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[2021] ZAECMHC 38
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S v Songca (CC26/2018) [2021] ZAECMHC 38 (11 November 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. CC26/2018
In the matter between:
THE STATE
VS
ODWA
SQANDULO SONGCA
JUDGMENT
JOLWANA J
Introduction
[1] The
accused was indicted in this Court on four charges being the pointing
of a firearm in contravention of
the
Firearms Control Act 60 of 2000
,
murder, possession of an unlicensed firearm and possession of
unlicensed ammunition in contravention of various provisions of
the
Firearms Control Act. The
incidents to which the charges arose,
according to the indictment, occurred on the 7 April 2018 at night in
the town of Mount Frere
on the N2 national road.
Summary of substantial
facts.
[2] The
summary of substantial facts attached to the indictment and provided
to the accused in terms of section
144(3) (a) of the Criminal
Procedure Act 51 of 1977 (the CPA) read as follows:
“
1.
On
the 7 April 2018 at about 12 midnight the deceased was driving his
motor vehicle, to wit, Toyota corolla with registration number
FN15NZ
GP when he parked it in front of other vehicles on the main street,
Mount Frere village, Mount Frere.
2.
The
accused was sitting in one of the vehicles parker behind the deceased
when on seeing the deceased arriving, he remarked, “
Here is
this dog
” referring to the deceased.
3.
Earlier
on the accused had complained to his friends and witnesses that the
deceased who is a policeman and one of his colleagues
are giving him
hard times in his criminal activities and that he would kill them.
4.
The
accused even showed his friends and witnesses a firearm that he would
use to kill these police officials.
5.
As
the deceased was still sitting in the driver’s seat, the
accused approached him from his side and fired several shots at
him
killing him.
6.
The
accused then ran away.
7.
The
deceased died as a result of “
Gunshot wound of the head
.”
[3] The
court was further advised that certain admissions in terms of section
220 of the CPA have been agreed by
the State and the defence. They
read thus:
“
1.
That
the deceased in this case was at all material times correctly
identified as
PHUMZILE MICHAEL NTANDO
,
being the male person mentioned in the indictment.
2.
That
DR MXOLISI GCWABE
conducted the post mortem on the body of the
above-mentioned on the
10
th
of April
2018
.
3.
That
the body of the deceased suffered no further injuries from the time
of the alleged offence up to the time that the post-mortem
aforementioned was conducted on his body by
DR MXOLISI GCWABE
on the
10
th
of April 2018
.
4.
That
on the date aforementioned
DR MXOLISI GCWABE
correctly noted
his findings on the post-mortem report per
Death Register No.
93/2018
in accordance with the examination on the body of
PHUMZILE MICHAEL NTANDO
.
5.
That
the cause of death of the deceased,
PHUMZILE MICHAEL NTANDO
,
is as indicated on the post-mortem report, to wit ‘
GUNSHOT
WOUND ON THE HEAD’
.
6.
That
the photo album together with the key to it with Reference Number:
39/04/2018
depicts a correct view of the scene of crime”.
The
case for the State.
[4] The
accused who was, throughout, legally represented, pleaded not guilty
to all the charges. His legal representative
advised this Court that
he would not be disclosing the basis of his plea of not guilty.
[5] The
State called its first witness Simthandazile Njence. He testified
that he resides at Lubhacweni Administrative
Area in the district
Mount Frere. He knows the accused from the taxi cabs that they drove
in that town ferrying passengers and
they were also friends. On the
night of the incident he was driving a taxi cab which was a white
Jetta 4 at about 23:00. He approached
Bongani who was in his green
Toyota Tazz near or opposite Buco Hardware on the main street in
Mount Frere and placed his finger
on his neck. There were street
lights that provided enough light in the area. At that stage the
accused cocked a firearm and pointed
it at him. The accused was
inside Bongani’s car with others at that time. He could not see
what type of a firearm that was
but it was a small firearm. He
thought that the accused was playing with him and they laughed it off
and left it at that whereafter
the accused put his firearm back.
[6] Thereafter
a white motor vehicle arrived and parked in front of Bongani’s
vehicle. At that time he was
still standing near the driver’s
window outside Bongani’s vehicle. This was a security vehicle
branded with Mount Red
Security branding branded in red. The accused
uttered the words, “
here is this dog
” when that
vehicle arrived. He knew the owner of that vehicle but at that stage
he did not see who was driving it. Bongani
said he wanted to go home
to his wife and he left. He also went to his own vehicle which was
also parked there. Some 15-30 minutes
later he heard gunshot sound
near deceased’s vehicle which was that Mount Red Security
vehicle. That vehicle was parked about
three vehicles away from where
he was and the shooting happened in front of him, not behind him.
After the shots were fired he
saw the accused crossing the road
towards SSS bottle store running. Nobody was chasing the accused. He
heard that Mr Ntando had
been shot and killed in that area the
following morning.
[7] under
cross-examination Simthandazile testified that there were many people
who came out of the car wash tavern
after the shooting. He confirmed
that he did not see who shot the deceased as he was not able to see
the person who shot the deceased
from where he was. He just saw the
accused running across the road immediately after the shots were
fired. On that basis he assumed
that it was the accused who had fired
the shots. He disputed it when it was put to him that the accused
would say that he never
saw him that day. He also insisted that the
accused had uttered the words “
here is this dog
”.
He testified that he did not make any statement to police about being
pointed with a firearm because at the time he thought
that the
accused was playing with him. He heard the following morning that it
was the accused who shot the deceased. He maintained
that the accused
pointed him with a firearm. He also confirmed his evidence that he
never said the accused shot the deceased, he
only said he saw him
coming from where the deceased’s vehicle was running across the
street.
[8] When
he was re-examined by the prosecutor he testified that people came
out of the tavern after the shots were
fired. However, there were no
people at the place of the shooting at the time of the shooting.
Immediately after the shooting he
saw the accused running across the
street before people came out of the drinking place in the car wash.
