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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CC 184/05

In the matter between:-

THE STATE

AND

JAPIE MORUDU & TWO OTHERS

CRIMINAL MATTER

GURA J.

DATE OF HEARING : 22 June 2006

DATE OF JUDGMENT : 11 September 2006

COUNSEL FOR THE STATE : Adv. D. Moeketsi

COUNSEL FOR ACCUSED 1 : Adv. Mojuto

COUNSEL FOR ACCUSED 2 : Mr Kanyane

COUNSEL FOR ACCUSED 3 : Mrs E. Kgang

JUDGMENT

[1] The three accused appear before this court represented by Mr Mojuto, Mrs Kgang and Mr Kanyane respectively. The charges in respect of counts 4 and 5 were withdrawn against accused No. 2. The accused are facing the following charges:-

COUNT 1

HOUSE BREAKING WITH INTENT TO STEAL AND THEFT

In that upon or about 11^th March 2004 and at or near Temba in Unit 7, in the district of Moretele, the accused did unlawfully and with intent to steal, break open and enter the house of Johanna Sebola, an adult female person and did there and then steal a Norinco 9mm firearm with serial number 02176 and cash in the amount of R200.00, the property of or in the lawful possession of Johanna Sebola with intent to permanently deprive her of ownership or possession thereof.

COUNT 2

ROBBERY WITH AGGRAVATING CIRCUMSTANCES

In that upon or about the 12^th March 2004 and at or near Babelegi in the district of Moretele, the accused did unlawfully and intentionally use force and violence to induce submission by Epharaim Maphuruma, an adult male person and took from his possession the following items: Nokia Cellphone, Cash. Aggravating circumstances as defined in section 1 of Act 51 of 1977 being present in that a firearm was used to shoot and kill the complainant.

COUNT 3

MURDER

In that upon or about 12^th March 2004 and at or near Babelegi in the district of Moretele, the accused did unlawfully and intentionally kill: Ephraim Maphuruma, an adult male person by shooting him with a firearm.

COUNT 4

MURDER

In that upon or about the 12^th March 2004 and at or near Leboneng in the district of Moretele, the accused did unlawfully and intentionally kill Jacob Sello Lekgetho, an adult male person by shooting him with a firearm.

COUNT 5

RAPE (READ WITH PROVISIONS OF SECTION 51 (2) OF CRIMINAL LAW AMENDMENT ACT) (IN RESPECT OF ACCUSED 1 AND 3 ONLY)

In that upon or about the 12^th of March 2004 and at or near Leboneng in the district of Moretele, the accused did unlawfully and intentionally have sexual intercourse with B.M. an adult female person without her cosent.

COUNT 6

CONTRAVENTION OF SECTION 3 READ WITH SECTIONS 1, 103, 117, 120(1) (a) AND SECTION 121 READ WITH SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60 OF 2000 AND FURTHER READ WITH SECTION 250 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977:
(POSSESSION OF FIREARM)

In that upon or about the 11^th of March 2004 and at or near Babelegi in the district of Moretele the accused did unlawfully have in their possession a firearm to wit Norinco 9mm firearm with serial number 02176 without holding a license to possess same.

COUNT 7

CONTRAVENTION OF SECTION 3 READ WITH SECTIONS 1, 103, 117, 120(1) (a) AND SECTION 121 READ WITH SCHEDULE 4 OF THE FIREARMS CONTROL ACT 60 OF 2000 AND FURTHER READ WITH SECTION 250 OF THE CRIMINAL PROCEDURE ACT 51 OF 1977:

(POSSESSION OF AMMUNITION).

In that upon or about the 11^th of March 2004 and at or near Babelegi in the district of Moretele the accused did unlawfully have in their possession an unknown quantity of 9mm ammunition without being holders of permits to posses same.

