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[2022] ZAECMKHC 80
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S v Matebese and Another (Judgment) (CC31/2022) [2022] ZAECMKHC 80 (20 October 2022)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CC31/2022
Heard:
17, 18 & 19 October 2022
Delivered:
20 October 2022
In
the matter between:
THE
STATE
Appellant
and
MANDILAKHE
MATEBESE
Accused 1
PHILASANDE
TUSANI
Accused 2
JUDGMENT
MOLONY
AJ:
Introduction
1.
The two accused in this matter both face
the following charges:
1.1
One
count of robbery with aggravating circumstances – as defined in
section 1 (1)(b)(i) and (ii) of the Criminal Procedure
Act (‘the
CPA’).
[1]
1.2
One count of murder.
2.
It is alleged that on or about 6 January
2021, and at or near Renus farm, in the district of East London, the
accused unlawfully
and with the intent to rob, took by force from the
possession of SIYAKHOLWA NDAMASE (hereafter referred to as ‘the
deceased’),
a laptop and a backpack bag, his property or
property in his lawful possession, aggravating circumstances being
present in that
the accused inflicted grievous bodily harm on the
deceased, and/or wielded a dangerous weapon being a knife, before,
during or
after the commission of the robbery. Due to the
aforementioned circumstances, and on the date and place referred to
in count 1,
the accused unlawfully and intentionally killed the
deceased.
3.
The applicable minimum sentences, should
the accused be found guilty of the above-mentioned offences, are 15
years and life imprisonment
respectively.
4.
It is alleged that the accused acted at all
times in the furtherance of a common purpose or conspiracy to commit
robbery with aggravating
circumstances and to kill the deceased.
5.
At the start of proceedings, the State
requested an amendment to the first charge, as the reference to
wielding a dangerous weapon
was omitted from the charge (although the
relevant section of the CPA was referred to). There was no objection
from the defence
and the amendment was duly effected.
6.
The State also requested that the name of
the place where the offence was committed be changed from ‘Reeston
Farm’ to
‘Renus Farm’. There was no objection and
the amendment was duly effected.
7.
Mr Geldenhuys (who appeared for both
accused) then placed on record accused no. 2’s name (Philasande
Tusani). It appears that
he goes by both Ayanda Vato Lindani as well
as Philasande Tusani, with the latter name being the one reflected on
his identity
document.
8.
Both accused pleaded not guilty to each of
the charges.
9.
Written plea explanations were read into
the record on behalf of both accused (and duly confirmed by both
accused). Accused 1’s
plea explanation was marked exhibit ‘A’,
whilst accused 2’s plea explanation was marked exhibit ‘B’.
10.
The plea explanations revealed, in essence,
the versions of the accused to be the following:
10.1
On the day in question accused 1 and 2 were
walking at or near Renus Farm. A young boy reported to them that the
deceased was nearby
and was fighting with 4 men.
10.2
The names provided by the young boy were:
Siya, Terra, Rose and Sixolile. The boy showed them the direction in
which the fight was
taking place.
10.3
The two accused went in that direction
because they wanted to approach the deceased about the deceased
stealing accused 1’s
brother’s shoes (the boy confirmed
the shoes being worn by the deceased fitted the description of the
stolen shoes) from
accused 1’s house, and accused 2’s
laptop from accused 2’s house.
10.4
When the two accused reached the deceased,
his attackers were no longer there. They saw that the deceased was
injured and covered
in blood. Accused 2, according to his plea
explanation, spoke to the deceased and told him that this would not
have happened if
he had not stolen things, meaning he was notorious
for stealing and that he was wanted in that area. The deceased gave
the laptop
back to accused 2. Accused 1 and 2 then left in the
direction of accused 1’s house.
10.5
As they were approaching accused 1’s
house, the brother of the deceased arrived and asked what had
happened. Accused 2 explained
to him what had occurred, and pointed
to in the direction of where the deceased was to be found. The
brother then went in that
direction.
10.6
Accused 1 and 2 went to accused 1’s
house and checked the laptop, which was damaged.
10.7
Thereafter friends of the deceased (a group
known as ‘Full Force Gangsters’ – ‘FFG’)
and members of
the community arrived at accused 1’s house, and
took both accused to a field. Ultimately the police were called and
they
took the accused with them.
10.8
The State witnesses, in the view of the
accused, had been influenced by another State witness, Mr Xolani
Mpupha, a member of the
local community, who did not have a good
relationship with accused 2.
10.9
Both accused denied any wrongdoing.
11.
Written formal admissions on behalf of both
accused (in terms of section 220 of the CPA) were also read into the
record and duly
confirmed by both accused. Accused 1’s formal
admissions were marked exhibit ‘C’ and accused 2’s
formal
admissions were marked exhibit ‘D’.
