S v Njova and Others (CC43/2016) [2019] ZAECMHC 30 (7 June 2019)

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[2019] ZAECMHC 30
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S v Njova and Others (CC43/2016) [2019] ZAECMHC 30 (7 June 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO. CC 43/2016
In
the matter between:
THE
STATE
VS
THEMBILE
NJOVA                                                                     ACCUSED

NO. 1
SIBONELO
MBIZENI                                                                  ACCUSED

NO. 2
MFUNDISO
MBIZENI                                                                  ACCUSED

NO. 3
MSAWENKOSI
STEVE MADIKIZELA

ACCUSED NO. 4
LINDANI
CANDLOVU                                                                 ACCUSED

NO. 5
JUDGMENT
JOLWANA
J
Introduction
[1]
Between January 2015 and May 2015 a spate of armed robberies were
committed in certain localities in Bizana.  In some instances

some people were shot and killed while others survived by a whisker
during the commission of those robberies.  The state allegies

that it is the accused who committed those offences.
[2]
It is those armed robberies which resulted in the accused being
charged with the following offences:
1. Four counts of
housebreaking with intent to commit an offence, to wit, robbery in
contravention of section 153 (1) read with
sections 153 (2) (a) and
(b) and further read with section 153 (3) of Act 9 of 1983.
2. One count of attempted
robbery in contravention of section 31 read with section 155 of Act 9
of 1983.
3. Seven counts of
robbery with aggravating circumstances in contravention of section
155 of Act 9 of 1983.
4. One count of attempted
murder in contravention of section 84 read with section 31 of act 9
of 1983.
5. Four counts of murder
in contravention of section 84 of Act 9 of 1983 read with section 51
(1) of Act 105 of 1997.
6. Possession of firearms
in contravention of section 3 read with sections 1, 103, 117, 120 (1)
(a) and 121 read with schedule 4
of Act 60 of 2000 further read with
section 250 of Act 51 of 1977.
7. Possession of
ammunition in contravention of section 90 read with sections 1, 103,
117, 120 (1) (a) and section 121 of Act 60
of 2000 further read with
section 250 of Act 51 of 1977.
[3]
However accused no.3 is not charged in respect of counts 14,15,16 and
17.  Accused no.5 is charged with only four counts
being
counts14, 15, 18 19.
[4]
In respect of the counts of murder and robbery with aggravating
circumstances, accused were warned that the state could rely
on the
provisions of section 51 (1) and 51 (2) and ask for the prescribed
minimum sentences to be imposed should they be convicted
of the
relevant charges.
[5]
All the accused pleaded not guilty to all the charges preferred
against them.  They all elected not tender any plea
explanations.
The state made a brief address in terms of
section 150 of the Criminal Procedure Act 51 of 1977 (the
Criminal
Procedure Act) in
which it indicated that it would rely on a
section
204
witness as well as circumstantial evidence.  The state
indicated that the said witness was an accomplice during the
commission
of all the offences.
Summary
of substantial facts
[6]
The summary of substantial facts in terms of
section 144
(3) (a) of
Act 51 of 1977 is as follows:
1. During 2015 the
accused planned to commit robberies in shops around the Bizana area.
2. They also realized
that they would or might have to use force to achieve their purpose
to overcome resistance to their plans
or to make good their escape.
To this end they armed themselves with firearms loaded with
ammunition.
3. They executed their
plans in various shops.  During the said robberies they broke in
and stole money, wielding firearms.
4. In some of the
robberies they shot the victims when they resisted.
5. In all the counts in
the indictment, the accused were acting in concert and in furtherance
of a common purpose.
6. The provisions of
section 51 (1) of act 105 of 1997 are applicable in respect of the
counts of murder in that:-
6.1 The killing of all
the deceased was planned or premeditated.
6.2 The death of all the
deceased was caused by the accused after having committed robbery
with aggravating circumstances, to wit,
wielding of firearms.
6.3 The accused were in
the execution or furtherance of a common purpose or conspiracy.
7. The provisions of
section 51 (2) of Act 105 of 1997 are applicable in respect of the
counts of robbery.
General
remarks
[8]
In addition to the section 204 witness who was actually involved in
the commission of all the armed robberies there is another
section
204 witness who was called by the state.  This witness’
evidence relates to the recovery of some of the firearms
and
ammunition but was not alleged to have been involved in the robberies
themselves or even their planning.  In respect of
the
involvement and participation in the relevant crimes each 204 witness
is a single witness in that there is no other evidence
by the state
of a person who saw and identified the accused either at the
different crime scenes or who was told by any of the
accused about
the commission of the offences before or after they were committed.
[9]
This therefore means that the evidence of the two section 204
witnesses is extremely crucial in this case as theirs is the only

direct evidence linking the accused before court to these crimes.
[10]
The legal position in respect of section 204 witnesses is trite and
to that extent no authority needs to be cited that their
evidence
must be treated with caution.  To the extent that they are also
single witnesses further caution in dealing with
their evidence is
required.  They are accomplices who may still be charged with
these counts – unless the court is satisfied
in terms of
section 204
of the
Criminal Procedure Act that
their evidence may be
accepted as credible and satisfactory in every material respect.
If so, they may be discharged from
further prosecution as provided
for in the
Criminal Procedure Act.  This
provides a very strong
motive for them to falsely implicate the accused and therefore in
assessing their evidence this Court must
be alive to this reality.
[11]
It became clear as the trial progressed that the defence of each of
the accused was a down right and absolute denial of their
involvement
in the crimes.  They did not dispute the fact that the crimes
were committed at the places and on the dates mentioned
in the
indictment and the manner in which the crimes were committed was not
placed in issue.  The only dispute is whether
or not the accused
before Court are implicated in the offences, that is whether they
were part of a gang of robbers who robbed
and killed and in some
instances almost killed on the dates and at the places set out in the
indictment, the victims mentioned
therein.  Other than one of
the
section 204
witnesses who was involved in the robberies his
evidence suggests that there were two or three more people involved
who were not
charged for whatever reason.
[12]
The evidence of the accused before court was that the
section 204
witness who was involved in the offences was falsely implicating
them, that his evidence is untruthful and is given by the witness
to
exonerate himself from the crimes while hiding the actual
perpetrators with whom he committed these offences.  For these

reasons, so the evidence of the accused went, the evidence of the 204
witnesses should be rejected by Court as sheer fabrication
concocted
to hide the true identities of the actual criminals.
[13]
It follows that despite the voluminous nature of the evidence in this
matter the issue involved is relatively narrow.
That is whether
the State has discharged the onus of proving beyond reasonable doubt
that the accused before Court are implicated
in the charges preferred
against them.  In this judgment I will focus largely on this
issue, namely the identity of the persons
who committed the offences
mentioned in the indictment.  Therefore, unless it is necessary
for some or other reason, I do
not intend to deal with any of the
other evidence placed before Court which does not contribute to the
identification of the accused
before Court as the people who
committed the offences for which they were charged.
[14]
I consider it convenient to start with the evidence of the
section
204
witness who participated in the planning and execution of the
robberies.  I will deal with the counts
ad seriatim
and
according to the evidence relating to each incident.  Because
there were numerous incidents in which this witness together
with the
people with whom he committed the crimes at different times and
different places, I have also considered it necessary
to punctuate
the evidence of this witness with the evidence of other witnesses in
relation to each incident.  This is done
not as corroboration of
the evidence of this witness in so far as he implicates the accused
but to make it easy to understand what
took place at a particular
crime scene and the
modus operandi
of the assailants.  I
will thereafter deal separately with counts 18 and 19, the unlawful
possession of firearms and ammunition
in respect of which the
evidence of the second
section 204
witness will become relevant.
The
case for the state.
[15]
The state called the first
section 204
witness Mr Xolani Mafufu
Ngonini (Ngonini) on whose evidence the state relied to establish the
identity of the perpetrators in
respect of the charges as well as how
the offences were committed.  The complainants themselves did
not know the perpetrators
or could not identify them when the
offences were committed as they were unknown to them and in some
instances some of them were
wearing baraclavas.
[16]
Ngonini testified that he resides at Monti locality in Bizana.
He knows all five accused as he stayed with them in the
same locality
or in the same area.  He grew up together with accused no.1, 2,
3 and 4.  He had known accused no.5 for
only about ten years.
He is related to accused no.1 and he grew up staying at a Ngonini
homestead and accused no.1 belongs
to the Ngonini family.  I
must, at the onset, point out that the fact that Ngonini knows all
the accused very well is common
cause.
[17]
He confirmed being involved in the commission of all nineteen counts
and having been present when all the incidents mentioned
in the
indictment were committed.  What follows is his evidence of how
each of these offences came to be committed.
Counts
1, 2, 3 and 4 - Nomlacu incident
[18]
Ngonini was at the homestead of accused no.1 together with accused
nos 1 to 4 and some other people, namely, Nyaniso, and Sibongo.

Accused no.1 told them that he had identified a place at Nomlacu
locality in Bizana in which some foreigners stayed.  He told

them that the foreigners did not bank their money and they kept it at
their houses or places of residence.
[19]
Accused no.1 drove Ngonini, accused no. 2, 3 and 4 together with
Nyaniso also known as So and the late Sibongo to Nomlacu to
commit
robbery on the foreigners who ran a shop there.  He, accused
no.2 and 3 and Sibongo were carrying small firearms.
Accused
no.4 was carrying a pump action gun and So was carrying a riffle.
He did not see if accused no.1 was carrying any
firearm.
Accused no.1 drove them in a grey Isuzu bakkie with a white canopy.
This was after 20:00 although he did not
remember what the time was
exactly.  They all got the firearms and ammunition from accused
no.1 save for accused no.3.
Accused no. 5 was not present when
the Nomlacu robbery was committed.  Accused no.3 had his own
firearm, a star fire 9mm pistol.
[20]
Accused no.1 dropped them off on the road in the area of the targeted
shop and they proceeded on foot led by accused no.2 and
Sibongo.
After accused no.1 dropped them off he drove back towards town in
Bizana.  They proceeded to a certain homestead
where they jumped
over the fence into the garden and proceeded towards the house.
Accused no.4 cut the fence that fenced
the yard using a pliers.
They entered the premises, moved to a building in which there was a
spaza shop.  The door thereof
had burglar bars and accused no.2
and Sibongo cut the burglar bars using a chain cutter.
[21]
Sibongo kicked open the door and entered with accused no.2.  He
and accused no.3 left accused no.4 at the door way and
entered into
one of the rooms in which they gained entry by kicking the door.
They found a girl and a woman inside that room
and they pointed them
with firearms.  He fired a shot next to the bed on which the
woman was, threatening her and demanded
money.
[22]
He, together with accused no.3 proceeded to another room in which
accused no.3 kicked the door open.  They found a man
there and
pointed him with firearms and demanded money.  The man gave them
the money and he took it and put it in the backpack
that Sibongo was
carrying and they left.  Visibility was good as the place had
electric lights that were on.
[23]
As they were leaving they noticed a person approaching towards the
gate and a car which was also coming towards them.
They hid
next to the gate outside the premises and the vehicle drove past into
another homestead.  He stood up and fired a
shot at the person
who was coming towards the gate.  That person reversed and hid
amongst the shrubs that were there next
to the gate.  Sibongo
fired a shot at the person who had probably hidden himself near
Sibongo.  When Sibongo told them
that he had shot the person,
they re-entered the premises and found the person lying there and
took his firearm, a 9mm pistol.
[24]
After Sibongo had taken the firearm from the person he had shot, they
noticed other people coming from other homesteads.
He and
Sibongo fired at the people.  The people ran back to the houses
and they left and hid near a water tank.  Accused
no.4 called
accused no.1 and the latter came back in the Isuzu bakkie and took
them to his homestead.  Accused no.1 and 4
counted the money.
He did not remember how much it was in total but each person got
R1000.00.
[25]
The state also called Ms Nomasinali Skotoyi to testify on this
incident.  She testified that she stayed at Nomlacu locality
in
Bizana.  The deceased Zolile Skotoyi was her husband.  On
the 17 March 2015 at night she was at home with the deceased.

She is an educator by profession.  On that night she was sitting
in the living room marking school papers.  Her husband
was in
another room.  Her husband owned a 9mm Parabellum firearm.
At about 22:00 while attending her restless nine months
old baby she
heard a gunshot from the direction of the gate.
[26]
After hearing the gunshot she proceeded to the sitting room.
She put on the outside light and opened the door to get
out.
Eventually she went out and saw her husband lying down next to the
gate.  She testified that her husband was lying
next to the
fence where there are some shrubs.  A neighbour who came to the
scene told her that her husband was dead.
The following day she
went to identify his body at the forensic services.  He still
had his firearm holster on his body but
the firearm was not there.
[27]
The state also called Ms Nomfusi Majila.  She testified that she
stayed at Nomlacu locality in Bizana.  She was in
her homestead
when she heard a banging of the door and the door opened.  Two
persons entered.  She and her daughter screamed
and one of the
persons fired a shot near the bed and ordered them to keep quiet and
demanded money.  She gave them R370.00
that she had.  The
assailants proceeded to a room in which some Etheopians stayed,
robbed them and put the money in a bag
they were carrying.  All
of them were carrying firearms, some small firearms and one of them
carrying a big firearm.
She realized the following morning that
the fence that fenced the homestead had been cut next to the gate in
the garden.
She learned that night that Mr Zolile Skotoyi had
been killed.
Counts
5, 6 and 7 - Ludeke incident
[28]
On the Ludeke incident Ngonini testified that accused no. 1 informed
them that he had identified an Indian shop as a robbery
target at
Ludeke locality in Bizana.  Accused no.1 drove them to the
Ludeke shop after 20:00.  It was himself and accused
1-4,
Sibongo and Nyaniso.  The same vehicle that was used to
transport them to and from Nomlacu was used.  They carried
the
same firearms, being the small firearms for himself and Sibongo,
accused no.2 and 3 with accused no.4 carrying the pump action
gun and
Nyaniso carrying a riffle.
[29]
Accused no.1 dropped them off there at Ludeke and drove back towards
the town of Bizana.  The shop was already closed
but there were
some people who were drinking outside the shop.   They
pointed those people with firearms asking them
where the shop owners
were.  They were told that the people who worked at the shop
were inside the shop.  Sibongo cut
off the burglar bars with a
chain cutter.  He together with accused no.3 went to the back of
the shop to prevent those people
inside the shop from running away
through the back door.
[30]
The shop owners were standing at the door at the back of the shop and
they drove them inside the shop where Sibongo was as
he had already
entered from the front.  He heard gun fire but was not sure who
had fired the shot.  There were lights
that were not very
bright.  They demanded money from the Indian people who took out
the money they had.  He took the
money and put it in the
backpack carried by Sibongo and they left.
[31]
On the road near the Hovu area accused no.4 called accused no.1 who
came to pick them up and dropped them off at Sbomvini locality.

