About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, East London Local Court
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, East London Local Court
>>
2024
>>
[2024] ZAECELLC 4
|
|
S v Gqogqo and Another (CC 35/2021) [2024] ZAECELLC 4 (14 February 2024)
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 DIVISION, EAST LONDON CIRCUIT)
Case
No: CC 35/2021
In
the matter between:
THE
STATE
and
ZUKILE
GQOGQO
Accused
1
WANDISA
WANDA TIMOTHY
Accused
2
JUDGMENT
MALUSI
J:
[1]
The two
(2)
accused,
Zukile Gqogqo
, a 43-year-old male
person and
Wandisa Wanda Timothy
, a 55-year-old female are
facing the following charges:
1.1
Robbery with aggravating circumstances as
defined in
s1
of the
Criminal Procedure
Act 51 of 1977
;
1.2
Murder;
1.3
Unlawful possession of a fire-arm in
contravention of
s3 of the Fire-Arms
Control Act 60 of 2000 (the Act)
; and
1.4
Unlawful possession of ammunition in contravention of
s90 of the
Fire-Arms Control Act 60 of 2000 (the Act)
.
[2]
The State alleged that on or about 7 June 2018 and at
Ncera
village, Kidds Beach
in the district of
East London
the
accused acting in common purpose with other co-perpetrators
unlawfully and intentionally assaulted
Mzukisi Mgudlwa
, and
did there and there with force take from him the property specified
in annexure A to the indictment which was in his lawful
possession.
It was further alleged that aggravating circumstances were present in
that the accused wielded a fire-arm and
inflicted grievous bodily
harm on
Mzukisi Mgudlwa (the deceased)
.
[3]
In count 2 the State alleged that on the same date and place
mentioned in count 1 the accused
acting in common purpose with other
co-perpetrators, unlawfully and intentionally killed the deceased, an
adult male person.
[4]
In count 3 it was alleged that on the same date and place mentioned
in count 1 the accused jointly
with other co-perpetrators were in
unlawful possession of a fire-arm, namely, a
lorcin 9mm pistol
with serial number
457574
without holding a licence or permit
or authorisation issued in terms of the Act to possess the fire-arm.
[5]
In count 4 it was alleged that on the same date and place mentioned
in count 1 the accused jointly
with other co-perpetrators unlawfully
had in their possession 9mm ammunition, the exact number of which is
unknown to the state,
without holding a licence/s for a fire-arm
capable of discharging that ammunition.
[6]
The accused pleaded not guilty to all the counts. They elected
not to provide an explanation
for their respective pleas.
[7]
Accused 2 made formal admission in terms of
s220 of the Criminal
Procedure Act 51 of 1977 (the Act)
. As a result of those
admissions the identity of the deceased, the post mortem finding, the
chain evidence relating to the
time the deceased’s body was
discovered until the post mortem examination, the photographs
relating to the crime scene and
the photographs relating to the
recovery of the
Volvo S40
motor vehicle were all no longer in
dispute.
[8]
For a better appreciation of the issues that arise in this matter it
is necessary that the synopsis
of the background be provided.
Most of this evidence was either common cause or not disputed by the
parties involved.
[9]
The deceased met accused 2 in 1992 and they started a love
relationship. They were later
married by customary rights and
the traditional rituals were performed. In 1997 they were
blessed with a child. Initially
the marital home was in
Mdantsane
. During 2011 the deceased and accused 2
relocated to
Ncera, Kidds Beach
. Over a period of time
the couple built an expansive residence. They had erected a 3m
high fence with three
(3)
gates on the perimeter. It is
common cause that the deceased was security conscious and ensured
that the gates were closed
and locked almost at all times. Both
the deceased and accused 2 stopped working various times to
concentrate on their farming
enterprise. They planted
vegetables on the property and sold eggs. They also owned a
herd of cattle and pigs with a
herdman employed to look after these.
[10]
During 2018
Mbulelo Mthimkhulu
was employed as a herdman by
the couple. He stayed on his own inner shack in
Ncera
.
