S v Myeni and Another (CC01/2020) [2021] ZAMPMHC 18 (28 June 2021)

THE

HIGH COURT OF SOUTH AFRICA

MPUMALANGA

DIVISION OF THE HIGH COURT

MIDDELBURG LOCAL

SEAT

(BREYTEN CIRCUIT COURT)

CASE NO: CC 01/2020

(1) REPORTABLE: NO (2) OF INTEREST TO OTHER JUDGES: NO (3) REVISED. ……28 JUNE 2021…..

DATE

In the matter between:

THE

STATE

And

THEMBELA

MYENI (ACCUSED NO.

1)

WONDER

SIBONGAKONKE MABIKA (ACCUSED NO.

2)

JUDGMENT

RATSHIBVUMO AJ:

[1]. The charges.

The accused stood trial on four criminal charges. In count 1, the State alleged that on the night between 26 and 27 October 2018 and at Davel, in the district of Ermelo, the accused did unlawfully and intentionally kill Vusimuzi Mannuel Khumalo. Count 2 is a charge of robbery with aggravating circumstances perpetrated against the same victim in count 1 wherein he was robbed of his cell phone and motor vehicle. It was alleged that the date and place where this crime was committed as the same as in count 1. Count 3 is a charge of possession of unlicensed firearm (a 9 mm Parabellum Lorcin with serial no. L077739) in contravention of section 3 of Act 60 of 2000. It was alleged that this crime was committed during the period 23 October 2018 to 23 November 2018 at Davel in Ermelo or at Jozini. Count 4 is a charge of possession of an unknown quantity of live ammunition in contravention of section 90 of Act 60 of 2000. This charge was also alleged to have been committed on the same date and place as in count 3.

[2]. The accused were legally represented throughout the trial. Mr. Muthivhithivhi appeared for accused no. 1 whereas Mr. Phethoe appeared for accused no.

2. Adv Poodhun appeared for the State. He indicated that in case of conviction, sentences prescribed in terms of sec 51 (1) and 51(2) of Act 105 of 1997 would be sought in respect of a charge in count 1 and the charges in counts 2 and 3 respectively. It was also averred that in committing these crimes, the accused acted in furtherance of common purpose.

[3]. The plea.

All the accused pleaded Not Guilty and gave no plea explanation except for accused no. 1 who added that he was only found in possession of a stolen motor vehicle.

[4]. Background (Common cause facts)

Facts of this case are largely undisputed. The dispute is on what to make out of them: Whether the accused are guilty because of the doctrine of recent possession and/or inferential evidence.

[5]. This is a tale about a man who was shot and silenced by a gunshot in the early hours of 27 October 2018 in Davel. His name was Vusimuzi Mannuel Khumalo (the deceased). His body, now useless to those who took life from it, was dumped in the bushes by the side of the road near Spioenkop farm. His belongings were not dumped with his body, for they took them with. These were a motor vehicle, an Opel Corsa bakkie and a Huaei 9 android cell phone with IMEI no. 86996203150282 (the deceased’s handset). IMEI (International Mobile Equipment Identity) is a unique number allocated to each handset device which is also described as a cell phone finger print in that there is no device with similar identification number.

[6]. The deceased’s belongings were not silenced with their owner. They continued their lifespan giving a voice to their voiceless owner whose body laid motionless in the bushes, waiting to be discovered by those who valued his life. Those with the skill to hear such voices asked, “Is that not the voice of the deceased?” Indeed it was his voice as given to him by his gadget – the android cell phone. The screams were silently calling those with special ears to hear. And they were heard some 350 kilometres away from where the body of the deceased was dumped – in Jozini in Kwazulu-Natal.

[7]. Once these voices could be heard, the experts were in haste to locate the gadgets before they too could be silenced for good like their owner who with each hour passing, his body was quickly getting decomposed before those who saw the world in him could give him a dignified funeral. In Jozini, and on 23 November 2018, the deceased’s motor vehicle was found being driven by a man who had no driver’s license named Thembelani Myeni – accused no.

