---

IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. CC91/2005

In the matter between:

THE STATE

and

LOYISO SAMORA MELVIN MALI ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The charge against the first accused Mluleki Nqonqo Tamesi, hereinafter referred to as Tamesi, was withdrawn, and, as it will appear later, he was used as a State witness. The second accused Loyiso Samora Melvin Mali is charged with two offences as follows:

COUNT 1

2. Murder, it being alleged that on or about the 29^th June 2003 at or near Ntloko Village in the magisterial district of Peddie he unlawfully and intentionally killed Xolile Ngamlana, an adult male person, hereinafter referred to as the deceased.

3. This charge is accompanied by a warning to the effect that, if he is convicted, the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997, relating to minimum sentences, will apply, as the death of the deceased was caused by him in the process of committing robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977.

COUNT 2

4. Housebreaking with intent to rob and robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act 51 of 1977:

It is alleged that on or about the same date and at the same place as referred to on count one, he did unlawfully and intentionally break and enter the house of the deceased as referred to on the first count, with intent to rob and did unlawfully and intentionally take by force out of the possession of the deceased money in cash to the value of R2080, a 9mm Norinco pistol serial number 46008733, his property, aggravating circumstances being present in that he and his companion wielded a firearm, namely a 7.65mm calibre pistol and inflicted grievous bodily harm on the said deceased.

5. The charge is accompanied by a warning to the effect that, if he is convicted, the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1997, relating to minimum sentences, will apply, as aggravating circumstances were present in the commission of the robbery.

6. Counts three and four relating to unlawful possession of a semi-automatic firearm without holding a licence and unlawful possession of ammunition without being a holder of a licence in respect of a firearm capable of discharging ammunition, respectively, were withdrawn at the commencement of the trial.

7. Mr J G Kristafor appears for the State and Mr F M Mbeki is for the defence.

8. The accused pleaded not guilty to both counts and did not disclose the basis of his defence. However, during the trial he raised the defence of alibi.

9. The following facts are common cause:

The deceased lived at Ntloko Village in the magisterial district of Peddie where he owned a spaza shop and dealt in liquor. He ran his business in his electrified four-roomed house.

10.. Lulama Ngaphi, a 20 – year – old female person assisted the deceased in running the business and was his girlfriend.

11. On the night of Sunday 29 June 2003 Nokuthula Nyembezi, a 21 – year – old female person who is the deceased’s niece was a visitor at the deceased’s home.

12. During the night in question patrons enjoyed themselves in the deceased’s tavern. At some stage of the night patrons left the tavern.

13. Mbulelo Maswana was well known to the deceased and was one of the patrons. He was the last patron to leave the tavern. Before Maswana left the premises the deceased asked him to assist him open his garage so that he (the deceased) could drive his car into the garage. When the car was inside the garage the deceased asked Maswana to lock it with a padlock, which he did. At that stage the deceased was inside his house.

14. On his way to his home, Maswana was approached by two unknown two gun – wielding young men who were wearing balaclavas which covered their faces. He could not see what clothes they had on. Maswana, who was under the influence of liquor, could not see the faces of the two men.

15. The two men ordered Maswana at gun point to return to the deceased’s house and knock on his door so that he could open it.

16. Maswana did as ordered but the deceased refused to open the door, saying that if Maswana wanted to see him he should come on the following day.

17. While Maswana was knocking on the door he was being held by one of the two men while the other man walked round the deceased’s house.

18. When the man who was holding Maswana let him go he ran away to the deceased’s friend.

19. When the two men were outside the house of the deceased, the deceased was washing himself inside the house.

20. A bedroom window was broken by someone outside the house and there was exchange of gunfire. The deceased fired some shots from his 9mm Norinco pistol and some shots were fired from outside the house into the house. The deceased was struck by bullets and later died as a result.

21. The door was kicked open from outside and two unknown men who were wearing balaclava hats which covered their faces entered the house. Both men were carrying firearms. At that stage the deceased was bleeding and gasping inside the house.

22. Inside the house were Nokuthula Nyembezi and Lulama Ngaphi. The two men demanded money, the deceased’s firearm, a magazine and his phone from the two women. The men took money, the deceased’s 9mm Norinco Pistol and tobacco from the house.

