S v Shangase and Others (CCD33/16) [2017] ZAKZDHC 27 (19 July 2017)

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[2017] ZAKZDHC 27
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S v Shangase and Others (CCD33/16) [2017] ZAKZDHC 27 (19 July 2017)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU–NATAL
LOCAL DIVISION, DURBAN
CASE
NO: CCD33/16
In
the matter between:
THE
STATE
versus
K
SHANGASE AND 2 OTHERS
JUDGMENT
NTLAMA
AJ
[1]
The three Accused appeared before this Court on charges, first:
robbery with aggravating circumstances as defined in section
1 of the
Criminal Procedure Act 51 of 1977 (CPA) read with relevant provisions
of section 51 and Schedule 2 of Criminal Law Amendment
Act 105 of
1997 (Amendment Act) (Count 1). Secondly, murder read with section 51
and Part 1 of Schedule 2 of the Amendment Act
(Count 2).
[2]
The State alleged in respect of Count 1 that on or about the 27 April
2015 and at or near LB5 Sibisi Road KwaMashu in the district
of
Ntuzuma, the accused had unlawfully and intentionally assaulted
Ntombifikile Dube, Celiwe Mkhonza, Nokuthula Mkhonza and Xolani

Mnguni and by intentionally using force and violence to induce
submission by the aforesaid person, took and stole from them certain

property, to wit cellular phones, a laptop and electronic equipment,
their property or in their lawful possession, and thus robbed
them of
the same.
[3]
The State further alleged that in respect of Count 2 in that on or
about 27 April 2015 and at or near LB5 Sibisi Road KwaMashu
in the
district of Ntuzuma, the accused unlawfully and intentionally killed
Xolani Mnguni, an adult male.
[4]
All the three accused pleaded not guilty to the charges in line with
the provisions of section 115 of the CPA and chose to exercise
their
right to remain silent in accordance with section 35(1)(a) of the
Constitution of the Republic of South Africa 1996 (Constitution).

Different legal representatives represented them: Mr Zulu for Accused
1, Mr Dlamini for Accused 2 and Mr Marimuthu for Accused
3. The
representatives also confirmed that the plea was in accordance with
the instructions they received.  I am also satisfied
that they
understand the impact of the application of the Minimum Sentences Act
regarding the charges they are faced with.
[5]
The State, represented by Ms Mshololo submitted admissions in terms
of section 220 of the CPA marked as Exhibit A, which were
amended
without prejudice to the Accused in terms of section 86 of the CPA
which were supported by the medical legal report marked
as Exhibit B,
Photo Album of the Scene marked as Exhibit C.  There are a
further exhibits forming part of this record that
will be referred to
in this judgment.
The
State’s case
[6]
The State called its first witness Sergeant Mbongiseni Nene who
testified that he is employed at the SAPS, for 16 years stationed
at
Ntuzuma detective’s branch. He was assigned as the
Investigating Officer in this matter.  On the 27 April 2015, he

