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IN SOUTH GAUTENG HIGH COURT

JOHANNESBURG

CASE NO: SS155/01

DATE: 25/04/2002

In the matter between

THE STATE

and

DANIEL PHALAFALA MANGOELE....................................................1st ACCUSED

ALFRED SHISHI MEDUPE..................................................................2nd ACCUSED

J U D G M E N T

WILLIS J:

[1] Daniel Phalafala Mangoele, (to whom I shall hereinafter refer as accused 1) and Alfred Shishi Medupe, (to whom I shall hereinafter refer as accused 2) stand indicted on four separate counts.

[2] The first count is one of murder, it being alleged that upon or about 3 January 2001 and at or near 260 Ramatlodi Street Zenzele Squatter Camp, Mohlakeng in the district of Randfontein the accused did unlawfully and intentionally kill Alfred Madala Sibanda.

[3] The second count is robbery with aggravating circumstances as defined in Section 1 of Act 51 of 1977. It being alleged that upon or about 3 January 2001 and at or near 260 Ramatlodi Street, Zenzele Squatter Camp, Mohlakeng, in the district of Randfontein, the accused did unlawfully and intentionally assault Albert Madala Sibanda, and with force and violence did take out of his possession R3 500.00 in cash, a firearm and an unknown quantity of ammunition, an identification book and bank cards, his property or in his lawful possession and did thereby rob him of the same. Aggravating circumstances as defined in Section 1 of Act 51 of 1977 being present, to wit a firearm was used in the commission of the offence.

[4] The third count is contravention of Section 2 of the Arms and Ammunition Act 75 of 1969, (unlawful possession of a firearm), it being alleged that upon or about 3 January 2001 and at or near 260 Ramatlodi Street, Zenzele Squatter Camp, Mohlakeng, in the district of Randfontein the accused did unlawfully possess firearms or models and calibres unknown to the state without being the holders of valid licences to possess such firearms.

[5] The fourth and final count is the contravention of Section 36 of the Arms and Ammunition Act 75 of 1969 (unlawful possession of ammunition), it being alleged that upon or about 3 January 2001, and at or near 260 Ramatlodi, Zenzele Squatter Camp, Mohlakeng in the district of Randfontein the accused did unlawfully possess ammunition of a calibre and quantity unknown to the state while they were not in possession of a firearm capable of firing such ammunition.

[6] The accused pleaded not guilty to all four counts. At the outset of the trial they indicated that their defence was one of an alibi. Both accused were represented by Advocate Hallam. Ms Britz represented the state. The accused did, however, make certain formal admissions in terms of Section 220 of the Criminal Procedure Act, 51 of 1977.

[7] These related mainly to the cause of death of the deceased, the correctness and accuracy of certain photographs, that an identification parade was held on Krugersdorp Prison on 30 March 2001, and that the correct procedures were followed before, during and after the identification parade. Photographs taken at the scene of crime, photographs taken at the identification parade, formal documentation in connection with the ballistic reports and the report of the post-mortem examination were handed to court as exhibits.

[8] It is common cause that Alfred Madala Sibanda, (to whom I shall hereinafter refer as the deceased), was indeed shot and killed on 3 January 2001 at or near 260 Ramatlodi Street, Zenzele Squatter Camp, Mohlakeng. There is no real dispute that the deceased was indeed robbed at or about the same time. The case turns entirely on the accuracy of identification and whether the defence of the accused with regards to their alibis could reasonable possibly be true.

[10] The first and principal witness called by the state was one Vincent Makgwana. He is currently 21 years of age. He had achieved standard 10 education. On 3 January 2001 he was at the Zenzele Squatter Camp in Ramatlodi Street. He was at the spaza shop at number 236 Ramatlodi Street. He arrived there at approximately 10:05 in the morning. He was standing outside the shop but inside the yard. At approximately 10:15 he saw a truck belonging to the Albany bakery arrives. It had previously stopped at another spaza shop some 50 to 60 metres away.