They walked from there to accused no.1’s homestead.  The
money was shared and each person got R1000.00.  Accused
no.1
counted the money and gave each person his share.  When the
robbery was committed they could not be identified as they
were
wearing baraclavas.
[32]
The state then called Ijaz Qasim.  He testified that he is a
Pakistan national.  He worked at a shop called Zindela
at Ludeke
locality in Bizana which was owned by Sana Ulah.  He stayed in a
room that was attached to the shop.  On 22
February 2015 at
night the owner of the shop Mr Sana Ulah was on his way from Durban.
[33]
Parvez Ahmed was in another room which was not attached to the shop.
He was woken from his sleep by a sound that was
like a door was being
broken down.  The time was 23:30 and he peeped through the
window and saw people breaking into the shop.
He and his three
friends who were with him in his room went to knock at the room of
Parvez Ahmed telling him that the shop was
being broken into.
Parvez Ahmed went to wake up his workers who slept in another room.
One of the assailants came from
the shop and walked towards Parvez
Ahmed and shot him with a small firearm.  After shooting Parvez
Ahmed the assailant put
a gun on his head and demanded money.
He gave the assailants whatever cash was there at the shop which was
between R10 000.00
and R20 000.00 and they left. Mr Sana
Ulah arrived and took Parvez Ahmed to hospital but he died on the
way.
[34]
There were about four or five assailants.  He testified that all
the accused were present and the one who shot Parvez
Ahmed was
accused no.1.    He sounded very confused even though
he insisted on having identified the assailants.
His evidence
was totally unreliable on the identity of the assailants and his
insistence that it was accused no.1 who shot the
deceased was at best
a deliberate attempt to ensure that someone was convicted for the
killing.  He was just unable to state
how he was able to
identify the accused as he said they were all there.
Count
8 and 9- Mpetsheni incident.
[35]
Ngonini testified that accused no.1 told them that he had identified
an Indian owned shop at Mpetsheni locality and drove them
to the said
shop in Mpetsheni in the same Isuzu bakkie.  Amongst the accused
only accused no.5 was not present.  It was
also in the evening
at about 20:00.  Accused no.2 was leading the way.  So and
Sibongo were also present.  Accused
no.1 dropped them off there
and left.  The premises were fenced.  One of them cut the
fence but he was not sure which
one of them cut the fence.  They
entered the premises and noticed that the door had burglar bars.
They did not cut the
burglar bars as they were not sure if it was a
homestead or a shop.
[36]
He and Sibongo went to the back where they saw another door at the
back.    Sibongo kicked the door open and
they entered
and found some people inside the shop.  It was dark inside and
he switched on his torch light.  They noticed
a person inside
coming towards them and he and Sibongo fired shots at the person
until he fell down.  There was also a woman
there and they
pointed firearms at her.  The person they shot was a male
person.  They demanded money from the woman
who pointed them to
the shop.  They found some Indian people there and pointed
firearms at them.  Their other friends
were outside keeping
guard.
[37]
They told the Indian people to open the door which they did.
Accused no.2, 3 and 4 entered and So remained outside watching.

They demanded money and the Indian people said they had used the
money to order stock and gave them what they had which was about

R1000.00.  They left and proceeded to a playground called Tsolo
where they found accused no.1 waiting for them in the Isuzu
bakkie
and he took them to his homestead where the money was shared.
He could not recall how much each person got.
[38]
The state then called Nomalanga Nongayiyana to testify.  She
testified that she resided at Mpetsheni locality in Bizana.
Mr
Zolani Benjamin Madikizela was her husband.  On the 18 February
2015 they were at their homestead that night.  Their
house
doubled as a shop as well.  They heard a dog barking, her
husband went towards the doorway.  The door was kicked
open.
A shot was fired and her husband fell down and she noticed two
persons inside.
[39]
One of the persons had a torch light on.  She cried and they
kicked her and took her phone.  The assailants thereafter
kicked
the door that led to the shop where there were some Indian nationals
who were running the shop in the same house.
They demanded
money from those people.  At some point the assailants left.
The premises were fenced and she later saw
that the fence in the
garden had been cut.
Count
10 - Norrocks shop - Nikwe
[40]
On this incident Ngonini testified that he could not remember who
suggested that they should go and rob Norrok’s shop
at Nikwe
locality while they were at accused no.1’s homestead.  It
was accused no.1 to 4, So and Sibongo were also present.
They
were carrying firearms as in other incidents.  In all the
incidents he could not see what accused no.1 was carrying because

they were at the back of the bakkie all the time while accused no.1
would be at the front driving.  Accused no.4, would sit
in the
front passenger seat of the bakkie.
[41]
They were dropped off by accused no.1 at or near the shop which was
already closed and he left.  Accused no.2 cut the
chain on the
door of the shop with a chain cutter.  The chain had been used
to lock the burglar bars.  They also broke
the pad lock and
accused no.2 and 3 and Sibongo entered the shop.  Accused no.4,
So and himself remained outside.  He
saw a police vehicle
stopping on the road.  He called on those inside to get out.
As they were getting out of the shop
they started firing at the
police who returned fire.  He and others ran towards the Majola
area.  Accused no.4 called
accused no.1 to come and fetch them
and he took them to his homestead.  There was nothing to share
as the robbery was unsuccessful
and they later went to their separate
homesteads.
[42]
The state then called Mr Khurran Shanzad to testify.  He
testified that on the 18 January 2015 he ran a shop at Nikwe
locality
in Bizana.  That night he was in a room inside the shop.
At about between 21:00 and 22:00 he heard a noise
and tried to call
the police.  The assailants struggled trying to cut the burglar
bars in his room until police arrived.
He then heard a shootout
between the police and the assailants who left without taking
anything.
[43]
The state called warrant officer Maqethuka.  He testified that
on the 18 January 2015 at about 22:00 he was doing crime
prevention
duties patrolling around Bizana.  They received a report of a
robbery in progress at Norroks shop at Nikwe locality
in Bizana.
At about 22:30 they arrived at Nikwe locality, left the car on the
road and walked towards Norroks shop.
At about 10 meters to the
premises one suspect saw them and started firing at them.  They
returned fire and other suspects
exited the shop and also fired at
them as they were running away.  After the suspects had run away
they proceeded to the shop
and found the shop owner and an employee
there.  They saw empty cartridge cases of a pump action shot gun
and  pistol.
Counts
11, 12 and 13 - Wayside Shop, Redoubt
[44]
Ngonini testified that on this occasion he had gone to accused no.1’s
homestead during the day.  Sibongo told him
that the others had
volunteered themselves to go and rob the Wayside shop.  It was
himself, accused no.2, accused no.3, accused
no.4, Sibongo, So and
Joe.  Accused no.1 was also present.  He later went back to
his homestead and returned to accused
no.1’s homestead in the
afternoon.  Accused no.1 drove them to the Wayside shop in the
Isuzu bakkie.  They were
carrying the same firearms as usual.
He could not see what accused no.1 was carrying, if he carried any
firearm.
[45]
Accused no.1 dropped them off there and left.  There were still
many people around so they decided to wait until there
were fewer
people.  They returned later and one of them cut the fence with
pliers.  They went to the rooms at the back
where they kicked
open the door and entered.  They pointed a person they found
inside with firearms and asked him where his
bosses were.  He
told them his bosses were in the other building which was a separate
house.
[46]
They instructed this man to go and knock for them.  He said his
bosses would not open for him but would open for the security
guard.
As they were going to the security tower the security guard saw them
and started firing shots at them.  They
returned fire.
Sibongo entered the guard room and took the firearm from the security
guard which was a 9mm pistol.
They ordered him to go and knock
at the shop owner’s house.  The house had burglar bars
which Sibongo broke with a chain
cutter.  As Sibongo was cutting
the burglar bar they heard a gunshot.  The security guard told
them that he was injured.
[47]
It was not one of them who fired the gunshot.  Whilst still
shocked at this one of them saw the police.  The police
fired
some shots at them and they returned fire and ran towards Shazi and
Nontshe area where Joe called accused no.1.  He
came and took
them in his Isuzu bakkie to his homestead whereafter they went to
their separate homesteads.  He did not know
what happened to the
said firearm.  In this robbery they did not get the money and
did not share anything.
[48]
The state called Mr Siphamandla Mduluswa to testify.  He
testified that on the 26 February 2015 he was at work as a security

guard at the Wayside shop.  He was seated in a security tower.
He saw his colleague Masonwabe who stayed in the same
premises as the
shop being driven by some people.  Those people fired shots
towards him and kicked the door of the security
tower open.  He
tried to call his employer,   Mr Mvalo who was running the
security company for which he worked.
[49]
When the assailants reached him they took him out of the tower
demanding that he must show them where the Chinese were.
He
proceeded to show them where the Chinese were.  As he was about
to reach the door the Chinese fired a shot from inside.
The
door had burglar bars and the assailants cut them with a big pliers.
They could not open the door because there was an
exchange of gunfire
and he got shot.  He sustained a gunshot wound to his left thigh
and fell down.  Police came and
the assailants started firing at
the police.  The assailants robbed him of his cellphone.
He testified that he did not
have a firearm and he did not fire any
shots that day.
Counts
14 and 15 - Mthayisi incident.
[50]
Ngonini testified that he was called by his nephew telling him that
he was being called at the homestead of accused no.1.
When he
got there accused no.1 told him and accused no.2 and 4 and 5 as well
as Sibongo that they were going to go to Mthayisi
locality where
there was a red motor vehicle to rob at that place.  Accused
no.3 was not there.  They all carried small
firearms.  They
proceeded to Mthayisi being driven there by accused no.1 and again he
did not see if he carried any firearm.
It was during the day
although he is not sure what the time was.
[51]
Accused no.1 dropped them at Mthayisi locality and they walked to the
targeted shop in pairs of two.  Accused no.4 and
5 were in
front, accused no.2 and Sibongo were behind and he was in the
middle.  Accused no.4 and 5 entered the premises where
the shop
was.  He noticed a person standing on the doorway and he went
behind the house.  At this time accused no.4 and
5 were already
inside the shop.  When he was behind the shop he put on his
baraclava and cocked his firearms.  He approached
the person who
was standing at the doorway pointing him with a firearm, pushing him
into the shop.
[52]
On entering the shop he noticed that accused no.4 and 5 had already
started with the robbery.  They were demanding money
while he
was keeping guard on the person he had forced into the shop.  No
shots were fired.  Accused no.2 and Sibongo
came in also
pointing firearms and one of them demanded car keys which were then
given to accused no.4 although he could not remember
which one of
them demanded the keys.  Accused no.4 proceeded to the car and
started it, which was a small Nissan bakkie.  Sibongo
locked the
shop owners inside the shop in another room.  They all left in
that vehicle which belonged to the shop owners and
accused no.4 drove
the vehicle.  They later abandoned the vehicle and were picked
up by accused no.1 with the Isuzu bakkie
after he had been called by
accused no.4.  He took them to his homestead where accused no.1
divided the money and he received
R1000.00.
[53]
The state called Mr Hubidamu Fikire Shamagu.  He testified that
he is an Ethiopian national who runs a shop at Mthayise
locality in
Bizana.  On 5 May 2015 he was in the shop storeroom which is
inside the shop, his employee, Nofika was in the
shop serving
customers.  Another employee named, Bee was also in the shop.
Nofika and Bee were forced into the storeroom
by some three
assailants who ordered him to lie down pointing him with firearms.
The time was about 14:00.  All three
assailants had firearms.
They closed his mouth with a sellotape and tied his arms and legs as
well.  It is the fourth
assailant who entered and tied him.
This person demanded car keys from him and he gave him his car keys.
Others
were searching the room.  The car was a Nissan 1400
bakkie which was maroon in colour.  They found the money, took a
padlock and locked them inside the storeroom and left.
[54]
The owner of the shop later came and opened for them.  The car
was found on the same day at Ntlozela village about 15
kilometres
from Mthayise locality.  The money that the assailants took was
R40 000.00.  He managed to see two of
the assailants who
were not wearing baraclavas.  One of them had a moustache,
tribal cuts, short and had a big chest.
The second one was slim
and tall.    He could not identify the other
assailants because they were wearing baraclavas.
Accused no.4
entered the storeroom first and ordered him to lie down.  He
pointed him with a firearm and took his money.
Accused no.5
entered last tied his month, and hands with a sellotape.  He
took the keys and locked them in the storeroom.
There was an
identity parade in which he pointed accused no.4 and 5.
However, he could not remember the numbers accused 4
and 5 were
carrying during the identity parade.
Count
16 and 17 - Dindini incident.
[55]
Ngonini was at home that afternoon when he saw his other partners in
the robberies at accused no.1’s homestead.
He went there
and indeed accused no.1, 2 and 4 as well as Sibongo were there.
Accused no.1 took them in the Isuzu bakkie
although he did not know
where the vehicle was going.  On the way he asked accused no.2
and Sibongo as to where they were
going as they were taking a turn to
Dindini locality.  He was told that they were going to
Nelisile’s person.
He then recalled being told by accused
no.1 at a certain stage before that day that a person known by
Nelisile was keeping money
at his homestead for purposes of buying a
car.
[56]
Accused no.1 dropped them at Dindini locality.  He, accused no.2
and 4 and Sibongo walked along the road until they met
Nelisile.
At this stage accused no.1 was not there as he had left after
dropping them off.  Nelisile took them to a
certain homestead
and showed them a certain rondavel saying the person was in that
rondavel.  Sibongo kicked open the door
of the rondavel.
Indeed the person was inside, they pointed him with firearms.
[57]
Sibongo told the person to get the keys for the shop to open the
shop.  They took this person to the shop which was not
far from
the rondavel.  On this occasion accused no.4 was carrying a .38
revolver.  The person opened the shop and they
entered with
him.  There were electric lights in the shop.  Sibongo
demanded the money this person was going to use in
buying a car.
This person told them he had given the money to somebody else for
safe keeping.  Ngonini suggested that
they should leave and he,
accused no. 2 and 4 got out of the shop leaving Sibongo inside with
this person.
[58]
As they were leaving they heard a gunshot and they returned to the
shop.  When they were at the door of the shop they
saw the
person lying down with Sibongo carrying a firearm.  They left
and hid near Majola where accused no.4 called accused
no.1 to fetch
them.  He came in the Isuzu bakkie and took them to his
homestead.  He, accused no.2 and 4 asked Sibongo
why he killed
that person.  Accused no.1 was present when they confronted
Sibongo for killing the person.  They reported
to accused no.1
that they did not get the money as that person had given it to
somebody else for safe keeping.
[59]
He also testified that in robberies in which they got the money
accused no.1 and 4 would count the money and give them their
shares.
Accused no.1 was the mastermind behind all the robberies and the
planning took place at his homestead.  He testified
that
Sibongo, Nyaniso and Joe were never arrested.  When he was
arrested he denied knowing about the robberies when police
questioned
him.  Police tortured him by covering his head with a plastic
bag suffocating him.  His co-accused at the
time also told him
that they were also tortured and suffocated.
[60]
After being tortured he was taken to Port St Johns to make a
confession.  He made the confession for fear of further
torture.  He did not freely and voluntarily confess to the
offences but was induced to confess through torture.  He was

