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[2022] ZAECMHC 19
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S v Makhanda (CC29/2021) [2022] ZAECMHC 19 (19 July 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION: MTHATHA]
CASE NO. CC29/2021
In the matter between:
THE STATE
vs
MANDISI
MAKHANDA
Accused
JUDGMENT
JOLWANA J
:
Introduction.
[1]
The charges preferred by the State against the accused relate to a
shooting incident which occurred on 4 October 2018 at Mafini
Administrative Area in Ngqeleni (Mafini) in which three people were
shot and subsequently died. He is before court on one count
of
aggravated robbery, three counts of murder, one count of attempted
murder, one count of unlawful possession of a firearm, one
count of
conspiracy to commit robbery. He is also charged with unlawful
possession of a firearm and ammunition on 7 November 2018
at or near
Circus Triangle in Mthatha.
[2]
The accused pleaded not guilty to all the charges. His legal
representative indicated to the court that the accused would not
be
making any plea explanation.
The
evidence of the State.
[3]
The first witness for the State was Mrs Mbuzo. She testified that on
the 4 October 2018 she had visited the deceased in count
2, Novangeli
Patience Nomqonde (Novangeli) in her spaza shop (the Nomqonde spaza
shop) when at about 19:00 a young man entered
the shop. Inside the
shop there were other young men who were already there when this
young man arrived. The light inside the shop
was provided by an
electric light that was on. Novangeli was on the other side of the
counter attending to customers. The young
man ordered everybody in
the shop to lie down and keep quiet. She did not immediately realize
what was going on and tried to reprimand
that young man assuming him
to be a drunk person. She was alerted to the impending danger by one
of the people who were inside
the shop who pulled her down saying
that she was putting them in danger. Without even looking at the said
young man she sat on
a beer crate that was on the floor.
[4]
This young man got inside the counter where Novangeli was. She heard
him demanding money from Novangeli. Novangeli pointed him
to a bag
which apparently had money and pleaded with him not to take a
cellphone that was there which she said belonged to another
person
and it had been brought there to be charged. She thereafter heard two
gunshot sounds after which the young man got out.
At some point she
realized that Novangeli had been shot and had fallen down. She also
noticed that Fezile Willard Nomqonde (Fezile),
the deceased in count
3 was bleeding and his eye had come out as a result of his injuries.
She later learned that one of the other
young men who had also been
in the spaza shop had been shot and injured. She could not identify
the young man who arrived at the
spaza shop and attacked people
there. She testified that when the attacker arrived there were about
seven people inside the shop
including Novangeli.
[5]
Fezile Jonga, another State witness testified that at about 19:00 on
4 October 2018 he was at the Nomqonde spaza shop with others
consuming liquor. The people inside the shop were Fezile Nomqonde,
Khayalakhe Nkawu, Zalisile Nomqonde, Mrs Mbuzo, Siyabonga, another
young man he did not know and the owner of the spaza shop, Novangeli.
An electric light was on providing light inside the spaza
shop.
Novangeli was on the other side of the counter while he and the other
customers were on the customer’s side of the
counter. He and
these other young men were sitting in the form of a circle on beer
crates when an unknown young man arrived at
the shop, turned around
and faced them instead of facing the counter. He looked at him and
his face was not covered. This young
man looked at them and moved
towards a hole in the counter which is used to serve customers and
pulled out a firearm from the front
part of his waist. He ordered
everybody to lie down. They complied but as he was lying down his
face protruded between the beer
crates on which they had been
sitting. In that position he could still see the assailant.
[6]
This person got inside the counter and demanded money from Novangeli.
Novangeli took the money and gave it to him. He then came
out of the
counter but when he noticed a cellphone he went back in and took it.
Novangeli asked him not to take it saying it was
not hers. Fezile,
the deceased in count 3 also said to the said young man that he got
the money, he must leave the cellphone. As
he was about to leave the
counter but still inside, he commented that he should do what he was
sent to do because of Novangeli’s
big mouth. He then fired a
shot at Novangeli. As he was leaving, the deceased in count 3, Fezile
tried to grab the assailant and
he, Fezile Jonga, heard a second and
a third gunshot sound. Thereafter, the assailant left the spaza shop.
In that shooting Fezile
Nomqonde and Zalisile Nomqonde, were also
shot and injured.
[7]
On the 15 October 2018 which was a day for grave digging, he and
Makawusi as well as Vukile were sent to Libode to buy alcohol
for the
men who were digging the graves. They went to Tops Spar to wait for
Vukile who was queuing at an FNB ATM. Across Tops Spar
is Spar
Supermarket. He noticed a person near Spar Supermarket who looked
familiar. It occurred to him that that person was the
young man who
had shot people at Nomqonde spaza shop and was in fact wearing the
same attire he was wearing on the day of the attack.
This young man
was standing there with Xolelwa whom he already knew. He came close
to speak to Xolelwa. As he was talking to Xolelwa,
Jay Gidla whom he
also already knew came out of Spar Supermarket and greeted him. Jay
Gidla joined that young man and Xolelwa and
the three of them left
together.
[8]
He, together Makawusi and Vukile went into Tops Spar. They bought
liquor at Tops Spar and returned to the locality. On the way
back to
the locality he told Makawusi that he had seen the young man who
attacked people at Nomqonde spaza shop. At the locality
he also told
the grave diggers that he saw the attacker at Libode. He also told
one Sakhe who was a police officer in King William’s
Town that
he had seen the young man who shot people at Nomqonde spaza shop with
Xolelwa and Jay Gidla. Sakhe later told him that
that young man was
Xolelwa’s boyfriend. He had seen the young man for the first
time on the day of the incident at Nomqonde
spaza shop. On that day
the said young man was wearing a pair of jean trousers, a red hood
and a khaki jacket which were the same
clothes he was wearing in
Libode on the 15 October 2018. He looked the same as on the day of
the incident except that he had shaved
his beard when he saw him in
Libode. He testified that that person was the accused.
[9]
Under cross-examination he testified that he was interviewed by the
police on the day of the incident and he told them that
the attacker
was unknown in the area. He was a bit slender and light in
complexion. He testified that he only told Makawusi that
he had seen
the attacker when they were in the vehicle on the way back to the
locality. He did not think of immediately going to
the police or even
later as he was still in shock. It was put to him that the accused
did not deny that he was next to Libode Spar
Supermarket with his
girl-friend Xolelwa at some stage but he was unable to say that it
was on the 15 October 2018. Fezile Jonga
maintained that it was on
the 15 October 2018 when he saw them and denied being mistaken about
the identity of the attacker. It
was put to him that the accused
denied being the attacker as he was never at that crime scene on that
day. Fezile Jonga explained
that he saw the accused on that day of
the incident for the first time and he was the attacker who shot and
killed people there.
[10]
The next witness for the State was sergeant Lokhwe. He testified that
on the 7 November 2018 he was on duty in Mthatha when
he received
information that the accused was at Circus Triangle in Mthatha. They
had been looking for him in connection with escaping
from lawful
custody. He asked for a backup from his colleagues in the flying
squad to go with him to Circus Triangle. He had the
description of
the attire the accused was wearing and his exact location at Circus
Triangle as he did not know him. He saw the
accused going to the
toilets. They followed him and when he got out of the toilet they
arrested him. He searched him and found
a firearm on the front part
of his waist. He asked him for a licence for the said firearm which
the accused said he did not have.
