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[2009] ZAGPJHC 125
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S v Twala (SS31/08) [2009] ZAGPJHC 125 (9 June 2009)
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE NO:SS31/08
DATE:2009/06/09
In the
matter between
THE
STATE
and
TWALA,
MZWANDILE VINCENT THOMAS
.......................
Accused
J U D G M E N T
WILLIS J:
[1] The
accused stands indicted on 25 separate counts.
[2] The
first count is theft, it being alleged that on or about 09 November
2006, and at or near 20 Audrey Street, Chrisville in
the district of
Johannesburg, the accused did unlawfully and intentionally steal the
following items, namely four motor vehicle
tyres, the property or in
the lawful possession of Elricco Elvin Coerecias.
[3] The
second count is housebreaking with intent to rob and robbery with
aggravating circumstances as defined in section 1 of Act
51 of 1977,
read with the provisions of section 51 of Act 105 of 1997, and
sections 260
and
262
of the
Criminal Procedure Act 51 of 1977
, it
being alleged that upon or about 20 April 2007 and at or near 224
Kimberly Road, Robertsham, in the district of Johannesburg,
the
accused did unlawfully and intentionally break and enter the
residential premises of Tajuddin Mohamed, with intent to rob,
and did
unlawfully and intentionally assault the said Tajuddin Mohamed, and
did then and there and with force take from his possession
the
following, namely jewellery, clothing, cellular phones, money and
watches, the property or in the lawful possession of Tajuddin
Mohamed.
[4] The
third count is assault with intent to go grievous bodily harm, it
being alleged that upon or about the date and place mentioned
in
count 2, in the district of Johannesburg, the accused did unlawfully
and intentionally assault Tajuddin Mohamed by burning him
with a hot
clothes iron on his legs, with the intent of causing him grievous
bodily harm.
[5] The
fourth count is housebreaking with the intent to rob, and robbery
with aggravating circumstances. Similar statutory provisions
to
those mentioned in count 2 being present, it being alleged that upon
or about 23 May 2007 and at or near 24 Pansy Street, Winchester
Hills
in the district of Johannesburg, the accused did unlawfully and
intentionally break and enter the residential premises of
Naresh
Munga, with intent to rob, and did unlawfully and intentionally
assault the said Naresh Munga, and did then and there and
with force
take from his possession the following, namely jewellery, cellular
phones, money and cigarettes, the property or in
the lawful
possession of Naresh Munga and/or Savita Munga.
[6] The
fifth count is assault with intent to do grievous bodily harm, it
being alleged that upon or about the date and place mentioned
in
count 4, in the district of Johannesburg, the accused did unlawfully
and intentionally assault Naresh Munga by threatening to
burn him
with a hot clothes iron, with the intent of causing him grievous
bodily harm.
[7] The
sixth count is murder, read with the provisions of
section 51
of Act
105 of 1997, it being alleged that upon or about 31 May 2007, and at
or near 19 Totius Street, Ridgeway, in the district
of Johannesburg,
it being alleged that the accused did unlawfully and intentionally
kill Hendrick Jacobus Nicholas Kotze
(the deceased).
[8] The
seventh count is housebreaking with the intent to rob, and robbery
with aggravating circumstances, with similar statutory
provisions
applicable as in the case of counts 2 and 4, it being alleged that
upon or about the date and place mentioned in count
6, in the
district of Johannesburg, the accused did unlawfully and
intentionally break and enter the residential premises of
Janetta Johanna Hendriena Kotze,
with the intent to
rob, and did unlawfully and intentionally assault the said
Janetta Johanna Hendriena Kotze, and
did then and
there, and with force take from her possession the following, to wit
jewellery, clothing, a cellular phone, a Walther
PPK pistol,
ammunition and toiletries, the property or in the lawful possession
of Janetta Johanna Hendriena Kotze.
[9] The
eighth count is attempted rape, read with the provisions of sections
51, 52, 52(A) and 52(B) of Act 105 of 1997, it being
alleged that
upon or about the date and place mentioned in count 6, in the
district of Johannesburg the accused did unlawfully
and intentionally
attempt to have sexual intercourse with a female person, namely
Janetta Johanna Hendriena Kotze,
without her consent.
[10] The
ninth count is assault with the intent do do grievous bodily harm, it
being alleged that upon or about the date and place
mentioned in
count 6, in the district of Johannesburg, the accused did unlawfully
and intentionally assault Janetta Johanna Hendriena Kotze
by kicking her and throwing her on the floor, and threatening her
with a firearm and/or knife, with the intent to cause her grievous
bodily harm.