23. One of the men attempted to have the garage door opened but no key could open it. When he tried to shoot the padlock he discovered that there was no ammunition in his firearm. He then called out the other man saying that they must leave because some people were coming.

24. The two men then disappeared into the dark with money, some of which was contained in a money box, the deceased’s firearm, a magazine and cigarettes.

25. The two men were acting with a common purpose.

26. The deceased’s firearm was recovered from the waist of the accused by the police on 11 December 2003. There was one live round in the chamber. Three live rounds were found in a wallet in the accused’s back pocket. The accused said that he did not have a licence to possess the firearm.

27. According to District Surgeon Dr Stuart Wayne Dwyer the cause of the deceased’s death was multiple gunshot wounds.

28. The accused was convicted by a Magistrate at the Peddie Magistrate’s Court on 19 February 2004 for the unlawful possession of the firearm and ammunition.

29. Who were the two assailants?

Tamesi who was the first accused and against whom the charges were withdrawn, testified as a State witness after he was warned as an accomplice in terms of section 204 of the Criminal Procedure Act 51 of 1977. His evidence may be summed up as follows:

30. He lives at Ngwalana area in Peddie. Ngwalana is near Ntloko area. He is 22 years old. His home is not far from that of the accused.

31. Tamesi has known the accused for about ten years. As friends, Tamesi and the accused used to play cricket and soccer together and used to visit taverns. Tamesi said that in soccer circles the accused was known as “Mark Williams”.

32. On 29 June 2003 he was at his aunt’s place where a shebeen business was being run. While he was there he was called by the accused who suggested that they go to the deceased’s tavern to commit robbery. Tamesi said that he was reluctant but he later agreed to take part in the intended robbery.

33. They bought a quarter of a bottle of liquor which they consumed on their way to the deceased’s place. Before they travelled to the place they went to the accused’s place where Tamesi changed clothes and shoes. The accused produced two firearms which, according to Tamesi, were of 7.05 calibre. Tamesi was taught by the accused how to operate the firearm which the accused gave him.

34. They got to the vicinity of the accused’s place. It was already at night. They were wearing balaclava hats which were not pulled down to cover their faces at that stage.

35. Where they were they could observe movements in the deceased’s house because the door was open.

36. They saw patrons leave the tavern and they also saw Maswana as he left the tavern and decided to approach him with a view to causing him, by threatening to shoot him, to go and knock on the deceased’s door so that he could open the door.

37. Indeed they threatened Maswana and he complied with their order.

38. When Maswana knocked on the door and introduced himself, the deceased would not open the door. He suggested that Maswana should see him on the following day. This concludes facts which are common cause.

39. Tamesi said that the accused peeped through a window. At some stage the accused called Tamesi and asked him to stand on bricks and peep through the window.

40. Tamesi saw the deceased washing something which appeared to him to be either a man’s underpant or a towel. He later smashed the deceased’s bedroom window intending to pull the lace curtain hanging there so that he could see inside the bedroom.

41. There was suddenly exchange of gunfire. Shots were fired from inside the house. Both Tamesi and the accused fired shots into the house.

42. Tamesi fired into the house even though he could not see the deceased. He is uncertain whether his bullets struck the deceased. He fired to where he thought the deceased was, with intent to strike him.

43. Later the accused called Tamesi saying that “he had finished him”. Tamesi peeped through a window and saw the deceased lying near the door leading to the business side of the house. The deceased had a bikini on. He was lying on his stomach and part of his gun was visible under him.

44. Tamesi and the accused went round to the front door. They kicked the door and managed to break its bottom part.

45. They entered the house in which there were two young women and the deceased who was gasping.

46. They removed the items referred to earlier in this judgment under facts which are common cause.

47 Both were carrying their firearms. Tamesi said that the accused said that he intended to take the deceased’s car because he could drive a motor vehicle.

48. The accused wore a light orange overall and handgloves. Tamesi said that he wore dark clothes and that he did not wear handgloves. Both wore balaclava hats which covered their faces.

