IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

Date:  2008-04-25
NOT REPORTABLE
Case Number:  A245/07

In the matter between:

GIDEON SIGASA NELANI                                                          First Appellant
BONGANI OWEN TSHABALALA                                         Second Appellant

and

THE STATE                                                                                     Respondent

JUDGMENT

SOUTHWOOD J

[1]	On 5 September 2006 the first appellant, Gideon Sigasa Nelani, and 	the second appellant, Bongani Owen Tshabalala, were convicted of 	murder in the Nigel regional court (the first appellant as an accessory 	after the fact), a contravention of section 3 of Act 60 of 2000 (unlawful 	possession of a firearm) and a contravention of section 90 of Act 60 of 	2000 (unlawful possession of ammunition).  In addition the first 	appellant was convicted of theft (a firearm).  The regional court 	sentenced the first appellant to three years imprisonment for the theft 	of the firearm, 8 years imprisonment for the murder (as accessory after 	the fact), three years imprisonment for the unlawful possession of the 	firearm and one year imprisonment for the unlawful possession of the 	ammunition.  The regional court sentenced the second appellant to 15 	years imprisonment for the murder, three years imprisonment for the 	unlawful possession of the firearm and one year imprisonment for the 	unlawful possession of the ammunition.  The court ordered that all the 	second appellant’s sentences run concurrently:  i.e. the court imposed 	an effective sentence of 15 years imprisonment.

[2]	With the leave of the regional court, the first appellant appeals against 	his conviction of and sentence for murder and the second appellant 	appeals against his convictions of murder and unlawful possession of 	the firearm and ammunition and the sentences imposed therefor.

[3]	After pleading not guilty to all the charges, when he testified, the first 	appellant admitted that he had stolen the firearm, a Browning 9 mm 	pistol with serial number B 19307 from his uncle, and accordingly that 	he had been unlawfully in possession of the firearm and ammunition.  	The first appellant was therefore properly convicted of theft of the 	firearm and the unlawful possession of the firearm and ammunition in 	contravention of sections 3 and 90 of Act 60 of 2000.

[4]	The dispute in the regional court and on appeal is whether the first 	appellant or the second appellant fired the shot which killed the	deceased, Patrick Mphuti.  The first appellant testified that it was the 	second appellant and the second appellant testified that it was the first 	appellant.  Other witnesses supported the two versions.  Eventually the 	regional magistrate concluded that the second appellant fired the fatal 	shot and that the first appellant helped to conceal the firearm and 	hence was guilty as accessory after the fact.  This is a factual finding 	and it is well-settled that in the absence of demonstrable and material 	misdirection a trial court’s findings of fact are presumed to be correct 	and they will only be disregarded on appeal if the recorded evidence 	shows them to be clearly wrong – see S v Hadebe 1997 (2) SACR 641 	(SCA) at 645e-f;  S v Naidoo 2003 (1) SACR 347 (SCA) para 26;  S v 	Scott-Crossley Unreported judgment SCA Case Number 677/06 	delivered 28 September 2007 para 10.

[5]	The first appellant stole the firearm on 31 August 2005 at a time when 	there were nine rounds of ammunition in the magazine.  The murder 	was committed at approximately 23h55 on 3 September 2005 near 	Oupa’s Tavern in Duduza.  The incident occurred when two groups of 	people left the tavern.  The first group included the deceased, Karabu 	Bambiza (the deceased’s girlfriend), Zakhele, Zindi, Zungu and Bafana.  	The second group included the two appellants.  When the appellants 	left the tavern, Zindi was waiting outside.  It is not clear precisely what 	happened but there is no dispute that an argument started between the 	second appellant and possibly the first appellant and the deceased and 	that harsh words were exchanged.  Zakhele and Zindi left the scene 	and did not see what happened.  The argument continued and others 	became involved.  According to at least one witness mention was 	made of shooting.  Eventually the firearm stolen by the first appellant 	was produced.  Depending on which version is accepted one shot or 	three shots were fired.  It is common cause that a shot fired from the 	stolen firearm struck the deceased in the face and neck fatally 	wounding him.  The two appellants left the scene.  The next day 	Karabu Bambiza assisted the police by pointing out the first appellant.  	Before the first appellant was arrested he attempted to run away when 	he saw the police van approaching.  After his arrest the first appellant 	accompanied the police to a house where he pointed out the stolen 	firearm.  It had been placed inside a yellow plastic bag and concealed 	in a toilet bowl.  Karabu Bambiza made a statement to the police in 	which she described what happened and who fired the fatal shot.  At a 	later stage she accompanied the second appellant’s girlfriend to prison 	to visit the second appellant and she, Bambiza, and the second 	appellant had a conversation.  