[11] The
tenth count is also one of assault with intent to do grievous bodily
harm, it being alleged that upon or about the date
and place
mentioned in count 13, in the district of Johannesburg, the accused
did unlawfully and intentionally assault Geret Kotze
by hitting him
with a flashlight, on the head, and/or threatening him with a knife
and/or firearm, with the intent of causing him
grievous bodily harm.
[12] Count
11 is unlawful possession of a firearm, it being alleged that upon or
about the date and place mentioned in count 6,
in the district of
Johannesburg, the accused did unlawfully possess a firearm, to wit a
Walther PPK 7.65 pistol without being the
holder of a license, permit
or authorisation in terms of Act 60 of 2000, to possess such firearm.
[13] Count
12 is a contravention of section 90 read with sections 1, 103, 117,
120(1)(a) and 121, read with schedule 4 of Act 60
of 2000, and
further read with section 250 of Act 51 of 1977, unlawful possession
of ammunition, it being alleged that upon or
the date and place
mentioned in count 6, in the district of Johannesburg, the accused
did unlawfully possess ammunition, 4 X 50
7.65 millimetre, whilst not
being the holder of: - (a) a license in respect of a firearm capable
of discharging that ammunition;
(b) a permit to possess such
ammunition; and (c) a dealer's license, manufacturers license,
gunsmith's license, import/export or
in transit permit, or
transporters permit issued in terms of the Act; (d) is otherwise
authorised to do so.
[14] Count
13 is a contravention of section 2(1), read with sections 1 and 3 of
the Dangerous Weapons Act 71 of 1968, possession
of a dangerous
weapon, it being alleged that on or about the date and place
mentioned in count 10, in the district of Johannesburg,
the accused
was unlawfully in possession of a dangerous weapon which, if used in
an assault, could inflict serious bodily injury.
[15] Count
14 is a count of housebreaking with the intent to rob, and robbery
with aggravating circumstances, with similar statutory
provisions as
those applicable in counts 7, 4 and 2, it being alleged that on or
about 07 June 2007, and at or near 13 Surmon Street,
Glenanda, in the
district of Johannesburg, the accused did unlawfully and
intentionally break and enter the residential premises
of
Jeanette Susanna Carolin Moolman, with the intent to
rob, and did unlawfully and intentionally assault the said
Jeanette Susanna Carolin Moolman, and did then and
there, and with force take from her possession the following,
namely
jewellery, cellular phones and money (R1 800), the property or
in the lawful possession of Jeanette Susanna Carolin Moolman.
[16] Count
15 is also a count of housebreaking with the intent to rob, and
robbery with aggravating circumstances, with similar
statutory
provisions being applicable as is the case in respect of counts 14,
7, 4 and 2, it being alleged that upon or about
12 June 2007, and at
or near 24 Pansy Street, Winchester Hills, in the district of
Johannesburg, the accused did unlawfully and
intentionally break and
enter the residential premises of Naresh Munga, with the intent to
rob, and did unlawfully and intentionally
assault the said Naresh
Munga, and did then and there, and with force take from his
possession the following, namely jewellery,
cellular phones, money
and cigarettes, the property or in the lawful possession of Naresh
Munga.
[17] Count
16 is a count of robbery with aggravating circumstances as defined in
section 1 of Act 51 of 1977 and read with the provisions
of section
51 of Act 105 of 1997, it being alleged that upon or about the date
and place mentioned in count 15, in the district
of Johannesburg, the
accused did unlawfully and intentionally assault Naresh Munga, and
with force and violence did take out of
his possession a Toyota
Corolla with registration number LRM892GP, his property and/or
property in his lawful possession, and did
thereby rob him of the
same, aggravating circumstances as defined in section 1 of Act 51 of
1977 being present.
[18] Count
17 is assault with intent to do grievous bodily harm, it being
alleged that upon or about the date and place mentioned
in count 15,
in the district of Johannesburg, the accused did unlawfully and
intentionally assault Naresh Munga by burning him
with a hot clothes
iron on his legs, with the intent of causing him grievous bodily
harm.
[19]
Counts 18, 19, 20, 21, 22 and 23 are all counts of attempted murder,
read with the provisions of section 51 of Act 105 of 1997,
it being
alleged in respect of each count that upon or about 14 June 2007
and at or near Diepkloof Hostel, Block B, Soweto,
in the district of
Johannesburg, the accused unlawfully and intentionally attempted to
kill Charles Mikatedo Chabalala, Bhekizima
Ngubane, Jaco Cronje,
Wiseman Siphungu, Mphikeleni Ndlovu and Joseph Jabulani Yende
respectively.
