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IN THE HIGH COURT OF SOUTH AFRICA

BHISHO

CASE NO. CC76/2006

In the matter between:

THE STATE

and

AMOS MZWANDILE SCOTT 1^ST ACCUSED

BONGANI NYATHELA 2^ND ACCUSED

JUDGMENT

DHLODHLO ADJP:

[1] The two accused are facing the following charges:

1.1 COUNT 1:

Attempted Murder – in that on or about the 13^th day of January 2006 at or near unit 12 in Mdantsane they unlawfully and intentionally attempted to kill Siyabonga Tshona, a male adult person, by firing at him with a firearm.

1.2 COUNT 2

Attempted murder – in that on or about the same date and at about the same place as in count one, they did unlawfully and intentionally attempt to kill Lelethu Senti, a male adult person by firing shots at him with a firearm.

1.3 COUNT 3:

Robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act 51 of 1977, in that on or about the same date and at or near the same place as in counts one and two, they unlawfully and intentionally assaulted Siyabonga Tshona, referred to in count one, by firing shots at him with a firearm and took by force and violence out of his possession a black sportsbag which contained compact discs and tape cassettes which were his property or in his lawful possession, aggravating circumstances being present, in that they wielded a firearm in the commission of the said robbery.

This charge is accompanied by a warning to the effect that if they are convicted, the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 which relates to a minimum sentence of 15 years’ imprisonment, will be applicable, as aggravating circumstances were present in the commission of the said robbery.

1.4 COUNT 4:

Murder – in that on or about the same date and at the same place as referred to in counts one, two and three, they unlawfully and intentionally killed Phathisizwe Mvubu, a male adult person, by shooting him with a firearm.

The charge is accompanied by a warning to the effect that if they are convicted the provisions of section 51(1) of the Criminal Law Amendment Act 105 of 1977, relating to minimum sentences, will be applicable, as the death of the victim was caused by the accused while committing or attempting to commit or after having committed or attempted to commit robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, and the offence was committed by a person, group of persons or a syndicate acting in the execution or furtherance of a common purpose or conspiracy.

1.5 COUNT 5:

Robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act, in that on or about the same date and at or near the same place as in counts one, two, three and four, they unlawfully and intentionally assaulted Phathisizwe Mvubu by firing shots at him with a firearm and took by force and violence out of his possession a wallet containing approximately four hundred rand (R400,00) in cash and a Nokia 6610 cell phone, his property or in his lawful possession, aggravating circumstances being present, in that they wielded a firearm in the commission of the said robbery.

The charge is accompanied by a warning to the effect that if they are convicted, the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1977, relating to a minimum sentence of fifteen (15) years’ imprisonment will be applicable, as aggravating circumstances were present in the commission of the said robbery.

1.6 COUNT 6:

Robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act, in that on or about the same date and at or near the same place as in the first five counts they unlawfully and intentionally assaulted Mphuthumi Gxaweni by threatening him with a firearm and knives and take by force and violence from his possession a wallet containing approximately sixty rand (R60,00) in cash, his property or in his lawful possession, aggravating circumstances being present, in that the accused wielded a firearm and knives in the commission of the said robbery.

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997 relating to a minimum sentence of 15 years’ imprisonment, will be applicable, as aggravating circumstances were present in the commission of the robbery.

1.7 COUNT 7:

Robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act, in that on or about the same date and at or near the same place as in the first six counts, they unlawfully and intentionally assaulted Xolelwa Teyise by threatening her with a firearm and knives and took by force and violence out of her possession a Motorola C650 cell phone and a pair of shoes which are her property or in her lawful possession, aggravating circumstances being present in that the accused wielded a firearm and knives in the commission of the said robbery.

The charge is accompanied by a warning to the effect that, if they are convicted, the provisions of section 51(2) of the Criminal Law Amendment Act 105 of 1997, relating to a minimum sentence of imprisonment for 15 years will be applicable, as aggravating circumstances were present in the commission of the robbery.

