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[2024] ZALMPPHC 94
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S v Mdhluli and Others (CC47/2021) [2024] ZALMPPHC 94 (5 August 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO
: CC47/2021
DATE
:
2024-06-11
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
DATE:
5 August 2024
SIGNATURE:
In
the matter between
THE
STATE
And
PRINCE GIFT MDHLULI &
2 OTHERS
Accused
JUDGMENT
PILLAY
(AJ)
: The three accused are adult
males, being charged with the following offences, where it is alleged
that they were acting in common
purpose with each other in the
commission thereof:
Count 1
Robbery with aggravated
circumstances, read with the provisions of Section 51 of Act 105 of
1997, as amended;
In that upon or about the
14
th
of March 2018, and at or near Bothashoek in the
district of Sekhukhune, the accused did unlawfully and intentionally
threaten to
assault Sibaya Elliot Nhlapo and with force and threat of
violence did take the following property:
An Amarok double-cab
motor vehicle with registration number J[…];
3 cellular phones;
Bank card; wallet
ID book
His property or in his
lawful possession and did rob him of the same.
The aggravating
circumstances being the threat of violence during the incident.
Count 2
Attempted murder
In that on the 14
th
of March 2018, and at or near Bothashoek in the district of
Sekhukhune, the accused did unlawfully and intentionally attempt to
kill Sibaya Elliot Nhlapo by firing gunshots towards him.
Count 3
Robbery with aggravating
circumstances, read with the provisions of Section 51 of Act 105
of 1997, as amended;
In that upon or about the
25
th
of April 2018, and at or near Burgersfort, in the
district of Sekhukhune, the accused unlawfully and intentionally
threatened to
assault Malekutu, Lazarus Makoto, Solly Sekatane,
Zachariah Makoti, and did then and there with force and threat of
violence did
take:
Cash in the sum of
R800 000,00;
2 firearms;
Their property or in the
lawful possession of the said Malekutu Lazarus Makoto, Solly
Sekatane, and Zachariah Makoti.
The aggravating
circumstances being present in that there were threats of violence
during the incident.
Count 4
Attempted murder
In that upon or about the
25
th
of April 2018, and at or near Burgersfort, in the
district of Sekhukhune, the accused had unlawfully intentionally
attempted to
kill Malukutu Lazarus Makoto, Solly Sekatane, Zachariah
Makoti by shooting them with a firearm.
Count 5
Murder, read with the
provisions of Section 51(1) of Act 105 of 1997 as amended;
In that upon or about the
25
th
of April 2018, and at or near Burgersfort, in the
district of Sekhukhune, the accused did unlawfully and intentionally
kill Mpho
Barry Ngalo, an adult male.
Count
6, 7, 8 and 9 involved the contravention of the
Firearms Control Act
60 of 2000
in respect of the various firearms and ammunition
recovered on the scene on the 25
th
of April 2018.
Counts 10, 11, 12, 13,
and 14 are all in respect of accused 1 only, and deal with the issues
of fraud as well as the issues of contravention
of the Immigration
Act.
The provisions of Section
51 of Act 105 of 1997 as amended in respect of various charges were
explained to the accused. They indicated
they understood the
competent verdicts as contained in the
Criminal Procedure Act 51 of
1977
as amended in respect of the potential competent verdicts that
they could face if the state was unable to prove the main charges.
The state was represented
by Advocate Sabelebele and Advocate Maluleke, represented accused 1
and 2. Advocate Machobeni, accused
3. During the defence’s
case, Advocate Maluleke continued to represent accused 3, in light of
accused 3’s legal representative
being no longer available.
The accused indicated
they understood the charges preferred against them by the state and
pleaded not guilty to the charges. Counsel
confirmed the accused’s
plea of not guilty as being in accordance with their instructions and
elected to give a plea explanation
which was based on an alibi
defence, denied the allegations in terms of
Section 115
of the
Criminal Procedure Act. The
accused confirmed this.
Section 220
admissions
were made concerning the following, which were made by the three
accused in respect of count 5, the murder charge, and
received as
exhibits. The state elected not to address the Court in terms of
Section 150
of the
Criminal Procedure Act 51 of 1977
.
The
state led the evidence of 11 state witnesses, namely Josane Elias
Mbumbe, Captain Kgare, Solly Sekatane, Zachariah Mkoti, Johannes
Roos, Portia Fumba, Lieutenant Commander M
Nemukula, Provincial Commander Sekete,
Warrant Officer Marojele, Warrant Officer Mogoshoa, and Mr Nhlapo.
All these witnesses testified
under oath and, where necessary, use
was made of a language practitioner.
The following exhibits
were received by Court during the proceedings, namely:
EXHIBIT A to C, being the
Section 220
admissions by accused 1, 2, and 3.
EXHIBIT D, the
Section
212
Affidavit and post-mortem report compiled by Dr Ramunenyiwa in
respect of the deceased Mr Ngalo.
EXHIBIT E, the photo
album.
EXHIBIT G, collection and
storage of exhibits from the scene.
EXHIBIT H, partial print
lifted from the motor vehicle.
EXHIBIT J, comparison
print of accused 1.
EXHIBIT K, court chart in
respect of the print.
EXHIBIT L, print taken
before court, evidence by Warrant Officer Kgare as photographer and
fingerprint expert evidence.
EXHIBIT F, photo album
compiled by Sergeant Setumu.
EXHIBIT M, statement of
the state witness Z Makoti.
EXHIBIT N,
Section 220
admissions by the three accused.
EXHIBIT O, the
Section
212
Affidavit by P Fumba.
EXHIBIT P, 212 affidavit
by Warrant Officer Scheepers.
EXHIBIT Q and R, proof of
the qualifications of Warrant Officer Kgapane and Sergeant Mokgale in
collecting buccal samples.
EXHIBIT S, 212 affidavit
of Warrant Officer Morojele.
EXHIBIT T, 212 affidavit
of Warrant Officer Mogashoa.
EXHIBIT U1 and U2,
affidavit of the complainant, Mr Nhlapo.
EXHIBIT V, heads of
argument on behalf of accused 1 and 2 in respect of the
Section 174
discharge.
EXHIBIT W and X, heads of
arguments handed in by the state and the defence.
All these exhibits were
handed in by consent. The contents thereof admitted. That concluded
the evidence for the state and the state
closed its case. The
discharge application in terms of
Section 174
of Act 51 of 1977 was
opposed and refused by Court.
The defence addressed the
Court in terms of
Section 151
of the
Criminal Procedure Act. The
three accused testified in their defence and led the evidence of
Lieutenant-Colonel Mokofane that each testified under oath and
when
necessary use was made of the language practitioner. The defence
thereafter closed their case.
Both the state and the
defence argued at length concerning the merits of the case. The state
conceded that accused 1 be acquitted
in respect of counts 1 and 2.
The state sought the conviction of accused 1 in respect of count 3 to
count 14, accused 2 and 3 in
respect of count 3 to 9, and that the
state proved the case against the accused and they had to be
convicted as per the indictment.
The defence submitted that the
accused be acquitted on all the offences charged.
Brief
background
;
On the 14
th
of
March 2018 and at or near Bothashoek, Mr Nhlapo was hijacked and his
VW Amarok motor vehicle with registration number J[…]
was
stolen, including his personal belongings.
Not
long thereafter, this vehicle was involved, on the 25
th
of April 2018, in a cash heist from the Fidelity
Security Company in Burgersfort, where an amount of R800 000,00
and 2 firearms
were stolen. This money belonged to ABSA and was being
collected by Fidelity when the incident occurred.
Employees of the SBV
Security Company were in the vicinity when the incident unfolded.
They got involved in trying to apprehend
the perpetrators and recover
the money which was taken. The shootout between the SBV Security and
the perpetrators resulted in
the VW Amarok motor vehicle colliding
with the VW Polo, capsizing off the road and landing on the side of
the road striking the
electric transformer.
The
perpetrators fled from the Amarok vehicle on foot and Mr Ngalo, one
of the perpetrators, was shot by the SBV
employee and succumbed to his injuries and died on the scene. The
scene was contained,
the recovered money returned to ABSA via
Fidelity. The exhibits collected and dispatched for forensic
investigation.
The three accused were
subsequently arrested and have been indicted in respect of the
various charges with the state seeking conviction
against them for
the various offences based on the evidence tendered in the case.
