S v Khumalo and Another (SS77/2017) [2018] ZAGPJHC 112 (14 March 2018)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER : SS 77/2017

Not reportable

Not of interest to other judges

Revised.

14/3/2018

In the matter between:

THE STATE

and

MICHAEL CHARLES KHUMALO ACCUSED

1

BONGANE HONEST NGWENYA ACCUSED

2

JUDGMENT

DOSIO AJ:

INTRODUCTION

[1] The accused are arraigned on four counts. The first is one of murder as envisaged in terms of section 51(1) of The Criminal Law Amendment Act 105 of 1997 (“Act 105 of 1997”), the second is of murder as envisaged in terms of section 51 (1) of Act 105 of 1997. Count 3 is a contravention of section 3 of the Firearms Control Act 60 of 2000, (“ Act 60 of 2000”) for possession of an unlicensed firearm. Count 4 is a contravention of section 90 of Act 60 of 2000 for possession of ammunition.

[2] In respect of count one, the State alleged that on the 2nd of July 2016 at or near Kanana Extension 4, Midrand, in the district of Ekurhuleni North, sub-district Tembisa, the accused killed Sidwell Godfrey Monareng (“the deceased Sidwell Monareng”) by shooting him with a firearm. In respect to count 2, the State alleged that at the same time and place, the accused killed Mhlanguleni Xaba (“the deceased Mhlanguleni”) by shooting him with a firearm. In respect to count 3 the state alleges that at the same time and place, the accused were unlawfully in possession of a 9mm parabellum calibre firearm, without holding a license to possess the said firearm. In respect to count 4 the State alleges that at the same time and place the accused had in their possession an unknown number of 9mm parabellum calibre ammunition, without being authorised to do so, or without being the holder of such license in respect of firearms capable of discharging that ammunition

[3] Prior to the accused pleading, the court apprised both accused of the provisions of the minimum prescribed sentence of life imprisonment in respect to count 1 and 2. The court also apprised the accused of their right to have assessors as count 1 and 2, were charges of murder. The accused both understood and elected to proceed without assessors.

[4] Accused 1 is represented by Advocate Maphiri and accused 2 is represented by Advocate Brits. The State is represented by Advocate

Mashego. The accused understood all 4 counts and pleaded not guilty in respect to all counts.

[5] At the inception of the trial the State handed in the following exhibits;

A admissions made in terms of section 220 of the Criminal Procedure Act 51 of 1977

B Affidavit of Dr Jan Georg Pieterse who conducted the post-mortem in respect to body Dr1348/2016 (the deceased Sidwell Monareng)

C Affidavit of Dr Emefa Abra Apatu who conducted the post-mortem in respect to body Dr 1349/2016 “the deceased Mhlanguleni”.

D Affidavit of warrant officer Matsimela who compiled a photographic album

E Affidavit of constable WP Moloi who attended and photographed an identification parade

F Affidavit of Khosene George Maringa who photographed an identification parade

G Affidavit of Mtome Jackson Molokomme

H Affidavit of Mahlatse Monyemoratho

I Affidavit of Thabo Machipi

J Affidavit of Boikie Modimong

K further admissions made in terms of section 220 of the Criminal Procedure Act 51 of 1977

L identification parade form completed on the 14th of December 2016

M (2 identification parade forms) completed on the 22nd of April 2017

N pro forma document compiled by captain Williams in respect to the confession taken from accused 1

O extract from a docket

P the confession of accused 1

Q Affidavit of Themba Mdaba

R Admissions made in terms of section 220 by accused 1

[6] The admissions incorporated in exhibit “A” were the following;

1. That on the 4th of July 2016, Dr Jan George Pieterse performed a medico-legal post mortem examination on the body of the deceased Sidwell Monareng and that the facts and findings, and the cause of death of the deceased, as determined at the post mortem examination were correct. That from the time the injuries were inflicted until the time the post mortem report was conducted, the deceased sustained no further injuries. The said post mortem report was marked as exhibit “B”.

2. That on the 5th of July 2016, Dr Emefa Abra Apatu performed a medico-legal post mortem examination on the body of the deceased Mhlanguleni and that the facts and findings, and the cause of death of the deceased as determined at the post mortem examination were correct. That from the time the injuries were inflicted until the time the post mortem report was conducted, the deceased sustained no further injuries. That the said post mortem report was marked as exhibit “C”.