tortured by police officers Chiya, Guqaza and Njiva.  He later
appeared in the Magistrates’ Court where he made a bail

application.  He told the magistrate about being tortured by the
police.  Even during the bail application he denied
involvement
in the crimes and said he knew nothing about these offences.
[61]
On the Dindini incident the state also called Mr Lulamile Wellington
Mazimbeni.  His evidence was that he saw Mr Mzomhle
Sojeleza
Mazimbeni in the shop in the late afternoon of that day at about
17h00.  The said shop is his but had rented it out
to the
deceased.  The deceased stayed in his own homestead which is not
far from his homestead.  His homestead is in
the same premises
as the shop.  He heard a gunshot from the shop at about 20:20
while he was sleeping in his house which is
very close to the shop.
After a while he went out and noticed that the lights at the shop
were on.  The shop usually
closed at about 19:30.  He
phoned the deceased but could not get through.
[62]
Eventually he went to the deceased’s homestead and found
blankets upside down.  This was a rondavel and its door
had
fallen inside.  The deceased was not there.  He then
proceeded to the shop.  He found its doors wide open and
the
lights were on.  He peeped inside the shop and saw the deceased
lying under the pool table.  He called out his name
but he did
not respond and was not moving and there was blood on the floor.
He called the police who eventually arrived and
it is then that he
inspected the body of the deceased.  He noticed that the
deceased had gunshot wounds on his upper body
and eventually Mr
Mzomhle Sojeleza Mazimbeni was confirmed dead.
On
his conversion
[63]
Ngonini further testified that at some stage he was detained at
Kokstad Bongweni  prison.  This is where he read
the bible
and after he read the bible he  realized that killing a person
is a bad thing.  After reading the bible and
realized that his
conduct was wrong it bothered him that he prayed asking God for
forgiveness and then came to court and lied.
He then decided to
tell the truth.  He told a senior correctional services officer
there in Kokstad prison that he had decided
to tell the truth.
That officer called Bizana police who came to see him.  It was
captain Freemantle who came to him
and he told him the truth about
what happened in relation to the offences.
[64]
After his discussion with him captain Freemantle returned to Bizana
leaving him there at Kokstad.  A few days later he
received a
letter from accused no.2 in which it was said that they knew what he
was doing.  He reported this incident to correctional
services
officers and showed them the letter.  Accused no.2 was then
removed from cleaning duties which he was doing at the
time.  He
(Ngonini) was later taken to Bizana police station.  A few days
later he met a police officer by the name of
Jungqwana and told him
everything about the offences.
[65]
Jungqwana told him about the possibility of becoming a state
witness.  He told Jungqwana that he was prepared to tell
the
police everything.  He was later put into the witness protection
program.  It is the bible that influenced him to
change his mind
and tell the truth.  Since being taken into the witness
protection program he no longer has access to the
bible but he still
remembered what he had read from the bible whilst he was in Kokstad
prison.
Cross
examination for accused no.1.
[66]
Under cross examination by Mr Linyana, Ngonini confirmed having taken
an oath during his bail application in the magistrate’s
court.
During the bail application he had denied complicity in the
commission of the offences for which he had been arrested.
He
testified that it is not true that he would give evidence favourable
to himself including denying under oath something that
had happened
if it suited him.  He explained that he together with accused
no.1 had agreed that during bail proceedings they
would deny
involvement in the crimes.  This was to ensure that it did not
come out that accused no.1 was the brains behind
the robberies and
that the pump gun and the riffle came from him.  He confirmed
having said during bail proceedings in the
magistrate’s court
that police wanted him to be a
section 204
witness because they
wanted accused no.1 but he had lied in saying that.
[67]
He confirmed that during bail proceedings he lied because he wanted
to be released on bail.  He denied that he became
a
section 204
witness because police promised him favours.  He testified that
accused no.1 was the mastermind behind the commission of these

offences.  He was not persuaded or threatened by accused no.1 to
get involved in the offences.  He believed that the
vehicle, the
grey Isuzu bakkie with a white canopy belonged to one Deon.
That vehicle was no longer in use after it hit a
person in an
accident.
[68]
He was present when accused no.1 came back with the pump action gun
that accused no.4 was using and the riffle that Nyaniso
was using.
Accused no.1 had acquired those firearms when his homestead was burnt
by community members.  Accused no.1
mentioned to him that he
borrowed them from a certain man in Nyanisweni.  This was before
the offences were committed and
accused no.1 obtained them for
self-defence.
[69]
The
section 204
statement by Ngonini was admitted as exhibit “A”.
However cross examination on the
section 204
statement did not take
the matter any further.   Ngonini confirmed his evidence in
chief that he never saw accused no.1
carrying any firearm or
ammunition.  He confirmed that the role played by accused no.1
in these offences was that he planned
the offences, drove them to the
armed robbery targets and divided the money giving each person a
share after a successful robbery.
The version of accused no.1
which was put to Ngonini was that he denied being involved in
planning the robberies, giving firearms
to anybody, transporting
anybody to commit crimes and any other involvement in any of the
offences.  The witness testified
that the denial by accused no.1
was not true and insisted on his earlier evidence in chief.
[70]
Under cross examination by Mr Sodo on behalf of accused no.2 and 3
Ngonini testified that when he was arrested he was severely
assaulted
by the police who also assaulted his wife.  He testified that
during bail application he lied in some of his evidence.
For
instance his denial of his complicit in the offences was a lie.
He had also lied in saying that on the dates of some
of the incidents
he was in Durban.  He confirmed that through reading the bible
he confessed to God and decided to change
his earlier denial he had
made during bail proceedings and to tell the truth about what
actually happened.  It was put to
him that accused no.2 and 3
continue to deny being involved in the offences in any way whatsoever
and have not changed from the
version they placed before court during
bail proceedings.  He testified that they are denying something
that they know, that
is their involvement in the offences as he had
earlier testified in his evidence in chief.
[71]
Under cross examination by Mr Nohiya on behalf of accused no.4 and 5
Ngonini testified that he went to Ntshanga in Durban when
the police
were looking for him where he was arrested.  He confirmed that
if he had not been arrested he would never have
told the police about
the crimes and in fact when he was arrested he denied being involved
in the offences.  He testified
that in prison they were given
reading material as awaiting trial prisoners and that is how he got
the bible and read it.
[72]
He also testified that accused no.4 and 5 were not wearing baraclavas
while he and the others were wearing baraclavas during
the Mthayise
robbery.  He denied that accused no.5 was in Durban on 5 May
2015, the date of the Mthayise robbery.  It
was put to him that
accused no.5 left Bizana in April 2015 and only came back on 16 May
2015.  Ngonini testified that the
Mthayise incident happened
after they had paid bail for accused no.5.  He maintained that
both accused no.4 and 5 were involved
in the offence for which they
have been charged and testified that their denial of involvement is
not true.  It was put to
him that bail for accused no.5 was paid
for by one Zonakele when he was arrested for an unrelated matter.
Ngonini testified
that Zonakele might have paid bail but he and the
others collected the money for bail.
[73]
The state also called Mr Kuhn Joseph Godden who testified that he is
a senior correctional services official and is the division
head of
security at Bongweni Maximum Security Prison in Kokstad.  He has
been working there since the prison opened in 2002.
During
September 2016 to the middle of December 2016 he was a unit manager
for phase 2 where the accused and Ngonini were detained.
His
duties included seeing to it that detainees were treated humanely,
there were officials to perform different functions, detainees
did
daily exercises and showered and he checked their rooms regularly.
[74]
He visited the cells once a week or at times once in two weeks.
The prison maintained a library to enable prisoners to
read, study
and even do research.  Detainees would send requests for the
specific books that each detainee wanted.  Until
September 2016
awaiting trial detainees were not allowed to get books.  He
received a complaint from awaiting trial detainees
about the fact
that they were not allowed access to books.  He made an
application to the head of the prison to let awaiting
trial detainees
also have access to reading material.  That application was
approved and since about the middle or end of
September 2016 to date
the awaiting trial detainees do receive reading material as well.
There were different types of books
including bibles of all
languages.
[75]
At some point he received a request from one of the correctional
services officials that Ngonini wanted to speak to the investigating

officer.  He went there to see him.  Ngonini told him that
he had been reading the bible and he wanted to reveal everything
that
had happened.  He then told Ngonini that he would have to speak
to the investigating officer of the case.  He did
not know who
the investigating officer was at the time but Ngonini told him it was
captain Freemantle.  He went to his office
and phoned captain
Freemantle and informed him that one offender wanted to confess about
the crimes.  Freemantle did not come
immediately until he phoned
him again a day or so later.  Freemantle eventually came and
went to see Ngonini.  Thereafter
captain Freemantle left and he
was not present during his discussions with him.
[76]
About a week or two thereafter he received information that Ngonini
was being threatened.  He phoned captain Freemantle
and informed
him about Ngonini being threatened and wanted to know what was to be
done to protect Ngonini’s life.  Ngonini
had received a
threatening letter from one of the detainees who was on cleaning
duties who was one of the accused in this case.
Freemantle said
he would make arrangements to remove Ngonini from Bongweni to a safer
place.  In December 2016 Ngonini had
been removed from Bongweni.
For security reasons he generally did not write information about a
detainee who wanted to confess
as he saw that as information that
could threaten the life of a detainee if it became known.
[77]
Freemantle also testified that the accused before court were arrested
together with Ngonini and detained in Kokstad Bongweni
Prison.
He received a telephone call from captain Godden from Kokstad
correctional services telling him that Ngonini wanted
to see him
about the crimes he had committed.  Because of the work pressure
he did not go there immediately and Godden called
him again reminding
him about Ngonini’s request.  He then proceeded to
Bongweni Prison in Kokstad to meet Ngonini.
Ngonini told him
that he was tired of lying in court because in his cell he prayed for
forgiveness from God about what he had done.
He wanted to tell
him the truth.  He then went on to tell him about his
participation in the offences.  He received another
call from
Godden telling him that Ngonini had received death threats from his
co-accused.  He then arranged for Ngonini to
be removed from
Kokstad to a safe place in Bizana.
[78]
The state called warrant officer Gcobani Mbizafa to testify about an
identification parade that he conducted.  He testified
that on
21 May 2015 he received a request to conduct an identification parade
at Bizana Prison.  He did not know the suspects
as he was not
involved in the cases for which the suspects were arrested.  He
saw them for the first time on that day in prison.
The suspects
were accused no. 4 and 5.  He complied with all the normal
identification parade requirements.  There were
three witnesses
that were going to participate in the parade.  The first two
witnesses arrived but the third one arrived later.
All three
witnesses pointed at accused 4 and 5.
[79]
The state indicated that the whereabouts of those two witnesses were
unknown and as such would not testify in these proceedings.
The
third witness Mr Hubitamu Fikire Shamagu was brought in.  He
identified accused no.4 and 5 positively.  In completing
the
form where it provides for the choice whether the legal
representative was required by the suspect he left that space blank.