The Evidence;
In respect of count 1 and
2, the state led the evidence of Mr Nhlapo who testified that on the
14
th
of March 2018, he had returned home at about 21H45
p.m. He stopped at the gates and switched off his motor vehicle
Amarok J[…].
He climbed out of the
motor vehicle and approached the gate of his premises. A person
touched him on his back and asked for the
keys of his motor vehicle.
He threw the keys away and tried to run away and the person fired a
shot at him whilst he was running
away.
Whilst
trying to escape, he saw 2 people in his motor vehicle driving
towards town. He was unable to identify the perpetrators,
EXHIBIT U1
and U2 were received as his statements pertaining to the incident. On
the 25
th
of
April 2018, Solly Sekatane, an employee of Fidelity Cash Solutions,
was on duty at the Twin City ABSA in Burgersfort.
He
was part of a three
man
crew, the driver, Mr Makoti, Mr Mokoto, who was to enter the bank to
collect money, and himself as the third man, armed with
a rifle to
guard his colleague. On arrival, he noted the banking area was busy
and requested the security from ABSA to clear the
crowd. He exited
the vehicle and gave Mr Makoto the go-ahead to enter the bank.
While observing his
colleague exiting the bank with the money, he felt a gun at the back
of his right ear and was forced to lie
down. His colleague was also
made to lie down. Whilst lying down, he was only able to observe the
feet as he was afraid to raise
his head. He did not see what was
happening, but heard between five to seven gunshots and the Fidelity
van moving. His rifle, his
colleague’
s 9mm
firearm, and the bag
containing the money was taken.
He confirmed the scene as
described in photo 13 of EXHIBIT F. He was unable to identify the
perpetrators and later informed that
the Amarok, being driven by the
perpetrators, was involved in a collision near the St Thomas School,
where he later went with his
crew to collect the recovered money. He
confirmed that there was a hiking spot in front of the school and
that Mr Makoto’s
services were terminated by Fidelity.
Mr Z Makoti testified
that on the date question, he was the driver of the Fidelity motor
vehicle. He reversed, parked the vehicle,
and observed his colleagues
exit the vehicle at the ABSA Twin City. He noted that Mr Makoto
returned and went back to ABSA and
returned, this time in possession
of a money bag.
It was at this stage that
two men armed with rifles approached him from the front, shooting at
the vehicle. The one male, who was
not having any covering on his
face, came to the driver’s side and started shooting at his
window. The shooting was for approximately
four to five minutes and
the person was approximately 3 metres away.
He realised that the
bulletproof window was no longer able to protect him. He then drove
this vehicle out of the parking area, colliding
into various vehicles
in his attempt to flee. He drove to the police station, called the
police, and returned to the scene. On
his return, he found his crew
without the money bag.
The area was cordoned off
and he later collected the cash from the scene at St Thomas School.
He identified accused 1 when he came
to court for the first time. The
accused was chained. He identified the accused’s face, however,
indicated that the current
scar on the face of the accused was not
present at the time of the incident. He was taken at length under
cross-examination with
specific reference to the identity of the
accused 1.
He indicated he was
called to court in respect of the Fidelity case and then he realised
that accused 1 was the perpetrator. He
did not recall where he was at
the time he was called as a witness, if it was High Court or
elsewhere. He confirmed making a statement
to the police, which was
handed as EXHIBIT M, wherein there was no mention of the witness
being able to identify the perpetrator.
He was confronted with
conflict between his evidence and that of his colleague concerning
the number of times that Mr Mokoto had
gone into the bank. In
response, he indicated that the witness, Solly Sekatane, may have not
observed this occurrence. He was confronted
with accused 1’s
version of being out of South Africa at the time of the incident and
he was adamant that it was not the
case.
Elias Mbumbe, an employee
of the SBV, was on duty as a driver with his 3 colleagues. They were
at the Total Burgersfort when he
heard the gunshots and saw the
Fidelity vehicle. His colleague looked to see what was happening and
the perpetrator started shooting
at him and he returned fire.
Mr Mbombi moved the
vehicle to give his colleague some cover and also started shooting at
the assailants. The assailants fled in
an Amarok motor vehicle and he
gave chase with his colleague during which a shootout ensued between
them and the Amarok. The Amarok,
trying to overtake, collided with
the VW Polo, lost control, capsized and landed on the side of the
road, striking the electric
transformer.
During this process, the
money bag fell out of the vehicle on the ground. Mr Mbumbe was
driving at a high speed, passed the Amarok
and had to reverse. He was
still observing them from a distance of 10 metres, when he saw 2 men
exit the vehicle, still shooting
and ran across the road towards the
mountain.
The
second two pointed the guard of the school and was allowed access
into the school. They continued shooting at him and he was
also
returning fire but then stopped
,
as it was break and there were
children all over. The last occupant exited the vehicle running
towards the school gate and was shooting
at them.
They returned fire and
this person was shot and killed outside the school. Shortly
thereafter there was a person who came out of
the school carrying a
bucket containing clothing and gloves. He confirmed the photos taken
at the scene in front of the school
and the picture of the deceased,
money bags, firearms and the Amarok vehicle.
He indicated that one of
the perpetrators who ran towards the mountain was missing a sneaker,
which he found with the bags of money.
He indicated, however, that he
did not see what shoes the perpetrator was wearing as they were
shooting at him. The police and
Fidelity arrived, and the scene was
handed over. Fidelity collected the money and left whilst he remained
on the scene.
Lieutenant
Commander Nemukula testified that on the 25
th
of April he assisted the police with
the investigation of the cash in transit at Burgersfort. On his
arrival at ABSA Bank Twin City
he was informed that the employees of
the cash in transit was robbed of cash and the perpetrators drove off
in an Amarok motor
vehicle.
The
crew of the Fidelity was trying to evade the scene
,
and in an attempt to leave
,
he crashed with four motor vehicles.
Whilst still busy interviewing the owners of the motor vehicles who
were involved, he received
information that the Amarok was involved
in a collision and was now stationary next to St Thomas College.
He attended the scene and
saw the Amarok, which had collided with the electric box and the SBV
motor vehicle. He observed a deceased
person lying next to the SBV
motor vehicle. He noted that there was a bucket on the scene and he
gave instructions that the contents
of the bucket be packaged for
investigation at the Forensic Science Laboratory.
The reason for this
instruction was based on the fact that the deceased was dressed in
similar clothing and there were other work
wear on the scene matching
the items in the bucket. He was not involved in any of the accused’s
arrests. His evidence was
tested under cross-examination with
specific reference to who arrived at the scene first between himself,
Colonel Nemukula, and
Captain Kgare.
Captain Gideon Kgare is
an expert crime scene investigator and fingerprint expert stationed
at Polokwane. At the time of the incident
he was a warrant officer
and he reported to the scene of the incident where he was responsible
for the collection, photographic,
and forensic investigation at the
St Thomas School.
He testified in respect
of EXHIBITS E, the photo album compiled by him, G, collection and
storage of exhibits from the scene, H,
partial print lifted from the
motor vehicle, EXHIBIT J, the comparison print of accused 1, EXHIBIT
K, the Court chart in respect
of the print, and EXHIBIT L, the print
taken before Court.
At his arrival he was
pointed out various locations and items. He took photos and collected
and sealed the 60 items which were dispatched
to the Forensic Science
Laboratory. He made specific reference to the following:
A white cap located at
the scene 1, number 37 in photo 78;
The contents of a bucket
located at scene 1, number 16, photo 39;
A grey Nike tekkie
located at scene 1, number B12 on photo 154.
This was outside of all
the other exhibits. Save for the firearms which he transported
himself to the FSL, the exhibits were sent
by courier.
He was responsible for
the lifting of the left thumb partial print from the left front door
of the Amarok motor vehicle. He indicated
that the print was fresh as
it was adhering to the powder quickly and that it was not older than
24 hours.
He subsequently received
a set of prints of accused 1 which he compared and concluded 7 points
of comparison between the print lifted
and accused 1’s left
thumbprint. No two persons has the same prints and he concluded that
accused 1 was the person to have
deposited the print in the Amarok
motor vehicle.