He then told him that he was
arresting him for escaping from lawful custody in Mahikeng and for
the unlawful possession of the
firearm. They also found a firearm
magazine in his bag which did not have ammunition. The magazine that
was in the firearm contained
14 live rounds of ammunition. They took
the accused to Madeira Police Station. Under cross-examination he
explained that from Circus
Triangle to Madeira Police Station the
firearm they found in possession of the accused was with him. He
disputed the accused’s
version that he was shown the firearm
for the first time at Madeira Police Station.
[11]
The State called constable Maqokolo who testified that he was in the
flying squad at Madeira Police Station. He was on duty
on the 7
November 2018 when he received a request for a backup from sergeant
Lokhwe. They went to Circus Triangle and saw the accused
based on the
description they had been given, going to the toilets. When he came
out of the toilet they arrested him for escaping
from lawful custody.
Sergeant Lokhwe searched the accused and found a 9mm Z88 Parabellum
Pistol on the front part of his waist
under the clothing he was
wearing. The firearm had a magazine with 14 live rounds of
ammunition. On further searching his bag they
found an empty
magazine. They asked for a licence for the firearm and he said did
not have one. They told the accused that he was
also being arrested
for being in possession of a firearm without a licence. They took him
to Madeira Police Station where he was
charged for unlawful
possession of a firearm and ammunition as well as for escaping from
lawful custody. He testified that they
had been looking for the
accused for escaping from lawful custody when they coincidentaly
found a firearm on his body.
[12]
The next witness for the State was warrant officer Ngumbela who is a
member of the SAPS stationed at the Mthatha Local Criminal
Record
Centre. He testified that on the 4 October 2018 at about 22:20 he
attended a crime scene at Mafini. He found constable Majeke
already
there and he showed him the crime scene. He observed the crime scene
and inside the shop he recovered two empty cartridges
of a pistol on
the customer’s side. He was told that the people who had been
shot and injured had been taken to hospital.
He packed the cartridges
separately in envelopes and placed them in an exhibit bag. He also
took crime scene photographs. He then
went to St Barnabas Hospital
where the injured persons had been taken to. At hospital he was shown
two deceased persons being male
and female persons and he took
photographs of the deceased persons. He went home with the crime
scene exhibits and the following
day he went to his office where he
entered the exhibits in the exhibit register.
[13]
The next witness was sergeant Rozani who testified that on the 28
January 2019 she was on duty at Maderia Police Station. She
took an
exhibit to Port Elizabeth for Forensic Laboratory in connection with
this case being CAS 72/11/2018. That exhibit bag in
which the exhibit
was contained was sealed. She handed the sealed exhibit bag to the
person who attended her at the Port Elizabeth
Forensic Laboratory.
[14]
The next witness for the State was warrant officer Rayibo. He
testified that he was attached to the Provincial Organised Crime
Unit
in Zwelitsha. On the 09 July 2019 he drove from Zwelitsha to Mthatha
to collect a firearm at Madeira Police Station for purposes
of taking
it to Port Elizabeth for ballistic testing. The said firearm was in a
sealed exhibit bag. He kept the said firearm in
a safe in Zwelitsha
and the following day he, together with the late sergeant Dastile,
took it to the forensic laboratory in Port
Elizabeth for ballistic
testing. It was the late sergeant Dastile who handed the firearm in
and received an acknowledgement of
receipt in respect thereof.
[15]
The State called Mr Khayalekhe Nkawu (Khayalekhe), a resident of
Mafini. His evidence was that on 04 October 2018 he was at
the
Nomqonde spaza shop when a slender young man entered the shop. At
that time, he was with Fezile Jonga, Siyabonga Makhuphula,
Fezile
Nomqonde, Novangeli Nomqonde, Gitla Nomqonde and Mrs Mbuzo. It was at
about 19:00 and they were sitting in the spaza shop
drinking beer. He
was not drunk as he was still drinking the first beer which he was
sharing with another person. Novangeli was
on the other side of the
counter counting money. The young man who entered the spaza shop
pulled out a firearm and ordered them
to keep quiet. This person was
with another person who stood at the door, also carrying a firearm.
The one who had entered got
inside the counter and demanded money.
After he got the money and as he was about to leave he made a comment
that Novangeli was
being cheeky. This person gave the money to the
one at the door way. Fezile Nomqonde got up and as he was getting up
the said young
man shot Novangeli and Fezile Nomqonde. Thereafter the
two men left. He realized that three people were shot being
Novangeli, Fezile
Nomqonde and Zalisile Nomqonde. The attacker who
entered the spaza shop, robbed and shot people did not cover his
face.
[16]
After some time after the incident he saw the young man who had shot
people at the Nomqonde spaza shop at Ash Inn Tavern in
Libode leaving
as he was entering. He did not tell anyone that he had seen him and
did not do anything about it. He further testified
that that person
was still wearing the same jacket he was wearing on the day of the
incident at the spaza shop. He pointed at the
accused as the person
who had attacked people at Nomqonde spaza shop.
[17]
Under cross examination Khayalekhe’s attention was drawn to a
statement he made to the police on 27 March 2019 in which
he said
that he had seen the attacker at Ash Inn Tavern in Libode on two
occasions after the incident. The second occasion was
in February
2019 at the same tavern.
[18]
I pause now to point out that the evidence of the police officers who
arrested the accused was that they arrested him on 7
November 2018.
It is not in dispute that the accused has been in custody since his
arrest on 7 November 2018. I will deal with
Khayalakhe’s
evidence again when I analyse the evidence as a whole. Suffice it to
say now that under cross-examination Khayalakhe
insisted that he was
not mistaken about the identity of the person who shot people at
Nomqonde spaza shop. He also insisted that
the person he saw in
Libode was the same person he saw shooting Novangeli and that that
person is the accused before court.
[19]
The State called sergeant Manakaza. His evidence was that he is
attached to the Provincial Organised Crime Investigation Team
based
in Zwelitsha. On 6 July 2021 he travelled to the SAPS Forensic
Ballistic Laboratory in Silverton, Pretoria. He was with the
late
sergeant Dastile taking the firearm in respect of Madeira Police
Station CAS 72/11/2018 to that laboratory. The firearm was
a 9mm
pistol with a magazine and 9 live rounds of ammunition. The said
firearm was in a sealed bag. They booked in the said firearm
at the
ballistic laboratory in Pretoria and received an acknowledgment of
receipt.
[20]
The State then called constable Majeke, also a member of the SAPS
stationed at Ngqeleni Police Station. His evidence was that
on 4
October 2018 he attended the crime scene in respect of this case at
Mafini. He was with constable Sogoni. On arrival at the
crime scene
there were family members and other members of the community already
there. He saw two empty cartridges of a 9mm pistol
in a two roomed
flat structure. There was also blood inside the room. They were told
that the three people who had been injured
from the shooting which
had occurred had been taken to St Barnabas Hospital. The two empty
cartridges were taken by warrant officer
Ngumbela who attended the
crime scene and also took crime scene photographs.
