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[2018] ZAECBHC 13
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S v Mgushelwana and Another (CC15/2017) [2018] ZAECBHC 13 (30 January 2018)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO: CC 15/2017
In
the matter of:
THE
STATE
versus
LUNDI
MGUSHELWANA Accused
no. 1
KHAYALETHU
MAYAPHI Accused
no. 2
JUDGMENT
STRETCH
J.:
[1]
The
accused have been indicted on two counts of murder, two counts of
robbery with aggravating circumstances and one count of unlawful
possession of a firearm and ammunition.
[2]
It
is alleged that on 3 July 2015, at Thobela Store, Hlebani, in the
district of Whittlesea the accused robbed Biruk Lakew and Steve
Fombe
whereafter they murdered Biruk Lakew and one Bongani Bastyane. They
had firearms in their possession at the time.
[3]
It
is common cause that Lakew (the first deceased) was shot at least
three times in his chest and abdomen during the robbery from
which
injuries he succumbed the same day. Bastyane (the second deceased)
also died the same day from a gunshot wound to his chest.
The
first trial
[4]
The
trial initially proceeded before Malusi AJ, but on 5 June 2017 he
directed that the trial should proceed
de
novo
before
another court. Both accused were represented at that trial by an
attorney referred to as Mr P in the transcript.
[5]
According
to that ruling it appears that a conflict between the two accused
became apparent during the defence case which resulted
in Mr P
withdrawing and Mr McConnachie and Mr Erasmus being appointed for the
two accused respectively.
[6]
After
accused no. 2 closed his case Mr McConnachie applied to re-open
accused no. 1’s case. This was apparently to traverse
inconsistencies between the first accused’s version as placed
on record by Mr P, and his testimony when Mr McConnachie represented
him. After re-opening his case, the first accused also criticised the
standard of his legal representation by Mr P and alleged
that Mr P
did not properly and fully consult with him and his co-accused. Mr P
deposed to an affidavit denying these accusations.
[7]
At
the previous trial counsel for both accused contended that the trial
should be aborted. The prosecutor on the other hand, argued
that
there was no gross incompetence on Mr P’s part, that state
witnesses could be recalled and that it was not necessary
to start
the trial afresh.
[8]
Notwithstanding
this, Malusi J found that an exceptional irregularity had occurred
which had vitiated the entire trial, and directed
that it should
commence
de
novo.
The
present trial
[9]
At
the commencement of the trial before me both accused pleaded not
guilty and denied all knowledge of or involvement in the offences
referred to in the indictment.
The
scene
[10]
Thobela
Store consists of two interleading sections with separate entrances.
The first section consists mainly of shelves and fridges
and is
referred to in the evidence as the shop. The second section consists
of a counter, a fridge and a toilet and is described
as the bottle
store. The bottle store leads further into what appears to be living
quarters.
Steve
Fombe
[11]
The
complainant in the second robbery count, Steve Fombe, testified that
on 3 July 2015 at about 9.30pm he was next to the entrance
to the
shop where he was employed as a cashier. Biruk Lakew (the
deceased in the first murder count), was serving behind
the counter
in the bottle store.
[12]
Fombe
heard a gunshot and saw a person in a blue overall (whom he
subsequently identified as accused number one at a formal line-up),
just outside the entrance to the shop. He and the first accused
observed each other for some time. The first accused pointed a
firearm at him and instructed him to remain where he was. Fombe
however crawled away and ran from the shop through the bottle store
and into the living quarters where he hid himself. There he heard a
second shot going off. He thinks that in total about four shots
were
fired.
[13]
When
all was quiet he ran back into the bottle store. The first deceased
was lying between the living quarters and the bottle store.
He
was bleeding. The deceased in the second murder count (Bongani
Bastyane) was lying on the store’s verandah where customers
used to sit and drink.
[14]
Fombe’s
two cell phones (which were behind the bottle store counter) and in
excess of R25 000 were missing from the store
as well as
cigarettes and other stock.
On
6 August 2015 he pointed out the first accused at an identification
parade without hesitation.
[15]
Fombe
was shown close circuit television (CCTV) footage recorded at the
time when he said the incident had taken place. He identified
a
person in a blue overall brandishing a firearm, as accused number
one. He also identified accused number one as the person placing
a
bottle containing their money on the bottle store counter, helping
himself to cigarettes and later re-appearing carrying bottles
of beer
and a bag.
[16]
The
footage also shows a person (whom Fombe identified as the deceased in
count one), entering the store and being manhandled by
a person
wearing a maroon jacket. A third person wearing a blue cap is seen
rummaging around the area where the bottle store takings
were kept
and taking possession of the cash register. Fombe also identified one
Anele Vumazonke and his brother entering the store.
The footage
depicts Anele helping himself to a bottle of brandy and being
manhandled by the person in the maroon jacket.
According to
Fombe, Anele and his brother subsequently returned items which they
had taken from the store.
[17]
During
cross examination Fombe was challenged about whether he had had
sufficient opportunity to observe the first accused to the
extent
that he was able to identify him without hesitation at a line-up a
month later. Fombe’s response was that he had paid
particular
attention to accused number one (for about two minutes) as he was not
a regular customer and the fact that he was just
standing at the
door, aroused his suspicions. Furthermore, the first accused
and the customer whom Fombe was serving were
the only two
non-employees in the store at the time.
[18]
It
was suggested to Fombe that at the aborted trial, he had testified
that he heard a gunshot coming from outside, whereupon he
went
outside to investigate and saw a man standing at the door. In this
regard the relevant transcript of the record reads as follows:
‘
Then I heard a gunshot
outside … Then I went outside to investigate and I saw a man
standing at the door. Then I peeped on
the door, I saw a man standing
there. He had a gun in his hands. Then I heard a second gunshot in
the bottle store. Then I was
afraid, I started running away. I went
away after the second gunshot … Then I ran and hide myself in
a room in the store…
Let us unpack some few things
properly. You testified that you heard a gunshot and you went to peep
and saw a man with a gun. Am
I correct? --- That’s what I said,
M’Lord.
