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[2022] ZALMPPHC 72
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S v Shabagu and Others (CC38/2010) [2022] ZALMPPHC 72 (29 November 2022)
IN THE HIGH COURT OF
SOUTH AFRICA;
LIMPOPO DIVISION;
POLOKWANE
CASE NO: CC38 /2010
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED
Date:29 November 2022
MDHLULI AJ
In the matter between:
THE
STATE
And
SIZWE
SHABANGU AND OTHERS
Accused
JUDGMENT
MDHLULI
AJ:
[1] Thank you very much.
I am going to be proceeding to give judgment on the application made
on behalf of the accused persons respectively.
I am not going to be
getting into the detailed evidence, long evidence that has been
tendered herein, however I will make reference
to the evidence where
needs be.
[2] When the trial began,
we had six accused that were indicted, being Mr Sizwe Shabangu, a 43
year old male as at the time of the
indictment, Mr Valley Zwane, a 40
year old man, South African citizen, as well as Mr Prudence Ndala, a
34 year old male, South
African, as well as Mr Desmond Vulekani
Siyoko, a 25 year old male, South African citizen at the time, as
well as Mbusodi Albert
Mathemane, as at the time being 35 years old
at the time of the indictment, and Mothibedi Africa Malatjie.
However, before the
trial could start the state made an application
for separation of trial for accused number 6 who was at large.
[3] The accused were
facing thirty counts, as at the beginning of this trial, with about
sixtysix witnesses that were to be called
in the state’s case.
However, the state, before the trial could start, withdrew count
number 13 after an argument was made
by counsel for accused number 1,
and supported by the rest of the counsels, as well as counts 26 to
count 30 were withdrawn, meaning
that the accused persons were now
left with counts number 1 to 12, as well as counts number 14 to 25,
which they faced during their
trial.
[4] And the state also
made an amendment to the charge sheet, which included some words that
had to be added to the charge of murder,
with no objection from the
counsel, and the charge was thus amended. All the accused
respectively understood the charges preferred
against them, and after
that they were each appraised with the implications of section 51(1)
that was applicable to the charge
in respect of count 1 of murder in
terms of the
Criminal Law Amendment Act 105 of 1997
, as well as the
implications of
section 51(2)
of the
Criminal Law Amendment Act, as
some of the charges that they were faced warranted same.
[5] The Court also
appraised the accused persons of the applicable competent verdicts,
as well as the implications of the Firearms
Control Act in the event
they were found guilty, that they may be declared unfit to possess
the firearm, and all accused understood
the explanations.
[6] Now before the
accused persons could plead, counsel for accused number 1 raised an
objection of jurisdiction in respect of count
number 16 and 17, as
well as duplication of counts 13 and 14, as well as 26 to 30, and
this objection was shared by all the legal
representatives of record.
They even made submission and amplified the said objection.
[7] In response, and
after an involved argument, the advocate on behalf of the state
produced an EXHIBIT A, which was accepted provisionally,
being the
authority that was granted by the DPP, the National Director of
Public Prosecutions rather in terms of section 22(3)
of the
National
Prosecuting Authority Act 32 of 1998
, read with
section 3
,
113
of the
Criminal Procedure Act 51 of 1977
, which was accepted provisionally
then at the time of pleading, because it was a copy.
[8] I think it is safe to
say that on the 26
th
of October 2022 the state produced
the original copy. Then the exhibit is thus now finally accepted to
the proceedings. All accused
persons pleaded not guilty to all the
charges preferred against them, and elected to remain silent, except
for counsel for accused
number 2, Advocate Thipe, who over and above
pleading not guilty, he pleaded not guilty to the competent verdicts,
as well as Ms
Campbell on behalf of accused number 4, who raised a
defence of alibi. And these were confirmed by all accused persons.
[9] On the 26
th
of October 2022 as well, there was also exhibits that were accepted
on the record with no objection from the counsel for the accused
persons, which were EXHIBIT B, which was earlier provisionally
admitted, because the compiler of the photograph was to be called
to
testify, however, same was admitted by all counsels, as well as items
that were found on the scene A of the ML(Mercedez Benz).
It was found
that there is no dispute and they belong to the complainant, being
G4S Security Company, as well as EXHIBITS P, Q,
R and T. Those were
admitted with no objection from all the defence counsels.
[10] Now the accused
persons have all brought an application in terms of
section 174
that
they should be discharged, because there is no evidence upon which a
Court acting reasonably can convict the accused persons.
[11] The basis of their
application summarily and collectively is that there is no evidence
linking any of the accused to the offence.
That none of the accused
persons have been found in possession of anything that links them to
the commission of the offence.
[12] Now for one to
arrive at the decision as to whether there is no evidence upon which
a Court can find that the accused are guilty,
one needs to go down
the evidence that has been tendered before this Court. Now the first
witness that was called, a Mr Mankuluman
David Mohale, he testified
in respect of count 18. He testified that he was on his way home,
travelling around half past 6 around
the Letsitele area’s side,
when he met up with the incident of the robbery that was happening at
Letsitele. He could not
tell this Court about any of the persons that
were involved in the commission of the offence.
