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IN THE HIGH COURT OF SOUTH AFRICA

BHISHO

CASE NO. CC106/2006

In the matter between:

THE STATE

and

SIYABULELA GXABAGXABA 1^ST ACCUSED

XOLELA MZILIKAZI 2^ND ACCUSED

THEMBIKHAYA BOOI 3^RD ACCUSED

SAMUEL MASHIBINI 4^TH ACCUSED

JUDGMENT

DHLODHLO ADJP:

1. The four accused are before a Judge sitting with an assessor. They are charged with six counts as follows:

1. COUNT NO.1

Murder, in that on or about the third day of November 2005 at or near Mazotshweni area in the Magisterial district of Alice they unlawfully and intentionally killed Septimus Nojozi, a male adult person.

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of section 51 (1) of the Criminal Law Amendment Act 105 of 1997, relating to minimum sentences will be applicable, as the death of the victim was caused by the accused while committing robbery with aggravating circumstances as defined in section one of the Criminal Procedure Act 51 of 1977, and also because they committed the offence in the execution or furtherance of a common purpose or conspiracy.

2. COUNT NO. 2

Robbery with aggravating circumstances, as defined in section 1(1) (b) of the Criminal Procedure Act ,in that on or about the third day of November 2005 at or near Mazotshweni area in Alice they unlawfully assaulted Siphiwo Hamse by pointing a fire-arm at him and took by force and violence from his possession a JVC Hi- fi radio, R200 in cash, an LG cellular phone, three cases of beer, wines, clothes, two motorolla cellular chargers, two blankets and cassettes which were his property or in his lawful possession. It is alleged that aggravating circumstances were present in the commission of the said robbery.

The charge is accompanied by a warning in connection with a minimum sentence of 15 years if they are convicted.

3. COUNT NO.3

Robbery with aggravating circumstances as defined in section 1 (1)(b) of the Criminal Procedure Act, in that on or about the third day of November 2005 at or near Mazotshweni area in Alice they unlawfully assaulted Septimus Nojozi by shooting him with a 9mm calibre fire-arm and took by force and violence from his possession a Nokia 2300, his property or in his lawful possession, aggravating circumstances being present in that they wielded a firearm.

The charge is accompanied by a warning in connection with a minimum sentence of 15 years if they are convicted.

4. COUNT NO. 4

Contravening section 120 (b) (a) read with section 1, 103, 120(1) (a) and 121 read with schedule 4 of the Firearms Control Act 60 of 2000 –pointing a firearm, an anti firearm or airgun, in that on or about the third day of November 2005 at or near Mazotshweni area in Alice they unlawfully pointed firearms whether or not loaded or capable of being discharged, namely a Norinco parabellum pistol serial number 43023842 and a 9mm calibre firearm with an unknown serial number at other persons, namely Siphiwo Hamse, Nomimi Hamse, Mseleki Nqabeni, Mziyanda Shumpa, Mphilisi Ndoloshe and Thulani Hamse.

5. COUNT NO. 5

Contravening section 90 read with section 1,103,117,120(1)(a) and 121 read with schedule 4 of the Firearms Control Act 60 of 2000 and further read with section 250 of the Criminal Procedure Act-unlawful possession of a firearm, in that on or about the third day of November 2005 at or near Mazotshweni area in Alice they unlawfully had in their possession a 9mm Norinco parabellum pistol serial number 43023842 and a 9mm calibre firearm with a serial unknown to the State, without holding a licence, permit or authorisation issued in terms of the Act to possess those firearms.

6. COUNT NO.6

Contravening section 90 read with section 1, 103, 117, 120(1)(a) and 121 read with schedule 4 of the Firearms Control Act 60 of 2000 and further read with section 250 of the Criminal Procedure Act- unlawful possession of ammunition, in that on or about the third day of November 2005 at or near Mazotshweni area in Alice they unlawfully had in their possession ammunition, namely 29 rounds of a 9mm calibre firearm without being holders of:

1. a licence in respect of a firearm capable of discharging that ammunition,

2. a permit to possess ammunition

3. a dealer’s licence, manufacturer’s licence, gunsmith’s licence, import, export or an in-transit permit transporters’ permit issued in terms of this Act.

4. Or, are authorised to do so

7. All the accused pleaded not guilty to all the charges they are charged with.

2. The fourth accused Samuel Mashibini was discharged at the close of the State case in terms of section 174 of the Criminal Procedure Act.

3. It is common cause that at about 20h30 on or about the third day of November 2005 there were patrons in a tavern which was run by one Siphiwo Hamse also known as Mashava. The patrons included the following persons: Mseleki Nqabeni, Mziyanda Shumpa, Mphilisi Ndoloshe and Thulani Hamse who were at the pool side of the tavern.

