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[2021] ZAKZPHC 55
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S v Mbatha and Another (CCD34/2020) [2021] ZAKZPHC 55 (3 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU
NATAL DIVISION, PIETERMARITZBURG,
NORTH
EASTERN CIRCUT, MTUNZINI
Case
No. CCD34/2020
In
the matter between:
The
State
and
Celokuhle
Innocent
Mbatha First
Accused
Nhlonipho
Innocent
Mncube Second
Accused
JUDGMENT
Lopes
J,
[1] Messrs
Celokuhle Innocent Mbatha (Mr Mbatha) and Nhlonipho Innocent Ncube
(Mr Ncube) were charged in the circuit
court sitting at Mtunzini with
the following crimes:
(a)
housebreaking
with intent to commit murder;
(b)
the
murder of Wiseman Ntokozo Sithole (Mr Sithole);
(c)
the
murder of Nonhlanhla Cynthia Sangweni (Ms Sangweni);
(d)
robbery
with aggravating circumstances of a Nissan NP200 motor vehicle (the
Nissan) from Mr Sithole.
[2] It
was alleged that all the offences took place on the 13
th
March 2019 at or near Ntababomvu in Babanango. The history and
circumstances of the incident resulting the in the deaths of Mr
Sithole and Ms Sangweni, as disclosed in the evidence of the
witnesses, may be summarised as follows:
(a)
Mr
Sithole was married to Mr Mbatha’s sister, Janet Sizakele
Sithole (Mrs Sithole).
(b)
The
parental family home of the Sithole family was at Ntababomvu,
consisting of a three roomed structure, two rondavels (one
incomplete),
a flat and a rectangular structure. Mrs Sithole resided
in a three-bedroom flat with Mr Sithole, apparently at Umzumgazi in
Richards
Bay.
(c)
At
some stage before November 2018, Mr Sithole expressed the wish to
marry a second wife. His intended was Ms Sangweni. Mrs Sithole
then
decided to enlist her brother, Mr Mbatha, at least to regain
possession of the Nissan which was registered in her name. It
is
evident that at that stage, relations between Mr and Mrs Sithole were
somewhat strained, exacerbated very probably by the fact
that Ms
Sangweni was pregnant by Mr Sithole. Mr Mbatha and Mr Sithole,
however, seemed, at least, to be on good terms, and Mr Mbatha
regularly assisted Mr Sithole with his work of repairing electrical
wiring at schools and building houses.
(d)
Mr
Mbatha agreed to assist Mrs Sithole in her efforts to gain possession
of the Nissan, primarily to prevent it falling into the
possession of
Ms Sangweni. To that end, he enlisted the assistance of a traditional
healer Mbuyiseni Jacob Mbambo (Mr Mbambo).
(e)
Mr
Mbambo and Mr Mbatha had become acquainted with each other during
2017. At that stage Mr Mbatha and Mr Mbambo’s late father
had
dealings when Mr Mbatha sold logs and gates to Mr Mbambo’s late
father. The logs were used as fencing for the property
of the Mbambo
family. In 2018 Mr Mbatha returned to school near the home of Mr
Mbambo, and used to visit him often before and after
school and
during tea breaks.
(f)
During
about October or November of 2018 Mr Mbatha confided in Mr Mbambo
that Mrs Sithole wanted to dispossess Mr Sithole of the
Nissan. To do
so, she wanted to have another key cut for the Nissan, to enable Mr
Mbatha to repossess it for her. Mr Mbatha told
Mr Mbambo that he
wanted Mr Mbambo to drive him to Ntinini to repossess the Nissan once
the key was obtained.
(g)
At
some stage thereafter Mr Mbatha phoned Mr Mbambo and told him that,
at the Nkandla taxi-rank, he had obtained possession of the
second
key, which had been cut in Empangeni. He then arrived at Mr Mbambo’s
home during exam time in 2018. He left the key
on a nail in a wall in
the home of Mr Mbambo.
(h)
Mr
Mbambo was clearly unhappy at the prospect of having to take Mr
Mbatha to Ntinini, and he used the excuse that his motor vehicle
was
broken down. A few days later Mr Celimpilo Khanyile (Mr Khanyile),
arrived at the home of Mr Mbambo in a Golf II motor vehicle.