3. That the photographs and plan of the scene next to No.2004 Redrose street, Kanana extension 4, Rabie Ridge, marked as exhibit “D”

were correct.

4. That the photographs of an identification parade taken by warrant officer Khoseng George Maringa at Midrand police station, marked as exhibit “F” was correct.

5. That the photographs of an identification parade taken by warrant officer Mtome Jackson Molkomme at Tembisa police station, marked as exhibit “G” were correct.

[7] The admissions incorporated in exhibit “K” were the following;

1. That on the 14th of December 2016 an identification parade was held at Tembisa police station by sergeant Dolamo and that the facts and conclusions as set out in the identification parade form were correct. That the identification parade form was accepted as exhibit “L”.

2. That on the 22nd of April 2017 an identification parade was held at Rabie Ridge police station by warrant officer PB Rammutla and that the facts and conclusions as set out in the identification parade form were correct. That the identification parade form was accepted as exhibit “M”.

[8] It is common cause both accused 1 and 2 were at the scene where the shooting took place and where the 2 deceased were killed. What was in issue at the commencement of the trial was firstly, whether accused 1 and 2 in fact had firearms in their possession and secondly, whether accused 1 and 2 fired shots which killed the 2 above-mentioned deceased.

[9] At the end of the State’s case counsel for accused 1 read into the record formal admissions which were made in terms of section 220 of the Criminal Procedure Act. This Court will deal with these admissions at a later stage in the judgment.

[10] Due to the fact that accused 2 still denies he was involved in this matter, this Court will accordingly still summarise the evidence presented.

THE EVIDENCE

[11] The State called 9 witnesses. They were as follows; Mahlatsi Monyemoratho, Thabo Machipi, Deshie Ngobeni, Surprise Mdala Mtsane,

Boikie Modimong, Raymond Mlobela, Captain Williams, Themba Ndaba, and Mpho Lefohla. Accused 1 closed his case without testifying and accused 2 came to testify.

[12] Mahlatse Monyemoratho testified that he stays in Kekana Extension 4. He knew the deceased Monareng as they used to meet in Kekana. He also knew the second deceased by the name of Mhlanguleni as he was his neighbour. On the 2nd of July 2016 between 02h00 and 03h00 he was at Sarah’s tavern in Kekana extension 4. He was in the company of Deshie. Four

gentlemen arrived and one of them came to play dice. Accused 1 produced a R100 note and placed his bet. The deceased Mhlanguleni

pushed his money away. Accused 1 started swearing at Mhlanguleni and an argument ensued. Mhlanguleni gave someone his car keys and asked this person to go and fetch his car. He observed accused 1 as he was standing next to him. Accused 1 and accused 2 then produced firearms from the front of their trousers. This witness heard 2 gunshots being fired from different people, namely accused 1 and accused 2. Accused 1 was shooting at the deceased Mhlanguleni. This witness could not say in which direction accused 2 was firing. This witness then ran away. He cannot say how many shots were fired. After the shooting ceased he returned and found two people who had been shot and who had fallen. One was the deceased Mhlanguleni and the other one he only knew his nickname, namely, “Machancha”. There was sufficient lighting at the scene from street lights. On the 20th of April 2017 he attended an identification parade at the Midrand SAP where he pointed out accused 1 and 2.

[13] Thabo Machipi testified that he knew the deceased Mhlanguleni. On the 2nd of July 2016 between 02h00 and 03h00 he was also at Sarah’s tavern and he was looking at the people who were gambling. One of the gamblers with the name of Surprise was busy betting the dice. Accused 1 arrived who wanted to play his money. Surprise was not happy and pushed this unknown person’s money away. Accused 1 told Surprise he did not know him and said “If I have to kill you here at the dice game what will you say”. The deceased Mhlanguleni searched for his car keys and handed them over to Mpho . A firearm was produced by accused 1 and the shooting

began. He did not see if a second person had a firearm. When the shooting ceased, he saw the men who were previously shooting,

were now searching the cigarette cellars and that is when he managed to see the face of the companion of accused 1 which he identified as being accused 2. He was standing 7 paces away from them. There was a 3rd person with accused 1 and 2, but this witness does not know who that 3rd person was. This witness stated further that on the 20th of April 2017 he attended an identification parade at Midrand police station where he identified accused 1 and 2 as the persons he had seen at the scene.