[13] Actually, they were
on their way back to Polokwane, together with his colleague, Colbert
Masheu, and Conway Baloyi. That the
people that robbed them were
wearing balaclavas, and they were having safety vests, and they were
armed with firearms. That the
people who attacked them bombed the
motor vehicle, the G4S truck, made them to lie down, and left with
some of the money that he
was not aware how much that money was, and
none of the people that he was with, including himself, were injured
during the incident.
[14] None of the legal
representatives cross-examined this witness, except Ms Campbell who
only took up an issue of the language
that was used.
[15] The second witness
was Mr Conway Baloyi, who was equally in the company of the previous
witness. I will not repeat his testimony,
safe to say that his
testimony differs in the following respect that he said the firearm
was literally taken from him, and not
from the truck. He did not know
what was taken from the truck. He did not know anything else that was
taken from the truck, except
his 9mm firearm called Norinco. And he
did not implicate any of the accused persons before Court.
[16]. During
cross-examination he confirmed that none of his crew members were
hurt. He did not know who called the police, because
none of them
called the police. And he also confirmed that the first people to
arrive at the scene were the farm watchers. He did
not give any
description whatsoever to the farm watchers or the police, except
that they spoke Zulu, and that the offenders left
to Hoedspruit or
Letsitele Road, according to him.
[17]. Now the third
witness that was called was Mr Theophilus Phalapane Ramatsoma who
testified in respect of count number 5 and
number 6 – and
number 11 rather. That on the day in question he was driving home
with a silver Tiida between Tzaneen and
Gravelotte in the company of
one Valley Machaba. And when they arrived at the place called Lufasi
Farm, which was around 18h00
and 19h00 in the evening, they found two
cars that were standing, facing each other, as though they had
blocked the road, and he
thought that there was an accident, and he
intended to drive on the side of the road.
[18]. As he was intending
to do so, turning his car to where he was coming from, he heard the
gunshots, and Valley Machaba told
him that he was shot on his leg,
and that is when he drove his car fast to Letaba Hospital. Upon
arrival at the hospital Valley
was admitted, and when he checked his
car he found that it was shot on the door, and also on the mirror of
the car. However, from
there he went home and he never opened any
case with the police. And to date his car has not been fixed. He did
not know where
the shots were coming from as they were being shot,
and he knew that the police visited Valley in the hospital, who laid
a charge.
And he confirmed the EXHIBIT D, being the photo album,
portraying that his car in the process.
[19]. Now during
cross-examination, he explained the difference in his statement with
the time of the incident in his statement
being 18h00, as well as in
his evidence in court to be between 18h00 and 19h00. He said that he
meant that the entire ordeal happened
from 6 18h00 to 19h00, and the
bullet that had gone through the car was not retrieved as at the time
of his testimony. And he did
not implicate any of the accused persons
before Court.
[20]. The fourth witness
was Phatula Valley Machaba, whose testimony is similar to that of the
previous witness, except to the extent
that he testified that he did
not tell the witness that he was shot. He said he only told him that
he was bleeding on his legs.
And he was only told at the hospital
that he was actually shot, and he stayed for about a period of two
weeks in the hospital.
The bullet was not retrieved from him, and he
did not implicate any of the accused persons before Court.
[21]. Now the fourth
witness was Ms Tinette Marule, who testified that she was robbed of
her R1.1 million Mercedes Benz EL white
250 at gunpoint while at a
women conference in Berea on the 25
th
of May 2018. It was
three men that were involved in the robbery, but only one of them was
armed. She did not know any of her perpetrators,
however she managed
to identify her car at Hoedspruit, and the insurance company has
reimbursed her for her loss. They have replaced
the car. She was
testifying in terms of count number 16, and did not implicate any of
the accused persons.
[22]. We had the fifth
witness, Ms Baledi Mutu Maramafale who was testifying in respect of
count 9, who was travelling from Tzaneen
to Letsitele complex in the
company of one Shai around 18h00 on the 5
th
of June, and
it was getting dark, according to her. She was driving a white Isuzu
bakkie belonging to her father. Whilst at the
robot, she heard
gunshots being fired, some towards her direction. She reversed her
car and knocked another vehicle in the process,
which was behind her.
She only managed to see a red Audi and a Ford Ranger motor vehicle at
the scene. And she and her occupant
were not injured in the process.
She has since fixed the damages to the vehicle, amounting to
R65 000.00. And the witness
did not implicate any of the accused
persons before this Court in any way.
[23]. During
cross-examination by Advocate Thipe she reiterated that it was dark
around 18h00, and she also reiterated that the
Audi she saw was red,
and could not confirm anything further, as she was concentrating on
protecting her life. During cross-examination
by Ms Campbell she
could not confirm seeing the condition of the G4S truck. Furthermore,
that during cross-examination by Mr Mpaphudi,
she reiterated seeing
the left Audi on her left-hand side of the road, which was
stationary.