He further disputed the
accused’s version that he never saw him
that day. He testified that Bongani was sitting in the driver’s
seat of his
vehicle. Siseko, the accused and another slender person
and Qetse were sitting in that vehicle. Bongani’s vehicle’s
window was opened and he was standing outside the window. The accused
was in the back seat but he was not sure whether the accused
was
sitting in the middle or behind the driver’s seat on the right
hand side. When Bongani said he wanted to go home, the
accused and
the others who were in the vehicle got out of the vehicle and Bongani
left. He returned to his vehicle where he was
with Asanda. He had
known the accused for a year and they also used the same mechanic to
repair their taxi cab vehicles.
[9] The
next witness for the State was Bongani Mkoko. Bongani testified that
he stayed in Mount Frere. He was in
town on the night of the 6 or 7
April 2018. He knocked off from work at about 17:00. He then took a
young man called Thabo with
him and they went to see his girlfriend
at her place. He came out from his girlfriend’s place at about
22:00. As they drove
past the car wash on the main street he heard a
person calling his name. He stopped his vehicle and parked on the
side of the road.
He realized that the person calling him was Qetse
who opened the near door and entered the vehicle. The accused and
Siseko also
came inside his vehicle. The accused said he needed his
assistance regarding a vehicle engine. He said he had bought a
vehicle
from one Makiyoyo that needed an engine. He told the accused
that he did not know anyone with that engine.
[10] Simthandazile
arrived and put his finger on his neck and he turned to look at him.
At that stage he heard
a clicking sound and saw the accused hiding
something. He then said to the accused he must not use a toy to scare
them. This was
with reference to the cocking sound. It was dark in
the vehicle but what he saw seemed like a firearm or a toy of a
firearm. A
vehicle from Mount Red Security Services arrived and
parked in from of his vehicle. The accused then said “here is
this dog”
or “here comes this dog”. He reprimanded
him not to say that in his presence about another person. He told
them to
get out of his vehicle because he wanted to go home. The
Mount Red Security vehicle was driven by the deceased and he did not
know
whether he was alone in his vehicle. He did not remember whether
the street lights in that vicinity were working but there were
lights
from other vehicles. He explained that that place near which they
parked their vehicles was a car wash and people danced
and consumed
liquor there. He and Thabo left after accused and others got out of
his vehicle. No shooting had occurred when he
left.
[11] Under
cross-examination he testified that when he parked his vehicle it was
dark. Where the deceased’s
vehicle was parked there were no
lights and the lights of his own vehicle were off. Only the lights of
the deceased’s vehicle
were on. It was put to him that the
accused admitted being with him that night at about 22:00. He
testified that he does not drink
alcohol and he was coming from his
girlfriend’s place when somebody shouted his name which was why
he stopped his vehicle.
He insisted that the accused did utter the
words “here is this dog” or words about a dog referring
to the owner of
the security vehicle which had just parked there. He
testified that he did not see the accused shooting the deceased. He
only heard
the following day that a person was killed in that
vicinity.
[12] The
next State witness was Yanga Qetse Mayitshe (Qetse). He testified
that he resided at Lubhacweni Administrative
Area before he was
placed in the witness protection programme. He got to be placed in
the witness protection programme after it
was alleged that the
accused’s friends wanted to kill him because he witnessed it
when he killed the deceased. The trial
delayed and in the meantime he
received an ancestral calling. Because of his ancestral calling he
requested to be discharged from
the witness protection programme. He
now no longer resides at Lubhacweni. He now resides in Kwa-Zulu
Natal.
[13] On
the night of the 7 April 2018 he was in town in Mount Frere. He was
with the accused in Bongani’s
vehicle with Siseko as well. It
was at night. He got out of that vehicle and went to buy himself
tobacco. When he returned he realized
that the vehicle was full. He
then went to the car wash which is a drinking place. He did not get
the tobacco at the car wash and
went to look for it at the garage. As
he got out of the car wash the deceased’s vehicle was parked
under a tree and he noticed
that the deceased was busy on his phone.
At that time he was walking past the vehicle on his way to the
garage. He already knew
the deceased as a police officer in Mount
Frere. The engine of the deceased’s vehicle was running and the
headlamps were
on and the security vehicle lights on the vehicle were
also on. There were also street lights there providing enough light.
When
he looked back the accused appeared from behind. He then rushed.
This was because he saw the accused carrying a firearm which was
a
pistol. Thereafter he heard gunshot sounds. The accused was shooting
the deceased. When the deceased was shot he was sitting
in his
vehicle in the driver’s seat. He was alone in the vehicle. He
was shocked and he did not know how many shots were
fired but it was
more than one shot. Thereafter the accused went across the street
running. People came from the car wash asking
if he was not the one
who shot the deceased. While they were sitting in Bongani’s
vehicle earlier with the accused they were
all having a general
conversation. He saw the accused carrying a firearm in Bongani’s
vehicle. When Simthandazile arrived
the accused cocked the firearm
and pointed him with it. When the deceased arrived he had not yet
arrived. He did not hear anyone
saying “
here is this dog
”.
[14] Under
cross-examination he testified that at the time he was sitting inside
Bongani’s vehicle with others
he never heard anybody making any
remark about a dog. When he went to buy himself some tobacco it was
before the shooting. When
he returned to the vehicle he was told that
the vehicle was full. He testified that he saw the accused shooting
the deceased. He
was about 12 metres from the vehicle of the deceased
and there were street lights there. There were also lights coming
from the
deceased vehicle. He could see the accused shooting the
deceased because of the street lights and the vehicle lights. It was
put
to Qetse that the accused never came out of his vehicle. Qetse
testified that he saw the accused walking up the street behind him.
He maintained that he saw the accused shooting the deceased. He also
testified that he did go to the car wash where he consumed
alcohol.
It was very late at about 23:00. Even though he did consume alcohol
he could still appreciate what was going on. He further
confirmed
that earlier the accused had pointed a firearm at Simthandazile. When
it was put to him that he could not have seen the
shooting because
there was no sufficient light there for him to identity the accused,
he testified that there was sufficient light
where the shooting took
place. He already knew the accused from taxi cabs and he had known
him for a long time although they did
not usually hang out together.