[21]
The next witness was Xolelwa Nogemane (Xolelwa). Her evidence was
that she resides in Libode and is employed as an administration
clerk
at a junior primary school. She started a love relationship with the
accused in 2018. The accused stayed at Megacom in Libode.
She also
got to know Jay Gidla because the latter was usually in the company
of the accused and sometimes the three of them would
be in town in
Libode together. The last time she saw the accused was near Libode
Spar Supermarket and even on that day the accused
was with Jay Gidla.
On that day the three of them were at the tables in front of Libode
Spar Supermarket.
[22]
Under cross-examination Xolelwa testified that she did not know when
her relationship with the accused actually started but
she thought
that it might have started in August or September 2018. She last saw
the accused during the last week of October 2018.
It was put to
Xolelwa that the accused says that his relationship with her started
around July 2018. Xolelwa said that she did
not recall when her
relationship with the accused started. It was further put to her that
the accused did not deny that at some
point he was with her and Jay
Gidla near Libode Spar Supermarket. However, he did not recall when
that was but did not deny being
with her and Jay Gidla there.
[23]
The State called Brigadier Ngculu. Her evidence was that she is the
head of the Provincial Organised Crime Unit in Zwelitsha.
Her team
investigated both cases, CAS 31/10/2018, Ngqeleni and CAS 72/11/2018,
Madeira. In respect of the Madeira case a firearm
was recovered by
the police from the accused. It was taken to Port Elizabeth Forensic
Laboratory for ballistic testing. The said
firearm was found to be in
a working condition. In respect of the Ngqeleni case three people
were shot and subsequently died. Empty
cartridges were picked up at
the crime scene. She instructed her team of investigators that the
Ngqeleni crime scene empty cartridges
and the firearm in the Madeira
case should be tested ballistically and compared. The results of the
said comparison were that the
firearm in the Madeira case and the
empty cartridges picked up in the Ngqeleni case were linked. However,
the firearm’s serial
number had been erased. As a result, it
could not be ascertained where that firearm came from.
[24]
Police investigations established that the accused who was arrested
in respect of the Madeira case had escaped from lawful
custody from
the Rooigrond Correctional Centre in Mahikeng in the North West.
During the escape in Mahikeng shots were fired and
empty cartridges
in respect of that crime scene were recovered. She then asked for the
empty cartridges in respect of the Mahikeng
and Ngqeleni cases as
well as the firearm in respect of the Madeira case to be subjected to
ballistic analysis and comparison.
The results linked all three
incidents. In other words, the firearm recovered from the accused in
respect of the Madeira case was
balistically linked with the empty
cartridges in respect of the Mahikeng shooting incident and the
Ngqeleni shooting incident.
[25]
The State called Colonel Mgwadleka who is working at the ballistic
unit in Port Elizabeth Forensic Laboratory as a chief forensic
analyst. He testified that on 5 July 2019 upon being requested to do
so, he did a ballistic comparison between the Ngqeleni and
Madeira
cases. He therefore, did a comparison and analysis between case file
with reference number LAB31819/19 (Madeira CAS 72/11/2018)
and case
file with reference number LAB 371021/18 (Ngqeleni CAS 31/10/18).
LAB371021/18 A and B contained two 9mm parabellum empty
cartridges.
There were also two 9mm cartridge fired bullets which were marked
371021/18A1 and A2. The above exhibits were contained
in individually
sealed exhibit bags.
[26]
He also received a sealed evidence bag containing two 9mm parabellum
calibre fired test cartridge cases marked 819 TC1-TC2,
two 9mm
calibre fired test bullets marked 819 TB1 – TB2 and five 9mm
parabellum calibre fired cartridges marked 31819/19
B-F. He further
received another sealed evidence bag which was in respect of the
Madeira CAS 72/11/2018 which contained:
1.
One 9mm Parabellum Calibre Vector/Lew Model Z88 semi-automatic pistol
marked 31819/19A in which two tests marked 819 TC3 –
TC4 and
819 TB3 – TB4 were discharged for comparison purposes and one
magazine.
2.
Nine 9mm Parabellum calibre cartridges which were not marked.
[27]
The scope and intention of the forensic examination was the
microscopic individualisation of the fired bullets and the cartridge
cases. He examined the fired bullets and compared the individual and
class characteristic markings transferred to them by firearm
components during the firing process using a comparison microscope.
His findings were that the two 9mm parabellum calibre fired
cartridge
cases marked 371021/18 A and B were fired with the 9mm Parabellum
Calibre Vector/Lew Model Z88 semi-automatic pistol
marked 31819/19A.
However, it could not be determined if the 9mm calibre fired bullet
marked 371021/18A1 was or was not fired from
the above mentioned
firearm. The 9mm calibre fired bullet marked 371021/18 A2 was found
to be unsuitable for microscopic comparison
due to damage.
[28]
The State also submitted a report compiled by warrant officer
Roelofse who is a forensic analyst working as such at the Silverton
Forensic Science Laboratory in Pretoria which was admitted into the
record in terms of section 212 of the Criminal Procedure Act.
This
report was a comparison analysis of the empty cartridges picked up at
the Mahikeng crime scene in respect of Mahikeng CAS
167/05/2018 and
the firearm recovered in respect of the Madeira CAS 72/11/2018. It
appears from the said report that in respect
of the Madeira case
warrant officer Roelofse received a 9mm Parabellum Calibre Vector
Model Z88 Semi-Automatic Pistol marked 31819/19A
and 9mm parabellum
calibre cartridges. He also received one 9mm parabellum cartridge
fired cartridge case marked 197082/18A. He
found that the said
firearm functioned normally with no obvious defects. He also found
that the ammunition used for test purposes
marked 819ATC1 and 819ATC2
in respect of the cartridge case and 819ATB1 and 819ATB2 for bullets
were also fired in the 9mm Parabellum
Calibre Vector Model Z88 Semi
-Automatic Pistol marked 31819/19A. He also found that the one 9mm
parabellum calibre fired cartridge
marked 197082/18A and the
ammunition used for test purposes marked 819ATC1 and 819ATC2 and
819ATB1 and 819ATB2 were all fired from
the same firearm referred to
above.
[29]
The last witness for the State was Ida Mathule, an officer at
Rooigrond Correctional Services Centre in Mahikeng. Her evidence
was
that on 09 May 2018 she was on duty. Five inmates who were playing
soccer on a soccer field made a daring escape. They used
an
opportunity created by an Eskom vehicle for which a gate had been
opened. They fought with the correctional services officers
on guard
and managed to escape and fled to a nearby homestead. As the officers
were looking for the inmates, there was a sound
of gun fire. It
transpired that one of the inmates snatched a firearm from one
officer who was also looking for the escapees. One
officer was shot
and injured with a gunshot wound on the shoulder. That firearm had 15
rounds of ammunition and it was not recovered.
