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IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO. CC31/2006

In the matter between:

THE STATE

and

SIYAVUYA VINCENT GAMNCA ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The accused, a 41 – year – old male person, is charged with murder. It is alleged that on the 27^th day of November 2004 at or near Wesley in the magisterial district of Peddie he unlawfully and intentionally killed AMANDA PHUMLA MDINGI, a 25 – year – old female person. He is before a Judge sitting alone.

2. He pleaded not guilty. Mr Hole who represents him explained the basis of his plea of not guilty as follows:

“The accused had an affair with the deceased some time before she was killed but the affair terminated before her death. On the night when she died the accused was at the tavern where the deceased was murdered but he left before any shooting took place. He will deny that his firearm could have fired any shot at all on that day. His firearm had rusted and all its parts had merged together.”

3. The accused confirmed the plea explanation.

4. It is common cause that on 31 August 2004 a Magistrate at the Peddie Magistrate’s Court granted a protection order which prohibited the accused from, among others, harassing or swearing at the deceased and threatening to kill her, telephoning her, communicating with her or in whatever manner directly or indirectly threatening her. The love relationship had started in 1998 when the accused was already married to his wife.

5. Also common cause are the following facts:

1. The deceased had jilted the accused and had fallen in love with a gentleman who was, during that period, one of the producers of a movie which is shown on television known as Tsha-Tsha.

2. The accused loved the deceased very much while the affair was on, so much so that he bought her clothes and a cell phone and authorised her to run his public telephone business and she would benefit from proceeds thereof.

3. After the accused discovered that the deceased had involved herself in another love relationship he was so disappointed that he claimed back from her the cell phone which he had bought her and terminated the arrangement that she would benefit from the proceeds of the public telephone business.

4. He would see her in the village but he would not speak to her after their love relationship had broken.

5. The accused was at the time of the death of the deceased and still is employed by the Department of Economic Affairs, Environment Affairs and Tourism of the Eastern Cape provincial government as a nature conservation officer since 1985.

6. In executing his duties the accused would carry an official firearm namely a 7.65mm calibre Beretta model 81 semi-automatic pistol D 38814 W.

7. The firearm referred to in the preceding paragraph and some ammunition were taken by the police from the accused on the morning of 28 November 2004 at his official house at Bhirha mouth which is distance of about three kilometres from Las Vegas tavern where the deceased was shot.

8. When Inspector Gideon Stephanus Olivier who is an examiner at Forensic Ballistics, examined the accused’s official firearm referred to in paragraph 5.6 above he found that the barrel / action magazine of the pistol were filled with sand and rusted (seized) but was still able to fire ammunition after it was cleaned and lubed. He fired ammunition for test purposes in the pistol and compared fired bullets and cartridge cases collected at the scene of crime using a comparison microscope and found the following:

1. There was some agreement of individual and class characteristics but insufficient for individualisation. It would not therefore be determined whether or not the cartridge cases collected at the scene of crime were fired in the firearm concerned.

5.8.2 There was agreement of class characteristics without sufficient agreement or disagreement of individual characteristics because of an absence, insufficiency or lack of reproducibility. It therefore could not be determined whether or not the bullets were fired from the firearm.

6. The deceased was shot outside Las Vegas tavern and fell between the tavern building and another building. She was found by patrons lying and bleeding. Because it was dark where she was lying, the patrons removed her from the dark spot and placed her on a pool table inside the tavern.

7. Dr Basil Wingreen performed a post-mortem examination on the deceased. The chief post-mortem findings he made were:

“Bullet Entrance of Head Lacerated Brain and Haemorrhage Bullet wound Entrance and Exit of chest In Subcutaneous Tissue”

The cause of death was: “Bullet wound of Head”.

