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[2019] ZAECBHC 12
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S v Dingela and Others (CC25/18) [2019] ZAECBHC 12 (10 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO.: CC 25/18
THE
STATE
Versus
BAPHIWE
DINGELA
Accused no. 1
MFUNDO
GWEJELA
Accused no. 2
FEZEKILE
BOOI
Accused no. 3
JUDGMENT
STRETCH
J.:
[1]
The three accused stood trial on charges of statutory conspiracy to
murder,
murder, and possession of firearms and ammunition, it having
been alleged that they conspired to murder Welile Ndevu (a taxi owner
and operator), and indeed did so on Wednesday, 2 August 2017 by
shooting him where his taxi was stationary at a T-junction in Daba
in
the Peddie district.
[2]
The accused, who each had his own lawyer throughout the trial,
pleaded
not guilty and reserved the bases of their defences.
[3]
Nontembeko Bangani
testified that on that Wednesday at about
7.50am she was on her way to Ayliff Primary School when she saw the
deceased lying next
to his combi. The driver’s door was open.
[4]
At about 8am that morning one
Sgt Njokweni
was called out to
the scene. He found the deceased (whom he knew from church and as a
person who transported children to and from
school) lying on his back
in a pool of blood on the driver’s side of his Quantum taxi.
[5]
The witness was present when photos were taken of the scene and
referred
to these in his evidence.
[6]
He said that the scene was riddled with empty cartridges and it
appeared
that the deceased’s vehicle had been struck a number
of times, particularly on the driver’s side. The individual
cartridges
were sealed and secured for forensic testing.
[7]
Warrant Officer Mati
(who was on the scene between 11am and
2pm that day, and who collected exhibits, secured them and took
photos at the scene), confirmed
his evidence in all material
respects. Mati collected 11 cartridge cases and three
projectiles. The cartridge cases appeared
to have been fired from a
9mm firearm and from a rifle.
[8]
The prosecution sought to prove inculpatory statements made by
accused
nos 2 and 3 to police officers.
[9]
In particular it was alleged that accused no. 2 made a written
statement
to one Captain Fose. It was recorded on accused no. 2’s
behalf that the admissibility of this statement would be disputed
by
him on the following bouquet of grounds:
a. That
the statement was not made freely and voluntarily;
b. That
the accused was assaulted by the investigating officer (WO Gcabani
Maqhubela), Sgt Mazwana and five other
members of the Hawks;
c. That
that which is reflected in the statement was spoon-fed to the accused
by the police.
[10]
With respect to the third accused, it was alleged that he had made a
statement to one Captain
Bixa. He disputed the admissibility of the
statement on the following grounds:
a. That
he is not the author of the statement but that it consists of a
pre-recorded document which was read out
to him;
b. That
he was assaulted by the same persons who assaulted accused no. 2 (and
by others apparently) who then forced
him to sign this pre-recorded
statement;
c. That
his rights in terms of the constitution were not explained to him.
[11]
In view of
the somewhat complex and symbiotic grounds for challenging the
admissibility of the statements to be tendered as evidence
against
accused nos 2 and 3, I directed that the evidence pertaining to
admissibility be presented in a single trial within a trial.
[1]
The
trial within a trial
[12]
I intend making short shrift of what transpired thereafter. The
prosecution called a number
of police witnesses who dealt with these
accused from the time of their arrest. These witnesses included
Cpt
Fose
who took accused no. 2’s statement and Cpt Bixa, who,
on his version, recorded in writing a warning statement deposed to by
accused no. 3. I digress to mention that the averment that accused
no. 2 had been spoon-fed the information which he had relayed
to
Captain Fose was mentioned for the first time during the
cross-examination of this witness. During re-examination the
prosecutor
accordingly applied for the contents of the statement to
be introduced on the understanding it would seem, that the State was
in
a position to prove that that which was reflected in the statement
could not have emanated from the police, and by so doing, to
challenge the credibility of accused no. 2. It was on this basis that
I provisionally allowed the contents of the statement to
be placed
before me.
