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[2018] ZAGPJHC 620
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S v Masilela (SS005/2018) [2018] ZAGPJHC 620 (20 September 2018)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO
: SS005/2018
DATE
:
2018-09-20
In the
matter between:
THE
STATE
and
WANDA
MASILELA Accused
J U D G M E N T
DU
PLESSIS J
: This is the judgment in
the matter between the State and Masilela Wanda.
[1] Mr Masilela, the accused is 27 years of age. He is charged
as follows:
Count 1
:
Murder. It is alleged that on 30 May 2017 and at or near
Bryanston in the District of Johannesburg North the accused
unlawfully and intentionally killed Mandla Zulu, an adult male,
hereafter referred to as the deceased.
The state relies on the minimum sentence
provisions contemplated in Section 51(1) of Act 105 of 1997.
Count 2 and 3
:
Kidnapping, in that on the same date and at or near the same place
the accused unlawfully and intentionally deprived the
deceased and
Nthombikayise Lethukulu Zulu, the deceased wife of their freedom of
movement by forcing them to drive around in the
deceased vehicle.
Count 4
:
Robbery with aggravating circumstances as defined in Section 1 of Act
51 of 1977, committed on the same date and place mentioned
in count
1.
It is alleged that the deceased Range Rover motor vehicle with
content a cell phone and wristwatch were robbed. The state
further relies on the minimum sentence regime provided for in Section
51(2) of Act 105 of 1997.
Count 5
: The
illegal possession of a firearm in contravention of Section 3 of Act
60 of 2000.
Count 6
: The
illegal possession of ammunition in contravention of Section 90 of
Act 60 of 2000.
[2] The state alleges that the accused and others acted in a
furtherance of a prior criminal agreement to commit the alleged
offences.
The state is represented by Mr Serepo.
[3] The accused was legally represented throughout the trial by Mr
Mphanza on instruction of Legal Aid SA.
[4] Before the accused were asked to plead Mr Mphanza confirmed that
he had explained the applicable minimum sentence provisions
to the
accused. I never the less again explained it to him and he
indicated that he understood.
[5] The accused pleaded not guilty to all counts. He gave a
plea explanation in terms of Section 115 of Act 51 of 1977 to
the
effect that on 30 May 2017 at all relevant times he was at his home
in Naturena. He denied any involvement in the offences.
[6] The accused made certain admissions in terms of Section 220 of
Act 51 of 1977, which are contained in EXHIBIT A.
[7] The following are common cause:
A. The identity of the deceased.
B. The cause of death of the deceased being a gunshot wound to the
abdomen.
C. That the deceased and/or Nthombikayise Zulu were robbed of a cell
phone, wristwatch and a Range Rover motor vehicle.
D. That Sepatu Motsima stayed at […]
Complex in Midrand.
E. That the cell phone number […]95 was used on 30 May 2017 to
open the gate at the aforementioned complex as per the report
and
testimony of Heloise Heystek.
F. The call data cell phone number location as per the MTN report and
the evidence of Chrishan Pillay.
G. That the accused was pointed out by Nthombikayise Zulu at an
identity parade.
H. That upon the recovery of the aforementioned Range Rover it had a
bullet hole through the driver’s side window.
I. The contents of the ballistic reports that were
admitted.
[8] The crisp issues to be decided are as follows:
A.
Whether
or not the accused was one of the perpetrators who robbed the
deceased and his wife and killed the deceased on that faithful
evening.
B.
Whether
the accused kidnapped the deceased and his wife as alleged.
C.
Whether the accused
at the time illegally possessed a firearm and ammunition.
[9]
I now deal with the state case. Ms Sepatu Motsima testified
that she and the accused were in a love relationship from
January
2017 to 23 May 2017.
He visited her
regularly at […] Complex in Midrand. Access to the
complex is obtained by either a tag that opens the
gate or via a call
from the intercom at the gate to the unit of the resident.
This intercom was operated by the security at the
gate. When a unit number is called to cell phone numbers
registered against
that unit is called. The gate is then opened
by the person whose cell phone number was called in this manner by
pressing
the number 9 on the cell phone.
[10] According to Ms Motsima she shortly after the start of her
relationship with the accused registered his cell phone number
against her unit number. She related the cell phone number of
the accused from memory as being […]95.
[11] The morning of 30
th
2017 she went to visit her mother
for two weeks and was not at home during that time. She had no
contact with the accused
after 24 May 2017.
[12]
Ms Zulu testified that on 30 May 2017 at approximately 20:30 she and
the deceased visited her mother in the Sandton Clinic.