[15] The
next witness for the State was Thabo Phikwa. He testified that he
resides at Lubhacweni in Mount Frere
and he knew the accused through
Bongani. At the time he had known the accused for about two years. On
Friday the 6 April 2018 he
was in Bongani’s vehicle at about
18:00 or 19:00. They were going to Bongani’s girlfriend. At a
certain point when
they were near SSS car wash on the main street in
Mount Frere the accused came with Siseko and they set at the back
seat. He was
sitting in the front passenger seat. There was a general
conversation about something the accused wanted from Bongani relating
to a vehicle engine. After a shot while the deceased’s vehicle
arrived and parked a distance behind them. The deceased alighted
and
came to Bongani’s car and they spoke through the window. The
vehicle lights in the deceased vehicle were on. He did not
notice if
the street lights were on or not. He knows Simthandazile and he saw
him that night. He came to Bongani’s vehicle
and had a
conversation with them. The accused uttered some words saying “
here
is this dog
”. He was not sure if the deceased had already
come to Bongani’s vehicle and returned back to his vehicle when
these
words were uttered. He did see a firearm being taken out by the
accused as though he was playing with it. It was a 9mm pistol. It
was
black in colour. However, he did not see anyone being pointed with a
firearm. The person who was carrying a firearm was the
accused. He
was sat in the front passenger seat and because of that he did not
notice the person the accused was playing with a
firearm with. He
heard a clicking sound as though the firearm was being cocked. He was
not there when the shooting took place because
he had already left
with Bongani.
[16] Under
cross-examination he testified that while he was present he did not
see the accused pointing a firearm
at anyone. However, the accused
did play with a firearm.
[17] The
State called sergeant Mvinjelwa, a police officer stationed in Mount
Frere. She testified that she was
a constable at the time of the
incident. She was on duty at the Community Service Centre at Mount
Frere police station on the 7
April 2018. Her superior asked her and
constable Giwu to attend to the crime scene. They went to the crime
scene and found the
deceased’s vehicle engine running on the N2
in the main street in Mount Frere opposite Buco Hardware. The
deceased was sitting
in the driver’s seat with blood on his
neck. He had a number of bullet wounds on his upper body. She saw
about seven empty
cartridges close to the vehicle and two other empty
cartridges a short distance from the vehicle. Those were cartridges
of a 9mm
pistol. She called the emergency services who confirmed that
the deceased was dead. She called the Local Criminal Record Centre
and a photographer came and took photos and collected exhibits. When
the deceased’s body was being taken out of the vehicle
she
noticed his firearm between his thighs. It was a 9mm State issued
firearm with one magazine and 15 live rounds of ammunition.
The
detective had also come to the crime scene and the body of the
deceased was taken away by Forensic Services.
[18] Under
cross-examination sergeant Mvinjelwa testified that when she arrived
at the crime scene the street lights
were on. She did not see who
shot and killed the deceased. The deceased was a police officer at
Mount Frere police station and
was a sergeant. The deceased’s
vehicle was branded with Mount Red Security Services branding in red.
The vehicle had a red
security light on top and its lights were on.
[19] The
next witness for the State was Taruni Vumazonke. He testified that he
resides at Mount Frere. He knows
the accused as his customer as he is
a vehicle mechanic. The accused used to take his vehicles to his
workshop for repairs. He
met the accused for the first time in 2017
which was at about the time he opened his workshop. The accused would
bring his vehicles
to him for repairs from time to time. One of his
other customers was the deceased and sometimes the accused and the
deceased would
arrive at the workshop about the same time. The
accused and the deceased knew each other. On one occasion he was at
the deceased’s
place near Ludidi building where he stayed. He
was fixing the deceased’s vehicle. The accused saw him there
and stopped his
vehicle and approached him. He did not notice any bad
relationship between the accused and the deceased and they were
chatting
about some woman. The deceased later brought up the issue of
a woman called Andisiwe and he got the impression that he was jealous
of the relationship she had with the accused.
[20] On
one occasion the accused came to his workshop with Simthandazile.
They were just visiting him. He noticed
some tension between them but
he thought they were just jealous of each other as they were both in
the taxi cab business. One time
the accused came to his workshop. He
saw a small firearm carried by the accused although he was not sure
if it was a real firearm.
It was a black small firearm. It had a
police badge on it. The accused was inside a vehicle with one Sifiso
that evening. He himself
was outside the vehicle. There were lights
that were on there. There was a grinder at his workshop which he
shared with Sifiso
who did panel beating on vehicles. The grinder was
being used in that vehicle to grind the firearm. He knows the police
officer
called Gripa.
[21] One
day the accused once came to his workshop with Simthandazile. The
accused asked him to look for the deceased
who was already his
client. The accused did not tell him why he needed the deceased. He
did not look for the deceased as the accused
had asked. When he met
the deceased he told him that the accused was looking for him.
However, the deceased was dismissive and
did not take it seriously
saying he was not afraid of the accused. He later received a phone
call from the accused asking him to
fetch him near Spar in town. When
he met the accused the accused enquired if he had found the deceased
and he said no. He said
no because he had realized that the accused
had a bad attitude towards the deceased.
[22] Under
cross-examination he testified that the accused did come to his
workshop carrying a firearm. It was
put to him that the accused would
testify that he never asked for a grinder from his workshop. Mr
Vumazonke testified that the
accused got the grinder from his
colleague Sifiso. He assumed so because he shared that grinder with
Sifiso and the accused did
not get it from him. When he was
re-examined he testified that when the grinder was used on the
firearm he assumed that it was
being used to file-off the serial
number of the firearm as the vehicle the accused was in with Sifiso
did not need a grinder.
[23] The
next witness called by the State was warrant officer Maliwa. On the
day of the incident he received a
call from captain Latsha who told
him that the deceased had been shot and killed and asked him to go to
the crime scene. This was
in the morning and he found sergeant
Mvinjelwa who was then a constable already at the crime scene. He saw
the deceased’s
car and his bullet riddled body. There were
empty cartridges around the crime scene. The deceased’s vehicle
was branded with
Mount Red Security branding and had security lamps
on top. The deceased was in the driver’s seat but he could tell
on how
his body was leaning aside that he was no more. There were
many empty cartridges of a 9mm pistol at the crime scene.