[13]
From what I was able to glean from the evidence of one
Cst
Ncinitwa
, accused nos 2 and 3 were initially arrested by the
Queenstown Flying Squad for being in possession of a suspected stolen
motor
vehicle at 6pm on Wednesday, 21 February 2018, whereafter they
were detained at the Queenstown Police Station. According to
Ncinitwa,
they both acknowledged receipt of a written notice of
constitutional rights just after 11 the following morning (ie
Thursday, 22
February). Ncinitwa testified that throughout this
period there were a lot of policemen wanting to question the accused
about other
cases, especially the Hawks from the provincial office.
In his own words: “When we arrived with them it was chaotic as
many
people were looking for them”. He was unable to dispute
that the accused were only physically detained the next day, and that
in the interim they had been taken by members of the Hawks to an old
army base. The fact that they were only booked into the cells
the
next day is corroborated by entry 1195 in the occurrence book (“the
OB”) which reflects that Ncinitwa detained
them at 11.15am that
Thursday.
[14]
The accuseds’ warning statements taken with respect to the
possession of a stolen
motor vehicle charge simply added to the
confusion. According to his warning statement, accused no. 2 was
warned for having been
in possession of this vehicle at 9.20am on 22
February (which, on Ncinitwa’s version was impossible as he had
already been
arrested the night before). Significantly, accused
no. 2 is recorded to have said the following in his warning
statement:
‘
I understand the
allegations against me. I will make my statement at court.”
[15]
Accused no. 3’s warning statement for possession of the stolen
vehicle (which purports
to only have been taken at 5pm on Saturday
the 24
th
) reflects that he said the following:
‘
I understand the
allegation against me. I will make my statement to my lawyer.’
[16]
It was put to
Warrant Officer Xakayi
who was the investigating
officer with respect to the vehicle theft charges, that accused no. 3
had told him that that he and accused
no. 2 had been tortured at the
police barracks, and that he (warrant officer Xakayi) had in fact
remonstrated with these officers
and had told them not to take his
suspects away from the station and torture them. Significantly his
response was not a denial
as one might have expected. Instead he
merely said:
‘
I can’t
recall that’.
[17]
Detective Sergeant Ndzima
from the provincial organised crime
unit in Port Elizabeth booked the accused out of the Queenstown cells
on Friday, 23 February
2018 in order to question them about a
shooting incident at Ngcobo police station. According to the
occurrence book he booked accused
no. 2 out at 11.50, booked him out
again at 13.25 (without returning him) together with accused no. 3,
and returned him twice:
at 13.55 and again five minutes later at
14.00.
[18]
In my view the only purpose of his evidence was to illustrate that
the occurrence book
could not be used as corroboration for testimony
regarding the whereabouts of the accused at any given moment.
[19]
Warrant Officer Mbiko,
who was also apparently investigating
the Ngcobo shooting incident booked both accused out again at 11.00
on Saturday, 24 February.
According to the occurrence book accused
no. 3 was returned at 14.50 and booked out again by Warrant Officer
Xakayi at 16.50. The
occurrence book reflects that both accused were
charged by Xakayi in respect of the stolen vehicle matter at 17.50
that same day
and were booked back into the cells at 18.10. However,
according to Mbiko, accused no. 2 had reported that there were
firearms
at his home at Peddie, so he escorted accused no. 2 there
together with three members from the Hawks (the East London Organised
Crime Unit). He was adamant that accused no. 2 spent the entire
Saturday with them. They left for Peddie between 16.00 and 17.00
and
he completed the Peddie SAP14 at 18.15.
[20]
He said that both accused were warned in terms of their rights when
he booked them out
and again at the Hawks offices at the military
base. At the Peddie police station he warned accused no. 2 in writing
regarding
his constitutional rights. That night it was too late to
return accused no. 2 to the Queenstown cells so he was detained at
King
William’s Town and booked back into the Queenstown cells
on Sunday, 25 February at 13.05.
[21]
Several difficulties arise from the checks and balances that the
occurrence book is intended
to provide. I mention but a few:
a. The
book reflects that persons who have not been booked in are being
booked out and vica versa.
b.
According to Mbiko accused no. 2 was on his way to Peddie at the same
time that the occurrence book suggests
he was being charged with his
co-accused at the Queenstown police cells.
c.
