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[2019] ZAECMHC 77
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S v Mphetshwa and Another (CC18/2019) [2019] ZAECMHC 77 (13 December 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE NO. CC18/2019
In
the matter between:
THE
STATE
AND
NKOSIKHONA
MPHETSHWA
ACCUSED NO.1
SEBENZILE
SIDOYI
ACCUSED NO.2
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA
J
[1]
The accused were charged with two counts of murder in contravention
of section 84 of Act 9 of 1983, robbery in contravention
of section
155 of Act 9 of 1983, attempted murder in contravention of section 84
read with section 31 of Act 9 of 1983, possession
of firearms in
contravention of section 3 read with sections 1, 103, 120 (1) (a) and
121 further read with schedule 4 of Act 60
of 2000 and section 250 of
Act 51 of 1977, 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 and further read with section 250 of Act 51 of 1977.
[2]
The state provided the accused with the following summary of
substantial facts in terms of section 144(3) (a) of Act 51 of
1977
[1]
:
“
1. Prior the
commission of the offences in the indictment, the accused conspired,
planned and decided to kill the deceased counts
1 and 2 and to
further rob the firearm of the deceased in count 1, cellphones and
money.
2. They then armed
themselves with a firearm loaded with ammunition, and other dangerous
objects.
3. On 05 July 2018, the
accused, armed as aforesaid, went to the homestead of the deceased in
counts 1 and 2, where they found the
latter seated inside the
rondavel with their children.
4. The accused entered,
fired shots at the deceased in count 1 and further fatally assaulted
him with the dangerous objects they
were also carrying.
5. They thereafter
demanded the firearm of the deceased in count 1 from his wife and
child, drove the latter to another house in
the same homestead where
they robbed the said firearm, money, and cellphones. They shot
at the deceased’s child (A[…]
N[…]), and
thereafter killed the deceased in count 2 by also shooting at her.
6. The deceased in count
1 died as a result of “Extensive brain bleeding caused by head
injury caused by stab head”.
7. The deceased in count
2 died as a result of “cerebral bleeding caused by head injury
caused by gunshot head”.
8. The provisions of
section 51(1) of Act 105 of 1997 are applicable in respect of the
counts of murder, in that:-
8.1 The killing of both
the deceased was planned or premeditated;
8.2 The accused were
acting in execution or furtherance of a common purpose or conspiracy.
8.3 The death of the
deceased in count 2 was caused by the accused after having committed
robbery with aggravating circumstances,
to wit, wielding of a
firearm(s).
8.4 Alternatively, the
accused killed the deceased in count 2 because she was likely to give
material evidence with reference to
an offence, to wit, murder,
referred to schedule 1 to the
Criminal Procedure Act 51 of 1977
, at
the criminal proceedings.
9. The provisions of
section 51(2)
of Act 105 of 1997 are applicable in respect to the
counts of robbery.”
[3]
Both accused were legally represented throughout the trial.
They pleaded not guilty to all the charges and accused no.1
elected
not to disclose the basis of his defence to the charges. They
were warned that the state had invoked the provisions
of section
51(1) and (2) of the Criminal Law Amendment Act 105 of 1977 in
respect of the murder and robbery charges, should they
be convicted.
[4]
Accused no.2’s legal representative orally gave a plea
explanation for accused no.2’s plea of not guilty, which
was
that on 5 July 2018, the date on which the offences were committed,
he was at a certain shop in his locality. Accused
no.1 who is
known to him arrived in that shop after having been in Durban for two
years. Accused no.1 asked him to accompany
him to fetch his
belongings from certain boys in the same locality. They found
those boys who handed to accused no.2 the
said belongings of accused
no.1. It transpired that, it was accused no.1’s firearm
whose calibre he did not know.
He gave the said firearm to
accused no.1. Accused no.1 asked for a cigarette which accused
no.2 was already smoking.
He indeed gave his cigarette to
accused no.1 which was already half smoked after which they parted
ways and he did not know
where accused no.1 went.
[5]
On a certain day accused no.2 was with a certain policeman in his
room at his home. The said policeman suddenly and surprisingly
showed him a firearm as he was preparing his clothes which he was
going to take with him and go with the said policeman.
The said
policeman asked him about the firearm and he told him that he knew
nothing about that firearm. He was told that
the said firearm
had been used in committing murder and robbery. He was not
involved in any murder or robbery and he did
not possess any
firearm.
[6]
Accused no.2 confirmed that the above plea explanation was according
to his instructions and it was the version he had given
to his legal
presentative.
[7]
The state addressed court in terms of section 150 (1) of the Criminal
Procedure Act 51 of 1977 (the Act)
[2]
.
In its address the state indicated that it would rely on the evidence
of two eye-witnesses who are the children of the deceased
in counts 1
and 2 as direct evidence. The state would also rely on DNA
evidence linking both accused to the commission of
the offences as
well as the ballistic evidence of the analysis of the firearms that
were recovered after the arrest of the accused
by the police and
statements made by the accused to the police after they were
arrested.
[8]
The state called A[….] N[…] (A[…]), the 20 year
old son of the deceased in counts 1 and 2, Mr Maqhayi Nyolukana
and
Mrs Nofika Nokwakha Nyolukana. In the interest of brevity I
shall henceforth refer to the deceased in count 1 as Maqhayi
and the
deceased in count 2 as Nofika, to avoid any possible confusion about
the respective deceased’s persons.
[9]
A[….] testified that he is the eldest of five children
followed by M[…], A[…], S[….] and the last
born
is O[….] who was born in 2013. On Thursday 5 July 2018
in the evening he was at home with his parents and his
siblings at
Makhabaludaka locality in Bizana. They were in rondavel which
serves as a kitchen where he was straining traditional
beer called
Mqomboti at about 18:00.
[10]
His homestead is electrified and the rondavel they were in as family
has a light bulb which provided light. The light
was bright but
not very bright as the electric bulb had soot. The bulb is
located at the centre of the rondavel.
[11]
He heard dogs barking outside the rondavel inside the yard.
Mawanda went out to check on the barking dogs and came back
reporting
that there was someone who was asking for a firewood to light a
cigarette. Mawanda took a small burning firewood
from the
fireplace and went outside to give the firewood to that person just
outside the door. This person was visible to
him though it was
at dusk. This person fired a gunshot towards Maqhayi who was
sitting at the fireplace which was at the
centre of the rondavel
about two metres from the door frame. The gunshot was fired
from a small firearm. Mawanda rushed
in and closed the door and
his mother rushed to assist Mawanda in closing the door. He
(A[…]) also rushed towards
the door to assist in closing it
and he heard another gunshot after which two men entered one of them
pointing a firearm.
One of the two men was the one who had
earlier asked for a firewood to light a cigarette. The second
man was armed with a
bushknife and a spear, although he was not
certain about the exact types of those dangerous weapons. The
one who was carrying
a firearm pointed him with it and ordered
him to lie down.
[12]
The one who was carrying dangerous weapons whom he identified as
accused no.1 proceeded to attack Maqhayi with those weapons.
When Maqhayi must have died the gun welding man ordered him and
Nofika to go to another house in his homestead pointing them with
a
firearm. They indeed proceeded to the other house where he
demanded money and Maqhayi’s firearm. A[…]
identified the person carrying a firearm and who demanded money and
firearm as accused no.2. Maqhayi had a small firearm
which had
a flywheel. The other man had followed them to the house but
did not say anything at that stage.
[13]
He (A[…]) pushed a sofa and thus revealing Maqhayi’s
firearm which was hidden under the sofa and the person who
was
carrying dangerous weapons took it. He did not know if
Maqhayi’s firearm had ammunition. Accused no.2 looked
for
money and opened the pedestals next to the bed although he was not
sure if he got it.
[14]
Accused no.1 fired a shot at him as he was turning hitting him with a
bullet on the right shoulder and he fell down.
He lay on his
stomach putting his hands over the back of his head and another shot
was fired at his head but the bullet hit both
his hands and scratched
his head. He thought accused no.1 assumed that he was dead
because he said to Nofika “here
is your son we have killed him”
as he lay there unconscious. They took Nofika out of that room
leaving him there.
In the meantime he woke up and jumped out of
that room and ran away.
[15]
As he ran away he heard gunshots and he ran to the neighbours to ask
for help. When he returned he found that both Maqhayi
and
Nofika were dead. His silver sumsang cellphone and Nofika’s
mobicel cellphone were missing. He had injuries
from gunshots
on the back of the right upper arm and his hands and the skin of his
head had been injured by the bulletts.
He was taken to St
Patrick’s Hospital in Bizana where he was admitted and was
discharged after a week and a half. Nofika’s
cellphone
and his own cellphone and Maqhayi’s firearm and another firearm
were later brought to him in hospital by the police
on a Saturday or
Sunday after the attack at his homestead on Thursday the 05 July
2018.
[16]
His and Nofika’s cellphones were exhibited in court and he
identified them as the cellphones that went missing on the
day of the
attack at his homestead. The firearm that A[…] said was
Maqhayi’s firearm which was taken on the
day of the attack at
his homestead was also exhibited which was a .32 revolver with serial
number C168068. Another firearm
a .38 revolver with serial
number 665143 which was also brought with Maqhayi’s firearm was
also exhibited.
[17]
When the attack took place he could identify the attackers and he
later heard their names from the locality. He knew
the names of
one of them and he knew the second attacker by sight. He knew
accused no.1. He had seen him in the locality
before the
incident and they are from the same locality although he had never
spoken to him. He did not tell the police that
he identified
one of the attackers as accused no.1 because he was not sure that it
was really him as he knew him to be in Durban.
[18]
He testified that at the time of the attack he was doing grade 11 but
had to leave school to look after his homestead following
the death
of his parents.
[19]
Under cross-examination A[…] testified that his family and
that of accused no.1 had a good relationship but at some
stage the
relations deteriorated even before the incident. It was put to
him that in 2016 accused no.1 was arrested for some
charges that were
later withdrawn. On 02 August 2016 Maqhayi paid bail for him
and also gave him R50.00 advising him to buy
a traditional medicine
called
intelezi
and to go to a certain river to wash away the
darkness of prison before he went home. He did so and while he
was washing
with the
intelezi
at the river three people
emerged and kidnapped him. They kept him there next to the
river from about 15:00 until about 23:00.
Those people were
communicating over the phone with another person. They said
they had been hired by that person to remove
his private parts and
his tongue. It transpired that it was Maqhayi, the deceased in
count 1 who hired them. The kidnappers
were Mawande (different
from the one who was a state witness), Zola and Mayoyo. They told him
that they had been hired by Maqhayi.
Accused no.1 intended to
call at least one of them as a witness. A[…] testified
that he had no knowledge of any of
these allegations.
[20]
After he was released by the kidnappers he went to the police and
reported the incident. That culminated in lieutenant
colonel
Freemantle initiating peace talks between the two families and a
truce was reached. Further allegations of further
attacks
resurfaced about which A[…] said he did not know.
[21]
Under cross-examination by counsel for accused no.2 A[….]
testified that he knew accused no.2 by sight, he did not know
his
name. He confirmed that even before the incident he knew him,
however, did not tell the police that he could identify
him.
His reason for this was that there was a lot on his mind and he was
still in shock. However, he insisted that
accused no.2 was
there and disputed accused no.2’s version that he was not
there.
[22]
The state called M[…] M[…] N[…] (M[…])
the brother of A[…] and the second born son of Maqhayi
and
Nofika. He testified that he is a 15 year old grade 8 learner.
He was at home with his family in the rondavel during
the incident on
5 July 2018 in which his parents died. It was between 19:00 and
20:00 and the visibility outside was good
in front of the houses but
it was dark behind the houses as you went towards the gate. The
light came from an electrified
house nearby. The electric bulb
inside the rondavel was switched on.
[23]
A[…] was straining traditional beer generally known as
Mqomboti and also known as
ijiki
in the Pondoland areas.
He heard dogs barking and some sound from the gate. Maqhayi
asked him to go and have look.
He went to check and saw a
person coming. That person asked for a firewood to light a
cigarette. Nofika handed him
a burning firewood and he took it
and proceeded to that person who was standing about half a metre from
the door way outside the
rondavel. The visibility where that
person was standing was good, provided by the electric light from
inside the rondavel.
[24]
He saw that person’s face and it was someone he knew by sight.
He had seen that person at his home on one occasion
when there was an
ilima
after bean harvesting. That person was also
assisting in the activities of
ilima
. He was from
Nombengeza locality. During that
ilima
he saw him for
the first time. The
ilima
started in the morning at
about 8:00 and ended at about 16:00. On that day he (M[…])
served the people traditional
beer. That person remained at his
home until about 15:00.
[25]
On the day of the incident he gave that person a burning firewood and
he used it to light his cigarette but he realized that
that person
was coming closer to him and it seemed that he wanted to see inside.
He saw him smoking the cigarette.