[2] Accused 1 pleaded not guilty on all counts. Accused 2 pleaded guilty on count 2 but not guilty on counts 1,3,6 and 7. Accused 3 pleaded not guilty on all counts. Accused 1 and 3 made no plea explanation whilst Accused 2 did. In respect of counts 1, 6 and 7 he stated that he went to that particular house in the company of Accused 1, 3 and Kgomotso. He knew that house to belong to Accused 3’s aunt and he did not know that Accused 3 was not authorised to enter it. He remained outside as Accused 3 entered it. In respect of count 2, he stated that they met two men, he searched one of them with intent to rob him but he found nothing in his person. He denies that he had a firearm. When he heard the fire shot, he was already over the bridge. A plea of not guilty was therefore entered. On count 3, he denied to have killed the deceased.

[3] The following admissions were then recorded in terms of Section 220 of the Act:

1. The identity of the deceased in both counts being Ephraim Maphuruma and Jacob Lekgetho respectively

2. Mr Maphuruma’s date of death being 12 March 2004 and the cause of death being gun shot wound to the head.

3. Mr Lekgetho’s date of death being 12 March 2004 and the cause of death being gun shot wound left chest.

4. The two bodies sustained no further injuries until the post-mortem was held on 17 March 2004.

5. Dr Kekana recorded the post-mortem finding on Exhibits B and C respectively.

6. Both findings as reflected on Exhibit B and C are correct.

7. The photos, exhibits D and E are the photos taken at the two scenes and at Ga-Rankuwa Government Mortuary.

[4] A medical report, in respect of the victim of rape in count 5 was handed in as Exhibit F, by consent. The finding of the doctor is that B. sustained no injuries, either on her genetalia or on her body.

[5] With the agreement of the defence, Accused 2’s statement to a magistrate was received as Exhibit G. This is what he told the magistrate:-

On 11 March 2004 he was with Shimi and Japie when they bought a key. Shimi then told them to accompany him to his parental home in order to fetch a firearm. They went there. Shimi took the firearm and they went back to the shopping complex to buy food.

[6] The subsequent day they went to the shopping complex, then to a certain house where they consumed liquor. Around 17h00 they proceeded to Leboneng where they consumed three beers. They proceeded to a garage where Japie’s father gave him (Japie) R20-00. They proceeded to Babelegi still in the company of Kgomotso.

[7] They went home using the Temeteme road. Two people emerged from the opposite direction just before the four crossed Temeteme. As they approached them, Japie produced a firearm and bridged it. One of the two fled whilst the other one remained behind. Accused 2 personally searched him, but found nothing. However, Shimi found a cell-phone and a wallet containing R90-00 from him. They left that person and rushed to the bridge. As they neared the bridge he heard gun shots. He does not know what happened. On the way home, Shimi gave Accused 2 the cell phone of that person. At a certain Spaza shop, the sim card of this cell phone was taken out.

[8] They proceeded to Fana’s place where they bought liquor and consumed it. Next, Accused 2 went to Mokoena’s place. Later, he went to Bennet’s place where Japie, Shimi and Kgomotso found him. Neo was also there. Shimi then told him that Japie had raped a lady at the Park next to Madisong Middle School. Later Japie also confirmed that he had raped that lady and that Shimi was the first person to rape her. They told Accused 2 that they found that lady in the company

of her husband. The subsequent day Shimi asked Accused 2 to assist him in tracing Japie because he had left with the firearm. They went along looking for him. They sold that cell phone to Mapula for R200-00.

[9] With the agreement of the defence, Accused 3’s statement to a magistrate was received as Exhibit H. This is what he told the magistrate. On 11 March 2004 at 11h00 he was with Japie, Tshepo and Kgomotso when they went to make a spare key at a hardware in Temba. Thereafter they proceeded to Accused 3’s aunt’s (Johanna Sebola) house. They opened it with the said spare key, and took a firearm.

