phone number
[…8]”
[20]
Although accused no. 4, the only one of the accused to testify, was
finally constrained to admit that the telephone number
[…2],
which appeared in
Mange’s
contact details under the name
Mawe2
was his number, he nonetheless steadfastly maintained that the
contact name bore no correlation to his and that the sim card was
in
any event, pursuant to the provisions of the
Regulation
of Interception of Communications and Provision of
Communication-Related Information Act
[7]
,
registered in the name of one
Lotz
.
It matters not. By his own admission the cell number was his and,
given the similitude in the pronunciation of the last letter
in
Mawethu
and the corresponding digit at the end of
Mawe2
,
the inference can properly be drawn that
Mawe2
is merely an internet language derivative of
Mawethu
.
[21]
Despite initial protestation that accused no. 3’s alias was
Yhima
, counsel for accused no. 3 was constrained, after
Grobbler
produced his pocket book of contemporaneous entries
on 18 February 2014, to concede, not only that accused no. 3 was
indeed known
as
Yhima
but that his cell number was […8].
This concession was undoubtedly triggered by the evidence of Captain
Hendrik Stephanus
Erasmus
(
Erasmus
) who arrested
accused no. 3 on 25 June 2013 and confiscated his cell phone bearing
the same cell number.
[22]
The evidence adduced by the state establishes beyond any reasonable
doubt that during June 2013 and in particular, 12
June 2013 accused
no. 2 was the possessor of the cell phone with the number […1],
accused no. 3 was the possessor of the
cell phone with number […8]
and accused no. 4 was the possessor of the number […2].
Contact
between Accused No. 2 and Accused No. 4 and Accused No. 2 and Accused
No. 3, extrapolated from exhibit “K
[8]
”
[23]
The first contact between accused no. 2 and 4 occurred on 3 June
2013. It is common cause that accused no. 2 appeared
in the New
Brighton Magistrates’ Court on that date. Exhibit “K10”
establishes contact between accused no 2 and
4 at 01:40:14 p.m. on 3
June 2013. On 4 June 2013 accused no. 2 and accused no. 4 were once
again in telephonic contact for close
onto four minutes. On 5 June
2013 telephonic contact was made on no fewer than twelve (12)
occasions. On 6 June 2013 two (2) calls
were made; on 7 June 2013,
one (1) call; on 9 June 2013, four (4) calls; on 10 June 2013, one
(1) call; and on 11 June 2013, nine
(9) calls.
[24]
Exhibit “K” establishes cellular phone contact between
accused no’s 2 and 3 for the first time on 10
June 2013. The
first, from accused no. 2 to accused no. 3 and, thereafter, three (3)
calls from accused no. 3 to accused no. 2.
On 1 June 2013 at 12h39
p.m. accused no. 2 contacted accused no. 3 in a call lasting 74
seconds.
12
June 2013
[25]
As a precursor to tabulating the telephonic contact between the
cellular numbers of
Mange
, accused no’s 2, 3 and 4 it is
apposite to dispel any notion that the calls may not have been made
or received by them. The
historical record refutes any such
suggestion and I accept that the contact was between
Mange
,
accused no’s 2, 3 and 4 and in the chronological order as
extrapolated from the data on exhibit “G”, “K”,
“M” and “N”. The pattern which emerges is as
follows: -
14h50
Accused no. 2 contacted accused
no. 4
16h24
Accused no. 3 contacted accused
no. 2
16h26:02
Mange contacted accused no. 2
from her landline at Metropolitan in a call lasting 10 minutes and
39 seconds. Whilst the call
was in progress, Mange initiates a
conference call with accused no. 4 and accused no. 3.
17h05:32
Mange contacted the deceased at
the surgery. I interpolate to state that the purpose was
undoubtedly to confirm her presence
at her place of employment. Dr
Odufuwa, as adumbrated hereinbefore deposed to an affidavit after
the incident. Its admission
was sought pursuant to the provisions
of s 3 of the Law of Evidence Amendment Act. I ruled that the
statement was admissible
in evidence in the interests of justice
[26]
In paragraph 2 of the statement Dr
Odufuwa
narrates the
content of a telephonic conversation between himself and the deceased
at 18h26 on 12 June 2013 wherein she recounted
a telephonic call to
the surgery for the sole purpose of establishing her identity and,
when she answered in the affirmative, the
call ended. It was
submitted on behalf of accused no. 2 that contextually read, the
caller was a male person and automatically
excluded
Mange
as
the caller. The submission is, to say the least, fatuous. I accept
that the caller was indeed
Mange
.