1.8 COUNT 8: (against accused No. 1 Amos Mzwandile Scott, only)

Contravening section 3 read with sections 1, 103, 117, 120(1)(a) and 121, read with schedule 4 of the Firearms Control Act 60 of 2000, further read with section 250 of the Criminal Procedure Act – unlawful possession of a firearm, in that on or about the 17^th day of January 2006 at or near house number 2743 at unit 12 in Mdantsane he was in unlawful and intentional possession of a firearm, namely a Norinco 9mm pistol serial number 47033916 without holding a licence to possess such arm.

1.9 COUNT 9: (against accused No. 1 Amos Mzwandile Scott only)

Contravening section 4(1)(e) read with sections 1, 103, 117, 120(1) and 121 read with schedule 4 of the Firearms Control act No. 60 of 2000, further read with section 250 of the Criminal Procedure Act – unlawful possession of ammunition, in that on or about the date referred to in count eight of this charge, he was in unlawful and intentional possession of three rounds of ammunition without being the holder of a licence in respect of a firearm capable of discharging that ammunition.

1.10 COUNT 10 (against accused No. 2 Bongani Nyathela only)

Contravening section 3 read with sections 1, 103, 117, 120(1)(a) and 121 read with schedule 4 of the Firearms Control Act 60 of 2000, further read with section 250 of the Criminal Procedure Act – unlawful possession of a firearm, in that on or about the 9^th day of April 2006 at or near house number 2099 at unit nine in Mdantsane, he unlawfully and intentionally was in possession of a firearm, namely a Norinco 9mm pistol – serial number 46011509 without a licence to possess the firearm.

1.11 COUNT 11: (against accused No. 2 Bongani Nyathela only)

Contravening section 3 read with sections 1, 103, 117, 120(1)(a) and 121 read with schedule 4 of the Firearms Control Act 60 of 2000, further read with section 250 of the Criminal Procedure Act – unlawful possession of ammunition, in that on or about the 9^th day of April 2006 at or near house number 2099 at unit nine in Mdantsane he was unlawfully and intentionally in possession of ammunition, namely seven rounds of 9mm ammunition without being a holder of a licence in respect of a firearm capable of discharging that ammunition.

1.12 COUNT 12: (against accused No. 2 Bongani Nyathela only)

Robbery with aggravating circumstances as defined in section 1(1)(b) of the Criminal Procedure Act, in that on or about the 16^th day of January 2006 at or near unit twelve in Mdantsane he unlawfully and intentionally assaulted Mtusile Rosi, by kicking him and threatening him with a firearm and took by force and violence from his possession a Norinco 9mm semi-automatic pistol with serial number 47033916, his property or in his lawful possession, aggravating circumstances being present in that he wielded a firearm in the commission of the said robbery.

The charge is accompanied by a warning to the effect that the provisions of section 51(2) of the Criminal Law Amendment Act, relating to a minimum sentence of imprisonment for 15 years will be applicable, as aggravating circumstances were present in the commission of the robbery.

[2] Both accused pleaded not guilty to all charges adding that they had no knowledge of the commission of the offences.

[3] The deceased on count four is Phathisizwe Mvubu. According to Dr T G Myendeki who conducted the post-mortem examination, the cause of his death was gunshot wounds to the chest and abdomen peritonitis.

[4] Mphuthumi Gxaweni told the Court that on 13 January 2006 at about between 22h30 and 23h00 he, his girlfriend Xolelwa Teyise and the deceased were from a shebeen proceeding home. They had not consumed much liquor at the shebeen. They were walking on a gravel road at the 31^st section of unit 12 in Mdantsane.

[5] The deceased was walking ahead of him. He heard the deceased saying: “shoot! Shoot!” Gxaweni then heard three shots fired and saw the deceased fall down.

[6] Two men who were wielding knives put him (Gxaweni) down and ordered him to produce everything from his pockets. He took out his wallet which contained R60,00. A third person who was holding a firearm pointed it at him and ordered him to lie down. Gxaweni said that he threw his wallet towards a nearby house which was lit, in order to identify the third person who was carrying a firearm.

[7] Gxaweni said that he knew two of the three assailants. He said that one of them ran to collect the wallet. He knew by sight the one who carried a firearm. He said that he knew also another one who was at that time employed at Total Sport. That one is Bongani also known as Ribo. Gxaweni said that he used to see Bongani / Ribo at Total Sport and also at unit 12. He said that his wrist watch worth R40,00 was taken from him by the assailants.