He told
Mr Mbambo that he had borrowed the Golf II from Mr Mbatha’s
cousin, Sgidi, so that they could transport Mr Mbatha
to
Emachitshana, which area adjoins (but is geographically further than)
Ntinini. Emachitshana was the place Mr Mbatha had asked
Mr Khanyile
to take him to.
(i)
Mr
Mbambo was still unhappy about the arrangement and persuaded Mr
Khanyile to disable the Golf II. Mr Khanyile did this by
disconnecting
the coil wire of the Golf II, thus disenabling it.
(j)
Mr
Khanyile did so because he had been told by Mr Mbambo that Mr Mbatha
not only wished to repossess the motor vehicle for his sister
Mrs
Sithole, but that he also intended to kill Mr Sithole.
(k)
Mr
Khanyile had known Mr Mbatha for some time having repaired motor
vehicles for him, including a Mitsubishi L300 truck and a Toyota
Corolla motor vehicle. The L300 was not working property and could
only be driven in one gear, and was therefore unsuitable to
be used
in the trip to Emachitshana, via Ntinini. The Toyota Corolla Sprinter
also belonging to Mr Mbatha was unreliable and broke
down from time
to time. Whilst Mr Khanyile was in the process of trying to fix the
gear problem on the Mitsubishi L300, he assisted
Mr Mbatha by
performing certain functions for him, such as conveying bricks. Mr
Mbatha had given him R200 to fill the Golf II with
petrol for the
trip to Ntinini.
(l)
As
a result of the disconnection of the coil wire of the Golf II, the
engine could not be started. Mr Khanyile procrastinated and
pretended
that he could not get the Golf II started. Eventually, when it was
too late to do the trip, he reconnected the coil wire
and persuaded
Mr Mbatha to help him push-start the vehicle and he drove off,
leaving Mr Mbatha at Mr Mbambo’s home.
(m)
The
next day Mr Mbatha scolded Mr Mbambo, saying that they did not wish
to help him. It was unclear at that stage whether Mr Mbatha
had
become alerted to the fact that his trip had been deliberately
frustrated by Messrs Mbambo and Khanyile.
(n)
Mr
Mbatha then continued to put pressure on Mr Mbambo. He suggested that
if Mr Mbambo was unwilling to drive him to Ntinini, his
sister Mrs
Sithole would do so, but she would drive Mr Mbambo’s motor
vehicle. Mr Mbambo considered that an awkward situation,
because the
motor vehicle he would use, in fact belonged to his uncle. In the
circumstances, he decided to drive Mr Mbatha to Ntinini
himself.
Prior to embarking on the trip to Ntinini, Mr Mbambo again spoke to
Mr Mbatha about the matter and Mr Mbatha indicated
that his sister
wanted Mr Sithole killed because she did not want to have anything
more to do with him. He also said that he was
going to murder Mr
Sithole because Mr Sithole was emotionally traumatising Mrs Sithole.
(o)
On
the 12
th
March
2019, at approximately 7.00 pm, Mr Mbambo left his home with Mr
Mbatha to drive to Ntinini. On the way, and on the instruction
of Mr
Mbatha, he stopped at a crossroad and Mr Mncube boarded the vehicle.
The crossroad was at a bus stop area where passengers
alighted from
Nqutu, and within walking distance. When Mr Mncube was in the
vehicle, they discussed matters generally, but nothing
relating to
the task at hand. Mr Mbatha and Mr Mncube eventually alighted from
the vehicle and Mr Mbambo made a U-turn and returned
to his home.
(p)
At
approximately 10.00pm Mr Mbatha phoned Mr Mbambo and told him that
his brother-in-law was at home, having unexpectedly arrived
early
from Johannesburg where he had been visiting. Mr Mbambo asked Mr
Mbatha what he would do, and he said that he would see.
(q)
At
about 3.30 the next morning, Mr Mbatha arrived at the residence of Mr
Mbambo, driving the Nissan. Mr Mbambo was asleep and heard
Mr Mbatha
hooting at the gate, and phoning him. Mr Mbamo said that visitors
arrived at his home at all hours and he did not fear
for his safety.
Mr Mbatha then told Mr Mbambo what had happened – that when
they arrived at Mr Sithole’s home, they
realised that Ms
Sangweni was there. Mr Mbatha said that he had to kill them both
because he had been recognised by Mr Sithole,
who apologised to him,
using his name. Ms Sangweni would then have been aware of the
identity of their attackers. They had then
picked up the spent
cartridge cases in the room where they shot the couple, and later
disposed of them.