12.
Pursuant to the formal admissions, a
postmortem report in regard to the deceased, as well as a photograph
album of the scene, were
handed in by agreement, and marked exhibits
‘E’ and ‘F’ respectively.
13.
It was admitted by both accused that:
13.1
On or about 6 January 2021 and at or near
Renus Farm, in the district of East London, a person or persons
stabbed the deceased several
times with a knife, causing his death.
13.2
The injuries sustained by the deceased
during the incident are correctly indicated in the post-mortem
report, compiled by a Dr Ongama
Ntloko on 10 January 2021.
13.3
The deceased sustained no further injuries
from the time of his death until Dr Ntloko performed the post-mortem
examination on the
body of the deceased on 10 January 2021.
13.4
The deceased, at all relevant times, was
correctly identified as Siyakholwa Ndamase, a 28-year-old man.
13.5
The photographs of the scene where the
deceased was assaulted, of the surrounding area and of the deceased,
as well as the key to
those photographs, were correct.
14.
The State led the evidence of three
witnesses, those being Liyema D[....], Xolani Mpupha and Aphiwe
Bombotho.
State’s Case
15.
Mr D[....] was the first witness to
testify. He is 17 years old and 16 years of age at the time of the
incident. He was self-evidently
capable of appreciating the import
of, and the taking of the oath, which was duly administered.
16.
He testified that on the day in question at
about 12h00, he was cutting grass inside the yard of a particular
house (found at point
‘A’ in photograph 1 of exhibit
‘F’).
17.
He saw four men walking together in the
road in front of the house. The four men were conversing, although he
could not hear what
they were talking about.
18.
One of the men tripped one of the other men
(who, it transpired, was the deceased), who then fell down. Point B
on photograph 1,
it is not in dispute, is where the deceased was on
the ground.
19.
After the deceased was tripped, one of the
men produced a knife from a backpack (which was in the possession of
the deceased) and
began stabbing the deceased.
20.
He identified the man who caused the
deceased to fall as accused 1.
21.
The man who took the knife from the
backpack and began stabbing the deceased he identified as accused 2.
22.
At the time he did not know their names but
knew them by sight and had seen them, mostly during weekends, over
several months in
the past. He had seen them at both Renus farm and
Thembalethu.
23.
Accused 2 stabbed the deceased on the front
and back of the deceased’s upper body.
24.
Accused 2 then handed the knife to accused
1, who stabbed the deceased on the back, and on the back of one of
his legs (shown in
photograph 25 of exhibit ‘F’).
25.
The deceased’s backpack was removed
from the deceased and handed to a fourth man (whom Mr D[....] did not
know) by accused
2.
26.
The fourth man ran away. The fourth man ran
away after accused 1 had stabbed the deceased.
27.
Mr D[....] made passing mention of a laptop
in his evidence in chief, but was specifically also asked,
thereafter, about whether
or not he saw what was in the backpack, and
if he knew anything of a laptop in the backpack. He clarified that he
did not see what
was in the backpack, and when referred to the
accused’s referenced to a laptop in their plea explanation,
said he had no
knowledge about a laptop.
28.
Mr D[....] testified that accused 1 and 2,
after stabbing the deceased, also ran away, but in a different
direction to the fourth
man.
29.
The deceased got up and wandered off
between shacks (see photograph 2 of exhibit ‘F’). The
photographs in exhibit ‘F’
demonstrate the path followed
by the deceased after he was stabbed.
30.
The deceased ultimately fell in the midst
of various houses/shacks, and it seems that this was where he passed
away (see point ‘E’
on photograph 16).
31.
Mr D[....] informed Mr Mpupha of what had
occurred, as Mr Mpupha was a member of the local community policing
forum/neighbourhood
watch. He did not tell Mr Mpupha who was
involved, as he did not know their names at the time.
32.
The incident occurred approximately 10
meters away from where Mr D[....] was cutting grass, and in broad
daylight.
33.
Whilst there was a wire fence between where
Mr D[....] was standing and where the incident occurred, the wire did
not obstruct his
view – this much is self-evident from
photograph 1 as well.
34.
Mr D[....] testified that the incident
occurred over a brief period of time. He could not estimate how long
it took, but denied
that it was only a matter of seconds. He saw the
faces of both accused during that time.
35.
He confirmed that the deceased was
notorious in the area for being a thief. He denied being influenced
by Mr Mpupha to implicate
the two accused when this was put to him.
36.
Mr Mpupha confirmed in his evidence that Mr
D[....] had reported what had occurred to him, somewhere between
12h00 and 13h00pm on
the day in question.
37.
Mr D[....] took him to where the incident
took place. Mr Mpupha then followed the blood trail to where the
deceased had finally
fallen down (point ‘E’ in photograph
16). He covered the deceased with a blanket as small children were
gathering to
see what had happened.