[11] The nose of the truck was pointing in the direction where he was standing at the time when it stopped. There were two people inside the truck. The vehicle stopped at the spaza shop at number 260 but the witness was standing at 236.After the Albany truck had stopped at 260 the assistant driver climbed out of the vehicle and went into the spaza shop. The driver remained seated in the truck. He had seen accused 1 and 2 walked past him and go towards the truck. As they arrived in close proximity to the truck accused 2 walked past the driver. Accused 1 went up to the driver, spoke to him, pulled out a gun and pointed it by to the driver. Accused 1 had pulled this firearm out from under a skipper and from the front of his trousers. Accused 2 at this stage had gone behind the truck. He then heard a single gunshot sound.

[12] This witness saw accused 1 open the door of the truck and pull the driver out. He could see the driver lying on the ground and seriously injured. At this stage accused 2 emerged from the side of the passenger seat, coming from the rear of the truck. Accused 2 had a gun in his right hand at this stage. After accused 1 had taken the deceased out of the truck he then removed certain items from inside the vehicle. After he had removed these items he ran away, running in the same direction from which he had originally come when he had walked past the witness. In his hands he had a firearm and a black bag which he had not been seen carrying previously when he had originally walked past the witness.

[13] Accused 2 ran away towards the back of the truck. The police were summoned by somebody who had a cellular telephone. The witness confirmed that he attended the identification parade held on 30 March 2001 and that he identified both accused 1 and 2 at that identification parade. He said that he knew both accused 1 and 2 from the neighbouring location, although not the actual squatter camp itself.

[14] At the time of the incident he had not known of their names. This witness made a minor contradiction in his evidence. In a statement he had made to the police he had not mentioned that he had seen accused 2 carrying a firearm, whereas in his evidence in court he mentioned that he had seen accused 2 carrying a firearm. In my view against the totality of the circumstances the omission in the police station of the mention of accused 2 carrying a firearm is of no consequence.

[15] This witness was an excellent witness. He stood up extremely well under able cross-examination from Mr Hallam. He had absolutely no doubt whatsoever about the accuracy of his identification.

[16] The next witness was Rebecca Magaya. She is approximately 28 years of age and ran the spaza shop at number 260 Ramatlodi Street, Zenzele Squatter camp. She used to buy bread on a daily basis from the Albany Bakery truck. In every material respect she corroborated the evidence of Vincent Makgwana. The detail with which both Rebecca Magaya and Vincent Makgwana were able to recall the events was truly impressive. Rebecca Magaya was not, however, able to identify the two persons who had participated in the attack.

[17] The last eye witness to be called by the state was Patrick Pogiso Selogiloe. He was 31 years of age and a standard 8 education. At the time had been the assistant driver in the Albany truck. He had been standing at the back of the truck when he heard a gunshot. It was a single shot that he heard, and he immediately ran from the back of the truck towards the front. There he saw accused 1. He had known accused 1 from previously and had seen him in Mohlakeng. He described how he saw accused 1 take a black bag which belonged to the driver. In this bag immediately before the incident there had been approximately R3 500.00 in cash.

[18] He also testified how a firearm, which the driver had kept in a holster attached to the door of the vehicle, had been removed. Photographs taken by the police immediately they arrived shortly after the actual attack show that there was indeed an empty holster in the door of the vehicle. This witness even knew of accused 1 by the name of Zari. This witness described how he saw two persons running away from the vehicle in the same direction. This evidence about two people running away in the same direction entail some discrepancy with the evidence of the previous two witnesses. In my view it is certainly not a fatal discrepancy. The following explanations are possible for the discrepancy. 1) That accused 2, having initially run away behind the vehicle turned around and then followed accused 1. 2) That in what was clearly a premeditated attack there could have been more than two persons involved in the attack. 3) That it was a genuine reconstruction of events at a particularly traumatic time. This witness was also an excellent witness, who had no doubt about the accuracy of his identification of accused 1.

[19] The investigating officer testified. He described the arrest of the accused person which took place on 1 February 2001, in the early hours of the morning at Diepkloof, Soweto. This was not the home of either accused 1 or 2, they were both together at the same time. He said that when he arrested the accused he explained their rights to them and that the accused elected not to give any explanation of there whereabouts on 3 January 2001. They did not tender any alibi as a defence at the time of their arrest.