[20] Count
24 is a contravention of section 4(1)(a), read with sections 1, 103,
117, 121(1)(a) and 121, read with schedule 4 of
Act 60 of 2000, and
further read with section 250 of Act 51 of 1977, unlawful possession
of a firearm, it being alleged that upon
or about the date and place
mentioned in counts 18 to 23, in the district of Johannesburg, the
accused did unlawfully possession
a firearm, to wit a 0.45 millimetre
semiautomatic pistol and/or other firearms of which further
specifications are unknown, without
being the holder of a license,
permit or authorisation in terms of Act 60 of 2000 to possess such
firearms.
[21]
Finally, count 25 is a contravention of section 90 read with sections
1, 103, 117, 120(1)(a) and 121, read with schedule 4
of Act 60 of
2000, and further read with section 250 of Act 51 of 1977, unlawful
possession of ammunition, it being alleged that
upon or about the
date and place mentioned in counts 18 to 23, in the district of
Johannesburg, the accused did unlawfully possess
ammunition, to wit
19 X .45 calibre cartridges, 50 X 7.65 cartridges, 2 X 9mm Parabellum
cartridges, 3 X 5.56 X 45mm calibre, and
2 9mm cartridges, whilst not
being the holder of:- (a) a license in respect of a firearm capable
of discharging that ammunition;
(b) a permit to possess ammunition;
(c) a dealer's license, manufacturers license, gunsmiths license,
import/export or in transit
permit or transporters permit issued in
terms of this Act; (d) is otherwise authorised to do so.
[22] The
accused was represented throughout the trial by Adv. A. T. Mathunzi,
the State by Adv. D. Vlok. The accused
pleaded not guilty on all 25
counts. He tendered no plea explanation in terms of
section 115
of
the
Criminal Procedure Act 51 of 1977
as amended.
[23] It
should be noted at the outset that the arrest and the prosecution of
the accused is not the result of pure chance. That
the accused
stands indicted on these 25 counts is attributable to an
investigating officer doing his job as it is meant to be done.
That
is: properly.
[24] A
single fingerprint led to the arrest of the accused. It is only by
reason of the fact that the investigating officer, Inspector
Jaco
Cronje had the presence of mind to send a cool drink bottle, a
so-called Sprite cool drink bottle which had been used in order
to
soften the ceiling to gain access to the premises of the Kotze
family. It is by following up and following through on this
fingerprint, that a match was found with that fingerprint, linking
the accused to a relatively minor crime of theft, in respect
of which
the police had knowledge of his whereabouts. This led to the arrest
of the accused at the Diepkloof Hostel, Block B,
Soweto, in the
shootout which occurred with the police on 14 June 2007.
[25] I
hope no one will think it an abuse of my position as a judge, to pass
a few remarks on the importance of proper police investigation.
The
pattern of these crimes, which I shall outline in more detail later,
is typical of that of a serial offender. It would seem
that he
started with relatively minor crimes, they progressively escalated in
severity. The frequency with which the crimes were
committed
narrowed in time as he grew bolder. The violence which he used
progressively increased. Moreover, he perpetrated a classic
symptom
of a serial offender, namely he revisited a scene of crime.
[26] It is
not unreasonable to suppose that, had proper police investigation
been done earlier, namely had proper fingerprint exercises
been
undertaken earlier, the accused would have been arrested earlier, and
the murder of Mr Kotze, the deceased, would not have
taken place. It
hardly needs to be mentioned that, had this investigating officer not
done his job properly, there might well have
been further murders
committed after Mr Kotze was so murdered.
[27] We
are inadequately aware, in our society, of how we are to reduce the
incidents of serious and violent crime. There are salutary
lessons
to be learnt from this particular case. We must get back to basics,
basics which are as elementary as routinely taking
fingerprints
thoroughly at any scene of crime. We must get back to the basics of
appointing investigating officers who know about
the basics, who
apply the basics and follow up and follow through on the basics.
[28]
Earlier this term, I made an appeal for there to be greater use made
of DNA testing. It is a hugely and especially important
tool in
tracking doing the perpetrators of rape. Today I make an appeal for
something that is even more basic than DNA testing:
take
fingerprints, and appoint investigating officers who will make sure
that this is done and that it is followed up.
[29] This
is not the only case I have come across where elementary police work
has made a huge difference. As judge sitting in
the criminal
sessions, from time to time, I have had to read numerous petitions.
This occurs where accused persons seek to appeal
against judgments
from the regional court. Frequently, in those judgments, one comes
across despairing magistrates, distressed
that proper police work is
not being done. This case shows just how important it is that proper
police work is done.
[30] At
the risk of being repetitive, I hope that nobody will accuse me of
abusing my position as a judge by emphasising just how
important
proper basic elementary police work is in this country.
