S v Mopedinyane and Others (SS147/2017) [2018] ZAGPJHC 614 (3 September 2018)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 614
|

|

S v Mopedinyane and Others (SS147/2017) [2018] ZAGPJHC 614 (3 September 2018)

REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO:  SS147/2017
In the matter between:
THE STATE
and
MOPEDINYANE,
FRANCIS
MOKOAELA
Accused
1
SETENE,
LEI
Accused 2
SETLABA,
LEFA
EMMANUEL
Accused
3
MOROBI,
THABISO
Accused
4
SUMMARY
Criminal law and procedure – numerous and various counts,
including murder – direct evidence and circumstantial evidence

– approach to –
alibi
defences raised by all
accused – evidence of Gunshot Residue (GSR) – collection,
storage, analysis and probative evidential
assessment thereof as
circumstantial evidence.
THE
REASONS FOR RULING – TRIAL-WITHIN-A-TRIAL
[12] In the course of the trial, the evidence of a pointing out made
by accused 1 to Captain Nicodemus Sebogodi on 2 June 2017,
was
challenged. This necessitated trial-within-a-trial.  At the
conclusion of such trial, I ruled that the evidence was admissible.

At the same time, I undertook to furnish the reasons for the ruling
as part of the main judgment. What follows hereunder are such

reasons.  Included in the judgment, are the reasons for the
ruling made on the application for the discharge of the accused
at
the conclusion of the state case, in respect of certain of the counts
only.
[13] From the evidence, it appeared that these were competing groups
of self-employed persons doing recycling of items or articles
dumped
as waste at the fourth crime scene.  The groups include what is
called the Mai-Mai Group (mostly foreign and Lesotho
nationals), and
the Booysens Group
( mostly local nationals).  The self-employed recyclers were
each required to pay a fee of about R400, 00 per week for the

privilege of conducting business there, and being guarded.  In
this regard, a list of defaulters was kept. Defaulters were
not
allowed to conduct their businesses.  Trading hours varied.
The contestation was fierce.
[14] Indeed, the first few state witnesses testified about the
workings and arrangements described above.  These included,
Mr
Sakhe Mcimeli (“
Mcimeli
”); Mr Bulelani Vena
(“
Vena
”); and Mr Ntsikelelo Mdyongolo
(“
Mdyongolo
”) and in regard to counts 1, 2 and 3.
They were doing recycling business together with other recyclers,
including the
deceased in Count 1 who was unarmed.  It was
during the day when he observed the suspects. The incident occurred
towards dusk.
Mcimeli approached the deceased and suggested
that they should stop working as he was feeling unwell.  The
deceased asked
to delay departure slightly as he wished to collect
all his belongings, and complete his tasks. Whilst busy working,
Mcimeli heard
gunshots being fired near the deceased, about twenty
(20) metres away.  It was still light.  The deceased fell
to the
ground.  Mcimeli saw about six (6) assailants around the
deceased, wearing balaclavas except two (2) assailants.  He knew

them by sight prior to the involvement, and from the same scene. The
assailants had firearms, including shotguns, and pistols,
black in
colour. The assailants were part of the recyclers guarding the
witnesses.  Mcimeli, on observing the shooting, ran
away.
Prior to the shooting, he had observed the faces of the assailants,
who would on occasion walk past him, in front of
him, and called
themselves “
Bo-Ntate
”, meaning males.  As a
consequence, he could observe accused 1 and 4 as part of the
assailants.  It is that Mcimeli,
and at the Identification
Parade held on 10 June 2017, pointed out accused 1 and 4, as part of
the assailants, as contained in
Exhibit “S”.
[15] As in the case of witnesses implicating the accused, Mcimeli was
cross-examined incisively on behalf of accused 1 and 4. In
essence,
he stuck to his co-version that, he knew the two accused he pointed
out; they were part of the assailants who carried
firearms on the day
in question; the two accused stayed at Booysens, as reflected on the
indictment; which fact was denied by the
accused; on the day in
question, the witnesses were guarded by the Mai-Mai Group; and he had
seen their faces well, during daylight,
and before the shooting.
Mcimeli denied the versions of accused 1 that:  on the day of
the incident, accused 1 was at
home and slept with his wife at
Mpumalanga Province; and that the accused returned to Johannesburg
only on 26 January 2017 to work
at the crime scene; in the process, a
rather confusing version was put to Mcimeli.  This was that
accused 1 returned to Mpumalanga
Province on 30 May 2017.
Mcimeli also denied the versions of accused 1 and 4, that they were
not part of the guards who demanded
from the witnesses the R400, 00
per week fees.  He assumed that accused 1 and 4 originated from
Lesotho since they spoke the
Sesotho language.  Mcimeli further
denied the version of accused 4 that on the day in question he was at
home at Doornfontein
with his wife, Mercy, and added that he saw the
accused on the day in question during the day at about 15h00, before
the shooting.
He denied that when he pointed out both accused 1
and 4 at the Identification Parade subsequently, he was just guessing
and therefore
mistaken.  He denied that he saw accused 1 and 4
at the police station after their arrest, and prior to the
Identification
Parade.
[16] The evidence of state witness, Vena, regarding the same
incident, relating to counts 1, 2 and 3, required some cautionary

approach for some palpable reasons.  He testified.  It was
not in dispute that he was with Mcimeli, the deceased in count
1, as
well as with state witness, Mdyongolo, during the incident.  He
too was a self-employed recycler at the crime scene.
They were
forced to pay the R400, 00 per week fee for doing their business,
more so that they came from outside the area.
In good times,
they made a profit of about R1 000, 00 per week from recycling
business.  Accused 1, 2 and 4 were part
of the people guarding
them. The defaulters on the list were instructed to stand aside and
not depart. These included the deceased,
Mcimeli and Mdyongolo.
Accused 1, 2 and 4 carried firearms.  He knew them prior to the
incident as co-recyclers. He saw them
earlier in the day when it was
daylight.  However, whilst working, and when it became dusk, he
heard gunshots emanating from
the deceased in Count 1, some twenty
(20) metres away.  He observed some six (6) male assailants
around the deceased, including
accused 1, 2 and 4.  He saw the
deceased fall to the ground. On hearing the gunshots, he fled the
scene.  At some stage
before the shooting, and when the list of
defaulters was mentioned, accused 1, 2 and 4 were some five (5) or
four (4) metres away
from the witness. He observed the sides of their
bodies, including the front parts when his view was not obstructed.
In his
flight from the scene, he observed accused 1, 2 and 4 still
next to the deceased.  He did not see any specific suspect
firing
the actual shots. In court, Vena claimed that he subsequently
identified accused 1, 2 and 4 at the Identification Parade.

However, this assertion was not borne out by the Identification
Parade Form, Exhibit “S”, as well as the evidence of

Warrant Officer Khiba, who conducted the parade. Exhibit “S”
however confirmed that Vena in fact pointed out accused
1 and 4 only
at the parade.  For this, and for evidence that he did not
observe any assailant wearing a balaclava, as testified
by Mcimeli,
Vena was heavily criticised in cross-examination, in particular by
counsel for accused 2, and despite Vena’s
protestations to the
contrary.  Indeed, this is the reason why Vena’s evidence
required some cautionary and closer scrutiny.
However, I must
hasten to mention that I observed the witness closely during his
entire evidence.  Although he commenced by
testifying in a soft
voice, he became louder and more confident in cross-examination. He
belonged to the Booysens Group, which
claimed exclusive working
environment.  The same applied to the Mai-Mai Group, which was
not working on the day in question.
Vena denied the version of
accused 1 that he was away to Enkomeni, Mpumalanga on the day in
question and only returned to working
at the crime scene on 26 May
2017; and the accused’s person that he never carried a
firearm.  He used to see accused
1 carry a firearm at the
scene.  Similarly, Vena denied the version of accused 4 to the
effect that accused 4 was at his residence
at Davis Street,
Doornfontein, during the crimes on 20 May 2017.  Vena also
denied the version of accused 2, that accused
2 never worked at the
crime scene concerned, either as a recycler or guard.
[17] On his turn, state witness, Mdyongolo, gave evidence materially
corroborating the evidence of Mcimeli and Vena. He worked
with them
as a recycler at the crime scene.  He was part of the Booysens
Group.  He was with the deceased in Count 1.
They arrived
during midday. They reported to the Lesotho nationals who were
guarding them.  The deceased was behind him, some
twenty (20)
metres away.  Gunshots were fired late afternoon.  The
assailants carried firearms.  He did not know
the names of the
assailants, but knew them by right.  He observed the gunshots
for about five (5) minutes.  He saw the
deceased tumble to the
ground after gunshots.  He observed accused 1 and 4 among the
assailants.  He knew them for about
a week before the incident.
As testified by Vena, he did not observe any balaclavas.  He
pointed out accused 1 and 4
at the subsequent Identification Parade
as evinced in Exhibit “S”.  He recognised accused 3
also, although he
could not see his face on the photo-album, Exhibit
“K”.
[18] In cross-examination, Mdyongolo, testified that he saw the
deceased in Count 1 who stayed in the same area not worked with
him.
He pointed out accused 1 at the Identification Parade because he had
seen him next to the deceased during the shooting.
These
included accused 1, 3 and 4.  Accused 1 and 4 carried firearms.
He was emphatic that he had observed accused 1,
3 and 4 clearly
during day time, and during the shooting next to the deceased.
The witness denied, credibly the version of
accused 1 that on 25 May
2017, he was at his residence at Enkomeni, Mpumalanga, and only
returned to the crime scene to work on
26 May 2017.  The witness
was not at the scene on the latter date. He denied that his
identification of accused 1 at the Identification
Parade was
mistaken.  The witness also denied emphatically the version of
accused 4, that on the day of the crimes he was
at his residence, at
Davis Street, Doornfontein, with his wife called either Mercy or
Meisie.
[19] In further cross-examination on behalf accused 2 and 3,
Mdyongolo testified that:  accused 1, 3 and 4, who he mentioned

