South Africa: South Gauteng High Court, Johannesburg
You are here:
SAFLII >>
Databases >>
South Africa: South Gauteng High Court, Johannesburg >>
2017 >>
[2017] ZAGPJHC 211
| Noteup
| LawCite
S v Ndebele and Another (SS32/2016) [2017] ZAGPJHC 211 (27 July 2017)
Download original files |
PDF format
RTF formatIN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NUMBER : SS32/2016
Not reportable
Not of interest to other judges
27/7/2017
In the matter between:
THE STATE
and
NKULULEKO WELCOME NDEBELE ACCUSED 1
MPHILISENI SPHAMANDLA NDAWANDE ACCUSED 2
JUDGMENT
DOSIO AJ:
INTRODUCTION
[1] The accused were arraigned on the following counts; count 1, being a charge of robbery with aggravating circumstances as defined in Section 1 of The Criminal Procedure Act 51 of 1977, (hereinafter referred to as “Act 51 of 1977”), count 2 being a charge of murder read with section 51 (1) of The General law Amendment Act 105 of 1997, (hereinafter referred to as “Act 105 of 1997”), count 3 being a charge of attempted murder read with section 51(2) of Act 105 of 1997, count 4 being a charge of contravening the provisions of section 3 of The Firearms Control Act 60 of 2000 (hereinafter referred to as the “Act 60 of 2000”) for possession of unlicensed firearms, count 5 being a charge of contravening of section 90 of Act 60 of 2000 for possession of ammunition, count 6 being a charge of contravening of section 4 (1) (a) of Act 60 of 2000 read with section 51 (2) of Act 105 of 1997 for possession of a prohibited firearm, alternatively to count 6, a contravention of section 120 (10) (b) of Act 60 of 2000 for possession of a firearm with the intent to resist arrest.
[2] Prior to the plea, the court apprised accused 1 and 2 of their right to have an assessor. Both accused understood and elected to proceed without an assessor.
[3] In respect to count one (1) the State alleges that on the 29th of July 2015, at Chris Hani crossing, Vosloorus, in the district of Boksburg, the accused unlawfully and intentionally assaulted Bonginkosi Nkumalo, Aubrey Pule, Jabulani Gunelt Mbuyisa, Leroy Maijang Mabitsela and Celekhuhle Tshabalala, and with force robbed them of the following items, to wit, a security radio, money, laptops, cell phones, jewellery, the total value unknown to the State, aggravating circumstances being the wielding of a firearm or a threat to inflict grievous bodily harm.
[4] In respect to count 2, that on the 29th of July 2015, at Chris Hani crossing, Vosloorus, in the district of Boksburg, the accused unlawfully and intentionally killed Njabulo Eric Buthelezi, a law enforcement officer performing his functions while on duty.
[5] In respect to count 3, that on the 29th of July 2015, at Chris Hani crossing, Vosloorus, in the district of Boksburg, the accused unlawfully and intentionally attempted to kill Naphtal Bhekinkosi by shooting at him.
[6] In respect to count 4, that on the 29th of July 2015, at Chris Hani crossing, Vosloorus, in the district of Boksburg, the accused did unlawfully have in their possession firearms, to wit 9mm parabellum firearm, .30mm firearm with particulars unknown to the State, and a firearm with undeterminable calibre and with further particulars unknown to the State, without holding licenses, permits or an authorization issued in terms of the Act to possess those firearms.
[7] In respect to count 5, that on the 29th of July 2015, at Chris Hani crossing, Vosloorus, in the district of Boksburg, the accused did unlawfully have in their possession ammunition, to with at least 20 live rounds of 7.62 X 39 mm calibre ammunition, 8 live rounds of 9mm calibre ammunition, 1 live round of .30mm calibre ammunition and 2 live rounds of an undeterminable calibre ammunition, without being the holder of a licence in respect to any of the above-mentioned calibre firearms capable of discharging that ammunition, or permits to possess such ammunition.
[8] In respect to count 6, that on the 29th of July 2015, at Chris Hani crossing, Vosloorus, in the district of Boksburg, the accused did unlawfully have in their possession a fully automatic firearm, being a prohibited firearm to wit a 7.62x39mm calibre firearm (commonly known as an AK 47) without being the holder of a license to possess such an automatic firearm. Alternatively to count 6, that on or about the same date, time and place mentioned in count 6, the accused did unlawfully possess firearms and ammunition, to wit a 9mm parabellum firearm, with further particulars unknown to the State, a .30 firearm with further particulars unknown to the State and a 7.62x39 mm calibre firearm (commonly known as a AK 47) with the intent to resist arrest.
[9] Prior to the accused pleading, the court apprised them of the provisions of the minimum prescribed sentences of 15 years imprisonment in respect to count 1, namely of robbery with aggravating circumstances, a sentence of life imprisonment in respect to the murder charge on count 2, and a minimum sentence of 15 years imprisonment in respect to count 6. Both accused understood.
[10] The accused pleaded not guilty to all counts. Both accused elected to remain silent.
[11] Formal admissions were made in terms of section 220 of Act 51 of 1977. These admissions were the following;
[12] In respect to count 1
That the following items were robbed during the armed robbery at Cash Crusaders at the Chris Hani Crossing Shopping Centre, Vosloorus on the 29th of July 2015, namely; cash to the amount of R14 526.50, an Asus 556C Laptop worth R2 321.70, a Toshiba Satelite Pro Laptop worth R2 000.00, an Asus Sonic Master Laptop worth R1 193.00, a HP 630 Laptop worth R1 200.00, a Samsung RS511 laptop worth R1 362.30, a HP Laptop worth R965.02, a Lenovo Thinkpad T410S Laptop worth R1 193.00, a Samsung S5 cellphone worth R8 000.00, a Nokia Lumia 520 cellphone worth R1 400.00, a Vodaphone Smart Tab 3G worth R1 000.00, a Samsung 7” tablet worth R550.00 and a Samsung GT-P7500 worth R1 550.00.
[13] In respect to count 2
That the deceased is the person named in Count 2, to wit, Njabulo Eric Buthelezi. That the deceased was a member of the South African Police Service with the rank of constable and stationed at Vosloorus Police Station. That he died on the 29th of July 2015 as a result of multiple bullet wounds which he sustained near Chris Hani Crossing Shopping Centre, Vosloorus. That the body of the deceased sustained no further injuries from the time the injuries were inflicted on the 29th of July 2015, until a post mortem examination was conducted upon the deceased. That Dr. Johannes Steenekamp conducted the post mortem examination on the body of the deceased on the 30th of July 2015 and recorded his findings on exhibit “B”. The correctness of the facts and findings of the post mortem examination as recorded on exhibit “B” are admitted. Furhermore, Dr. Johannes Steenekamp removed one spent bullet from the body of the deceased. This exhibit was correctly sealed in an exhibit bag with number FSCC - 822721 and forwarded to the Forensic Science Laboratory, Ballistic Section.
[14] In respect to the photo album and collection of exhibits at the scene of Chris Hani Crossing Shopping Centre
The accused admitted that the photo-album and key thereto, namely, exhibit “C”, correctly reflects the scene of the crime at the Chris Hani Crossing Shopping Centre, Vosloorus, where the deceased was shot and exhibits collected. That the scene was photographed by warrant officer Maropeng Rolphus Mokuru on the 29th of July 2015.
That warrant officer Mokuru correctly seized and sealed all exhibits and forwarded same to the Forensic Science Laboratory, Ballistic Section.
[15] In respect to the photo album and collection of exhibits at the scene of the abandoned vehicle.
It was admitted that the Nissan Livina with registration number BK52THGP was found at the corner of Kgotseng and Godobo Street, Vosloorus. That the photo-album, namely, exhibit “D”, correctly reflects the scene where the abandoned Nissan Livina with registration number BK52THGP was found on the 29th of July 2015 and exhibits collected, as photographed and collected by warrant officer Alpheus Mogotsi Kgokane on the 29th of July 2015. That warrant officer Kgokane correctly seized and sealed all exhibits on the 29th of July 2015. That warrant officer Kgokane on the 29th of July 2015, correctly found, lifted and identified the right index finger print of Siwela Bhekimpilo above the outside door handle of the right side back door of the grey Nissan Livina with registration number BK52THGP. That warrant officer Kgokane on the 29th of July 2015, correctly found, lifted and identified the right palm print of Lamulani Ndlovu on the outside portion next to the boot on the right side of the grey Nissan Livina with registration number BK52THGP.
[16] In respect to the ballistic reports
That warrant officer Jannie Loubsher Scheepers received the sealed exhibit bag with number PW4001343130 from the case administration of the Ballistic Section and conducted a forensic examination on the contents of the said package, and recorded his findings on exhibit “E”. The correctness of the facts and findings of the forensic examination is admitted as recorded on the ballistic report, exhibit “E”. That warrant officer Scheepers received a sealed exhibit bag with number PA3000832205 from the case administration of the Ballistic Section and conducted a forensic examination on the contents of the said package, and recorded his findings on exhibit “F”. The correctness of the facts and findings of the forensic examination are as recorded on the ballistic report, exhibit “F”. That warrant officer Scheepers received a sealed exhibit bag with number PAD001040314 from the case administration of the Ballistic Section and conducted a forensic examination on the contents of the said package, and recorded his findings on exhibit “G”. The correctness of the facts and findings of the forensic examination are as recorded on the ballistic report, exhibit “G”. That warrant officer Scheepers received a sealed exhibit bag with number FSCC - 822721 from the case administration of the Ballistic Section and conducted a forensic examination on the contents of the said package, and recorded his findings on exhibit “H”. That the correctness of the facts and findings of the forensic examination are as recorded on the ballistic report, exhibit “H”.
[17] In respect to the CCTV identification
That the CCTV footage from Cash Crusaders captured on the 29th of July 2015, were correctly downloaded on a disk and sealed in exhibit bag PA5001438800 and forwarded to the Forensic Science Laboratory. That warrant officer Masaule Jonas Mareletse received a sealed exhibit bag with number PA5001438800 from the Administration of the Forensic Science Laboratory and conducted a forensic examination on the contents of the said package, and recorded his findings on exhibit “K1”. That the correctness of the facts and findings of the forensic examination as recorded on the forensic report, exhibit “K1” are admitted. That the photos contained in exhibit “K2” correctly depicts true image enhancement of CCTV footage captured at the Chris Hani Crossing Shopping Centre, Vosloorus. That the CCTV footage from Chris Hani Crossing Shopping Centre captured on the 29th of July 2015, were correctly downloaded on a disk and sealed in exhibit bag P6003198057 and forwarded to the Forensic Science Laboratory. That warrant officer Mareletse received a sealed exhibit bag with number P6003198057 from the Administration of the Forensic Science Laboratory and conducted a forensic examination on the contents of the said package, and recorded his findings on exhibit “L1”. That the correctness of the facts and findings of the forensic examination are as recorded on the forensic report, exhibit “L1”.
That the photos contained in exhibit “L2” correctly depicts true image enhancement of CCTV footage captured at the Chris Hani Crossing Shopping Centre, Vosloorus. That warrant officer Dirk van Eeden received a sealed exhibit bag with number FSD - 444727 and conducted an analysis of the images for facial identification purposes and recorded his findings on exhibit “M”.
In respect to the CCTV FOOTAGE
That exhibit 1 contains the CCTV footage from Cash Crusaders captured on the 29th of July 2015. That the CCTV footage contained on exhibit 1 was correctly downloaded by Cash Crusaders. That the CCTV footage contained on exhibit 1 is a true reflection of the incident that occurred at Cash Crusaders on the 29th of July 2015. That the CCTV footage contained on exhibit 1 was not tampered with in any way. That exhibit 1 is formally admitted into evidence. That exhibit 2 contains the CCTV footage from Chris Hani Crossing Shopping Centre captured on the 29th of July 2015. That the CCTV footage contained on exhibit 2 was correctly downloaded by Chris Hani Crossing Shopping Centre. That the CCTV footage contained on exhibit 2 is a true reflection of the incident that occurred at Chris Hani Crossing Shopping Centre on the 29th of July 2015. That the CCTV footage contained on exhibit 2 was not tampered with in any way. That exhibit 2 is therefore formally admitted into evidence.
[18] In respect to a medico legal report of accused 2, cell phone downloads, an identification parade and accused having no licence to possess any firearms
It was admitted that Dr. Warren Pretorius examined accused 2, Sphamandla Ndawonde on the 8th of January 2016 at Thambo Memorial Hospital and noted all his findings on the J88 medico legal report attached hereto as exhibit “N”.
That exhibit “P1” and “P2” are statements made by warrant officer Theo Erns Botha in terms of Section 212 of Act 51 of 1977 relating to cellphone downloads. The correctness of the facts and findings by warrant officer Botha as recorded on exhibit “P1” and “P2” are admitted.
That Captain Radebe held an identification parade on the 27th of August 2015 at Johannesburg Central Police Station. That captain Radebe correctly noted the procedures and results of the identification parade on the form SAP 329, which is marked as exhibit “Q1” and by agreement this exhibit is handed in as admissible evidence. That warrant officer Daphney Matsepe from the Local Criminal Record Centre, Johannesburg, compiled a photo album of the identification parade, marked as exhibit “Q2”.
That the Accused are not licensed to possess any firearm nor are they authorized to possess any ammunition in terms of the Firearms Control Act, Act 60 of 2000.