He testified that the election of the suspects was that they did not
require legal representation but he had forgotten to indicate
that
election.
[80]
He was not successful in arranging for a photographer to be present
and could not delay the parade as he had been informed
that the time
for the suspects to appear in court would expire if he delayed.
He denied that the identification parade took
place on 22 May 2015.
Counts
18 and 19 – Possession of firearms and ammunition.
[81]
The state called Mr Thamsanqa Nombola (Nombola) a
section 204
witness.  He testified that he resides at Ntsimbini locality in
Bizana.  He knows accused no.1 and 5.  He had known
accused
no.1 for three or four years from the taxi rank where they worked
together as taxi drivers.  He also knew accused
no.5 also from
the taxi rank where he worked as a taxi conductor.  He testified
that in April 2015 he received a telephone
call from accused no.1
whilst he was at his home.  He asked him where he was and he
told him that he was at home.  Accused
no.1 then arrived at his
home in a white Toyota Hilux bakkie.  He went to meet accused
no.1 in his vehicle.  He stood
next to the vehicle on the
passenger side while accused no.1 was sitting in the driver’s
seat.  This was in the morning
between seven and eight.
[82]
Accused no.1 asked him to take the firearms that were on the
passenger seat for safe keeping saying he would fetch them later.

Initially he refused to take the firearms but eventually he agreed to
take them.  He hid the firearms under a matress in a
room in
which he did not sleep.  The police that came to fetch the
firearms were Freemantle, Ndunge and Njiva.  The firearms
were
long, one with a silver part and the other with a black part.
The firearms were shown to Nombola and he confirmed that
they were
the ones he had received from accused no.1 and were later fetched by
the police.
[83]
He testified that he was informed by the police that Thabo had been
arrested and had told the police that he, Nombola was keeping
two
firearms for accused no.1.  He confirmed to the police that he
indeed had knowledge of the firearms.  The police
asked him to
wait for them where he was at Dutyini locality at the time.  The
police arrived in many vehicles and asked him
where the firearms
were.  He told them that the firearms were at his homestead and
they asked him to go and show them.
He went home with the
police where he showed them the firearms and they took them.  He
was taken to the police station in
town where he made a statement to
the police.  He testified that Thabo is accused no.1’s
brother and he also worked
with Thabo at the taxi rank.
Bizana
task team on armed robberies
[84]
The state called lieutenant colonel Arnold Freemantle, the station
commander of Bizana Police Station.  He testified that
a task
team was established to deal with a spate of armed robberies that
were taking place in Bizana and he was the leader of the
task team.
He testified that on 1 June 2015 certain firearms were recovered from
Nombola.  During his investigations
of the robberies he arrested
Thabo who happened to be accused no.1’s brother for possession
of firearms.  Thabo told
him that there were two firearms that
accused no.1 had taken to Nombola of Ntsimbini locality.  He
together with some of his
colleagues later visited Nombola on the 1
June 2015.  That led to the recovery of the said firearms under
a matress in his
home.  Thabo was arrested on 29 may 2015.
[85]
On 29 May 2015 he and his team members reported for duty at 06:00am.
He had gathered information that accused no.1 and
his co-accused
would sleep at their homesteads very late and leave very early in the
morning.  He had also received information
that Thabo was about
to get a firearm belonging to accused no.1 and deliver it to one
Kokoko.  He then organised a road block
of all roads leading to
and from accused no.1’s homestead.
[86]
In one of the roads which was monitored by warrant officer Magocoba
and constable Tshozi a Toyota bakkie appeared and they
stopped it.
He arrived there when they were about to open the canopy of the
bakkie.  The bakkie was driven by Thabo.
At the back of
the bakkie they found a tyre tube under the benches and inside the
tube there was a big firearm.  He showed
to the court the big
firearm which he said was recovered from under the benches at the
back of the bakkie that was driven by Thabo.
He described it as
a shotgun that used shells.  The firearm was not loaded but four
shells were also recovered.
[87]
Constable Tshozi asked Thabo about the firearm and Thabo said he had
been telephoned by accused no.1 and asked to take the
firearm to
Kokoko.  When constable Tshozi asked him about other firearms
Thabo said he wanted to speak to him aside.
He and Thabo knew
each other very well.  He then asked his colleagues to give
Thabo a chance to speak to him.  Thabo
told him that the other
firearm is at his family’s gravesite and that they belong to
accused no.1.  They all proceeded
to the gravesite.  In one
of the graves which was fenced there were bushes and under the thorny
bushes or shrubs there was
a tire tube similar to the one that was
found in the bakkie that Thabo was driving.  They recovered an
R5 rifle and a shotgun
and live rounds of ammunitions for a 9mm
pistol and for an R5 rifle.  The R5 rifle had a magazine.
Thabo also told him
that two other big firearms were kept at
Ntsimbini locality by Nombola.
[88]
He called an expert from Port Shepstone Criminal Record Centre and
warrant officer Carthew arrived and took over the crime
scene.
He also took the firearms with him.  The firearms that were with
Nombola at Ntsimbini were recovered on Monday
the 1 June 2015.
He also testified that the firearm that was robbed from the deceased
Zolile Sikotoyi was also recovered.
Accused no.2 took the
police to his grandmother’s home.  It was dug in a hole
next to the kraal.  He and warrant
officer Memela were taken to
where the firearm was by accused no.2.  It was a 9mm pistol and
when it was recovered it had
its magazine.
[89]
He further testified that 38 live rounds of an R5 rifle were
recovered.  Four live round shells of a shotgun were recovered

by Tshozi from Thabo’s vehicle.  Sixty one live rounds of
a 9mm pistol were also recovered and two magazines of an R5
rifle
were also recovered.  Under cross examination he conceded that
in his warning statement that he made Thabo did not mention
accused
no.1.  On the contrary he admits to possession of the firearms.
[90]
He further testified that he received information that accused no.2
had phoned his brother Siphosakhe and asked him to go and
take the
Skotoyi firearm at their homestead at Monti.  He went to meet
Siphosakhe who is accused no.2 and accused no.3’s
brother who
confirmed that he knew about the firearm and was phoned by accused
no.2.  He also asked Siphosakhe to show him
and his colleague
warrant officer Memela where accused no.2 and 3 stayed in Stanger.
The police did not find any firearm
with them when they were
arrested.
[91]
However accused no.2 took him and Memela to his grandmother’s
kraal where he showed them the firearm.  Further ballistic

investigation revealed that the said firearm belonged to the deceased
Zolile Skotoyi who was killed during an armed robbery at
Nomlacu.
They drove from Ntethe location in Stanger, KwaZulu Natal and stopped
at a place called Shaka.  From Shaka
they drove to Monti
locality with accused no.2 and Siphosakhe in his vehicle.
Accused no.2 pointed out the place where the
firearm was recovered.
[92]
The state called warrant officer Shadrack Mzoxolo Memela.  He
testified that he was part of the task team led by then
captain
Freemantle.  On 28 July 2015 he was involved in the recovery of
the firearm that belonged to the deceased Mr Zolile
Skotoyi.  He
received information that the said firearm was with accused no.2.
At that time accused no.2 was in Stanger
and was in telephone
communication with Siphosakhe.  Siphosakhe took them to Ntethe
locality in Stanger.  When they asked
him about Mr Skotoyi’s
firearm he told them that it was at his home.  When they arrived
at accused no.2’s homestead
he took them to a place where the
firearm was found wrapped in a cloth.  Accused no.2 took out the
firearm and handed it to
him.  From there they drove to Bizana
where he was detained.  That firearm had a magazine with 15
rounds of live ammunition
and its serial number had been erased.
[93]
Under cross examination on behalf of accused no.2 and 3 he testified
that the informer that told them that accused no.2 was
in
communication with Siphosakhe gave them his work address in Port
Shepstone and this is where they took him to go and show them
where
accused no.2 was in Ntethe at Stanger.  He, Freemantle and
another officer were travelling in a double cab vehicle.
They
found accused no.2 outside preparing to go to work.  He
co-operated with them.  They came with him to Bizana and
went to
Monti, accused no.2’s locality.
[94]
Accused no.3 was also brought to Bizana in a different vehicle but
his main focus was accused no.2.  He denied that accused
no.3
was arrested by him.  He testified that when he asked accused
no.2 about Skotoyi’s firearm he said it was at his
home and was
given to him by Ngonini.  On the way to the homestead of accused
no.2 Siphosakhe was with them together with
accused no.2.  On
their arrival he, Freemantle, Magocoba and Siphosakhe and accused
no.2 alighted from the vehicle.
They all went to the place at
accused no.2’s homestead where the firearm was and accused no.2
pointed out the firearm.
He denied that Siphosakhe pointed out
the firearm and no charges were laid against him.  It is accused
no.2 who pointed out
and took out the firearm from the hole in which
it was.
[95]
The state called warrant officer Thembinkosi Wiseman Magocoba.
He testified that he was part of the task team led by
Freemantle.
On 29 May 2015 he together with Tshozi were doing some investigations
at Monti locality.   Those investigations
led to certain
recoveries being made at a graveyard of the family of Thabo.
They also made certain recoveries from the vehicle
Thabo was
driving.  The recoveries included firearms and ammunition.
[96]
Thabo was alone in the vehicle when they stopped it and they asked to
search it and he agreed.  Tshozi searched the vehicle
while he
kept guard.  When he searched him he found four shot gun shells
in the pocket of his trouser that he was wearing.
Thereafter
Tshozi searched the car and at the back of the bakkie Tshozi found a
shot gun contained in a tyre tube under the seat.
Thabo did not
have a licence for the firearm and ammunition.  Colonel
Freemantle arrived and Thabo said he wanted to speak
to him whilst
Tshozi was asking him about the firearm.  Thabo told Freemantle
that the firearm belonged to accused no.1 who
had asked him to take
it to Kokoko.  Thabo also took them to his family’s
graveyard where more firearms and ammunition
recoveries were made.
He was also present on the 1 June 2015 when certain recoveries of
firearms were made from Nombola.
He testified that Thabo was
charged for the unlawful possession of those firearms and ammunition
that were recovered from him and
at the family graveyard.  Under
cross examination on behalf of accused no.1 he conceded that
important details were left out
in the statement that he made shortly
after the recoveries.  For instance the fact that Thabo had said
the firearms and ammunition
belonged to accused no.1.
[97]
The state then called sergeant Sivuyile Victor Mpini who testified
that on 20 May 2015 he was stationed in Bizana Police Station
and was
part of the task team that investigated armed robberies in Bizana
under captain Freemantle.  He was on duty that night.

Captain Freemantle told the members of the task team that he had
information that there was a security guard who worked at Ntabezulu

SSS in Bizana who had a firearm.  He together with his
colleagues went to Ntabezulu SSS.  They entered the school at

about 23:00.  There were electric lights at the school and
visibility was clear.  They asked to search accused no.4 who
was
the said security guard and he agreed.  They found a firearm
revolver in his person on his waist under a jacket.
The
revolver was in a holster.  They asked for a licence for the
said firearm and he said he did not have it.  They then
arrested
accused no.4 for possession of a firearm without a licence and he
took the firearm from him.  The firearm had two
live rounds of
ammunition and an empty spent cartridge.  The firearm had its
serial number erased.  The firearm was sent
for ballistic tests
at a later stage.  The said firearm was a .38 SPL revolver.
[98]
The state called sergeant Thandokazi Jojo Gwazela.  She
testified that she was part of the task team led by Freemantle.