On their
way home in Bryanston whilst the deceased drove their Range Rover
motor vehicle the way was blocked by another vehicle
and the deceased
had to stop.
This was in Quorn Street near
Farm Street. They were approached by two males with firearms
who got out of the front and left
back passengers seats of their
vehicle. The one who alighted from the front of the vehicle
came to her side. The other
one went to the deceased side.
The accused alighted from the right back passenger seat. He was
standing in front of
the deceased vehicle facing towards them.
[13]
The perpetrator on Ms Zulu’s side ordered her to open her
door. She looked at the deceased and he reached for the
vehicle’s gearlever. The perpetrator on the deceased side
was pointing him with a firearm and at that moment shot at
him once
through the closed driver’s window.
She
and the deceased then opened their doors and got out of the vehicle.
She was instructed to get into the left back of the
vehicle and to
kneel in the footwell facing towards the right of the vehicle.
[14]
The deceased attempted to runaway, but was caught by two of the
perpetrators, brought back to the vehicle and placed on the
right
back passenger seat. The one perpetrator also got into the back
of the vehicle next to the deceased.
The
accused got into the driver’s seat and the remaining
perpetrator got into the left front passenger seat.
[15]
According to Ms Zulu she could see the deceased clearly while the
accused clearly while he was standing in front of their vehicle
with
the headlights shining upon him. There was also a street light
shining nearby. She also from her position could
see the left
side of his face where he was sitting in the driver’s seat of
the Range Rover.
The vehicle’s roof
lights back and front automatically goes on when the doors are
opened. It illuminates the inside
of the vehicle.
[16]
The perpetrators drove off with her and the deceased. During
the drive the accused from time to time talked to the left
front
passenger. In doing so he turned his face in that direction and
she could observe him by means of the street lights
and other
vehicles headlights as they passed.
The
streetlights were about 6 meters from the vehicle and the
illumination was good. Ms Zulu begged to be dropped off, but
her pleadings were disregarded.
The
deceased health at some stage started to deteriorate. They were
at one time driving along William Nicol Road. Eventually
they
were dropped off on a house driveway.
She
had to assist the deceased as he was weak. In the process she
asked the accused not to reverse as the deceased legs were
still
under the vehicle. She managed to get him away from the
vehicle. She then noticed that the deceased had been shot on
the
right side of his upper body.
[17] After the accused and his co-perpetrators drove off she summoned
help and the deceased was taken to hospital where he passed
away as a
result of the gunshot wound.
[18]
Ms Zulu observed the accused for approximately a minute and a half
while he was standing in front of the vehicle in the light
produced
by the vehicles headlights. He was about 5 to 6 meters away
from her. His face was not covered.
He
was not armed. During the drive around she observed his face
about six to seven times when he talked to the front passenger.
Each of these times the duration of observation was a few seconds.
At other times she could see the left side of his
face. She and the deceased were in the vehicle with the accused
and his
co-perpetrators for approximately 20 minutes.
[19] Ms Zulu described the firearm with which the deceased was shot
as about 9cm long. The other firearm was about 1 meter
long.
The deceased was shot through the closed driver’s side window.
[20] The deceased was also robbed of his cell phone and Breguet
wristwatch. The value of the watch was about R200 000.
The cell phone and watch were not recovered.
[21]
Ms Zulu later attended an identification parade at Alexandra Police
Station where she identified the accused. She did
not know the
accused before the incident.
She did not
again see him before the identification parade was held. She
also did not see his photo in the newspapers.
The album of
photos taken at the parade was admitted as EXHIBIT H.
[22] Ms Zulu identified the deceased Range Rover depicted in the
photo album, EXHIBIT D of the scene where it was found in the
Fountain View Complex.
[23]
Mr Valerie Marella testified that she is a security officer at the
Fountain View Complex. She and her colleague, Mr Thabethe
were
on duty at the gate of the complex during the evening of 30 May
2017. They were responsible for access control.
During
that evening a red vehicle arrived at the gate and stopped in front
of the guardroom.
The accused alighted from
the vehicle and told her that he resides in Unit 172. He
explained that he was a new tenant and
did not yet have a tag to
enter, but that his cell phone is registered against the unit.
She thereupon called Unit 172 through
the intercom and his cell phone
rang. He gained access to the complex. When he exited
after about 10 to 15 minutes
she again assisted him in opening the
gate.
[24]
When Ms Marella assisted the accused to enter the complex he was
about 2 meters from her. They were facing each other.
They were about 3 minutes in each other’s company. When
he exited they were about 1 meter apart.