According to Mbiko accused no. 2 was not at the Queenstown police
station or the cells from 11.00 on that Saturday
until 13.05 that
Sunday (that is for a period of 25 hours), whereas the occurrence
book reflects that Xakayi charged both accused
at the Queenstown
cells at 17.50 that Saturday.
d. The
occurrence book reflects that accused nos 2 and 3 were charged
together at the Queenstown police cells,
whilst simultaneously
reflecting that this could not have been the position, because
accused no. 2 was on a mission to Peddie with
Mbiko (which Mbiko
confirms) and accused no. 3 was with Xakayi during the same period.
[22]
These inconsistencies pose serious problems for the State,
particularly in the light of
accused no. 2’s version. According
to him, Mbiko and other members of the Hawks took both him and
accused no. 3 to their
military base on Saturday the 24
th
.
There their hands were cuffed behind their backs. Plastic bags were
pulled over their heads. Pepper spray was then released into
the
bags. This process was repeated on the Sunday until accused no. 2
agreed to confess. Mbiko was present and participated in
these
assaults on the Saturday, and the first investigating officer (Sgt
Mazwana) as well as the second investigating officer (Warrant
Officer
Maqhubela) were both present during the assaults on the Sunday. When
accused no. 2’s version was put to Mbiko, the
highwater mark of
his response to these serious allegations was the following
statement:
‘
We as the Hawks
don’t use pepper spray’.
[23]
It was put to him on accused no. 3’s behalf that the accused
was tortured in his
presence by Mazwana and Maqhubela. His
response was that he left as Mazwana and Maqhubela were arriving on
the 24
th
at about 13.00. Indeed, he repeated this
statement no less than seven times during his evidence.
[24]
The prosecution persevered and led the evidence of
Captain Bixa
who managed to extract an alleged confession in the form of a warning
statement from accused no. 3 shortly after having booked
accused no.
3 out of the cells for alleged questioning that Sunday. Curiously, it
was Bixa’s evidence that they had already
tried to make
arrangements for a senior officer to take accused no. 3’s
confession before they had even interviewed him.
It is also
significant that according to Bixa accused no. 3 was only formally
charged after he had confessed. He also conceded
that he had been
actively involved with the investigation of the case from the outset,
but maintained that he was still “independent”.
It
was put to him that accused no. 3 had been tortured in the same
manner as his co-accused, the method of torture having
been referred
to by Bixa as “Skhumbuzo” (when translated means a
reminder). He denied this. He also denied that after
the assaults he
gave a document (purportedly the warning statement) to accused no. 3
and just told him where to sign.
[25]
Upon questioning by the court, he could not really explain why two
suspects who had just
elected to speak to an attorney and to speak in
court when charged with possession of a suspected stolen motor
vehicle, would readily
waive these rights and make murder confessions
to the Hawks without any influence whatsoever.
[26]
These extraordinary responses to questioning were by and large
repeated by
Warrant Officer Maqhubela
when he testified.
Indeed, the gist of his evidence was that they only felt “compelled”
to inform accused no. 3 of his
constitutional rights after he had
revealed inculpatory knowledge of the case. He denied having
assaulted the accused or that they
were spoon-fed what to say.
[27]
Accused no. 3’s attorney produced undisputed medical records
from Grey Hospital in
King William’s Town, it being alleged
that at his first appearance in the Peddie court on Monday 26 Feb
2018, he had told
his legal aid attorney (Ms Jakavula) that he had
pain around his eyes, and she instructed that he should be taken to
the hospital.
Correctional Services officers Jokweni and Klaas took
him to hospital. His clinical record dated 27 Feb 2018 reads as
follows:
“
Presented with
alleged history of assault by police officers between Friday the 23
rd
and Sunday 25 February 2018.”
[28]
The clinical record stated that the accused presented with a red
traumatic left eye. The
witness to my mind deliberately distanced
himself from this evidence which, standing alone, is totally
destructive of the State’s
case on the issue of voluntariness.
