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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CA&R 443/14

Date heard: 10 December 2014

Judgment Delivered: 11 December 2014

In the matter between:

LUCKY MABUTI NDZEKENI...........................................................................................1^st Appellant

THEMBINKOSI VELLEM................................................................................................2^nd Appellant

SISA MALUSI NKOHLA....................................................................................................3^rd Appellant

and

THE STATE.............................................................................................................................Respondent

JUDGMENT

BROOKS AJ:

[1] The three appellants appeared as Accused 2, 3 and 4 in the Regional Court for the Eastern Cape held at East London. Together with accused 1 they were convicted of the attempted robbery (count1) and the murder (count 2) of Abdikader Abdulali Jusef (the deceased) and sentenced accordingly.

[2] The three appellants brought an application for leave to appeal against their convictions and the sentences imposed on them. Leave to appeal was granted against conviction only and the appellants come before this court pursuant thereto.

[3] It is clear from the record and the magistrate’s judgment that the conviction of the three appellants was based upon an acceptance of the evidence of one Masixole Mbexeshe, who had formed part of a group of people who had planned to rob the shop run by the deceased at Toilet City, Duncan Village, known as Cheap-Cheap Supermarket. According to Mbexeshe, the three appellants formed part of that group. In the circumstances, Mbexeshe’s evidence is that of an accomplice.

[4] At the commencement of his evidence and at the request of the prosecution, Mbexeshe was warned by the magistrate in terms of s 204 of the Criminal Procedure Act 51 of 1977. The explanation was full and clearly expressed. The record reveals that in answer to a direct question from the magistrate, Mbexeshe confirmed that he understood the position. He then gave his evidence.

[5] The primary submission on behalf of the appellants is that the magistrate erred in accepting the evidence of Mbexeshe. The reason advanced is that his evidence discloses that he was involved in the planning of the robbery and associated himself with the offenders afterwards.  It was submitted that this admitted involvement with the persons who committed the offences poses the danger that he has a deceptive facility for the convincing description of events wherein he can substitute the appellants for the true culprits. This submission is based on part of the statement by Holmes JA of the dynamics involved in the consideration of the testimony of an accomplice.  See S v Hlapezulu and Others 1965 (4) SA 439 (AD) at 440 C to H. Two other dynamics are expressed in the judgment.  The first is that the witness is a self-confessed criminal. The second is that various considerations may lead such a witness to falsely implicate the accused. These dynamics have been responsible for the development of the rule of evidence which requires a court to approach the evidence of an accomplice with caution.  However, if that evidence is satisfactory in all material respects, nothing militates against it being taken into account in the consideration of whether the State has proved its case against the accused beyond reasonable doubt.

[6] In his evaluation of the evidence given by Mbexeshe, the magistrate was alive to the need to approach his evidence with caution.  In fact, the magistrate reminded himself that there were two cautionary rules applicable to the evidence of Mbexeshe.  The first arose by virtue of him being a single witness with reference to the planning of the robbery and the fetching of the firearm used therein.  The second arose by virtue of Mbexeshe being an accomplice.  In my view, the magistrate was fully alive to the need to apply the cautionary rule to the evidence of Mbexeshe.  Moreover, his judgment demonstrates that his assessment of that evidence and the probabilities inherent therein was considered and correct.

[7] It is apparent from the evidence that on 10 August 2011 the three appellants formed part of a group who approached the shop, run by the deceased, in order to rob him.  Mbexeshe, who had been part of the group in its planning stage, was present but disassociated himself from the robbery because he was known in the area.  He held back in the vicinity of a house occupied by one Busakhwe and was able to watch events unfold.

[8] Initially, accused 1 and the first and second appellants entered the shop, with accused 1 carrying the firearm. The third appellant stayed outside the shop.  After hearing a shot being fired, Mbexeshe observed accused 1 and the first and second appellants emerging.  Then the three went back inside the shop. Two more shots were heard before they emerged and then ran away.  At that stage, the third appellant followed them.

[9] Mbexeshe confirmed that the third appellant had initially suggested targeting the deceased. Before the robbery, the third appellant had kept the firearm with him.  After the robbery, Mbexeshe joined the third appellant back at his house.  The two of them then joined accused 1 and the two other appellants. What occurred inside the shop was recounted by accused 1.  Thereafter, the third appellant was given the firearm to keep in his home.

[10] In trying to explain their presence at the shop, the three appellants gave evidence which was self contradictory and improbable.  It was correctly evaluated by the magistrate as not remotely credible and rejected accordingly.  He rightly considered that if they had an innocent reason for being at the shop at the time when the deceased was shot they would have been able to convey it to the court.  They had shown themselves to be lying witnesses, a further factor which reduces the risk inherent in relying upon the evidence of an accomplice and satisfies the cautionary rule accordingly.[1]

[11] It is apposite to record that at the beginning of the proceedings in the court a quo, all four accused made admissions in terms of s 220 of the Criminal Procedure Act 51 of 1977 relating to the identity of the deceased and the cause of death.  The post mortem report also indicated the cause of death as being a close range gunshot wound caused by a shotgun.

[12] On the direct and circumstantial evidence available from Mbexeshe, some of which was corroborated by some of the other witnesses, taken together with the admissions made by the appellants and the content of the post mortem report, I am of the view that the State proved beyond a reasonable doubt that, acting with common purpose, all three appellants were guilty of the offences with which they were charged.

[13] It is trite that an appeal court may only interfere with the factual findings of a trial court if the trial court has misdirected itself. In my view, no misdirection on the part of the magistrate has been demonstrated.

[14] It follows that the appeal falls to be dismissed.

[15] The following order will issue:

1. The appeal is dismissed.

2. The convictions and sentences imposed on the three appellants are confirmed.

______________________

RWN BROOKS

JUDGE OF THE HIGH COURT (ACTING)

I agree.

________________

C.PLASKET

JUDGE OF THE HIGH COURT

Appearences

Appellants: Adv D.P. Geldenhuys instructed by the

Grahamstown Justice Centre

Respondent : Adv D Els of the Office of the Director of Public

Prosecutions, Grahamstown

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