1. Inside the deceased's motor vehicle was a firearm described in count no.

3. He also had no license for it. When confronted with questions on where he got the deceased’s motor vehicle, he immediately pointed to a man named, Wonder Mabika – accused no.

2. Accused no. 1 was then requested to call accused no. 2 who arrived unaware that accused no. 1 was already under arrest. Upon his arrival, accused no. 2 was in possession of the deceased’s cell phone android, the one that had called them from Davel in Mpumalanga in the first place.

[8]. Accused no. 1 had been driving the deceased’s motor vehicle from 27 October 2018 (the night the he was killed) to the date he was found driving it in the town of Jozini in the company of his girlfriend. Cell phone records provided from Vodacom which were accepted by both the accused as true and correct, reflect that accused no. 1’s SIM card with cell phone number 076 834 4515 had been using the deceased’s cell phone from 27 October 2018 (the night the deceased was killed). Accused no. 2’s jersey was found about 15 meters away from where the deceased’s body was discovered in the bushes. Given the several days it was exposed to the sun and rain, no DNA could be detected from it by the forensic experts.

[9]. All of the evidence reflected above was presented by the Investigating officer, Sgt Sipho Ndlovu who also presented the Vodacom cell phone records that were admitted as evidence by the court with the defence’ consent. Other than his evidence, other State witnesses did not take the case any far in that their evidence is not in dispute and does not help the court in determining if any of the accused are guilty of any of the 4 charges levelled against them.

[10].For reasons that would become apparent later in this judgment, it is necessary to reflect on a small piece of the evidence presented by Delisile Promise Mthethwa (Mthethwa), the deceased’s lover. She was the last person of the State witnesses to have seen the deceased alive. When the deceased left her at his home around 01h00 on 27 October 2018, he told her he was going to meet Zama, a friend of his from Springs who was visiting the area for the funeral.

[11].Again, the second last person to have seen the deceased alive would be his friend, Bongani Patrick Mnisi (Mnisi). According to Mnisi, he was seated with the deceased and other friends around 23h00 on 26 October 2018 at Monate Park when the deceased received a phone call from Mthethwa who was visiting him at home. When the deceased left driving his Opel Corsa, he promised to be back soon, but he never came back.

[12].Accused no. 1’s version:

He testified that he needed a small bakkie to help in his small business in which he sells dagga. He communicated this to accused no. 2 whom he had known since 2016 and who is his friend. Accused no. 2 promised to help him get a bakkie. They set a date of 26 October as a day on which they would hike to Mpumalanga to meet the person who would sell accused no. 1 a bakkie. He was told the purchase price would be R40 000. He had with him R25 000 which was for a deposit. They left Jozini where they lived at 16h00 and hitchhiked until Ermelo and they proceeded further to Davel. At all these times, accused no. 2 was communicating with a person whom he alleged was the seller of the motor vehicle whom he identified as Khumalo. He kept on giving him feed back to the effect that Khumalo would come and meet them.

[13].From Ermelo they hitchhiked to Bethal where they waited for Khumalo who never arrived. Accused no. 2 informed him that Khumalo said he was still drinking in Ermelo. Around 23h00 after he told accused no. 2 that he was tired of waiting. Accused no. 2 told him they should rather go to Ermelo which they did. Khumalo indicated to them through accused no. 2 that they should wait for him at Total garage. Accused no. 2 had also cautioned him not to talk as a buyer, but to rather pretend that he (accused no. 2) was the buyer, to avoid the price going high.

[14].Khumalo arrived at Total garage driving an Opel Corsa around 03h00 on 27 October 2018. When shown the post mortem photographs of the deceased, he confirmed that this was the Khumalo he met at the garage that night. They introduced themselves to each other where after the deceased informed him that he had already talked to accused no.

2. He gave the R25 000 cash to accused no. 2 who left to go talk to the deceased away from him. The deceased then told him he was happy to receive the deposit of R25 000 and that he would hand over the motor vehicle and hold on to the registration papers which he would hand over once the balance of R15 000 was handed over to him. He undertook to bring R15 000 on the 15th, the 16th or the 17th of November 2018.