4. As these patrons were playing pool, a strange short young man entered the pool side of the tavern. The young man said that he had come to buy loose cigarettes. One of the patrons Siphiwo Hamse served him with cigarettes. They asked him from where he was and he said he was from a village known as Kwezana. When he was asked what his surname was he said that he was in a hurry and that he was in the company of certain people who had come to see their girl friends who live at Mazotshweni. The young man left the tavern.

5. After about five minutes the young man, then accompanied by three strange young men, entered the tavern hurriedly. All four young men were carrying firearms and their faces were covered. They instructed those inside the tavern to lie down.

6. The young man who had entered the tavern earlier and another man took Siphiwo Hamse to the section of the tavern where Hamse had sold the young cigarettes. Hamse recognised the young man by his height and clothes, namely a black leather jacket, a pair of jeans and a pair of takkies. The young man’s face was then covered.

7. At the cigarettes section of the tavern the strange men ordered Hamse to open a certain door. He complied with the order and the assailants closed the door. They demanded a firearm from Hamse. His response was that he did not have one. They looked for a firearm but did not find one.

8. The assailants demanded money from Hamse. He produced a wallet from his pocket and gave it to them. The wallet contained more than four hundred rand in cash. They also took some money in coins which were proceeds from cigarettes sale. It is not known how much money this was.

9. Later the assailants demanded keys which opened the duke box and the pool table. When Hamse told them that the keys were with the company from which the items were hired, the assailants did not believed him. They hit him with open hands.

10. The assailants demanded Hamse’s cellular phone. His cellular phone had an aerial problem. He told them that he was not using it. It was an L G cell phone.

11. The assailants accompanied Hamse to a room where the cell phone was. One of the assailants fired a shot from his fire arm. The bullet struck the floor.

12. Hamse found the cell phone and he handed it to them. They returned to the room where patrons were served. There the assailants took liquor, beers and Paarl Perle wine. Hamse is uncertain of quantities.

13. Later the assailants took a JVC Hi-fi music set CD’s and cassettes. They kept these items in separate striped bags.

14. The assailants ordered Hamse to show them the house where one Nolizwi lived. Nolizwi is the deceased Sakhumzi Septimus Nojozi’s daughter. Hamse went to the deceased’s house accompanied by two assailants who were each carrying a firearm. They ordered Hamse to knock on the door of the decease’s house upon their arrival there. One assailant placed the barrel of his fire arm on Hamse’s head.

15. Upon their arrival at the deceased’s house Hamse knocked on the door as ordered by the assailants. He was told to enter the house where they found the deceased seated on a couch having a meal. The deceased lifted his head and saw the two men after which he placed his hand on his waist. One of the assailants said: “He has a fire arm he must be shot”. Two shots were fired at the deceased. Hamse could not see whether the two shots were fired from one fire arm.

16. The two assailants ran out of the house. Hamse also ran out of the house which is Mziyanda Shumpa’s home, where he explained what had happened. Later he together with the members of the Shumpa family went to the deceased’s house where he explained what had happened.

17. When Hamse returned to the tavern he found that his friends and the other strange men were no longer there. His mother’s cell phone charger was no longer there. Everything was upside down. The bag which contained liquor and the other bag were no longer there.

18. The tavern was well lit by electricity. Hamse said that one of the four assailants wore a woollen hat and others wore balaclava hats which covered their faces but their eye areas were visible.

19. The deceased owned a firearm and he ran a business of selling items from his house. It appears that when he was shot he was in the process of drawing his fire arm. Hamse saw the deceased’s firearm after he (the deceased) had died.

20. Hamse said that he recognised the young man who came to the tavern earlier to purchase cigarettes because at that time his face was not covered. He identified the first accused. The assailant who wore a woollen hat had pulled it over his eyes up to the bridge of his nose. He was unable to recognise the man who wore a woollen hat.

21. Hamse said that he had not taken liquor on that evening.

22. When Hamse was driven by two assailants to the cigarettes section of the tavern he left people with whom he had been playing pool, lying on their stomachs guarded by two other assailants.

23. Nomimi Hamse is the mother of Siphiwo Hamse. On the night in question she was awakened by the sound of a gun shot. She had been sleeping in a house on the premises of the tavern. She proceeded to the tavern to investigate. She was suddenly accosted by a firearm – wielding man who ordered her to keep quiet and to sit on a bench. She sat there for a long time. She saw the assailant who guarded her and the other man and another one carrying striped bags. An assailant said to her that she was free to leave. She and the men remained in the tavern for about 20 minutes because they were afraid of going out of the tavern. The men she saw wore hats which covered their faces. She would be unable to recognised them.