and implicated in court, he had seen before, and that he was certain
of their identities as part of the perpetrators; he denied
changing
his version or that Vena made a mistake; he did not point out accused
3 at the Identification Parade because the photographs
were not clear
enough; on the day in question, he only observed four suspects, as
opposed to Mcimeli who saw about six (6) perpetrators
next to the
deceased;  he also did not see any suspects wearing balaclavas;
he was certain that he had seen accused
3 at the dumping site, on
four (4) separate days prior to the incident he observed accused 3
for about five (5) minutes next to
the deceased; and he denied the
versions of the accused, in particular the version of accused 3 that
on the day of the incident,
he was away at Embalenhle, Secunda.
In re-examination, Mdyongolo testified that he identified accused 3
not only by his face,
but also by the cap he was wearing, and which
cap he had seen before.
COUNTS
4, 5 AND 6
[20] State witnesses, Mr Rethabile Johannes Mpeka (“
Mpeka
”),
and Mr Mabuti Ditsietsi (“
Ditsietsi
”); testified
in regard to Counts 4, 5 and 6.  Indeed, these are the counts in
respect of which I acquitted accused 2
and 3 at the conclusion of the
state case on 27 August 2018.  For these reasons, an extensive
recital of all the evidence
was unnecessary, save to the extent of
the implication of accused 1 and 4.
[21] In short, Mpeka testified that he also conducted the business
recycling at various wate-disposal places in particular in the
South
of Johannesburg.  On the day in question, he was in the company
of Ditsietsi and the deceased in Count 4.  They
were pulling
their trolleys containing respective wares. It was about midday.
Visibility was clear. As they crossed railway line
from the side of
Rosettenville, they came across accused 1, as close as some 4/5
metres, and apparently in the company of two (2)
other assailants who
were some distance away namely about 100 metres from the witness.
Accused 1 greeted them and asked to speak
to the deceased. At that
stage accused 1 stood face to face to the witness. The deceased ran
away.  Accused 1 and the other
suspects pursued the deceased.
Accused 1 had a small firearm, whilst the other two (2) suspects were
also armed with firearms.
The deceased was regrettably cornered
near a mine dump wall, shot at and killed.  Several shots were
fired at the deceased
by accused 1 and the other suspects who Mpeka
could not identify.  After the shooting, accused 1 and his
cohorts swiftly vanished
from the scene and never to be seen by the
witness.  What was significant in the evidence of Mpeka , both
in evidence-in-chief
and cross-examination, was the following:
he told the police that it was accused 1 who killed the deceased; he
mentioned
accused 1 by name; he knew accused 1 before the incident;
he had met accused 1 in Gauteng and knew him for about two (2) months

before the incident on 30 May 2017;  accused 1 frequently
visited an unknown person at the site where Mpeka resided; the site

was situated at the Mai-Mai hostel;  on occasions during the
visit, accused 1 would do so over weekends; the deceased and
accused
1 knew each other, but no word, were spoken prior to and during the
shooting; he denied the alibi defence of accused 1
to the effect that
on 30 May 2017 accused 1 was not in Gauteng, but sleeping at his
residence at Enkomeni, Mpumalanga Province;
and I must observe that
this version put to the witness was somewhat confusing whether
accused 1 returned to Gauteng on 30 May
2017 or 1 June 2017.
[22] Ditsietsi testified.  His evidence corroborated in full,
and materially, the evidence of Mpeka.  He too alleged
that he
observed accused 1 and others first, approaching them during
daylight, pursuing the deceased, and shooting the deceased.
He
identified accused 1 in court as one of the perpetrators.  He
and Mpeka both originate from Lesotho.  However, I must
point
out that the evidence of Ditsietsi, although tending to corroborate
that of Mpeka, was not wholly a model of perfection.
In his witness
statement made to the police on 30 May 2017, Exhibit “L”,
he mentioned that he would not be able to
identify the assailants.
This was clearly contrary to his oral evidence in court.  He was
heavily criticised in cross-examination
on behalf of accused 1 only,
for making what is called dock-identification, which he denied
vehemently. This aspect is better left
for proper evaluation of the
entire evidence later below.
[23] The evidence of state witnesses, Mr Christopher Tsingoane
(“
Tsingoane
”), Mr Ephraim Mphiliowa Dladla
(“
Dladla
”), Mr Philisande Ngcombolo (“
Ngcombolo
”),
Mr David Chauke (“
Chauke
”), and Mr Sithembile
Isaac Mkhize (“
Mkhizei”),
as supplemented by the
evidence of the police, all dealt with Counts 9, 10, 11, 12, 13 and
16.  That is at the second crime
scene and the third crime
scene.  The evidence was extensive and prolix. However, some of
the evidence have been dealt with
in part when reference was made to
the various exhibits handed up by consent. It is also so that some of
the crime scenes have
been incorrectly interposed with the major
crime scene, the fourth crime scene, relating to Counts 7, 8, 11, 12,
13, 14, 15 and
16.
[24] Be that as it may, Tsingoane, a security guard employed by Royal
Security Company, testified.  On 23 May 2017, he was
on duty at
the Booysens Railway Station from about 18h00 in the guardroom which
was locked.  He was with a colleague, Ms Thembelihle
Mvelase
(“
Mvelase
”).  The other colleagues were
outside the guardroom.
[25] Later that evening, and whilst the guardroom was unlocked but
closed, they were accosted by about five (5) armed suspects.

They were assaulted, harassed and insulted, with demand for
firearms.  Other colleagues from outside, were driven into the

guardroom, which was well-lit, with visibility clear, but not
spacious.  In the end, the victims were relieved of their
personal
belongings, including cellphones, and a company firearm, and
ammunition thereof, mentioned in Counts 9 to 13.  Tsingoane, who

was seriously injured during the ordeal, could not identify any of
the suspects, even at a subsequent Identification Parade.
[26] State witness, Dhladhla testified. He was in the guardroom with
colleagues, and Tsingoane including Mkhize, when they were
accosted
by about five (5) suspects.  The incident occurred at about
19h00.  His evidence as to what transpired during
the ordeal
which lasted for about 5 minutes, was substantially the same as that
of Tsingoane, except for the following variations:
he could
observe the assailants well, including their faces as the guardroom
was well-lit by electrical bulbs; three (3) of the
suspects carried
firearms, three (3) suspects entered the guardroom whilst the other
two (2) stood guard at the door.  In
court, Dhladhla pointed at
accused 1, 2 and 4 as part of the assailants.  Accused 1 and 2
carried firearms.  However,
at the subsequent Identification
Parade, as alluded to before, he identified accused 2 and 4 only.
He recalled in oral evidence
that accused 1 was also part of the
assailants.  This business clearly had difficulties with the
photos in court, which he
described as not very clear.  The
court had adjourned briefly to enable to view the photo-album.
[27] Dhladhla was cross-examined incisively.  He conceded
readily that he made a mistake in referring to photo 12 of the
photo-album at the parade, instead of photo 27.  The reason
advanced for the mistake was that the photos were not clear.

Dhladhla also readily conceded that he in fact did not point out
accused 1 at the Identification Parade but did so in court. Accused

recognised the suspects by their faces at the crime scene. He did not
know accused 1 and 4 before the incident.  The same
applied to
accused 2.  Dhladhla denied the versions of accused 1, 2 and 4
that they were not at the crime scene.  He
emphasised that he
could not easily forget someone who assaulted and robbed him.
In cross-examination by accused 2, he testified
that it was in fact 2
who searched him and demanding a firearm during the robbery. Accused
carried a firearm. He pointed out accused
2 at the Identification
Parade since accused 2 did bad things to him.
[28] State witness, Mkhize, also employed by Royal Security Company,
testified.  He was on duty as a security guard with Mvelase,

Dhladhla, Tsingoane and others during the robbery on 23 May 2017.
At some stage, when he was in the guardroom, his phone
rang.  He
went outside. However, at the door appeared three (3) suspects. One
of the suspects pointed a firearm at him, and
ordered him to keep
quiet.  The security guards were ordered to lie down, not look
at the suspects, assaulted, searched, and
robbed of belongings, as
testified by his colleagues.  Tsingoane was robbed of a company
9 mm Norinco pistol. The guardroom
was well-lit by electricity, and
small in size.  He could see clearly, and the suspects came
close to him, less than one metre.
In court, he claimed to see
two (2) of the suspects, one of which was accused 4. During the
robbery, accused 4 carried a .38 Special
firearm which he pointed at
the witnesses’ head.  He looked at accused 4 at least
three times during the robbery as
accused 4 was the suspect who
searched him and relieved him of his cellphone. At the subsequent
Identification Parade, and as depicted
on Exhibit “T”,
Mkhize identified accused 4 as one of the perpetrators.  It is
so that Mkhize saw accused 4 at
the nearby shacks, near Booysens
Railway Station, on several occasions prior to the identification
parade. Accused 4 was probably
unaware of this. His company, Royal
Security, had a cable in the squatter camp, near Booysens Railway
Station, which the witness
checked regularly on foot patrols.
[29] Mkhize was cross-examined extensively on behalf of accused 1, 2
and 4. In essence, he stuck to his co-version.  He conceded

