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[2017] ZAGPPHC 484
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Ndaba v S (A895/2015) [2017] ZAGPPHC 484 (9 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETRIA
CASE
NUMBER: A895/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
9/3/2017
In
the matter between:
BONGANI
NDABA
Appellant
and
THE
STATE
Respondent
JUDGMENT
MOTHLE
J
1.
The Appellant was convicted of 1 couNt of robbery and the
other of murder in the Regional Court Benoni on 18 July 2014. The
court
imposed a sentence of fifteen years for Count 1 being the
robbery with aggravating circumstances and fifteen years for Count 2,
being murder. The Trial Court then ordered that the 10 years of Count
1 shall be served concurrent with the sentence in respect
of Count 2.
The effective sentence therefore is 20 years imprisonment. Leave to
appeal to this Court only on conviction was granted,
following a
petition to the Judge President of the Gauteng Division.
2.
The facts of the case are briefly that on 22 November 2013,
the first State witness Sithembele Matola drove with his work
colleague
one Shabangu to a tuck shop to deliver cold drinks. They
were accompanied by a security guard one Mr Zwane who was driving in
an
escort vehicle. While inside the tuck shop two men arrived who
wanted change for R200.00. The attendant refused to assist them.
They
then decided to buy airtime in order to get the change and thereafter
exited the shop just to stand near the door of the shop
facing the
direction of the truck. After off-loading the drinks, Matola came out
of the tuck shop with cash payment for those drinks.
As he was about
to exit the door of the tuck shop he was pulled back, slipped and
fell. There was a person on top of him and they
began to wrestle. As
they were wrestling, Matola heard gunshots from outside. The person
with whom he was wrestling then stood
up and ran away. He had noticed
that during the wrestling this person had some object in his hand
which he could not identity and
when he stood up after the wrestling
he realised that the money he had, had disappeared. As he exited he
found Zwane standing on
the side of the truck next to a man who was
bleeding from the hip. He was called to attend an identity parade but
pointed out the
wrong person.
3.
Zwane also testified for the State that on that day he had
accompanied Matola as a security escort for the delivery of the cold
drinks. After Matola had entered the tuck shop he noticed that there
were two people standing outside the tuck shop and at that
point he
heard someone whistling and noticed two other men crossing the street
towards the truck. The truck driver Shabangu got
into the truck as
Matola was exiting the shop. Zwane noticed that Matola had certain
items in his hands and saw how he was grabbed
from behind by one of
the two men who were standing in front of the tuck shop. That man had
a knife in his possession. He further
testified that the second
person who was standing in front of the tuck shop approached Matola
and his assailant and he had a firearm
in his possession. This
firearm was pointed at Matola. Zwane drew his firearm and shot at the
robber who was in possession of a
firearm. He shot this man in the
upper arm, he fell, got up and approached Zwane who shot him again on
the upper leg. He noticed
that he fired his weapon at only two people
who were wounded, namely the one being one of those persons who
attacked Matola and
more specifically, the one who yielded the
firearm and ran away with the money after being wounded in the upper
arm and leg. Secondly
he shot the other person who crossed the road
who was wielding a knife and apparently joining in the attack. This
was the deceased.
4.
In his plea explanation, the Appellant admits that he was at
the tuck shop with the deceased to try and obtain change of R200 note
so that the deceased should give him R100. He states that he was an
innocent bystander who was shot in the arm and leg and he ran
away.
The girlfriend of the deceased however, testifies that earlier in the
day, Appellant had phoned the deceased and he then
left to meet with
Appellant. After the shooting, he noticed that Appellant v as running
away from the scene and he jumped several
fence s into different
yards and disappeared. When the investigating officer went to look
for Appellant, he could not find him
in any of the medical facilities
or hospitals nearby. It later transpired that Appellant was admitted
in a hospital in Tsakane
in Brakpan. He was admitted under a
different name and surname. When asked about this, he informed the
investigating officer that
he does not how he came there, he had been
unconscious and whoever brought him there gave the hospital the
different names. He,
however, could not explain why he was not taken
to the local medical facilities near the scene of the robbery but to
a hospital
30 km away from the scene. He could further not explain
why after he was discharged he did not inform the police about the
shooting
as he claimed he was an innocent bystander.
5.
The Magistrate rejected Appellant' version as not being
reasonably possibly true and accepted the version of the State
witnesses,
even though both Zwane and Matola pointed out wrong people
at the ID parade.
6.
This appeal raises two issues namely:
6.1 Whether Appellant was part of the
robbery that took place at the scene; and
6.2 If so, whether the conviction of
murder for the deceased is good in law.
7.
I not turn to deal with these two issues raised in the appeal
8.
There is no dispute that Appellant was on the scene when the robbery
took place. Secondly, it is also not disputed that the Appellant
was
known to the deceased whom he has called by cell phone earlier that
day. The cell phone was answered by the girlfriend to the
deceased.
It is also not in dispute that Appellant was shot in the arm and leg,
he ran away from the scene and was hospitalised
30km away from the
scene in Brakpan under an assumed name. Finally it is not in dispute
that Appellant failed to report the shooting
to the police upon his
discharge from the hospital.
9.
The objective facts from the preceding paragraph clearly
link the Appellant with the robbery. More so that the money that
Matola
had received as payment for the cold drinks disappeared during
the robbery. If that money was taken by the deceased, it would have
been found on him as he died on the scene. I am unable to see any
other evidence that would point to the Appellant as an innocent
bystander. It is my view that he was part of the robbery.
10.
Insofar as the
conviction on murder is concerned, there are two leading cases
dealing with instances of such conviction where the
surviving robber
may be convicted for the death of his accomplice at the robbery scene
if it can be proved that they were both
armed, foresaw the likelihood
of resistance and the use of the firearms in such case. These two
reported cases are
State
v Mulimi and Another
[1]
, State v
Nkosi
[2]
.
The
facts are incident in the Nkosi case in particular are similar to
those in this appeal. One of the robbers was shot and killed
by a
victim to the robbery.
11.
The Appellant contends that for a Cot rt to find a person
guilty of murder following the shooting of an accomplice at the
robbery
scene, the state must prove that the shooter was also a
victim and that he was not acting on a frolic of his own. This
argument
cannot stand for two reasons. Firstly, Zwane who shot and
killed the deceased was an interested party. When he shot the
deceased
he was acting within his scope and cause of his employment
as a security guard on duty to protect Matola and Shabangu as they
delivered
cold drinks and received payment therefore. He was
providing security to the two. Therefore in essence he, Matola and
Shabangu
were victims of the robbery.
12.
I am thus of the view that the Court a
quo
did not
misdirect itself in convicting the Appellant on robbery with
aggravating circumstances as well as murder. Under the circumstances,
this appeal cannot succeed.
13.
In the premises I make the following order:
1.The appeal against conviction is
dismissed.
_____________________
SP
MOTHLE
Judge
of the High Court.
Gauteng
Division, Pretoria
____________________
W
SIBUYI
Acting
Judge of the High Court
Gauteng
Division, Pretoria.
For
the Appellant:
Adv. LA Van Wyk
Instructed
by the Legal Aid South Africa.
For
the Respondent:
Adv. PCB Luyt
Instructed
by the Director of Public Prosecution .
[1]
2006 (2) SACR 8 (SCA)
[2]
2016 (1) SACR 301
(SCA)