The
outside of the guardhouse was illuminated by electric lighting and
visibility was good. When she assisted the accused
Mr Thabethe
was inside the guardhouse. She did not see when the Range Rover
entered the premises as she was also patrolling
the complex.
[25]
Mr Thabethe testified that during the evening of 30 November 2017 he
saw the accused arrived at the complex with a red Isuzu,
light
delivery vehicle. He was inside the guardroom about four to
five paces from the accused.
He heard the
accused telling Ms Marella that he resides in Unit 172. She
assisted him by means of his cell phone. When
the accused
exited a couple of minutes later the accused was about 2 meters from
him.
[26]
About 10 minutes after the accused left he arrived at the visitors’
gate, driving a black Range Rover. The witness
went to assist
him and the accused told him that the vehicle is giving him problems
and that he is going to park it. He was
about 2 meters from the
accused. There was an electric light about 2 meters from the
accused right side.
He observed the accused
for about 20 seconds. The accused drove into the complex and
returned about 5 minutes later in foot.
He walked past the
witness who was then in the guardroom. He could see the accused
face. The accused was about 4 meters
from him when he passed
him.
After the accused had exited a
silver or light coloured motor vehicle arrived and picked him up.
The previous witness was
not at the guardhouse when the accused
arrived with the Range Rover and left shortly thereafter. Mr
Thabethe identified the
Range Rover depicted in EXHIBIT D as the
vehicle in which the accused arrived at the visitors’ gate.
[27]
Mr Chrishan Pillay from the cell phone company MTN testified to the
effect as per EXHIBIT J2, that the cell phone number […]95
was
in the vicinity in Bryanston when the robbery occurred.
It
was also later in the Midrand area which is where the Range Rover was
found. The call data also showed that there was communication
between this number and Ms Motsima’s cell phone number. The
cell number referred to above was RICA in the name of Margarita
Stober.
The witness explained that this
does not necessarily mean that it could not have been in use by
another person. These registrations
were not always up to
date. This witness’s evidence was not disputed.
[28]
According to the evidence of Ms Heloise Heystek, who testified about
the security and access system used at Fountain View Complex
and as
per EXHIBIT M, Unit 172 was dialled on 30 May 2017 at 23:39:01 and
that access to the complex was granted at 23:40:07 and
23:55:42 by
cell phone number […]95.
Access to
Unit 172 was again granted by the same number on 31 May 2017 at
00:02:39. This evidence was also not disputed.
[29] The undisputed evidence of Ms Sia Raubenheimer and Warden as per
among others EXHIBITS K1 and K2 of the movement of the deceased
Range
Rover through its tracking devices indicates the route followed
during the night of 30 May 2017 and where it was eventually
found on
31 May 2017 in the Fountain View Complex.
[30] I am not going to deal with the evidence of Sergeant Bodiba and
Constable Moyela as they evidence does not materially contribute
to
the outcome of the case.
[31]
The ballistic reports that were admitted by the accused as correct
only contributed in so far as it indicates that the cartridge
case
found on the scene of the robbery where the deceased was shot is of a
9mm parabellum calibre and was fired by a centre fired
firearm.
It was admitted that the cartridge case referred
to in the ballistic report was found on the scene of crime.
[32]
Warrant Officer Khalane testified about the identification parade
conducted by him on 15 January 2018 and recorded on EXHIBIT
L.
It was not disputed that the accused was
identified by Ms Zulu. According to EXHIBIT L it took her 1
minute to point out the
accused in the line up of 14 people. She
was emotional and cried when she saw him and pointed him out.
It was put in cross-examination that the
Investigating Officer was present at the parade. The witness
denied this. The
Investigating Officer also denied this when he
testified.
[33] Constable Libya, the Investigating Officer testified mainly
about the investigation of the case and that he eventually arrested
the accused.
[34]
I know deal with the defence case. The accused version was that
he was at his home in Naturena when the crimes alleged
were
committed. He denied that he knew Ms Motsima at all and saw her
for the first time when she testified.
He
also never had a cell phone with the […]95 and that Ms
Motsima’s evidence in this regard is a fabrication.
According to him Ms Zulu mistakenly identifies him as one of the
perpetrators. The same applies to the identification of
the
accused by Ms Marella and Mr Thabethe.
According
to him his photo appeared in the newspapers prior to the
identification parade. He was however told by Constable
Lebya
that the photo in the newspapers did not pertain to this case. As a
result he agreed to attend the parade. He also
denied that he
had ever used the surname Nguni, being the surname Ms Motsima
allegedly knew him by.