38.
Mr D[....] told Mr Mpupha that it was two
gentlemen from Thembalethu who did the stabbing. Mr D[....] did not
know their names.
39.
Mr Mpupha contacted the station commander
and asked for a van and an ambulance to be sent. The ambulance
arrived first. They inspected
the body of the deceased and found 8 or
9 wounds on the deceased’s body. The forensics team came and
took photographs, and
then the body was taken. Those present held a
prayer for the deceased’s soul to go with his body in peace.
40.
Later the same day, accused 1 and 2 were
arrested by members of the community. Mr Mpupha went to where they
were being held in the
veld. There were many community members there,
most of whom were unknown to Mr Mpupha.
41.
When he arrived the two accused were
sitting on the ground with a panga next to them. Some community
members had sticks. Mr Mpupha
was told that the police had been
called.
42.
He also took out his phone and called the
station commander, who confirmed that the police had been called.
Whilst Mr Mpupha was
talking to the community members, a police van
appeared. He did not know, prior to the two accused being pointed out
to him by
community members as being involved in the stabbing of the
deceased, that these two accused had been involved in any way.
43.
Mr Mpupha had not known the deceased.
44.
Mr Mpupha confirmed under cross-examination
that he knows accused 2’s mother. He knew accused 1 and 2 by
sight, but did not
know either of them personally.
45.
It was put to Mr Mpupha that he had issue
with accused 2 due to a disagreement with one of Mr Mpupha’s
sons (the son was not
identified). Mr Mpupha denied any knowledge of
this, and denied influencing Mr D[....], when this was put to him.
46.
Mr Bombotho, who is the brother of the
deceased, testified that on the day in question a friend of his had
notified him of his brother
being stabbed at Renus farm.
47.
On his way out, he came across accused 1
and 2. Accused 1 is his neighbour. Mr Bombotho enquired as to what
was going on. He did
this because the deceased was in their company
the previous day.
48.
Accused 1 and 2 were friends with the
deceased, and accused 2 was Mr Bombotho’s friend.
49.
Accused 1 was not Mr Bombotho’s
friend, but he knew him by sight.
50.
Accused 1 was already in the house when he
enquired. Accused 2 was standing at the gate, but did not respond.
51.
Mr Bombotho then went to Renus Farm, where
he met with Mr Mpupha. Mr Mpupha showed him where the deceased was
lying.
52.
Mr Bombotho testified that he and the
deceased also had two sisters. Their parents are both alive. All of
them are unemployed save
for their father, and the deceased would
sometimes assist financially when he had odd jobs. He described the
pain that he and the
rest of his family experienced after learning of
the deceased’s death.
53.
Mr Bombotho confirmed that the deceased did
not own a laptop.
54.
Under cross-examination he confirmed having
heard rumours that the deceased was notorious in the community for
being a thief.
55.
It was put to Mr Bombotho that the deceased
had stolen a laptop from accused 2 the previous evening, as well as a
jacket, and a
pair of accused 1’s brother’s shoes.
56.
Mr Bombotho said that he did not have any
knowledge of this. He denied being told by accused 2 (when he
encountered them at accused
1’s house on the day in question)
about what had happened, and he denied that accused 2 showed him
which direction to go
in order to find the deceased.
Accused 1
57.
Accused 1 was the only witness to testify
in his defence.
58.
He is 34 years old this year, completed his
grade 12 year and was studying a course in Business Management, but
had to drop out
in 2013.
59.
Before his arrest he lived in Thembalethu.
He knew the deceased.
60.
On the evening prior to the incident, he
saw the deceased, but nothing occurred.
61.
The following morning, as he was coming
back from the shop, he encountered accused 2, who asked whether or
not the deceased had
come past accused 1’s home. Accused 1 told
him that the deceased had come to accused 1’s home that
morning, and accused
1 had left him there when he (accused 1) went to
the shop.
62.
Accused 2 informed accused 1 that the
deceased had, the previous evening, left with accused 2’s
laptop.
63.
The two accused proceeded to accused 1’s
home. On their arrival they saw that the deceased was no longer
there. Upon inspection
accused 1 noted that a pair of takkies,
belonging to accused 1’s brother, were missing.
64.
Accused 1 said that he and the deceased
sometimes borrowed clothes from each other, and so he suspected that
the deceased thought
that the takkies belonged to accused 1. Accused
1 told accused 2 that he would rather not assume that the deceased
took the takkies,
and would rather accompany accused 2 to find the
deceased.
65.
On their way to find the deceased, they
came across a young boy, close to Renus Farm. The young boy (whose
name he did not know)
told accused 1 and 2 that there were four men
fighting with the deceased.
66.
The young boy mentioned names (that being
Siya, Terra, Rose and Sixolile). These people were unknown to accused
1.