[8] Gxaweni said that after the deceased had been shot, his cellular phone which is a Nokia 6610i was taken by the assailants. He thought that the deceased had in his possession an amount of R200,00. He said that from his girlfriend Xolelwa Teyise the assailants took a Motorola 50 cellular phone and a pair of shoes she had been wearing.

[9] Gxaweni said that he could see clearly what the assailants were wearing. The one who was carrying a gun wore takkies, a pair of jeans and a jersey. He said that he later chased the assailants who ran into bushes.

[10] On 23 February 2006 Gxaweni attended an identification parade where he identified the first accused. On 23 May 2006 at another identification parade he identified the second accused. When he saw the two accused at the identification parades he had last seen them on 13 January 2006 when he and others were attacked. He said that on the night in question the first accused was carrying a 9mm firearm.

[11] According to the identification parade form in respect of the parade on 23 February 2006 (exhibit ‘F’) Xolelwa Teyise pointed out the first accused among seven others on parade. Mphuthumi Gxaweni also pointed out the first accused.

[12] Under cross-examination, Gxaweni said that the deceased was shot because he did not want to release his items to the assailants. He said that the police asked him about the assailant who was carrying a firearm. At the parade he and the second accused greeted each other. Gxaweni agreed that when he entered the parade room he went straight to the first accused. Responding to the question by Counsel for the second accused, namely: “Accused No. 2 says that you boarded the same train to work”, Gxaweni responded in t he affirmative.

[13] Under re-examination, Gxaweni said that at no stage did he tell the police who their assailants were. He could not identify the assailant who attacked his girlfriend Xolelwa Teyise. He (Gxaweni) said that the second accused carried an object which he could not identify. He said that he did not recover the items which were taken by the assailants.

[14] Xolelwa Teyise corroborated Gxaweni in material respects with regard to the events of the night of the 13^th January 2006. She said that the assailants took her pair of shoes worth R300,00 and the cellular phone worth R500,00. Teyise said that she had earlier handled Gxaweni’s wallet before he went to the shebeen and that it contained R350,00.

[15] Teyise said that the incident occurred at about 22h30 and that there was lighting on the road. The person who was carrying a firearm was wearing a red hat and a diced jersey and she saw his face. On 23 February 2006 she attended an identification parade where he identified the man who robbed them on the night in question. She said that, that person shot the deceased and that he is the first accused who was the only one who was carrying a firearm on the night in question. She said that she did not “get a good look” at others who robbed them. She did not see the first accused between the night in question and the time of the identification parade.

[16] Under cross-examination, Teyise said that the deceased was moderately drunk on the night in question. She said that she had adequate time – about five minutes – to look at the first accused who was about 2 -3 paces from her. To the police she said that she could identify one of their assailants. She said that she did not describe that assailant.

[17] Teyise said that when her boyfriend Mphuthumi Gxaweni went to work on the following morning he told her that: “I know those boys” and that he mentioned one name, namely Bongani. She said that at the identification parade she immediately identified the first accused. She said that where the incident occurred there was sufficient lighting.

[18] Inspector Bonisile Pike of the South African Police Services who conducted the two identification parades confirmed that Gxaweni identified both accused and that Xolelwa Teyise identified the first accused. Inspector Pike said that he explained the rights of both accused to legal representation and that if they did not want to be on the parade they could refuse to take part. He said that, because he was busy, he did not record everything on the form.

[19] A trial – within – a trial was conducted. Johannes Matthys Koedyk is a captain in the South African Police Services. He told the Court that he recognised the first accused who made a pointing out on 19 January 2006. Captain Koedyk was not involved in the investigation of the case and had no personal knowledge of the case. He completed a document titled “Notes of pointing out of a scene(s) and / or points,” Captain Mthimkhulu Gordon Ntabeni interpreted from isiXhosa into English and vice versa during the pointing out. Captain Koedyk said that the first accused’s rights were duly explained to him and that he made the pointing out and statements freely and voluntarily while he was in his sound and sober senses and without undue influence.

[20] The first accused said that Captain Koedyk did not apprise him of his constitutional rights. He denied that he pointed out certain scenes and that he made some statements to Captain Koedyk.

