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[2006] ZAWCHC 66
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S v Naphakade (SS260/2005) [2006] ZAWCHC 66 (12 April 2006)
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE HIGH COURT. CAPE TOWN)
CASE
NUMBER
:
SS26
0/20.05
DATE
:
12
APRIL 2006
In
the matter between:
THE
STATE
and
ZUKO
NAPHAKADE
JUDGMENT
ZONDI,
AJ
The
accused Is charged with murder, attempted murder, robbery with
aggravating circumstances and unlawful possession of a firearm
and
ammunition.
In
count one, that is murder, it is alleged by the State that on or
about 18 January 2004 and at 118 Dlephu street, PhiIIipi in
the
district of Wynberg, the accused unlawfully and intentionally kIIIed
Mabuselo Pamela by shooting him with a firearm.
In
count two, that is attempted murder, it is alleged that on the same
time and place the accused unlawfully and intentionally attempted
to
murder Thobela April by shooting him with a firearm.
In
count three, that is robbery with aggravating circumstances, it is
alleged that on the same time and place the accused unlawfully
and
intentionally threatened Xolani Maselaka na (?) with a firearm with
the intention to cause him submit, took out of his possession
the
following goods: ...(indistinct) Synotec 54 cm television set, one
Panasonic video machine, one Sony music centre, one suit
case, a pair
of Old Star takkies, a pair of Adidas takkies, 13 compact discs, 10
video cassettes, music cassettes, cash to the
value of R200, a
...(indistin phone, Motorola T1 91 cell phone and the value of these
goods was about R17 498.
It
is further alleged that at the time and place those goods were under
Xolani’s ...(indistinct) lawful control and . that
the accused
robbed Xolani of the said goods with aggravating circumstances as
defined in Section 1 of the Criminal Procedure Act
being present.
Count
three and four deal with the unlawful possession of a firearm and
ammunition in terms of the Arms Control Act roomed shack.
It was
electrified and was lit with an electric bulb. The front room of the
shack was used as a kitchen and/or a living room. And
the back room
was utilized as a bedroom. Xolani was watching television in the
kitchen together with his two minor children. Mr
April thereupon
asked Xolani for R20. Xolani told him that he had no extra cash, that
what he had was for his children’s
school fees.
Describing
the sitting arrangements in the shack, Mr April testified that he was
seated next to the entrance door, the deceased
was seated on his left
and was close to the front door. Xolani’s ...(indistinct) was
seated on the right and at a stage Xolani’s
wife was in the
bedroom. As they were talking the front door was kicked open and when
they looked in the direction of the door
the accused emerged from the
door.
The
accused ordered them to lie on the floor; the accused was holding a
firearm pointing it at them. The accused is the first person
to have
entered the shack after the door was kicked open, others entered
after him. The accused was in the company of about eight
people. They
all had arms. The accused, after ordering to lie on the floor, took
Xolani to the bedroom while pointing a firearm
at him. Mr April and
the deceased did not lie on the floor, they remained in their seats
and mr April pulled his shirt over his
face whilst seated and
the
deceased covered his face with his hands. While this was happening
the other people with the accused were busy removing goods
from the
house. He also testified that the accused demanded money and cell
phones from them. Mr April described the lighting inside
the shack as
good. He knew the accused; he had seen him before while the witness
was staying at Nyanga East.
He
testified that the accused used to be a peac6 worker at Nyanga East,
he was working in the community. This would’ve been
in about
2002. He did not know his name then. He became aware of the accused
name while ...(indistinct) §ang; ...(indistinct).
The accused
became notorious and mr April ; further testified that while serving
as a peace worker the accused patrolled the neighborhood
together
with other people. He would do patrols either on bicycle or by motor
vehicle. He wore a uniform. (Indistinct)... on any
occasion to speak
to the accused while he was doing his peace keeping work.
Mr
April stated that he was aware that the accused was a gangster.