He then took the firewood to
put it back to the fireplace. As he was about to sit down he
heard a gunshot from the direction
of the door. They all
scattered in the hut. He saw someone standing at the door
carrying a firearm and trying to enter
the hut but he and Nofika
tried to push the door to close it.
[26]
It was the same person he had given a firewood to light a cigarette.
He was carrying a small firearm which had a wheel.
Another
gunshot was fired and they stopped pushing the door and two men
entered. One of them was carrying a firearm and that
person
asked where Maqhayi was. Nofika was screaming. The second
person did not say anything but proceeded to Maqhayi
and attacked him
with an iron rod and a spear that he was carrying. He was not
sure if that person also carried a bushknife.
That person
was wearing a hooded jersey which did not fully cover his face.
However, he did not see that person’s face.
[27]
The person who was carrying a firearm ordered them to shut up while
the one with dangerous weapon was attacking Maqhayi.
The one
carrying a firearm demanded Maqhayi’s firearm and ordered A[…]
and Nofika to go to the other house.
They left and he remained
in the rondavel and went to call neighbours. He came back with
some neighbours and they stood on
the other side of the road.
They heard three gunshots and he realized that the neighbours were
afraid to go into his homestead.
He then went to call other
people. He later learnt that both his parents had been killed
in the incident. In court
he pointed at accused no.2 as the
person who had attended
ilima
at his homestead before the
incident and was present when his family was attacked.
[28]
Under cross-examination by counsel for accused no.2 he testified that
about nine people were at his homestead during the
ilima
and
he (M[…]) was working with them. However, he did not
talk to accused no.2. It was put to M[…] that
accused
no.2 never attended the
ilima
and that he never went to his
homestead at any stage. He insisted that he saw him during the
ilima
. He testified that accused no.2 was carrying a
firearm which had a wheel which he used to see on television and it
is called
a flywheel. He said he also knows a 9mm pistol.
He was never taken to an identification parade and on the day of his
testimony in court he was seeing accused no.2 for the third time.
He estimated the time it took taking the firewood from
Nofika and
giving the firewood to that person and the person lighting his
cigarette and him taking back the firewood and putting
it back to the
fireplace to about two minutes. He also saw him before he
handed him the firewood. He denied that he
was falsely
implicating accused no.2 insisting that he saw him at his home during
the attack.
[29]
The state indicated that it was in possession of statements made by
the two accused persons to captain Wophula and captain
Macala
respectively which the state believed complied with section 217 of
the Act. There were also exhibits which had been
recovered by
constable Sonkosi, warrant officer Maqhethuka and captain Junqwana
after the arrest of the accused which the state
also sought to have
admitted as evidence in this trial. Mr Nohiya who represented
accused no.1 indicated that his instructions
were to challenge the
admissibility of the statement allegedly made by accused no.1 to
captain Wophula as the said statement did
not comply with section 217
of the Act.
[30]
The reasons cited for the alleged non-compliance with the Act were
that accused no.1 was assaulted by the police who arrested
him being
constable Sonkosi, warrant Maqethuka and two others. During his
arrest there were between five and six police officers
but he was
assaulted by four of them and he did not know the names of the other
two. He was arrested at Mawoti in Durban
and that was where the
first assault took place. On the following day he was assaulted
at Bizana police station by constable
Sonkosi, warrant officer
Maqethuka and two other police officers who were not present in
Durban when he was arrested and assaulted.
The commissioned
officer before whom he made the statement did not explain his
constitutional rights. However, he did not
assault him.
[31]
Accused no.1 also intended to challenge the evidence relating to the
recoveries allegedly made by the police. However,
the basis on
which accused no.1 intended to challenge the evidence of the state
about such recoveries was not disclosed, with accused
no.1’s
legal representative merely indicating that such evidence would be
challenged.
[32]
Mr Ntikinca who appeared for accused no.2 also indicated his
intention to challenge the evidence of the state regarding the
statement allegedly made by accused no.2. His instructions were
that accused no.2 was approached by the police who suffocated
him
telling him that they wanted him to testify against accused no.1.
He was later made to sign a document purporting to
be a confession
which was not read back to him. The commissioned officer he was
taken to gave him a statement to sign without
telling him his
constitutional rights. Therefore, the statement was not made
freely and voluntarily as his rights were not
explained to him, he
had been suffocated before he was taken to the commissioned officer
who caused him to sign the statement without
even reading the
document back to him. On recoveries, constable Sonkosi and
another police officer arrived at his home and
searched his room.
Suddenly constable Sonkosi showed him a firearm which he said had
been used in the commission of the offence.
The police also
took an iron rod from his homestead.
[33]
The state thereupon applied for the opening of a trial within a trial
on the issues raised by the accused to determine the
admissibility of
the confessions and recoveries made by the police. The state
called constable Sinethemba Sonkosi to testify
in the trail within a
trial. He testified that he was attached to the detective unit
at Bizana police station and is the
investigating officer in this
case. He started investigating the case on 6 July 2018 and
visited the crime scene on the same
day. He interviewed some
people at the Nyolukana homestead.
[34]
He also found a cigarette butt in front of the door about two metres
from the entrance to the rondavel. About three quarters
of it
had not been smoked. He collected it and sent it for forensic
testing at the laboratory.
[35]
On Sunday the 08 July 2018 he arrested accused no.2. His arrest
came about after he was told by M[…] who had seen
accused no.2
at the crime scene at his home although he did not know his name,
only informing them that one of the assailants was
from Nombengeza
locality. Eventually they arrested accused no.2 at correctional
services offices for parolees. He went
to arrest accused no.2
with warrant officer Maqethuka. They arrived there, introduced
themselves and asked if he was Sebenzile
Sidoyi and he confirmed that
indeed he was. At some stage they were joined by captain
Junqwana. They told him that
they were there investigating the
Nyolukana case, explained his rights which he read from his pocket
book in isiXhosa. Accused
no.2 immediately indicated that he
knew about what happened at the Nyolukana homestead.
[36]
They handcuffed him and took him to the police station for further
interrogation to see if he was really involved in the offences.
He told them that he would like to first fetch his items at Highlands
which is a township in Bizana. They went straight to
Highlands
where there was a four roomed house and there was no one there.
He told them that the house belonged to a relative
of his. In
one of the rooms accused no.2 reached out for a bag which was between
a bed and a wall. They ordered him
not to take the bag as they
wanted to search it first before he took it which is police
procedure.
[37]
Accused no.2 then told them that there was a firearm in the bag.
They opened the bag and found a firearm with serial
number 665143
which had no ammunition and a mobicel cellphone. They asked for
a firearm licence and he said did not have
one. He told them
that it was the firearm that he used at the Nyolukana homestead and
that he took the cellphone from the
Nyolukana homestead as well.
On the way to the police station he asked him about his visit to
correctional services offices.
Accused no.2 explained that he
went there to change his residential address as he was going to stay
in Port Shepstone.
[38]
They were already looking for accused no.1 for the Nyolukana case as
well. They booked him in at the police station and
detained
him. They thereafter booked him out for further
investigations. They wanted him to assist them in getting
to
accused no.1. They asked him to call accused no.1 who said he
should come and they would meet at the market in Durban.
[39]
They proceeded to Durban in two vehicles being himself, warrant
officer Maqethuka and accused no.2 in their vehicle and in
the second
vehicle captain Junqwana was with warrant officer Memela. They
arrived in Durban at the market and asked accused
no.2 to call
accused no.1 and tell him that he was already at the market.
Accused no.1 told accused no.2 that he was at Mawoti
outside Durban
but would send another person to take accused no.2 to the taxis.
Shortly thereafter that person arrived.
Accused no.2 assisted
them in hiding their presence around him as he had said it was
accused no.1 who got him involved in that
whole incident.
[40]
He and warrant officer Maqethuka boarded a taxi with accused no.2 to
Mawoti. Captain Junqwana followed them in a vehicle
so that
there would be a vehicle close by when they arrested accused no.1.
When they arrived at Mawoti bus stop they alighted
from the taxi.
Accused no.1 who was unaware that accused no.2 was coming with the
police was excited to see him and they
arrested him. They
handcuffed him and told him why they were there and also introduced
themselves. He read him his
constitutional rights from his
pocket book in isiXhosa. Accused no.1 giggled saying as long as
Nyolukana was dead he did
not mind even if he got a life sentence.
[41]
They waited there at the bus stop for captain Junqwana to arrive with
a vehicle and pick them up. Before the vehicle
arrived accused
no.1 asked to go and fetch his belongings from his place of residence
in Mawoti. He asked him about the items
they took at the
Nyolukana homestead. Accused no.1 said he would see when they
got to his place. They all proceeded
to his place of residence
and when they got there captain Junqwana remained in the vehicle with
accused no.2 and the other person
while he, warrant officer Memela
and warrant officer Maqethuka and accused no.1 went into his room.
[42]
Accused no.1 took out some clothes that were in a washing basket and
at the bottom there was a firearm which he pointed out
to them.
He also showed them a gold samsung cellphone that was on table.
The firearm had no ammunition and its serial
number was C168068.
Eventually they returned to Bizana with both accused on the same day
and detained them. The
following morning both accused were
charged for the crimes committed at the Nyolukana homestead. It
became clear from the
interviews with the accused that they were
implicating themselves. He asked captain Junqwana to arrange
for statements to
be taken by commissioned officers. They never
assaulted, threatened or coerced the accused in any way.
[43]
Under cross-examination on behalf of accused no.1 he confirmed that
he explained the constitutional rights of the accused who
did not
indicate what his election was regarding the right to legal
representation but merely giggled. He made the accused
sign in
his pocket book that he explained his constitutional rights to him.
However, that particular pocket book got lost.
He insisted that
the constitutional rights were explained to the accused at all
material times. It was put to him that accused
no.1 denied that
any firearm was found in his room which he disputed. It was
further put to him that accused no.1 would say
that indeed a
cellphone was found in his possession at the bus stop when he was
arrested. However, he had bought that cellphone
from accused
no.2.
[44]
When he was arrested at the bus stop he was assaulted by the police
with open hands. When the police met him they first
grabbed him
and then hit him with open hands, then put him on the ground after
which he was handcuffed. Constable Sonkosi
testified that
indeed they got the cellphone from the accused at his place of
residence in Mawoti but he had no knowledge that
he bought it from
accused no.2 as he said he did. He also confirmed that they did
put accused no.1 down and handcuffed him
but did not assault him in
any way. He denied putting plastic bag over the accused or
suffocating him. He denied that
he personally took accused no.1
to captain Wophula to make a confession.
[45]
He disputed that there is a container at Bizana police station where
the accused alleges that he was taken to and assaulted
therein by him
and warrant officer Maqethuka. He testified that in 2018 and
now there was and there is no container at all.
[46]
Under cross-examination from accused no.2’s legal
representative constable Sonkosi testified that accused no.1 never
told them that he bought the cellphone from accused no.2. He
testified that accused no.2 was told his constitutional rights
which
he read from his pocket book. He denied that it is the police
who showed him a gun whose existence accused no.2 did
not know and
confirmed that it was accused no.2 who told them that there was a
firearm in his bag. He confirmed that he became
aware of the
involvement of accused no.2 on the 6 July 2018 when he visited the
crime scene. When accused no.2 was arrested
there was already
evidence implicating accused no.1. Accused no.2 merely assisted
in locating accused no.1. He denied
that they ever asked
accused no.2 to become a state witness. He denied that they
manhandled, assaulted, suffocated or in
anyway tortured accused no.2.
[47]
The next witness for the state was captain Sibusiso Wophula who
confirmed that the statement of accused no.1 was taken by him
after
explaining the rights to the accused as contained in the pro-forma
document. He was asked by captain Junqwana, the
commander of
the detectives in Bizana police station to come and take a
confession.
[48]
When he arrived at Bizana police station from Mzamba police station
where he worked, captain Junqwana showed him the office
and the
stationery that he was going to use. He the completed the
pro-forma document himself with the details and the answers
that
accused no.1 gave to him. Accused no.1 was brought to him by
constable Badama. After the pro-forma document was
completed
the accused signed all the pages after all the explanation was given
and the accused had confirmed to him that he had
not been assaulted.
He denied that accused no.1 was brought to him by constable Sonkosi.
He confirmed that he knows
both constables Sonkosi and Badama
and could not mistake them.
[49]
The state called Nosipho Macala who testified that she is attached to
the visible policing unit at Maluti police station where
she is now a
lieutenant colonel. She testified that when she took the
statement from accused no.2 she was stationed
at KwaNdengane
police station as a station commander and held the rank of a captain
at the time. She testified that she did
not recall who asked
her to come and take a statement from the accused. She had to
come to Bizana police station because
they did not have enough
offices at KwaNdengane police station which is a small police
station.