was on duty at the Ntuzuma police station when he received a report
from the Community Services Unit that someone had been murdered
at
section LB5 SIBISI ROAD, KWA MASHU. He immediately headed to the
scene and upon his arrival, he found a number of bystanders
and upon
introducing himself, he sought witnesses. He met Ms Ntombifikile Dube
(Dube) who was visiting the deceased at LB section.
Dube resides at
[…] Road. She confirmed that the deceased had been shot and
she pointed him out to Sgt Nene. He was dead
in his room which was
his permanent residence. Sgt Nene confirmed that upon entering the
room he found a dead male, face down in
a pool of blood. He realised
the deceased had a gun shot wound to the neck. He also found that
things were upside down in the room.
Upon investigation, closer to
the body he found a cartridge and bullet head in close proximity to
the body.  He also met the
two ladies, who he described as the
sisters of the deceased: one Ms Celiwe Mkhonza (Celiwe) and one Ms
Nokuthula Mkhonza (Nokuthula).
They reside on the same premises but
in an adjacent building. They also told him their rooms were
ransacked and their cellphones
and other items were taken. Sgt Nene
noticed that their rooms had been ransacked like the deceased room.
He then organised
for the Durban Local Crime Record Centre
(LCRC) to take photos of the crime scene and for the collection of
the bullet head. One
Constable Mpanza and Constable Mtolo arrived
from LCRC. Constable Mpanza took the spent cartridge and bullet head.
He further confirmed
that one Ms Nokuphila Mvelase removed the
deceased body to the medico – legal lab.
[7]
Sgt Nene also testified that upon his arrival at the scene, although
it was at night, there was sufficient lighting with electric
lights
inside and outside the scene. As far as he was concerned, the
lighting was sufficient at the scene to the extent that he
did not
have to use a torch. Sgt Nene then identified various aspects of the
crime scene from the photo album that was admitted
into evidence
marked C and which was admitted by the Accused in terms of the
section 220 admissions of the CPA.
[8]
Thereafter, he then went on to testify that upon the case being
allocated to him he was the person who arrested the Accused.
On the
31/07/2015 he was at work conducting a suspect raid when he received
a tip off from an informer that certain suspects were
arrested on
another matter at Inanda Police Station. The informer told him that
these suspects were involved in the murder of Xolani
Mnguni.  He
took his team and proceeded to Inanda police station where he worked
with Crime intelligence Unit. Upon arriving
at INANDA South African
Police Service Station (SAPS) he found five or more suspects and
various investigating officers dealing
with various dockets. He
introduced himself to the suspects and indicated that he was
investigating the murder and robbery at LB
section. He testified that
he told all the suspects he would be interviewing them and asked them
to participate in an Identification
Parade (ID) to be arranged for
the 2/8/15 and that they could have their legal representatives
present .He further testified that
the suspects were detained and in
the process of being interviewed by other investigating officers. The
suspects were not detained
in respect of the matter he was dealing
with.
[9]
He confirmed that an ID Parade was conducted on the 2/8/15 and those
identified at the ID Parade were the indicted on this charge.
The ID
Parade was held at the Inanda SAPS and one Sgt Ndlovu from Kwa Mashu
SAPS conducted it in his absence. He formally charged
the accused in
the late afternoon of 2/8/15 at the Inanda SAPS Cells after they were
identified. He introduced himself and told
them of the charges they
were facing and advised them of their section 35 rights as envisaged
in the Constitution of the Republic
of South Africa 1996
(Constitution). Whilst he had also the section 35 rights in his
pocket book he chose to read same from the
SAP14A Form when he was
putting the charges to the Accused. He read the rights individually
to each Accused in the holding place
at the police station. He
confirmed he dealt with Accused 1 first and after the preliminary
introductions of each other he told
him of the charges he was facing
and read him his rights including that of his right to bail. Accused
1 was then asked to sign
the SAP14A Form, which he did. The Accused
rights were explained to him in English and translated into IsiZulu.
The Accused understood
his rights hence he signed the SAP14A form,
which was also signed by Sgt Nene. The accused was also given a copy
of the form. The
form was admitted into evidence as exhibit D. He
went on to testify that he followed the same procedure with Accused
two and three
and their SAP14A Forms were admitted into evidence as
exhibits D1 and D2.
[10]
He then went on to testify that he had taken the warning statements
of all three Accused on 2/8/15 and did so by following
the proforma
forms. The responses of the Accused were recorded on the forms as
they were being provided. This was done in the late
afternoon on the
2/8/15. The Accused were appraised of their rights and understood
what was being asked of them. All three warning
statements were
admitted into evidence as exhibits E, F& G respectively. He
confirmed that whilst the accused were charged
in this matter on the
2/8 /15, he had no idea how it is that they came to be at the said
Inanda police station on that day, nor
was he present when they were
brought to the police station. Others were investigating the accused
on other docket numbers and
he had no knowledge of the dockets or the
outcome of those cases. He concluded his evidence in chief by
confirming that he had
no knowledge if any of the stolen goods were
recovered or reclaimed.
[11]
Under cross examination by Accused 1 representative this witness held
firm to his version of the events as they transpired.
He was
questioned repeatedly on the scene of the incident and to the signing
of the SAP14A form and the warning statement. It was
put to him that
he did not explain the accused his rights, which was denied and that
it was suspicious that all SAP14A forms were
signed at 15h30. He
stood firmly by his version as detailed in the evidence in chief. He
denied being part of or knowing about
the alleged assault of the
Accused at any stage and confirmed that he only arrested ACCUSED
AFTER the ID parade which he was not
part of.
[12]
Under cross-examination by the representatives of Accused two and
three little emanated that differed from his evidence in
chief. He
stood firmly by his version as to how matters transpired once the
accused were charged. He continued to confirm that
rights were read
to the accused and that the responses on the warning statements were
recorded as they were conveyed to him. He
was adamant that he was not
at the ID parade nor did he speak to Sgt Ndlovu. The ID parade was
conducted in a fair manner and apart
from dropping the witnesses off
at said ID parade, he was not involved at all.
[13]
Overall Sgt Nene was a reliable and credible witness. He was
forthrite about what he found at the scene and the manner in which
he
conducted his investigation. Although the defence tried hard to find
flaws in the manner in which he did things, no impropriety
can be
levelled against this witness. He came across as honest and to the
point. He told the court what he knew, despite the time
lapse, in a
coherent and clear manner. His evidence as a whole was reliable and
free from bias or conjecture. He stated the facts
surrounding his
involvement in the matter and no contradictions were elicited between
his evidence in chief and cross-examination.
He was overall a good
witness for the state.
[14]
The State called its second witness Ntombifikile Dube who testified
that she resides at […] – KwaMashu and the
incident
pertaining to this matter took place at LB5 – Sibisi Road. On
the night of 27/4/15 when the incident took place
she was at Section
LB5 – Sibisi Road with Xolani Mnguni, the deceased in this
matter. They were in bed, in the room when
at approximately 00:30 –
after midnight she heard a noise from outside. She raised her head to
investigate but the deceased
continued to lie down. The room door was
open but the gate leading to the room was locked. There were
approximately seven people
outside and they shone a cellphone light
on her when they noticed she was awake. They shot at the lock of the
gate at which stage
she jumped up out of bed, stood upright and the
deceased continued sleeping. She testified that they all entered the
room and demanded
money and items they had for sale. She told them
she could not assist as she was a visitor and this resulted in them
waking the
deceased up and doing a body search of him. They demanded
money and items for sale from him. Upon searching the deceased they
took
his Nokia cellphone and his wallet, which they emptied and threw
it on the floor. There was money in the wallet which they took,
and
one of them shot at the wall but she could not identify this person,
who was standing at the door. The shot was aimed at scaring
the
deceased who after being searched got back into the bed.
[15]
She was also confronted and her cellphone (a navy blue Samsung) was
demanded of her, she pointed to where the phone was, which
was on top
of the fridge in the room. One of them who took her cell phone then
assaulted her and another person (a third individual)
returned and
took the laptop that was on the side of her. The laptop was next to
the TV near where she was standing. One person
took her cellphone and
the other one slapped her across her face. They were in close
proximity of her when this happened. They
then exited the room save
for the person who took the laptop (he did not have a firearm). He
instructed the one who slapped me
to shoot Xolani. He did not oblige.
The one who carried the firearm remained in the room and the rest
went outside. This was another
person.
[16]
In the room at this stage was the Deceased, Dube and the person with
the firearm. He instructed Dube to lie next to the deceased
on the
bed, she did not oblige and remained standing nearby. Dube told
deceased to stand up and the person carrying the firearm
demanded she
and the deceased kneel down. As soon as he knelt down he was shot
once and the gunman exited the room. The gunmen
was wearing a cap to
hide his face and he wore a jacket with an orange trim and blue
shorts. Due to him disguising himself she
could not identify him. The
gunmen was the same person who slapped her and who shot the deceased
and she could not identify him.
She could identify the person who
took her cellphone as he was in close proximity to her and was not
wearing anything to disguise
himself. She could not identify the
person who took the deceased cellphone.
[17]
She testified that the source of lighting emanated from two sources,
one directly outside the room and one above the snooker
table and
there was a light inside the room which was also on. She further
confirmed that there was a blind across the window in
the room but
the light from outside still entered the room, making visibility
easy. She testified that she remained standing close
to the window
from which the light source entered and was standing at the same spot
when she was slapped. She went on to testify
that after the deceased
was shot and the gunman exited the room, she  exited the room
and walked behind the building where
she saw two cars driving off in
the vicinity of the house where the incident took place. Prior to the
assailants driving off she
noticed them getting into the house next
door. She went to the main building which has the kitchen door and
related what happened
to the deceased. Dube, Nokuthula and Celiwe
went to the deceased room where he was lying. She did not know who
called the police.
[18]
She went to testify that she went to an ID Parade at the Inanda SAPS
towards the end of July 2015. Sgt Nene phoned and informed
them he
would fetch them for same. He collected them and dropped them off
outside the Inanda SAPS where they met other police.
Inside the
police station they were explained what an ID parade was and what
would happen. She entered the room and the suspects
appeared. She was
alone in the ID room with a police officer when the pointing out was
done. She was asked to point out persons
she recognised and she
pointed them out by numbers appearing above their heads. She pointed
out Accused 1 and 2 as they appeared
in the dock at court.
[19]
She confirmed that Accused 1 on the day of the incident –
demanded her cell phone and was standing right next to her.
Accused 2
– took the laptop from her next to her and said the deceased
must be shot on the leg or foot. She confirmed that
there were many
people at the line up but she was able to identify Accused 1 by his
roundish  face and healthy built
and his German or English
haircut where the sides of his head were shaved and  which was
the same as per the night of the
incident. Accused 2 was slender and
had a narrow face. She went on to identify the Accused from exhibit
H, where Accused 1 appeared
as number 9 and Accused two appeared as
number 15. She could identify these two individuals as they came
close to her. After the
ID parade she left the room and did not
discuss the point out with anyone.
[20]
Under cross examination she confirmed that seven people entered the
room and she was looking at different faces and was not
fixated on
one person. She testified that Accused 1 was facing her, standing
right next to her, when he spoke to her and demanded
her phone. It
took about two minutes. Whilst this was happening the others were
ransacking the room. She confirmed it was dark
in the room but
nonetheless was able to identify Accused 1 from where he was standing
as the light from outside was illuminating
the room and he was closer
to the window and he came closer to her so she could see him. She
confirmed that she gave the police
a statement, entered into the
record as exhibit J, in which she described Accused 1. She did not
mention the taking of the laptop
in her statement as she was
confused. She further confirmed that she identified Accused 1 by his
face and not his clothes as he
was wearing different clothes on the
day of the incident. It was put to her that Accused 1 said he was
taken to various houses
on 31/7/15 and introduced as the person who
robbed them. She denied that this happened and was adamant that she
saw him exiting
the room and heading for the neighbours house after
exiting the room she and the deceased were in. She was adamant that
Accused
2 was also present at the premises when the incident took
place. Upon cross examination by Accused two representative she was
clear
that she was not reminded of aspects relating to the Accused
numbers at the ID parade and reiterated her version of events
relating
to having taken at the ID parade.
[21]
This witness was a reliable, credible and precise witness. She had
the powers of observation on her side, which were heightened,
as she
was able to see the accused in close proximity to her on the day of
the incident under stressful circumstances in order
to later identify
them without hesitation. She was precise as to what she saw and how
events unfolded. Her evidence as regards
the pointing out was
truthful and honest and there was clearly no collusion between her
and Sgt Nene as regards the identification
of the Accused which was
done almost instantaneously at the identification parade. She was
overall a good witness whose testimony
can be relied upon and was
clearly not motivated by anything other than pointing out the
perpetrators of the incident whom she
did not know prior to the
incident.
[22]
The third witness: Nokuthula Daphney Mkhonza confirmed that she
resides at […] KwaMashu and that is the same address
where the
deceased was shot.  On 27 April 2015 she testified that whilst
Ms Celiwe Mkhonza (her cousin) and her were each
occupying their own
room in a three bedroomed house asleep.  Celiwe woke her up
after having heard sounds. She switched on
the lights and opened the
door that had burglar gates. She saw boys approaching them and when
the burglar gate had been opened
they started pushing the door, which
was the kitchen door, which she and Celiwe were pushing closed.
Upon entering the house,
they demanded money and cellphones and took
the Television, DVD Player, which was on the regular stand in the
dining room, and
R100 that was on the table whilst they were in a
state of shock.  They were then pushed into the bedroom where
they were assaulted
by being kicked, pointing a firearm demanding
money. Whilst three people had entered the house, two were taking
turns to assault
them.  Both, she and Celiwe were being
assaulted in the same room she sustained no visible injuries but was
gun whipped on
her upper right arm. Whilst being assaulted by the
two, one person entered the dining room and she could not see what
she was doing.
She identified Accused 1 as he appeared in the
court dock to have taken the TV but she could not identify who took
the DVD player
or the R100.  Thereafter, they exited the house
and walked into the yard and came across Dube crying, and told them
that the
deceased, Xolanin had been shot.  She attempted to get
a motor vehicle to take the deceased to hospital but he was already

dead.  The police arrived at the scene and enquired from each of
them about what had happened.  She also confirmed that
she was
able to see the Accused when they were forcing their way into the
house and that Accused 1 was in the front pushing the
door.  She
confirmed that she could identify the suspects because there was
sufficient lighting shining from outside the kitchen
door and inside
the kitchen.
[23]
From Exhibit C, the photo album of the scene, she identified the
houses and the source of light which coincided with her version
as
regards the lighting.  She went to testify that she attended the
ID parade on 2 August 2015.  Sgt Nene picked them
up and left
them outside the police station.  They were then taken to
waiting room from which they were called individually
to the ID
Parade room.  Dube was called first and she was eventually
called by a policeman inside the ID Parade room.  There
was a
line-up of suspects with numbers above their heads and she identified
two of the suspects that were present at her house
on the night of
the incident. Although she could not recall the numbers that appeared
above the suspects heads at the ID Parade
due to a lapse of time she
pointed Accused 3 and Accused 1 as they appeared in the court dock.
She went on to testify that
Accused 3 was pointed first by her as the
one who kicked her whilst she was inside the bedroom and he also
demanded money and a
cellphone. His identifying features were his
complexion and dreadlocked hairstyle as he appeared to have them in
court as she was
testifying. She went on to highlight she considered
his face to be unique because the upper half of his face was roundish
but pointed
by the cheeks.  She did not hand him the cellphone
but told him it was on top of the bed.  She testified that her
cellphone
was not taken but Celiwe’s cellphone was taken.
Whilst being assaulted by Accused 3 who was on her left hand side
Accused
3 was facing her and she looked at him and ducked her face at
times as she was warned not to look at him.  According to her,