He was taken under
cross-examination concerning the whereabouts of the bucket and who
collected these exhibits. He indicated he
was not concerned as to the
collector of the items and from where they were removed. He confirmed
that Skynet was responsible for
the transportation of the exhibits to
the Forensic Science Laboratory.
It was put to him that
the accused 1 had driven the said Amarok motor vehicle prior to the
date of the incident. However, he stood
firm at the belief that the
fingerprint left on the motor vehicle was no longer than 24 hours due
to its fresh condition. He confirmed
that the items in the bucket
were approximately 7 to 10 metres from the vehicle.
He indicated that he took
photos inside the vehicle and then removed the items to the outside
for him to properly identify and see.
He indicated that the partial
print was found on the left door of the vehicle inside the frame of
the door between the window and
the lock of the door. It was marked X
on the photo 102 and is reflective of the location of the fingerprint
except that this print
was located on the passenger side front door
frame.
Johannes Roos, he is the
manager of Fidelity, the cash-in-transit. He testified that he
received information from Mr Mokoti that
there was a robbery at ABSA
Twin City. On his arrival, he noted that the motor vehicle was shot
at, his staff were not injured,
save for the shock in respect of the
incident.
Two firearms were taken,
being an R5 and a 9mm. On his arrival at St Thomas College, he noted
the SBV vehicle, the Amarok motor
vehicle, the deceased, the
stop-loose bags that contained the cash, and after the scene was
secured by the police, he was instructed
to remove the exhibits
containing the cash back to the cash centre.
He indicates that R1,528
000,00 was given to the crew that morning. The cash recovered was
R728 000,00. The shortfall was R800 000,00.
To date, none
had been recovered. The two firearms were recovered but were still in
the custody of the police under investigation.
His evidence was not
tested under cross-examination.
The evidence of the
Provincial Commander Thapiso Sekete was to the effect that Captain
Kgapane and Sergeant Mogale, both employees
of the South African
Police Services, had both received training in respect of the
collection of buccal samples and handed in EXHIBIT
Q and R as proof
of same.
Portia Fumba, an employee
of the Department of Home Affairs, testified concerning counts 10 to
14 in respect of accused 1. Her affidavit
was received as EXHIBIT O,
including a copy of the accused 1’s passport and visa stamps
contained therein. There is also
a copy of the movement control
record for accused 1.
She
indicated that the movement control system is a computer-generated
record of the movement of the accused 1 into and out of South
Africa.
According to her information, accused 1 departed South Africa on 8
th
of March 2018. There is no record on
the system
of
his return to South Africa.
She disputed the
authenticity of the stamps contained in the passport belonging to
accused 1. She highlighted that there was a problem
with the font
size and the description as reflected on the passport. She indicated
that there was an employee assigned to the stamp
numbers who were
responsible for ensuring that the stamps were always safely stored.
That
the entry stamp for 11
th
of March 2018, the exit stamp for
23
rd
April 2018, and the entry stamp for 5
May 2018 were all fraudulent and were not the property of the
Department of Home Affairs.
Numbers 488 and 458 were employees of the
Department of Home Affairs and were either on duty or on leave when
these stamps were
used.
She
was taken at length under cross-examination concerning her expertise
in respect of the various font sizes. She conceded that
the employee,
Lamola, reported that there was a problem with the stamp and was
issued a new stamp. This occurred around 8
th
of January 2019. Flowing from this
incident, the Lebombo Port was under investigation and Mr Lamola is
on suspension.
Warrant Officer Wilson
Morojele testified concerning his qualifications and expertise and is
currently employed in the Forensic
Science Laboratory as a reporting
officer and an expert in extracting and analysing DNA. He confirmed
EXHIBIT S being his report,
wherein he compared the DNA sample of
accused number 3 against a piece of cloth that was recovered from the
scene. He confirmed
that the blood that was located on the piece of
cloth belonged to accused 3.
Warrant Officer Mogashoa
testified concerning his qualifications and expertise and is
currently employed in the Forensic Science
Laboratory as a reporting
officer and an expert in extracting and analysing DNA. He confirmed
the contents of EXHIBIT T and that
he did analysis on the blood stain
on a jacket and tekkie and epithelial cells on a white cap and
compared the DNA to that of the
sample of accused number 2 and found
them to be a match.
That no two people had
the same DNA and the blood and epithelial cells found on those
exhibits belonged to accused number 2. He
was taken at length under
cross-examination and accused number 2’s version concerning his
presence of the scene which he
was unable to comment on.
In respect of the various
exhibits, the Court took cognisance of the admissions made by the
accused in respect of EXHIBIT A and
EXHIBIT N, the post-mortem report
as contained in Annexure 1 to EXHIBIT D and the chief post-mortem
findings were multiple gunshots
to the body of the deceased Mpho BW
Nkalo, EXHIBIT F, the affidavit by Sergeant Setumu concerning the
photos of the scene at the
ABSA Twin City.
That in brief was the
evidence for the state and the state subsequently closed its case.
The defence sought an application in terms
of
Section 174
in respect
of the three accused insofar as the charges and handed in EXHIBIT V.
It was opposed by the state. The application was
dealt with at length
and ventilated. In respect of count 1 and 2, the accused 2 and 3 were
found not guilty and discharged in terms
of
Section 174
of the
Criminal Procedure Act 51 of 1977
.
The three accused were
placed on the defence in respect of all the other counts. Accused 1
testified, denying the allegation against
him. He denied the
allegation with specific reference to count 1 and 2. He does not own
a firearm, nor does he know how to use
one. He explained that his
friend, Sicelo Mdluli was driving an Amarok motor vehicle and used to
visit him at his tavern.
He
requested him on a few occasions to help transport his stock from the
store to the tavern, and he even moved the vehicle once
whilst
loading the stock. He travelled in the motor vehicle on 23
rd
of April 2018 on the morning prior to
leaving for Mozambique, and that it was possible on the trips with
the vehicle that his print
was left in and on the motor vehicle.
He
denied involvement in the offence as he left South Africa for
Mozambique on the 23
rd
of April 2018 and returned on the 5
th
of May 2018. He denied involvement in
the commission of the offence and he indicated that the witness was
mistaken concerning seeing
him at the scene as he was not in South
Africa. He explained the system in the border post concerning his
exit and entry between
South Africa and Mozambique with specific
reference to how many times his passport is requested and seen by the
staff and police
at the border.
Moreover, he emphasised
the fact that the person entering and leaving Mozambique has a photo
taken of them at the border. He denied
being identified by the
security officer from Fidelity. He indicated that this person said at
the time of the incident that he
was unable to ID anyone, then went
on to say 4 to 5 years later that it was him.
He made a statement to
the police on his arrest and surely if the person was able to
identify him, they should have held an ID parade
and this person
could have identified him then, not so many years later in court when
he was in the accused dock. He was taken
at length under
cross-examination concerning the stamps in his passport. He indicated
that at the Mozambican border, one’s
photo was taken on entry
and exit.
He was unable to explain
the incorrect years reflected in the passport, but indicated that
according to the movement control system,
it reflected him leaving
and entering on the dates when the Mozambican stamps were defective.
He did not have any of the stamps
for South Africa or Mozambique and
was not involved in any activity in respect of the manufacture or
duplication of the stamps.
Accused
2 testified that on the 24
th
of April 2018, he was at Steelpoort
where he was looking for employment as a truck driver. He was wearing
a black T-shirt, jeans,
a pair of boots and a white cap. He only
finished after 5pm and due to the lateness of the hour, slept over in
a truck.
The following morning, he
went to the hiking spot approximately 10 metres near the school
entrance where a group of people was gathering
to hike. He heard
gunshots from far and then got nearer, he started running away, he
tripped over the paving, fell down, injured
his finger and his knee.
He saw the vehicle in the
distance and like a movie, he saw himself running for his life
because of the gunshots. He managed to
escape the scene, leaving
behind his cap. He injured his finger where his nail came out and he
was bleeding from his injuries.
He denied owning a
firearm, ammunition, being involved in any robbery of the Fidelity
security at the Twin City in Burgersfort.
He denied any involvement
with the shootout with the SBV security or any knowledge of the
persons that were shot and killed at
the school where he was hiking.
He was unable to explain
how his blood landed on the Nike shoe as depicted in photo 153 and
154 which was located under the damaged
VW Amarok. He was unaware how
his blood ended up on the blue work jacket as depicted in the bucket.