And where was this man that had a
firearm? --- He was at the door…The door of the shop …
He was wearing the blue overalls
… I managed to peep …
The lights are almost like these ones.
COURT: You
mean fluorescent lamps …? --- That’s correct, M’Lord.
How many lights? --- Eight, M’Lord
… There are eight that are in the shop and outside there are
three. These are security
lights that light so strongly …
When you saw Accused No. 1 how far
were you from him? --- About 5m, M’Lord … He was facing
towards the shop but I saw
him face to face … Yes, he did say
something as I was running, he said, “Stop, don’t run
away.”…
Do you perhaps know if you can
estimate how long did you face him before you ran away? --- It’s
about 2 minutes time M’Lord.
…
MR P:
And you also testified that after the
first gunshot, you peeped … through the door. --- I did not
peep, I just went to see.
Mr. Fombe, did you count these 2
minutes or it was just your estimation? … No I counted the
minutes …
COURT: Mr
Fombe, with regard to the 2 minutes that you say you were there
looking at Accused No. 1, if you were to count 1,
2, 3, 4 up to what
number would you count as you are standing there watching him? ---
When the first gunshot was fired I just stood
up. The I just wanted
to see [inaudible]. M’Lord, I was not expecting such a question
and I never thought I could be asked
such a question, so I’m
now a little bit confused…
I’m now saying, think back to
when you peeped at that door, saw the man, the time it took for to
peep when you heard the second
gunshot, I just want you to say I
would have counted to this number. --- I would have counted 60,
M’Lord. …
Okay. On the day now that you made a
statement to the Police, the Police wrote down your statement, did
you give them a description
of this person you saw with the firearm?
… --- I told them he was dark, short and heavy. And that night
he was wearing blue
overalls … I said, M’Lord, he’s
dark and heavy. He’s not quite tall and not quite short,
medium. And he’s
dark in complexion…’
[19]
It
seems from the transcript them, that Fombe’s previous version
was that he had seen accused number one after the shot was
fired,
whereas his evidence before me was that he had observed him for some
time before the first shot went off.
Siphokazi
Nkwandla
[20]
Siphokhazi
Nkwandla testified that when the incident took place she was drinking
on the verandah. At some stage a stranger wearing
a maroon jacket
(whom she pointed out as accused number two at an identification
parade on 26 August 2015), entered the gate leading
to the outside
premises and joined their table. He told them that he had come from
Cape Town to attend a funeral and that he was
looking for a girl. In
short, he was flirting with Nkwandla and her friend Zikhona. He
chatted to them for 20 to 30 minutes, whereafter
she and Zikhona went
off to the toilet.
[21]
When
they returned he was standing outside the premises talking to two
other men. He then proceeded to the area where the
bottle store
was situated but did not go in. Thereafter, he joined their table for
the second time and continued chatting to them.
[22]
She
recalled that the second accused and the deceased in the first murder
count engaged in an argument at the table where they were
seated. She
could not remember what the argument was about. The first deceased
then went off to open up the bottle store.
Accused number two
got up, produced a firearm from the back of his trousers and fired a
shot in the air.
[23]
While
she and her companion were fleeing to nearby houses, further shots
went off. Once they had reached a safe place, she phoned
the police.
[24]
When
all was quiet they returned to the scene. The deceased in count 2 was
lying face down on the verandah. He had been fatally
shot in the back
of the neck. They found the deceased in count 1 inside the bottle
store. He was lying on the floor, weeping and
holding on to a gaping
wound in his abdomen. He died on the way to the hospital.
[25]
She
identified the second accused on the CCTV footage manhandling the
first deceased as they entered the bottle store together.
She said
that the robber wearing the blue cap in possession of the cash
register looked like one of the two men accused number
two had been
talking to outside. She candidly admitted that she did not observe
accused number one during the incident.
[26]
During
cross examination she testified that the verandah was well lit and
that accused number two sat close to them while they were
conversing.
It was put to her that at the previous trial she had said (through an
interpreter) that it was only after the second
accused had entered
the bottle store, that shots were fired. She denied having said this,
and suggested that there may have been
a misunderstanding at the
previous trial because of the way in which the questions were put to
her.
[27]
She
denied that she partook in a protest at the court where the second
accused first appeared. She said that she did not attend
court at
all. It was put to her that the second accused was working in Cape
Town on the night of the incident, and that it was
not he who
had
told her that he had come from Cape Town to attend a funeral. It was
the erstwhile accused number three. She denied this.
Bonginkosi
Thomas
[28]
Thomas
testified that he sat at Nkwandla’s table on the night in
question and confirmed the presence of the man described
by her as
accused number two.
[1]
His description of what took place thereafter is not entirely
consistent with what Nkwandla told this court. According to Thomas
they heard the first gunshot
after
the man referred to by Nkwandla as accused number two had entered the
bottle store. Thomas explained that he thereafter ran into
the shop
and saw accused number one. He was wearing a blue overall and
brandishing a firearm.
[2]
Accused number one pointed the firearm at them and instructed them to
lie down. He looked at the accused’s face. The accused
repeated
the instruction in an angry tone and Thomas looked at him again,
whereafter he obeyed. He was able to hear the accused
moving around
in the room. He heard him walking towards the door. The accused fired
one shot and exited. He returned and went out
for the second time.
They heard more shots being fired away from the premises.
[29]
Thomas
and one Magopeni (who also worked at the store) went out and saw the
second deceased lying outside. They went back into the
bottle store
and found the first deceased, who was still alive, lying face down on
the floor.
