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[2016] ZAGPPHC 818
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Radebe v S (A734/2015) [2016] ZAGPPHC 818 (8 September 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
8/9/2016
Case
No: A734/15
In
the matter between:
KENNETH
PHILEMON
RADEBE 1
st
Appellant
THEMBA
THOMAS
MAHLANGU
2
nd
Appellant
SIMPHIWE
PAUL
NKOSI
.
3
rd
Appellant
BERNARD
TSHEPHO
DITSHEGO
4
th
Appellant
and
THE
STATE
….
Respondent
JUDGMENT
MPHAHLELE,
J
[1]
This is an appeal against the decision of this court sitting as the
Middelburg Circuit Court, which found the appellants guilty
on six
charges, namely:
1.1
Murder read with section 51(1) of Act 105 of 1997;
1.2
Attempted murder;
1.3
Robbery with aggravating circumstances read with section 51(2) of Act
105 of 1997;
1.4
Unlawful possession of a firearm; and
1.5
Unlawful possession of ammunition.
[2]
The appellants were sentenced to terms of imprisonment in respect of
each count and an order was made that the sentences should
run
concurrently. This appeal is against conviction only and is before us
with leave of the court a
quo.
[3]
All the charges emanate from an incident that occurred on 31 December
2009 at approximately 20h00 in the evening at a shop at
or near
Leslie in Mpumalanga. Armed gunmen robbed a shop owned by one Mr.
Ulungu Bubakali Osman (Mr. Osman), a Somalian citizen.
The shop is
situated in the yard of one Ms. Stella Mb
onani
(Ms.
Mbonani). In the course of the robbery, Ms.
Mbonani and one Mr. James Gizacho Nbavalt, a worker at the shop, were
shot and injured.
Mr. Osman was killed. The armed robbers took cash
and a Motorola cell phone and then fled the crime scene.
[4]
It is common cause that the events took place as mentioned above, the
only issue is the identity of the attackers.
[5]
There is no direct evidence linking the appellants to the commission
of the offences and the appellants were convicted on circumstantial
evidence presented by the State. The following evidence was led
before the court:
5.1
Ms. Hessie Stella Mbonani testified that on 31 December 2009
at approximately 20h00 she went to the tuck shop owned by Mr. Osman.
This tuck shop was in her garage next to her house. She rented the
garage to two gentlemen who were the tuck shop owners. She bought
airtime and asked one of them to load it in her phone. Ms Bonani said
that she noticed an unknown man in a blue lumber jacket next
to the
pay phones. Suddenly she heard someone saying "shoot" and
then she heard a sound after which the shop owners fell
down. Ms
Bonani fell down as well and felt dizzy. She thereafter heard the
sound of a plastic bag and coins. A few minutes later
she came to her
senses and saw the two men on the floor in a pool of blood. She ran
to her house where she locked herself in until
the police arrived.
Ms. Bonani testified that she was injured on both her knees and spent
the night in hospital. She could not
identify any of the robbers and
further could not tell as to how many robbers were involved.
5.2
Mr. Samyelo Joseph Mnguni (Mr. Mnguni) was called as the
second state witness. He was duly warned in terms of
section 204
of
the
Criminal Procedure Act 51 of 1977
. During his evidence he denied
any knowledge of the robbery and testified that he did not know the
accused persons. He testified
that the investigating officer
assaulted him and promised him R30 000.00 to give evidence according
to a statement they gave him
to sign.
5.3
Mr. Aaron Vusi Mayo testified that he is the investigating
officer in this matter. He denied that he assaulted or bribed the
witness
to sign a statement and give false evidence. He further
testified that he was not the officer who took the statement from Mr
Mnguni.
Joseph Phiki Sibanyoni testified that he is a Lieutent
Colonel in the South African Police Service. He was requested by the
investigating
officer to take a statement from Mr Mnguni. Lt Col
Sibanyoni testified that he wrote the statement while Mr Mnguni
related his
version to him. This was read back to Mr Mnguni where
after it was signed.
5.4
Upon application by the State, Mr. Mnguni was declared a
hostile witness.