[20] The last witness called by the state was Dr van der Westhuizen, the forensic pathologist. He confirmed that the deceased has been shot and killed as a result of a single bullet fired through the head.

[21] At the close of the State case accused 1 and accused 2 applied for the discharge in terms of Section 274 of the Criminal Procedure Act. By reason of the fact that there was the apparently satisfactory evidence of Vincent Makgwana implicating both accused 1 and 2, which evidence was corroborated in every material respect by the other witnesses and which evidence in respect of the identification of accused 1 was corroborated by Patrick Selogiloe, I had no hesitation in dismissing the application for the discharge of the accused.

[22] Accused 1 testified. His defence was a simple one. On 29 December 2000 he had been dispatched by his mother to visit an uncle at KwaThema near Springs to inform him of a cleansing ceremony that was to take place in January. He wanted to spend new year with his uncle and stayed over there, returning home only on 7 January 2001. He explained his absence from home at the time of his arrest in Diepkloof, Soweto by saying that a person known as Tsepo Mabatha, whom he at one stage described as his cousin and at another stage as his friend, wanted him to assist with some painting. With this in mind he has recruited accused 2, his friend, to assist him with this job.

[23] There are a number of unsatisfactory aspects in the evidence of accused 1. At one stage he said that the reason for going to visit his uncle at this critical time was that his mother had sent him. At another stage he said he had gone there because he wished to spend the festive season with his uncle. He performed an egg-dance as to what it was that he had in fact done on 3 January 2001. At some stages he said that he had been at the house looking after the children, at another stage that he had been sent to buy bread and milk, at another stage he said that he had done both. He was evasive and unsatisfactory as to why he could recall precisely what he had done on 3 January 2001. He contradicted himself as to whether Tsepo Mbatha had been his cousin or his friend. He tried to get out of this difficulty by saying that Tsepo Mbatha had been both his cousin and his friend. Curiously for the fact that Tsepo Mbatha was a cousin, some 26 years of age, he said he only gotten to know him and who he was some five years ago. When asked to explain how he was related to this person, he said he did not know, it was never explained to him. He just knew that they were related.

[24] Aspects of his version differed from what had been put to witnesses by his defence counsel. Aspects of his version that one would have expected to have been put on his behalf by his defence counsel were not. He could give no satisfactory explanation for why two witnesses, who were completely unconnected with one another, should both have identified him. He could give no satisfactory explanation for how it could be if Vincent Makgwana had randomly mistakenly identified both him and accused 2. That it should just so happen that these two were friends and, moreover, friends who happened to be staying together away from home at the time when the police were looking for them. Accused 1 admitted that when he had returned home from visiting his uncle he had been looking for him.

[25] Accused 1 called in support of his version his so-called uncle, Seun Moepi. The relationship seems to be this: that the father of accused 2’s mother Seun Moepi’s mother. He confirmed that round about 28 or 29 December accused 1 had come to visit him to inform him about the cleansing ceremony. He admitted under cross-examination that he had gone to work every day, except Sunday, and that he would not have been in a position to inform the court where precisely the accused was on 3 January 2001. He admitted that it would be possible to travel from his home at KwaThema to Mohlakeng and back in the course of a day. This incidentally was also the evidence of accused 1.

[26] Accused 1 also called his mother, Cynthia Nogwane Mangoele. She confirmed that she had sent her son to the uncle at KwaThema in Springs on 29 December 2000 and that he returned home on 7 January 2001. She confirmed that the police had visited her in early January and said that they were looking for her son. They informed her that he was a suspect in respect of a murder case. She admitted that she had no absolute certainty as to where the accused was on 3 January 2001. I have the following criticism to make of her evidence. She told the court that she had informed the police that her son was in KwaThema. She nevertheless wanted the court to believe that the police did not ask her whereabouts precisely in KwaThema he was staying. I find it very difficult indeed to believe that any policeman, no matter how incompetent, investigating a murder case and being told that a suspect is in KwaThema would not have inquired further as to the precise whereabouts of that person, and on her version, as I already indicated, she knew precisely where accused 1 was staying at the relevant time. Accused 1 then closed his case.