[31] The
State has accepted that in respect of counts 1, 18, 22 and 23 there
is insufficient evidence to secure a conviction. In
respect of count
13, which is the count relating to possession of a dangerous weapon,
the state relies on the doctrine of common
purpose. The evidence was
that his co-perpetrator possessed a knife. For reasons that I shall
outline later, I accept this evidence,
namely that the accused's
co-perpetrator possessed a knife. Nevertheless, I am prepared to
accept that the accused may not have
known that his co-perpetrator
possessed the knife at the time when they entered the premises. In
accordance with the high standards
that are applied in this court, in
respect of count 13 I do not believe that one can safely convict the
accused.
[32] In
this case the State has relied on what is known as ‘similar
fact evidence’. The similar facts are the following:
in
respect of counts 4 and 5, 6 to 13, 14, 15, 16 and 17, the crimes in
each instance were perpetrated by two black men acting
together; the
same individual at all times took a leading roll and issued
instructions; the perpetrators of the crimes gained
access to the
premises by lifting roof tiles, climbing into the attic, pouring
water onto the soft ceiling (which water had been
transported in a
cool drink bottle), cutting the ceiling with an instrument, lowering
themselves into the premises - it would seem
certainly in some
instances but probably all - through an acrylic nylon rope that had
been tied in loops so as to create a ladder;
using the most foul and
disgusting language; abusing their victims; torturing at least some
of them with a hot iron in order to
extract information as to
valuables; tying their victims up and gagging them over their mouth
with the kind of tape that is used
for sealing carton boxes. Moreover
all, these crimes were perpetrated in the southern suburbs of
Johannesburg and in close proximity
to the major highways. I should
also mention, in regard to similar facts, that the incidents always
took place in the small hours
of the morning, somewhere between 01:00
am and 03:00 am, and that the always entered the bedrooms of the
occupiers.
[33] This
case therefore provides a classic example of ‘similar fact
evidence’. As such, it is also a case which would
be of
interest to all students of criminal procedure. There is, of course,
a debate among lawyers as to when the similar fact
evidence may be
determined sufficiently similar to justify inferences as to identity
when there is not satisfactory direct evidence
as to the identity of
the perpetrator. I refer for example to the cases of R v Kalkiwtch &
Kruger
1942 AD 79
; R v Sebeso & Others
1943 AD 196
; R v Straffen
[1952] 2 QB 911
,
[1952] 2 All ER 657
; Harris v DPP
[1952] AC 694
(HL),
[1952] 1 All ER 1044.
[34] It
nevertheless needs to be emphasised that, in this case, the similar
fact evidence is in fact irrelevant in terms of whether
one
determines whether the accused is guilty or not. It merely acts as
what is known in Afrikaans as "
stawing
". In
respect of the the incidents at 224 Kimberley Road, Robertsham; 24
Pansy Street, Winchester Hills; 19 Tortius Street,
Ridgeway, the
direct evidence of identity is so strong that it would stand on its
own regardless of the similar fact evidence.
In respect of the
incidents at 13 Surmon Street, Glenanda, where Mrs Moolman and her
domestic worker were attacked, neither she
nor the domestic worker
were able to identify anybody. The evidentiary link was established
by reason of the fact that a cellular
phone of hers which was taken
was later found in the room or cubicle of the accused, for which
there is no satisfactory explanation.
This link, taken together with
the aggregate of circumstances, justifies the conviction in respect
of count 14, the attack on
Mrs Moolman.
[35] The
case turns purely on identity. There was no dispute, throughout the
trial, that these various incidents of housebreaking,
robbery and
murder did, in fact take place. There is also no dispute that the
items listed in the indictment in respect of which
the various
witnesses testified were taken from the victims. The accused simply
disputes that it was he who entered the premises
concerned and
perpetrated the crimes.
[36] In
summarising the evidence, shall start with the evidence relating to
counts 6 to 13. The reason I do so is firstly that
it was this
particular series of crimes that led to the engagement of Inspector
Jaco Cronje, which in turn led to the arrest of
the accused. They
are also the most serious.
[37] The
evidence of Janetta Kotze is that she and her husband were rudely
awoken in the small hours of the morning on 31 May 2007.
They were
subjected to the most vicious racial abuse. The Kotze's had a grown
man as a son, who was a quadriplegic, who was seriously
injured in a
motor accident some 17 years ago. He is entirely incapable of
looking after himself, and utterly vulnerable. He
was hit repeatedly
on the head by the assailants, using a torch, and threatened with a
knife and a firearm. Mrs Kotze’s husband,
(‘the
deceased’) was viciously assaulted repeatedly. The post mortem
report of Dr Hestelle Nel shows that he had no
fewer than 29 visible
injuries on his body. I wish to emphasise that these were visible
injuries. There were other injuries that
were not immediately visible
to the naked eye. Dr Nel determined that the cause of death was blunt
force injury to the chest in
a person with ischaemic heart disease.