5.5
Mr. Sipho Johannes Masina (Sipho) testified that he resides in
Leslie. He knew all four accused because they stayed in the same
area. On the 31
st
December 2009 at approximately 20h30 he
was with his brother Isaac and a friend, Peter. They were drinking
beer, wine and listening
to music when there was a knock at the door
and someone called out his name. When Sipho opened the door he found
the 3rd appellant
standing there. The 3rd appellant entered and four
other men followed. Sipho identified the five men as the appellants
and Mr Mnguni.
The 3
rd
appellant took out cash notes from
his trouser pocket and the 1
st
appellant took out coins
from his pockets. No-one else produced money. Sipho also noticed a
green bag and a plastic bag on the
bed and he heard coins inside. The
1st appellant was in possession of a firearm. He took out the bullets
from the firearm. The
men were discussing how to share the money
amongst each other. Shortly after the accused entered the room there
was another knock
on the door and two police officers entered. Both
police officers were armed and pointed the men in the room with
firearms. The
police asked who robbed the Somali tuck shop. The one
police officer was known to the Sipho as Mthuli. The appellants then
ran
past the police officers and out of the room. The police officers
then gave chase. Sipho took the bullets from the ground and threw
them out of the door. Approximately 1O minutes later the 3rd and 4th
appellants returned and took the bags with money and the firearm.
5.6
Mr. Isaac Siphiwe Masina (Siphiwe) testified that he is
Sipho's brother. He confirmed that he was with his brother and one
Peter
in the room on the day in question. They were drinking beer and
listening to music when the
re was
a
knock on the door.
The four appellants and Mr Mnguni entered the room. They had one bag
with them. The 1st appellant was in possession
of a firearm and he
took out bullets from this firearm. The 1st, 2
nd
, 3
rd
and 4
th
appellants all produced money notes. There was
another knock on the door and then two police officers entered. The
five men ran
away leaving behind the bag with coins, bullets and
firearm. Sipho took the bag, bullets and firearm and threw them out
of the
room. He left the room to go to his mother. When he returned
Sipho told him that the 1st and 2nd appellants returned to the room
to collect the money.
5.7
Mr. Pieter Naude testified that he is a police officer
stationed at the Leslie police station. On 31 December 2009 they
received
a report of a robbery at a family tuck shop. When they
reached the tuck shop he found the two owners on the floor in a pool
of
blood. One of the men was visibly dead while the second man was
alive and moaning. They also found Ms Mbonani in her house and she
was extremely traumatized. Blood and fingerprints from a DVD player
were collected on the scene by the police. Photographs of the
scene
were also taken.
5.8
Mr. Malesela Alfred Terna testified that he is a Warrant
Officer in the service of the Leslie Police. On 31 December 2009 he
was
on duty and received a report of a robbery that had taken place.
He, along with his colleagues went to the tuck shop, but on their
arrival some police cars drove away and they followed these police
cars. Approximately 60 meters further these cars stopped and
Warrant
Officer Terna and his colleague got out of the vehicle. They noticed
the 1st and 2nd appellants who were running towards
them. Warrant
Officer Terna grabbed the 2nd appellant and his colleague grabbed the
1st appellant. He searched the 2nd appellant
but did not find
anything in his possession. The 1st appellant was searched by his
colleague and money was found in his possession.
The two appellants
were then placed in the police vehicle and taken to the police
station. The 1st appellant was wearing white
tekkies with stains
which appeared to be blood on them. The tekkies were confiscated and
placed in a plastic bag.
5.9
Mr. Maluse Philemon Monghalo testified that he was a volunteer police
officer and was on duty on 31 December 2009. They received
a report
of a robbery and went to the tuck shop where the incident occurred.
The police got out of their vehicles to surround the
premises when
they received a further report of other possible suspects. Mr
Monghalo and Warrant Officer Terna walked into a passage
when they
heard something like people jumping over a fence. Then he saw the 1st
and 2nd appellants walking towards them. Warrant
Officer Terna
grabbed the 2nd appellant while Mr. Monghalo grabbed the 1st
appellant. He searched the 1st appellant and found a
bundle of money
and paper in front of the 1st appellant's pants. He handed this money
to Colonel Giyani.
5.10
Mr. Antonio Humphrey Thamsanqa Mahlangu, a constable in the service
of the South African Police testified that he found the
1st appellant
in the cells after his arrest and he searched him. He found R540-00
in the small pocket of the 1st appellant's trousers.
