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[2021] ZAECMHC 33
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S v Msuthu & Others (CC10/2017) [2021] ZAECMHC 33 (17 September 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
Case
No. CC10/2017
In
the matter between:
THE
STATE
and
PHIWOKUHLE
MSUTHU Accused
No. 1
THANDISIZWE
NTUMBUKANA Accused
No. 2
WANELE
NDLEBE Accused
No. 3
MCEBISI
POYO Accused
No. 4
LUNDI
GUMENGE Accused
No. 5
WONKE
NDLEBE Accused
No. 6
JUDGMENT
JOLWANA
J
Introduction
[1]
The accused were arraigned before this Court on multiple counts of
aggravated robberies, murders, attempted murders, unlawful
possession
of firearms and unlawful possession of ammunition. All the
accused pleaded not guilty to all the charges preferred
against them
save for accused no.4 who had passed on. The State presented
its case calling various witnesses until it exhausted
all its
witnesses and closed the case for the prosecution. At the close
of the case for the prosecution all the accused applied
to be
discharged in terms of s174 of the Criminal Procedure Act 51 of 1977
(the CPA). Accused no. 1, 2 and 5 applied for
their discharge
on some of the charges whilst accused no. 3 and 6 applied for their
discharge on all the charges preferred against
them. All the accused
were legally represented throughout the proceedings even though legal
representation changed from time to
time.
[2]
In providing for the consideration of a discharge of an accused
person after the case for the prosecution has been closed s174
of the
CPA reads:
“
If
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.”
It
is on the basis of these provisions that the accused moved their
applications. I turn now to consider the evidence led
by the
State in respect of each count against each accused but only in
respect of the counts for which such applications have been
made.
The
evidence for the State against accused no.1
[3]
Accused No.1 has been charged on all the counts for which the State
alleges, were committed by some or all the accused.
He only
applied for a discharge only in respect of counts 3, 4, 5, 6, 10, 11,
16 and 17. The State did not oppose the application
for his
discharge in respect of counts 3, 4, 5, 6, 10 and 11. It only
opposed the application for his discharge in respect
of counts 16 and
17.
Counts
3, 4, 5 and 6.
[4]
Only accused no.1 is charged for these counts. In summary the
indictment is to the effect that the murders were committed
on 1
November 2015 at what is presumably a drinking establishment, if the
name, So-What Lounge is anything to go by. It
is alleged
that accused no.1 killed Mr Kuzo Andrea Mapipa and Mr Yamkela Zoya.
Count 3 relates to the murder of Mr Mapipa
and count 4 is in
respect of the murder of Mr Zoya. Both of them were allegedly
killed on the same date, at the same time
and place. Counts 5
and 6 are in respect of the unlawful possession of an unspecified
type of a firearm and an unspecified
type and quantity of ammunition
which accused no.1 allegedly possessed when he allegedly committed
the murders in counts 3 and
4.
[5]
The only light into what the case of the State is against accused
no.1 is shed by what is contained in the summary of substantial
facts
attached to the indictment and provided to the accused in term of
s144(3) of the CPA. In respect of these murders the
State’s
allegations are as follows:
“
4. During 01
November 2015 accused No.1 and his friends were at So-What Lounge,
Mthatha. Accused No.1 took out a firearm and
fired several
shots to the deceased in count 3 and 4. After that they left
the scene. Cartridge cases were found on
the scene and sent to
the Laboratory for analysis. Deceased in count 3 died as a
result of “Thoraco-abdominal injuries
and cervical spine
fracture secondary to gunshot.” Deceased in count 4 died
as a result of “Head-thoracic injuries–gunshot.”
[6]
The only evidence led by the State in connection with these charges
was that of warrant officer Vutu, a member of the SAPS attached
to
the Local Criminal Record Centre in Mthatha. He was called to
the crime scene and took photographs of the two bodies of
Mr Mapipa
and Mr Zoya and collected some exhibits. His evidence, as would
be expected, was not that accused no.1 was there
or that he committed
the offences. His evidence related to the undisputed fact that
the two deceased died at the alleged
crime scene having sustained
gunshot wounds. It is not clear to me why accused no.1 was even
charged for these offences which
were never withdrawn nor was any
evidence against him led. When the State closed its case it had
not called a single witness
or led any evidence for purposes of
proving that the person who mercilessly murdered the deceased was
accused no.1. This
is not a case of insufficient evidence as
there was no evidence at all. There is nothing to suggest that
the unfortunate
and murderous loss of the two lives was ever
investigated or if investigated what sort of evidence was considered
by the State
when it decided to charge accused no.1 with their
murders. Even worse, the State proceeded with the charges
against him even
when it must have been clear to the State that there
was no evidence whatsoever. Therefore, whether it was accused
no.1 or
not, who killed the deceased will never be known.
Counts
10 and 11.
[7]
Accused no.1 has not applied for a discharge in respect of count 7.
However, he has made such application in respect of
counts 10 and
11. In order for these charges to be fully understood, I
consider it necessary to make reference to count 7
to the extent
necessary as counts 10 and 11 were allegedly committed at the same
crime scene and at the same time and place as
count 7. Count 7
is in respect of the robbery of a cash conveyance vehicle of Fidelity
Security Services on the 2 November
2015 at St Barnabas Hospital, in
Ngqeleni. Count 10 is in respect of the unlawful possession of
a firearm and count 11 is
in respect of the unlawful possession of
ammunition. The State did not oppose the discharge application
by accused no.1 in
respect of counts 10 and 11.