[10] The subsequent day, after drinking liquor at several places, they went to a BP garage where Japie’s father worked. Japie was given R20-00 by his father which he used to buy a soft drink for Kgomotso. They drank two beers at a Sebokeng tavern. They left that place at 17h00. As they were walking, Japie and Tshepo stopped in order to relieve themselves. Accused 3 and Kgomotso walked two meters ahead of them. Two men emerged running from the firms. Japie bridged the firearm. One of the men ran away. They apprehended the other one. Japie pointed him with a firearm whilst Tshepo searched him. Tshepo took out a wallet and a cell phone from his pockets. Jappie then asked Tshepo to move side-ways and he started to shoot. The victim fell down. Japie ordered them to run away and that he would catch up with them. They ran and Japie as well as Tshepo caught up with them later.

[11] When they arrived at Leboneng, Tshepo searched the wallet and found R90-00 cash therein. This money was used to buy three beer quarts and the change was given to Kgomotso. They bought more beer until only R50-00 cash remained. Tshepo disappeared. Around 20h00 they proceded to Ledimo tavern where they bought four (4) beer quarts. The balance was given to Kgomotso. Subsequently, they were joined by Neo Lebese.

[12] After leaving that place they met a gentleman and a lady. Japie bridged the firearm. Accused 3 and Japie were at the front whilst Kgomotso and Neo were at the rear. Japie ordered the couple into the bush, next to Itireleng. Then Neo, Japie and Kgomotso got hold of the man. They slapped him several times. At that stage, Accused 3 stood with the lady at the corner. They demanded money from him whereupon he indicated that he had none. Japie then told him that he was taking his girl. He (Japie) then fired a shot. That man screamed. They all ran towards the park. Arriving there, Accused 3 and Japie raped that lady. Neo and Kgomotso were watching and laughing in the process. The victim was told to go and she left.

[13] On their way to Leboneng Japie fired a warning shot. At Mizar tavern, they bought two beer quarts. Later, at Bennet’s place, they bought two beer quarts. That night, Accused 3 slept with Neo whereas Japie slept with Tshepo.

[14] Mrs Johanna Sebola was the first state witness. She is an aunt to Accused 3. Previously, they used to leave the house key at one Mdala’s place and Accused 3 was aware about this arrangement . On 10 March 2004, R200-00 cash and a firearm were stolen from her house. This money and the firearm were kept in the same bedroom. This weapon is a 9mm Parabellum serial No. 02176.

[15] Mr Stephen Manganyi testified as follows:-

On 12/3/06 he was with the deceased in count 3, walking from work. Between the firms and Noka ya Tshwane they met three boys. These boys grabbed him. Stephen was held by one of the three men. The other two held the deceased. Stephen slipped out of his grip and fled. The other two pulled the deceased towards the river. The third one joined them. Stephen went back – fifteen paces away from them intending to assist his colleague.

[16] The deceased raised his hands. One of them had a firearm. Two of the three searched him. They took his wallet and a cell phone. The gunman did not search him. He turned in order to run away. There was fireshot sound. The deceased fell down. He ran to phone the police. Later he came to the scene to find the deceased sprawled there bleeding profusely, lifeless. He searched him – his wallet and cell phone were missing. Under cross examination he told Court that he was not searched as he broke loose and fled before he could be searched. That is why his wallet and cell phone were not stolen.

[17] B.M.’s account of the incident is the following:-

On 12/3/2006 at around 21h00 she was with the deceased in count 4. He was her lover and they were on the way to his place. They met three boys and a girl. One of the boys pointed a firearm at Sello and demanded money and a firearm. Neither did they have a firearm nor money. Only two boys kept themselves busy with this couple. The boy and the girl were just looking on. They pulled them behind the creche. He was thrown down and ordered to lie on the grass by the gun man. He was told that his lover would be raped in his presence. He stood up in order to flee but the gunman fired a short at him. The other boy was still holding her. Thereafter, these two ran away with her to a park where they raped her, each once. After this incident she was allowed to go away, on the way she came across a sprawled man who turned to be the deceased – Sello. She reported this whole incident to a lady called Queen. Her evidence under cross-examination is to the effect that there was an apolo light near the place where the deceased was shot. At the scene of rape, there was also light. The gunman was a bit tall, dark in complexion. He had a scar on the left face. Both of them were of almost the same hight. Both of them talked Setsonga / Shangaan. She is 24 years old and has no children.