the assault lasted about 30 minutes and at all times during the
assault the light in the bedroom was switched on.
[24]
She identified Accused 1 as the ringleader when the door was pushed
in as he was in the front.  Apart from pushing the
door, all he
did was to take the TV and no one assisted him in doing that.  His
identifying features were his complexion,
side beards and was quite
hefty.  She went on to identify him from the photo album in
respect of the ID Parade marked Exhibit
H.  After pointing out
the two identified suspects she went back to the waiting room where
she found Dube waiting.  She
was in another room not the one
they initially waited in but could not remember how far was it from
the ID Parade room, it was
possibly, the third room from the waiting
room.  After ID they were collected from outside the station by
Sergeant Nene.
Before the ID they did not discuss the case as
they were advised by the police against doing so.  They did not
discuss the
description of the attackers because Ms Dube is not a
permanent resident at her homestead.  They did discuss the
incident
and have not recovered the robbed items.
[25]
On cross-examination in respect of Accused 1 by Mr Zulu she held firm
by her version as detailed by her evidence in chief.
Whilst the
Defense attempted to identify loopholes in the evidence of Ms Mkhonza
and Ms Dube  there were no material contradictions
elicited as
regards aspects relating to the ID Parade.  She reiterated that
she was not mistaken when identifying Accused
1 and was adamant he
was the one that pushed open the kitchen door.  She held firm to
her version regarding the description
of Accused 1 to the police
which description was also detailed in a statement she made to the
police.  She conceded without
hesitation she did not mention
Accused 1 beard in her statement.  The version that she saw
Accused 1 on 31/7/2015 when the
police brought him with others to
various houses in KwaMashu and identified them as the people who
robbed their homes, was vehemently
denied by her.  She
emphasised that it was Accused 1 who was at the scene of the incident
and whilst she had a sight of him
for a short while in the house it
was the first time she had ever seen him, taking into account this
was a moving scene her powers
of observation were good and went on to
advise the court that on the evening of the incident that Accused 1
wore a navy/black jacket
and black Bermuda shorts.
[26]
On cross-examination by Mr Dlamini on behalf of Accused 2 she
reiterated that she met Sergeant Ndlovu for the first time at
the
Inanda Police Station.  They were dropped by Sergeant Nene who
fetched them at their homestead and left them outside the
gate.
Upon being made aware of the ID she called Dube to come.  On the
fatal night she saw three people that were at
her homestead
attempting to open the door.  One of them was carrying a firearm
but could not identify him and he was not in
court as well.
[27]
On cross-examination by Accused 3’s representative she held
firm to her version that one person was carrying a firearm
although
in a written statement to the police marked as Exhibit K that two
people that carried a firearm but said she could not
recall saying
this to the police. She testified that she could not identify the
assailant with a firearm or describe Accused 3’s
clothing but
was adamant as to the identification of Accused 3 by his light
complexion and dreadlocked hairstyle.  The Defense
went on to
suggest it was only Accused 3 that has the unique hairstyle she went
on to confirm.  Although it was put to her
that Accused 3 had
this unique hairstyle, she conceded that there was another individual
appearing in the same ID Parade with a
similar hairstyle and it was
Accused 3’s complexion with the hairstyle that assisted her in
identifying him as the individual
that assaulted her that night.
Despite the ID Parade having been held some three months after
the incident and it was difficult
for her to estimate certain
timeframes relating thereto.  She was adamant that she had not
been coached to identify the Accused
as they appear before Court and
that she picked out Accused 3 first at the ID Parade as he was the
one who kicked her and associated
him with that assault on her.
Hence her immediate identification of Accused 3 at the ID
thereby dismissing Accused 3’s
Defense that she was mistaken as
to his identification as being present at the scene of the incident.
No material contradictions
were elicited.
[28]
As a witness she articulated clearly the events as they unfolded
without hesitation.  She was clear, precise and not shaken
under
cross examination in so far as her opportunity to observe the events
as they unfolded and her independent recollection of
the event, thus
placing reliability on her version in relation to the other state
witness: namely Dube. She had no motive to implicate
either of the
Accused identified by her as they were not known to her prior to the
incident.  Further, she was able to identify
them albeit several
months after the incident by complexion, stature and hairstyle which
she considered significant from the incident.
She was overall a
good witness for the State.
[29]
The state continued with its case and called upon Constable Sibusiso
Mpanza who testified that he is in the employ of the SAPS
for 11
years working in the Unit of the Durban Local Criminal Record
Centre.  He attended the ID Parade on 2/08/2015 and was
tasked
to take photographs and compiled the album which is referred to as
Exhibit H.
[30]
On cross-examination by the Defense no material contradictions were
elicited.  It was evident that he simple attended
the ID Parade
to take photographs and nothing else.  He had no prior
connection to the case prior to the arrest of the Accused
or
thereafter.  His, was a simple recollection of taking
photographs and nothing else.
[31]
The State furthered its case and brought in Sergeant Leornard
Bhekizenzo Ndlovu who testified that he has been in the employ
of the
SAPS for the 13 years under the Detective Unit of KwaMashu Police
Station.  He testified that he was called by Sgt
Nene on
31/7/2015 to conduct an ID Parade on 2/8/2015 at Inanda Police
Station.  He was informed and given the names of witnesses
that
would located in the vicinity of the benches at the Community
Services Centre at Inanda.  He called out the names, two
ladies
approached him and he escorted them inside to where the ID Parade
will be conducted.  He further oriented them as what
to expect.
He advised them they would be doing the identifications
individually and left them at the room under guard by
Constable SS
Ndlela and or Constable Dladla.  He was not certain at the time
of testifying which one had assisted him.
He then approached
the personnel who arrested those that were in the cells and asked
them to hand over four suspects pertaining
to the case Sgt Nene was
investigating and requested eleven additional people to participate
in the line-up.  Once all the
suspects were brought up to the ID
room he oriented them what to expect at the ID Parade.  He
testified that he focused on
the four suspects in respect of this
matter and enquired if they had any legal representatives to which
they responded they had
none.  He then went on to explain the
provisions of legal representation in so far as the Legal Aid Board
is concerned to
which he was told they did not see the need for
attorneys at this stage and would wait to see if the formal charges
were to be
laid against them at which stage they will opt for legal
aid at court.  He then proceeded in recording the individual
details
who formed part of the line-up and recorded it on the
Pro-forma ID Parade Form (SAP329).  He then instructed Constable
Mpanza
to take photos of the entire line-up whereafter he called upon
the first witness: Dube.  The first witness pointed out number
9
and number 15 as they appear in the SAP329.  He then asked
number 9 and number 15 to step forward and requested Constable
Mpanza
to take individual photographs of them both.  Once the
photographs were taken, they were asked to return to the line-up.
He
then went on to inform those in the line-up that a second witness
will be called and enquired if any of those appearing in the
line-up
had any complaints. None were recorded.
[32]
He then indicated that prior to second witness being called he
pointed out to those appearing in the line-up that they were
at
liberty to switch positions and change their clothes.  They all
indicated that the clothing was okay, thus the clothes
remained the
same. However, the suspect appearing as number 9 asked to move to
position number 12 and was accordingly moved and
this is noted in the
SAP329.  The first witness took approximately a minute to
identify the suspects.  The second witness
took approximately 50
seconds to identify the suspects appearing as number 6 and number 12
in the line-up.  He testified that
he followed the same
procedure with the second witness as he did with the first witness.
Once the suspects were identified, taking
individual photographs and
enquiring of any complaints.  After the identification had been
completed, he handed those appearing
in the line-up to the personnel
at the police station to return them to their cells.  He then
focused his attention on the
witnesses and obtained statements
relating to the pointing out which they signed.  He then
informed Sgt Nene that the ID Parade
was completed.  He
indicated that the ID Parade started at 12h00 and completed in its
entirety by 15h00 on 2/8/2015.
[33]
On cross-examination by the Defense this witness was scrutinised in
detail as regards the time it took for the ID Parade to
commence and
be completed whether he had observed the 18 Rules of Procedure as
detailed in section 37(1)(b) of the CPA, the number
of participants
and the appearances of persons in the line-up.  He was adamant
that he followed the correct procedures and
the ID Parade was
conducted in a fair manner, no constitutional rights were violated
and at all times, the Accused rights were
explained and what he was
told is what was recorded in the forms.  His version remained
consistent as detailed in his evidence
in chief and there were no
material contradictions between his evidence and that of Constable
Mpanza who were both present at the
ID Parade.  He further
confirmed he was impartial in this matter and simply worked on
information provided to him in that
Sgt Nene asked him to conduct the
ID Parade and Sgt Gumede gave him the case number.  He simple
took the suspects and put
them in the line-up with others and
conducted an ID Parade.
[34]
As a witness, despite the lapse of time, he came across as simply
regurgitating the events as they unfolded at the ID Parade
and that
he had no motive to do anything except his job and followed procedure
within the Guidelines of the Police Directives in
conducting the said
ID Parade.
[35]
The state called upon its fifth witness Ms Celiwe Lungile Mkhonza who
testified that she resides at […] at KwaMashu
with her cousin:
Nokuthula where the incident took place.  She testified that she
knew the deceased and was residing at the
adjacent building at the
same place of residence. She also knows Dube by virtue of her being
the mother of Xolani’s child.
On the fatal night, 27
April 2015 she was at home when she saw four boys after she relieved
herself. She woke Nokuthula and told
her that she heard the voice of
a screaming woman like that of Dube, and they went to check why she
was crying.  Whilst in
the kitchen which was lit up, she saw the
boys pushing the door.  A struggle ensued between the boys,
herself and Nokuthula
over the kitchen door as the boys were pushing
to enter and they were pushing to close the door.  The boys
forcibly entered,
demanded money, assaulted them, and she was hit on
the face.  Whilst the one male was assaulting her the others
were busy
searching for money.  She was pushed into the room
where money was demanded from her and she was forced up against the
wall
and told to sit down.  All this, while there was movement
in the house with different boys leaving and entering the house,

cellphones were also demanded.  Nokuthula told them where the
cellphones were.  The individual who hit her returned and
swore
at them demanding money.
[36]
She further testified that she saw them taking some items including
the Television (TV) that was in the dining room and a cellphone
to
the value of R1000, that she never recovered, which was on top of her
bed.  She identified the individual who took the
TV by his
clothing and confirmed that he was wearing black/ navy shorts and a
black jacket. The other one was wearing a grey jacket
with a hood and
he had mohawk haircut, other had his face wrapped with a jacket and
he had a gun, the other one was small built
and had a silver/gold
teeth.  She went on to testify that the one who took the TV was
well-built and the person who assaulted
her wore the grey jacket and
he was dark in complexion and had a medium size face and was before
court identified as Accused 2.
She indicated that once they had
taken items and assaulted them they left the house and she was
standing close to the door where
she noticed that there were a number
of others outside. When she returned to her bedroom to check on her
child she found an individual
by the name of ‘Dray’ in
the bedroom sitting next to the child.  He was drunk and
bleeding from his forehead.
There was also sufficient light
that enabled her to have clear visibility, which was derived from the
light in the kitchen as well
two outside lights, one being outside
the kitchen door and the other from Xolani’s side. She did not
attend the ID Parade
because on the 2/8/2015, she was at work.
All the stolen items were never recovered.
[37]
On cross-examination by the representative of Accused 2 and Accused
3, she testified that she did not know Accused 2 in specific
before
the night of the incident and confirmed that she saw him for the
first time on that night. She also confirmed that she made
a
statement to the police and was not mistaken as regards the
identification of Accused 2 who assaulted her and took her cellphone.