[8]
It appears that to a great degree the case of the State against
accused no.1 relies on the statement he made to Brigadier Manyana
which is exhibit “E” of the record. While he places
himself at the crime scene in respect of count 7 in that
statement,
the closest he comes to implicating himself in respect of counts 10
and 11 is in one sentence in which he says “we
fired some shots
to it”. That sentence must be with reference to the shots
that were fired at the Fidelity Security
Services vehicle which was
the target of the armed robbery. In order to contextualise that
single sentence, it is necessary
to have regard to accused no.1’s
statement where it refers to the robbery mentioned in count 7.
It appears from his
statement that he was with about twelve other
people mentioned in the statement on the day before the said
robbery. They
were armed with rifles and pistols that were
intended to be used during the robbery. On that day accused
no.1 was himself
carrying a rifle. However, on that day
they aborted the attack on the Fidelity Security Services vehicle.
[9]
On the following day the attack on that vehicle was carried out and
all the people who were present the previous day were present
including accused no.1 himself except one person. There is no
evidence of accused no.1 carrying any firearm on the second
day.
The closest he comes to mentioning the assailants using firearms when
shots were fired is where he says in the statement,
“we fired
some shots to it”. The question that follows logically is
that when he was with over ten other people
and he said “
we
fired some shots to it
,” did he necessarily mean that he
himself was in possession of a firearm and ammunition? The
importance of this question
lies in the fact that I do not think that
it would have been totally out of place for him to say “
we
fired some shots to it
” when he neither possessed a firearm
nor fired any shots himself personally. The fact of the matter
is that there is
no evidence of accused no.1 being in possession of
firearms and ammunition on the day of the attack on the Fidelity
Security Services
vehicle at St Barnabas Hospital. On the
evidence of the State, accused no.1’s presence at the crime
scene during the
attack and participation in the attack, even if it
were to be accepted as established, does not mean that he was in
possession
of firearms and ammunition. In my view, there are
many other inferences that can be drawn from those words. In
those
circumstances the law is clear that the drawing of the
inference the State wants this Court to draw where there are other
inferences
that can be drawn from those words is unsustainable.
[10]
As far as I could understand it from the heads of argument, the main
basis for the application for the discharge of accused
no.1 on counts
16 and 17 is that the State did not produce any evidence describing
the firearms and/or ammunition the accused were
alleged to have been
in possession of. I do not think that that contention is
sufficient for his discharge in terms of section
174 at this stage of
the trial. The fact of the matter is that he made a statement
before colonel Manyana in which he mentions
some firearms and that
statement was ruled admissible by this Court. In the Tsitsa
bridge robbery the evidence of the State
was that firearms were used
in shooting the vehicle and the employees of Fidelity Security
Services. In addition to that
Mr Nqetho was shot and killed in
that robbery and other people sustained gunshot wounds and had to be
treated in medical facilities.
I do not think that it can be
said that there is no evidence on which a reasonable court acting
carefully can convict the accused
on the charge of unlawful
possession of firearms and ammunition in respect of counts 16 and
17. Only accused no.1 and 6 were
charged in respect of the St
Barnabas Hospital robbery and related charges. I consider it
convenient to also deal with the
State’s case against accused
no.6 before I deal with the applications of other accused.
The
State’s case against on accused no.6 on counts 7, 8, 9, 10 and
11
[11]
Accused no.6 is only charged in respect of counts 7 to 17 and he
applied for his discharge in terms of s174 in respect of all
of
them. However, the State did not oppose his discharge
application in respect of counts 12, 13, 14, 15, 16 and 17.
However, the State opposed his application in respect of counts 7, 8,
9, 10 and 11. I will start with the application in
respect of
which there is no opposition. All these five counts are
interrelated and are in respect of the St Barnabas Hospital
robbery.
Count 7 is in respect of the armed robbery, counts 8 and 9 are the
attempted murders of Mr Kwanele Vapi and Mr Mphumezi
Mlenga
respectively. Counts 10 and 11 are in respect of the unlawful
possession of firearms and ammunition.
[12]
Mr Kwanele Vapi’s evidence was that on 02 November 2015 he was
on duty as an employee of Fidelity Security Services where
he was
employed as a technical support officer. However, on the day in
question he was tasked with driving their cash conveyance
vehicle
because the regular driver was not on duty. Their vehicle was
branded with his company’s branding and logo.
He was with
his colleague Mphumezi Mlenga who was his crewman and they were
tasked with loading cash into Nedbank automatic teller
machines (ATM)
in Mthatha, Libode, Ntlaza and Lusikisiki. They attended to the
last ATMs in Lusikisiki at 16h00 after which
they headed back to
their company’s office in Mthatha using the R61 route which
goes towards Port St Johns. When they
were at Ntlaza location
near St Barnabas Hospital the road was under construction and
detoured into a gravel road. Their
vehicle’s head lamps
were on. The vehicle in front of their vehicle switched on its
hazard lights and then stopped.