It had been assigned
to an officer who worked at Rooigrond Correctional Centre and it
belonged to the Correctional Services Department.
It was a 9mm pistol
with 15 rounds of ammunition. Ms Mathule testified that she knows the
accused as he was one of the inmates
at the Rooigrond Correctional
Centre in Mahikeng. She described the accused as being one of the
inmates who escaped on 9 May 2018.
[30]
Formal admissions relating to the three deceased persons and the post
mortem reports in respect of their examinations were
admitted into
the record. These formal admissions also confirmed the identity of
the three deceased persons, the date of death
and the fact that all
three of them sustained fatal gunshot wounds on 04 October 2018
during the shooting that occurred on that
day. It is further recorded
therein that all three deceased persons, Novangeli Patience Nomqonde,
Fezile Willard Nomqonde and Zalisile
Nomqonde succumbed to death
consequent upon the injuries they sustained during the Mafini
shooting incident which took place on
4 October 2018.
After
the evidence of Ida Mathule, the State closed its case.
The
evidence of the accused.
[31]
The accused testified in his defence. He testified that he did not
fire the shots that killed people at Mafini on 4 October
2018 as he
was not there. He described as lies the witness testimony that he was
the assailant who entered the Nomqonde spaza shop
and fired the shots
that killed the three deceased persons there. He denied being there,
demanding money and shooting people in
that incident. He confirmed
that he did usually go to the area around Spar Supermarket in Libode
but would not confirm Fezile Jonga’s
evidence that he saw him
and Xolelwa and Jay Gidla on the day he said he saw them in his
evidence. He confirmed that he usually
met with Xolelwa next to Spar
Supermarket in Libode and therefore it was possible that she was
correct in her evidence in that
regard. He also confirmed that he was
in a love relationship with Xolelwa. The accused testified that he
could not recall where
he was on 4 October 2018 but he confirmed that
he was within the Province of the Eastern Cape.
[32]
The accused confirmed the evidence given by the police that on 7
November 2018 he was arrested at Circus Triangle. He, however,
disputed that he was found in possession of a firearm with a magazine
with 14 rounds of live ammunition and another magazine. He
testified
that when he was arrested he had a bag hanging on his shoulder which
had clothes in it but he had no firearm in his possession.
He
testified that the only firearms he saw on the day of his arrest were
those that were carried by the police officers who arrested
him. With
regard to the firearm that was allegedly found in his possession the
accused testified that he first saw it at Madeira
Police Station. He
explained that on his arrival there with the police after his arrest
he was first asked if he knew that he had
escaped from lawful custody
and he said yes he was aware of that. He was then also informed by
those police officers that he was
also being charged for a firearm
which the police said was found in his possession. He thereupon told
the police officers who charged
him that the police officers who
arrested him did not find any firearm in his possession.
[33]
With regards to the evidence of Ida Mathule the accused testified
that he could not dispute her evidence that she knew him
from the
Rooigrond Correctional Centre in Mahikeng because he was indeed
incarcerated in that centre where he was serving a sentence.
He was
however, never charged for being in unlawful possession of a firearm
in respect of the Mahikeng incident. Even the offence
of escaping
from lawful custody from there never got anywhere.
[34]
He denied robbing Novangeli of her cash and a cellphone on 4 October
2018 and testified that he was not involved in the killing
of the
deceased persons in that incident as he was not there. He denied that
at any stage in or during September to October 2018
he conspired with
anyone to commit robbery at the Nomqonde spaza shop. He denied that
on 4 October 2018 he was in possession of
a firearm and ammunition.
He denied being in possession of a firearm with a magazine containing
14 live rounds of ammunition on
7 November 2018. He testified that he
was never in possession of a firearm and ammunition. In respect of
the count of the attempted
murder of Fezile Jonga the accused
testified that he was not at the Nomqonde spaza shop where the
shooting allegedly took place.
He denied firing any shots at Fezile
Jonga. He added that even when Fezile Jonga testified he did not say
that shots were fired
at him.
[35]
Under cross-examination by the prosecutor the accused confirmed that
indeed Ida Mathule was correct in her evidence that he
served a
sentence at the Rooigrond Correctional Centre in Mahikeng and escaped
from that centre. He testified that he did not know
about the
shooting during that escape at Rooigrond Correctional Centre and the
taking of a firearm from a correctional officer.
He further testified
that Ida Mathule did not say in her evidence that he was the one who
took the firearm during that incident.
She merely said that a firearm
was taken. He was not the one or part of those who took the said
firearm. He admitted being part
of escaping, but denied being
involved in the taking of the firearm.
[36]
The accused further testified that when Fezile Jonga made a statement
to the police he did not tell the police what he was
wearing. He
confirmed that in court Fezile Jonga did say that he told the police
that the assailant was light in complexion, was
slender and that he
also gave the police, the description of the clothes the person was
wearing. He however, maintained that Fezile
Jonga’s description
of the assailant was not contained in his statement he made to the
police as regards the attire. He confirmed
that in court Fezile Jonga
had testified that on that day the person who entered into the spaza
shop and shot people was wearing
jean trousers, a khaki jacket and a
red hood but maintained that the description of the attire was not
contained in his statement.
[37]
He disputed the evidence of the police that when he was arrested at
Circus Triangle he was found in possession of a firearm.
When it was
put to him that the police testified that they asked him for a
licence for the said firearm and that that evidence
was never
challenged, he testified that maybe in saying that they asked for a
firearm licence, the police were talking about what
they normally did
when arresting a person found in possession of a firearm. However, at
the time of his arrest the police asked
for his name and he told them
his name but they never asked for a licence as he was not in
possession of a firearm. The police
then asked if he knew that he had
escaped from a prison in Mahikeng and he said he knew that. Then the
police said that they were
therefore arresting him for escaping from
lawful custody. He testified that he remembered that the police
officers testified that
the firearm was found in the front part of
his waist. They also said he was in possession of a bag with another
firearm magazine.
[38]
He, however testified that the police did not mention the clothes
that were in that bag on that day. He further said that he
would not
have carried just a firearm magazine in a bag of the size he was
carrying on that day. He added that all he had were
his clothes in
that bag. He testified that he heard the evidence of the State
witnesses that the empty cartridges recovered at
the Mafini crime
scene were compared with and linked to the firearm which was
allegedly found in his possession as were the cartridges
that were
fired at Mahikeng during the escape. He disputed Khayalakhe’s
evidence that he saw him at or near Ash Inn Tavern
in Libode and
identified him as being the person he saw at the crime scene firing
shots at the people there. He pointed out that
Khayalakhe also
testified that he saw him on two occasions after the incident. He
said he saw him during November 2018 and he also
saw him in February
2019. He pointed out that on the second occasion when Khayalakhe said
he saw him for the second time at Ash
Inn Tavern he was already in
custody. The accused added that he was never charged with robbing a
firearm in Mahikeng or for the
shooting that took place there. He
emphasized that he was only charged for escaping from lawful custody.
[39]
He denied being at Mafini on 4 October 2018, committing robbery and
shooting people there. He denied that he was found in possession
of a
firearm at Circus Triangle on 7 November 2018. He further said that
about the firearm that was, according to the police, found
in his
possession, his fingerprints were not found on that firearm. The case
for the accused was closed without calling any other
witness.