He testified that a few days before 7 June 2018 he was approached by
accused 2 who requested him to gouge out the deceased
eyes. He
understood the request to mean that he must kill the deceased.
He flatly refused the request as he told her
that he did not have the
courage to kill. Accused 2 informed him that she will look for
other people to perform the deed.
[11]
A few days later he was informed by accused 2 that the deceased had
been murdered. She
provided no details to him. Sometime
later he was visited by police investigation the death of the
deceased. The police
took a statement from him. According
to him his employment was terminated by accused 2 after the police
visit though accused
2 states he was dismissed due to misconduct.
[12]
Andiswa Fembi
gave evidence that on 7 June 2018 she received a
call on her mobile phone from her boyfriend,
Ntsizwa
. He
instructed her to take the phone to
Sifiso
Mngwembe
in
her neighbourhood. She complied and overheard the conversation
between
Ntsizwa
and
Sifiso
.
Ntsizwa
requested
Mngwembe
to come to
King William’s Town
as ‘
someone’
was looking for him.
Andiswa
was thereafter instructed to provide taxi fare for
Mngwembe
to
come into town. She decided to travel with
Mngwembe
so
that she could immediately claim a refund of the taxi fare from
Ntsizwa
. She later met
Ntsizwa
in the presence of
Mngwembe
in town. She was refunded her loan. She
testified that she saw accused 1 in the vicinity where she met
Ntsizwa
together with
Mngwembe
.
[13]
Lusanda Sigoyo
gave evidence that on 7 June 2018 she was
walking past a locally well-known taxi stop in
Ncera
called
the
Rock
when she saw three
(3)
unknown males alighting
from a taxi. Due to the fact that they were strangers in the
close knit village she went to enquire
the purpose of their visit.
She was very close to them when she engaged the three
(3)
males in a conversation. She saw them again in the afternoon of
the same day coming out of a local
Spaza
shop after they had
bought soft drinks. Again on this occasion she engaged them in
conversation. The third occasion
was in the late afternoon when
she saw the three
(3)
males in the vicinity of the local
creche and the residence of the
Mgudlwas
. One of the
three
(3)
males had jumped over the fence separating the
Mgudlwa
residence from the adjacent creche. Based on her
various interactions with the three
(3)
males she gave a
description relating to the height, the build, the complexion and the
clothing that each of the males had worn.
In court she
identified accused 1 as being one of the three
(3)
males.
[14]
Phindile Zakhe
is an ex-policeman who is a neighbour to the
Mgudlwa
household. He testified that on 7 June 2018 he
was not at his home during the day as he had left earlier that
morning.
He returned home in the early evening. Shortly
after his arrival a neighbour,
Mrs Maxaka
came to inform him
that the
Mgudlwa
couple had been attacked. He boarded
his mini-bus and drove the short distance to the gate of the
Mgudlwa
residence. He met accused 2 as she was walking out of the main
gate.
[15]
Zakhe
testified that accused 2 reported to him that they had
been attacked by intruders whose number she could not ascertain.
She
had met the intruders in the passage leading to the bedrooms and
had been forced into one of the bedrooms. Money was demanded
from her. One of the intruders took
R200.00
in cash that
was on the headboard in the bedroom. She reported that she
escaped through a bedroom window once she realised
that the intruders
had left. She further reported that a television set and
speakers were stolen.
[16]
Zakhe
gave evidence that thereafter he entered the
Mgudlwa
house accompanied by accused 2. He saw the body of the deceased
lying in a pool of blood. He later entered the house
through
the kitchen door and at that stage informed accused 2 that the
deceased had passed away. She reacted with shock and
started
crying. The police and ambulance personnel arrived shortly
thereafter. He departed the scene after the police
had
arrived.
[17]
Sergeant Vuyo van Rieck
is a member of the
South African
Police Services
and was a detective on call at
Kidds Beach
police station on the evening of 7 June 2018. He proceeded to
the crime scene after being alerted about a murder and a robbery
at
the
Mgudlwa
household. On arrival he found the deceased
sprawled on the kitchen floor in a pool of blood with stones on the
scene as
depicted in the photo album of the crime scene.