She further confirmed that there was no specific ringleader and on
the night of the incident there were a number of individuals
who
entered the home and behaved in an aggressive and violent manner.
She testified that the entire incident took approximately
ten minutes
and that it was a moving scene that she was describing the events
unfolded in respect of her recollection.  She
went on to testify
that whilst Accused 3 was of a light complexion and had a unique
hairstyle as he currently appears in court,
she would have described
him if she had seen him on that day.  However, since the events
unfolded very quickly, she focused
on the person who was assaulting
her and the demands that were made of her. Nokuthula was
approximately 6m away from her but she
could see her being assaulted,
she was more focused on what was happening to her.
[38]
As a witness, her powers of observation were heightened by the
stressful situation she found herself in.  She was precise
and
to the point, without hesitation, emphatically clear as regards her
independent recollection of the same incident testified
to by Dube
and Nokuthula.  Whilst certain elements of her evidence before
court did not appear in her statement to the police
there were no
material contradictions in her evidence.  Under
cross-examination there were no material contradictions raised
in so
far as evidence tendered by her in relation to the other state
witnesses.  Having testified approximately two years
after the
incident took place, her recollection of the events was precise and
unbiased.  This Court did not gain the impression
that it was in
any way manufactured to coincide with the previous state witnesses.
[39]
The State then called Sergeant Ndlela who testified that he has been
in the employ of the SAPS for 13 years and stationed at
KwaMashu
Police Station under the Case Investigation Unit.  He attended
the ID Parade and was tasked to guard the witnesses
who attended the
ID Parade.  He testified that the witnesses were in a room prior
to the ID Parade being held and he warned
them not to speak to each
other.  He confirmed that he opened the door to the room they
were in and showed them where Constable
Dladla was who then escorted
them to the room where the ID Parade was held.  When the name of
the witness was called he simply
directed the witness to Constable
Dladla and once the ID Parade was completed by that witness, the
witness did not return to him.
He testified that Constable TE
Dladla has since passed on and could not recall whether he called the
witness or not on that day.
He testified that he had met the
witnesses at the Inanda Police Station where the ID Parade was held
and did not see the Investigating
Officer at the Police Station.
He took instructions from Sgt Ndlovu and did not know the police
officers who allegedly assaulted
Accused 1 by the names provided to
him.  He further testified that he could not comment on the
witnesses crossing paths as
they proceeded to the ID Parade room.
[40]
As a witness he provided this court with a clear but simple
recollection of his involvement in so far as ID Parade was
concerned.
No contradictions were raised between the evidence
in chief and the cross-examination.
[41]
The State then called Sergeant Philangenkosi Mkhize who testified
that he is also employed at the SAPS and based at KwaMashu
at
E-Section.  He testified that he attended the ID Parade on
2/8/2015 and was tasked to escort the witnesses out of the ID
Parade
room when they were finished.  He testified that the rooms were
not far apart and he escorted two witnesses on 2/8/2015.
His evidence
was simply, precise and to the point, simply detailing procedure that
was followed on the day in question.
[42]
The State called its final witness Sergeant Sandile Ngcobo who
testified that he is employed at the South African Police Service
and
stationed at KwaMashu Police Station.  On 2/8/2015 he was asked
to attend and guard the witnesses at the ID Parade.
His main
duty was to separate the witnesses who had attended the ID Parade
from those who had not attended the ID Parade at that
stage.  He
was at all times placed in a separate room from the ID Parade room
and the witnesses were brought to him by Sergeant
Mkhize.  Under
cross examination, he testified that he did not know of the police
officers who are alleged to have assaulted
Accused 1 and could not
recall seeing Sgt Nene at the police station on 2/8/2015 nor was he
the alleged ‘Sticks’ as
referred to by Accused 1.
[43]
As a witness he was despite, the time lapse, precise as regards his
recollection of his role at the ID Parade.
At
this stage, the State called no further witnesses and closed its
case.
[44]
At this juncture, all three Accused applied for a discharge as
envisaged in section 174 of the CPA.  The following was
placed
before this Court in respect of Accused 1 with reference to case law
that the evidence by the State was of such a poor quality
to the
extent no reasonable person could convict due to the following
factors:
(a)
There
was no evidence why the Accused was arrested.
(b)
No
exhibits were found in the Accused possession regarding the
commission of the offence.
(c)
The
witnesses: Celiwe and Nokuthula contradicted themselves in that
Celiwe said the incident took ten minutes whilst Nokuthula said
it
took 30 minutes.  He went on to mention other discrepancies
which are on record.
(d)
Apart
from the aspects of visibility being poor, hence casting doubt on the
identification of Accused 1, he also emphasised that
there was a
total lack of compliance with the provisions of section 37(1)(b) of
the CPA regarding the conducting of the ID Parade.
Based
on these grounds, the State’s evidence was so poor that no
court could convict under the circumstances.
[45]
Mr Dlamini on behalf of Accused 2 also applied for the discharge of
Accused 2 in terms of section 174 of the CPA sharing the
same
sentiments as expressed by Mr Zulu for Accused 1. Further advancing
the argument that the State failed to prove a
prima
facie
case against Accused 2.
[46]
This Court was presented with the Head of Arguments detailing various
arguments in support of the application by Accused 3.
It
therefore, sees no need to regurgitate all points raised therein save
to state the Court considered each argument carefully
with reference
to the case law presented.
[47]
The State then advanced its argument in asking this Court to dismiss
the applications for a discharge in terms of section 174.
Some of the
points highlighted with reference to case law are as follows: (i)
Whether in this specific case, without the Accused
giving evidence
the State had proved its case to result in a conviction, as stated in
S v
Shuping
[1]
whether the Defense case would supplement the State case. (ii) the
Court had to consider the evidence in totality and to take into

account the evidence presented by Dube and the Mkhonzas who were
present at the scene in its entirety. (iii) the Court had to consider

further whether the role of each Accused was sufficiently put forth
to have the Accused answer to a case at this juncture. (iv)
last but
not least, the police have a set of Guidelines relating to police
procedures as enumerated in section 37 and whether those
were
sufficiently complied with to have the Accused answer to the charges
preferred against them.
[48]
For the reasons enumerated above, the Accused in my view had a case
to answer to.  Our courts have repeatedly held that
credibility
in an application for a discharge under section 174 is one of the key
features that should be taken into account by
the court… thus
it plays ‘only a very limited role’.
[2]
Its limited role was contextualised in
S
v Lubaxa
[3]
when the court pointed out that ‘
its
consideration does not necessarily rely on the burden of proof or the
exercise of the right to silence but on the minimum weight
of the
evidence that warranted a prosecution in the first place that a
possibility of a conviction exist’
.
In this matter, I
was of the view, that the State had adduced sufficient evidence on
which a reasonable man may convict.  Hence
the Accused were
called upon to provide answers in this case.
[4]
The
Defense Case
[49]
Accused 1 is an adult male of 23 years of age.  His highest
standard of education is Standard 8 and having left School
in the
middle of Standard 9.  He denied all the charges preferred
against him by the State against him and testified that
on the fatal
night he was never at LB5 Sibisi Road and did not commit the alleged
crimes. He was thus arrested by two police officers
who alighted from
a white motor vehicle at the bus stop near his home at Bester:
KwaMashu.  He testified that the police namely:
Mtshali
and Dubazane pointed firearms at him, ordered him to lie down,
searched his bag and where after he was taken to the
police station
despite them having found nothing in his bag except his jacket.
He was further interrogated to reveal the
names of the boys that
committed robberies in the neighbourhood.  He got to know that
they were the police at the police station
and there was no Warrant
of Arrest shown to him or the Identity Cards which were indicative
that they were police. He was then
taken to KwaMashu E-Section and
assaulted by Mtshali and Dubazane and other unknown officers.
Officer Mtshali slapped him
with open hands whilst his hands were
cuffed at the back and officer Buthelezi fastened his hands to a car
rim and hit him with
his takkie on his back whilst his legs were tied
to the table until a Captain, whom he could not remember rescued him
from the
beating. Officers Mtolo and Sticks arrived and said that
they would show him if he did not want to talk.  Officer Mtolo
placed
a glove over his head and sprayed him with a spray gun asking
him to produce guns.  He was unable to breathe to the extent