8. There were several patrons inside and outside the tavern. Some patrons were dancing to music played there.

9. When the police arrived at the tavern after the deceased had been shot there were still several patrons.

10. When the police asked who had shot the deceased some patrons said that the accused had done so.

11. The police knew where the accused lived. They proceeded to his official house at Birha mouth but they could not find him on that night. They knocked several times on the door of the house but there was no response.

12. When the police found the accused on the morning of the following day he had his official firearm in his possession. There was material to clean a firearm where he was inside the house.

13.1 Olwethu Jamela, a female person 20 years of age, told the Court that she knew the deceased very well and that she knows the accused as well.

13.2 She remembers events of Saturday the 27^th day of November 2004 at Las Vegas tavern. Her evidence may be summed up as follows:

13.3 On her arrival at the tavern on that evening she found the deceased there.

13.4 She spoke to her about going to a church revival service which would be held on that evening. This happened when Jamela met her near the door of the tavern.

13.5 The deceased told her that she should wait for her as she was being called by the accused also known as Sy.

13.6 Thereafter she saw the accused when she was standing with the deceased at the right front corner of the tavern. It is inconceivable that she could go to someone she had a protection order against.

13.7 Jamela walked towards the gate (the entrance to the tavern premises) which is not far from where the deceased and the accused were standing. She indicated the distance as about 30 metres.

13.8 Jamela said that from where she was standing she could see the deceased and the accused.

13.9 After a while, as the two were standing near each other chatting, she was shocked when she heard a sound of a gunshot.

13.10 She realised that the sound was from the direction where the accused and the deceased were standing.

13.11 She ran back to the tavern and saw the accused carrying a firearm pointing it at the deceased. She does not know to which part of the body the firearm was pointed. She added “… but he pointed it at Amanda. Amanda was already lying down. I do not know how she was positioned on the ground but I know that she was on the ground.”

13.12 She said that the accused then went to his motor vehicle and drove away.

13.13 She went to where the deceased was and called her. The deceased responded once.

13.14 Later Jamela said that she saw the accused fire one shot at the deceased while she (the deceased) was lying on the ground.

13.15 She and another girl Ntomboxolo Jubati called the police and reported the incident.

13.16 She cannot recall how the weather was like. It was already at night. It was about 20h00. Electric lights were on.

13.17 She said that there is no animosity between her and the accused.

14. Under cross – examination, Jamela said that:

14.1 She was not asked by Bulelwa Mdingi who is the deceased’s sister to say what she had said concerning the incident.

14.2 She does not know whether the accused and the deceased were leaning against the wall of the tavern but they were close to the wall.

14.3 Responding to the question: “The deceased did not even want to talk to the accused”, Jamela said that she did not know but she admitted that she knew about the love relationship between them.

14.4 The deceased walked to the accused.

14.5 The deceased and the accused stood very close to each other as lovers would, for about 30 minutes.

14.6 Responding to the question: “Did you see him fire shots while she was on the ground?”, she said that she saw him on his feet firing a shot.

14.7 The deceased was her friend.

14.8 She does not remember what clothes the accused had on on that evening.

14.9 She had not yet seen the accused even after the second shot. She only saw him after the third shot. (It is uncertain whether a third shot was fired because only two cartridges were found at the scene and there were only two entrance wounds on the body of the deceased)

14.10 She re-iterated that she did not see the accused when he fired the first and the second shots.

14.11 She did not drink liquor as she thought that she would go to church on that evening.

14.12 She arrived at the tavern at about 19h30.

15. Under re-examination by the Court, Jamela said that:

15.1 When she returned from the gate on that evening there were many people at the tavern. Some were dancing outside the tavern.

15.2 She did not see the deceased drink liquor.

15.3 She told none of the people at the tavern about what she had seen. The first person she told at the tavern was Ntomboxolo Jubati at about 23h00. She said that she had no reason why she did not tell people at the tavern about the incident.

16. Ntomboxolo Jubati is 25 years old. She said that:

16.1 She resides at Wesley. She knows the accused and she knew the deceased.

16.2 On 27 November 2004 at about 19h30 as she and Tokazi were walking to a bar at Wesley to enjoy themselves, they met the deceased who was in the company of her sisters.