[19] The exhibits handed in were marked as follows;
Exhibit A -Admissions in terms of Section 220 of Act 51 of 1977
Exhibit B-Post mortem report of Dr Johannes Steenekamp
Exhibit C-Photo album and key – of the Chris Hani Crossing Shopping Centre, Vosloorus
Exhibit D-Photo album – of the abandoned vehicle Nissan Livina BK52THGP
Exhibit E-Ballistic report compiled by warrant officer Jannie Loubscher Scheepers
Exhibit F-Ballistic report compiled by warrant officer Jannie Loubscher Scheepers
Exhibit G-Ballistic report compiled by warrant officer Jannie Loubscher Scheepers
Exhibit H-Ballistic report compiled by warrant officer Jannie Loubscher Scheepers
Exhibit J-Photo album of the arrested persons
Exhibit K1-212 statement compiled by Warrant Officer Masaule Jonas Maresele
Exhibit K2-CCTV footage images of Cash Crusaders, Vosloorus
Exhibit L1- 212 statement compiled by warrant officer Masaule Jonas Maresele
Exhibit L2-CCTV footage images of Chris Hani Crossing Shopping Centre, Vosloorus
Exhibit M-statement of warrant officer Dirk van Eeden in respect to the Facial Identification
Exhibit N-J88 compiled by Dr. Warren Pretorius
Exhibit P1-212 statement compiled by warrant officer Theo Botha
Exhibit P2-212 statement compiled by warrant officer Theo Botha
Exhibit Q1-Identification parade form SAPS 329 compiled by captain Radebe
Exhibit Q2-Photo album of the identification parade compiled by warrant officer Matsepe
Exhibit R-Affidavit of Constable Moloi
Exhibit S-Affidavit of Jabulani Gunette Mbuyisa
Exhibit T-Admissions in terms of Section 220 – CCTV Exhibit 1 and 2
Exhibit 1-CCTV footage of Cash Crusaders
Exhibit 2-CCTV footage of Chris Hani Crossing Shopping Centre
Exhibit U-Warning statement of Lamlani Ndlovu
Exhibit V-Affidavit of Captain Hendrik Visser in respect to facial identification seen on the CCTV footage
Exhibit W-Notice of rights explained to accused 1
Exhibit X-OB entry 1385 of accused 1 when he was booked in on 20/8/2015 by Constable Mosia
Exhibit Y-OB entry 1475 of accused 1 when he was booked out to court by Constable Mosia 21/8/2015
Exhibit Z-Confession and admission pro-forma in respect to accused 1
Exhibit AA1-Charge sheet - handwritten
Exhibit AA2-Charge sheet - typed
Exhibit BB-Confession of accused 1
Exhibit CC-J88 of accused 2 dated the 22/ 9/2015
Exhibit DD-OB entry 1492 when accused 2 was booked out of the cells on 21/9/2015 by Constable Makushe
Exhibit EE-OB entry 1500 when accused 2 was booked back to the cells on 22/9/2015 by Constable Makushe
Exhibit FF-Confession and admission pro-forma in respect to accused 2
Exhibit GG-OB entry 1508
Exhibit HH-OB entry 1512
Exhibit JJ-Notice of rights explained to accused 2
Exhibit KK-Hospital file from Chris Hani Baragwanath hospital in respect to Ngubani Phumlani
Exhibit LL-Confession of accused 2
Exhibit MM-Phone book comparsions compiled by warrant officer T.E. Botha
Exhibit NN- Google map of the area of Spruitview and Vosloorus
Exhibit PP-certificate of registration of a vehicle Nissan Tida, showing it was registered in the name of J. Ndlovu
[20] The following witnesses were called in the main trial;
Constable Siyabonga Moloi, Celokuhle Tshabalala, Leroy Maijang Mabiysela, Jabulani Gunett Mbuyisa, Lamulani Ndlovu, Bhekimpilo Siwela, warrant officer Dirk Van Eeden, Naphtal Bhekinkosi Sithole, colonel Mbotho, captain Sthembiso Alphonso Nxumalo, captain Theo Botha and lieutenant colonel Wiseman Nonophi Siphungo. Accused 1 then testified and called Sibusiso Dhlamini and then closed his case. Accused 2 testified and called Sihle Khanyisene Mpungose and Thando Linkosi Sibisi and then closed his case.
[21] In respect to the first trial within a trial in respect to the confession of accused 1 the following witnesses were called, namely, lieutenant colonel Wiseman Mnonophi Siphungu, constable Moroa Maria Mosia, sergeant Sipho David Marabalala, constable Malesa Hendrik Manaka, colonel Mhlangalwa Moses Mbotho, sergeant Koblobe Silvester Pheme, and sergeant Dion Jansen. Accused 1 then testified and called his wife, namely Nobuhle Gumpo. Judgment on the first trial within a trial was handed down on the 9th of May 2017. This court ruled that accused 1 was not assaulted, or that his freedom of volition was not impaired and that he had made the confession freely and voluntarily in his sound and sober senses, accordingly, the confession was ruled as admissible and marked as exhibit “Z” and “BB” respectively.
[22] In respect to the second trial within a trial, pertaining to the confession of accused 2, the following witnesses were called, namely, constable Xolani Makushe, captain Sthembiso Alphonse Khumalo, sergeant Linokule Dlame, sergeant Alfred Ndoyisile Fanie, constable Cele, constable Macdonald Thoka, sergeant Pheme and lieutenant colonel Wiseman Mnonophi Siphungo. The state closed its case and accused 2 came to testify. Judgment on the second trial within a trial was handed down on the 11th of July 2017. This court ruled that accused 2, although he had sustained injuries during his arrest, the injuries were not caused by the police but by his own doing when he tried to escape from a motor vehicle. Accordingly, there were was no assault and his freedom of volition was not impaired. This court found that he had made the confession freely and voluntarily in his sound and sober senses, accordingly, the confession was ruled as admissible and marked as exhibit “FF” and “LL” respectively.
[23] In terms of the decision of S v Nglengethwa 1996 (1) SACR 737 (A), the evidence presented in both trials within a trial were included in the main trial with the exception of the evidence of accused 1 and 2.
[24] Witnesses for the State
Constable Moloi
Constable Siyabonga Moloi testified that he was on duty on the morning of the 29th of July 2015 with the deceased, constable Buthelezi patrolling in the vicinity around the Chris Hani Mall, Vosloorus and Crossing Shopping Centre at around 7h50 in a marked police vehicle. As they were about to turn into the parking area in front of Cash Crusaders, constable Moloi saw accused 2 as he came running towards the police vehicle armed with an AK47 rifle. Accused 2 pointed the AK47 rifle in their direction whilst he started to shoot at the vehicle. Accused 2 was about 2 - 3 car parking spaces away from their vehicle when constable Moloi saw accused 2 for the first time. He looked into accused 2’s eyes for about 2 to 3 seconds, He recalled that upon seeing accused 2 with an AK47, he immediately touched the deceased to draw his attention to the danger whilst he opened the door and alighted from the vehicle in an attempt to run for cover. Constable Moloi ran to the back of the police vehicle where he was again confronted by accused 2 who was pointing the AK47 at him and still firing shots. At this stage accused 2 was much closer and was about 2 – 3 paces from constable Moloi and he was able to observe him for about 1 second. Constable Moloi recalled that he fired his firearm into the ground in an attempt to disturb accused 2. He knows the rifle was an AK47 because it was ‘big’. He stated the police use R5 rifles which are black in colour compared to an AK47 where the barrel below where one puts one’s hand to hold the firearm, has a wooden part, compared to the R5 riffle. He stated that an AK 47 is much bigger than a R5 riffle. He was taught about firearms during training at the police academy when he became an officer, however, he did not receive training on AK47’s. Constable Moloi ran to the wall at Builders Warehouse where he took cover whilst numerous gunshots were fired. After a while the gunshots seized and Constable Moloi returned to the police vehicle where he found his colleague, the deceased, lying face down with his firearm in his hand. Constable Moloi was unable to say whether there were any other people involved as he only focussed on accused 2 who was armed with the AK47 rifle. Visibility was good and constable Moloi looked at accused 2 and there was nothing obstructing his view. Constable Moloi recalled that accused 2 wore a red UZZI tracksuit top. During cross-examination he was able to recall that the hoodie of the tracksuit top was pulled to the back of his head thereby exposing the face of accused 2. According to constable Moloi’s observations accused 2 is dark in complexion and his nose is not small or extremely big, but is slightly broad. Constable Moloi attended an identification parade where he did not point anybody. Accused 2 was also not present at the identification parade. He however immediately identified accused 2 on the 18th of April 2017 during a court appearance where the case was postponed and immediately informed the investigating officer, Sergeant Jansen thereof. During cross-examination constable Moloi was questioned about a sentence in his affidavit made shortly after the incident, in which he states at paragraph 7, that he will not be able to identify the persons involved. Constable Moloi explained that the incident had a profound impact on him and that it took some time for him to come to terms with the incident and have a picture of what happened on the day. At the time of making a statement Constable Moloi doubted whether he would have been able to identify the persons involved. He further explained that on the 18th of April 2017 he had not known that there would be a person in the court room that he will be able to identify. Once he saw accused 2 enter the court room he however immediately recognized him as the person who was on the scene with the AK47. He denied the allegation by Counsel for the accused that he was shown photos of a person and denied that he was making a mistake in identifying accused 2 being the person with the AK47 as he clearly recalled seeing accused 2, armed with the AK47 running towards their vehicle and again meeting him at the back of the police vehicle. He was also criticised during cross-examination for failing to mention certain other detail in his affidavit. Initially it was put to constable Moloi during cross-examination that he was told what to testify which he flatly denied. It was then put to constable Moloi that it would have been the obvious choice to point the person sitting in the dock as being the person that he saw on the day of the incident. He responded that he had a picture in his head of the person who had done him wrong and that made him remember accused 2. During re-examination he recalled that there was about plus minus six individuals in the accused dock during the previous court appearance on the 18th of April 2017 when he identified accused 2.
[25] Celokuhle Tshabalala
Celokuhle Tshabalala, testified that she was employed at Cash Crusaders on the relevant date as a cashier. She was on duty from 7h30 so that she and her colleagues could take some merchandise outside. She carried a sideboard outside at approximately 7h30 and saw an unknown male wearing a grey hoody approaching the store. This man told her, Jabu, Aubrey and Leroy to go inside the store. Then a male with a red hoody, with the words “Uzzi” written on the chest came into the store and told her to open the store on the “buy shop” side where goods are sold to the public. She then offered him her cell phone and he refused it and said he wanted the door opened. She gave him the cell phone because she thought he wanted it as the other robbers had taken the cell phones from Jabu, Aubrey and Leroy when they entered the store.
The one with the red hoody then blocked the door of the inside office with a bin. She unlocked the door with a security code. He then grabbed her on her upper left arm and instructed her to open the next door, however she could not as she did not have the code. This man then asked her where the cell phones were and she said in the front of the store in the cabinets. He then took her there and instructed her to open the cabinets. The person with the grey hoody then helped to pack the cell phones in a ‘shangaan' bag. She then saw a silver motor vehicle parked outside with its back facing the store. It was a Nissan. An unknown male wearing a brown leather jacket and gloves came in. He was carrying a black and red bag when he entered the store. At that stage she was focusing on packing the cell phones and tablets in the bag. The two males that were with her, then rushed to place the bag in the Nissan. As they rushed out she then waved at a police vehicle that was approaching. The police vehicle then stopped and the male with the red hoody took a long firearm from the Nissan. She then heard shots being fired and crawled to the back of the store. When it was quiet, they then went out and the perpetrators were gone. The shots lasted 2 to 3 minutes. When they went out she saw a policeman bleeding heavily on the head. The silver Nissan was no longer there, but she saw it speeding off with a white Audi. The male with the red hoody and the one with the grey hoody were in the silver Nissan. The male with the brown jacket was driving the silver Nissan. The person with the brown jacket had very short hair, a moustache and a beard on his chin and jawline up the base of his cheek. The moustache was on his upper lip. His beard was clean cut and ended before his ear. She did not see them again after the incident. They were conversing in Zulu. She identified the items found in the silver Nissan as depicted on exhibit “D”, as items that were taken from the store. The items identified were keys with yellow tags which are used in the shop, (seen on exhibit “D” photos 42 and 43), and plastic bags with rings that were pawned at cash crusaders. The plastic bags had an identifying mark on them (seen on exhibit “D” photo 48 and more clearly on photo 52). Although she attended an identification parade on the 27th of August 2015 she was unable to identify anyone.
[26] Leroy Maijang Mabitsela
Leroy Maijang Mabitsela testified that he was employed at Cash Crusaders as an assistant manager on the relevant date. He arrived at work at 7h30 and took stock outside . As they were taking the stock outside, one person approached him, Jabu, Aubrey and Celokuhle. He was at the desk when the person approached and ordered the others to go into the store. Jabu resisted and this man then lifted his jacket and exposed a firearm which was tucked in the front of his pants. The person then took his cell phone and started searching the counter. Four other persons then entered the store. He did not look at them. Celokuhle was then taken by one person to the office.
He saw a Nissan Livina reverse into the parking in the front of the store. The driver then entered the store with a bag. He was the same build as him and height. He was wearing a brown jacket. Then the one who was wearing a hoody with Celokuhle took him to the back and wanted cell phones and laptops. This witness then opened the safe with a code and gave this man the money. They then went back to the others and they were ordered to the back of the store. The perpetrators then went to the Nissan. The one wearing a hoody went to the front passenger seat and pulled out another big gun from the Nissan. This was bigger than the one he had before, about a half meter in length. This person then ran towards a vehicle that was patrolling. Shots were then fired. He ran back into the other store with Aubrey and a security guard from the centre. He then called the owner of the store to inform him of the robbery. He was unable to identify the people who robbed them.