The
analysis.
[40]
It is common cause that all three deceased persons died as a result
of gunshot wounds following a shooting that took place
at the
Nomqonde spaza shop on 4 October 2018. The only issue is the identity
of the person who robbed and fired shots at and thus
causing the
death of the deceased persons in that incident. On the basis of the
evidence led, the State argued that the person
responsible for the
death of the deceased is the accused. The accused’s defence is
very simple. It is that he was simply
not at Mafini on 4 October
2018. He, therefore, did not and could not have been responsible for
the robbery and the shooting and
the consequent death of the
deceased. He admitted upfront, that he was indeed in the Eastern Cape
during the period in question.
He however, could not remember where
he was saying it was a long time ago. The fact that the accused could
not remember where he
was on that day, is in my view, at best, a
neutral factor. It would be wrong to conclude that because he could
not remember where
he was on that day, he therefore must have been at
Mafini at the time of the incident. The accused has no obligation to
remember
his exact whereabouts and nothing can be read into the fact
that he could not remember where he was. It is the State that must
prove that he was not only at the crime scene but also he was the one
who robbed and also shot the deceased persons there.
[41]
Some of the evidence of the State is direct in the sense that at
least two witnesses gave evidence that they saw the person
who
entered the spaza shop, robbed and shot people there and that that
person was the accused before court. Their evidence was
that his face
was not covered and he had nothing on his head. The room in which the
shooting took place was well lit with an electric
light. They again
saw the assailant in town in Libode and identified him as the person
they had seen on the date and time of the
incident. Some of the
evidence of the State is circumstantial. All of the evidence of the
State has to be examined carefully and
dispassionately to establish
if, in light of the defence proffered by the accused, the State has
discharged the onus resting upon
it to prove its case beyond
reasonable doubt. Again the accused has no obligation to prove his
innocence whatsoever.
[42]
In
Shackell
[1]
some of the principles of our law as they relate to the assessment of
the evidence against an accused person were explained by
Brand AJA as
follows:
“
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version
is
reasonably possibly true in substance the court must decide the
matter on the acceptance of that version. Of course it is permissible
to test the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable;
it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable that it cannot
reasonably
possibly be true.”
The
evidence of Khayalakhe Nkawu.
[43]
Guided by these trite principles of our law, I turn now to examine
closely the evidence of the two witnesses who testified
that they saw
the accused at the crime scene shooting people there and saw him
later after that incident in Libode in town. The
evidence of
Khayalakhe which I consider necessary to repeat was that he was at
the Nomqonde spaza shop on the 4 October 2018 with
Fezile Jonga,
Zalisile Nomqonde, Siyabonga Makupula, Fezile Nomqonde and Novangeli
Nomqonde. Gitla Nomqonde and the first State
witness, Mrs Mbuzo were
also there. The time was about 19:00 in the evening. An electric
light provided light inside the spaza
shop. They were drinking
alcohol but he was not drunk as he was still drinking his first beer
which he was sharing with another
person.
[44]
A young man entered inside the spaza shop and ordered them to keep
quiet. This person took out a firearm and went inside the
counter
where Novangeli was seated. The person who entered the shop was with
another person. This other person did not enter the
shop but remained
in the door way and was also carrying a firearm. The person who went
inside the counter demanded money from Novangeli
and she gave him the
money. As he was about to leave, he turned to Novangeli and said that
she was being cheeky. This person gave
the money he had taken from
Novangeli to the one who was at the doorway. He also wanted to search
Novangeli but she refused. It
was at that stage that Fezile Nomqonde
got up. When Fezile Nomqonde got up this person started firing shots
at Fezile and Novangeli.
Thereafter the two assailants left the spaza
shop. Three people were shot during the incident. They were Novangeli
Nomqonde, Zalisile
Nomqonde and Fezile Nomqonde.
[45]
After some time and as he was entering Ash Inn Tavern in Libode one
day, he again saw the person who had entered the Nomqonde
spaza shop,
took money and shot people. That person was leaving Ash Inn Tavern
when he saw him. However, he never told anyone about
having seen the
said person and he did not do anything about that. When he saw that
person again at Ash Inn Tavern he was still
wearing the same jacket
he was wearing at the Nomqonde spaza shop. He had seen this person
for the first time on the day of the
incident and he pointed at the
accused as the person he saw at the Nomqonde spaza shop robbing and
shooting people there.
[46]
Under cross-examination Khayalakhe testified that he made a statement
to the police but he never told the police that he had
seen the
assailant at Ash Inn Tavern. He explained that when the police came
to him and he made a statement he had not yet seen
this person at Ash
Inn Tavern. He could not recall if he had made another statement to
the police in 2019 but he did have an interview
with the police in
2019. He further testified that during the 2019 interview with the
police he told them that he had seen the
attacker in November 2018.
He also told them that he saw this person again in February 2019.
When it was brought to his attention
that he could not have seen the
accused in February 2019 because he was arrested on 7 November 2018,
he insisted that he had seen
him in February 2019. When it was put to
him that he could be making a mistake in saying that he saw the
accused on 4 October 2018
at the Nomqonde spaza shop, he insisted
that he had seen him. He went on to say that he was sure that it was
the accused person
he saw at the Nomqonde spaza shop and he was sure
that the person he saw again in February 2019 was the accused.
[47]
At some point during the cross-examination his evidence changed
slightly to be that perhaps during the month of February 2019
he did
not take a proper look at that person but he had seen him on 4
October 2018. He seemed to concede that in February 2019
he might
have seen somebody he mistook to be the person who attacked people at
the Nomqonde spaza shop. Very strangely, he went
on to say that he
could not make a mistake about the identity of the attacker and
insisted that it was the accused who shot the
deceased persons there.
The
evidence of identification.
[48]
The evidence of identification must be approach with extreme caution.
In
Maradu
[2]
the court stated that the evidence of identification based upon a
witness’ recollections of a person’s appearance is
dangerously unreliable and must be approached with caution. In
addition to the need for Khayalakhe’s evidence to be approached
with caution like that of Fezile Jonga and indeed generally all
evidence of identification, there are some serious difficulties
with
Khayalakhe’s evidence. His evidence tended to be contradictory
and confusing in some of the material respects as it
related to the
identity of the person who shot and killed people at the Nomqonde
spaza shop. Khayalakhe made a statement on 27
March 2019 to the
police in which he said that a few weeks after the incident in
November 2018 he saw the man who shot people at
Nomqonde spaza shop
at Ash Inn Tavern in Libode. He again saw that same man in February
2019 again at Ash Inn Tavern. Therein lies
the problem. The accused
was already in custody in February 2019 and therefore, he could not
have been the person Khayalakhe saw
there. However, this does not
mean that he did not see a person he thought was the accused.
[49]
During his evidence Khayalakhe persisted with this notion that he saw
the accused even in February 2019 which was breathtakingly
impossible. Therefore, his evidence on the identity of the person who
attacked people at Nomqonde spaza shop is indeed difficult
to
understand and therefore dangerously unreliable.