[30]
Thomas
was presented with the CCTV footage and he identified the person in
the blue overall, holding a firearm, as accused number
one.
[31]
During
cross-examination, it was put to Thomas that at the previous trial he
had said that he knew most of the people who were lined
up at accused
no. 1’s identification parade. He agreed that, with the
exception of acc. no. 1 and one other person, he had
seen the others
before.
Exhibits
on the scene
[32]
Sergeant
Ndikolo secured the scene after 9pm on 3 July 2015. The two deceased
were still there.
[33]
Ndikolo
found three spent cartridges inside the bottle store, one in the shop
and two outside. He pointed them out to the official
photographer,
Warrant Officer Dickinson from the local criminal record centre (the
LCRC), who seized and packaged them. Dickinson
did the same with two
further spent cartridges and a projectile fragment which he had
received from Warrant Officer Matshoba the
following day. Matshoba
had found the cartridges inside the bottle store and the projectile
outside. All these items were forwarded
to the LCRC for comparison
and analysis.
Lundi
Mgushelwana (accused no. 1)
[34]
I
will now deal with the chain of evidence relating to accused no. 1.
Between
3 and 4 on the morning of 4 August 2015 Warrant Officer Matshoba,
Warrant Officer Nduna and their crew paid a visit to accused
no. 1’s
parental home in a rural area in Whittlesea. The accused was living
in a room in this house. Nduna and some of these
policemen entered
the premises where the accused was together with his mother and
sister. He explained who he was and the purpose
for the visit. The
accused’s family remonstrated with Nduna, insulting them and
shouting at them. As a result they asked
the accused to accompany
them to the police station instead. He did so. The accused was
taken to Nduna’s office and
Matshoba went back to his own
office.
[35]
According
to Nduna (which the accused denies) he explained to the accused that
he was investigating this case and explained his
constitutional
rights to him. He asked about the accused’s cell phone. By then
Nduna had taken possession of two cell phones
belonging to the
accused. The accused also gave him the number of one of the phones.
In the directory of this phone Nduna found
certain numbers which he
had been looking for and jotted them down on a scrap of paper.
Amongst these numbers was that of accused
no. 2 whom Nduna knew from
before. Accused no. 2’s number was saved as “
Casta”
”
and had been dialled several times. I digress to mention that both
accused deny that accused no. 2’s phone number
was saved in
accused no. 1’s directory, or that they knew each other at all.
[36]
Nduna
also wrote accused no. 2’s address on this scrap of paper.
According to Nduna it was accused no. 1 who had given the
name
“
Casta
”
to them, and that when they arrested accused no. 2 he responded to
this name.
[37]
It
was put to Nduna on accused no. 1’s behalf that Nduna, one
Vuyisile and one Fredericks assaulted him in order to extract
information from him and to induce him to admit involvement in the
crimes in question. This was denied.
[38]
At
some stage Nduna had approached Matshoba and had said that there was
a firearm in the flat outside the main house where they
had found the
accused. They returned to the accused’s house with the
accused. Accused no.1 pointed out a flat adjacent
to the main
house. He obtained a key to the flat from the main house, unlocked
it, opened the door and Nduna, the accused and the
two policemen
named Fredericks and Vuyesile entered.
[39]
The
flat was a two-roomed structure of which the first was a bedroom. It
was clear that it had been unoccupied for a substantial
period of
time. Nduna initially testified that the accused inserted his hand
into a hole on the side of the mattress of a bed in
that room. Out
came a firearm in a plastic bag. The accused handed it to Nduna who
made the arm safe and replaced it in the plastic
bag.
[40]
During
cross
-
examination
(when his own version and that of Fredericks at the previous trial
was put to Nduna), he conceded that it could have
been that the
accused merely pointed out the spot and that it was he (Nduna), who
had physically retrieved the arm. Indeed, this
was also the evidence
of Fredericks not only during the trial before me, but also at the
aborted trial where the following is recorded:
‘
EXAMINATION
BY MR RANTSANE …
Was there any permission from the
accused for you to go and search for whatever information or an
article that was there? --- That
is correct, M’Lord. He
personally told us no, the firearm is there and you can go and fetch
it there, and he almost took
the firearm out the mattress where he
hide it…
Why, if I may ask, when you received
the information regarding these particular exhibits or this
particular firearm, why did you
immediately jump to go and get it
instead of involving a commissioned officer? --- M’Lord it was
about 05:00 in the morning
when
we recovered the firearm
(emphasis
added) and we were scared that maybe now if the occupants of that
house knew where the firearm was, and would have taken
it and
we
would not have found the firearm. So we immediately jumped on that
information and proceed to the house and recovered that exhibit
or
the firearm
(emphasis
added)…
This
particular flatlet was it locked or what is the position
?
How
did you gain entry into it? --- M’Lord, it was not locked. The
accused just pushed the door open and it went open
and we entered the
flat. It was not locked…
The firearm was
in the mattress and there is a cut. The accused wanted to take it out
but I told him not to go there and we took
it out ourselves. The
police took it out ourselves. That firearm was wrapped in plastic …’
[41]
Fredericks
said that after having retrieved it, Nduna opened the bag. It
contained a Norinco Star pistol and five live rounds of
ammunition in
the magazine. The accused was shown the weapon and he said that this
was the firearm he had told them about earlier.
[42]
They
were in the flat for about ten minutes after which they came out and
Nduna, carrying the white plastic bag said: ‘Let’s
go,
we’ve got it.’ Back at police quarters Nduna opened
the bag and produced the pistol with five live rounds.
[43]
These
items were registered in the SAP13 as exhibits and the accused was
detained. Warrant Officer Biko from Queenstown LCRC uplifted
the same
exhibits and delivered them to the forensic science laboratory in
Queenstown.