He did not enter the school
and according to him, he had left the
scene prior to the Amarok colliding with the electricity box.
He was taken at length
concerning how his blood was located on the exhibits. He stated that
he did not know, but denied being the
owner of the jacket and tekkie.
He had no desire to return to the scene where his cap had fallen and
denied being in the motor
vehicle and being injured in the scenario
as indicated by the state.
He indicated that the
police warned him of his constitutional rights and he remained
silent. He did not know his co-accused or the
deceased. He resided
outside Bushbuckridge, but did not know accused 1 or his tavern. The
cap was given to him and on getting the
lift, it seemed that the
passengers thought the gunshots was a result of taxi violence.
Accused
3 testified that he was well-known in Burgersfort area due to his
involvement with the EFF. He owned a tow truck and on
the 25
th
of April 2018, he was between 7 and
10 a.m. parked at the Burgersfort at the location which was reputed
for motor vehicle incidents,
especially on the 25
th
of every month.
He cut his finger on the
V-frame which was located under the motor vehicle where it is used to
tow a motor vehicle. He used a piece
of cloth and wrapped it around
his finger. He walked down to the river where he daily went to pray
around 7 a.m. and then decided
to walk to the KFC in town.
En route along the
passage where you would turn right to join the Burgersfort main line,
he heard the sound of brakes and heard
a noise of cars hitting
something. He started hurrying towards the sound with the idea of
possibly getting a job. He had taken
the 5 steps into the passage
when he heard the sound of gunshots.
He saw people running
towards his direction and the children in the school running towards
the back of the school. He heard from
one of the persons there that
they were shooting. He also turned around and it was at this location
where he believed he lost the
cloth which was wrapped around his
hand.
He went back via the
squatter camp and river to his motor vehicle where it was located and
left the area. He denied being involved
in the hijacking of the
Fidelity vehicle and robbing them of the money, he indicated he was
popular in the community and the people
would have identified him had
he been involved in the robbery. He did not know either the accused 1
or 2 nor the deceased.
He did not know how the
piece of cloth with his blood ended up in a bucket and indicated that
the best person to explain that would
have been the person that
collected the items in the bucket. He indicated that the passage he
referred to was located on the side
of the school with the school
fence to the left and he walked from the back towards the front of
the school.
He never entered the
school premises. He indicated that the pathway was used as a route
from the shacks to the town and there were
three people that were
coming from the front who informed him of the shooting. He was taken
at length under cross-examination with
specific reference to the
cloth which was wrapped around his left hand which was, as he
indicated, holding tight to stop the blood.
He believed that when he
heard about the shooting and seeing the children screaming and
running and the three people running, he
also turned and fled and in
that state of shock, he only realised later that he had lost the
cloth. He confirmed that the piece
of cloth fell outside the school
premises.
He was unable to assist
the Court in respect of explaining how the cloth which was on the
outside of the fence of the school was
found in the bucket that was
brought to the school gate, except to indicate that he believed it
was picked up from outside and
put into the bucket.
He did not know accused 2
and had no comment concerning how the blood of accused 2 was also
located in this bucket. He did not see
the Amarok motor vehicle on
the day in question. He denied the allegations of being a passenger
in this vehicle and that he was
in any way involved in the incident,
especially as he indicated he is known in the area.
Lieutenant Commander
Mokofane testified that he was at a detective cluster meeting in
Burgersfort when he was requested to attend
the scene of a
cash-in-transit heist and assist with the scene. On his arrival at
this area, it was already cordoned off and he
believed that Colonel
Ngele, being the most senior, was the crime scene manager who tasked
him with the duty of preventing anyone
from entering the area.
He was responsible for
pointing out certain locations and items to Captain Kgare. Amidst not
being in charge of the scene, he had
no idea who Lieutenant Commander
Nemukula was on the day in question. This in brief was the evidence
for the defence and the defence
closed its case.
Both the state and the
defence provided the Court with written heads of argument and same as
received at EXHIBIT W and X. They are
both thanked for their detailed
summations. The state sought acquittal of accused 1 in respect of
counts 1 and 2 and conviction
of all 3 accused in respect of the
remaining counts against all 3 of them. The defence sought the three
accused’s acquittal
in respect of the charges.
The
following was not disputed. That on the 14
th
of March 2018, Mr Nhlapo was a victim
of a robbery with aggravated circumstances where his Amarok motor
vehicle was stolen. It was
during this process that the perpetrators
fired gunshots at him in an attempt to kill him.
On
the 25
th
of April 2018 in Burgersfort, the
Fidelity Security was attacked and robbed of their money bag
containing cash. The perpetrators
used firearms to shoot at the
employees of the Fidelity Security Company and fled the scene in the
Amarok motor vehicle.
SBV Security was also
present in the area and a shootout ensued between them and the
perpetrators in the Amarok motor vehicle. Whilst
evading capture, the
Amarok was involved in a collision, capsized and landed near an
electric transformer next to St Thomas College
School.
Five occupants fled the
vehicle, 2 running towards the mountain, 2 running to the school. The
last 1 was shot and killed on the
scene. A bucket containing items
was brought and left at the entrance of the school. The police
attended the scene where photos
were taken and exhibits collected.
All these exhibits were properly sealed and sent off for forensic and
ballistic examination.
The cash that remained on
the scene of the incident was counted and it was established that an
amount of R800 000,00 was stolen
and not recovered. The deceased
was identified as Mpho Barry Nkalo. The cause of his death was
multiple gunshots to the body. The
accused 1’s fingerprint was
lifted from the left passenger door. The DNA was lifted from exhibits
on the scene. The buccal
samples were taken from accused 2 and 3 by
the authorised police officials. A comparison was done.
It was established that
the DNA found on the scene belonged to accused 2 and 3. The 212
ballistic report in respect to the firemen
and ammunition, which was
collected at the scene, pertained to count 6 to 9 of the indictment
and was admitted as being correct.
Aspects in dispute. The
involvement of three accused in the commission of the offence as
alleged in the indictment. Whether the
state proved beyond reasonable
doubt that the accused acted in common purpose with each other and
the deceased in the commission
of the robbery and then the subsequent
death of the deceased. Whether the alibi defence raised by accused 1
was reasonably possibly
true. Whether the accused 2 and 3’s
denial of the allegations and their version was reasonably possibly
true.
Now
in light of the concession made by the state concerning the lack of
evidence implicating accused 1 in respect of counts 1 and
2, I will
not evaluate the evidence concerning counts 1 and 2. The evaluation
of evidence was crystallised in the case of
Chabalala
2003 (1) SACR 134
(SCA) at paragraph
15. The Honourable Judge Hefer AJA, as he was then, said, and I
quote:
“
To
weigh up the elements which point towards the guilt of the accused
against those which are indicative of his innocence, taking
proper
account of the inherent strengths and weaknesses, probabilities and
improbabilities on both sides, and having done so, to
decide whether
the balance weighs so heavily in favour of the state as to exclude
any reasonable doubt about the accused’s
guilt.”
In assessing evidence,
regard was had to what was said in
State v Civa
1974 (3) SA
844
(T), where Margo J, as he was then, stated, and I quote:
“
The
evidence must be weighed as a whole, taking account of the
probabilities and the reliability and opportunity for observation
of
the respective witnesses, the absence of interest of bias, the
interesting merits or demerits of the testimony itself, and the
inconsistencies or contradictions, corroboration, and all other
relevant factors.”
The onus rests on the
state to prove the guilt of the accused beyond reasonable doubt.
There is no burden of
proof on each of the accused to establish his innocence. If there is
a reasonable possibility that the account
of the accused may be
substantially true, then he must be acquitted insofar as his version
does not constitute a crime or offence
on which he may be convicted
by virtue of the provisions of the
Criminal Procedure Act in
relation
to the various competent verdicts.
The Court must consider
the definitional elements of the offence in relation to the facts in
dispute and establish whether the state
proved the elements that are
in dispute.
In respect of the robbery
with aggravating circumstances, it is unlawful and intentional
appropriation of the property of another
with force.
Aggravated circumstance
was defined in the
Criminal Procedure Act in
relation to a robbery or
attempted robbery to mean the wielding of a firearm or any dangerous
weapon, the inflicting of a grievous
bodily harm, or a threat to
inflict grievous bodily harm by the offender or an accomplice on the
occasion when the offence is committed,
whether before or during or
after the commission of the offence.