On 20 May 2015 she was present when accused no.4 was arrested.
They received information from Freemantle that there was a
young man
in possession of a firearm at Ntabezulu SSS in Bizana.  It was
at about 21h00 when they received that information.
She,
Pumlomo, Mbebeza, Mpini, Sthembu and Vungwana proceeded to Ntabezulu
SSS.  They parked their vehicle about 1 kilometre
away.
They saw some students in school uniform running towards the school.
The students told them they were on their
way to attend evening
studies.
[99]
They had decided that she, Mpini and Mbebeza would pose as students
of that school.  The three of them proceeded to the
school.
The gate was locked.  They saw a person standing at the verandah
with an older person.  She knocked at
the gate using the
padlock.  Accused no.4 came to the gate shouting that they were
late, assuming that they were students.
[100]
Accused no.4 opened the gate for them and they entered.  She was
the first to enter followed by Mbebeza and constable
Mpini.  She
stood behind accused no.4 as he was holding the gate.  After
Mpini entered he told accused no.4 that they
were police officers.
Accused no.4 tried to reverse and bumped into her as she was directly
behind him.  She then grabbed
him assisted by Mbebeza and
Mpini.  Mpini took the firearm from the waist of accused no.4 in
a holster.  Accused no.4
was struggling trying to free himself
and they called for a backup from the other officers who were part of
the group.  When
accused no.4 saw the other officers he stopped
wrestling with them.  The firearm, a .38 revolver was recovered
by Mpini with
two live rounds of ammunition and one spent cartridge.
After accused no.4 was subdued she and Mbebeza went to the principal

to inform him that they were the police and had arrested accused
no.4.
Section
220
admissions
[101]
The following admissions in terms of
section 220
of the
Criminal
Procedure Act were
made and recorded the following:
“
1. The deceased in
count 1 is the person named in the indictment, to wit, Zolile
Skotoyi.
2. That the
deceased in count 1 died on 18 March 2015 as a result of “
cerebral
and hindbrain injuries caused by head injury caused by gunshot head
,”
which he sustained on 18 March 2015 at Nomlacu Locality in the
district of Bizana.
3. That the body of
the deceased in count 1 sustained no further injuries from the time
at which the wounds as aforesaid were inflicted
on 18 March 2015
until a post mortem examination was conducted on 23 March 2015.
4. That Dr Zonke
Mrenqwa – Mazwi conducted a post mortem examination on the body
of the deceased in count 1 on 23 March 2015
and recorded her findings
on Exhibit “C”.
5. That the facts
and findings of the post mortem examination as recorded by Dr Zonke
Mrenqwa-Mazwi on exhibit “C” are
correct.
6. That the
deceased in count 7 is the person named in the indictment, to wit,
Parvaiz Ahmed.
7. That the
deceased in count 7 died on 23 February 2015 as a result of
“
Excessive bleeding caused by multiple internal organ
injuries caused by gunshot chest
,” which he sustained on 23
February 2015 at Ludeke Locality in the district of Bizana.
8. That the body of
the deceased in count 7 sustained no further injuries from the time
at which the wounds as aforesaid were inflicted
on 23 February 2015
until a post mortem examination was conducted on 23 February 2015.
9. That Dr
Zonke Mrenqwa–Mazwi conducted as post mortem examination on the
body of the deceased in count 7 on 23 February
2015 and recorded her
findings on exhibit “D”.
10. That the facts and
findings of the post mortem examination as recorded by Dr Zonke
Mrenqwa-Mazwi on exhibit “D”
are correct.
11. That the deceased in
count 8 is the person named in the indictment, to wit, Zolani
Benjamin Madikizela.
12. That the deceased in
count 8 died on 19 February 2015 as a result of “
Right
pneumothorax caused by gunshot (Right lung)injury caused by gunshot
chest
,” which he sustained on 19 February 2015 at Mpetsheni
Locality in the district of Bizana.
13. That the body of the
deceased in count 8 sustained no further injuries from the time at
which the wounds as aforesaid were inflicted
on 19 February 2015
until a post mortem examination was conducted on 24 February 2015.
14. That Dr Zonke
Mrenqwa–Mazwi conducted a post mortem examination on the body
of the deceased in count 8 on 24 February
2015 and recorded her
findings on exhibit “E”.
15. That the facts and
findings of the post mortem examination as recorded by Dr Zonke
Mrenqwa-Mazwi on exhibit “E”
are correct.
16. That the deceased in
count 17 is the person named in the indictment, to wit, Mzomhle
Sojeleza Mazimbeni.
17. That the deceased in
count 17 died on 06 March 2015 as a result of “
bilateral
pneumothorax caused by gunshot lungs due to gunshot chest
,”
which he sustained on 06 March 2015 at Dindini Locality in the
district of Bizana.
18. That the body of the
deceased in count 17 sustained no further injuries from the time at
which the wounds as aforesaid were
inflicted on 06 March 2015 until a
post mortem examination was conducted on 11 March 2015.
19. That Dr Zonke
Mrenqwa-Mazwi conducted a post mortem examination on the body of the
deceased in count 17 on 11 March 2015 and
recorded her findings on
exhibit “F”.
20. That the facts and
findings of the post mortem examination as recorded by Dr Zonke
Mrenqwa-Mazwi on exhibit “F”
are correct.”
[102]
In respect of counts 18 and 19, the unlawful possession of firearms
and ammunitions the following
section 220
admissions were made:
“
1. That on 01 June
2015 two firearms, to wit, a shotgun, black and brown in colour with
serial number WR260641 and a shotgun black
and silver with serial
number AM34212 were recovered from Thamsanqa Nombola.
2. That the firearms in
paragraph 1 were sent to the Local Criminal Record Centre in Port
Shepstone.
3. They were thereafter
sent to the Ballistic Unit at Amazimtoti.  See Exhibits “H1”
“H2” and “H3”.
4. The Exhibits in
paragraphs 1 to 3 were later analysed at Amanzimtoti Ballistic Unit
and the result of the said analysis is handed
in as Exhibit “H”.
5. That on 20 May 2015 a
firearm, to wit, a .38 black revolver with an erased serial number
(with two live rounds of ammunition),
was recovered by the police.
6. That the firearm in
paragraph 5 was later sent to the Local Criminal Record Centre in
Port Shepstone and thereafter to Amanzimtoti
Balistic Unit.
7. The firearm in
paragraph 5 was later analysed at Amanzimtotit Ballistic Unit and the
result of the said analysis is handed in
as Exhibit “J”.
8. That on 29 May 2015
two firearms, to wit, a shotgun with serial number AM36086 and one R5
rifle with no serial number were recovered
from Thabo Njova.
9. That the said firearms
in paragraph 8 were later sent to the Ballistic Unit at
Amanzimtoti.   See Exhibits “K1”
“K2”
and “K3”.
10. The Exhibits in
paragraphs 8 and 9 were later analysed at Amanzimtoti Ballistic Unit
and the result of the said analysis is
handed in as Exhibit “K”.
11. That on 18 January
2015, attempted robbery took place at Knorrox (Ekuphumleni) Shop, at
Nikwe locality, in the district of Bizana.
12. That constable M R
Shazi of Local Criminal Record Centre in Port Shepstone visited the
scene in paragraph 11 and exhibits were
collected.  See Exhibits
“L1” and “L2”.
13. The Exhibits in
paragraph 11 and 12 were later sent to the Ballistic Unit at
Amanzimtoti for analysis.  The results of
the said analysis are
contained on Exhibit “L”.
14. That on 26 February
2015, robbery took place at Wayside Shop, at Redoubt locality, in the
district of Bizana.
15. That warrant officer
Jugdish Sivnandan Singh of Local Criminal Record Centre in Port
Shepstone visited the scene in paragraph
14 and exhibits were
collected.  See Exhibits “M1” and “M2”.
16. The exhibits in
paragraph 14 and 15 were later sent to the Ballistic Unit at
Amanzimtoti for analysis.  The results of
the said analysis are
contained in exhibit “M”.
17. That on 28 July 2015
captain Freemantle and warrant officer Memela recovered a firearm, to
wit, a 9mm CZ Model 75 pistol.
18. That the firearm in
paragraph 17 was later sent to the Local Criminal Record Centre in
Port Shepstone and thereafter to Amanzimtoti
Ballistic Unit.
See exhibits “N1” and “N2”.
19. The firearm in
paragraphs 17 to 18 was later analysed at Amanzimtoti Ballistic Unit
and the results of the said analysis is
handed in as exhibit “N”.
20. A further comparison
of various exhibits was made by the Amanzimtoti Ballistic Unit and
the results thereof are contained in
exhibit “O”.”
The
state closed its case.
The
defence case
Accused
no. 1
[103]
Accused no.1 testified that he resides at Monti locality in Bizana.
He was arrested in Verulam in KwaZulu Natal on 27
July 2015.  He
has been detained at Bongweni Kokstad C-Max prison since 16 August
2015.  He knows accused nos.2, 3 and
4 as well as Ngonini.
He used to see accused no.5 at the taxi rank.  He knows accused
no.2, 3 and 4 from his locality
as they are from the same locality,
however, they are not friends.  Ngonini grew up at his paternal
uncle’s homestead
and therefore he would not dispute that they
grew up together in his family.
[104]
He disputed Ngonini’s evidence that he was the mastermind
behind the commission of any of the offences for which they
have been
charged.  He was not involved at all in those offences.  He
denied that he identified a target for robbery
and transported his
co-accused together with Ngonini and others to and from the crime
spots before and after the robbery.
No meetings took place at
his homestead to plan the commission of any of the offences.  He
never gave Ngonini or anybody any
firearm.  In short his
evidence was that Ngonini lied and misled the court in his evidence
that he was involved in any of
the offences in any way whatsoever.
[105]
He testified that he never drove his co accused and others in any
motor vehicle or in a grey Isuzu belonging to Deon.
He did not
even know Nyaniso and Sibongo and had never seen them.  He
further testified that there was no reading material
given to
awaiting trial prisoners in Kokstad C-Max prison.  They only
started receiving reading material in September 2018.
Only
sentenced prisoners had access to reading material.  Ngonini was
lying to say he received reading material or a bible
as no reading
material was given to awaiting trial prisoners.  He testified
that Godden lied in his evidence that he intervened
on behalf of
awaiting trial prisoners who then received books or reading material
in 2015.
[106]
He testified that he and Thamsanqa Nombola knew each other as they
both were drivers at the taxi rank.  He disputed Nombola’s

evidence about their meeting at the latter’s homestead.
He denied giving any firearms to Nombola.  He was called
by one
Rasta who said he had been given R30.00 to give to him to enable him
to call Nombola from prison as Nombola wanted to discuss
something
with him.  He did call Nombola who told him that Freemantle
wanted him to say that he got firearms from him.
He had no
knowledge of the firearms that were recovered from Nombola and denied
having ever given any firearms to Nombola.
He did not know how
Nombola got to be in possession of those firearms.
[107]
He testified that he never asked his brother Thabo to take firearms
to Kokoko and did not even know Kokoko.  On the 29
May 2015 the
date on which the said firearms were recovered from a vehicle driven
by Thabo and at the family gravesite, he was
in KwaZulu Natal.
He heard that Thabo had been arrested and he did not know why he was
arrested.  He was never charged
in connection with those
firearms nor did he appear in court about that.
[108]
He testified that he did have a Toyota VVTi vehicle but sold it in
2015.  He never used that vehicle to deliver firearms
to
Nombola.  He knew Nelisile and the one he knew had his homestead
in his locality but later moved to Nikwe locality and
worked in
Gauteng.  In short he disputed all the evidence by all the
witnesses which sought to suggest that he was involved
in the
commission of any of the offences.  He disputed all the evidence
that meetings ever took place in which any of the
criminal activities
were planned.  He denied transporting anybody to commit robbery
or transporting people from committing
robberies.  He denied
that after the robberies people gathered at his homestead where the
proceeds of crime were shared and
that he gave others their shares.
He denied as being lies that he had illegal firearms or that he gave
anybody any illegal
firearms to commit armed robberies.  He
denied that anybody kept for him any illegal firearms or asking Thabo
to transport
or deliver firearms to Kokoko or anybody.  He
denied even driving any Isuzu vehicle belonging to Deon.  He was
not involved
in the commission of the offences and would not comment
on allegations that others played certain roles when those offences
were
committed because he was never there.
[109]
Under cross examination he testified that before he had his vehicle,
the Toyota VVTi he drove a vehicle belonging to Deon,
a Toyota D4D at
the taxi rank.  He is related to Deon. Deon is his elder
brother’s son and works in Port Elizabeth.
Deon’s
other motor vehicle was an Amarok.  He did not know about the
Isuzu and he has never seen it.  He did traditional
dancing in
many places including certain places around Bizana.  Accused
no.2 and 3 also participated in the traditional dancing.

Accused no.2 and 3 as well as Siphosakhe are brothers.
Siphosakhe also participated in the traditional dancing.  He