[29]
This evidence was also corroborated in most of these bizarre respects
by the previous investigator,
Sgt Mazwana
. He said that
accused no. 3 had a bloodshot eye on the 25
th
. When
asked about it, accused no. 3 said that he had been assaulted by the
flying squad police. Mazwana did not do
anything about this. He
made a note in his pocket book which he has unfortunately lost. When
asked whether it was usual for assaults
to be reported to him, he
said:
“
They always say
that they were assaulted when that did not happen. Se we were not
surprised”.
[30]
He was unable to explain why the OB would reflect that accused no. 3
was free from visible
injuries despite having had an obvious injury
to one of his eyes. When it was put to him that the accused had been
sprayed with
pepper spray and that he actively participated in the
process, he too, did not simply deny the allegation as one would have
expected.
No. What he said was the following:
‘
No
… pepper spray is so scarce’.
[31]
The occurrence book also reflects that on that Sunday Cpt Bixa
himself booked accused no.
2 out at 13.15 and accused no. 3 at 14.40
and returned with them both at 18.10.
[32]
On Monday, 26 February 2018 at 08.30 the accused were taken to the
magistrates’ court
for the first time.
[33]
At the close of the State’s case in the trial within a trial
accused nos 2 and 3
applied for a ruling which would be analogous to
a s174 discharge. This section may be utilised in the main
trial dealing
with issues of guilt when there is no evidence at the
close of the state’s case that the accused committed the
offence. The
trial within a trial deals with issues of voluntariness
and not guilt. I accordingly made the following order which I
now
repeat:
“
I am not at this
stage inclined to make a ruling which is in any way analogous to a
section 174 discharge, despite having been invited
to do so. Insofar
as it may be necessary to mention however, accused nos 2 and 3 are
reminded of the test which has applied since
the declaration of
unconstitutionality of the reverse onus originally set forth in
section 217 of the Criminal Procedure Act, the
resultant paradigm
shift in the burden of proof, the non-derogable and ultimate right to
silence which the accused enjoy in terms
of section 35(3)(h) of the
Constitution and the dicta as set forth in the
locus classicus
in this regard being
S v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
CC.”
[34]
Thereafter both accused nos 2 and 3 closed their cases in the trial
within a trial without
testifying and without calling any witnesses.
[35]
The prosecution, notwithstanding the State’s insurmountable
problems which I have
already alluded too, prevailed upon me to
nevertheless rule these statements admissible despite having admitted
that the state
witnesses were not shining beacons of credibility. To
my mind that was putting it mildly. Credibility is but one of the
State’s
problems. The absence of the most basic knowledge of
how to deal with suspects, arrested persons and detainees (either
through
lack of training or deliberate incompetence) is the other.
Indeed my comments would not have differed were this Court sitting
in
a pre constitutional setting.
[36]
The members of the police who dealt with the accused blatantly
ignored their basic rights
to a fair trial and the rule of law. It
does not help them to improve upon this when prosecutors who are here
to assist the
court, insist on attempting to justify their conduct
and their disregard for the most basic notions of justice and
fairness.
[37]
For all these reasons I ruled the statements made by accused nos 2
and 3 to these policemen
inadmissible as evidence in the main trial.
The
main trial
[38]
Thereafter the State called the evidence of one
Siyabonga Sixaka
whose attendance it managed to secure only be having the witness
arrested. Not surprisingly, not one iota of this man’s evidence
implicated any of the accused in the commission of the offences with
which they had been charged, or in respect of any other offences
for
that matter. The witness was clearly hostile from the outset and I do
not know why more of this Court’s time was being
wasted by the
dominis litis
party insisting on calling him only to apply for
him to be declared hostile, which I did without any difficulty. Not
yet ready
to admit defeat, the State, having handed in the witness’s
police statement, embarked on an energetic and pointless attempt
to
resuscitate the witness. This attempt only served to alienate the
witness even further, the main thrust of his evidence being
similar
to that of accused nos 2 and 3: that he was assaulted at times by the
police, at other times he was told what to say, and
also that he was
currently experiencing severe pain in his side. The fact that it was
extracted from him with gentle coaxing from
accused no. 3’s
attorney, that the police did not administer the oath to him when the
impugned statement was taken, but that
he was now speaking the truth
in court under oath and with the support of his family who were
encouraging him to speak the truth,
once again did not assist the
prosecution.