Murder is the unlawful
and intentional killing of another human being. Contravention of the
Firearms Control Act 60 of 2000
in respect of the unlawful possession
of the firearm and ammunition as alleged in counts 6 to 9 of the
indictment, in respect of
accused 1, the contravention of the
Immigration Act 13 of 2002
and fraud in respect of the said passport.
As
highlighted above, it is common course that on the 25
th
of April, the Fidelity cash and
transfer was robbed. The state is relying on the evidence presented
to prove the involvement of
the accused in the commission of this
offence and the subsequent death of the deceased. The state relies on
the direct evidence
implicating the accused in the commission of the
offence, firstly being the single witness evidence of Mr Makoti, the
driver of
the Fidelity motor vehicle.
He gave detailed evidence
concerning the circumstances before the incident, the offence, as
well as what followed after the incident.
He highlighted to the Court
the fact that he was able to identify the perpetrator as being the
accused 1 because of observing him
for four to five minutes whilst
his window was being shot at prior to driving away.
The state argued that he
was an honest and truthful witness and his evidence can be relied
upon as satisfactory in all material
respects amidst the dock
identification, which the state argued was corroborative based on the
allegation of the accused not having
a scar on his face at the time
of the commission of the offence and now having a scar on his face.
The Court accepts that he
was a single witness concerning the identity of the perpetrator. The
Court must be mindful of the intrinsic
dangers of such evidence and
approach such evidence with caution.
Section 208
of the
Criminal
Procedure Act provides
that:
“
A
Court may convict an accused person on any offence charged with on
the single evidence of a competent witness.”
The principle that was
held in the
State v Artman en andere
1968 (3) SA 339A
to B,
and I quote:
“
In
accepting the evidence of a single witness, all that is required is
that his evidence should be clear and satisfactory in all
material
respects.”
In response, the defence
argued that the evidence was not satisfactory. The witness was
conflicted concerning fearing for his life
and being able to do
proper observation of the perpetrator at the time that the window was
being shot.
The witness’s
allegation of observing the accused 1 for four to five minutes
without flinching regardless of the bulletproof
window cannot be
sustained. Further, the witness made a statement to the police whilst
the incident was still fresh in his mind,
yet he failed to indicate
that he was able to identify the perpetrator who shot at his window.
The defence highlighted
the case of Sauls and Mtetwa concerning the need for caution and that
the Court must be alive to the fact
that there was no description by
the witness of the perpetrator save for the dock identification,
which occurred later at the time
the accused appeared in court.
When
considering the arguments raised by both the state and the defence,
the Court considered the evidence of this witness with
specific
reference to the case of
S
v Sauls and others
,
1981 (3) SA 172
(A) at 180 E to G, where it was said, and I quote:
“
There
is no rule of thumb test or formula to apply when it comes to the
consideration of the credibility of a single witness.
The trial judge will
weigh his evidence, will consider its merits and demerits, and having
done so, will decide whether there was
a shortcoming or defect or
contradiction in his testimony.
If he is satisfied that
the truth has been told, the cautionary rule referred to by de
Villiers, JP in 1932 in (R v. Mokwena), may
be a guide to a right
decision, but it does not mean “that the appeal must succeed,
if any criticism, however slender, of
the witness’s evidence
were well-founded.” It has been said more than once that the
exercise of caution must not be
allowed to displace the exercise of
common sense.”
And
with regard to identity, it was held that a
distinction should
be made between the reliability of a witness’s evidence and his
credibility.
As was noted in the case
of
Zitha
1993 (1) SACR 718
(A), this aspect was clearly
enunciated in
Khumalo
[1991] ZASCA 70
;
1991 (4) SA 310
(A) 328, where it said:
“
The
honesty and conviction of a witness must never influence the separate
investigation into the reliability of the identification
by the
witness. However honest and credible a witness may seem, his evidence
about the identity of an
accused
may be unreliable.
It is for that reason
that the cautionary rule applicable in evidence of identity exists.”
In
Mtetwa
1972 (3)
SA 766
(A) at 768, the Court highlighted the following, and I quote:
“
Because
of the fallibility of human observation, evidence of identification
is approached by the Court with some caution.
It is not enough for the
identifying witness to be honest.
The reliability of his
observation must also be tested independently, depending on various
factors such as lighting, visibility
and eyesight, the proximity of
the witness, his opportunity for observation, both as to time and
situation, the extent of his prior
knowledge of the accused, the
mobility of the scene, corroboration, suggestibility, the accused’s
face, voice, built, gait,
and dress, the results of an identification
parade, if any, and the evidence by or on behalf of the accused.
These factors, or such of
them as are applicable in a particular case, are not individually
decisive, but must be weighed one against
the other in the light of
the totality of the evidence and probabilities.”
The Court accepted that
this was a mobile, volatile scene, as clearly depicted in EXHIBIT F,
photos at ABSA Bank, Twin City.
It is disconcerting that
the witness was unable to ascertain what happened to his crew, nor
find a clear path out of the parking
area without colliding with
other parked motor vehicles. There was no video evidence from either
the camera inside the Fidelity
motor vehicle, nor from the Twin City
complex itself.
He did not see the Amarok
motor vehicle on the scene, and he was not clear concerning how the
observation of the accused through
the window was not detracted by
the gunshots being fired at the window itself. Mr Seketane was unable
to corroborate this evidence
in respect of identity of the accused 1,
as on his own evidence he did not see the perpetrators.
He indicated that there
was a crowd of people waiting in a queue to access the ATM machines,
who were made to move away, yet no
evidence was led from any of the
bystanders who possibly observed the incident without being directly
involved. He also indicated
that he was called to safety after the
incident by the staff of the shops, but again, no evidence was
forthcoming in this regard.
He did not see the Amarok
motor vehicle. Mr Makoti’s dock identification of the accused
is based on the facial features of
accused 1, specifically with
regard to a new scar which was not present at the time that the
offence was committed, according to
him. In motivation of this
allegation, Mr Makoti indicates he would not forget the face of the
perpetrator, yet he failed to mention
the fact that he saw the
perpetrator’s face when making his statement to the police. The
Court must also be cautious in respect
of dock identification, for
the mere fact that when the accused was seen following the incident,
he was shackled and under the
control of the police, which by normal
course creates an adverse inference that as the accused is in the
dock, he must have committed
the offence.
Mr Mbumbe, the SBV
driver’s evidence, starts at the time the shooting began at
Twin City. He saw the Fidelity motor vehicle
and was actively
involved in the shootout and attempt at apprehending the
perpetrators. He is also a single witness and the Court
appreciates
that his evidence was not challenged in respect of how the scene
unfolded.
He was responsible for
shooting and killing the deceased. He did not testify concerning the
Fidelity vehicle leaving the scene.
However, because of the shootout,
he was focused on the Amarok and the fleeing perpetrators. He
indicated that one of the two perpetrators
who ran towards the
mountain had on only one tekkie and the other 2 perpetrators had run
into the school.
And after the shooting
had stopped, someone carried out the bucket and its contents from the
school. He did not know the details
of the person responsible for
same. He impressed the Court as a witness, whose only role in the
date in question was to foil the
escape plan and stop the robbers. He
was unable to identify any of the perpetrators and did not assist the
police to identify the
person carrying the bucket out of the school.
Captain Kgare was
responsible for the bagging and tagging of the exhibits and lifting
of the fingerprints from the motor vehicle.
He was adamant that the
print was fresh, no longer than 24 hours, as it adhered easily to the
powder. His expertise was not disputed.
However, he confirmed that
the location of the print was in an obscure position that would not
easily be disintegrated.
It was not put to him
that accused 1 was specifically inside the motor vehicle on 23 April
2018 for him to comment on the degradation
of the print. The state
therefore argued that this adverse inference must be drawn against
accused 1. Now, the state relies on
the fingerprint evidence
connecting accused 1 and the Amarok motor vehicle as corroboration
for the single witness allegation of
the presence of accused 1 at the
scene.
The Court accepts that
the fingerprint evidence is not disputed. What, however, is disputed
is when the fingerprint was left in
this motor vehicle. The defence
alleged that they were out of South Africa at the time the offence
was committed and thus denied
the involvement of accused 1 in the
commission of the offence.