[44]
The
firearm was ultimately classified by the forensic experts as a
7,62x25 mm calibre Norinco semi-automatic pistol (in working
order)
with serial number 44014465. The forensic experts also positively
linked this firearm to two fired cartridge cases found
on the scene.
[45]
On
that same day Nduna tried to arrange with one Colonel Oranje to take
a confession from the accused, but according to Nduna Oranje
was too
busy right then and advised him subsequently that he had spoken to
the accused who had refused to make a confession.
According to
the evidence of Oranje, Fredericks had phoned him at about 7.30am on
4 August 2015 requesting him to conduct a pointing
out with respect
to accused 1. He interviewed accused 1 just after midday that day. He
advised him of the implications attached
to a pointing out. The
accused informed him that he wanted to contact his attorney so Oranje
aborted the interview. It was put
to Oranje that the interview was
terminated because the accused had told Oranje that he had been
assaulted. Oranje disputed this
and maintained that the reason the
interview was stopped was because the accused had realised the
possible implications of a pointing
out.
[46]
It
is common cause that the accused also confirmed in his warning
statement taken the following day that he had elected to make
a
statement to his lawyer.
Nduna
also arranged for the accused to attend an ID parade and explained to
the accused what this entailed and again explained his
rights to him.
[47]
According
to Warrant Officer Jacobs, who had conducted the parade (and contrary
to the accused’s version), the accused had
indicated that he
did not want a lawyer present. In this regard Jacobs mentioned that
it is customary to give accused persons notice
some time before the
ID parade, in order for them to secure the presence of their legal
representatives in advance. Jacobs also
indicated (and this is
corroborated by Nduna) that the accused had nominated the other
persons on the line-up himself. The accused
denied this and said that
Nduna had selected them. Jacobs said that he was satisfied that the
candidates were sufficiently similar
in appearance. He said that he
was aware that the others were younger than the accused, but was
comfortable that the accused did
not stand out by virtue of his age.
If he was not so satisfied, he would not have proceeded with the
parade. When it was put to
him that there were two mentally ill
persons on the parade, he denied that mentally challenged people were
kept in the police cells.
As
I have said, the accused’s warning statement was taken on 5
August 2015, and significantly reflects an address in Whittlesea
and
another in Cape Town.
It was put to Nduna on
accused number 1’s behalf that he (the accused) had accompanied
the police to Cape Town to show them
where one Sicelo lived.
According to accused no. 1, when he first saw accused no. 2 after his
arrest, he recognised him only as
the owner of a carwash in
Khayelitsha. He did not have accused no. 2’s number in his cell
phone directory. According to Nduna
however, the purpose for accused
no. 1 accompanying them to Cape Town was indeed to point out the
second accused’s home,
whom accused no. 1 said would be able to
show them where Sicelo lived.
[48]
In
short, despite the fact that the two accused denied knowing each
other, it was Nduna’s version throughout that the primary
purpose for accused no. 1 to accompany them to Cape Town was to show
them where accused no. 2 lived, which he indeed managed to
do after
having admitted that the name and the phone number reflected in his
cell phone directory was that of accused no. 2.
[49]
Accused
no. 1 testified in his own defence. He said that he had been
visiting his parental home, where he was arrested, from
about
30 June 2015. This means that he was in the vicinity of the crime
scene at the time that the deceased were killed and not
in Cape Town.
[50]
His
version with respect to what transpired during his arrest differs in
one material respect from that of the prosecution witnesses.
According to the accused, the police had arrived at his parental home
in the early hours of the morning, searched the main house
and
questioned him, and some of them (including Nduna, Fredericks,
Matshoba and Vuyishile) also searched the unoccupied, unlocked
flat
on the same premises adjacent to the house. He added that he had been
in the flat during the course of this visit from Cape
Town and said
it was used for storing an old mattress and some building rubble.
Indeed, his mother even switched on the light
of one of the flat
rooms for those who were conducting the search. He then heard one of
them saying ‘Let’s go! We’ve
got what we are
looking for’.
[51]
They
left the scene and he was taken to the police station where he heard
from the police that they had retrieved a firearm from
the flat
during the search which I have just referred to. Indeed, Nduna even
produced a plastic bag from his locker and told the
accused that it
contained the firearm which they had found in the flat. He did not
dispute that the police recovered the arm in
the flat at his parental
home during this search.
[52]
After
the recovery of the firearm, he was questioned about the whereabouts
of one Sicelo Jiyane and ‘other firearms’.
He was
assaulted during the questioning and was not informed of his
constitutional rights. The police went back to his parental
home for
a second time and took photos. He was in their company when this
happened.
[53]
He
denied that he had pointed out the bag containing the firearm.
According to the accused he saw it for the first time when he
was
taken to the police station and Nduna produced it from a locker. He
said that he saw it before he was assaulted. He did not
know why the
police were assaulting him. All he knew was that they were demanding
guns. He disputed that Nduna took notes while
interviewing him or
that he produced any information about Khasta. He disputed that
Casta’s
number was in his phone directory. He said that he thought that calls
made to a number ending in ‘7756’ (apparently
Casta’s
phone) had been made to a lady he was courting in Queenstown.He said
he told the police this, but did not mention this to his legal
representative at the time that the police testified in this regard.
He denied all knowledge of the second accused and claimed
to have met
him for the first time after accused no. 2’s arrest. He
said that the purpose of his visit to Cape Town
with the police was
to point out where Sicelo lived, which he did.
[54]
He
told this court that he was also not satisfied with the manner in
which the ID parade was conducted and had indicated that he
wanted a
lawyer first. This request was denied. He said that the others on the
line-up were brought in by Nduna. He had eaten with
them during
detention and could see they were mentally ill. They were from a
mental health centre called Fort England. They were
also junior to
him. After the parade he was asked if he was satisfied. Because it
was a
fait
accompli
he
did not complain. He did not mention to Jacobs in advance that others
on the parade were mentally ill and junior to him.