[19] Queen Monana, the fourth witness, testified that Sello, the deceased in count 4, was a tenant at her house. She confirmed that on the night of the incident, B. made a detailed report to her about the rape on her and the shooting of the deceased.

[20] The next witness was Neo Lebese. He is a friend to Accused 3. He knew Accused 1 and 2 through Accused 3. On 12/03/04 he met Accused 1, 3 and Kgomotso at a tavern at Leboneng. They drank black label beer. Later, the four of them proceeded to another tavern at Temba. They drank one beer quart there and left. As they were walking, Neo and Kgomotso were ahead of Accused 1 and 3 who were at their rear. A boy and a girl then emerged from their front. Accused 1 and 3 then took this couple into the bush. Neo and Kgomotso walked back to see what was happening.

[21] They found Accused 3 holding a lady with both his hands, his pants were unclad up to the knee level. At that stage Accused 1 was busy hitting the boy with open hands. They walked past them and when they were about 15 paces away they heard a gun shot. A person screamed. The time was between 21h00 and 22h00. Neo then took Kgomotso to her place, leaving the other people at the scene. Later that night he met Accused 1 and 3 again at Leboneng after he had taken Kgomotso to her place. He asked them what happened to that couple. Whereupon he was told that nothing happened. Accused 1 however warned him not to tell anyone about what he saw. These three went to Kgomotso’s place. This Kgomotso is a girlfriend to Accued 3’s elder brother. Accused 1 then told them that they had free sexual intercourse with that girl. They proceeded to Bennet’s place where they drank liquor.

[22] The following is what emerged in cross-examination”-

Neo knew Accused 1 just a few months before the day of this incident. At the first tavern, they drank four black label quarts. He conceded that he was drunk but could appreciate what was happening. When they met this couple, Neo and Kgomotso were walking twenty one paces ahead of Accused 1 and 3. Apart from this four and the couple, there were other people in the vicinity. Accused 1 speaks Setswana. He cannot speak Setsonga. But he normally talks a language which Neo and others do not understand. Accused 3 however is able to speak Setsonga. He did not see any firearm either in the possession of Accused 1 or Accused 3 at the scene. On the day of this incident, Accused 1 had a scar on the left face which had been caused by a bottle. When they went to wake Kgomotso up later that night, Accused 3 was drunk.

[23] Kgomotso Mothobi was warned i.t.o. Section 204 of the Criminal Procedure Act. She testified to the effect that Accused 1 and 2 are friends to her lover. Accused 3’s mother and Kgomotso’s lover’s mother are sisters. On 12/3/04 at around 08h00 to 09h00 all three Accused came to her place. The four then proceeded to Checkers to buy electricity coupon. However, instead of buying a coupon, they bought food. Thereafter they went with Nkele to her house where they drank liquor – it were four black label beer quarts which they bought at this tavern. Later, this four left for Maepa’s tavern. Accused 1 bought three quarts of black label beer. They drank it.

[24] They proceeded to BP Garage at Babelegi where Accused 1 went to see his father. His dad gave him R20-00 and a can of coke. It was at that garage that Accused 1 produced a firearm from his waist and pointed it at a person who works there. He put it back in the front part of his waist belt. They went to another tavern at Babelegi. Accused 1 bought three beer quarts. After consuming them, they left. Towards the bus stop, Accused 1 insulted some people. Accused 1 then instructed her to move upfront alone. They followed her. It was around 16h00 – 17h00.

[25] She crossed Temeteme bridge – a foot bridge which is made of steps. Not more than two people can cross it simultaneously. It is small. It is shaky. Just after crossing the bridge she heard a gun shot, behind. The first person to reach her was Accused 3. Because it was raining, Accused 3 and Kgomotso waited at a bar. At that stage Accused 1 joined them. Accused 2 waited at the stall. Accused 3 asked Accused 1 what he did whereupon he said “I killed him”. Accused 1 then produced a black wallet containing R90-00. He gave Accused 3 some of this money and kept some for himself. He threw the wallet away.