67.
Accused 1 and 2 then proceeded to the place
where they were told the deceased would be. It is common cause that
this was point ‘B’
on photograph 1 (which is the same
place where Mr D[....] said he saw the deceased fall to the ground
and be stabbed by accused
1 and 2).
68.
On their arrival they found the deceased.
He was sitting down on the ground and bleeding profusely. There were
young children in
close proximity to the deceased who were observing.
69.
According to accused 1, accused 2 then told
the deceased to look at what he (the deceased) had done and where he
was. If the deceased
had not taken their things, this would not have
happened, as the deceased was not even wanted in that area.
70.
The deceased then handed over the backpack
to accused 2. The laptop was inside the backpack.
71.
Under cross-examination it emerged that the
deceased had also given accused 2’s jacket, in a separate bag,
back to accused
2. Accused 1 saw that the deceased was wearing
accused 1’s brother’s takkies, but they had blood on them
and so accused
1 left them.
72.
There were other people (including adults)
in the vicinity of where the deceased was stabbed (the implication
being that they would
have seen what occurred).
73.
Accused 1 did not know the people who
resided around that vicinity, and so could not name any names.
74.
He said he wanted to call two sisters who
were near a tavern at Renus Farm, as witnesses. He was not sure about
their address but
did know where they resided. If they were called as
witnesses he did not know what they would say, but they were in the
vicinity
at the time when accused 1 and 2 saw the deceased, and
accused 2 told them he had lost his laptop.
75.
Accused 1 and 2 thought about who they
would inform about the incident. The deceased was not a person who
was wanted in the area
- the community had attacked the deceased on
previous occasions.
76.
Accused 1 then decided to go back home, as
he had left his home unlocked. Accused 2 also said he should go home,
as allegations
were being made at home that accused 2 had sold the
laptop.
77.
On their way they encountered Mr Bombotho.
Accused 1 saw Mr Bombotho at a distance, as he was entering his
(accused 1’s) home.
He then heard accused 2 informing Mr
Bombotho that the deceased was attacked at Renus Farm.
78.
Accused 2 tried to tell Mr Bombotho the
names of the four attackers (which had been conveyed to accused 1 and
2 by the young boy)
but Mr Bombotho rushed off.
79.
Since there was no electricity in the
vicinity where accused 2 resided, accused 2 wanted to check if the
laptop was working. He
plugged it in at accused 1’s home, and
found that it was broken.
80.
Accused 1 testified that after a short
period a group known to him as the ‘Full Force Gangsters’
(who are apparently
friends of the deceased), arrived and told them
that the community members were looking for them. The friends of the
deceased were
armed. They left accused 1’s home with the Full
Force Gangsters and went to a place in the veld, where they
encountered a
group of community members.
81.
Under cross-examination he stated that the
two sisters had tried to inform the community members who were
holding accused 1 and
2 in the veld, that they (the two sisters) had
seen the accused arriving and obtaining the bag from the deceased.
82.
They were not sure what was in the bag but
apparently knew the accused did not stab the deceased.
83.
They tried to tell the community members,
but were chased away by the gang members who were friends of the
deceased. He estimated
the two sister’s vantage point when
seeing him and accused 2 collecting the laptop to have been about 50
meters from the
place of the incident.
84.
Ultimately the police were called and both
accused taken into custody.
85.
Accused 1 explained that his view was that
Mr D[....] had implicated accused 1 and 2 in these offences because
Mr Mpupha had a problem
with accused 2.
86.
According to accused 1, there was a quarrel
between accused 2 and one of Mr Mpupha’s sons about a woman. As
a result, Mr Mpupha
had been making up stories about accused 2 since
then. Mr Mpupha also convinced certain young boys to lie and say that
accused
2 had been selling drugs.
87.
Accused 1 denied assaulting the deceased in
any way, and denied stealing anything from the deceased.
88.
He confirmed under cross-examination that
he and the deceased had been friends. He confirmed that the deceased
had lived at the
same home as the deceased’s brother (which was
in close proximity to where accused 1 lived).
89.
He and accused 2 did not have any major
problems with the deceased.
90.
Accused 1 was asked why he and accused 2
went looking for the deceased (on 6 January 2021), instead of asking
the deceased’s
brother (Mr Bombotho) next door where the
deceased was. Accused 1 responded that Mr Bombotho had, in similar
instances in the past,
told them he had nothing to do with his
brother’s mischievous ways.
91.
During cross-examination accused 1 stated
that the young boy approached accused 1 and 2 and made a report to
them about what had
happened to the deceased. The young boy was asked
to give them a description of the deceased, from which they were able
to surmise
that the deceased was the person they were looking for.