24. Before 07h00 on the following day Ms Hamse returned to the house. She discovered that keys to the house were not there and clothes were strewn all over the house. She noticed that two blankets, two pairs of sheets, two pillow cases, a JVC music system and its remote controller, CD’s and cassettes were missing. She was later shown certain items by the police. She identified the JVC music system, a remote controller, cassettes, CD’s and a motorola charger. She did not recover sheets and pillows.

25. Under cross- examination, Ms Hamse said that some men who were guarded by assailants in the tavern were lying facedown while others were kneeling. She said that after the incident the young men said that they did not know the assailants and that they saw the one who had earlier come to buy a cigarette because at that stage he did not cover his face. Siphiwo Hamse and Mziyanda Shumpa told her that they could recognise that one if they saw him.

26. Ms Hamse conceded that CD’s and cassettes she identified were similar to those of her home. She said that the charger which she saw at the police station fitted her cell phone but that it had no identifying features. Other chargers she saw at the police station did not fit her cell phone.

27. Thulani Hamse was in the tavern during the evening in question. His evidence and that of Mziyanda Shumpa corroborate that of Siphiwo Hamse who is also known as Mashava, in as far as the events of that evening inside tavern are concerned.

28. Both Thulani and Shumpa said that the assailants wore hats and balaclava hats. Two wore hats and the two wore balaclava hats. One assailant who wore a balaclava hat guarded them at the pool section of the tavern.

29. At an identification parade in Grahamstown both identified the first accused Siyabulela Gxabhagxabha and the third one Thembikhaya Booi as some of the four assailants who came to the tavern on the evening in question. Both said that they did not see the first and the third accused between the evening in question and the date of the identification parade.

30. Both Shumpa and Thulani said that the third accused was wearing a hat, and that he had dreadlock hair style and that his nose was long. Thulani said that he identified him clearly because he (Thulani) was kneeling not lying on the floor. Thulani said that he had not been to court before the identification parade and had not seen the first and the third accused. He said that he was sober on that evening.

31. Under cross-examination, Thulani said that the third accused had initially accompanied Siphiwo Hamse with his two companions to the cigarettes section of the tavern but later returned to where they were. Thulani said that the third accused came close to them and later stepped backwards saying he would shoot them He said that there were other men with dreadlocks in the line- up at the identification parade and that he was able to identify the third accused among others within a short space of time.

32. At the identification parade after Thulani had identified the third accused he requested the police officer conducting the identification parade to allow the third accused to wear a hat and pull it down. The third accused was the only one in the line up who was asked to wear a hat. Thulani identified him again. Explaining why he asked that the third accused be allowed to wear a hat, he said: “I wanted to make it absolutely sure that it was him. That is why I asked that he be allowed to wear a hat. He wore a brown hat”.

33. Shumpa said that while they were being held hostage he observed the third accused for about two minutes and that he (third accused) wanted to shoot them. He said that he was able to identify him after a year. He said that he described the third accused to the police as dark in complexion, that he had a long nose, appeared to have long hair in dreadlock style, was a guy of their height and that he was a little shorter than himself. Shumpa said that he told the police that the third accused was big but not bigger than himself. Shumpa said that the third accused was not the only person who wore dreadlocks in the line –up at the identification parade and that people in the line –up did not wear hats. He said that even though the two who wore hats had pulled them down, he was able to see their eyes.

34. Responding to the question whether he told Ms Nomimi Hamse after the incident on the evening in question that he could identify only the one who first came to the tavern to buy a cigarette, Shumpa said that they said that they could identify also the one who wanted to shoot them.

35. Shumpa who is 24 years of age said that he completed matric at school. He said that the third accused threatened to shoot them and that his companions stopped him saying that if he did, this he would attract the attention of people. Shumpa said that his eye sight is good.

36. Zolisa Nabela is an inspector who was attached to the South African Police Service in the Serious Violent Crimes section Grahamstown during 2005. During a Sunday afternoon on a date which he could not remember he received information in terms of which he and his colleagues had to act urgently. At about 01h55 of the following day he and his colleagues, including Inspector Siyabonga Nosenga were at a certain village in Alice. They went to a homestead where the first accused lived. The first accused opened the door and they introduced themselves as police officers. The first accused was the only person in that room. He allowed them to conduct a search in that room. Inspector Nabela conducted the search and found a Hi-fi set music system whose description fitted the one reported to be missing. The first accused said the Hi-fi set belonged to him. Nabela also found a Nokia 2300 cellular phone which was in a mattress. He inserted his hand in a hole on the mattress and retrieved the cellular phone, opened it and found that its serial numbers matched those of the one which had been reported missing from the Hamse family.