[26] Accused 1, 3 and Kgomotso then went to Fana’s tavern. They parted with Accused Accused 2 at that stall. They bought 2 x 750ml beers there and drank them. They found Neo Lebese at that tavern. This four went to Chris Hani on request by Accused 1. Accused 3 bought ¼ bread at a shop there and shared it with Kgomotso. At Rampi’s tavern, they found Accused 1’s lover. They bought one 750ml beer and drank it as they were going away. They were now on their way to Ledimo’s tavern. At this tavern Accused 1 produced R20-00 and one beer was bought – a quart.

[27] This four then left for Leboneng. Accused 1 and 3 were walking at the front , Neo and Kgomotso were at the back. A couple emerged from their front, Accuse 1 and 3 followed this couple. Neo and Kgomotso also followed the two Accused to see what was happening. Accused 1 slapped the girl and instructed her to tell the boy that she was no longer in love with him. He pushed her towards the grass. He pushed the boy to the side i.e. Accused 1. Accused 3 stood there next to the lady with his pants at knee level. Accused 1 instructed that boy to stand up and run. He stood up and ran but bumped against Kgomotso’s left hand. Kgomotso and Neo left. As they were walking, a person screamed from behind. A gunshot sounded at the rear.

[28] Neo dropped Kgomotso at her place and left. Later that night, this trio came back again – it was Accused 1, 3 and Neo. They were talkative and noisy at the gate. Kgomotso went out to hear that Accused 1 and 3 had free sexual intercourse that night. As they proceeded to Bennet’s place, Kgomotso asked them what happened. Accused 3 said that Accused 1 had committed rape.

[29] In cross examination, she testified that at the garage, Accused 1 had a firearm. (The statement of Kgomotso to the police was handed in as Exhibit K. In it, she never mentioned that after crossing the Temeteme bridge Accused 1 admitted that he had just killed a person). According to her, she concealed this information because she was afraid of Accused 1.

[30] The evidence of Inspector Segale is of very little importance to this Court. Why his evidence was led at the stage at which it was led and not in a trial within a trial is to me unknown. His evidence would have been vital in a trial within a trial.

[31] After Inspector Segale had testified however, a trial within a trial was held in respect of a statement allegedly made by Accused 1 to a magistrate. The issues for decision were whether:-

• The statement was induced by threats of assault and assault from the police

• Some of the contents of the statement were authored by the police in that they schooled Accused 1 what to say to the magistrate.

After listening to evidence (in a trial within a trial), I ruled that the alleged confession was inadmissible as evidence and reserved reasons thereof. Here then are the reasons:-

[32] The state had proved in the trial within a trial that Accused 2 and 3 were assaulted by the police. This the state did, by handing in the confession of Accused 2 and 3. In those confessions, Accused 2 and 3 stated that they were assaulted during interrogation. Despite that the police denied to have assaulted any of the three Accused, but part of the evidential material of the state, which is before court, is that they assaulted Accused 2 and 3. All that Accused 1 did under oath was to corroborate the version of Accused 2 and 3 as contained in their confessions. Accused 1 went further, however, and stated that he was also assaulted at the same place and at the same time as and when his co-accused were assaulted. Now the question is if the police assaulted Accused 2 and 3 (which they deny under oath), why cant they deny under oath equally that they assaulted Accused 1 if they did that. The second question is: If the very same police assaulted Accused 2 and 3 in the presence of Accused 1, why did they spare Accused 1? Consequently, the evidence of Accused 1 that he was assaulted in order to induce the confession, is reasonably possibly true. After the ruling in the trial within a trial was handed down, the state closed its case.