Some of the
notes appeared to be blood stained. He asked the 1st appellant about
the firearm used during the robbery. The 1st appellant
denied that he
was involved and told constable to go to Sipho where he will find the
firearm. Constable Mahlangu went to Sipho
who gave him four bullets.
During cross examination it became clear that constable Mahlangu only
got involved in this matter 21
days after the arrest of the 1st
appellant.
5.11
The state closed its case and thereafter an application in terms of
section 174
of the
Criminal Procedure Act was
brought on behalf of
all the appellants. This application was dismissed by the court. The
1
st
and 2
nd
appellants closed their case
without giving evidence or calling witnesses to testify on their
behalf.
5.12
The 3
rd
appellant testified that on 31 December 2009 he
visited Sipho and his brother. Peter was there as well. The 3
rd
appellant was adamant that he arrived at Sipho's room alone and
denied that he was in the company of the other appellants or Mr
Mnguni. While they were smoking dagga the police arrived and asked if
they did not see people running past. He told the police
that he did
not see anyone running past the room and then the police left.
5.13
The 4th appellant testified that on 31 December 2009 he was at home
and has no knowledge of the robbery of the tuck shop and
murder of
the owner.
[6]
In assessing the merits of this appeal, the court must apply the
principle regarding circumstantial evidence enunciated in
R v Blom
1939 AD 188
at 202 -204.
1.
the inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
2.
the proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, there must be doubt whether the
inference sought to be drawn is correct.
[7]
As mentioned before, whilst the appellants were busy discussing
between themselves about the sharing of the money, the police
officers appeared at the door. Upon enquiry about the robbery at the
tuck shop, the appellants all ran away leaving the bag and
the
firearm behind. The appellants ran away even though the police
accused no one of the robbery. The 3rd and 4th appellants returned
later to fetch the firearm and the money.
[8]
The 1
st
and 2
nd
appellants were arrested
shortly after the robbery in the vicinity of the crime scene. The 1
st
appellant was found in possession of some money in his clenched fist
at the time of his arrest. The 1
st
and 2
nd
appellants elected not to testify under oath to contradict the
evidence, led by the state, linking them with the crimes.
[9]
Although Ms. Mbonani could not identify any of the robbers, she
testified that, after the shots were fired, she heard the sound
of a
plastic bag and coins. The Masina brothers testified that when the
appellants arrived at Sipho's room they were carrying a
plastic bag
containing coins.
[10]
There appears to be no reason why the Masina brothers would falsely
implicate any of the appellants. Their evidence is circumstantial
and
does not link the appellants directly to the crime. Furthermore, the
contradictions in their testimony, which the trial court
found to be
immaterial, point away from any conspiracy against the appellants.
[11]
This court is unable to draw any negative inferences on the failure
of the state to call police officer Mthuli to testify and
failure to
lead forensic evidence. There is
strong and
undisputed evidence on record that links the appellants to the
commission of the crime. This evidence is sufficient to
establish the
guilt of the
appellants
notwithstanding the fact that Mthuli did not testify and the absence
of
forensic
evidence.
[12]
It is trite
that the court of appeal will not disturb the factual finding
of the
trial unless the
latter
has
committed
a
misdirection
[1]
.
Where
there
has
been
no
misdirection
on fact,
the presumption is that the trial court's conclusion is correct. The
court a
quo
found
the Masina brothers to be credible. The credibility and the factual
findings
were borne
out by the evidence on record. The contradictions in the testimony of
the Masina brothers were not material.
[13]
Under the circumstances, the decision of the trial court to convict
the appellants cannot be faulted.
[14]
The following order is made:
1.
The appeal against conviction is dismissed
_________________
S.S
MPHAHLELE
Judge
of the High Court
And.
I
agree
______________________________
H.
F. FABRICUS
Judge
o f the High Court
AND
I
agree
__________________
E.
MOLAHLEHI
Judge
of the High
Court
[1]
S
v Malgas
2001 (1) SACR 469
(SCA) at para 12d-g./gas
2001 (1) SACR 469
(SCA) at para 12d-g.
For
the applicant :
Adv Augustyn Instructed by
: Legal Aid South Africa
For
respondent
: Adv Leonard (S C)
Instructed
by
: The Director of Public Prosecution
[1]