that he urinated on himself.  Officer Buthelezi hit him with a
hockey stick on his stomach until another officer arrived and
said
that if he knew something, he would have long spoken in light of the
beatings.  He suffered injuries and Officer Sticks
also stabbed
him with an okapi knife on his left forearm before he was taken to
the cells.
[50]
Eventually, he with others were taken in police vehicles to look for
one Sandile who he knew by sight and were brought back
to the cells
around 3am. He testified that they were taken to different places in
KwaMashu, Inanda, Newlands and Phoenix by the
police where they were
paraded before the victims of robberies and these victims were told
that they were the persons who robbed
them.  He then testified
that he appeared at the ID Parade on 2/8/2015 and appeared in court
on 4/8/2015 as the 3/8/2015 was
a holiday.  He further confirmed
that at his court appearance he told the magistrate of the assault
perpetrated on him by
the police but was asked by the magistrate to
return to the police station.  As there were other cases to be
preferred against
him, he returned to the police station where he
also appeared in other ID Parades.  He denied that he robbed the
State Witnesses
in this case and alleged that it was possible that
Dube and Nokuthula worked with the police in identifying him because
there was
no one who resembled him at the ID Parade.  He further
testified that there were no rights explained to him.  They were

also fetched from the cell and found the other group already lined up
for the ID Parade. He never reported the assault because
the police
did not allow him access to the phones and even his family knew of
his arrest only when he was at Westville prison and
no property was
shown to link him to the crime and therefore denies his involvement
in the commission of the offence.
[51]
Under cross examination by Accused 2 representative he confirmed that
Accused 2 was his neighbour.  However, he never
saw Accused
often as he had left the area in 2014 and went to leave in Malukazi.
He only saw Accused 2 after his arrest at
the police station on the
30/7/2015.  In so far as Accused 3 was concerned, he met him for
the first time at the police station
when he arrived, approximately
18h00 on 29/7/2015.  Under cross examination by the state, a
number of contradictions were
raised: he claimed to have been
arrested at a bus stop in a public area where others were present. He
testified that police picked
him up as they were looking for his
friend Sandile. He testified that the police had charged him in this
case to teach him a lesson
as he did not want to release information
about Sandile. He went on to concede that in April 2015 he was living
at Moweni whilst
he lived at Bester, where he was guarding his
cousin: Wonderboy Ngcobo’s house in Moweni.  In April
2015, he was sleeping
at home with his girlfriend and child and this
was conveyed to Officer Mtolo but not to Sgt Nene who was the
Investigating Officer.
He conceded that it was his mistake that the
Court was not told as well in evidence in chief where he was in April
2015. He conceded
that it was his mistake that this version was not
put to the state’s witnesses that testified including the
Investigating
Officer. He further testified that he did not give the
police the name of the mother of his child when the incident happened
because
she phoned when he was arrested and police swore at her and
asked her to stop calling.  He never told the Investigating
Officer
and it was his mistake that he did not tell the Court of his
alibi in his evidence in chief. He conceded that whilst on parade at

the homesteads he did not see any of the witnesses that testified for
the state, in specific, Dube and Nokuthula. He suggested
that Dube
was lying when she said he robbed her.  He also suggested that
the witnesses were mistaken in identifying him and
whilst he signed
his warning statement that his rights had not been explained and he
did so even though he had no knowledge of
the document he was
signing. Whilst he was not assaulted or threatened by Sgt Nene in any
way, he signed out of fear of other police
officers.  Last but
not least, he conceded that the Investigating Officer and himself had
spoken nothing about this case.
[52]
As a witness , he was evasive and unreliable.  He tailored his
evidence to suite the answers he thought this Court would
accept.
He raised an alibi under cross-examination which was never mentioned
in his evidence in chief nor was it put to the
State witnesses which
raises a question in this Court’s mind as to the veracity of
such alibi.  Whilst he could clearly
recollect events pertaining
to the alleged assault perpetrated on him by officers not known to
State witnesses within the employ
of SAPS leaves many questions in
this Court’s mind as to the alleged assault including the
seriousness of having been stabbed
and not receiving any medical
attention for such injury.  Accused 1 called no further
witnesses and closed his case.
[53]
Accused 2 testified that he was an adult male of 24 years of age. In
April 2015 he was residing at Malukazi which is close
to Isipingo and
is at Umlazi. He knows Accused 1 as he was his neighbour and they
grew up together. He did not know Accused 3.
In so far as the charges
preferred against him were concerned, he knew nothing about the
murder and robbery. He was aware of LB
Section in KwaMashu. More
specifically he testified with reference to the 27
th
April 2015 that he had in fact not gone to KwaMashu for the whole
year of 2015 and could not remember where he was on the 27
th
April 2015.
[54]
As far as his arrest was concerned, he could not remember the date of
his arrest but it was towards the end of July. He was
at his house
sleeping and around 2:00am when the police kicked open the door
asking for Ayo. He identified himself as Ayo and they
then demanded
property and guns from him. They arrested him in respect of a number
of cases and not only the case he is appearing
in now before this
Court, but also others in other courts where he is still appearing.
He told the police he knew nothing about
property and they told him
not to be stubborn. He was then assaulted with the police covering
his face with a glove. It was one
Ngcobo, known as “Sticks”,
that perpetrated the assault. The police then left with him and he
was placed in a vehicle
where many other vehicles were present. He
confirmed that at this stage the police already had Accused 1 and
another person, not
known to him, in custody. After they left
Malukazi they proceeded towards Bester. Prior to arriving at Bester,
they went to KwaMashu.
They proceeded from place to place and went to
different homesteads, which belonged to victims of the
housebreakings. Eventually
he was taken to the police station where
he met Accused 3. At the police station all charges were preferred
against him and he
was told where and when he committed the crimes,
by Detectives at the Police station.
[55]
As far as the ID parade was concerned, he testified that he attended
many ID Parades so he could not recall specifically which
ID parades
he stood in. He met the Investigating Officer after the ID Parade was
held. The Investigating Officer never assaulted
him.
[56]
Paragraph 8 of Exhibit F was raised and he testified that it shocked
him to hear the contents thereof. He would not admit to
anything he
knew nothing about or explain what he knew nothing about. At the time
the warning statement was taken he had no attorney
nor did the police
give him an opportunity to get an attorney.
[57]
Exhibit L (the Notice of Rights) as signed by Accused 2 was
traversed. He denied that his rights were explained or that he
was
involved in the crime. He testified that both Dube and Celiwe were
mistaken in identifying him. He further testified that he
did not
know Dube or Celiwe and saw them both for the first time at these
court proceedings.
[58]
On cross-examination by Accused 3 representative, he testified that
after having been picked up in the early hours of the morning
he was
taken to the police cells between 4am & 6am. He was the last
person to be arrested and the two others that were arrested
before
him were in separate vehicles. The individual arrested before him
apart from Accused 3 was one Sifiso Mhlongo who formed
part of the ID
Parade. He did not know him prior to this but is aware that he was
appearing in other cases that are before court.
[59]
Accused 3 was not known to him and he met him at the police station
for the first time. Accused 3 was not appearing in any
of those
cases. The police searched the house they had found him in for guns,
TVs and cell phones. They found none. At the ID Parade
he appeared
with others who were in the cells with him. He referenced to others
who were already in cells prior to Accused 1, himself
and Mhlongo
arriving at the Police Station. Investigating Officer Nene had asked
for all of them to attend the ID Parade and he
was told he was
arrested in the same case as Accused 1, 3 and Sifiso Mhlongo.
[60]
On cross-examination by the State he testified that his home was at
Bester and Malukazi was his girlfriend’s place that
she rented
between 2014 & 2015. He was in matric in 2012 but failed. He was
of the opinion that his arrest in Malukazi had
been led by Accused 1
showing the Police his house as he knew the house as he visited
there; they were friends and grew up together.
He re-iterated that he
was familiar with Accused 1 and not Sifiso and that he did not see
the state witnesses before the court
hearing nor had he seen them at
Inanda or elsewhere prior to the court hearing. He went on to suggest
that despite not knowing
Dube he had no knowledge why she pointed him
out as he had not seen her before the court appearance. Clearly she
was speaking “great
lies” in identifying him as one of
the perpetrators.
[61]
He admitted that he signed the warning statement taken by Sgt Nene
but signed out of fear as those who had assaulted him were
present
when the warning statement was taken. He confirmed he never told Sgt
Nene of the assaults and despite a glove being placed
over his head,
he suffered no injuries. He could not recall where he was on the 27
th
April 2015.
[62]
In totality, Accused 2 was a witness with a selective memory. He
could easily recall where he was when arrested but could not

independently say where he was on the day of the incident. Whilst he
admitted to knowing Accused 1 his stance on their friendship
was
contrary to what Accused 1 testified to. In fact he suggested that it
was Accused 1 who led the police to him as he had visited
his home in
Malukazi whilst Accused 1 indicated that they had not seen each other
in 2015 as Accused 2 had relocated.  It
is improbable that the
state witnesses, Dube and Mkhonza, would be motivated to implicate
Accused 2 when, on his own version, he
had not known or seen them
prior to these court appearances. His assertion that Dube would speak
great lies against someone she
had not known seems improbable to say
the least.
[63]
As a Witness, the impression of Accused 2 was poor in relation to the
state witness that testified. His version was a simple
one. He
blatantly stated he could not remember where he was on the 27
th
April 2015 but was clear he was not at the scene of the incident. On
his version, he was assaulted by the Police yet he, for no
apparent
reason, did not inform Sgt Nene of such assault nor did he suffer any
injuries. Based on fear albeit not forced to, he
signed a warning
statement when his rights were not explained. It seems improbable
that his rights were not explained but he signed
the warning
statement when not forced to.
Accused
2 called no witnesses and closed his case.
[65]
Accused 3 elected to testify in his defense. He was born on the 16
th
December 1994 and is currently unemployed. He resides at Inanda,
Newtown with his parents and siblings and is a semi-professional

