NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
 (WITWATERSRAND LOCAL DIVISION)
JOHANNESBURG

CASE NO: SS116/2000
DATE:2001-08-30

In the matter between:
THE STATE
and
MICHAEL MZWAKHE NDLOVU.................................................................................Accused 1
ROTHMAN ZIKHALI KHUZWAHYO.......................................................................... Accused 2

JUDGMENT

WILLIS J: There were originally three accused in this matter. Accused 1 was originally Sifiso Leonard Memela; accused 2, Michael Mzwakhe Ndlovu and accused 3, Rothman Zikhali Khu2wayo.
Sifiso Leonard Memela died in custody after his arrest. By reason of this fact the indictment was amended so that the person who was originally accused 2, Michael Mzwakhe Ndlovu became accused 1 and Rothman Zikhali Khuzwayo who was originally accused 3 became accused 2. Sifiso Leonard Memela was referred throughout the evidence in these proceedings as the "deceased accused". I shall refer to him accordingly in this judgment.
The two accused standing indicted on five separate counts. The first count is robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977, being present in that upon or about 11 June 1999 in Midrand, in the district of Kempton Park the accused had unlawfully and intentionally assaulted George Fraser and with force and violence take out of his possession a white Toyota Hi-Lux motor vehicle, 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 count is kidnapping. 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 deprive George Fraser of is liberty of movement by forcing him to remain in his motor vehicle.
The third count is murder. It being alleged that upon or about the date mentioned in count 1 and at or near the Mooifontein Cemetery Birch Acres in the district of Kempton Park the accused did unlawfully and intentionally kill George Fraser.
The fourth count is the contravention of section 2, read with sections 1 and 39 of the Arms and Ammunition Act, no 75 of 1969 (unlawful possession of a firearm), it being alleged that upon or about the dates and at or near the places mentioned in counts 1 and 3 the accused were in possession of at least a 9,00 millimetre parabellum calibre Lawson model L9 pistol whilst not being the holders of a valid licence to possess the said arm.

The fifth count is contravention of section 36, read with sections 1 and 39 of Act 75 of 1959 (unlawful possession of ammunition). It being alleged that upon or about the dates and places mentioned in counts 1 and 3 the accused were in possession of at least six rounds of 9,00 millimetre ammunition whilst not being in lawful position of arms capable of firing such ammunition.

The accused both pleaded not guilty to all five counts. In terms of section 115 of the Criminal Procedure Act they exercised their rights to remain silent and to give no explanation of plea. The state was represented by Adv Tsweyo. Accused 1 was represented by Mr Leketi. Accused 2 was represented by Mr Maphanza. After the accused had pleaded not guilty they made certain formal admissions in terms of section 220 of the Criminal Procedure Act. These related mainly to the fact that the deceased, George Fraser, died as a result of gunshot wounds sustained on 11 June 1999.

There is no dispute that the deceased was murdered on 11 June 1999 and that he died as a result of a gunshot wound delivered to the head.
There is also no dispute that the deceased was robbed of his Toyota Hi-Lux motor vehicle. These facts upon which there is no dispute appeared very clearly, in any event, from the evidence that was led during the course of this trial.

The uncontested evidence of the state was that a 9,00 millimetre parabellum cartridge was found at the scene of the crime of his arrest a few weeks later found in possession of a 9,00 millimetre parabellum calibre Lawson model L9 pistol as well as a magazine containing five live rounds of ammunition. The pistol, the magazine, the rounds of ammunition as well as the cartridge found at the scene of the crime were handed in as exhibits before the court.
The uncontested evidence of the ballistic expert called by the state establishes beyond any doubt that the cartridge which was found near the body of the deceased at the scene of the crime was fired from the firearm found in the possession of accused 2. In the overall circumstances of the case the inference is irresistible that the 9,00 millimetre parabellum calibre Lawson model L9 pistol which was found in the possession of accused 2 was used tD shoot and kill the deceased. Indeed if I understood Mr Leketi and Mr Maphanza correctly they accepted that this was the inevitable inference to draw from the evidence.
The state called as a key witness one Wilfos Piloy Phakathi. This witness was warned as an accessory after the fact in terms of section 204 of the Criminal Procedure Act.
It is common cause that this witness to whom I shall hereinafter refer as Phakathi was arrested on 11 June 1999 in KwaZulu, Natal at the time he was driving the Toyota Hi-Lux motor vehicle which had been robbed from the deceased. This witness said that on the afternoon of 11 June 1999 he was approached by the deceased day these three persons, namely the deceased accused and accused 1 and 2 came to his premises with a motor vehicle. Some two hours later the vehicle was filled with petrol and they travelled, that is Phakathi together with the deceased accused and accused 1 and 2 to Phakathi's home village Ibiva in KwaZulu, Natal. When they arrived at his home village he discussed the possible purchase of this vehicle with his brother. His brother approved the purchase of the motor vehicle. At the time he did not have sufficient cash to pay for this vehicle and informed the deceased accused and accused 1 and 2 accordingly. He informed them that it would take some days to raise the R15 000 cash necessary to purchase the vehicle.

