S v Vilakazi and Others (CC 31/2020) [2021] ZAMPMHC 17 (24 May 2021)

THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION OF THE HIGH COURT

MIDDELBURG LOCAL SEAT

(BREYTEN CIRCUIT COURT)

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

24 May 2021

CASE NO: CC 31/2020

In the matter between:

THE STATE

And

SIPHIWE JABULANI VILAKAZI

(ACCUSED NO. 1)

MDUDUZI MBOKANE

(ACCUSED NO. 2)

BHEKI LUCAS MADIDA

(ACCUSED NO. 3)

MUZI MNISI

(ACCUSED NO. 4)

SIBUSISO NDINISO

(ACCUSED NO. 5)

JUDGMENT

RATSHIBVUMO AJ:

[1]. The charge.

The accused stood trial on a charge of murder. The State alleged that on 01 February 2018 and at Amersfoot, the accused did unlawfully and intentionally kill Thabiso Vincent Yende.

[2]. The accused were legally represented throughout the trial by Mr. Cillers, an attorney. Adv Poodhun appeared for the State. Adv Poodhun indicated that in case of conviction, a sentence prescribed in terms of sec 51 (1) of Act 105 of 1997, would be sought. It was also averred that in committing the crime they faced, the accused acted in furtherance of common purpose.

[3]. The plea.

All the accused pleaded Not Guilty. A plea explanation was made in terms of which all the accused denied having committed the crime of murder. They admitted having chased the deceased in order to bring him back to the taxi rank at Amersfoot where he had fled from and that in the process of apprehending him, he got injured, which injury led to his death. They however denied having inflicted the said injury or having acted in furtherance of common purpose to kill him.

[4]. The post-mortem findings, the cause of death, the fact that the body of the deceased sustained no further injuries from the place it was found until the time the post-mortem was conducted, together with the photo albums were admitted by the accused. These were accepted as evidence and marked as Exhibit X.

[5]. Issues for determination

The public transport or taxi industry as it’s generally referred to in South Africa, can be a lucrative business. This is one industry that is usually considered as being 100% Black owned. Unfortunately, its successes are often marred by the violence

that installs and dethrones its managers and directors. For an industry that is supposed to be thriving, contributing positively to the economy of the country and giving back to the poor, this is a lamentable and sad situation.

[6]. Like a shadow that stalks its owner wherever he treads, so it was that Amersfoot taxi rank (the taxi rank) was visited by this shadow of death when violence erupted on 01 February 2018 between Amersfoot Taxi Association (ATA) and Thuthukani Taxi Association (TTA). The dispute was over the route between Amersfoot and Johannesburg which TTA, an association to which all the accused were affiliated, believed it had the exclusive right over its usage. Members of ATA believed they also had a right to share this route.

[7]. The dispute came to a confrontation when Mr. Ngobese, a member of ATA dropped a group of young men outside the taxi rank. This group was perceived by the accused and other members of TTA inside the taxi rank as the invaders who were there to help ATA to claim their right over this route by force. Stones were thrown by the two groups at each other until the invaders retreated into Amersfoot town. The accused and other members of the TTA gave chase in a motor vehicle, a Chevrolet light delivery van (a bakkie) and managed to apprehend the deceased whom they brought back to the taxi rank. In the process of apprehending him one of those who apprehended him stabbed him on the right thigh causing him to bleed profusely. He succumbed to his death moments after arriving at the taxi rank from this wound. All the accused persons claim that they did not witness the stabbing of the deceased.

[8]. The court is called to determine from the evidence presented the following:

a) Who inflicted the injury on the deceased?

b) Can the stabbing of the deceased be attributed to those who were part of the chase and the apprehension of the deceased even when they may not have personally inflicted the injury that caused his death? In other words, can they be said to have acted in furtherance of common purpose with the person who stabbed the deceased?

[9]. Summary of facts:

Nine witnesses testified in this trial, four for the State, whereas the accused were the sole witnesses who testified in their defence.

Case for the State

[10].Thabiso Friday Ngobese: He is a taxi driver affiliated to ATA. He testified that on 01 February 2018 around 13h15, he arrived at the taxi rank carrying 15 passengers who wanted him to transport them to Volksrust Prison. He took them to the taxi rank where he handed them over to a certain Bishop, who was to further take them to their destination. While still there, they were then approached by taxi drivers from TTA who started making noise throwing his passengers with stones, prompting his passengers to also throw the stones back. These drivers were also carrying sticks and knobkerries.

[11].He knew all the five accused prior to this date as he worked with them. They were all part of the group that attacked his passengers. The accused were armed as follows. Accused no. 5 had a stick. Accused no. 4 had a knobkerrie. He only saw accused no. 3 throwing stones at his passengers. He did not see if he was armed or not. Accused no. 2 was not armed. Accused no. 1 was armed with a knife. His passengers ran away and the accused together with their companions gave chase. Moments later, members of TTA then gave chase in two motor vehicles: a white Toyota Corolla and a silver grey Chevrolet bakkie. Accused no. 2 was driving the bakkie which was carrying all the accused.

[12].He drove behind observing the chase and parked his motor vehicle at a garage and got into another one driven by Mthokozisi. The two of them drove behind observing further. The bakkie then hit one of his passengers who is now the deceased from its front right as he was crossing the street, and he fell to the ground. The bakkie did not stop as they proceeded to chase others from the group of his passengers while the deceased remained lying down on the side of the road. The others managed to outrun the accused. The bakkie was then driven back on reverse whilst carrying all the accused and it drove over the deceased’s legs. At that stage the deceased was lying on the grass on the side of the road. When the bakkie’s driver’s door was opened, he realised that it was accused no. 3 who was driving this time around.