soccer player to earn an income. He has been playing soccer since the
age of 11 and belongs to the Menziwa Tigers Club which is
based in
Ntuzuma. In the year 2015 he was studying Grade 12 at Nhlakanipho
High School which is far from Newtown. He took transport
to school
and apart from living in Newtown he also resided at Ntshungwana at
Inanda. Since a close friend of his had passed on
he resided at
Ntshungwana over the weekends and during holidays to ensure a male
figure was seen at the premises of his deceased
friend as the
household consisted only of females. At these premises he resided in
the outside building and his appearance at the
premises warded off
thugs from entering the premises.  His fame from playing soccer
also contributed to people knowing him
when he stayed there. In the
outside building he resided alone or with his then girlfriend.
[66]
He testified that he was at Wandile’s place in Ntshungwana–Area
2 when he was arrested on the 29
th
July 2015, which was a Wednesday at approximately 1:30pm. Dagga and
tobacco were sold from Wandile’s place and upon his arrest,
he
was there smoking dagga. He was arrested together with Sifiso Mhlongo
and others he could not remember. He knew Mhlongo who
also frequented
Wandiles Place where he also smoked dagga. He was given no reason for
his arrest and was taken to Mshebeni Inanda
Police Station where he
was kept for approximately two weeks. Whilst at the Police Station
and after the ID Parade was held, he
saw Investigating Officer Nene
but did not recall speaking to him.
[67]
He testified that the police found no exhibits on him and that prior
to his arrest he did not know Accused 1 or Accused 2.
He could not
say if Accused 1 was in one of the vehicles that came to Wandile’s
place where he was arrested and that he saw
accused 2 for the first
time at the police station.
[68]
In so far as the charges preferred against him are concerned, he
denied that he was at LB5 Sibisi Road on the 27
th
April 2015, he did not know where Sibisi Road is and in the early
hours of the 27
th
April 2015 he had no knowledge of where he was but he was likely to
have been guarding at Ntshungwana. He was not sure if the 27
th
April 2015 was a holiday or fell within the holidays.
[69]
He testified that he saw state witness Nokuthula for the first time
at court and on her version if she had been kicked by him
she would
have been seriously injured as he was a soccer player. He is, however
not violent towards women. She was clearly mistaken
when she
identified him. No one at the ID parade looked like him nor were his
rights explained to him. As far as he knew, Sifiso
Mhlongo was still
at Westville Prison.
[70]
Under cross examination by the State, he testified that he was
smoking dagga at Wandile’s place and he was in the company
of
Sifiso Mhlongo, Wandile and Wandile. He was given no reason for his
arrest but he suspects it was because he was smoking dagga.
He was
not aware why the others were arrested. His father supervised his
assistance rendered to his late friend’s family
but conceded
that no one supervised him during the middle of the night.
[71]
On the 27
th
April 2015 he was in the company of his ex-girlfriend who could
confirm where he was but he did not tell the police of this. He
was
of the opinion that Nokuthula lied about him being at the premises
and it was simply bad luck that she had picked him out but
conceded
that she positively identified him at the ID parade. According to
him, it was a co-incidence that she identified him as
he had not seen
her before nor did he know her. She was clearly mistaken in
identifying him and has no idea why she would lie.
Albeit that the
visibility was good she clearly saw someone else.
[72]
He earned R 300.00 per week playing soccer and all he told
Investigating Officer Nene was that he did not commit the crime
as
Sgt Nene did not tell him where the crime had happened. He was never
charged for smoking dagga.
[73]
As a witness, Accused 3 was soft in demeanor. Evaluating his evidence
in the light of the other witnesses who testified before
this court,
what is clear is that he was tailoring a version to suit his needs.
He contradicted himself in the following respects:-
(a) In his evidence in
chief he was clear that he had no knowledge of where he was on the
27
th
April 2015 yet under cross examination by the State
he puts forth an alibi that he was with his ex-girlfriend that could
confirm
where he was;
(b) In his evidence in
chief he testified that he was arrested with Sifiso Mhlongo and
others he did not know yet under cross examination
he was with
Mhlongo, Wandile and Wandile;
(c) Further, in raising
an alibi he did not tell the police and it appears he did not even
tell his Defense Counsel as it was not
raised prior to his testimony
nor was this ever posed to state witnesses to exclude the possibility
that he was not at the scene
of the incident;
[74]
In contrast to the State Witness Nokuthula based on the quality and
independent recollection of his identification by the said
Nokuthula,
it was she who identified him in less than 50 seconds at the ID
Parade some three months after the incident. It seems
improbable that
Accused 3, who was on his own version not known to her, would
arbitrarily pick him out at an ID Parade because
no one else in the
ID Parade had the same hairstyle or complexion. She had a clear
opportunity to observe the events and identified
Accused 3 as the
person who assaulted her. He was facing her at the time of the
assault so she had ample opportunity to look at
his face. She had no
motive to implicate him as she did not know him, on his own version,
and the only objective inference based
on the facts support the
version that Accused 3 was in fact at the scene of the incident on
the 27
th
April 2015 amongst other perpetrators.
[75]
Whilst it is accepted that Accused 3 has no duty to put forth an
alibi, under these serious circumstances it is questionable
why he
would not put forth his alibi to his own Defense Counsel who could
have put his version/defense to state witnesses to rebut
the
probability that he was at the scene of the incident.  Accused 3
did not call further witnesses and closed his case.
Analysis
[76]
The incident is ascribed to a spree of illegal activities, which
resulted in not only the unauthorized entry, unlawful access
into
people’s homes and robbery with aggravating circumstances but
also the death of Mr Xolani Mnguni.  The incident
came in the
wake of the spate of violent crimes that have reached alarming
proportions in South Africa.
[5]
Thus, it is not the intention of this judgment to whine about the
levels of crime in South Africa but to focus on the credibility
of
the evidence presented before this Court in the determination of the
guilt of the Accused.  The core content, which is
the subject
matter of this enquiry, is the question that arises whether the
evidence placed before it is acceptable as ‘truth’
beyond
reasonable doubt as required by the standards of adjudication in
criminal trials.  This is the high standard of proof
which had
long developed even before the 1996 Constitution which envisages a
transformed system of criminal justice.
[6]
Considering South Africa’s history, particularly the criminal
justice which was characterized by a hallmark of a tyrannical
system
of law,
[7]
it becomes imperative
that it transforms itself within the framework of the principles of
the new dispensation.  This transformation
is essential with
regard to the way it conduct itself, the jurisprudence it produces
and the effect of such restructuring for social
change.
[77]
The centrality of this matter borders on the credibility of the
evidence, mainly, of the three witnesses: Ms Ntombifikile Dube

(Dube), Ms Nokuthula Mkhonza (Nokuthula) and Ms Celiwe Mkhonza
(Celiwe) who were the subject of this violent behavior on the night

in question. Nokuthula’s evidence became a more contentious,
thorny and sensitive issue as she was the single witness that

identified Accused 3 at the ID parade.  In turn, Accused 1 other
than barely denying his involvement in the commission of
the crimes
placed before this Court that he was brutally assaulted by the
afore-mentioned police officers to the extent of not
getting
assistance from the magistrate when he raised the matter with
him/her.  In addition, the other two Accused (2&3)
equally
denied their link to the case citing a number of reasons as also
mentioned above. The evidence of the police officers starting
from
the Investigating Officer (Sergeant Nene), ID Conductor (Sergeant
Ndlovu), Assistants at the ID (Sergeant Ndlela, Sergeant
Mkhize and
Sergeant Ngcobo) and the Photographer (Constable Mpanza) were also
the subject of heavy cross-examination regarding
the way in which
this matter was handled.
[78]
Accordingly, the significance of the credibility of the evidence
placed before this Court cannot be overemphasized.  The
court is
required to consider the evidence presented before it holistically
and not adopt a ‘slaughter-house’ approach
in the
determination of the guilt of the accused.
[8]
Van Zyl J affirmed this principle in
Ganda
v The State
[9]
when he held that
‘
a
court must in the ultimate analysis look at the evidence holistically
in order to determine whether the guilt of the accused is
proved
beyond reasonable doubt [and] this does not mean that the breaking
down of the evidence in its component parts is not a
useful aid to a
proper evaluation and understanding thereof’
.
[10]
[79]
It is clear that the court is required to tread carefully in
assessing the evidence in order to sift the case from what is

reliable from what is untrustworthy in ensuring that it reaches a
just outcome that will fit the crime that has been committed.