Concerning
the real evidence of the fingerprint, regard was had to the case of
Banana
2000(2) SACR 1 (ZSC) on page 8C,
where Gubbay CJ, delivering the judgement of the majority of that
court, as he was then, stated
the following, and I quote:
“
Where
the evidence of a single witness is corroborated by any way which
tends to indicate that the whole story was not concocted,
the caution
enjoined may be overcome and the acceptance facilitated.
But corroboration is not
essential.
Any other feature which
increases the confidence of the Court in the reliability of the
single witness may also overcome the caution.
It is proper for the
Court to convict an accused on circumstantial evidence, provided it
has the necessary probative value to warrant
a conviction.”
Regard was had to
Rex
v. Blom
1939 AD 188
at 202-3: where the Court said, and I quote:
“
The
inference sought to be drawn must be consistent with the then-proved
facts.
If it is not, the
inference cannot be drawn.
The proved facts should
be such that they exclude every reasonable inference from them, save
for the one sought to be drawn.
If they do not exclude
other reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct.”
The Court must have
regard to all the circumstantial evidence and everything else that
could possibly link the accused to this allegation
of robbery with
aggravated circumstances, murder, the unlicensed possession of
firearms and ammunitions.
And for the accused to be
convicted in these circumstances, there must be a nexus between the
accused, the offences charged, and
the deceased, and the fact that
the death can be inferred from the circumstances that leaves no
grounds for reasonable doubt.
The circumstantial
evidence can be found in the fingerprint evidence implicating accused
1, and the DNA evidence implicating accused
2 and 3. From the onset,
the Court accepts that the collecting, sealing, bagging and packaging
of the exhibits to the Forensic
Science Laboratory is not disputed,
nor is the dispute that the police officer that took the buccal
samples from accused 2 and
3 were authorised to do so, and the
results confirm the presence of accused 2 and 3 at the school on the
date in question.
It is prudent at this
stage to focus attention on the bucket that was carried from the
school to the entrance where it was left.
The state argued that since
this was done shortly after the two perpetrators had ran into the
school premises, that the Court must
accept that the contents of the
buckets were belonging to the perpetrators.
And due to the short
lapse in time, the Court must infer that the DNA found in those
exhibits as contained in the bucket are indicative
of the
perpetrators who committed the robbery, being namely accused 2 and 3.
The defence in response highlighted that there was
no evidence
tendered concerning where these items were recovered from, and it was
improper for these items to be simply included
as part of a crime
scene, without even verifying where and how these items landed in the
bucket.
And these exhibits were
fruit from a poisonous tree, and the state, without proving the
authenticity of these items, cannot rely
on them, and as such the
evidence should be excluded by Court. Now, it is quite disconcerting
that the police officers who tended
the scene, namely Nemakulu and
specifically Kgare, appeared so nonchalant about the appearance of
this bucket.
It was taken for granted,
because the items looked similar to other items on the scene, that it
must be the items of the perpetrators.
No evidence was led concerning
who retrieved these items, how these items were retrieved, and where
these items were retrieved
from. It was simply accepted –
because the items were there, it must be accepted as part of the
crime scene.
The bucket containing
items was simply photographed. No effort was made to even examine the
bucket for fingerprints or other fibres.
Whether this bucket belonged
to the school or not is also unknown to the Court. The state elected
not to place the Court in their
confidence concerning whether any
investigation was done inside the school to trace the bucket carrier
or any witnesses to the
escaping perpetrators.
The state relies on the
contents of this bucket to link accused 2 and 3 to this incident by
way of the presence of their DNA as
found in the blood contained in
the cloth and shirt located in the bucket. Therefore, it is relevant
to verify the chain in respect
of the handling of these exhibits and
to trace where they came from.
It is not sufficient
merely to argue that since they were brought shortly after the
perpetrators ran into the school, that they
were items that belonged
to the perpetrators. It is not the only inference that can be drawn
from the facts. A Court was also reluctant
to draw an adverse
inference against an accused person based on evidence that cannot be
verified in respect of how, where and by
whom this incriminating
evidence was located.
In this regard, the state
sought in argument that the Court should invoke the provisions of
Section 186
and call witness testimony concerning the layout of the
school and its access points.
Section 186
of the
Criminal Procedure
Act provides
as follows:
“
The
Court may at any stage in a criminal proceeding subpoena or cause to
be subpoenaed any person as a witness at such a proceeding
and the
Court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the
Court
essential to the just decision of the case.”
Now, this section gives
the Court a discretion to subpoena witnesses or cause witnesses to be
subpoenaed if the evidence of such
witness appears to the Court
essential to the just decision of the case.
The
section introduces an inquisitorial element and essentially caters
for two situations, namely the Court’s discretion to
call a
witness and then the Court’s duty to do so. And this is as per
Joubert, Criminal Procedure Handbook, 12
th
Edition, at 335. In the former
situation, the Court has a discretion which it is bound to exercise
judicially, bearing in mind that
an accused has a constitutional
right to have his trial conclude within a reasonable time, see
Basson
2007 (1) SACR 566
(CC).
In the latter situation,
the section places a duty on the Court to call a witness if it is
essential to the just decision of the
case, Helm
2015 (1) SACR 550
(WCC). Now, the state was of the view that this process would assist
the Court concerning the movement of the perpetrators once
in the
school. In my view, this section does not imply that the Court must
take over the prosecution of the matter to close gaps
in the evidence
of the state or poke holes in the defence’s evidence.
The
Court can only invoke the section if, upon assessment of all the
evidence placed before it, it considers that unless it hears
a
particular witness, it is bound to conclude that justice will not be
done in the end result. And the case of
Gabaatlholwe
and another
2003 (1) SACR 313
(SCA)
at 316, it was mentioned.
In other words, the Court
will call such witness if it appears to the Court that the evidence
of that witness is essential to the
just decision of the case. Now,
clearly, had the state been in the opinion that the layout of the
school and movement of the perpetrators
whilst inside the school
would assist in the trial, then this argument needs extending to the
person who handled the bucket being
traced.
This was not done by the
state, and the Court is of the view that
section 186
would be
unhelpful to empower or strengthen the investigating by the state in
respect of this particular aspect. Surely, if they
intended relying
on it, they should have investigated it.
Now,
Mr Roos’ testimony concerned the handling of the money that was
recovered at the scene
.
He confirmed the staff on duty,
verified exactly how much money was stolen and that the recovered
firearms were not returned to
Fertility Security. His evidence was
formalistic in nature concerning the amount of money that was not
recovered.
The
section 212
affidavits and the post-mortem report reflected the deceased’s
death as a result of a gunshot injury. From the accepted evidence,
the deceased was an occupant in the Amarok motor vehicle at the time
of the shootout with the SBV security. The state led no evidence
concerning any connection between the deceased and the accused in
respect of the involvement prior, during, or post the altercation.
In respect of the
ballistic report, the authorisation for taking of buccal samples and
the eventual DNA evidence, I am satisfied
that the expertise of these
witnesses were not disputed, and the contents and findings made in
accordance with justice and same
cannot be faulted.
This
is with specific reference to the firearms recovered on the scene as
well as the comparison of the DNA retrieved from the scene
and the
comparison with the accused buccal samples to connect accused 2 and 3
to the incident of the 25
th
of April 2018.
Now,
Portia Fumba was called as evidence in rebuttal to accused 1’s
alibi of being outside the Republic of South Africa at
the time the
incident occurred. An affidavit as contained in EXHIBIT O and
evidence was to the effect that
she was an expert in the
employ of the Department of Home Affairs and had access to the
movement control system for the monitoring
of persons entering and
leaving South Africa.
Now,
according to the system, the accused left South Africa on the 8
th
of March 2018. There is no record on
this movement control system of his return into South Africa. The
stamps recorded in his passport
for his entry into South Africa on
the 11
th
of March 2018, his exit stamp on the
23
rd
of April 2018 and return on the 5
th
of May was fraudulent amidst the fact
that the stamp numbers in accused 1’s passport were assigned to
immigration officers
and they were stationed at the Lebombo border
post.
There was a problem with
the font size and demarcation on the said stamps. She conceded that
the employees assigned to the specific
stamp number reported a
particular stamp as being defected some months after the said stamp
was endorsed in accused 1’s passport.