(r)
Mr
Sithole had been able to recognise Mr Mbatha by the fact that a cell
phone-torch was used by either Mr Mbatha or Mr Mncube, and
illuminated Mr Mbatha.
(s)
Mr
Mbambo then contacted Khaya Ndaba and asked him to look after the
Nissan – it was considered that Mr Mbambo’s home
was too
public a place for it to be stored there. Later, after hearing that
Mr Ndaba had been using the Nissan to visit his girlfriends,
it was
moved to a paternal uncle of Mr Mbambo. Eventually the Nissan was
returned to Mr Nbaba because Mr Mbatha wanted it to be
taken to
Newcastle in order to check whether the Nissan was still registered
in the name of Mrs Sithole. On the way there, and
at Babanago, Mr
Ndaba was arrested by members of the South African Police, and the
Nissan remains at the Babanango Police Station
to this day.
(t)
The
role of Mr Mbambo was then revealed, and he explained to the police
officers that Mr Ndaba did not know of the circumstances
during which
the vehicle came to be in the possession of Mr Mbambo. After being
contacted by police officers, Mr Mbambo had gone
to the Babanango
Police Station to surrender himself. He had taken his medication and
toiletries with him because he fully expected
to be arrested. In the
result he was not arrested.
(u)
A
week after the murders, Mr Mncube went to visit Mr Mbambo in order to
obtain some traditional medication. They discussed the events
of the
murder, and Mr Mncube told him that Mr Mbatha had been careless or
reckless.
(v)
Although
Mr Mbambo co-operated with the Babanango police officers, he shielded
Mr Mncube, referring to him only as ‘K’,
and pretended
that he did not know his real identity. He said he did this because
Mr Mbatha (who lived close to Babanango) would
hear what he had said
to the police officers from them, and he and Mr Mncube might seek
retribution against him. He also said that
Mr Mbatha had asked him if
there was not a way that they could organise the death of Mr Ndaba,
so that the blame for the murders
could be shifted to him
(w)
On
a day when Mr Mncube and a Mr Zungu (from Msinga) were at the home of
Mr Mbambo, members of the police (led by Captain Thusi)
arrived
looking for a firearm. Mr Mbambo told them that Mr Mbatha had left a
firearm with his fourteen-year-old son (in the temporary
absence of
Mr Mbambo), for ‘cleansing’, shortly after the murders.
Mr Mbambo had loaned the firearm to Velihle Ntombela
for his
protection. The firearm, a 9mm Petro-Berretta, was duly recovered
from Mr Ntombela. Mr Mbambo stated that he did not point
out Mr
Mncube to the police officers at that stage because he knew that both
Mr Mncube and Mr Zungu were armed, and he feared a
gun-battle
breaking out.
(x)
At
different times after the murders, Mr Mbatha, Mrs Mbatha and Mr
Mncube visited Mr Mbambo for ‘cleansing’. This included
protection from various spells cast over the coffin of Mr Sithole
which could have endangered them. During the visit of Mr Mncube,
he
further related the circumstances of the murder to Mr Mbambo,
including that: they had broken the wire fence on Mr Sithole’s
property to gain access to it; Mncude had kicked open the door; Mr
Mbatha’s firearm had jammed after the first few shots;
and Mr
Mncube had to ‘finish off’. They had collected the spent
cartridges after the shooting.
(y)
Two
firearms were recovered, one from Mr Ntombela, and one from Mr
Mncube’s brother who testified that he had been given it
to
hide by Mr Mncube.
[3] At
the end of the State case, Mr
Singh
for Mr Mbatha, and Mr
Chliliza
for Mr Mncube brought applications for discharge in terms of
s 174
of
the
Criminal Procedure Act, 1977
. After a short debate, Mr
Singh,
correctly in my view, withdrew his application. For various of the
reasons set forth above, I was of the view that;
(a)
There
was direct evidence implicating both Messrs Mbatha and Mncube
directly in the commission of the crimes with which they were
charged.
(b)
I
disagreed with the submission by Mr
Chiliza
that the evidence of Mr Mbambo was of such a poor quality that none
of his evidence could be accepted.
I
accordingly dismissed the application by Mr
Chiliza
.