[13].Accused no. 1 then approached the deceased and stabbed him on his thigh before the rest of the accused loaded him into the loading bay of the bakkie and took him to the taxi rank. At that stage the deceased was still alive. At the taxi rank, accused no. 1 is the one who pulled the deceased from the bakkie to the ground by his legs causing his head to hit the ground. Accused no. 1 shouted saying ‘here is that wild animal, we brought it back.’ He then jumped and trampled on the deceased’s

body while other drivers joined in assaulting him through kicking and hitting him with clenched fists. They only stopped when one of the taxi owners reprimanded them saying they should respect to the police.

[14].Under cross examination he further testified that accused no. 1 hit the deceased with a panga on its flat side while at the taxi rank. He further testified that while there, the accused and other members of the TTA also hit the deceased with sticks and knobkerries.

[15].Lesetsa Fortune Mvelase: In 2018, he was 20 years old was doing grade 11 together with the deceased. On 01 February 2018, he was one of the passengers that alighted from a taxi outside the taxi rank in the company of the deceased who like him, was coming from the school. According to him, Mr. Friday Ngobese (Ngobese) was a passenger with him in that taxi and he was not driving it. He testified that he was in that taxi because the deceased had asked him to accompany him to the bank near the taxi rank as he wanted to withdraw some cash. When they got to the outside of the taxi rank, the taxi stopped and the passengers alighted. It then proceeded to the taxi rank. He and the deceased then took a walk to the bank – First National Bank.

[16].In less than five minutes, a group of about six to seven men emerged carrying stones and sticks. He also heard them say “are these the people you say you trust?” These men hurled stones at them. In return, they also threw the stones back at them. Shortly thereafter, he saw a white Toyota Corolla emerging from behind. At the same time, a silver grey Chevrolet bakkie also emerged from the front carrying a group of men. He warned the deceased that the cars were after them. This he did before running across the street. The deceased ran straight along the road while he ran to where he hid under a tree. It was while he lied there that he observed the bakkie following the deceased.

[17].He observed the bakkie knock down the deceased and stopped a short distance thereafter. The occupants thereof got out and chased Metzi, Peakos and another person whose name the witness could not remember, but they could not catch them. Those were the people who alighted with him from the taxi outside the taxi rank. After being hit, the deceased sat down as it appeared as if his leg was twisted. For he tried to run away but could only move to the side of the road on the grass. When these men came back from the chase, they got back into a bakkie which then reversed back to where the deceased was, driving over him.

[18].They then got out and assaulted the deceased with sticks and by kicking him as he lied on the ground. They then loaded the deceased on the loading bay of the bakkie and drove with him to the taxi rank. He did not follow them to the taxi rank as it was a distance away. When the bakkie drove over the deceased, accused no. 3 was driving it. He is not certain as to who the driver was when it knocked him down earlier. From where he was, he could not see if the deceased was injured when he was taken away.

[19].Under cross examination, he testified that all the accused were part of the group that attacked the deceased. It became clear that he attended an identification parade and pointed out accused no. 1 and two other people who turned out to have had nothing to do with this case. He attributed this to the fact that at the identification parade, they looked alike and were wearing the same clothes. As for accused no. 1, it was easy to identify him because he was used to seeing him at the taxi rank.

[20].Paul Samuel Mthethwa: He is a Constable within the South African Police Services (SAPS) stationed at Amersfort Police Station. He testified that on 01 February 2018, there was a message received at the police station to the effect that there was another fight at the taxi rank. They were also told one of the victims had already been loaded into a bakkie being taken to the taxi rank. He and Sgt Scheepers then drove to the taxi rank and arrived at the same time with the bakkie that was described in the report. There were around eight men in the bakkie, a silver Chevrolet. He knew all the accused well prior to this date. They were passengers in that bakkie driven by accused no. 3.

[21].It was accused no. 1 who opened the back of the bakkie. He was carrying a panga in his hand and with it, he hit the deceased on its flat side. Accused no. 2 stamped on the deceased while still in a bakkie. When he was off loaded, the deceased was bleeding a lot and he was crying. Accused no. 3 did nothing besides driving the motor vehicle. Accused no. 4 kicked the deceased while carrying a stick in his hand. Accused no. 5 also assaulted the deceased although he was not armed. Other people also came and joined in the assault but they would not listen to his pleas for them to stop. It was only after Mr. Manqoba Malinga, a taxi owner reprimanded them saying they must show respect to the police, that they stopped.

[22].At that stage, the deceased was still alive. But moments later, he died. He testified that he called him by his name and he did not respond. He was no longer breathing. He then called an ambulance and the paramedics came and confirmed that the deceased was dead. He arranged for the body to be collected. He is the one who pointed out the five accused to the investigating officer as people who took part in the assault of the deceased. He also attended an identification parade in which he pointed three of the accused being accused no. 1, 3 and 5.

[23].Morris Scheepers: He is a Sergeant in the SAPS stationed at Amersfoot Police Station. He was in the company of Const Mthethwa when they arrived at the taxi rank on 01 February 2018. His evidence is therefore substantially similar to that of Const Mthethwa. I will therefor not repeat it except to add where it is necessary. According to his observation, accused no. 1 and accused no. 4 were some of those who kicked the deceased off the bakkie to the ground. Accused no. 4 was also armed with a knobkerrie with which he hit the deceased. He is the one who called for backup and other police officers arrived at the scene. He did not know the accused prior to the date of the incident. He was not called to attend the identification parade.

