SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED
17 April 2026
________________
______________________
DATE SIGNATURE
CASE NUMBER: SS29/2025
In the matter between:
THE STATE
and
MOYO CLIFFORD Accused 1
NCUBE NHLANHLA Accused 2
_________________________________________________________________
JUDGMENT
_________________________________________________________________
DOSIO J:
Introduction
[1] The accused are arraigned on numerous counts.
[2] The minimum prescribed sentence of fifteen years imprisonment which is in terms of
the Criminal Law Amendment Act 105 of 1997 (‘Act 105 of 1997’), in respect to counts
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1, 2, 3 and 7, Robbery with aggravating circumstances was explained to both accused.
The minimum prescribed sentence of life imprisonment, in terms of Act 105 of 1997, in
respect to the murder counts on counts 4, 5, 8, 9 and 13 were also explained. Both
accused understood the minimum prescribed sentences.
[3] No application was brought for the appointment of an assessor in respect to the murder
counts 4, 5, 8, 9 and 13.
[4] The State is represented by Advocate Adonis. Accused one is represented by Mr
Davids and accused two is represented by Mr Ngxumza.
[5] The charges are as follows:
Count 1
This is a charge of robbery with aggravated circumstances where the state alleges that
on 8 October 2023 at 1[...] D[...] Street, Troyville the accused assaulted Linda Zunguza
and Samuel Nduzukulu and robbed them of cash to the amount of R300.00 and a
Nokia 510 cell phone. Aggravating circumstances being that firearms were wielded by
the accused.
Count 2
This is a charge of robbery with aggravated circumstances where the state alleges, that
on the date and place mentioned in count 1, the accused assaulted Sophie Khosa and
robbed her of cash to the amount of R50.00 and a Techno cell phone, aggravating
circumstances being that firearms were wielded by the accused.
Count 3
This is a charge of robbery with aggravated circumstances where the state alleges that
on the date and place mentioned in count 1, the accused assaulted Esther Nzimande
and robbed her of cash to the amount of R12 000.00, aggravating circumstances being
that firearms were wielded by the accused.
Count 4
This is a charge of murder , in terms of s51(1) of Act 105 of 1997, where the state
alleges that on the date and place mentioned in count 1 the accused killed Esther
Nzimande.
Count 5
This is a charge of murder in terms of s51(1) of Act 105 of 1997, where the state
alleges that on the date and place mentioned in count 1, the accused killed Bekani
Nzimande.
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Count 6
This is a charge of assault with intent to do grievous bodily harm, where the state
alleges that on the date and place mentioned in count one, the accused assaulted
Fikile Mbhele by hitting her with a firearm.
Count 7
This is a charge of robbery with aggravated circumstances where the state alleges that
on the date and place mentioned on count 1, the accused assaulted Fikile Mbhele and
robbed her of a Huawei cell phone, aggravating circumstances being that firearms
were wielded by the accused.
Count 8
This is a charge of murder, in terms of s51(1) of Act 105 of 1997, where the state
alleges that on the date and place mentioned on count 1, the accused killed Proud
Mpofu.
Count 9
This is a charge of murder, in terms of s51(1) of Act 105 of 1997, where the state
alleges that on the date and place mentioned on count 1, the accused killed
Ntombizodwa Mumpande.
Count 10
This is a charge, only in respect to accused 1, of a contravention of s3 of the Firearms
Control Act 60 of 2000 (‘Act 60 of 2000’) , for unlawful possession of a 9mm calibre
firearm, make unknown to the state, on the date and place mentioned on count 1.
Count 11
This is a charge, only in respect to accused 2, of a contravention of s3 of Act 60 of
2000 (‘Act 60 of 2000’), for unlawful possession of a 9mm calibre firearm, make
unknown to the state, on the date and place mentioned on count 1.
Count 12
This is a charge of a contravention of s90 of Act 60 of 2000 for unlawful possession of
10 x 9mm calibre cartridges on the date and place mentioned in count 1.
Count 13
This is a charge of murder, in terms of s51(1) of Act 105 of 1997, where the state
alleges that on 6 October 2023 at Ascot Street , Bertram, the accused killed Mehluli
Sibanda.
Count 14
This is a charge, only in respect to accused 1, of a contravention of s3 of Act 60 of
2000 for unlawful possession of a 9mm calibre firearm , make and model unknown, on
the date and place mentioned in count 13.
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Count 15
This is a charge, only in respect of accused 2, of a contravention of s3 of Act 60 of
2000 for unlawful possession of a 9mm calibre firearm, make and model unknown, on
the date and place mentioned in count 13.
Count 16
This is a charge of a contravention of s90 of Act 60 of 2000 for unlawful possession of
ammunition, to wit 4 x 9mm calibre cartridges , on the date and place mentioned in
count 13.
Count 17
This is a charge, only in respect to accused 2, of a contravention of s49(1)(a) of the
Immigration Act 13 of 2002 (‘Act 13 of 2002’) , in that the state alleges that on 31
October 2023, accused 2 unlawfully and intentionally remained in the Republic of
South Africa without any valid permit to do so.
Count 18
This is a charge, only in respect to accused 1, of a contravention of s49(1)(a) of Act 13
of 2002, in that the state alleges that on 29 June 2024 accused 1 unlawfully and
intentionally remained in the Republic of South Africa without any valid permit to do so.
[6] Accused one pleaded not guilty in respect to counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13,
14, 16 and pleaded guilty in respect to count 18.
[7] Accused two pleaded not guilty to counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15 , 16 and
pleaded guilty to count 17.
[8] The legal representative for accused one made the following admissions on behalf of
accused one in terms of s220 of the Criminal Procedure Act 51 of 1977 (‘Act 51 of
1977’), in respect to count 18, namely that:
(a) accused one entered and remained in the Republic of South Africa in 2023 from
Zimbabwe through the Beitbridge border post, without being in possession of any
legal documentation in the form of asylum or a passport legalising his stay in South
Africa.
(b) He admitted that on 29 June 2024 he remained in the Republic of South Africa
without any valid permit to remain in the country and that he accordingly
contravened the provisions of s49(1)(a) of Act 13 of 2002.
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(c) He admitted the contents of the 212(1) affidavit complied by Mr Hetani Terrence
Khoza from the Department of Home Affairs detailing his legality status in South
Africa.
[9] The legal representative for accused two made the following admissions on behalf of
accused two, in terms of s220 of Act 51 of 1977, in respect to count 17, namely that:
(a) Accused 2 entered South Africa in 2021 from Zimbabwe, through the Beitbridge
border post, without being in possession of any legal document in the form of
asylum or a passport legalising his stay in South Africa and that he accordingly
contravened the provisions of s49(1)(a) of Act 13 of 2002.
(b) He admitted the 212(1) affidavit compiled by Mr Gumani Phaswana from the
Department of Home Affairs detailing the legality of his status in South Africa.
[10] The following further admissions in terms of s220 of Act 51 of 1977 were made on
behalf of both accused, namely:
In respect of Count 4
That the deceased in count 4 is the person named in the indictment, to wit Esther
Nzimande. That the deceased person Esther Nzimande died on 8 October 2023 as a
result of a gunshot wound to the chest which she sustained at or near Troyville,
Johannesburg. That the body of the deceased sustained no further injuries from the
time the wounds were inflicted on 8 October 2023 until a postmortem examination was
conducted thereupon. That Dr Joel Pule Motsoaleli conducted a postmortem
examination on the body of Esther Nzimande on 9 October 2023 and recorded his
findings on exhibit "B".
In respect of Count 5
That the deceased in count 5 is the person named in the indictment, to wit Bekani
Nzimande. That the deceased person Bekani Nzimande died on 8 October 2023 as a
result of multiple gunshot wounds which he sustained at or near Troyville,
Johannesburg. That the body of the deceased sustained no further injuries from the
time the wounds were infli cted on 8 October 2023 until a postmortem examination was
time the wounds were infli cted on 8 October 2023 until a postmortem examination was
conducted thereupon. That Dr Leonard Mantanga conducted a postmortem
examination on the body of Bekani Nzimande on 9 October 2023 and recorded his
findings on exhibit "C".
In respect of Count 8
That the deceased in count 8 is the person named in the indictment, to wit Proud
Mpofu. That the deceased on 8 October 2023 died as a result of multiple gunshot
wounds which he sustained at or near Troyville, Johannesburg. That the body of the
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deceased sustained no further injuries from the tim e the wounds were inflicted on 8
October 2023 until a postmortem examination was conducted thereupon. That Dr Joel
Pule Motsoaleli conducted a postmortem examination on the body of Proud Mpofu the
deceased person on 9 October 2023 and recorded his findings on exhibit "D".
In respect of Count 9
That the deceased in count 9 is the person named in the indictment, to wit
Ntombizodwa Mumpande. That the deceased person died on 8 October 2023 as a
result of multiple gunshot wounds which she sustained at or near Troyville,
Johannesburg. That the body of the deceased sustained no further injuries from the
time the wounds were inflicted on 8 October 2023 until a postmortem examination was
conducted thereupon. That Dr Leonard Mantanga conducted a postmortem
examination on the body of the deceased on 9 October 2023 and recorded his findings
on exhibit "E". That t he correctness of the facts and findings of the postmortem
examinations are as recorded on exhibit s "B, C, D and E”. That the contents of the
crime scene photographs, and key taken by Warrant officer M s Sekuba on 08 October
2023 are correct and accepted as exhibit "F”.