The contention was similarly expressed by Theron AJA (as she then
was) when she held in
Sithole
v The State
[11]
that
‘
it is the
duty of the trier of fact to weigh up and assess all contradictions,
discrepancies and other defects in the evidence and,
in the end, to
decide whether on the totality of the evidence the state has proved
the guilt of the accused beyond reasonable doubt.
The trier of
fact also has to take into account the circumstances under which the
observations were made and the different vantage
points of witnesses,
the reasons for the contradictions and the effect of the
contradictions with regard to the reliability and
credibility’
.
[12]
The same principle applies equally to the evidence tendered by the
Accused which requires the consideration of the evidence
in its
entirety because the conviction stands only if there are no
reasonable doubts about the evidence that implicates him in
the
commission of the crime.  This means as pointed out by Heher AJA
in
S v
Chabalala
[13]
that the Court has to be aware of the ‘
inherent
probabilities that point towards the guilt of the accused as opposed
to those that are indicative of his innocence, taking
into account
the strengths and weaknesses in order to decide whether the balance
weighs heavily in favour of the State so as to
exclude any reasonable
doubt about the accused guilt’
.
[14]
[80]
Bearing this approach in mind, this case presents an opportunity to
exercise caution in the evaluation of the evidence before
this
Court.  This is borne by the fact that this Court is alive to
the possibility of the vulnerability of the witnesses that
find
themselves in circumstances of this nature that could lead to an
honest mistake being made in the presentation of the evidence
before
the Court.  The situation is more intense when a single witness,
particularly when the evidence relied upon is drawn
from an ID
Parade, as is the case in this matter with regard to Accused 3.
This is prompted by what had long been laid in
S
v Mthethwa
[15]
as Holmes JA approached the caution principle as follows:
because
of the fallibility of human observation, evidence of identification
is approached by the Courts with some caution. It is
not enough for
the identifying witness to be honest: The reliability of his
observation must also be tested. This depends on various
factors,
such as the lighting, visibility, and eyesight; the proximity of the
witness; his opportunity for observation, both as
to time and
situation; the extent of his prior knowledge of the accused; the
mobility of the scene; corroboration; suggestibility;
the accused’s
face, voice, build, gait, and dress; the result of identification
parades, if any; and, of course, the evidence
by or on behalf of the
accused. The list is not exhaustive. These factors, or such of them
as are applicable in a particular case,
are not individually
decisive, but must be weighed one against the other, in the light of
the totality of the evidence, and the
probabilities…
[16]
[81]
In the present matter, in view of the totality of the argument of the
Defense in respect of all the Accused, taking into account
that they
were represented by different legal representatives, the Counsels
argued very strongly and attempted to persuade this
Court that the
State’s evidence was of such a poor quality and no reasonable
court could convict on such evidence.
They cited a numbers of
reasons which include (i) the lack of corroboration between the
witnesses, (ii) the poor investigation
and of the way in which the ID
was conducted, (iii) lack of compliance with the 18 Rules of
Procedure as envisaged section 37 of
the CPA (iv) the court should be
cautious in evaluating the truthfulness of a single witness as
prescribed by section 208 of the
CPA, particularly in respect of
Accused 3 who was identified only by Nokuthula (v) there is therefore
little evidence against Accused
3 because there is no onus on him to
prove his innocence and the case against him was one of mistaken
identity (vi) no evidence
of ballistic testing was presented (vii)
none of the arresting officers were called to testify because there
was a coordinated
effort to effect arrest (viii) the police adopted a
‘flip-flop’ approach in the conducting of the ID in order
to get
the Accused to court before the prescribed limit of 48 hours
(ix)  there was also another suspect Mr Sifiso Mhlongo who was

arrested with Accused 3 at the dagga place who did not appear before
this Court and last not least (x) Sergeant Nene did not know
the
suspects.
[82]
Accordingly, I am of the view that there are indications in the
evidence that give credence to the witnesses’ version
of the
events on the night in question, the legitimacy of the ID Parade and
the spell of a doubt on the Accused bare denial of
the commission of
the offence.  First, it was not in dispute that the Accused were
already detained in respect of other crimes
that are not linked to
this matter.  It was therefore only after Sergeant Nene received
a tip-off that there are suspects
at Inanda Police Station that might
be linked to the LB5 section crime.  Hence the quest for the
holding of the ID Parade
which was held on 2/8/2015 when the Accused
were already arrested on 29 July 2015.  Secondly, the Accused
were officially
identified for the first time at the ID Parade by the
witnesses: Dube and Nokuthula except for Celiwe who could not attend
it because
of work commitments.  They were formally charged on
2/8/2015 following the outcome of being pointed out at the ID
Parade.
Since the Accused were identified at the ID Parade and
charged only after they were pointed out, it is important that I
briefly
look at the ID as the investigative method in the development
of the adjudicative principles of criminal law.
[83]
It is not the purpose of this judgment to go at length about the
purpose of the ID Parade.  Thus, it is befitting to note
that
there are 18 Rules of Procedure that have been developed in
accordance with section 37(1)(b) of the CPA that provides guidance
on
how the ID Parade should be conducted.  It is also not my
intention to provide an analysis of each of the Rule other than

highlighting that they are meant to ensure that they are observed
properly to the effect that the identification of an accused
acquires
a reliability it may not otherwise have received.
[17]
They are meant to advance the evidential cogency of the ID Parade.
The importance of its evidence relies on the establishment
on whether
it was conducted fairly in accordance with the rules of
practice.
[18]
In this
way, the Rules gives effect to the ID Parade as an investigative
procedure that enhances the quality of the evidence
to be presented
before the Court.  It is deduced from the Rules that the ID
Parade should be characterized by elements of
fairness, accuracy,
objectiveness in the witness identification of the accused and
adherence by police officers in upholding the
principle of fairness.
These factors provides a foresight to the Court to assess the quality
of the investigation as it provides
a far more persuasive evidence
than dock-identification.  In general, ‘fairness’
without engaging in its deep-rooted
analysis, entails the enhancement
of compliance with the rules and a further advancement to the
prescripts of the new constitutional
dispensation.
[84]
In this case, the Defense argued very strongly against the lack of
compliance with the Rules of the ID Parade.  I am persuaded
by
my learned colleagues Du Toit
et
al
(2006: 7) as quoted with approval by Cloete J (as he then was) in
S
v Mphala & Another
[19]
who held that an accused does not have the right, whether or not he
has received legal representation not to participate in an
ID Parade
held in accordance with the prescribed rules of section 37(1)(b) of
the CPA and to require an Accused to participate
in an ID Parade is
not a violation of the Accused’s constitutional rights.
As substantiated, the Rules are not the
creators of rights but a
framework that is designed to ensure that fairness is upheld in the
pointing out process.  Lack of
compliance with any of them is
not fatal and would not render the evidence inadmissible.  As
simply put by Borchers J in
S
v Monyane and Others
:
[20]
‘
Police
Rules’ are, however, merely guidelines to the police on the
procedures to be followed in the holding of the identification

parades.  The rules do not creates rights and as in the case of
non-observance of so-called ‘Judges Rules’ relating
to
confessions, non-compliance with one or another of them will not
necessarily result in a ruling that the parade is inadmissible’.
[21]
[87]
Accordingly, I am satisfied that the ID Parade was not riddled with
material factors that fell foul of the prescripts of the
regulatory
framework as sanctioned by section 37(1)(b) of the CPA.  This
means that I could find no flagrant disregard of
the constitutional
rights of the Accused.  Sergeant Nene (Investigating Officer:
IO) in collaboration with Sergeant Ndlovu
(ID Conductor) and the
other Officers that were in charge of the ID Parade dealt properly
with the pointing out procedure within
the framework of ‘fairness’
which is the underlying principle in this regard.  The
contention is prompted by the
fact that as presented before this
Court, its purpose was communicated to all the 3 Accused in the
language that they understood
as envisaged in section 35(3)(k) of the
1996 Constitution.  I also found no reason that they did not
understand the implications
of the pointing out.  I could also
not find the set-up prejudicial to either of them because from the
fifteen participants
that partook in the ID Parade I do not have a
reason to believe that the witnesses could falsely implicate the
three Accused in
the commission of the crimes. They were further
given an opportunity to change the position numbers with Accused 1
changing from
his initial number 9 position to number 12 where the
witness: Nokuthula again identified him without a measure of doubt
presented
before this Court that she could have colluded with Dube
who was the first witness to do the pointing out.  The pointing
out
itself, which lasted less than two minutes, with the first
witness: Dube taking one minute and Nokuthula taking 50 seconds is
indicative
of the reliable observation that they made when they were
subject to this ordeal.  Of special significance is the fact
that
there was evidence relating to the Accused clothing, which was
supplemented by their special features relating to physical and
facial attributes that they were identified with.  All the
evidential documents relating to the way in which the ID Parade
was
conducted were produced in this Court and marked as Exhibits.
[88]
Accordingly, the evidence of the three witnesses, notwithstanding
that Celiwe did not partake at the ID Parade proved that
it was not
tainted by material irregularities as the Defense seemed to suggest
and reliance can safely be placed on the credibility
of the
identifications, which were supplemented by the dock-identification
of the Accused in this Court.
In
essence, I am satisfied by the way in which the ID Parade was
conducted and consequently of the opinion that it was done within
the
parameters of ‘fairness’ as a basic principle that
underlie the Rules of Procedure.
[89]
My view regarding the credibility of the ID Parade is advanced by the
pointing out itself.  The witnesses: Dube and Nokuthula
were
forthright in their individual turns in pointing out the Accused
which took less than two minutes in total.  There were
subtle
contradictions leading to the improbability of the Accused versions
that they were not at the scene of the incident. There
was certainty
about their presence at the scene of the incident as the witnesses
provided independent recollection of the events
and their ability to
recall was clear, precise and free from bias.  They had never
met each other before the day of the incident,
which supports the
probability of the witness’s version that the Accused were
present at the scene of the incident.
[90]
I am therefore dissuaded by the Defense argument that there was no
corroboration between the witnesses that tainted the credibility
of
the ID process. I wish to emphasise that people in the position of
the witnesses observe things differently in their recount
of what
happened on the day in question.  It is also important to
acknowledge the circumstances under which the incident emanated.