[50]
She was given an office by the station commander at Bizana police
station. Constable Msuthu who was already known to
her brought
the accused to her. She then went through the whole process and
explained the rights of the accused reading them
from the pro-forma
document. She completed the form from the answers that the
accused gave to her. The accused signed
all the pages and she
also signed and thereafter she took the statement from the accused.
She denied that she did not read
the contents of the document to the
accused before he signed it. Only when she was satisfied that
all the requirements for
a confession had been complied with did she
proceed to take the statement from the accused.
[51]
Constable Msuthu testified and confirmed that he is a constable
stationed at KwaNdengane police station. He knows lieutenant
colonel Macala. He was at Bizana police station on 09 July 2018
and was asked by captain Junqwana to take a suspect from
the cells to
captain Macala for a confession. He went to the cells and asked
accused no.2 if he had any injuries or felt
any pain as he was going
to take him out of the cells for a confession and he said no.
He then took accused no.2 to captian
Macala and left him there with
captain Macala who was alone. At some stage captain Macala
appeared at the door and asked
him to come and take the suspect back
to the cells. He again asked accused no.2 if he had any
injuries as he was taking him
back to the cells and he said there was
nothing wrong with him.
[52]
The state called captain Maqethuka who confirmed that he was
stationed at Bizana police station and was a warrant officer as
at
the 05 July 2018 but has since been promoted. He visited the
Nyolukana homestead on 5 July 2018. He was involved
in the
arrest of both accused. Accused no.2 was arrested by constable
Sonkosi in his presence. Constable Sonkosi introduced
them to
accused no.2 and then explained the constitutional rights to the
accused before arresting him.
[53]
From the correctional services offices where the accused was arrested
they were going to go straight to the police station.
However
accused no.2 asked to be taken to Highlands View where he wanted to
fetch some items. They therefore started at Highlands
View
where they went into a room with accused no.2. They noticed a
bag next to a wall there which accused no.2 said was his.
Accused no.2 took the bag and opened it saying it had a firearm.
Constable Sonkosi immediately stopped him and took the bag
and
searched it. He found a firearm which was a .38 revolver.
They also found a mobicell cellphone which was silver
in colour.
[54]
Accused no.2 told them that the firearm belonged to accused no.1 and
that it was the same firearm that he used in the shooting
at the
Nyolukana homestead. Accused no.2 also said he took the
cellphone from that homestead during the attack at that homestead.
They took the firearm and the cellphone with them to the police
station. Accused no.2 assisted them with information which
resulted in the arrest of accused no.1 in Durban at Mawoti bus stop
where he had gone to meet accused no.2. Accused no.1
was
informed of his constitutional rights by constable Sonkosi.
Accused no.1 asked to be taken to his place of residence
where he
wanted to fetch some items that he would need in the cells.
[55]
They proceeded to his room and on arrival there he took a gold
samsung cellphone and gave it to constable Sonkosi. Accused
no.1 also went to a washing basket and took out some clothes from
it. They noticed a firearm in the washing basket.
Accused
no.1 told them that he took that firearm from the Nyolukana
homestead. Eventually they returned to Bizana with both
accused
where they were detained. Throughout the process of the arrest
of both accused until they were detained they were
never assaulted or
threatened in anyway or promised anything.
[56]
Accused no.1 was charged by him whereas accused no.2 was changed by
constable Guqaza. In the process of charging accused
no.1 he
explained his rights to him in the normal way. The accused made
a statement to him in which he was incriminating
himself. He
then informed the investigating officer about that. The
investigating officer told captain Junqwana who
organised a
commissioned officer to take the confession.
[57]
Under cross-examination he confirmed that the constitutional rights
were explained to the accused and he was not assaulted
at all.
On the way from Durban accused no.1 was talking freely and even said
as long as Maqhayi was dead he was okay.
He denied that in
Bizana the accused was assaulted with open hands or suffocated with a
plastic bag. Further cross examination
did not alter his
evidence in chief in any material way.
[58]
Constable Guqaza confirmed that on 09 July 2018 she charged accused
no.2. Her role was merely to charge the accused after
having
been asked to do so by the investigating officer. She was not
herself involved in investigating the case. She
charged the
accused in the normal way and informed the accused of all his
rights. Accused no.2 elected to speak without legal
representation. She thereupon completed the warning form and
took a warning statement from him. She realised that accused
no.2 was in fact confessing. She then informed the investigating
officer about that. Thereafter she had no further dealings
with
the accused. She confirmed that there is no container at Bizana
police station.
[59]
It was put to constable Guqaza on behalf of accused no.2 that accused
no.2 was not charged by a female police officer.
She disputed
that insisting that she is the officer who charged accused no.2.
When she was re-examined she confirmed that
she completed the warning
form and she and the accused signed it and the statement was also
signed by the commissioner of oaths.
[60]
The evidence of captain Junqwana did not take the evidence of the
other officers who participated in arresting the accused
any further
save to confirm his involvement in the investigation of the case and
the role he played as already testified to by
other police officers.
Constable Badama also testified and confirmed that he was
stationed at the charge office on 9 July
2018. He knows captain
Wophula. On 9 July 2018 he was doing his normal charge office
duties when constable Sonkosi
asked him to fetch accused no.1 from
the cells and take him to captain Wophula.
[61]
He then went to the cells and made the necessary entries in the cell
register. Accused no.1 was not injured and appeared
to be
sober. He took him to captain Wophula whom he found alone in an
office. He then left the accused there with captain
Wophula.
At some stage captain Wophula called him to come and fetch the
accused. He checked and again observed that
the accused did not
have any injuries and he took him back to the cells. Nothing of
significance came out of his cross examination.
[62]
The state closed its case in the trial within a trial after which the
defence called accused no.1 to testify. He confirmed
that he
was arrested at Mawoti bus stop by constable Sonkosi and warrant
officer Maqethuka. He disputed the evidence of those
police
officers that his constitutional rights were explained to him.
He said they introduced themselves to him and informed
him of the
charges they were investigating and the reasons for his arrest.
However, his constitutional rights were not explained.
[63]
His version of events was that he was at the bus stop waiting for
accused no.2 when the police arrived and caused him to lie
down,
handcuffed him and told him that he had murdered Maqhayi and his
wife. When he denied being involved in those offences
they
assaulted him by slapping him on the face with open hands. He
was searched and a cellphone was taken from his pocket
by warrant
officer Maqethuka. He then requested them to take him to his
place of residence to fetch his clothes.
[64]
When they arrived at his place of residence he told his cousin with
whom he stayed there what was happening. He entered
his room
with three police officer and he took his clothes and cosmetics.
Thereafter he went to the police vehicle with the
police. He
confirmed that he did take clothes out of the washing basket but
denied that there was a firearm there.
He denied that he handed
a cellphone to the police in that room. He had bought the
cellphone from accused no.2 at a liquor
outlet next to a bus stop in
Bizana either on a Friday or Saturday as he was on his way to
Durban. Thereafter
he returned to Bizana with the
police. He spent the night in the holding cells. The
following morning constable Sonkosi
and warrant officer Maqethuka and
another officer in uniform arrived and took him out of the cell.
He was taken to a white
container where the police told him that he
had murdered Maqhayi and his wife. He denied that and the
police assaulted him
with open hands and covered his head with a
plastic bag suffocating him.
[65]
He was returned to the holding cells and was later taken out again by
constable Sonkosi who told him that he was going to take
him to
another person where he would make a statement. He was also
warned that if he did not tell that person everything
he would be
returned to them. Constable Sonkosi took him to captain
Wophula. He denied that it was constable Badama
who took him to
captain Wophula. Captain Wophula did introduce himself and
asked him to explain to him where and how he was
arrested.
However, he did not explain his constitutional rights to him.
[66]
He also lied to captain Wophula admitting to having murdered the
deceased because he was tired of being assaulted by the police.
Constable Sonkosi thereafter arrived and took him to the charge
office and handed him to warrant officer Maqethuka who caused him
to
sign some papers which he did. He denied that warrant officer
Maqethuka explained his constitutional rights to him.
[67]
It was put to him on behalf of accused no.2 that he would deny that
he ever sold him a cellphone. He maintained that
he did.
Under cross-examination by the state he maintained that the police
assaulted him in Durban because he had denied
being involved in the
Nyolukana murders. He was assaulted by constable Sonkosi and
warrant officer Maqethuka later joined
in assaulting him with open
hands on his face more than 5 times but was he not sure if it was
more than 10 times. Warrant
officer Maqethuka also assaulted
him more than 5 times. They stopped assaulting him because a
police vehicle arrived and
he was put inside the vehicle.
[68]
When the vehicle arrived he was taken to his room at his request to
fetch his clothes. The phone that warrant officer
Maqethuka
searched him and found in his pocket is the samsung that was
exhibited in court. He confirmed that when he was
arrested
accused no.2 was present and he saw him being assaulted.
[69]
In his room the police never assaulted or coerced him to do anything
and all the way from Durban to Bizana they did not assault
him.
In the morning he was taken to a white container at Bizana police
station which is the office in which he was assaulted
by constable
Sonkosi and warrant officer Maqethuka saying he should admit to the
murders. They also suffocated him with a
plastic bag.
Both constable Sonkosi and warrant officer Maqethuka assaulted him on
his face more than 5 times each with open
hands. The assaults
were so severe that his face was swollen and when he cleaned his left
ear pus would come out.
[70]
The assaults only stopped after he told them that he would admit to
the crimes. He was then returned to the cells.
He was
booked out of the cells again on the same day and he was taken to
captain Wophula. However, captain Wophula did not
assault him
or threaten him. Captain Wophula did not tell him about his
right to legal representation, had he done so he
would have asked for
a legal representative. He never informed him of his right to
remain silent and he did not read him
the rights contained in the
pro-forma part of his statement. He created a story which was a
lie and captain Wophula wrote
it and read it back to him to confirm
its correctness and thereafter caused him to sign it.
[71]
He appeared in court on 10 July 2018 where he was represented by Ms
Tetyana. He told Ms Tetyana that the police assaulted
him but
she did not do anything about it. He appeared before magistrate
Msengana who told him his constitutional rights including
the fact
that the evidence he gave during bail proceedings could be used
against him in a subsequent trial. He denied deposing
to an
affidavit for bail proceedings in which he told the magistrate that
he intended to plead guilty to murder, possession of
firearms and
ammunition and robbery. He denied ever saying that he wanted to
plead guilty. Accused no.1 further testified
that he might have
misunderstood the fact that the affidavit said he intended to plead
guilty as he did not intend to do so.
What he confirmed to the
magistrate was that he intended to apply for bail.
[72]
It was put to him that his intention to plead guilty which he
expressed to the magistrate was consistent with the evidence
of the
police that he co-operated with them after his arrest and that the
police could not have had any reason to assault him.
However,
he maintained that the police assaulted him. It was further put
to him that it was improbable that the police would
have repeatedly
assaulted him in his face knowing fully well that he was going to
appear in court the following day. However,
he maintained that
he was assaulted by the police. He also confirmed that his
statement made to captain Wophula consisting
of three full pages came
from him and not the police.
[73]
Accused no.2 also testified during the trial within a trial. He
testified that at the time of his arrest the had gone
to the
correctional services offices to change his address as he intended to
go to his brother in Port Shepstone. Two men
who introduced
themselved as police officers arrived. They asked if he was
Sebenzile Sidoyi from Qhabangeni and he responded
affirmatively.
They then addressed the correctional services officials requesting to
talk to him. They took him outside
where they asked him what he
had done at Nyolukana. He told them that he knew nothing about
Nyolukana. They asked him
about the whereabouts of accused no.1
and he told them that he might be in Durban. He confirmed to
the police that he had
seen accused no.1 on a Thursday about 17:00 or
18:00.
[74]
Eventually they left the correctional services offices and went to
the police station. At the police station he was asked
about
his meeting with accused no.1. He told them that accused no.1
arrived at a shop called TM Bottle Store asking about
some boys
called Luthando and Bavu. Accused no.1 told him that some of
his belongings were robbed from him by those boys
and that he should
assist him to find them. Eventually they found those boys and
recovered a firearm belonging to accused
no.1 which he took and gave
it to accused no.1.
[75]
They then went to Qhabangeni bus stop where accused no.1 gave him a
cigarette which he smoked and gave it back to him and they
went to
their separate homes. The police said he was lying and warrant
officer Maqethuka took out a plastic bag.
He was ordered
to sit down. He was suffocated with the plastic bag by warrant
officer Maqethuka and told that when he wanted
to tell the truth he
should tap his foot. When he bit the plastic so that he could
breath constable Sonkosi slapped him with
an open hand about five
times. He was again tortured by being pressed down with the
chair he was sitting on and two plastic
bags were also used to
suffocate him. The police said they would only stop torturing
him if he deficated on himself if he
did not tell them the truth.
They stopped when he wet himself. They were stopped by captain
Junqwana from further torturing
him.