[14] The witness Deshie Shibambo testified that on the 2nd of July 2016, he too was at Sarah’s tavern in Kenana drinking liquor. The time was between 02h00 and 03h00. Nearby the tavern

people were playing dice. Four unknown men arrived who wanted to join in the gambling. Two of the four men came to stand between this witness and Jonas. A disagreement arose between Mhlanguleni and accused 1, and accused 1 took out a firearm from his front trouser and pointed it at Mhlanguleni’s chest and fired a shot. They all then fled. Accused 2 was also at the scene and was standing next to accused 1. This witness could not remember what accused 1 or 2 were wearing. He too attended an identification parade where he pointed out accused 1 and 2.

[15] The witness Surprise Mdala Mtsane testified that on the 2nd of July 2016 between 02h00 and 03h00 he too was at Sarah’s tavern. Outside the tavern, gambling was taking place. Accused 1 and 2 arrived. Accused 1 uttered insults to this witness and threatened his life. Accused 2 was standing slightly behind accused 1. He observed them for approximately between 1 to 3 minutes. This witness felt threatened and went to his car, after which he heard the sound of gun fire. This witness could not say who fired the shots he heard. This witness attended an identification parade and pointed out accused 2.

[16] The witness Boikie Modimong also stated that between 02h00 and 03h00 on the 2nd of July 2016 he was also at Sarah’s tavern. He noticed accused 1 and 2 came to the tavern to buy cigarettes. The shooting started and the deceased Mhlanguleni ran away. Accused 1 was the one who shot the deceased Mhlanguleni. Accused 2 was wearing white coloured clothes.

[17] The witness Raymond Mlobela testified that on the 2nd of July 2016 he was also at Sarah’s tavern between 02h00 and 03h00. Outside the tavern, where the gambling was taking place he saw accused 1 quarrelling with the deceased Mhlanguleni. Accused 1 removed a firearm from his trouser, front waist and then this witness heard gun shots. He ran away and when he returned he found people had been shot. This witness could not remember if accused 2 was at the scene.

[18] The State then led evidence in respect to a confession that was taken down in respect to accused 1. The confession was disputed so a trial within a trial was held. The evidence of the following witnesses were all witnesses in respect to the trial within a trial. These witnesses were; Captain Hendrik Williams, Constable Andries Lesetja Phalane, Trust Khumalo, Constable Walter Radebe, Rampalane Albert Mashabela and Captain Avhatakali Ronald Mbedzi. Accused 1 then testified.

[19] This Court found that the confession made by accused 1 was admissible and that accused 1’s Constitutional rights were not infringed during his arrest or by making the statement. This Court refers to its detailed judgment given in this regard. Although the order to rule the confession admissible was an interlocutory finding, this Court is now confirming that finding.

[20] Captain Williams was recalled in the main trial to read the contents of the confession made by accused 1, namely exhibit “P”.

[21] The witness Themba Ndaba testified that he too was at Sarah’s tavern on the 2nd of July 2016 between 02h00 and 03h00. An argument ensued where the people were gambling. This argument was between the deceased

Mhlanguleni and accused 1. There were 2 unknown men who had arrived. Both these 2 unknown men produced firearms and started shooting.

Accused 2 was standing next to accused 1. Both accused 1 and 2 had firearms. This witness ran for cover. When he came out he saw that people had been shot dead. This witness pointed out accused 1 at an identity parade.

[22] The witness Mpho Lefohla testified that on the 2nd of July 2018 he too was at Sarah’s tavern between 02h00 and 03h00. Four unknown men arrived. One of the 4 men was accused 1. An argument ensued between accused 1 and Surprise. Accused 1 then told Surprise “he would die in that dice game”. Accused 1 also told the deceased Mhlanguleni “uncle do you want us to murder you?”. The deceased Mhlanguleni gave this witness his car keys and told him to go and fetch his car. This witness did not know accused 2.