[24].Statements prepared in terms of section 212 of Act 51 of 1977 (the Criminal Procedure Act) were handed in by agreement, the gist of which proves that the blood that was found on the loading bay of the bakkie belonged to the deceased.

[25].With this evidence, case for the State was closed.

Case for the Defence:

[26].Siphiwe Jabulani Vilakazi: He is accused no. 1. In 2018 he worked for TTA as a queue marshal and was stationed at Amersfort taxi rank. He testified about the dispute between TTA and ATA over the right to load passengers at the taxi rank. When he arrived at the taxi rank on 01 February 2018, members of the ATA informed him that he was not supposed to work there as that was the area belonging to MP (ATA). He also saw Ngobese that morning when he came with a group of young men. He was not sure if the deceased was part of this group.

[27].In the afternoon, Ngobese came again and he was in the company of a group of young men (the invading group) whom he offloaded at a stop sign outside the taxi rank. This group came towards where the witness and others were at the taxi rank. At that stage, the group was big enough to fit into two minibuses. They were armed with knobkerries and were chanting that those at the taxi rank should be beaten. The deceased was amongst them and was carrying a knife. The witness and his companions then asked as to what was happening. Members of the invading group responded saying they should not ask as the fight was on. The invading group started throwing stones them. The witness and his companions approached the invaders and managed to push them away, forcing them to flee.

[28].As the invading group fled, the witness and others including all his co-accused, got into a Chevrolet bakkie and chased them. They fled into Amersfoot town. Their purpose in chasing the invading group was in order to catch anyone amongst them who could explain as to what was going on. They were about 10 when they got into a bakkie. Accused no. 2 was the bakkie driver. When they reached the area around the garage, he could see members of the invading group running in an open space. They got out of the bakkie and gave chase on foot. As they gave chase, he could see three of the invaders. They managed to catch the deceased whom they brought

back to the bakkie. The deceased was grabbed while he was resisting and fighting.

[29].He disputed that the bakkie knocked down the deceased as Ngobese testified. It was also not driven over his legs. He however confirmed that accused no. 3 drove the bakkie back to the taxi rank as he did not join them in the chase of the three men. He testified further that he was not carrying a knife. When they arrived at the taxi rank the knife that was in the deceased’s hand was on the floor of the bakkie. The deceased was not assaulted at all. Neither he nor his co-accused was carrying sticks. When they caught up with the deceased, he could still run. He only saw when they alighted at the taxi rank that the deceased was injured.

[30].Once at the taxi rank the deceased got off the bakkie on his own from its side. He was not kicked off to fall. They then asked him as to how he got to the taxi rank. The deceased responded saying he came from Amersfoot town and was brought by Ngobese. At that stage, blood was coming out of his right leg. The witness however did not see how the deceased sustained the injury. They brought him back to come and explain what he wanted there as he did not even work there. He denied having shouted that they brought a wild animal. The deceased was not assaulted at all. He did not jump on the deceased or hit him with a panga. He had no panga in his possession. He never formed the common intention that the deceased must be killed.

[31].When the deceased was apprehanded, all the accused except accused no. 3, took part in holding him. The deceased attempted to stab them with a knife in his hand but he could not do so as accused no. 2 grabbed the hand that held the knife. He was taken to the bakkie with a knife in his hand without being disarmed. Even as they drove to the taxi rank, the knife was in his hand. During the journey, he was being interrogated with the knife in his hand. It was an Okapi knife, the same knife in picture no. 9 in Exhibit E. When they reached the bakkie from where he was captured, the deceased climbed the bakkie on his own and he was standing throughout the journey. He does not know how the deceased got injured.

[32].Mduduzi Philemon Mbokane: He is accused no. 2. In 2018 he was employed as a taxi driver working for Mr. Mbokane. He was a member of TTA and he operated from Amersfoot to Gauteng. Theirs was the only taxi association operating from Amersfoot. There were disputes between TTA and ATA over the Gauteng route. On 01 February 2018, he saw Ngobese arrive at the taxi rank in the morning in the company of a group of young men – the invading group. They started hurling insults causing a commotion. When he and his companions approached the invader, they moved away from the taxi rank and they were gone.

[33].Later that day after 13h00 Ngobese came again in the company of the same group. He could not tell if the deceased was part of this group when they came in the morning as they were unknown to him. These people were carrying pangas, knives and small axes. Like in the morning, they hurled insults at them chanting like in a protest while their words were directed at the men in the taxi rank. He together with his companions then approached this group in order to find out as to what they wanted as they were unknown to them. The invading group then threw stones at them. They also picked the stones and threw them back at the invaders who the fled.

[34].He and his companions totalling about 10 or 11 then turned around and got into a motor vehicle, a Chevrolet bakkie of which he was the driver. Accused no, 1, 3, 4 and 5 were among them. They left the taxi rank and used a different route to go and meet the invading group from the front. He drove until where he spotted them running away. He stopped the motor vehicle and they gave chase to two of them on foot but could not catch up with them.

[35].As they were walking back to the car, they saw the deceased coming running. The deceased tripped on grass and fell. He rose and tried to ward them off by waving his hands one of which was armed with a knife. He managed to grab the deceased on his hand, causing the knife to fall to the ground. He did not see what happened to the knife after it fell down. They then took him to the bakkie with the witness holding him by the hand while his companions were also carrying him, although he could not see how as he concentrated on carrying him by the hand.