[24]. The sixth witness
was Frans Matlakala Moremi who testified in respect of count number
18. On the 5
th
of June 2018 he was from Phalaborwa where
he worked at Foscor. Around half past 6 he heard gunshots. He stopped
to see what was
happening. He was told to (
phuma
), which means
“get out” in Zulu, and told to (
lalapanzi
) which
means to lie down by the person unknown to him, who had balaclavas
and to get out of his car.
[25]. The seventh witness
was Mamalisela Michael Gwapa who testified in respect of the arrest.
He said he received a report about
cars which fled from the scene. He
arrived at Snake Park and took the road to Klassier. When he arrived,
it was around 19h35, and
he found two ambulances and a Mercedes Benz
which was cordoned off with a yellow tape. He continued to testify on
hearsay evidence,
which was accepted provisionally, pending the
evidence of one Captain Ian Du Preez of Acornhoek, who told him that
the people who
were in the ambulance, he should escort them to the
hospital, whose names were Prudence Ndala, accused number 3, to
Tintswalo Hospital.
He could observe that the said Mr Ndala was
injured on his left side from the top down.
[26]. He could not see
other African males in the other ambulance, as they were covered with
red blankets up to the neck. At this
point EXHIBIT E was
provisionally accepted, pending the evidence of the compiler. He did
not see the deceased lying down, nor any
of the exhibits at the ML
(Mercedez Benz) scene.
[27]. As at the time of
this judgment, the said Captain Ian Du Preez from Acornhoek has not
come before this Court to testify. As
a result, the evidence
provisionally accepted is excluded.
[28]. During
cross-examination this witness testified that he saw the injured
African males only at the hospital. He did not see
them at the scene.
It was put to him to answer the accused number 3’s version that
he was shot while walking around the area
of the scene, but he only
got to know about his names and injuries whilst escorting him to
Ritavi, to which he denied.
[29]. The eighth witness
was Phetuli Elton Senyolo who also escorted the suspects, of whom,
according to him, it was Ndala, Shabangu
and Mathamane Mbusodi. He
did not observe how the suspects were injured, as it was not part of
his work. However, during cross-examination
it was pointed to him
that his statement which was handed in as EXHIBIT F did not have any
of the names of the accused persons.
[29]. I intend dealing
with the evidence of the following collectively, as they are in one
way or the other the same. The evidence
of Mr Lafras Tramper, Mr
Jakobus Louis Boshoff, Mr Jakobus Cornelius Lester, Deetleff
Siegfried Marais De Vries, Willem De Vries,
the dog handler, all of
them I intend to deal with them as one, because their evidence is
more or less the same, and their involvement
on the night in
question.
[30]. If it was a movie,
this would be the – the star or the staring of the movie in the
whole proceedings, because they are
the ones who featured mostly in
this case that we are dealing with.
[31]. Now Mr Lafras
Tramper received a report about the Cash In Transit (CIT) robbery
that happened in Letsitele, and assistance
was sought from them (farm
watch) to assist on the side of Hoedspruit. That was the last request
that we heard from their testimony
about the involvement of the
police. From then onwards Mr Lafras made it his mission or his point
to give directions as to what
was to happen, which included amongst
others blockading the roads, the first one being where they had
closed for the cars to move
in, where they saw the bullets coming
from the Mercedes and the Audi car. They used the word “muscles”.
[32]. Before they left
for the said roadblock, they made sure that they armed themselves
with the biggest machines that they had,
because they anticipated
that the people that they were going to deal with were equally armed,
heavily armed.
[33]. During the first
roadblock they put their cars, which were a bit downhill from the
cars coming from uphill. There was a civilian
car that they opened
for to move on that small opening that they had made, and allowed
them to be on the side, and they took cover
behind their cars when
the two motor vehicles were coming. According to his testimony it was
the Audi in front with the ML behind.
[34]. According to their
testimony is that the people in the cars were firing shots, however
none of them – and/or none of
their cars were shot in any way,
and the two cars were able to pass swiftly and quickly on the opening
that they had opened.
[36]. According to their
testimony is that immediately when the cars passed, they realised
that these were the cars that they were
told about, and they began to
get into their cars and pursued with guns being fired. This was
because when the cars were coming
they thought it was the police
because of the blue lights. Now as they gave chase, somewhere along
the line – the road the
ML’s tyre burst. There was a
whole lot of dust that they could not see anything. The BMW stopped
some distance before, just
ahead of the ML, and Lafras was the first
one to get out, going back to the ML in the midst of that whole dust
that was happening
as a result of that tyre bursting from the ML.
[37]. According to them,
five people got out of the ML, two from the right-hand side, and
three from the left-hand side, and with
one coming from the backseat
of the ML, armed with a rifle.
[38]. What became
apparent during cross-examination is that Mr Lafras shot the deceased
first, because he said in his own words
that “before he could
shoot me, I shot him”.
[39]. The rest of the
people that they saw ran, some towards the fence. He had to cut the
fence to also gain access into the fence.
Those are some of the
contradictions that are there. One of the officers said there was no
fence that was cut; however, Lafras’
testimony was that he had
to cut the fence to gain access into the farm.