Accused 1 thought the young boy chose to report to accused 1 and 2
because
the young boy knew that accused1 and accused 2 live in
Thembalethu, which is also where the deceased resided. The young boy
apparently
knew this because he had seen the deceased together with
the two accused in the past. Accused 1 did not know where the young
boy
lived.
92.
Accused 1 testified that the deceased had
stabbed and killed another man in the area in the past, and the
deceased himself had been
attacked 3 times at Renus Farm.
93.
In cross-examination he was referred to Mr
Mpupha’s evidence that they said a prayer for the deceased
after his body was removed
– the implication being that this
was incompatible with a community which hated the deceased.
94.
Accused 1 said he did not know why Mr
Mpupha did that. He then said that it was for the sake of the
deceased’s father, who
is a friend of Mr Mpupha.
95.
He confirmed that the deceased had already
been stabbed when he and accused 2 arrived at the scene of the
incident. They did not
take note of exactly where the deceased was
stabbed. The deceased, according to accused 1, gave the laptop to
accused 2 without
being asked.
96.
Under cross-examination he conceded that he
could not dispute that Mr D[....] was in the vicinity and had
observed what was happening.
It was put to him that Mr D[....] could
not have known about where on his body the deceased was stabbed if Mr
D[....] had not seen
the stabbing itself. Accused 1 attributed this
knowledge to the influence of Mr Mpupha. His view was that it was
possible that
Mr D[....] could have seen the deceased’s
attackers, but only saw accused 1 and 2 when they took the laptop.
97.
Accused 1 confirmed that he had seen Mr
D[....] in passing before, and that he had never had a squabble with
Mr D[....] or Mr Mpupha.
98.
He thought that he was being falsely
accused along with accused 2 because they knew he was close to
accused 2. He stated that when
accused 2 had previously been falsely
accused in regard to other matters, two of accused 2’s friends
had also been falsely
accused, and had been beaten up by the
community.
99.
He was asked why Mr Mpupha would not have
told Mr D[....] the names of accused 1 and 2, if he wanted Mr D[....]
to falsely implicate
them. Accused 1 responded that it might be that
he saw the men who attacked the deceased and then saw accused 1 and 2
taking the
laptop, and then changed the story.
100.
He confirmed that accused 2 was upset about
the missing laptop, especially as accused 2 was being blamed at home
in this regard,
and that he (accused 1) was upset that his brother’s
shoes were missing. He agreed that the nature of the stab wounds
meant
that whoever stabbed the deceased was clearly quite angry with
the deceased.
101.
It was put to him that he did not inform
the police of his exculpatory version of events when he was
interviewed by the police.
According to accused 1 the police knew of
the fact that four men had stabbed the deceased, but because they
could not be identified
by the accused, the two accused had to be
arrested instead. The police were not willing to listen to anything
the accused had to
say on the matter.
Accused 2
102.
Accused 2 was the only witness to testify
on his own behalf.
103.
He confirmed that prior to his arrest he
resided in Thembalethu. He is 23 years old this year and he dropped
out of school in grade
10 without completing his grade 10 year.
104.
Accused 2 testified that he had been in the
deceased’s company on the evening of 5 January 2021. Thereafter
he had gone back
to where he was staying. Later that evening the
deceased arrived and, upon the door being opened, brandished a knife
and demanded
that accused 2 hand over his jacket and laptop. The
laptop in question in fact belonged to accused 2’s brother.
105.
Accused 2 went looking for the deceased the
following morning, ostensibly to obtain an explanation in regard to
why the deceased
had robbed him of the laptop and jacket. He came
across accused 1 and was informed that accused 1 had left the
deceased at accused
1’s home. Both accused went to accused 1’s
home, but the deceased was no longer there when they arrived. Accused
1
discovered that takkies as well as boxer shorts were missing from
his home. Both accused then went looking for the deceased.
106.
Whilst doing so they came across a young
boy. Accused 2 asked the boy if he knew the deceased, to which the
boy responded in the
negative.
107.
Accused 2 then described the deceased and
the clothing he was wearing, whereafter the boy said he had seen him
fighting with 4 men
at Renus Farm. Accused 2 did not know what he
said to accused 1 thereafter as accused 2 rushed off in the direction
indicated by
the boy. Accused 2 therefore did not hear the four first
names referred to by accused 1 in his evidence.
108.
Accused 1 and 2 ultimately found the
deceased sitting on the grass next to a yard. Accused 2 told the
deceased that if he had not
taken those items this would not have
happened to him. By ‘those items’ he was referring to the
laptop, jacket, takkies
and boxer shorts. The deceased did not say
anything, but handed accused 2 the backpack with the laptop and
jacket. Accused 2 observed
that the deceased’s t-shirt was
bloodstained, and he was bleeding very much.
109.