Another vehicle which was a
golf vehicle was facing the direction of Port St Johns which was the
opposite direction. It had
its bonnet open as if it had a
mechanical problem. Eventually shots were fired at their vehicle by
the people from those vehicles
with one shot hitting him. They
managed to drive away and were chased into St Barnabas Hospital where
they tried to seek
refuge.
[13]
Initially they stopped near the reception area in the hospital but
they struggled to open their doors. They again heard
the sound
of rifle shots. Mr Vapi then drove the vehicle further into the
back of the hospital yard. He could see a
Toyota Fortuner
chasing them inside the hospital premises. As he was driving
inside the hospital the road suddenly ended
and he could not drive
any further. He had at that stage switched on the lights of his
vehicle at the time he was near the
reception as he had at some stage
switched them off. When he realized that the road ended and he
could not drive forward
he reversed into the Toyota Fortuner and hit
it on the driver’s side with his rear bumper. When he
realized that he
could not move his vehicle he switched off his
ignition but left the lights on. The assailants appeared
shooting at his side
demanding that they should get out. The
attackers shot at both sides of the vehicle until his passenger Mr
Mlenga was hit
by a bullet.
[14]
He then decided to open the rear door of the vehicle which could be
opened from the driver’s seat and they stopped shooting.
He tried to open the gun port in order to shoot one of the
attackers. He told Mr Mlenga to keep an eye on the attacker he
was going to shoot. That attacker ran away in front of the
vehicle. He ran about five metres away and then came back
walking fast. When he came back the mask that that assailant
was initially wearing on his face had fallen and it was hanging
on
his chest. That assailant came towards him and at some stage he
was about two meters away. He could see him clearly
as he had
nothing on his head. He was moving towards him with his firearm
pointing at them. The source of light was
their vehicle lights
which were still on and some hospital lights not far away. He
described that man as having sharp ears
that were bigger and facing
upwards and was light in complexion. He did not see that man again
after he walked past his vehicle.
He identified that man as
accused no.6. After he had walked past him he heard the
assailants saying to each other that they
should leave before police
arrived. The assailants’ motor vehicle drove away.
He and his colleague waited for
about 15 minutes for the assailants
to go away and thereafter he opened his door. Eventually they
went into the hospital
to seek medical attention. At some stage
he was referred to Nelson Mandela Hospital by his personal doctor
where the bullet
was ultimately removed from him.
[15]
Under cross examination he testified that gun shots were fired at his
vehicle for about 10 minutes. One of the men moved
from his
side of the vehicle and ran to the front and the lights of his
vehicle were on. When that man came back he was not
running but
was walking fast. He looked at that man as he was approaching.
He testified that the time it took that
man to run from his side of
the vehicle and coming back walking fast might have been about half a
minute. He noticed his
features at the time he was standing
there with his mask hanging on his chest. It was that time that
took half a minute and
going to the front of the vehicle and coming
back would have taken about a minute. When that same man was
standing there
still with his mask on he could see only a portion of
his face but after the mask had fallen to his chest it was then that
he saw
him clearly. It is the same man that he aimed at with
his firearm and told his colleague Mr Mlenga that he was going to
shoot
him. He testified that the time it took him to look at
accused no.6 was more than a minute because at some stage he stood
in
front of the vehicle and at some stage he aimed at him with his
firearm.
[16]
He testified that on that day it was the first time that he saw
accused no.6 and he identified him with his light complexion
and the
shape of his ears. He never saw him again until this trial
started. He made a statement to the police but that
statement
was never read back to him. He confirmed that in the statement
which was shown to him during cross-examination
it was not stated
that he could identify the person he had seen at the crime scene.
This, he testified, was surprising to
him, because he had told the
police everything. He had sufficient light from his vehicle and
a light provided by construction
lights as the hospital was
undergoing renovations. He explained that on that day accused
no.6 was wearing the type of masks
normally worn by doctors when they
go to theatre. After the bullet was removed from his body he
went to see the investigating
officer to give him that bullet but
they did not discuss the case. He was never called to an
identification parade.
[17]
There was no other evidence of whatever nature or form presented by
the State against accused no.6 in respect of counts 7,
8, 9, 10 and
11. Therefore the State’s case against accused no.6
depends entirely on the evidence of Mr Vapi on identification.
Mr
Mpumezi Mlenga, the second State witness in that robbery did not add
anything on the crucial issue of the identity of
the assailants.
He was a crewman and therefore in the same vehicle as Mr Vapi during
the attack. He was a passenger
in the front seat while Mr Vapi
was the driver. He was the one who was asked by Mr Vapi to keep
an eye on that assailant
that Mr Vapi was trying to aim at with his
firearm. However, he said nothing about having been able to see
and could identify
one of the assailants, even the one he had been
asked by his colleague Mr Vapi to watch whose mask had fallen to his
chest.
He never even mentioned being told later by Mr Vapi that
he was able to identify one of the assailants. I will
deal
with the approach to the evidence of identification in our law
later.