37. Nabela informed the first accused that he was arresting him for his involvement in the crimes allegedly committed at Mazotshweni and apprised him of his constitutional rights.

38. They then went to the home of the second accused where the second accused opened the door to his room after Nabela and his colleagues had knocked. They informed him that they were police officers from Grahamstown, that they were investigating murder and robbery cases. They asked him if he would allow them to search the room. He allowed them to search. The second accused was the only person in that room of the house. Inspector Nabela conducted a search in the room and found a fire arm a 9mm Norinco Parabellum with external numbers erased. Nabela disconnected the fire arm and saw its serial number 43023842. Nabela could not remember how many bullets were in the magazine of the fire arm. He thought that they could have been three or six. He found twenty nine bullets of a 9mm calibre pistol. The fire arm was sent to ballistic experts.

39. Inspector Nabela said that the second accused said that he was keeping the fire arm for someone whose name he did not mention. The second accused said he had no licence to possess the fire arm and the ammunition. Nabela informed him that he was arresting him for being in unlawful possession of a fire arm and ammunition.

40. The Hi-fi music system was identified by the Hamse family and the cellular phone was identified by the deceased’s son as that of his deceased father. The cellular phone’s serial number is 35431500-8498853 and it corresponds with that which appeared in the document which the deceased’s son produced. According to Inspector Nabela records showed that the fire arm seized from the second accused was owned by a private person in Lady Brand.

41. Inspector Nabela said that, according to the information they received, the four accused would leave for Cape Town and that, applying for search warrants would cause a delay which would defeat the purpose of the search.

42. Detective Inspector Siyabonga Nosenga conducted a search in the room where the third accused was found. He found a blanket and a sheet. He also found an LG charger and a motorola cellular phone.

43. The first accused made a confession at the Grahamstown Magistrate’s Office before the late Magistrate Ephraim Nkosinathi Mgince wherein Nontombizakhe Somyali who is an official Court Interpreter, interpreted. Ms Somyali interpreted from isiXhosa into English and vice versa. She confirmed that documents marked exhibit “D” were completed by the late Magistrate in her presence and in the presence of the first accused Siyabulele Gxabagxaba on 22 November 2005 after his rights had been duly explained.

44. The first accused said to the Magistrate that he and his three friends went to the tavern which Mashava (Siphiwo Hamse) ran with the intention of robbing it. He said that he was carrying a firearm, took Mashava to his bedroom where they took his tape and his cellular phone. According to the first accused’s statement, Mashava said that he did not have money, that the money was with his parents and that his father had a firearm. When they entered “there Mashava’s old man pulled out his firearm. His wife cried and shouted that his husband must shoot.” He said that he also shot at the old man and he fell. He and another companion ran away. The other two companions were at the tavern. They went back to the tavern and took the tape and five (5) (illegible). The first accused said that he later heard that “Mashava’s old man” had died.

45. The Court ruled that the statement which the first accused made to the Magistrate was made freely and voluntarily by the accused in his sound and sober senses and without undue influence.

46. Sergeant Sakhele Nodayizana conducted an identification parade in Grahamstown on 09 October 2006. in the line-up were the four accused and others. He said that Thulani Hamse identified the third accused after three minutes. Mziyanda Shumpa identified the first and the third accused persons after 33 seconds. The suspects were represented by a legal representative Mr Solani who did not complain of any irregularity. Sergeant Nodayizana completed the identification parade form (exhibit E).

47. Nodayizana confirmed that, after Thulani Hamse had identified the third accused, he asked that the third accused be made to wear a hat and that Hamse again identified him when he had a woollen hat on. Nodayizana said men in the line-up did not have hats on but one of them had a hat in his hand which the third accused put on. When he was identified a second time, the third accused was the only person on parade who had a hat on. All this happened in the presence of the legal representative. Nodayizana conceded that he did not record the second identification on the third accused by Hamse.

48. The first accused denied that he went to Mashava’s tavern on 03 November 2005 and that he made a confession. He denied that a JVC hi-fi set and a Nokia cell phone were found in his possession. He said that his tape and his cell phone were taken from him. He said that his cell phone is a Nokia 3310.

