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[2022] ZAFSHC 314
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S v Hlongwane and Another (40/2022) [2022] ZAFSHC 314 (4 November 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No: 40/2022
In
the matter between:
THE
STATE
and
MANQOBA
XOLANI HLONGWANE
ACCUSED
1
KHULEKANI
DLAMINI
ACCUSED 2
Coram:
MOLITSOANE,
J
Date
of hearing:
24,25,26,27,28,31
October 2022 and 1,2,3 November 2022.
Judgment:
4
November 2022.
JUDGMENT
[1]
On 24 February 2021 at about 22h00 the
police attended a scene of crime along the road in Harrismith. They
discovered a body of
a male person, later identified
as
KHEHLA
SISHANGE
MASHAZI
(the
deceased).
The
two
accused
persons
before
court
were
later
arrested
and
charged
in respect
of that incident.
[2]
Both accused were charged with robbery
with aggravating circumstances as defined
in sectionl
of the
Criminal
Procedure
Act,
51
of 1977(the
CPA),
read with the provisions of section 51(2), Part II of Schedule 2 of
Act, 105 of 1977. The State alleges that on 24 February
2021 and in
Harrismith the accused unlawfully and intentionally assaulted the
deceased, with intent to steal and with force/ being
in possession
of dangerous weapons took his motor
vehicle, a Nissan Tiida registration number
[....] (Tiida) and there robbed him of
the said vehicle; and on the same date and place mentioned above did
unlawfully and intentionally
kill the deceased.
Mr
Mpemvane
appears
for
the
State
while
Mr
Reyneke
appears
for
both accused.
[3]
They both pleaded not guilty and each
gave a detailed plea explanation thus defining the issues between
them and the State as well
as setting out their respective
defences. In his plea explanation,
Accused
1
explains
that
he came into possession of the Tiida on
26 February 2021 having borrowed it from one Mtobisi Shabangu
in order to deliver food for his child.
He indicates that upon receipt of the motor vehicle he noticed that
there were blood
stains
on the door panel
of
the vehicle.
Mtobisi
gave
an
explanation for the blood stains by saying that he had been involved
in a fight at a tavern and that blood was his.
[4]
Accused 2 pleaded that on 26 February
2021 he noticed Accused 1 and one Sakhile Hlongwane struggling to
push the Tiida out of a
ditch. He assisted them and
left for
his home.
He was
later
arrested
on
the
said
day
at
his home. In essence both accused deny
responsibility for the robbery and
murder of the deceased.
[5]
By agreement the State handed in a
number of exhibits which included a Notice as well as the Reply in
terms of section 212(B) of
the CPA. Importantly, in the section
212(B) reply the accused disputed that the identification parade
which was held was properly
conducted. The chain, identity of the
deceased and cause of death are not in dispute.
[6]
Mr Goodman Thamsanqa Nkosi, a Constable
in the South African Police Service (the SAPS) testified
first. He testified
that on 24 October 2021 he was on duty
with Constable Gwebu. At about 22h00 they attended a scene of crime
along the road in Harrismith.
Upon arrival on the scene they found a
man's body whose face was covered with blood. Upon closer scrutiny he
observed a bullet
wound on the right check of the body.
According to him, the body in all
probability
was
brought to that scene as there were tyre marks and fresh blood stains
on the road. In cross examination he conceded that seeing
that the
body was lying on the yellow line of the road, next to the shoulder
of the road, a possibility could not be excluded that
another driver
might have seen the body and that the driver tried to escape it and
in the process drove across the body.
[7]
Mr
Tshepo
Mosia testified
and
told the Court
that
he resides in QwaQwa. On 24 February 2021 at about 18h00 he was at
home. Accused 1, who he knew arrived
at
his home
in
the company
of
Accused
2
and another unknown person. Accused 1 had a mechanical
problem with this Toyota
Tazz vehicle. Accused 1 requested to
leave his vehicle at the witness' place and was to collect it the
following day. He, both accused
before court and another unknown
person pushed the vehicle of the accused into his yard. After they
pushed the vehicle in the yard
the three then left.