In respect of Count 13
That the deceased in count 13 is the person named in the indictment, to wit Mehluli
Sibanda. That the deceased person died on 6 October 2023 as a result of multiple
gunshot wounds which he sustained at or near Bertram, Johannesburg. That the body
of the deceased sustained no further injuries from the tim e the wounds were inflicted
on 6 October 2023 until a postmortem examination was conducted thereupon. That Dr
Zibonele Manukuza-Qwabe conducted a postmortem examination on the body of the
deceased person on 10 October 2023 and recorded her findings on exhibit "G". The
correctness of the facts and findings of the postmortem examination are as recorded in
exhibit “G”. That the contents of the crime scene photographs, and key taken by
exhibit “G”. That the contents of the crime scene photographs, and key taken by
Sergeant Lucky Natasha Nkuna on 6 October 2023 are correct and accepted as exhibit
"H”.
[11] No plea explanation was made in respect to the other counts pertaining to accused
one. Accused two’s legal representative stated that in respect to the other counts
pertaining to accused two, that there was a mistaken identity.
[12] The following exhibits were handed in:
Exhibit “A” are s220 admissions made by both accused in respect to the conveyance of
the bodies of the five deceased from the scene of the offence, mentioned in respect to
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counts 4, 5, 8, 9 and 13, as well as the contents of the post -mortem reports and that all
five deceased sustained no further injuries from the time the wounds were inflicted until
the post-mortem examinations were conducted.
Exhibit “B” is the post-mortem examination conducted by Doctor Motsoaleli Joel Pule in
respect to the deceased Esther Nzimande (count 4).
Exhibit “C” is the post-mortem examination conducted by Doctor Leonardo Mantanga in
respect to the deceased, Bekani Nzimande (count 5).
Exhibit “D” is the post-mortem examination conducted by Doctor Motsoaleli Joel Pule in
respect to the deceased, Proud Mpofu (count 8).
Exhibit “E” is the post-mortem examination conducted by Doctor Leonardo Mantanga in
respect to the deceased, Ntombizodwa Mumpande (count 9).
Exhibit “F” is a photo album and key compiled by warrant officer Magaboke Simon
Sekuba of the crime scene situated at 1[...] D[...] Street, Troyeville, Johannesburg.
Exhibit “G” is the post-mortem examination conducted by Doctor Zibonele Petronella
Manukuza-Qwabe in respect to the deceased, Mehluli Sibanda (count 13).
Exhibit “H” is a photo album and key compiled by sergeant Natasha Nkuna of the crime
scene situated at corner Smith and Klein Hillbrow Clinic.
Exhibit “I” is a statement made in terms of s212(1) of Act 51 of 1977 by Mr Hetani
Terrence Khoza.
Exhibit “K” is a statement made by the witness Fikile Mbhele.
Exhibit "L” is a statement made by Sophie Khosa.
Exhibit "M” is a statement made by Brisky Moyo.
Exhibit "N” is the identity parade form held on 1 December 2023.
Exhibit “O” is the photos of the identity parade held on 1 December 2023.
Exhibit " P” is the statement of warrant officer Mogomotsi Motshaba who was the
member in charge of the identity parade held on 1 December 2023.
Exhibit “Q” is an identification parade form held on 29 June 2024, compiled by sergeant
Mokatsa.
Exhibit “S” is an affidavit of Daniel Kutoane.
Mokatsa.
Exhibit “S” is an affidavit of Daniel Kutoane.
Exhibit "T” is a sketch compiled in respect to where an identification parade was held.
Exhibit "U” is an affidavit compiled by sergeant Magoai who assisted in an identification
parade on 1 December 2023 at Jeppe Police Station.
Exhibit “V” is the contents of an interview held with accused one.
Exhibit "W” is an affidavit of warrant officer Moabela who assisted in an identification
parade held on 1 December 2023.
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Exhibit “X” is an affidavit of an officer who is deceased, namely , warrant officer
Matshavane, who assisted in an identification parade on 1 December 2023.
Exhibit “Yi and Yii” are affidavits compiled by Detective sergeant Mbonambi who read
the rights to accused two on 28 June 2024.
Summary of substantial facts
[13] The State alleges that on 6 October 2023, at Ascot street, Betrams, the accused
approached the deceased on count 13 and killed him by shooting him. The State also
alleges that the accused entered a property at 1[...] D[...] Street, Troyville on 8 October
2023 and robbed the complainants on counts 1, robbed and killed the deceased on
count 3 and 4 and killed the deceased on count 5. The accused then robbed the
complainant on count 2 and assaulted and robbed the complainant on count 6 and 7.
The accused then killed the deceased`s on count 8.
[14] The State called the following witnesses in respect to counts 1 to 12 , namely, Fikile
Mbhele, Nompumelelo Mbhele, Sophie Khosa and Samuel Nduzukula.
[15] The State called the following witnesses in respect to counts 13 to 16, namely, Brisky
Moyo and Derrick Ncube.
[16] In respect of the arrest of accused one, the following witness was called, namely, Philip
Nkosi
[17] In respect to the identification parade held on 1 December 2023, the following
witnesses were called, namely, warrant officer Motshaba, sergeant Mngoai, sergeant
Mbonambi and warrant officer Moabela,
[18] In respect to the identification parade held on 29 June 2024, the following witnesses
were called, namely warrant officer Daniel Kutsane and sergeant Mokatsa,
[19] The state then closed its case. Accused one elected to remain silent and closed his
case. Accused two came to testify.
[20] This court will not summarise the evidence of the witnesses in the order they were
called, but rather chronologically when the alleged events occurred. Accordingly, this
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court will start with the first incident that happened, which occurred on 6 October 2023,
at Escort Street, Betrams. This relates to counts 13, 14, 15 and 16.
Incident that happened on 6 October 2023 Counts 13 to 16
Brisky Moyo
[21] This witness testified in respect of incident of 6 October 2023, at corner Lang and
Escort Street, in Betrams. The witness testified that he knows accused one and he
knows him because they live in the same area, namely Betrams . He has known
accused one for approximately 4 to 5 months, and he calls him Skhokho and he is light
in complexion. The witness further testified that he once drank alcohol with Skhokho,
that is why he know s him. As for accused two, the witness told the court, he knows
accused two thr ough accused one and he knew accused two for 2- 5 months. He
would see accused two, approximately two to three times a week. Upon being asked
whether he has ever socialised with accused two, the witness said “no”. However, this
witness testified that he once went to accused two`s place of residence, when accused
two was hosting a party. Upon being asked by the state, what he would refer to
accused two, the witness testified that, he called accused two “Mji”.
[22] When the incident happened, the witness was seated with Meh luli, the deceased on
count 13, at corner Lang and Escort Street in Betrams. The phone of Mehluli rang. The
time was some minutes after eig ht to nine p.m. Mehluli answered the call. This witness
then stood up and Mehluli said he would see him the next day. This witness went to the
spaza shop when he heard three gunshots. He then went in the direction that Mehluli
had walked.
[23] While the witness was on his way, he saw two people approaching on the other side of
the road, one had a firearm on his hand. While the two men were approaching him, the
other one had a firearm tucked in his right side of his waist. The witness further testified
other one had a firearm tucked in his right side of his waist. The witness further testified
that he was able to identify the two males, as they were walking on the opposite side of
the Liquor Store. Upon being asked by the State which of the accused had a firearm on
his waist, he testified that it is accused two, while accused one had a firearm i n his
hand.
[24] This witness was a ble to identify both accused one and two as there were seven to
eight solar lights shining from the liquor store as well as streetlights and he was able to
identify the said people as ‘Mji’ and “Skhokho”.
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[25] Upon being asked the distance, where he observed the two suspects, the witness
testified that it was a distance o f 15 to 17 metres. The witness testified that he later
found the deceased in count 13 lying on the pavement at Lang Street, which was 20
metres from where this witness had been standing. The witness upon being asked the
description for the clothing of accused one, he testified that accused one was wearing
a jacket with an orange reflector, while accused two was wearing a white T- shirt. The
lower part of accused one`s jacket was blue in colour . The witness further testified that
after he heard the gunshots people who were on that street ran to different directions.
He stated that one minute passed from him hearing the gunshots and then seeing both
accused. Both accused then got into a Datsun motor vehicle, silver in colour and drove
away. This witness then called the deceased`s girlfriend and they put the deceased in
a car and took him to hospital.
[26] This witness attended two identification parades. At the first identification parade on 1
December 2023, he pointed out accused two. At the second identification parade held
on 29 June 2024, he identified accused one.
[27] During the cross - examination, this witness said when accused one walked to the
Datsun motor vehicle, he was still holding the gun in his hand. He did not notice if
accused one s till had the gun in his hand when he entered the silver-coloured Datsun
motor vehicle.
[28] He stated that he made a statement a few weeks after the incident happened and
confirmed that when he made the statement he could remember some things, whilst
other things he may have forgotten. He remembered in detail who he saw with
firearms, the distance he was standing when he observed this and also that the
deceased had one bullet wound in the head.