[76]
The police asked him to co-operate with them so that they could get
to accused no.1 as they had information that it was accused
no.1 who
murdered Maqhayi. He was told by constable Sonkosi that they
had all the information about what happened at the
Nyolukana
homestead and that they knew that he was not present at the crime
scene when the crimes were committed. Constable
Sonkosi told
him to create a convincing story that he was present at the crime
scene so that they could get accused no.1 whom they
knew had a bad
relationship for some time with Maqhayi.
[77]
Constable Sonkosi showed him a cell phone that was silver in colour
and told him that they wanted another cellphone.
He told him
that he did not see that cellphone when he met accused no.1.
Constable Sonkosi wanted the cellphone number of accused
no.1 which
was in a different sim card that was in his clothes at Highlands View
at his partenal uncle’s place. He
went to Highlands View,
with constable Sonkosi, warrant officer Maqethuka and captain
Junqwana.
[78]
On the way to Highlands View they were giving him some ideas.
He asked them about his own cellphone which they had taken
as they
had only showed him the silver cellphone. He heard constable
Sonkosi and captain Junqwana saying they should say
that the silver
cellphone belonged to him. They arrived at Highlands and enterd
his room. The police asked him to point
out his bag which he
did. Warrant officer Maqethuka searched the other room.
Constable Sonkosi opened the bag and took
out some clothes and then
put them back into the bag.
[79]
He and constable Sonkosi waited for warrant officer Maqethuka who was
searching the other room, but he came back saying he
did not get
anything. They left Highlands going to his home at Qhabangeni.
They arrived at his home and went to his
flat which is a two roomed
structure and his room was searched. Constable Sonkosi took out
an ash tray and put it in a plastic
bag.
[80]
They also searched the second room which was used by his older
brother. They found a sharpened iron rod. Constable
Sonkosi took out a stick under his father’s bed, ordered him to
lie down and hit him on his buttocks. They eventually
returned
to the police station.
[81]
He denied that a firearm was found when any of his places was
searched both at Highlands and at his home. He explained
that
the police produced the firearm in the vehicle on the way back to the
police station. He was told by constable Sonkosi
that the
firearm belonged to accused no.1 and asked him if it was not the same
firearm that they got back from those boys.
He told him that it
looked like it. He was told by constable Sonkosi that when they
got to accused no.1 he should not deny
that he was present at the
Nyolukana homestead and that accused no.1 left the firearm with him.
[82]
On arrival at the police station warrant officer Maqethuka said that
he should not say that on that day they parted ways with
accused no.1
but should say that he was there at the crime scene. They said
that a plan should be hatched to incriminate
himself so that accused
no.1 would not be able to deny his involvement. They told him
that a firearm and a cigarette butt
were recovered at the crime
scene. That firearm had been left at the crime scene by the
perpetrators and they were looking
for the second firearm.
[83]
He was eventually charged eventually by constable Sonkosi who caused
him to sign a document and his fingerprints were taken.
The
papers he was made to sign were already completed and they were not
read back to him. He confirmed that he did sign the
warning
statement but its contents were not read back to him and his
constitutional rights were not explained to him. He
could not
remember the policeman who attended to him and caused him to sign the
document. There was no stage at which he
was attended to or
appeared before a female police officer.
[84]
Under cross-examination by the state he confirmed that he was present
when accused no.1 was arrested in Durban. However,
he was about
10 metres behind the police who arrested accused no.1. There
were many people moving up and down but accused
no.1 was visible to
him. He led the police to accused no.1. When he alighted
from the taxi accused no.1 approached
him and the police who were
with him arrested him. Accused no.1 was not aware that he was
with the police. The reason
he was 10 metres behind was that
constable Sonkosi grabbed him and another officer pushed him back.
The reason he ended up
being so far behind was also that there were
many people there.
[85]
He saw the police causing accused no.1 to lie down but did not see
them assaulting him. He then said that he would have
seen them
if they had assaulted him and therefore it was not true that the
police assaulted accused no.1 at the bus stop at Mawoti.
He
testified that on the way back from his home at Qhabangeni, police
said that they had recovered a firearm from his bag.
The reason
he had said in his evidence in chief that the police had recovered a
firearm in his bag was because he had a deal with
the police.
[86]
His deal with the police was to say that he got the firearm from
accused no.1. As the firearm was with the police he
should say
that it was recovered from his bag. He was promised that if he
kept to this deal he would be released from the
case when accused
no.1 was arrested. He was taken by constable Sonkosi together
with another police officer who had opened
the cell for him to a male
commissioned police officer. That police office wrote down his
statement as he was narrating the
story. He read it back to him
and he confirmed that it was exactly as he had narrated it. In
that statement he incriminated
himself and he signed it. That
police officer to whom he made the statement never assaulted him and
that on the 9 July 2018
he was never assaulted by anyone at any
stage.
[87]
He denied being attended to by a female police officer. He did
not know how it came about that his signature appeared
on a document
which was completed and signed by constable Guqaza, a female police
officer. He also changed his verion to
say that during the
interview with the police on the 08 July 2018 when he was arrested
they never said he should falsely implicate
accused no.1. The
only thing that the police said he must say was that he got the
firearm recovered from him from accused
no.1. He insisted that
on the 9 July 2018 he made a statement to a male police officer in
writing and not to constable Guqaza
and captain Macala both of whom
are females.
[88]
He confirmed that the mobicel cellphone which was exhibited in court
is the same cellphone that constable Sonkosi had shown
him. It
was not recovered from him but constable Sonkosi came with it.
His evidence was both disjointed and contradictory
when his evidence
in chief is compared with his evidence under cross-examination and
the version put on his behalf to state witnesses.
[89]
The defence closed its case in the trial within a trial and the state
and the defence addressed the court on the merits.
[90]
Section 217(1)(a) of the Act makes the following provisions regarding
the admissibility of confessions:
“
Evidence
of any confession made by any person in relation to the commission of
any offence shall, if such confession is proved to
have been freely
and voluntarily made by such person in his sound and sober senses and
without having been unduly influenced thereto,
be admissible in
evidence against such person at criminal proceedings relating to such
offence.”
[91]
The main objection by both accused to the admissibility of the
statements made to captains Wophula and Macala was that the
accused
were assaulted by the police and secondly they were not apprised of
their constitutional rights thus rendering the statements
so made
inadmissible. Accused no.1 testified that he was first
assaulted by four policemen at the bus stop when he was arrested
at
Mawoti in Durban. There are a number of difficulties with this
version and I will just mention a few of them. Firstly,
the
police officers who were there when he was arrested were not four,
they two being constable Sonkosi and warrant officer Maqethuka.
Secondly, he did not say why they assaulted him. Thirdly,
accused no.2 was present when accused no.1 was arrested as he was
the
one who helped them to get to him. Very strangely, accused no.2
did not see him being assaulted and yet he was present.
[92]
It was accused no.1’s evidence that at Bizana police station he
was taken to a white container in which he was assaulted.
The
evidence of the police is that there was no container in July 2018 to
date at Bizana police station. If he could not
be assaulted in
a container because it was not there, it becomes doubtful if he was
assaulted at all. His evidence was that
he was assaulted with
open hands by both constable Sonkosi and warrant officer Maqethuka
more than five times by each of them.
[93]
Despite what must have been a heavy assault on his face as he
testified that his left ear would ooze sum pus when he cleaned
it, he
appeared before captain Wophula but he did not tell him that he had
been assaulted. Captain Wophula also made his
own observation
that he had not been assaulted in addition to accused no.1’s
direct answer to him that he had not been assaulted.
The
following day on the 10 July 2018 he appeared in court where he was
represented by an attorney Ms Tetyana. He claimed
to have told
Ms Tetyana that he had been assaulted but she did nothing about it.
All of his evidence was highly questionable
at best as it contained a
significant amount of inconsistency.
[94]
Accused no.2 testified during his evidence in chief that he was
ill-treated because constable Sonkosi said he was lying when
he said
he met accused no.1 on 5 July 2018 at that shop and parted ways after
sharing a cigarette. Constable Sonkosi
took a plastic bag
that had been prepared by warrant officer Maqethuka and told him that
he was going to suffocate him with.
Indeed they put that
plastic bag over him and also slapped him with open hands five times
when he bit the plastic bag so that he
could breath. The
plastic bag was doubled and he was told that they would only stop
torturing him in that manner if he deficated
on himself or wet
himself. He did wet himself and they removed the plastic bag.
[95]
One of the strange things about this evidence is that those police
officers did not know where exactly accused no.1 was at
the time.
He did not deny his knowledge of accused no.1 and in fact he told
them that he was in Durban and in fact assisted
them in arresting him
in Durban. They assaulted him saying that he was lying just
because he himself was on the way to Port
Shepstone when he was
arrested. They had to go to Highlands where the sim card that
had accused no.1’s cellphone number
was. The firearm was
not found at Highlands or at his home at Qhabangeni. It was
produced by the police in the vehicle
on the way to the police
station from Qhabangeni. They told him that the said firearm
was found at the crime scene and the
cigarette butt was also found at
the crime scene. Only his personal belongings were found with
him, not a firearm or cellphone.
All of this does not make
sense at all.
[96]
Even on the issue of constitutional rights, which both accused
claimed were not explained to them, it is puzzling that all
the
police officers including both commissioned officers to whom the
confessions were made did not tell them their rights.
The
evidence of accused no.2 was that he did not even appear before a
female officer at any stage, yet the evidence of the state
was that
it was constable Guqaza, a female police officer who charged him and
completed the warning statement which the accused
signed and he
admits his signature on that document. Similarly the
commissioned police officer, captain Macala is also a
female
officer. The evidence of accused no.2 was not only that she did
not explain the constitutional rights to him but that
captain Macala
did not even attend to him. He was attended to by male officers
throughout.
[97]
The evidence of both accused is both contradictory and in many ways,
so improbable as to be false both as regards the assaults,
the issue
of constitutional rights and the recoveries made. Their evidence
simply did not make sense. Even if I were
to be wrong in
my conclusion that their evidence is full of falsehoods, that would
not necessarily lead to the confessions being
inadmissible without
more.
[98]
The legal position with regards to the admissibility of the evidence
in a criminal trial has been explained by our courts.
However,
our justice system is, like everything else, governed by our
Constitution. Section 35(5) of the Constitution provides:
“
Evidence obtained
in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would
render the trial
unfair or otherwise be detrimental to the administration of justice.”
[99]
From this provision it is not hard to see that it is the exclusion of
the unconstitutionally obtained evidence that is made
subject to the
condition that for it to be excluded such evidence must be such as to
render the trial itself unfair or detrimental
to the administration
of justice. If the drafters of the Constitution wanted
unconstitutionally obtained evidence excluded
at all times and under
all circumstances with no regard to whether it would render the trial
unfair or not, section 35(5) would
have ended with the word
“excluded” without the condition that follows thereafter
or been worded differently.
[100]
That this is so was aptly explain in
S
v Tandwa
[3]
as follows:
“
The notable
feature of the Constitution’s specific exclusionary provision
is that it does not provide for automatic exclusion
of
unconstitutionally obtained evidence. Evidence must be excluded
only if it (a) renders the trial unfair, or (b) is otherwise
detrimental to the administration of justice. This entails that
admitting impugned evidence could damage the administration
of
justice in ways that would leave the fairness of the trial intact:
but where admitting the evidence renders the trial itself
unfair, the
administration of justice is always damaged. Differently put,
evidence must be excluded in all cases where its
admission is
detrimental to the administration of justice, including the sub-set
of cases where it renders the trail unfair.
The provision
plainly envisages cases where evidence should be excluded for broad
public policy reasons beyond fairness to the
individual accused.”
[101]
More directly on confessions and pointing out the following
sentiments were expressed in
S
v Ngcobo
[4]
“
It is essential
that society should have confidence in the judicial system.
Such confidence is eroded where Courts on the
first intimations that
one of an accused’s constitutional rights has been infringed
exclude evidence which is otherwise admissible.
Such evidence
is very often conclusive of the guilt of the accused. It is
either admissions or a confession made voluntarily
and without undue
influence wherein the accused implicates himself in the commission of
the offence or it is the discovery either
by way of a search or a
pointing out of objects such as the murder weapon or property of the
victim which conclusively links the
accused to the crime. At
the best of times but particularly in the current state of endemic
violent crime in all parts of
our country it is unacceptable to the
public that such evidence be excluded. Indeed the reaction is
one of shock, fury and
outrage when a criminal is freed because of
the exclusion of such evidence.”