The
State’s case against accused No.2
[18]
Accused no.2 has been charged with count 1, the robbery of the sum of
R2.5 million from a Fidelity Security Services cash vehicle,
two
cellphones, one 9mm pistol and an LM5 rifle with serial number GLN
04030 on 14 September 2015 on the R61 road in Lusikisiki
which were
at the time in the lawful possession of Fikile Pumelo and Bongile
Mjungula as employees of Fidelity Security Services.
There is
also an alternative count of conspiracy to count 1, it being alleged
that prior to and including the 14 September 2015
at or near Norwood
the accused together with others conspired to commit the robbery
referred to in count 1. He is also charged
with count 2, the
unlawful possession of firearms at the time and place mentioned in
count 1. He also faces count 12, the
robbery at Tsitsa bridge
on 4 November 2015 in which employees of Fidelity Security Services,
Mr Zola Mphako and Mr Vuyisile Mandoyi
were robbed of a pistol and a
rifle, count 13, the murder of Mr Mnikelo Nqetho during the
commission of the Tsitsa bridge robbery,
count 14, the attempted
murder of Mr Yolisa Mlungwana on the same date and time mentioned in
count 12, count 15, the robbery of
a Mercedes Benz vehicle from Mr &
Mrs Jama at or near Tsitsa bridge, count 16, the unlawful possession
of firearms during the
robbery at Tsitsa bridge, Count 17, the
unlawful possession of ammunition when the Tsitsa bridge robbery was
committed and Mr and
Mrs Jama were robbed of their vehicle.
[19]
He has applied for a discharge in terms of section 174 in respect of
all counts save for the alternative charge to count 1,
that being the
conspiracy to commit the Lusikisiki robbery. The State did not
oppose his discharge application in respect
of counts 1, 2, 14, 15,
16 and 17. However, it opposed the application in respect of
counts 12 and 13. There is simply
no evidence implicating
accused no.2 in the Lusikisiki robbery and the robbery of the
Mercedes Benz from Mr & Mrs Jama on 4
November 2015. There
is also no evidence of accused no.2 being there and being in
possession of firearms and ammunition and
ultimately when Mr &
Mrs Jama were robbed of their vehicle. Therefore the concession
by the State in respect of counts
1, 2, 14, 15, 16 and 17 is well
made as the State has not produced any evidence against him
whatsoever. I turn now to look
at the State’s case
against accused no.2 in respect of counts 12 and 13. In
opposing the discharge application the
State indicated that it would
rely on the evidence of constable Clint Africa.
[20]
Constable Africa’s evidence was that on 13 November 2015 he was
on duty with sergeant Cornelius doing crime prevention
duties as
members of the canine unit based at Maitland in Cape Town. When
they were in the Ruitewacht area they decided to
do a random test on
a white VW Golf 6 vehicle that they saw on the road to check if it
was registered and it turned out that that
vehicle was not
registered. They decided to pull it over. They switched
on the blue lights and siren of their marked
police vehicle.
The VW Golf vehicle speed away from them, driving recklessly by
forcing its way between other vehicles and
thus damaging them, and
jumping red robots. They gave chase and also called for
backup. When they were at Valhalla
Drive the boot of that
vehicle opened and one male person fired shots at them with an
assault rifle and he returned fire.
At some point at Jacaranda
Road the occupants of the said vehicle jumped off and ran across an
open field on foot.
[21]
Their back up colleagues were also assisting in chasing the suspects
on foot. The suspects ran into a house at Rose Street.
He
and his colleagues entered that house through a garage but he first
fired a stun grenade into the garage. He noticed a
dustbin on
his left and as he entered he saw a front part of a shoe sticking out
in front of the dustbin. He shouted for
the suspect to come
out. He also saw the front barrel of a firearm pointing at
him. He then fired shots towards the
dustbin. The gun
fell from the suspect and he ran over and arrested him. He
noticed that the suspect was injured.
He pointed at accused
no.2 as the suspect he arrested during that incident. The said
firearm was taken away by members of
the Local Criminal Records
Centre and eventually entered in the SAP13 register of exhibits.
That firearm was a black Taurus
Arcus firearm.
[22]
The State also called Mr Simon Mathebe who testified that in February
2016 he was the branch manager of Fidelity Security Services
in
Mthatha. On 29 February 2016 he received a phone call from
warrant officer Mdepa who was working for the Organised Crime
Unit.
He told him that certain suspects had been arrested in Cape Town and
a firearm was recovered from them and he was required
to come and
identify it. He took their firearm scanner with him and
proceeded to see Mr Mdepa. The serial number of
the said
firearm was filed off but because their firearms are implanted with a
micro-chip, their scanner was able to pick up its
serial number as
31FG501016. That firearm had been robbed from Fikile Mpumelo,
their employee during the cash in transit
robbery in Lusikisiki on 14
September 2015.
[23]
The evidence of Mr Bongile Mjungula was that on 14 September 2015 he
was a rifle man to keep guard on his colleague Mr Fikile
Mpumelo who
was collecting cash from businesses between Flagstaff and Mthatha as
employees of Fidelity Security Services.
Their driver was Anele
Gqwetha. They were robbed between Lusikisiki and Port St Johns
and R2.4 million in cash as well as
a black LM5 rifle with serial
number GLN04030 and a pistol were robbed from them. The said
rifle was in his possession and
a pistol which was in the possession
of his colleague Mr Fikile Mpumelo was also taken away.