(Indistinct)... in the company of the gang members and he also
witnessed a shooting incident in which the accused was involved.
There was an exchange of gunfire between the accused gang and
the
other rival gang at
Crossroads.
He witnessed these activities before November 2003 before he left
Crossroads for Phillipi. He had not seen the accused
between November
2003 and January 2004. While staying at Crossroads, April would also
see the accused at Jaftha’s sjebien.
He would see him whenever
he had the occasion to visit the tavern.
He
further testified that before the 18
th
of January 2004, he never had any problem with the accused. Infact he
never spoke to him. Mr April testified that while he was
-seated:,'
covering their faces, the group of people in the company of the
accused was busy removing goods from the house while
the accused
walked about in the house. He said that he observed the happenings
inside the house through the hole in his shirt.
He said that his
shirt had a hole that was about 1% centimeters by
V/z
centimeters in diameter. He could see movements at the front door
area.
Mr
April testified that the deceased was called outside by the accused.
The accused approached the deceased and tapped him on his
shoulder
and went with him outside. He did not know what was discussed with
the deceased while he was outside, because he remained
inside the
house. The deceased, however, returned immediately inside the house.
The deceased sat where he had been sitting before
he went out. The
accused eame and stood at the door, whilst standing at the door he
shot the decease twice in the head. After shooting
the deceased he
turned the firearm to April and shot him in the arm, twice in the leg
and once in the private parts. As the accused
were shooting them, the
two men ...(indistinct) got terrified and held on to each other.
After
shooting them, that is the witness and the deceased, the accused
closed the door and walked away. When he realized that the
decease
were dead his head had slammed on his shoulder. Some three minutes
later, Xolani emerged from the room.
Mr
April further testified that he was taken to Jooste Hospital where he
was admitted for five days. The next day while he was in
hospital the
police came to him and took his statement, EXHIBIT A. On the 24
th
of November 2004 he attended an identification parade arrange by the
police. The accused was number six on the identification parade
and
he positively identified him. (Indistinct)... accused was the person
who robbed and shot them on the 18
th
of January 2004.
In
cross-examination by Ms Verrier, Mr April testified that on the 18
th
of January 2004 he was drinking at Jaftha’s tavern. This is the
tavern he attended on Saturdays and Sundays. On that day
he bought
two beers on credit and the deceased also took two beers on credit.
He testified that it was the policy of the current
owner not to give
a person more than two beers on credit. The credit limit was two
beers per customer. When he was asked as to
why he was sure that it
was the accused who kicked the door, Mr April testified that he heard
a bang from the door he looked at
it and when it opened he saw the
accused. The accused were the first one to enter the house. He
further testified that as he was
sitting ...(indistinct) face with
...(indistinct) he was able to observe the activities and movements
next to the door area, through
the hole in his shirt. He also heard
voice of people inside the house. The accused demanded money and a
cel! phone from the owner
of the house. He denied that he had made
two statements to the police regarding this case. He was aware of
only one statement which
he made while he was in hospital. The
statement was taken from him in isiXhosa and was translated into
English. The contents were
not read back to him. He was referred to
paragraph three of the statement that is EXHIBIT A, in which he had
stated that they were
ordered to lie down and not to look at their
assailants.
He
stated that the portion of the statement did not accurately reflect
what he had told the police. He stated that he had told the
police
that they were ordered to lie on the ground. He was adamant that it
was the accused that shot them- He denied that it was
someone else.
He saw the accused face through the hole in his shirt. Mr April was
asked to draw a sketch indicating the size of
the hole, this he did
and it was handed in as EXHIBIT B. Mr April further stated that he
knew the accused from his previous working
days. He knew some other
people who were peace workers.
At
that stage he did not know the accused by name. He became aware that
the accused was Zuko when he became a gang member. He stated
that the
accused became a gang member after he had left doing peace work. He
denied that he was told by the police to point out
the accused on the
identification parade. He testified that he was merely asked to
identify the person who shot him on the 18
th
of January 2004 and he identified the accused.