[36].Once they reached the bakkie, they put the deceased at the loading bay thereof. He then went to the driver’s side and found accused no. 3 occupying the driver’s seat. He does not know accused no. 3 had remained at the car at the time they gave chase as they were in a rush. He then climbed on the side pocket of the bakkie and sat on the side with his legs outside as the bakkie was full. He did not realise that the deceased was injured until they were back at the taxi rank. At that stage, the

deceased was on the ground and he could also see blood on the bakkie.

[37].He did not see how the deceased got off the bakkie as many people surrounded it when it arrived. Neither he nor his companions had a panga with them. He denied the version by Const Mthethwa that he stamped on the deceased. Upon their arrival at the taxi rank, he went to drink water as he was exhausted from the running. As they drove back to the taxi rank, he heard some noise as the deceased was being interrogated. He however did not hear him respond. Their aim in taking the deceased to the taxi rank was to question him together with others as to what he wanted there as he was unknown to them. He also denied the version by Sgt Scheepers to the effect that they shouted that the dog must be killed.

[38].He could not describe a knife that he disarmed from the deceased as it was open. He could also not say if the knife in pictures no. 8 and 9 of Exhibit E is the one that the deceased had. He denied that he had the common purpose to kill the deceased. He also denied that he hit the deceased with a motor vehicle. Once he was placed on a bakkie, the deceased lied down. At that stage he was not injured.

[39].Bheki Lucas Madida: He is accused no. 3 in this case. In 2018 he was employed as a taxi driver who drove a family minibus which used to belong to his mother. He testified that on 01 February 2018, he received a message to the effect that there was a court order forbidding the ATA from using the Gauteng route. When he was at the taxi rank that morning at about 9h15, a taxi arrived driven by Ngobese carrying a group of people. This group attempted to cause commotion by disturbing the people there while shouting that they would not be told by people from Daggakrall on what to do. They eventually left after he and his companions intervened.

[40].After that, the loading of the taxis was not normal with other people saying they should not load there. They continued loading because they had a court order allowing them to do so. Attempts to serve the order on the members of ATA were made with no success. Around 14h00 Ngobese came again with a group of men. They were shouting that they would not be told by them on what to do. They were carrying alcohol, sticks and knobkerries and they throwing stones at them. He and his companions threw the stones back at the invading group and it retreated. When he saw about eight of his companions getting into a Chevrolet bakkie he joined them and

climbed at the back as they gave chase to the retreating group that left running. Accused no. 2 was the driver at that stage.

[41].They reached an area where he could see three boys from the invading group coming from the road that leads to the bank direction. They again threw stones at the bakkie but they missed. However, some of the stones landed into the loading bay of the bakkie. The bakkie was stopped and his companions got out and gave chase. He stayed behind looking after the bakkie. He knew it belonged to accused no. 2’s family. His companions eventually came back carrying the deceased and put him on the loading bay of the bakkie. He is the one who drove the bakkie carrying the deceased and his companions back to the taxi rank.

[42].He did not assault the deceased. He could not see if the deceased was injured. He denied that he drove the bakkie over the deceased. When they got into the taxi rank, the police van was also there. He parked the bakkie and went to stand next to the yellow containers. He did not see how the deceased got off from the bakkie. He saw him lying behind the bakkie while still alive and later when he was dead. It was while he lied down there that he noticed for the first time that he was injured. He also saw blood at the back of the bakkie. According to him, the deceased must have been injured where he was apprehended not at the back of the bakkie. If he was injured at the back of the bakkie, he would have heard the noise or the movements.

[43].He testified further that he did not have any knobkerrie in his person. He did not hear the shouting to the effect that the dog must be killed. He never colluded with anyone to kill the deceased.

[44].Muzi Joshua Mnisi: He is accused no. 4. He testified that he was present at Amersfoot taxi rank on 01 February 2018. He used to assist at home in driving a taxi belonging to his father. His father was one of the taxi owners tasked with the responsibility to hand over a court document to ATA that prohibited them from loading at that taxi rank. He also testified about a group of people who came there in the morning shouting that they would not be told what to do as that area was not Daggakraal. When they were asked as to what they wanted, they ran away. He and others had remained at the taxi rank while others went to the police station to facilitate the handing of the court order.

[45].Later in the afternoon, another gang like the one that came in the morning also arrived at the taxi rank in a similar taxi. They were carrying liquor, shouting and chanting. They only moved out of the taxi rank and stood by the street after the witness and other members of the TTA approached them forcefully to ask what they wanted there. Members of the group that retreated threw stones at him and his companions and they also threw them back at them. After this group left, members of TTA agreed to drive ahead of the retreating group in a motor vehicle which they did in a Chevrolet bakkie driven by accused no. 2.

[46].They were nine to ten in a bakkie including accused no. 1, 2, 3 and 5. They drove to a spot where they saw two members of that group and the bakkie was stopped. They got out and ran after the fleeing men. They could not catch up with them. As they walked back, the deceased appeared running in the grass. They turned back and chased him too. The deceased then fell down and was caught by accused no. 2. He and his companions then carried the deceased back to the bakkie which then drove to the taxi rank.

[47].As they drove, he asked the deceased as to where he was from. The deceased only pleaded for forgiveness. The police arrived immediately after their arrival. The deceased wanted to get off from the bakkie quickly and he couldn’t. He fell off. It was then that he realised that the deceased was injured on his leg. The witness then asked Const Mthethwa to find out from the deceased as to who sent him there. He then went to get water as the chase had exhausted him. He did not return to where the deceased was. He went to lie on the ground on the other side of the street.

[48].He disputed that accused no. 2 drove into the deceased or that accused no. 3 drove over his legs. The deceased was not assaulted at all. He did not stamp on him either. He did not form the common intention to kill the deceased with any other person. It was only when they were in the bakkie that he noticed some wetness on the trousers of the deceased which turned out to be blood. He was however not injured while in the bakkie. While they were walking with him from the bushes, he must have been injured already. He did not see if the deceased had a knife with him.

