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2015
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[2015] ZAGPPHC 271
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Nkosi v S (A434/2014) [2015] ZAGPPHC 271 (6 February 2015)
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: A434/2014
In the matter
between:
AARON NKOSINATHI
NKOSI
...........................................................................................
Appellant
and
THE
STATE
.........................................................................................................................
Respondent
JUDGMENT
JANSEN
J
[1]
The matter came before this court on appeal
from the regional magistrate of Benoni, who on 11 September 2013
convicted the appellant
and a co-accused of kidnapping and murder,
sentencing the appellant to five years imprisonment on the first
count of kidnapping
and 15 years imprisonment on the second count of
murder. The magistrate ordered that the sentences imposed be
served concurrently.
The Appellant was also ordered in terms of
section 103 of Act 60 of 2000 to remain unfit to possess a firearm.
[2]
Both the appellant and his co-accused
pleaded not guilty and his co-accused was acquitted by the magistrate
at the commencement
of his judgment. The appellant applied for
leave to appeal on the same day that he was sentenced and it was
granted against
both conviction and sentence by the magistrate.
Count
one conviction
[3]
It was alleged that on 02 March 2012 the
appellant at or near Benoni at an ABSA Bank close to a Spar
Supermarket unlawfully and
intentionally deprived Andrew Sithole
(hereinafter referred to as “
the
deceased
”) of his freedom of
movement by taking him forcefully from the ABSA Bank to Watville.
[4]
The appellant’s plea explanation was
to the effect that a problem had occurred at the ABSA ATM between two
men named Bongani
Mashaba and his brother Thulani Mashaba and the
deceased. The two men were his colleagues and had driven with
him and three
of their co-workers on the specific day to the Spar
Supermarket because accused number two had to purchase certain items
at the
Spar Supermarket. One of the men, namely Mr Carlos
Moande, who was a mechanic for the entity for which they all worked
said
that in order to investigate what might or might not have
happened at the ATM, in which occurrence the deceased had a role to
play,
that he would take the deceased to the deceased’s
father. The accused had driven to the Spar Supermarket with Mr
Carlos
Moande and were hence in the motor vehicle in which the
deceased was transported by Mr Carlos Moande. Mr Carlos Moande
allegedly
dropped them off close to their respective homes. The
appellants’ version was that they did not know what happened to
the deceased thereafter. They confirmed the identity of the
deceased and the post-mortem report.
[5]
A Mr Pule Mabaso testified that he was in
the company of the deceased on 22 March 2012 in order for the
deceased to draw money at
the Absa ATM. When they arrived at
the ATM there was a man, who was unknown to them, who proceeded to
tell them that his
ATM card had been “swallowed” by the
machine. The deceased suggested that the man phone the Absa
helpline which
the man proceeded to do and then the deceased inserted
his card into the machine and entered his pin. The machine
reflected
that the deceased’s salary had not yet been deposited
into his account. They decided to wait until 20h00 when the
deceased
believed that his money might reflect in his account.
He said as they stood waiting, the appellant approached the deceased
and started assaulting him, accusing him of committing some form of
fraud at the ATM machine and proceeded to hit the deceased
with the
palm of his hands. A certain Ms Rose Hannah Sibiya (whose
testimony is set out below) was also standing close to
the ATM and
enquired why the deceased was being assaulted.
[6]
Mr Mabaso further testified that the
deceased was then ordered to insert his card into the ATM machine and
enter his PIN number
to prove that the card indeed was his. When
the deceased entered his PIN number it clearly indicated that the
card belonged
to him, but that there was still no money in his
account. The deceased was then pulled to the parking lot by the
appellant with
a group of people following.
[7]
Mr Mabaso was asked if he recognised any of
the people who were in the group besides the appellant and he
testified that accused
number two was also part of the group but
testified that he was just a bystander watching the appellant
assaulting the deceased.
He testified that he followed the group at a
distance, as he was afraid and the deceased was being pulled by the
appellant.
They got into a red Golf vehicle and proceeded to
drive away with the deceased in the vehicle. Mr Mabaso was
asked how many
people were in the group in the motor vehicle and he
stated that there were four people in the group excluding the
appellant.
He added that there was also a security guard who
was trying to reprimand the group.
[8]
Mr Mabaso testified that he had reported
the matter to the police but was told to come back the next day.
He never saw the
deceased again.
[9]
Under cross-examination Mr Mabaso confirmed
that the man whose card had been swallowed by the machine was in the
company of the
group who left in the red Golf vehicle. He said
that he did not see who the driver of the Golf was.