During
re-examination by mr Wolmerahs, mr April was referred to paragraph
eight of EXHIBIT A. He confirmed and agreed with its contents.
After
agreement between council the accused statement containing admission
in terms of Section 420 of the Criminal Procedure Act
was handed in
as EXHIBIT C and the postmortem report was handed in as EXHIBIT D.
The state
thereafter closed its case.
The
defense called two witnesses to testify namely the accused and his
girlfriend, ms Nhonho Ayanda Silere. Testifying in his own
defense
the accused denied any knowledge of the allegation against him. He
stated that he was not involved in the commission of
these offenses
which allegedly occurred on the 18
th
of January 2004 at about half past nine. His defense was that on the
day in question and at the time he was at his house in Crossroads.
When asked to give account of his movement on the 18
th
of December 2004, the accused testified that usually he will be with
his friends during the day and in the evening he would go
home. He
was unable to recall when he got home on that day, because he had
just returned from the Transkei, but he thought it must
have been
between 19:00 and 20:00. He had gone to Transkei in December 2003 and
returned home some few days before he was arrested
on the 21
st
of January 2004. When he was asked who had been at home with him on
the 18
th
of January 2004 the accused stated that when he came back from the
Transkei he discovered that his first girlfriend was pregnant.
During
the day he would spend the day with this first girlfriend and in the
evening he would go pick up another girlfriend that
is Nhonho who
stays not very far from his house. Nhonho’s house is about five
minutes walk from his place. Nhonho had slept
over at his place. The
accused has a family at the back of his house. Nhonho would first
spent some time with this family in the
main house, before going to
the ...(indistinct).
The
accused further testified that in the evening he will only go out of
his house to buy cool drink. His girlfriend was with him
until the
next morning until about 8 of 9 o’clock in the morning when he
would walk her home.
The
accused testified that he did not know Thobela April, he had never
seen him before, and however confirmed that during 2002 he
worked as
a peace worker in Nyanga East, it was a one year contract as it
expired this contract ...(indistinct) would be taken
in. His group
had about 60 people and they were divided in about three groups of 20
people each. He agreed with mr April that the
peace workers patrolled
the area on bicycle. He stated that he used a bicycle when it was hot
during the day and at night he would
use motor vehicles. The peace
workers mission was to fight crime. He denied that when he stopped
working as a peace worker he became
a gang member. He was always in a
group of friends and and therefore they might have thought that they
were gang members. He also
denied that he was once involved in the
shooting incident between the two gang members. He referred to an
incident where there
was a quarrel between the youth of Nyanga East
and Crossroads. With the involvement of the police, the dispute was
however dissolved.
This incident, according to him, took place
between 2002 and 2003. He denied that he was at the place of the
crime on the day in
question. The state witness mistook him for
someone else. He believes that the police are out to falsely
implicate him. He stated
that before his arrest on the 21
st
of January 2004, the police would frequently come to his house and
search it. They would harass him. He mentioned Prinsloo, Jansen
and
Smith as members of the police who use to harass him. Smith is the
police officer who arrested him in this case. In particular
he
sighted Prinsloo as the police officer who always harassed him.
Whenever he saw the accused riding in his vehicle, Prinsloo
would
stop him and search his car. On one occasion Prinsloo followed him up
to his home. The police believed that he had guns.
Before the accused
went Transkei in December 2003, Smith told him that he would get him.
The accused also referred to an incident
which occurred in November
2003 in which he was driving his motor vehicle and a passenger with
him, the passenger had a gun. Smith
stopped him and searched his car.
When he discovered the firearm he arrested the accused and his
passenger.
The
accused was subsequently release, because the passenger admitted that
the firearm was his. Under cross-examination by mr Wolmarans
the
accused testified that he left for Transkei in December 2003 and
returned to Nyanga East in January 2004. He believed that
he was
arrested about eight days after his return from Transkei. It was
during this period that realized that his girlfriend was
pregnant.