[29] It is true that there is a contradiction between the statement this witness made and his
[29] It is true that there is a contradiction between the statement this witness made and his
oral evidence in court, in that in his statement he mentioned accused one held the
firearm in his hand and then put the firearm on his waist, whereas in his oral evidence
he stated it is accused two who had the firearm at his waist. This court does not regard
this as material. W hat is of importance is that this witness remembers that both
accused one and two had firearms in their possession.
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[30] This witness impressed this court. He did not attempt t o fabricate evidence of who
actually shot the deceased. He merely testified what he observed. He was honest to
say he had been drinking that evening, but even though he had drunk 3 quarts of beer,
he was adamant he was tipsy, but not drunk.
[31] He was adamant he knew accused one as he had drunk with him on three previous
occasions and only once with accused two. He stated that accused one, two, Mehluli
(the deceased) and himself were all Zimbabwean.
[32] He was adamant he knew accused two by the name “Mji” , as everyone referred to
accused two with this name. This witness stated that he only knew accused two by the
name “Mji” and not Mjikijelwa. He had no idea how the name Mjikijelwa appeared in his
statement. He did however mention that the police officer who wrote down his
statement never read it back to him. This police officer was never called to clear up
how the name “Mjikijelwa” appeared in the statement of this witness. As a result, the
credibility of this witness cannot be questioned as regards the name “M jikijelwa”
appearing in his statement, even though he did not mention this name. What is clear is
that “Mji” is definitely an abbreviation of the name “M ikijelwa” and this witness is
adamant he knew accused two by this name and that he met accused two through
accused one.
[33] This witness was adamant both accused one and two were at L ang Street on 6
October 2023.
Derrick Ncube
[34] This witness testified that on 6 October 2023, he was staying at No. 93 Derby Road,
Betrams. He was busy drinking alcohol, when he saw Mehluli (the deceased) and
Skhokho fighting with open hands. The time was nine p.m. This witness was seated at
Lang Street. The witness testified that he does not know how the fight started. W hile
they were fighting, Skhokho stood up before the deceased Mehluli, then a male person
appeared and shot the deceased. He did not see the third person`s face, all he heard is
appeared and shot the deceased. He did not see the third person`s face, all he heard is
gunshots but he did not see any firearm. This incident happened two met res from
where this witness was seated. He described the person who shot Mehluli as wearing a
white T- shirt, he further testified that he knows Skhokho as they used to play dice in
the same area and he pointed to accused one in court as being Skhokho. He stated
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there was light coming from a liquor store nearby. He confirmed he knew Skhokho four
to five months before this incident.
[35] Derrick Ncube impressed this court. He did not fabricate evidence by stating that he
saw a firearm in accused one’s possession. He also did not state accused two was at
the scene.
Corroboration by the witnesses
[36] Both Derrick Ncube and Brisky Moyo say there were lights from a liquor store lighting
up the area where this incident occurred.
[37] Both witnesses state there were two men who were with the deceased, namely Mehluli,
before he was killed. Both witnesses see Skhokho in the vicinity where the deceased
was killed.
[38] Brisky Moyo says accused one was wearing a jacket with an orange reflector and
Derrick Ncube also states accused one had a long sleeve jacket which parts of it were
orange in colour. The colour ‘orange’ features in the evidence of both witnesses. Brisky
Moyo says accused two was wearing a white T- shirt and Derick Ncube says the man
who shot the deceased was wearing a white T-shirt.
Contradictions
[39] Even though Derrick Moyo sees no firearm, the fact remains that he saw blood from
the deceased immediately after he heard the shots . The only reasonable inference this
court can draw is that the man wearing the white T-shirt, who Brisky Moyo identified as
being accused two, must have been the one who fired the shot.
[40] The fact that Brisky Moyo did not see the fight between the deceased and Skhokho is
not material as Brisky Moyo says the deceased had already moved away from him.
The
fact that he sees both accused one and two being close to the deceased and having
firearms allows this court to draw, as the only reasonable inference, that they were
there
to kill the deceased.
Incident that happened on 8 October 2023
13
Fikile Mbhele
[41] This witness stated that she is the complainant on counts 6 and 7. She stated that on 8
October 2023, in the early morning hours , she was at her house situated at 1[...] D[...]
Street where she has lived for 13 years. She lived there with her father Be kani
Nzimande (the deceased on count 5), her mother Esther Nzimande (the deceased on
count 4), her daughter called Nompumelelo Mbhele and Kagiso Mbhele who is the
owner of the house.
[42] There were tenants in the house, namely, Proud Mpofu (the deceased on count 8) ,
Precious and Sophie Khoza (the complainant on count 2) . Other tenants who lived in
the back rooms were Samuel, Morris, Alex and his wife Linda.
[43] This witness had been s itting with her mother, father and two children watching rugby.
She then went to her room. She heard her mom open her bedroom door and as ked,
“Samuel what is happening there” and he replied, “ nothing is happening”. This
witness’s bedroom door was closed. She did not see who her mother was talking to .
The people whom her mother was talking to then replied, “who are you to ask who we
are”. This witness then heard these men ask, “where is Proud ”. The mother of this
witness stated she did not know who this person was. Another voice then said, “ you
know him, don’t make stupid of us”. The mother then replied she would call the police.
A second voice then said he is not afraid of the police as he is not from here and his
fingerprints are not in the system. The same voice said, “ you think you are smart ”.
Fikile then heard her mother praying and then she heard the sound of a gunshot. Inside
her mother`s bedroom was her mother, father and her daughter, called Nompumelelo.
The men did not speak proper Zulu.
[44] Whilst Fikile was in her bedroom with her son, she opened her bedroom door and then
a male person approached her and pointed a firearm at her saying, “this thing is
working”. She saw two males. One of the males then hit Fikile with a firearm on her
working”. She saw two males. One of the males then hit Fikile with a firearm on her
forehead and instructed her to go back to her bedroom. She pointed out accused one
as being the person who hit her with the firearm. This witness then heard many more
gunshots. At some stage this witness heard a female voice say, “ Skhokho, I love you
and never stopped loving you”. She believes the female voice belonged to Precious.
[45] These men came a second time to her bedroom and kicked the door open. The light
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inside her bedroom was off, but the men switched on the light. She was then able to
identify accused two as well. She was then asked to hand over her cell phone. The
robbery lasted a very short time. The features of accused two were that he was dark in
complexion, short in height with a deep forehead which protruded out. His nose was
also a bit wide and his lips a bit thick.
[46] This witness then went into the passage, and she saw Proud`s body in the passage.
She then came across her father`s body that was also in the passage. She went into her
mother`s bedroom and found her mother`s body lying next to the door.
[47] The first identification parade was held on 1 December 2023 and the second
identification parade was held on 29 June 2024. During cross-examination, this witness
stated that during the second identification parade held on 29 June 2024, although
accused one was on the identification parade she did not point him out. Her daughter
namely, Nompumelelo, pointed out accused one in the presence of this witness. This
witness stated she did not point accused one at the identification parade as she was
nervous. Accused one was present at this second identification parade but there was a
difference in that at the first identification parade held on 1 December 2023, she did not
have to touch the person, whereas in this second identification parade there was no
one-way glass and she had to physically touch accused one. She stated she stared at
accused one during the identification parade but did not speak as she was too
traumatised. Her daughter even saw her starring at accused one. The police also did
not ask her why she was staring at accused one. Although she never pointed him out at
the identification parade, she was adamant accused one is the person who hit her with
the firearm on her head. She was afraid to point him as she believed he is dangerous
and the thought crossed her mind that he may be released. However, she stated she
and the thought crossed her mind that he may be released. However, she stated she
did not prevent her daughter from pointing out accused one. As a result, due to the
trauma she had experienced, she never pointed out anyone at the second identification
parade. She however stated in court that she remembered accused one from the
incident, even though she did not point him out at the second identification parade.
[48] She was adamant that accused one was wearing the reflector jacket and holding a
firearm and that he was the first of the two men who entered the room. She handed
over her Huawei cell phone as she did not have money. She was adamant she could
see both accused well during the ordeal. Furthermore, she stated that even though the
passage was dark, the light from her bedroom, as well as the reflector patches on
15
accused one`s jacket shed more light. She also saw accused one twice that evening
which increased her opportunity to observe him.
[49] She repeated during cross- examination by the legal representative of accused two that
the first time she saw accused two was when her bedroom door was kicked open. She
repeated that whilst accused two went to the wardrobe with her son to look for money,
accused one remained pointing a firearm at her. She disputed that the description that
she gave of accused two was because she had observed him in court. She conceded
that she never looked at accused two`s face inside the bedroom and that the only time
she saw his face was when accused two closed the door of her bedroom. She stated
she pointed out accused two at the first identification parade held on 1 December 2023.
[50] There are some issues that concern t his court about this witness and these issues are
the following:
(a) There are many aspects that she stated i n court which is not in her statement, for
example, the fact that the accused said they were police. However, t his court bears
in mind that she was on the stand for three days and it is not unreasonable for her
to add more to her evidence over and above her statement which was taken when
she was still in shock . As stated by this witness, she remembered more things, the
more questions were posed to her.
(b) There is a contradiction in that she says in her statement only one accused had a
hat whereas in her evidence in chief she says both had hats. The aspects of how
she could see a protruding forehead of accused two had a hat on is also of concern.
However, she did attend an identification parade two months later and she did point
out accused two.