readily that at the identification parade, he also pointed out an
innocent person.  He could not point out accused 1 as some
of
the suspects on the line-up wore hats. Mkhize denied the alibi
defences versions of the accused.  It is perhaps appropriate
to
record at this stage, some of the demeanour of Mkhize.  At the
commencement of his evidence, he could not testify as he
appeared
visibly to be unwell. The unwellness was ascribed to him having been
mugged recently, which incident aggravated the injuries
he sustained
during the robbery in question. Initially, he appeared argumentative
in the witness stand, answering questions by
questions in
cross-examination.  He appeared to be angry and hostile towards
the accused persons, and their counsel. However,
towards the end of
his testimony, Mkhize became more assured and confident.  It
will truly be difficult to discard his evidence
in the final
analysis.
[30] State witness, Mr Monnapule William Nyanga (“
Nyanga
”)
in regard to Count 7.  He was a supervisor at Royal Security
Company, and worked with Mvelase, Mkhize Tsingoane and
others.
On 1 September 2017, he was called by Warrant Officer Msibi to the
Johannesburg Central Police Station. There he
identified his
company’s firearm, namely a 9 mm calibre semi-automatic model
201C-Norinco, with serial number 49101498, and
which firearm was
found by Sergeant V Naidoo of the K9 Unit in the possession of
accused 1 at the veld near Wemmerpan and his roads
on 1 June 2017.
The firearm, depicted in Exhibit “M”, contained seven (7)
live rounds of ammunition. In addition,
the firearm was subsequently
linked ballistically to the cartridges found at the third crime
scene.  More about this firearm
later. Nyanga was not
cross-examined at all, and should be no reason all not to accept his
evidence.
[31] State witness, Philisande Ngcombolo (“
Ngcombolo
”),
a security guard at Imvula Security Company, testified.  This
was in regard to Count 9, as depicted in Exhibit “P”.
The
evidence of this witness, as well as that of colleague, Mr Doctor
Joseph Dladla (“
Doctor Dladla
”), and their
supervisor, Mr David Chauke (“
Chauke
”), was not
challenged.  None of these directly implicated the accused
persons. In short, Ngcombolo and Doctor Dladla
employees of Imvula
Security Company, were on duty on the night of 2 March 2017.
They were posted at what was called the
DSM Centre, Eloff Street
Extension, Selby. They were accosted by armed suspects, tied up, and
robbed of two (2) firearms, the property
of their employer, Imvula.
One of the firearms robbed was a shotgun with serial number AM 34077,
a pump-gun shotgun, which contained
ammunition, referred to in Counts
9, 10 and 11.  This firearm was found in the possession of
accused 2 on 1 June 2017 around
the Wemmerpan and N17 road, South of
Johannesburg.  State witness, Chauke later at the Johannesburg
Central Police Station,
as the property of Imvula Security Company.
THE
INCIDENT OF 1 JUNE 2017
[32] I now turn to the fourth crime scene, and in respect of which
the bulk of the evidence was led.  The police received
a
complaint about a shooting at the crime scene in the morning, about
09h00.  As will appear from the evidence of Warrant
Officers
Msibi and Moja, they were amongst the first group of police to arrive
at the scene.  Warrant Officer Msibi, observed
a group of about
100 suspects fleeing the scene on sight of the police.  In the
process, he observed about four (4) suspects
who were shooting at the
police, breaking away from the fleeing group, and climbing up the
hill at the crime scene. He gave chase,
and kept the four suspects
under observation. He called for backup in the form of the other
police, including the K9 Dog Unit,
which arrived shortly thereafter.
THE
EVIDENCE OF THE K9 DOG UNIT POLICE
[33] I must transgress for now, and deal with the evidence of Sgt V
Naidoo (“
Naidoo
”), and Constable Jacob Rapoo
(“
Rapoo
”), and Constable E M Motswana
(“
Motswana
”), all from the K9 Dog Unit. They
arrived at the crime scene shortly after receiving a backup call from
Warrant Officer Msibi.
Their evidence was almost similar and
complementary, save to the extent of which suspects were apprehended,
and what was found
in their respective possessions.
[34] Naidoo unleashed his dog in the direction of the four (4)
suspects pointed out by Warrant Officer Msibi or Warrant Officer

Moja, following and holding the puppy leash.  So did Napoo.
Naidoo’s dog caught and bit a suspect with a red T-shirt.

A firearm fell from the body of the suspect.  Naidoo apprehended
the suspect and took possession of the firearm with its serial
number
untempered.  There was one live round in the chamber of the
firearm and six (6) rounds in the magazine – ready
to fire.
The suspect was bleeding from the dog bites.  The suspect was
accused 1.  His constitutional rights were
explained to him.
Accused was treated medically at the scene.  Accused 1 was taken
to the Johannesburg Central Police
Station and detained.
[35] In a similar fashion, Rapoo, on his turn, released his dog in
the direction of the fleeing suspects who were reportedly shooting
at
the police.  The dog caught the second suspect.  As the dog
was grabbing and struggling with the second suspect, a
firearm fell
from the body of the suspect. The suspect, as confirmed by Naidoo,
was accused 2.  He kneeled on his knees and
the dog grabbed his
arm. The firearm contained one live ground of ammunition in the
chamber, and four (4) in the magazine.
When caught by the dog,
accused 2 lying on his tummy flat, and not far from accused 1.
There were no other people on the
hill were accused 1 and 2 were
apprehended.  Accused 2 was injured on his leg and thigh, but
given medical assistance on the
scene by the paramedics.  The
firearms, and ammunition were handed in at the Johannesburg Central
Police Station under SAPS13,
as reflected in Exhibit “Q”.
The later exhibit, described the items as:
“
Containing five (5) live rounds shotgun rounds; one (1)
silver/black shotgun with serial number AM 34077; one (1) magazine,
seven
(7) live rounds 9 mm rounds, and a black Norinco pistol serial
number 49101498; one (1) magazine, sixteen (16) live rounds, one
(1)
black Norinco pistol with serial  number 666669
.”
There could be no doubt that the firearms and ammunition were those
referred to in Counts 7, 8, 9, 10, 11, 12 and 13 of the indictment.
[36] Constables N J Kgatlempe (“
Kgatlempe
”) and E
M Motswana (“
Motswana
”), also from the K9 Dog
Unit, testified.  On arrival at the scene, and after being shown
the direction in which the
four (4) suspects fled, released their dog
in similar fashion.  The dog caught a suspect.  The suspect
held a firearm
in his right hand.  The firearm fell to the
ground.  The dog was controlled by the puppy line.  The
suspect was
searched, and live rounds of ammunition were found in his
pockets.  The suspect was accused 3.  Accused 3 had dog
bites
on his leg and on his arm. From about 16 metres away, another
suspect emerged, holding his hands up and announced that he was
Thabiso
Morobi, accused 4.  He was bleeding from his head.
When questioned, accused 3 responded that he was injured by unknown

illegal miners.
[37] The above police witnesses from the K9 Dog Unit were all
cross-examined. For the sake of brevity, and without derogating from

the veracity and incisive nature of the cross-examination, it was
well-founded to observe that they all did not deviate from their

co-versions in implicating the accused persons identified. The
respective versions of the accused put to the witnesses, were
emphatically,
and credibly denied by the witnesses.  The
firearms were linked to the accused as mentioned below.
THE
EVIDENCE OF WARRANT OFFICER MOJA
[38] I deal with the evidence of W/Officer Moja, and in regard to
Count 14, the attempted murder on him.  He too, assisted
at the
scene after backup was called for.  He and his team, all in full
police uniform, and marked police motor vehicles.
I miss
the brief with the evidence of this witness, since I was not
convinced at all that the alleged crime of attempted murder

perpetuated in him had been proved beyond reasonable doubt by the
State. This for a number of reasons.
[39] First, and in order to pave the way as well for Count 15, which
is also one of attempted murder, I was not entirely persuaded
that
the evidence presented here made out a case for attempted murder in
respect of Count 14.  The elements of murder itself
are given
as, the (1) unlawful, (2) killing, (3) of a person, with (4)
intention. She Burchell,
Principles of Criminal Law
5 ed, p
578.  It means therefore that in attempted murder most of the
above elements must be present specially “
a person
”,
since attempted murder is a separate from murder.  W/Officer and
his team were part of police backup who arrived at
the scene.
In fact, he also called for more backup.
[40] Although he testified persistently in a soft voice, his evidence
was clear.  He followed the K9 Dog Unit police in chasing
the
suspect up the hill.  Shots were fired from the group of fleeing
suspects, and from a distance of about 100/200 metres.
The shots were
fired generally at the police.  From the entirety of the
evidence, none of the police were struck by the shots.
The evidence
of Warrant Officer Msibi confirmed this.  At some stage the
shooters move down the hill.  Moja could not
see well and he
could therefore not identify any of the shooters.  In this
regard, his specific evidence was, “
I do not want to lie.
”
On his arrival near the shooting suspects, Warrant Officer testified
that it looked like the shooting was over.
At that stage
accused 2 was already apprehended by the K9 Dog Unit.  Later,
Warrant Officer Moja heard from Constable Rapoo
that the suspects
were firing shots at them. Warrant Officer Moja in fact confirmed in
cross-examination that of the four (4) suspects,
later accused, who
were retrieved from the hill, he did not see them shoot. In
particular during cross-examination by accused 2,
Moja confirmed that
he ran towards the suspects, but following the KG Dog Unit.  He
was unable to tell the Court who shot
at the police.
Significantly, Moja did not testify that shots were fired
specifically at him, although he attempted to suggest
this in
re-examination. In any event, even if this was so, he could not
identify the shooters.  It could have been any other
fleeing
suspect apart from the four people arrested by the K9 Dog Unit.
Based on the above, I am compelled to conclude that
the State has not
succeeded in proving beyond reasonable doubt the charge of attempted
murder in Count 17, and in respect of Warrant
Officer Moja.
Consequently, all the accused must be found not guilty, and
discharged on this count.
[41] However, the above finding does not signify that the evidence of
Warrant Officer Moja called for complete rejection.
I never
gained the impression that he made any attempt to deliberately
mislead the court.  Indeed the bulk of his evidence
rendered
corroboration to the evidence of not only Warrant Officer Msibi, and
the K9 Dog Unit Police at the crime scene on 1 June
2017, but the
other police officers also at the scene.  I deal with this
aspect later.
[42] Captain N Sebogodi (“
Sebogodi
”), whose
evidence was challenged in advance, testified in the
trial-within-a-trial.  On 2 June 2017, and at the request
of W/O
Msibi, he accompanied accused 1, who allegedly wanted to make a
pointing out.  It was alleged that accused 1 volunteered
to
point out his boss in the crimes, namely one Sello (“
Sello
”).
On the other hand, the defence for accused 1, at the commencement of
the trial-within-a-trial, contended that the
alleged pointing out was
contrary to the accused’s wishes.
[43] In the police motor vehicle, and accompanying Sebogodi, and the
accused, was Sgt Malatjie.  However, on the way to the