[35] Evaluation. It is axiomatic that the state has to prove its case
beyond a reasonable doubt. (See
S v van der Meiden
1999
(2) SACR 79
(W) 80 and
S v van Aswegen
2001 (2) SACR 97
(SCA)
101 A). In
Monageng v S
[2009] 1 All SA 237
(SCA) the court
described prove beyond a reasonable doubt as:
“
Evidence with such a high degree of
probability that the ordinary reasonable man, after mature
consideration, comes to the conclusion
that there exists no
reasonable doubt that the accused has committed the crime charged.
(See
R v Mlambo
1957 (4) SA 272
(A) at 738 A and
S v
Phallo and Others
1999 (2) SACR 558
(SCA) 10-11).”
[36] It is triad that the court must consider the evidence put before
it holistically. How to approach the evaluation of
conflicting
versions of state and defence witnesses is well known and was
distinctly enunciated in
S v Radebe
1991 (2) SACR 166
(T).
It does not need repetition.
[37] The state argued that the case against the accused was proven
beyond a reasonable doubt and that he ought to be found guilty
on all
the charges. Comprehensive written heads of argument was
submitted.
[38] The defence also submitted written heads of argument and argued
that the accused version may be reasonable possible true,
that the
state witnesses testifying about the identity of the accused could
have been mistaken and that the cell phone number allegedly
belonging
to the accused was RICA in the name of some other person. I
want to thank both counsels for the heads of argument
submitted.
[39]
In evaluating the evidence of Ms Zulu, the court is mindful of the
fact that she a single witness as to the events of the evening
of 30
May 2017. As such the court has regard to the cautionary rule
that applies in this regard.
Section 208 of
Act 51 of 1977 provides that a court may convict on the single
evidence of a witness. The court may so convict
if the evidence
of a single witness is substantially satisfactory in every material
respect or if there is corroboration.
The
corroboration does not have to link the accused to the crime.
(See
S v Mahlangu
2011 (2) SACR 164
(SCA) and
S v
Mafaladiso
2003 (1) SACR 583
(SCA)).
[40]
The evidence pertaining to the identity of the accused as one of the
perpetrators also requires a cautionary approach.
In this
regard the court is mindful of the judgment in
S
v Mthethwa
1972 (3) SA 766
(A).
The court does not only have to make a finding
about Ms Zulu’s credibility in this regard, but also whether
she is a reliable
witness. (See
S
v Ndika and Others
2002 (1) SACR 250
(SCA) at 256 G). The same cautionary approach applies to the
evidence of Ms Marella and Ms Thabethe.
[41]
Having regard to Ms Zulu’s evidence as a whole and in the
context of a holistic approach to the evidence, I find that
she is a
credible and reliable witness.
She had
ample opportunity to observe the accused in circumstances where there
was adequate lighting. She was also able to
identify the
accused on the identification parade that she attended. She had
no hesitation in pointing him out. The
experience of again
seeing him resulted in her being emotional.
Her
evidence is to some extent also corroborated by the evidence of Mr
Thabethe to the effect that he saw the accused driving the
Range
Rover during the night of 30 May 2017 when he parked it in the
Fountain View Complex.
He and Ms Marella
also had ample opportunity to observe the accused in conditions where
the visibility was good. Ms Zulu’s
evidence was not
adversely affected by cross-examination. Despite the fact that
she at times was very emotional her evidence
was coherent and
uttering of truth.
[42] The evidence of Mr Thabethe and Ms Marella is corroborated by
the evidence of Ms Motsima pertaining to the accused cell phone
number which according to their evidence and that of Ms Heystek was
the number used to gain access to the complex.
[43]
Ms Zulu’s identification of the accused as one of the
perpetrators is also corroborated by EXHIBITS J1 and J2 to the
effect
that the accused cell phone with the number as provided by Ms Motsima
was in the vicinity of Bryanston during the time of
the incident.
This evidence also establishes that this cell
phone number was later in the Midrand area which is where the Range
Rover was found
parked.
[44]
An accused is entitled to be acquitted if there is a reasonable
possibility that his version might be true. That evidence
has
however to be viewed holistically and in context with all the
evidence.
This applies to the evaluation of
the accused alibi as well. The court has in this regard to
consider the totality of the
evidence and its impression of the
witnesses. (See
S v Hlongwane
1959 (3) SA 337
(A) at 340 H- 341 B). I am mindful that there
is no onus on an accused to prove his or her alibi.
[45]
The accused did not impress as a witness. His denial of his
relationship with Ms Motsima in the face of the evidence
given by her
is so improvable that it can without any doubt be rejected as false.
The accused did not farewell under cross-examination.