It was
simply his ‘bad luck’ that he was pointed out at the
parade as he had never been to the scene and had had no
contact with
the second accused or Sicelo at the time the offences were committed.
[55]
With
respect to Colonel Oranje, he stated that the colonel had informed
him that he was there to take his confession. He said
that he
had no idea what he was meant to confess to. Oranje asked if he had
been assaulted and the accused said yes and showed
him indentations
on his wrists caused by the handcuffs, and that his left cheek was
swollen. Oranje aborted the interview there
and then. He did not ask
Oranje for a lawyer.
Khayalethu
Mayaphi (accused no. 2)
[56]
This
is the chain evidence with respect to the second accused.
At
about 8pm on 11 August 2015 one Cst. Mvumvu was
patrolling
at a
certain BP Garage in Cape Town.
He was with his partner, Cst. Yalezo. Both these policemen testified
at the trial and corroborated each other in all material
respects.
[57]
Another
policeman had given them a tip off that accused no. 2 (whom they did
not know but who had been described to them) was at
the garage
carrying an unlicenced firearm.
A
person fitting the description of accused no. 2
came walking towards them. When Mvumvu saw that they were members of
the police, he appeared shocked and veered off towards a nearby
ATM.
He entered the ATM cubicle and was in the process of closing the door
when Mvumvu stopped him, introduced himself, instructed
accused no. 2
to raise his hands and requested permission to search the accused.
Mvumvu found an
unlicensed
firearm with the serial number erased on his waist concealed by his
jacket. He also found live ammunition in the pockets of the
jacket.
The accused did not have a licence to possess the arm and ammunition.
[58]
Mvumvu
explained the accused’s rights to him, arrested him and took
him to the local police station. He booked the firearm
and ammunition
into the SAP13 and cross-referenced the serial number with accused
no. 2’s name in the police register. All
this took place in the
accused’s presence.
Under
cross-examination, it was put to Mvumvu and Yalezo on accused no. 2’s
behalf that the firearm and ammunition had been
found in a nearby car
and not on the accused’s person.
[59]
It
appears that the accused was released on bail on charges of
possession of a firearm and ammunition, because on 21 August 2015
Warrant Officers Nduna and Fredericks re-arrested him at his home in
Khayelitsha, Cape Town. Upon his arrest he introduced himself
as
‘Casta’. They found
him
as a result of him having been pointed out to them by accused no. 1.
In turn, accused no. 2 led them to the home of the erstwhile
third
accused.
[60]
I
digress to point out that although the accused himself denies that he
is known as Casta, his criminal record form describes him
as
Khayalethu ‘Casta’ Mayaphi.
[61]
Thereafter
they proceeded to the Harare police station where they seized the
firearm which had been found on accused no. 2’s
waist by the
local police, as well as the rounds of ammunition.
[62]
They
returned to Whittlesea and booked these exhibits into the police
register. After the exhibits had been properly packed and
sealed
Nduna himself took them to the forensic science laboratory in Port
Elizabeth for comparison and analysis.
[63]
The
forensic experts identified the firearm as a 9mm parabellum calibre
Glock model 17 semi-automatic pistol (in working order)
of which the
serial number had been erased, and concluded that it had fired three
of the cartridge cases found on the scene.
[64]
When
he testified, accused no. 2 denied all knowledge of the crimes and
claimed to have been in Cape Town when they were committed.
He said
that although his parental home is close to Butterworth he had never
been to Whittlesea. He also denied all knowledge of
accused no. 1.
After his arrest in Cape Town he appeared in a mobile
courtroom
.
People were demonstrating outside the container and taking photos of
them. He said he appeared in court three times before an
identification parade was held. On each occasion members of the
public were present and he was photographed. He believed that the
witness Nkwandla pointed him out at the ID parade because she could
have seen him in court before.
[65]
He
said that when he was first arrested he had just been given a lift to
the BP garage by one S
q
wero
to buy stock for his carwash. When he exited the shop he saw the
police surrounding Sgwero’s car. He walked towards the
car. The
police asked him whether he had been travelling in the car. He said
yes and added that he had left Sgwero behind in the
motor vehicle.
The police told him that they had found a firearm underneath the seat
in the car and that S
q
wero
had escaped. He told the police that he knew S
q
wero
through the erstwhile accused no. 3. He said that the erstwhile
accused no. 3 (Sicelo) would be able to point S
q
wero’s
house out.
[66]
The
police instructed him to board their vehicle and they set off to look
for Sgwero. He was nowhere to be found so they decided
to return to
S
q
wero’s
abandoned car. Lo and behold, when they returned, Sgwero’s car
had also disappeared. The police asked the petrol
attendants what had
happened to the car. They said a man in a white lumber jacket had
arrived, had boarded the vehicle and had
driven it away. So the
police arrested accused no. 2 instead, loaded him into the police van
and took him to the local police station.
He was subsequently
released on R5 000 bail.
[67]
He
reiterated that only two policemen were present during his first
arrest and denied that the car was surrounded by the police
as was
put to the state witnesses on his behalf. He said he had
used
the term ‘surrounded’ loosely, because there was more
than one policeman.
[68]
He
was arrested for a second time at his house on 21 August 2015. The
police were accompanied by the erstwhile accused no. 3 (Sicelo
Jiyane). The police asked him whether Jiyane’s firearm was ever
found on him. His evidence in this regard reads as follows:
‘
I
told them I wasn’t arrested with Sicelo’s firearm but
with the firearm of Sicelo’s friend, S
q
wero.’
[69]
The
police (including Fredericks) then questioned him about Sada (the
area in Whittlesea where the crimes were committed) and Whittlesea
itself, and he said he had no knowledge of these places. The police
assaulted him and told him about the robberies and murders
at
Whittlesea. They demanded firearms from him and searched his home.