[6]	On appeal the first appellant contends that the regional court erred in 	finding the first appellant guilty of murder as an accessory after the 	fact.  The first appellant argues that there is no direct evidence to prove 	that the first appellant hid the firearm to protect the murderer and that is 	not the only reasonable inference to be drawn from the fact that he hid 	the firearm.  It is equally probable that he hid the firearm simply 	because he knew that he had stolen it and because he knew it was a 	crime to possess it.

[7]	The second appellant contends that the regional magistrate erred in 	accepting the evidence of Karabu Bambiza and rejecting the second 	appellant’s evidence that he was not in possession of the firearm and 	did not fire the fatal shot.

[8]	Both appellants contend that the sentences are excessive.

[9]	It will be convenient to consider the second appellant’s appeal first.  If 	his appeal succeeds the conviction of the first appellant must be 	reconsidered.  Clearly the second appellant cannot be guilty as 	accessory after the fact – see S v Gani 1957 (2) SA 212 (A) at 220A;  	S v Jonathan 1987 (1) SA 633 (A) at 643A.

[10]	The evidence of the state witnesses, Andreas Nelani, Phumzile Nelani, 	Zindi Mnisi and Constable Tshepo Phutuma was not challenged by 	any of the accused and correctly was accepted by the regional court.  	However, none of these witnesses testified as to who fired the shot 	which killed the deceased.  The quality of the other evidence as to what 	happened after the two groups left the tavern was poor.  The witnesses 	contradicted each other and in some respects their evidence was 	improbable and unreliable.  The regional magistrate correctly attached 	no weight to Bafana Seboko’s evidence.  Seboko attempted to create 	the impression that he did not know the appellants and had not seen 	them on the night of 3 September 2005.  In this regard he was most 	unimpressive.  The other witnesses placed him on the scene playing 	an active role in the altercation with the appellants.  Notwithstanding 	the shortcomings in their evidence, the regional magistrate found that 	Karabu Bambiza and Smangaliso Zungu’s evidence was logical and 	coherent and could be relied upon and that they could be believed.  	Karabu Bambiza was the only witness to the murder and the regional 	magistrate found that her evidence was satisfactory in all material 	respects.  The regional magistrate found that the two appellants who 	each blamed each other were not credible and their evidence should 	be rejected where it was contradicted by the state’s evidence.  	Accordingly, relying on Bambiza’s evidence, he found that the first 	appellant fired the first two shots (which did not hit anybody) whereafter 	the second appellant took the firearm from the first appellant and fired 	the fatal shot.  

[11]	According to Karabu Bambiza when she and her friends left the tavern, 	Zindi sat down and waited.  When the appellants left the tavern the 	second appellant pulled Zindi’s hair and 	the deceased remonstrated 	with him and this started the argument.  	Zindi and Zakhele then left 	and the argument continued until suddenly the second appellant said to 	a bystander called Bongani, go and fetch the firearm.  Scarcely five 	minutes later Bongani returned with the 	firearm and the first appellant 	took it from him.  The first appellant then fired a shot between Bambiza 	and Zungu’s legs and Zungu ran away.  	The first appellant then fired a 	second shot, this time into the air.  The second appellant grabbed the 	firearm from the first appellant and said 	to the deceased that they 	should stop arguing.  The second appellant then walked away.  After 	he had taken about three steps he suddenly turned around and fired a 	shot in the direction of the deceased.  The two appellants ran away 	leaving the deceased lying on the ground, his face bloodied.  The 	police arrived on the scene a few minutes later.

[12]	Zungu testified that he was with the deceased, Zakhele, Bafana, 	Bambiza and Zindi in the tavern.  They decided to leave and the 	appellants followed with the third accused.  When they got outside 	Zindi sat down.  The second appellant asked her why she was leaving 	without telling him.  Bafana then intervened and they started arguing.  	Bafana said something about shooting each other.  Bafana and the first 	appellant exchanged words.  Zungu then grappled with the first 	appellant and they wrestled until the first appellant freed himself.  The 	first appellant produced a firearm and fired two shots in their direction.  	Zungu ran away leaving the deceased, Karabu Bambiza and Bafana.  	He does not know where the third accused was.  Five minutes later he 	heard a third shot.  He does not know who fired that shot.  Zungu did 	not know where the first appellant produced the firearm from.  He just 	saw the first appellant had a firearm and that he fired the two shots.  	He says that Karabu claims that she stayed at the scene but they all 	ran away.