[24] After
the crime scene had been worked on captain Latsha constituted a team
of detectives to investigate the
case and he was part of that team.
In the process of the investigations they received information that
it was the accused who had
shot and killed the deceased. Because of
the information they received they called the accused for questioning
about three days
after the incident. He had come to the police
station to report as one of his bail conditions for another matter on
which he had
been released on bail. They asked to see him as a team
and questioned him about the allegations of his involvement in the
murder
of the deceased. The accused denied any involvement in the
deceased’s murder or knowledge about it. They then asked him if
he was in the Mount Frere area at the time of the incident especially
on Friday. He told them that indeed he was in Mount Frere
to sign for
his bail. After signing at the police station he immediately returned
to his place of residence in Mthatha at about
18:00. He insisted that
at about 18:00 he returned to Mthatha.
[25] They
then took his details including his phone number told him that they
would contact him if they needed
him again. He gave them an 063
number which he said it was his number and told them that his phone
was always with him. They then
let him go on the understanding that
they would call him again on that number if necessary. They continued
with their investigations
and witnesses told them that it was the
accused who killed the deceased. They obtained a court order in terms
of section 205 of
the CPA to obtain his billing information from his
cellphone network service provider. They intended to check from the
billing
information his whereabouts at the time of the incident as he
had told them that he had left for Mthatha after signing for his
bail. The billing information revealed that at the time of the
incident he was still in Mount Frere from the afternoon of that day
until about 1:00am when, according to the billing information, he
returned to Mthatha.
[26] The
investigations continued and they received information that the
accused seen around the crime scene playing
with a firearm. One of
the witnesses called Qetse told them that he saw the accused shooting
the deceased. Another witness, Siseko
Gontshi told them that the
accused called him in the morning after the incident and told him
that he had shot and killed the deceased.
They took Siseko’s
cell phone number and applied for another section 205 order on
Siseko’s number. The billing information
revealed that indeed
the accused and Siseko spoke for some minutes around the time of the
incident. They continued with their investigations
and received
information that the accused had visited a traditional healer at
Kwa-Bhaca called Ayanda Mtongana. They went to see
the traditional
healer who told them that the accused visited him asking to be
cleansed because he had killed the deceased. They
thereafter used the
accused’s number to obtain another section 205 order to obtain
billing information of the accused. This
was to confirm if on the day
referred to by Mr Mtongana the accused had communicated with him. The
billing information revealed
that the accused had telephone contact
with Mr Mtongana and that he ended up at Mr Mtongana’s area
where he spent about 30
minutes. The billing information also showed
him going back to Mthatha. That gave them confidence in the
information they got from
their witness especially because the
accused had confirmed to them that his cellphone was always with him
and he did not lend it
to anyone else.
[27] They
then called the accused and went to his brother’s house in
Mthatha where they arrested him. After
they explained the
constitutional rights to the accused he opted to remain silent. They
had obtained a search warrant. They searched
at his place of
residence for the murder weapon. However, they did not find it and
that firearm has to date not been found. The
accused was detained at
Mount Frere police station and when he appeared in court he applied
for bail which was ultimately refused.
[28] Further
investigations revealed that a police officer who was stationed at
Mount Frere police station, Mr
Jijana, who was also called Gripa
spent time and consumed alcohol with the accused. At some point his
firearm went missing and
they believed that it had been used in
killing the deceased as the they believed that deceased was killed
with a police firearm.
They also received information that the
accused had asked to use a grinder and filed off a serial number of a
firearm which he
carried on that day and that it was a police
firearm.
[29] Warrant
officer Maliwa further testified that the deceased was one of their
best detectives. Before he was
murdered he had been investigating
some of the cases for which the accused had been arrested. The
deceased was going to testify
in those case against the accused. They
believed that he was killed to silence him. Those cases were Mount
Frere CAS 147/09/2017
which was in respect of a suspected stolen
property which was the engine of a motor vehicle. The second case was
Mount Frere CAS
109/12/2015 which was in respect of vehicle
hijacking. The deceased was going to testify against the accused in
those cases and
that caused bad blood between the accused and the
deceased.
[30] After
the accused was arrested for this case one of the witnesses in this
case told him that he was being
sought by the accused’s friends
who wanted to kill him. He then put the said witness in a witness
protection programme. The
accused had also called some of the
witnesses and tried to dissuade them from testifying even though he
was in custody and therefore
he should not have a cellphone while in
custody.
[31] The
last witness for the state was Ayanda Mtongana. He testified that he
is self employed as a traditional
healer. He knows the accused. He
also knew the deceased during his life time as he used to see him and
he was aware that the deceased
was a policeman. On 12 April 2018 he
was at home at around 13:30 and he was busy consulting with his
clients or patients. The accused
arrived at his home and told him
that he had killed the deceased, Mr Ntando. He told him that he
killed him with a firearm. When
he told him all this they were
sitting inside a vehicle at his home and it was just the two of them
in the vehicle. This information
perturbed him so much that he phoned
the police and told them what the accused told him. Police later came
to him and obtained
a statement. He testified that he had assisted
the accused in respect of another case which involved vehicle theft
but he did not
know if the accused actually won that case. Under
cross-examination Mr Mtongana confirmed that he had been visited by
the accused
who told him that he had shot and killed the deceased.
When the accused told him that he had killed the deceased he became
emotional.
He was perturbed because a few months earlier his own
brother had been shot and killed. He became so emotional that on that
day
he could not continue consulting with his other patients. After
his evidence the state closed its case.
The case for the
accused.
[32] The
accused took to the witness stand and testified on his behalf. He
started his evidence by explaining that
on the 7 April 2018 he was
not in Mount Frere and that he was at his place of residence in
Mthatha. However, or 5 April 2018 he
proceeded to Mount Frere in
order to sign for his bail. He arrived at Mount Frere police station
and signed. He has a taxi cab
business in Mount Frere. He went to
town after signing at the police station. It was in the afternoon.