[15].The three of them got into the deceased’s motor vehicle driven by accused no. 2 with the intention to drop the deceased at his place of residence. Once at Davel, accused no. 2 told him to get out and wait for him at a tavern named The Lodge so that he can proceed to the deceased’s home, which he did. Moments later, accused no. 2 came back and picked him at The Lodge and they drove back to Jozini together. He noticed that the window was missing as the cold air penetrated through where they were seated. It was only when they had arrived in Jozini and the motor vehicle was being cleaned at a car wash that he noticed a smashed window on the loading bay of the motor vehicle. He was also shown a firearm by the person washing the car, inside the driver’s seat which he concluded could have been the deceased’s. He kept it safe with the intention to give it back to the owner the day they would go to pay the balance for the motor vehicle. Around 15 November, he drove to Mpumalanga with accused no. 2 who called the deceased but the calls did not go through. As a result, they drove back to Jozini.

[16].Under cross examination, he testified that he did not test drive the motor vehicle before buying. Accused no. 2 stood to benefit nothing from this whole transaction, but he was helping out a friend. He bought a motor vehicle with no window as he did not realise a window was missing until they were in Jozini. He admitted having told the Investigating Officer that the jersey he was shown belonged to accused no.

2. He however disputed having told the investigating officer that accused no. 2 used it to wipe the deceased’s blood from the car seat.

[17].Accused no. 2’s version.

He denied everything said by accused no. 1 pertaining to motor vehicle sale transaction. He knew nothing about the deal and was not in Mpumalanga on 26 October 2018 together with accused no.

1. While he knew accused no. 1 and he also came from Jozini, he denied that he was his friend saying he was just an acquaintance. To be specific, he did not kill or rob the deceased of anything. He was also not in possession of a firearm or ammunition.

[18].As for the deceased’s handset that was found in his possession on 23 November 2018, he testified that he bought the same for R200 from accused no. 1 and it came with a SIM card or the cell phone number, and he merely continued using it. He had no explanation for calls that were made to the similar numbers before and after he bought the phone. He testified that cell phone number: 060 674 5785 which was called several times from the SIM card he claimed he bought together with the deceased’s handset, belonged to his mother, Chichingane Khumbuzile Sithole. Again, cell phone number: 071 576 4308 which was called several times by the same SIM card, belonged to his Ngwavuma, his ex-lover. Ngwavuma’s SIM card was also inserted in the deceased’s handset.

[19].He admitted that the jersey that was shown to him by the investigating officer looked like his. He however had lent this jersey to accused no. 1 sometimes in the past. Accused no. 1 never returned it and he also did not demand that he should bring it back. He does not know how it ended near the scene of crime.

[20].Closing arguments: The State submitted that the two accused should be convicted of all four charges they faced. Defence for accused no. 1 submitted that accused no. 1 should be acquitted of all the charges. Similar submissions were made in respect of accused no. 2 by his counsel.

[21].It is trite that for a conviction to stand, the State must prove its case beyond a reasonable doubt. There is no duty on the accused to prove their innocence. As Heher AJA pointed out in S v Chabalala[1],

“the correct approach to evaluating evidence is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case of either party was decisive but that can only be an ex post facto determination and a trial court should avoid the temptation to latch on one obvious aspect without assessing it in the context of the full picture presented in evidence.”

[22].Facts Not Disputed:

a. On 26 October 2018 and around 23h00 the deceased was drinking alcohol with friends when he left to see his lover at his home. He undertook to come back.

b. About two hours later, the deceased left Mthethwa, his lover saying he was going to meet another friend named Zama, never to return.

c. The body of the deceased was discovered some three days after he went missing in the bushes on the side of the road near Spioenkop Farm.

d. He died of a gunshot wound to his head.

e. At the time he went missing, the deceased’s handset and his Opel Corsa bakkie with registration number plate HHX 647 MP also went missing.

f. The deceased’s cell number (072 153 8802) or SIM card was last detected on his device (the deceased’s handset), on 27 October 2018 at 05h35. The last call by this number made using this device appears to have been at 01h13 on the same date – 27 October 2018.

g. A SIM card for cell phone number 076 834 4515 was the first to be detected on the deceased’s handset once his SIM card was taken out. This took place on 27 October 2018 at 11h11. At 11h14, the first usage by the same number was made connected by a network tower in Jozini Town A in KZN.

h. This SIM card belonged to accused no.