[102]
Recently the above legal position was cemented in
Gumede
v S
[5]
where the Supreme Court of Appeal said:
“
The illegality of
the search is therefore beyond question and that much was conceded by
the state. The firearm was obtained
by means of the search
which because of its illegality violated the appellant’s right
to privacy. But the fact that
the evidence of a firearm was
obtained in that manner did not, in my view, affect the fairness of
the trial. This is so because
the firearm is real evidence that
the police probably would have found if they had entered the premises
lawfully in terms of a
search warrant and without breaching the
appellant’s right to privacy. The existence of the
firearm would have been
revealed independently of the infringement of
the appellant’s right to privacy. Consequently, the fact
that the evidence
of a firearm was unfairly obtained did not
necessarily result in the unfairness in the actual trial. I am
satisfied therefore
that the admission of the evidence of the
discovery of the firearm under the pillow did not render the
appellant’s trial
unfair.”
[103]
In this case both accused testified that they requested the police to
go to their rooms to fetch their belongings where the
firearms were
recovered. The police had not yet established the whereabouts
of the firearms and the cellphones when the accused
requested to be
taken to their rooms where they knew there was incriminating
evidence. Clearly it cannot be that on the mere
allegation by
the accused that there was impropriety in the conduct of the police,
no matter how flimsy the basis of the allegation
is, such evidence
should be excluded.
[104]
It was for these reasons and the legal position as articulated above
that I came to the conclusion that on the facts of this
case the
accused’s statements made to captain Wophula and captain Macala
were made freely and voluntarily as provided for
in section 217 of
the Act. The evidence of the recovery of the firearms which was
given by the state witnesses proves beyond
reasonable doubt that the
firearms and cellphones were in fact recovered from the accused in a
lawful manner with their co-operation.
The evidence to
the contrary is clearly contrived and must be rejected, so should the
evidence of the accused about the unlawfulness
of the confessions.
[105]
Captain Wophula was again called to give evidence of the statement
made to him by the accused no.1 following the ruling that
such
statement was admissible against the accused. He read the said
statement into the record and was not cross-examined
on any aspect of
it.
[106]
The statement by accused no.2 was also read into the record by
lieutenant colonel Macala. She, like captain Wophula,
was not
really cross-examined on any aspect of the statement.
[107]
The post-mortem report of Dr Zonke Mrenqwa–Mazwi in respect of
Nofika Nyolukana was handed up in terms of section 212
of the Act.
She made the following chief post mortem findings.
1. A
compound fracture/stab wound in the posterior aspect of the head.
2.
Gunshot entry wound medial to the left ear and caused brusing
covering the left side of the face with the ear,
fractured skull and
left hemisphere (brain) bleeding.
3.
Gunshot entry wound in the left breast.
She
concluded that the cause of death was cerebral bleeding caused by
head injury caused by gunshot head.
[108]
The post mortem report complied by Dr Zonke Mrenqwa-Mazwi in respect
of Maqhayi Nyolukana was handed in terms of section 212
of the Act.
She made the following chief medical findings:
1.
Multiple stab wound (compound fractures) on both sides of the head
and the skull with extensive brain injuries.
2.
Multiple stab wounds in the anterior chest wall.
She concluded that the
cause of death was extensive brain bleeding caused by head injury
caused by stab head.
[109]
The last medical report handed up by the state in terms of section
212 of the Act was the J88 which was compiled by Dr Majeke
who
examined Athenkosi and it reflects that he sustained the following
injuries:
1.
Laceration
+
6cm (L) parietal regions (not penetrating)
2.
Entry wound (L) dorsum of hand (below 3
rd
finger) (no ex
it wound)
3.
Entry wound (R) dorsum of hand below 2
nd
finger and exit
(R) palm
4.
Entry wound (R) shoulder posteriorly (no exit wound)
[110]
The following admissions were made in terms of section 220 of the
Act:
“
1.That deceased in
count 1 is the person named in the indictment, to wit, Maqhayi
Nyolukana.
2.That the deceased in
Count 1 died on 05 July 2018 as a result of “Extensive brain
bleeding caused by heard injury caused
by stab head”, which he
sustained on 05 July 2018 at Makhabaludaka Locality, Amantshangase
Administrative Area, 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 05 July 2018 until a
post mortem examination was conducted on 10 July 2018.
4. That Dr Zonke
Mrenqwa-Mazwai conducted a post mortem examination on the body of the
deceased in Count 1 on 10 July 2018 and recorded
her findings on
Exhibit “E”.
5. That the facts and
findings of the post mortem examination as recorded by Dr Zonke
Mrenqwa-Mazwai on Exhibit “E”
are correct.
6. That the deceased in
Count 2 is the person named in the indictment, to wit, Nofika
Nyolukana.
7. That the deceased in
count 2 died on 05 July 2018 as a result of “cerebral bleeding
caused by head injury caused by gunshot
head”, which she
sustained on 05 July 2018 at Makhabaludaka Locality, Amantshangase
Administrative Area, in the district
of Bizana.
8. That the body of the
deceased in count 2 sustained no further injuries from the time at
which the wounds as aforesaid were inflicted
on 05 July 2018 until a
post mortem examination was conducted on 10 July 2018.
9. That Dr Zonke
Mrenqwa-Mazwai conducted a post mortem examination on the body of the
deceased in Count 2 on 10 July 2018 and recorded
her findings on
Exhibit “F”.
10. That the facts and
findings of the post mortem examination as recorded by Dr Zonke
Mrenqwa-Mazwai on exhibit “F”
are correct.
11. That on 05 July 2018
at about 22:20 Constable Ntuthukho Brian Mbuthuma stationed at Local
Criminal Record Centre in Port Shepstone
visited the scene at
Nyolukana Homestead, Makhabaludaka Locality, Amantshangase
Administrative Area, in the district of Bizana.
12. That at the scene
Constable Ntuthukho Brian Mbuthuma took photographs of the scene,
including photographs depicting the bodies
of the deceased in counts
1 and 2 respectively.
13. That Constable Brian
Mbuthuma compiled a photo album, Exhibit “G” with the
photographs he took at the scene.
14. That the photographs
on Exhibit “G” are a true depiction of the scene and
bodies of the deceased in Counts 1 and
2.
15. That on 06 July 2018
at about 10:00 Captain Ndumiso Junqwana stationed at Bizana Detective
Unit of the South African Police
Service visited the scene at
Nyolukana Homestead, Makhabaludaka Locality, Amantshangase
Administrative Area, in the district of
Bizana.
16. That inside the
Rondavel, depicted on photos 2 to 24 of Exhibit “G”,
Captain Ndumiso Junqwana picked up one 7,65mm
Calibre fired bullet
(projectile).
17. That the 7,65mm
Calibre fired bullet (projectile) in paragraph 16 above, together
with Exhibits 3 and 4 were dispatched by Constable
Sonkosi on 15
August 2018 to the Ballistics Section of the Forensic Science
Laboratory, Eastern Cape situated at Eben Donges Building,
Handcock
Street, north End, Port Elizabeth for analysis.
18. That on 04 September
2018, Warrant Officer Karen Chamel Africa attached to the Ballistics
Section of the Forensic Science Laboratory,
Eastern Cape situated at
Eben Donges Buildings, Handcock Street, North End, Port Elizabeth
analysed the Exhibits in paragraph 17
above and recorded his findings
on Exhibit “H”.
[111]
The court was informed by counsel for the state that he together with
the legal representatives of both accused consulted
with lieutenant
colonel Arnold Freemantle and was therefore a witness for both the
state and the defence. He testified that
he is the station
commander of Mbizana police station. He testified that he knows
Maqhayi and accused no.1. About 10
months or so before the
Nyolukana incident he became involved trying to mediate peace between
Maqhayi and accused no.1. At
the request of a fellow colleague
warrant officer Mfundo. He held a meeting between Maqhayi and
accused no.1 in his office.
[112]
In that meeting Maqhayi said that accused no.1 wanted to kill him but
could not say why. It transpired that the deceased
speculated
in the buying and selling of livestock in which accused no.1
developed an interest. For a reason that is not very
clear they
ended up quarrelling. At some stage Maqhayi was attacked in his
home and robbed of money. He suspected that
accused no.1 was
involved but there was no evidence of accused no.1’s
involvement.
[113]
The version given by accused no.1 during that meeting was that at
some stage he had a domestic violence case with his wife
which led to
his arrest. He was granted bail of R500.00 or so. The
family of accused no.1 could not pay the amount
of bail.
Maqhayi paid the money and accused no.1 was released. Maqhayi
advised accused no.1 that as he had been imprisoned
he could not go
straight home from prison. He should buy
intelezi
, a
traditional medicine for cleansing himself. Maqhayi organised
the
intelezi
and told accused no.1 to go and cleanse himself
at a certain river.
[114]
Accused no.1 went to the river and at that river he was kidnapped by
three men accusing him of having stolen a greyhound hunting
dog.
He was assaulted and suffocated with a plastic bag. During this
kidnapping those men were talking to another person
over the phone.
Those men told accused no.1 that they had been instructed by Maqhayi
to kill him. However, they said
they did not want to kill him,
they just wanted their dog. He escaped at about midnight and
went into hiding because he feared
that Maqhayi wanted him dead.
During that session accused no.1 cried and said he had given up and
had organised himself a
firearm.
[115]
Accused no.1 said to Maqhayi that he loved him but Maqhayi wanted to
kill him and he did not know what happened. When
he (lieutenant
colonel) Freemantle enquired about the whereabouts of the said
firearm accused no.1 voluntarily surrendered it together
with a
dagger knife. Accused no.1 had said if Maqhayi could not be
shot due to some traditional medicine he might have used
he (accused
no.1) would use the dagger knife. He thought he had succeeded
in restoring peaceful relations between the two
as they left shaking
hands.
[116]
However, sometime later he received a call from accused no.1 saying
that Maqhayi still wanted to kill him. On further
questions
from counsel for accused no.1 lieutenant colonel Freemantle confirmed
that a M[…] who was a complainant in respect
of the missing
dogs was present during the meeting. He confirmed the presence
of M[….] and the fact that M[…]
had said that Maqhayi
wanted them to kill accused no.1 whereas they just wanted their dogs
back.
[117]
Warrant officers Jo-Anri Jacobs and Fundiswa Yvonne Ngcuphe filed
section 212 affidavits and also testified about the evidence
recovered from certain exhibits that were collected by the police as
well as samples received from the police. Their evidence
was
not questioned in any way nor was the intergrity of the chain
evidence put into question. Warrant officer Nombongo Mabentsela
also testified about the samples she received and analysed. Her
qualifications, experience and the manner in which she exercised
her
duties in conducting the DNA analysis as well as the conclusions she
reached are common cause.
[118]
In essence the conclusions made in the DNA analysis report are that
the DNA of accused no.2 was found in the cigarette butt
collected by
the police from the crime scene. Furthermore the tracksuit
pants and the jacket had blood stains of both deceased
which
contained the DNA of both deceased. It is not in dispute that
the said tracksuit pants and jacket belonged to accused
no.2 and were
taken from him by the police.
[119]
The court was advised by counsel for accused no.1 that he had decided
to plead guilty to all the charges save for counts 2
and 4. In
this regard a statement in terms of section 112 of the Act signed by
the accused was handed up as exhibit “M”.
[120]
The said section 112 statement of accused no.1 reads as follows:
“
STATEMENT MADE
IN TERMS OF SECTION 112(2) OF THE CRIMINAL PROCUEDURE ACT 51 OF 1977
I, the undersigned
NKOSIKHONA MPETSHWA
Do hereby state and
confirm that:
1.
I am the accused person
in this matter.
2.
I made this statement
freely, voluntarily and without being unduly influenced.
3.
I plead guilty to the
four following counts:
3.1 Count 1.
Murder (Maqhayi Nyolukana)
3.2 Count 3.
Robbery with aggravating circumstances.
3.3
Possession of firearm
3.4
Possession of ammunition.
4.
In amplification of my
pleas of guilty, I wish to state the following:-
5.
BACKGROUND FACTS
5.1
During the year 2010, the
deceased accused myself and my family of allowing our live stock to
eat mealies from his mealie filed.
He also said I called him a
thief. He said one day the chief of the area will come to
collect dead bodies from my homestead.
In the same year (2010)
deceased came to my homestead at night and he peeped through the
window. We called for help and he
left. The incident was
reported to the chief and the chief summoned both families (mine and
his). He didn’t deny
that he was at my home. He
said he was looking for me. The incident was discussed and he
was reprimanded.
5.2
In 2016 I was arrested
for a domestic violence which [case] was later withdrawn. In
this 2016 case I was granted bail but
I didn’t have money to
pay it. On the 02
nd
August 2016 the deceased
(Maqhayi Nyolukana) paid bail for me and he further instructed me to
go and bath at the river, in the
forest, to rid myself of the bad
luck I got from the prison (to cleanse myself). He gave me
R50.00 to buy
Intelezi (muthi)
to bath with it. While
bathing, three African males emerged and they posed as police
officers. They pointed firearms
at me and said they were there
to arrest me. They handcuffed me and said I stole dogs.