[10]
It was put to Mr Mabaso in
cross-examination that it was the appellant’s impression that
the deceased had assisted the man
whose card got stuck in the ATM –
which Mr Mabaso denied. Mr Mabaso said that when the deceased
was assaulted by the
appellant the deceased said he would lay a
charge against him because the deceased said he knew that the
appellant was from Watville.
He also testified that the
appellant was wearing a striped shirt with different colours (he
remembered distinctly that two of the
colours were orange and red but
could not remember the rest of the colours) when confronted with the
accusation that he was lying
as the appellant was wearing a blue
top. It was also put to Mr Mabaso that the appellant would
testify that he had never
assaulted the deceased, which Mr Mabaso
denied.
[11]
Ms Sebenzile Zulu, the appellant’s
partner testified that the appellant came home every evening of the
first week of March
2012. She never saw the appellant after
Monday the 26
th
of March 2013 and had heard in March that he had been arrested.
[12]
The next witness, Ms Rose Hannah Sibiya
confirmed that as she was walking past the ATM she heard the deceased
calling her name (they
were colleagues). She testified that she
heard him calling for help, telling her that they were hitting him
and that she
must tell them that she works with him. She stated
that when she went up to the deceased and asked him who is hitting
him
he was not being hit at that moment but then suddenly the
appellant emerged and said to the deceased: “
Hey
you boy, I will hit you
”.
She said the appellant also asked the deceased where the card was,
whereupon the deceased answered that the card
that he had on him was
his own card, that he was employed and that he did not steal a card.
[13]
Ms Sibiya testified that the appellant then
told the deceased to draw money with the card, to see if it allegedly
belonged to him
and the deceased entered his pin which accorded with
the card, but could not draw money as there was no money in his
account. She
told the onlookers that the money would only reflect the
following day as she was aware of this fact as she worked with the
deceased.
The appellant once again said “
Hey
you boy I will hit you
” and
proceeded to slap the deceased. She pleaded with the appellant
not to slap the deceased as he was a young boy
and her co-worker, but
the appellant continued hitting him. The deceased told the
appellant that should he continue to assault
him, he knew where the
appellant lived and would see to it that he would “
sleep
in the police cells
”.
[14]
Ms Sibiya testified that she suggested that
they call the police in order to ascertain to whom the card belonged
because the deceased
said that it belonged to him, whereas the
appellant and some people in a group with whom the appellant was (who
they were was not
clarified in evidence) averred that it belonged to
them.
[15]
Ms Sibiya testified that accused number
two, who was leaning on a trolley just outside the Spar, said “
this
boy talks too much
” and after
that she heard someone from the group of people say to the deceased
“
you will explain not here but you
will explain later
”. She
thought this comment to mean that the deceased will be explaining at
the police station as she sincerely thought
that they were taking the
deceased to the police station. The deceased was pulled by the
appellant and another person who put him
in the red Golf motor
vehicle. She never saw the deceased again after they drove away with
him in the vehicle.
[16]
The state closed its case without leading
the evidence of Constable Mashabela who arrested the appellant due to
all the technicalities
surrounding the statement which was obtained
from the appellant.
[17]
The appellant testified that on 2 March
2012 he and a few colleagues were outside the Spar Supermarket in
Benoni. His colleagues
who drove with him to the Spar
Supermarket were Mr Thulani Mashaba, Mr Bongani Mashaba and Mr Carlos
Moande and Mr David Makarina
(the second accused). Mr Thulani
Mashaba and the deceased, were on his version having problems with a
card belonging either
to Mr Thulani Mashaba or the deceased.
His
colleagues went to the Spar
Supermarket to purchase some items and apparently Mr Thulani Mashaba
and the deceased somehow swapped
cards.
[18]
Mr Thulani Mashaba reported the problem to
his brother Mr Bongani Mashaba.
[19]
The appellant stated that he and Mr Bongani
Mashaba had stayed in the motor vehicle and had not gone to the Spar
Supermarket to
purchase anything. The two of them, after Mr
Thulani Mashaba’s phone call, went to the Spar Supermarket. The
relevant
ATM was close to the Spar Supermarket. Mr Thulani
Mashaba alleged that when he had inserted his card into the ATM, and
entered
his pin, it transpired to be incorrect. The appellant
said he did not quarrel with the deceased but merely asked him to
insert
his card, which was also an Absa card, into the ATM and to
enter his pin number. It corresponded with the deceased’s
card with the result that the deceased clearly had the correct card.