[49].Sibusiso Shadrack Mdiniso: He is accused no. 5. In 2018, he worked as a queue marshal for TTA and was stationed at Amersfoot taxi rank. He too, was a passenger in a Chevrolet bakkie on 01 February 2018 when they chased a group of men that was there earlier. Their purpose was to capture just one of them and bring him back to the taxi rank in order for him to tell them what was happening. He alighted from a bakkie at the garage when it stopped at the stop sign where he picked up the stones and loaded them into a bakkie to prepare for the battle with the invading group.

[50].The bakkie stopped and they got out and chased after two the men, but they could not catch them. On their way back they found the deceased who was in the bushes. They carried the deceased and brought him back to the bakkie. At the time they caught him he was running but slowly. As they carried the deceased to the bakkie, the witness held him by the legs. At that stage, he did not see that he was injured. He also got into the bakkie and it drove back to the taxi rank where they arrived together with the police.

[51].Once they arrived at the taxi rank, he did not stay long before he left. He denied that the deceased was bumped by a motor vehicle or that it was driven over his legs. It is not true that he was carrying a stick. He also did not trample on the deceased. It was only after the police said the deceased was injured that he saw that he was indeed injured. He did not have common purpose to kill the deceased.

[52].With this evidence, case for all the accused was closed.

[53].Closing arguments: Heads of arguments were presented to the court by counsel for the State and for the defence to which I shall refer as I proceed with the judgment – see Exhibit Y1 & Y2 & Z respectively. It suffices for now to note that the State believes it proved its case beyond a reasonable doubt, while the defence has a contrary view

[54].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. In order to answer if a case for the State was proved beyond a reasonable doubt the court must be satisfied upon a consideration of all the evidence – see S v Van der Meyden[1]. It follows that it is wrong simply to ask oneself whether the State witnesses are to be believed and then to find accordingly without visiting the evidence presented by the defence. Evidence ought not to be looked at in piecemeal or in isolation. All the evidence should be analysed and weighed together in determining whether the State has proved its case beyond a reasonable doubt. It is only in applying this approach that the court can answer if the accused’s version is reasonably possibly true – see S v Radebe[2].

[55].Facts Not Disputed:

a. There was a dispute over the Gauteng route between TTA and ATA. Both were using this route although TTA believed it had the exclusive right to use it and that ATA had to cease its operations on this route.

b. On 01 February 2018, the deceased and other passengers arrived at the precinct of the taxi rank in a taxi operated by a member of ATA.

c. The deceased was seen by members of TTA as being part of those who supported ATA in that when members of TTA confronted the group he was part of, he also took part in throwing stones at them.

d. All five accused persons took part in chasing the deceased and his group in a motor vehicle, a Chevrolet bakkie.

e. The deceased was captured and brought back to the taxi rank in this bakkie against his will.

f. By the time he arrived at the taxi rank, the deceased had a stab wound to his right thigh, from which he bled to death.

g. Substantial amount of blood that came from the deceased’s stab wound was found on the closing lid of the loading bay of the bakkie

[56].Facts in Dispute:

a. Who stabbed the deceased?

b. Did the five accused see the actual stabbing of the deceased?

c. Where was the deceased stabbed – at the place he was captured, in the bakkie or at the taxi rank?

d. Was the death of the deceased a resultant mistake?

e. Can the killing of the deceased be attributed to all the accused irrespective of whether they personally stabbed him?

[57].Mistake. It has been suggested that the death of the deceased may have been a mistake because the stab wound was inflicted at a body part that normally one would not aim for if he had the intention to kill. This approach appears to have been adopted by the defence as an obvious and uncontested view when in its heads of argument under para 6.4 it alluded to the following, “it seems that the killing was negligently rather than intentionally”. Mistake excludes the intention[3] and when it is established in facts, an accused person cannot be convicted on a charge of murder.

[58].In casu, the court has no facts upon which it can be said that the death of the deceased was accidental as mistake was not pleaded. As it is, none of the accused owned up to the stabbing of the deceased and placed the facts upon which the court can find that there was a mistake. It cannot just be concluded that because the deceased was stabbed on the leg that whoever did it may not have known that there was an artery vein in the leg which when cut, the person could bleed to death without interrogating what one knows about the human anatomy.

[59].One of the questions the person who inflicted the injury would have had to answer if anyone had owned up to it is why after inflicting the injury, he took no steps to get medical help to the deceased instead of him being taken to a taxi rank where there was no doctor. For these reasons, the suggestion that the killing of the deceased may have been out of negligence has to be excluded from the outset.

[60].Credibility. The case for the State hinges on the application of the doctrine of common purpose. In terms of this doctrine, the court is called upon to evaluate the individual participation in the commission of the crime. The participation of the accused in the assault of the deceased is disputed. In fact, the accused even dispute that he was assaulted, save for the injury that caused his death. There are witnesses for the State who gave evidence implicating all the accused in the assault of the deceased. The accused say nothing of that sort ever happened. The dispute is not about the presence of the accused at the scene or their participation in giving chase to the deceased, for they all took part either in physical chase or in driving a motor vehicle to achieve this. The dispute is on whether the deceased was assaulted and their individual role thereof.