[40]. Now he did not
spend much time at that scene, because he was on a mission to pursue
the Audi where it had gone to. So, he
left Sieg in charge of the
scene when he left. However, before he could go he wanted to make
sure that it was safe, and that anyone
that was on the scene did not
have firearms that they could be a victim of, so he made sure that
everyone was safe before he could
leave. Now he could not tell this
Court about any of the people that he arrested, because initially he
had said that he was the
one that arrested those people. But he could
not tell anything about them to the Court. He even said in his own
words “if
he were to see them, he would not even be able to
identify them”.
[41]. Now there are
issues that I do not intend to deal with in terms of the
contamination of the scene, in terms of who was actually
managing the
scene as at the time of the arrival of the police, and all of those
things, because I do not think for the purposes
of what I am doing
now they are actually relevant. However, they are on record that we
have issues as far as the state evidence
is concerned about who
actually was the scene manager when Lafras left.
[42]. It was said during
the testimony that at some time, even during the – the incident
in the evening, the police were there
on the scene. But it seems that
they – the Plaaswag was the ones who were still in charge of
things, as they were able to
tell the officers what to do and what
not to do, and not the other way around.
[43]. Their testimony was
also to the effect that during the incident of the ML there were also
people that were moving around the
scene. That is why they even had
to take one of the cars of the Plaaswag members to try and put on the
road, so that people will
not be able to walk through the scene, that
there were people who were civilians, and people just walking around
the area of the
of the scene on the night.
[44]. As things stands
now, we do not know who the people were that the paramedics
transported from the scene to the hospital. I
am saying this because
the officer who escorted Mr Ndala, allegedly, in his statement, which
was done immediately after the incident,
did not have the name of Mr
Ndala. It was also put to him during cross-examination that he got
the name, actually the names of
the accused persons when they were
escorting them to the Ritavi Court, which version he denied together
with Mr Makutu, which evidence
I will get to shortly.
[45]. The SAPS in
Hoedspruit were rendered redundant on the night in question, in that
the report that was received by the Plaaswag,
whether it was sent to
the Hoedspruit Police Station is not borne by the evidence. However,
what we can gather from the evidence
that has been tendered is that
they were not at the scene of the offence on the night in question.
[46]. We have both Du
Preez’s, the captain who was at the scene, as well as the other
Sieg Du Preez who arrived, but they
came there in their capacity as
Plaaswag members, because they got the information from their
Whatsapp communication which happens
within the Plaaswag community
members. Sieg Du Preez, during his testimony, said when he received
the call he had just gotten back
from work, and he actually wanted to
go and put on his uniform before he could go. Down the line of his
testimony he went on to
say “no, the reason now maybe they
could not recognise me is because I was not in uniform, because I do
not wear uniform”.
Yet, when he began his testimony was that
when he got the message, he wanted to change and get into his
uniform.
[47]. They went to the A4
motor vehicle where they did not find anybody. From there they went
to the river with Tramper leading
the way, the water going up to his
chest when he demonstrated. Actually, it was Louis Boshoff who
demonstrated the hight of the
water. He is one of the people who
really had a hard time in that river because of his height.
[48]. Now during the
proceedings of the river, it is clear that even then the Plaaswag
were the ones in the lead, because the police
officers were lagging
behind. And even when they were lagging behind, they could not even
pick up or point out the exhibits that
for example Tramper testified
about to the effect, for example of the socks, to the effect of the
Solomon shoes, to the effect
of the blood splatter which he made, in
example that it was as big as a R5.00 or R2.00 coin. If they were
there during that time,
they would have been able to gather that for
the benefit of this Court.
[49]. What gets more
interesting is that the evidence, as up to this time, tells us that
there is four people that have been found
at the ML scene. However,
Tramper, when he went to the river, he said before they could look
for the spoor, he/they saw five prints
or five sets of prints, three
going one side, and two going the other, and they then decided to
follow one path and they left the
other one.
[50]. As things stands
now, this Court is not clear as to what informed the – the
following of one set of prints, as opposed
to the other, and what
happened to the other sets that was not followed?
[51]. Further down, as
they were travelling, he said that he actually told – because
he was the one with the torch, the strongest
one, he further told the
guys that he was with that “these people are not very far,
because they are on “
kaalvoet
””. That is the
word he used. They are on “
kaalvoet
”. Meaning that
at the time when he observed, he saw that the people were on foot, or
the person. Now the person who was eventually
found, one says was
founds in the tree from the police officers’ side, and then
from what they (farm watch) are saying, they
found him in the dam.
This was the person who was supposedly wearing Adidas shoes,
according to the entry that was made in the
police’s records of
evidence, because that was what was entered by Warrant Officer
Shibambu.
[52]. There was a whole
lot of shooting that happened from the Plaaswag members, which
warranted them that when they made their
statements, they even
invoked their protection in terms of section 35 of the Constitution,
in terms of the exhibits that have been
accepted on record.
[53]. Now from the
police’s side, one Mr Makutu, the investigating officer in this
matter, this is one person that the Justice
System requires of him to
be able to do his utmost best in making sure that justice is not only
done, but it seem to be done starting
from the investigation point by
him, because what is brought before the Courts is what has been found
from the police by way of
investigations.