He stated that there was therefore no problem and denied
emphatically
that the deceased was assaulted. He said that the reason why he
was falsely accused of hitting the deceased
was because he was
earmarked as the person who had caused the whole problem. Hence
he tried to identify the correct owner
of the ABSA card
by
asking both Mr Thulani Mashaba and the deceased to
insert their cards and enter their pin numbers.
[20]
The appellant admitted that the deceased
stated that if they were to assault him he would get them arrested.
He then said
that he could not even see the money that was allegedly
“lost” (this is the first time that this allegation came
up
in the testimony) as apparently Mr Thulani Mashaba alleged that an
amount of R1000.00 was withdrawn from his account. Allegedly
Mr
Carlos Moande, the driver of the motor vehicle, decided to take the
deceased to the deceased’s mother as he knew her.
Mr
Carlos Moande had come to the ATM because Mr Thulani Mashaba had told
him that they were not at the vehicle but at the
ATM. The
appellant testified that he, the second accused, Mr Carlos Moande, Mr
Bongani Mashaba, and Mr Thulani Mashaba drove
off with the deceased
in the red Golf vehicle. The appellant said that he and the second
accused wanted to take the deceased to
the police station but that Mr
Carlos Moande said that they had to take the deceased to the
deceased’s mother first and if
the stolen money was not
returned, they would take him to the police station. The
appellant said that he and the second accused
got off close to their
respective homes.
[21]
When questioned why his partner Ms Zulu had
testified that she did not see him after 25 March 2012 he said that
they had a quarrel
about a girlfriend. It was then put to the
appellant that it was very strange that he had left their home on 19
March 2012
without informing his partner and he answered that he had
to attend the slaughtering of a cow for his sister. The
appellant
added that his partner was also not home when he left.
It was then put to the appellant that on 22 March 2012, the body of
the deceased was found with a decapitated head and half of his face
missing.
[22]
When questioned if he had any communication
with Mr Carlos Moande after that weekend of the 2
nd
of March 2012, the appellant said that he did not see Mr Carlos
Moande after that weekend and only saw him when he came to him
to
tell him a mutual friend of theirs had died (this reference to a
friend is not a reference to the deceased).
[23]
It was also put to him that after the
incident on the 2
nd
of March 2012, he never heard from Mr Thulani Mashaba again which he
confirmed, stating that Mr Thulani Mashaba and his brother
Mr Bongani
Mashaba were long distance truck drivers. Similarly, the
appellant testified that he did not see Mr Carlos Moande
again as Mr
Carlos Moande’s vehicle had allegedly broken down and they used
taxis to get to work. Furthermore, Mr Carlo
Moande had
“
(d)uring that week …
left with a breakdown vehicle
”.
[24]
Under cross-examination the appellant
testified that he, Mr Carlos Moande and the second accused were close
friends but not Mr Thulani
Mashaba and Mr Bongani Mashaba because
they came from Swaziland.
[25]
The appellant admitted that he went with
the police to Mr Carlos Moande’s residence only to find out
that he had left his
place of residence, that it was empty and had
not seen him again.
[26]
When questioned if he had allegedly only
gone to “Petrotiff” for the cow slaughtering ceremony,
which ceremony was a
one day ceremony, why did he not return home
sooner, he answered that he first had to make arrangements with his
mother to let
the ancestors know that such a ceremony would take
place and that he was arrested when he returned to “Petrotiff”
where
the cow was slaughtered.
[27]
The appellant’s version under
cross-examination contradicted the evidence of the state witness
regarding the incident at the
ATM in all material respects. The
appellant said that Mr Thulani was accusing the deceased of taking
his card and the appellant
allegedly only tried to calm down the
commotion. He admitted, however, that the deceased stayed close
to him and threatened
to lay a charge at the police station against
him and Mr Thulani Mashaba if they sought to assault him. He
also admitted
to shouting. He alleged under cross-examination
that the deceased walked behind him and Mr Carlos Moande to the motor
vehicle.
He denied assaulting the deceased. The appellant
testified as follows: “
I did
not take the deceased away and I do not know how he was killed.
I did not even know that he had died
”.
[28]
When questioned by the court as to the
reason for getting out of the car before they reached the deceased’s
mother, the appellant
stated that he could not speak Tsonga but that
Mr Carlos Moande could. It would therefore serve no purpose as he
would not have
understood what they were saying.
[29]
The appellant testified that he and Mr
Carlos Moande continued working after the weekend until the next
Friday when he left.