She testified that, even if the deceased had not suffered from
ischaemic heart disease
these injuries, these multiple injuries would
have been sufficient to kill any normal, healthy young person. Mrs
Kotze testified
that her husband, who it seems was approximately 66
years of age at the time, was an active person living a useful life,
keenly
involved in the affairs of his grandchildren and the life of
the community.
[38] The
perpetrators of the crimes threatened to chop off her finger in order
to get her wedding ring removed. She was incapable
of removing it
from her finger. Mrs Kotze adamantly identified the accused as being
one of the perpetrators. She said the accused
attempted to rape her
but did not succeed in penetrating her. He did, however, have an
erection and did ejaculate. I have indicated
that there is no dispute
that the various items listed in the indictment were taken from the
victims. I should here mention, because
it is specifically relevant,
that they took a Walther PPK pistol from the deceased, which was in
his possession. The deceased
was a retired police officer and he had
purchased this firearm from the force on his retirement.
[39] In
addition to all this, Mrs Kotze herself was also assaulted and
threatened with firearms and knives. Not only was she adamant
as to
the identity of the accused but, as was the case with a number of
other witnesses, she identified him at a parade held on
06 September 2007. I shall refer to this identification
parade later.
[40]
Inspector Cronje was assigned to the case. As I have said, he
ensured that fingerprints were taken, including on the bottle
that
had been left on the ceiling through which the accused and his
co-perpetrator entered the premises. This led Inspector Cronje,
in
his follow-up, to notice a certain pattern, linking this crime to the
ones that had been perpetrated at 224 Kimberley Road,
Robertsham and
24 Pansy Street, Winchester Hills.
[41] In
regard to counts 2 and 3 Mr and Mrs Mohamed both gave evidence as to
how they were woken up at 24 Pansy Street in the small
hours of the
morning on 20 April 2007. They both described how they were
terrorised, how the premises were cast into total disarray,
and how
Mr Mohamed was tortured with a hot iron on his legs in order to
extract information from him as to the whereabouts of valuables.
The
accused and his co-perpetrator both left in the small hours of the
morning. They appeared anxious to make their getaway before
daylight. Both Mr and Mrs Mohamed were adamant in their
identification of the accused, and also identified him at the
identification
parade, to which I have referred earlier.
[42]
Counts 4 and 5 took place at 24 Pansy Street, Winchester Hills. These
counts relate to the incidents where the daughter of
Naresh Munga was
about to leave for school in the early hours of the morning. She was
forced back into the house. The occupants
of the house were
similarly terrorised. Naresh Munga had a hot iron placed upon his
body, again to torture him in order to extract
information as to his
whereabouts. In regard to counts 2 and 3 the perpetrators had gained
access, as I have described, by lifting
tiles and cutting a hole in
the ceiling and then entering the premises. Counts 4 and 5 differ
from counts 2 and 3 inasmuch as
in this regard the accused did not
enter through the roof and ceiling, and the crimes took place
somewhat later than the other
times.
[43] I
have mentioned that there was a pattern of the accused returning to
the premises of his victims. On 12 June 2007 the accused
and his
co-perpetrator again attacked this very property, 224 Kimberley Road,
Robertsham. This time they entered through the roof,
having lifted
the tiles and having cut a hole in the ceiling and lowered themselves
into the premises. Again there was a similar
pattern of terrorising
everybody in the home, abusing them, burning the legs of Mr Naresh
Munga. On this occasion they threatened
to rape his daughter. The
accused and his co-perpetrator also took a Toyota Corolla, having the
registration number described
above.
[44] It
would seem that the properties in question had been under
observation. When the accused raided the property of the Kotzes
he,
together with his co-perpetrator, made inquiries about a vehicle that
had been standing outside on the property and which had
been sold
several weeks previously. The Mungas were adamant that it was the
same persons who entered their premises on 12 June,
as had entered on
23 May.
[45] The
investigating officer at this time, then received the information
relating to the fingerprint. He traced the whereabouts
of the
accused. This led to the arrest that was effected on 14 June 2007.
[46]
Before I deal with that aspect (i.e. the evidence of the arrest of
the accused), I wish to deal with the evidence relating
to the attack
on 07 June at 13 Surmon Street, Glenanda, at the home of Mrs Janette
Moolman. Mrs Moolman was an elderly woman who
actually intended to
celebrate her 80th birthday on the day that the crime took place.