[23] Accused 1 at this stage of the trial elected to make admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977. The contents of these admissions were as follows;

1. That on the 2nd of July 2016, at Kanana, Ext 4, Midrand, in the district of Midrand, accused 1 admitted that he unlawfully and intentionally killed

Mhlanguleni Xaba by shooting him with a firearm outside Sarah’s tavern. At the time of the shooting he was in the company of Bongani Honest Nwenya, Philani, Leward and Vorsheka. Accused 1 admitted that he had an argument with the deceased Mhlanguleni for about 10 minutes over his inability to place a bet and that he then took out his firearm and shot the deceased Mhlanguleni. Accused 1 states he also heard other shots being fired. Accused 1 admitted that he was in possession of a 9mm parrabellum calibre firearm without having a licence to possess such a firearm. This is the firearm he used to kill the deceased Mhlanguleni. Accused 1 also admitted that he was also in possession of unknown 9mm parrabellum calibre ammunition without being authorized to be possess such ammunition and also without having a license to possess that firearm capable of discharging that ammunition, or permit to possess such ammunition.

[24] Accused 1 then closed his case.

[25] Accused 2 came to testify and stated that accused 1 was known to him since 2009. On the 2nd of July 2016 he was at Sarah’s tavern with accused 1, Pilane, Vorsheka and Leward. He knew Pilane for a long time as he resided with him a long time. Vorsheka he knew through accused 1. Accused 2 was in the company of the above mentioned people since eight that evening and they were drinking. He gave a description of Pilane stating that people often confused the two of them as people assumed they are twins. In respect to Vorsheka, this man is the same height as accused 2 but he slightly thinner than accused 2. Leward on the other hand is very tall and light in complexion and of slender build. They were all drinking at Sarah’s tavern until it was time to close. They left with the intention to go to sleep. Accused 1 then stated he wanted to play dice. The others

said they would wait for him outside. Accused 2 was standing 8 metres away from accused 1. Accused 2’s wife then called him and he went to a quieter place to talk to her. That is when he heard a gun shot. He immediately dropped the call and ran in the direction where the gambling was taking place. He saw an old man falling in front of him. He himself was struck by a bullet in his abdomen. The bullet did not penetrate his skin but merely grazed him. Accused 2 was under the impression the bullet hit the old man and also hit him. It was Vorsheka that fired this shot. He stated that at first he did not see when the gun shot was fired, he just heard the gun shot. Accused 2 then ran towards Pilane. He saw accused 1 and Vorsheka having firearms in their hands. Accused 1 and Vorsheka came to where they were standing and they all fled from the scene. Neither Vorsheka or the accused told him why they were in possession of firearms. Accused 2 asked both Vorsheka and accused 1 if they shot and both replied they did. Accused 2 states he was never in possession of a firearm. He stated at no stage did he discuss with accused 1 or Vorsheka that they would shoot any person that evening. He stated that Mahlatse Monyemoratho was lying when he said he saw him producing a firearm.

EVALUATION OF THE EVIDENCE

[26] The only two witnesses implicating accused 2 as being in possession of firearms is Mahlatse Monyemoratho and Themba Ndaba. Counsel for accused 2 contended that Mahlatse Monyemorotho was not an impressive witness as he was evasive during cross-examination and that a clear evaluation of his evidence clearly shows that he would not have been in a position to see accused 2 and therefore could not have observed him as he stated withdrawing a firearm. Furthermore it was contended that Mahlatse Monyemoratho cannot explain where accused 2 drew the firearm from and neither could he describe the firearm. Accordingly, it was contended and argued by the counsel for accused 2 he is not a clear and reliable witness.

[27] The witness Mahlatse Monyemoratho testified referring to a lot of detail. During cross examination he repeated that it was accused 1 and accused 2 who fired shots and that there was a 3rd person together with accused 1 and 2 who was also holding a firearm. Although accused 2 was standing on the opposite side of the gambling table behind other people, this witness was still able to see him. He was convinced that it was accused 2 who took out the firearm as he remembers accused 2’s complexion was dark black and he was tall. This witness saw accused 1 taking out the firearm and pointing it at the deceased Mhlanguleni. After the second shot was fired this witness ran away. This witness stated that the second shot came from the direction where accused 2 was. Accused 2 was pointing his firearm towards his companion accused 1. When this witness ran away to hide, he was still able to see from a distance what was going on. This witness was adamant he saw 2 people shooting. He also stated that a 3rd person came out of the passage who also had a firearm in his possession. Although this witness never mentioned the third person also having a gun in his evidence in chief, he did state he was confused at the time besides, his statement at paragraph 4 does mention there were two people standing next to accused 1, which by implication means there were 3 people. His statement also states that the one standing not far from them also came closer, produced a firearm and also shot at the deceased Mhlanguleni Xaba.