This evidence, of course, does not tally
with the evidence of Ms Sibiya and Mr Mabaso.
[30]
The second accused also testified. His
version was that he saw nothing. He denied that he was at the
ATM and alleged
that when he reached the vehicle the appellant, Mr
Bongani Mashaba, Mr Thulani Mashaba and Mr Carlos Moande were in the
motor vehicle.
According to him, the occupants of the vehicle
were talking in a normal fashion. He testified that he was
dropped off at
Lichville.
Analysis
of the evidence
:
[31]
On the charge of kidnapping it is clear
that the appellant played an active role in forcing the deceased into
the Golf vehicle which
drove off with the deceased inside the
vehicle.
[32]
Regarding the charge of murder, the
evidence is circumstantial. However, the following evidence is
telling: the appellant
suddenly disappeared from his residence. So
did Mr Carlos Moande and Mr Thulani Mashaba and Mr Bongani Mashaba.
Although
evidence was led that Mr Carlos Moande was nowhere to be
found no evidence was furnished as to why Mr Thulani Mashaba and Mr
Bongani
Mashaba did not testify. According to the appellant,
they would drive for long distances for their employer. No
further
explanation was proffered. On the witnesses’
evidence, the deceased knew where the appellant lived, which fact the
appellant admitted, saying that he lived close to the appellant.
The state witnesses’ evidence to the effect that the
deceased
stated that he would lay a charge against the appellant indicates a
motive as to why the appellant was involved in the
deceased’s
kidnapping. His denial that he did not assault the deceased was
directly contradicted by the state witness
Mr Mabaso and Ms Sibiya
who saw him do it and did not deviate from their versions.
Furthermore his version that he alighted
from the vehicle because Mr
Carlos Moande wanted to take the deceased to his mother, due to the
fact that there would be language
barrier, is also wholly
improbable. He is the one who was known and threatened by the
deceased. It was not probable that
he would then alight and not see
through where the matter would end. So too, was his evidence
regarding why he got involved
and that his involvement was when the
quarrel broke out at the ATM. Furthermore, on the appellant’s
own version, because
the deceased’s card and pin number
accorded with each other, there was no reason whatsoever to take the
deceased to the police
station.
[33]
The appellant’s version is replete
with inherent improbabilities and the appellant was not a credible
witness.
[34]
Considering the totality of the evidence,
the appellant’s version was false and was correctly rejected by
the magistrate.
The magistrate did not misdirect himself in
respect of any of the evidence and correctly, in the court’s
opinion, held the
appellant guilty of murdering the deceased after
kidnapping him.
[35]
The appellant admitted a previous
conviction regarding theft on 11 June 2009 and a sentence of
R1 800.00 or three months’
imprisonment. The whole
sentence was suspended for five years.
[36]
Regarding sentencing, the discretion to
impose a sentence is within the trial court’s discretion.
At the time of sentencing
the appellant was single and 30 years of
age. He had three children aged four, eight and eleven.
They were staying
with their mother since his incarceration.
[37]
He was employed as an electrician at a
company called Royal Transport and had a girlfriend who contributed
together to the common
household. He completed standard ten.
It was emphasised that the matter was not premeditated and that the
incident
at the ATM was not foreseen. One thing led to another.
[38]
It was emphasised by the state that the
appellant had a motive to kill the deceased who had threatened to lay
a charge with the
police for assault against the appellant. They took
the deceased away after the threat and he had indicated that he knew
the appellant.
[39]
The magistrate found no material and
compelling circumstances to deviate from the minimum sentence of 15
years in respect of the
conviction of murder. The magistrate
held that the deceased had done nothing wrong yet was left in the
veldt to rot, dying
a gruesome death with his head found decapitated.
[40]
The magistrate cannot be faulted. He
correctly imposed a five year sentence in respect of the first charge
of kidnapping and
the minimum sentence of fifteen years in respect of
the murder.
[41]
He also held that the appellant was unfit
to possess a firearm.
[42] In
the result I hereby propose the following order that:—
[42.1]
the appeal against convictions and sentences is dismissed and the
convictions and sentences of the court
a
quo
upheld.
__________________________
JANSEN J
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
__________________________
KHUMALO J
JUDGE
OF THE HIGH COURT
For
the Appellant
Mr MB Kgagara
Instructed
by
Pretoria Justice Centre (012-401
9200/083 5144 613)
For
the Respondent
Advocate PN Ngcobo
(076 544 0267)
Instructed
by
The State Attorney Pretoria (012-309
1563)