Because she was elderly and frail, her domestic
worker of many years
standing shared the bedroom with her in order to assist her with the
ordinary day-to-day activities that she
might require. Mrs Moolman
described how her sleep was rudely disturbed by two men coming into
the room, and how they threatened
her, were abusive to both her and
her domestic worker, took various items such as jewellery and
cellular phones, one of which she
identified, which was recovered
from the room or cubicle which belonged to the accused. They also
took from her some R1 800
in cash, which was her float for a
small home industry that she operated, making home made pastries,
which at 80 years of age she
did in order to supplement her meagre
pension.
[47]
Fortunately, Mrs Moolman had the presence of mind, during an
unguarded moment by the accused and his co-perpetrator, to press
a
panic button. A siren went off. This seems to have frightened the
accused and his co-perpetrator. They then hurried from the
premises
without inflicting further damage, either physically to the victims
or in any other way.
[48] I
have already referred to the fact that Mrs Moolman, alone of the
various complainants in regard to the break-ins, was not
able to
identify the accused. Her domestic worker was also not able to do so.
Nevertheless, not only did Mrs Moolman she link
the accused by
reason of the cellular phone, but also the accused and his
co-perpetrator attempted no less than three times to
gain entry by
lifting tiles on the roof. The third occasion where they had gained
access through cutting a hole in the ceiling,
they had lowered
themselves with the nylon acrylic rope that was tied in loops. A
similar rope, tied in loops, was recovered in
the cubicle or bedroom
of the accused when he was arrested, although the colour was
different. The one that was in her premises
was yellow and white
whereas the one that was recovered in the accused's cubicle was red
and white. Clearly, in this instance,
the rope was left hanging from
the rafters because the accused and his co-perpetrator were
disturbed.
[49] I
have already mentioned that it was Inspector Cronje's linking of the
accused with the fingerprints that led to the arrest
of the accused.
On 14 June 2007 a police raid of the Diepkloof Hostel, Block B,
Soweto took place. This raid was led by Superintendent
Siphungu. A
number of police officers took part in that raid. In addition to
Superintendent Siphungu, the following police
witnesses also
testified: Inspector Cronje himself (the investigating officer who
was there), Inspector Yende and Superintendent
Ngubane.
[50] The
police arrived at night at these premises. They went there in
pursuit of the accused. They entered the hostel room or
block. There
were a number of men standing around a fire that was burning in the
room. The police immediately ordered everyone
to lie down, which all
but two of the men standing at the fire did. One person ran off to
the left and another person ran off
to the right. Inspector Cronje
ran in pursuit of this person who ran off to the right. He was
unable to identify who this person
was, but this person fired a shot
at him, which injured the middle finger in his left hand. This shot
disabilitated Inspector
Cronje, resulting in his being taken
immediately to hospital. This finger ultimately had to be amputated
but, for a period of
approximately two years, Inspector Cronje had to
endure the discomfort of this finger protruding and dropping to his
palm.
[51] From
the right of the hostel room shots were fired at the various police
officers. It is clear that these were deliberate
shots fired at
intervals, because whenever the police retreated behind a small wall,
and then tried to peek again at the person,
different shots were
fired. Shots were fired such that all four of these police witnesses
were in the line of fire and could well
have been killed.
[52] The
person who fled to the right then escaped through a room or cubicle
in the hostel, by breaking through the window.
Superintendent Siphungu
immediately ran out, ordered this person
to stop. He did not do so and was shot. He was shot in the leg near
the groin. This
person who was shot was the accused. The accused
was then taken to hospital and arrested.
[53] In
the room from which a person had escaped through the window, was
found the firearm referred to in count 24, as well as various
items
of ammunition listed in count 25.
[54]
Superintendent Siphungu, then having shot the accused and brought him
to ground, then re-entered the hostel and walked down
the length of
the hostel to the right. He encountered no other person there.
[55] As I
have already indicated, in the room from which the person had escaped
were found the ammunition I referred to in count
25, and the firearm
in count 24. Accordingly, the inference is irresistible, that the
person who ran to the right, who fired the
shot that injured
Inspector Cronje, who fired the shots at the other police officers,
and who escaped through the window, was the
accused. It should also
be borne in mind that when the accused was brought to ground he did
not have a firearm in his possession.
Nevertheless, he must have
fired from a firearm, and that firearm must have had ammunition.
There can be no other explanation
for how Inspector Cronje was
injured or how the other police officers were shot at. That firearm
must have been the firearm that
was found in the room from which the
accused had escaped through the window.
[56] I
accept that it may be uncertain as to who possessed the other
ammunition found in this cubicle from which the accused escaped
through the window. Nevertheless, the accused must have been in
possession of at least some live ammunition otherwise he could
not
have injured Inspector Cronje when he fired at him. e could alsHHe
could also not have fired at the police officers. Accordingly,
competent convictions of the accused may be made on counts 24 and 25.