16.3 The deceased turned back and accompanied them to the bar.

16.4 They enjoyed themselves at the bar until it closed at 20h00. They then proceeded to Las Vegas tavern where they had drinks.

16.5 At the tavern there are two sides, namely the duke box side where patrons dance to music and the other side known as the side where there is no music.

16.6 She was on the duke box side and the deceased and Tokazi were on the pool side.

16.7 She would at certain times go to the deceased and Tokazi and would return to the duke box side.

16.8 At about 23h00 while there was noise on the duke box side she heard two shots. She did not know where the shots came from.

16.9 Many patrons went out of the tavern screaming.

16.10 When she walked out of the tavern she met Olwethu Jamela who told her that Sy (the accused) had shot the deceased. At that stage the accused’s motor vehicle, a white van, was leaving.

16.11 Jubati went to where the deceased was lying. She called the deceased who would not talk but merely moved her hand.

16.12 The deceased was lying at the corner of the tavern where it was dark.

16.13 Jubati had airtime on her cell phone. A certain girl by the name of Noxolo called the police.

16.14 The deceased was taken by patrons to the tavern where there was light. She was placed on the pool table where the police found her.

16.15 The police asked what happened. “Everyone answered saying that she was shot.” The police did not obtain statements from those people.

17. Under cross – examination, Jubati said that:

17.1 She saw the accused at the tavern on that evening and that he was on the duke box side of the tavern drinking.

17.2 She did not volunteer information to the police.

17.3 Jamela also kept quiet when the police were at the tavern.

17.4 Jubati did not tell the police about the shooting because she did not witness it.

18. Under re-examination by the Court, Jubati said that she could not remember how the accused was dressed on that night.

19.1 Sindile Sydney Renya is an inspector at the South African Police services at Bell. He arrested the accused in his (accused’s) house at Birha Mouth on 28 November 2004.

19.2 Inspector Renya said that he found the accused cocking his firearm. He further said that the accused said to him that for a long time he had wanted to kill himself but the firearm had jammed.

19.3 Inspector Renya took the firearm with its magazine and eight bullets to the police station.

19.4 He said that the accused was shaky and nervous.

20.1 Under cross – examination, Inspector Renya conceded that when he arrested the accused he had no evidence that the accused had committed the offence and that Inspector Sonandi had opened a docket. He further conceded that there was nothing in the docket to the effect that someone had seen the accused fire shots. He said that he arrested the accused for further investigation because of Sonandi’s statement.

20.2 He would not dispute that the accused was cleaning his firearm when he arrested him.

20.3 He observed that there was rust on the firearm when he was dispatching it for ballistics tests.

21.1 The accused admitted that he had a love relationship with the deceased which commenced during 1998.

21.2 He said that he bought the deceased a cell phone and clothes.

21.3 He loved the deceased very much.

21.4 He admitted all the facts which have been referred to earlier under facts which are common cause.

21.5 He threatened her saying that he would cause her to undress the clothes which he bought her. He denied that he threatened to kill her.

21.6 He said that after they had parted ways he was not interested in reconciling with her as he was then in love with another woman.

21.7 Concerning the shooting of the deceased he said that he had no knowledge thereof.

21.8 On 27 November 2004 he went to the tavern at about 19h00 when he was from work. He stopped his motor vehicle outside the gate of the premises of the tavern and went to buy from the tavern a carry pack of hunters – cider wine and half a bottle of brandy.

21.9 Concerning his firearm, he said that it was not in working order. He gave the reason as follows:

On 15 November 2004 when he was paid, his friends and brothers visited him. They went to the beach where some of them swam. He did not swim. One of his brothers pushed him into the sea while his firearm was in a holster on his waist. He and the firearm were immersed into sea water. On Friday of the following week he noticed that rust had developed on his firearm. The firearm was locked and could not function.