They then informed him that they were arresting him for the
Whittlesea matters. When it was put to him that his attorney had
never suggested to Fredericks that Fredericks had assaulted the
accused, his response was that he told this to his previous but not
to his present attorney. He could also not explain why it was
not put
to Fredericks that Sicelo was present when he was arrested, when
Frederick’s evidence was clear that accused no.
2 was arrested
before Sicelo. All he could say was that he had told his lawyer that
Sicelo had arrived at his home with the police.
[70]
In
response to questioning by the court, he stated that although Sgwero
had visited his carwash regularly, Sgwero and Sgwero’s
car
simply vanished after his first arrest. He even asked Sicelo to take
him to Sqwero’s home, but Sicelo said that Sqwero
no longer
lived there. For some reason the police never asked him for his cell
number when he was arrested, but only for accused
no. 1’s
number. He said that he knew his number at the time of his arrest and
would have furnished the police with it if
only they had asked. He
added that he told his second legal representative that the police
had assaulted him during his second
arrest and was unable to say why
this was not put to the relevant witnesses.
[71]
During
cross-examination his evidence about the purpose and circumstances of
his first arrest completely contradicted his evidence
in chief.
In this regard my notes read as follows.
At your
second arrest on 21 August 2015 you referred the police to
q
gwero’s
firearm? --- Yes.
But the
police say they asked you for Sicelo’s firearm. --- No, the
police said that Sicelo told them that I had been arrested
for
his
firearm. I told the police that the firearm that was found with
me was S
q
wero’s
and not Sicelo’s.”
It is
noteworthy that accused no. 2 used the words ‘the firearm that
was found with me’ at least twice during his evidence,
despite
initially having maintained that the police found the firearm in a
car in his absence.
[72]
He
added that before the offences were committed his
cell
phone
accidentally fell into water and was broken. At the time of his
arrest
the phone was still being repaired. He said that he had no
recollection of his cellphone number except that it started with
the
digits 083 and not 073 like the number in accused number one’s
directory. He denied that he was known as Casta
and averred
that the name Casta as reflected on his criminal record form was not
correct.
The
evidence against accused no. 1
[73]
The
S
tate’s
case against accused no. 1 consists of the following evidence:
a.
The
firearm found where he was taken into custody which is ballistically
linked to the scene.
b.
His
relationship with and frequent contact with accused no. 2 before,
during and after the commission of the offences.
c.
His
identification at the scene by two witnesses.
d.
His
mendacity as a witness.
[74]
The
accused did not challenge the voluntariness of the pointing out of
the firearm or allege that he was induced to do so without
having
been informed of his rights. He denied having pointed it out
altogether and maintained that the police found it all by themselves
and in his absence. For this reason I provisionally ruled that it was
not necessary to embark upon a trial within a trial to prove
the
admissibility of the pointing out. I stand by that ruling.
[75]
In
my view the State failed to prove beyond a reasonable doubt that the
accused made a pointing out at all. The witnesses contradicted
each
other on material aspects which they ought to have remembered such
as:
a.
Whether
the door to the outside room was locked;
b.
Who
opened the door;
c.
Who
produced the arm from the hole in the mattress.
[76]
Of
particular significance to me also is the fact that it is common
cause that accused number one did not make a pointing out or
a
confession to Oranje. Whether he did not make this confession
or pointing out because he told Oranje that he was assaulted
or
whether Oranje declined to proceed with a confession or a pointing
out because the accused said that he wanted a lawyer is to
my mind
irrelevant. The fact is that it is unlikely that he would have
refused to make a confession or a pointing out to
a commissioned
officer immediately after having made a pointing out of a firearm
which is ballistically linked to the scene.
[77]
In
the premises I am inclined to give the accused the benefit of the
doubt and prefer his version that the police searched this
room when
he was outside and that this was when they found the firearm. It is
also significant that the police tended to refer
in their evidence to
‘their recovery of the firearm’ rather than the pointing
out of the arm.
[78]
This
brings me to the legality of the search. Counsel for the accused
contends that the police had had a meeting the day before
and that
they could have obtained a search warrant instead of performing this
sting operation in the middle of the night. According
to the police
they had acted on information and had visited the place where the
accused was staying merely to question him. However
his family kicked
up such a fuss (which the accused confirms) that they were
constrained to remove him from the scene for questioning.
It was then
that he told them where the firearm was and returned with them to the
scene for the second time when the firearm was
produced.
[79]
I
have already rejected the suggestion that the accused performed a
formal pointing out. It is not disputed however that the
ballistically
linked firearm was found in a flat directly adjacent to
the accused’s parental home, at a time when the accused was
present
there and had been visiting there before, during and after
the commission of the offence, and had also entered this flat (on his
own version).
[80]
It
is common cause that the police entered the accused’s parental
home, and the unoccupied flat adjacent to it, without a
search
warrant. The police say they did so because they did not go there to
search and that the two cell phones and the accused’s
ID
documents were on his person and did not necessitate a search.
The point is simply that this firearm and the accused’s
cell
phone which reflected the number of accused no. 2, are both real
evidence which the police would probably have found in any
event. It
is also not so (as suggested by the accused’s counsel) that the
firearm was unfairly obtained or in a manner which
brings the
administration of justice into disrepute.
[81]
Section
35(5) of the Constitution provides that evidence obtained in a manner
that violates any right in the bill of rights must
be excluded if the
admission of that evidence would render the trial unfair or otherwise
be detrimental to the administration of
justice. These rights
include the rights to human dignity, to security of person and
to
privacy,
and includes the right not to have one’s person, home or
property searched and one’s possessions seized.