[27]
At 17h06:12
Mange
contacted accused no. 2 and initiated a
conference call between them and accused no’s 3 and 4. Colonel
Phillip
De Jager
Cronje
(
Cronje
),
stationed at the Priority Crime Management Centre of the Directorate
for Priority Crime Investigations (The Hawks), was provided
with MTN
phone call data records of
Mange
, the surgery and the accused
(exhibits G, H, K, L, M and N) and prepared a graphic illustration of
the pattern of the calls, their
chronological sequence and the cell
phone towers which registered the telephone activity (exhibit “Q”).
It is apparent
herefrom that accused no. 3 and accused no. 4 were in
the vicinity of the cell phone tower of the Motherwell Library
between 17h33
and 18h37. The probabilities are that the deceased must
have been killed between 18h26 and 18h43. The submission made by
counsel
for accused no. 3 that the latter was, as evidenced by the
cell phone data, engaged on his cell phone during that period, is
untenable
and at variance with the objective facts.
[28]
Exhibit ‘Q” establishes the movement of accused 3 from
the time he entered the signal tower area of the Motherwell
Library.
It demonstrates that at 06:33:19 p.m. he was, on the uncontroverted
testimony of
Erasmus
within a radius of 600m from the surgery.
And so too, was accused no. 4. Exhibit “K” next
establishes contact between
accused no’s 2, 3 and 4 between
19h17:13 and 22h41 that evening after the shooting of the deceased.
By 16 June 2013, all
communications between them ceased.
[29]
It was submitted on behalf of the accused that the aforegoing cell
phone data merely established that there was communication
between
the accused
inter
se
and
with
Mange
without
any evidence concerning the import of their conversation.
Consequently, there was, so the argument unfolded, a
lacuna
in the state case which warranted their acquittal on the charges
preferred against them. It is indeed so that there is no direct
testimony implicating the accused in the commission of the offences.
The state’s case, as I remarked earlier, rests on
circumstantial
evidence. In assessing such evidence, Zulman AJA
stated as follows
[9]
: -
“
. . . one needs to
be careful not to approach such evidence upon a piece-meal basis and
to subject each individual piece of evidence
to a consideration of
whether it excludes the reasonable possibility that the explanation
given by an accused is true. The evidence
needs to be considered in
its totality. It is only then that one can apply the oft-quoted
dictum in R v Blom
1939 AD 188
at 202-3, where reference is made to
two cardinal rules of logic which cannot be ignored. These are,
firstly, that the inference
sought to be drawn must be consistent
with all the proved facts and, secondly, the proved facts should be
such 'that they
exclude every reasonable inference from them
save the one sought to be drawn'. The matter is well put in the
following remarks
of Davis AJA in R v De Villiers
1944 AD 493
at
508-9:
'The Court must not take
each circumstance separately and give the accused the benefit of any
reasonable doubt as to the inference
to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them
together, and it is only after
it has done so that the accused is
entitled to the benefit of any reasonable doubt which it may have as
to whether the inference
of guilt is the only inference which can
reasonably be drawn. To put the matter in another way; the Crown must
satisfy the Court,
not that each separate fact is inconsistent with
the innocence of the accused, but that the evidence as a whole is
beyond reasonable
doubt inconsistent with such innocence.'
Best on Evidence 10th ed
297 at 261 puts the matter thus:
'The elements, or links,
which compose a chain of presumptive proof, are certain moral and
physical coincidences, which individually
indicate the principal
fact; and the probative force of the whole depends on the number,
weight, independence, and consistency
of those elementary
circumstances.
A number of
circumstances, each individually very slight, may so tally with and
confirm each other as to leave no room for doubt
of the fact which
they tend to establish. . . . Not to speak of greater numbers,
even two articles of circumstantial evidence,
though each taken by
itself weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . . Thus,
on an indictment for uttering a bank-note, knowing it to be
counterfeit, proof that the accused uttered
a counterfeit note
amounts to nothing or next to nothing; any person might innocently
have a counterfeit note in his
possession, and offer it
in payment. But suppose further proof to be adduced that, shortly
before the transaction in question,
he had in another place, and to
another person, offered in payment another counterfeit note of the
same manufacture, the presumption
of guilty knowledge becomes strong.
. . .'
Lord Coleridge, in R v
Dickman (Newcastle Summer Assizes, 1910 - referred to in Wills on
Circumstantial Evidence 7th ed at 46 and
452-60), made the following
observations concerning the proper approach to circumstantial
evidence:
'It is perfectly true
that this is a case of circumstantial evidence and circumstantial
evidence alone. Now circumstantial evidence
varies infinitely in its
strength in proportion to the character, the variety, the
cogency, the independence, one of another,
of the circumstances. I
think one might describe it as a network of facts cast around the
accused man. That network may be a mere
gossamer thread, as light and
as unsubstantial as the air itself. It may vanish at a touch. It may
be that, strong as it is in
part, it leaves great gaps and rents
through which the accused is entitled to pass in safety. It may be so
close, so stringent,
so coherent in its texture, that no efforts on
the part of the accused can break through. It may come to nothing -
on the other
hand it may be absolutely convincing. . . . The law does
not demand that you should act upon certainties alone. . . . In our
lives,
in our acts, in our thoughts we do not deal with certainties;
we ought to act upon just and reasonable convictions founded upon
just and reasonable grounds. . . . The law asks for no more and the
law demands no less.'”