[54]. He testified that
upon his arrival at Tintswalo he found accused number 1 – Mr
Shabangu, accused number 3 – Mr
Ndala, accused number 4 –
Desmond Siyoko, accused number 5 – Mbusodi Mathamane, and he
showed them his card and informed
them that he will be investigating
the matter. That is when they told him their names. It was quite
disturbing listening to the
evidence of this Investigating Officer
(IO) with these many years in the in the South African Police
Services (SAPS). He had 31
years working in the SAPS, and serving the
unit of serious organised crimes.
[55]. However, there was
no seriousness that he engaged in the investigation of this matter,
because the only thing that he did
was to tell us about the names of
the accused persons as he found them at the hospital. What was even
worse for him as an officer
of the Court, is that even with that, he
had already pronounced on the guilt of the suspects then. He believed
that the Plaaswag
were actually the saviours on the day in question.
He even used his native language, “
ba be ba hlomola naga
motlwa
” an African phrase, loosely translated meaning that
they were saving the community by removing the thorn. He kept on
referring
to them as “my witnesses”. “My witnesses
were actually removing a thorn from the land or from the nation.”
[56]. From the time he
arrived at Letsitele he talked about cartridges that he observed on
the scene, but those cartridges were
not taken for ballistics. He did
not take any of the firearms that were found in the hands of the
Plaaswag members, and or the
firearm that was allegedly found with
the suspect that was found in the well for ballistic purposes, so
that we can be able to
get to the bottom of the issues that are in
dispute before this Court. In his own words he said “he was not
going to trouble
his witnesses when they were defending themselves”.
He spoke as though he was there as at the time when the incident
happened.
And the question becomes, which is not borne of evidence,
what were his witnesses defending themselves from? Because none of
them,
as far as the evidence is concerned, have been injured in any
way. None of their assets have been damaged in any way.
[57]. Now what makes
matters even more worse is that he was part of a group of people who
were involved in making a statement. His
very own words was that “I
was telling them what I wanted them to write, “I wanted them to
write what I wanted”.
[58]. In this case
somebody died. We do not have it on evidence whether it is somebody’s
husband, father or child, or what.
We have a person who has died. Mr
Makutu tells this Court during his evidence in chief that there is a
docket, an inquest docket
that he is busy with, that he is waiting
for this matter to be finalised. Once he is off the pressure of this
case, he will then
attend to the inquest of a person who died in
2018.
[59]. Now during
cross-examination by the defence counsels, he said no, actually that
docket has been closed, “because these
are the culprits”
referring to the accused persons. “We are actually not even
going to proceed with it, because the
culprits are before this Court.
So, there is no going back there to that very particular inquest
matter”.
[60]. This Court was
particularly disturbed about this testimony, especially in the manner
in which his demeanour was, even when
he was dealing with the matter,
because everyone in South Africa has the right to the protection of
the law, irrespective of who
they are, what they have done, everyone
is entitled to be protected. His family needs to know what happened
to their child, and
there should be closure for them.
[61]. Now the last
witness being Mr Shabangu, his testimony is as if he was in a
different scene altogether, because his evidence
is quite literally
different and contradictory to most of the witnesses that testified
herein.
[62]. Mr Shabangu, your
legal representative argues that none of the witnesses that testified
in this case have implicated you in
this case. That Mr Phetuli Elton
Senyolo who transported you to hospital by instruction from Captain
Du Preez, did not even tell
the Court – or that he wrote in his
pocketbook about the names, however, he failed to produce the
pocketbook to substantiate
his evidence.
[63]. I am only going to
read things that do not align with what I have already said, for fear
of repetition. That Warrant Officer
Moosa Shabangu testified that he
was involved in the tracing of suspects who travelled in a black Audi
during the night, and he
was in the company of one Sergeant Lefefe,
Sergeant Ranwid and Sergeant Phabuthi. That the person that they
identified, they said
it was Valley Zwani, who had a firearm wrapped
in a cloth next to Hoedspruit SAPS. The witness did not incriminate
you as accused
number 1, so according to your legal representative
none of the witnesses who testified herein incriminated you. That one
witness,
Gwapa, testified about the injured persons who were
transported to hospital. There was one Shabangu. However, your
surname is similar
to that of accused number 1, and there are many
Shabangu’s. And the witness did not also point accused number 1
in the dock,
nor tell the Court the whereabouts of the mentioned
Shabangu.
[64]. And that your legal
representative submits that where the state’s case has not been
made out, it was held in the case
of
S v Phuravhatha and others
1992 (2) SACR 544
(V)
that the state cannot expect accused
number 1 to take the stand and build its shattered case. It is not
the duty of the defence
to tell the Court as to who is this Shabangu.
[65]. Further that the
investigating officer, Mr Makutu, did not testify about why were you
in the hospital. And what was the cause
of your injuries, and safe to
say what were the type of injuries that they each sustained. And that
you did not make any admissions
or any admissions or a confession,
and no accused has incriminated you in any way by their plea
explanation, or during cross-examination.
And you have not been
placed on any of the scences from Letsitele to Hoedspruit. And you
are not even implicated by any scientific
evidence herein.