destination, accused 1 had a change of mind, according to Sebogodi.
In this regard, accused 1 conveyed that since he was
scared of Sello,
he could not point him out.  It was common cause that Sello was
also a Lesotho national. Accused 1 explained
that should the
scheduled pointing out of Sello, the latter would kill the accused.
Instead, accused 1 freely offered to show the
police something else.
Sebogodi retorted:  “
do not play games with us
”,
we are on duty. Accused 1 had his constitutional rights explained to
him, but he nevertheless assured the police that his
change of heart
was on his own volition.  Sebogodi spoke to accused 1 in the
Sesotho and Setswana languages, which accused
1 understood.
Sebogodi contacted W/O Msibi, the investigating officer, and conveyed
the developments.  Arrangements
were made for photographers to
be present, and photographs taken.  However there was
insufficient time to secure the customary
pro-forma forms used for
pointings-out, and since the change of mind by the accused was
unexpected.  In any event, Sebogodi
testified that he no longer
trusted the accused.  The pointing-out was delayed again, and
the constitutional rights of the
accused again explained to him. In
the end, accused 1 proceeded to point out to the police a dead body,
at the Genesis Mine Dump,
South of Johannesburg, at Fennel Road,
Village Main, and as depicted in photographs 9, 10, 11, 12, 13, 14,
15, 17 and 18, depicted
on Exhibit “V”. The body was
charred, and full of wounds.  More about the dead body later.
[44] Warrant Officer Msibi also testified in the
trial-within-a-trial.  He confirmed in large measure the
evidence of Sebogodi.
On questioning by the Court, he testified
that the pointing out by accused 1 of his alleged boss, Sello, had to
occur swiftly since
the latter was a Lesotho national and was likely
to flee the Republic of South Africa.  On his arrest, accused 1
had his constitutional
rights explained to him by Warrant Officer
Masilela. Accused agreed freely and voluntarily to point out the
residence of his boss,
Sello.  At the time, accused 1 still had
injuries caused by the dog bites on his arrest.  However, the
accused, like
his co-accused, have been treated by the paramedics who
recommended detention, and not hospitalisation. At the time, the
investigations
showed that there was another person killed by accused
1, as well as one other whose body could not be located.
[45] Both Sebogodi and Msibi were cross-examined. The version of
accused 1 that he was booked out of the cells in order to show
his
residence was denied. So was the version that at the pointing out
scene, accused was coerced to point out the dead body.
The
family of the dead body pointed out, later came to identify the body
which was transported to Lesotho.
[46] At the conclusion of the evidence of Msibi, and pursuant to a
brief adjournment, the notice of rights in terms of the Constitution,

Exhibit “U”, issued by Warrant Officer Masilela to
accused 1 on his arrest and detention on 11 June 2017, was handed
up
by consent.  It therefore became unnecessary for Warrant Officer
Masilela to testify.
[47] Accused 1 testified as the only witness in the
trial-within-a-trial. In essence, his version came to this:  he
was booked
out the cells by Warrant Officer Msibi in order to show
his residence; he was handed over to Sebogodi at the Johannesburg
Central
Police Station, and placed in a police motor vehicle;
he was driven to the Genesis Mining Dump site; he was forced by the

police, and pushed towards an unknown and dead body and made to point
at it, whilst photographs were taken; and he denied the existence
of
an alleged boss, Sello, who allegedly instructed him to kill people.
Interestingly, accused 1 alleged that Warrant Officer
Msibi was
present at the pointing out of the dead body, and actually took part
in forcing the accused to touch the dead body.
Msibi had denied
this version, although admitting to be present in the book ground,
and in a separate unmarked police vehicle.
If this was indeed
true, it remained a worrying factor to the Court.
[48] Accused 1 was cross-examined.  In the evaluating of the
evidence, I concluded, for present purposes, that the version
of
accused 1 in the trial-within-a-trial was completely false; riddled
with inconsistencies; a perfect innovation and afterthought,
and
rendered by an unimpressive witness. It was highly improbable for the
police to book out the accused from the cells merely
for him to go
and point out his address when they already had it, or could verify
it without him. On the way to the pointing-out,
accused 1 clearly had
a change of mind. It boggles the mind why he would be made to point
out a dead body in respect of which he
was not charged in the present
proceedings.  Indeed, this accounted for the absence of the
customary pro-forma pointing-out
forms at the scene.  For the
above reasons, and having regard to the merits of the allegations
against the accused, I ruled
that the evidence was admissible.
In hindsight, on the version of the accused, there was plainly no
need to enter into a
trial-within-a-trial.
THE
EVIDENCE OF THE GUNSHOT POWDER RESIDUE
[49] Constable M E Tshwana (“
Tshwana
”), based at
the Local Criminal Record Centre, Johannesburg, testified based on
Exhibit “R”, and related exhibits.
On 1 June 2017
(the day of the shooting in Count 7), he collected samples of gunshot
power residue from both hands of all the accused
persons, which he
sealed in forensic bags, under lock and key for safekeeping.  On
8 June 2017 the exhibits were handed over
to Constable M E Mthembu to
take to the Forensic Science Laboratory, for analysis.  This
witness was not cross-examined.
[50] The Report of the Gunshot Powder Residue, Exhibit “X”,
compiled in terms of section 212 of the Criminal Procedure
Act, was
admitted by consent.  In terms of the report, the analysis in
respect of accused 1 and 4, the samples tested positive
for Gunshot
Powder Residue (GSR).
[51] Warrant Officer Salome Sebola (“
Sebola
”), of
the Forensic Science Laboratory testified.  This was in regard
to the Ballistic Report, Exhibit “H”.
Check with the
analysis of all the ballistic reports.  She examined the fired
cartridges, including of, the 12 Gauge calibre
Model Musler, Pump
Action Shotgun, mentioned in Count 9; the 1 and 9 mm Parabellum
calibre Norinco Model 213 semi-automatic pistol
with serial number
666669 with a magazine; 16 x 9 mm Parabellum calibre cartridges; 1 x
9 mm Parabellum calibre model 213 semi-automatic
pistol with serial
number 49101498; 7 x 9 mm Parabellum calibre cartridges; 3 x 9 mm
Parabellum calibre fired cases;  and
1 x 9 mm calibre fired
bullet, all as contained in the admissions, Exhibits “D”,
“E”, “F” and
“G”.
[52] Warrant Officer Sebola, and in regard to what she tested,
testified that:  the three (3) 1 x 9 mm Parabellum calibre
fired
cartridge case marked 311958/17 – B1 to B3, respectively, and
the one 1 to 9 mm calibre fired bullet, marked and the
one (1) –
9 mm calibre fired bullet marked IT 311958/17 C1, were fired in the
same firearm as the test fired cartridge case,
namely as the 9 mm
Parabellum test fired case marked 498T62, and that the bullet,
namely, 9 mm calibre fired, marked IT, 311958/17
– C1, was
fired from the same firearm. Warrant Officer Sebola, confirmed the
contents and correctness of her report, Exhibit
“H”.
She was not cross-examined.
[53] As stated above, the process of taking from the accused the
gunshot powder residue, and the results thereof, were admitted.

The same applied to the process and procedure followed at the
identification parade on 10 June 2017, Exhibit “T”.
THE
EVIDENCE OF WARRANT OFFICER MSIBI
[54] The evidence of Warrant Officer Msibi is the last to be
considered.  He testified in both the trial-within-a-trial and

the main trial, as the Investigating Officer.  The evidence was
extensive and as such, resulted in extended cross-examination.
[55] The evidence must be compressed on arrival at the crime scene
with his crew:  suspects were shooting at the police; they
were
in police uniform; the police chased at a group of about 100 suspects
up the hill; from the group of 100 suspects, four (4)
separated in
the process of the chase; Msibi kept the four suspects under constant
observation, according to him; the police never
retaliated; he called
for back-up, including the K9 Dog Unit, which arrived shortly
thereafter, at about 10h00; the K9 Dog Unit,
with the assistance of
their dogs, and as testified the unit’s members involved,
assisted the four accused were brought to
Msibi and his team; they
were injured as a result of dog-bites; these accused were treated
medically, by the paramedics on the
scene, and later at the
Johannesburg Central Police Station; three of the accused were found
in possession of firearms specified
and related ammunition; prior to
their capture, the accused shot at the pursuing police again; the
accused (4), had run, and jumped
over the N17 freeway towards a
second bushy hill; at the spot where the accused were arrested, there
were no other suspects/community
people present; and that, the spot
was circled with no other people leaving it.  Indeed, it was
clearly apparent that certain
crucial parts of Msibi’s
evidence, which was crucial, required careful assessment and
evaluation.  Such evidence was
his contentions that:  he
kept the four (4) accused under constant observation from when they
broke away from the group until
they were captured and brought to
them; he only lost sight of the accused during the chase after they
reached the top of the hill,
and saw them after apprehension;
that the accused were the same four (4) persons who climbed the hill
during the chase as
the four (4) suspects subsequently arrested by
the K9 Dog Unit; and that he was certain about the identity of the
accused since
they fled being four (4) from the crowd of about a 100
suspects originally and were apprehended being four (4) thereafter;
the
latter was the only identifying feature relied upon by Msibi,
then the circumstantial evidence at play here.
[56] As alluded to previously, Warrant Officer Msibi was
cross-examined extensively. The overall impression gained by the
court,
and despite the above remarkable features, including that his
evidence somewhat bordered on exaggeration, he nevertheless kept to

his co-version.  For example, he denied that the accused were
exposed to potential witnesses after their arrest by the police,
and
prior to the identification parade as alleged by all the accused.
He also denied convincingly that he threatened one
of the accused
that he would arrange on “
illegal identification parade
”
later. In any event, these allegations were generally spurious.
THE
EVIDENCE OF THE ACCUSED
[57] I must deal with the versions of the accused.  In doing so,
I must, at the outset bear in mind certain trite legal principles.