(c) There are concerns with the manner in which sergeant Mbonambi conducted the
identification parade on 1 December 2023. During the cross - examination of Fikile
Mbhele, it was put to her that she took 12 minutes and 53 seconds to point out
Mbhele, it was put to her that she took 12 minutes and 53 seconds to point out
accused two. At the time she testified, the identification parade form Exhibit “N” was
not handed in. Had it been handed in it would have helped this court to understand
the situation much better , as the evidence of sergeant Mbonambi when he testified
was seriously questionable. According to the identification parade form, namely, the
SAPD 329, namely, exhibit “N”, the identification parade started at 12h00. The fact
that it is noted at paragraph 31 of exhibit “N” that Fikile Mbhele pointed out accused
two at 12h53 seems to this court more likely the time of day when she pointed out
accused two. The time of day when she pointed out the second man was 12h 55
16
and it couldn`t have been that she took another 12 minutes to point out the second
man. The court infers this from the entry made in respect to the pointing out by
Brisky Moyo of accused two which was at 12h 45. The difference between Fikile
Mbhele`s pointing out and that of Brisky Moyo is that with Brisky Moyo, in addition
to sergeant Mbonambi stating the actual time of day when Brisky Moyo pointed out
accused two, sergeant Mbonambi added that it took 30 seconds for Brisky Moyo to
point out accused two. Sergeant Mbonambi omitted to put in the t ime how long it
took Fikile Mbhele to point out accused two. Such failure on the part of sergeant
Mbonambi cannot be used to discredit Fikile Mbhele. The fact that Fikile Mbhele
pointed out an additional man at the identification parade on 1 December 2023 is
not material in that she stated two further men also approached the house in the
early morning hours of 8 October 2023. No one asked her if she was pointing out
one of these additional two men.
(d) If this court looks holistically at the evidence of Fikile Mbhele where she stated she
was not afraid to point out accused two at the first identification parade because
there was a one- way glass, giving her more a ssurance, then this court cannot
criticise her if she froze and could not point out accused one who was standing right
before her, especially if she was reliving the killing of her mother and father and all
the other people killed in that house on 8 October 2023.
[51] As a result, this court finds her evidence credible and her identification of both accused
one and two reliable.
Nompumelelo Mbhele
[52] This witness was 15 years old and testified with assistance of an inter mediary. She
was 13 years old on 8 October 2023 and was living at 1[...] D[...] Street. She testified
that after they finished watching rugby, she went to sleep with her grandm other, (the
deceased on count 4) and her grandfather , (the deceased on count 5). Her mother
deceased on count 4) and her grandfather , (the deceased on count 5). Her mother
namely, Fikile Mbhele, went to sleep in another room with her son. She was awoken by
her grandmother, who went to check what was going on inside the yard. Her
grandmother came back running to their bedroom and tried to clos e the door, when a
male person forcefully tried to open the door. The lights were on in the bedroom.
[53] She testified that the male person managed to overpower her grandmother and got
inside their bedroom . This male person was hiding his left arm behind his back. Her
grandfather, who was helpless and sick, was sleeping at the time. The child witness
17
testified that the male person said he is looking for a person, who does haircuts, then
this witness responded that he was looking for “Proud”.
[54] Her grandmother responded that this person was not there. This man then responded
by sa ying her grandmother was making a f ool of him. This man then produced a
firearm and said they must take out the person he is looking for. This man then cocked
the firearm and demanded phones and money. Her grandmother attempted to climb on
the bed and a plastic fell containing some rental income money. The friend of this male
then came in and said the person they were looking for was not there so they must go.
This second man referred to the first man by the name of “Skhokho”.
[55] The man with the name “ Skhokho” was pointed out in court by this witness , as being
accused one. She stated accused one is the man who pointed a firearm at her
grandmother. She saw her grandmother praying and that is when accused one shot
her once. After accused one shot her grandmother, he counted the rent al income
money that fell when her grandmother tried to climb on the bed. Accused one asked
the other man to help him count the money. The amount was about R1 200 0-00. After
they counted the money, the men went out looking for Proud and that is when she
heard more gunshots. This witness then heard Precious, who is the girlfriend of Proud
say to Skhokho, “ Skhokho, I love you and I will never stop loving you”. Skhokho
responded by saying, “ Ok, go back to bed and sleep”. She heard these men
demanding phones from other tenants like Sofie.
[56] This witness described accused one as being light in complexion and suffering from a
facial skin problem, in that he had a rough facial appearance with deep pimples on his
face. He was taller than the person who acc ompanied him. She stated accused one
was speaking isiZulu like a Zimbabwean national. The second man was a bit shorter
and more chubby, with a b ig forehead, big nose and dark i n complexion. She pointed
and more chubby, with a b ig forehead, big nose and dark i n complexion. She pointed
out accused two in court as being the man who accompanied accused one.
[57] She stated that after these two men had left, she went outside and that is when she
saw two more men. She thought it was the two men she had seen inside so she ran
away to her friend called Nosikeleko. This witness testified over a period of four days.
[58] At the identification parade held on 1 December 2023, this witness pointed out accused
two. At the identification parade held on 29 June 2024, this witness pointed out
18
accused one within four minutes. She stated she pointed out accused one at the
identification parade not merely because of his pimples but because he was the one
who committed the offence.
[59] Many questions were posed to this witness by accused one`s attorney regarding the
period of time she took to point out accused one at the identification parade held on 1
December 2024. Irrespective of the time spent for this witness to point out accused
one, the fact remains that she was certain i t was accused one. We are also dealing
with a child that was 13 years old at the time the offence happened. In addition, her
mother who was present in the identification parade with her, never pointed out
accused one. Therefore, the fact that this witness pointed out accused one is due to
her own recollection of the facial charac teristics of accused one. There is also no proof
that she was coached by her mother or any other police officer to falsely point out
accused one. She also explained fully why she had mistakingly pointed out accused
two as being Skhokho in court, due to the fact that when she was firstly asked to point
out the accused she had been in the closed circuit television room and the clarity in
court was no t that clear. However, when she entered the court and pointed him out
there was no window obscuring her vision.
[60] During the cross - examination by accused two’s attorney, this witness repeated her
evidence in chief. She repeated that the second man, namely accused two, referred to
accused one by the name of “Skhokho”. She was adamant accused one shot her
grandmother and that when he did, accused two was not in the room.
[61] She agreed she had less time to observe the shorter man, namely accused two,
however, she was adamant she was not mistaken as regards his identification.
Furthermore, she stated accused two did come back into the room when he asked her
if she had a phone in her possession.
if she had a phone in her possession.
[62] She conceded she was not sure if the tall man, namely accused one had a hat on that
evening, however, she was sure accused two had a hat on. This witness impressed
this court.
Sophie Khoza
[63] This witness testified she was at the scene when this incident occurred. She was
asleep when she heard male voices talking to her mother Esther, (the deceased on
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count four). This witness told the court she heard gunshots and shortly thereafter her
door was kicked and a male person entered her room.
[64] The male person was close to her bed. He demanded money and a cell phone and told
her that the thing he was holding “can kill”. This witness got up from her bed, got her
wallet, took out money and gave it to the male person. The amount was R50- 00. The
male person then demanded a smart cell phone and after searching he found the
smart cell phone. This witness further testified that, after he found the cell phone the
male person left the bedroom.
[65] In court, this witness pointed out accused two as the person who entered her bedroom
on the day of the incident and further gave a description that he was not tall, he was
dark in complexion and had a big nose. Upon being asked by the state how long did
she spend with accused two inside the bedroom, the witness testified that it was one to
two minutes. The witness was cross - examined on her statement she made to the
police, namely exhibit “L”, where in paragraph 3, the only description she gave
pertaining to accused two, is that he was short and not skinny . F urthermore, in
paragraph 6, all she said in this paragraph is that she will be able to identify the
suspect. She explained that she did not give a detailed explanation of accused two in
her statement as she was not asked to do so. This witness further conceded under
cross- examination that she has eyesight problem s and uses spectacles, h owever,
without glasses she is able to see for a while.
[66] This witness attended an identification parade on 1 December 2023 and within 20 to 25
seconds she identified accused two. The defence att orney for accused two stated she
took 20 minutes and 25 seconds to point out accused two, however, the SAP 329
definitely says 20 to 25 seconds.
[67] Although this witness agreed that there was nothing specific about accused two being
[67] Although this witness agreed that there was nothing specific about accused two being
short, dark in complexion with a big nose, she was however still positive it was accused
two she had seen. This witness impress ed this court. This witness was honest in that
she never tried to implicate accused one falsely, even though she was aware two men
had entered the house.
Samuel Nduzukula
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[68] This witness testified in respect of the robbery incident at house No. 1[...] D[...] Street in
Troyville. He was inside the outside shack with his wife Olin da when the incident
happened. The incident happened in the early hours of 8 October 2023. People came
to his shack and kicked the door of his shack open. He was asleep when two male
persons kicked the door. The tall man said they got into a wrong place, however, t he
two men still entered his shack. The tall man demanded money and both of them had
firearms in their hands.
[69] The two male persons took money in the amount of R300- 00, which was under the
amplifier. T hey also took the cell phone from his wife , namely, a Nokia C10. This
witness testified that he was pointed with a firearm by the tall man, while the other male
had his firearm tucked in his waist. At the time when the robbery was taking place, the
lights were on, because the baby cries if they switch off the lights. This witness could
not tell the court how long the incident took and he has never seen the se suspects
before. He did not know how many shots were fired, but he heard the people in the
main house had been shot. This witness attended two identification parade s. The first
one was on 1 December 2023 where he did not point out anyone. At the second
identification parade on 29 June 2024, within three minutes he pointed out accused
one whom he described as tall, light in complexion, with pimples on his face. He also
pointed out accused one in court.