The
Electronic Data
[30]
No criticism whatsoever can be directed at the electronically
retrieved data, as indeed, none was. The evidence adduced
conforms to
the statutorily enjoined safeguards and their reliability and
integrity is beyond question. The proved facts establish
that after
accused no. 2 came into possession of copies of the case docket
relating to the hijacking of Dr
Odufuwa’s
vehicle on 3
June 2013, a flurry of telephone calls passed between
Mange
,
accused no’s 2, 3 and 4. Shortly after the deceased’s
presence at the surgery was confirmed on 12 June 2013, accused
no’s
3 and 4 moved into close proximity. After the deceased had been
killed they both departed the area and, after that evening,
all
communication between them ceased. The network of facts which I
outlined in the preceding paragraphs compel the inference,
as the
only reasonable one, that accused no’s 3 and 4 were on the
scene when shots were fired at the deceased. It matters
not which of
them fired the fatal shot(s) which caused her death. They clearly
acted with a common purpose with accused no. 2,
their guiding hand.
[31]
The accused are however charged with both the statutory offence of
conspiracy and the completed offence, i.e. murder.
Having found that
the latter offence has been proven beyond a reasonable doubt, it
stands to reason that since the two offences
are conjoined, a
conviction on both counts is impermissible and cannot be sustained -
the conspiratorial agreement was terminated
by the deceased’s
murder.
The
Robbery Count
[32]
Mr
Stander
submitted that on the proven facts the inference
may legitimately be drawn that accused no. 2 was one of the persons
who robbed
the deceased and Dr
Odufuwa
of their possessions on
11 October 2012. Although the hearsay evidence of the deceased was
tendered on a circumscribed basis viz
the fact of the pointing out,
there is no evidence to suggest that accused no. 2 was aware of the
identity of the person who pointed
him out at the formal parade. It
was only in June 2013, when the accused had access to the content of
the case docket and in particular
the statements by the deceased and
Dr
Odufuwa
, that he could have obtained such knowledge. It
appears from the charge sheet pertaining to the robbery count,
exhibit “R”,
that on 4 June 2013, the matter was
postponed to afford accused no. 2’s attorney the opportunity to
examine and consider
the case docket as a prequel for a formal bail
hearing.
[33]
The inference may thus properly be drawn that the conspiratorial
agreement which ensued was inextricably linked to the
discovery of
the identity of the deceased. In the face of such damning testimony
accused no. 2 had a case to answer but instead
chose to close his
case. His failure to testify must consequently redound to his
detriment. The frenetic telephonic interaction
between the accused
thereafter, which ultimately led to the death of the deceased,
ineluctably compels the inference that he had
robbed the deceased and
Dr
Odufuwa
and her death provided the avenue for his escape
from prosecution.
[34]
In the course of this judgment I examined the evidence tendered by
accused no. 4. He was a thoroughly unsatisfactory
witness and it soon
became obvious that he is incapable of speaking the truth. He is an
incorrigible liar and I reject his evidence
in its entirety.
[35]
In the result therefore: -
1. Accused no. 2 is found
guilty on counts 1, 2, 3 and 5 and not guilty on count 4.
2. Accused no. 3 is found
guilty on counts 5, 6 and 7 and not guilty on count 4.
3. Accused no. 4 is found
guilty on counts 5, 6 and 7 and not guilty on count 4.
_________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
Obo
the State: Adv M. Stander
NDPP,
Wool Trust Building, North End, Port Elizabeth
(012)
842 1455
Obo
Accused 2: Adv R. Crompton
Obo
Accused 3: Adv C. Van Rooyen
Instructed
by: Port Elizabeth Justice Centre, North End,
Port
Elizabeth
(041)
408 2800
Obo
Accused 4: Mr Z. Ngqeza
(Private
Instruction)
[1]
Act
No, 17 of 1956
[2]
Act
No, 45 of 1988
[3]
1958
(3) SA 474
(GW) @ p 479 B-F
[4]
Act
No, 51 of 1977
[5]
Act
No, 25 of 2002
[6]
Act
No, 51 of 1977
[7]
Act
No, 70 of 2002
[8]
The
Call data on accused no. 2’s cell phone msisdn#083 861 7031
[9]
S
v Reddy and Others
1996 (2) SACR 1
(AD) at page 8c to page 9e.