They kept me there until 23h00
hours. They were communicating
with someone over the phone. They were telling me that somebody
from Durban was coming
to cut off some of my body parts. That
person didn’t come. We left the river with them and came
to Bizana Town.
While in town they told me that they were hired
by the deceased to catch and keep me there at the river he would come
and kill
me on his own. The deceased told them that I was
responsible for the attack at his home. They released me and
warned
me not to go to my homestead. I later became aware of
their names to be Mayoyo, Zola Dlezi and Mawande. I went with
Zola with the intention of sleeping over at his place. His
phone was ringing time and again and he would tell me that it
was the
deceased who was phoning. I escaped during the night from
Zola’s homestead and I slept near the river in Nikwe
Locality.
5.3
In the morning I went to
the Police to report the incident. I told the police that I was
not opening a case but if anything
happens to me they must know that
it is the deceased who did it. Police officers took my
cellphone number and transported
me to the taxi rank. I didn’t
go to my home I went to my grandfather and narrated the story to
him. A meeting
of male community members was called at Gegebula
Nyolukana’s homestead to talk about this but the deceased
didn’t attend.
One day a police officer known as Freeze
(Freemantle) contacted me and I told him what happened. He gave
me his contact details
to report any [thing] happening to him.
5.4
I decided to buy myself
an illegal firearm. One day towards the end of August 2016, I
was going to Ntamonde Locality when
I came across Thanduxolo
Nyolukana, Yamkela Mpetshwa and the deceased, Maqhayi Nyolukana.
The deceased was driving his motor
vehicle while Yamkela and
Thanduxolo were riding horses. They chased me wanted to catch
me and they were also swearing at
me. I took out the firearm
and fired one shot in the air they then stopped and went back.
After that they went to my
home to kidnap my mother she was helped by
one Nkosiphendule Nyolukana who came to her rescue. I phoned
Captain Freemantle
and we were summoned to the Police Station.
It was myself, M[…], the deceased Maqhayi Nyolukana and other
police officers.
Each of us was given an opportunity to say his
side of the story. I narrated my side of the story. The
deceased didn’t
deny that he hired people to kill me. He
said I hired people from Durban to kill him. I also told the
police that I
have an illegal firearm and I was prepared to give it
to them. We went with the police to fetch the firearm from my
homestead.
We shook hands with the deceased and I genuinely
believed that we have forgiven each other. Few months down the
line, three
unknown males driving a white Toyota Fortuner came to my
home looking for me. They said they were police officers and
they
came to arrest Nkosikhona. Fortunately for me they didn’t
know the identity of this Nkosikhona (myself). I told
them,
that Nkosikhona was not at home and they left.
5.5
I decided to leave my
home for Durban. I came back in December 2017 for Christmas.
On the 29 December 2017, the same
Toyota Fortuner came looking for me
again but this time around I was not at home. On the same day I
returned back to Durban.
While in Durban I was informed by
Bongiswa Matiwane that the deceased was looking for me and he
promised her R500.00 if she can
tell him when I am around i.e. when I
was at home.
5.6
I never returned home
since then and I missed home so much. Things were not going
well at home and as a first born I couldn’t
fully assist
because I was scared of coming home. I took a decision to kill
the deceased. I bought an illegal firearm
from Verulam. I
had already made up my mind that in order for me to find peace I have
to kill the deceased. On Wednesday
the 04 of July 2018 I left
Durban for Bizana. When I reached Bizana it was already late
and I could not get transport to
my locality I spent the night at the
initiation school and went home in the morning the following day.
During the day I went
to Qhabangeni locality where I met Sebenzile
Sidoyi. I bought liquor from TM Bottle Store and I consumed
it. After
consuming it I fell asleep outside the bottle store.
When I woke up my firearm was missing. While looking for it I
came across Sebenzile Sidoyi who assisted me in finding the boys who
took my firearm and we found it.
5.7
I told him that I came to
kill the deceased. At that stage I had not yet figured how will
I get to the deceased homestead
without being noticed because I am
well known in that homestead. Sebenzile told me that he also
had a problem with the deceased.
His father was murdered and
multilated. He suspected that it is the deceased who killed his
father and cut off his body parts.
5.8
We proceeded to the
deceased homestead and the arrangement was that Sebenzile will get
inside and ask for firewood to lit a cigarette
while I remained
outside the yard. He will come and report to me if the deceased
was home. I was carrying a spear and
a stick having an iron nut
at the other end (ibhawuti) Sebenzile was carrying a firearm.
5.9
Sebenzile went in but he
didn’t come back to report. I heard gunshot sounds and
immediately went straight to the rondavel.
I proceeded to the
deceased and I hit him with the stick and stabbed him several times.
I went out of the rondavel after
he felt down and Sebenzile remained
inside. Sebenzile came out driving the deceased wife and a boy
demanding money and a
firearm. I followed them to the house.
The boy took the firearm from underneath the sofa and gave it to me.
I
put it inside the backpack I was carrying. I took the
deceased firearm because I knew that his family will use it to attack
me.
5.10
Sebenzile told the boy to
lie down and not to look at him and the boy complied. Sebenzile
fired two gunshots at the boy.
We moved from that room to the
sitting room. I told Sebenzile that we must leave. He
wanted to shoot the wife of the
deceased, I stopped him. We
exited the house together. As we were leaving the homestead
while inside the yard Sebenzile
went back to the house I heard
gunshot sound. Sebenzile cameback and he found me outside the
gate. He told me that
he killed the wife (deceased in count
2). We proceeded to Bavini tarven in the locality where
Sebenzile bought beers and
we drank. He later told me that he
also got an amount of R500.00 from the deceased homestead.
5.11
We spent the night at
initiation school and I went home the following day to prepare for my
trip back to Durban. On the way
as I was going to take a taxi
to Bizana town I met Sebenzile at the bus stop. He sold me a
cell phone saying he wanted money
for travel to Port Shepstone where
his brother Mvuyisi was staying. I didn’t know that the
cell phone was from the
deceased homestead. I left for Durban
with the cell phone and the deceased firearm. The deceased
firearm had no ammunition.
At the time I gave my firearm to
Sebenzile it had five live ammunition and I didn’t see it after
that, and I left it with
him when I returned to Durban.
5.12
On Sunday Sebenzile
phoned me saying he was coming to me in Durban. I gave him
direction and contact details of a person who
was at the Market in
town, Durban. Sebenzile arrived in the company of the police
officers and I was arrested. I gave
the cell phone and the
firearm to the police. I co-operated with the police and I told
them everything and I was intending
to plead guilty immediately after
my arrest but I was taken to the prison I was advised by other
prisoners not to plead guilty.
as the trial progressed I
realised that the advice I got from the prisoners was not a
good one. I have since then changed
my mind and decided to
plead guilty as I’m doing now.
6.
I FORMALLY ADMIT THE
FOLLOWING:
Count one
6.1 That on the 05
th
day of July 2018 at Makhabaludaka Locality Amantshangase
Administrative Area, in the district of Bizana I did wrongfully,
unlawfully
and intentionally kill Maqhayi Nyolukana, an adult male
person.
6.2.1 knew that at all
material times my actions were unlawful.
Count three
6.3 that upon the same
date and at the same place mentioned in count one above 1 did
unlawfully and intentionally wield a firearm
and did then with force
take a .32 revolver with serial number C168068, the property of
Maqhayi Nyolukana. Even though I
am not the one who wielded the
firearm but my conduct of taking the deceased firearm after a firearm
was wielded by Sebenzile to
force them to give us the firearm makes
me liable.
6.4 I knew that at all
material times my actions were unlawful.
Count five
6.5 that upon the same
date and at the same place mentioned in count one above I did
unlawful and intentionally possess a firearm
to wit a .32 special
revolver with serial number C168068 and a .38 revolver without
holding a licence to possess the said firearms
Count 6
6.6 that upon the same
date at the same place mentioned in count one I unlawfully and
intentionally possessed ammunition to wit
five live rounds
6.7 I knew that at all
material times my actions were unlawful
7.
In conclusion of the
recording of my plea of guilty I wish to emphasize that I have been
informed by my legal representative, and
I understand that I have the
right:-
7.1 Not to plead guilty
and to be presumed innocent until proven guilty beyond reasonable
doubt by the state
7.2 To remain silent and
not to testify during the proceedings, and
7.3 Not to be compelled
to make any self-incriminating statement.
8.
FURTHERMORE, I
EMPHASIZE
8.1 That I am in sound
and sober senses and that I am pleading guilty freely, voluntarily
and without having been assaulted, forced
or influenced in any manner
by the police, the state’s representative or anyone else to do
plead in these counts;
8.2 That I have not been
rushed into pleading guilty and that I have elected to do so after
due consideration and out of my own
free will;
8.3 That I have been
informed by my legal representative of, and I understand the nature
and extent of the sentence(s) which may
be imposed upon me in the
circumstances of this matter.”
[121]
When the state closed its case accused no.1 testified in his
defence. He confirmed that he has changed his plea of not
guilty in respect of counts 1,3,5 & 6 to that of guilty but
persisted with his plea of not guilty in respect of counts 2 and
4,
the murder of the deceased in count 2 Mrs Nofika Nyolukana and the
attempted murder of Athenkosi.
[122]
He testified that indeed he was present at the Nyolukana homestead on
5 July 2018. He knew about the killing of Nofika
but he did not
see the killing. He killed Maqhayi in the rondavel.
Accused no.2 then pointed a firearm to Nofika and
Athenkosi and
demanded a firearm. He drove them from the rondavel to the
house and he followed them. In that house
Athenkosi lifted up a
couch, took a firearm from under the couch and gave it to him.
He (accused no.1) checked it and saw
that it did not have
ammunition. He then put it in the back pack that he was
carrying.
[123]
Accused no.2 drove them into another room and instructed Athenkosi to
lie down on his stomach and to not look him in the eyes.
After
Athenkosi lay down accused no.2 shot him in his back. He told
accused no.2 not to shoot Athenkosi as he was co-operating.
Accused no.2 then said that he must keep quiet as a dog bites its
owner which he understood to be threatening to shoot him (accused
no.1). He returned to the sitting room followed by Nofika.
Accused no.2 left Athenkosi lying there in that room in
which he had
shot him. At the sitting room accused no.2 pushed Nofika into a
sofa and pointed her with a firearm. He
told her not to do what
he was thinking of doing as Nofika had nothing to do with his
business. He only had a quarrel with
Maqhayi. He then
stopped pointing her with a firearm. He told him that they must
go and they left but when they were
about to reach the gate accused
no.2 said that there was another firearm that Nofika was aware of and
he then went back inside.
[124]
After about 8-10 minutes after accused no.2 had returned to the house
he heard gunshots. Accused no.2 came back from
the house and
told him that he had shot Nofika. He asked him why he shot her
and he did not answer. They left going
to the initiation school
but they went past a liquor outlet where he bought liquor.
Accused no.2 said he should not pay with
his money as there was a sum
of R500.00 that he got at the Nyolukana homestead. They drank
the liquor and left for the initiation
school thereafter.
[125]
They slept at the initiation and in the morning he went back to his
homestead to prepare to return to Durban. He waited
for a taxi
at Qhabangeni bus stop near TM Bottle Store. Accused no.2
arrived and told him that he thought of going to Port
Shepstone but
had no money. He then sold him a cellphone for R200.00.
They exchanged cellphone numbers. On Sunday
he received a call
from accused no.2 saying that he thought of coming to him in Durban
instead of Port Shepstone. He gave
him directions to his place
at Mawoti. He again received a call from accused no.2 in which
he said he was at the Durban market.
Eventually accused no.2
arrived in a taxi with the police who arrested him. The police
found the cellphone in him and found
the firearm at his place of
residence in his room.
[126]
He had planned to kill Maqhayi only. After he met accused no.2
who assisted him in getting back his firearm from Luthando
they went
to accused No.2’s homestead. He told accused no.2 that he
had returned because he wanted to kill Maqhayi
but did not know how
he would gain entry at his homestead as he was known there.
Accused no.2 told him that he suspected
Maqhayi of killing his own
father whose body parts were harvested.
[127]
Accused no.2 offered to go with him and said it would be possible to
go into that homestead. They proceeded to the homestead
of the
deceased. When they were near the gate he gave accused no.1 a
cigarette and told him to go and ask for a lighter to
light the
cigarette. If Maqhayi was there he should return and tell him.
The dogs barked and a young man came out and
stopped the dogs from
barking. Accused no.2 and the young man went towards the
rondavel. He heard him pretending to
be asking for a firewood
to light the cigarette. The young man came out of the rondavel
to where accused no.2 was standing
in front of the door outside the
rondavel and gave him a burning firewood and he lit the cigarette and
gave the firewood back to
the young man.
[128]
While he was still waiting for accused no. 2 to come and tell him
whether or not Maqhayi was there, he heard a gunshot.