49. The second accused denied that he was involved in the murder and the robbery at Mazotshweni. He admitted that the firearm was found in a wardrobe in his room. He said that the firearm belonged to his uncle Nkosinathi Mzilikazi who died during Easter holidays in year 2004. He denied that he said that he was keeping the firearm for someone. He said that he told the police that it belonged to his uncle. Under cross-examination, he said that elder members of his family knew about the firearm. He said that between December 2004 and November 2005 he did not see the firearm. Asked why it was not put to Inspector Nabela during cross-examination that the firearm belonged to his uncle, he said: “Inspector Nabela said that I got the firearm from someone for safekeeping”. He further said that he told his Counsel that the firearm belonged to his uncle. He said that both his mother and his aunt were alive.

50. The third accused denied that on 03 November 2005 he was at Mazotshweni village. He said that Inspector Nosenga discovered a motorola cell and its charger, not an LG charger. He said that he got the motorola cell phone from his sister Vicky in December 2004. He said that he saw one State witness in Court at Alice but he did not know his name.

51. The first, second and the third accused closed their cases without calling witnesses.

52. Concerning the first accused, there is overwhelming evidence that he was at the Mashava tavern at Mazotshweni on the evening of 03 November 2005, that he carried a firearm and that he robbed Hamse of his belongings such as money, hi-fi set, a cell phone, beer, wines, and two motorola cellular phone chargers at gun point. Evidence is also overwhelming that he fired a shot that killed the deceased who, according to the post-mortem examination, (Exhibit B) died of gunshot injury to the chest.

53. There is no doubt that a firearm, namely a 9mm Norinco parabellum pistol and ammunition were found in a wardrobe in the room where the second accused had been the sole occupant for almost a year. He freely and voluntarily told the police that he was keeping it for someone. He made this statement before he was charged and before his rights were explained. In R v Barlin 1926AD 459 it was held that a statement made by an accused to the police officer freely and voluntarily where the police officer failed to caution him did not render the statement inadmissible. In his evidence-in-chief the second accused said that the firearm belonged to his uncle, which version had not been put to Inspector Nabela when he was cross-examined. It is clear that it is an afterthought. The Court accepts that he told Nabela that he was keeping it for someone.

54. There was, according to the evidence adduced, sufficient lighting in the tavern during the evening in question. Hamse and Shumpa had adequate opportunity to observe the first and the third accused. Both said that, although he had a hat on that covered his upper face, they were able to identify him, especially because at some stage he threatened to shoot them. At the identification parade they did not hesitate to identify him. Hamse asked that the third accused be allowed to wear a hat after he had identified him. He said that he did this in order to satisfy himself that the third accused was the person he had seen. The police officer who conducted the identification parade allowed the third accused to ear a hat, after which Hamse identified him again. This procedure appears to be irregular, especially because the third accused was the only one who was made to wear a hat. In the Court’s view the procedure does not nullify the earlier identification. Shumpa had no hesitation in identifying the third accused by features which he mentioned. The Court gained the impression that Shumpa was a satisfactory and credible witness. Hamse and Shumpa are honest witnesses. If they intended to frame the suspects, they could as well have said that they identified the second and the former fourth accused. Factors which were referred to in S v Mthethwa 1972(3) SA 766(A) to be considered in evaluating evidence of identification seem to have been satisfied in the identification of the third accused. A motorola cellular phone charger found in his possession was identified by Ms Nomini Hamse as hers.

55. The ballistic report does not show that the firearm found in the second accused’s possession fired the bullet which killed the deceased.

56. It is not known whether there was a conspiracy to kill and rob the deceased. It is further not known who the companion was who was with the first accused when he shot the deceased.

57. This court’s unanimous verdict is:

ACCUSED NO. 1: (SIYABULELA GXABAGXABA) is found guilty on the following counts:

Count 1 (murder)

Count 2 (Robbery with aggravating circumstances)

Count 3 (Robbery with aggravating circumstances)

He is found not guilty on Counts four, five, and six.

ACCUSED NO. 2: (XOLELA MZILIKAZI) is found guilty on Counts five and six and not guilty on Counts one, two, three, and four.

ACCUSED NO. 3: (THEMBIKHAYA BOOI) is found not guilty on Counts one, three, four, five and six but guilty as charged on Count 2 (Robbery with aggravating circumstances)

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A E B DHLODHLO

JUDGE OF THE HIGH COURT

ACTING DEPUTY JUDGE PRESIDENT

19^TH JUNE 2007

Heard on: 12, 19, 20, 21, 22, 26, 28/02/2007

19, 22, 26/03/2007

28, 30/05/2007

For the State: Mr X Jonas

For Accused No. 1: Mr H Lalla

For Accused No. 2: Mr X Manjezi

For Accused No. 3: Mr V Magqabi

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