He
at times became argumentative rather than answering questions.
He wanted the court to believe that he was at all times
willing to
attend the identification parade.
However,
an application to compel him had to be brought in the Magistrates
Court. He opposed this application. The accused
denied
the version put by his counsel, that Ms Motsima was pressurised by
Constable Libya to incriminate him.
[46]
The accused version that he was at home on 31 May 2017 is in the
light of all the evidence a ruse. He could not remember
anything about those days, not even what day it was.
He
merely said that he was home because since his release from prison in
respect of another matter his girlfriend told him to stay
home.
He could not even go to the shop.
It
transpired that his girlfriend worked during the day, but returned
home at around 18:00. However, despite the fact that
the
alleged offences were committed during the night of 30 May 2017 he
chose not to call her to confirm his alibi. The accused
alibi
is rejected as false.
[47]
The state relies on a prior agreement as part and partial of a common
purpose, the perpetrators had in committing in the murder
and
robbery. The defence conceded in argument that the averments by
the state in this regard as set out in the indictment
are clearly a
reliance on common purpose.
The following
facts justify a reasonable inference as the only reasonable
inference, (See
Rex v Blom
1939 AD 188
at 202 ETSEC) that the accused and his four
co-perpetrators had reached a prior agreement to rob the deceased and
to use the firearms
in possession of two of the perpetrators to
overcome any possible resistance if necessary.
They
had a preconceived plan as to how the robbery is to be committed.
They blocked the road with their vehicle at the crime
scene and
forced the deceased in this manner to stop. All the
perpetrators arrived in the same vehicle.
Each
had a role to play. The driver of their vehicle stayed inside
it. Two of the perpetrators approached the deceased
and his
wife where they were now stationary in their vehicle. One of
the perpetrators held the deceased at gunpoint and the
other one did
the same to Ms Zulu. The accused role was to drive the robbed
vehicle.
[48]
All the perpetrators including the accused made common cause in their
conceived plan to rob well knowing that the firearms
were to be used
in overcoming resistance. This clearly encompasses the real
possibility that someone could be killed.
This
is exactly what happened. The moment the deceased attempted to
put his vehicle in gear to get out of the satiation he
was shot by
the perpetrator on his side of the vehicle. The accused was
observing this. When the deceased tried to
run away after
having been shot he was captured and brought back to the vehicle.
The accused thereafter drove away with the
deceased vehicle with the
deceased, Ms Zulu and accused two companions onside it.
It
is obvious that the deceased and Ms Zulu were unwilling passengers.
The accused conduct throughout was part and parcel
of the execution
of the plan. He undoubtedly must have foreseen and therefore
did foresee that someone could be killed.
He
associated himself with the plan and what occurred as a result of the
execution of the plan. He was reckless as to whether
or not
death was to ensue. He therefore had the requisite
mens
rea
also with regards to the murder
charge. (See
S v Madlala
1969 (2) SA 637
(A) at 640 F – H). I have no hesitation
in finding that the offences were committed as a consequence of a
prior criminal
agreement.
[49]
The ballistic report contained in EXHIBIT E indicates that the
cartridge case found on the scene where the deceased was
shot is of
9mm parabellum calibre and was manufactured and design to be fired by
a centre fired firearm.This conclusively proves
that the firearm used
to shoot the deceased was a firearm as defined in Section 1 of Act 60
of 2000. The cartridge case in conjunction
with the bullet jacket and
core found in the body of the deceased are conclusive to a finding
that at least one round of ammunition
as defined in Section 1 of Act
60 of 2000 was possessed at the crime scene.
[50] From the principles enunciated in
S v Mbhuli
2003 (1)
SACR 97
(SCA):
“
It is clear that to convict multiple
accused for the possession of for example an illegal firearm, such a
finding is not to be based
upon the principle of common purpose, but
on the principle of joint possession.”
This
entails that the group must have had the intention
(animus)
to exercise possession of the firearms through the actual detente and
the actual detente had to have the intention to hold the
firearms on
behalf of the group. (See also
S v
Nkosi
1998 (1) SACR 284
(W)).
[51]
Taking into account the planned actions of the accused and his
co-perpetrators.
It is clear that the two
perpetrators holding the firearms were holding them on behalf of the
group in order to execute their plan.
The group had therefore
also intended to possess the firearms through the accused to
co-perpetrators.
[52] In the result I find on a conspective of all the evidence that
the accused is guilty on all the counts. That is counts 1 to
6
preferred against him.
- - - - - - - - - - - - - -
On behalf of the State:
Adv Serepo
On
behalf of the Defence: Adv Mphanza.