Unfortunately, she had no
expertise when it came to font size and description in respect of the
stamps.
She was adamant that the
movement control system must be relied upon as the only true
reflection of the entry and exit of the accused
in South Africa. The
state led no evidence pertaining to the officials that were assigned
these particular stamp numbers, concerning
their involvement in
stamping this particular passport.
Therefore, it is
uncertain whether or not the stamps were endorsed in the passport of
accused 1 by them during the course and scope
of their employment and
for the purpose of entry or exiting South Africa. Amidst the
speculation of the employee’s suspension,
the silence is
damaging to rebut the accused 1’s version.
It would be remiss for
the Court not to take cognisance of the fact that the movement
control system is not an independent information
source. It relies on
the border control officials entering information into the system and
capturing that information.
Therefore, inasmuch as it
is relied upon as a true reflection of an individual’s
movement, surely the person responsible for
capturing the information
would be the most reliable source of information concerning the
circumstances as to why or whether such
information was or was not
captured rather than Ms Fumba.
Now
the Court is attentive of the fact that in accepting the state’s
case, is not a sufficient reason to reject the evidence
presented by
the defence. It is necessary for the Court to believe the witnesses
for the state beyond a reasonable doubt and to
disbelieve the accused
before convicting him or her. In the case of
State
v. Stevens
2004
ZASCA 70
, it was held that:
“
A
Court should not follow what has been called a
‘
compartmentalised
approach
’
to
the assessment of evidence, namely an approach which divorces the
evidence before the Court into compartments by examining the
defence's case in isolation from the state's case.”
This view was confirmed
by the Supreme Court of Appeal in
Naude and another v. S
2010
ZASCA 138 where the Court said, and I quote:
“
The
totality of the evidence must be considered.
Therefore, the Court must
evaluate the evidence of the accused and any witnesses called on his
behalf.”
As long as the accused’s
version is reasonably possibly true, they must be given the benefit
of the doubt. The Court does
not have to believe his version and does
not have to find that it is the truth, as was highlighted by the case
of Shackle v.
S 2001
(4) ALL SA (SCA).
Now, the accused 1 denies
his involvement in the commission of any of the allegations made by
the state in the indictment. He raised
an alibi defence of not being
in South Africa at the time the Fidelity Security was robbed. He
testified that he was an occupant
of the Amarok motor vehicle whilst
it was under the control of Mr Mdluli.
He
requested to use the vehicle for the purpose of purchasing stock for
his business. He had travelled in this vehicle on three
occasions. In
one instance, he had to drive the vehicle to move it from blocking
another vehicle that was loading. He last occupied
the vehicle on the
morning of the 23
rd
of April 2018.
That
afternoon, he travelled to Mozambique and only returned on the 5
th
of May. He therefore motivated that
his fingerprint could legitimately be in the vehicle and that on
account of him not being in
South Africa, he could not have been
involved in the cash-in-transit heist. He explained in great detail
the process to enter and
leave South Africa and Mozambique.
He highlighted that his
photograph was taken at the border control in Mozambique. He had no
control of the passport once it was
handed over to the immigration
officials. He did not know how and what they did with it. He did not
purchase any immigration stamps
and was unable to explain why the
immigration officer failed to capture his details on the movement
control system.
Now,
the state argued that the two defective Mozambican stamps dated 15
February 2019 and 10 November 2016 reflected in his passport,
evidenced to the fact that his passport was unreliable to prove his
alibi concerning him being out of South Africa at the time
of the
incident. Now, the Court took cognisance of the fact that the
movement control system correctly reflected the accused’s
entry
and exit from South Africa on the date of the 15
th
of February 2018 and the 10
th
of November 2017.
were the correspondent
dates to the devious stamps as the dates as contained in the stamps
for Mozambique, which was relied on by
the state. It would be
difficult to expect an accused person to explain the state of mind of
an immigration official who was responsible
for stamping his
passport.
But
to take an educated guess, the initial date of 10 June 2016 could not
be the correct date as he only started travelling to Mozambique
in
the year 2017. The second date, the 15
th
of February 2019, clearly had to be
an error, as at that time the passport was already confiscated and
still in the year 2018. Moreover,
I took cognisance of the fact that
the accused 1’s movement into and out of South Africa was the
issue, not anywhere else.
It bears importance to
note that insofar as the accused 1’s version concerning the
legitimate placing of his fingerprint on
that vehicle, no evidence
was placed before the Court in rebuttal that the vehicle was under
the control of Mr Mdluli and that
the accused 1 was able to access
the vehicle through him.
Concerning the age of the
fingerprint, the state argued that there was something that should
have been put to the witness under
cross-examination. I am inclined
towards agreeing with the defence that there is no onus on an accused
to prove his defence, but
merely to raise a defence that is
reasonably possibly true.
Accused 1’s
evidence was tested under cross-examination, but he stood firm and
his version in respect of his alibi and lack
of involvement in the
commission of any of the offences alleged by the state and presented
a reasonable explanation for the presence
of his fingerprint as
located in the motor vehicle, which was not rebutted.
Identity is crucial for
the state’s case in respect of implicating the accused 1 as
being present on the scene. The state
argued that the witness’s
identification of accused 1 being present was corroborated by the
presence of his fingerprint in
the motor vehicle.
The state argued that the
discrepancy in the accused 1’s passport should be reason to
reject his alibi as false and find that
he was one of the
perpetrators actively involved in robbing the Fidelity Security on
the date in question. This approach cannot
be accepted by the Court.
All
the relevant case law dealing with this aspect clearly highlight that
evidence of identity, especially if it is in dispute,
must be proven
sufficiently. The Court considered the case of S v
Charzen
and another
2006
(2) SACR 143
(SCA) where the Court held, and I quote at 147(1) to
149A, paragraph 11-15 that:
“
The
Court had repeatedly emphasised in matters of identification, honesty
and sincerity were simply not enough.
There must be certainty
beyond reasonable doubt that the identification was reliable.
Now, in his police
statement, the complainant had described 1 of his attackers as a man
with dreadlocks, but neither at the identification
parade nor at
trial did the accused have dreadlocks.
What was significant
about this was not the absence of the dreadlocks, which was eminently
removable, but the complainant’s
response to this absence.
He referred to the
accused as having put on a hat of some kind, raising the possibility
that there may in fact have been no dreadlocks
at all.
Whilst it is true that
facial characteristics was more reliable source of identification
than variable features such as hairstyles,
the complainant had
mentioned the dreadlocks twice in his statement, and the very
precision of his recall in other respects made
the unaccounted-for
error in respect more obtrusive.”
Now, when considering, in
light of accused 1’s explanation for the presence of his
fingerprint in the motor vehicle and his
alibi defence, put into
question the reliability of the observation of this witness in
respect of the identity of the perpetrator,
it is uncertain why the
police did not hold an identity parade, especially when the police
were clearly aware of the alibi defence
raised by accused 1.
Surely
that would have strengthened the state’s case for this witness
to have identified the accused at an identity parade,
rather than the
dock identification, which was based on a scar which was previously
not on the face of the accused. Moreover, the
witness never
highlighted such facial descriptions at the time it was
most freshest in his mind.
Now,
accused 2 denied being involved in the incident. He placed himself in
Burgersfort on the 24
th
of April 2018, at Steelpoort to seek
employment as a driver. His version for his presence in Burgersfort
was left unchallenged.
The Court must therefore accept his version
that he slept over in Steelpoort and woke the following day to
hitchhike home.
He heard the gunshots,
people screaming and the chaos. He tried fleeing, tripping, fell,
injured himself and then continued to flee
the scene. He was unable
to explain how his blood ended up on the shirt as well as the tekkie.
He confirmed that his epithelial
cells were found on the white cap
which he was wearing and fell off while he was running away.
He
denied any involvement in the commission of the incident which took
place on the 25
th
of April 2018. Under
cross-examination, he stood by his version indicating on the photos
where he was, when he was hitchhiking,
and how he subsequently fell
and injured himself on his knee and lost his nail on his finger.
He denied being the owner
of the tekkie as well as the shirt or jacket or work top. He was
unable to explain how his blood ended
up on these two exhibits. He
denied entering into the school premises but was in front of the
school premises. It was argued by
the state that his version was
improbable especially for the location of the blood on the tekkie
which was found underneath the
Amarok motor vehicle and the shirt
which was found in the bucket.