[24]
As far as the State’s case is concerned with regard to the
pistol and the rifle which were robbed from Mr Zola Mphako
and Mr
Vuyisile Mandoyi at Tsitsa bridge on 04 November 2015 during which Mr
Mnikelo Nqetho was murdered and an attempt was made
to kill Mr Yolisa
Mlungwana there is no evidence of accused no.2’s involvement in
that crime nor was he implicated in anyway.
The firearms
recovered in Cape Town on 13 November 2015 even if it were to be so
that they evidently belong to Fidelity Security
Services and they had
previously been robbed during the Tsitsa bridge robbery or the
Lusikisiki robbery do not help the State’s
case against accused
no.2. The evidence of the 9mm Arcus pistol having been
allegedly recovered from accused no.2 indicates
that it might indeed
have been robbed from the Fidelity Security Employees with other
firearms during one of those robberies.
However, that does not,
without more, mean that accused no.2 was involved in the robberies
themselves. What it does mean
is that he was found in Cape Town
in unlawful possession of that firearm. Without him being
implicated in the robberies it
cannot be assumed that because a
firearm robbed during one of those robberies was recovered from him
he was therefore involved
in those robberies and the other crimes
committed there on that day. More evidence was required from
the State and the State
failed to produce the required evidence.
The short shrift approach to the evidence of the State in respect of
counts 12 and
13 is that there is no evidence that accused no.2 took
part in that robbery and murdered Mr Nqetho.
Evidence
of the State against accused no.3.
[25]
Accused no.3 is charged in respect of counts 1, 2, 12, 13, 14, 15, 16
and 17. He has brought an application for his discharge
in
terms of s 174 in respect of all the charges. The State is not
opposing his application in respect of counts 1, 2, 14,
15, 16 and
17. The State is opposing accused no.3’s discharge
application only in respect of counts 12 and 13.
I will start
with the counts for which the discharge application is not opposed by
the State.
Counts
1, 2, 14, 15, 16 and 17.
[26]
Counts 1 and 2 are in respect of the Lusikisiki robbery. There
is simply no evidence led by the State against accused
no.3 in
respect of counts 1 and 2. No evidence at all. Counts 14,
15, 16 and 17 suffer the same fate as counts 1 and
2 in that no
evidence at all was led by the State pointing to accused no.3’s
involvement in those offences. It is therefore
hardly
surprising that the State did not oppose the application for his
discharge in respect of counts 1, 2, 14, 15, 16 and 17.
This
brings me to counts 12 and 13 in respect of which, as indicated
before, the State opposed accused no.3’s application
to be
discharged in terms of section 174.
Counts
12 and 13
[27]
These counts are in respect of the robbery of a Fidelity Security
Services cash vehicle at or near Tsitsa bridge in Tsolo on
the 4
November 2015 and the murder of Mr Mnkilelo Nqetho. The State
indicated that it opposed accused no.3’s application
in respect
of counts 12 and 13. In opposing the application the State
indicated that it relied on the evidence of Mr Vuyisile
Mandoyi. Mr
Mandoyi’s evidence was that in November 2015 he was working for
Fidelity Security Services and their main business
was to collect
cash from businesses. On the 4 November 2015 he and his
colleagues were assigned to collect money from businesses
in
Ntabankulu, Mount Ayliff, Mount Frere and Qumbu. He was with
two of his colleagues Mr Mnikelo Nqetho and Mr Zola Mphako.
They were travelling in a vehicle branded with Fidelity Security
Services branding and logo. They finished collecting money
between 17:00 and 18:00 in the early evening after which they
proceeded to their Mthatha offices using the N2 national road.
[28]
When they were crossing Tsita bridge or thereabout his colleague Mr
Mphako who was the driver said that their vehicle was being
shot at.
He then saw a Toyota Fortuner whose occupants were shooting at their
vehicle. At that time he was sitting
between the driver Mr
Mphako and Mr Nqetho. While that was happening he noticed a
white Hyundai pickup truck in front of
them standing at a bus stop on
the side of the road. The Hyundai vehicle slowly drove into the
road. Mr Mphako had
to drive on the side of the oncoming
traffic but their vehicle was losing power and it eventually
stopped. When it stopped
the Hyundai vehicle reversed towards
their vehicle and stopped in front of their vehicle. Two men
alighted from the Hyundai
vehicle carrying a 5 litre petrol container
and a rifle. Those two men instructed them to alight. At
that stage the
driver, Mr Mphako had already been shot on the hip.
Mr Nqetho who was on the passenger seat alighted and ran across the
road.
The assailants shot Mr Nqetho and he fell across the
road. He also alighted and leaned against their vehicle.
Mr Mphako
had also alighted, at some point he had fallen somewhere in
front of the Hyundai.
[29]
Three men came towards him and instructed him to open the vehicle.
He went to the driver’s door and tried to open
it. When
he could not open it he turned around to the passenger side and
opened the driver’s door from inside.
After opening it
they returned to the driver’s side and pressed a button to open
the rear door. One of the robbers
got inside the back of the
vehicle where the vault was located. He later said that he was
unable to open the vault.