There was a car wash in
Mount Frere and there were many people in the
car wash area. It appeared that there was going to be an event at the
car wash. He
decided to stay on for the event. He phoned Siseko to
come and assist him with his cab. They stayed in Mount Frere until
very late
ferrying people who needed transport. At some point Bongani
arrived while he was talking to Siseko about a vehicle engine. The
time was about 22:00 and it was dark there and there were trees in
that area. Bongani parked in front of his vehicle. There was
also a
white Jetta driven by Simthandazile which was parked behind him. He
came out of the car wash to chat with Siseko and they
chatted next to
his car. Bongani did not alight from his vehicle and they went him.
While they were in Bongani’s car Qetse
knocked on the window
and got into the back seat of Bongani’s vehicle. At that time,
he was talking to Bongani about a vehicle
engine for his polo vehicle
which needed an engine. Siseko alighted leaving Qetse in the vehicle
and he also alighted because Bongani
said that he was going home to
his wife.
[33] He
and Siseko went to the car wash where his vehicle was parked. The car
wash was full with many vehicles
coming in and out of the car wash.
He then heard gunshot sounds. They looked and noticed that the
gunshot sound was coming from
town along the main road. They saw
people looking and worried. They could not see where exactly the
shooting was taking place.
After that he got into his vehicle to take
people to Badibanise location in Mount Frere. The time was about
23:00. When he returned
to town there were many people getting into
and out of the car wash. The car wash was a drinking place and it was
full of people.
There were other cars that were parked outside the
car wash even on the right hand side of the road. There were two
taverns there,
the car wash and another one called SSS. There were
many people roaming around the area.
[34] He
saw the security vehicle which was driven by the deceased. Bongani
parked his vehicle and after that the
deceased arrived. His vehicle
had a red security light on top. He parked his vehicle in front of
Bongani’s vehicle. He was
inside Bongani’s vehicle when
the deceased arrived. He did not see the person who fired the shots.
As they were inside the
car wash they heard the sound of gun fire and
they were all asking as to what was going on. He was at the car wash
when he heard
the gunshots. Bongani had already gone for some time by
then. He was with passengers taking them to Badibanise location. When
the
shots were fired he was already inside his car. He did not see
where the shooting was taking place. When he was with his colleagues
in Bongani’s vehicle he was not armed. Even when he was in his
own vehicle he was not armed as he is not into arming himself.
He
denied shooting the deceased.
[35] He
testified that he was born in Mount Frere and he grew up in Mount
Frere. He drove in Mount Frere quite
regularly. There were no street
lights there that day and it was dark. He knows Mr Mtongana and he
knows him as Makhosi. He would
go to Mr Mtongana’s place to
deliver people or Mr Mtongana’s clients to his place from town.
He denied that he ever
went there and told Mr Mtongana that he had
killed a person. When he went there he had taken his passengers there
who were Mr Mtongana’s
clients. He does not even believe in
traditional medicine. He would therefore not have asked for medicine
from him. He denied pointing
a firearm to anyone and he denied
killing the deceased.
[36] Under
cross-examination by the prosecutor the accused insisted that this
incident happened on 5 April 2018
at night. He could not explain why
it was not put to State witnesses that the incident did not happen on
07 April 2018 but it happened
on 5 April 2018. He could only
incoherently say that he always knew that he would get his
opportunity to say that the incident
happened on 5 April 2018. He
insisted that on 7 April 2018 he was not in Mount Frere but he was in
Mthatha.
[37] He
further testified that on the day of the shooting he was in Mount
Frere. He did not dispute that he was
in Mount Frere on the night the
deceased was killed. He testified that the shooting occurred at about
23:00 on 05 April 2018. The
reason he checked the time was because he
wanted to leave. As he was looking from his car he did not see anyone
carrying a firearm.
They also did not know who was shooting and they
were all concerned at the car wash about the shooting. He heard for
the first
time when warrant officer Maliwa testified in this court
that the deceased was investigating cases involving him. The police
officers
he knew were investigating his cases were Mr Gonya and Mr
Mayitshe from Mthatha Vehicle Theft Unit which is also called group
46
in Mthatha. In those cases he was accused of taking his
girlfriend’s car and another one was in respect of possession
of
a suspected stolen engine.
[38] The
accused could not explain under cross-examination why his version was
never put to warrant officer Maliwa.
He also could not explain why he
never placed his version on record when he gave his evidence in
chief. He, however, insisted that
warrant office Maliwa lied in his
evidence. He testified that he never saw Simthandazile on that day.
It was therefore a lie that
he pointed him with a firearm because he
just never saw him. He could not explain why he never testified that
the charge of pointing
Simthandazile with a firearm could not be
sustained on the basis that he never even saw him that day. He also
denied Simthandazile’s
evidence that when the deceased arrived
he uttered the words, “
here is this dog
” and he
described it as a lie. He explained that he and Simthandazile were
not in good terms. This he said was because Simthandazile
was
employed while he owned his cab taxis. Simthandazile’s gripe
was that he was working harder than him and said that he
should also
have only one taxi cab.
[39] He
also disputed Simthandazile’s evidence that he saw him running
across the street towards SSS after
the shots were fired. On Qetse’s
evidence that he saw him shooting the deceased he testified that
Qetse was lying although
he did not know why he lied. He further
explained that Qetse had consumed liquor and therefore was drunk.
Furthermore, it was dark
there. He, however, could not explain why it
was never put to Qetse that he was drunk. He further testified that
he would not dispute
that Qetse was put in a witness protection
programme. He explained that there was a time when he was in the same
cell as Qetse.
If he wanted to do anything to him he would have done
it then. He thought that Qetse was promised money because a reward of
R50 000.00
for anyone who came with information was advertised.
[40] He
disputed Mr Mtongana’s evidence that he was his patient or
client. He only went there to bring to
Mr Mtongana’s place
people that were his clients. He called Mr Mtongana before he left
Mthatha. It was the customers of his
cabs who would call him and ask
him to take them to Mr Mtongana. The accused also disputed Mr
Vumazonke’s evidence that he
came to his place carrying a
firearm. He further said that if that was true Mr Vumazonke should
have reported that to the police
before a person got killed. He never
used any grinder there and further said that Mr Vumazonke made up the
grinder story.