Van
Rieck
testified that accused 2 informed him about the name of the
deceased and that he was her husband during his lifetime. He
enquired from her what had transpired. She reported that she
was inside the house with the deceased. She had gone to
put on
the lamps as there was a power failure. She felt a blow on her
shoulder with a heavy object. She realised that
it could not be
her husband that hit her so hard. She said she was in the
passage leading to her bedroom at the time.
A male intruder had
instructed her to get to her bedroom. He then demanded a
fire-arm. She handed it over as it was
lying on the pedestal.
Money was demanded by the intruder and she handed over
R200.00
.
The intruder also took motor vehicle keys and a
TV
set in the
dining room. These were loaded into a green
Volvo
motor
vehicle which belonged to the deceased. Whilst the intruder had
left the bedroom she got a chance to lock herself inside
the
bedroom. She did not know how many intruders were involved.
After the intruders had left She later jumped out of
the window to
seek assistance. The cellphone, laptop of accused 2 and the
speakers were all next to the
TV
so it was reported to him.
[18]
Detective van Rieck
saw a hammer in the dining room and
accused 2 said it had been used to assault her. She said the
hammer did not belong to
the
Mgudlwa
couple. She
identified the intruder who assaulted her as having worn a red top on
his upper body. He did not take a
written statement from
accused 2 at the time because she appeared to be in shock and was
crying.
Van Rieck
was never able to obtain a statement
from accused 2. Months later another police officer obtained
her written statement.
[19]
Sifiso Mngwembe
was called by the State. He was
convicted in separate trial as being one
(1)
of the three
(3)
intruders. He gave evidence corroborating
Andiswa Fembi
regarding how
Ntsizwa
had requested that he attend in
King
William’s Town
.
Mngwembe
testified that on his
arrival in
King William’s Town Ntsizwa
had informed him
that accused 1 was the ‘
someone’
looking for him.
Accused 1 requested his assistance to collect a vehicle that he had
borrowed from his sister. He was
told that the vehicle was a
Volkswagen Jetta
. He further gave evidence about how he
and accused 1 travelled from
King William’s Town
to
East
London
on 7 June 2018. In
East London
they met
Vumile Thunywashe.
The three
(3)
of them
travelled to
Ncera
village,
Kidds Beach
. He gave
evidence that enroute to
Ncera
accused 1 was in telephonic
conversation with a woman whom the latter claimed was his sister.
This woman gave accused 1 directions
on where to alight from the
taxi.
Mngwembe
testified that after their arrival in
Ncera
accused 1 was given directions to the
Mgudlwa
house telephonically by the alleged sister. The conversation
between the alleged sister and accused 1 continued intermittently
until shortly before they committed the offences. At one stage
he overheard the woman had informed accused 1 that the deceased
had
taken his medication.
[20]
Mngwembe’s
testimony effectively corroborated
Sigoyo’s
in material respects.
Mngwembe
testified that later that
day they approached a small gate on the perimeter of the
Mgudlwa
property. Accused 2 came from inside carrying a fire-arm which
she placed on the ground. She then opened the padlock
on the
side gate for them to enter. She gave the fire-arm to accused
1. Accused 2 led them into the house.
[21]
Mngwembe
gave evidence that before he could enter the house he
heard the sound of a person falling. Upon entry he saw accused
1 and
Vumile
attacking the deceased who was lying on the
floor. Accused 1 stood over the deceased and hit him three
(3)
times in the presence of
Mngwembe
. Accused 2 was
standing in the doorway between the kitchen and the dining room with
both her hands behind her head.
When the assault on the
deceased stopped he was struggling to breath.
[22]
Mngwembe
testified that after the assault accused 2 took out a
set of
Volvo
keys from the front pocket of her apron.
She asked who was going to drive. Accused 1 pointed at him.
She directed
Mngwembe
to the garage. After
Mngwembe
had started the
Volvo
motor vehicle there was a warning light
indicating low fuel. He informed accused 2 that there was low
fuel in the motor vehicle.