[61].The technique generally employed by courts in factual disputes involving two irreconcilable versions is well established. “On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So, too, on a number of peripheral

areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities.”[4]

[62].The credibility of witnesses needs to be weighed against the undisputed facts of the case. The version by the State witnesses as a whole fits into the undisputed facts of the case. In other words, without the version by these witnesses, we would not have any explanation on what killed the deceased or who inflicted the fatal injury on him. The court is satisfied with the credibility of all the State witnesses. They corroborate each other in material respect and where they cannot corroborate each other because they witnessed incidents in different scenes, their evidence connects and fits well into each other’s.

[63].While the version of Ngobese needs to be approached with the court being mindful of the fact that he belonged to the rival taxi association with which the association to which the accused belonged, there were confrontations. His version is corroborated by that presented by Lesetsa Fortune Mvelase (Mvelase) who together with the deceased, they were coming from the school. It is clear that these witnesses could not have colluded to have their evidence match each other. Had they done so, one would expect them to have corroborated each other on all the aspects, in particular, on whether they Mvelase and the deceased were going to visit Volksrust Prison that day and who the driver was when he boarded the taxi.

[64].The two witnesses contradict each other in that Ngobese testified that he was asked by the deceased and his companions to take then to Volksrust Prison and Mvelase knows nothing about it. Again, according to Ngobese, he was the driver of this taxi whereas Mvelase put Ngobese as one of the passengers as opposed to driving it. These contradictions are on immaterial issues of the case and there are indicative of lack of collusion. As Nestadt JA observed in S v Mkohle[5],

“Contradictions per se do not lead to the rejection of a witness' evidence. As Nicholas J, as he then was, observed in S v Oosthuizen[6] they may simply be indicative of an error. And (at 576G-H) it is stated that not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness' evidence. Williamson J obviously did this. In my view, no fault can be found with his conclusion that what inconsistencies and differences there were, were 'of a relatively minor nature and the sort of thing to be expected from honest but imperfect recollection, observation and reconstruction'. One could add that, if anything, the contradictions point away from the conspiracy relied on. And, of further significance, Clifford and Gloria corroborate each other in material respects.”

[65].Ngobese and Mvelase corroborate each other in how the deceased was hit with a bakkie and how it was reversed to drive over his legs. They also corroborate each other in how the deceased was assaulted at the scene where he was apprehended. This pattern of assault was continued at the taxi rank where Mvelase was not there. The version by Ngobese on how the deceased was assaulted is further corroborated by the two police officers, Const Mthethwa and Sgt Scheepers. The fact that accused no. 1 was armed with a panga and that he used it to hit the deceased on its flat is the evidence presented not only by Ngobese by also by Cost. Mthethwa

and Sgt Scheepers although theirs was the version of event limited to what they observed at the taxi rank.

[66].The two police officers also testified on how the deceased was assaulted through kicking as he lied on the ground. In fact Const. Mthethwa implicated all but one (accused no. 3) in the assault. Against this background, there is evidence by a doctor who conducted post mortem who did not observe any injury except the stab wounds that caused the deceased’s death. The doctor did not give evidence to the effect that the deceased was not assaulted. To the contrary, his evidence was that he did not observe injuries that may have been caused by the assault, being knocked down by a motor vehicle or being driven over. Equally, none of the witnesses who testified on the assault on the deceased testified of the injuries inflicted, other than the stab wounds.

[67].In my view, evidence presented by the doctor does not contradict that presented by these witnesses. If one cannot taste sugar in a cup of tea, it does not necessarily mean no sugar was put in the tea. Tasting sugar will surely depend on the amount of sugar put in the cup, the size of the cup, the temperature of the water or tea in the cup and whether the same was stirred or not.

[68].Equally, one cannot just expect the injuries to show without looking into how hard were the blows when the deceased was kicked or beaten, whether he was naked or wearing the clothes and how many times he was assaulted as such. As noted by the doctor, the ability to show bruises and swelling will be diminished when one has lost a substantial amount of blood as the deceased had done. As it is often said, not everyone slapped with an open hand will reflect the numbering of fingers on their cheeks.

[69].I reach the same conclusion when it comes to evidence of the deceased being hit with a motor vehicle and being driven over his legs. We are not dealing with the post mortem conducted on a person who died of a motor vehicle accident. He was hit and even attempted to run away after being hit but could not manage to run out of what appeared to have been the twisting of the leg. The speed of the motor vehicle, its size or weight and position of the deceased will obviously be determinative on whether there would be visible injuries to human tissue.

[70].According to Ngobese, when the accused arrived at the taxi rank carrying the deceased, it was accused no. 1 who shouted that they brought back the wild animal, referring to the deceased. Sgt Scheepers also heard similar utterances when it was shouted that the dog must be killed. Surely Ngobese could not have colluded with the police on what was being shouted, on who carried the panga, how the deceased was hit with it and the manner in which the deceased was assaulted once at the taxi rank.

[71].Criticism of the witnesses for a reason that they did not mention it in their statement that the motor vehicle drove over the deceased on reverse is in my view unfair. This is because both witnesses statements do mention that the deceased was hit with a motor vehicle although they do not go on to elaborate the part where the same motor vehicle was driven on reverse over his legs. Statements given to the police are meant to tell what happened and paint a picture to both the police and the prosecution so they

can decide on whether to prosecute or not. They are not meant to be a trial before the trial in court. They are also not collected through cross examination.[7]

[72].As Patel J observed in S v Lesala,[8]

“I might in passing state that often laconic statements are taken by policemen who do a précis of what the witness intends telling them, and on many occasions details are left out through no fault of the person making the statement.

