S v Tshabalala (SS115/01) [2002] ZAGPHC 10 (26 February 2002)

NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

JOHANNESBURG

CASE NO: SS115/01

DATE:2002-02-26

In the matter between

THE STATE

and

MSAWENKOSI THIMOTHY TSHABALALA.................................................................. Accused

JUDGMENT

WILLIS J: Msawenkosi Thimothy Tshabalala, to whom I shall hereinafter refer as the accused stands indicted on three different counts.

The first count is murder, it being alleged that on or about 2 November 2000 and at or near Jeppe Railway Station in the district of Johannesburg, the accused did unlawfully and intentionally assault Vusi Nkabinde and did there and then with force and violence, take on 9 millimetre Parabellum Norinco pistol, serial number 13026295 from him, his property or property in his lawful possession and did thereby rob him of the same, aggravating circumstances as defined in section 1 of Act 51 of 1977 being present.

The second is murder, it being alleged that upon or about the date and at or near the place mentioned in count 1, the accused did unlawfully and intentionally kill Vusi Nkabinde, a male person.

The third count is that of unlawful possession for a firearm, it being alleged that upon the date and at or near the place mentioned in count 1, the accused did unlawfully have in his possession a firearm to wit a 9 millimetre Parabellum Norinco pistol, serial number 1 3036295 without being the holder of a licence to possess the said firearm.

The accused pleaded not guilty to all three counts. His explanation of the plea in terms of section 115 of the Criminal Procedure Act 51 of 1977, as amended, was that he was not present at the scene of the crime.

The accused was represented by Mr Duvenhage. The state by Ms Gangadu.

The accused made certain formal admissions in terms of section 220 of the Criminal Procedure Act. These relate to the cause of death of the deceased, namely that he was killed as a result bullet wounds sustained in the late afternoon of Thursday, 2 November 2000 near the Jeppe Railway Station. The photographs and postmortem report were also admitted.

It was admitted that a cartridge found in the motor vehicle by the police after the killing had taken place, had been fired from the firearm which the accused was licensed to possess. An admission was made with regard to the bullet which in all probability was the one removed from the body of the deceased by Dr Patricia Klepp conducting the post-mortem examination. This bullet was also fired from the firearm which the accused was licensed to possess.

There was one key eyewitness called by the state. He was afraid to testify and a request was made that the evidence of this person be heard in camera. The application was not opposed by Mr Duvenhage for the accused and an order was made that his evidence could be heard in camera. I shall refer to this person as the eyewitness.

The eyewitness is a taxi driver by trade. On Thursday, 2 November at 3 o'clock in the afternoon he was at the Jeppe station. He had come to see what the position.was with regard to his taxi. While he was there standing outside the Jeppe station, he saw one Dumisani Madonsela come past him. Dumisani Madonsela walked towards a parked Cressida, grey in colour. Dumisani Madonsela leant against the window with his arms folded against that window. It looked as though he was talking to the person who was sitting in the driver's seat of the vehicle.

After Dumisani Madonsela had spoken to the person sitting in the driver seat for a short while, he jumped backwards. At this stage the eyewitness saw two black men, one of them who was heftily built and the other being the accused, approach the vehicle to which I have already referred.

The accused then started shooting. After that he opened the door on the left-hand side. He picked up an object from inside the motor vehicle and placed it in the front of his trousers. He started running away. The eyewitness realised that this object that had been taken from the vehicle was a firearm.

A traffic policeman chased after the accused, but did not succeed in apprehending him. The accused was arrested some time later as a result of information given by an informer.

Inspector Reyneke went to the scene, having received a call. Accordingly he arrived there not very long after the deceased had been killed. He found the deceased lying in the vehicle. He had a holster from which a firearm had been removed. His observation concerning the injuries which he could see on the deceased and the damage to the back left window, corroborated the version of the eyewitness with regard to what he had observed.

Inspector Ngobese, the investigating officer, confirmed that initially when he had interviewed the eyewitness, the eyewitness, although he had mentioned the accused as having been one of the persons participating in the attach on the deceased, had said that he could not say who fired the shots.

In the statement which the eyewitness made, which was handed to court as exhibit F, there is also no pertinent mention of the accused as having been the person who fired the shot, although he is mentioned as one of the persons participating in the attack.

The post-mortem report, also corroborates in material detail the evidence of the eyewitness, in particular with regard to the number of shots that were fired and the angle at which they would have been fired.

It is common cause that the incident took place in broad daylight. It is also common cause that the eyewitness and the accused were well-known to each other having known each other since childhood.

The accused's defence has a virtue of a large degree of simplicity. It is that the person Dumisani Madonsela who was known to him as Pat Madonsela, but who was the same person described by the eyewitness as having spoken to the deceased shortly before he was shot and killed, approached him one afternoon, the date of which he cannot recall precisely, and asked him if he could borrow the accused's vehicle. The accused agreed to this and handed Dumisani Madonsela the keys to the vehicle. On this bunch of keys was the key to-a small safe in which he kept his licensed firearm and this firearm in the small safe were locked in the cubbyhole of the vehicle. At the time when he lent the vehicle to Dumisani Madonsela he had forgotten that the safe with the firearm was in the cubbyhole.

After Dumisani Madonsela had driven off he realised that the firearm was in the safe in the cubbyhole in this vehicle. He telephoned Dumisani Madonsela but he was far away and could not immediately return the firearm. A day or two later the vehicle together with the firearm were returned to the accused.

Skuta Ngwenya was called to corroborate the version about the borrowing of the vehicle. It has to be accepted as being reasonably possibly true that Dumisani Madonsela may indeed at some stage or another in the past have borrowed a vehicle from the accused.