She gave him
R200.00
.
Vumile
and accused 1 removed the household items listed in
annexure
A
of the indictment and loaded those into the
Volvo
.
Accused 2 informed them that she would only report the incident once
she estimated that they had reached
King William’s Town
.
Accused 2 opened the garage door for them to leave in the
Volvo
.
They then left the
Mgudlwa
household.
[23]
Mngwembe
testified that the music system and the speakers were
off loaded in
Ndevana
. The motor vehicle was abandoned
in
King William’s Town.
Accused 1 told
Mngwembe
that accused 2 still wanted the vehicle and it was not to be
damaged.
Mngwembe
gave the car keys to accused 1.
He parted ways with the other two
(2)
intruders in
King
William’s Town
. He gave evidence that after his
arrest he made a confession to the police.
[24]
Under cross-examination by
Mr Erasmus
for accused 1
Mngwembe
testified that upon his arrival in
King William’s Town
on the morning of 7 June 2018
Ntsizwa
told him that it is
accused 1 who sought his assistance. He maintained this
position even after his evidence in his own trial
was put to him.
He testified that he expected to be given something for assisting
with driving. On arrival in
East London
it appeared to
him that the meeting between accused 1 and
Vumile
had been
pre-arranged. He admitted that some of his evidence during his
trial was false.
[25]
Doctor Solomzi Zondi
is the pathologist who performed a
post-mortem examination on the body of the deceased.
Dr
Zondi
testified that the deceased died as a result of head
injuries sustained from blunt trauma to the head. He listed
multiple
fractures on the deceased’s head and haemorrhage
inside his skull. He opined that the injuries he found on the
deceased
were consistent with an assault using a hammer and blunt
object. In his view all the injuries he found were caused by
blunt
force. He was unable to say when death occurred as the
deceased’s body had been refrigerated at the time he performed
the post-mortem.
[26]
Andiswa Zibi
resides in
Ndevana
location,
King
William’s Town
. She testified that
Vumile
was
a friend of her husband. He had borrowed them a
Telefunken
TV
that evidence proved was removed from the
Mgudlwa
household. The television set was later recovered by the
police.
[27]
Ntombina
Moss
resides at
NU 1[…], Mdantsane
.
She testified that
Vumile
was her customer in her tavern and
they were related by clan names.
Vumile
had given her an
LG
music system with one speaker for safekeeping.
Approximately 2 ½ months later the police came to her home to
collect
the music system and the speaker.
[28]
Two trials within a trial were conducted to admit a
statement made by a deceased State
witness and also pointing out made
by accused 1. I ruled that the evidence was not admissible.
The statement was made
by the late
Xolisa Xokoloshe
. She
had been disclosed to the police by accused 1 after an interrogation
that lasted many hours. Initially it was
not disclosed to the
court that the statement was the proverbial ‘
fruits of a
poisoned tree’.
It was only during the second trial
within a trial that the full picture emerged that the statement was
as a result of a
disclosure during the interrogation by the police.
The court
mero motu
reconsidered its earlier ruling that the
statement by
Xolisa Xokoloshe
was admissible.
[29]
After the second trial within a trial it became clear that the
interrogation was conducted contrary to the
provisions in the
Bill
of Rights
in the
Constitution
. It would not have
been fair to both the State and the defence for the evidence to have
been admitted. Accused 1 had
a legal representative in another
unrelated matter in
King William’s Town
at the time he
was interrogated. This fact was known to
Detective
Maqubela
. However, he was not given an opportunity to
contact that legal representative to assist him during the
interrogation.
In my view, the violation of his fundamental
right to be legally represented and not to provide incriminating
evidence without
having been warned of the consequences thereof was
unfair. Though the accused ought to have been aware of his
rights due
to his then pending cases the police were still obliged to
inform him of his rights and allow him to exercise an election what
he wanted to do before the interrogation was conducted. The
information he disclosed to the police was prejudicial and
incriminating.