The three accused then said that they wished to return to Gauteng and he gave them R200.00 to assist them to return to Gauteng. After some time he telephoned the deceased accused to enquire as to when he would be given the registration papers of the vehicle as he was now in a position to pay. He was then told by the deceased accused that the vehicle had been robbed and that accordingly there would be no papers available to effect the registration. He nevertheless decided to proceed with the purchase. He said the very day upon which he learned from the deceased accused that the vehicle had been robbed he was arrested by the police.

It is common cause that initially this person gave a false name of the person from whom he had acquired the vehicle. The name was not false in the sense that it was entirely invented. The person to whom he referred as Zakhili Ntlabathi did in fact live in Gauteng, but it is common cause that Phakathi did not obtain the vehicle from him. Later when the police in Gauteng assigned with responsibility for investigating this matter took Phakathi into their custody. He co-operated with them and told them what he told the court, namely that the deceased accused and accused 1 and 2 had approached them and asked him whether he wished to purchase the Toyota Hi-Lux. He knew the deceased accused from an association with a soccer club. He knew where the deceased accused lived. He had seen the deceased accused and accused 1 in each other's company from time to time. He had occasionally seen accused 2, but did not know him well and did not know where he lived. He afforded the police assistance in pointing out the place where he believed they would find the deceased accused. Phakathi said that he went with the police and accused 1 was found together with the deceased accused sleeping in a hostel at the time of their arrest.
When the deceased accused and accused 1 were confronted with the allegations against them, accused 1 said that the firearm that had been used could be found in the possession of accused 2. Accused 1 then led the police to the place where accused 2 was arrested. As I have already indicated it is common cause that at the time of his arrest accused 2 was found in possession of the firearm which for the reasons I have already stated must have been used to kill the deceased.
Phakathi accompanied the police not only when the arrest of the deceased accused and accused 1 was made, but also when the arrest of accused 2 was made. He said that in his presence the deceased accused and accused 1 and 2 admitted their involvement in the murder and robbery of the deceased.
The evidence relating to the arrest of accused 1 and 2 together with the evidence relating to accused 1 having said that the firearm could be found at accused 2's house accused 1 a pointing out where accused 2 could be found and the admissions which Phakathi heard were corroborated by the investigating officer, Kwena Junias Sebopa, and to some extent by Detective Sergeant Lesipa Simon Motlhana who assisted in affecting the arrest of accused 2.
Both accused gave evidence and denied emphatically any involvement whatsoever in the murder and robbery of the deceased.
Serious criticisms can be levelled at the evidence of both. Important aspects of their versions were not put by their counsel when cross-examining state-witnesses. In particular in so far as accused 1 is concerned, the version that the police, when they arrived at the place where he was sleeping at the time of his arrest, that they were looking for one Skinjana was never put. More significantly he would wish this court to believe that he protested that he was not at Skinjana, showed them his identity document, but nevertheless the police insisted on arresting him, the wrong person.
The obvious flaw with this aspect of the evidence is that clearly if the police were looking for one Skinjana they would have obtained that name and the information relating to him from Phakathi. Nevertheless Phakathi was clear in his evidence that accused 1 was one of those involved in the selling to him of the motor vehicle. Then, of course, there is the reliable evidence of the investigating officer that it was accused 1 who (ed them to the arrest of accused 2 in whose possession the firearm was found. Accused 1 could think of no reason why Phakathi would falsely implicate him.
Accused 1 called his so-called brother Danger Nkosi to corroborate his evidence regarding the circumstances surrounding his arrest. The problem with this evidence is that danger Nkosi's explanation of how he was related to accused 1 differed materially from accused 1 in evidence. Danger Nkosi then adjusted his evidence to fit that of accused 1, but could not explain why he had originally given his evidence in the manner in which he did.
Accused 2 made a very poor impression upon the court. He was frequently evasive when asked questions not only by counsel for the state, but also myself. He wanted-the court to believe the ridiculous version of events that he didn't know that a person in South Africa needs to have a licence to possess a firearm. He contradicted himself as to his explanation for why on his version of the events, that the deceased accused was responsible for his arrest. There were other contradictions in his evidence, but I do not believe that it is necessary to dwell on these.
He called his brother Alphas Khuzwayo. The purpose of this evidence it seems was to corroborate his version that at the time of his arrest he had been viciously assaulted by the police. Not only was this evidence of the assault credibly and convincingly denied by the police witnesses, but Phakathi himself credibly said that when he saw accused 2 immediately after his arrest his physical condition looked fine. Alphas Khuzwayo, the brother of accused 2, said that he had too been most viciously assaulted at the time of his arrest, but he could give no satisfactory explanation for how it was that he never laid any charges with the police. Significantly accused 2's brother, Alphas Khuzwayo's explanation (if such it may be described) differs materially from that put by his counsel to police witnesses when they were cross-examined.