[33] Accused No. 1 then took the witness stand and this is what he told the court. On 11/03/04, Accused 3, after he was given R10-00 for food by his sister, bought a duplicate key to his aunt’s house (the complainant in the first count). Accused 3 promised them that they would buy food only after he had gone to his aunt’s house. En route to that house, Accused 1 and 3 parted with No. 3 to go and buy cigarettes. Therefore, Accused 3 went to that house alone. Later, Accused 3 joined them and they proceeded to the shopping complex where they bought food. Accused 1 did not know what Accused 3 went to do at his aunt’s house with the key. He (Accused 1) never saw any firearm. That night, the three accused spent the night at Majaneng, at Accused 3’s aunt’s house.

[34] The subsequent day, they went to Maisa’s tavern where they drank more than five beer quarts. Kgomotso joined them there. Later, they went to Lolo who owed Accused 1 some money. He paid him. He gave Kgomotso R100-00 out of this money for her to buy food. They proceeded to Nkele’s tavern where they drank more than eight beer quarts. Next, they went to Maepa’s tavern. They drank more than six beer quarts. Around 16h00 that day they proceeded to Accused 1’s father who gave him R100-00. His father bought Kgomotso a groovy coke with a R20-00 note and gave Accused 1 the change thereof. They went to Sebokedi’s tavern. They consumed more than four beer quarts. When they left this place, it started to rain. He advised them that they should start running in order to avoid being wet. Accused 2 and 3 were drunk and did not respond. However, Kgomotso ran ahead as Accused 1 ran behind her. They were about 17 to 20 paces apart. Accused 2 and 3 were behind Accused 1, also at a distance of about 17 to 20 paces.

[35] There were many people walking around there. As Kgomotso was on the bridge, Accused 3 passed Accused 1. Then Accused 2 joined Accused 1. But before Accused 2 and 3 passed Accused 1, he (No.1) heard something like a gunshot behind. At Maisa’s tavern they drank more than five beer quarts. At that place Accused 2 disappeared. Neo Lebese then joined them.

[36] At sunset, this four proceeded to Chris Hani. Throughout that day, he never saw anyone who had a firearm. At the two rooms section, they entered Ledimo tavern and drank six beer quarts. Thereafter, he told his companions that he had an appointment with Maria for 20h00. He parted with them at the tavern road to honour his appointment. He was with Maria Mokwena from 20h00 until 22h15 that night. On the way from Maria’s place he came across Neo and Accused 3.

They went to Kgomotso’s place. Having found Kgomotso they went with her to Bennet’s tavern where they enjoyed four beer quarts. They found Accused 2 at that tavern. Accused 1, 2, 3 and Neo spent the whole night together on that day. Ever since Accused 1 and 3 met, there was always a good mood. He never forced him to do anything.

[37] Under cross-examination, he testified that during March 2004 he was unemployed. However he is the only one who bought all the 29 beer quarts which they drank. Lolo gave him R100-00 which he gave to Kgomotso to buy food.

[38] Accused No. 2 testified effectively repeating the contents of his confession, Exhibit G.2. There are, however, some variations between his confession and his evidence in court. More about this later in this judgement. Accused No. 3 also testified in line with the contents of his confession although there are certain differences in the two accounts.

[39] It is trite law that the state bears the onus of establishing the guilt of the accused beyond reasonable doubt, and the converse is that the accused is entitled to be acquitted if there is a reasonable possibility that he might be innocent (R v Difford 1937 AD 370 at 373).

[40] The evidence of Mrs Sebola was formal in nature and she did not implicate any of the accused. The Court accepts her evidence as a reliable account of what happened. Mr Steven Manganyi did not contradict himself despite a thorough cross-examination. There are no material contradictions in his evidence. There is therefore no reason why this Court should not accept his evidence.

[41] Ms Busisiwe Masango gave the Court the full details of her harrowing experience that night. She was at times in tears as she relived this incident. The Court is satisfied that she was an honest witness. Mrs Queen Monama confirmed that indeed B. reported to her that night. I am satisfied that Mr Neo Lebese knows these accused quite well. He did not contradict himself, instead, his version was confirmed by Ms Kgomotso Mothibi. They differ on the question whether Accused 1 and 3 were walking at their rear or front. But, in my view, this is a peripheral issue. The Court accepts her explanation for withholding certain information from the police for fear of Accused 1. The Court is satisfied further that Neo and Kgomotso were honest witnesses.