[27] Jabulani Gunette Mbuyisa
Jabulani Gunette Mbuyisa, testified that he was employed at Cash Crusaders, Vosloorus on the relevant date. At 7h50 he was with his colleagues Leroy, Celokuhle and Aubrey. A male then came to the store and he told him the store is not yet open. A second male then came and pushed him. He tried to retaliate but the male lifted his jacket and he saw a firearm. He was told to go inside the store and they all complied. One male then came and demanded keys for the cash registers. He then told him that the keys are with the cashiers. The witness was then rushed to the cashiers and searched. His Lumia S20 cellphone was then taken. There were three men in the store. While some were busy at the buy shop and store room, the fourth person came in with the bag. While there he saw a police van and all the perpetrators ran to a car. One took an AK47 from the front passenger door. He then started firing at the police. He and Aubrey stood looking at the door. He then saw the perpetrators run to the vehicle and they then drove away. A police officer was shot. He looked at the person with the bag when he was 4-5 meters away from him He was wearing a brown leather jacket. He was slim and of medium height. This person took him to the back of the store for 2 to 3 minutes. He saw this person again in court in the dock and recognised him as the same person. The person he recognised as the man coming in with the bag was accused 1. He did not recognise the others in the group because they were pushing them around. Accused 1 had changed since the incident. On the date of the incident accused 1 had short hair and a short beard. He informed the police that he would be able to point one person out. He knows what an AK47 is because before 1994 he saw members of the MK carrying AK47’s when a member was buried. The sound of automatic firearms differs from that of a semi –automatic firearm. With semi- automatic firearms after each shot there is a break whereas with automatic firearms there is no break. He pointed out a person at the identification parade on the 27th of August 2015. The person pointed is not accused 1. He was then shown exhibit “Q2” and it is clear that the person he pointed out, who was number 6 is not accused 1. He saw accused 1 at position 5 on exhibit “Q2” when it was shown to him. When asked why he did not point accused 1 at the ID parade, he said he was scared because the people in the line-up were looking at him.
[28] Lamulani Ndlovu
Lamulani Ndlovu, testified that he knows accused 1 by sight and that they lived in the same area. Accused 1 drives a Toyota Yaris. He and accused 1 phoned each other as they were friends. He was arrested on 19th of August 2015 when the police arrived at his residence in Bertrams. The police had a picture of a Nissan Livina and he was informed that his fingerprints were found in it. He was arrested by lieutenant colonel Siphungu and others. He was asked who the vehicle belongs to. He informed the police that the vehicle belonged to accused 1. He met accused 1 on the corner of Claim and Kort Street at the Mariston Hotel on the 15th of July 2015. The witness was with Siwela, Sabelo Masuku, Lucas Ndlovu and Douglas Moyo at the time. Accused 1 arrived alone. All those that were present sat in the Nissan Livina driven by accused 1 and drank alcohol. He and Bheki were not drinking. They were just chatting in the vehicle and left at approximately 9pm. The door of the vehicle was open and they climbed in and out at times while there. When he left he went home. He did not see accused 1 again until the police came to his place and he gave the police the contact details of accused 1 as he did not know where he lived. It is the only Nissan he knows accused 1 drove. The police then asked him to contact accused 1 and he told accused 1 to meet him in Hillbrow. Accused 1 then agreed to meet at 8am. He does not know if accused 1 was assaulted as they were separated.
[29] Bhekimpilo Siwela
Bhekimpilo Siwela, testified that he knows accused 1 and saw him at his arrest. He met accused 1 for the first time at the Mariston hotel on the 15th of August 2015. He was drinking with friends and accused 1 came to see Lamulani. It was 7pm. Accused 1 came with a silver vehicle. He doesn't know the make. When he arrived they were standing outside the vehicle leaning against it and chatting. They were leaning against the vehicle accused 1 arrived in, because theirs were parked at a distance. He was with Sabelo, Lucus, Stocksweet and Lamulani. Lamulani, accused 1 and he, were not drinking alcohol. He was arrested on the 19th of August 2015 because his fingerprints were found on the vehicle. The police were asking him about a person driving a Nissan Livina.
[30] Dirk Van Eden
Dirk Van Eden, testified that he is a warrant officer in the SAPS attached to the facial identification unit in Pretoria. He has 25 years experience, 12 years in crime investigation and 9 years at the facial identification unit. He draws faces on a daily basis and received in service training at the local criminal record training centre. The relevant experience is listed in his report marked exhibit “M” which he explained in detail. He used the method of comparing images or sets of images with each other. He first looked at the appearance of the face on the CCTV footage. He looked for certain facial features. These are global features of the overall facial features in the CCTV footage and anatomical features such as the ears, eyebrows and lips. He compared the CCTV footage images to photos 9-12 of exhibit “J”. He used the Morphological analysis which is a systematic method of facial comparisons in which the features of the face are described and compared. Conclusions are based on subjective assessment and interpretation of observations. He looked at the images on exhibit “K2” and compared them to the control photos on exhibit “J”. The morphological process entails looking at certain features in the images on the CCTV footage and comparing them with similarities of the person in the control photo. He then found 10 similarities, namely;
1. The hairline was similar;
2. Similar shape and position of an indentation on the right side of the forehead;
3. Similar prominence and continuity of the brow ridges;
4. Similar prominence and relative height and width of forehead;
5. Similar shape and position of elevated area between the left eye and nose;
6. Similar shape and angle of the nose;
7. Similar position and shape of an elevated area on the right side of the face;
8. Similar unique shape, size and position of elevated areas on the left side of the face;
9. Similar shape, width, length and depth of the nasal root;
10.Similar shape, fullness and protrusion of the lower lip.
[31] He stated he only analysed one person because these were the only images that he could mark out facial features and landmarks. His final conclusion was “Thus considering the correspondence of general class characteristics and the presence of individual identifying distinguishable characteristics that were found during my analysis between the person in the CCTV images photos 1,3,5,and 7 [which are the uncontrolled photos seen on the CCTV footage] and in the control photos 2,4,and 6 (images on the right side of court chart’s). I found that the person in the CCTV images and in the control images, depicts the same person.” [my emphasis].
[32] During cross -examination he said that there is no set number of points of similarity that are required for the Court to accept as sufficient proof or proof beyond reasonable doubt and he used an example of if an accused had a scar which is a distinguishing feature then even one similarity can be enough. He pointed out that in this instance that was not the case, as there were 10 points of similarity pointed out. The report of Captain Henrico Pieter Visser was handed up by consent as exhibit “V”. The Morphological analysis and findings of that report were put to this witness. His response was that he cannot testify on behalf of captain Visser and stood by his findings. It was pointed out that point 7 of his list of similarities the unevenness noted was not skin but more a bump on the face or thickness and that the angle of the two photos was not the same and he agreed. He also agreed that the control photo was much more blurred.
[33] Napthal Sithole
Napthal Sithole testified that he was working as a security officer and was present at the Chris Hani Crossing, Vosloorus on the 29th of July 2017. He explained that he was unable to identify any of the robbers on the said day but that he was almost shot as he was standing guarding a passage to a bathroom next to OBC Chicken. The next day he saw that there was gunshot holes at the place where he was standing during the robbery.
[34] The evidence of the next witnesses were all the witnesses in respect to the first trial within a trial, namely; Lieutenant colonel Wiseman Mnonophi Siphungu, constable Moroa Maria Mosia, sergeant Sipho David Marabalala, constable Malesa Hendrik Manaka, colonel Mhlangalwa Moses Mbotho, sergeant Koblobe Silvester Pheme, and sergeant Dion Jansen
Lieutenant colonel Siphungo
Lieutenant colonel Wiseman Siphungu, testified that he assisted sergeant Jansen, the investigating officer, in arresting suspects in this matter. He has 24 years experience in the SAP. He is a commanding officer of a unit called Provincial head office. This is the unit en-tasked in investigating the murder of policemen. On the 18th of August 2015 he arrested Bhekimphilo Siwela, Lamlulani Ndlovu and accused 1 was arrested on the 19th of August 2015. Siwela and Ndlovu were linked by fingerprints found on the Nissan Livina which the perpetrators abandoned after the incident. Lamulani Ndlovu then gave the police information that the Nissan Livina belonged to accused 1 and assisted the police to call accused 1 and arranged to meet in Berea. Lamulani Ndlovu called accused 1 on the morning of the 19th of August 2015 at 8am. Accused 1 said he was in Delmas and will call back when in Johannesburg. At 10 am he called accused 1 again and they agreed to meet in Berea at 10.30am. They then used Lamulani Ndlovu’s vehicle, a twin cam bakkie and drove to Berea. They waited 20-30 minutes and accused 1 then approached the bakkie. He noticed accused 1 when he was already approaching. Lamulani Ndlovu then pointed accused 1 out. Sergeant Pheme was in the vehicle too. The witness was seated at the back of the bakkie. Accused 1 was approaching the driver, who was Lamulani Ndlovu. The witness then got out of the vehicle went around the vehicle and identified himself as a police officer. Accused 1 then tried to run and he tripped accused 1.They then cuffed accused 1 and sergeant Pheme pressed him down. He was then lifted up and the reason for his arrest and rights were explained to him. They were then led to Doornfontein by accused 1 after he gave him information of other suspects. It was Lamulani Ndlovu’s bakkie which he now drove. A vehicle with tracking team members followed and accused 1’s silver grey polo. Accused 1 was in his polo with other tracking team members and sergeant Pheme. They waited in Doornfontein for 3 hours. Accused 1 made a call to Mfanomcane. Then accused 1 took them to Jeppe and told them to drive around there they might find Mfanomncane. They then went to Brixton Flying Squad at 2pm. They went into an open plan office similar to the court room. It was Pheme, Siwela, Ndlovu, accused 1 and him. He then spoke to accused 1 and explained his rights again. Accused 1 then gave information that made him arrange for colonel Mbotho to take a statement in Cleveland. Colonel Mbotho then agreed and said accused 1 can be brought to him. Accused 1 was then taken to Cleveland by sergeant Marakalala. He then took accused 1 but returned and said colonel Mbotho was not there. He then called colonel Mbotho and was informed that colonel Mbotho had an emergency at home and would be back in 2 to 3 hours. Accused 1 was then taken back to colonel Mbotho after 2 hrs. Accused 1 was taken to Mbotho between 8 and 9 pm. After accused 1 was taken to Mbotho he went home. Accused 1 was later taken to Klipriver police station and detained there. Sergeant Jansen was present at Klipriver with accused 1. The only complaint from accused 1 was that his handcuffs were tight at some stage and they were adjusted. Accused 1 was not assaulted, threatened and no promises were made to him. He had no injuriess and no case was opened by accused 1 against the police for any assault.
He testified again as the final State witness in the main trial. At the time of the arrests of the accused he was in charge of the unit and the commander of sergeant Jansen. During 2015 there was only one police killing in the Vosloorus area. Vosloorus includes Spruitview. To get to Spriutview the Leondale Spruitview off- ramp is used. There is only one shopping Mall in the area. There is a shopping centre at the off-ramp and a BP Garage. This shopping centre only consists of a few shops and there are no cash loan shops there. During his interview with accused 1 after the arrest accused 1 spoke about Vosloorus. During 2014 there were no police murders in Parktown. Mfanomncane is accused 2. Accused 2 told him at Chamdor that he is Mfanomncane. During 2000-2005 he received training in the identification of firearms. He identified that an AK47 was used on the footage. The ammunition used in an AK47 is a 7.69mm calibre cartridge case. During cross examination it was put to him that accused 2 denies his nickname is Mfanomncane, and that accused 1 did not point out accused 2. He said that he testified previously and that accused 1 said accused 2 is Mfanomncane. When it was put to him that this is the first time he was referring to accused 2 as Mfanomncane, and that neither sergeant Dlame nor constable Cele testified that accused 2 was known as Mfanomcane, he said that accused 2’s relatives asked him before he testified that day which court Mfanomncane was in. He admitted that accused 1’s cellphone was confiscated and he received a call from Mfanomncane which led to accused 1 taking them to Doornfontein. This witness agreed that at the time of the arrests of both accused 1 and 2, there was no fingerprints, DNA or any stolen goods found in their possession.
Constable Moroa Maria Moria
Constable Moroa Maria Moria, testified that she transported accused 1 from Cleveland to Klipriver police station on the 19th of August 2015. Accused 1 was with sergeant Marakalala and constable Manage took accused 1 to make a confession at colonel Mbotho.
Sergeant Sipho David Marakalala
Sergeant Sipho David Marakalala, merely transport accused 1 to Cleveland on two occasions on the 19th of August 2015.
Constable Malesele Hendrick Manake
Constable Malesele Hendrick Manake, assisted sergeant Marakalala to transport accused 1 to cleveland and then to Klipriver.
Colonel Moses Mhlamgalwa Mbotho
Colonel Moses Mhlamgalwa Mbotho, testified that he received a call from lieutenant colonel Siphungu on the 19th of August 2015 at 5pm and said he could assist with taking a statement from accused 1 at 7.30pm. As he had to do something at home, he rushed home and informed Siphungu that he was on his way back to the office at 9pm. Accused 1 arrived with Ramakalala or Ramala and he introduced himself. He asked that the handcuffs be removed and accused 1 confirmed that he was Zulu speaking. He then explained accused 1’s rights and proceeded to fill in exhibit “Z”. He later took the statement of accused 1 and returned accused 1 to sergeant Marakalala and constable Manage who were waiting outside.