grew up in the same locality with accused no.2 and 3 as well as
Siphosakhe.
[110]
Accused no.4 is also from their locality at Monti and is well known
to him.  He used to see accused no.5 in the taxi
rank.  He
does not know Sibongo and Nyaniso.  He does not know Joe.
It was put to him that his version that he
did not know Joe, Sibongo
and Nyaniso was never put to Ngonini.  He said that he had told
his legal representative that he
did not know them.  He grew up
with Ngonini who grew up at his family home.  They had good
relations but were not related.
[111]
He worked at the taxi rank with Nombola.  Thabo worked for him
driving his VVTi vehicle until he sold that vehicle.
When he
stopped working at the taxi rank he went to work at Ntshanga in
KwaZulu Natal assisting in a building construction.
He was
working for Ssharael from Zimbabwe.  He got that job through his
girlfriend Thabisa whose surname he forgot.
He stayed alone in
a rented accommodation but he had forgotten the name of the person he
rented from.
[112]
He knew Nombola from the rank but they were not friends.  He had
never been to his homestead but knew his homestead as
he drove behind
it when he conveyed passengers in that area.  He was assaulted
by the police after his arrest.  He did
not know how Ngonini
knew that he was assaulted by the police because he was not there
when he was assaulted.
[113]
Nkosinathi Mnyani was called to testify for accused no.1.  He
testified that he had known accused no.1 for a long time.
He
also knew Thamsanqa Nombola.  He was given R30.00 by Nombola
asking him to buy a word call for accused no.1 and also give
accused
no.1 Nombola’s telephone number.  He bought the word call
and gave it to accused no.1 together with Nombola’s
phone
number.  Accused no.1 would call him while he was in detention
and sometimes he would ask him for airtime.  After
this witness
accused no.1 closed his case.
Accused
no.2
[114]
Accused no.2 testified that Ngonini lied about him when he gave
evidence that he was involved in any of these offences.
He was
not present during the commission of any of the offences for which he
was charged. Police arrested him at Ntethe locality
in Stanger and
assaulted him.  He, accused no.3 and Siphosakhe were driven to
Shaka.  At Shaka they were put under the
tonneau cover of a
double cab where they found accused no.1 and Ngonini.
Thereafter the vehicle left for Bizana police station
where accused
no.1 and Ngonini alighted.
[115]
Thereafter he, accused no.3 and Siphosakhe were driven to his old
family homestead but on the way the vehicle stopped and
Siphosakhe
was caused to alight.  At his old homestead he noticed
Freemantle standing with Siphosakhe and they went to them.
When
they got to where Siphosakhe and Freemantle were he saw Siphosakhe
pointing a place.  Thereafter Freemantle ordered him,
(accused
no.2) to dig where Siphosakhe pointed.  When he dug a plastic
bag appeared and Freemantle told him to stop.
He stopped and
Freemantle took out the plastic bag, opened it and took out a
firearm.  Thereafter Memela took him back to
the vehicle and
drove away.
[116]
He was taken to a certain office where Memela said he was going to
charge him for the firearms.  Sergeant Ndunge came
and showed
him a magazine.  He told him to take the magazine and take out
the ammunition and count them.  After counting
the ammunition he
was charged.  Before he was ordered to dig he had no knowledge
of the firearm.  He did not point out
where the firearm was and
even digging was because he had been instructed to do so and he dug
at the place that Siphosakhe pointed
as ordered by Freemantle.
Ngonini lied about him being present at the meetings that he said
took place at accused no.1’
homestead.  He never attended
any such meetings and was never conveyed by accused no.1 to and from
a place where crimes were
committed.  He never got any share of
robbery proceeds from accused no.1.  Ngonini lied when said that
Mr Skotoyi’s
firearm was given to him or ended up with him.
[117]
Under cross examination he testified that he remembered two instances
in which he participated in the traditional dance that
accused no.1
testified about and in both instances his brother, accused no.3 would
also be there.  He visited the homestead
of accused no.1 once.
He was two paces away from Siphosakhe when Siphosakhe pointed the
firearm to the police.  He used
his hand to dig and a plastic
bag with a firearm was recovered.  He testified that the
evidence of the police that he pointed
out the firearm is not true.
He denied that only police officers Freemantle and Memela were
present when the firearm was
recovered and testified that Chiza,
Ndunge, Jojo and another lady officer were also present.
[118]
He confirmed doing cleaning duties at Kokstad prison but could not
remember the month and at that time Ngonini was still at
Kokstad
prison.  He denied giving a threatening letter to Ngonini.  He
had told his legal representative that he disputed
giving a letter to
Ngonini.  He confirmed being assaulted by the police after he
was arrested but Ngonini was not present
when he was assaulted.
He disputed the evidence of Ngonini in relation to his involvement in
the commission of any of the
offences and described it as lies.
Accused
no.3
[119]
Accused no.3 also testified in his defence that he was not involved
in any of the offences and was not there when they were
committed.
He had no idea as to how any of the 19 counts were committed as he
was not there.  He was not present even
at the meetings which
Ngonini said took place at the homestead of accused no.1.  He
never received any money from accused
no.1 as his share of a
successful armed robbery.  He never received any firearm from
accused no.1.
[120]
Under cross examination he testified that he had known Ngonini for a
long time.  He participated in the traditional dance
with
accused no.1 and 2.  He was assaulted by the police but did not
know how Ngonini got to know about that as he was not
there when
police assaulted him.
[121]
Mr Siphosakhe Mbizeni testified on behalf of accused no.2 and 3.
He knows accused no.1, 2, 3 and 4.  Accused no.2
and 3 are his
brothers and accused no.1 and 4 are from the same area as himself.
On 27 July 2015 at about 20h00 police arrived
at his work place.
Freemantle told him that they wanted him to show them where accused
no.2 and 3 stayed in Stanger.
Freemantle took a plastic from
the pallets.  They travelled in a double cab.  He was
flanked by Freemantle and another
police officer at the back seat.
[122]
He was handcuffed and on the way Freemantle suffocated him with a
plastic on his head, mouth and nose.  He was asked
about a
firearm and when he said he knew nothing about it he was suffocated.
A police officer who was a lady who was seated
at the front told
Freemantle to stop what he was doing.  They proceeded to where
Ngonini was and picked him up in another
car.  He directed them
to his sister’s place as she knew where his brothers stayed.
[123]
They found accused no.3 as he was about to go to work and assaulted
him and asked him about the firearm.  They handcuffed
him and
proceeded with him to accused no.2’s place. He was handcuffed
and assaulted and asked about the firearm.  He
said he did not
know about the firearm.   They all got into the car and
drove until they reached Shaka where they found
accused no.1 and
Ngonini.
[124]
He, accused no.1, 2, 3 and Ngonini were all put under the tonneau
cover of the double cab.  Accused no.1 and Ngonini
were joined
together with handcuffs and were leg ironed.  Accused no.2 and 3
were also joined together while he had his own
handcuffs on.
From Shaka they drove to Bizana police station where accused no.1 and
Ngonini were dropped.  They drove
towards Ntabezulu SSS where he
was told to alight and brought to the front of the vehicle.
They drove to his old homestead
where no one stayed.  On the way
there Freemantle told him that he wanted him to show accused no.2
where the firearm was.
[125]
He told Freemantle that he did not know anything about the firearms
and he would not be able to show accused no.2.  Freemantle

threatened to suffocate him again.  He then decided that to
avoid suffocation he must comply.  They proceeded to his
old
homestead.  He and Freemantle alighted and walked leaving others
in the vehicle.  They reached a certain spot in
his old
homestead and Freemantle pointed a place to him for him to show
accused no.2.  Freemantle’s colleague fetched
accused no.2
from the vehicle.  When accused no.2 arrived Freemantle told him
to show accused no.2 where he had pointed and
he did.  Accused
no.2 was then told to dig at the place where he pointed.
[126]
Accused no.2 dug and a plastic bag appeared from that place.
Freemantle took the plastic bag, opened it and found a
firearm.
He was then released and told to go and he left.  Under cross
examination he testified that accused no.2 was
about half a metre
away from him as he was showing him where the firearm was.  He
denied that he was a witness of convenience.
The case for
accused no.2 and 3 was closed.
Accused
no.4
[127]
Accused no.4 testified in his defence.  When he was arrested he
worked at Ntabezulu SSS as a security guard.  He
was arrested on
20 May 2015 at Ntabezulu SSS between 19:15 and 19:20.  The
police who were there were Pumlomo, Freemantle,
Jojo, Njiva, Ndunge
and Chiza.  He did not see Mpini and he was not arrested by him
and he was not there.  No firearm
was recovered from him.
Police are mistaken to say he was arrested at about 23:00 because the
studies end at 21:00 and no
gates would be opened at 23:00 for
students.  It is true that police pretended to be school
children and the principal told
him to open for them.  He saw
the firearm said to have been recovered from him for the first time
in court.
[128]
He knew Ngonini even before their arrest from their locality.
However, Ngonini lied when he said that he was present
in the
commission of the offences for which they were charged.  He
never carried a firearm.  He never phoned anyone to
fetch them
as he was not there when those offences were committed.  He
could not talk about what happened at the crime scenes
because he was
not there.  He denied being involved or being present during the
commission of any of the offences or in any
activities relating to
those offences.  He did not know Joe and he did not know
Sibongo.
[129]
The identification parade took place on Friday the 22 May 2015. He
was from his first court appearance after his arrest and
when
entering the prison he saw some people in a certain office in prison
and when he went to the identification parade he saw
those very same
people there.  He confirmed that indeed, Hubitamu Fikire Shamagu
pointed him.
[130]
Between the 1 May and 9 May 2015 he was preparing for his uncle’s
funeral which was to be on the 09 May 2015.
In January, March
and May he was working night shift but was arrested on 20 May 2015.
He was never given a firearm by accused
no.1 for purposes of
committing crime.  He never attended any meeting at the
homestead of accused no.1 where there was a planning
of crimes that
were to be committed.  Accused no.1 was a headman and he only
knows of meetings at accused no.1’s place
relating to him being
a headman.  He was never in an Isuzu bakkie driven by accused
no.1 and did not even know that vehicle.
He confirmed that Mr
Shamagu is correct to say he has traditional scars but his are not
different from those of other people.
The same applies to his
moustache, it is no different from other people.  He had the
moustache even in 2015.
[131]
It was put to him that on 5 May 2015 the date of the incident at
Mthayise, Mr Shamagu described one of the assailants as having
the
traditional cuts, the moustache and a big chest.  Accused no.4
said Mr Shamagu must have seen someone else with the same
features as
he was not there.
Accused
no.5
[132]
Accused no.5 also testified in his defence.  He testified that
he was arrested on the 18 May 2015.  He was not involved
in the
commission of counts 14,15, 18 and 19, the offences for which he was
charged.  He knew nothing about any of the offences
as he was
not there when those offences were committed.  The evidence
relating to his involvement is a lie.  There was
an
identification parade but it was on 22 May 2015.  On 5 May 2015
he was in Durban having gone there on 20 April 2015 and
only returned
on 16 May 2015.
[133]
In Durban he stayed at Inanda having gone there to visit his brother
Xolile Candlovu who works in Durban.  He did not
know Ngonini
and only came to know him when he saw him in prison.  He had
never seen him before.  He did inform his legal
representatives
about this and therefore did not know why Ngonini was not asked about
this.
The
case for accused no.4 and 5 was closed without leading further
evidence.
[134]
The chain evidence in respect of the recoveries made, their safe
keeping by various police officers including the police officers
who
dealt with the said firearms and ammunition from Port Shepstone Local
Criminal Record Centre until they were ultimately analysed
by
different ballistic experts is not in dispute.  As far as counts
18 and 19 are concerned the defence of the accused is
very simply
that no firearms were recovered either from them or through
information elicited from them.
[135]
Before I analyse the evidence in this matter it is necessary to first
set out the legal principles involved in cases where
there is a
single witness and in cases where there is a witness who was an
accomplice during the commission of the offence.
This is
important because as I analyse the evidence presented I will do so
being mindful of the relevant cautionary rules relating
to single
witnesses and accomplices.
Corroboration
[136]
I will briefly indicate if and how Ngonini’s evidence was
corroborated in each incident.  In the Nomlacu incident

Ngonini’s evidence was that in order to gain access to the
premises they had to cut the fence of the yard in that homestead.

As they were leaving they saw a person approaching towards the gate
and he fired a shot at that person who reversed and hid amongst
the
shrubs that were next to the gate.  Sibongo fired a shot at the
person.  They re-entered the premises and found that
person
lying there and took his firearm, a 9mm pistol.
[137]
On this incident Ms Nomfusi Majila a state witness testified that the
two people that entered her room had firearms.
She was with her
daughter in the room and one of the assailants fired a shot near her
bed.  Ngonini had also testified that
he fired a shot near the
bed to threaten the woman and demanded money.  This witness also
testified that she realized the
following morning that the fence
around that homestead had been cut.  Ngonini had testified that
accused no.1 had said he
had identified a place where foreigners
stayed and that foreigners did not bank their money but kept it at
home.  Majila testified
that in her premises there were
Ethoipians who were running the shop.
[138]
Mr Zolile Skotoyi’s widow, Mrs Nomasinali Skotoyi testified
that her husband was killed and his 9mm pistol was stolen.
[139]
On the Ludeke incident Ngonini’s evidence was that accused no.1
informed them that he had identified an Indian owned
shop at Ludeke
locality.  He heard gunshot but was not sure who had fired the
shot.  In that incident Parvaiz Ahmed was
killed. Dr Zonke
Mrenqwa-Mazwi made a finding that Parvaiz Ahmed had a gunshot wound.
[140]
On the Mpetsheni incident Ngonini testified that accused no.1
informed them that he had identified an Indian owned shop and
he took
them there in the grey Isuzu bakkie with a white canopy.  The
premises were fenced and one of them cut the fence.
They found
some Indian people there.  Accused no.2, 3 and 4 entered the
shop from the front.  He and Sibongo entered
the shop from the
back.  They found Indian people and robbed them.  They saw
a person coming to them and he and Sibongo
shot that person until he
fell down.  There was a woman there and they pointed firearms at
her.
[141]
On this indicent Nomalanga Nongayiyana testified that the deceased
Zolani Benjamin Madikizela was her husband.  The assailants

kicked the door that led to a shop run by Indian nationals which was
in the same house.  The premises were fenced and she
later saw
that the fence in the garden had been cut.
[142]
On the Nikwe incident Ngonini testified that he saw a police vehicle
and told others to get out.  There was an exchange
of gunfire
with the police and the robbery was unsuccessful.  On this
incident Mr Khurran Shanzad’s evidence was that
he called the
police and there was a shootout between the police and the
assailants.  The assailants left without taking anything.
[143]
On the Wayside shop incident Ngonini testified that they had
volunteered themselves to go and rob the Wayside shop.
They
went to the rooms at the back and kicked the door open.  They
found a person there and pointed firearms to the person
demanding to
know where his bosses were.  They instructed the man to go and
knock for them in his bosses’ house.
That person said his
bosses would not open for him but would open for the security guard
at the security tower.  They took
that security guard from the
security tower and forced him to go and knock after exchanging fire
with him.  As they were trying
to cut the burglar bars they
heard a gunshot and the security guard and the other person later
told them he was injured.
This robbery was also aborted because
police arrived and there was a shootout with the police.
[144]
Siphamandla Mduluswa testified that he was a security guard at
Wayside shop and was on duty during the incident and was seated
at a
security tower.  He saw his colleague, Masonwabe being driven by
some people that night.  Those people fired shots
towards him
and took him to the house in the premises which was occupied by some
Chinese.  The Chinese fired shots from inside
and he sustained a
gunshot wound to his left thigh.  Police arrived and there was
an exchange of gunfire between the assailants
and the police.
[145]
On the Mthayise incident, accused no.1 told him in the presence of
accused no.2, 4 and 5 that they were going to rob a shop
at Mthayise
where there is a red  vehicle.  Accused no.3 was not
present.  They proceeded to the targeted shop at
Mthayise
locality.  Accused no.4 and 5 entered the premises where there
was a shop.  He went behind the shop while accused
no.4 and 5
entered the shop.  He forced a person who was at the door into
the shop.  Accused no.2 and Sibongo came pointing
firearms and
demanded car keys from the shop owner.  They took that vehicle
and accused no.4 drove it and they abandoned it.
[146]
On this incident Mr Shamagu testified that he and his employees were
forced into a store room.  The assailants took the
car keys for
his maroon Nissan 1400.  They took the money which was about
R40 000.00 and locked them inside the storeroom.
An
identity parade was held and he identified accused no.4 and 5 because
during the robbery they were not wearing baraclavas.
The fact
that accused no.4 and 5 were not wearing baraclavas was also
corroborated by Ngonini under cross examination by Mr Nohiya
for
accused no.4 and 5.  His description of accused no.4 and 5 to
the police before the identity parade is a clear corroboration
of not
just the incidents but the fact that Ngonini is not falsely
implicating the accused.  This is so even if the circumstances