1. Upon his arrest on 23 November 2018, accused no. 1 had in his possession a handset with this SIM card.

i. A SIM card for cell phone number 071 576 4308 was next to be detected on the deceased’s handset. This took place on 29 October 2018 at 08h52.

j. This SIM card belonged to accused no. 2’s ex-lover.

k. A SIM card for cell phone number 079 554 6371 was the third on the row to be detected on the deceased’s handset. This took place on 31 October 2018 at 19h02. At 19h03, the first usage by the same number was made connected by a network tower in Jozini Town A in KZN.

l. This SIM card belonged to accused no.

2. He used it until his arrest on 23 November 2018. At the time of his arrest, he was in possession of the deceased’s handset with the same SIM card still inserted therein.

m. Upon his arrest, accused no. 1 was driving the deceased’s motor vehicle with original registration number plates without being tempered.

n. Inside the driver’s seat, accused no. 1 had placed the firearm, a 9 mm Parabellum Lorcin with serial no. L077739.

o. The firearm had a magazine with 12 live ammunitions.

p. Accused no. 1 did not have a licence to possess a firearm.

q. There was no communication whatsoever between the deceased’s SIM card or cell phone number and any of the two cell phone numbers belonging to accused no. 1 and accused no. 2 respectively, prior to his death or disappearance.

r. The two SIM cards belonging to the two accused, made movements in the late afternoon and evening of 26 October to early hours of the morning of 27 October 2018; reflections on Vodacom network towers suggesting a journey from Jozini to Mpumalanga in and around Bethal and Moses Kotane Street and back to Jozini on 27 October 2018.

[23].Facts in Dispute:

a. Did accused no. 1 buy the deceased’s motor vehicle from its owner?

b. Did accused no. 2 play any role in acquiring the deceased’s motor vehicle – and if so, was his role as testified by accused no. 1 or any different?

c. Did the two accused kill and rob the deceased of his belongings?

[24].Evaluation of evidence. The version presented by accused no. 1 is so improbable and not in line with the proven facts of this case that it can only be rejected. There are more reasons why it has to be rejected: He proved to be unreliable and not a credible witness. Lastly, his evidence is irreconcilable with the evidence of cell phone records that he like accused no. 2 admitted as a reflection of the truth.

[25].Accused no. 1 wants the court to accept his version to the effect that he travelled from Jozini at around 16h00 carrying R25 000 in cash, hitchhiking to Mpumalanga, in order to purchase a motor vehicle from a stranger. Not only was the seller unknown to him, but he had not seen the motor vehicle before or had its description given to him before he could buy it. This is surely not the way motor vehicles are sold or purchased: at 03h00 at a filling station without any papers or proof of ownership by the seller and a large sum of money: R25 000 is handed over without an invoice being given back. The buyer simply donates R25 000 without even test driving the motor vehicle or observe it if it is worth the price. The buyer did not even know if the person who received the money was more than a possessor of this motor vehicle. Sales of motor vehicle do not take place in this fashion and it is near impossible that accused no. 1 would not have known this merely because he trusted accused no. 2 on this.

[26].Accused no. 1 further testified that he was constantly with accused no. 2 since they left Jozini. All of a sudden and without any tangible reason, accused no. 2 told him to wait at The Lodge Tavern as he drove to drop the deceased at his home. He fails to give a pressing need for him to be left alone in the gory hours of the night while accused no. 2 drives his newly purchased motor vehicle. In so doing he tries to cast some suspicions that accused no. 2 may have been the person who killed the deceased at the time that he was left at a tavern. Accused no. 1 knows that they did not come to Mpumalanga to drink alcohol but to purchase a motor vehicle, using his hard earned cash: R25 000. It is improbable that he would have allowed accused no. 2 to just leave him in his newly acquired property like that in the area he was not even familiar with.