In my view, there was also procedural prejudice
in the failure to inform his legal representative that he was to be
interrogated
in this case. It appeared to me that the
information that was obtained from him would not have been inevitably
discovered
by the police.
[30] It
appeared to me that to have admitted the evidence emanating from the
interrogation would have been detrimental
to the administration of
justice.
Detective Maqubela
was a senior and experienced
police detective who deliberately and consciously violated the rights
of the accused and was involved
in his assault in all probability.
The fact that the police were investigating a contract killing did
not justify them deliberately
and consciously violating the rights of
the accused. In the same vein the public interests did not
outweigh the accused’s
rights. The
Republic
is now
a
Constitutional
democracy and police officials as
representatives of the state have a legal obligation to uphold and
protect the rights enshrined
in the
Constitution
.
[31] A
holistic evaluation of the facts clearly showed that the police
officers knew that they were violating
the rights of the accused.
Not only was that done but they went further and deprived the accused
of meals. It appeared
to me that
Detective Mkupa
and
Detective Maqubela
colluded to cover-up their tracks. It
is necessary for the court to convey the message to police officers
that the procedures
laid down in law must be respected in practice.
An aggravating feature of this case was that there was a period of
approximately
4½ hours which the police were unable to
explain. During that entire time accused 1 was in their
custody. It
would be wrong and a miscarriage of justice for a
court to clothe the police misconduct with judicial respectability by
allowing
such tainted evidence to be admitted. It is for these
reasons that a ruling was made that the evidence was inadmissible.
[32] It
is trite with no need for authority to be cited that what needs to be
determined at this stage is whether
the State had proved the guilt of
the accused beyond reasonable doubt. The proper approach is to
consider the evidence holistically
and not in a piecemeal fashion.
It is wrong to consider one piece of evidence in isolation as the
mosaic of evidence must
be considered as a whole.
[33]
The correct approach in the evaluation of evidence in a criminal
trial was set out with admirable clarity
in
S v Chabalala
where it was stated:
“
The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which are indicative
of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and
having done so to decide whether the balance weighs so heavily in
favour of the state as to exclude any reasonable doubt to the
accused
guilt. The result may prove that one scrap of evidence or one
defective in the case for either party such as a failure
to call a
material witness concerning an identity parade was decisive but that
can only be an ex post facto determination and a
trial court should
avoid the temptation to let on to one (apparently obvious aspect
without assessing it in the context of the
full picture in
evidence).”
[1]
[34]
The main witness and the centre piece of the State’s
case against the accused is the evidence
of
Mngwembe.
Mngwembe
is an accomplice as he participated in the attack on the home of the
deceased. It is settled in our law that the evidence
of an
accomplice has to be treated with caution due to various factors.
[2]
[35] In
the
Appellate Division (as it then was)
the court stated:
“
It
is not necessarily expected of an accomplice, before his evidence can
be accepted, that he should be wholly reliable, or even
wholly
truthful, in all that he says. The ultimate test is whether
after due consideration of the accomplice’s evidence
with the
caution which the law enjoins, the court is satisfied beyond all
reasonable doubt that in its essential features the story
that he
tells is a true one.”
[3]
[36]
In
Kristusamy
it was stated that ‘
Members
of the criminal classes do not usually come nearly up to so high in
standard.’ (
Meaning
they are not wholly consistent nor wholly reliable nor even wholly
truthful).
[4]
[37]
Mngwembe
testified that he was lured into participating in the
incident when he was called into a meeting with
Ntsizwa
who
introduced him to accused 1. This is corroborated by
Fembi
who was involved in the initial stages of the recruitment of
Mngwembe
. I find no merit in the submission by
Mr
Erasmus
that there is no link between accused 1 and
Mngwembe
when the latter arrived with
Fembi
in
King William’s
Town. Ntsizwa
had told
Fembi
that ‘
someone’
was looking for
Mngwembe. Fembi
saw accused 1 in the
vicinity when she left
Mngwembe
with
Ntsizwa
. The
attempt to cast doubt about the involvement of a third party is at
best opportunistic and certainly speculative.