[27] Accused 2 had a version that bears a remarkable similarity to that of accused 1. He said that on 23 December 2000 he had gone to Maboloka near Brits in the Northwest Province, because he wished to spend the Christmas holidays and new-years day at his grandfather’s place. He had travelled there with one Vusi Madalosi, his wife and child and they had spent time together at accused 2’s grandfather’s home. Accused 2 said that he only returned home on 21 January 2001 and was then told tat the police were looking for him. This witness made a poor impression upon me. He contradicted himself as to what he had been doing on 3 January 2001. He also did a merry egg-dance between saying that he used to fetch water and that he would assist Visi’s wife in looking after the child. He could give no satisfactory explanation as to why it should have been that he would assist Vusi’s wife rather than Vusi himself. Aspects of his evidence were not put to State witnesses when they were cross-examined. He agreed ultimately that he could not be exactly sure what he had done on 3 January 2001.

[28] Accused 2 agreed that from time to time while he had stayed at his grandfather’s home he had spent time alone whether it was playing snooker games, fetching water and so on. It is clear from the evidence that although it would have taken slightly longer than for accused 1 to travel from KwaThema to Mohlakeng it would have been possible to travel from Brits to Mohlakeng and back in a day. One must bear in mind that it was then high summer and the days were long at the time.

[29] Accused 2 called his brother in defence to corroborate the fact that he had gone away to visit his grandfather before Christmas and he only returned on 21 January 2001. He conceded that he did not accompany his brother on this trip and that he could not say what he has been doing on 3 January 2001. Accused 2 also called Vusi Madlalosi, to whom I have already referred. He was called to corroborate this version of travelling to Brits with accused 2 and the fact that accused 2 had left later on in January after he had returned on 13 January. This witness was hopeless. At the beginning of cross-examination he contradicted himself as to whether he could recall having been with accused 2 every moment of every day. Eventually he was forced to concede that he could not say for sure what accused 2 had done with every hour of his day and that he could not say what accused 2 had done on 3 January 2001. Accused 2 then closed his case.

[30] Despite the fact that it was admitted on behalf of the accused that the identification parade had been properly conducted Mr Hallam later in the day made the following criticism of the identification parade. That accused 2 had been only one of two persons on the parade wearing bright red overalls. I refer to rule 8 “the suspects and the persons in the parade should be more or less of the same build, height, age, and appearance and should have more or less the same occupation and be more or less similarly dressed.”

[31] I accept that some criticism can be levelled at the way in which the identification parade was held by reason of the fact that two persons on the parade wore bright red overalls. This, in my view, is not fatal. In my experience as a judge it seldom happens an identification parade is held without any blemish whatsoever. A balanced approach is necessary. It must be born in mind that accused 2 was not the only person wearing a bright red overall. Furthermore, the accuracy of the identification must be viewed in the light of the totality of the evidence. Clearly the fact of only two persons wearing bright red overalls could not have loomed large in the mind of either accused 2 or his counsel, otherwise the admission that was made with regard to the fairness of the identification parade would not have been made.

[32] A note of caution must however be sounded. In my respectful view the proper approach of a court in an evaluation of evidence in a case such as this is excellently put in the case of S v van der Meyden, 1999 (1) SACR 447 (W), this is the judgment of Judge Nugent, now a judge of the Supreme Court of Appeal. I quote from 448 F:

“The onus of proof in a criminal case is discharged by the state if the evidence establishes the guilt of an accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent. (See for example R v Difford 1937 AD 370 at 373 and 383.) These are not separate and independent tests, but the expression of the same test when viewed from opposite perspectives. In order to convict the evidence must establish the guilt of the accused beyond reasonable doubt which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of each other. In whichever form the test is expressed it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt and so too it does not look at exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be true.”

He continues at 449C:

“Purely as a matter of logic the prosecution evidence does not need to be rejected in order to conclude that there is a reasonable possibility that the accused might be innocent. But what is required in order to reach that conclusion is at least the equivalent possibility that the incriminating evidence might not be true. Evidence which incriminates the accused and evidence which exculpates him cannot both be true. There is not even a possibility that both might be true. The one is possibly true only if there is an equivalent possibility that the other is untrue.”