[57] After
Superintendent Siphungu had returned and surveyed thereafter scene,
Inspector Yende then ordered everyone to stand at
their cubicles or
rooms. There was only one cubicle outside which no one stood. As it
so happens (it is common cause) that this
cubicle was that of the
accused. The evidence of Inspector Yende was that there was only one
bed in the cubicle, as was the case
for all the other cubicles. The
evidence of the accused was that there were in fact two beds in that
cubicle, and that he shared
the room with another person. There is
also no dispute that the police recovered the accused's identity book
in that room although
there is a minor dispute as to precisely where
that identity book had been kept.
[58] The
police also recovered number plates of an Opel Kadett, which had been
standing outside the hostel, to which Kadett the
accused was linked
in a transfer of ownership.
[59] In
the room that belonged to the accused numerous items were found.
These items were recovered and brought to court as exhibits.
Various
of these items were identified by the victims in the counts to which
I have already referred. Others remained unidentified.
There were,
among the unidentified items, items in respect of which it is
difficult to believe any person living in a hostel could
naturally
have been in possession, other than through crime. I refer, for
example, to a number of firearms. It is common cause
that the
accused had no licence to possess firearms. I refer to numerous
cellular phones. I refer to religious texts. I refer
to
instructions in learning Japanese. In all the circumstances it is
hard to believe that the accused could have acquired these
items in
an honest way.
[60] In
any event it was not the accused's version that he acquired these
items honestly, but simply that they were not there.
Nevertheless,
the evidence is overwhelming that these items were there.
Furthermore, if the accused did in fact share a room with
somebody
else (which was emphatically denied by the witnesses who saw the
scene), it is quite extraordinary that the accused had
no idea that
they were there.
[61] The
evidence is, accordingly, overwhelming that in addition to these
various counts in respect of which the accused has been
indicted,
there were other crimes that the accused committed, and in respect of
which he remains uncharged.
[62] I
shall give a brief summary of the items that were recovered from his
room, which were identified by various witnesses. Mr Mohamed
identified certain especially minted coins. Mrs Mohamed
identified a diamond and gold jewellery. She also identified a
jewellery
bag. The Mungas identified: a collection of coins; a bag
that had been used by the accused to remove items that were taken
from
them; black leather gloves; wallets; cotton gloves; running
shoes; jewellery box; a tiger eye ring and a gold chain with
ornaments;
cartons of cigarettes of the brand and packaging that was
taken; the carton even specifically linked with Mr Munga's details on
it; camouflage gloves similar to those that had been used when the
Mungas were attacked; organic mineral foods; key rings; merchandise
such as SIM cards and MTN cell cards, etc which they had had as
merchandise which they sold from the premises that were attacked.
[63] Mr
Neels Kotze, the son of Mrs Kotze, identified rounds of ammunition as
being identical to those that were used by his father
and that were
to be used in the firearm to which I have already referred. He also
identified a Nokia cellular phone. Mrs Kotze
identified small items
such as deodorant and so on, which had belonged to either her or her
husband. Mrs Moolman pointed to the
nylon ski rope which had been
tied in loops to be used as a ladder, and said that, other than the
colour, this one in court was
identical to the one that had been
hanging from the rafters at her room after he assailants ran from her
premises at 13 Surmon
Street, on 07 July 2007.
[64] I
have already mentioned that Inspector Cronje was hospitalised. After
he was hospitalised, he prepared a report which was
submitted to the
Director of Public Prosecutions, and he was advised to arrange for an
identification parade to be held. The identification
parade was held
on 06 September 2007 under the auspices of Inspector van Blommenstein
who is attached to the Hillbrow police station.
[65] This
identification parade was a model of how an identification parade
should be held. The detail of similarity between the
accused and the
other persons on the parade was remarkable. It extended right down
to the detail that every person on the parade
was wearing a t-shirt
and blue jeans. Every person on the parade was a very close age to
that of the accused, height, appearance
and complexion. Inspector
van Blommenstein notes were thoroughly professional. He recorded that
the various witnesses brought
to the parade, namely Mr and Mrs
Mohamed, Naresh Munga and Vanisha Munga (Sevita was Mr Munga’s
wife, Vanisha his daughter),
and Mrs Kotze all identified the accused
within seconds of being taken onto the parade.
[66] All
of these witnesses denied that there was any improper suggestion made
to them as to how to point out the accused and, in
any event, it was
not the complaint of the accused that the parade had been held
improperly, save in these two respects: (1) that
he was wearing dirty
clothes and that his face was dirty and this is why he was pointed
out. This is belied by the photographs
that were taken on the
parade. I accept that the accused may not have bathed for several
days but the witnesses identified him
through a one-way window. They
would have not gotten close to him to smell that he had not bathed.