[66]. Allow me not to get
into the accused number 2’s submissions, because the state has
already even conceded in that regard,
that you should be discharged.
However, your legal representative has made out a detailed case for
you. These heads of arguments
will be accepted into the record as
exhibits. They will form part of the record.
[67]. Now accused number
3, your legal representative primarily argues the version that was
put to the witnesses that you were shot
while passing through the
scene, and denied that you were part of the people who robbed the
G4S, or was part of the people who
were shooting at the members of
the farm watch. It is your submission that this version that you have
put to the witnesses remains
unrebutted by the state, as at now. He
continues to submit that there was no evidence in respect of all the
counts that have been
levelled against you, that you have not been
implicated in any way respectively in each of them.
[68]. Accused number 4,
your legal representative argues that the state has thus far had not
pointed any person to say he is the
one who committed any of the
alleged crimes or offences. The identities of the alleged people were
not proven.
[69]. That the state even
failed to reflect on the role of the alleged perpetrators during the
commission of the alleged offence.
That the scene was contaminated,
and some of the evidence was planted, as there was no explanation
regarding the exhibits on
EXHIBIT K, photo 1, 2, 3, 4, 5 and 6,
and EXHIBIT E photos 91, 92, 93 and 94
, as to who was moving and
planting these exhibits around. That there is nothing linking you
with the commission of the alleged
crime, and that the said firearms
that were used by members of the Plaaswag were not confiscated to be
sent for ballistic assessment.
And there was just a lot of
discrepancies between the versions of the state.
[70]. Equally, Mr
Mathamane, your legal representative submits that there is nothing
linking you to the alleged offences that are
before this Court, and –
and as such you should be granted the application as prayed for. And
further that there is no evidence
at all stating that you directly or
indirectly, so whilst acting in common purpose with the other alleged
co-accused in this matter,
killed the deceased, as stated in count 1,
and attempted to kill any of the victims in counts 2 to 8.
[71]. The state
vehemently opposes the applications that are made out by the accused
persons, except for accused number 2, wherein
they have already
conceded that he should be acquitted, as the contradictions in their
evidence warrants his discharge.
[72]. I find this very
somewhat confusing from the state, in that the state relied on the
doctrine of common purpose when charging
the accused persons. And now
by common purpose it means that the action of one is imputed on the
other.
[73]. Now if the said
contradictions are favourable in respect of one, why are they not
favourable with respect to others, and vice
versa?
[74]. Now the state
rightfully in their heads of argument submitted that they are dealing
herein with circumstantial evidence.
[75]. Now when you deal
with circumstantial evidence, you look at the evidence in totality,
not necessarily in piece meal to arrive
at a conclusion.
Now the case that the
state has referred to, famously known as
R v Blom
1939
(AD) 188 at 202
to 203
, says:
“
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 facts proved. And secondly the
proved facts
should be such that they exclude every reasonable inference from
them, safe the one sought to be drawn.”
Now the question that
this Court has to ask itself is what has been proved? And what has
been proved becomes important, and particular
in respect of disputed
facts, because that is what proof is required on. You do not need to
prove things that are common cause.
[76]. It is not in
dispute that the cash-in-transit happened in Letsitele. It is not in
dispute that the Farm Watchers made a roadblock.
It is not in dispute
that there was a chase. It is not in dispute that a whole lot of
things happened on the night in question.
[77]. What remains in
dispute is who perpetrated these offences?
[78]. We do not have any
evidence from the Plaaswag members as to who were the perpetrators,
because they could not identify any
of the perpetrators on the night
in question, despite them being the arresting persons. We do not have
any evidence to prove that
the deceased that was murdered on the
night in question was murdered by the accused persons before Court.
[79]. Actually, when you
look at the exhibits where the deceased person is even lying down,
you can see that he was shot here (demonstrated
by pointing at the
back of the neck) on his back, meaning that even at the time when he
was shot, he was not a danger to whoever
shot him, because he was
shot at the back. So, the person that shot him could not have been
defending themselves.
[80]. From the evidence
that we have on record, Tramper is the one who shot the deceased,
from his own testimony, which we have
on record.
[81]. Now in respect of
this count the state cannot be correct when it says that they have
made a prima facie case in respect of
this count. Count 2 until count
8, the attempted murder charges, from the evidence of the Plaaswag
members, they alleged in their
testimony that they were defending
themselves. But when evaluating the evidence that has been tendered,
it is clear that there
was nothing that they were defending
themselves from. Because 1: They were not shot at. And if they were
shot at, if they were
missed for one reason or the other, their cars
would have definitely been shot at.
[82]. Now in respect of
count 2 to count 4, the complainants do not even know who shot them.
They did not even know where the shots
were coming from, to a certain
extent. And this will go also to 9 until 12, which is malicious
injury to property, because these
– their properties were
damaged during the course of the shooting of these people that they
did not know.
[83]. Now to where we are
now, the only thing we know is that the G4S was robbed. What they
were robbed of we do not know. By who,
we do not know. The only thing
we know that is one of the witnesses says it was three people, and
they were speaking Zulu, because
they used “
lalapanzi
”
and “
phuma
”.