As presented before this court, there was a commotion, which made it
difficult for each of the witnesses to focus on what was happening
to
the other at the time of the incident.  In my view, I say
without hesitation that the identified contradictions regarding
the
times and whether they were escorted or not at the ID Parade were not
material factors that could blur their version as they
testified
before this Court regarding the events of the night in question.
A moving scenario confronted these witnesses but
they still managed
to recollect the way in which the events unfolded almost ninety days
of the incident having happened.  The
recollection was endorsed
as noted above, by the pointing out in less than two minutes. In this
context, I found no reason that
the witnesses harboured any hatred
against the Accused they met for the first time on that evening.
[91]
The question of a mistaken identity in respect of Accused 3 because
he was identified by a single witness: Nokuthula as the
Defense
argued warrants an analysis.  I am well aware that a sloppy
reliance on the evidence of a single witness would render
the trial
of the Accused unfair.  Thus, the evidence of a single witness
as prescribed by section 208 of the CPA
[22]
has to be treated with utmost caution.  In this instance, as
simply put by the Court in
S
v Sauls and Others
[23]
that
‘
there is
no rule of ‘thumb test’ or ‘formula’ to apply
when it comes to the consideration of the credibility
of a single
witness. The question is what weight, if any, must be given to the
evidence of a single witness’
.
[24]
Notwithstanding this limitation, the courts have repeatedly produced
jurisprudence which give effect to the reliability of
the evidence of
a single witness where he or she had ample opportunity to make a
proper observation of the perpetrator which has
to be taken into
consideration by the court.  In this case, the Accused was
identified by his light complexion and hairstyle
and Nokuthula
remained unshaken regarding the identification of Accused 3.
She did not only identify him but he was the first
one she identified
as the person that kicked her in less than 50 seconds. I therefore,
do not have a reason to believe that Nokuthula
was not honest and
inconsistent in her evidence despite the length of her
cross-examination by the Defense Counsels.  There
was no reason
of her to falsely implicate an Accused whom she saw for the first
time on the night of the incident and again at
the ID Parade.
This Court places great reliance on her evidence as a credible
witness in the sense that she had an ample
opportunity in the
circumstances she was confronted with to carry out such observation
as would be reasonably required in affirming
an accurate
identification.  The Court is therefore satisfied that the
identification was not merely a
bona
fide
and honest process but was coupled with the consideration of various
factors that were observed during the night of the incident
with
particular reference to Accused 3 and all other events that emanated
on the night in question as corroborated by Celiwe.
[25]
[92]
Another contentious issue that did not come up during the Defense’s
evidence in chief was the Accused alibi’s on
the night in
question.  This issue came out in a piecemeal fashion during
cross-examination about their whereabouts.
It bears repetition
that the courts had long enunciated the principle regarding the
consideration of an alibi as a defense.
The courts had long
said that the evidence must be considered in its totality and the
Court’s impression of the witnesses
without limiting to the
evidence as a sufficient basis to reject alibi as a defense.
[26]
It is worth to re-emphasise herein that the totality of the evidence
captures the content of the proof beyond reasonable
doubt as to the
guilt of the accused.  It is therefore the State that has to
prove the untruthfulness of the defense of alibi
because the Accused
does not have to prove his alibi.
[93]
The application of this principle was well captured by Moseneke J as
he then was, in
Thebus
& Another v The State
[27]
that in
‘
considering
the totality of the evidence an alibi is one of the factors to be
taken into account and its stand alone as a defense
does not justify
an inference of guilt
’
.
[28]
Of particular importance which is of direct relevance to this case is
the late disclosure of the alibi as presented before this
Court
wherein the learned Judge held that the non-timeous disclosure of an
alibi is not a neutral factor and can be taken into
account in the
evaluation of the evidence as whole.
[29]
Considering the evidence in totality, it is clear that the Accused
manufactured their alibi to suite their circumstances
as and when
question were posed to them by the State under cross-examination.
[94]
I turn now to address another aspect which was not substantially
argued in this Court other than its framing in the indictment
and an
indicative argument by the Defense for Accused 3 which was rebutted
by the State: the question of the common purpose in
relation to
robbery with aggravating circumstances with the resultant murder of
the deceased (Mr Xolani Mnguni).  I do not
wish to regurgitate
the principles as already developed by the courts regarding its
application other than acknowledging that it
is trite law that the
presence of the person at the crime scene does not necessarily mean
that he/she acted in concert with the
other accused.
[30]
In this case, the entering of the deceased and the witnesse’s
residence at the unholy hours of or at about 00h30 on
the 27 April
2015 creates a reasonable suspicion that the Accused acted in concert
with each other and others.  It is common
cause that the death
of the deceased was caused by one of the perpetrators whom the
Accused associated with.  Notwithstanding
the fact that the
witnesses could not identify the one who shot the fatal shot that
killed the deceased, evidence was placed before
this Court that the
witnesses were robbed of items by the three identified Accused who
also assaulted them.  The three Accused,
by the mere fact that
they engaged in this house robbery would have reconciled themselves
with the resultant consequence that one
of their group in brandishing
a firearm would have used that firearm either to overcome any
resistance from the victims alternatively
make good their getaway,
which could have resulted in the death of someone at the scene of the
crime.
(95)
It is therefore accepted by this Court that they were all part of the
same group that desired to achieve their common purpose.
The
reasons for this conclusion is borne out by the fact that Accused 1
was identified by both Dube and Nokuthula.  Accused
1 demanded
the cellphone from Dube and she could clearly see him because he was
standing next to her.  Dube further alluded
to the fact that
there was sufficient light on that night which made her see him
clearly as she was standing next to the window.
She also
identified Accused 2 who took the laptop and said the deceased must
be shot on the foot or leg.  Nokuthula also identified
Accused 1
as the one who was in front when they forced their entry into the
house, took the TV and carried it away. She also identified
Accused 3
as the one that assaulted her.  It would be a travesty of
justice if the conviction was to be solely based on the

identification of the particular Accused who fired the fatal shot.
The Courts have repeatedly held the determination of liability
cannot
be solely based on principles of causation because of the absence of
the link between each member’s act and the resultant
death.  If
the
condictio
sine qua non test
could be applied in isolation of the doctrine of common purpose it
would be an insurmountable barrier in finding anyone guilty
of the
offence in question.
[31]
[96]
It is clear that in the context of this case in line with the
principle that had long been lain by Botha JA
in
Mgedezi
that the linkage of all the 3 Accused to the actions of each other is
not based on a prior conspiracy to commit the crimes but
is inferred
from the conduct of each by associating themselves in such an action
or behaviour.
[32]
This
finding was not taken in isolation of other factors as presented
before this Court that put the all the Accused at the
crime scene.
In essence, at the risk of repeating myself, the facts in this
case the Accused associated when the gun was
used with Accused 2
calling for the deceased to be shot on the foot or leg and Accused 3
found himself associating with an individual
who produced a gun at
Nokuthula and Celiwe place.
[97]
Accordingly, I am of the view that the State has satisfied the
requirements in proving the guilt of all the three Accused beyond
a
reasonable doubt. I therefore, find as follows:
·
Accused
1 is found guilty of robbery with aggravating circumstances and on
the murder.
·
Accused
2 is found guilty of robbery with aggravating circumstances and on
the murder.
·
Accused
3 is found guilty of robbery with aggravating circumstances and on
the murder.
N
NTLAMA
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Counsel
for the State: Advocate ZG Mshololo
State
Advocate: National Prosecuting Authority
Counsel
for Accused 1: Mr HM Zulu
22
Pine Crescent
Kingsburgh
Amanzimtoti
Counsel
for Accused 2: Mr WM Dlamini
3
rd
Floor, Suite 305A
Doone
House
379
Anton Lembede Street
Counsel
for Accused 3: Mr P Marimuthu
High
Court Unit Professional Assistant
Durban
Justice Centre
Heard
on: 7 July 2017
Judgment
delivered on: 19 July 2017
[1]
(CC 161/05)
[2006]
ZANWHC 5
(1 January 2006).
[2]
S v Swartz
2001 (1) SACR 334
(WLD) 335e-f quoted in Wessels J & Pillay L
‘Useful Cases’ ARMSA Education and Project Committee.
[3]
2001 (2) SACR 703
(SCA) 707-708.
[4]
S v Mafokate
1998 (1) SACR 603
(T) 6122-j-613a-f; headnote on 605b-i.
[5]
OSAC ‘South
Africa 2015 Crime and Safety Report’ 2 February 2015 Product
of the Research & Information Support
Center (RISC). Available
from
file:///C:/Users/Ntlama/Downloads/South%20Africa%202015%20Crime%20and%20Safety%20Report.pdf
(accessed on 10
July 2017).
[6]
See section 35 of
the Constitution.
[7]
See
Mhlantla
J and Plasket J in
Tanatu
v The State
ECJ NO: 036/2004 at para 37.
[8]
See Bosielo JJA in
A
S
v S
(349/10)
[2011] ZASCA 52
(30 March 2011).
[9]
Appeal No:
A182/2011.
[10]
Ganda
at para 4.
[11]
[2006] SCA 126
(RSA) citing with approval
S
v Sauls
1981 (3) SA 172
(A) at 180E-F.
[12]
Sithole
at para 7.
[13]
2003 (1) SACR 134
(SCA).
[14]
Chabalala
at para 15.
[15]
1972 (3) 766 (A)
at 768(A).
[16]
Mthethwa
at 768(A).
[17]
See Mhlantla J and
Plasket J in
Tanatu
v The State
ECJ NO: 036/2004.
[18]
Tanatu
at para 16.
[19]
1998 (1) SACR 654
(W).
[20]
2001 (1) SA 115
(T).
[21]
Monyane
at 132F.
[22]
The section
provides that ‘an accused may be convicted of any offence on
the single evidence of any competent witness’.
[23]
1981 (3) SA 172
(A) 180H quoted in
Sithole
at para 9.
[24]
Sauls
at 180H.  See also
S
v Shilakwe
2012 (1) SACR 16
(SCA) at 20 para 11
in
Ganda
(note 3) above.
[25]
See the dissenting
judgement by Bosielo JA and Seriti JA in
Magadla
v The State
(80/2011)
[2011] ZASCA 195
at para 52.  The Judges identified
various factors that concretize the evidence of a single witness
which include but not
limited to period of observation, proximity of
the persons, visibility or state of the light, angle of observation
prior opportunity
of observation, absence of presence of noticeable
physical or facial features, marks or peculiarities or clothing or
other articles
such glasses and all other related factors connected
to the person observed.
[26]
R V Hlongwane
1959 (3) SA 337
(A) at 341A.
[27]
2003 (2) SACR 319
(CC).
[28]
Thebus
at para 68.
[29]
Thebus
at
para 68.
[30]
See the detailed
analysis in
S
v Mgedezi
1989 (1) SA 687
(A) at 705I-706B which cited with approval
S
v Safatsa
and Others 1988 (1) SA 868 (A).
[31]
S v Bengu
1965 (1) SA 298 (N).
[32]
See
Mgedezi
(note
30) above at 705I.