[41] The
accused’s legal representative indicated that the accused
intended to call two witnesses, Siseko
Gontshi and Anathi Nkompela
and that the accused need to be assisted by the state in getting
those witnesses to come and testify
for the accused. The prosecutor
indicated that as the defence would have realized, Mr Gontshi was in
the list of the witnesses
the State had intended to call. However, he
could not be called because he could not be found by the police. It
was reported that
he had left Lubhacweni to look for employment
elsewhere and his whereabouts were unknown. For this reason, the
State could not
call him.
[42] With
regards to Anathi Nkompela Mr Ntikinca agreed on behalf of the
accused that it would be sufficient if
his statement was handed up as
an exhibit by agreement. Accordingly, his statement was indeed handed
up by agreement and calling
him was dispensed with. The reading of
Anathi Nkompela’s statement does not reveal anything
significant. In any event like
some of the state witnesses he did not
see who shot the deceased. Briefly in his statement he said that he
noticed the vehicle
from Mount Red Security which was parked on the
N2 main street in Mount Frere. He was on duty on that day the 7 April
2018 as a
security guard under the employ of Vukeza Security. He was
posted at Buco Hardware. The street lights were not working and it
was
dark. The lights at Buco Hardware were also not working. He heard
some gunshots while doing patrols. He saw a person standing next
to
the door of the Mount Red Security vehicle and shots were fired and
he ran away. After the shooting the shooter came towards
Buco running
and he decided to hide. In shot Mr Nkompela did not see who the
person who shot the deceased was because, according
to his statement
it was dark as the street lights were not working. The handing in of
Mr Nkompela’s statement marked the
end of the defence case.
The analysis of the
evidence.
[43] The
statement of conveyance of the body of the deceased submitted in
terms of section 212(4)(a) the CPA indicates
that the body of the
deceased was removed from the crime scene by forensic services
officials on 7 April 2018. Similarly the affidavit
by warrant officer
Dlamini, the Local Criminal Record Centre official who attended the
crime scene indicates that she attended
at the crime scene at 08:30
on 7 April 2018. These documents therefore make it clear that the
deceased was killed during the night
of the 6 April 2018 or the early
morning of the 7 April 2018. The accused confirms being in the area
of the crime scene on the
night the deceased was killed although he
denies being involved in his killing. Therefore, his insistence that
this would have
been on or about 5 April 2018 cannot possibly be
true.
[44] The
evidence of State witnesses is consistent that since about 2017 to
2018 the accused had been in possession
of a small firearm, possibly
a 9mm pistol. Whether or not it is the firearm that was used in the
commission of the offences in
this matter remains unclear. There is
no evidence from the State beyond mere suspicion as to whether or not
it is the same firearm
that he had in 2017 or the same firearm that
the accused was apparently seen using a grinder to file off the
serial number as some
of the evidence of the State seems to suggest.
This brings me to the events of the night of the 6 going to the 7
April 2018.
[45] It
is common cause that during the night of the 6 April 2018 the
accused, Bongani, Simthandazile, Qetse, Thabo
and possibly another
person or others were together on the main street in Mount Frere at
some point. Some of these people either
owned or drove taxi cabs in
Mount Frere while others were just friends or acquaintances of
others. While in his vehicle Bongani
saw what he believed was a
firearm carried by the accused and heard it making some cocking
sound. The said firearm was also seen
and heard making a cocking
sound by Thabo. I must say I sensed some reluctance on the part of
these witnesses to directly implicate
the accused while they tried to
testify about what they clearly saw. But some of them did testify
that they saw him having in his
possession what they believed could
either be a firearm or a toy. What the accused did with it led to
Bongani cautioning the accused
not to scare them with a toy. In his
evidence Bongani did not say that what he saw the accused handling
was not a firearm but a
toy. His evidence was that he was not very
certain as to what it was. Qetse also testified to have been sitting
in the back seat
of Bongani’s car with, amongst others, the
accused. He saw the accused carrying a firearm and playing with it.
He, however,
did not see the accused pointing it at Simthandazile.
[46] On
the other hand Simthandazile’s evidence was that the accused
did point him with a firearm. However,
they laughed it off because he
believed that he was playing and not really pointing him with it. The
accused’s denial in
this regard is just that - a denial and a
bare one. His evidence that he was not in the habit of carrying
weapons and or even arming
himself is clearly false. He was in
possession of a firearm in Bongani’s vehicle and he did cock it
in that vehicle according
to the State witnesses. I will not say he
was playing with it as I do not understand conceptually, the idea of
anybody playing
with a firearm. It appears from the evidence of
Simthandazile that he never intended to report the firearm pointing
to the police
on the basis of the notion that the accused was playing
with the firearm. What is clear is that contrary to what he testified
to,
the accused liked carrying a firearm and even showing it off to
his acquaintances. This is besides the fact that he clearly did
not
have a licence to possess any firearm. The evidence of the State in
this regard even with all its weaknesses establishes beyond
reasonable doubt that the accused, since 2017 and in particular on
the night of the murder of the deceased he was in possession
of a
firearm in Bongani’s vehicle. Both Simthandazile and Qetse gave
very clear testimony that what the accused had in his
possession and
what he was playing with was in fact a firearm which on Bongani,
Qetse and Simthandazile’s version he cocked
it.
[47] The
evidence of Simthandazile on how he was pointed with that firearm is
not satisfactory. He was standing
next to the window of Bongani’s
vehicle. Bongani was sitting in the driver’s seat and his
driver’s window was
opened. There was no evidence from
Simthandazile on how the pointing with a firearm occurred. The
accused would have been sitting
somewhere in the back seat at the
time. In that position the evidence of whether the pointing occurred
through the back window
of that vehicle or somehow through the front
driver’s window was unclear.