[4] Mr
Mbatha then testified. His version was basically a denial of the
evidence of Mr Mbambo, who ‘told
a lot of blue lies’. He
denied:
(a)
ever
having borrowed his cousin’s Golf II;
(b)
obtaining a duplicate key for the Nissan;
(c)
asking Mr Mbambo to take him to Ntinini;
(d)
asking Mr Khanyile to take him to Emachitshana;
(e) giving
Mr Khanyile the sum of R200 for petrol to take him to Emachitshana;
(f)
showing the duplicate key to Mr Khanyile;
(g)
taking the Nissan to Mr Mbambo’s home after the murders;
(h)
phoning Mr Mbambo and asking him to send someone to fetch him and his
sister so that Mr Mbambo could ‘cleanse’
them;
(j)
handing over a firearm to Mr Mbamo’s son;
(k)
that Mr Mbatha, his mother and Mrs Sithole visited Mr Mbambo to allow
him to treat his mother, and that during
the visit Mr Mbatha had
test-driven the Nissan using the duplicate key. Mr Khanyile saw him,
Mrs Sithole and her children at the
home of Mr Mbambo;
(l)
that he told Mr Mbambo that Mrs Sithole wanted Mr Sithole murdered
because he was going to take a second
wife;
(m) that
after the funeral, Mr Mbatha phoned Mr Mbambo and asked him to meet
him and his sister, and asked him to send
someone to fetch them so
that Mr Mbambo could ‘cleanse’ them; and
(n)
that Mr Mbambo had sent Khaya Ndaba to fetch them in his Tazz motor
vehicle, they arrived together with two
small children and Mr Mbambo
performed a ‘cleansing’ ritual on them and that they paid
R300 for the petrol costs.
[5] Mr
Mbatha’s evidence was that Mrs Sithole did not mind the fact
that Mr Sithole married a second wife,
on condition that the second
wife lived in the rural home at Ematchitshana. He suggested that Mr
Mbambo was framing him in order
to conceal a crime which he knew
about. The suggestion that Mrs Sithole objected to the taking of a
second wife was merely to bolster
his story.
[6] For
the sake of convenience, I deal firstly with the defence evidence. Mr
Mbatha was not a good witness. He
started off denying that he knew Mr
Mbambo’s father, and then said that he did know him, and had in
fact done business with
him. It had been put to Mr Mbambo that it was
a lie to suggest that Mr Mbatha had known Mr Mbambo through his
father, and that
they had done business together. He claimed that, to
the best of his recollection, that he was at home in Babanango when
the murders
took place. Almost all of his evidence consisted of bare
denials of the truth of what was said in evidence by the State
witnesses.
He was vague when it suited him, and had to be reminded a
number of times to speak-up. He was, save for denials, unable to deal
convincingly with the allegations against him.
[7] Only
one witness was called for Mr Mbatha, his sister, Balungile who spoke
to a phone call between her and
Mr Khanyile, regarding the progress
of Mr Mbatha’s bail application. The suggestion was that Mr
Khanyile was being threatened
by Mr Mbambo regarding his support for
Mr Mbatha. This was not put to either Mr Khanyile or Mr Mbambo in
cross-examination by Mr
Singh
.
In addition, Balungile Mbatha had been seated in court throughout the
proceedings. No other witnesses were called in support of
Mr Mbatha.
His cousin, Sgidi, concerning whom the dispute over the lending of
the Golf II to Mr Mbatha arose, was never called
to back-up his
denial that he had ever borrowed the Golf II.
[8] Mr
Mncube gave evidence that he was wholly unable to remember where he
was between the 12
th
and 14
th
March
2019. He denied having been picked-up by Mr Mbambo on the way to
Ntinini. He also denied ever asking Mr Mbambo to ‘cleanse’
him, and the conversation which was alleged to have taken place
during that incident.
[9] Mr
Mncube admitted having brought Mr Ntombela to the home of Mr Mbambo.
He alleged that was for a problem experienced
by Mr Ntombela relating
to the payment of lobola for a woman he wished to marry, and her
having abandoned him. Mr Mbambo was to
have provided ‘muti’
to ensure her return to Mr Ntombela. He denied the version of Mr
Mbambo that Mr Ntombela was brought
to his home to purchase a
firearm, and was loaned one instead. He gave a version which
basically tallied with that of Mr Ntombela,
and confirmed that Mr
Mbambo had placed an item (which turned out to be the firearm
recovered from Mr Ntombela) wrapped in black
plastic behind the front
seat of Mr Ntombela’s motor vehicle. He was unable to say what
was in the plastic wrapping.