[39]
The State thereafter called one
Sgt Ntebele
whose testimony
was riddled with hearsay evidence regarding what one Ntabithemba
Ntuthu had said to him. The evidence was provisionally
allowed on the
understanding that Ntuthu would be called to confirm it. Ntuthu, for
whom a warrant had also been issued, not surprisingly,
could not be
traced, and I accordingly indicated that I would disabuse my mind of
what Ntebele had said and ruled that his evidence
was to be expunged
from the record.
[40]
In all the circumstances, there being no evidence against accused nos
2 and 3 at all, they
were both granted a discharge at the close of
the State’s case.
The
remaining case against accused no. 1
[41]
That then leaves me with the position of accused no. 1.
[42]
During the State’s case the prosecution had called one
Nobathembu Koli as a single
eye-witness to the attack on the
deceased. Ms Koli told this court that she had been living in Peddie
since she was four years
old. During August 2017 she used to hitch
from Peddie to Grahamstown court where she was employed. On
Wednesday, 2 August 2017
she was walking along the road between
Ayliff Primary School and Numpumelelo Hospital hoping to catch a
lift. The deceased drove
towards her coming from the direction of the
school. He stopped his taxi and alighted therefrom to urinate. She
asked whether he
could give her a lift to the hospital. A man came
jogging towards them from the direction of the hospital. He was
wearing a tight
black leather jacket, black faded trousers and a navy
hoody, the hood of which partially covered his forehead. She had seen
him
wearing the jacket and trousers before. His hands were in the
pockets of the hoody. When he was closer to them, she saw that it
was
Baphiwe Dingela (accused no. 1).
[43]
The deceased, who had completed his ablutions, greeted her and got
back into his vehicle.
[44]
The accused stood in front of the vehicle, pointed a firearm (which
he held with his arm
outstretched at an angle in front of him)
towards the front of the vehicle and opened fire in the direction of
the driver’s
side where the deceased was seated. When he opened
fire it sounded like a zipper being pulled (the witness made a
“grrrrr”
sound to describe what she had heard).
[45]
At this point the accused was close to her and his face was clearly
visible. He also saw
her. Thereafter the accused ran towards the open
field behind the vehicle and in the direction of Mhlabone, and she
(the witness)
ran to her home to recompose herself as she was in a
state of shock. After she had regained her composure she hiked back
to work.
[46]
She was unable to work. She was shaking and worried because she and
the accused were known
to each other. He also knew where she was
working. She went to the doctor and asked for a sedative as she was
suffering from a
terrible headache and insomnia. She did not tell
anyone what she had witnessed. She remained at her flat in
Grahamstown and slept
there in order to calm down.
[47]
Sometime thereafter she attended a prayer meeting for the taxi
violence which was ongoing
and had become an integral part of their
daily lives. She decided to confide about what she had witnessed to
one Mr Mpofu who was
addressing the issue of the violence. Mpofu
called a policeman who held some position of authority in
Grahamstown. Initially she
was hesitant to speak to this policeman as
she did not really know where he hailed from, but eventually she
opened up. She deposed
to an affidavit with respect to the incident.
This was about two months after the incident had taken place. He
told her that
he would liaise with the Zwelitsha detectives, but they
gave her no assurance regarding her safety. She realised that she was
putting
herself in “boiling water”. That was when she was
housed in a place of safety. This was still during 2017.
[48]
Ms Koli explained her previous links and relationship with the
accused in detail. His father
and her mother had been best friends
and were involved with the UDM together. As a result the accused and
his father had frequented
her parental home. As a further result the
accused befriended her younger siblings and visited them regularly at
her home. Sometimes
he would carry her bags for her in exchange for
R5. His father was always at the taxi rank. Sometimes she saw the
accused at the
taxi rank as well. At times she saw him driving small
cars (later referred to as “cockroaches”) to Peddie
extension.
His parental home is at Feni which is beyond Daba where
her parental home was, but in close proximity to it.
[49]
Reasons for her reluctance to immediately come forwards, or even to
summons an ambulance,
were elicited in the main from her during cross
examination on behalf of accused no. 1. She explained them in the
following terms:
a. The
taxi violence was ongoing and had become a part of their daily
existence.
b. The
major taxi owners were:
Mr Gwejela (accused no.