During this period he spent his evenings with his other girlfriend,
who is Nhonho. He admitted that his first name is
Zuko and that
during 2002 he worked as a peace worker. He would not dispute that mr
April saw him at Jaftha’s tavern. He
used to go there to play
pool.
He
stated that there were ...(indistinct) bad blood between him and mr
April. The accused also confirmed that his house is located
next to
Mvasa (?) Primary School. When he was asked if his father had come to
visit him while he was in prison his answer was that
he never did.
His father was a softhearted, kind person who cried when he saw him.
His father would then sent his mother to visit
him, because she was
much stronger. His sisters and his girlfriend also visited him in
prison. He testified that when his mother
came to visit him in prison
he told her about the case. He however never discussed this case with
his girlfriend. When he discussed
the case: with his mother he did
not tell her of the date of the incident, because he did not know it.
He however stated that when
the police arrested him, he asked them
why he was arrested, they gave him an answer, but he cannot recall
the date of the incident
as was given to him by the police. He stated
that he would’ve told his mother about the date of the alleged
incident. He;
knew that he was innocent; he was always with his
girlfriend every night after his return from the Transkei. He told
his girlfriend
that she was his alibi witness.
He
further testified that when he was arrested by Smith he told him that
he had an alibi. When the accused was asked if he had advised
his
girlfriend to go and make a statement at the police station to the
effect that on the day in question she was with him, he
stated that
he had not done so, because he was not aware that she would do so and
he thought that she would be called as a witness.
He stated that he
could not recall when he came back home on the 18
th
of January 2004. He normally comes back home between 19:00 and 20:00.
The accused believes that the police conspired against him
in this
matter, because they wanted to get him. He does not know what they
wanted from him. As a peace worker he never had any
problems with the
police. He worked with some of them. His father was aware that the
police was harassing him. He however never
advised him on what to do.
He believes that the police told mr April what to say insofar as his
evidence implicating. He stated
that on the 18
th
of January 2004 he did not have a firearm license.
During
re-examination the accused has testified that his pregnant girlfriend
in Nandiswa (?). She used to stay next to his place.
She has since
left the area. When he returned from Transkei in January 2004 he saw
her almost every day, but she never slept over
at his place.
Ms
Nhonho Ayanda Silera thereafter testified for the defense. She knows
the accused, before his arrest he was her boyfriend. She
testified
that on the night of the 18
th
of January 2004 she was with the accused at his parents’ home.
She had slept over at his place. She further testified that
when he
returned from Transkei in January 2004, she would be with him every
night. The night before his arrest, she had been with
him. The day
before his arrest he had picked her up at her place at about 19:00
and 20:00. She left his place at about 8 o’clock
in the morning
the following day. The accused walked her home. Since his arrest she
had visited the accused about seven times at
Pollsmoor prison. When
she visit him, they never discuss the case. She is not aware that the
accused is a gang member. He had two
or three friends. (Indistinct)
... never involved in a shooting incident with other people. When she
met the accused he was no
longer a peace worker.
During
cross-examination she testified that she became the accused
girlfriend during December 2003. She ...(indistinct) for two
week
when he left for Transkei. Before December 2003 she did not know him.
She was aware that the accused was arrested on the 21
st
of January 2004. Before his arrested she had known him for three
weeks only. She knows Nandiswa, that is the accused former
girlfriend.
She has two children with the accused. She was aware that
Nandiswa was pregnant when she began to go out with the accused. The
accused had told her that they were broken up. She is still in love
with the accused and will be happy if he was acquitted so that
they
can have another opportunity to continue their love relationship. The
accused ...(indistinct) returned from Transkei and visit
her sometime
during the day and late at round about seven in the evening. He will
come to her at about five o’clock pm, but
never during lunch
time. She was not aware that the accused was still seeing Nandiswa.