[10] Mr
Mncube also confirmed that he had been present, with Mr Zungu, at the
home of Mr Mbambo when Captain Thusi
and other officers from the
National Task Team had arrived to question Mr Mbambo about the
whereabouts of the firearm used by Mr
Mbatha. He alleged that they
had heard Mr Mbambo crying out after he was placed in the motor
vehicle with the police officers.
He and Mr Zungu had approached
towards the police vehicle in order to see and hear what was going
on. They were effectively told
to back-off by Captain Thusi and
another officer, Khumalo. He also maintained that Captain Thusi had
requested permission to search
them, had done so, and removed and
took away their cell phones, despite them protesting. The police
officers then left with Mr
Mbambo. Mr Mncube returned the next day to
recover his cell phone from Mr Mbambo, who had been given the cell
phones by Captain
Thusi. This version differed from that given by
Captain Thusi who denied having asked, or having searched either of
them. His reason
for not doing so is that they did not wish to upset
Messrs Mncube and Zungu, believing them to be clients of Mr Mbambo.
[11] Mr
Mncube maintained that members of the South African Police had told
him that Mrs Mbatha had told them that
Mr Mncube’s firearm was
with his brother, and this was how they able to track it down. He had
no explanation how Mrs Mbatha
would have known that fact, contenting
himself with saying that the police officers never told him. He then
said that he never
knew whether the firearm was with his brother. He
firmly maintained that his brother lied in saying that he had given
the firearm
to him, and said that he had never seen the firearm.
Significantly, Mrs Mbatha was never called as a witness, and Mr
Singh
, on behalf of Mr
Mbatha, denied that his mother had ever spoken to the police officers
about the firearm.
[12] There
are several aspects of the evidence generally, which are important to
record:
(a)
Although
ballistic tests were performed on the bullet-heads, the experts were
unable to confirm whether they had been, or had not
been, fired from
the same firearm. No attempt appears to have been made to connect
them to either of the firearms obtained by the
police officers.
(b)
The
firearms concerned fall into the category of ‘prohibited
firearms’ in terms of
s 4(1)(f)(iv)
of the
Firearms Control
Act, 2000
. None of the sections of the Act prohibiting the possession
of such a firearm were sought to be made applicable in this case.
(b)
A
great deal of time and cross-examination was devoted to what came to
be referred to the ‘isiSkebhe incident’. The
isiSkebhe
are evidently a community based, loosely formed, organisation of
citizens who deal with incidents of stock-theft in their
own way.
They apparently do not co-operate with the police force, and deal out
harsh punishments to those deemed to be guilty of
offences relating
to the theft of livestock. They are very clearly feared in the
communities involved in this matter. All the legal
practitioners were
agreed that the ‘isiSkebhe incident’ referred to was not
indicative of the guilt or innocence of
either Mr Mbatha or Mr
Mncube. Mr
Chiliza
,
however, insisted on dealing with it because it was, so he contended,
indicative of the credibility of Mr Mbambo. The ‘isiSkebhe
incident’, according to Mr Mncube, occurred in the following
way:
(i)
A
certain Mr Khumalo, who had recently lost seven cattle, saw some
cattle near the Mncube home, and identified one cow as belonging
to
him. He asked the ‘herd-boys’ the identity of the person
to whom the cow belonged.
(ii)
Having
been told they belonged to the Mncube family, he left a message with
some children, and arrived the next day with members
of the
isiSkebhe.
(iii)
Mr
Mncube told them that the cow had followed some calves being driven
to his home. He then produced a document apparently evidencing
that
Mr Mncube’s brother, Mbuyani, had purchased the cattle from Mr
Mbambo.
(iv)
Everyone
then went to the Mbambo home. Mr Mbambo told the isiSkebhe members
that the cattle had been brought there by Messrs Mbatha
and Mncube,
and produced a permit to that effect. Everyone then proceeded to the
home of Mr Mbatha. The Mbatha family then claimed
that the cattle had
been purchased by Mr Sithole. Mrs Mbatha then explained that Mr
Sithole had been buried a week or two earlier.
(v)
The
isiSkebhe decided that as the matter now involved a dead person, the
cattle must have been taken by Messrs Sithole and Mbambo.
They ruled
that they would not humiliate the Sithole family, and that Mr Mbatha
and Mr Mbambo should pay back the cattle lost by
Mr Khumalo.
(vi)
None
of the documents mentioned above were introduced into evidence.