[82]
These
rights are of course limited by section 36 to the extent that the
limitation is reasonable and justifiable in an open and
democratic
society based on human dignity, equality and freedom, taking into
account relevant factors such as the nature of the
right, the
importance of the purpose of the limitation, the nature and the
extent of the limitation, the
connection
between the limitation and its purpose and less restrictive means of
achieving the purpose.
[83]
The
police testified that it was important for them to seize the firearm
there and then as it would surely have disappeared if they
left the
premises to obtain a warrant. I agree. There is no doubt, taking the
facts into account, that they would have been granted
a warrant in
any event. This is also not a case where the police in seizing the
firearm deprived the accused and/or his family
of their possessions
as further suggested. According to the accused the firearm was
a
res
derelicta
and could have been left in this unused room by anyone as it was not
locked. This being so, this court is not dealing with a case
of an
invasion of the home and persons of the accused and his family. This
is an unused, unoccupied room which is not even part
of the parental
home, but only on its premises.
[84]
In
this regard I refer to
S
v Gumede
2017 (1) SACR 253
SCA where it was held that since the firearm was
real evidence, and the police would probably have found it had they
entered the
premises legally, the fact that the evidence of the
firearm was unfairly obtained (by the police seizing it without a
warrant from
under the pillow where the accused had been sleeping
when they had four days to obtain a warrant), did not necessarily
result in
unfairness in the actual trial. As I have said, I am not
persuaded that the evidence in the matter before me was
unfairly
or unconstitutionally obtained. I am in any event satisfied that it
is in the interests of justice that it be admitted,
particularly in
that the state has proved beyond a reasonable doubt that this firearm
was used in the murder and robbery of two
people in that very same
area just short of a month before.
[85]
As
was stated in
Key
v Attorney General, CPD and another
[1996] ZACC 25
;
1996 (2) SACR 113
(CC) at para 13 :
“
...
W
hat
the Constitution demands is that the accused be given a fair trial.
Ultimately, as was held in
Ferreira
v Levin
fairness is an issue which has to be decided upon the facts of each
case and the trial judge is the person best placed to take
that
decision. At times fairness might require that evidence
unconstitutionally obtained be excluded, but there will also
be times
when fairness requires that evidence, albeit obtained
unconstitutionally, nevertheless be admitted.”
[86]
In
my view this is one of these situations. Having regard to the
position internationally, I briefly refer to extracts from
two
Canadian cases where the Canadian Charter upon which much of our
C
onstitution
is based, is referred to and upon which I likewise rely.
The
first case is
R
v Valentine
2014 ONCA 147
where Epstein JA said the following in the Ontario
court of appeal:
‘
The three main
purposes of a search incident to arrest are to ensure the safety of
the police and the public, to protect evidence
from destruction and
to discover evidence that may be used at a trial.
’
The
second case is
R v Poletz
2014 SKCA16 where Justice Caldwell
said the following:
‘
Because
the misconduct here is minor and there is no nexus between the
convictions and the charter breach in the case, the remedy
of a stay
is, to all appearances, entirely out of proportion to the breach, and
could, by its weight, bring the administration
of justice into
disrepute.
’
The
above are, of course, for more serious inroads into the accused’s
rights than in the matter before me. It cannot
be said that
this search has brought the administration of justice into disrepute.
On the contrary, there is a direct nexus between
the convictions and
the so called breach of the bill of rights, viz the firearm found at
the accused’s place of residence
was used in a murder and a
robbery a month earlier in the same area.
[87]
I
may have come to a different conclusion if this was the only evidence
against the accused. However, not only did he have accused
no. 2’s
name and phone number in his possession and had contacted him on
several occasions before, during and after the commission
of the
offences (and I will deal with the damning evidence against accused
no. 2 in due course) but he was properly identified
by no less than
two eye witnesses at an ID parade immediately after his arrest.
[88]
Differently
put, I would be hard pushed not to convict accused no. 1 on the
evidence of the identity parade alone. In this
regard Fombe was
criticised for his inability to accurately estimate how long he had
observed accused no. 1 at the scene. This
may well be so. The point
is that he had good reason to specifically pay attention to the
accused who stood out like a sore thumb.
He was not a local. He was
an outsider. He looked suspicious. He spoke. Fombe’s
descriptions of what he said, he did, he
wore and he carried are
corroborated by what is reflected in the CCTV footage. The lighting
was good. When he first saw the accused
the scene was not a moving
one. He had no hesitation in pointing him out at the ID parade.
[89]
There
was no real criticism levelled at Thomas’s identification of
the accused at the ID parade except that it was pointed
out that
Thomas had seen six of the eight members of the parade before. I am
not sure how this adversely affects his credibility
or his
reliability or how he can be accused of being “a doubting
Thomas”. In terms of the Home Office Circular
ID parade
rules, witnesses must not see the members of the parade, and in
particular the suspects, in advance of the parade. There
is nothing
that suggests that the members of the line-up must be unknown to the
witnesses. In any event, it was not the evidence
of Thomas that
he pointed out the accused because the accused was known or unknown
to him. He pointed him out because he had seen
him before committing
a crime. He had also seen others on the line
-
up
before, but not committing crimes.
[90]
I
digress to mention that it
was
suggested that the evidence pertaining to the line-up be led in a
trial within a trial. I declined to do so. Any suggested
irregularities
can only affect the weight of the ID parade evidence,
not its admissibility (see
S
v Chabalala
2003 (1) SACR 134
SCA;
S
v T
2005 (2) SACR 318E
;
S
v Carolus
[2008] ZASCA 14
;
2008
(2) SACR 207
SCA).
[91]
Over
and above that, accused no. 1, unlike the state witnesses, was
mendacious, vague and argumentative. He deliberately distanced
himself from accused no. 2’s telephone number written on the
scrap of paper, and suggested that one could see that most of
the
witnesses on the line-up were mentally ill (although he never
complained of this when he had the opportunity to do so). Having
studied the photos of the ID parade myself, it does not occur to me
that anyone looks mentally ill (whatever such look might entail)
or
markedly older or younger than the accused.