[27].In an attempt to explain why his SIM card was inserted into the deceased’s device, he testified that his cell phone was flat on battery and accused no. 2 borrowed him a cell phone to use which turned out to be the deceased’s handset. But the cell phone records reflect a different story. Accused no. 1 had been using his SIM card with phone number 076 834 4515 on a device with IMEI number 35706308835988. He had been using this device for the whole day of 25 and 26 October 2018 until 27 October 2018 at 05h36 when he inserted his SIM into a device with IMEI no. 35813205777741. At 05h58 he inserted it into a device with IMEI no. 86223002773390. At 07h15, the SIM card was again inserted into a device with IMEI no. 35813205777741. This continued until 11h11 when he inserted it into the deceased’s handset where it lasted just about 10 minutes, where after he inserted it again into the device with IMEI number 35706308835988 (at 11h22). It continued in this device until late at night.

[28].The fact that 10 minutes after inserting his SIM card into the deceased’s device, his old device into which the SIM was inserted, was with enough battery to last the whole day further, suggests that there must have been a different reason why the SIM was put in the deceased’s device in the first place, other than the battery being flat. After all, when this happened, they were already back home in Jozini. In all probabilities, accused no. 1 must have been testing if the deceased’s handset was blocked, blacklisted or whether it allows SIM cards from any other network as there are devices that do not work with any other network SIM cards.

[29].When asked as to why he bought a motor vehicle for R40 000 which had no window, he testified that he did not know it had no window until he was back in Jozini. This contradicted his earlier version that he realised that there was a lot of wind penetrating as they were driving out of Mpumalanga; and he realised the window was missing. When he was afforded the opportunity to explain the discrepancy, he simply could not do so. This impacted negatively on his credibility.

[30].Accused no. 1 fails to explain as to what was accused no. 2 to benefit from the whole transaction if it happened the way he testified. When asked as to how they payments were made as they hitchhiked, accused no. 1 explained that each one of them paid for his fees. It was only after the court reminded him that accused no. 2 would be paying for the journey that was not his that he was quick to point out that he had given cash to him so that he could pay for himself. No tangible explanation is made why this arrangement was made. What was wrong in him making all the payments? The version simply does not add up.

[31].The version of accused no. 2 is clearly false, not in line with undisputed facts of the case and irreconcilable with the evidence of the cell phone records. Under normal circumstances and in a normal world, nobody buys a cell phone from a private citizen together with his SIM card that he was using. The risk is that the new owner would receive calls on the new device not meant for him but for the previous owner. Equally, the previous owner would lose contacts for no apparent reason. Yet, accused no. 2 wants the court to believe this is exactly what happened in casu.

[32]. Suppose this is what happened, hypothetically speaking, accused no. 2 then struggles to explain how accused no. 1 had made calls to cell number 060 674 5785, which he (accused no. 2) testified that it belonged to his mother, prior to him (accused no. 1) selling it to him. This was because he confirmed that he never gave this number to accused no.

1. It was only after a number of questions that he remembered that his mother once hired accused no. 1’s bakkie to carry tomatoes. Accused no. 1’s calls to his mother must have been for that reason. When it was brought to his attention that the calls from this number to his mother’s cell phone took place before accused no. 1 could have a bakkie as it was still with the deceased, he could not explain.

[33].His failure to explain this discrepancy replayed itself when asked about calls made from this SIM card to phone number 071 576 4308 (a SIM that belonged to accused no. 2’s ex-lover). This number was called frequently from the number accused no. 2 claims to have bought with the device from accused no. 1, pre and post 27 October 2018 (the date on which the deceased was killed and dispossessed of his device and motor vehicle). Calls made after 27 October 2018 to this number were made from his (deceased’s) handset, whereas those made prior, were made from a different handset. At some stage (29-31 October 2018), the same SIM card was also inserted in the deceased’s device. He could not explain why accused no. 1 whom he said was not even his friend, would constantly call his girlfriend and even lend her the device so she could put her SIM therein, before it was sold to him.