[48] It
is common cause that when the deceased arrived and parked somewhere
in front of Bongani’s vehicle
Bongani and Thabo were already
there. On Bongani’s version he stopped there because somebody
shouted his name as he was driving
home from his girlfriend’s
place. He stopped and the accused and Siseko got into the vehicle. On
accused’s version
Qetse later knocked on the back window and
got into the vehicle. This would explain Qetse’s evidence that
he did not hear
the accused or anybody uttering the words or words to
the effect that “here is this dog” when the deceased’s
vehicle arrived there. This also means that the deceased got there
before Qetse got there. If the deceased got there afterwards
it might
have been when Qetse had gone to the car wash. It was the evidence of
both Simthandazile, Bongani and even Thabo that
the accused did utter
those words. I accept the evidence of these witnesses as being
credible in this regard. I also accept their
evidence with regards to
the accused having been in possession of a firearm.
[49] Qetse
testified that at some point he got out of the vehicle to go and buy
himself tobacco. When he returned
he was told that the car was full.
He left going to the car wash. It must have been at this point when
Qetse had gone to the car
wash that Bongani and Thabo left that area
leaving the accused and Siseko there.
[50] When
Qetse decided to get out of the car wash going to the garage in
search of tobacco, he saw the accused
walking behind him carrying a
firearm. He also saw the accused going to the deceased’s car on
the driver’ side and
shooting the deceased who was sitting in
his car in the driver’s seat. Shortly before this he had seen
the deceased sitting
in his driver’s seat with his engine
running and his vehicle lights on. His evidence and that of some
other witnesses was
that the street lights were also on. However,
some of the State witnesses were either not sure about the fact that
the street lights
were on or did not notice whether they were on or
not. However, all of them were consistent that the vehicle headlamps
of the deceased’s
car were on and that his vehicle security
lights on top of his vehicle were on. I am prepared to accept that
the street lights
might not have been working or there is an element
of doubt as to whether or not they were working. This is more so that
even the
statement admitted by agreement between the State and the
defence signed by Mr Nkompela indicates that the street lights were
not
working.
[51] The
question then is whether there was sufficient lighting for Qetse to
have seen the accused carrying a firearm
and shooting the deceased.
It will be recalled that Qetse’s evidence as does of other
State witnesses was that the deceased
headlamps were on. Furthermore,
Qetse was with the accused in Bongani’s vehicle earlier before
the shooting occurred. On
that basis the lighting provided by the
deceased’s vehicle headlamp would have been sufficient for him
to see and identify
the accused whom he had seen a short while
earlier. That would include the fact that when he saw him he noticed
that he was carrying
a firearm. After all he had seen him earlier in
Bongani’s vehicle carrying a firearm. For whatever reason, he
did keep his
eye on the accused. Furthermore, even on the accused’s
version the car wash was a drinking place with cars coming in and out
at about the time of the shooting. Bongani testified that the other
vehicles provided light in addition to that provided by the
deceased’s vehicle. The evidence of the State was also that the
deceased’s vehicle was parked near the gate of the
car wash. As
to how many metres to the gate is unclear. Most of the evidence
indicates quite clearly that there was sufficient
light there
provided even by the deceased’s vehicle.
[52] On
Qetse’s evidence, after the accused shot the deceased he ran
across the street towards Buco Hardware.
This is what Qetse testified
to have seen with his own eyes and he made a statement to the police
on what he saw. His evidence
was not challenged and it was never
suggested that he did not report to the police or that his statement
was not consistent with
his evidence in this regard. It will be
recalled that the evidence of Simthandazile was that after Bongani
had left he heard the
sound of gun fire. After he heard the shooting
he saw the accused running across the street towards SSS. On his
evidence although
he did not see the accused shoot the deceased, he
did see him running from near the deceased’s vehicle shortly
after the
shooting running across the street. This is in accord with
the evidence of Qetse about what the person whom he said was the
accused
did after shooting the deceased. Simthandazile was equally
very clear that the person he saw running across that street was the
accused.
[53] There
is also the evidence of warrant officer Maliwa. His clear evidence
was that the information they received
was that the accused killed
the deceased. They did question the accused about the allegations of
his involvement. The accused co-operated
with them and gave them his
cell phone numbers. They obtained the accused’s billing
information which showed that the accused
was in Mount Frere on the
night of the deceased’s murder. This was contrary to what the
accused had told them, namely that
he had left for Mthatha and was
not there at the time of the shooting. In any event the accused does
not dispute his presence in
Mount Frere on the night of the murder of
the deceased. In fact on his own evidence he was not only in Mount
Frere but he was also
around the area of the crime scene. This is in
addition to the State witnesses that place him there. According to
warrant officer
Maliwa, Qetse told them that he saw the accused
shooting the deceased. This means that Qetse’s evidence in this
regard cannot
possibly be an after thought or fabrication. This is
what he had told the police from the very onset.
[54] Mr
Mtongana also gave very clear evidence of the visit of the accused to
his homestead. It was during that
visit when the two men were sitting
in a vehicle that the accused told him that he needed cleansing from
him because he had killed
the deceased. The uncontested evidence of
Mr Mtongana was that this perturbed him and he told the police about
what the accused
had told him. After satisfying themselves that the
information that they received was trustworthy the police eventually
arrested
the accused.
[55] The
accused’s evidence was simply that of a bare at best denial. He
either denied and disputed the evidence
of the State where it
implicated him and was cagey with his explanation and at times
contradicted himself on very crucial aspect
of his own evidence. His
evidence often did not make sense. He came up with new versions
throughout his evidence. While he was
unable to explain why some of
his many versions were not put to State witnesses he also could not
explain why even when he testified
during his evidence in chief he
did not mention some of the important aspects of his evidence. The
evidence of the accused was,
in my view, made up of stories and/or
versions he clumsily put together as he went along in order to deal
with the mounting evidence
given by State witnesses as the trial
progressed. This explains his inability to put some important aspects
of his version to State
witnesses for them to respond thereto. When
all is said and done, he not only failed to put his version to the
State witnesses,
he also did not come up with any coherent version
even as he gave his evidence in chief. In the end it became
impossible to understand
what his defence was beyond bare denials and
at times incredible conspiracy theories and lies. His evidence stands
to be rejected
as largely not just improbable but outright falsehoods
that were made up to deal with the avalanche of the credible evidence
of
State witnesses.