Accused 2 took the laptop and jacket and he
and accused 1 returned to their locality. They did not look for help
for the deceased
because it would be pointless in that area, as the
deceased was not wanted there. He referred to the deceased having
stabbed another
man to death in the past in that area. The intention
was to find help in the area where they (accused 1 and 2) lived.
110.
Accused 2 also wanted to check, at accused
1’s home, if the laptop was working. They were about to enter
accused 1’s
home when they came across Mr Bombotho. Accused 1
proceeded inside, whilst accused 2 told Mr Bombotho what had happened
to the
deceased and where this had occurred. Mr Bombotho then boarded
a bakkie, which was being driven by someone else, and they rushed
to
Renus Farm.
111.
A short while after reaching accused 1’s
home, members of the Full Force Gang arrived, and accused 1 and 2
were taken to the
veld. The police were ultimately called.
112.
Mr Mpupha was present in the veld and was
asked by community members regarding his knowledge of the incident.
Mr Mpupha said he
was not aware of it.
113.
Accused 2 said he had a clear recollection
of the incident, and denied that Mr D[....] was at the scene at the
relevant time (at
point A on photograph 1). He said that Mr D[....]
was lying in his evidence.
114.
He blamed this on Mr Mpupha’s
influence, and also alleged that the police who were investigating
the matter were involved
in the conspiracy to falsely accuse him and
accused 1.
115.
Accused 2 testified that he and Mr Mpupha
did not have a good relationship, as he had an altercation with Mr
Mpupha’s son
(Siphiwe) in regard to a woman they both had a
relationship with. Mr Mpupha, apparently aggrieved by this
altercation with his
son, later accused accused 2 of selling drugs,
and roped in local boys to falsely allege that he was selling drugs.
116.
Under cross-examination he was asked how it
came about that community members came to take accused 1 and 2 from
accused 1’s
home. He responded that Mr Bombotho knew that they
had spent the previous evening with the deceased. He surmised that Mr
Bombotho,
despite being told by accused 2 that the deceased had
robbed accused 2 the previous night, and being aware that accused 2
did not
harm the deceased, informed the deceased’s friends that
accused 2 had told him where to find the deceased, which led to the
community arriving at accused 1’s home.
117.
Despite alleging that Mr Bombotho was lying
in his evidence, accused 2 described Mr Bombotho as being a good
friend of his (that
being accused 2).
118.
During cross-examination he was asked why
he was only referring to the deceased robbing him now, when his plea
explanation, and
the version put on his behalf, had referred to the
deceased as having stolen the laptop. Accused 2 stated that he had
relayed this
information to the investigating officer and his legal
representative.
119.
Accused 2 said he had not seen the two
sisters at the scene, but had seen them later speaking to community
members in the veld when
the two accused were brought there by the
community.
120.
After accused 2 closed his case, Mr
Geldenhuys placed on record that the investigating officer in this
matter had attempted, on
18 October 2022, at the request of and using
information provided by the accused, to trace the two sisters
referred to by accused
1 and 2, but to no avail. Mr Obermeyer
confirmed in this regard.
Analysis
121.
The chief post-mortem findings on the
deceased’s body (contained in exhibit ‘E’) were the
following:
121.1
8 incisions on the back and left thigh (7
of them being on the back and one on the left thigh).
121.2
A collapsed left lung.
121.3
Haemothorax on the left side of the chest.
122.
The cause of death is recorded as: ‘stab
back’.
123.
It
is trite that the State bears the onus of proving the guilt of the
accused beyond a reasonable doubt, and that if the accused’s’
versions are reasonably possibly true, even if those versions are
improbable (unless they are so improbable that they cannot be
reasonably possibly true), then they are entitled to their
acquittal.
[2]
124.
Mr D[....] was the only eye-witness who was
called to testify. He is thus a single witness in this regard and his
evidence must
be treated with the requisite caution. Further caution
is attached to the fact that he is a child, and that his evidence
involves
identification of the perpetrators.
125.
In this instance the matter of
S
v Carolus
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA) is
instructive, stating the following at paragraphs 15 - 17:
‘
[15]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that
an accused may be convicted of any offence on the single
evidence of any competent witness. There is no
formula to apply when
it comes to the consideration of the credibility of a single witness.
The trial court should weigh the evidence
of the single witness and
consider its merits and demerits and, having done so, should decide
whether it is satisfied that the
truth has been told despite the
shortcomings or defects or contradictions in the evidence.
[16]
A is also a child. In Director of Public Prosecutions v S, the
court came to the conclusion that:
It
does not follow that a court should not apply the cautionary rules at
all or seek corroboration of a complainant's evidence.
In
certain cases caution, in the form of corroboration, may not be
necessary. In others a court may be unable to rely solely upon
the
evidence of a single witness. This is so whether the witness is an
adult or a child.