These include that, the State bears the
onus
throughout to
prove the guilt of the accused beyond reasonable doubt; if there is
any reasonable indication that the version of
the accused might be
reasonably possibly true, they are entitled to their acquittal; the
correct and proper approach to both circumstantial
evidence, and
identifying evidence; and in regard to an
alibi
defence, that
an accused had not convinced a court of law of the truth of his
alibi
, and that such
alibi
defence must be considered
not in isolation, but in proper context of the totality of the
evidence. As for the former, see cases
such as
S v Sithole
and
Others
1999 (4) SACR 575
(W).  As to the latter principles,
see case law, such as
S v Malefo
1998 (4) SACR 127
(W);
S v
Mhlongo
1991 (2) SACR 207
(A);
S v Khumalo
[1991] ZASCA 70
;
1991 (4) SA 310
(A);
S v Ntsele
1998 (2) SACR 178
(SCA);
S v Jochems
1991 (1) SACR 208
(A); and
S v Nkombani
1967 (4) SA 877
(A).
Indeed, there are other obvious applicable legal principles in this
case to be reverted to later below.
[58] All the accused testified, with accused 4 also testifying during
the trial-within-a-trial, as mentioned above.  I preface
the
various defences, generally and variously, ranged from
alibi
defences (Counts 4 to 6), and Counts 9 to 13; in regard to Counts 7,
8, 14 and 15, the defences were that the accused were lawfully
at the
scene, innocent and working when they were suddenly attacked.
In regard to Count 16, the defence proffered was once
more, an
alibi
.
[59] Accused 1 testified that during May 2017 he resided at Enkomeni,
Mpumalanga Province.  He did not know the deceased in
Count 1,
and killed him.  He similarly, denied the allegations contained
in Counts 2 and 3.  Accused advanced the same
defence.  In
regard to Counts 4 to 6, accused 1 testified that he was in
Mpumalanga.  In regard to Count 7, and related
counts, accused 1
testified that on 1 June 2017 he was at work as a recycler at the
dumping site and denied all the allegations.
On his arrest, he
was bleeding from injuries, and his hands had blood on, even when he
agreed to have gunshot power residue samples
taken from him.  He
never handled any firearms or ammunition.  In regard to Count 9,
the theft of the 12 Gauge Calibre
Model Musler Pump Gun Shotgun, and
related counts, accused 1 merely denied the allegations. In regard to
the robbery count, Count
16, testified that he was at home at
Enkomeni, Mpumalanga.
[60] In cross-examination by his co-accused, accused 1 alleged that
he did not know accused 2, and saw him for the first time on
1 June
2017.  However, he saw accused 3 from home in Lesotho, and they
did the same work at the dumping site.  He was
with accused 3 on
1 June 2017 at the dumping site, and had met him on 29 May 2017.
Accused 1 met accused 4 for the first
time on the date of arrest.
He rented a house at Enkomeni, Mpumalanga, where he stayed alone,
whilst his wife stayed in Lesotho.
He conceded that he stayed
also at Booysens Squatter Camp from 26 May 2017.  It soon became
apparent that accused 1 was untruthful
in regard to his actual
residence, when and how many times he visited Mpumalanga after he
arrived in Johannesburg. He avoided questions
in cross-examination by
the State, he introduced new evidence for which he blamed his
counsel.  He also blamed his counsel
for not communicating
properly with him. He also could not explain why the witnesses in
Count 1 identified him if he was not at
the crime scene. Accused 1
repeated his incredulous version on how the police made him point out
a dead body during the pointing-out.
Accused 1 spectacularly
denied that he was doing recycling at what was commonly called the
mining dumping site, when all the credible
evidence indicated that to
be the place.  It was plain that accused 1 made every endeavour
to remove himself from mine dump
site where the crime was committed.
Regarding his arrest on 1 June 2017, the accused version was simply
this:  he worked
at the crime scene from morning to late
afternoon; he was with accused 3, not accused 2 or 4.  Late that
afternoon, many people
arrived there shooting at them; he and accused
3, either tried to run away or in fact ran away – his evidence
was confusing
in this regard.  In the process, they came across
the police; they were assaulted by the police viciously; they were
searched,
and nothing was found on them.  This version was
clearly false in several respects.  It was contrary to the
credible
evidence of the police that the shooting at the scene
commenced in the morning, about 09h00, the time at which accused 1
reportedly
started working. Second, all the four accused ran up the
hill together, and apart from the bigger group of about 1 x 100. The
accused
and/or suspects were shooting at the police as they fled.
Thirdly, the accused were arrested together at the same spot, not

separately as contended by accused 1. When searched, accused 1 and 4,
possessed firearms. The version of accused 1 was also in
conflict
with the more credible version of the K9 Dog Unit police officers.
Furthermore, the version that accused 1 was viciously,
and variously
assaulted on capture, constituted entirely fresh evidence in
cross-examination. The police openly admitted to injuries
sustained
by the accused as a result of dog bites.  A careful scrutiny of
the version of accused 1 showed that it was replete
with
inconsistencies, improbabilities, and adaptations.  His
contentions that the various witnesses who implicated him in
the
various crimes engaged in fabrication against him, were without merit
at all.  If true, the fabrication was simply too
extensive and
complicated.  Accused 1 admitted that he was pointed out at the
identification parade, particularly, in regard
to Count 1.
However, he denied the presence of gunshot powder residue on his
hands on the basis of the unfounded assertion
that at the time of the
taking of the samples from him, his hands were full of blood.
Indeed, all the inconsistencies, improbabilities,
and unmeritorious
aspects of accused 1’s version, have been extensively captured
in the State’s heads of argument.
He closed his case
without calling any witnesses.
[61] Accused 2 also testified as the only witness in his defence, to
which he was entitled.  He was a national, and came to
South
Africa in 2011.  He was arrested on 1 June 2017.  Prior to
that, he was unemployed and residing at the Booysens
Squatter Camp.
He did not know his co-accused, but first met them on the day of
arrest.
[62] He was walking alone, and innocently on foot, from Johannesburg
Centre towards the South, Rosettenville. He heard gunshots.
He
saw members of the South African Police, as well as other civilians
firing shots.  He and other civilians walking nearby,
ran away.
He reached a hill with grass and trees.  On top of the hill,
which was porous, he hid himself.  When
the shooting subsided,
he heard dog barks.  He saw police, and Metro cops, some in
uniform, and others not.  He approached
the police for help.
He was about 15 metres away from the uniformed police. He was
instructed to stop dead in his tracks,
and face away, which he did.
Gunshots ensued.  He was circled by the police.  He was
searched, but nothing was
found in his possession, except a fifty
rand (R50,00) note. He was assaulted.  He was suffocated with a
glove placed over
his head. He was assaulted variously.  The
suffocation lasted for over 1 x 25 minutes.  He was instructed
to pick up
a firearm and handle it – by,
inter alia
,
inserting his finger into the trigger.  He was removed to
another soily area where he was shown a firearm.  He saw members

of the SAPS holding dogs on leashes or puppy-lines.  He observed
accused 1 and 3 among many people.  Rather significantly,

accused 1, in his prolix evidence-in-chief testified that, suddenly a
police dog bit him on the left thigh.  This must have
been in
the presence of accused 1 and 3.   A second dog came and
bit him, this time on the right thigh.  Thereafter
the accused
were removed again where they encountered accused 4 who was in the
company of a lot of people.  Accused 2 denied
the version of
Constable Napoo who arrested him.
[63] I have thus far refrained from curtailing the extremely prolix
evidence of accused 2 in-chief.  The version was extremely

revealing, and exceedingly eventful.  He proceeded to mention
some further dramatic event.  Once they were all captured,
they
were taken to another spot in the crime area.  They were
instructed to lie down.  The SAPS then placed three (1
x 3)
firearms on the side, next to their heads. Accused 2 was almost
naked.  Photographs, several were taken whilst the firearms
were
next to their heads. The accused were eventually driven to the
Johannesburg Control Police Station. However, the drama in
his
evidence was not over.  At the police station, they were first
placed in a steel-cage.  The police were in-and-out
of the cage,
with several events occurring.  In short accused 4 was assaulted
in the cage for pointing out accused 1 when
the police produced a big
firearm.  In addition, accused 2 was pulled by his private
parts, by a female officer which resulted
in laugh. In the end, and
for what was relevant ultimately, accused 2 commenced to deny the
various allegations levelled against
him in the indictment.
This was so, even though there was other credible evidence
implicating him, such as the identification
parade evidence.
[64] Accused 2 was duly cross-examined. Fast-forward, accused 3 and 4
testified in their own respective defences. Accused 3 testified
that
he is also from Lesotho, and came to South Africa during 2012.
He knew his co-accused. Prior to 1 June 2017, he stayed
at
Jeppestown, and at the Booysens Squatter Camp, as alleged by the
police.  He was also self-employed as recycler, colleting
scrap
metals and steel, at the dumpsite.  In regard to Count 1, he
testified that on 20 May 2017 he was at Embalenhle, Secunda
and
returned to Johannesburg towards end of June 2017.  On 23 May
2017 he was also away at Secunda.  He was arrested
on 1 June
2017 at the dumping site.
[65] Accused testified that whilst he was coming back from the top of
the hill, he saw many people arrested, firing shots. Some
people were
in uniform, and others not. He saw accused 1 and 4 earlier working at
the hill.  He denied the version of Warrant
Officer Msibi.
He and accused 1 run away but were stopped, arrested, and assaulted
by the police.  He was made to lie
down.  Whilst so
positioned, a police dog was unleashed onto him and bit him.  He
was made to handle a firearm, and live
ammunition.  The dogs
continued bite him. Accused 2 and 4 arrived; and were also bitten
up.  Thereafter, the accused
were taken to another spot on the
tarred road, and once more ordered to lie down. Firearms were placed
next to them, and photos
taken.  Later, the accused were taken
to the police station, and to hospital for medical treatment. Accused
3, like the accused
denied the various allegations levelled against
him.  He was cross-examined.
[66] Accused 4, an extremely arrogant and hostile witness,
testified.  At the outset, it was not out of place to observe
that accused 4 instantly displayed combativeness and
uncooperativeness.  He was not at the crime scene referred to in
Count
1.  He alleged that he was just sitting at his residence,
at Rocky and Davis Streets, Johannesburg. The same applied to the