[56] Amongst
other submissions made on behalf of the State, it was also argued
that the accused could not explain
why many witnesses would testify
against him and implicate him in the crimes that were committed in
this matter. While it is indeed
true that the accused was unable to
explain himself other than coming up with all sorts of conspiracy
theories and bare denies
and falsehoods, I do need to clarify that it
is impossible for any accused person to know that which resides
entirely in the mind
of the witness or witnesses concerned. The fact
that an accused person may not be able to explain himself in this
regard cannot,
without more, lead to a conviction as the accused
person bears no onus and the State must, regardless of any
explanation or lack
thereof, prove its case beyond reasonable doubt.
[57] I
am fortified in this view by the sentiments expressed in
S v
Ipeleng
1993 (2) SACR 185
(T) at 189 c-h in which Mohamed J had
this to say:
“
It is
dangerous to convict an accused person on the basis that he cannot
advance any reasons why the State witnesses would falsely
implicate
him. The accused has no onus to provide any such explanation. The
true reason why a State witness seeks to give the testimony
he does
is often unknown to the accused and sometimes unknowable. Many
factors influence prosecution witnesses in insidious ways.
They often
seek to curry favour with their supervisors; they sometimes need to
placate and impress police officers, and on other
occasions they
nurse secret ambitions and grudges unknown to the accused. It is for
these reasons that the Courts have repeatedly
warned against the
danger of the approach which asks: ‘Why should the State
witnesses have falsely implicated the accused?’
The case of
S v Makobe
1991 (2)
SACR 456
(W) is instructive on this point. At 459 of the judgment,
reference is made to certain earlier authorities. The learned Judge
refers
to the case of
R v Mtembu
1956 (4) SA 334
(T) at 335-6
where Dowling J said the following:
‘
The
magistrate in his reasons for judgment obviously takes the view that
if the evidence of the traffic inspector is accepted then
the accused
was guilty of driving to the danger of the public. In coming to the
conclusion that that evidence is to be accepted
he said that the
inspector either saw the accused drive as he says or he has come to
court to commit perjury. That is not the correct
approach. The
remarks of the late Millin J in
Schilles
v Pretoria City Council
, a judgment
delivered on 8 June 1950, but not reported, are very pertinent to
this point. He says:
‘
It is a
wrong approach in a criminal case to say ‘Why should a witness
for the prosecution come here to commit perjury?’
It might
equally be asked: ‘Why does the accused come here to commit
perjury?’ True, an accused is interested in not
being
convicted, but it may be that an inspector has an interest in
securing a conviction. It is, therefore, quite a wrong approach
to
say ‘I ask myself whether this man has come here to commit
perjury, and I can see no reason why he should have done that;
therefore, his evidence must be true and the accused must be
convicted.’ The question is whether the accused’s
evidence
raises a doubt,’”
[58] It
was submitted on behalf of the accused that the evidence of Qetse
must be treated with caution on the basis
that he was a single
witness. Putting aside the fact that as the State correctly pointed
out, Qetse was not just an uncorroborated
single witness, his
evidence was, on the contrary, corroborated by a lot of
circumstantial evidence. Even if Qetse was a single
witness, our law
has long allowed for the conviction of an accused person even on the
basis of a single witness. This is subject
to certain conditions
being met by the State and the court being satisfied that indeed such
conditions have been met. It was never
submitted on behalf of the
accused that treating the evidence of Qetse with caution should
result on his evidence being rejected
on the basis that this evidence
did not meet the criteria. I am, in any event, of the view that
Qetse’s evidence was very
clear, credible and reliable. In fact
it met all the legal criteria.
[59] In
S v Olawale
[2010] (1) All SA 451
(SCA) at 455 the legal
position was restated as follows:
“
[13] 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.
[14] In evaluating the evidence
against the appellant, one must look at the reliability and
credibility of the witnesses, consider
if any of them had a motive to
falsely implicate the appellant and further look at the probabilities
of the State’s version.
[15] The State’s case rested on
the evidence of a single witness as to the actual robbery. The
evidence of a single witness
has to be clear and satisfactory in
every material respect. The evidence has to be treated with caution.
A court can accept the
evidence of a single witness if it is
satisfied that it is truthful beyond reasonable doubt.”
[60] In
S v Van der Meyden
1999 (2) SA 79
(
W
) at 82 C-D the
process of evaluating the evidence in a trial was explained as
follows:
“
The proper
test is that an accused is bound to be convicted if the evidence
established his guilt beyond reasonable doubt, and the
logical
corollary is that he must be acquitted if it is reasonably possible
that he might be innocent. The process of reasoning
which is
appropriate in any particular case will depend on the nature of the
evidence which the court has before it. What must
be borne in mind
however, is that the conclusion which is reached (whether it be to
convict or to acquit) must account for all
the evidence. Some of the
evidence might be found to be false, some of it might be found to be
unreliable and some of it might
be found to be possibly false or
unreliable, but none of it may simply be ignored.”
[61] Upon
the consideration of all the evidence of the State witnesses
considered together with that of the accused
there is no possibility
that the accused might be innocent of the murder of sergeant Phumzile
Michael Ntando. In my view, the State
has proved the guilt of the
accused beyond reasonable doubt in respect of courts 2, 3 and 4. I am
however, not satisfied that the
State has discharged its
responsibility of proving beyond reasonable doubt that the accused
pointed Simthandazile Njece with a
firearm.
[62] In
the result:
1. The
accused is acquitted and discharged in respect of count 1, pointing a
firearm at Simthandazile
Njece
2. The
accused is found guilty in respect of counts 3 and 4, the unlawful
possession of a firearm
and ammunition.
3. The
accused is found guilty in respect of count 2, the murder of sergeant
Phumzile Michael
Ntando
M.S.
JOLWANA
JUDGE OF THE HIGH
COURT
Appearances:
Counsel for the
State: M.
BALIWE
Instructed
by: NPA
MTHATHA
Counsel for the
Accused: L.F. NTIKINCA
Instructed
by: Legal
Aid South Africa
MTHATHA
Date
head: 02-10
November 2021
Delivered
on: 11
November 2021