[8]
The witness apparently went to sleep as
he testified that at about 23h00 the same night he was awoken by
accused 1. Accused 1 was
in the company of Accused 2 and the unknown
person. They came in a white Nissan Tiida. Accused 1 asked for a bowl
of water as well
as soap. According to the witness, accused
1 did not explain why he wanted water
and soap. Accused
1
also asked the witness for a rope as they wanted to tow the vehicle
they
had
left earlier with the witness. After he gave him the water bowl and
soap he went on his way to look for a rope. Upon his return,
he found
Accused 1 busy washing the pants he (Accused 1) had been wearing. The
pants had blood on them. He also saw accused 2 and
the unknown person
washing the blood on the Tiida.
[9]
The witness was taken through his
attendance at the identification parade. It is his testimony that he
pointed accused 1, 2 and
another unknown person who is not before
court, at the parade. The essence of his evidence at the parade is
that he got at the
parade, spoke to no one, got through the door into
the parade room, made pointing outs, left in the same way that he
entered. He
later changed his version and said he pointed both
accused before court and looked around to see if there was anyone he
could point.
This change in the version came after he was confronted
with the evidence of the photo album which was accepted into evidence
as
Exhibit I. This exhibit, depicts that the witness only pointed two
people on the parade, being the accused before court.
[10]
Dan Senzo Vilakazi is the uncle of the
deceased. On 24 February 2021 he received a call from the deceased.
That was the last time
he spoke to the deceased. The next day, at the
request of the police, he came to Harrismith and identified the body
of the deceased.
[11]
Thokozani David Zwane is a sergeant in
the SAPS. He was on duty with sergeant Sithole on 26 February 2021.
He received a call from
his Station Commander Colonel Ramlagan as a
result of which he and Sithole
ultimately followed a certain white
Tiida. In pursuing the said vehicle, they were forced at some stage
to park their vehicle and
pursue the vehicle on foot.
As they were approaching certain
premises they suddenly saw two males running out of the said
premises. They gave chase and managed
to catch the said male persons.
At that stage the Tiida was parked near the premises. Upon catching
the said people, he asked who
the owner of the vehicle was. One
Xolani Hlongwane
responded
by saying that he was not
the
owner of the vehicle but that the vehicle belonged to someone who
resided at Zwelitsha.
[12]
They searched the vehicle and noticed
stains covering the driver's seat, the steering wheel and part of the
driver's door. The two
male persons arrested were Xolani Hlongwane
and Sakhile Hlongwane. When asked to identify the people they
arrested in court, he
pointed Accused 2, Mr Dlamini as Xolani
Hlongwane. He further testified that the other person he arrested was
not before court.
Upon enquiring about the blood stains in the
vehicle the two said they knew nothing about them. During cross
examination he informed
court that Xolani said that he had borrowed
the vehicle from one Mto. He confirmed that they had seen the two
male persons carrying
a big bag when going into the house.
[13]
Retired
Captain Makhubo and retired
Warrant Officer Radebe testified about
the identification parade. Captain Makhubo conducted the
identification parade while W/0
Radebe
escorted and or guarded the witness after the pointing out was done.
The State closed its case and the defence subsequently
applied
for
the
discharge
of both
accused
in
terms
of
section174
of
the
C PA.
The
application
was
dismissed
after
which
the
defence
closed its case without leading any evidence.
[14]
The
State
bears the onus to prove its case
beyond
a
reasonable
doubt.
What
is expected
from
the accused
is to give a version
which
is
reasonably possibly true. It is common cause that the State case is
based entirely on circumstantial evidence. During the address
both
Counsels implored this
court
to have regard to the submissions made in the application for
discharge of the accused in terms of section 174 of the CPA.
Mr.
Mpemvane, for the State
implored
the court to look
at the factual
matrix
of
this case in whole and not to look into the evidence piecemeal. I
agree with the said Counsel concerning the approach to the
evaluation
of the evidence.
[15]
The
cardinal rule is whether on a conspectus of all the evidence, the
state has established beyond a reasonable doubt that the accused
committed the offences for which they have been arraigned. The court
must caution itself against
dealing
with
evidence
in
a
piecemeal
fashion.