This was because the vault could only
be opened with a code that they had to obtain from their office.
It was Mr Mphako who
could ask their office for the code to open the
vault. Other assailants went to fetch Mr Mphako from where he
had fallen
and one remained guarding him. The man who was left
with him shot him in the leg.
[30]
When the assailants brought Mr Mphako they instructed him to phone
the office and ask for the code to open the vault.
The office
gave him a wrong code which could not open the vault. When the
robbery was taking place the Toyota Fortuner was
standing behind
their vehicle providing light to them. He managed to see one of
the assailants. The one who shot at
him was light in complexion
but he could not notice his height. That man’s face was
not covered and he had nothing
on his head. However, there was
no particular distinguishing feature that he noticed about that man
other than the complexion.
He added that he could identify that
particular assailant because at some point he was about two and a
half metres from him when
he noticed him. When this person shot
him he was standing waiting for the others to return with Mr Mphako
as they had gone
to fetch him so that he could ask for the code from
their office to open the vault. That assailant was facing the
Toyota
Fortuner when he shot him while he was between that assailant
and the Fortuner and its lights were on facing this person.
He
pointed at accused no.3 as the man who shot him on the 4 November
2015 during that robbery. He testified that police came
to him
at Dr Malizo Mpehle Hospital and took his statement and he told them
that he could identify the person who shot him during
that robbery.
He remained in hospital for about two months.
[31]
Under cross-examination he maintained that when the other attackers
left to fetch Mr Mphako the one remaining with him shot
him.
However, he would not say how much time he had of looking at the
person who shot him. The only time he saw him
was when he shot
him. It was at about 20:00 that evening when the robbery took
place and it was dark. The Toyota Fortuner
that provided light
was standing five to six metres behind the Fidelity Security Services
vehicle. He was leaning against
the side of their vehicle.
He insisted that the Fortuner provided sufficient light for him to be
able to identify the man
who shot him. It was the first time
that he saw that person at that moment in his life. He never
saw that person again.
Although he could identify him he was
never called to an identification parade by the police even though he
had told them that
he could identify him.
[32]
The next State witness was Mr Zola Mphako. He was the colleague
of Mr Mandoyi and he confirmed all his evidence on issues
that were
in any event not disputed on behalf of the accused. His
evidence did not add anything on the crucial issue of the
identity of
the assailants. Therefore, Mr Mandoyi’s evidence is the
only one on the basis of which the State contended
that accused
no.3’s application to be discharged in terms of section 174
should be refused. Count 12 is in respect
of the Tsitsa bridge
robbery. Count 13 is in respect of the murder of Mr Mnikelo
Nqetho who was shot and killed during that
robbery. Count 14 is
the attempted murder of one Yolisa Mlungwana about whom nothing was
said at all when the State witnesses
gave evidence. He also was
not called to testify. Count 15 is in respect of the robbery of
a Mercedes Benz vehicle
from Mr and Mrs Jama. Mrs Jama’s
evidence did not contribute anything in identifying any of the
assailants. Counts
16 and 17 are in respect of the unlawful
possession of firearms and ammunition during the robbery of Mr and
Mrs Jama’s vehicle.
The only evidence especially about
who the perpetrators were is that of Mr Mandoyi. Nothing else
links accused no.3 to the
incidents of the 4 November 2015 at or near
Tsitsa bridge other than Mr Mandoyi’s evidence. The
State’s case
in respect of accused no.3 must therefore be
determined on the issue of identification. More about that
later.
Accused
No.5
[33]
Accused no.5 has been indicted for a number of counts. He only
applied to be discharged in terms of section 174 in respect
of counts
12, 13, 14, 15, 16 and 17. The State opposed his application in
respect of all these counts. In opposing
accused no.3’s
application the State relied on a statement he made to Major Mtirara
which this Court had, at the end of a
trial-within-a-trial, ruled to
be admissible. All these counts are in respect of the Tsitsa
bridge robbery on the 4 November
2015. Accused no.5 made a
statement about that robbery to Major Mtirara. That statement,
in my view constitutes evidence
against him. Counts 16
and 17 are in respect of unlawful possession of firearms and
ammunition during the robbery at
Tsitsa bridge on 4 November 2015
during which Mr & Mrs Jama’s Mercedes Benz vehicle was
robbed from them and used as
a get-away vehicle. There is
evidence given by State witnesses that firearms were used during the
Tsita bridge robbery.
That said, I do not think that he has met
the criterion for a discharge set out in section 174, namely that
there is no evidence
on which he could be convicted if regard is had
to his statement.
The
evidence of identification in respect of accused no.3 and 6.
[34]
The evidence implicating accused no.3 and 6 in the Tsitsa bridge
robbery and St Barnabas Hospital robbery respectively is not
without
problems. The first problem is less about whether or not Mr
Mandoyi and Mr Vapi were reliable witnesses, an issue
I do not have
to determine at this stage. It might even very well be that
when they saw the two accused for the first time
almost four years
later in this Court it occurred to them that these were the men who
were part of the group that fired shots at
their vehicles and
attempted to kill them during those robberies. The issue is not
whether one has reason to doubt their
honesty or not. The issue
is whether that evidence, standing alone without any form of
corroboration whatsoever, can be said
to be sufficient for this Court
to say that it is the evidence on which, in the words of section 174
of the CPA it is “of
the opinion that the accused committed the
offences referred to in the charge or any offence of which they may
be convicted on
the charge.” In order for the legal
position on identification to be understood it behoves of this Court
to look at
the relevant case law. I will do so hereunder.
