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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO:SS82/05

DATE: 2006/08/29

In the matter between

THE STATE

and

MTHEMBU SANDILE.................................................................................................... Accused

JUDGMENT

WILLIS, J: The accused Zandile Eugene Mthembu, a 25 year old man stands indicted on the following counts: Theft - count 1; and murder - count 2; and unlawful possession of a firearm - count 3: and the unlawful possession of arms and -ammunition - ammunition - count 4; and contravention of Section 51(1) of Act 51 of 1997, escaping from custody -count 5.

In respect on the count of theft it is alleged that on or about 14 June 2004 at or near Selona Road, North Cliff in the district of Johannesburg the accused did unlawfully and intentionally steal a 9mm Norinco semi-automatic pistol with serial number 42009137 and cash, to the extent of several hundred rand.

In respect of count 2, it is alleged that sometime between 14 and 17 June 2004 in at or near 24A Ninth Street, Linden in the district of Johannesburg, the accused did unlawfully and intentionally kill Immanuel Pilane (hereafter refer to as the deceased).

In respect of count 3 the unlawful possession of a firearm, it is alleged that during the period between 14 June and the 21 June 2004 and in various places and including those of the fitting counts 1 and 2, the accused had the 9mm Norinco pistol with serial number 42009137 without holding a licence, permit or authorisation to possess the firearm.

In respect of count 4 it is alleged that he had in his possession at the same time and places 10 live rounds and ammunition for use in the aforesaid firearm, without having the requisite licence.

In respect of count 5, the escape from custody it is alleged that on 21 of June 2004, and at or near 69 Elgin Mansions - corner Jeppe and Deiwers Street in the district of Johannesburg the accused did unlawfully and intentionally escape from custody after he had been lawfully arrested and before he had been imprisoned.

It is common cause that the accused do not have any permit to possess the arms and ammunition in question. He denies such possession however. At the commencement of the trial the accused pleaded not guilty in respect of all five counts. He tendered no plea-explanation. It is common cause that the deceased was found dead in certain premises which he rented at 24A Ninth Street, Linden.

He was found dead on 17 June 2004. The last time that anyone seems to have seen him alive was on 14 June 2004, It is common cause that the deceased died at as the result of a single bullet wound that was fired through his head. It is obviously from looking at the photographs of the deceased where he was found dead in his premises, that he has been dead for some time.

This is obvious from looking at the swelling that was caused by the flow of blood due to gravity in his eyes, as well as the markings on his hands also from blood having drained to the bottom. In the room where the deceased's body was found, were discovered a spent bullet head and the cartridge. These were sent for forensic analysis by ballistics experts. They were positively linked to the firearm in question - the Norinco pistol having serial number 42009137. In other words, the single gunshot wound from which the deceased died was caused by a bullet that was found from the pistol which allegedly had been stolen. A person known as Florence Sosiba testified. She is a domestic worker - or she was a domestic worker living at - living and working at 5 Ferlana Road, North Cliff at the time.

She is a woman involved in much good and charitable work. She was active in the ANC and she issued membership cards and was a member of the ANC Women's League. Generally she was keenly involved in community live where she worked. She said that she had known the accused from some time and that from time to time she had seen him at Pick 'n Pay.

He had visited her on several occasions and had come to see her to take out ANC membership. Indeed he had given her information concerning his address and ID number which she had recorded for this purpose. She said that she had learned that the accused was unemployed and had taken pity on him and had assisted him in filling in application forms for a job. He had visited her domestic quarters on Sunday the 13th and Sunday 6 June 2004.

He returned to visit her on Monday 14 June 2004, during her lunch hour. He was the only person to have visited in her room that day and gave access to the room which she shared with her husband. The evidence concerning the accused having visited Florence Sosiba is confirmed by her own husband. He recognised the accused as having visited their premises on at least one previous Sunday.

The witness Florence Sosiha said that during the visit by the accused to her on 14 June 2004, the bell rang and a person known to her as Phineas had come to see her. She went to see Phineas, leaving the accused in her room. She left her handbag on her bed when she left the accused to speak to Phineas.

After she had completed her short discussion with Phineas, she returned to her room. And after she had had a short conversation - a short conversation with the accused, she had to return to work at 14:00 before going to work.

Florence Sosiha's husband reported the matter to the police. Florence Sosiha knowing who the culprit was and having particulars about him, from her records of the accused having applied for ANC membership, she set about trying to find the accused and contacted various of his friends. Under cross-examination it was elicited from her that certain of his friends has seen the accused that day after the incident, carrying a firearm that was simitar to the one which her husband had.

Florence Sosiha says that she also discovered that a jacket upon which there was an ANC logo on the left-hand side of the chest, had gone missing during this visit by the accused. Sergeant Johannes Masisi testified that acting on certain information, he arrested the accused on 21 June 2004. He was together with one inspector Shongane, who is too ill to testify in court. The accused was arrested at his flat here in town. At the time of his arrest, the accused had the aforesaid Norinco 9 mm Parabellum semi-automatic pistol with serial number 42009137 inside his trousers in the front.

He said that after affecting the arrest the accused volunteered to show him the place where the ammunition for the firearm had been obtained. In the firearm was a magazine with ammunition. The accused look him and Inspector Shongane to a flat at 61 Elgin Mansions on the corner of Jeppe and Delwers Street. The police could find nothing and became suspicious. The accused requested the opportunity to use the toilet.

He was allowed to do so and went into the toilet. He escaped going through the window. It would seem that he was familiar with this back of the entire building. Quite by chance the next day he and Inspector Lebea together with others, saw the accused at Park Station in Johannesburg and proceeded to arrest him.