49. On their way back home the accused told Tamesi that he (the accused) had taken the deceased’s firearm.

50. At the home of Tamesi the companions shared the spoils equally. According to Tamesi the money amounted to about R4000,00. He said that each pocketed R2020,00. With the money he purchased shoes, liquor and a pair of jeans. He buried the money box in his home garden.

51. From Tamesi’s home the companions went to the accused’s home. The accused kept the three firearms.

52. Tamesi said that he is serving a prison term of 20 years for housebreaking with intent to rob, murder and assault and that these offences are not related to the present one.

53. He said that the deceased’s firearm had no ammunition but had a magazine.

54. Under cross – examination, Tamesi said, among others, that the accused was his friend until he (Tamesi) was arrested in 2003. He said that, because of the present case, they are no longer friends. He said that this happened after he had agreed to be a State witness on 22 August 2005. He did not tell the accused about his decision.

55. He said that the accused told him when they appeared in Court that he (the accused) knew that he (Tamesi) was to be a State witness. The accused told him that he had no problem about his turning to be a State witness and that he (the accused) was prepared and knew what he would say in Court.

56. Tamesi said that he decided to become a State witness after some young men had implicated him in the present offence.

Responding to the question: :Nokuthula Nyembezi said that one of the robbers in the present case wore a light greenish pair of trousers”., Tamesi said that the accused had an orange pair of trousers. Tamesi likened the colour of the pair of trousers to a colour on the Court Registrar’s bag in Court which was light orange.

Tamesi said that he was not framing the accused but that he was telling the truth.

He said that while he and the accused were in prison the accused said that he would explain in Court how he got to be in possession of the deceased’s firearm. Tamesi agreed that he and the accused fought in prison after he had decided to be a State witness.

Tamesi agreed that the accused got the deceased’s firearm from Loyiso Gqola. His explanation of how this happened is as follows: On a certain night he (Tamesi) was to walk to where Loyiso Gqola slept. He borrowed the deceased’s firearm from the accused so that he could use it to protect himself. During the day he met the accused who questioned him about the whereabouts of the firearm. Tamesi said that he would sent a message to Loyiso Gqola to take the firearm and hand it to him (the accused).

When asked why he had earlier denied that the accused got the firearm from Loyiso Gqola, Tamesi said that he might have misunderstood the question.

Tamesi denied that he had committed the murder and robbery at the deceased’s house with Mzikayise and that he had framed the accused to protect the said Mzikayise. Under re-examination, Tamesi said that when he placed the deceased’s firearm in an unused refrigerator at Loyiso Gqola’s place it had five bullets and that he had not fired a bullet.

He said that he told his friends namely: Thanduxolo Myekisi, Sandisile Dlanga and Loyiso Gqola that he had been involved in the robbery at the deceased’s place.

Detective Inspector Andile Dodo investigated these offences. He established through the computer network that 9mm parabellum Norinco pistol serial number 46008733 was owned by the deceased Xolile Ngamlana. This evidence was not challenged.

When he pleaded, the accused did not disclose the basis of his defence. During the trial the defence raised the defence of alibi to the effect that during the night of Sunday 29 June 2003 between 21h00 and 22h00 he was in Grahamstown having gone there with Simphiwe Bembe to attend the Grahamstown Arts festival. He gave details of their trip to and from Grahamstown and their activities there.

The accused denied that he played soccer and cricket with Tamesi. He said that he did play cricket, but not soccer. He said that he could not play with Tamesi because he (Tamesi) had not been circumcised and that he himself had been circumcised. He said that, for this reason, he could not drink with Tamesi although they were of the same age group and both lived in the same village. He denied ever conspiring with Tamesi to rob the deceased and further denied that he was involved in the commission of the present offences.

He admitted that the deceased’s firearm and ammunition were found in his possession and that he was arrested for the offences on 11 December 2003. he was later convicted and sentenced for the offences after pleading guilty thereto.

The accused said that he got the deceased’s firearm from Tamesi and that he intended to use it against wild pigs on his father’s farm. He said that Tamesi gave Loyiso Gqola a key to pen a refrigerator, take out the firearm and give it to him (the accused). He said that Loyiso Gqola gave him the firearm. He further said that he saw two other firearms in the refrigerator.