He certainly did not look
dirty in the photograph and all the
witnesses who identified him at the parade were adamant that it was
him, and also said that
his clothing had no impact whatsoever. They
identified him by his face.
[67] The
accused also complained that he was not told he could have a lawyer,
but this is belied by the record of the magistrate’s
court
proceedings on 03 September, where he was legally represented and was
told that he would be attending an identification parade
shortly.
[68] The
women who were called as witnesses were all excellent. They were
adamant and clear about the identity of the accused. They
all gave
very similar explanations for the certainty of their identification:
they had been in the presence of the accused, in
these horrendous
circumstances, over several hours. They all said, ‘How can I
ever forget that face?’ There is, in
my view, no room for
reasonable doubt concerning the question of identification.
[69] Minor
criticisms can be made as to detail of some of the witnesses.
Sometimes, where two witnesses were describing the same
scene, there
were slight differences as to the sequence of events. No serious
criticism of their evidence can be levelled so as
to disturb the
accuracy of their identification. These minor discrepancies as to
sequences of events that took place, in very
traumatic circumstances,
over a protracted period of time, are entirely to be expected.
[70] The
accused testified. He was a most unimpressive witness. He was often
evasive. He refused to answer simple questions.
He contradicted
aspects that were put in cross-examination. For example, when he
testified in the witness box he denied that the
tool-box was his.
This was the toolbox that is an exhibit, the one that was
unidentified. In cross-examination of the State’s
witness, it
was put that that toolbox was his but had been in his motor vehicle,
the Opel Kadett. When Superintendent Siphungu
was being
cross-examined, it was put to him that the accused had not shot him
and that it was a coloured person who had shot him.
When the accused
testified in court he said that he had no knowledge as to who had
shot Superintendent Siphungu. The accused was
asked questions by
counsel for the State and by myself, relating to how he could give
some explanation for these numerous items
that were found in his
room. He was extraordinarily evasive on this important aspect.
[71] It is
well-established that a court, when evaluating evidence, must look at
the totality of the evidence. The totality of
the evidence is
overwhelming in respect of all counts except counts 1, 18, 22, 23 and
13.
[72] The
accused must please stand while I deliver the verdict of the court.
Count 1,
the theft count, you are acquitted on that count.
Count 2,
housebreaking with the intent to rob, and robbery, you are convicted
on this count.
Count 3,
assault with the intent to do grievous bodily harm, you are convicted
on this count.
Count 4,
housebreaking with the intent to rob, and robbery with aggravating
circumstances, you are convicted on this count.
Count 5,
assault with the intent to do grievous bodily harm, you are convicted
on this count.
Count 6,
the murder, you are convicted on this count.
Count 7,
housebreaking with the intent to rob, and robbery, you are convicted
on this count.
Count 8,
attempted rape, you are convicted on this count.
Count 9,
assault with the intent to do grievous bodily harm, you are convicted
on this count.
Count 10,
assault with the intent to do grievous bodily harm, you are convicted
on this count.
Count 11,
unlawful possession of a firearm, you are convicted on this count.
Count 12,
unlawful possession of ammunition, you are convicted on this count.
Count 13,
possession of a dangerous weapon, you are acquitted on that count.
Count 14,
housebreaking with the intent to rob, and robbery, you are convicted
on this count.
Count 15,
housebreaking with the intent to rob, and robbery, you are convicted
on this count.
Count 16,
robbery with aggravating circumstances, you are convicted on this
count.
Count 17,
assault with the intent to do grievous bodily harm, you are convicted
on this count.
Count 18,
the attempted murder of Charles Chabalala, you are acquitted on that
count.
Count 19,
the attempted murder of Bhekizima Ngubane, you are convicted on this
count.
Count 20,
the attempted murder of Jaco Cronje, you are convicted on this count.
Count 21,
the attempted murder of Wiseman Siphungu, you are convicted on this
count.
Count 22,
the attempted murder of Mphikeleni Ndlovu, you are acquitted on that
count.
Count 23,
the attempted murder of Joseph Yende, you are acquitted on that
count.
Count 24,
unlawful possession of a firearm, you are convicted on this count.
Count 25,
unlawful possession of ammunition, you are convicted on this count.
COUNSEL
FOR THE STATE : ADV D VLOK
COUNSEL
FOR THE DEFENCE : ADV A T MATHUNZI
DATE OF
HEARING : 20 MAY TO 05 JUNE 2009
DATE OF
JUDGMENT : 09 JUNE 2009