[17]
It will be recalled that identity is the primary issue in this
case.
[3]
Our courts have
repeatedly stated that evidence of identification must be approached
by the courts with caution. In
S v
Mthetwa
,
the court said:
Because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: the reliability of his
observation must also be tested.’
126.
Mr Geldenhuys conceded that the allegation
that Mr D[....] would lie was perhaps somewhat speculative, and did
not take this argument
any further.
127.
He submitted that Mr D[....] was a single
witness who had seen a gruesome stabbing and was shocked. He had seen
this from a yard
through a fence. It was reasonably possible that he
was mistaken in alleging that it was the two accused who had stabbed
the deceased.
His reliability was therefore in question (there was
reasonable doubt in this regard), and his evidence should not be
accepted
above that of the two accused.
128.
In reply, Mr Obermeyer pointed to the fact
that Mr D[....] had:
128.1
Confirmed that the incident did not take
mere seconds.
128.2
He was close to where the incident
occurred.
128.3
He saw the faces of the two accused.
128.4
The fence (as demonstrated in photograph 1)
does not obstruct one’s view at all.
129.
To the above can be added the fact that
this incident occurred in broad daylight at approximately midday.
130.
In the alternative, Mr Geldenhuys submitted
that the robbery charge should fall away, as the two accused were
looking for property
stolen by the deceased. It was pointed out that
Mr Bombotho had confirmed that the deceased did not have a laptop.
131.
In reply, Mr Obermeyer submitted that there
was no evidence adduced from the State’s side in regard to what
was in the bag,
with Mr D[....] confirming that he knew nothing of
the laptop or what was in the bag.
132.
In my view the State witnesses were all
good witnesses who were consistent in their evidence and who were not
discredited under
cross examination.
133.
Mr D[....]’s evidence is (with due
regard to the relevant cautionary rules), in my view, reliable for
the following reasons:
133.1
It is common cause that the deceased was
stabbed at the exact place as described by Mr D[....].
133.2
The places where the deceased was stabbed
on his body, as recounted by Mr D[....], are compatible with the
findings in the post-mortem
report.
133.3
Mr D[....] knew both accused by sight, and
observed the incident from a short distance away, under circumstances
where his view
was clear and unobstructed.
133.4
Mr D[....]’s reporting of the
incident to Mr Mpupha is confirmed by Mr Mpupha.
133.5
Mr D[....] was unlikely to have had
knowledge of the deceased’s backpack being taken from the
deceased, had he not witnessed
the stabbing.
133.6
Mr D[....] honestly conceded that the
deceased had a reputation in the area for being a thief.
134.
Mr D[....]’s evidence was accordingly
consistent with the probabilities, particularly given the facts which
were common cause.
The fact that he is child, who is currently on the
cusp of adulthood, does not, on its own, detract from his reliability
as a witness.
135.
Whilst it remains unclear how the community
came to know the identities of the two accused as being the alleged
perpetrators of
the robbery and murder of the deceased, this does not
take the matter any further as it is common cause that both accused
were
at the scene of this incident on the day in question, at least
one of them spoke to the deceased, and the deceased’s backpack
was taken.
136.
Mr D[....]’s evidence relating to how
both accused stabbed the deceased (essentially taking turns), whilst
a fourth person
made off with the deceased’s backpack, the
backpack having been given to this fourth person by accused 2,
demonstrates that
the accused were acting in concert and with a
common purpose in regard to both the robbery and the murder.
137.
In addition, and whether or not a laptop
was in fact contained in the deceased’s backpack, it is not in
dispute that the backpack
itself, and any remaining contents therein,
belonged to the deceased. On the State’s version of events, the
same would be
true of the knife which was taken from the backpack.
138.
The two accused were, in my view, poor
witnesses, whose evidence contained numerous inconsistencies and
improbabilities. A few examples
are the following:
138.1
Accused 2, in his evidence in chief, for
the first time disclosed that the deceased had robbed him when taking
the laptop and the
jacket. This robbery was not mentioned by accused
1 in his evidence, nor was it referred to in the plea explanation of
accused
2, nor was it put to any of the State witnesses during
cross-examination.
138.2
The theft of the jacket itself was not
mentioned in the plea explanations, whilst the pair of boxer shorts
allegedly taken from
accused 1’s home only emerged when accused
2 testified.
138.3
It emerged for the first time during
accused 2’s evidence in chief that accused 2 had not been
informed of the first names
of the alleged perpetrators of the
stabbing, yet the plea explanation for accused 2 confirms they were
both told the names by the
young boy.
138.4
No full names or further details are
available in regard to the young boy, the four alleged perpetrators
who stabbed the deceased,
or the two sisters who potentially
witnessed what occurred.