[42] The Court is of the view that Accused 1’s explanation in regard to all the crimes in nothing near the truth. The evidence is overwhelming that he had a firearm at all the scenes of crime and that he was the ring leader. As regards Accused 2, his explanation in chief about the visit to Mrs Sebola’s house is the following: when Accused 1 and 3 entered the hardware store (in order to buy the house key) he did not know the purpose of their entry in that store. He was therefore merely requested to go with them to Mrs Sebola’s house. He walked with them from the shopping mall but he and Accused 1 did not go to Mrs Sebola’s place. They waited for Accused 3 at a tuckshop. His explanation to the magistrate (in a confession) is something different from the above. Therein he stated that he was with Accused 1 and 3 when they bought the house key. Accused 3 then told him to accompany him to his parental home in order to fetch a firearm. They went to Mrs Sebola’s house, Accuse 3 took the firearm and they went back to the shopping mall. Which of these two versions is now the truth? The Court is satisfied that Accused 1 and 2 did go with Accused 3 to Mrs Sebola’s house. Whether or not they (Accused 1 and 2) entered the house, is another question.

[43] Accused 3 spent the whole of the day of the 11 March 2004 in the company of Accused 1. Everything was peaceful between them. Accused 1 fed him with liquor until he was near drunk. He further bought them food. All of a sudden he forced him to rape B. failing which he would shoot him. After this rape however, they went away together and they slept together, in the same house, at Accused 3’s uncle’s house. Everything was peaceful. It is clear from these facts that Accused 3 is lying to say that he got an erection under threat of a firearm and even had sexual intercourse with the victim under threat of death. He did it voluntarily. Even before the deceased’s lover was killed, at the time when Accused 1 was busy hitting the deceased, Accused 3 was ready for sexual intercourse, his pants already at knee level.

[44] The Court now proceeds to evaluate the evidence count by count. First, count 1, housebreaking at Mrs Sebola’s house. Accused 3 told the court that he cut the house key due to the insistence of Accused 1 and 2 because they knew the key number. They wanted the gun, to sell it so that they would get bail money for his brother. He says that Accused 1 threatened to assault him if he did not cut the key. In my view, the threat of assault here is yet another lie. There was no compulsion from either Accused 1 or Accused 2. Accused 3 goes further to say that all three of them then unlocked the house and they took the firearm. Now the only evidence which implicates Accused 1 and 2 is that of Accused 3 who is a single witness and who is in the same position as an accomplice.

[45] Section 208 of the Criminal Procedure Act provides:-

“An accused may be convicted of any offence on the single evidence of any competent witness”

A court is entitled to convict on the evidence of a single witness if it is satisfied beyond reasonable doubt that such evidence is true. The court may be satisfied that a witness is speaking the truth notwithstanding that he/she is in some respect an unsatisfactory witness (R v Abdoorham 1954 (3) SA 163 (TPD). In brief, the evidence of a single witness has to be satisfactory but not necessarily perfect.

[46] The evidence of a single witness is subject to the cautionary rule. This means that the trier of fact must warn himself / herself against the dangers in convicting on the uncorroborated evidence of a single witness. (R v Mokoena 1932 OPD 79). The utmost care which a judicial officer should adopt was aptly stated in S v Sauls and Another 1981 (3) SA 172 (A) at 180E as follows:-

“There is no rule of thumb test or formula to apply when it comes to a consideration of the credibility of a single witness. The trial Judge will weigh his evidence, will consider its merits and demerits and, having done so, will decide whether it is trustworthy and whether, despite the fact that there were shortcomings or defects or contradictions in his testimony, he is satisfied that the truth has been told”.

[47] The evidence of an accomplice must also be approached with caution. Holmes JA is S v Hlapezulu and Others 1965 (4) SA 439 (A) at 440 D-E sets out the rationale behind this caution.