[35]
In this case the relevant State witnesses testified that they last
saw the assailants on the day and at the time and under
the
circumstances described earlier which were prevailing during the
attack almost four years before they testified in this Court.
They also testified that they were never called to an identification
parade. The second time they saw the accused was when
the
accused were in the dock, and they did the so-called dock
identification.
[36]
In
S v T
2005 (2) SACR 318
(E) Plasket J, as he then was, had
this to say on identification:
“
[11] Because
of the ever-present possibility of honest mistakes being made,
evidence of identification has to be treated with caution.
In
S
v Mthetwa
Holmes JA set out the proper approach as follows:
‘
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, evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or
such of them as are applicable in a particular
case, are not
individually decisive, but must be weighed one against the other, in
the light of the totality of the evidence and
the probabilities; see
cases such as
R
v Masemang
1950 (2) SA 488
(A);
R
v Dladla and Others
1962 (1) SA 307
(A) at 310C;
S
v Mehlape
1963 (2) SA 29
(A).’
[12] In these circumstances, the
identification parade is often of crucial importance. The
police officials who conduct identification
parades should comply
with a range of basic procedures so that the fairness of the
identification parade itself as an investigative
process, and the
reliability of the resulting identifying evidence, can be
guaranteed. In
R v Kola
Schreimer JA held as follows in
this regard:
‘
But
an identification parade though it ought to be a most important aid
to the administration of justice may become a grave source
of danger
if it creates an impression which is false as to the capacity of the
witness to identify the accused without the aid
of his compromising
position in the dock. Unsatisfactory as it may be to rely upon
the evidence of identification given by
a witness not well acquainted
with the accused, if that witness has not been tested by means of a
parade, it is worse to rely upon
a witness whose evidence carries
with it the hall-mark of such a test if in fact the hall-mark is
spurious. Of course an identification
parade is not necessarily
useless because it is imperfect. In some respects the quality
of the parade must necessarily be
a question of degree.’”
[37]
In this case no identification parade was conducted by the police for
whatever reasons. This is both in respect of the
Tsitsa bridge
robbery and the St Barnabas Hospital robbery of the Fidelity Security
Services vehicles. If it is indeed so
that Mr Mandoyi and Mr
Vapi respectively, clearly saw accused no.3 and 6 as they testified
in their evidence, it follows that they
should have told the police
who interviewed them shortly thereafter. If they told the
police that they could identify the
assailants they were able to see,
an identification parade was, in my view, the most logical step soon
after the accused were arrested.
To the extent that it was
suggested on behalf of the State during submissions in opposing the
section 174 applications, that an
identification parade could not be
held because Mr Mandoyi spent some time in hospital, photo
identification was clearly an available
option with all its
imperfections. This was also not done. Surely this would
have been better than nothing. The
results of such photo
identification could be weighed together with the rest of the
evidence tendered by the State.
[38]
In addition to both the identification parade and the photo
identification not having been conducted, the State wants this
Court
to accept as sufficient Mr Vapi’s identification of accused
no.6 in the St Barnabas Hospital robbery by referring to
his ears and
complexion. In the case of the Tsitsa bridge robbery Mr Mandoyi
did no more than referring to accused no.3’s
complexion,
nothing more. This manner of identifying a person who was seen
in circumstances in which the witnesses were under
gun fire is
fraught with obvious dangers that need no elaboration.
Furthermore, the five accused before this Court were not
the only
ones who were allegedly there during those robberies on some of the
evidence tendered by the State. This raises
the possibility
that had other assailants been apprehended and charged with the five
accused Mr Mandoyi and Mr Vapi might very
well have pointed at other
persons depending on the shape of their ears and their complexion.
The evidence of identification
of accused no.3 and 6 by these State
witnesses is clearly unreliable in my view.
[39]
The approach to a section 174 application has been commented upon and
authoritatively decided and firmly established by our
courts.
In
S v Lubaxa
2001(2) SACR 703 (SCA) Nugent AJA, as he then
was, stated the legal position as follows:
“
[18] I have
no doubt that an accused person (whether or not he is represented) is
entitled to be discharged at the close of the
case for the
prosecution if there is no possibility of a conviction other than if
he enters the witness box and incriminates himself.
The failure
to discharge an accused in those circumstances, if necessary
mero
motu
,
is in my view a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively
upon his self-incriminatory evidence.