[84]. Now we do not have
any evidence as of now from the state as to what is it that was found
in the possession of the accused
persons before Court, be it in terms
of explosives, be it in terms of moneys, be it in terms of firearms
that were linked to the
alleged robbery, as well as to comply with
these offences of being in unlawful possession of firearm and
ammunition. We do not
have that on record as of now.
[85]. In
R v P
(NB)
1994 (1) SACR 555
, as well as in the case of
Noble
1997 (1) SACR 874
that says the following that:
“
In
the Canadian context the prosecution must establish a prima facie
case in order to avoid a discharge. A prima facie case is said
to be
one in which the prosecution case is complete on all elements of the
offence, and sufficient in the sense that the reasonable
trier of
facts could find that evidence comes up to beyond reasonable doubt.”
[86]. I want to bring it
home in the case of
S v Lubaxa
2001 (2) SACR 703
(SCA)
where it was held that:
“
If
there is no sufficient case for the accused to respond to, a refusal
to discharge actually amounts to violation of the constitutional
rights of the accused person, in particular where that person is a
sole accused.”
But it went on further to
also talk about wherein there are co-accused, that:
“
The
Court should be very careful when granting a discharge when there
are
co-accused, because there could be an implication, or the
amplification of the state’s case by one of the accused.”
[87]. However, that does
not find substance in this case, because from the evidence so far
during cross-examination and everything
else, there was none of the
accused persons who implicated one or the other. So that does not
find bearing in this case. Finally
on the prima facie definition is
that:
“
If
the party on whom lies the burden of proof goes as far as he
reasonably can in producing evidence, and that evidence calls for
an
answer, it is prima facie evidence. In the absence of an answer from
the other side, it becomes conclusive.”
This was said by Opperman
AJ in
S v M and others
(2/2016 ZAFSHC 41),
which was decided on the 18
th
of March 2016.
[88]. Before I conclude
this judgment, I deem it necessary to address the following
institutions which play a very critical role
in our Justice System,
and how matters should be dealt with when referred to the
institutions.
[89]. I have observed
with utter shock how the members of the South African Police Service
handled themselves and the investigations,
or the lack thereof in
this matter. This complacency portrayed itself even during their
testimony in court, unfortunately to the
detriment of the
administration of justice. To say that the SAPS rendered themselves
ineffective in this matter is an understatement.
And these sentiments
are borne from the evidence on record. From the time it was reported
to the police that there was a cash-in-transit
offence which happened
at Letsitele between 18h00 and 18h30, as taken from the evidence of
the witnesses herein, the police only
arrived at the scene around
23h00 to 23h30, with some witnesses testifying that the farm watchers
were the first to arrive at the
scene.
[90]. Their late arrival
caused the scene to be compromised, as they only arrived after there
had been movement in and out of the
scene, according to eyewitnesses.
As if this was not enough, at Hoedspruit the Farm watch members were
the lords of the ring, in
that they, amongst others, conducted
roadblocks, using the police tape, which evidence from one of the
SAPS officers said it can
only be used by them, and that no civilians
could use same. They went about on a shooting spree with their
firearms, which were
not taken for ballistic, as they were forming
part of the scene, or the scenes based on the farm watchers’
own admission.
What is more shocking is when one heard the
investigating officer, Mr Makutu, who was an officer tasked with
assisting this Court
with gathering all the necessary investigations
which may be used in court to prove the state’s case saying
without shame
that “he had found the culprits, and would not
trouble his witnesses”, referring to the Plaaswag, as they
helped him
in “go hlomola naga motlwa”.
[91]. It remains a
mystery to this Court as to why did most of the Plaaswag members
leave the scene? It leaves a lot of questions
in one’s mind as
well, why did they leave the scene with the firearms, and what else
could they have left with on the scene?
It is not borne by evidence,
but it is a question in this Court’s mind.
[92]. Our Constitution,
Act number 108 of 1996, section 35(h) provides that everyone is
presumed innocent, to remain silent and
not to testify during the
proceedings. From this witness, Mr Makutu’s testimony, he had
already pronounced on the guilt of
the accused persons, even before
they could be prosecuted and trite, a jurisdiction which is left to
the Courts of Law. This position
which Mr Makutu held is not very
helpful to the care, diligence and skill that is required of police
officials, in particular investigating
officers, in getting to the
bottom of matters by conducting independent investigations, which
will result in credible evidence,
which would assist the Courts in
arriving at just decisions. By doing the above, he lost sight of the
crucial matters required
before Courts, which is evidence. There was
no evidence he gathered which could assist the state in their quest
to prove its case
beyond reasonable doubt, or let alone a prima facie
case for the accused to answer.
[93]. Secondly, I want to
deal with the National Prosecuting Authority. Decisions to prosecute
are done when there is a prima facie
case for one to be made out, for
it to come to our Courts. Our Courts are sitting with backlogs. Like
I said when I began, I said
this matter, we started it in August, the
11
th
of August 2020 in particular. Our rolls are full of
cases that some of which probably deserving should have been on this
Court’s
roll, however, we sat here at times at pains. This
could also be seen, even when the counsels for the defence did not
even bother
to cross-examine. It was just witness after witness
coming in with no cross-examination. And if there was a
cross-examination it
was one witness, except when we were dealing
with the Plaaswag members, who also did not implicate the accused
persons in any way.