She would be surprised if he does.
She
further testified that her house is about 20 minutes walk from the
accused house. She slept with the accused in his ...(indistinct).
She
never ate at the accused place and while she was at the accused
place, he never ate in front of her. She never sat in the main
house
and had a chat with the accused family. She testified that they would
enter the premisses through the back entrance. The
accused family
would not be aware of her presence on the premises. She became aware
that the accused was arrested when he telephoned
her from the police
station. She did not go to see him because she was busy with
babysitting.
She
said that the accused did not tell her why he was arrested and she
did not ask him. She also visited him at PoUsmoor prison some
three
weeks after his arrest. When she visited the accused at prison, they
never discussed the case. She was told by the accused
from Nduli (?)
why he was arrested. She did not know that she would be needed to
give evidence for the accused in this case until
last week that is
the 3
rd
of April. That is when the accused phoned her and asked her to be his
witness. The accused asked her to tell the truth about his
whereabouts before he was arrested. She was not aware before the time
that the accused intended calling her as his alibi witness.
The
defense thereafter closed its case.
It
was submitted by Mr Wolmarans, for the State, that the state has
succeeded to proof beyond the reasonable doubt that the accused
was
guilty of the offences with which he was charged. He submitted that
the evidence of Mr April, although a single witness, should
be
accepted as ...(indistinct). His identification of the accused was
made under favorable conditions being his proximity to the
accused at
the time of the incident and his prior knowledge of the accused. The
court was asked to regard the evidence of the accused
and his witness
as false. It was submitted that the evidence of the defense witness
was full of improbabilities. The State however
continued that
...(indistinct) not succeeded that the accused was not guilty on
count three.
On
the other hand it was submitted by ms Verrier for the accused, that
the accused must be acquitted on all counts. It was submitted
that
the state’s case was based on the evidence of a single witness
and who's evidence cannot safely be relied' upon and
was unreliable
and he has ...(indistinct) on various occasions. It was argued that
his observation of the accused was very limited
and it is possible
that he might have made a mistake. It was finally submitted that the
state has not succeeded to prove the accused
alibi. This basically
concluded the submissions made by the parties.
Now
the onus is upon the state to proof the accused guilt beyond
reasonable doubt. In evaluating the evidence the court has to weigh
up all the elements which points towards the guilt of the accused
against all those which are indicative of his innocence, taking
proper account of ...(indistinct) strengths and witnesses
probabilities and improbabilities on both sides. Once the court has
done so, it must be decided whether the b a I a nee we ig h s so
heavi I y i n favor of the state as to excl ude any reasonable
doubt
about his guilt. There is no obligation upon the accused to proof his
innocence. If his is ...(Indistinct) reasonable possibly
true he is
entitled to his acquittal, even though his explanation is improbable.
See in this regard cases of the
S
v V
2001 (i) SACR 453 SAA and
S
v
Tshabalala
2003 (1) SACR 134
(SCA).
Ms
Verrler has correctly pointed out that this matter turns on two
issues namely the liability of the single witness’ evidence
and
his ability to identify the accused. (Indistinct)... in terms of
Section 208 of the Criminal Procedure Act the court may convict
the
accused of any offence from the single evidence of any competent
witness. However, such evidence must be opposed in question
and the
test for its acceptance was ...(indistinct) heard in
R
v Mokwena
1932 PD 79
at 80.
“
The
corroborated evidence of a single competent and credible witness is
no doubt declared to be sufficient for a conviction by the
section.
But in my opinion that section should only be relied upon when the
evidence of a single witness is clear and satisfactory
in every
material respect. Thus the section ...(indistinct) where for instance
the witness has an interest or ...(indistinct) with
the accused.
Where he has made a previous inconsistent statement, where he
contradicts himself in the witness box, where he has
been found
guilty ...(indistinct) dishonesty, where he has not have proper
opportunities for aggravation.”