[21] The Court ruled that on 19 January 2006 the first accused Amos Mzwandile Scott pointed out all spots referred to in the report of Captain Johannes Matthys Koedyk to the said Captain Koedyk in the presence of Captain Mthimkhulu Gordon Ntabeni who interpreted all what Scott said to Captain Koedyk and vice versa and that he made all statements which are contained in the report by the said Captain Koedyk freely and voluntarily while he was in his sound and sober senses and without undue influence, after he had been apprised of his constitutional rights. The said pointing out and the said statements were made by the said Amos Scott. He signed and initialled the report as indicated in it freely and voluntarily while in his sound and sober senses and without undue influence, after he had been apprised of his constitutional rights by the said Captain Koedyk. The Court further ruled that the statements are admissible in evidence.

[22] When the first accused pointed out certain scenes to Captain Koedyk a photographer photographed the scenes. The first accused pointed out several scenes such as where he allegedly shot YHE YHE. “. . . using Bongani’s gun”. This was at unit ten in Mdantsane. Near house 3380 at unit 12 in Mdantsane the first accused said: “This is where I shot a man. He was carrying a black carrier bag. Bonga grabbed the bag and we ran away. The man put his hand in the bag. I thought he was going to take out a gun. This is why I shot him.” Near house number 3160 at unit 12 the first accused said: “Three people were stopped here by me and Bongani. Bongani was still carrying the black bag we had robbed. One of the two men came towards me and I shot him in the stomach. I heard by Inspector Kota that the man died. We took two cell phones from these people. I do not remember how much money we took.” Later he said that, that was all he wanted to show Captain Koedyk. Captain Koedyk said that the first accused gave two names of the person who was in his company when they attacked people they met. The names were Bongani and Bonga.

[23] According to the ballistics report marked exhibit ‘I’ there is sufficient agreement of class characteristics and individual characteristics that three (3) 9mm parabellum calibre cartridges were fired in firearm Norinco NP 17 number 46011509. According to the evidence of Mncedisi Sidwell Tiyeka who is an inspector in the South African Police Services, he found a firearm with this serial number in the possession of the second accused Bongani Nyathela on 09 April 2006, being the day when the said Nyathela was arrested. He said that inside the firearm there were four rounds of ammunition.

[24] Inspector Gladstone Mbulelo Kota of the South African Police Services is the investigating officer in this case. He arrested the first accused behind the house of the second accused at about 22h00 on 17 January 2006. Kota said that the first accused was in possession of a Norinco firearm when he was arrested. Kota did not remember its serial number.

[25] Leletu Senti who is 18 years of age said that he knows both accused. He used to see the first accused at Bafo shebeen at unit 10 in Mdantsane when he (Senti) used to work there.

[26] He said that before January 2006 he knew the second accused when he was living at unit 10 in Mdantsane. She knew his name as Bongani. Senti told the court that on 13 January 2006 at about 21hoo she was in the company of Siyabonga Ntshona walking from unit 10 in Mdantsane proceeding to unit 11B to sell CD’s. They walked towards a rivulet which ran across houses. Three young men appeared. He said that the first accused was one of the young men. He did not recognise the other two because it was dark. He was walking behind Siyabonga.

[27] Senti said that the first accused cocked a gun and ordered them to stop. Siyabonga held his waist and placed his hand in his bag and the first accused fired a shot from the firearm. The bullet struck Siyabonga, went through his body and struck him (Senti). He said that she ran away to a house in unit eleven where he reported that he had been shot. In Siyabonga’s bag there were 22 CD’s and also 14 – 15 cassettes.

[28] Senti was taken to hospital where he was told that a bullet would not be removed from where it was lodged because it would disturb veins. According to Dr G L Mtyobile’s report a bullet was lodged on his medial thigh. Senti said that the bullet was still on his left leg. He said that the first accused was wearing a hood with red and white blocks and that his face was not covered. The hood was up to his ears. The first accused had a white hat on. He recognised the first accused by the hood which he used to wear at Bafo tavern.