Similarly, counsel acting for accused in trials are selective of the aspects which they wish to contain in any statement made in terms of section 112 of the Act and therefore details, of necessity, are left out. I might also add that many languages are spoken in South Africa and it can happen that those who do not speak the language of the witness sometimes, through a process of interpretation, make selections of what they deem is necessary and thereby introduce an unintended gloss to the statement. Accordingly opportunities for misunderstanding and confusion loom large.”

[73].To conclude on credibility, I cannot reach the same finding in respect of the accused. These men gave chase to the deceased with the intention to capture him and they did exactly that. While under their custody and in the process of capturing him, one of them stabbed him with a knife. There is no doubt in my mind that this did not escape the attention of all the accused, perhaps with the exception of accused no. 3 who had remained in the motor vehicle. There is also no doubt that the moment he reached the motor vehicle, accused no. 3 also saw that the deceased was injured.

[74].The question in the mind of the court is if the accused did not share the common intention with the person who inflicted the injury on the deceased, why do they choose not to tell who did it? In simple terms, exposing that person is the very first step towards showing a disassociation with his deeds if he did what they had not agreed to do. It is highly improbable if not impossible for all the four accused to chase, capture and grab a person with their hands and not see the stabbing which was not even done secretly, for as long as their eyes were not closed. Their attention was on that very person and nothing else.

[75].The only conclusion I reach is that the accused are shielding the person who did this because they associate themselves with his deeds. That association is about him stabbing the deceased on their behalf as they shared the common purpose with him. It is that association that culminate in the common purpose shared by all of them.

[76].The other reason the court is not impressed with the accused’s credibility is that they contradict each other on material respect. Their version is not easy to visualise due to improbabilities that are near impossible. Like I highlighted above, their version does not explain how, where and by who was the deceased stabbed while in their care.

[77].If one asks if the deceased was armed, the answer will depend on which accused gives the answer. Others will say yes he was, while others did not see him being armed. What happened to that knife if he had one? Either it fell there where he was captured or he was not disarmed at all, being allowed to keep holding it even after he had boarded the bakkie. It gets even worse when one tries to find out how the deceased got into the said bakkie. Depending on who answers, the answer could be that the deceased got

into the bakkie himself or that he was loaded by the accused.

[78].Even though the accused realised as the trial proceeded, that their versions were not any similar, especially under cross examination they were steadfast in protecting each other. Not once was any of them willing to distance himself from the evidence of the co-accused irrespective of this, let alone criticizing them or labelling them liars. It is no wonder that they had one legal representative who even after consultation could find no conflict of interest. The only explanation is that their common interest was shared before the stabbing of the deceased, after he was stabbed when they jointly took him to the taxi rank and now during the trial.

[79].The fact that the accused want the court to believe that they wanted to take the dying man to the taxi rank merely to ask him why he was there as he did not own a taxi makes everything sounds like a joke. Suppose that is what they wanted to do and not kill him, one would have expected them to have reacted to their realisation that he was stabbed with shock and taken him to the hospital; or at least to call for the ambulance. They did not. They saw the man’s blood spaying from his injury, and they still took him to the taxi rank to “die like a wild animal.” Perhaps the words about a wild animal or a dog that was brought back

should signify their intention.

[80].Lastly, the accused’s credibility is dealt a blow because if it stands, it would suggest that there was collusion by witnesses from unlikely angles, being Ngobese the taxi operator, Mvelase the school learner, and the two police officers, which in circumstances of this case is highly unlikely.

[81].Identity: The identity of the accused is necessary to a very limited extent as they all place themselves at the scene of crime. It however remains critical on one aspect being the role played by each one of them especially since they distance themselves from doing anything beyond capturing the deceased and bringing him back to the taxi rank. If the court will be relying on the version of the State witnesses, it must be satisfied that there is no mistake even if it could be an honest mistake. It was held in S v Mthethwa[9] that,

“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused.”

[82].Two of the State witnesses attended the identification parade being Mvelase and Const Mthethwa. Mvelase managed to point out only accused no. 1 while Const. Mthethwa pointed out accused no. 1, 3 and 5. Ngobese did not attend the identification parade. In my view, there was no need for him to do so because the five accused are according to his undisputed version, his colleagues whom he knew very well. Exhibit A which is a statement he made to the police confirms this. Unlike Sgt Scheepers who did not know the suspects and only made an undertaking that he could point them out, Ngobese mentioned all the suspects by their names, including those who were not arrested, whose names were also mentioned by some of the accused.

[83].The identification of accused persons in the dock which is not preceded by prior knowledge or prior identification at a properly convened identification parade can be dangerous and should not on its own be relied on. In S v Tandwa[10], the SCA said the following regarding dock identification,

“[D]ock identification, as our previous allusions to it in this judgment indicate, may be relevant evidence, but generally, unless it is shown to be sourced in an independent preceding identification, it carries little weight: taken on its own it is suspect. The reason is apparent: "[T]here is clearly a danger that a person might make an identification in court because simply by seeing the offender in the dock, he had become convinced that he was the offender." In ordinary circumstances, a witness should be interrogated to ensure that the identification is not in error. Questions include: "what features, marks or indications

they identify the person whom they claim to recognise. Questions relating to his height, build, complexion, what clothing he was

wearing and so on should be put. A bald statement that the accused is the person who committed the crime is not enough. Such a statement unexplored, untested and uninvestigated, leaves the door wide open for the possibility of mistake." Where the state relies solely on a dock identification, however, these questions carry little weight. This is because the witness can look at the accused in the court – as happened in the present case, to the indignant objection of the accused and their counsel. Under these circumstances, dock identification is similar to a leading question. As a result, in certain circumstances it could carry no weight at all.”