He went
inside and found accused no.2 inside the rondavel. He (accused
no.1) went straight for Maqhayi and hit him with an
iron rod and also
stabbed him with a spear and he fell down. He then told accused
no.2 that they should leave. When
they went to the Nyolukana
homestead the plan was to kill Maqhayi only.
[129]
Under cross-examination by counsel for accused no.2 he confirmed that
he did not see accused no.2 shooting Nofika. Accused
no.2
returned into that homestead while he waited near the gate after
which he heard a gunshot and accused no.2 returned telling
him that
he had killed her. He added that accused no.2 was lying to say
that he was not there. Accused no.2 was lying
to say that
accused no.2 never told him about killing a person before they parted
ways near TM Bottle Store. Accused no.2
was also lying to say
that he never told him that Maqhayi killed his father.
[130]
Under cross-examination by counsel for the state Mr Nolutshungu,
accused no.1 further testified that he already knew
Athenkosi
before the incident and Athenkosi knew him. Athenkosi was
correct to identify him and accused no.2 as the persons
who killed
his father Maqhayi in the rondavel. While he was attacking
Maqhayi accused no.2 was pointing Athenkosi and Nofika
with a firearm
with which he was armed. He himself was armed with dangerous
weapons only which was a spear and a stick with
a bolt in its head.
He was not carrying a bushknife. Accused no.2 drove Athenkosi
and Nofika to the house demanding
a firearm and money.
[131]
He followed accused no.2, who was driving Athenkosi and Nofika
because if they discovered that it was him who killed Maqhayi
they
could use his firearm to attack him. He thought Athenkosi
and Nofika did not see him because when he got there
they were
shocked and were also concentrating on accused no.2 who was pointing
them with a firearm. Furthermore he was wearing
a hooded jacket
with its strings pulled tight. They went out after he stopped
accused no.2 from killing Nofika. Accused
no. 2 returned into
the homestead and he heard a gunshot while he was standing near the
gate. Accused no.2 returned telling
him that he had killed
Nofika and they left. He also confirmed that throughout the
attack he was armed with a spear and an
iron rod while accused no.2
was armed with a firearm.
[132]
He testified that he could not dispute the fact that according to the
post mortem report Nofika had a gunshot wound and a
stab wound as he
did not see her being killed. Athenkosi was mistaken to say
that he was the one who shot him. Athenkosi
was also lying to
say that they were facing each other as he was lying down when he was
shot. Athenkosi was mistaken when
he testified that he had said
to Nofika that they had already killed his son as he never uttered a
word in that homestead.
[133]
He confirmed that he had intended to plead guilty but other prisoners
advised him not to do so and that what is recorded in
the bail
proceedings was correct. He also confirmed the evidence of the
police that a firearm was recovered at his place
in Durban. He
testified that his plan was to kill Maqhayi only. The killing
of Nofika and the shooting of Athenkosi
were not part of his plan.
The case for accused no.1 was closed without further witnesses being
called.
[134]
Accused no.2 testified in his defence. He testified that on 5
July 2018 he met accused no.1 at TM Bottle Store at about
16:00.
Accused no.1 told him that he had just arrived but some of his items
went missing when he fell asleep next to the
road after his arrival.
He had established that he was robbed of those items by Luthando and
Bavu. Eventually it transpired
that accused no.1 had been
robbed of his firearm which they recovered. He took the firearm
from Luthando and gave it to accused
no.1. They then went to TM
Bottle Store were they initially met. They stood there having a
conversation. He asked
accused no.1 for a cigarette and accused
no.1 gave it to him. He smoked it and gave it back to accused
no.1 and went home
alone to sleep. Accused no.1 was lying to
say that they went to his (accused no.2’s) home together.
[135]
At some point on another day he went to the correctional services
offices in Bizana to change his address as he wanted to
go to Port
Shepstone. Two men arrived there and asked him if he was
Sebenzile Sidoyi. He confirmed his name and they
asked for him
from the correctional services officials. It was constable
Sonkosi and another man both of whom turned out
to be policemen.
When they got out of that office they came across a third man who was
also a police officer.
He was handcuffed and taken to a vehicle
where they asked him about the whereabouts of accused no.1.
Eventually he was taken
to the police station where he was questioned
about what happened at the Nyolukana homestead.
[136]
He told the police that he did not know anything about the attack and
killing at and he never went to the Nyolukana homestead.
He was
asked about a firearm that they used to kill there. He told the
police that he did not kill at the Nyolukana homestead
and did not
know anything about a firearm that was used to kill at the Nyolukana
homestead. He told the police that he only
saw a firearm that
accused no.1 was carrying. Police told him he was not telling
the truth. Constable Sonkosi took
out a plastic bag and used it
to suffocate him. He told the police that he had accused
no.1’s cellphone number
but it was in another sim card which
was in his clothes at Highlands.
[137]
He together with the three policemen went to Highlands at his
paternal uncle’s place. He, constable Sonkosi and
warrant
officer Maqethuka went into the house while captain Junqwana remained
outside. The police asked for his bag and he
showed them his
bag. Constable Sonkosi took it and opened it and also searched
it while warrant officer Maqethuka was searching
another room.
Constable Sonkosi showed him a firearm saying he found it in his
bag. He did not see where the firearm
came from. The
police also showed him a mobicel cellphone.
[138]
They left Highlands and went to his home at Qhabangeni. His
room at his home is in a two roomed flat structure.
The other
room is used by his older brother. They searched his room.
The police took his jacket, track pants and an
ashtray. In his
brother’s room they found a sharpened iron rod. He told
the police that the iron rod belonged
to his brother. They
returned to the police station. Constable Sonkosi told him to
stop lying and that he must tell
them what happened. He told
them that he was not there at the crime scene.
[139]
Eventually they went to Durban where accused no.1 was arrested.
He denied going to the deceased’s home on 5 July
2018. He
did ask accused no.1 for a cigarette, he smoked it, and gave it back
to him and they parted ways. He never
gave a cellphone to
accused no.1 and never sold one to him. Under cross-examination
by counsel for accused no.1 he testified
that police showed him a
firearm and a mobicel cellphone at Highlands. It was the same
mobicel cellphone that was exhibited
in court. He would not
dispute that Athenkosi identified it as having been taken at his
home.
[140]
Accused no.1 was lying to say that the firearm which the police
showed him at Highlands which was exhibited in court was the
firearm
that they were carrying at the Nyolukana homestead during the
attack. Accused no.1 was also lying to say that he
(accused
no.2) was present when the deceased were killed. He also denied
the evidence of accused no.1 that he left his firearm
with him when
he went to Durban. Police showed him a firearm in his room at
Highlands but he did not see it when they took
it out. In
essence he disputed the evidence of accused no.1 which was that he
was involved in the Nyolukana attack.
[141]
He denied that drove Athenkosi and Nofika from the rondavel to the
house. He denied being stopped by accused no.1 from
shooting
Nofika or saying that a dog does bite its owner. He disputed
all the evidence of his involvement in the attack.
He would not
dispute accused no.1’s evidence that the firearm recovered from
him in Durban belonged to Maqhayi. He
denied that the following
day he met accused no.1 and told him that he wanted to go to Port
Shepstone but had no money and denied
selling a cellphone to him at
all. Accused no.2 confirmed that indeed he has a brother who
stays in Port Shepstone.
He confirmed that his father was
killed but he had no knowledge that his body parts were harvested.
[142]
Under cross-examination by the state he confirmed that the police
took his jacket and track pants from his homestead.
He denied
being involved in the Nyolukana murders. He said he would not
deny that his jacket and track pants had the blood
stains of Maqhayi
and Nofika but he was never shown the blood stains in his clothes.
He did not know how the blood of Maqhayi
and Nofika got to be in his
clothes as he never went to the Nyolukana homestead.
[143]
He confirmed that he is from Nombengeza locality. It was put to
him that Mawanda told the police in the morning after
the attack at
his home that one of the attackers was from Nombengeza locality and
that he had attended the
ilima
at his homestead. He
testified that he played soccer so the boys would know that he is
from Nombengeza. He denied being
involved in the killings and
said he was being falsely implicated. He denied that the police
got the cellphone that went
missing from the Nyolukana homestead from
him four days after the incident and said that it was the police who
said they got it
in his bag. Accused no.2 denied being involved
in the Nyolukana attack and the crimes that were committed there.
He
closed his case without calling further witnesses.
[144]
The evidence has been very long and I have thought it necessary to
traverse most if not all of it even to the point of being
repetitive
at times. This was necessitated in the main by five reasons.
Firstly, both accused initially pleaded not
guilty and put their
versions to the state witnesses. Secondly, after the state had
led basically all of its evidence accused
no.1 changed his plea of
not guilty on all counts to one of guilty in respect of counts 1, 3,
5 and 6, maintaining his plea of
not guilty in respect of counts 2
and 4. Thirdly, the state conditionally accepted the section
112 statement of accused no.1
to the extent that it was consistent
with the state’s evidence. Finally, accused no.2
maintained his innocence and
in particular the fact that he was never
involved in any of the offences for which he was charged. Most
importantly, the
state had invoked the doctrine of common purpose and
this necessitated that all of the evidence of the state and of the
defence
should be traversed to see if the doctrine of common purpose
was applicable against both accused in respect of all the offences.
[145]
I must at the outset, point out that the versions of both accused
that were put to the state witnesses before accused no.1
changed his
plea, amounted to nothing more than bare denials and lies for the
most part. This should not be understood to
suggest that the
evidence of the state witnesses was perfect. In fact it was not
and it should never have been expected to
be. However, even a
cursory look at the evidence of the state reflected in the main a lot
of consistency, more than sufficient
to give it irrefutable
credibility even if it is considered alone without any corroboration
from the section 112 statement of accused
n.o.1.
[146]
If one were to give an example of some of the imperfections in the
state’s case the clearest example is the identification
of the
perpetrators of these offences by Athenkosi. In court he had
testified that accused no.1 was one of the persons that
attacked his
family. He further testified that he remembered whilst in
hospital that one of the assailants was accused no.1.
However
he never told the police that he had since remembered one of the
perpetrators.
[147]
It was put to him during cross-examination by counsel for accused
no.1, Mr Nohiya, that he (Athenkosi) should know accused
no.1 very
well and they know each other. His explanation for the fact
that he did not tell the police that he had since remembered
one of
the assailants was that he was busy with the funeral arrangements.
He also testified to having been confused by the
fact that to his
knowledge accused no.1 was in Durban. He did not know about his
return from Durban. I readily accept
that the criticism of
Athenkosi might be unfair to Athenkosi who had just witnessed the
brutal attack on his parents and he himself
survived by a whisker.
[148]
His reasoning was at worse, naïve, but it certainly did not mean
that he lied about not telling the police his recollection
that
accused no.1 was there. Mr Nolutshungu, counsel for the state,
made a concession that had the evidence of Athenkosi
been alone, it
would not have been sufficient for the purposes of identifying the
perpetrators. In fact he submitted, correctly
in my view, that
it would have been dangerous for the court to rely on Athenkosi’s
evidence on the important issue of the
identity of the perpetrators.
[149]
Having made this example about the imperfections at times in the
evidence of the state as may be found to exist, as already
stated
above no witness whether it be for the state or the defence including
the accused themselves should be expected to give
perfect evidence.
It remains the duty of the court to make a proper assessment and
conclude, whether despite the imperfections
as may exist a witness
did tell the truth which is what in my view, the state witnesses did
in this case. Their evidence
was in all material respects,
credible and consistent.
[150]
The evidence of both accused was characterized by bare denials,
improbabilities and often times a concerted effort to hide
the truth
by lying. This was both before and after accused no.1 turned
against his own earlier versions put to state witnesses
before he
decided to plead guilty to counts 1, 3, 5 and 6. His evidence
in this regard speaks for itself. He also continued
to lie even
after the plea of guilty as is clear in his evidence in respect of
counts 2 and 4. I am convinced that even after
he changed his
plea he continued to sprinkle his truth with generous amounts of
falsehoods as I will point out below.
[151]
As indicated earlier the state placed on record that it accepted the
section 112 statement of accused no.1 only to the extent
that it was
consistent with the evidence of the state. This, therefore,
means that to the extent that accused no.1’s
section 112
statement is inconsistent with the evidence of the state I will rely
on the evidence of the state to establish the
guilt or otherwise of
accused no.1 in respect of counts 2 and 4 considered together with
all the evidence led by the accused themselves
during the trial.
[152]
Just to digress a little bit, I do not think that courts should
generally and simplistically rely on an accused’s plea
of
guilty and/or the section 112 statement of an accused. This is
more so where an accused pleads guilty to some of the offences
and
not guilty to others and the evidence of the state already presented
points to the accused being guilty even to those offences
to which
the accused is pleading not guilty. Even in respect of the
offences in which he pleads guilty, the court must still
satisfy
itself that the plea of guilty does not hide some of the truth in
respect of all the offences where the state has led evidence.