[28] What concerns this court about this witness is that during cross-examination he says the second shot came from the direction

where accused 2 was. His evidence also suggests there was a third person shooting. He says he saw 2 people shooting but he does not specifically say it was accused 2. It is clear from the evidence that Vorsheka was this third person who had a firearm and this Court is not absolutely certain that accused 2 actually possessed a real firearm, or that he actually fired a shot. There is a possibility that the other shots this witness heard could have come from Vorsheka. Although this court was impressed with this witness, this Court is not absolutely certain that he saw accused 2 firing.

[29] In respect to Themba Nbaba this court must agree with the counsel for accused 2 in that his evidence identifying accused 2 amounts to dock identification. There is also no other explanation before this Court why accused 2 was never put on an identification parade for this witness to identify him. From his statement made to the police and his testimony before court, the two persons he could identify and describe were Accused 1 and Vosheka, who was light in complexion. His statement makes no mention of a third person standing behind them also drawing a firearm. It is true that his statement mentions “his companions also produced firearms”, however this court does not know if these companions were Leward or accused 2. This Court however accepts there must be some truth in his evidence because he mentions during cross examination that accused 2 was standing behind accused 1 when accused 1 was arguing with the deceased Mlanguleni, and this corroborates the other state witnesses, however, as to whether it is

Vorsheka, or accused 2 or Leward who pointed the firearm towards any of the deceased, this Court is not certain from his evidence. What this Court is certain of from his evidence is that accused 1 and someone else produced firearms and fired shots that evening.

[30] The version of Themba Ndaba stating that he saw accused 2 inside court and realised he was also present, because at the time he was really heavily built, has been approached by this court with caution. The fact that he was the tallest of all the accused is not conclusive as there appears to be evidence that one of the other men was also tall.

[31] Thabo Machipi impressed this court. There were no indications that he was trying to fabricate his evidence. He was honest when asked by accused 2’s counsel if he also saw accused 2 shooting and he said no. If this witness wanted to falsely implicate accused 2 he could easily have said he saw accused 2 shooting as well. Although this witness did not see accused 2 shooting, he did see accused 2 searching one of the people there. This aspect was never disputed.

[32] Deshie Shibambo also impressed this court. During cross examination he repeated he only saw accused 1 shooting at the scene. If he too wanted to falsely implicate accused 2 he could easily have said he saw accused 2 also shooting. This witness did say during cross-examination that accused 2 was standing behind accused 1 and this was never disputed.

[33] Surprise Mtsane impressed this Court. He too stated that he did not see who fired the shots. If he wanted to falsely implicate either accused 1 or 2, he could easily have said either of them fired shots.

[34] Boikie Modimong impressed this court. If he wanted to falsely implicate accused 2 as being one of the shooters he could also have done so, however, he stated he did not see accused 2 at the time of the shooting. The one aspect of his evidence which was a concern to the court is that he said accused 1 had traditional incised marks on his face, which is clear accused 1 does not have them. However, in the light of accused 1 admitting that he shot the deceased Mhlanguleni, this court will not take this aspect any further. This witness was adamant accused 2 was wearing all white clothes and not a Manchester Nike jacket.

[35] Raymond Mlobela impressed this court. He too could have falsely implicated accused 2 as being one of the shooters at the scene,

however, he did not do so.

[36] Mpho Lefohla impressed this court. He was honest and stated he saw only accused 1 at the scene but did not see him shooting, and he never saw accused 2.

[37] The witnesses Deshi Shibambo, Surprise Mtsane and Themba Ndaba corroborated each other that accused 2 was standing directly behind accused 1 when the argument between accused 1 and the deceased Mhlanguleni took place.

[38] Thabo Machipi and Boikie Modimong both corroborate each other that accused 2 searched the people after the shooting. Although Boikie Modimong did not say this in court, his statement marked exhibit “J”, at paragraph 5 clearly states the man who was wearing all white clothes was searching the people and taking their belongings. This aspect of accused 2 wearing all white clothes was stated by Boikie Modimonga in court. As to why the State never put a charge of robbery against the accused, is unknown to this Court, however, the presence of accused 2 and his involvement in this matter after the shooting took place cannot be under estimated. Accused 2 knew what was going on.