Segeant Kolbe Sylvester Pheme
Sergeant Kolbe Sylvester Pheme, corroborated lieutenant colonel Siphungu in relation to the arrest of accused 1.
Sergeant Jansen
Sergeant Jansen, testified about the arrest of accused 1 but only gave evidence of what took place at Brixton when he arrived there the afternoon of the 19th of August 2015.
Accused 1 then testified in the first trial within a trial
This Court found that the confession made by accused 1 was admissible and that accused 1’s constitutional rights were not infringed during his arrest or by the making of the statement. This court refers to its detailed judgment given in this regard. Although the order to rule the confession admissible was an interlocutory finding, this court is now confirming that finding.
[35] Colonel Mhlanjalwa Moses Mbotho was recalled in the main trial to read the contents of the confession made by accused 1 namely exhibit “Z” into the record which was marked exhibit “BB”.
[36] The State then proceeded into a second trial within a trial to establish the admissibility of a confession made by accused 2 and the State called the following witnesses, namely; constable Xolani Makushe, captain Sthembiso Alphonse Khumalo, sergeant Linokule Dlame, sergeant Alfred Ndoyisile Fanie, constable Cele, constable Macdonald Thoka, sergeant Pheme and lieutenant Colonel Wiseman Mnonophi Siphungo.
Constable Makushe
Constable Xolani Makushe, testified he booked accused 2 out of the cells at the Kagiso Police Station and later returned and booked him back into the cells at Kagiso Police Station.
Captain Nxumalo
Captain Sthembiso Alphonse Nxumalo, testified that he is a commissioned officer who took the confession of accused 2.
Sergeant Dlame
Sergeant Dlame, testified that he arrested accused 2 on the 21st of September 2015 at 13h00. He was with constable Cele at the time. He received information from an informer of a suspect is a Voslorus matter. Accused 2 was arrested in Doornfontein. They then arrested accused 2 who was the suspect. Accused 2 was made to lie on the ground and his rights were explained by sergeant Dlame. He explained the right to silence, the right to legal representation and the right to bail. He also informed accused 2 that he was arresting him on charges of murder and robbery in Voslorus. Accused 2 was searched and two cellphones were seized. He then handcuffed accused 2 with his hands at his back and took him to the motor vehicle. Accused 2 was made to sit at the back of the front passenger seat while they waited there for 20 minutes for back up to arrive. While waiting, he and constable Cele were standing outside the vehicle. He then noticed accused 2 attempting to bring his hands to the front of his body. He reprimanded accused 2 and told him to stop and that the handcuffs would hurt him if he fiddled with them. When the back up request did not materialise they went to Brixton Flying Squad. While driving there accused 2 attempted to climb out the vehicle through the window which he opened. Constable Cele, who was seated in the front passenger seat then pulled him back into the moving vehicle. After constable Cele pulled him back into the vehicle he then stopped the vehicle and constable Cele then moved to the back of the vehicle to sit with accused 2. When they arrived at Brixton, they remained in the vehicle while the back up members were busy booking out R5 rifles. They did not enter the Brixton Flying Squad offices at any stage. Accused 2 then took them to Doornfontein with the back up members. At Doornfontein accused 2 pointed out two rooms but nothing was found. They then searched 3 other rooms. When asked about exhibit “CC”, he said he asked accused 2 if something was wrong. He denied assaulting accused 2 and accused 2 was not assaulted in his presence. After Doornfontein accused 2 took them to a room in Thokosa.
Sergeant Alfred Ndoyisile Fanie
Sergeant Alfred Ndoyisile Fanie, testified he booked accused 2 out at Kagiso Police Station and transported him to Leratong Hospital on the 22nd of September 2015.
Constable Cele
Constable Cele who was with Sergeant Dlame when they arrested accused 2 corroborated the evidence of sergeant Dlame.
Constable Thoka
Constable Thoka testified he escorted accused 2 to Captain Nxumalo
Sergeant Kolobe Sylvester Pheme
Sergeant Pheme, testified that he was in Pretoria on the 21st of September 2015 doing tracking and investigation duties. At the time he was unable to perform ‘heavy duty’ because he was injured. He sustained injuries while on duty on the 3rd of May 2014. He had 11 bullet wounds and his right arm was broken. On the relevant date he still had plates in his arm and denied being present during the assault of accused 2 or himself assaulting accused 2.
Lieutenant Colonel Wiseman Siphungu
Lieutenant colonel Siphungu testified that he was not involved in the arrest of accused 2 on the 21st of September 2015, but that accused 2 was brought to his office after constable Makushe left him there. He explained the case being investigated against accused 2 and his rights. Accused 2 then wanted to implicate himself and he stopped him. He then said he will arrange a person to take a statement from accused 2. He made some calls and captain Nxumalo was available so he arranged for him to take the statement.
Accused 2 then testified in the trial within a trial.
This Court ruled that the confession made by accused 2 was admissible and that accused 2’s constitutional rights were not infringed during his arrest or by the making of the statement. This court refers to its judgment in this regard where extensive reasons were given. The order to rule the confession admissible was an interlocutory finding, however this court is now confirming that finding.
[37] Captain Sthembiso Alphonse Nxumalo
Captain Sthembiso Alphonse Nxumalo was recalled in the main trial to read the contents of the confession made by accused 2 into the record which was marked exhibit “LL”, the beginning part of accused 2’s confession being marked exhibit “FF”.
[38] Captain Theo Erns Botha
Captain Theo Erns stated that he was a warrant officer in the SAP attached to the Gauteng Operational Co-ordination centre as an analyst. He has 29 years experience in the SAP and 6 years experience as an analyst. His vast experience is reflected on exhibits “P1” and “P2”. He was asked to compare the cell phones of two people, namely, Siphamandla Ndawonde (accused 2) and Nkululeko Ndebele (accused1). He was to determine whether the two people had similar contacts in their phones. The 4 phones referred to in exhibit “P1” were all under the names Siphamandla Ndawonde, and they were a Blackberry 8520, a Nokia C5, a Nokia E52 and Nokia X2. The three cell phones on exhibit “P2”, namely a AG Thetha, a Nokia 6730 and a Hisense HS-U939 were under the name Nkululeko Welcome Ndebele. He testified that accused 1 and accused 2 had four contacts in common although neither of them had each other’s number saved on the handsets. On the date of the 29th of July 2015 there was no communication on any of the handsets that he was able to download.
[39] The State closed its case and accused 1 came to testify.
[40] Accused 1’s version
Accused 1 states that on the 19th of August 2015 in the early morning he was in Mpumalanga in Delmas. He was phoned by his friend Lamlani who said they should meet at a certain spot. When he arrived there, Lamulani Ndlovu was in the company of two men who introduced themselves as policemen. One of the policemen was sergeant Pheme. They met in Berea. The policemen informed him they were arresting him for a case in Vosloorus of which the charges were for killing a policemen and robbery. He was then searched and 3 of his cell phones were taken. The makes of the cell phones were a Hisense, a Nokia and an AG. He stated that colonel Siphungu was not present when he was arrested. He met him for the first time at the Brixton Flying Squad. He denies having run away when the police arrived. He was arrested whilst seated in the car. Sergeant Pheme grabbed him by his belt. The police officers sitting in the front seat pointed a firearm at him. Lamulani Ndlovu was the driver. Prior to his arrest he was residing at 54th 5th Street, in Orange Grove. At the time he was employed as a taxi driver for approximately a year and a half. He was driving meter taxi and would park his taxi at the corner of Wolwarans and King George Street. He was using a Toyota Yaris as well as a lime coloured Nissan Tiida, the latter car belonged to Sibusiso who works with him at the taxi rank. He would use both cars for personal use as well as to drive people around with. He had no vehicle registered in his name. The Toyota Yaris was registered in his wife’s name and he did not know in whose name the Nissan Tiida was registered. He drove the Nissan Tiida several times, especially when there was a problem with the Toyota Yaris. He stated he knew Lamulani Ndlovu for about a year before he was arrested. In respect to Lamulani Ndlovu stating that when he had met the accused in July he had been driving a silver Nissan levina, accused 1 stated that he had never driven such a vehicle. Although accused 1 could not remember with certainty which vehicle he was driving on the day he met Lamulani Ndlovu, he stated it was either the Toyota Yaris or the Nissan Tiida. Accused 1 denied driving a Nissan Livina on the 29th of July 2015 or that he was the person seen on the video footage driving the said car, in fact he stated that he has never driven a taxi in Spruitview or Vosloorus. Due to the lapse of time, he could not remember where he was on the 29th of July 2015, however, he stated that most days between 07h00 and 9h00 he would be at home either sleeping or working. When he was working as a taxi driver he would start working around 10h00 in the morning until 23h00, or he would start work at 16h00 until 03h00 or 04h00 the next morning. He would work every day of the week and only rest if he was tired. The routes he drove were around Hillbrow and the local areas around Johannesburg. Once a year he would drive a long distance trip. He only started knowing accused 2 when he met him at the Boksburg court in 2015 after his arrest. He stated that the witness called Jabulani Gunette Mbuyisa, who pointed him out at court as being present when the store was robbed on the 29th of July 2015, was lying.
During cross-examination he stated that he did not keep records of where he drove because he did not think it important to do. He stated neither he nor his wife could remember where he was on the 29th of July 2015 as neither kept records of their movements. The Nissan Tiida would be returned to the owner at times, other times it would remain with him. The Toyota Yaris was with him at all times. The Toyota Yaris was sold a few days before his arrest and a Polo was bought. He did not know who the owner was of the Nissan Tiida, but Sibusiso used it. Whenever he had a passenger that had luggage, he would take the Toyota Yaris to the owner of the Nissan Tiida and take the Nissan Tiida to use as a taxi. He would not pay Sibusiso to do this as they were working together. He again confirmed he had no knowledge where he was on the 29th of July 2015, he stated he may have been at work at the corner of Wolmarans and King George, or at home. Regarding the brown leather jacket that he is seen wearing on exhibit “J” photo 12, he states he bought it in early 2015. He denied that he is the person seen on the video footage and stated that warrant officer van Eeden was lying as he cannot see any similarities between himself and the person depicted on exhibit “K2” photo 22. Accused 1 stated he was never at that scene. He stated that it was the State advocate who told Jabulani Mbuyisa to say that he saw him driving a grey Nissan on the day of the crime. When confronted with the version that both the fingerprints of Lamlani Ndlovu and Bhekinpilo Siwela’s were found on the grey Nissan Levina, yet they pointed him out as being the driver thereof, accused 1 stated that yes he was driving his Toyota Yaris, and that Lamulani Ndlovu only pointed him out to clear his name. In addition, accused 1 stated that if the Nissan Levina was his car and Lamulani Ndlovu had driven it, he used to wash his car almost everyday and there is no way that 2 days later Lamulani Ndlovu’s fingerprints would still be found in the car if it was his car.
Regarding the confession incorporated in exhibit “BB”, accused 1 stated that all the information incorporated in the confession is from information received from the police. Sergeant Pheme was one of the police officers giving him this information. The police were asking him questions and on the basis of the questions he was able to narrate 5 pages. He stated that he was asked questions about both robberies, the one in Park station Johannesburg and the one in Vosloorus. After he was assaulted he admitted to committing both. He states colonel Siphungo is the one who wanted him to make this statement and he was also shown photos depicting people. He states that he used the photos to help him make this statement. He stated he knew Mthulise, Thabang, Sipho and Mfanomncane, the latter being his friend. These names all appear in the confession at paragraphs 12 and 18. He stated that he mentioned these names as the police were asking him about these people as they were involved in other robberies. He stated that everything he said in the confession is what he made up. It was not something that happened. He said he made all this up as he was tired of being assaulted. He denies knowing accused 2 and states he only met him at court. He never mentioned accused 2 in his confession. He stated that the Mfanomncane he was referring to in his confession is another person and not accused 2. He does not know where the Mfanomncane is that he was talking about as the police took his cell phone and the number of this Mfanomncane is on his cell phone. He stated that he could no longer remember if he said Mfanomncane and Thabang had big firearms on the day. When asked by the State advocate why he mentioned “Spruitview” in his confession, accused 1 stated that he is not familiar with that area. Accused 1 stated that after he made this statement he was never assaulted again. He denied that accused 2 ever directed him to the shop Cash Crusaders or told him to take the Spruitview offramp. He denied dropping off some of the other robbers and denied ever having gone to this shop called Cash Crusaders. Accused 1 stated that he was only shown photos of a quantum and people, but never the CCTV footage or photos taken at the Cash Crusaders.
[41] Sibusiso Dhlamini
Accused 1 then called a witnesses, namely, Sibusiso Dhlamini. This winess testified that he is employed as a maxi taxi driver transporting people. He is working at the corner of King George and Wolmarans Street in Joubert Park and has done so since 2004. In 2015 he was working there as a taxi driver and working with accused 1. He had worked with accused 1 from the end of 2014 until the beginning of August 2015 which is the last time he saw him working there. They worked on their own, not under a taxi association and used the same car, namely a lime coloured Nissan Tiida which belonged to his aunt, namely Juliet Ndlovu. Later on they used a Toyota Yaris which belonged to accused 1’s wife and which was silver in colour. The Toyota Yaris was a bigger car and they would alternate the two cars between the two of them. Since accused 1’s arrest, this witness has had no contact with him. In April this year he received a call from accused 1’s lawyer informing him that he must testify. This witness did not recognise the motor vehicle depicted on exhibit “D” photos 9-13 and also never saw accused 1 ever driving such a vehicle. This witness did not know accused 2.