At 449H he said:

“A court does not base its conclusion, whether it be to convict or to acquit on only part of the evidence. The conclusion which it arrives at must account for all the evidence.”

Finally at 450B:

“What must be borne in mind, however, is that the conclusion which is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable. But none of it may simply be ignored.”

[33] What do we have here? Both accusedwere highly unsatisfactory witnesses. I have grave suspicion as to whether their versions about travelling in the case of accused 1 to go and visit his uncle at the critical time and accused 2 to visit his grandfather were true. I am, however, prepared to accept that it may be reasonably possibly true that both of them were staying over this period with their uncle and grandfather respectively. In other words, I think that in the circumstances I am compelled to accept as reasonably possibly true the evidence of the uncle, for example that accused 1 was away from home over the period in question. I also accept the evidence of the accused’s mother about accused 1 being away from home, also as being reasonably possibly true. I furthermore accept the evidence of accused 2’s brother that accused 2 was away at the critical time as reasonably possibly true.

[34] Nevertheless, the fact that they were staying away from home at the critical time does not mean necessarily that they could not have been in Zenzele Squatter Camp at the critical time. Not a single corroborating witness is able to take this issue any further. No corroborating witness could exclude the possibility that each of the accused had been in Zenzele squatter camp on the day in question. As I have already indicated, the version of both accused 1 and 2 indicates that it would have been possible for them to have travelled from KwaThema and Maboloka near Brits respectively and returned back the same day.

[35] On the other hand we have the excellent evidence of Vincent Makgwana who identifies both the accused. His evidence was not only intrinsically convincing, he not only acquitted himself well and without any serious contradictions in his evidence, but there are the following facts that elevate his evidence to a particularly high quality indeed.

1) The evidence of Rebekka Magaya, who did not identify either of the accused corroborates his evidence in every material detail. 2) The evidence of Patrick Pogiso Selogiloe corroborate his identification of accused 1.

[36] Next, it was argued by his counsel that he accepted that Vincent Makgwana was not a dishonest witness but that he might have made a genuine mistake. It is extraordinary that he could have made a mistake about accused 1 when Patrick Pogiso Selogiloe also identifies accused 1 whom he knew as Zari. Next it is also extraordinary that Vincent Makgwana should have mistakenly and randomly identified two persons who just so happened to be friends, and who just so happen both of them to have been staying in the same house away from home at the time of their arrest.

[37] Finally, the accuracy of Vincent Makgwana’s powers of observation is objectively confirmed by the post-mortem report. It corroborates exactly what the witness described he had seen. It confirms exactly that a single bullet was fired. It confirms exactly that the driver must have been seated in the vehicle at the time because the bullet entered through the right side of the head and exited through the left.

[38] If one has regards to the evidence in totality then there can be no reasonable doubt as to the accuracy of both Vincent Makgwana and Patrick Pogiso Selogiloe’s identification of accused 1. There can also be no reasonable doubt as to the accuracy of accused 1’s identification of accused 2 having participated in this attack.

[39] It is clear from the evidence that these two persons acted in the execution of a common purpose. It is clear that accused 1 had a direct intention to kill the deceased and did in fact do so. As far as accused 2 is concerned, it is clear that he associated himself with the robbery, where he must have foreseen the possibility that somebody would be killed in the process. Accordingly accused 2 had at least an indirect intention to kill the deceased.

[40] It is clear that the accused committed robbery of the deceased in the execution of a common purpose. It is clear from the evidence that they were in unlawful possession of firearms each. It is not their version that they were found in possession of firearms which they lawfully possessed on the day in question, but were using such firearms for innocent purposes. With regard to the ammunition, it is clear that there must have been possession of at least one bullet, one that was required to kill the deceased. It is clear that accused 2 must be found guilty, on the basis of common purpose, of possession of at least this one bullet.

[41] The verdict of the court is as follows:

Count 1, murder, you are both found guilty as charged.

Count 2, robbery with aggravating circumstances, you are both found guilty as charged.

Count 3, unlawful possession of a firearm, you are both found guilty as charged.

Count 4, unlawful possession of ammunition, you are both found guilty as charged.

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