[39] The witness Raymond Mlobela also impressed this court. He too stated that he could not remember seeing accused 2 at the scene. If he wanted to falsely implicate 2 he could also have said he saw accused 2 at the scene.

[40] The witness captain Williams also impressed this court.

[41] The evidence of accused 2 did not impress this Court. Accused 2’s evidence is problematic due to the many contradictions that arise during his evidence in chief and during cross-examination. During cross-examination he stated that he saw Vorsheka was pointing at people and shooting, however in respect to accused 1 he stated “I did not see what he was doing with the firearm but it was obvious he was shooting with it”. This is in sheer contrast to what was put to Mahlatse Monyemoratho during cross-examination by accused 2’s counsel, namely,

“Accused 1 started shooting and Vorsheka also ran to where accused 1 was shooting and Vusheka started shooting”. Accused 2 even demonstrated to the court how accused 1 was holding out his hand and pointing it at the accused, so this Court finds that he must have seen accused 1 firing shots. During cross examination, accused 2 stated he did not see accused 1 producing his firearm. However, during the cross examination of Mahlatse Monyemoratho it was put to that witness that “Accused 1 produced a firearm” to which Mahlatse Monyemoratho confirmed it was the truth. When confronted with this aspect by the State, accused 2 stated it was not the truth what his counsel had put to the witness, and stated it was his mistake not to correct his counsel. This was the same version put to Thabo Machipi that accused 1 did shoot at the deceased Mhlanguleni when accsued 1 and Mlanguleni had an argument. This all shows to this court that accused 2 was either lying to his counsel or to this court. This version of accused 2 not seeing accused 1 producing a firearm or shooting at the deceased Mlanguleni is rejected by this court as false. Accused 2’s version that he was no aware that accused 1 or Vorsheka had firearms in their possession prior to the shooting occurring, is also rejected as false and not reasonably possibly true, because if these firearms were positioned in the waist of both accused 1 and Vorsheka, then surely, if accused 2 spent 6 hours from 20h00 until 02h00 in the company of accused 1 and Vorsheka surely he must have been aware they had firearms tucked away in their waist.

[42] The version of accused 2 that he was not interested in the gambling is rejected by this court as false as Mahlatse Monyemoratho states that accused 2 also came to stand around the table where the gambling was taking place. Themba Ndaba also confirms this as do other State witnesses. The version of accused 2 answering a call from his wife and moving away from the gambling table is rejected as false. Deshie Shibambo saw accused 2 standing directly behind accused 1 when the argument ensued between accused 1 and the deceased Mhlanguleni and when accused 1 started shooting, therefore accused 2 was present at the crucial time the shooting commenced.

[43] This court has considered the probability of accused 2’s evidence that he did not associate himself with these crimes, with the totality of all the evidence presented in this case, including the evidence of all the State witnesses and this court finds his version is not reasonably possibly true. This court’s reasons are as follows;

[44] The version of accused 2 that he ran towards accused 1 and Pilane when the shooting started indicates to this court that he associated himself with the actions of accused 1. When asked by the public prosecutor why he ran towards accused 1 the answer given by accused 2 was “It is because I came with them, as I was in company with them I felt I do not know the place and they know the direction”. He added further “I told myself these are the people I came with hence I ran towards them”. These are not the actions of someone who realises there is something wrong and would try and distance himself from the actions of the wrong doers, it is more the actions of a person who associates himself with the actions of the wrong doers. Accused 2 just kept quiet in respect to the shooting of the other people and was only concerned about the alleged injury he sustained. There is no medical evidence that this injury was even sustained on the evening of the shooting as accused 2 did not go to a doctor. His version of Vorsheka apologising to him and that this is the reason why he did not report the matter to the police is rejected by this court as false. It is clear he did not report it as he was part of this group who attacked these innocent victims. Accused 2 was aware of 2 people being injured, yet his reason why he did not report it was, “I was not familiar with the place so I did not know where to go”. He could easily have gone to the Diepsloot SAP, which is close to where he resides and could have reported it there. His answer to why he never reported it at Diepsloot SAP is because he told himself “this matter does not involve me”. The court rejects this as not reasonably possibly true and rejects it as false. Of course it involved him. He according to his own version witnessed the killing of 2 innocent victims. Even if according to his version he did not have a firearm, he could still have disassociated himself from the actions of the other people shooting. There is no indication he was under any duress, so he could have run away himself, instead, he went with the perpetrators to Pilane’s house and stayed there all night, not at all concerned about what happened. He never reported the shooting and also never gave any information to the police that he himself had been shot by Vorsheka or that both accused 1 and Vorsheka were still in possession of firearms which they had used to shoot at people at Sarah’s tavern. For the accused 2 to say “I told myself this matter does not involve me” is nonsensical. In addition, accused 2 was also seen searching the people at the scene of the offence. Although there is no charge of robbery, it shows he was fully aware of what was going on and did not himself try to run away.