[94].The accused persons
have been in custody since 2018, because this matter happened on the
5
th
of June 2018. Litigation or legal representation in
the high court is quite expensive for anyone in the Republic. One of
the accused
persons, accused number 4, even had to part ways with his
legal representative, because of the full instructions, however,
equally
received competent legal representation from the Legal Aid
via Judicare.I am saying all of these things, because this speaks to
the right to access to justice by our people. It is not anything
else, or not being petty or personal or anything else, but this
speaks to the right to access of our people who will need the
services that the Courts render. The days and the time that we have
taken in this matter was not warranted, given the circumstances and
the evidence in this case.
[95]. As officers of the
Court (NPA) it should never be about just another case. It should be
about making sure that we assist the
Courts to the best of our
abilities in arriving at just decisions, even if it does not favour
us. Because what we must place before
the Court is what we have
within our possession, but to make sure that the Courts arrive at
just decisions.
[96]. Before I give my
order, I just want to confirm, our last exhibit was EXHIBIT S, right?
It was T, oh yes. I want to mark the
heads of arguments as exhibits
to these proceedings, because they were not read on record, and they
remain part of the record of
proceedings. The heads of argument by Mr
Segodi will be EXHIBIT U. The heads of argument by Advocate Thipe
will be EXHIBIT V. W
for Mr Nonyane, EXHIBIT W. X for Mr Kubeka. You
will be EXHIBIT X. EXHIBIT X. Mr Mpaphudi, you will be EXHIBIT Y.The
respondent’s
heads will be EXHIBIT Z. Okay. It is a beautiful
coincidence. So, all the alphabets have been captured.
[97]. Alright. Gentlemen,
stand on your feet. Mr Sizwe Shabangu, Mr Valley Zwani, Mr Prudence
Ndala, Mr Desmond Kulekane Siyoko,
Mr Mbusodi Albert Mathamane, after
having listened carefully to all the evidence led through the
eighteen state witnesses herein,
and having carefully considered the
law and the relevant circumstances and probabilities, it is my
considered view that the question
that this Court has to answer
itself is that with the evidence that we have as of now, can I
convict you?
[98]. If the answer is
yes, then a discharge should be denied. If the answer is no, because
the responsibility of discharging the
onus to make me arrive at your
guilt rests squarely on the state, you have no responsibility of
assisting the state, then a discharge
must be granted. It is my
considered view that finding that the accused herein should not
remain in the accused dock longer than
this moment, as the state has
not led evidence upon which this Court acting carefully can convict
you for all the charges that
you were facing, unless you each testify
and incriminate yourself, and which this Court will not do, because
it will be going against
the Constitution of the Republic of South
Africa, your rights in terms of the Constitution in terms of section
35(3).
[99]. It is further my
finding that no accused will be able to make up the state’s
case by implication either of his co-accused,
based from the evidence
thus far on record. It is my finding that they will not implicate
each other in amplifying the state’s
case, according to the
evidence on record thus far. It is further my finding that the state
has not made out a prima facie case
against all of you at the end of
its case, and calling for each of you to answer. It is further my
finding that the manner in which
the investigations and the
subsequent prosecution was conducted by the police, as well as the
National Prosecuting Authority officials
violated your constitutional
rights enshrined in the Bill of Rights and to a fair trial.
[100]. Based on the
above, gentlemen, you are consequently found not guilty and
discharged at this stage of the trial in terms of
section 174
of the
Criminal Procedure Act 51 of 1977
. Your journey ends here.
COURT
:
I appreciate all the assistance of all the officials, court officials
in this court, in particular today. We have not had any
break
whatsoever. None of you complained. I know it was a stretch, but
thank you for making sure that we deliver justice, which
must not
only be done, but must be seen to be done. Thank you.
MR
MABAPA
: As the
honourable Court pleases.
MR
SEGODI
: As it
pleases the Court.
MR
KUBEKA
: As it
pleases the Court.
MR
MPAPHUDI
: As it
pleases the Court.
MR
THIPE
: As it
pleases the Court.
COURT
:
The Court shall adjourn. Enjoy your festive seasons, until we meet
again.
MR
KUBEKA
: Enjoy the
festive season, M'Lady.
MDHLULI AJ
ACTING JUDGE OF THE
HIGH COURT; LIMPOPO
APPEARANCES
COUNSEL
FOR THE STATE
:
DPP, MR MABAPA
COUNSE
FOR THE ACCUSED NO: 1
:
MR SEGODI
COUNSEL
FOR THE ACCUSED NO: 2
:
MR KUBEKA
COUNSEL
FOR THE ACCUSED NO: 3
:
MR MPHAHPUDI
COUNSEL
FOR THE ACCUSED NO: 4
:
MR THIPE
DATE
OF THE JUDGMENT AND SENTENCE
:29
NOVEMBER 2022