The evidence of the witness Phakathi must be approached with extreme care. He was warned in terms of section 204 of the Criminal Procedure Act and the cautionary rules in this regard are well-known. He was moreover in certain respects a single witness. The cautionary rules with regard to a single witness are also well-known. He clearly had every motive to lie. He was furthermore found in possession of a stolen motor vehicle. He clearly misled the police originally as to the person or persons from whom he obtained possession of the motor vehicle in question. He clearly is not a person of unblemished character. On his own version he was quite happy to buy a vehicle notwithstanding the fact that he knew that it had been robbed from somebody. He also changed his version both in court and from when he made his original statement to the police as to when he had first learn that the vehicle was robbed. The witness said that he did not know that the deceased had been killed simultaneously with the robbery until after his arrest.
Clearly if one was to rely on the evidence of Phakathi alone the accused who was would be entitled to the benefit of the doubt. There would be far too many dangers in relying on the evidence of a witness such as Phakathi. Nevertheless one is left with the following material corroborating factors:
1. His co-operation with the police led to the arrest of accused 1.
2. The reliable evidence of the police is that accused 1, when confronted with the allegation against him told the police that the firearm in question could be found at the home of accused 2.
3. Accused 1 led the police to the home of accused 2.
4. It is common cause that the firearm which must have been used to kill the deceased was found in the possession of accused 2.
The probability that Phakathi could have been lying about the material facts that the deceased accused and accused 1 and 2 approached him on 11 June 1999, asking him whether he was to purchase the robbed motor vehicle and that at the same time this evidence led to the chain of events which explains the arrest of the deceased accused, accused 1 and accused 2 who was found in possession of the firearm in question is so utterly remote that it can be discounted.
I accept accordingly the version of Phakathi that he was indeed approached by the deceased accused and accused 1 and 2 on 11 June 1999 and asked whether he was to purchase the vehicle that had been robbed earlier that day.
In the light of the corroboration by reliable police witnesses and the overall circumstances of this case I find that one can safely accept his evidence that they did, after their arrest, admit to their involvement in the murder and robbery of the deceased.
There was some evidence of a hearsay nature that the deceased accused had been the one who had been carrying the firearm on the day in question. The ordinary rules with regard to the acception of hearsay evidence must apply with regard to that evidence. I, therefore, find that one cannot conclude with certainty who of the three fired the actual shot that killed the deceased. Nevertheless it is clear that there was an act of continuing association in the perpetration of the crime of murder and robbery by the deceased accused and both accused 1 and 2.
Accused 1 and 2 must, therefore, be found guilty of the crime of murder at least as accomplices. It also seems to me that clearly there was a common purpose. There was a common purpose to rob, at the very least the deceased, George Fraser. It clearly was an act of continuing association with this crime of robbery to make both accused guilty of robbery, In my view, any person who is prepared to take part in a crime of robbery making use of a firearm must foresee the possibility that a person can be killed during the course of the robbery, A person who continues in such robbery, therefore, necessarily reconciles himself with the possibility of a person being killed. Such a person, accordingly is guilty of the crime of murder with a form of intent being at least what lawyers call dolus eventualis (indirect intention).
I am, therefore, satisfied that a proper verdict with regard to the murder and robbery count is that both accused are guilty.
It is common cause that both of the accused do not possess a licence in respect of the firearm in question. On the basis of recent authority in the Supreme Court of Appeal both of them would accordingly be guilty of unlawful possession of arms and ammunition on the basis of the doctrine of common purpose.
With regard to the kidnapping count the only evidence in this regard was that which Phakathi told the court the deceased accord had told him. As against accused 1 and 2 this evidence is clearly hearsay and must be disregarded. The court cannot find beyond reasonable doubt that the deceased was indeed kidnapped. There remains, as a reasonable possibility, the fact that he could have been shot and killed at the place where his body was found and that his apprehension and the robbery took place sufficiently closely to the place where his body was found for the charge of kidnapping to fail.
Will the accused please stand while I pronounce verdict:
1. Count 1 - the charge of robbery with aggravating circumstances as defined in section 1 of Act 51 of 1977 you are both found guilty as charged.
2. Count 2 - kidnapping you are both acquitted on this charge.
3. Count 3 - the murder charge you are both found guilty as charged.
4. Count 4 - the charge of contravening section 2 read with sections 1 and 39 of Act 75 of 1969, unlawful possession of a firearm you are both found guilty as charged.
5. Count 5 - contravention of section 36 read with sections 1 and 39 of Act 75 of 1969, unlawful possession of ammunition you are both found guilty as charged.

―oOo―