Clearly
Ntsizwa
was an acquaintance of both
Mngwembe
and accused 1 according
to the evidence.
[38]
Mngwembe
gave evidence about what had transpired between
King
William’s Town
and their entry into the
Mgudlwa
household. His evidence that by the time they arrived at
Ncera
they were three
(3)
males is corroborated by
Sigoyo
.
She gave a description of the build, complexion and the clothing worn
by the three
(3)
males. Standing on its own this evidence by
Sigoyo
may not have been enough proof beyond a reasonable doubt of the
involvement of accused 1 if cautionary rule is applied. This
is
due to the application of the principles set out on an identification
and the reliability thereof in
Mthethwa
.
[5]
However,
Sigoyo’s
evidence
find support in the evidence of
Mngwembe
regarding identity of the three
(3)
males that had arrived in
Ncera
and alighted from the taxi and spent a number of hours loitering in
that village.
[39]
Mngwembe’s
evidence regarding the telephone interactions
between accused 1 and his alleged sister finds indirect support in
the evidence of
accused 2. She has given evidence that one
(1)
of the vehicles in her garage was a
Jetta
.
Mngwembe
testified that he was told by accused 1 whilst they were still in
King William’s Town
that they were to fetch a
Jetta
from
East London
.
Mngwembe
had overheard accused
1 being informed that the deceased had taken his medication that
day. Accused 2 confirmed that the
deceased had indeed taken his
medication. On the evidence it is clear that she was the only
person who could have known this
at the time. The facts are not
mere co-incidence. The proposition by
Mr Erasmus
that
some medical personnel may have been aware that the deceased must
have taken his medication is without merit and invites the
court to
indulge in speculation and conjecture.
Mngwembe
testified that the three
(3)
men were directed to the
deceased’s residence by accused 2 if one has regard to the
totality of the evidence. It is
common cause that the three
(3)
men attacked only the deceased’s home and no other household in
Ncera
.
[40]
Mngwembe
was trenchantly criticised by
Mr
Kilani
for his evidence that accused 2 opened the gate for him and his
accomplices to enter the
Mgudlwa
household. The basis of the attack was not only accused 2’s
denial but also the evidence of
Sigoyo
that one of the intruders had scaled the fence at the back of the
Mgudlwa
property to gain entry. It is obvious from this contradiction
that one of the two State witnesses is making an error.
However, no single error may destroy the credibility of a witness.
It appears to me that
Sigoyo
made an error about one of the intruders who jumped over the fence.
All the witnesses familiar with the property had indicated
that the
fence was high (
estimated
by one witness to be 3m)
and
the probabilities suggest that even for a quiet village it would have
been not only brazen but improbable for one of the intruders
to scale
such a fence in broad daylight. Even with this flagrant error
it is still my view that
Sigoyo
was a credible witness.
[6]
The version of
Mngwembe
has a ring of truth to it.
Mthimkhulu
had also emphasized how secure the fencing was and the need for
someone inside the
Mgudlwa
property to open for any person outside who wished to gain entry.
[41]
With regard to the events that took place inside the
Mgudlwa
home the version of
Mngwembe
is contradicted by accused 2.
The two versions are mutually destructive and one of them has to be
false.
Mngwembe
essentially testified that accused 2 was
present during the attack on the deceased and facilitated the escape
of the intruders
by providing car keys and money for fuel.
Accused 2’s evidence is that she was shepherded into the main
bedroom after
having been assaulted. The injuries sustained by
the deceased were found by
Dr Zondi
to be consistent with the
version
Mngwembe
provided to the court. Accused 2
provided no medical evidence to substantiate her allegation that she
was assaulted, suffered
an injury and was seen by a doctor the next
day. I must hasten to add that she is not required to prove her
innocence.
However, the allegation that she was assaulted is so
crucial to her case that supporting evidence ought to have been
provided if
it were available. She testified that she was
examined by a doctor on 8 June 2018. No doctor’s
certificate was
provided to back-up this allegation. If she
were examined by a doctor such medical records ought to be retained
for at least
five
(5)
years according to the
National
Health Act
. She knew within these five
(5)
years
that she will be facing the current charges. However, she
failed to bring evidence which was readily available to her
without
providing any reason for such failure.