The
evidence against accused no. 2
[92]
As
I have said, the evidence against accused no. 2 is overwhelmingly
strong:
a.
He
was arrested in physical possession of a firearm ballistically linked
to the scene and several live rounds of ammunition, by
independent
policemen in Cape Town five weeks after the commission of the
offences.
b.
He
did not have an innocent explanation for this possession but denied
it altogether.
c.
He
was identified at the ID parade held three days after his first
appearance in court by a woman with whom he had been sitting
in tight
proximity at the same table for just short of an hour, chatting and
flirting in a
brightly
lit area.
d.
He
was not an impressive witness. He contradicted himself on
whether the firearm was found in his possession or in the car
at the
BP garage. He
frequently
vacillated
between various versions.
[93]
On
the other hand, I was most impressed by the two Harare policemen who
arrested the accused. They had no knowledge of this case
when they
did so. They were tipped-off that a man dressed in a certain way
approaching the BP garage was carrying an illegal arm.
They saw this
man, confronted him, searched him and found a Glock firearm on his
waist and 46 live rounds of ammunition in his
pockets. At that stage
they had no knowledge that this arm was ballistically linked to the
scene.
[94]
Conversely,
the accused’s version of what had transpired at the BP garage
is surreal to say the least. It is highly
improbable that the
police would have found another person in possession of this arm in a
car, turned their backs on the suspect
and approached an innocent
bystander (the accused), and then would have returned to the car only
to find that the suspect had disappeared.
Thereafter to have
taken the accused on a frolic
of
their own to look for the suspect and to have abandoned the car, only
to have returned to find that the car had also disappeared,
and
thereupon to have arrested the accused for no reason whatsoever, is
so improbable that it deserve
s
to
be
rejected outright.
[95]
As
for the identification of the accused by Siphokazi Nkwandla, I am of
the view that her identification of him was honest and reliable.
She
saw him and interacted with him on a number of occasions:
Firstly,
when he entered the gate of the outside perimeter of the premises,
wearing a maroon jacket which she identified when shown
the CCTV
footage. Secondly, when he sat down in a lit area with her and her
friend and had a lengthy conversation (20 to 30 minutes)
with them
about his home in Cape Town (which is objectively correct), about his
reasons for being in the area and that he was looking
for a girl. In
short, he was flirting with them somewhat intimately and at his
leisure. Thirdly, when he stood up and moved towards
the bottle
store. Fourthly, when they returned from the toilet and he was
chatting to two strangers (the objective facts being
that the robbery
and murder were committed by at least three people as three different
types of cartridges were found on scene).
Fifthly, when he returned,
sat down and chatted to them again. Sixth, when he was involved in an
altercation with the first deceased
(Mr Lakew) at their table in
their presence. Seventh, when the accused got up and followed Lakew
when Lakew opened the premises
and she saw him firing a shot in the
air.
[96]
It
is so that her evidence from the first trial was recorded to say that
she only heard shots being fired. She denied that
she had said
this and blamed it on a mistake ostensibly in the interpretation or
transcript. I am inclined to believe her. Having
read the transcript
of the previous trial and many others, and the transcript of the
argument in this trial, I
am
constrained to express dismay
at the words and expressions which have crept in. They are simply
nonsens
ical
.
But even if the difference between the two sets of evidence is
genuine, I do not consider it as a defect material enough to detract
from the record
al
of the time she spent with the accused and her opportunity to have
sufficiently observed him. Indeed, it is significant that
there was no need for her to panic or to
be
nervous during all the time she spent with him. Her scene was calm
and convivial. It only became a moving one right at the
end
before she fled. Her opportunity for accurate observation was
accordingly not
interfered
with or reduced
in any way.
[97]
In
the premises I am of the view that the State has succeeded in proving
the charges preferred in the indictment beyond reasonable
doubt.
[98]
One
further aspect deserves mention. From the little I know about the
previous trial (and I have only seen the ruling directing
the
de
novo
proceedings and the reasons therefor) it seems that the main reason
for the order was due to a complaint from the accused (and
particularly from accused no. 1) about the manner in which their
erstwhile attorney took instructions. Having heard both the accused,
their instructions as put to the witnesses and their evidence, I can
only express sympathy for this erstwhile representative. Indeed,
even
during the trial before me, the accused were inclined, on a number of
occasions, to once again blame their representatives
(who in my view
were extremely thorough) for loopholes in their cases; alternatively,
to say that they had given certain instructions
to their previous
representative but not to their present ones.
[99]
Will
the accused stand please. On counts 1, 2, 3, 4, 5 and 6 as
preferred by the prosecution against you in this indictment,
I find
you guilty. You may be seated.
________________________
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Date
of Judgment:
30
January 2018
Counsel
for the State:
Mr
Willemse
Director of Public Prosecutions
Counsel
for the Accused no. 1:
Mr McConnachie
Grahamstown
Counsel
for Accused no. 2:
Mr Erasmus
Legal Aid Board
[1]
Thomas attended the same
ID parade as Nkwandla. He did not point out accused number two as
she did, but a man whom he thought
was the stranger sitting at their
table. He said that the lighting on the veranda was not as good as
the lighting inside the
building.
[2]
As I have said, there were
two ID parades, one in respect of the first accused held on 6 August
2015, and one in respect of the
second accused held on 26 August
2015. Both Fombe and Thomas positively identified the second accused
at this special parade.
According to Thomas, the lighting inside the
shop was better than on the veranda and he had a proper look at
accused 1. He said
that he spent more time looking at acc. no. 1
than the man who sat on the veranda chatting to the women at the
table. He and
this other man did not speak to each other.