[34].His denial that he was in the company of accused no. 1 the night of 26 to 27 October 2018 is disproved by the cell phone records that put him traveling side by side with accused no. 1’s device from Jozini to Mpumalanga. Yet he wants the court to believe that he was working in Jozini on those dates. What was his cell phone doing in Mpumalanga in his absence? He also fails to give a tangible reason on why accused no. 1 would ask him to lend him a jersey and if that was the case, why he did not collect it again from him. Accused’s 2’s version is just false and should be rejected as such.

[35].Circumstantial evidence. The rejection of the accused’s version and the acceptance of the version by the State in the circumstances of this case does not automatically translate into a conviction. While the version presented by the State is compelling and points to one direction, there were no eye witnesses and it remains circumstantial evidence. R v Blom[2] laid down the basic requirements for a conviction based on circumstantial evidence. There are two cardinal rules of logic which cannot be ignored: first, the inference sought to be drawn must be consistent with all the proved facts. Secondly, the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct. Circumstantial evidence is not necessarily of less value that direct evidence. In certain circumstances, it can carry more weight than direct evidence.[3]

[36].The State wants the court to infer that the accused, acting in furtherance of common purpose, robbed the deceased of his motor vehicle and a handset and in the process killed him. This inference is in line with other proven facts of the case. It is however not the only inference one can draw as the accused tried desperately to place before the court other possible inferences. Their failure to demonstrate any real alternative possibility of any other possible inference reflects that there is just no other “reasonable” inference that one could draw other than the inference the State seeks from the facts of this case.

[37].With the totality of evidence, the court finds by inference that the two accused travelled together from Jozini in search of a soft target to deprive of a motor vehicle. There was no communication between the deceased and any of the two accused meaning there was no prior arrangement for them to meet. The court finds that the deceased was just at a wrong place at a wrong time. The time during which the two accused had just arrived in Mpumalanga with only one mission in mind: To find a person driving the kind of a motor vehicle they were looking for and rob him of it.

[38].This person presented himself in the deceased whom they robbed of his motor vehicle and his cell phone. In sharing the spoils, accused no. 1 took the motor vehicle and accused no. 2 took a cell phone. As the motor vehicle is more valuable than a cell phone, there may have been an agreement to reimburse accused no. 2 by accused no. 1 given his role in the whole debacle and that he is the one who chose the location as he was more familiar with the area. He therefore deserved an award, which explains why accused no. 1 told the police that accused no. 2 was expecting a payment of the balance of money in connection with the deceased’s motor vehicle.

[39].The doctrine of recent possession

Lastly, the case for the State is also strengthened by the so called doctrine of recent possession. The doctrine of recent possession … is simply a common sense observation on the proof of facts by inference. On proof of possession by the accused of recently stolen property, the court may convict him of theft in the absence of an innocent explanation which might reasonably be true.[4] In S v Mchunu and Another[5], De Vos J confirmed a conviction of the accused on a charge of robbery even though he was not identified by the victim of robbery. The accused was arrested after he had sold the item robbed from the victim moments earlier, and he failed to give a reasonable explanation on how he came to be in possession thereof.

[40].The fact that the two accused were in possession of the deceased’s motor vehicle the night he was robbed and killed and yet they fail to give a reasonable explanation on why they came in possession thereof is exactly what this doctrine talks to. The two accused also possessed the deceased’s handset and inserted their SIM cards therein, on 27 October 2018 and 31 October 2018 respectively, suggests that they are the ones who robbed it from the owner. If the owner was killed, then they are liable for the owner’s death.

[41].The firearm: I find it strange that the indictment makes it clear that accused no. 1 was in possession of a firearm in Jozini which is in KZN. Jozini is outside the jurisdiction of this court. No directive was given by the NDPP in terms of section 22(3) of Act 32 of 1998 read with section 111 of Act 51 of 1977 (the CPA), authorising the investigations and trial of these crimes in the Mpumalanga Province. I am of the view that this failure would be healed through section 110 of the CPA in that no objection or special pleas in respect of the jurisdiction was raised, the court would be deemed to have the jurisdiction to hear the matter.