138.5
The deceased was a friend of the two
accused, to whom, based on their evidence, they did not bear much ill
will, despite him stealing
from them. Accused 2 opted, after being
robbed by the deceased at knife-point, to try and fix things with the
deceased rather than
approaching the police.
138.6
The accused then, upon seeing the deceased
covered in blood and sitting on the ground, chose to focus on their
allegedly stolen
property, viewing it as pointless to seek assistance
as the deceased was not well-liked in the area. Both accused instead
decided
to return to accused 1’s home first instead of going
elsewhere to seek assistance.
138.7
In addition to the above, both accused
insisted they were being implicated as part of a conspiracy, the
original catalyst for which
was a disagreement relating to a
girlfriend.
138.8
The above conspiracy allegedly involved Mr
Mpupha, as a community forum member, being content to allow the real
perpetrators of
the violent attack suffered by the deceased to go
unpunished, in favour of falsely implicating accused 2 due to a
disagreement
about a girlfriend between accused 2 and one of Mr
Mpupha’s sons at some point in the past. Mr Mpupha was
apparently content
to falsely implicate accused 1 merely because he
was a friend of accused 2.
138.9
Despite Mr Mpupha’s allegedly devious
intentions, he did not accuse the two accused of any wrongdoing when
they were being
held by members of the community in the veld on the
day in question.
138.10
Mr D[....] was influenced by Mr Mpupha to
lie in this regard, and to maintain the lie when he testified in
court. This despite the
fact that Mr D[....] was clear that whilst he
recognized the accused by sight at the time of the incident, he did
not know their
names, under circumstances where Mr Mpupha could
easily have provided them to Mr D[....].
138.11
The police (and especially the
investigating officer) were, inexplicably also part of this
conspiracy to falsely implicate the two
accused.
138.12
The accused alleged that Mr Bombotho,
without apparent reason, was lying about speaking to accused 2
outside accused 1’s house
on the day in question.
139.
There is no evidence before this court to
elevate the accused’s allegations in regard to a conspiracy
above mere speculation,
and such allegations are furthermore
inherently improbable, when juxtaposed with the facts which are
common cause.
140.
Having carefully considered the evidence as
a whole, it is clear that the versions of both accused fall to be
rejected as not reasonably
possibly true, and that the State has
proved its case, in regard to both charges, beyond a reasonable
doubt.
141.
I accordingly find both accused guilty as
charged.
N
MOLONY
JUDGE
OF THE HIGH COURT (ACTING)
For
the State
:
Mr.
Obermeyer
For
the Accused :
Mr. Geldenhuys
[1]
'aggravating
circumstances’
,
in relation to—
(b)
robbery, or attempted robbery, means—
(i)
the wielding of a fire-arm or any other dangerous weapon;
(ii) the infliction of
grievous bodily harm; or...
by
the offender or an accomplice on the occasion when the offence is
committed, whether before or during or after the commission
of the
offence’
[2]
Sithole
v S (868/2011)
[2012]
ZASCA 85
(31
May 2012) it was held:
“
[8]
The State bears the
onus
of
establishing the guilt of an accused beyond reasonable doubt and he
is entitled to be acquitted if there is a reasonable doubt
that he
might be innocent. The onus
has
to be discharged upon a consideration of all the evidence. A court
does not look at the evidence implicating the accused in
isolation
to determine whether there is proof beyond reasonable doubt nor does
it look at the exculpatory evidence in isolation
to determine
whether it is reasonably possible that it might be true. The correct
approach is set out in the following passage
from Mosephi and
others v R
LAC
(1980 – 1984) 57 at 59 F-H:
‘
The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt of the appellants
was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is obviously a useful
guide to a
proper understanding and evaluation of it. But, in doing so, one
must guard against a tendency to focus too intently
upon the
separate and individual part of what is, after all, a mosaic of
proof. Doubts about one aspect of the evidence led in
a trial may
arise when that aspect is viewed in isolation. Those doubts may be
set at rest when it is evaluated again together
with all the other
available evidence. That is not to say that a broad and indulgent
approach is appropriate when evaluating
evidence. Far from it. There
is no substitute for a detailed and critical examination of each and
every component in a body of
evidence. But, once that has been done,
it is necessary to step back a pace and consider the mosaic as a
whole. If that is not
done, one may fail to see the wood for the
trees’.
In
weighing the evidence of a single State witness a court is required
to consider its merits and demerits, decide whether it
is
trustworthy and whether, despite any shortcomings in the evidence,
it is satisfied that the truth had been told.
It
must state its reasons for preferring the evidence of the State
witness to that of the accused
so
that they can be considered in the light of the record. In applying
the onus the court must also, where the accused’s
version is
said to be improbable, only convict where it can pertinently find
that the accused’s version is so improbable
that it cannot be
reasonably possibly true.”
[3]
That
being the Carolus matter.