[50]
It is even worse that he was present when the shooting occurred and
he could have died there. Yet when he again saw the person
he said
was the attacker in Libode he did not tell anyone. He did not tell
even a single person about having seen the attacker.
This is highly
improbable if, when he saw the person he said was the assailant, he
actually thought that it was indeed the assailant.
He testified that
he again saw the attacker in February 2019. In court he identified
that person as having been the accused. He
struggled to explain how
it could be the accused that he saw in February 2019 when the accused
was already in custody at that time.
He, however, vacillated between
conceding that he could be making a mistake and insisting that the
person he saw was the accused
and therefore he was not making
mistake. In short, there were serious short comings in his evidence
about the identity of the assailant.
[51]
However, the evidence of Fezile Jonga stands on a different footing
on credibility. First, on the day he saw the person he
thought was
the attacker on 15 October 2018 standing with Xolelwa near Spar
Supermarket in Libode, he told Makawusi about it on
the way to the
locality. Second, when he arrived at the grave digging site he told
the grave diggers that he had seen the attacker.
He also told Sakhe,
a police officer who worked in King William’s Town at the time,
who was present in the locality. Sakhe
did his own investigations and
established that the said person was Xolelwa’s boyfriend.
Xolelwa testified and confirmed
her love relationship with the
accused and that during October 2018 he was with the accused and Jay
Gidla near Libode Spar Supermarket.
The accused did also confirm his
love relationship with Xolelwa. He also did not deny being around
Spar Supermarket even though
he could not remember the date.
[52]
Like that of Khayalakhe, Fezile Jonga’s evidence must be
treated with caution. There are many reasons why a witness’
evidence of identification must be approached with caution. Some of
the reasons were clearly articulated in
Mthethwa
[3]
exactly fifty years ago by Holmes JA where the learned Judge of
Appeal 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. This depends on various
factors,
such as lighting, visibility and eyesight; the proximity of the
witness, his opportunity for observation, both as to time
and
situation, the extent of his prior knowledge of the accused, the
mobility of the scene; corroboration, suggestibility, the
accused’s
face, voice, build, gait and dress; the result of identification
parades, if any; and of course, the evidence by
or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in the particular case,
are not individually
decisive, but must be weighed one against the other in the light of
the totality of the evidence and probabilities.”
[53]
The evidence of Fezile Jonga is not only credible but also fits very
well and neatly so with the above legal principles. Not
only did he
do something about the person he saw near Libode Spar Supermarket who
looked familiar. He also went closer and chatted
with Xolelwa whom he
already knew from drinking places around Libode. This evidently gave
him an opportunity to look at this person
closely hence he referred
to the fact that he had shaved his beard. He told Makawusi about
having seen the attacker on their way
back to the locality. He also
told the grave diggers and Sakhe. Sakhe’s investigations, which
seem to have been informal
as he was not investigating the case,
established that Xolelwa and the accused were in a love relationship.
This was confirmed
by Xolelwa and the accused himself. Fezile Jonga’s
evidence included the fact that he saw the accused with Xolelwa and
Jay
Gidla near Libode Spar Supermarket. Xolelwa also testified that
the accused would often be in the company of Jay Gidla.
[54]
The evidence of the State also included the fact that on 9 May 2018
five inmates including the accused escaped from Rooigrond
Correctional Centre in Mahikeng. The evidence of the accused was that
on 4 October 2018 he was in the Eastern Cape Province but
he could
not recall where he was in the Eastern Cape. His version put to
Xolelwa as it related to his relationship with her was
that it
started around July 2018. What this means is that not only did the
accused escape from prison in Mahikeng, he was already
in the Eastern
Cape and in particular, in the Libode area from July 2018 or
thereabout. The evidence of Fezile Jonga is free from
the ever
present danger of an honest, sincere but dangerously erroneous
evidence of an identifying witness which the court also
described as
a snare to the judicial officer who does not constantly remind
himself of the necessity of dissipating any danger
of error in such
evidence in
Mehlape
[4]
.
The
murder weapon.
[55]
The State’s case does not end with the evidence of
identification. It also does not end with the accused having escaped
from Mahikeng. There is also the evidence relating to the murder
weapon which implicates the accused. I turn now to focus on that
evidence. I should start by pointing out that all the chain evidence
relating to the murder weapon and the empty cartridges was
not
challenged and is not, in my view, seriously questionable in any
event. The evidence relating to the murder weapon is of a
circumstantial nature. The State’s case as it related to the
firearm that it contends, was found in possession of the accused,
is
that it is the murder weapon used to kill the three deceased persons
at the Nomqonde spaza shop on 4 October 2018. In proving
its case in
this regard the State relied on the evidence of Ida Mathule and the
comparison and analysis reports compiled by its
forensic ballistic
analysts.
[56]
The evidence if Ida Mathule was that on the 9 May 2018 five inmates
including the accused escaped from the Rooigrond Correctional
Centre
in Mahikeng. During that escape a firearm belonging to that facility
was taken away from one of their members. Some shots
were fired and
one member sustained an injury. The accused admits having been an
inmate in that facility. He further admits that
he did escape from
lawful custody in that facility. What the accused disputes is that he
had anything to do with the shooting that
took place or dispossessing
a member of that centre of his firearm during the escape. As I
understand it, his contention is that
it might have been anyone of
the other four escapees who was involved in the dispossession of the
member of that facility of his
issued firearm and the shooting that
took place. The evidence of the State was that a 9mm parabellum
calibre fired cartridge case
was picked up from that crime scene. The
State also relies on the results of the tests and comparisons
conducted by its forensic
ballistic analysts to contend that the
firearm taken away during the shooting at Rooigrond Correctional
Centre is the firearm that
was used to kill people at Mafini.
The
arrest of the accused.
[57]
This brings me to the events of the 7 November 2018. The evidence of
the State is that police received a tip-off from an informer
that a
person they were looking for was at Circus Triangle in Mthatha.
Police from Madeira Police Station, having been given a
description
of the accused’s person as they did not know him, proceeded to
Circus Triangle. They spotted him at Circus Triangle.
He went to
ablution facilities there. Unbeknown to the accused, they followed
him to the toilets. After he had finished using the
toilets they
approached him. They searched him and found, in the front part of his
waist, a firearm with 14 live rounds of ammunition.
They asked him
for a licence for it. He said he did not have it. They then informed
him that they were also arresting him for unlawful
possession of a
firearm and ammunition in addition to arresting him for escaping from
lawful custody at Rooigrond Correctional
Centre in Mahikeng. The
accused’s case was that he was not found with a firearm at the
time of his arrest at Circus Triangle.
His version was that when he
was arrested there for escaping from lawful custody, he was taken to
Madeira Police Station. It was
at Madeira Police Station that the
police produced a firearm claiming that it was found in his
possession. He saw that firearm
for the first time at Madeira Police
Station. Furthermore, when he was eventually taken to the North West
Province, he was only
charged for escaping from lawful custody at the
Rooigrond Correctional Centre and nothing was said about a firearm or
even a shooting.