[42].The Firearms Control Act defines a firearm as

(a) device manufactured or designed to propel a bullet or projectile through a barrel or cylinder by means of burning propellant, at a muzzle energy exceeding 8 joules (6 ft-lbs);

(b) device manufactured or designed to discharge rim-fire, centre-fire or pin-fire ammunition;

(c) device which is not at the time capable of discharging any bullet or projectile, but which can be readily altered to be a firearm within the meaning of paragraph (a) or (b);

(d) device manufactured to discharge a bullet or any other projectile of a calibre of 5.6 mm (.22 calibre) or higher at a muzzle energy of more than 8 joules (6 ft-lbs), by means of compressed gas and not by means of burning propellant; or

(e) barrel, frame or receiver of a device referred to in paragraphs (a), (b), (c) or (d), but does not include a muzzle loading firearm or any device contemplated in section 5;

[43].While the State is not expected to prove that the device alleged to be a firearm fits all these definitions (as they are in alternatives), it is however expected to prove at least one of them.[6] The State did not attempt to prove that the item that was found in the deceased’s motor vehicle was a firearm as defined in the Firearms Control Act. This can only be answered through forensic evidence which was not presented. Equally, the indictment talks of the unspecified quantity of ammunitions while the evidence tendered talks of 12 live rounds. They are also clearly visible in the photographs for anyone to count. These too were not tested by the experts.

[44].The fact that the deceased died of a gunshot wound is not good enough on its own to bring about a conviction for possession of unlicensed firearm.[7] No cartridges were found at the scene and no bullet was retrieved from the deceased’s body for further analysis. I am therefore in the dark as to whether the instrument that accused no. 1 had upon his arrest, or the instrument used to kill the deceased, qualifies as a firearm as defined in the Firearms Control Act. The next hurdle that the State would have to cross if the instrument used to kill the deceased was proved to be a firearm was the question on who between the two accused fired the shot. That may not be relevant for purposes of murder as this is taken care of by the doctrine of common purpose. But when it comes to firearms, the party who did not possess a firearm must have intended that the one carrying it should possess it on his behalf.[8] In light of the State making it through the first hurdle, I will not deal with this aspect as it is pointless.

[45].I am therefore satisfied that the case for the State was proved beyond a reasonable doubt in respect of counts 1 and 2. The two accused acted in furtherance of common purpose in committing the two charges. The accused’s versions are rejected for being improbable, false and not fitting into the undisputed facts of the case. The court is however not satisfied that the case for the State was proved beyond a reasonable doubt in respect of counts 3 and 4.

[46].Verdict:

The two accused are found Guilty as charged in respect of counts 1-2. A verdict of Not Guilty is returned in respect of counts 3 and 4 for both accused.

Sections 51(1) and 51(2) of Act 105 of 1997 are applicable in respect of counts 1 and 2 respectively.

T.V.

RATSHIBVUMO

ACTING

JUDGE OF THE HIGH COURT

Dates Heard: 08, 09, 17 & 18 June 2021

Judgment Delivered: 28 June 2021

For the State:

Adv. Poodhun

Instructed by: Director of Public Prosecutions

Mpumalanga

Defence:

Mr. Muthivhithivhi – For accused no. 1

Instructed by: Legal Aid – Middelburg

Defence:

Mr. Phethoe – For accused no. 2

[1] 2003 (1) SACR 143 at 139I-140B.

[2] 1939 AD 188.

[3] See S v Tshabalala 1966 (2) SALR 297 (AD) at 299B – C

[4] S v Parrow 1973(1) SA 603 (A) at 604

[5] [2007] JOL 19282

[6] See S v William 2005 (2) SACR p290

[7] See S v Jordaan ZAWCHC 131 where an accused was convicted of possession of unlicensed firearm even though it was not recovered for testing purposes. There were however enough cartridges from which forensic analysis could be made for a conclusion to be reached that the deceased was killed making use of a firearm.

[8] S v Ramoba 2017 (2) SACR 353 (SCA).