21.10 He said that he did not hear knocks on the doors of his house on the night of the 27^th November 2004. He was asleep in his house after taking some drinks.

21.11 He denied that he said to Inspector Renya that he was attempting to kill himself.

21.12 On the day of the shooting he said that he did not see the deceased.

21.13 The accused was the only defence witness.

22. Mr Jonas who represents the State argued that in this case there is direct evidence that the accused shot the deceased who died as a result thereof. He argued further that if the Court was of the view that direct evidence is insufficient to secure a conviction, circumstantial evidence is strong.

23. Mr Hole argued that no reliance should be placed on the evidence of Olwethu Jamela who said that she saw the accused fire shots at the deceased on the night in question. He argued further that even circumstantial evidence was insufficient.

24. Olwethu Jamela said that the shooting occurred at about 20h00. According to Ntomboxolo Jubati the shooting occurred at about 23h00.

25. Jamela said that she heard two shots while she was at the gate of the tavern and that she saw the accused after she had heard the two shots. She said that a third shot was fired. She further said that she saw the accused pointing a firearm at the deceased but she did not see to which part of the deceased’s body the firearm was pointed.

26. The police found only two cartridges at the scene. According to Dr Basil Wingreen two bullets entered the deceased’s body. This evidence suggests that only two shots were fired.

27. Jamela does not know what clothes the accused wore on the night in question.

28. She said that she did not tell anyone at the tavern about the shooting incident even though there were many patrons inside and outside the tavern.

29. When asked whether she had a reason for not telling anyone that she had witnessed the shooting of the deceased, she said that she had none.

30. She said that she did not tell the police who arrived at the tavern after the shooting that she had witnessed the shooting.

31. Ntomboxolo Jubati said that she was told by Jamela that the accused had shot the deceased. She herself did not witness the shooting.

32. The accused’s official firearm was out of order when it was examined by Inspector Olivier of Forensic Ballistics.

33. The truthfulness of the accused’s version as to how, where and when water and sand got into the firearm may be doubted but there is no evidence to the contrary.

34. There were many patrons inside and outside the tavern on the night in question. When the police came there after the shooting they were told by patrons that the accused had shot the deceased. It is surprising and disturbing that, of the many people who were there, only Olwethu Jamela testified that she witnessed the shooting.

35. I share the view that no reliance should be placed on Jamela’s evidence.

36.1 Concerning circumstantial evidence, the Court should consider, among others, the following: the deceased had surprised and hurt the accused by starting a love relationship with another man;

36.2 He had spent considerable amounts of money in an endeavour to please.her;

36.3 He loved her very much;

36.4 She had successfully applied for a protection order in terms of which he was ordered not to harass, swear at her and threaten to kill her, and directly or indirectly communicate with her;

36.5 On his own version, the accused was at the tavern at about 19h00 on that evening.

36.6 The possibility that the cartridges and bullets which were sent for forensic examination were fired in his firearm can not be ruled out.

37. In R v Blom 1939 AD 288 Watermeyer JA referred to two cardinal rules in as far as circumstantial evidence in criminal trial is concerned, namely:

“(1) The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.

(2) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.”

38. It is unknown whether the accused’s firearm was in a working condition at the time when the deceased was shot, when, why and how she walked out of the tavern and at what time she was shot by her assailant..

39. In the circumstances it cannot be said that in this case the two cardinal rules have been satisfied.

40. Having considered all the evidence adduced in this case, I conclude that the State has not proved its case beyond reasonable doubt.

41. The accused is accordingly found not guilty of murder or a lesser offence.

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A E B DHLODHLO

ACTING DEPUTY JUDGE PRESIDENT

27^TH OCTOBER 2006

HEARD ON : 20, 21, 22, 26, 27 SEPTEMBER 2006

FOR THE STATE: MR X JONAS

FOR THE DEFENCE: MR P S HOLE

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