[42] Accused 1 then closed his case and accused 2 came to testify.
[43] Accused 2’s version
Accused 2 testified that he was arrested on the 21st of September 2015 by two police officers, namely, constable Cele and sergeant Dhlame who informed him he was being arrested for murder and robbery at Vosloorus. He denied having tried to escape from their custody. Prior to his arrest he was residing at the corner of Rookie and Davis street, at Doornfontein with his cousin called Sibongeseni Ngubane. At the time of his arrest he was working across from the taxi rank at the car wash. He was the only person working there. He would start at 8h00 in the morning until 15h00 or 17h00 and took off when he went back to his home in the rural areas. He testified that on the 29th of July 2015 he would probably have been at home or at work. He stated that he was shot in his right leg in 2014 towards the Good Friday long weekend, during a robbery at the Diepkloof hostel where a cell phone and wallet was taken from him. As he was running away the robbers called him by his name and shot him. He did tell the investigating officer of the matter before this court, namely sergeant Jansen, because sergeant Jansen found a bandage in his house whilst searching it and accused 2 told him that it belonged to his brother, that is when he told him about being shot. Sergeant Jansen took him to the hospital to verify this in January 2016. Accused 2 stated that in 2014 he was treated for his leg injury at Baragwanath hospital. Accused 2 told sergeant Jansen that when he was admitted in 2014 he had used the name Phumlani Ngobeni. A certain man by the name of Oupa and Mr Mtiyane had told him to change his name on admission to the hospital otherwise the people involved in the faction fights would finish him off. He denies that constable Moloi saw him at the scene and that he shot at constable Moloi. He stated he never attended any identification parade after this incident and that the first time constable Moloi identified him was here in court on the 18th of April 2017. At the time constable Moloi saw him sitting in the dock, he was together with an indian man, a white man, two black men and himself and accused 1. He met accused 1 for the first time at the Boksburg court. He stated his full name is Siphamandla Mpiliseni and people call him “Mpili”. He stated that the version given by lieutenant colonel Siphungo that the previous week a member of his own family approached lieutenant colonel Siphungo referring to accused 2 as “Mfanomncane” is a lie.
[44] During cross-examination he stated that he grew up in Kwamaphumulo. He stated that what he told captain Nxumalo and what is noted in exhibit “LL” is indeed what he told him. He knew what crimes he was allegedly charged with at the time of his arrest. He stated that he confessed to being part of the robbery at Cash Crusaders because the police had shown him a video footage and had tortured him. He stated that from the questions the police asked him, he made up this confession so that the police would stop assaulting him. On a question from the State advocate how it is that the police knew the name “Tshabalala” and how it is possible that the police knew that accused 2 and Tshabalala had bought an AK 47, accused 2 answered this by saying “the police showed me a person in the video footage and this person was holding a firearm and the police were alleging it was me and they asked me where I got the firearm from and I had to make up a story so the police could stop assaulting me.” Accused 2 stated that the names referred to in exhibit “LL”, namely, “Phumlane Tshabalala” and “Thokosane Khanyile” were all made up. On a question from the State advocate if he made up all these names, why did he not make up names for the 3 Zimbabwean nationals, accused 2 answered this by saying “I had run out of names to give the police”. Yet on the next question by the State advocate namely, if he had run out of names why in the very next paragraph, namely paragraph 4 of exhibit “LL” did he mention Thokozane Khanyile, to which accused 2 stated “I was just mentioning a name as I had already been tortured so I mentioned any name to prevent further torturing and assaults”. He stated that it was constable Cele who wanted him to admit that he was shot at the scene. Accused 2 stated he was never at the scene, and has never touched a firearm and neither is his name Mfanomncane . Accused 2 stated that it was the police who were telling him what firearms were used at the scene. On a question from the State advocate namely, “how did you know they were AK 47 and 9mm’s”, accused 2 answered “About the AK 47 the police according to the video were alleging I’m the one in the video and they said I have the AK 47 and they asked me where are those people”. On a further question from the State advocate namely, “Why do you in your statement to Nxumalo distinguish and say 9mm pistols”, accused 2 answered “That is what I heard from the police”. Of the 7 police officers telling him all this information it was constable Cele, sergeant Dhlame and sergeant Pheme. When asked how he memorized everything that appears in his statement, accused 2 stated that he mentioned what he saw in the footage at Brixton which was shown to him by constable Cele as well as from the questions he was asked. On his way to Kgagiso he was also shown a photo on the cell phone which depicted a car dark in colour and constable Cele informed him it was a Nissan Levina. He was also asked about an Audi and informed that at the scene there was an Audi A4 involved. He cannot remember who told him about the Audi. When the State advocate confronted him with the fact that it was him who ran and who had the AK 47 and who shot at the police, accused 2 that it is all a lie. Accused 1 stated that although constable Moloi saw him in court and recognised it is all a lie as there was another indian male and white male present on the bench as well, together with himself, accused 1 and 2 other black men.
[45] Accused two then called two further witnesses, namely, Sihle Khanyiseni Mpungose and Thando Linkosi Sibisi.
[46] Sihle Khanyiseni Mpungose testified that he knows accused 2, he is his cousin. He had attended court 3 times. He refers to accused 2 as “Mpili”. He stated that when he was at court on the 14th of July 2017, there was also another friend of accused 2 and his wife Mashia. When he arrived he found two other gentlemen outside and he said he came to see “Mpili”. They then asked him “who” and he just kept quiet and came into court. One of the gentlemen testified in court and the other one waited outside. The one who testified in court referred to accused 2 at Mfanomncane. During cross-examination this person stated that “Mpili” is not Mfanomncane. On a question by the State as to who did he think the man was referring to when he referred to the name Mfanomncane, this witness stated “I do not know”.
[47] The witness Thando Linkosi Sibisi testified that he knows accused 2 from the Bree Street taxi rank as he was a queue marshall there and accused 2 washed cars there. He too had attended court 2 times before. He stated that when he came to court on the previous Friday he was with Cempilo Xulu and at court he came across 3 men. One of the men he pointed out, was the investigating officer sergeant Jansen, he was unsure who the other person was. The man who testified the previous Friday, who this court accepts is lieutenant colonel Siphungo, asked him who he was going to see and he answered Nkululeko. The man then asked them who is Nkululeko and they said Nkululeko is with Mpili. He was asked who is Mpili and where Mpili comes from and this witness answered he comes from Kwamapumulo. This witness stated he knows accused 2 by the name Mpili. He heard the name Mfanonmcane for the first time in court. During cross-examination he stated he has known accused 2 since 2013 or 2014.
EVALUATION
[48] Constable Moloi was an honest witness. There are concerns with his evidence in that in his statement marked exhibit “R” he said he would not be able to identify the man who fired the AK 47 and then he stated in court that he saw accused 2 in court and identified him. The fact that he could identify this man from his broad nose and red top with a hoody with the words “Uzzi” written on it, is not in his statement. However, as to the rest of his evidence he appeared an honest witness. During cross-examination he was adamant that he saw accused 2 on the pointing the AK47 at him and firing shots. He did not hide the fact that he had said in his statement he could not identify anyone. It is also not his fault that the investigating officer never put accused 2 on an identification parade, because the possibility may have arisen that constable Moloi may have identified him sooner at the identification parade. This court will deal with constable Moloi’s evidence in more depth later in this judgment.
[49] Celokuhle Tshabalala was an honest witness. There was no attempt by this witness to falsely incriminate any of the accused. She did not identify anyone at the identification parade and never identified anyone in court. Her evidence was filled with a lot of detail.
She remembered the bags the two men entered with, namely the man with the red hoody putting the goods into a Shangani bag. She remembered the man with the brown leather jacket had a moustache and beard and his hair was cut very short. The beard was going along the base of the chin going up the base of the cheeks. Her evidence remained undisputed. This witness impressed this court. Even though she did not point out accused 1 at the identity parade, the description of the beard and short hair of the man wearing the brown leather jacket is almost identical to the control picture of accused 1 exhibit “J” photo 12. Accused 1 in that photo, which was taken shortly after his arrest has a beard going right up to the cheeks and he has shaven short hair. There is definitely no chance she saw this photo of accused 1 which is marked exhibit “J” photo12, prior to testifying, because otherwise, she would have immediately pointed out accused 1 in court. This suggests she based all her observations on her memory of the man wearing the leather jacket, which this court must state was very detailed. This man was also the only perpetrator not wearing a hoody.
[50] Jabulani Gunette Mbuyisa did not impress this court, he allegedly observed the man who came in last and who was carrying a bag for a few seconds. His version that he could not point out the correct person because there were too many people on the parade, or that he was scared, is not satisfactory to this court. It is clear from the identification form that he was calm when he pointed out number 6 on the parade and that there was glass between himself and the people on the line up. Accordingly, there is no excuse for him not to have pointed the right person. It was a clear mistake. If he made a mistake pointing out a wrong person one month after the incident, his evidence regarding the identification of accused 1 almost two years after the incident, in the dock, should be regarded as highly unreliable. He also contradicts Celokuhle Tshabalala by saying the man who came in last had a tshangaan bag, as compared to the evidence of Celokuhle Tshabalala who says the man who came in last had a red and black bag. One interesting fact that has arisen and that corroborates the evidence of Celokuhle Tshabalala is that Jabulani Gunette Mbuyisa recalls that accused 1 before court had shorter hair on the 29th of July 2015 and that his beard was also much shorter than when he testified in court. However, due to the unsatisfactory nature of his evidence, this Court cannot regard his evidence in totality as trustworthy.
[51] Lamulani Ndlovu impressed this court. He stated that he observed the vehicle that accused 1 was driving on the 15th of July 2015, namely the Nissan Livina, from 7 in the evening until around 9 in the evening. He therefore had a long time to observe this car. He did not attempt to fabricate evidence as he said he did not know the registration number of the vehicle. He was very clear in his evidence that when he started knowing accused 1, accused 1 was driving a silver Toyota Yaris, however, he had sold that car. This witness was adamant that he only saw accused 1 driving this Nissan Livina. He was an honest witness. He stated, the day accused 1 was arrested, accused 1 was driving a Polo. This witness was very clear in his evidence and was able to differentiate between the Toyota Yaris, the Nissan Livina and the Polo. He was adamant during cross-examination that he never saw accused 1 driving a lime coloured Nissan Tiida. He was also adamant during cross-examination that he did enter this Nissan Livina on the 15th of July 2015 and that this car belonged to accused 1.
[52] The witness Bhekinpilo Siwela also impressed the court, he was honest in saying he could not make out the make of the car as he did not take much notice of the car accused 1 drove in, however, he was certain it was silver in colour and not lime coloured.
[53] The witness Dirk van Eeden impressed this court. The process he used to compare the face of accused to exhibit “K2” is internationally accepted by the Facial Indentification Working Group. It is noteworthy to point out that he only analysed the photos of accsued 1. If he wanted to falsely implicate accused 2, who was allegedly the man wearing the red top with the word “Uzzi” written on it, and who appears in photos 1, 2,8,14,15,16,17, and 18 of exhibit “K2”, then he could easily have also compared accused 2, however he did not do this. This shows to this court that he approached this task of comparison very carefully and only compared what he could compare with certainty. There is a report from Captain Henrico Pieter Visser, namely exhibit “V”, that states that due to the poor quality and lighting from which the images were taken from the CCTV footage he was unable to do any comparisons. The statement of captain Visser was handed up by consent and marked as exhibit “V”. It is a section 212 statement, of which the contents are prima facie proof of the issue, and become conclusive proof as per the evidence of S v Veldhuizen 1982 (3) SA 413 (A), however, the fact remains that warrant officer van Eeden stated, he only used the images from exhibit “K2” and not the images from exhibit “L2”. Warrant officer Van Eeden expressly stated he did not use the images in exhibit “L2” because the images of the faces in exhibit “L2” were not so clear. In the absence of Captain Visser testifying, this court cannot say if Captain Visser referred only to exhibit “L2” and that this is the reason why he could not compile his report. This court is not certain if the images and video footage depicted on “K2” were also shown to Captain Visser. This courts substantiates this by comparing the following evidence bags received by warrant officer van Eeden as compared to those received by Captain Visser. The bag received by warrant officer van Eeden on exhibit “M” included the evidence bags marked PA5002030581, PA5002034952, PA5002030582 and PA5002034951. In comparison, the evidence bag received by captain Visser on exhibit “V” at page 2 of the report was marked PW3000247411. This is clearly a different evidence bag as it does not begin with the letters PA.
[54] Warrant officer van Eeden clearly pointed the 10 points of similarity on accused 1’s face when accused 1 approached him at the witness bench, so that he could point out these points to the court. This court could understand why he found points 1, 2, 3, 4, 6, 8, 9 and 10, however, points 5 and 7 were less visible to this court. This court did not see the middle line which warrant officer van Eeden stated was visible on the lip of the man depicted in photo 7, however, this aspect was not included in his report and the court has not taken cognisance of it. The fact that this court could not clearly see the points 5, 7 and the middle line to the lip, is not material, as warrant officer Van Eeden stated, there is no set amount of similarities that need to be pointed out, one similarity would be enough. This court understood why he reached the similarities in respect to points 1,2,3,4,6,8,9, and 10 as this court saw these similarities as well.
[55] Lieutenant colonel Siphungo impressed this court. This court will later deal with his evidence when the court considers the probabilities of this case. He was adamant the first time he testified in the trial within a trial against accused 1, that accused 1 referred to accused 2 as Mfanomncane. He maintained this version once again when he was called in the main trial.