Indeed, the provenance of the permit book appeared to be itself
in
dispute. Mr Mbambo also maintained that the purchase agreement only
recorded his name as the seller (without his permission),
and it was
done when he was in Empangeni. Mr
Chiliza
stated that as the matter only concerned the credibility of Mr
Mbambo, no witness from the isiSkebhe would be called by Mr Mncube.
Mr Mbambo had denied selling the cows belonging to Mr Sithole, and
alleged the Mr Mbatha knew about the cows. He had added two
calves to
the number of cattle sold to Mr Mncube’s brother who wanted
them to be able to pay lobola. He alleged Mr Mbatha
stole the cattle
from Mr Sithole.
I
expressed the view during the hearing of evidence that it was a
collateral matter, but in view of the submissions of Mr
Chiliza
,
allowed the cross-examination. In my view the isiSkebhe incident
could not be resolved on the evidence, and is of no assistance
in
qualifying the credibility of Mr Mbambo. I accordingly do not
consider it necessary to deal with it in any depth in arriving
at our
decision.
[13] With
the exception of two of the State’s witnesses, they all
impressed us as honest witnesses. They
were cross-examined to no
material effect. Their evidence was often corroborative of each other
and Mr Mbambo, and we have no hesitation
in accepting their evidence
as honestly given, and accurate. The two witnesses who require
further consideration were:
(a)
Mr
Mbambo, who testified in terms of
s 204
of the Criminal procedure Act
(‘the Act’). His evidence has the advantage of his
‘insider’ knowledge, and
we are conscious of the need to
approach it with caution, which we have done. He was also a single
witness to much of what occurred,
and we have considered his evidence
with caution in that respect, where it was relevant to do so. His
evidence was strongly disputed
by both Messrs Mbatha and Mncube. Mr
Mbamo’s evidence was, however, corroborated by the following:
(i)
The evidence of his son, who testified about the firearm which was
delivered to their home by Mr Mbatha,
and the reasons why it was
delivered.
(ii)
The evidence of Mr Khanyile which confirmed his reluctance, and that
of Mbambo, in becoming involved in the
crimes to be committed.
(iii)
The fact that Mr Khanyile saw Mrs Sithole and her children with Mr
Mbatha at the home of Mr Mbambo after
the murders, when Mr Mbambo
told him that they had come for ‘cleansing’. Mr Khanyile
said he had also seen Mr Ndaba
at Mr Mbambo’s home on that
occasion, and Mr Mbambo told him that Mr Ndaba had driven them there
at the request of Mr Mbatha.
All this was strenuously denied by the
defence.
(iv) The
evidence of Mr Mbongeleni Richard Mncube, the older brother of Mr
Mncube, who Mr Mncube had asked to hide his
firearm – and which
was recovered from his older brother.
(v)
When challenged in cross-examination about the fact that his brother
had given him the firearm, Mr Mbongeleni
Mncube pertinently asked how
the police knew he had the firearm? The response to that question
was, eventually, that the mother
of Mr Mbatha told the police that it
was in the possession of Mbongeleni Mncube. Not surprisingly, there
was no evidence to support
this proposition, and it was never put to
Mbongeleni that this was so.
(vi) The
evidence of Ms Thubelihle Nyandeni, the sister of Mr Sithole, that
he, Ms Sangweni and three children had gone
to Johannesburg on the
12
th
March 2019,
and had returned at about 9.00pm. She also discovered the bodies of
Mr Sithole and Ms Sangweni the next morning.
Notwithstanding some
contradictions in the evidence of Mr Mbambo which do not reflect
adversely on his credibility, we are of the
view that he gave his
evidence in a manner which was substantially frank and honest. He did
not seek to shield himself from admissions
of criminality, in
particular in being an accessory in assisting Messrs Mbatha and
Mncube by driving them to the crime scene, and
concealing the Nissan
and the firearm belonging to Mr Mbatha.
(b) Mr
Ntombela – his evidence contradicted that given by Mr Mbatha
with regard to the manner in which Mr
Mbatha’s firearm came
into Mr Ntombela’s possession. Mr Ntombela’s evidence was
that he was taken to Mr Mbambo
by Mr Mncube in order to obtain spells
and potions to get back a woman he wished to marry. As he was
leaving, Mr Mbambo allegedly
slipped the firearm onto the floor of
his vehicle behind the driver’s seat. Upon discovering it on
his return home, Mr Ntombela
phoned Mr Mbambo and vehemently
protested Mr Mbambo’s conduct. Mr Mbambo’s version was
that Mr Mncube had brought Mr
Ntombela to him to buy a firearm for
protection. This dispute does not affect any decision in the matter,
being a neutral fact,
save for a possible reflection on the
credibility of Mr Mbambo. Had Mr Ntombela’s professed
self-righteous indignation been
genuine, he would surely have gone
directly to the police, or would have immediately sought to return
the firearm to Mr Mbambo.