[70] This witness stated the light was on in his room when he saw accused one. This
witness impressed this court and his evidence is trustworthy. So too is his evidence
trustworthy regarding his identification of accused one. He never falsely implicated
accused two and stated he only saw the second man had a firearm on his waist . He
could not say anything else about the second man.
Corroboration of witnesses in respect to the event on 8 October 2023
Corroboration of witnesses in respect to the event on 8 October 2023
[71] Both Fikile Mbhele and Nompumelelo Mbhele corroborat e each other in res pect to the
facial appearance of accused one and that he wore a reflector jacket with an orange
colour in the jacket. Both Fikile Mbhele and Nompumelelo Mbhele state they never saw
accused one`s photo trending on social media. Both witnesses confirm that at the first
identification parade there was a glass separating them from the line- up, whereas at
the second identification parade there was no one-way mirror.
21
[72] Sophie Khoza remembers accused two was wearing a white hat which corroborates
the evidence of Nompumelelo Mbhele.
[73] Sophie Khoza, Fikile Mbhele and Nompumelelo Mbhele all state the accused appeared
to be Zimbabwean. Sophie Khoza even heard the man, whom she did not see, but only
heard, asking a phone pin saying, “if you don`t give me the pin, you don`t know me
well. I will shoot you; I am from Zimbabwe. ” It is actually common cause as per their
plea of guilty that both admit they are from Zimbabwe.
[74] Both Nompumelelo Mbhele and Sophie Khoza stated accused two had a big nose.
[75] Nompumelelo Mbhele and Sophie Khoza corroborate Fikile Mbhele that there were
other men seen in the yard over and above the two men who entered the house.
[76] Fikile Mbhele, Nompumelelo Mbhele and Samuel Nduzukula all state that accused
one, at the time they saw him on 8 October, had facial skin with pimples.
[77] Nompumelelo Mbhele and Samuel Nduzukula pointed out accused one at the
identification parade held on 29 June 2024. Samuel Nduzukula stated he and the other
witnesses who attended the identification parade on 29 June 2024 did not travel
together to the identification parade. As a result, there is no evidence placed before this
court that the witnesses , Nompumelelo Mbhele and Samuel Nduzukula, colluded t o
falsely implicate accused one at the identification parade. In fact, Samuel Ndu zukula
stated he never discussed the facial features of accused one with either Fikile or
Nompumelelo Mbhele.
Contradictions
[78] There is a difference between the evidence of Fikile and Nompumelelo Mbhele in
comparison to Samuel Nduzukula, in that the former two state accused one was
wearing a reflector jacket, whilst Samuel states he saw accused one wearing a black
jersey. The court does not regard this as a material contradiction as all three
remember the facial features of accused one, with specific reference to the rough,
pimple marked skin on his face.
Philip Nkosi
22
[79] This witness testified that he is a warrant officer with 19 years’ experience in the SAP.
He arrested accused one and explained to him his constitutional rights. During cross-
examination, this witness disputed that the photo he had on his phone of accused one
was from Facebook, as he himself stated he does not have Facebook.
Sergeant Mbonambi
[80] He testified he is the investigating officer of CAS numbers 353/10/2023 and 127/10/
2023. He has 21 years’ experience as a detective. He stated that both identification
parades occurred at Jeppe police station. On 1 December 2023 the parade was
conducted by warrant officer Motshaba. He did not get involved in the parade. The late
warrant officer Matshabane, who is deceased assisted warrant officer Motshaba. He
stated that he received information from an informer that the same people involved in
the four murders, (counts 4,5,8 and 9) were probably the same people who committed
the murder in Betrams (count13). This is what led him to investigate the two dockets
together. The investigation led him to accused two who was arrested on 31 November
2023 at Fleurhof, Florida. Three firearms were found. The three firearms are not part of
this case. On 22 June 2024, accused one was arrested at Diepkloof, Soweto. His
arrest was by the national intervention unit. The first identification parade on 1
December 2023 was held as accused one was not arrested yet. When accused one
was later arrested, a second identification parade was arranged on 29 June 2024
Identification parade held on 1 December 2023
Warrant officer Mogomotsi Motshaba
[81] He is a warrant officer with 33 years` experience working for a Provincial Investigative
Unit, specialising in mass murder crimes. On 1 December 2023, he received a call from
the investigating officer sergeant Mbonambi to hold an identification parade. This
witness confirmed that he did not take part in the investigation of this matter . He stated
witness confirmed that he did not take part in the investigation of this matter . He stated
he has experience of 30 to 40 identification parades in his career. He stated that the
identification parade on 1 December 2023 was held at Jeppe Police Station. It was not
a direct parade as it had a one- way glass being utilized. There were two suspects on
the parade, Thobani Ngobese and Nhlanhla Ncube. The photographer was Mashao of
Johannesburg Central Police Station. This witness testified that he put the numbers on
the floor for the people on the parade to pick them. The first witness was Brisky Moyo ,
who pointed out Nhlanhla Ncube (accused two). There was no change of number s or
clothing of the suspects. Brisky Moyo was followed by Sophie Khoza, who also pointed
out Nhlanhla Ncube. There was once again no change of number s amongst the
23
accused or the changing of clothing. The third witness Fikile Mbhele came and pointed
out Thobani Ngobose and Nhlanhla Ncube. The final witness , Nompumelelo Mbhele,
pointed out Nhlanhla Ncube.
[82] This witness did not impress this court. He conceded that he omitted to write down how
long certain witnesses took to identify the accused. Although this witness stated he
knows the rules to follow when an identification parade is held, this court found his
manner of conducting the identification parade very strange indeed. He also did not fill
in who the member was who guarded the witnesses prior to the identification parade or
the name of the officer who escorted the witnesses to the identification parade or the
officer who escorted the witness after the identification parade. He stated it is not his
duty to fill this in, it is the duty of the investigating officer. This was just utter nonsense,
as it is clear the parade master must fill in all this information.
Sergeant Malesela Mngoai
[83] This witness stated that he has18 years’ experience in the SAP and he was involved in
an identification parade on 1 December 2023. His role was to take the witnesses from
the identification parade and to hand them back to warrant officer Moabelo. He was
adamant that he never influenced any of the witnesses. This witness was clearly
confused as his affidavit, namely, exhibit “U” that he completed, states that he handed
over the witnesses to warrant officer Motshaba. It is clear he played a role on 1
December 2023 and that he is adamant that he did not influence any witnesses. This is
probably the only value to be placed in respect to his testimony.
Warrant officer Solly Moabelo
[84] This witness stated that he was employed at the murder and robbery unit in Wynberg
and had 22 years’ experience. He was retired when he testified. He stated on 1
December 2023 his role was to take the witnesses f rom the late warrant officer
December 2023 his role was to take the witnesses f rom the late warrant officer
Matshavane and to take them to sergeant Pule (namely sergeant Mngoai). After the
witnesses were finished, sergeant Pule handed the witnesses back to him and he took
the witnesses to the charge office. He was not involved in the investigation, and he did
not know who the suspects were. None of the witnesses discussed the line-up.
Statement of warrant officer Matsomane
[85] The statement of warrant officer Matsomane was handed in in terms of s3(1)(c) of the
Law of Evidence Amendment Act 45 of 1988.
24
Identification parade held on 29 June 2024
Warrant officer Daniel Kutoane
[86] He testified he was the parade master at an identification parade held on 29 June
2024. He received a call from the investigation officer namely sergeant Mbonambi to
hold this parade at the Jeppe police station. He was told that the only suspect in this
parade would be accused one, namely Clifford Moyo. Sergeant Mokatsa was
responsible for taking the photos. Warrant officer Kutoane filled in the names of all the
role players on the SAPD 329 form. Four witnesses attended the identification parade
and three of them, namely, Nompumelelo Mbhele, Brisky Moyo and Samuel Ndzukula
pointed out accused one. He stated this was a direct parade where the witnesses had
to enter the same room where the suspect stood.
[87] This witness stated that he gave accused one the choice to find people that look like
him to stand with him on the parade. The officer who guarded the witnesses prior to the
parade was sergeant Mtileni. The officer who took the witnesses to the parade was
sergeant Hlatswayo and the officer who took the witnesses from the parade was
sergeant Tshebesebe.
[88] He stated he was surprised when Fikile Mbhele and Nompumelelo Mbhele entered the
room, however he was told Fikile was the guardian of the juvenile, namely,
Nompumelelo. Fikile although looking relaxed also looked nervous. He however, did
not write down that she looked nervous. She never pointed anyone out. This witness
states that Nompumelelo had her back to the line up all the ti me until she was told to
turn around and point out the perpetrator. She took four minutes to point out accused
one. He did not see any conversation between Fikile and Nompumelelo before
Nompumelelo pointed out accused one. Samuel Ndzukula took less than three minutes
to point out accused one. Brisky Moyo came in and took less than two minutes to point
out accused one. Accused one stated to this witness that he knew Brisky Moyo as they
live in the same street.
live in the same street.