PROBABILITIES
[56] It is trite law that the State must prove its case beyond reasonable doubt and if the accused’s version is reasonably possibly true they are entitled to their acquittals.[i]
[57] The onus rests upon the State in a criminal case to prove the guilt of the accused beyond reasonable doubt ─ not beyond all shadow of a doubt.[ii]
[58] In evaluating the evidence presented, the court must not decide the matter in a piece meal fashion but the court should consider all the evidence presented. Courts are warned to guard against the tendency to focus too intensely on separate and individual components of evidence and viewing each component in isolation.[iii]
[59] The court must also apply its mind not only to the merits or demerits of the State and the defence witnesses but also to the probabilities of the case.[iv]
[60] It is respectfully submitted that all that is expected from an accused person is to provide the trial court with a reasonable possible explanation with little or no improbabilities. An accused version must be reconcilable with the facts of the case.[v]
PROBLEMS IN THE STATE CASE
[61] Accused 1 was pointed out in court by Jabulani Mbuyisa, when it is clear this witness attended an identification parade where accused 1 was present and failed to point him out. Accordingly, this court has placed little emphasis on his evidence. Although he may be regarded as an honest witness, the reliability of his identification of accused 1 in court, but not at the identification parade, is not trustworthy.
[62] The next problem is that constable Moloi said in his statement that he would not be able to identify anyone, yet in court he identified accused 2. The fact he made his statement 2 months after the incident, he couldn’t still have been in shock anymore. This court has to then approach his evidence with caution too. He never said in his statement that the person was wearing a red top with “Uzzi” written on it. The court has to ask itself, did he recall this word “UZZI” from seeing the video footage later or did he recall it from the actual day. He also could not remember any other distinguishing features of the man who fired the AK47, who he alleges is accused 2, except that he had a broad nose. In considering his evidence this court must state that it is not the first time that witnesses have recalled more events after the incident happened. In the case of S v Bruinders & 'n ander 1998 (2) SACR 432 (E) the court held that, “…It was not the purpose of such an affidavit to anticipate the witness's evidence in court, and it was absurd to expect of a witness to furnish precisely the same account in his statement as he would in his evidence in open court.”
[63] It is on this premise that this court has, considered his evidence with caution. The following aspects were considered; namely;
(1) the fact that he saw accused 2 with 5 other men in the dock, irrespective of what colour the men were, there were 5 other men constable Moloi could have identified on the dock and he only chose accused 2.
(2) This court has looked at the video footage and from the video footage, although one can see that one of the men is wearing a red top with a hoody and the words “UZZI” written on it, one cannot clearly see the face of the man wearing this top.
(3) The fact that constable Moloi identified one of these 6 men that were in the dock, tells this court that something must have sparked a memory for this witness.
(4) If he was unsure and was wanting to merely help the State to make their case stronger he could also have fabricated his evidence further by stating that he also saw accused 1 on the day, however, he did not do this.
(5) This court finds it highly unlikely that he was shown a video or photos, because, if the police wanted to falsely implicate both accused 1 and 2, they could easily have shown the video and photos to all the witnesses who worked at Cash Crusaders and they would then all have identified accused 1 and 2. The fact that none of the witnesses were able to identify any of the accused, confirms to this court that there has not been any mishandling of this case or unnecessary false accusations made.
(6) This court has to bear in mind that constable Moloi was after all the closest to the perpetrator that fired the alleged AK47. Even though he may have omitted to say certain things in his statement, he is after all a policemen with 7 years experience and is surely aware of the consequences of perjury and fabricating false evidence.
[64] This court notes that accused 1 was put on the identification parade held on the 27th of August 2015. Accused 2 was not at this identification parade, as he was only arrested on the 21st of September 2015. This does not condone the negligence of the police in not holding another identification parade for accused 2, however, it explains why he was not at the identification parade held on the 27th of August 2015 which constable Moloi attended.
[65] The following factors relevant to the evaluation of evidence of identification have been highlighted by our courts; namely, (1) the period of observation, (2) whether the identifying witness was a single witness, (3) whether the identifying witness’s attention during the incident was probably directed away from the suspect, (4) the proximity of the persons, (5) the visibility or state of light, and (6) the angle of observation, or prior opportunity of observation or any prior observation or the presence or absence of noticeable physical or facial features or marks.
[66] In S v Mthetwa 1972 (3) SA 766 at p.768 it was stated “Because of the fallibility of human observation, evidence of identification is approached by the courts with caution. It is not enough for the identifying witness to be honest, the reliability of his observation must be tested”.
[67] In R v Masemang 1950 (2) SA 488 (A) at p.493 it was held “The positive assurance with which an honest witness will sometimes swear to the identity of an accused person is in itself no guarantee of the correctness of that evidence”.
[68] Dock identification is not the most ideal type of identification. It usually has very little evidential value as the accused is in the dock and is the person who the witness will naturally look at. However as stated in the case of S v Tandwa and Others 2008 (1) SACR 613 (SCA) at p, 653 it was held that; “Dock identification unless sourced in an independent preceding identification carries little weight. There is clearly a danger that a person might make an identification in court because simply by seeing the offender in the dock he had become convinced that he is the offender.” This case states that unless the identification was sourced in an independent preceding identification is carries little weight. That means the identification can still be found to be reliable if it is sourced in an independent preceding identification. In the case of Mdlongwa v The State 2010 (2) SACR 419 (SCA) it was found that “…there is no rule of law that dock identification must be discounted altogether, especially where it does not stand alone”.
[69] Dock identification should be evaluated in the same manner as all the evidence regarding identification, namely, with caution. Weight to be attached to such evidence depends on circumstances in an individual case and on the evaluation of the totality of the evidence, with the usual cautionary rules being applied.
[70] Even if a witnesses were not able to describe the accused, or notice certain or specific characteristics of the accused, the absence thereof is not fatal to their identification of the accused.[vi]
[71] When dealing with evidence regarding identity it is the duty of the Court to distinguish between the reliability and the credibility of the tendered identifying evidence. The honesty and conviction of a witness must never influence the separate investigation into the reliability of the identification made. The court must also take into account the identifying witness’ ability to observe as well as the witness’ recollection of the incident.[vii]
[72] In this case, constable Moloi saw accused 2 independently prior to seeing him in court. If photos and a video footage were shown to him he had two months prior to writing his statement to say he could identify accused 2, however, he did not do this. This court has considered that constable Moloi is a single witness and that his evidence should be treated with caution, however taking into consideration all the shortcomings of his evidence, this court accepts that he is honest and that his observation in court was credible, reliable and trustworthy. Even although the dock identification took place a long time after the event, there is no logical explanation to this court why he pointed accused 2, except that he remembered him from the day the incident occurred.
[73] Even if this court is wrong in this respect, the evidence of constable Moloi is not the only evidence implicating accused 2. This court must still consider the probability of accused 2’s evidence with the totality of all the evidence presented in this case, including the evidence of all the State witnesses and the defence witnesses and then determine whether the evidence of the accused is reasonably possibly true and probable.
[74] The version of accused 1.
The version of accused 1 must be considered in light of the following; namely, there are 4 crucial factors that this court must consider and these are;
(1) evidence of a facial expert stating that it is accused 1 on the CCTV footage,
(2) evidence of Lamulani Ndlovu who states he knew accused 1 drove the Nissan Livina which was found abandoned after the robbery and murder, containing items stolen from Cash Crusaders, and
(3) the contents of a statement where accused implicates himself in the incident that occurred at cash crusaders on the 29th of July 2015.
In addition to these 3 aspects, the court will consider
(4) the probabilities of his version with reference to the totality of the evidence presented in this case.
(1) evidence of a facial expert stating that it is accused 1 on the CCTV footage
Warrant Officer van Eeden analysed the still images of the CCTV footage recorded at Cash Crusaders during the robbery and compared them with photos taken of accused 1 after his arrest in order to do a facial comparison. Ten (10) points of similarity, between the photographs of accused 1 exhibit “J” photo 9 - 12 and the person appearing in the video footage exhibit “K2” were found.
His findings of points of similarities and the absence of dissimilarities allowed him to conclude that the person appearing in the CCTV footage was indeed accused 1.
Although Counsel for the accused handed in an affidavit by Captain Henrico Visser, namely, exhibit “V”, the defence failed to call Captain Henrico Visser and in light of the reasons as expressed at paragraph [53] supra, warrant officer van Eeden’s evidence remains undisputed. This court viewed the CCTV footage in court as well as exhibit “K2” and this court finds there was sufficient clarity for warrant officer van Eeden to make his findings. Warrant officer van Eeden is an expert witness possessing knowledge in a specialized field and whose function he exercised to assist this court. The evidence of warrant officer van Eeden was direct and factual in nature where he personally and objectively ascertained certain facts by applying his knowledge, experience and expertise. His evidence also comprised of opinion evidence which he interpreted and explained to this court. This court finds the evidence of warrant officer Van Eeden as being very strong evidence and finds that his conclusions are to be regarded as trustworthy and accurate. The State argued that if one looks at the brown leather jacket worn by accused 1, after his arrest as seen in exhibit “J” photos 9 – 12, and compares it to the jacket worn by the driver of the Nissan Livina on the 29th of July 2015 is one and the same jacket as depicted on photos 14,15,and 22 of exhibit “K2”. This court can merely state there is a similarity between the two leather jackets, however, in the absence of any comparisons being made by warrant officer van Eeden this court cannot with certainty state that it is the same jacket.
(2) evidence of Lamlani Ndlovu who states he knew accused 1 drove the Nissan Levina
During his evidence in chief, accused 1 could not think of a reason why Lamulani Ndlovu would say he had seen him driving a Nissan Livina, except for possibly putting all the blame on him. The accused’s version that Lamulani Ndlovu merely stated the grey Nissan was accused 1’s car merely to clear his name is unlikely. Lamulani Ndlovu could have pointed out anyone he wanted. The reason why he pointed out accused 1 is because he was certain of this fact. This is corroborated by Bhekinpilo Siwela, who also states he always saw accused 1 driving that car. These are two friends of accused 1, they were also arrested and could have pointed out other people if they
wanted to protect their friend, accused 1. The version of accused 1 also changed, because during cross-examination, it was never put to Lamulani Ndlovu that accused 1 possibly drove a lime coloured car. This was only put to Bhekinpilo Siwela. Although Lamulani Ndlovu and Bhekimpilo Siwela contradicted themselves as to whether they were outside or inside the vehicle accused 1 was driving on the 15th of July 2015 or whether they were leaning against, it is not a material contradiction to reject either of their evidence. Although he stated that he only used to drive the Toyota Yaris or the Nissan Tiida, he admitted that on the day of his arrest he was driving his uncle in law’s car which was a silver polo, because the Toyota Yaris had been sold. This court has considered the fact that there were no fingerprints of accused 1 found on the grey Nissan Livina, however, as stated by Celokhuhle Tshabalala, the person with the brown leather jacket had gloves on. Celokhuhle Tshabalala testified about a lot of detail she saw on the said day. Her evidence was not disputed. There was no reason for Celokhuhle Tshabalala having mentioned the gloves she observed unless she indeed saw them. She could easily have implicated accused 1 and 2 falsely if she wanted to, yet she did not. This court believes her and this explains why no fingerprints of accused 1 were found in the Nissan Livina.
(3) the contents of a statement where accused 1 implicates himself
Before this court considers the statement made by accused 1, it is important to determine whether it is a confession or not. The learned authors D.T Zeffertt and A.P Paizes in The South African Law of Evidence[viii] state that “In order to determine whether a statement amounts to a confession, it must be looked at in its entirety; this does not signify the bare words in it, but extends to what the words necessarily imply.” And further at page 525, “The logical conclusion from these cases is that in crimes which require mens rea, an account by the accused of his actions, however detailed and damning, will hardly ever amount to a confession – unless there be something in the surrounding circumstances to indicate that what was said amounted to an unequivocal admission of guilt, and unless, taking the statement as a whole, the necessary implication is that he confessed”.
When this court, ruled the contents of exhibit “Z” as admissible, this court did not know what the contents of exhibit “Z” were. Counsel appearing on behalf of the accused later submitted that the contents of the confession made by accused 1 were not relevant to the charges as it was referring to another incident. This court notes at no stage was the relevance of this statement made by accused 1, ever attacked.
This court finds the contents of the statement made by accused 1 as indeed relevant to the case at hand. The contents of exhibit “BB” should not be read in isolation but should be read in conjunction with Exhibit “Z”.
In considering whether this statement is indeed a confession, this court has looked at the wording used in exhibit “Z” and exhibit “BB” to ascertain whether in looking at the surrounding circumstances the necessary implication can be derived from the words used that they amount to an unequivocal admission of guilt.
In exhibit “Z” at page 3 paragraph 7.1 it is stated that;
“The police arrested me in the street and they asked me about these case of two robberies where two police were killed.” If one looks at the content, although only one policeman was killed, the fact that there was a murder and robbery correlates closely to the facts of this case.
In exhibit “Z” at page 3 paragraph 11.1 in respect to the question posed namely “As you are still prepared to make a statement, I would like to know your source of information regarding the proposed statement you wish to make”; and the answer given by accused 1 was “The source is myself as I was present in both scene.” If one looks at the facts in this case, even though the evidence of Mr Mbuyisa was regarded as untrustworthy where he recognised accused 1 as being at the scene, the fact remains that warrant officer van Eeden states the person he compared on exhibit “K2” being the CCTV footage was the same person, therefore by implication it supports the fact that accused 1 was present at the scene where the robbery and murder occurred.