[29] According to Senti there were no lights there. He indicated that the first accused was about eight paces away from him. He said that the CD’s and the cassettes belonged to Siyabonga John. He recognised unit 10 in Mdantsane from photo number six of the photo album.

[30] Senti said that when the first accused fired the shot he (Senti) was standing behind Siyabonga Ntshona. His left leg was slightly to the side of Siyabonga.

[31] Siyabonga Ntshona is 24 years old. He told the Court that during the evening of 13 January 2006 he was in the company of Leletu Senti on their way to unit eleven in Mdatsane, taking CD’s to a person who wanted them. He said that there were also cassettes. There were 20 CD’s and 40 cassettes. They walked through unit twelve. As they were about to enter a rivulet they met three young men. After the three young men had walked past them, the young men ordered them to stop. Ntshona said that after he had finished inserting CD’s in a bag which he was holding a shot was fired by one of the young men. As it was dark, he was unable to identify the person who was carrying a firearm.

[32] Ntshona said that the first accused stood over him after the shot had been fired. He said that the young men demanded a phone, money and a firearm. He said that he had an amount of R100,00 on him. They searched him as he was lying down. He said that they took CD’s and cassettes and went away with them. At a police station he identified some cassettes as his. He has not recovered his CD’s.

[33] After he was shot the police took him to hospital where he was admitted for about three months. An operation was performed on him. He said that his CD’s were worth about R700,00 and that, of the 40 cassettes he recovered only 15.

[34] Ntshona said that a bullet entered his stomach and exited through his buttocks.

[35] Vukile Simandla is a sergeant in the South African Police Service. On 14 January 2006 at about 07h30 he found three spent cartridges on a gravel road at unit twelve in Mdantsane at the 31^st section. The cartridges were taken to the police station where they were entered in the SAP 13 register – entry number 865/2006.

[36] Mutusile Rosi’s testimony relates to count 12 wherein it is alleged that he was robbed of his 9mm Norinco pistol serial number 47033916 by the second accused Bongani Nyathela.

[37] Rosi said that he has known the second accused for about five years and that he (the second accused) lives in the area where he lives. They went to the same gym. He said that the second accused’s nickname is Ribo.

[38] Rosi said that on Monday 16 January 2006 at about 21h35 he was from unit 13 in Mdantsane proceeding to unit 12. On his way home he met five men walking towards him. One of the men pointed a firearm at him and ordered him to lie down. The men held him and threw him to the ground, after which they searched him and removed his firearm from a holster. After they had taken the firearm they kicked him while he was lying on the ground. When he got up the men had disappeared.

[39] He was licensed to possess the firearm. Street lights were on. The men were close to him. He identified the second accused as early as when they were approaching him. Rosi said that the second accused held a firearm in his left hand. Another man was also in possession of a firearm. He did not identify the man who pointed a firearm at him. Rosi said that he was not the second accused’s friend but that they would greet each other. He said that he did not say anything to the second accused because he (Rosi) was shocked. He said that he later identified his firearm at the police station by its serial number.

[40] Rosi said that he knew that the second accused worked at Total Sport. They would talk about body supplements because his (the second accused’s) body was in good shape. He told the police that the second accused was one of the men who robbed him of his firearm. On 13 January 2006 his firearm was in a safe at his home. He was sober on the night of 16 January 2006. He did not see what the second accused was doing when he (Rosi) was being thrown to the ground.

[41] Inspector Mbulelo Kota who is the investigator in this case told the Court that two firearms were seized during investigations in this case. They are: a 9mm Norinco pistol serial number 47033916 which was found in the possession of the first accused and number 46011509 which was found by another police officer in the possession of the second accused.

[42] Both firearms and three empty cartridges were sent to ballistics experts. Inspector Kota said that he personally took the cartridges for forensic testing. He later received a report. Inspector Kota said that the second accused was found in possession of firearm – serial number 46011509 by Tiyeka and that he saw it after Tiyeka had seized it. Kota said that the firearm was in a holster and that the holster is in their offices. He denied that the firearm was found in a shack.

[43] The 23 – year – old first accused said that he and the second accused are not friends. He denied all charges. He said that on 13 January 2006 he was at his home. He was reminded by the Court several times to speak up as he would be inaudible.