[42]
Another crucial evidence was provided by
van Rieck
who stated
that accused 2 mentioned that
R200.00
in cash was taken by the
intruders. It turns to support the evidence by
Mngwembe
that he was given
R200.00
by accused 2 for fuel. This
contradicts her own testimony that she handed over a bag containing
the day’s taking from
her business sales without specifying how
much money was in the bag.
[43]
Mngwembe
testified that accused 2 was inside the house with
the intruders throughout the incident until they left. She
claims to have
locked herself in the main bedroom after handing over
the bag of money and later escaping through a window after the
robbers had
exited the main gate. Strangely, in her report to
Zakhe
she mentioned items that the intruders had taken from
the house. On her version she could not have known these items
had
been taken. This knowledge only lends credence to the
testimony of
Mngwembe
that she was inside the house and knew
which items had been removed.
[44] I
have anxiously considered the evidence of accused 1 regarding his
denial of participation in the attack
on the
Mgudlwa
home.
I find no merit in his bald denial. The weight of the evidence
of
Fembi, Sigoyo
and
Mngwembe
is cogent and
compelling. The proposition that
Mngwembe
replaced him
instead of the real culprit is without merit, farfetched and contrary
to the evidence before court. It is striking
that he offers no
explanation whatsoever regarding his whereabouts on 7 June 2018.
The weight of the evidence and the probabilities
point to him as
having been the ringleader who organized and led the intruders.
It has been stated that the State does not
have to close every
loophole that ingenuity may suggest to an accused. In my view,
accused 1’s version was false and
stands to be rejected.
I say so having considered all the elements in the evidence that
favour him. However, these
were far outweighed by the evidence
that pointed to his guilt.
[45]
Likewise, I have anxiously considered the version provided by accused
2. In my view, the weight and
cogency of evidence together the
probabilities heavily favour the State’s version as being true
compared to her version.
Crucial aspects as outlined above
militate against the version of accused 2 being accepted as
reasonably possibly true. When
the evidence is considered
holistically it is clear that accused 2’s version is false and
must be rejected.
[46]
Fembi, Zakhe, Sigoyo and van Rieck
were good, honest and
truthful witnesses.
Mthimkhulu
was honest and truthful
though he had difficulties and contradictions in his evidence.
I attribute these to his level of
education and his background.
His demeanour and raising his voice at time indicated his honesty.
Mngwembe
eminently satisfied the test for an accomplice’s
evidence to be accepted. Though he minimized his and
Vumile
Thunywashe’s
role he essentially told the truth.
[47]
Accused 1 was a poor witness context to simply deny almost
everything. His demeanour struck me as someone
who is
performing and not acting naturally. He had blank stare and
suppressed reaction to anything. He clearly was
not honest and
truthful witness.
[48]
Accused 2 was verbose and poor witness. She gave long and
elaborate answers to the most simple questions.
Mr Mguqulwa
,
the interpreter, had a most difficult time due to the long winded
answers she provided. She was clearly desperate to absolve
herself. I am satisfied she was untruthful and dishonest in her
testimony. Crucial aspects of her evidence contradicted
the
version put to the State witnesses by her various legal
representatives. This is despite the fact that she closely
directed
the presentation of her defence throughout the trial.
[49]
The State had alleged that the accused had acted in the furtherance
of a common purpose. The applicable
principles are settled in
our law. Common purpose may be proved by either a prior
agreement or active association/participation
in the commission of
the crime. It has been held that it is not required for each
participant to know or foresee in detail
the exact manner in which
the unlawful act and consequence will occur.
[7]
The legal position is that where two or more people agree to commit a
crime or actively associate in a joint unlawful enterprise,
each will
be responsible for the specific criminal conduct committed by one of
their number which falls within their common design.