[19] The right to be discharged at
that stage of the trial does not necessarily arise, in my view, from
considerations relating
to the burden of proof (or its concomitant,
the presumption of innocence) or the right of silence or the right
not to testify,
but arguably from a consideration that is of more
general application. Clearly a person ought not to be
prosecuted in the
absence of a minimum of evidence upon which he
might be convicted, merely in the expectation that at some stage he
might incriminate
himself. That is recognised by the common law
principle that there should be ‘reasonable and probable’
cause
to believe that the accused is guilty of an offence before a
prosecution is initiated (
Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A) at 135C – E), and the constitutional
protection afforded to dignity and personal freedom (s 10 and s 12)
seems to reinforce
it. It ought to follow that if a prosecution
is not to be commenced without that minimum of evidence, so too
should it cease
when the evidence finally falls below that
threshold. That will pre-eminently be so where the prosecution
has exhausted the
evidence and a conviction is no longer possible
except by self-incrimination. A fair trial, in my view, should
at that stage
be stopped, for it threatens thereafter to infringe
other constitutional rights protected by s 10 and s 12.
[20] The same considerations do not
necessarily arise, however, where the prosecution’s case
against one accused might be
supplemented by the evidence of a
co-accused. The prosecution is ordinarily entitled to rely upon
the evidence of an accomplice
and it is not self-evident why it
should necessarily be precluded from doing so merely because it has
chosen to prosecute more
than one person jointly. While it is
true that the caution that is required to be exercised when
evaluating the evidence
of an accomplice might at times render it
futile to continue such a trial (Skeen (op cit at 293)) that need not
always be the case.”
[40]
On a proper analysis of the relevant case law it is wrong, unusual
and a matter of grave concern to this Court that in respect
of some
of the charges in this matter an indictment was prepared obviously
following the investigation of those charges by the
police which led
to the arrest of the accused. All most four years after the
crimes were committed charges were put to the
accused. The
State simply closed its case without calling a single witness on such
serious charges as the murders referred
to in counts 3 and 4 which
according to the indictment, where committed in a public place.
The prosecution clearly decided
not to withdraw those charges because
in the words of Supreme Court of Appeal exactly twenty years ago in
Lubaxa
, “
a prosecution is not to be commenced without
that minimum of evidence….”
[41]
It is trite that once the accused pleads to the charges the case can
no longer be withdrawn and the accused must be acquitted
if the
evidence falls below the minimum threshold for charging him in the
first place. In this case in respect of the murders
in counts 3
and 4 in particular, it is not even a question of evidence having
been led and evaluated by this Court and found to
be insufficient or
weak for a conviction. It is a case of no evidence being led at
all. Courts must not be placed in
an invidious position of
acquitting an accused who should not have been charged or against
whom charges ought to have been withdrawn
at the appropriate stage.
Why those charges were not properly investigated or why the
accused was required to plead when
the prosecution ought to have
known that there was no evidence at all is mind-boggling. The
nagging feeling that in putting
the charges to the accused the
prosecution was going through the motions becomes unavoidable in the
circumstances.
[42]
In the result and on the trite principles of our law on the approach
to a discharge application in terms of section 174 of
the CPA some of
the accuseds’ applications must succeed and some must fail as
set out below.
[43]
Therefore I make the following orders:
1.
Accused no.1
1.1 Accused no.1’s
application to be discharged in terms of s 174 of the CPA in respect
of count 3, the murder of Mr Kuzo
Andrea Mapipa, count 4, the murder
of Mr Yamkela Zoya, count 5, the unlawful possession of firearms
during the commission of count
3 and count 4, count 6, the unlawful
possession of ammunition when count 3 and count 4 were committed,
count 8, the attempted murder
of Mr Kwanele Vapi, count 9, the
attempted murder of Mr Mpumezi Mlenga, count 10, the unlawful
possession of firearms when the
St Barnabas Hospital robbery was
committed and count 11, the unlawful possession of ammunition when
the St Barnabas Hospital robbery
was committed is granted.
1.2 The application of
accused no.1 for his discharge in terms of section 174 of the CPA in
respect of counts 16 and 17, the unlawful
possession of firearms and
ammunition when the Tsitsa bridge robbery was committed during which
Mr and Mrs Jama were also robbed
of their vehicle is refused.
2. The application by
accused no.2 to be discharged in terms of section 174 of the CPA in
respect of counts 1, 2, 12, 13, 14, 15,
16 and 17 is granted.
3. The application by
accused no.3 for his discharge in terms of section 174 of the CPA in
respect of counts 1, 2, 12, 13, 14, 15,
16 and 17 is granted.
4. The application by
accused no.5 to be discharged in terms of section 174 of the CPA in
respect of counts 12, 13, 14, 15, 16 and
17 is refused.
5. The application by
accused no.6 to be discharged in terms of section 174 of the CPA in
respect of counts 7, 8, 9, 10, 11, 12,
13, 14, 15, 16 and 17 is
granted.
6. The matter is
postponed to the 17 January 2022 at 09h00 in Butterworth circuit
court.
___________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: M.L. MAKUBALO
Instructed
by
: NPA
MTHATHA
Counsel
for Accused No.1 and 6: H.J. PORTGIETER
Instructed
by
: GROENEWALD ATTORNEYS
GAUTENG
Counsel
for Accused No. 2: S. KEKANA
Instructed
by
: LEGAL AID BOARD
MTHATHA
Counsel
for Accused No.3 : M. SAKWE
Instructed
by : LEGAL AID BOARD
MTHATHA
Counsel
for Accused No. 5 : F. NGXUKUMESHE
Instructed
by: LEGAL AID BOARD
MTHATHA
Heard
on : 06 August 2021
Delivered
on : 17 September 2021