[45] For common purpose to be present, the requirements as set out in the case of S v Mgedezi 1989 (1) SA 687 (A), must be met, namely:

1. the accused must have been present at the scene of the crime;

2. he must have been aware of the assault by someone else on the victim;

3. he must have consciously shared a common purpose in the true attackers assault on the victim;

4. he must have expressed his association with the other persons unlawful conduct;

5. he must have had the required fault (mens rea) for the particular offence.

[46] This court must state that the post-mortem report of the deceased Mhlanguleni shows that the deceased died as a result of multiple

gunshot wounds. It is more probable that the deceased was killed by various shots being fired from various firearms as the state witness Mahlatse Monyemoratho saw accused 1 firing only 1 shot, that means the other shots that penetrated the deceased Mhlanguleni must have come from other people also firing shots.

[47] From the description of accused 2’s action in paragraph [44] supra, this court finds, accused 2 did have common purpose to commit the crimes for which he has been charged with. Accused 2 was present at the scene, he was aware of accused 1 and Vorsheka shooting, he did share a common purpose in shooting the 2 deceased, and he did associate himself with the actions of accused 1 in shooting the deceased Mlhanguleni, and the actions of Vorsheka shooting. Accused 2 had the intention in the form of dolus eventualis in respect to the killing of the deceased Mhlanguleni, as he must have foreseen the reasonable possibility that Mhlanguleni could have been killed. Therefore, in respect to count 2, accused 2 is found guilty of murder on the basis of common purpose and this Court finds he acted as a perpetrator.

[48] This Court cannot say with certainty whether accused 2 himself had a firearm that was fully operational and whether he fired any shots which killed the deceased Sidwell Monareng, however, the fact remains that accused 1 and Vorsheka were shooting, so someone killed Sidwell Monareng. Accused 2 was present and associated himself with the shooting that was taking place, and irrespective whether he had a functional firearm or not, he associated himself with the actions of the others and was a perpetrator in respect to the killing of the deceased Sidwell Monareng as well. Accused 2 demonstrated common purpose by “joining in” with what was going on. The actions of accused 1 and Vorsheka are imputed to him by virtue of the principles relating to common purpose and accordingly this Court also finds accused 2 guilty of count 1 as it is clear to this court that he foresaw the reasonable possibility of a bullet killing Sidwell Monareng and that on the basis of common purpose he reconciled himself and associated himself with the actions of accused 1 and Vorsheka who were shooting at the scene, and their actions are imputed to accused 2 on the basis of common purpose and he is found guilty as a perpetrator of the murder of Sidwell Monareng.

[49] This Court is aware of the decision of S v Khambule 2001 (1) SACR 501 (SCA), where the intention of individual members of a group who used the weapons in a robbery was sufficient to prove joint possession by the others who did not possess the firearms during the robbery. This decision was over-ruled by the decision of S v Mbuli 2003 (1) SACR 97 (SCA). However in the case of Ramoba v The State (1301/2016) ZASCA 74 decided on the 1st of June 2017, the learned Mbha JA, (the rest of the court concurring), found at paragraph [19] that even though some of the robbers did not possess the automatic rifle “The fully automatic weapons were clearly possessed by the robbers for themselves and for each other”.