[89] During the cross-examination by accused one’s attorney, this witness disputed that
Fikile stared for five minutes looking at accused one. He stated Fikile just looked from
left to right and did not point anyone. This witness also denied the version put to hi m
that Nompumelelo had been looking at accused one for nine minutes before she
25
pointed him out. This witness maintained his version as per his evidence in chief that
Nompumelelo had her back to the line-up until he asked her to turn around.
[90] This witness was adamant that the people chosen by accused one to stand on the
parade looked similar to accused one. He stated had he seen the big scars on the skin
of accused one he would not have allowed the parade to proceed.
Sergeant Owen Mokatsa
[91] This witness stated that he had 16 years’ experience. He stated that he was asked to
photograph the identification parade on 29 June 2024. He stated that according to him
all the people on that parade were all of the same complexion, however, he conceded
he was not an expert on complexions.
[92] This ended the State’s case.
[93] Accused one closed his case.
Accused two
[94] Accused two testified that in October 2023 he was staying at Wolmarans and Claim
street, Hillbrow, at the Radebe Church building. He was staying there for 8 months. He
was working part -time for seven years in construction. He was staying at this address
with his wife, Ntombizodwa. He stated he does not know know accused one and only
met him in court. He became aware of the cases when sergeant Mbonambi arrested
him in November and he was taken to an identification parade.
[95] The accused testified that he was pointed out at the identification parade which lasted
not more than five minutes. They then took photos of him and that ended the
identification parade. He was then charged by sergeant Mbonambi in respect to two
cases. He stated that he has no knowledge of these crimes. He stated he does not
have a firearm and the people who identified him are mistaken. He stated his name is
not “Mji” or “Mjikijelwa”, but Nhlanhla Ncube. People call him Nhlaks or Ncube. He
stated his wife has relocated to Zimbabwe and is at Tshololo. He has no contact with
her.
Evaluation
Probabilities emerging from the case as a whole
26
Counts 13, 14, 15 and 16
[96] Accused one has remained silent in this regard and accused two stated he knew
nothing of the incident of 6 October 2023.
[97] The witness Brisky Moyo says he saw accused one and two together when the
deceased on count 13 was shot. Accused two stated he only got to know accused one
when he started attending court. Bricky Moyo also knows accused two by the name of
“Mji” which accused two denies as being his nickname. Yet, the investigating officer
obtained the name of “Mjikijele” from accused two. Accused two denies this. This court
rejects accused two’s version in this regard as false. Brisky Moyo did not know the full
name of accused two, therefore, the investigating officer must have obtained this name
from accused two himself at the time of his arrest. The exhibits “Yi” and “Yii” both show
the middle name “Mjikijele”. At no stage did accused two ask sergeant Mbonambi to
take out this name when he signed “Yi” and “ Yii”. This court finds it improbable that
accused two did not see the name “Mjikijele”, which is written in big letters at the top of
exhibits “Yi” and “Yii”. Accused two also never told his attorney that his name was not
“Mjikijele” as a result, when sergeant Mbonambi testified it was never disputed that he
had correctly recorded accused two`s name as “Mjikijele”. As a result , the rejection of
the name “Mjikijele” is all a recent fabrication on the part of accused two. When asked
by the state advocate why he never corrected the name “Mjikijele” accused two stated,
“I heard them mentioning that name but never bothered myself to have it corrected?”.
This court finds he never corrected it as it is more probable that “Mjikijele” is his real
name. Brisky Moyo and the investigating officer are not friends and the fact that the
abbreviated name “Mji” is the three first letters of the name “Mjikijele”, suggests that
Brisky Moyo was telling the truth. No version was ever put to Brisky Moyo that he had a
Brisky Moyo was telling the truth. No version was ever put to Brisky Moyo that he had a
reason to falsely implicate accused two being present on 6 October 2023 when the
deceased on count 13 was shot. As a result, this court accepts Brisky Moyo had no
reason to falsely implicate accused two. During the evidence of accused two, he
merely stated Brisky Moyo made a mistake by pointing him out. The court rejects the
version of accused two that Brisky Moyo made a mistake, as there were many people
seated at the scene where the deceased on count 13 was shot. Brisky Moyo could
have falsely implicated any of these men who were seated. Instead, he saw accused
one and two getting into a motor vehicle after the deceased on count 13 was shot.
Accused one`s legal representative also put it to Philip Nkosi during cross- examination
27
that accused one only knew accused two by the name “Mji”. This supports the
evidence of Brisky Moyo that accused two`s name is “Mji”.
[98] Accused two states that on 6 October 2023, he cannot remember his exact location as
he was not writing it down, but at 8 p.m., he states he was at home with his wife or
girlfriend, called, Ntombizodwa. This version remained uncorroborated as
Ntombizodwa returned to Zimbabwe after she heard accused two had been charged
with five counts of murder. Accused two stated it never crossed his mind to ask
Ntombizodwa to make an affidavit stating that he was at home on 6 October 2023 with
her. The court rejects this as false. It is clear it never crossed his mind as Ntombizodwa
could not vouch for his movements on 6 October 2023. A ny innocent m an would do
everything possible to ex culpate himself. Accused two also never asked the police to
bring Ntombizodwa to the police station at the time of his arrest so that she could
exculpate him. This failure to call Ntombizodwa is further exaggerated by accused two
stating that he could not call her as she had been evicted. The court rejects all these
reasons of failing to obtain an affidavit to support his innocence as mere fabrication s
and not reasonably possibly true.
[99] Accused two states he does not know the suburbs around Hillbrow , namely, Betrams
and Troyville, therefore even if he was in these locations he himself would not know. As
a result, i f Brisky Moyo saw accused two at Betrams, accused two would not even be
able to dispute that.
[100] Brisky Moyo is Zimbabwean and so is accused two. The fact that Brisky Moyo
identified accused two as being present when the deceased on count 13 was shot is
extremely probable and accused two`s version that he was not present at Betrams is
rejected as false.
Identity of the perpetrators on 6 October 2023
[101] When determining identification, a court must consider the factors as set out in the
[101] When determining identification, a court must consider the factors as set out in the
matter of S v Mthethwa (3) SA 766 (A) at 768 A to D, which include amongst others,
lighting, visibility, eyesight, proximity of the witnesses, opportunity to observe time and
situation, the mobility of the scene, corroboration, the accused’s face, voice, build,
clothing and gait.
28
[102] At the identification parade held on 1 December 2023, Brisky Moyo took 30 seconds to
point out accused two. At the identification parade held on 26 June 2024, he took two
minutes to positively identify accused one.
[103] The defence attorney for accused two raised the issue that warrant officer Mots haba
had left sections of the SAP 329, namely, exhibit “N” incomplete, in particular
paragraphs 14 to 16 of the document. These paragraphs included the names of the
SAPS members who guarded the witnesses prior to the parade, who escorted them to
and from the parade and guarded them after the parade.
[104] This omission in the SAP 329 form by warrant officer Motshaba does not render the
evidence of the identification parade invalid . In S v Chabalala 2003 (1) SACR 134
(SCA, the Supreme Court of Appeal held that discrepancies in notes made by the
parade officer were on the facts not considered fatal.
[105] It was held in the unreported case of Khunjwa v S (A505/2013) [2014] ZAGPJHC 116
(19 May 2014) that:
“While it is desirable that all the portions of the SAP 329 are completed and if not, that reasons
therefore ought to be furnished, the mere failure to adhere to these cannot result in the nullity
of the identification parade as a whole”. (Ibid para 9)
[106] There are of course dangers of not complying with all the rules of an identification
parade and the court highlighted this in R v Kola 1949 (1) PH 100 (A) , where the
Appellate Division, as it then was, concluded that:
“But an identification parade though it ought to be a most important aid to the administration of
justice may become a grave source of danger if it creates an impression which is false as to
the capacity of the witness to identify the accused without the aid of his compromising in the
dock. Unsatisfactory as it may be to rely upon the evidence of identification given by a witness
not well acquainted with the accused, if that witness has not been tested by means of a
not well acquainted with the accused, if that witness has not been tested by means of a
parade, it is worse to rely upon a witness whos e evidence carries with it the hall - mark of such
a test if in fact the hall - mark is spurious. Of course, an identification parade is not necessarily
useless because it is imperfect. In some respects, the quality of the parade must necessarily
be a question of degree.” [my emphasis]
[107] To correct the omission of points 14- 16 of the S AP 329 form, the state submitted the
statement of the late Warrant Officer Matshavani, which was handed in as exhibit “X” ,
as he had guarded the witness before the parade, as well as the viva voce evidence of
29
Warrant Officer Moabela who escort ed the witness es to the parade and then out.
Finally, the evidence of Sergeant Mogoai was led as the person who received the
witnesses from the aforementioned and handed them to Motshaba. There may be
some confusion who did what, but what is factual, is that these officers did assist the
witnesses on that day and they corroborated each other that the witnesses did not see
the suspect prior to the parade and neither did they speak to each other before they
pointed out the suspect. This evidence demonstrated to this court that the identification
parade conducted on 1 December 2023 was procedurally correct and can be admitted
as evidence against accused two.