Thulani Mfo was called by the defence to testify. His evidence is briefly to the effect that, while he was in a Court cell at the Peddie Magistrate’s Court he saw someone he referred to as Star or Blackie. He did not know other names of this person. Mfo said that Star told him that he (Star) was charged together with the accused for the present offences. Mfo said that Star said that he had implicated the acused because he, for a very long time bore a grudge against him and that he “missed the dog (the accused) in 2003”.

Mfo said that he later told the accused to get in touch with Star so that the grudge could be resolved. Mfo said that eh knew the accused because he (Mfo) used to drive a motor vehicle which conveyed learners, including the accused, to and from school.

The defence indicated to the Court that they intended to call Simphiwe Bembe who is an inmate at Grahamstown prison. The Court made an order that Bembe be requisitioned so that he could testify. The case was postponed to 04 November 2005. On this date Counsel for the accused informed the Court that Simphiwe Bembe had come to Court but that they had decided not to call him.

Counsel for the State applied for leave to re-open the State’s case to challenge some evidence which first emerged during the defence case, in particular, what the accused said before a Magistrate at Peddie about his possession of the deceased’s firearm and ammunition. The application was not opposed and it was granted.

Magistrate Mr William Linda Erasmus of Peddie said that on 19 February 2004 he presided over a trial in case No. 1607/2003 in which the accused in the present case was charged with unlawful possession of a firearm and ammunition.

Mr Erasmus said that he understands isiXhosa and English very well. He said that he accused made his plea explanation in isiXhosa but proceedings were recorded in English. He said that the accused said: “Yes, the 9mm was found in my possession. It was my firearm which I bought from Sandisile Dlaye for R150,00”. This explanation differs from the one the accused gave to this Court. In his evidence the accused said that Tamesi framed him in this case because he did not want to go to jail with Mzikayise. Thulani Mfo said that Star said to him that he had framed the accused because of a long time grudge. If Star is Tamesi the reason for framing the accused would differ.

Tamesi is an accomplice whose evidence must be treated with caution in order to reduce the risk of a wrong conviction – see S v Hlapezulu & others 1965(4) SA 439(A).

Mr Kristafor argued that Tamesi gave evidence in a straight forward manner and that his evidence is corroborated in material respect by Mbulelo Maswana, Lulama Ngaphi, Nokuthula Nyembezi and also by the fact that the deceased’s firearm was found in the possession of the accused.

Concerning the defence case, Mr Kristafor submitted that the defence version should be rejected. He submitted that the alibi defence is a fabrication and that the accused got the firearm from Tamesi is also a fabrication.

Mr Mbeki argued that, the fact that an accused person has lied, does not necessarily suggest that the State has proved its case beyond reasonable doubt – see S v Mtsweni 1985(1) SA 590(A).

The Court’s impression of the evidence of Tamesi is that his evidence is, in material respect, reliable. There is no indication that he lied. What he told the Court about the execution of the robbery at the deceased’s place was corroborated in material respect by Ngaphi, Nyembezi and Maswana. Nowhere in his evidence does it appear that he downplayed the role he palyed in the commission of the offences. Who suggested that the deceased’s tavern be robbed, is to me, immaterial. After all, Tamesi said that he agreed to be part of it. He does not say that he was co-erced to do so. He admitted that he fired shots intending to strike him. He further admitted that they shared the spoils equally. It appears that Tamesi and the accused had not quarrelled. Misunderstanding between them started after Tamesi had agreed to testify for the State. There is no evidence to show that he has for a very long time had a grudge against the accused. If he did not want to go to jail with Mzikayise, why would he pick on the accused instead of one of his friends such as Thanduxolo and Loyiso Gqola.

In the Court’s view the version of the accused is not reasonably possibly true and should be rejected. The State has proved its case beyond reasonable doubt on both counts. The accused is accordingly found guilty as charged on both counts.

_____________________________

A E B DHLODHLO

ACTING DEPUTY JUDGE PRESIDENT

17 NOVEMBER 2005

FOR THE STATE: MR J G KRISTAFOR

FOR THE ACCUSED: MR F M MBEKI

HEARD ON: 31/10/2005, 01, 02, 03,

04, 07. 17/11/2005

---