[50] In respect to count 3 and 4, the 2 accused were never charged individually for two different counts of possession of an unlicensed

firearm and unlicensed ammunition. Only one count was put to both accused for possession of an unlicensed firearm and one count for possession of unlicensed ammunition. This Court has already stated that there is no proof that accused 2 was seen firing what looked like a firearm which was in his possession, as stated by Mahlatse Monyemoratho, therefore, due to no firearm being found in his possession this court cannot make a finding that he had a firearm which he used in the commission of the offence which was a working firearm. However, due to the fact that accused 1 admitted that the firearm he had in his possession was an unlicenced firearm, this court also finds accused 2 was in possession of an unlicensed firearm and unlicensed ammunition, and in respect to count 3 and 4 accused 2 is also found guilty of these 2 counts on the basis of common purpose to possess an unlicensed firearm and ammunition. This court is accordingly satisfied that the State has proved that accused 2 unlawfully and intentionally had in his possession a 9mm parabellum and 9 mm calibre ammunition which was fired from this unlicensed firearm possessed by accused 1, and accused 2 is found guilty of count 3 and 3 as a perpetrator as well.

[51] Although formal admissions in terms of section 220 of the Criminal Procedure Act 51 of 1977 were made by accused 1 in respect to count 2, 3 and 4, accused 1 closed his case in respect to count 1.

[52] In the case of S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC) the court held at paragraph [24] that;

“The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer and an accused chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence.”

[53] In the case of S v Hlongwa 2002 (2) SACR 37 (TPD) the court referred to the case of S v Brown en 'n Ander 1996 (2) SACR 49 (NC) and stated that;

“…the failure of an accused to testify on relevant matters within his knowledge constituted a factor to be taken into account as adding

strength to the case against the accused.”

[54] In the case of S v Katoo 2005 (1) SACR 522 (SCA) at 529e the Supreme Court of Appeal made the situation clear:

“[if] …the respondent failed to place any version before the Court by means of evidence, the Court’s verdict should have been based on the evidence of the prosecution only.” [my emphasis].

[55] It is not for the court to speculate or conjecture a version for the accused 1 in respect to count 1. All the State witnesses impressed this Court and stated accused 1 was seen shooting. They were honest and reliable. This Court accepts their evidence as the true version of events. From the evidence of the State witnesses under oath it is clear that the shooting from accused 1 occurred stemming from the argument between Accused 1 and the deceased Mhlanguleni. There is evidence that Vorsheka had a firearm and that accused 2 was holding what looked like a firearm. It was common knowledge to accused 1 that Vorsheka had a firearm, and accordingly, this court finds that accused 1 also reconciled himself and associated himself with the actions of Vorsheka who was shooting at the scene. There is a possibility even that it was a bullet from accused 1’s firearm that penetrated and killed Sidwell Monareng as many spent cardridges were found at the scene. Even if the court is wrong in this regard, whether or not it was a bullet from accused 1’s firearm that actually killed Sidwell Monareng or not, is of no importance, as he was aware that Vorsheka and another man by the name of Ernest, (as per his confession) were firing shots, so he must have foreseen the reasonable possibility that one of the other people shooting there could also have killed Sidwell Monareng. Accordingly, in regard to his silence in this regard, this Court does draw a negative inference and this Court finds that accused 1 also associated himself with the actions of the others who were on the scene shooting, and even if his own firearm did not kill Sidwell Monareng, on the basis of dolus eventualis he reconciled himself and associated himself with the actions of the others shooting and reasonably foresaw the possibility

that Sidwell Monareng could have been killed. Accordingly, and on the basis of common purpose this court finds him also guilty of the murder of Sidwell Monareng and that he acted as a perpetrator.

[56] For a murder to fall within the definition of Schedule 2 of part 1 of the Criminal Law Amendment Act 105 of 1997 the murder must have been committed by a person or persons or syndicate acting in the furtherance of a common purpose. This is in fact what happened in this case and both accused are found guilty of murder in respect to counts 1 and count 2 for murder as

falling within the ambit of section 51 (1) of Act 105 of 1997.

FINDINGS

[57] In respect to count 1, 2, 3 and 4, both accused are found guilty as charged.

_______________________

D DOSIO

ACTING JUDGE OF THE HIGH COURT

Judgment handed down 14 March 2018

Appearances:

On behalf of the State Adv Mashego

On behalf of Accused 1 Adv Maphiri

On behalf of Accused 2 Adv Brits