[108] In the matter of S v Chabalala 2003 (1) SACR 134 (SCA) , there were various
shortcomings in the evidence relating to the parade, namely, that the witness travelled
with the parade officer, the investigating officer and witnesses to the parade. In
addition, there were discrepancies in completing the form and failure to call witnesses
to testify to the regularity of the parade. Despite these shortcomings the court held that:
“All in all, although the evidence about the parade was less than the court was entitled to
expect from the prosecution, its fairness judged according to the objective facts was not
seriously challenged and the shortcomings were not as to place the value of the identification in
doubt”. (Ibid para 14)
[109] In addition to the identification parade, Brisky Moyo pointed out accused two and one in
court. There were also no concerns expressed regarding the formalities of the
identification parade held on 29 June 2024 by accused one when Brisky Moyo pointed
out accused one.
Common purpose in respect to accused one on counts 13, 14 and 16
[110] Accused one during cross- examination disputed there was no common purpose to kill
the deceased on count 13. From the warning stat ement of accused one, namely,
the deceased on count 13. From the warning stat ement of accused one, namely,
exhibit “V” it does not appear that he disputes he was in scuttle with the deceased on
count 13. He therefore places himself on the scene. This lends credibility to the
evidence of both Brisky Moyo and Derrick Ncube, who say they saw accused one at
the scene on 6 October 2023.
[111] The evidence of Derrick Nc ube is that accused one and the deceased appeared to be
fighting with their bare hands and that when accused one stood up and while the
30
deceased was still on the ground, the other man shot and killed him. Derrick Ncube
testified that although the murder took place two meters from where he was seated, he
did not see a firearm, but he heard gunshots and saw the blood a few seconds af ter he
heard the shots. A ccused one and the other man then left the scene together . The
evidence of Brisky Moyo however is that he saw accused one and two come from the
scene of the shooting and they both had firearms in their possessions.
[112] The only inference the court can draw here is that the deceased was shot by accused
two that day and that this shooting caused the death of the deceased.
[113] The State has argued that both accused committed the offences in the execution of a
common purpose.
[114] The issue this court must decide is whether the actions of accused two can be imputed
to accused one on the doctrine of common purpose in respect to the murder of the
deceased on count 13.
[115] The state is required to prove, in the absence of a prior agreement that accused one
had an active association with the events which are c asually connected to the death of
the deceased.
[116] The definition of “active association” is inferred by the four requirements for liabili ty
under the doctrine of common purpose as formulated in the matter of Mged ezi and
Others (415/1987) [1998] at 705 para I to 706 para C, (“Mgedezi”) as follows:
“…on the basis of the decision in S v Sefatsa and Others , only if certain prerequisites are
satisfied. In the first place, he must have been present at the scene where the violence was
being committed. Secondly, he must have been aware of the assault o n the inmates of room
12. Thirdly, he must have intended to make common cause with those who were perpetrating
the assault. Fourthly, he must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act of association with the conduct of
perpetrators of the assault by himself performing some act of association with the conduct of
the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the
deceased, he must have intended them to be killed, or he must have foreseen the possibility of
their being killed and performed his own act of association with recklessness as to whether or
not death was to ensue.”
[117] In respect to common purpose this court finds the following:
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(a) Accused one was present on the scene and partook in the assault of the deceased
after which the deceased was shot and killed therefore satis fying the first and
second requirements as stated in the matter of S v Sefatsa and Others 1988 (1) SA
868 (A) (“Sefatsa”).
(b) After the murder had taken place in his presence, accused one could have easily
disassociated himself from the actions of accused two i nstead, he left the scene
with accused two. This action satisfies the third and fourth elements of the
abovementioned rule as stated in the matter of Sefatsa. The actions of accused one
do not show a withdrawal from the common purpose, but rather an agreement and
knowledge of a plan.
(c) Finally, the rule states that accused one must have had the requisite mens rea. As
per the evidence of Brisky Moyo, both accused one and two were in possession of
firearms. Accused one must have reasonably foreseen that accused two could have
used it to commit murder and he reconciled himself with that possibility.It is
improbable both the accused were unaware that the other was in possession of a
firearm.
[118] The Constitutional Court approved the approach of Mgedezi in Thebus and another v S
(CCT36/02) [2003] ZACC 12; 2003 (6) SA 505 (CC); 2003 (10) BCLR 1100 (CC); 2003
(2) SACR 319 (CC) (28 August 2003) . The issue i s put beyond any doubt by
Moseneke J at 341 e (para 34) as follows:
“
Provided the accused actively associated with the conduct of the perpetrators in the group that
caused the death and had the required intention in respect of the unlawful consequence, the
accused would be guilty of the offence”.
[119] Accordingly, this court finds on the basis of common purpose that accused one acted
in common purpose with accused two to murder Mehluli Sibande, the deceased on
count 13.
Probabilities emerging from the case as a whole in respect to counts 1 to 12
[120] Accused one has remained silent in this regard and accused two stated he knew nothing
[120] Accused one has remained silent in this regard and accused two stated he knew nothing
of the incident on 8 October 2023 and he has never been to 1[...] D[...] Street.
[121] Accused two states he does not know the witnesses namely Fikile Mbhele,
Nompumelelo Mbhele, Sophie Khosa or Samuel Nduzukula. He stated he saw them for
32
the first time in court. From this, the court can conclude that because these witnesses did
not know accused two prior to 8 October 2023, there would as a result be no reason for
them to falsely incriminate accused two.
[122] Accused two stated he completed grade seven in Zimbabwe and the witnesses all state
that the two men who they met on 8 October were speaking Zulu with a Zimbabwe
accent. During cross- examination he added he speaks Zim Ndebele and also Zulu.
[123] As regards the incident of 8 O ctober 2023, accused two cannot remember his
whereabouts. It also never crossed his mind to ask his girlfriend Ntobizodwa to check her
messages on whatsapp to assist in locating his whereabouts on 8 October 2023.
[124] Accused two’s version of all four witnesses making a mistake to point him out at the
identification parade is rejected as false. Brisky Moyo is not known to the witnesses who
testified about the events on 8 October 2023, therefore, there could not have been any
reason for Brisky Moyo and the other witnesses testifying in respect to the incidents of 8
October, to falsely implicate accused two. The version of accused two that he was not
present on 8 October 2023 is rejected by this court as false and not reasonably possibly
true.
[125] As regards identification of both the incidents of 6 and 8 October, t here is corr oboration
between Fikile Mbhele, Brisky Moyo and Derrick Ncube. Firstly, Fikile Mbhele said the
men that confronted her were speaking Zulu like a Zimbabwean national . Brisky Moyo
stated accused one and two are Zimbabwean. Both accsued even admitted that as per
their plea of guilty in respect to counts 17 and 18 respectively that they are from
Zimbabwe
[126] In addition, as per the statement of Fikile Mbhele, she stated accused one was wearing a
reflector jacket with orange and silver colours. Both Brisky Moyo and Derrick Ncube state
accused one was wearing a jacket with an orange colour in it. The witness Nompulelelo
accused one was wearing a jacket with an orange colour in it. The witness Nompulelelo
Mbhele also stated that accused one w ore blue jeans and a navy -blue reflector jacket
with orange and a lime colour. The common denominator is the reflector jacket and the
orange colour. The name “ Skhokho” is also heard by Nompumelelo Mbhele and Fikile
Mbhele when Precious mentioned this name. There is roughly two days that passed from
the incident of 6 October 2023 and the incident of 8 October 2023. The following of the
above- mentioned facts cannot be mere coincidence. It is more probable that the same
33
“Skhokho” wearing a reflector jacket and seen by both Brisky Moyo and Derrick Ncube is
the same “ Skhokho” that entered the house where Fikile and Nompumelelo Mbhele
lived, still wearing the very same clothes and still in possession of a firearm. It is clear
that there is similar fact evidence pertaining to both the event s of 6 October and 8
October 2023 in that the witnesses corroborate each other on the clothing of accused
one and his name namely, “Skhokho”.
Accused one`s failure to testify
[127] The charges against accused one are of a serious nature and if convicted he faces a
period of life imprisonment. The state relied on the evidence of multiple eyewitnesses, a
formal identification parade and the evidence of witnesses who know the accused. The
accused, however, elected not to give evidence in his defence despite the overwhelming
evidence against him. Towards the end of the proceedings and after the accused had
already closed his case, it suddenly appeared that he intended to call his girlfriend as an
alibi witness, but this never materialised.
[128] Despite the fact that an accused person has the right to remain silent and is under no
obligation to testify the Constitutional Court in the matter of Boesak v The State [2000]
ZACC 25, 2001 (1) BCLR 36 (CC) held that:
“The fact that an accused person is under no obligation to testify does not mean that there are no
consequences attaching to a decision to remain silent during the trial. If there is evidence calling
for an answer, and an accused person chooses to remain silent in the fact of such evidence, a
court may well be entitled to con clude that the evidence is sufficient in the absence of an
explanation to prove the guilt of the accused.” (Ibid para 24)
[129] Similarly, in the matter of Osman and Another v Attorney - General Transvaal (CCT
37/97) [1998] ZACC, the Constitutional Court held that our legal system is an adversarial
one. Once the prosecution has produced evidence sufficient to establish a prima facie
one. Once the prosecution has produced evidence sufficient to establish a prima facie
case, an accused who fails to produce evidence to rebut that case is at risk. The failure
to testify does not relieve the prosecution of its duty to prove guilt beyond reasonable
doubt. An accused, however, always runs the risk that, absent any rebuttal, the
prosecution`s case may be sufficient to prove the elements of the offence.