In the event he did neither, merely
allegedly phoning Mr Mbambo on two occasions and telling him to fetch
the firearm from him.
[14] Mr
Mbambo made a statement to Warrant Officer Nhleko on the 29
th
May 2019, some twelve weeks after the murders. He was cross-examined
on his statement by Mr
Singh
.
The paragraphs in issue were those numbered three, four, five, seven,
eight, nine, ten, and eleven. Mr
Singh
asked a variety of questions relating to the contents of those
paragraphs. In our view, no material discrepancies were evident,
and
although there were some items in the evidence of Mr Mbambo which do
not appear in his statement, they were all minor (eg -
the times of
phone calls and exactly what time Mr Mbatha arrived back at his
homestead), and to be expected, given the lapse of
time between his
statement and his giving evidence. One discrepancy related to the
reason that the Nissan was taken to Newcastle
– in his evidence
Mr Mbambo said it was to check the registration details, and in the
statement, it was to find a buyer.
Although the more probable reason
was to find a buyer for the Nissan, Mr Mbambo was adamant that it was
for the former purpose.
[15] A
feature of the evidence was that Mr Mbambo had been asked to take Mr
Mbatha to Ntinini. It was suggested
that the home of Mr Sithole was a
further half-hour drive from there. However, in his statement he
recorded that
‘
I drove towards
Ntababomvu. I drop them where there was a gate and fence. Scelo said
they are all right now, he will see me when
he brought a vehicle
which they were going to take after killing the deceased.’ (as
recorded).
Mr
Mbambo was cross-examined on this, and he stated
‘
. . . where I
turned there is a road turns with a gate and fence there where I
dropped them off and left.’
This
appears to have been a confirmation by Mr Mbambo of his statement.
[16] Viewing
the evidence in its entirety, we have no hesitation in accepting the
evidence of the State witnesses.
We also reject the evidence of
Messrs Mbatha and Mncube as false beyond a reasonable doubt. Mr
Chiliza
argued
strongly that there was no evidence linking Mr Mncube to the murders.
That may be so if the evidence of Mr Mbambo and the
brother of Mr
Mncube are ignored. Mr
Chiliza
submitted that the firearm recovered from Mr Mncube’s brother
(if that evidence was to be accepted), was retrieved some five
months
after the murders and there was nothing linking this firearm to the
murder! The problem for Mr Mncube is that he denies
any connection
with the firearms, and alleges Mrs Mbatha told the police officers
that his brother had the firearm. As stated above,
she was not called
to give evidence. Nor did he attempt to explain how Mrs Mbatha could
have known that his brother had the firearm,
nor what firearm it was
that Mrs Mbatha knew about. He then claimed not to know that a
firearm was really recovered from his brother.
[17] In
all the circumstances we are of the view that the State has proved
beyond a reasonable doubt that both
Mr Mbatha and Mr Mncube are
guilty on counts one, two and three. On count four the intention to
remove the Nissan was clearly formulated
before the murders, and the
later intention to kill Mr Mbatha was coupled with the intention to
remove the vehicle. The intention
to kill Mr Mbatha if he resisted
the removal of the Nissan was also established in the evidence of Mr
Mbambo. Their guilt on count
four is then also established. The
murder of Ms Sangweni was solely to prevent her from testifying
against Mr Mbatha on the basis
of the last words of Mr Sithole which
identified Mr Mbatha. Both murders then fall within the ambit of
s
51(1)
, read with
Part I
of Schedule 2 to the
Criminal Law Amendment
Act, 1997
.
[18] I
make the following orders:
(a)
Mr
Mbatha and Mr Mncube are convicted on all four counts as charged.
(b)
In
terms of
s 204(2)(a)
and (b) of the
Criminal Procedure Act, 1977
, Mr
Mbambo is discharged from prosecution on all four counts, and any
competent verdicts thereof.
Lopes
J
S
Miloszewski (Assessor).