The
court
in
S
v Reddy
[1]
said
the following:
"In
assessing circumstantial evidence 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 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 oftquoted
dictum in
R v Blom
1939 AD 188
at 202-203, 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".
[16]
Mr Tshepo Mosia is an important link in the version of State in that
according to the State he
is the person that was with the accused
within hours after the discovery of the body of the deceased. He also
testified about the
blood that he saw on the pants of accused 1 as
well as the vehicle of the deceased. However, he is a single witness
and in this
regard his evidence must be approached with caution.
Section 208 of the CPA provides that the accused may be convicted on
the evidence
of a single reliable witness.
[17]
The
court in S
v
Trainor
[2]
said
the following:
"A
conspectus of all the evidence is required. Evidence that is reliable
should be weighed alongside such evidence as may be
found to be
false. Independently verifiable evidence, if any, should be weighed
to see if it supports any evidence tendered. In
considering whether
evidence is reliable, the quality of that evidence must of necessity,
be evaluated, as must corroborative evidence,
if any. Evidence of
course, must be evaluated against the onus of any particular issue or
in respect of the case in its entirety."
[18]
The evidence of Mosia is riddled with
inconsistencies and improbabilities. He testified that the police
came to his house and asked
him if he knew accused 1 and 2. When the
court started clarifying what the police actually said to him on this
aspect, he then
moved from pillar to post. It became clear to the
court that he was being untruthful. The reason for the questioning by
court on
this aspect was that no evidence had been led that the
police were aware that the accused had been present at his premises.
His
testimony was that the police arrived a day or two earlier and he
was not present at home. He called them and they came. When they
arrived they started asking about the ownership of the Tazz which was
on his premises. No evidence had been led that the Tazz was
the
subject of any investigation. So it was puzzling as to how the police
knew about the presence of the accused at his house to
the extent
that they would ask him ifhe knew them. At no stage did he also give
the description of any of the accused to the police.
This court tried
to understand
what
actually
the
police
said
when
they
asked
him
about
his knowledge
and had to try to put the question
ad nauseam for the accused to reply
thereto to no avail.
[19]
He further
became
evasive as to
when
the
police
arrived
at
his
home. Initially the court was under the impression that he was only
mistaken. But upon being probed with simple straight forward
questions it became clear
that
he changed his answer every time to suit the question posed. This
behaviour unfortunately threw him in the deep end. When he
was given
the date and day the police might, on his own version, been at his
house he vacillated from the next day, which might
be the 25 February
2021 or 26 February 2021. The chickens ultimately came home to roost
when he now asserted that the police came
to his residence on the
24
th
February 2021. The clear testimony
of
Constable
Nkosi
was that he arrived
at the scene
where the body of the deceased was
discovered at around 22h00. Clearly before 22h00 that evening, let
alone during the day, the
police were unaware of the body of the
deceased. They couldn't have been at his home on 24 February 2021.
Even with hindsight,
this court is still unaware when the police
arrived at the home of Mosia or how many times they were at his home.
[20]
Mosia was confronted with the statement
he made before the police on 10 March 2021. Admittedly the statement
was not handed into
evidence but the answers he gave from the
questions in the statement became admissible. He did
not
dispute
what
was
put
to
him pertaining
to
the
statement.
As an officer of the Court, Mr Mpemvane
could have objected to the questioning had
Mr
Reyneke
appearing
for the
accused
put
an erroneous
statement.
At no stage before he made a statement
on 10 March 2021 did Mosia inform the police that he saw blood in the
Tiida on 24 February
2021. This most crucial piece of evidence he
'elects' not to tell the police. He does not tell them that accused
1 had blood
stained
trousers
and had to wash them and further that he
had
to
borrow
him
his
own
trousers.
When
so
confronted
he
gave
a puzzling answer, he says he had
'no
knowledge of the origin of the
blood as such he had nothing to say about it.
"
[21]
It is indeed so as also conceded by the
State that there was no need for Accused
1 to attend the identification parade as
he was well known to
Mosia.
The evidence of Mosia and Radebe about the identification parade,
however, vitiates the process though. Firstly, Mosia gave
an
impression that upon arrival at the parade he only sauntered into the
parade and made pointing outs and left without speaking
to anyone.