The key question in this case is whether it is reasonable possibly true that the critical time during which Dumisani Madonsela borrowed the vehicle, was the time over which the deceased was killed and whether at that time the firearm in the safe in the cubbyhole was accessible to Dumisani Madonsela.

Certain criticisms can be made of the accused's evidence. He clearly accepts that the eyewitness could not have been mistaken about the identity. This much is obvious by reason of the fact that the incident took place in broad daylight and the eyewitness and the accused were very well-known to each other over a number of years. The eyewitness would therefore have had to fabricate his evidence concerning the complicity of the accused.

When asked to give an explanation for why the eyewitness would fabricate the involvement of the accused, he gave what is a ridiculous

explanation. Apparently there were some disagreements over a motor vehicle which the eyewitness had purchased from the accused for some Rl 000 some six years ago. Problems had developed with this motor vehicle, in particular its gearbox and the eyewitness then wished to return the vehicle to the accused and recover his money. The accused refused and this apparently is the source of the grudge. It defies belief that over such a small incident a lingering grudge would exist for some six years and the boil only become lanced at the time when the eyewitness saw somebody else being killed.

When the accused was asked why the eyewitness did not vent his anger earlier and in some other way, the accused's weak explanation was that he would be difficult to find.

The accused's version that the key to the safe in which the firearm was kept happened by a special coincidence to be on the same key-ring of the keys for the vehicle which was lent, seems somewhat farfetched. When I asked him as to what other key-rings he had, he denied that he had any other key-rings other than the key-ring for his motor vehicle. He said he had no keys for his place of work because his brother ran the panel-beating business which they jointly operated, always had the keys. He said that he had no keys for his home because his wife was always there at home to let him in whenever he wanted to be let into his house. This explanation, in my view, is hardly credible.

I also find it difficult to understand why the accused was so relaxed about lending his vehicle to Dumisani Madonsela in the circumstances.

It was after all a vehicle which he needed to use for his daily routine. His explanation as to how he would get by after having his daily routine interrupted by the loan of this vehicle, I also find difficult to accept. It is not as though Dumisani Madonsela on his {the accused's) version of events wished to borrow the vehicle for a short time in some dire emergency. It is not as though Dumisani Madonsela had no other reasonable alternative. It seems that he wished to transport some spare parts to Komati Poort.

Great care must be taken with regard to the evidence of the eyewitness, in view of the fact, as I have already indicated, that he was prepared in this court to name the accused as the person who fired the shots at the deceased, whereas he held out to the police initially that although the accused had been one of this group who approached the deceased, he did not know who had actually fired the shots.

It is not, however, as though the eyewitness, although a single eyewitness, is a single witness for purposes of the case. His evidence is materially corroborated, as I have already indicated, by the evidence of the police officer, Inspector Reyneke, who arrived on

the scene soon after the deceased was killed, and the post-mortem report. His capacity for observation clearly was accurate in the circumstances, if one has regard to the injuries sustained by the deceased and the damage inflicted on the vehicle.

The critical question that has to be asked is if the eyewitness for some reason were fabricating the version concerning the accused's

participation in the killing of the deceased, how does one explain the extraordinary coincidence that the licensed firearm belonging to the accused, was used in killing the deceased? There is of course the explanation offered by the accused indirectly, namely that Dumisani Madonsela could have gained access to the small safe in which the firearm was kept during the time that he borrowed the vehicle from the accused. But it stretches credulity to imagine that the eyewitness could have described events consistent with the use of the firearm belonging to the accused, described Dumisani Madonsela having been at the scene when he had no way of knowing when he gave his evidence to the police, that it was the accused's firearm that was used to kill him.

The probability of a match between these two facts, namely the description of the accused as having been the one who fired the shots

and the objective fact that his firearm was indeed used to shoot and kill the deceased, is so remote as to be able to be discounted in the circumstances.

Then there are the further factors that weigh in the equation. I have already mentioned the fanciful explanation given by the accused for why the eyewitness should, after having seen the killing of a person who was a stranger to him, select the accused as the person he should mention because of some long standing grudge that apparently existed over an ultimately trivial matter.

Then there are the question marks around the remarkable coincidence of the key for the safe being on the bunch of keys used for the ignition of the vehicle as well as the totally implausible story of the accused that other than the keys for his vehicle he never had any other sets of keys.

The correct approach in an evaluation of the evidence in a criminal trial is to have regard to the totality of the evidence. No aspect must be considered in isolation. One can't simply point to valid criticisms concerning the evidence of the eyewitness and conclude that an acquittal is justified. Nor can one simply look at the accused's version in isolation. It has to be looked at with regard to his own credibility and all the different probabilities.

In all the circumstances of the matter I am satisfied that the accused was indeed at the very least one of those who made common cause with at least one other person, to shoot and kill the deceased and actively associated himself therewith.

I am satisfied too that the evidence of the eyewitness with regard to the removal of the firearm from the possession of the deceased is accurate and accordingly the accused would be guilty of robbery with aggravating circumstances, a firearm having been used in the execution of the robbery.

I am also satisfied that the evidence of the eyewitness with regard to the accused making away with the firearm and therefore having

possession of it in circumstances where he could not lawfully be in such possession, is proven.

Will the accused please stand while I pronounce verdict?

Count 1, the count of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, you are found guilty as charged.

Count 2, murder, you are found guilty as charged.

Count 3, unlawful possession of a firearm, contravention of section 2 read with sections 1 and 39 of Act 75 of 1 969, you are found guilty as charged.

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