“First, he is a self confessed criminal. Second, various considerations may lead him falsely to implicate the accused, for example a desire to shield a culprit or, particularly where he has not been sentenced the hope of clemency. Third, by reason of his inside knowledge, he has a deceptive facility for convincing description – his only fiction being the substitution of the accused for the culprit”.

A rule of practice has therefore evolved in terms of which some form of corroboration of an accomplice’s evidence is necessary. Such corroboration “takes the form either of evidence corroborating the accomplice’s evidence in a material respect or evidence implicating the accused in the commission of the offence” (S v Khumalo 1998 (1) SACR 672 (NPD) at 679B).

[48] In my judgment, the Court has already said it more than once, that Accused 3 was a liar. He is therefore a dishonest witness. It would be dangerous for the court to rely on such evidence in order to found conviction against Accused 1 and 2.

[49] The second count is that of robbery. The evidence suggests beyond reasonable doubt that the three accused agreed before hand to rob the deceased and Stephen. If there was no prior agreement and planning to rob, then their behaviour, when they met the two men, defies logic and common sense. Look, when they met them, almost at the same time, all three of them attacked the two men. Accused 2 directed his attention at Stephen whilst Accused 1 and 3 went for the deceased. Accused 2’s intention was to rob Steven, equally, Accused 1 and 3’s intention was to rob the deceased. When Steven, by luck, slipped and hit on the run, Accused 2 joined Accused 1 and 3 where they subdued the deceased. Therefore, none of these three accused should escape conviction on this count.

[50] Count 3 relates to the killing of Epharaim Maphuruma. The man who pulled the trigger is Accused 1. Accused 2 and 3 did not shoot him. Despite that, can Accused 2 and 3 be convicted on the doctrine of common purpose under the circumstances?

[51] The doctrine of common purpose is a set of rules of the common law that regulates the attribution of criminal liability to a person who undertakes jointly with another person or persons the commission of a crime. Burchell and Milton: Principles of Criminal Law 2^nd Edition at 393 define the doctrine of common purpose as follows:-

“Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number, which fall within their common design. Liability arises from their “common purpose to commit the crime”

The liability requirements of a joint enterprise fall into two categories (Magmoed v Janse van Rensburg and Others [1992] ZASCA 208; 1993 (1) SA 777 (A). Firstly, it arises where there is a prior agreement, express or implied, to commit an offence. In the second category, no such agreement exists or is proved. The liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind (S v Mgedezi 1989 (1) SA 687 (A).

[52] When Accused 2 and 3 searched the deceased, Accused 1 was pointing him with a firearm. They were therefore aware that Accused 1 had a firearm, in a fire-ready position. In my view, they foresaw the possibility that Accused 1 could shoot the deceased with the resultant death but they reconciled themselves with that possibility. Therefore, they are not blameless.

[53] In relation to count 4, the killing of Jacob Lekgetho, it is clear that the motive initially, was to rob him. It is only Accused 1 who busied himself with the deceased. Almost simultaneously, Accused 3 was holding B.. There is no evidence that Accused 1 and 3 agreed to kill the deceased. The circumstances of this count are such that no reasonable inference can be drawn that Accused 3 foresaw the death of the deceased at the hands of Accused 1. It will therefore be difficult for any Court to convict Accused 3 on this count. The last count, that is rape, is straight forward. Both Accused 1 and 3 raped the victim.

[54] Consequently, the following order is made:-

Count 1: (Housebreaking with intent to steal and theft)

Accused 1 and 2 : Not guilty

Accused 3 : Guilty as charged

Count 2: (Robbery on Ephraim)

All three guilty as charged.

Count 3: (Murder of Ephraim)

All three guilty as charged.

Count 4: (Murder of Jocob Lekgetho)

Accused 3 not guilty

Accused 1 guilty as charged.

Count 5: (Rape)

Accused 1 and 3 guilty as charged.

SAMKELO GURA

JUDGE OF THE HIGH COURT

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