[44] Simphiwe Masumpa who was accused No.’s witness said that he went to sleep at about 20h00 on 13 January 2006 and that he would not say whether of not the first accused left the shack on that evening. The first accused had earlier said that Masumpa would confirm that he (the first accused) was present there on that night.

[45] The second accused denied all the allegations against him. He said that on 13 January 2006 he was in Cape Town. Before he was arrested he lived at number 2743 unit 12 in Mdantsane. He said that he knew Tiyeka very well but he denied that Tiyeka found a firearm in his possession. He said that a firearm was found in a shack at unit nine in Mdantsane where the police had taken him to after his arrest. He said that some people who lived in Cape Town saw him in Cape Town. He, however, did not call a witness to confirm that he was in Cape Town on13 January 2006.

[46] Mr Walters for the State indicated to the Court before he led evidence of Captain Koedyk that he would apply in accordance with the decision in S v Ndlovu and others 2002(2) SACR 325 (SCA) that the statements of the first Accused which implicate the second accused should be admissible in evidence and implicate the second accused. No objection was raised by Counsel for the second accused. The Court rules that such statements be admissible in evidence against the second accused.

[47] During the pointing out the first accused mentioned the name of Bongani. He sometimes mentioned Bonga. He said that he used Bongani’s firearm when he shot those he shot. According to the ballistics report three 9mm parabellum calibre cartridges were fired in firearm Norinco NP 17 number 46011509 which was found in the possession of the second accused. There is therefore no doubt that by Bongani or Bonga the first accused was referring to the second accused. Moreover, Gxaweni identified both the first and the second accused as persons who attacked them. Gxaweni said that the first accused was carrying a firearm. The firearm of which Mutusile Rosi was robbed by five men namely a Norinco 9mm pistol – serial number 47033916 was found in the first accused’s possession. Rosi identified the second accused as one of the five men who attacked him. The Court accepts that Rosi knew the second accused who was carrying a firearm very well and that he identified him on the night in question.

[48] The two accused were not satisfactory witnesses. Simphiwe Masumpa did not corroborate the first accused concerning his whereabouts during the night of 13 January 2006. The second accused said that he was in Cape Town on the 13^th January 2006 and returned to Mdantsane in April 2006. But Rosi saw him among the five men on 16 January 2006. The first accused said that he was in his (accused number two’s) company on 13 January 2006.

[49] Scenes pointed out by the first accused to Captain Koedyk are those where State witnesses said the attacks took place.

[50] In my view the State has proved beyond reasonable doubt that on the nights in question the two accused and other persons who were not identified were on a robbing spree. At least one of them was armed with a firearm and his companions knew this. The two accused and others acted with a common purpose and must have foreseen the possibility that shots would be fired at victims who offered resistance. They also must have foreseen that those who would be shot could die as a result. Concerning count two, the first accused must have foreseen the possibility that the bullet he fired at Siyabonga Tshona would strike Lelethu Senti who was behind Tshona.

[51] Both accused are found guilty as charged on counts:

one (attempted murder)

two (attempted murder)

three (robbery with aggravating circumstances)

four (murder)

five (robbery with aggravating circumstances)

six (robbery with aggravating circumstances)

seven (robbery with aggravating circumstances)

Accused No.1 – Amos Mzwandile Scott is found guilty as charged on count eight (8) – (unlawful possession of a firearm).

He is also found guilty as charged on count nine (9) – (unlawful possession of ammunition).

Accused No. 2 – Bongani Nyathela is fund guilty as charged on count ten (10) – (unlawful possession of a firearm)

He is found guilty on count eleven (11) – (unlawful possession of ammunition) and also on

Count twelve (12) – (robbery with aggravating circumstances)

_____________________________

A E B DHLODHLO

JUDGE OF THE HIGH COURT

ACTING DEPUTY JUDGE PRESIDENT

27 JUNE 2007

HEARD ON: 22, 23, 24, 25, 26, 29, 30, 31 January 2007

12, 19, 22 March 2007

16, 20 April 2007

11, 12, 13 June 2007

FOR THE STATE: Mr G Walters

FOR THE FIRST ACCUSED: Mr H Lalla

FOR THE SECOND ACCUSED: Mr N Mpokela

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