incidents on 23 May 2017, and 30 May 2017.
[67] However, on the day of his arrest, on 1 June 2017, he was at
work as a recycler at the dumping site hill.  He started
work at
about 08h00, with a group of people, including accused 1 and 3.
They were unarmed.  Accused 1 and 3 at some
stage went to the
top of the hill.  Immediately thereafter, accused 4 heard
gunshots emanating from the direction in which
accused 1 and 3 had
gone.  Whilst walking towards the direction of the gunshots, he
came across the police who pointed him
with firearms.  He was
insulted and assaulted by a police officer who testified in court.
He was searched but nothing
found in his possession.  He was
handed to Warrant Officer Msibi.  He observed two (1 x 2) police
officers with drugs.
At about 18h00, accused 4 saw accused 1, 2 and
3.  For the rest, including the extended version of other
events, most of which
were not put to the relevant state witnesses.  The
evidence of accused 4 was the same as his co-accused. He denied the

various allegations in the indictment levelled against him.
[68] Accused 4 was cross-examined. He refused point-blank to reveal
the address of his residence, even with the intervention of
the
Court.  He is also from Lesotho, but he knew accused 1 and 3
only from Johannesburg from May 2017, working with him at
the mining
hill, not the dumping site.  So did accused 1.  He did not
know accused 2. All he remembers was that on 20
May 2017, and 23 May
2017, was home, nothing else, or the day before or after. Accused 4
conceded that he was pointed out by three
(3) witnesses of the
identification parade, but does not know why they did so. It was
common-cause that the wife of accused 4 was
present in court
throughout the entire evidence.  Accused 4, like his co-accused,
could proffer no explanation for the presence
of gunshot powder
residue found on his hands.
[69] I must revert to the cross-examination of accused 2.  There
was much which emerged and militated against his version
on the
various charges, save for Count 4.  Most of the extensive
version rendered in evidence-in-chief was not put to the
state
witnesses. For example, it was never put to the state witnesses, that
accused 2 was forced to handle/touch a firearm and
by putting his
finger on its trigger.  In any event, the demonstration given by
accused 2 in the witness stand as to how this
handling occurred, was
unimpressive and improbable.  In addition, it was never put to
the state witnesses that, upon his capture,
accused 2 was tied up
with cable ties.  There were other similar omissions.
[70] Indeed, from the entirety of the evidence, the Court gained the
distinct impression that, accused 2, like his co-accused;
rather
overplayed the number of civilians who were present where he was
arrested; the police witnesses disputed the present of
many innocent
people at the arrest scene; all the accused minimized the roles
played by their co-accused; accused 2, and the other
accused, tried
steer away from the actual crime scene on 1 June 2017, namely the
mine dumping site commonly referred in evidence.
In fact accused 4
referred to it as the mining hill.  In addition, all the accused
denied that they gave the police as their
addresses, the Booysens
Squatter Camp, except one accused.
[71] The cross-examination of accused 3, save for Count 4, rendered
his version improbable, like accused 2. Accused 3, like his

co-accused arrested on 1 June 2017, denied or played down the role
played by the police charges. They all denied the obvious.

Surprisingly, accused 3 suggested that he chased, shot and arrested
for no conceivable reason.  It was put to the state witnesses

that accused 3 was in Mpumalanga from January 2017, however he
testified that he was there since 2012. It was also put to the state

witnesses that accused 3 was at the dumping site, yet he testified
that he was at hill.  As mentioned above, it was unclear
whether
accused 3, on hearing the shots for the first time, and immediately
prior to his capture, he ran or attempted to do so.
Both accused 1
and Warrant Officer Msibi said accused 3 was at the dumping site, but
he denies it for no apparent reason. In all
the circumstances, it was
highly improbable that his counsel would put incorrect versions to
state witnesses in the presence of
the accused, without a murmur from
the accused.
[72] I have previously sketched certain legal principles applicable
to this matter. There are indeed others, but too numerous to
restate,
but also contained in the heads of argument. Additionally, in an
endeavour to prove the guilt of an accused beyond reasonable
doubt
(not proof beyond the slightest doubt). (See
S v Slegg
1973
(4) SA 34
(A), and that fanciful possibilities should not be allowed
to defeat the course of justice. See
Miller v Minister of Pensions
1947 (2) All ER 372
, 373, and
R v Difford
1947 (A) 270,
272).  It is equally trite that in the process of proving its
case beyond reasonable doubt, it does not mean
that in any case, the
State is called upon to indulge in conjecture and find an answer to
every possible inference which ingenuity
may suggest any more than
the Court is called upon to sell speculative explanations for conduct
which, on the face thereof, is
incriminating. See
S v Reddy and
Others
1996 (2) SACR 1
(A).  Indeed, in the latter case, it
was also stated that circumstantial evidence is not necessarily
weaker than direct evidence.
[73] Based on all the above legal principles, and not considering the
evidence implicating the accused, and the evidence exculpating
them
separately, but holistically, I must conclude.  In regard to
Counts 4 to 6, there was plainly no evidence that proved
the
involvement of accused 2, 3 and 4. They qualified to be given the
benefit of the doubt, and to be acquitted on this count,
and all
related charges. That was also the end of the State case in respect
of accused 2 and 3.
[74] However, in regard to accused 1, the picture was completely
different.  The evidence against him was overwhelming.

State witnesses, Mpeka and Ditsietsi certified that from accused 1
and other unidentified assailants shooting the deceased in that

count, (Mphonyana) with firearms.  They could see accused 1
clearly, it was daylight.  They  had adequate and
unobstructive
opportunity and view to observe the accused. In fact,
the witnesses first saw accused 1 whilst he was sitting down right in
front
of them.  Accused 1 proceeded to greet them.  Accused
1 said he wanted to speak to the deceased.  Accused 1 was close

to the witnesses then, about 4/5 metres away. The deceased fled away,
and was pursued by accused 1 and the other assailants.
In
addition, witness, Mpeka, knew accused 1 prior to the incident, for
about two (2) months, as revealed in the evidence.
In those
circumstances, the conclusion that the identification of accused 1 as
part of the assailants was reliable and satisfactory,
became
irresistible. Furthermore, the identifying evidence was corroborated
objectively by the admitted ballistic analysis evidence,
which proved
that the firearm, with serial number 49101498, found in the
possession of accused 1, discharged the cartridges retrieved
at the
crime scene referred to Count 4.  See, in this regard,
S v
Charzen
2006 (2) SACR 143
(SCA).
[75] In regard to Counts 1, 2 and 3, it appeared that accused 3 (Lefa
Emmanual Setlaba), ought to be acquitted, as well.
The
concession made by State counsel in this regard, was correctly made.
However, in regard to accused 1, 2 and 4, (see heads
of State).
I have sketched the evidence of the state witnesses in this regard.
These were, Mcimeli, Vena and Mdyongolo.
In sum, these
witnesses testified that, at the first crime scene, they saw the
deceased being shot at. They heard and saw the gunshots
emanating
from where the deceased was. The deceased fell and laid down. The
deceased was surrounded by assailants. These included,
accused 1, 2
and 4. The assailants wielded firearms, including pistols and pump
guns.  The visibility was clear.  At
the stage when the
names of defaulting recyclers was called out, the witnesses were
about three-quarter metres from the accused,
and during the shooting,
the witnesses observed the accused from about twenty (20) metres.
Immediately prior to the shooting,
the accused and witnesses were
mingling, and moving around on all sides including the faces.
They all worked there. The faces
of the accused were not covered. The
view of the witnesses was not obstructed in any way, and observed the
accused on at least
two (2) occasions.  Importantly, the
witnesses had prior knowledge of the accused as they used to seeing
them at the dumpsite,
their common workplace.  It was not in
dispute that the accused used to guard the witnesses at the dumpsite
whilst in possession
of firearms.  This was an almost daily
occurrence.  More importantly, some of the witnesses pointed out
the accused at
the subsequent identification parade. Accused 1, 2 and
4 were so identified.  Accused 1 also pointed out to Captain
Sebogodi
a dead body, a nd as showed by the photographs, Exhibit “V”,
and as a result of the trial-within-a-trial. The state
witnesses
corroborated each other on material aspects.  In these
circumstances, the identification was not only reliable,
but also
corroborated, see
S v Charzen, supra.
The witnesses
displayed extreme honesty in that they testified that they only heard
the sounds of gunshot, not that they
saw who shot at the deceased.
The only reasonable inference to be made was that it was the
identified accused who shot and
killed the deceased, see
R Blom
1939 (1) 188 at 272, and related cases.  The admitted
post-mortem examination report, Exhibit “B”, gave the
cause
of death as, “
perforating gunshot wound of the head
and neck …
” The implicated accused, placed
themselves on the scene.  However, their respective versions in
denying involvement
in the murder and related crimes, were not
reasonably possibly true.  In fact, these versions were false.
As stated
above, there was plainly no evidence implicating accused 3
in crimes under discussion.
[76] The evidence led in respect of Counts 7 to 11, was extensive.
I have, after several days of agonising, come to the conclusion
that,
the evidence of Warrant Officer Msibi, in spite of the limited
questionable aspects defined above, as well as the evidence
of
Warrant Officer Moja, and in respect of exactly what transpired at
the fourth crime scene on 1 June 2017, must be accepted as
reliable.
There was no convincing reason to suggest that these senior officers
attempted to mislead the court – in
any way.  Their
evidence, in at least three (3) aspects, was not only corroboratory,
but also corroborated by other evidence
sufficiently:  that is
that, the shooting of assailants of the police commenced much earlier
that morning than what the accused
collectively wanted the Court to
believe;  the accused ran up the hill with other suspects whilst
shooting at the police;
the police quite uncharacteristically,
never returned fire;  the K9 Dog Unit arrived as backup;
the four suspects captured
on the hill turned out to be the four
accused before court; and that the accused were injured by dog bites,
which was confirmed
by all the accused, although for additional
reasons of alleged assault.  Warrant Officer Moja in particular,
made no attempt
to implicate any of the accused by testifying that
the fleeing suspects were shooting at the police generally. For this
reason,
the count of attempted in respect of Warrant Officer Moja, as
stated, could not be sustained.
[77] Sgt Naidoo and Captain Rapoo, captured accused 1 in possession
of a 1 x 9 mm pistol firearm with serial number 49101498, containing