This would surely be highly irregular as it would militate against
the established
practice
of how an identification parade ought to be held. The recordal of the
parade proceedings paints a different picture from
the testimony of
Mosia.
He
contradicts the testimony of Captain Makhubo and his recordal of the
proceedings as contained in Exhibit K accepted into evidence.
The
said exhibit indicate that he was asked to point out
'the
suspect, if on the parade, by touching his/her/their shoulder
who...on 2021-02-24 at about 22:10 and at R712 road between
Harrismith and Phuthaditjhaba killed the deceased"
[22]
He gave an impression
that he spoke to no one. What is more
puzzling
is
that it is not his testimony that he witnessed or knew the person or
persons who killed the deceased yet the impression created
by Exhibit
K is that he went to the parade specifically to point the suspect(s)
who killed the deceased. One would have expected
the identification
parade to at least say the he went to the parade to point the people
who were at his home with the Tiida.
[23]
In his examination in chief he testified
that he pointed three people at the parade. In cross examination he
recanted his earlier
testimony when confronted
with
the
photo
album
and
said
he
never
said
he
pointed
three people. He tried to improvise by
saying that he looked around to see if there was any other person to
point out. He was clearly
not telling the truth. Exhibit I shows 26
people on the parade standing in a straight line. One can only
surmise that Mosia must
have gone from one point to the other to make
the pointing out. Why would he now try to see if he could point
another person.
[24]
It
is
common cause that when Sergeant Zwane followed the Tiida, two people
were arrested. One of the said people was accused 1(Xolani
Hlongwane). In court Zwane confused Accused 1 with accused 2. Accused
2 was not arrested on the scene. In the statement
he made in plea explanation he said he
was arrested at home. The State led no evidence as how this accused
came to be before court
especially in view of the fact that Mosia or
any State witness did not describe him to the police. What is
important though is
that Accused 1 informed Zwane to whom the Tiida
belonged and that he had borrowed it. Zwane is not the investigating
officer in
this matter but he did his preliminary investigation by
following what the accused informed him. He could not find Mto. It
has however, to be borne in mind that in
his plea explanation accused 1 said that the vehicle belonged to
Mthobisi which in all
likelihood, the name, Mto, might be the
nickname of Mthobisi.
[25]
It
is
trite that the accused bears no onus to prove his innocence. The
police were made aware of the possession of Accused 1 of the
Tiida. I
expect Zwane to have informed the investigating officer of this
important piece of information and for the latter to follow
it up. It
appears that same did not happen and it can thus not be held against
the accused.
[26]
The evidence of Mr Vilakazi is important
in so far as it shows that at least on 24 February 2021 the deceased
was still alive. It
however does not assist the state
as it does not indicate when, as to
time, the deceased
was
still alive. The state urged me to look at the timeline as to when
Nkosi and Gwebu arrived at the scene on the road as well
as the
allegations by Mosia that the accused arrived at his house barely an
hour thereafter. This contention does not take into
account that
there is no evidence that the deceased was robbed at 22h00. For all
the court knows the deceased might have been robbed
and killed
earlier. The evidence ofNkosi compounds the problems of the State in
that he opined that the deceased was not killed
on the scene where he
was found. At what time and when he was killed remain a mystery.
There are many inferences that may be drawn
in this case as to who
killed the deceased.
The
evidence
of
Mosia is so unreliable that it must be rejected in its entirety.
[27]
In my view the state has failed to prove
on the conspectus of all the evidence that the deceased was robbed
and killed by the accused
persons and as such the State failed to
prove its case beyond a reasonable doubt. I accordingly make the
following order:
[28]
ORDER
1.
Both accused are found not guilty and
are acquitted on both count. ---
For
the State:
Adv.
L.B. MPEMVANE
Instructed
by: Director
of Public Prosecutions
BLOEMFONTEIN.
For
Accused 1 and 2: Mr.
J.D. REYNEKE
Instructed
by: Legal
Aid of South Africa
BLOEMFONTEIN.
[1]
1996(2} SACR 1 { (A} at 8C-D.
[2]
2003(1) SACR 35 { SCA) para 9.