He was never charged in connection with a firearm at
all there.
[58]
The credible evidence of the two police officers who testified about
the arrest of the accused was that they were looking for
him in
connection with escaping from lawful custody. They searched him in
the process of arresting him for escaping from lawful
custody and
fortuitously, they found a firearm in his possession in the front
part of his waist under his clothing. That firearm
was at some point
taken to the SAPS Forensic Science Laboratory in Port Elizabeth and
Pretoria. It was tested and found to be functioning
normally without
any obvious defects. A comparison analysis was done to establish if
the empty cartridge case found at the Rooigrond
Correctional Centre
was fired from that firearm. The results were that the empty
cartridge case picked up at the Rooigrond Correctional
Centre was
indeed fired from the firearm they said was found on the body of the
accused at the time of his arrest on 7 November
2018.
[59]
Some of the evidence of the State as it relates to the crime scene at
Mafini was that police picked up two empty cartridge
cases at that
crime scene. These are the cartridge cases that colonel Mgwadleka,
who is a chief forensic analyst, testified about.
His evidence was
that the cartridge cases which police had picked up at the Mafini
crime scene and the firearm that came from Madeira
Police Station
were given to him for forensic examination to test if those cartridge
cases were fired from the said firearm. His
conclusion was that
indeed those cartridge cases were fired from the said firearm.
[60]
It must be remembered that the accused disputed that that firearm was
found in his possession saying that he saw it for the
first time when
the police suddenly produced it when he was already at Madeira Police
Station. I find it difficult to understand
the accused’s
version in this regard. What it postulates is that when the police
received a tip-off that he was at Circus
Triangle on 7 November 2018,
they already had the firearm which was used in shooting people at
Mafini which they then falsely claimed
to have found in his
possession. The evidence of the police that when they arrested him
and found a firearm in his possession after
searching him, they asked
him for a licence was never challenged. His evidence that the police
only produced the firearm at Madeira
Police Station is so far-fetched
and so improbable as to be false. It is all falsehoods and an attempt
by the accused to distance
himself from that firearm while admitting
that he escaped from the Rooigrond Correctional Centre where that
firearm was evidently
taken during the escape on the 9 May 2018. He
did this because this was the firearm the State contended, had been
used to murder
three people during the Mafini incident. Fezile
Jonga’s evidence about what took place at the Nomqonde spaza
shop 4 October
2018 was that the person who shot the deceased persons
pulled a firearm from the front part of his waist. This is the same
place
which the police said they found that firearm on the accused’s
body about a month or so after the shooting on 7 November 2018.
[61]
The evidence of the accused largely consisted of bare denials and
tended to be argumentative without dispelling or casting
serious
doubts on the many things that linked him to the crimes that were
committed at Mafini on 4 October 2018. First, a shooting
occurred at
Rooigrond Correctional Centre where he was detained. He was one of
the inmates who escaped from that facility. He was
found in
possession of the firearm that was used during the shooting at that
facility a little more than five months after he and
four others
escaped. That firearm which was found in his possession was
ballistically linked to a cartridge case picked up at Rooigrond
Correctional Centre. The cartridge cases picked up at the Mafini
crime scene were ballistically linked to the firearm that was
found
in his possession.
[62]
Whether or not he was the one who did the shooting at Rooigrond
Correctional Centre is irrelevant. After all, he is not facing
the
charges relating to that incident in this case. What is clear is that
he got possession of the firearm which was dispossessed
from a member
of the Rooigrond Correctional Centre during the escape which he
admitted to having been part of. The clear evidence
of Fezile Jonga
was that he saw him at the Mafini crime scene and he was the one who
shot people there. The clear evidence of the
police who arrested him
at Circus Triangle on 7 November 2018 was that they found a firearm
in his possession. That firearm was
ballastically identified as the
firearm that was used to shoot people during that incident. All the
evidence of the State considered
in its totality and considered with
that of the accused leaves no possibility other than that it was the
accused who shot and killed
the three deceased persons on 4 October
2018 at the Nomqonde spaza shop.
[63]
The Supreme Court of Appeal explained in some detail the correct
approach in dealing with the evidence in a criminal case in
Chabalala
[5]
.
In
Chabalala
Heher AJA expressed himself as follows:
“
The
trial court’s approach to the case was, however, holistic and
in this it was undoubtedly right:
S v
Van Aswegen
2001 (2) SACR 97
(SCA). The
correct approach is to weigh up all the elements which point towards
the guilt of the accused against all those which
are indicative of
his innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities
on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the State as to exclude any reasonable
doubt about the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party
(such as the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an
ex post
facto
determination and a trial court
(and counsel) should avoid the temptation to latch on to one
(apparently) obvious aspect without
assessing it in the context of
the full picture presented in evidence.”
[64]
Having followed the approach set out in
Chabalala
and other
cases, I have come to the conclusion that the State has proved its
case against the accused beyond reasonable doubt.
There is no
possibility, on the proper assessment of all the evidence including
that of the accused, that the person who shot and
killed the three
deceased persons at the Nomqonde spaza shop was not the accused. The
State witnesses largely gave evidence that
was very credible and
reliable which, when considered together and taking into account his
own evidence, all points to the guilt
of the accused.
[65]
Having said that, I must point out that there was no evidence
whatsoever, of any shot having been fired in the direction of
and/or
towards Fezile Jonga. It is not clear why the accused was charged
with the attempted murder of Fezile Jonga specifically.
There was
nothing in Fezile Jonga’s evidence that suggested that the
person who fired shots in that spaza shop during the
attack made any
attempt to shoot him or that he was shot and injured. His only
connection with the shooting is that he was present
in that small
room, but so were Mrs Mbuzo and a few other persons in addition to
the deceased persons.
[66]
The evidence of the State has established the guilt of the accused
beyond reasonable doubt in respect of the robbery, the murder
charges
and of course the unlawful possession of a firearm and ammunition. I
turn now to look closely at the conspiracy charge.
The trite legal
position is that it would not be correct to convict an accused person
for what is said to have taken place or been
done in connection with
the offence for which he is convicted before it was actually
committed. Once the main charge is proved,
the conspiracy which led
to the commission of the main charge should fall away. That is why
normally, where a person is charged
with conspiracy to commit an
offence together with that offence, conspiracy becomes an alternative
charge and not in addition to
the main charge.
[67]
In
Gcam-Gcam
[6]
Cachalia JA dealt with this trite legal position as follows:
“
What
remains is the conspiracy charge. The high court found all the
accused, including the appellant, guilty of both conspiracy
to commit
robbery and robbery on the basis of a common purpose. In this regard
it erred because once a person conspires to commit
a crime and then
commits the crime he cannot be found guilty of both since the two
crimes merge. By convicting the accused, including
the appellant, of
both crimes the high court incorrectly duplicated the convictions. I
have held that the robbery conviction cannot
stand. So it is
necessary to consider whether the evidence established a conspiracy
to commit robbery.”
Was
the robbery premeditated?