[153]
It might very well be that the plea of guilty is designed to shield
the true criminal or to implicate an innocent person for
reasons that
may never be known. It would not be in the interests of justice
for a court to ignore the evidence placed before
it and accept a plea
of guilty by an accused blindly and in so doing acquit an accused
person on those charges on which he pleaded
not guilty. It
remains at all times the duty of the court to consider all the
evidence before it makes a pronouncement.
[154]
This is, in my view a logical corollary of our criminal justice
system founded on our constitutional value system. Section
165
of the Constitution
[6]
provides:
“
Judicial authority
165 (1) The
judicial authority of the Republic is vested in the courts.
(2) The courts are
independent and subject only to the Constitution and the law, which
they must apply impartially and without fear,
favour or prejudice.”
[155]
When courts make judicial pronouncements on the guilt or otherwise of
an accused person, they are not only talking to the
accused and the
victims of crime and the witnesses, they are also talking to all the
members of the public who have a right to
judicial pronouncements
that make sense in light of the evidence presented before courts.
If this were to be unheeded the
confidence of the public in the
criminal justice system could be compromised.
[156]
There were two eye witnesses to the crimes committed againt the
Nyolukana family. The first one was Athenkosi.
It is
common cause that Athenkosi did not see his mother, Nofika being shot
and stabbed. This, he made clear, even in his
evidence in
chief. He did not pretend to have witnessed it or try to
embellish his evidence by supplementing it with things
that happened
when he had already run away just to ensure that the accused paid for
killing his parents and for attempting to kill
him.
[157]
The second eye witness was M[…], a 14 year old boy at the time
of the incident and who was 15 years old when he testified.
He,
like his brother A[…], did not witness the murder of his
mother as he had also run away from the rondavel after A[…]
and Nofika had been driven to the house by the assailants.
[158]
A[…] testified about the shots that were fired at him when
they were in the house. His evidence was that he was
shot at by
accused no.1 pointing towards the chest but he turned to his right
and the bullet hit him on his right shoulder towards
the back.
He fell down and put his hands on the back of his head whilst lying
down. Accused no.1 fired another shot.
This is the
evidence of A[…] in this regard:
“
MR
NOLUTSHUNGU
: On what part of the body was he aiming or
shooting?
MR
N[…]
: He was pointing on my chest, M’Lord, I turned towards
my right and it hit me (as the witness is indicating) on the right
shoulder, M’Lord, and I feel on the floor.
COURT
: Is
that front or back?
INTERPRETER
:
The witness is pointing towards the back, on the upper arm.
COURT
:
Okay.
MR NOLUTSHUNGU
:
and you fell. Please proceed. After you fell what happened?
MR
N[…]
: I fell, M’Lord, and then I put my hands on the back
of my head as I was lying down. He continued to fire another shot.
MR NOLUTSHUNGU
:
how did you lie down, were you lying on your stomach, on your sides
or on your back?
MR
N[…]
: I was lying on my stomach.
MR NOLUTSHUNGU
:
Yes I can see that you held the back of your head with both your
inside of your hands. All right, okay. And then you
say
he repeated again. What did he repeat?
MR
N[…]
: He fired again, M’Lord, on the head and the bullet
hit my hands or entered my hands.
MR NOLUTSHUNGU
:
Yes and you are pointing somewhere on your head also.
MR
N[…]
: And the other one scratched and passed on my head.
INTERPRETER
:
The witness is indicating on the left side of the head.
MR NOLUTSHUNGU
:
yes. How many times did he fire shots towards you – at
you?
MR
N[…]
: I think three.
COURT
: You
speak very good English I must say.
MR NOLUTSHUNGU
:
Do you know what stopped him from firing further shots?
MR
N[…]
: I don’t know what stopped him from further shooting
at me, M’Lord, but I heard him saying to my mother “here
is your son we have killed him.”
MR NOLUTSHUNGU
:
You, yourself, as at that time as he said that to your mother were
you moving or what was the situation, were you still awake,
what was
the situation?
MR
N[…]
: I think I was still in shock, M’Lord, or a bit
unconscious but I heard them or him as he was saying that and they
took my
mother out of that room.
MR NOLUTSHUNGU
:
Okay. They took your mother out of that room, yes, what
happened, what did you then do yourself?
MR
N[…]
: I tried to stand up, M’Lord, and opened another door
of the room where we had been put in and jumped outside.
MR NOLUTSHUNGU
:
And you ran away?
MR
N[…]
: And I ran away, M’Lord.
MR NOLUTSHUNGU
:
Yes. What happened as you were running away?
MR
N[…]
: After a short while after I’ve got out of the room,
M’Lord, I heard the gunshot again.
MR NOLUTSHUNGU
:
Yes. From where was the gunshot, could you determine where it
came from?
MR
N[…]
: I could hear that, M’Lord, the sound of the gunshot
was in the room where they had entered with my mother.”
[159]
This evidence is consistent with the J88 medico legal examination
report compiled by Dr Majeke at St Patrick’s Hospital
on 05
July 2018 at 23h10. All of A[…]’s injuries
were, in my view, caused by the two bullets that he said
were fired
at him. This brings me to the injuries sustained by Nofika.
As indicated before, no one witnessed it when
she was shot and
stabbed. Her post mortem report compiled by Dr Zonke
Mrenqwa-Mazwi reflects the following injuries:
“
Chief post
mortem findings
:
1. A
compound fracture, stab wound in the posterior aspect of the head.
2.
Gunshort entry wound medial to the left ear and caused?? brusing
covering the left side of the face with the
ear, fractured skull and
left hemisphere (brain) bleeding.
3.
Gunshot entry wound in the left breast.”
She concluded that the
cause of death was cerebral bleeding cause by head injury caused by
gunshot head.
[161]
This independent evidence shows at least two very important findings
by the doctor. The first one is that Nofika was
shot twice.
She had two bullet wounds. She also had one fracture/stab wound
in the posterior aspect of the head.
[162]
The evidence by A[…] and M[…] was that the only person
who had weapons that could cause a compound fracture/stab
wound was
accused no.1. It was also the evidence of accused no.1 that
throughout the attack at the Nyolukana homestead it
was only him who
had a stick with an iron head as he described it in his section 112
statement and a spear. As I understood
his evidence, he never
suggested, even indirectly, that he ever gave those weapons to
accused no.2. He kept his dangerous
weapons with him throughout
until he returned them to their various owners as he had borrowed all
of them.
[163]
Even his evidence of having at some stage been left near the gate by
accused no.2 who returned inside after which he heard
gunshots, he
did not say that accused no.2 took with him his dangerous weapons.
This leads me to the conclusion that it is
highly improbably
that after they left together exiting that homestead accused no.2
returned. There are two reasons for this.
Accused no.2
would have had to shoot the deceased in count 2 twice in the manner
described in the post mortem report.
In addition to that he
would have had to look for and find weapons that could cause the type
of injury that was a compound fracture/stab
wound in the posterior
aspect of the head. There is yet another reason for the
conclusion that Nofika must have been attacked
by the same person and
with the same weapons accused no.1 was carrying in respect of the
stab wound. Dr Mrenqwa-Mazwi’s
post mortem report in
respect of the injuries Maqhayi sustained is very similar to the
first injury mentioned in her post mortem
report in respect of the
Nofika.
[164]
On the totality of all the evidence in this case the deceased in
count 2, was in all probability, killed by both accused by
being
stabbed by accused no.1 and shot by accused no.2. I am unable
to agree with Mr Nohiya’s submission that to conclude
that it
was accused no.1 who caused the stab injuries on Nofika is
speculation and that accused no.1’s version must be accepted.
It would be wrong to rely on the discreditable evidence of any of the
accused unless such evidence is otherwise supported by other
circumstantial evidence. Accused no.1 lied so many times that
relying on his evidence alone would be dangerous in the extreme.
[165]
This brings me to the question of the person who shot A[…].
A[…] said that when accused no.1 shot him
they were about 1,5
metres apart which was very close. However, that room in which
he was shot was dark. In my view,
he most probably relied on
the utterances of accused no.1 whom he said he heard saying to his
mother “we have killed your
son” for his conclusion that
it was accused no.1 who shot him. I do not think that in that
dark room he could have
clearly seen who shot him between the two.
[166]
Furthermore, accused no.1 testified that the firearm of Maqhayi which
he took to Durban with him did not have ammunition when
he got it.
If this is true it is improbable that accused no.1 took the firearm
that was with accused no.2 to shoot A[…].
On who shot
him A[…] must be mistaken. He must have been shot by
accused no.2. The probabilities of him being
shot by accused
no.1 are non-existent in my view.
[167]
This brings me to accused no.2. His evidence was just a bare
denial and his version was so improbable as to be false.
I will
not analyse it in any greater details. Suffice it to mention the
following facts which on the evidence are not contradicted
save for
his bare denials:
1. M[…] gave a
description of the assailant who was carrying a firearm to whom he
gave a burning firewood to light a cigarette
as being from Nombengeza
2. A cigarette butt with
accused no.2’s DNA was found by the police in front of the
rondavel.
3. His clothes had the
blood of both deceased according to the DNA evidence.
4. The firearm which he
got from accused no.1 was found at his parternal uncle’s place
in his bag at Highlands according to
the evidence of the police.
5. Accused no.1 testified
that he left his firearm with accused no.2 as he never took it back
after the incident when he returned
to Durban.
6. Accused no.1 places
accused no.2 at the scene of crime throughout the attack at the
Nyolukana homestead on 5 July 2018.
[168]
The state needs to do no more than give credible evidence. Some
of the short comings in the evidence of the state has
been
supplemented more than sufficiently by the evidence of accused no.1
and by other independent evidence such as the post-mortem
reports in
respect of Maqhayi and Nofika and the J88 in respect of A[…]
and a lot of other credible circumstantial evidence.
[169]
The state has invoked the doctrine of common purpose whose principles
are well known. It was the evidence of accused
no. 1 that they
had agreed about the murder of Maqhayi. As for the other crimes
both accused actively participated in the
crimes that were committed
especially because they were together at both crime scenes being the
rondavel and the house. This
is a classic case of what the
Constitutional Court was in my view, talking about when it expressed
itself as follows in
Thebus
v S
[7]
:
“
[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 and 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.”
[170]
To the extent that the evidence of A[…] was that of a single
witness, the well-known cautionary rules are applicable
to the extent
that his evidence was not corroborated by that of accused no.1 or
other circumstantial evidence. Even with
the application of
cautionary rules his evidence does prove the guilt of the accused.
Therefore in all respects and for all
the offences, the trite legal
position that the state must prove its case beyond reasonable doubt
which needs no elaboration or
authority is satisfied. Therefore
the state has proved its case against both accused no.1 and 2 in
respect of all the counts.
[171]
In the result both accused no.1 and 2 are found guilty as charged.
________________________________
M.S.
JOLWANA
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the State: S. NOLUTSHUNGU
Instructed
by: NPA
MTHATHA
Counsel
for accused NO.1: A. NOHIYA
Instructed
by: LEGAL AID SOUTH AFRICA
MTHATHA
Counsel
for Accused No.2: J.L. NTIKINCA
Instructed
by: LEGAL AID SOUTH AFRICA
MTHATHA
Heard
on: 06 December 2019
Delivered
on: 12 & 13 December 2019
[1]
Section 144(3) (a) reads: “Where an attorney-general under
section 75, 121 (3) (b) or 122 (2) (i) arraigns an accused for
a
summary trial in a superior court, the indictment shall be shall be
accompanied by a summary of the substantial facts of the
case that,
in the opinion of the attorney-general, are necessary to inform the
accused of the allegations against him and that
will not be
prejudicial to the administration of justice or the security of the
State, as well as a list of the names and addresses
of the witnesses
the attorney-general intends calling at the summary trial on behalf
of the State: Provided that –
(i)
this provision shall not be so construed that the State shall be
bound by the contents
of the summary;
(ii)
the attorney-general may withhold the name and address of a witness
if he is of the opinion
that such witness may be tampered with or be
intimidated or that it would be in the interest of the security of
the State that
the name and address of such witness be withheld;
(iii)
the omission of the name or address of a witness from such list
shall in no way affect the validity
of the trial.”
[2]
Section 150 (1) reads: ”The prosecutions may at the trial
before any evidence is adduced, address the court for the purposes
of explaining the charge and indicating, without comment, to the
court what evidence he intends adducing in support of the charges.”
[3]
S v Tandwa and Others
2008 (1) SACR 613
(SCA) at para 116.
[4]
S v
Ngcobo
1998 (10) BCLR 1248
(N) at 1254 E-G
[5]
Gumede
v
S
2017
(1) SACR 253
(SCA) para 32
[6]
Constitutional of the Republic of South Africa, 1996.
[7]
Thebus
v S
2003 (6) SA 506
(CC)