2’s father, who was buried a couple of months before she
witnessed the deceased being shot at).
Mr Mhlayifani Mtanjana
Mr Ndevu (the deceased)
Mr Nonjukela
Mr Mpofu.
These were known to be
the members of the border alliance. They owned all the local taxi
routes. Many “incidents” were
committed by taxi owners in
the same association. People were saying that accused no. 2’s
father was behind it all. They
were frightened of him. The incident
which she had witnessed and was testifying to was another taxi
violence incident. The manner
in which it took place was similar to
the other taxi violence incidents.
c.
Consequently she legitimately feared for her life and the lives of
her children.
d. She
knew of many incidents where people were murdered. Witnesses stayed
mum. People simply did not volunteer
information. There were dead
bodies. People who dared to report to the police were either killed
or injured. She personally knew
of a witness who had told the police
that she had seen accused no. 2 and his father committing an offence.
This woman was injured
for speaking out.
e. On
another occasion she was in her office at the Peddie court when
accused no. 2’s sister (Thabisa) said
that she would kill
anyone who dared to testify with her own hands. She even recorded the
conversation and sent it to one Mr Mzwala
who was in court at the
time. She considered herself fortunate that these people were not
aware of the fact that she had witnessed
the shooting on 2 August
2017.
f.
Even the magistrate presiding over a bail application was threatened
by one of accused no. 2’s
family members (the witness
demonstrated by drawing her index finger across her throat). The
magistrate sought protection and body
guards were appointed. “How
can I not fear for my life if a magistrate feared for her’s?”
she added spontaneously.
g.
Witnesses at large could not rely on the police for protection.
h. She
herself was afraid that accused no. 1 would hunt her down and kill
her.
i.
She was ultimately placed in a witness protection programme.
[50]
When it was put to her during cross-examination that according to the
State’s summary
of substantial facts accused no.1 was not alone
when he shot at the deceased, her response was: “I don’t
know this”.
It was also put to her that at the time she alleges
she saw the accused he was sleeping with his girlfriend and only woke
up at
10am that day. It was further put to her that the accused’s
sister (Thabisa), who buys his clothes, would testify that the
accused did not own the jacket she had described. When it was put to
her that accused no.1 did not know her brother, she laughed
and said:
“He is lying. He is lying a lot!”
[51]
When it was put to her that accused no. 1 never visited her home with
his father she said:
“Baphiwe is lying.”
[52]
During cross-examination she reiterated that she had a clear
recollection of the events
and could even “see it in my head.”
The last she saw of the deceased was when he was still in the motor
vehicle. She
never saw him lying in a pool of blood as depicted in
the photo album. She also did not see what his car looked like after
the
shooting. She did not see another car or another person at that
moment. This she candidly conceded.
[53]
In a nutshell, this was the high water mark of the prosecution’s
case against accused
no. 1.
[54]
Accused no. 1 testified in his defence, after his application for a
discharge at the close
of the State’s case was refused. He said
that on the night of 1 August 2017 he slept at his home with his
girlfriend.
He was woken at ten the following morning and accompanied
his sister Thabisa and one Nomathemba to Ayliff Primary School. On
the way to the school the road was blocked off in the vicinity of
what I gather was the crime scene and they used a detour to the
school. On the way back the road was still blocked. Their car
was searched and they were told about the incident. He
was
wearing Adidas slip on shoes, Puma shorts and a blue Uzzi t-shirt. He
said that although he had a lot of clothes he could always
remember
what he wore on a daily basis. He was however unable to say what he
had worn on a daily basis during July 2017. He
slept and later
that day they went to East London airport to fetch his brother. On
the way back he was telephonically advised that
the police were
looking for him and for Thabisa. Apparently the police had
searched his home and the garage in connection
with a certain car.
They were summoned to the police station. He was arrested in
connection with this case a few weeks
later. He was questioned about
his relationship with accused nos 2 and 3 and his relationship with
accused no. 2’s uncle
who had disappeared. He said that he knew
accused no. 2 and that he and accused no. 2’s brother were
friends. He knew accused
no. 3 by sight.