at the time of the attack were not ideal and therefore caution is
required.
[147]
He was unable to identify the other assailants because they were
wearing baraclavas.  Ngonini had also testified that
on this
occasion accused no.4 and 5 were not wearing baraclavas.  The
description of these accused by Shamagu to the police
even before the
identification parade in the manner that he did, who, happen to have
been there when the Mthayisi incident occurred
according to Ngonini
is very material in the identification of the people with whom
Ngonini committed these offences.
[148]
It was put to Ngonini that accused no.5 was in Durban in April 2015
until he returned to Bizana on 16 May 2015.  The
Mthayisi
incident occurred on 5 May 2015.  If accused no.5’s
version is to be believed he was in Durban already when
the incident
occurred and therefore he could not have participated in it.
Ngonini on the other hand testified that this incident
occurred after
he and others had raised money to pay for bail for accused no.5.
Accused no.5 seemed to confirm the issue
of the bail money being paid
save that his version is that the bail money was paid for by one
Zonakele.
[149]
On the Dindini incident in which Mr Mzomhle Sojeleza Mazimbeni, was
killed Ngonini testified that when they left accused no.1’s

homestead he did not know where they were going.  On the way he
learnt that they were going to rob Nelisile’s person.
He
then recalled being told by accused no.1 that this person had money
at home which he intended to use to buy a vehicle.
They met
Nelisile on the road in the locality.  They took this person
from his homestead to the shop after being shown by
Nelisile this
person’s homestead.  On this occasion accused no.4 was
carrying a .38 revolver.  In the shop Sibongo
demanded the money
which this person was going to use to buy a car and he told them that
he had given it to another person for
safe keeping.  Ngonini,
accused no.2 and accused no.4 got out of the shop leaving Sibongo in
the shop.  They later heard
a gunshot and on returning to the
shop that person was lying down while Sibongo was wielding a firearm.
[150]
This evidence is in some respects corroborated by the evidence of Mr
Lulamile Wellington Mazimbeni.  He testified that
he had rented
his shop to Mr Mzomhle Sojeleza Mazimbeni.  After hearing a
gunshot from the shop he eventually found the deceased
lying under a
pool table and there was blood.  Eventually the deceased was
confirmed dead.  Most significantly, this
incident occurred on 6
March 2015 and Ngonini said that in that incident accused no.4 was
carrying a .38 revolver.  On 20
May 2015 some three months
later, accused no.4 is found with a .38 revolver.  This, in my
view, is not a coincidence nor is
it acceptable to say that there are
many .38 revolvers out there.  In my view it corroborates
Ngonini and his evidence that
he was with the accused before court in
committing these crimes.  Some criticism could be justifiably
made about some aspects
of the evidence of the state witnesses.
However, this does not in any way derogate from their overall account
of what happened.
Evidence
of single witnesses and accomplices
[151]
In many ways, Ngonini is a single witness and that also calls for
caution in the assessment of his evidence.  In
S v Mahlangu
and Another
2011 (2) SACR 164
(SCA) the court dealt with and
explained the approach to
section 208
of the
Criminal Procedure Act
as
follows:
“
[21]
Section 208
of the
Criminal Procedure Act 51 of 1977
provides that:
‘
An
accused may be convicted of any offence on the evidence of any
competent witness.’
The
court can base its finding on the evidence of a single witness, as
long as such evidence is substantially satisfactory in every
material
respect, or if there is corroboration: The said corroboration need
not necessarily link the accused to the crime.”
[152]
The law on accomplices is very clear.  I can do no better than
refer to the case of
S v Van Vreden
1969 (2) SA 524
(N) where
the cautionary rules applicable to accomplice witnesses were
summarised as follows:
“
It now becomes
necessary to deal with the cautionary rule relating to accomplices.
The following principles can be derived
from the cases:
(1)   Caution
in dealing with the evidence of an accomplice is imperative even
where the requirements of
sec 257
have been satisfied.
(2)   An
accomplice is a person with a possible motive to tell lies about an
innocent accused, for example to shield some
other person or to
obtain immunity for himself.
(3)
Corroboration not implicating the accused but merely in regard to the
details of the crime is no guarantee of the
truthfulness of the
accomplice.  The very fact of him being an accomplice enables
him to furnish the court with details of
the crime which is apt to
give the court, if unwary, the impression that he is in all respects
a satisfactory witness.
(4)
Accordingly, to satisfy the cautionary rule, if corroboration is
sought it must be corroboration directly implicating
the accused in
the commission of the offence.
(5)   Such
corroboration may, however, be found in the evidence of another
accomplice provided that the latter is a reliable
witness.
(6)   Where the
corroboration of an accomplice is offered by another accomplice, the
latter remains an accomplice and
the court is not relieved of its
duty to examine his evidence also with caution.  He, like the
other accomplice, has a possible
motive to tell lies.  He, like
the other accomplice, because he is an accomplice is in a position to
furnish the court with
details of the crime which is apt to give the
court, if unwary, the impression that he is a satisfactory witness in
all respects.
(7)   Where
there is no such corroboration there must be some other assurance
that the evidence of the accomplice is reliable.
(8)   That
assurance may be found, inter alia, where the accused is a lying
witness or does not give evidence.
(9)   In the
absence of any of the aforementioned features it is competent for a
court to convict on the evidence of an
accomplice only where the
court understands the peculiar danger inherent in accomplice evidence
and appreciates that acceptance
of the accomplice and rejection of
the accused is only permissible where the merits of the accomplice
and the demerits of the accused
as witnesses are beyond question.
(10) When it is said that
the merits of an accomplice as a witness must be ‘
beyond
question
’ in order to be accepted as sufficient for
conviction, this does not mean that his evidence must be free from
any defects.”
[153]
There is also another rule worth emphasizing which, in my view, is
very relevant in this matter even though it is not only
applicable to
accomplices but also to other witnesses who implicate an accused
person.  That caution was aptly sounded in
S v Ipeleng
1993 (2) SACR (T) at 189 in which the court said:
“
It
is dangerous to convict an accused person on the basis that he cannot
advance any reason 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?”
[154]
When all is said and done the bigger question is whether on the
conspectus of all the evidence in this matter the guilt of
the
accused has been established beyond reasonable doubt.  This is
nothing new and has been stated and restated on countless
occasions
by our courts.  However, it remains worth emphasizing and
re-emphasizing it even at the risk of stating the obvious.
In
Olawale v S
[2010] (1) All SA 451
(SCA) at 455 this legal
position was stated 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.”
[155]
It is, in the main, with all these very important principles of our
law in mind that I will deal with the evidence in this
matter.
Credibility
[156]
The credibility of Ngonini was attacked by all counsel for the
defence.  The main thrust of the attack is that Ngonini
had
himself testified that:
1. He had lied to the
police on his arrest by his disavowal of his involvement in the
offences.
2. When he was taken to
Port St Johns to make a confession he had lied there as well.
3. When he made his bail
application he had, before court, under oath, lied when he testified
that he was not involved in the commission
of any of these offences.
4. Lastly in this court,
under oath he had testified that he had in fact, together with the
accused persons and others mentioned
in his evidence committed these
offences.  This was contrary to his previous denial which he had
made under oath.
[157]
In a nutshell, the submission is that he is a self-confessed criminal
and a liar and therefore his evidence should not be
accepted and in
fact should be given short shrift.
[158]
I do not think so and the reasons for this go beyond the fact that I
was very impressed with his demeanour as a witness and
his ability to
detail what happened in each scene of crime.  It is beyond the
fact that he did not downplay his role and exaggerate
the role of the
others.  On the contrary he painted a picture of himself and
Sibongo as not being hesitant to pull the trigger.
If in giving
the evidence that he did, in the detailed manner in which he gave his
evidence it makes no sense to me that if he
was harbouring all these
intentions to falsely implicate the accused before court, it becomes
himself and Sibongo who are the main
killers in most incidents when
on his evidence all of them had firearms in all these incidents.
It was also his evidence
that Sibongo had died.  Furthermore he
did not know why Nyaniso and Joe whom he implicated were not charged.
[159]
The submission that he had, on his own version, lied before ignores
two fundamental facts.  Firstly all those lies were
told before
he had agreed to be a state witness.  Secondly I asked defence
counsel whether at any given stage during his evidence
in chief and
under cross examination there were any contradictions or
inconsistences in his own version.  None could be pointed
out to
me.
[160]
As I understand the defence of the accused and the evidence they
gave, Ngonini must have removed the actual criminals with
whom he
committed these offences from his evidence and replaced them with the
accused in their stead.  They came up with this
big conspiracy
theory which for it to work would have required not only Ngonini but
also Mr Godden of the correctional services
department to be part of
the conspiracy.  Godden’s evidence was that after he had
been told by Ngonini that he wanted
to admit his involvement in the
offences Godden contacted Freemantle.  The latter delayed to
come.  In the meantime Ngonini
told him that he had received
death threats.  At that stage Ngonini and the accused were all
at Kokstad prison.
[161]
This prompted Godden to tell Freemantle about these threats that
Ngonini received.  This resulted in Freemantle arranging
for and
actually removing Ngonini from Kokstad prison.  Could this be
part of Ngonini’s creative genius to come up with
threats that
did not happen from people who were not involved in whatever it is
that he wanted to tell the police? This, like many
other versions of
the accused in their denials, is fanciful lies designed to create
doubt about Ngonini’s evidence.
[162]
If anything, it points to the creativity and misapplied natural
intelligence of accused no.1.  It is quite impressive
that
accused no.1 was never seen carrying any firearm, having supplied
most of them with firearms.  He drives them to all
the crime
scenes using a vehicle that nobody knows where it is and the police
could not find it.  A vehicle which according
to Ngonini,
belonged to Deon who, according to the police, distanced himself from
the said vehicle and in fact said he did not
have such a vehicle.
Deon, who happens to be a relative of accused no.1.  In the same
way that, according to lieutenant
colonel Freemantle, accused no.1
used his brother Thabo to hide some of the weapons which the police
recovered.  Thabo is
still facing charges relating to the
unlawful possession of those weapons.
[163]
I am not satisfied that the police could not have done better in
investigating and getting to the bottom of what actually
happened to
that Isuzu bakkie.  The question then is, does the fact that the
vehicle, the grey Isuzu bakkie with a white canopy
which Ngonini
testified, was used to transport them could not be found mean that it
was never there?  Ngonini testified that
in fact that vehicle
was involved in an accident in which it collided with a person. Could
he be lying about this as well?
I do not think so.  In
fact, if anything, it points to the fact that police did not pay as
enough attention to it as they
should have as it was instrumental in
the commission of these offences in which many people were killed.
Police who worked
very hard to arrest the accused and to bring an end
to their tyranny and restored peace to the affected communities may
have very
good reasons why they failed in adequately dealing with
that vehicle.  It may very well be that the criticism is not
justified,
for whatever reason.  However, to the extent that the
weaknesses in the state’s case in relation to the vehicle could

have resulted in the accused being acquitted, I do feel that
criticism must be made if only to say to the police officers and
police management, they know better than anyone else about what the
problems are and they must just deal with those problems and
ensure
that their hard work is not rendered futile by the acquittal of those
who should not be acquitted.
[164]
Having said this, even with the Isuzu not having been found,
Ngonini’s evidence remains credible and reliable.
To say
that because the vehicle in which the accused were transported could
not be found therefore, the
section 204
witness must be lying is no
different from saying that because the murder weapon could not be
found the witness is lying.
This is certainly not how our
criminal justice system works in my view.
Possession
of firearms and ammunition
[165]
A lot of evidence was led by the police including the evidence of
Nombola, the second 204 witness.  The starting point
is to look
closely at the indictment in so far as it relates to these offences:
“
Count
18 : Possession Of Firearms
IN
THAT upon or about the same time and at or near the same place
mentioned on Counts 1 to 17, the accused did unlawfully and
intentionally
possess firearms, the calibre of which is unknown to
the State.
Count
19 : Possession of Ammunition
IN
THAT upon or about the same time and at or near the same place
mentioned on counts 1 to 17, the accused did unlawfully and
intentionally
possess ammunition, the number of which is unknown to
the state.”
[166]
These charges have been phrased so as to tie up with counts 1 to 17.
I am not sure how the state intended to link the
evidence of the
recoveries made through Thabo, Nombola and accused no.2 with counts 1
to 17.  This is moreso that the weapons
were not linked
ballistically with any of the crime scenes save for the R5 riffle.
If the state seriously intended to create
that connection the
section
212
(4) affidavits that were handed up was certainly not the way to
go.  The fact that one of the many firearms that were recovered