The
second aspect of the case relates to the reliability to the witness
evidence regarding the identity of the accused. It is trite
that the
evidence of identification based upon a witness’ recollection
of a person’s appearance is dangerously unreliable,
unless
approached with due caution. See in this regard the case of the
S
v Mthethwa
1972 (3) SA 766
(A). When the identification of a alleged offender is
an issue, everything depends on the honesty of indentifying the
witness and
the probability of his ... (indistinct). See in this
regard the S v ...(indistinct)
1990 (2) SACR 450
...(indistinct)
case.
The
State’s case is based on the evidence of Mr April and the
impression which the court gained from him that he was honest
and
truthful although there was contradiction in his evidence, such
contradiction was not material. He testified on how the door
was
kicked open while sitting inside Xolani’s house. The manner in
which the door was opened ...(indistinct) the door. And
the first
persone he saw in the door was the accused. He was armed with a
firearm. Mr April was sitting very close to the door
- he was about
30 cm away from it. When entering the house the accused ordered them
to lie on the ground. He did not lie on the
ground, but he and the
deceased had covered their faces. And the witness had covered his
face by pulling his shirt over his face.
His shirt had a hole
...(indistinct) observe movements next to the door area. It was
through this hole that he further observed
the accused. He recognized
the accused. The accused shot him and the deceased before leaving the
scene. The next day while he was
in hospital he was approached by the
police in connection with the matter. He told the police who his
attacker was. He described
to them where he stays and how he knew
him. It is therefore clear that his identification of the accused is
not only based on his
observation of the accused at the time of the
incident, but he had ...(indistinct) the accused. He knows the
accused father and
what he does. He had seen the accused at Jaftha’s
tavern before. The accused confirmed that he used to frequently visit
this
tavern. The witness had no motive to falsely implicate the
accused. There was no collision proofed between him and the police.
His statement was taken a day after the incident and while he was
lying in hospital. This ...(indistinct) excludes any opportunity
or
possibility of collision with the police.
Turning
to the defense case the accused defense was an alibi. He testified in
his own defense and called a witness to confirm his
alibi. The
...(indistinct) position of regard to an alibi is that there is no
onus on the accused to establish it and if it might
be reasonable
true he must be acquitted. It does not have to be considered
...(indistinct). It must be considered in the light
of the totality
of evidence in the case and the court’s impression of the
witness. See in this regard the case of R v ...(indistinct)
1995 (3)
SA 337
...(indistinct). The accused defense of alibi was weak. The
accused witness did not give account of the accused movement on the
18
th
of January 2004 in the evening. Her testimony was about what the
accused would usually do ...(indistinct) before his arrest.
This
was not evidence of about what he did on the 18
th
of January 2004. The witness evidence was full of improbabilities.
She never knew why the accused was arrested and she was his
girlfriend and was his witness. She never raised the matter
...(indistinct) to visit the accused in prison. There were also
contradiction
between the witness and the accused. According to the
accused he had informed her that she was his alibi witness, however,
according
to the witness she was not aware of this fact until a week
ago when she was phoned by the accused. The witness denied neither
that
she ate at the accused house nor that she met his family in the
main house when she came to visit him. The accused evidence is
accordingly rejected as false. The court is satisfied with the
evidence of the state witness. The evidence indicates that the
accused
was the man who entered Xolani’s house and who shot the
deceased and the witness. He carried the firearm with ammunition for
which he had no license.
The
state considered that the accused is not guilty of count three, that
is the charge related with robbery with aggravating: circumstances.
The witness who would have testified on this count did not testify.
Mr April could not give evidence on this count as his face
was
covered. When the goods were taken out of Xolani’s house he did
not see what was taken.
It
is the unanimous decision of this court that the accused is
ACQUITTED
ON COUNT THREE
.
He
is found
GUILTY
ON
COUNT
ONE. TWO. FOUR AND FIVE
as
charged.
ZONDI,
A J