1 x 7 live rounds of ammunition. The latter firearm was seen falling
from the front part of the accused’s body. Visibility
was once
more clear.  In respect of accused 2, Captain Rapoo, testified
convincingly, and credibly, that, he found in the
possession of the
accused, a shotgun with serial number AM 34077, with five (5) live
rounds.  Accused 2 was lying over the
firearm on discovery.
This is one of the firearms referred to in Counts 9, 10 and 11, in
spite of the accused’s protestations
to the contrary.  The
firearm together with the third firearm and ammunition, were booked
into the SAP 13, with entry number
1545/17 by Constable Kgatlampe and
Constable Motswana, and contained in Exhibit “Q”.
The firearms were linked
ballistically to the relevant crimes, as
mentioned elsewhere in this judgment.
[78] Prior to reverting to the evidence of Warrant Officer Msibi and
Warrant Officer Moja and others at the crime scene, I must
complete
the evidence led in regard to the firearm mentioned in the preceding
paragraph.  It should be recalled that the state
witnesses,
Ngcombolo and Dladla testified that they were robbed of,
inter
alia
, a shotgun firearm with serial number AM 34077 on 2 March
2017.  However, they were unable to identify the robbers.
However, this firearm was eventually found in the possession of
accused 2 on 1 June 2017.  It was later identified as the
property of Imvula Security Company by Chauke, at the instance of
Warrant Officer Msibi.  Based on the principle that theft
is a
continuing crime, the implicated accused persons, ought to be
convicted of the crime. (See CR Snyman,
Criminal Law
, 6ed, pp
500-201, as well as the cases therein cited.
[79] In regard to Counts 12 and 13, the unlawful possession of a
Norinco pistol semi-automatic firearm with serial number 666669,
as
well as the accompanying ammunition, Constable Kgatlampe and
Constable Motswana found in the possession of accused 3 and 1 x
9 mm
pistol with the same serial number, namely number 666669, containing
1 x 16 live rounds of ammunition.  The firearm was
in the
accused’s hand, and was later handed into the SAPS 13/1545/2017
at the Johannesburg Control Police Station. Accused
4 was later
arrested but had no firearm in his possession.  Both accused 3
and 7 had dog bite injuries.  This was common
cause.  On
the credible evidence, accused 1, 2 and 3 had no licenses to possess
firearms and/or ammunition.  They were
therefore plainly in
unlawful possession.  The firearms were stolen factually.
[80] I have already dealt with the evidence of Warrant Officers Moja
and Msibi.  The evidence of Moja, although corroborative
of the
evidence of Msibi in other respects, could not sustain a charge of
attempted murder in respect of him (Count 14).
All the accused
must therefore be acquitted on this count.  However, Warrant
Officer Msibi, whose evidence the Court accepts,
testified how he
went to the Genesis dumping site to trace accused 1 who was a suspect
in the murder incident.  State witness,
Rethabile, who was known
to accused 1, pointed out accused 1 to the police.  Thereafter
all the accused separated from a huge
crowd, and ran up the hill.
The accused were pursued, as mentioned before.  The accused
fired several shots at Msibi
and the police.  The accused were
captured by the K9 Dog Unit using dogs.  The accused possessed
firearms, and they shot
at the police once more.  Warrant
Officer Msibi, although questionable in certain respects, accused the
Court that he was
certain about the identity of the four accused;
that same accused who were pursued were the accused arrested by the
K9 Dog Unit;
he identified them during the chase, and after arrest;
they were at the police, including of Msibi.  Indeed, the
evidence
of the accused, and to a lesser extent that of accused 3,
was that they were pursued by the police, they therefore corroborated

the evidence of Warrant Officer Msibi.  The accused dog bit
injuries, which could only emanate from dogs under control of
the K9
Dog Unit police. The bare denials of the accused that they were in
possession of firearms, and shooting at the police, were
untruthful
and false. All the accused were arrested in the same vicinity.
Accused 1, 2 and 3 were found in possession of
firearms and
ammunition.  In addition, as more dealt with below, accused 1
and 4 were found to have gunpowder residue on their
hands. The
accused should all be found guilty in respect of Count 15, as well.
[81] I have already dealt with the final count, Count 16.  It
will be recalled that state witnesses, Ephraim Dladla and Mkhize,

identified accused 2, 3 and 4 as part of the robbers. In addition,
accused 2 and 4 were pointed out at the identification parade
by
their faces.  In all the circumstances of the case, the
identification was not only reliable and trustworthy, but also

corroborated by other credible evidence.  Accused 1 was not
pointed out at the identification parade, but the identifying
witness
recalled him in court.  (See,
inter alia
,
S v Matwa
2002 (2) SACR 350
(E).)  However, the evidence of Ephraim Dladla
was particularly corroborated by other objective evidence in the form
of the
1 x 9 mm pistol, with serial number 49101498, which was found
in the possession of accused 1, some eight (1 x 8) days after the

robbery, and in respect of which firearm accused 1 was linked to
other offences committed with his co-accused. The firearm was
robbed
and retrieved in the area of Johannesburg. It follows therefore that
the doctrine of recent possession was applicable to
accused 1.
See in this regard
R v Sikosana
1960 (4) SA 723
(A);
S
v Shabalala
1999 (4) All SA 583
(W); and
S v Matola
1997
(1) SACR 321
(B).  All in all, from the above, it follows that
all the accused ought to be convicted in respect of Count 16, as
well.
FURTHER
PROPER ANALYSES OF ACCUSED EVIDENCE
[82] As gleaned from the evidence, the versions of the accused, based
on are denials, particularly in respect of Count 7 onwards,
and
alibi
defences on the other counts; were not convincing or satisfactory
all, and therefore not reasonably possibly true. This in the
light of
the entirety of the evidence, considered holistically and in
accordance with the applicable legal principles enunciated
above.
The accused, collectively and individually, were by far incredible
and unconvincing.  I must elaborate, accused
1, and in
particular during the trial-within-a-trial, started lying from the
onset; he had several versions followed by the introduction
of new
ones, whenever it suited him, his versions about his movements from
Enkomeni, Mpumalanga, and to Gauteng
vica versa
, were
startling and inconsistent; he was not truthful about where exactly
he worked at the Genesis mine dumping site; he even denied
the
obvious, like denying that he was captured by K9 Dog Unit police
dogs; and the list was not exhaustive.
[83] Accused 2 on his turn, like the rest of the accused, was also
not impressive and truthful with the Court.  I have already

dealt with his prolix version in evidence-in-chief.  He
testified from about 12 o’clock on 27 August 2018 to about
15h00.  He was lying. He denied the obvious, namely what he was
carrying and selling at the mine dumping site.  He was
extremely
evasive.  He, like his co-accused, blamed his counsel for the
various new versions introduced in cross-examination,
he lied about
how, and for how long he was hiding on the hill before captured; and
spectacularly, not only about the police after
arrest making him
handle a firearm by forcing him to insert his finger into the
trigger, but also about the police making them
lie on the ground,
placing firearms next to their heads, and taking photographs; the
list was not exhaustive. Accused 3 was no
better as a witness.
He too lied to the Court on numerous occasions.  He only
collected dumped steal metals, but not
at the mine dump site called
Genesiss named by the credible evidence.  He denied his address,
namely, the Booysens Squatter
Camp, as recorded by the police on the
indictment.  He attempted like some of his co-accused, to
minimize his knowledge and
involvement of his co-accused in these
crimes. He lied about his
alibi
defence of being in
Embalenhle, Secunda, where it suited him. It was not clear whether he
came to Johannesburg already in 2012
or later. He changed his
versions several times, and introduced new ones when the proverbial
shoe started to pinch.  I have
alluded to the demeanour and
evidence of accused 4.  He was excessively talkative.  He
also commenced lying from inception.
He was, in the view of the
Court, probably the most aggressive and uncontrollable witness ever
seen.  He was truly hostile
to all. He refused to reveal his
full address.  He in fact, he attempted to minimize, not only
his involvement in the crimes,
but that of his co-accused.  He
could never be believed by any reasonable court.  In the end,
the Court was more than
satisfied that all the accused were
untruthful, and misleading whenever they were implicated. I rejected
confidently, their respective
versions as false beyond reasonable
doubt. They all literally chose to deny the obvious – the
incriminating evidence. The
circumstantial evidence against the
accused, where applicable, was simply too overwhelming against the
accused, and from which
the only reasonable inference to be made, was
their involvement in the crimes, beyond reasonable doubt, where
proved. In regard
to the firearms, and where they were all
implicated, they possessed these jointly. See
S v Mbuli
2003
(1) SACR 97
(SCA).
THE
EVIDENCE OF GUNSHOT POWDER RESIDUE
[84] Prior to concluding, I was compelled to deal briefly with one
other aspect in proper perspective.  That was the question
of
the reliability on the evidence of the gunshot powder residue (GSR)
in this case.  To this end, I had requested counsel
to properly
research the matter and assist the Court in arriving at a correct and
just decision on the evidence presented in this
matter.
Regrettably, the heads of argument were not entirely helpful in this
regard.
[85] Indeed, thus far in our law of evidence, the principled and
traditional approach to the evidence of GSR was simply that:

once it was proved, after a shooting incident, that the suspect had
gunshot powder residue on his/her hands or body, the suspect
was,
inexorably and inextricably linked to the shooting, depending on the
nature of the inquiry.  However, this approach is
not that
simple and free of problems as shown below.
[86]
In an article titled, “
Guide
to Gunshot Residue Sampling and Analysis
”,
by Allison Martha, Forensic Department Manager
(amartha@rjleegroup.com) (RJ Lee Group), and from which I must quote
extensively,
the following is said:
“
Gunshot Residue is the particulate that is expelled from a
firearm when it is discharged. This particulate is going to be made
up
of lead, barium and antimony, the three elements found in the
primer mixture of a bullet cartridge.  The particulate will
escape from the gun from any available opening in the form of a
vaporous plume. The plume will then solidify into fine particles
and
seal on surrounding surfaces.  The particles that deposit on the
surfaces surrounding the discharge of a firearm can be
classified
into three categories. When lead, antimony and barium combine or fuse
into a single particle, it is defined as being
GSR. Any particle with
two of the three elements lead, barium and antimony is classified as
a two component particle. Any particle
with only one single element,
lead, barium or antimony is classified as a one component particle.
At time passes from the
moment an incident occurs, the subject
containing potential GSR particles can have particle loss due to
activity and movement.
Officers collecting from subjects need
to be especially cautious as they and their surroundings can GSR.
Therefore wear gloves
and be aware of potential contamination sources
around collection area.  It is not uncommon to find only one or
a few GSR
particles, and you don’t want to be a possible source
of these particles when sampling hands use Scanning Electron
Microscope
(SEM) gunshot residue collection kits.  These kits
contain clear plastic vials with SEM sample stubs.  The stubs
will
have an adhesive collection surface used to collect particulate
from a subject’s hands.
”
The article also deals with what is termed Frequently Asked Questions
(FAQ’s).  The answers given come to the following:

once a kit is collected and stored as evidence the collected
particulate will not disappear, disintegrate, or go bad.  The

analysis on a 10 year old kit will show the same results as if the
kit were analysed immediately after collection;  particles
can
be lost through environmental conditions including wind and
rain-movement of the subject such as running, washing of hands,

putting hands in pockets, laundering of items of clothing, shaking of
items of clothing; the presence of GSR on a person can be
explained
by three possibilities; namely, that the person discharged or
firearm, that the person was in close proximity to a discharging

firearm, and that the person came into contact with something that
contained GSR.  The article also instructs that the fact
that
there was lack of GSR, does not mean that a suspect did not discharge
a firearm, due to the fact that particles can be lost.
And
finally, that Prime residue is what is referred to when speaking of
GSR, it is the mixture of lead, barium and antimony that
originates
in the primer cap of a cartridge, whilst powder residue refers to the
particulate produced by the gunpowder in a cartridge.
This
particulate will be nitrogen based as gunpowder is typically made up
of nitro-glycerine and nitrocellulose.
[86] In
S v Botha
2017 JDR 1769 (SCA), the appellant was
convicted of murder read with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
. The State’s case (as in
certain respects in the present case), was based on circumstantial
evidence. The Court had to apply
the all enduring logic as stated in
R v Blom
,
supra
.  There the appellant went to bed
with her husband, the deceased, and the following morning he was
dead.  The appellant
tested positive for the primer residue and
the deceased did not, even though he had allegedly fired two (2)
shots to his own head,
in the process of killing himself. In the
light thereof, the Court
a quo
(the High Court), concluded
that she had a case to answer.  The Appeal Court found that the
version of the appellant was improbable
and false in several
respects, and as to how exactly the shooting occurred.  The
Appeal Court came to the conclusion that,
having considered the
totality of the evidence, the probabilities and improbabilities, that
the version of the appellant was false,
and that the Court
a quo
could not be faulted for rejecting her version. The appeal was
dismissed.  In
S v Barnard
2018 JDR 0159 (Nm), the
accused was charged with murder.  At the time of the incident,
the accused was married to the deceased.
It was alleged that
the couple was alone at home.  Whilst they were watching
television an argument ensued between them over
a South African
political leader, and the accused shot the deceased in the head with
a firearm.  One of the state witnesses
conducted a prime residue
test at the scene.  The prime residue test was conducted to
detect any gunpowder after a shooting
incident.  It was
conducted on the deceased and the accused.  The residue kits and
the forms that accompanied the kits
was also filled in. There were
two (2) prime residue kits for the deceased and for the accused.
The residue kits were taken
to the laboratory for forensic analysis.
The findings of the analysis were that both the accused and the
deceased had primer
residue on their hands.  The deceased had it
on both hands whilst the accused had it on his left hand.
According to
the expert witness, for prime residue to be found on the
accused and the deceased’s hands means that both the accused
and
the deceased were adjacent to the firearm at the time of the
firing.  The expert could not identify the shooter, but
expressed
the view that it was possible that the accused held the
firearm with both hands and one hand, for example the left hand
shielded
the right hand, one will not expect to find gunpowder
residue on the right hand.  The deceased had more gunpowder on
both
hands comparing to the gunpowder found on the accused’s
one hand. In cross-examination, the defence sought to draw inferences

that because the deceased had gunpowder on both of her hands, and
that the accused had lesser prime residue, an inference could
be
drawn that it was more probable that the deceased shot herself. The
State’s expert witness conceded that, other hypotheses
were
also possible.  It was further suggested that because there was
more prime residue on the left hand of the deceased and
the entry
wound was on the left side of the deceased’s hand, an inference
could also be drawn that the deceased shot herself.
The Court,
came to the conclusion that, the fact that the possibility of suicide
on the part of the deceased was ruled out since
the state witnesses
testified that nothing was found disturbed at the scene, and that the
suggestion that the deceased had committed
suicide because of the
gunpowder residue that was found on both her hands, was not the only
reasonable inference to be drawn from
the proven facts. The accused
was duly convicted of the murder.
DISCUSSION
ON GUNSHOT RESIDUE (GSR
)
[87] I have deliberately extended the judgment in dealing at length
with the issue of Gunshot Residue (GSR), and on which much
has not
been researched and written, purely in order to ensure that the
correct verdict was pronounced in the present matter.
Indeed,
there are other foreign and international research articles, some of
which are critical, and sceptic about evidence of
GSR, and recommend
a cautious approach thereto, which are all rather instructive.
For example, in
Forensic Sciences, Critical Review Criminalities
(available on line at: onlinelibrary@wiley.com), at page 13, the
learned authors opined that, “
the presence of GSR on an
individual
is not exclusively indicative of firearm discharge
…  Investigations have high-lighted the possibility for
GSR to undergo
secondary, and even tertiary, transfer (62) and also
the potential for GSR particles to deposit onto an individual walking
through
a recently contaminated area
”.
[88] Back to the present matter. The facts in the above case law are
obviously distinguishable from the facts in the present matter.
The
taking of the samples from the accused, the storage, the
transportation and analysis thereof were not seriously challenged.

The only lame challenge emanating from accused 1 and 4, was that at
the time of the taking of the samples, the accused still had
blood on
their hands as a result of the dog bites, and that this could have
led to the compromise and possible contamination of
the samples.
No authority was proffered to the Court for the proposition, neither
could I find any in my extended research.
Other than the above, the
accused implicated merely denied the results of the GSR analysis, and
failed dismally to explain why
it was found present on their hands. I
must accept the results of the GSR analysis in these circumstances.
There was no counter
expert testimony presented.  I must also at
this stage, make the specific finding that, the murder allegations,
where the
accused were proved to be involved, showed that the murders
were not only pre-planned, and pre-meditated, but also carried out
with precision and in pursuit of a common purpose, all seemingly
based on the rivalry and competing interests and rivalry at the

Genesis mine dumping site.
ORDER
[89] In the result the following order is made:
1.
Accused 1
(Mopedinyane
Francis Mokoaela) is hereby found guilty in respect of Counts 1, 2,
3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16.
He is found not
guilty and discharged in respect of Count 14.
2.
Accused 2
(Setene Lei), is
hereby found guilty in respect of Counts 1, 2, 3, 7, 8, 9, 10, 11,
12, 13, 15 and 16.  He is found not guilty
and discharged in
respect of Count 14.
3.
Accused 3
(Setlaba Lefa
Emmanuel) is hereby convicted in respect of Counts 7, 8, 9, 10, 11,
12, 13, 15 and 16. He is found not guilty and
discharged in respect
of Counts 1, 2, 3 and 14.
4.
Accused 4
(Morobi Thabiso)
is hereby convicted in respect of Counts 1, 2, 3, 7, 8, 9, 10, 11,
12, 13, 15 and 16.  He is found not guilty
and discharged in
respect of Counts 4, 5, 6 and 14.
________________________________________
D S S MOSHIDI
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Counsel for accused 1 and 4

Adv V D T Nolutshungu
Instructed by

Johannesburg Justice Centre
Counsel for accused 2

M Buthelezi
Instructed by

Johannesburg Justice Centre
Counsel for accused 3

P Milubi
Instructed by

Johannesburg Justice Centre
Date of hearing

31 July 2018
Date of judgment

3 September 2018
Counsel for the State

J M Serepo
Instructed
by

DPP, Johannesburg