In exhibit “BB” at paragraph 1 – 10, which relates to accused 1’s involvement in another armed robbery where firearms were used and a police officer was killed, it is noted at paragraph 10 that “Again we did another robbery at Phosloorus. I am not sure but this year.” This correlates closely to the proven facts in this case implying he was aware of a robbery that occurred at Vosloorus and the fact that this robbery occurred on the 29th of July 2015 and the statement was taken on the 19th of August 2015, the wording used namely “this year” implies the year of the robbery was 2015 as well.
In exhibit “BB” at paragraph 10, the statement mentions “I was called by b/male Mfanomnane ….. He told me to meet at Doornfontein.”, and further at paragraph 17 the statement mentions “I kept on calling Mfanomname….. went to meet him at Doornfontein”. All this correlates closely with the proven facts, as according to lieutenant colonel Siphungu accused 2 was known as Mfanomncane, and according to accused 2 he stayed at Doornfontein.
In exhibit “BB” at paragraph 12 the statement mentions “I drove to Doornfontein and pickup another man called Mazwi, Mfanomnane and three unknown males. I saw Thabang and Mfanomnane were in possession of sportsbag and I suspected that they were in possession of big firearms.” This once again correlates with the facts in that according to exhibit “E" paragraph 5.1 and 5.2 different firearms were used to fire the 7.62 x 39mm and 9mm cartridges found at the scene in the parking area at Cash Crusaders Vosloorus. According to lieutenant colonel Siphungu accused 2 was known as Mfanomncane and according to constable Moloi he saw accused 2 had an AK47 and had fired shots at him.
In exhibit “BB” at paragraph 13 the statement indicates “Mfanomnane is the one who was pointing where are we going. He directed me until we reach Phosloorus but when we left Braamfontein he told me that we are going to Spruitview. I don’t know whether he did not know the place.” This once again correlates with the proven facts and implies accused 1 had knowledge as according to the evidence of lieutenant colonel Siphungu and exhibit “NN”, Spruitview is in close proximity to Vosloorus. The mall is on the road if one takes the Leondale Spruitview off-ramp on the N3 from Johannesburg.
In exhibit “BB” at paragraph 14 the statement states “He told me to drop them outside the mall……..that mall. They indicated that I must wait for them…..They showed me the place where I must wait for them and it not the place I drop them.” This correlates to the facts in this case, in that accused 1 was the driver of the get-away vehicle. Accused 1 only arrived at Cash Crusaders as the other robbers had already entered the shop. In addition, accused 1 did not drop the robbers in front of Cash Crusaders where he later collected them during the robbery. The only mall in Vosloorus is the Chris Hani Mall.
In exhibit “BB” at paragraph 15 the statement states that “I was told by them that they are they are going to rob the cash loan place.” This correlates to the facts in this case, in that, Cash Crusaders is a cash loan place as it trades in buying used goods and pawning items.
In exhibit “BB” at paragraph 17 the statement states “told me that there was a fight between them and the police as the result they never got anything”. This correlates with the facts in this case, in that there was a fight between the armed robbers and the police, and as a result of the shoot-out most of the robbed items remained behind in the Nissan Levina and at the parking area in front of Cash Crusaders. This is confirmed by Celokuhle Tshabalala as well as exhibit “C” photos 223 to 238 and exhibit “D” photos 42 to 79.
In exhibit “BB” at paragraph 18 the statement states “… there was a policeman that was shot. He just told me that they were fighting.” This correlates with the facts in this case, in that the deceased was killed during a shoot-out with the group of armed robbers as seen on exhibit C, exhibit 1 and exhibit 2.
[75] From the contents of exhibit “Z” and exhibit “BB” it is clear that accused 1 knew that he transported a group of armed robbers to rob the cash loan business. Accused 1 clearly associated himself with the actions of this group of robbers as well as the firearms that were used during the robbery. Although he tried to distance himself by alleging disassociation, it is clear that the contents of exhibit “Z” and “BB” amounts to a confession.
[76] It is true that there are some exculpatory aspects referred to this this confession, however as stated in the case of S v Felix and Another 1980 (4) SA 604(A); at 610 “The Court was not obliged to believe everything that was said in these confessions, but, once these confessions were accepted for the purpose of conviction, it was necessary to consider what weight, if any, should be given to the statements …”
The remarks of BEADLE CJ in the case of S v Tovakepi 1973 (1) SA 694 (RA) at 695 are apposite in that "The Court must give careful attention to everything that is said in a confession, if that confession is to be relied on at all in convicting an accused, but if it considers that the exculpatory portions of the confessions or those portions of the confession which deal with extenuating circumstances are untrue for one reason or another, it is perfectly within its rights to reject those parts of the confession which are favourable to the accused, while accepting those parts which are not.”
[77] As stated in the case of Rex v Valachia and Another 1945 AD p.826, it was held the court is entitled to attach less weight to those parts of the statement favourable to its maker.
[78] In the case of S v Nduli and Others 1993 (2) SACR 501 (A), the learned Nienaber JA relying on the rule in the case of Valachia supra , said; “A statement made by a man against his own interests generally speaking has the intrinsic ring of truth; but his exculpatory explanations and excuses may well strike a false note and should be treated with a measure of distrust as being unsworn, unconfirmed, untested and self-serving.”
[79] In the case of S v Yende 1987 (3) SA 367 (A), the Appellate Division held that if the facts which the accused admits amount to a clear admission of guilt, it does not matter that in making the statement the accused acted exculpatorily. It would be unrealistic to regard a statement which otherwise amounts to a confession as not amounting to such, merely because the person making the statement does not intend it as a confession. The application of an objective standard does not mean, however, that all subjective factors have to be left out of account. The state of mind or intention of the person making the statement will sometimes be taken into account as one of the surrounding circumstances from which the objective meaning of his statement can be ascertained. In many cases the precise meaning of a statement can only be ascertained against the background of the prevailing circumstances. Surrounding circumstances can therefore be taken into account, but only those circumstances which put the statement in its proper setting and which help to ascertain the true meaning of the words used. The Appellate Division, in the Yende case supra, approved the statement by Greenberg J in R v Kant 1933 WLD 128 at 129-130 that 'the test is not whether the accused intends to admit that he is guilty, but whether he intends to admit facts which make him guilty, whether he realises it or not'.
[80] This court finds that the exculpatory portions of exhibit “Z” and exhibit “BB” should be rejected as false as it does not correspond with the totality of evidence presented in this case.
[81] (4) the probabilities of accused 1’s version with reference to the totality of the evidence
The version of accused 1 that the State advocate told Jabulani Mbuyisa to say he saw accused 1 driving the grey Nissan vehicle is not reasonably true and is rejected by this court as false, because if that is the case then surely the State advocate would have told constable Moloi, Celakuhle Tshabalala, Mr Leroy Mabitsela and Naphtal Sithole to also say they saw him driving the same car. This is not the case as none of the four later mentioned witnesses said this.
Accused 1 states that all the information included in the confession is derived from the police officers who asked him certain questions, and on the basis of the questions asked, he narrated this confession to them. The court rejects this as false and not reasonably possibly true. This courts reasons are as follows:
1. The accused was arrested for the Vosloorus murder and armed robbery charges committed in 2015, there would be no need for the police to ask him questions about another robbery committed in 2013 or 2014.
2. This court finds it highly unlikely that the police would ask him questions and the accused would be able to memorise 5 pages based on the questions asked and recall with clarity various names, places, different makes of firearms used and vehicles driven.
3. If the police were suspecting him of having shot the policemen, and they were asking him questions about the death of the policemen, then surely the police would have wanted him to write down that he had shot the policeman as well, yet he did not narrate this.
4. On a question from the State advocate whether the police had asked him questions about the 2014 matter, the accused answered “I do not know about that police officer in 2014, but everything written here is what they were asking me about and saying they were arresting me for.” If the police did not ask him about the 2014 matter, there would be no reason for accused 1 to have mentioned it.
5. If accused 1 was arrested for this Vosloorus matter, then this court would have expected the police, as per accused 1’s version to have put all the necessary words into his mouth regarding this matter, yet, from accused 1’s confession, he merely states that he drove these people to the mall, which was unknown, and he had no further knowledge of what happened there, or that a policeman was shot. Although this court has already dealt with the exclusion of the exculpatory statements in accused 1’s confession, it is important to note that if he had been asked questions, and the police were insisting, especially lieutenant colonel Siphungo that he confess, then surely accused 1 would have said that (i) he drove the Nissan Livina and parked it at the entrance to Cash Crusaders and entered the shop, (ii) he knew exactly what was being planned and participated in the planning and execution of this robbery, (iii) that he participated in loading the goods stolen into the Nissan Livina, (iv) that he heard the cross fire when the police arrived and that he drove off.
This the accused did not admit.
6. Accused 1 stated that photos depicting people carrying firearms were shown to him. If that is the case then accused 1 would not have said at paragraph 12 of exhibit “BB” that “I suspected that they were in possession of big firearms”, he would have said that he definitely saw men carrying various firearms.
7. There is no way that the police would know that accused 1 was to meet Mfanomncane in Doornfontein, as per paragraph 10 of exhibit “BB”, unless accused 1 knew this himself. The crime was not committed in Doornfontein, so the police would not have known what the significance of Doornfontein was.
8. There is no way that the police knew the friends of accused 1, namely Thabang, and Sipho, mentioned in accused 1’s confession, unless accused 1 mentioned them.
9. Accused 1 stated that in respect to “the names [mentioned in exhibit “BB”are]…the police asked me” [My emphasis]. If this is the case, then this means the police also suspected these other men called Thabang and Sipho, yet these other people were not arrested. This court finds accused 1 mentioned them out of his own volition because they were also involved in the Vosloorus matter and not because the police questioned him about them.
10.Accused 1’s version that luitenant colonel Siphungo told accused 1 what he had to say in the confession was never put to Colonel Siphungo. This new version of being told what to say was created after the trial within a trial and is a recent fabrication.
11.Accused 1 stated during his cross-examination that he is not familiar with the area “Spruitview”, yet he mentioned this place in his statement. He later stated he could not remember everything he wrote down. At paragraph 13 of exhibit “BB” he stated, “we left Braamfontein …going to Spruitview…”. If he was not familiar with Spruitview, there is no way he would recall all the places unless he visited them himself. This court finds it is more probable that accused 1 was the driver on the said day of the robbery at Vosloorus and that he drove the Nissan Levina to the scene of this crime.
[82] Accused 1’s version of not driving the Nissan Livina on the 15th of July 2015 is rejected by this court as false and not reasonably possibly true. From the evidence of Lamlani Ndlovu it is clear that there were other people standing around this Nissan Livina on the 15th of July 2015, namely, Sabelo Masuku, Lucas Ndlovu and Douglas Moyo who could have corroborated whether accused 1 was in fact driving a Nissan Livina or not. If accused 1 wanted to, he could easily have called these 3 other men to corroborate his version, yet he did not. No attempt was even made to trace them, which suggests to this court that possibly accused 1 did not want to call these 3 men as they may have corroborated Lamulani Ndlovu and Bhekimpilo Siwela.
[83] Accused 1’s version of not knowing accused 2 is rejected by this court as false and not reasonably possibly true. There is no way the police could have known where to trace accused 2 unless accused 1 told them about accused 2. There was no clear CCTV video footage showing accused 2, so there is no way the police could have known accused 2 was involved unless someone told them. The evidence of lieutenant colonel Siphungo that accused 1 told him about accused 2 is regarded as the truth.
[84] No alibi for accused 1
Although there is no duty for an accused to call an alibi, this court finds it strange that no attempt was made by accused 1 to ascertain with certainty where he was on the 29th of July 2015. He did not approach the owner of the vehicle he was driving to get some idea where he was on the said day. He didn’t call his wife. If accused 1 was at home sleeping, as per the version put to Jabulani Mbuyisa, (as he had been working from 12pm until 3-4am), then surely his wife would recall that. This court notes he was arrested on the 20th of August 2015, which was less than a month after the incident occurred. Since then, and 2 years later, this court finds it odd that he made no attempts as far back as August 2015 to re-trace his steps on the day of the 29th of July 2015. It is very easy to say he does not remember in 2017 where he was in 2015, as it is so long ago, however, at the time he was arrested, he also did nothing then to retrace his steps. This court finds, he cannot recall, because he is hiding important information from this court and he is not playing open cards with this court. His version of not knowing where he was with certainty on the 29th of July 2015 is rejected as false and not reasonably possibly true.
[85] The witness called by accused 1, namely Sibusiso Dhlamini, did not impress the court. He too could not assist the court as to where accused 1 was on the 29th of July 2015. All he could assist accused 1 with is to state that he never saw accused 1 driving a Nissan Levina motor vehicle. The evidence of Sibusiso Dhlamini is not reliable. This Court’s reasons are as follows;
He was working with accused 1 for many months and knew that accused 1 and he only drove 2 cars. Yet, it is common cause that accused 1 also drove a silver Polo prior to his arrest, yet, Sibusiso Dhlamini never saw accused 1 ever driving this car. The court finds this very strange. If he worked with accused 1 and knew exactly all his movements and which cars he drove, surely he would have seen accused 1 driving a silver Polo. The fact that he can’t even say he ever saw accused 1 driving a silver Polo suggests, that if accused 1 ever drove a Nissan Livina, he would not know that either.
[86] The version of accused 2
The version of accused 2 that he made up the whole confession to prevent being further assaulted is rejected by this court as false and not reasonably possibly true. This courts reasons are as follows;
1. Only a person who was involved in the incident would have had the intimate knowledge of the case and details as contained in the confession made by accused 2.