could be linked to the crime scenes cannot, without more, be used to
say that the said firearms were the ones that were used at
the
various crime scenes.  There is no evidence that any of the
deceased was shot with that weapon.  The fact that none
of the
firearms was directly recovered from or through any of the accused
matters to the extent that the evidence is led to suggest
that those
firearms had anything to do with the accused.  Yes, suspicion is
there and it is a worrying suspicion because one
of the persons from
whom some of the firearms were recovered is Thabo, accused no.1’s
younger brother.  The 204 witness,
Nombola is well known to
accused no.1 as they worked together in the taxi industry.
Nombola’s evidence that he was
asked by accused no.1 to keep
those firearms is credible in most material respects.
[167]
The other recovery was at the family grave site of the accused no.2
and 3, where Mr Skotoyi’s firearm was recovered.
Even
there, it is not clear to me why police needed to take Siphosakhe,
accused no.2 and 3’s brother past his workplace in
Port
Shepstone to Bizana when accused no.2 had told them that the firearm
was there.  To make matters worse, no trial within
a trail was
deemed necessary by the state to prove the admissibility of the
evidence of the pointing out.
[168]
Having said that I must point out that what I have said above about
the evidence of the recoveries is simply to point out
that, that
evidence would only be relevant if the accused had been charged in
connection with those recoveries.  It is not
to suggest that
counts 18 and 19 are themselves incompetent.  It is not in
dispute that the persons who robbed and killed
were armed with
firearms and the deceased died from gunshot wounds.  The accused
have been charged under
section 3
of the
Firearms Control Act 60 of
2000
which reads thus:
“
3. General
prohibition in respect of firearms and muzzle loading firearms
(1)   No person
may possess a firearm unless he or she holds for that firearm –
(b)    a
licence, permit or authorisation issued in terms of this Act; or
(c)    a
licence, permit, authorisation or registration certificate
contemplated in item 1, 2, 3, 4A or 5 of schedule
1.
(2)    No
person may possess a muzzle loading firearm unless he or she has been
issued with the relevant competency
certificate.”
[169]
What becomes immediately clear is that for all firearms a licence,
permit or authorisation is a requirement.  Once a
charge is
preferred under this section, the only issue is whether a firearm was
used, if so whether the accused had a licence for
the firearm.
On the evidence before me, accused no.2, 3, 4 and 5 were armed with
unlicensed firearms when they committed
the offences.  The
ballistic reports reveal that even though the recovered firearms,
save for the R5 rifle, could not be linked
with the crime scenes, the
recovered empty cartridges were those of firearms as described in the
ballistic reports.  The empty
cartridges recovered by the police
at various crime scenes must be those of the firearms that were
carried and fired by the accused
as Ngonini explained and the
deceased died from gunshot wounds.
[170]
I do not understand our law to be that where a murder weapon, while
it is known what it was but could not be found, the evidence
of which
weapon was used becomes irrelevant.  Where the possession of
that murder weapon is criminalized the fact that that
weapon can only
be described in general terms without its official description does
not exonerate an accused person from criminal
liability.
The
identity parade in respect of accused no.4 and 5
[171]
The state conceded that the identification parade conducted by Mr
Mbizafa may not have been correctly conducted.  There
were many
imperfections and irregularities which Mr Nohiya for accused no.4 and
5 mentioned.  I do not consider it necessary
to deal with all of
the issues he raised.  However it is important to make this
point.  Rule 9 of the SAPS rules relating
to identification
parades reads:
“
Rule
9
It
is extremely desirable that at least one photograph should be taken
of all the persons (including the suspect) at the parade,
depicting
them as they appeared in the line-up and standing next to each other”
[172]
That no photograph was taken in the identification parade in which
accused no.4 and 5 were identified is common cause.
In
S v
Mohlathe
(230/99)
[2000] ZASCA 183
(29 September 2000) the court
made the following observations:
“
Once
again the absence of a photograph precluded the court from seeing for
itself and making its own assessment.”
The
court went on to say that “
because the identification is
made at a parade, it carries with an assurance of reliability which
is unjustified
.”
[173]
It goes without saying that indeed where the court is prevented from
making a proper and informed assessment of the evidence
of the
identitication parade, the assurance of reliability elevates the
identification parade to a level higher than an ordinary
description
given by a witness of who his attacker was because it is clothed with
formalism of the institution when in fact the
necessary formalities
were not observed.
[174]
In this case not only were the photographs not taken but also on the
form SAP 329 the part that requires the police officer
in charge of
the parade to indicate the choice that accused 4 and 5 made on
whether they desired legal representation is blank.
Very
bizarrely, Mr Mbizafa’s evidence is that he recalls that
accused 4 and 5 elected not to have legal representation present
at
the parade.  Besides that fact that the parade was conduct on 21
May 2015 which was more than three years before he testified,

accepting his assurances that the Constitution of the country in this
regard was complied with is simply not enough on such an
important
matter, it being one of the safeguards of a fair trial.
Common
purpose
[175]
In seeking the conviction of the accused the state has also invoked
the doctrine of common purpose which is one of the foundational

principles of our criminal justice system.  Its meaning and
requirements are well known and do not need to be restated.
The
state’s case is that the accused, at the instance of accused
no.1 met at his homestead and agreed to commit offences
for which
they have been charged.  Following the said agreements they went
and committed the offences.
[176]
In
Thebus v S
2003 (6) SA 506
(CC) the Constitutional Court
made the following observations with which I am in respectfull
agreement:
“
[22] After S v
Mgedezi there remains no doubt that where the prosecution relies on
common purpose as basis for criminal liability
in consequence crime
such as murder, a causal connection between the conduct of each
participant in the crime and the unlawful
consequence caused by one
or more in the group, is not a requirement.  Rules of criminal
liability similar or comparable to
common purpose are found in many
common law jurisdictions, including England, Canada, Australia,
Scotland and the the USA.
In all these legal systems, a causal
nexus is not a prerequisite for criminal liability.  In civil
legal systems, such as
France and Germany there appear to be no
rules, which, in substance, approximate our rule of common purpose.”
[177]
In paragraph 34 the court went on to state the following:
[34] In our law,
ordinarily, in a consequent crime, a casual nexus between the conduct
of an accused and the criminal consequence
is a prerequisite for
criminal liability.  The doctrine of common purpose dispenses
with the causation requirement.
Provided the accused actively
associated with the conduct of the perpetrator in the group that
caused the death and had the required
intention in respect of the
unlawful consequence, the accused would be guilty of the offence.
The principal object of the
doctrine of common purpose is to
criminalise collective criminal conduct ad thus to satisfy the social
“need to control crime
committed in the course of joint
enterprises.”  The phenomenon of serious crimes committed
by collective individuals,
acting in concert, remains a significant
societal scourge.  In consequence crimes such as murder,
robbery, malicious damage
to property and arson, it is often
difficult to prove that the act of each person or of a particular
person in the group contributed
casually to the criminal result.
Such a casual prerequisite for liability would render nugatory and
ineffectual the object
of the criminal norm of common purpose and
make prosecution of collaborative criminal enterprises intractable
and ineffectual.”
[178]
In this case while all the accused would be part of a meeting at
accused no.1’s homestead and all of them were armed
and would
be transported to and from an armed robbery mission, some of them may
not have killed anybody.  Accused no.1 was
not present in any of
the crime scenes, his main role being that of facilitation before and
after and to preside in the sharing
of the spoils.  I understood
Mr Nohiya’s submission to be that while it may very well be
that common purpose is applicable
for armed robberies, it would not
be applicable for the murders especially in respect of the murder of
Mr Mzomhle Sojeleza Mazimbeni.
He based his reasoning on the
fact that when the deceased told them that the money was not with him
but was in safe keeping with
another person, Ngonini, accused no.2
and 4 left leaving Sibongo with the deceased.  They heard a
gunshot and returned into
the shop to see what was happening.
They found the deceased on the floor with blood and Sibongo carrying
a firearm.
[179]
The evidence in chief of Ngonini is as follows in this regard (volume
2 pages 106 - 108:
“
Mr Nolutshungu:
And where did you go?
Witness:
We went back to Thembile’s home stead, M’Lord.
Mr Nolutshungu: Yes,
please proceed.
Witness:
We then confronted or asked – I and Sibongo – I and Steve

asked
Sibongo about why he had
killed that person.
Mr Nolutshungu: Yes.
Where were you as you asked Sibongo?
Witness:
We were at Thembile’s homestead, M’Lord.
Mr Nolutshungu: And where
was Thembile at the time?
Witness:
Yes, Thembile was present, M’Lord, because Thembile asked
Sibongo if he had shot at
that person, M’Lord, and Sibongo said yes, M’Lord,
thereafter we part ways, M’Lord,
nothing was shared.
Mr Nolutshungu: Did he
give the reason why he shot at this… (inaudible)?
Witness:
No, he did not give the reason, M’Lord.
Mr Nolutshungu: About the
money as you went there you went to rob this person the
money that he was going
to use to buy a motor vehicle and you had told this court that you
did not find that money because this
person told you that he had kept
or given it to someone else for safekeeping.
Witness:
That is correct, M’Lord.
Mr Nolutshungu: Yes,
yes.  Was that report given to Thembile
Witness:
Yes, it was given to Thembile M’Lord.
Mr Nolutshungu: Who told
him?
Witness:
He was told by Sibongo. M’Lord.
Mr Nolutshungu:
(Inaudible)… at all the material times during these incidents
of
robbery you have
indicated that Thembile would drive you to these places but he never
entered the premises.
Witness:
That is so, M’Lord.
Mr Nolutshungu: Yes.
Who would count the money after the robberies in relation to
the incidents where you
actually robbed money, where you found money?
Witness:
The money would be counted by Thembile and Steve, M’Lord.
Mr Nolutshungu: And who
will share for you the money, who would give you your
share?
Witness:
It would be Thembile who would give me my share.
Mr Nolutshungu: And the
others, who would give the others their share?
Witness:
All of us were given our shares by one person, M’Lord.”
[180]
As I understood the submission, because the other accused had left
when Mr Mazimbeni was killed and when they got to accused
no.1’s
homestead, they confronted Sibongo about the killing and in so doing
they were distancing themselves.  This showed
that it was not
part of the plan that Mr Mazimbeni be killed.  In killing him
Sibongo was on a frolic of his own.  In
my view this submission
is tantamount to splitting the hairs.  The fact that when
Sibongo shot and killed the deceased they
had already gone out and
they later confronted him about it is not enough to separate it from
the common design for which they
were all armed to ensure its success
and their own protection at the expense of their victims.  I
must also add that accused
no.1 was not at any of the crime scenes,
however, principles of joint possession considered together with the
doctrine of common
purpose would make him also liable for the
firearms that were possessed and used as part of the common design on
the basis that
those who possess firearms did so with his knowledge
and on the evidence of Ngonini save for accused no.3, they obtained
the firearms
from him.
[181]
Counts 14 and 15 are an unnecessary splitting of the charges as Mr
Nohiya correctly submitted.  Briefly, on the same
date and time
the accused robbed Mr Shamagu of money and his vehicle which the
accused apparently used as a getaway vehicle.
I do not think
that there were separate intentions in those circumstances.
They went to his shop, robbed him of his money
and his vehicle.
Accordingly and on the facts of this case counts 14 and 15 are the
same offence of robbery with aggravating
circumstances.  The
separation of these charges is not, in my view, in the interests of
justice.
[182]
Finally, I must point out that the record of these proceedings shows
that counsel for the state made an error in that it is
accused 3 and
5 only who are not charged with some of the offences.  However,
when the charges were read, it appears that
he mistakenly excluded
accused no.4 and included accused no.5 in count 14.  It appears
that this mistake was common to counsel
for the state and to all
counsel for the defence.  However, page 2 of the record makes it
clear that accused no.5 is only
charged with counts 14 and 15 and
accused no.3 is charged with all the counts save for counts 14, 15,
16 and 17.   These
were the only variances amongst the
accused.  All the accused are liable in respect of counts 18 and
19 only in respect of
the offences in which they participated.
This means that accused no.3 and 5 would also be liable for counts 18
and 19 only
in respect of the offences in which the state proved that
they were involved.
[183]
In the main the accused made bare denials, conspiracy theories and
lied in court in their account of how they were not involved
in these
crimes.  Bizarrely, they seem to have practised the version they
were going to give in court as they were remarkably
similar and
taking cue from what accused no.1 said who seemed to have been
argumentative at times struggling to answer simple questions.

On the other hand both section 204 witnesses gave evidence that was
both credible and reliable in most material respects.
This is
not to suggest that their evidence was perfect and they were in any
event not expected to give perfect evidence.
Accordingly both
section 204 witnesses are granted immunity from further prosecution
as provided for in section 204 of the Criminal
Procedure Act.
[184]
In the result I am satisfied that the state has proved its case
beyond reasonable doubt.   Accordingly the accused
are
found guilty as follows:
1. Accused no.1 is found
guilty of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16,
17, 18 and 19.
2. Accused no.2 is found
guilty of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16,
17, 18 and 19.
3. Accused no.3 is found
guilty of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,18 and 19.
4. Accused no.4 is found
guilty respect of counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 16, 17, 18 and 19.
5.  Accused no.5 is
found guilty in respect of counts 14, 18 and 19.
_________________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: S. NOLUTSHUNGU
Instructed
by: NPA
MTHATHA
Counsel
for accused NO.1: B. LINYANA
Instructed
by: LINYANA & SOMACALA INC
FLAGSTAFF
Counsel
for Accused No.2 and 3: R.M. SODO
Instructed
by: LEGAL AID BOARD
MTHATHA
Counsel
for Accused no.4 and 5: A. NOHIYA
Instructed
by: LEGAL AID BOARD
MTHATHA
Heard
on: 04 June 2019
Delivered
on: 07June 2019