[130] In the matter of S v Mthetwa 1972 (3) SA 766 (A), the Appellant Division, as it then was,
stated that:
34
“Where… there is direct prima facie evidence implicating the accused in the commission of the
offence, his failure to give evidence, whatever his reason may be for such failure, in general ipso
facto tends to strengthen the State case, because there is nothing to gainsay it, and therefore
less reason for doubting its credibility or reliability.” (Ibid page 635)
[131] In the matter of Dos Santos and Another (726/07) (2010) ZASCA 73 (29//10) , the
Supreme Court of Appeal held that:
“The choice of each to remain silent in the face of evidence implicating them in criminal conduct
is suggestive of the fact that each had no answer to it. For i f the evidence implicating the
appellants was capable of being neutralised by an honest rebuttal, it ought to have been.”
[132] The version put to Fikile Mbhele that accused one’s face was trending on s ocial media
and that this is why she identified him was never proven by accused one. As a result, it is
rejected as false. The legal representative of accused one put it to Philip Nkosi that
accused one never gave accused two`s full name to him but only gave him the name
“Mji”. Accused one`s election to remain silent is extremely prejudicial to him as it seems
from the questions posed to Philip Nkosi that accused two was actually known to
accused one.
Findings
[133] As regards count one, as per the evidence of Samuel Nduzukula, he pointed out
accused one as being the one who robbed him and his wife. Although he could not
positively identify accused two, from his evidence, it is clear two men, armed with
firearms entered his room. On the basis of similar fact evidence, pertaining to the manner
in which the other robberies occurred, namely that both accused one and two were
together, this court is satisfied that the state has proved the charge of robbery with
aggravating circumstances in respect to both accused and that accused two actively
associated himself with the actions of accused one. They are both found guilty of robbery
associated himself with the actions of accused one. They are both found guilty of robbery
with aggravated circumstances.
[134] As regards count two, as per the evidence of Sophie Khoza, it was accused two who
entered her room. As a result, accused two is found guilty of robbery with aggravated
circumstances of R50- 00 cash and a cell phone and accused one is acquitted of count
two.
[135] As regards count three, from the evidence of Nompumelelo, accused one was originally
the only person in the room pointing a firearm at her grandmother, yet, accu sed two did
35
enter shortly afterwards and saw this happening. Accused two was also present and was
asked by accused one to count the rental money. Both were accordingly present when
this robbery occurred. On the basis of common purpose, accused one’ s actions are
attributed to accused two and both are found guilty of robbery with aggravating
circumstances.
[136] As regards count four, the witness Fikile Mbhele heard two men s peaking in the room of
her mother Esther Nzimande. Yet, from the evidence of Nompumelelo who was in the
room, it is only accused one who was present when her grandmother was shot by
accsued one. Accused two had already left the room and the door had closed behind
him. This court cannot attribute the actions of accused one to accused two in respect to
the killing of Esther Nzimande as according to Nompumelelo accused two had even told
accused one that the person they were looking for was not there and that they must
leave. Accordingly, only accused one is found guilty of premeditated murder on count
four and accused two is acquitted on count four.
[137] As regards count five , Nompumelelo states when accused one left, her grandfather
followed him and that is when she heard shots being fired. She could not explain who
killed her grandfather. On the basis of similar fact evidence, this court finds accused one
guilty of the murder of Bekani Nzimande. It is clear he was the only one who was seen
by Nompumelelo holding a firearm. This court cannot impute the actions of accused one
to accused two as it is not clear that accused two was still in the passage when accused
one shot Bekani Nzimande. Accordingly, on count f ive, accused one is found guilty of
premediated murder in terms of s51(1) of Act 105 of 1997 and accused two is acquitted.
[138] As regards c ount six, Fikile Mbhe le mentions it is accused one who hit her with the
firearm. Accordingly, accused one is found guilty of assault with intention to do grievous
firearm. Accordingly, accused one is found guilty of assault with intention to do grievous
bodily harm. Accused two was not present before her when accused one assaulted her
and accordingly on count six, accused two is acquitted on count six.
[139] As regards count seven, there was a short period of time before the accused one and
two returned and kicked open the bedroom door of Fikile Mbhele. They were both
present when she was robbed of her cell phone. Accordingly, both accused one and two
are found guilty of robbery with aggravating circumstances on court seven.
36
[140] As regards count eight , there is no evidence suggesting who shot Proud Mpofu. It is the
evidence of Fikile and Nompumelelo Mbhele that both accused one and two were
looking for Proud. This appears to be the main reason why these accused came to this
house on this evening. B oth accused one and two were in this house at the same time
and were wielding firearms. This court cannot say who shot this deceased, however, it is
clear that they both had a reason to find Proud Mpofu. On the basis of common purpose
this court finds they both had the intention to kill Proud Mpofu and accordingly, they are
both found guilty of premediated murder in terms of s51(1) of Act 105 of 1997.
[141] As regards count nine, there is once again no eye- witness who can say who killed
Ntombizodwa Mumpande. On the basis of similar fact evidence, and due to the fact that
both accused were in possession of firearms, this court finds that accused one and two
both had the common purpose to kill this deceased and they are accordingly both found
guilty of premediated murder in terms of s51(1) of Act 105 of 1997.
[142] In respect to count 10 it is c lear accused one had in his possession a firearm on 8
October 2023. He is accordingly found guilty of possession of a firearm, make unkno wn
to the state, without a valid firearm license which is a contravention of s3 of Act 60 of
2000.
[143] In respect to count 11 it is clear that accused two had in his possession a firearm on 8
October 2023. He is accordingly found guilty of possession of a firearm , make unknown
to the state, without a valid firearm licence and therefore guilty of a contravention of s3 of
Act 60 of 2000.
[144] As regards count 12, it is clear many shots were fired on the evening of 8 October 2023.
Accordingly, both accused are found guilty of unlawful possession of ammunition,
namely, a contravention of s90 of Act 60 of 2000.
[145] As regards count 13, both accused are found guilty of premeditated murder, a
[145] As regards count 13, both accused are found guilty of premeditated murder, a
contravention of s51(1) of Act 105 of 1997.
[146] As regards count 14, this court is satisfied that accused one had in his possession an
unlicensed firearm without a valid license and he is found guilty of a contravention of s3
of Act 60 of 2000.
37
[147] As regards count 15, this court is satisfied that accused two had in his possession an
unlicensed firearm without a valid license and he is found guilty of a contravention of s3
of Act 60 of 2000.
[148] As regards count 16, this court finds both accused guilty of being in possession of
unlawful ammunition and are both found guilty of a contravention of s90 of Act 60 of
2000.
[149] As regards count 17, as per the plea of guilty of accused two, accused two is found guilty
of a contravention of s49(1)(a) of Act 13 of 2002.
[150] As regards count 18, as per the plea of guilty of accused one, accused one is found
guilty of a contravention of s49(1)(a) of Act 13 of 2002.
Order
[151] Accused one is found guilty on the following charges:
Count 1: Guilty- robbery with aggravated circumstances
Count 3: Guilty- robbery with aggravated circumstances
Count 4: Guilty- murder in terms of s51(1) of the Criminal Law Amendment Act 105 of
1997
Count 5: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 6: Guilty- assault with intention to do grievous bodily harm
Count 7: Guilty- robbery with aggravated circumstances
Count 8: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 9: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 10: Guilty - possession of unlicensed firearm, a contravention of s3 of the
Firearms Control Act 60 of 2000
Count 12: Guilty - unlawful possession of ammunition, a contravention of s90 of the
Firearms Control Act 60 of 2000
Count 13: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 14: Guilty - possession of unlicensed firearm, a contravention of s3 of the
Firearms Control Act 60 of 2000
Count 16: Guilty - unlawful possession of ammunition a contravention of s90 of the
Firearms Control Act 60 of 2000
Count 18: Guilty- contravention of s49(1)(a) of the Immigration Act of 13 of 2002
38
[152] Accused two is found guilty on the following counts:
Count 1: Guilty- robbery with aggravated circumstances
Count 2: Guilty- robbery with aggravated circumstances
Count 3: Guilty- robbery with aggravated circumstances
Count 7: Guilty- robbery with aggravated circumstances
Count 8: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 9: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 11: Guilty - possession of unlicensed firearm, a contravention of s3 of the
Firearms Control Act 60 of 2000
Count 12: Guilty - unlawful possession of ammunition, a contravention of s90 of the
Firearms Control Act 60 of 2000
Count 13: Guilty- murder in terms of s51(1) of Act 105 of 1997
Count 15: Guilty - possession of unlicensed firearm, a contravention of s3 of the
Firearms Control Act 60 of 2000
Count 16: Guilty - unlawful possession of ammunition a contravention of s90 of the
Firearms Control Act 60 of 2000
Count 17: Guilty- contravention of s49(1)(a) of the Immigration Act of 13 of 2002
______________________
D DOSIO
JUDGE OF THE HIGH COURT
JOHANNESBURG
APPEARANCES
ON BEHALF OF THE ACCUSED: Mr Davids (for accused 1)
Instructed by Legal Aid SA, Johannesburg
Adv Ngxumza (for accused 2)
Instructed by Legal Aid SA, Johannesburg
39
ON BEHALF OF THE STATE: Adv. Adonis
Instructed by the Office of the National
Director of Public Prosecutions, Johannesburg