Now, accused 3’s
version was also a denial in respect of the allegations concerning
the incident on the 25th of April 2018,
he confirmed that he cut his
finger and was using a piece of cloth to stop the bleeding and
protect the injury. This cloth was
misplaced when he heard the
gunshots and started to run away from the scene.
At the time, he was
running away from the side of the school premises by the fence. He
believed that it was where the piece of cloth
had fallen. His version
as to why he was in Burgersfort as a tow truck driver was left
unchallenged. It is unknown to the Court
whether the business was in
operation on the date in question and he stood firm with his denial
of any involvement in the armed
robbery and possession of any
firearms or ammunition.
The state led no evidence
verifying whether this route followed by accused 1 was possible and
if one would following this route,
start at the parked pick-up motor
vehicle and end up at or near the KFC in town. Now, the state relying
on the evidence in the
bucket as it is only real evidence implicating
the accused 3 in the commission of the offence and in respect of
accused 2, it is
the shirt in the bucket, the tekkie with his blood,
which was under the Amarok and the white cap containing accused 2’s
epithelials.
It is true that the state
relied on the accused acting in common purpose with each other and
the deceased in the commission of the
robbery, and thereafter the
subsequent death of the deceased. No evidence was led in respect of
the nexus between the three accused
and the deceased either by way of
cellular communication, banking details and/or the tracing of their
movement prior, during and
after the incident. This would also be
applicable to Mr Mdluli, who according to the accused 1 was in
possession of this vehicle
which was used in the cash-in-transit
heist.
From the photos of the
scene and the admitted evidence of approximately 60 exhibits being
handed in for examination, it was surprising
that there was no
evidence, save for the answered fingerprint of accused 1, placing any
of the accused inside the motor vehicle
nor the location of their
fingerprints on any of the firearms or ammunition.
Now,
regard was had to the case of
Ngcina
2007 (1) SACR 19
(SCA). Here the
appellant was convicted in a Regional Court of robbery with
aggravated circumstances and unlawful possession of
a firearm. He was
convicted and sentenced and he was on appeal unsuccessful to the
Provincial Division. He appealed further. The
sole issue on the
appeal was the adequacy of the evidence that identified the appellant
as the gun-wielding member of a group of
three robbers. The Supreme
Court of Appeal held that:
“
The
identification by the complainant had not been shown to be
sufficiently reliable.
At the identification
parade, the complainant had relied on the appellant’s height to
identify him, but his description on
how he is distinguished between
two tall persons on the parade was inconsistent and uncertain.
Identification with
reference to mark on a finger of the gunman, which the complainant
had mentioned in the evidence, was dangerous.
It had not been a
decisive fact in identification and no such mark at the time of the
trial.
This and the lack of any
other corroboration for the identification had left the trial court
with no means of testing the complainant’s
say-so.
Which itself depended on
the reliability of observation in the restricted and pressurised
circumstances of the robbery.”
Now, the Supreme Court of
Appeal there went further to say, and I quote:
“
While
the appellant’s alibi evidence was not satisfactory, it was not
to be treated as a separate issue to the identification.
An alibi defence was
essentially a denial of the prosecution’s case on the issue of
identification.
There is no doubt as to
the complainant’s honesty. However, he could not be regarded as
a reliable witness on the crucial
question of identification and the
possibility could not be excluded that the appellant had been
elsewhere at the time of the robbery.
Accordingly, his guilt
had not been proven beyond reasonable doubt.”
In paragraphs 18 and 19
at 25C to H:
“
It
is trite the onus of proving the guilt of the appellant rested
squarely upon the respondent, and it was necessary for the trial
court to reject the evidence of the appellant as not being reasonably
possibly true before it could convict him.
And faced with two
mutually destructive versions and bearing in mind the onus, the
Magistrate had no solid reason to prefer the
evidence of the
complainant to that of the appellant.”
This was in
Patterson
v. S
2006
JRL 16082 (SCA).
Now, as previously
highlighted, the duty of the Court is to assess all the evidence, not
consider evidence in isolation of each
other which would be
favourable to one or the other side. In as much as the Court
appreciates the route taken by the state in its
heads of arguments,
focussing on the relevant issues and connecting the evidence to the
accused, the Court is obliged to focus
its attention in holistically
evaluating all the evidence, which includes the version of the
accused in response to those allegations.
The Court is satisfied
that insofar as the bucket evidence is concerned, the state failed to
prove beyond reasonable doubt the whereabouts
of the person that
handled the bucket and the location where the items were recovered
from. Inasmuch as they implicate accused
2 and 3, due to the lack or
due to the source where and who collected these items not being
determined, the Court is not in a position
to reject the accused
version pertaining to same with specific reference to accused 3.
The reliance of the state
on the evidence is misplaced and cannot be relied on by the Court in
respect of connecting the two accused
to the incident via the bucket
evidence. Now, inasmuch as the state relies on the circumstantial
evidence with specific reference
to the tekkie is concerned, it is
unfortunate it was not the only shoe on the scene.
Mr Mbombi was unable to
give a description of the said tekkie and it cannot be the only
conclusion to be inferred by Court that
the perpetrator that was
running to the mountain with the one shoe on was in the company of
accused 2 and that the other shoe underneath
the Amarok containing
accused 2’s blood was present there because accused 2 was
involved in the commission of the robbery.
The state’s
evidence as highlighted in the state’s heads of arguments,
although individually was sound prior to cross-examination
and the
defence version being considered, once holistically viewed, proved to
be containing flaws which cannot simply be ignored.
The inference
sought to be drawn by the state is not the only inference and the
defence’s response thereto was not found
to be unreasonable in
light of all the evidence tendered.
Moreover, where a defence
of alibi has been raised and the evidence in support thereof is not
disproved as being possibly true,
it follows that the trial court
should find that there is a reasonable possibility that the
prosecution’s evidence is mistaken
or false. There cannot be a
reasonable possibility that the two versions are both correct.
This
is consistent with the approach to alibi evidence laid down by the
Court more than 50 years ago in
R
v Biya
1952 (4) SA
514
(A) at 521C to D, Greenberg JA, as he was then, said and I quote:
“
If
there is evidence of an accused person’s presence at a place
and at a time which makes it impossible for him to have committed
the
crime charged, then if on all the evidence there is, a reasonable
possibility that this alibi evidence is true, it means that
there is
the same time possibility that he has not committed the crime.”
Now the case law supports
the fact that the unchallenged alibi defence cannot be
mere moto
rejected by the Court. Accused 1 specifically with the alibi and the
three accused throughout the entire trial maintained that
witnesses
were mistaken about them being the perpetrators. Their versions were
not proven to be false and cannot be rejected in
light of the
evidence in totality.
The Court is faced here
with two mutually destructive versions and although the Court accepts
that the deceased lost his life on
this fateful date, the state’s
version failed to prove beyond reasonable doubt, the common purpose
element as alleged, the
three accused’s involvement in the
incident and disproved the alibi defence raised by accused 1.
Moreover,
the state failed to prove that the circumstantial evidence was not
rebutted by the evidence of accused 2 and 3. The state
still has to
discharge the onus it carries as Maya JA, as she was then, at
paragraph 13 of
Mohong
v. S
2009
(1) ALL
SA 237
(SCA) stated, and I quote:
“
But
whilst it is entirely permissible for a Court to test an accused’s
evidence against the probabilities, it is improper
to determine his
or her guilt on a balance of probabilities.
The standard of proof
remains proof beyond reasonable doubt, as evidence with such a high
degree of probability that the ordinary
reasonable man, after mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed
the crime.”
During the evaluation of
the evidence, the Court referred to the weaknesses existing in the
state’s evidence. In light of
the totality of the evidence,
doubt exists in the Court’s mind whether the guilt of the
accused has been proven beyond a
reasonable doubt.
Yes, the Court may
presume, speculate and assume, but these on their own cannot
materialise to prove beyond reasonable doubt. The
defence’s
response to the implicating evidence was reasonably possibly true and
the accused are entitled to the benefit of
the doubt and you may now
all stand. Therefore, in the result:
The accused, 1, 2 and 3
are hereby acquitted in respect of all the offences charged in the
indictment and they are excused.
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