[68]
It is not clear why the accused went to rob, shot and killed
Novangeli who ran a small rural spaza shop which probably had
very
little income and also shot and killed the two other deceased
persons. The State did make a submission which in essence, was
that
when the accused armed himself and proceeded to commit robbery at
Nomqonde spaza shop, he had planned the robbery which was
therefore
premeditated and not a spare of the moment and opportunistic crime.
It is not very clear from the evidence that the robbery
was in fact
premeditated. It is not clear where the accused came from when he was
seen for the first time at Mafini on the day
of the incident. While
he was armed it is not clear where he was going to and the
possibility of the accused going somewhere else
for whatever reason
when he saw an easy target, the Nomqonde spaza shop, cannot lightly
be excluded. The evidence of conspiracy
was both weak and speculative
which also did not help on the issue of premeditation. The utterances
about Novangeli being cheeky
or having a bad attitude, even if they
were indeed made, are not clear evidence of premeditation or prior
planning.
[69]
Premeditation, like the evidence of the guilt of the accused, cannot
be assumed. If it is to be based on inferential reasoning,
there must
be a legally sound basis for making such inference informed by the
evidence. The reason for this is not far to seek.
Once premeditation
is established it has serious implications for an accused person in
that it triggers the minimum sentence regime
should the accused be
convicted. In this case the evidence of the State on premeditation
was simply weak at best.
Were
the murders of the deceased committed in execution of a common
purpose?
[70]
While these are not sentence proceedings, I consider it necessary to
examine in some detail, the minimum sentence legal framework.
I do so
because findings of the court on premeditation and common purpose,
like other findings that trigger the minimum sentence
regime must be
made on the evidence led by the State about the guilt of the accused.
Such findings should not be made during the
sentencing proceedings.
In
Baloyi
[7]
the Supreme Court of Appeal dealt with this very issue recently where
Makaula AJA had this to say:
“
Failure
to make a pronouncement at the verdict stage as to which of the
provisions of Part 1 of Schedule 2 of Act 51 (1) of the
CLAA are
applicable to the accused’s conviction constitutes a
misdirection in every case it occurs. However, such a failure
will
not always prejudicially affect the accused to the extent that the
accused will avoid being sentenced to the minimum sentence
of life
imprisonment. If that were to be the case, it would result in a
miscarriage of justice.
There will undoubtedly be
cases where the proved facts compellingly and ineluctably point to
premeditation. In such a case there
cannot be any conceivable
prejudice to an accused person if the minimum sentence is imposed
despite the fact that a finding regarding
premeditation had not been
made prior to conviction. In my view, this is such a case. The
accused was duly warned of the applicability
of the minimum
sentencing legislation on the basis of premeditation and, as I have
said previously, the proved facts incontrovertibly
established that
the murder was premeditated. Accordingly, there can be no conceivable
basis on which he can complain about the
fairness of the trial.”
[71]
The State invoked the provisions of section 51(1) of Act 105 of 1997,
(the Act) indicating its intention to apply to the court
that the
accused be sentenced to life imprisonment, if convicted. This was on
the basis that the murders were committed in execution
of a common
purpose. Section 51(1) of the Act reads:
“
Notwithstanding
any other law, but subject to subsections (3) and (6), a regional
court or a High Court shall sentence a person
it has convicted of an
offence referred to in Part 1 of Schedule 2 to imprisonment for
life.”
Schedule
2 makes reference to murder and, for the purposes of this case the
State based its reliance on section 51 (1) in the indictment
on the
doctrine of common purpose. Schedule 2 (d) reads:
“
The
offence [murder] was committed by a person, group of persons or
syndicate acting in the execution or furtherance of a common
purpose
or conspiracy.”
[72]
During his evidence Khayalakhe did mention a second person whom he
said was with the accused. His evidence was that that person
did not
enter the spaza shop. He remained at the doorway. He did not give any
description of this person in any form whatsoever
except for
indicating that he was also carrying a firearm. There is no evidence
of this person saying or doing anything save for
receiving the money
from the accused. Amongst the people who were in the spaza shop only
Khayalakhe testified to having seen this
person. Fezile Jonga made it
clear that he did not see any other person. Applying the cautionary
rules of evidence as I must, to
the evidence of Khayalakhe as a
single witness with regard to the presence of the second person, I
have come to the conclusion
that Khayalakhe’s evidence in this
regard is vague and unsatisfactory. When the State addressed the
court in terms of section
150 of the CPA, an indication was made that
Siyabonga Makhuphula, who was also present inside the spaza shop at
the time of the
attack would be called as a witness. However, he was
not called to testify. According to the section 150 address, he would
have
testified about having seen the second person who was allegedly
also armed but was outside the spaza shop. As I said earlier,
Siyabonga
was not called by the State and therefore the vague and
unreliable evidence of Khayalakhe was not corroborated. Therefore,
the
evidence of the accused acting in furtherance of a common purpose
with anyone is unreliable.
[73]
All that having been said, the State has established beyond
reasonable doubt that it was the accused who entered the Nomqonde
spaza shop, ordered everybody to lie down, robbed Novangeli of the
money and the cellphone after which he shot and killed her,
Fezile
Nomqonde and Zalisile Nomqonde. During the shooting he was in
unlawful possession of the 9mm Z88 Parabellum Pistol which
is a
semi-automatic firearm referred to in Schedule 2, Part II of section
51 of Act 105 of 1997. The said firearm was evidently
dispossessed
from a correctional services officer at Rooigrond Correctional Centre
in Mahikeng. It was the same firearm that the
police found in his
possession on 7 November 2018. He admitted to being one of the
inmates who escaped during that incident.
[74]
Therefore, the State has proved the guilt of the accused beyond
reasonable doubt in respect of counts 1, 2, 3, 4, 7, 8 and
9. No case
has been proved by the State in respect of count 5, the attempted
murder of Fezile Jonga. The State, having proved its
case in respect
of robbery, the legal position is that the charge of conspiracy to
commit robbery, which is count 6 must fall away
in the circumstances
as I said before.
[75]
In the result, the verdict is as follows:
1.
The accused is found not guilty in respect of count 5, the attempted
murder of Fezile Jonga.
2.
The accused is found not guilty in respect of count 6, conspiracy to
commit robbery.
3.
The accused is found guilty in respect of counts 1, 2, 3, 4, 7, 8 and
9.
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
for the State: M.F Mzila
Instructed
by: Director of Public Prosecutions
MTHATHA
Counsel
for the Accused: A. Nohiya
Instructed
by: Legal Aid South Africa
MTHATHA
Heard
on : 03 June 2022
Delivered
on: 19 July 2022
[1]
S
v Shackell
2001 (2) SACR 185
(SCA) at 194 g-h
[2]
S v Maradu
1994 (2) SACR 410
(W)
[3]
S v Mthethwa
1972 (3) SA 766
(A) at 768 A-L
[4]
S v Mehlape
1963 (2) SA 29
(A) at 32 F-G
[5]
S v Chabalala
2003 (1) SACR 134
(SCA) at 139 para 15.
[6]
Gcam-Gcam
v S
2015 (2) SACR 501
(SCA) para 37.
[7]
Baloyi v S
2022 (1) SACR 557
(SCA) paras 22 and 23.