[55]
It was not disputed that his father and Koli’s mother were
bosom friends and together
in the UDM. He said that he only really
knew Koli by sight and had no idea why she would falsely implicate
him. He denied having
visited her home or that he was friends with
her siblings. He admitted though that Koli used to work at the Peddie
magistrates’
court and that they had seen each other there in
2013 when he was arrested for another matter. Ultimately, he conceded
that Koli
knows him. He knew the deceased by sight and had also seen
him at the taxi rank. He said that accused no. 2’s family were
taxi owners like the deceased. When asked whether he was aware of the
raging taxi feud at the time that the deceased was killed
he said “I
would like not to respond to that. I will not tell what happens in
accused no. 2’s family as I don’t
talk about my family as
well.” He said that he had heard that accused no. 2’s
brother was shot in March 2017
and his father in June 2017.
[56]
Accused no. 1 did not impress me as a witness. He vascilated from one
extreme to the other.
It is highly improbable that he knew nothing
about the ongoing taxi violence and I reject his version in that
respect. His attempts
to distance himself from Koli and her family
were fickle, transparent and blatantly dishonest.
[57]
Accused no.1 called
Nosipho Gwejela
with whom he was living on
the day of the incident and with whom he still lives. She said
that accused no. 1 had been living
with them since 2011 when his
father died and that she viewed herself as his provider, his sister
and his carer and mother. She
said that she used to buy his clothes
and (and not Thabisa) that he did not possess a lumber jacket and
black jeans during August
2017. He also did not possess a
hoodie. She confirmed his evidence as to what he was wearing on 2
August 2017. She could
not recall however what he wore the day before
but could remember that he wore trousers the following day as they
were going on
an outing to King William’s Town. She said that
he accompanied her sister Thabisa and Thabisa’s friend
Nomathemba to
the school on 2 August. She said that he normally
wakes up at about 9am and on that day it was after nine when they
left
for the school. That was the first time she saw him that
day. Clearly, although she could only assume that he was
sleeping
before that, she could not vouch with certainty regarding
his whereabouts at 7.30 that morning, when Koli said she saw him
shooting
at the deceased’s car. Indeed, she stated in no
uncertain terms that she did not know what he had been doing before
he boarded
the motor vehicle that morning, or whether he was the one
who had opened fire on the deceased. She said that she knew Koli from
the Peddie area. Coincidentally, Nosipho also just happens to be
accused no. 2’s biological sister. She confirmed that her
dad
was a taxi owner and that he was shot that same year, shortly before
the deceased. She said that she and two of her cousins
were also
shot. She began to weep bitterly at having to recollect these
experiences. She said that no one had been arrested for
these crimes
that had been committed against her family. She added that even while
she was testifying, she still felt unsafe. She
did not know whether
the deceased had been her father’s rival. She confirmed
that her brother (accused no. 2) was a
taxi driver for a short time.
She herself was operating a driving school and a bed and
breakfast.
[58]
After her evidence, accused no. 1 closed his case.
Evaluation
[59]
Koli is,
for all intents and purposes, a single witness. In terms of
section 208 of the Criminal Procedure Act an accused
may be convicted
of any offence on the single evidence of any competent witness. It is
not in dispute that Koli is a competent
witness. The danger of
relying exclusively however on the sincerity and the perceptive
powers of a single witness has evoked a
judicial practice that such
evidence be treated with the utmost care.
[2]
This is generally referred to as the application of the cautionary
rule.
[60]
Koli made a good impression on me as a witness. She had no reason to
falsely implicate
the accused. It is clear that they knew each other
well, and had known each other for a long time before this incident.
There was
no bad blood between them. Neither Koli nor her family were
involved in the taxi violence. As such she was an independent witness
with no motive to falsely implicate accused no. 1. I find that her
identification of the accused was both reliable and credible.
She
knew him well and there were no issues regarding poor lighting or
anything else which could have affected her opportunity for
accurate
observation. I agree with the prosecution that she could not
have been better placed for accurate identification
and observation.
She saw the accused shooting at the deceased’s taxi. She
saw him running around the taxi. She
left the scene after the
accused and after the entire process of identification had been
completed.
[61]
I accept her explanation for not raising a hue and cry immediately
after she observed this.