2. The contents of the confession by accused 2, namely exhibit “FF” and Exhibit “LL” corroborates the version of the State witnesses in that accused 2 admitted that
2.1 the robbery was planned by a group of persons who planned to rob a cell phone, computer shop in Vosloorus,
2.2 that a Nissan Livina and Audi A4 were used to commit the robbery,
2.3 that an AK47 was brought prior to the robbery which was used to fire at the police,
2.4 that some of the robbers were armed with 9mm pistols,
2.5 that he and the others panicked when the police arrived and they started to shoot at the police who in turn returned fire,
2.6 that the robbers managed to escape and no one was arrested that day, and
2.7 that the loot like cell phones and laptops remained at the scene.
3. Accused 2 says he mentioned Phumlane Tshabalala as being present, and 3 Zimbabwean nationals. He did not give the names of the 3 Zimbabwean nationals as, according to his evidence in court, he ran out of names. This aspect of the 3 unknown Zimbabwean nationals is reflected at paragraph 4 of exhibit “LL”. Shortly after mentioning these 3 unknown Zimbabweans, accused 2 mentions further names, namely, “Gatsheni” and Thokozane Khanyile. This version of running out of names is rejected as false and not reasonably possibly true. In fact, accused 2 realised himself during cross-examination his version of running out of names did not make sense, and he later changed his version and said he just mentioned names as he was being tortured.
[87] No alibi called by accused 2
As stated by this court previously, there is no duty on an accused to call an alibi. However, this court does find it strange that accused 2 never called his cousin Sibongeseni Ngubane to confirm that he was at home on the 29th of July 2015, neither did he call any person who may have seen him working at the car wash on the 29th of July 2015. The version put to constable Moloi is that at 07h00 he was at the taxi rank washing cars. The only witnesses called by accused 2 were witnesses who stated that they have never heard accused 2 being called by the name Mnanonmcane.
[88] Accused 2 was arrested on the 18th of August 2015. He too could have attempted to retrace his activities on the 29th of July 2015 when he was arrested. Accused 2 knew he was being arrested for serious crimes of robbery and murder of a policemen, yet no attempts were made to retrace his whereabouts. Here again, this court remarks that it is very easy to say you don’t know what you were doing 2 years ago, however, at the time of accused 2’s arrest it was less than a month before this offence had occurred, so it was clearly much easier for him to recall then where he had been.
[89] It seems accused 2 spent a lot of valuable time instructing his counsel to cover up this issue of him never being called Mfanomncane, yet very little time if at all, was spent on instructing his counsel as to what he actually did on the 29th of July 2015. Accordingly, this court is still in the dark as to accused 2’s movements on the 29th of July 2015, and this Court finds he has deliberately hidden what he did on the 29th of July 2015 and has not played open cards with this Court.
Thando Linkosi Sibisi, who testified on behalf of accused 2, has known accused 2 since 2013 or 2014. This witness is a queue marshall working at the place where accused 2 washed cars. Surely this would have been a perfect witness who could have assisted accused 2 to remember if he indeed was washing cars on the 29th of July 2015, or not. This witness was only called to substantiate the fact that accused 2 is called by the name “Mpili” and not Mfanomncane.
[90] The version of accused 2 that he could not with certainty remember where he was on the 29th of July 2015 is rejected by this court as false and not reasonably possibly true.
[91] The witness of accused 2, namely, Sihle Khanyiseni did not impress this Court. In fact he contradicted himself. In his initial evidence in chief he stated that “I arrived here on Friday and found 2 gentlemen outside. I said I came to see Mpili”. During cross-examination this changed in that he said “No, that is not true, he is the one who asked who I came to see”. The “he” that he is referring to, is lieutenant colonel Siphungo.
The version of Sihle where he says “I did not know when he said Mfanonmncane he was referring to a name, I only heard here in court it is a name”, is not reasonably possibly true. Surely the name Mfanonmncane is a common name.
[92] The witness Thando Linkosi Sibisi did not impress this court. He stated when he arrived at court lieutenant colonel Siphungo asked him who he was going to see and he replied “Nkululeko”. If he was here to support accused 2 it does not make sense why would he say “Nkululeko” (who is accused 1). When cross examined in this regard he gave an answer to the effect that he gave the name “Nkululeko” because “the person most often spoken about is Nkululeko. He is the one more known than the other.” This answer is very strange and makes no sense to this court. Both accused are facing jointly the same 6 counts against them. There is no reason to accept one is more known than the other. The court rejects this version as false.
[93] This court rejects the version of accused 1 and accused 2, that accused 2 is not called Mfanomncane as false and not reasonably possibly true. Lieutenant colonel Siphungo during cross-examination in the first trial within the trial stated “we were pursuing the information of Mfanomncane which is accused 2. Mfanomncane is a Zulu name”. During his cross-examination at no stage was it ever put to lieutenant colonel Siphungo that Mfanomnane was not accused 2. Neither was it ever put to lieutenant colonel Siphungo that the Mfanomncane referred to by accused 1 was another friend of accused 1, and not accused 2. It is clear that both accused 1 and 2 heard this evidence during the trial within a trial, and did not dispute it. This court accepts the version of lieutenant colonel Siphungo as correct for the reasons previously alluded to.
[94] The version of accused 1 and 2 as not being known to each other is rejected as false and not reasonably possibly true. There is sufficient reference to each other in both of their confessions to lead this court to accept that they were indeed known to each other and that they jointly planned to commit this robbery. Although there is no direct evidence showing any communication between the analyses of the cell phones of accused 1 and 2, and also the fact that there was no direct communication between any of the phones owned by either accused 1 and 2 on the 29th of July 2015, this court must state that it is very strange that the cell phones of accused 1 and 2 both share 4 common cell phone numbers, especially if they were not known to each other.
[95] The State’s case is ultimately based on the following:
Against accused 1:
1. Celokuhle Tshabalala describing a man whose beard and hair resembles that of accused 1 on the control photo 12 in exhibit “J”.
2. Identification of accused 1 by a facial comparison expert, warrant officer van Eeden, as being the person depicted in the brown leather jacket on the CCTV footage.
3. Circumstantial evidence by Lamulani Ndlovu that accused 1 was driving the Nissan Livina on the 15th of July 2015 (14 days prior to the incident).
4.The contents of the confession made by accused 1 on exhibit “Z” and exhibit “BB”.
Against Accused 2:
1. A dock identification by constable Moloi of accused 2, being the person who ran towards the marked police vehicle and discharged an AK47 rifle whilst pointing it at him. The evidence of lieutenant colonel Siphungo who states that prior to his last testimony in court friends of accused 2 came to court to listen to the case, and they referred to him as Mfanomncane.
2. The contents of the confession made by accused 2 namely exhibit “FF” and exhibit “LL”.
[96] Considering the above as stated at paragraph [95] supra and considering the probabilities in this case, this court is satisfied that the State has produced sufficient evidence to prove beyond reasonable doubt that accused 1 and 2 were both at Cash Crusaders on the 29th of July 2015 and participated in these crimes for which they have been charged with.
FINDINGS
[97] In respect to count 1 this court finds that both accused were involved in the armed robbery. Both accused 1 and 2 planned this robbery. Firearms were used and it is clear to this court that the robbery falls within the definition of section 1 of Act 51 of 1977. The CCTV footage shows both accused 1 and 2 going into Cash Crusaders. Even though accused 1 and 2 did not wield firearms in the store, the other robbers that were with them did. This court finds the actions of the others can be imputed to both accused 1 and 2, because they were both present at the scene, they were aware of the firearms being pointed towards the complainants, and they shared this common purpose to impose a threat of violence on the victims. Both accused 1 and 2 associated themselves with the actions of the other robbers and this court finds they had the intention in the form of dolus directus to rob these victims. Both accused had no grounds of justification for their actions and accordingly on count 1, both accused 1 and 2 are found guilty of armed robbery as charged.
[98] In respect to count 2 this court finds that both accused were involved in this murder. It is true that it difficult to assess which bullets penetrated the deceased’s body, the fact remains that the cause of death of the deceased, was multiple bullet wounds. Accused 2 was seen firing towards the direction of the deceased and accused 1 was waiting in his car to pick up accused 2. Even though accused 1 did not fire any shots towards the deceased, he waited for accused 2 to finish firing the shots. On the bases of common purpose, this court finds he did associate himself with the actions of accused 1 in firing shots towards the deceased which killed him. Accused 1 was present at the scene, he was aware of the shooting taking place. This court finds accused 2 acted as the main perpetrator and had the intention in the form of dolus directus to kill the deceased. Accused 1 acted as an accomplice and had the intention in the form of dolus eventualis. Neither accused 1 or 2 had any grounds of justification for their actions and this court finds their actions are wrongful.
[99] In respect to count 3, the State has failed to prove that the shot that almost struck the witness Naphal Sithole was intentionally fired at him. The evidence of Naphal Sithole is clear that he only realised the next day that a bullet hole had penetrated the sling door and penetrated the wall. It is possible that the bullet struck the wall after he ran away. Accused 1 and 2 are acquitted on count 3.
[100] In respect to count 4, this court finds that from the contents of the confession of accused 2, the evidence of the witnesses who were present at the scene and the admissions made in terms of section 220 of Act 51 of 1977 in respect to exhibits “E” and “F”, that firearms were indeed used on the 29th of July 2015. Although no firearms were retrieved from accused 1 or 2, the formal admissions made in terms of section 220 of Act 51 of 1977 in respect to the ballistic evidence incorporated in exhibits “E” and “F”, proves that 9mm, 7.62 x 39 mm and .30mm calibre fired cartridges were found at the scene. No admissions were made by accused 1 or 2 that they are in possession of licenses for any firearms so this court finds if they did use any firearms they would be unlicensed firearms. This court is aware of the decision of S v Khambule 2001 (1) SACR 501 (SCA), where the intention of individual members of a group who used the weapons in a robbery was sufficient to prove joint possession by the others who did not possess the firearms during the robbery. This decision was over-ruled by the decision of S v Mbuli 2003 (1) SACR 97 (SCA). However in the case of Ramoba v The State (1301/2016) ZASCA 74 decided on the 1st of June 2017, the learned Mbha JA, (the rest of the court concurring), found at paragraph [19] that even though some of the robbers did not possess the automatic rifle “The fully automatic weapons were clearly possessed by the robbers for themselves and for each other”. This court is accordingly satisfied that the State has proved that the accused unlawfully and intentionally had in their possession a firearm to wit a 9mm parabellum with particulars unknown to the State, a .30mm firearm with further particulars unknown to the State and a firearm with undeterminable calibre with further particulars unknown to the State without holding licenses for any of these firearms.
[101] In respect to count 5 this court finds that the accused had in their possession live rounds of 7.62x39 mm calibre ammunition, live rounds of 9mm calibre ammunition, a live round of .30mm calibre ammunition, and live rounds of an undeterminable calibre ammunition without being the holder of a licence in respect of any firearm capable of discharging that ammunition.
[102] In respect to count 6 this court is not satisfied that the State has proved beyond reasonable doubt that the accused were in possession of a fully automatic firearm commonly known as an AK 47. Although lieutenant colonel Siphungo testified that 7.62x39mm calibre bullets are used in an AK47, and that Jabulani Mbuyisa knows AK47, as well as constable Moloi, no expert evidence was led in this regard. Neither lieutenant colonel Siphungo or constable Moloi are experts in firearms. Accordingly in respect to the main charge on count 6, accused 1 and 2 are acquitted. However, in respect to the alternative count on count 6, which is a contravention of section 120 (10) (b) of Act 60 of 2000, this court finds that the accused did unlawfully possess firearms to wit a 9mm parabellum firearm, a .30mm firearm with further particulars unknown to the State, a firearm with undeterminable calibre with further particulars unknown to the State and a 7.62x39mm calibre firearm with the intent to resist arrest.
[103] This Court has considered the effect of duplication of charges, especially since count 4 also refers to possession of unlicensed firearms, however, section 120 (10) (b) of Act 60 of 2000 specifically refers to the use of such firearms to resist arrest. Apart from possessing the firearms referred to in count 4, accused 2 used his firearm to specifically resist arrest, thereby creating a secondary intention to evade arrest. Accused 1 was part of this and waited for accused 2 to prevent the police from arresting them. Although accused 1 never fired any shots, he was present and associated himself with the actions of accused 2. There are no grounds of justification for the actions of accused 2 who acted with dolus directus to resist arrest. Accused 1 exercised intention in the form of dolus eventualis as he reconciled himself with the fact that if accused 2 was holding off the police, they would all be able to evade arrest. Accordingly, in respect to the alternative count to count 6, both accused 1 and 2 are convicted as charged.
_______________________
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances:
On behalf of the State: Adv Williams
On behalf of the Accused: Adv Johnson
Date Heard: 21 July 2017
Handed down Judgment 27 July 2017
[i] S v Trickett 1973(3) SA 526(T), S v Toubie 2004 (1) SACR 530 (W) and S v Sithole 1999 (1) SACR 585 (W)
[ii] S v Ntsele 1998 (2) SACR 178 (SCA)
[iii] S v Ntsele (supra)
[iv] S v Singh 1975 (1) SA 227 (N), S v Guess 1976 (4) SA 715 (A) and S v Mhlongo 1991 (4) SACR 207 (A)
[v] S v Sithole and Others 1999 (1) SACR 585 (WLD)
[vi] S v Pretorius 1991 (2) SACR 601 (A)
[vii] S v Nango 1990 (2) SACR 450 (A)
[viii] LexisNexis, Durban, p.525