[8]
[50]
Accused 1 and 2 must have concluded a prior agreement about the
murder of the deceased. I accept
Mthimkhulu’s
evidence that accused 1 requested him to murder the deceased and he
refused. She indicated to him that she will get others
to
commit the crime. Accused 1 knew before his departure from
King
William’s Town
that he was going to the home of the deceased but gave a false reason
about the purpose to
Mngwembe
.
Throughout the journey to
Ncera
there was constant communication between accused 1 and accused 2.
The hammer use to fatally assault the deceased was brought
in a bag
indicating planning. I have accepted the evidence that accused
2 facilitated and was physically present during the
murder. She
took no steps to stop the killing of the deceased. On the
contrary all her actions indicate a common intention
to kill together
with the intruders. Her provision of car keys and money for
fuel is a further act of association.
The handing over of the
fire-arm immediately before the attack is a manifestation of an
intention for the intruders to kill the
deceased. In the
circumstances I am satisfied that the five
(5)
requirements for active association have been satisfied.
[9]
In my view the evidence proves that the murder was pre-planned and
executed in furtherance of a common purpose.
[51] It
is necessary to consider whether a conviction may ensue on armed
robbery in count 1. The essence
of the State’s version
which the court has now accepted is that the removal of the items
specified by the state in count
1 was done solely to create the false
impression there had been a robbery that had gone wrong and resulted
in the death of the
deceased. The evidence of
Mngwembe
which the court has now accepted clearly establishes that accused 2
handed over or allowed the intruders to remove the items from
her
home.
[52] In
the peculiar circumstance the owner of the property consented to
their removal. She was the owner
by virtue of the fact that she
was married in community of property to the deceased by way of a
customary marriage. In my
view the evidence before court cannot
sustain a conviction on the robbery count against both accused.
There is clearly a
lack of an intention to rob on the part of accused
1 due to the fact that these items were handed over to him by the
owner in an
effort to defeat the course of justice. In the
strict legal sense one cannot rob herself and her spouse of her own
property.
Accused 2 ought to benefit from that legal position.
Accused 1 clearly lacked the intention to commit robbery.
[53] On
counts 3 and 4 I am satisfied that both accused were in physical
control of the fire-arm and ammunition
belonging to the deceased when
they had no lawful basis to be in such possession. In the
circumstances they ought to be convicted
of both counts.
[54] In
the result and for the above reasons the accused are found guilty of:
54.1
Murder;
54.2
Unlawful possession of a fire-arm; and
54.3
Unlawful possession of ammunition.
T MALUSI
JUDGE OF THE HIGH
COURT
Heard:
6-20
March 2023, 18 July-04 August 2023 , 16-27 October 2023 and 5, 6,
7, 12, 13 & 14 February 2024
.
Delivered:
14
February 2024
Appearances
:
For
the State:
Advocate
Mtsila
instructed by
Director
of Public Prosecutions
MAKHANDA
For
Accused 1:
Advocate
Erasmus
instructed by
Legal
Aid South Africa
KING
WILLIAM’S TOWN
For
Accused 2:
Adv
Nabela, Mr Manyisane & Advocate Kilani
instructed by
Legal
Aid South Africa
KING
WILLIAM’S TOWN
[1]
2003
(1) SACR 134
(SCA) at 140A-B.
[2]
S v
Hlaphezula & Others
1965 (4) SA 439
(AD) at 440D-G;
S
v Bester
1990 (2) SACR 325 (A).
[3]
S v
Francis & Another
1991
(1) SACR 198
(A) at paras 24 and 25.
[4]
R v
Kristusamy
1945 (AD) 549 at 556.
[5]
S v
Mthetwa
1972
(3) SA 766 (A).
[6]
S v
Mkhohle
1990 (1) SACR 95 (A).
[7]
S
v Makhubela & Another
2017
(2) SACR 665
(CC) at para 55.
[8]
S
v Mzwempi
2011
(2) SACR 237
(ECM) at para 50;
S
v Thebus
[2003] ZACC 12
;
2003 (2) SACR 319
(CC) 341E.
[9]
S
v Mgedezi
1989
(1) SA 687
(A) at 705I-706B.