It is both plausible and realistic. Under
cross examination she provided numerous examples of people who
had been threatened,
injured and killed during the taxi violence just
for coming forward. Her evidence in this regard was materially
corroborated by
the accused’s own witness. It was nothing more
or less than genuine fear that caused her to delay in reporting.
A reasonable
and well grounded apprehension of imminent and real
danger. She built up the courage at a prayer meeting and after she
was
offered proper protection. It is vitally important to her
evidence that before she attended this meeting she remained mum about
what she saw. In the premises, there was no opportunity for her to
collude with others to fabricate a case, and then to do so only
against accused no.1 and not accused no. 2 who appears to have been
the main person who had an axe to grind for loss of family
members in
the taxi war. She has had absolutely no incentive to lie. The fact
that two sets of cartridges were found at the scene
have no bearing
on the reliability of her evidence and in fact fortifies her
credibility. She testified only to what she
saw in her frame of
reference that day. She did not speculate about vehicles or people
who may have been on the other side of the
vehicle, also firing shots
at it as the ballistic evidence and the reconstruction of the scene
would seem to suggest. She also
did not say that the deceased’s
body was struck while he was in the vehicle. She simply saw one
person firing shots at the
vehicle after the deceased had already
boarded it. I am inclined to agree with the prosecutor that the
limits within which
she described her observations are an objective
guarantee for her reliability.
[62]
In essence
what is expected from this court is to apply a common sense approach
to this type of evidence. It is also so that where
the evidence of
the single witness is corroborated in any way which tends to indicate
that the whole story was not concocted, the
caution enjoined may be
overcome and acceptance facilitated. But corroboration is not
essential. Any other feature which increases
the confidence of the
court in the reliability of the single witness may also overcome the
caution
[3]
. There are a
number of these features for eg:
a. The
fact that the accused lived within walking distance from the scene
and was home before and after the commission
of the offence.
b. The
fact that he was living with accused no. 2’s family who were
clearly centrally involved in the taxi
warfare.
c. The
fact that the deceased was indeed a taxi owner and driver.
d. The
fact that a number of spent cartridges were found around the taxi,
and particularly on the driver’s
side.
e. The
fact that the cause of death was multiple gunshot injuries.
f.
The fact that Koli knew the accused well and was not hostile towards
him. Indeed he seemed to have
been near and dear to her and to
her family.
g. The
fact that she had no motive to falsely implicate him.
[63]
All these factors support the prosecution’s contention that
this was a conducive
setting for a conclusion that the accused
participated in the planning of and the murder of the deceased. These
factors strongly
support the probability that he did so. Koli’s
observation and her reliable identification is supported by these
factors,
the objective facts and also then, the circumstantial
setting.
[64]
In the premises I am satisfied that the state has proved beyond a
reasonable doubt that
the accused participated in the planning of and
the murder of the deceased, and that he fired shots from a firearm at
the deceased
causing the deceased’s death, alternatively,
making common purpose with others to do so. By the same token I
am also
satisfied that the state has not proved statutory conspiracy
or incitement, or that the accused was at any stage in possession of
a prohibited firearm as described in count 5 of the indictment.
[65]
I make the following order with respect to accused no. 1:
On
counts 2, 3 and 4 (murder and the possession of a firearm and
ammunition), I find him guilty.
In
respect of counts 1 and 5 (contravention of section 18 of the Riotous
Assemblies Act and the possession of a prohibited firearm),
he is
found not guilty and he is discharged.
__________________
I.
T. STRETCH
JUDGE
OF THE HIGH COURT
10
May 2019
For
the State: Mr
Willemse
Director of Public
Prosecutions
For
accused no. 1: Mr Mhlaba
Instructed
by the Justice Centre
For
accused no. 2: Mr Erasmus
Instructed
by the Justice Centre
For
accused no. 3:Mr Magqabi
Instructed by the Justice
Centre
[1]
See Director of Public Prosecutions, Transvaal v Viljoen 2005
(1) SACR 505 (SCA) at [41] and [42]
[2]
See
R v
Mokoena
1932 OPD 79
at 80
[3]
S v
Banana
2000 (2) SACR 1
(ZSC)