[84].I am therefore satisfied with the identification of all the five accused by Ngobese who happened to be their fellow taxi driver. I am also satisfied with the identification of accused 1, 3 and 5 by Const Mthethwa and that of accused no. 1 by Mvelase as it flows from the identification parade. The dock identification of the rest of the accused will still be credible as all of them were properly identified as highlighted above. There is therefore no accused before the court who is linked only through the dock identification.

[85].Findings: The court is therefore satisfied that accused no. 1 stabbed the deceased on his thigh with a panga at the place where he lied after being hit by a motor vehicle. The court also finds that the deceased was hit by a motor vehicle driven by accused no. 2. The court further finds that accused no. 3 drove the motor vehicle over the deceased’s leg(s) in reverse gear. Finally, the court finds that the remaining accused took part in the assault of the deceased through hitting and kicking him.

[86].Court also finds that the deceased did not sustain serious or visible injuries as a result of being hit or driven over him with a motor vehicle and the assault, other than the stab wound injury from which he bled to death. While the accused may have had the intention to kidnap the deceased or as they mildly put it, to take him back to the taxi rank against his will; the intention could not have been to question him on what he wanted there. The intention was clearly, “the dog / wild animal must be killed” as they proclaimed before executing their wish.

[87].The accused surely foresaw or should have foreseen that as one of them was armed with a panga in his hand, the deceased may resist their attempts to kidnap him and fight back and that the panga held by one of them – accused no. 1, could therefore be used as it turned out that way. Not only was that foreseen, but after it happened, the rest of the accused chose to associate themselves by assaulting him further, denying him medical help and by shielding each other from the legal consequences by not disclosing the full extent of their own role against that of accused no. 1.

[88].Common Purpose: For their role in which each of the accused took part in the assault of the deceased, the question of common purpose is only relevant in as far as the injuries inflicted by accused no. 2 to accused no. 5 did not cause the death of the deceased. Having accepted the version by the State witnesses, the court has to make a determination on whether the acts by one individual accused (accused no. 1) can be imputed to the rest of the accused in line with the doctrine of common purpose.

[89].The salient features of the rule may perhaps be summarised as follows: First, a distinction needs to be drawn between liability based on a prior agreement, and liability based on active association. On either basis, the conduct imputed to the accused is the conduct of the participants in the execution of their joint venture. Second, in the absence of a prior agreement, only the active association of the accused in the particular events which contributed to, or caused, the crime, triggers the principle of imputation in the manner described above. In this sense, liability arising from active association is much more restrictive. Such association will depend on the factual context of each case, and must be decided with regard to the individual actions of each accused. In the assessment of the individual actions of each accused, the first four requirements for active association, as set out in S v Mgedezi and Others,[11] must be satisfied. Third, the other definitional elements of the crime, such as unlawfulness and culpa, must be present.

[90].The restrictive meaning of 'active association' is evidenced by the four requirements for liability under common purpose as formulated in Mgedezi (supra) at 705I – 706C, as follows: 'In the absence of proof of a prior agreement, the accused, who was not shown to have contributed causally to the killing or wounding of the victims, can be held liable for those events, on the basis of the decision in S v Safatsa and Others,[12] only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the crime being committed…. Thirdly, he must have intended to make common cause with those who were actually perpetrating the crime. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the crime by himself performing some act of association with the conduct of the others. Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.' The fifth requirement — of mens rea — was found to be a definitional element of any crime, which must in any event be proved, and is not a requirement of 'active association'.

[91].I am therefore satisfied that the acts of accused no. 1 can be imputed to the rest of the group that went chasing the deceased, including his co-accused and visa versa. The five acted in furtherance of common purpose of the rest of the group and the group likewise. That common purpose was to teach the remaining members of the invading group and to a large extent, other members of the ATA who up until then, still resisted the upper arm of TTA which won the exclusive operation right over the Gauteng route. It could be the result of that lesson that when Ngobese was called to the give evidence, his first response when asked to tell what happened was that he forgot. This was not a very surprising response from a man whom the police could not even find when they

wanted him to attend the identification parade after he decided to change his cell phone numbers.

[92].I am satisfied that the case for the State was proved beyond a reasonable doubt. The accused’s version is rejected for being improbable and not fitting into the undisputed facts of the case.

[93].Verdict:

Accused no. 1-5 are found Guilty as charged.

Section 51 (1) of Act 105 of 1997 is applicable.

T.V. RATSHIBVUMO

ACTING JUDGE OF THE HIGH COURT

Dates Heard:

10-12, 17-19 May 2021

Judgment Delivered: 24 May 2021

For the State:

Adv. Poodhun

Instructed by:

Director of Public Prosecutions

Mpumalanga

Defence:

Mr. Mr. Cilliers

Instructed by:

Willem Cilliers Attorneys

Ermelo

[1] 1999 (1) SACR 447 (W).

[2] 1991 (2) SACR 166 (T).

[3] [3] CR Snyman, Criminal Law 6th Edition p. 187.

[4] Stellenbosch Farmers' Winery Group Ltd v Martell et Cie & Others 2003 (1) SA 11 (SCA) at para 5.

[5] 1990 (1) SACR 95 (A) at p.98 F-H.

[6] 1982 (3) SA 571 (T) at 576B-C.

[7] See S v Govender and Others 2006 (1) SACR p 322 at 325H-326C.

[8] [2000] JOL 7053 (N) at p 7.

[9] 1972 (3) SA 766 (A)

[10] 2008 (1) SACR 613 (SCA) per Cameron, Mlambo JJA and Hancke AJA

[11] 1989 (1) SA 687 (A) at 705I – 706B.

[12] 1988 (1) SA 868 (A).