The accused put a massive struggle and resistance and three grown policemen could only affect the arrest of the accused with the security guards and remembers of the public. One Steven Moluadi testified that he had been friends with both the accused and the deceased. The common point of reference being the premises at 24A Ninth Street, Linden

Steven Molaudi's mother Violet Moluadi, who testified in the case concerning the body of the deceased. She occupied the premises there as had the deceased and, before him, the accused. Steven Moluadi said that they had gone out together, the three of them. He said that the accused had believed that the deceased had have a relationship with a girl known as Hazel, who worked at a place known as Savannah.

The accused had had a relationship with this person known as Hazel at some time previously. The deceased had expressed his fears for his safety on several occasions to this witness. He had said that he - that it is the deceased - has said that the accused wanted to shoot him. He had even seen the accused assault the deceased in connection with this very issue of the girl known as Hazel.

The accused's version of events is the following. He denies having ever been to the premises of Florence Sosiha. He denies having stolen the firearm from her. He denies the possession of the firearm and he said that when he was arrested, the firearm was not on his person, but on the couch on the premises where he was living at the time.

He denies having even known the deceased, never mind having killed him. He denies having escaped from custody, but said that the police solicited a bribe from him in order to secure his release. They wanted R3 000 and he was successfully raising R2 000 which is why they went to the premises at Elgin Mansions, (i.e. to obtain money).

He said that he was released by the police, even though he was only successful in raising R2 000. He denies having resisted arrest, but said that he went up to the police himself. The accused when he testified said that the police had assaulted him at Elgin Mansions. He never put this version of events to Sergeant Masisi.

He also denied that when Sergeant Masisi arrested him, he had been wearing a jacket with an ANC logo, similar in description to the one that Florence Sosiha noticed was missing the accused had visited her on 14 June 2004. This aspect of Sergeant Masisi's evidence were never disputed when he testified. Sergeant Masisi's relating to the accused having resisted arrest, was corroborated by Inspector Lebea.

Sergeant Masisi and Inspector Lebea impressed me as candid witnesses. The evidence of Sergeant Masisi is corroborated by Inspector Lebea with regard to the resistance of the arrest on 22 June. The witness Florence Sosiha impressed me enormously. Furthermore, her evidence is corroborated by her husband not only in respect of the fact that the firearm must have been taken on 14 June 2004, but also the fact that the accused had previously visited their premises at 5 Felerno Road, North Cliff.

The witness Steven Moluadi also impressed me with his candour. The accused called no supporting witnesses to corroborate his alibi that he was elsewhere on 14 June 2004 and was not in the area of Linden over the time when the deceased was shot and killed. The most important difficulty that the accused has, is the fact that five witnesses who do not know one another - well, certainly did not know one another prior to the incidents in question, should have collaborated so skilfully on incidents which ex facie themselves, would having regard la those facts standing alone have had no connection with one another.

I am referring to the evidence of Florence Sisba and her husband and Steven Moluadi and Sergeant Masisi and Inspector Lebea. I accordingly reject the evidence of the accused where it is in conflict with that of the state witnesses. I therefore accept, as proven, the fact that beyond reasonable doubt that the accused stole the Norinco pistol having a 9mrn Norinco Parabellum pistol having serial number 42009137 on 14 June 2004.

I also accept as proven beyond reasonable doubt the fact that the accused was in an unlawful possession of the arm and ammunition during the period 14 June 2004 to 21 June 2004, namely the pistol that was stolen and ammunition that was capable of being discharge from that firearm. I also accept as proven beyond reasonable doubt that the accused escaped from lawful custody. It only remain in question is whether he is guilty of murder.

The following facts are proven beyond reasonable doubt;

[i] The accused stole the firearm in question.

[ii] The deceased was last seen alive on the day that the firearm was stolen.

[iii] The deceased was found dead on 17 June 2004, and in all probability died on 14 or 15 June 2004.

[iv] The deceased died from a single bullet wound which was
conclusively proven to have been caused by a bullet that was fired from the firearm that the accused stole earlier.

[v] The firearm which was stolen and from which the bullet which
killed the deceased was fired, was found on the person of the accused on 21 June 2004.

[vi] The accused, with considerable deviousness, lead the police astray to premises from which he was able to make an escape.

[vii] The accused actively and vigorously resisted arrest on 22 June 2004.

[viii] The accused had a history of using physical violence against the deceased and have threatening the deceased, by reason a grudge which
he bore against the deceased over a woman called Hazel.

[iv] The accused is an out and out liar.

If one views all these facts in their totality, then I am persuaded that the only inference which one can draw beyond reasonable doubt is not only that the accused is guilty of the murder of the deceased, but that he planned the murder of the deceased, and had a direct intention to kill him.

Count 1: theft, you are found guilty as charged.

Count 2: the murder of Immanuel Pilane you are found guilty as charged.

Count 3: the contravention of Section 3 read together with Section 1 103 117 120 (1)(a) Section 121 read with Schedule 4 and Section 151 of the Firearms Control Act 60 of 2000 and further read with Section 250 of the Criminal Procedure Act 51 of 1997 as amended {unlawful possession of a firearm) you are found guilty as charged.

Count 4: contravention of Section 90 read with Section 120(1) and Section 121 read with Schedule 4 and Section 151 of the Firearms Control

Act 60 of 2000 and further read with Section 250 of the Criminal Procedure Act 51 Df 1997 (unlawful possession of ammunition) you are found guilty as charged.

Count 5: the escape from custody, you are found guilty as charged.

Counsel for the State: Advocate WJ Harrington

Counsel for the Accused: Advocate Buthelezi (instructed by the Legal Aid Board)

Dates of hearing: 24, 25 and 28 August 2006 Date of Judgment: 28 August 2006

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