[13]	The first appellant testified that a fight started.  He does not know why.  	But he saw the second appellant take out a firearm and fire one shot at 	the deceased.  He produced the firearm from his midriff and he fired 	only one shot.  He, the first appellant, then took the firearm from the 	second appellant and they walked off.  The second appellant came to 	sleep at his house.

[14]	The second appellant testified that he was at the tavern with the first 	appellant and the third accused.  The first appellant said they must 	leave.  The first appellant went ahead and when they came out of the 	tavern they found that the first appellant was having trouble with the 	other people who testified.  The first appellant produced a firearm and 	fired three shots.  He did not see which shots struck the deceased.  	After the first appellant fired these shots the two appellants walked on 	and met up with the third accused.  They then each went to their 	respective homes.  At no stage was he, the second appellant, in 	possession of a firearm.   The second appellant testified that Karabu 	visited him in the Nigel prison when his girlfriend came to visit him.  	Karabu asked him to pay her R2 000 so that she could tell the truth 	about who fired the shots.  He could not or would not pay her.  She 	then said that in that case she would tell the court he fired the shot and 	she would involve his cousin, the third accused.

[15]	The regional magistrate took into account the fact that with the 	exception of Karabu Bambiza the witnesses had been drinking at the 	tavern for an extended period and that the incident took place as they 	left the tavern in the early hours of the morning.  In addition it is clear 	that each appellant had a motive to misrepresent the facts as to who 	fired the fatal shot.  The question is whether there is any credible and 	reliable evidence to show that either appellant was guilty of murder.  

[16]	The regional magistrate was impressed by the evidence of Bambiza 	principally because she testified in accordance with the statement she 	made on the night of the incident.  The regional magistrate pointed out 	that she had not been cross-examined on the discrepancies between 	her evidence and that statement.  However he did not refer to the one 	significant discrepancy or to the contradictions between her evidence 	and that of Zungu or the improbabilities in her version.  All these 	matters indicate that Bambiza was neither reliable nor credible.

[17]	Bambiza testified that the second appellant told Bongani to go and 	fetch the firearm whereas in her statement she said it was the first 	appellant who gave the instruction.  This change implicates the second 	appellant immediately and this occurred after the prison visit when, 	according to the second appellant, she asked him for money so that 	she would tell the truth and when he refused she said she would 	involve him and the third accused.  It is not in dispute that she did 	implicate the third accused who was found not guilty on all charges 	because there was no evidence against him.  As argued by the second 	appellant’s counsel the question must be asked why she visited the 	second appellant and had a conversation with him.  There is no 	satisfactory answer to this question.

[18]	Bambiza was contradicted by every other witness on the issue of 	whether an instruction was given to Bongani to go and fetch the 	firearm.  It is inherently improbable that the second appellant would 	have done so.  All the evidence shows that the first appellant stole the 	firearm and was the only person who knew that he had it available.  For 	the same reason it is also inherently improbable that Bongani would 	know what firearm the second appellant was talking about and where 	to find it – without asking any questions.  It is also inherently 	improbable that the other witnesses hearing the instruction would 	remain on the scene.  In the circumstances the probabilities point to the 	first appellant being in possession of the firearm at the scene and 	producing it in the heat of the argument.  It was also striking that Zungu 	did not believe that Bambiza remained at the scene and that when the 	police arrived she did not immediately inform them who had shot the 	deceased.

[19]	The regional magistrate had difficulty in explaining why the second 	appellant’s version was not reasonably possibly true.  In argument the 	Director of Public Prosecutions’ representative conceded that he could 	not support the convictions.  The second appellant’s appeal must 	therefore succeed.

[20]	The remaining question is whether the evidence proved beyond 	reasonable doubt that the first appellant was guilty of the murder as the 	perpetrator.  The regional magistrate clearly did not think so and found 	him guilty as an accessory after the fact.  The only way in which this 	court could find him guilty would be by inference which can only be 	drawn from facts that have been objectively proved including the fact 	that the first appellant is a mendacious witness.  While I have no doubt 	that he is I do not think that this court has enough reliable objectively 	established evidence to safely infer that he fired the shot that killed the 	deceased.  At the very least Bambiza’s evidence creates a doubt even 	if she is not a credible and reliable witness.  The first appellant’s appeal 	must therefore succeed.

	Order

[21]	I	The first appellant’s appeal against his conviction of murder is 		upheld and the conviction and sentence are set aside;

	II	The second appellant’s appeal against his convictions of 			murder, a contravention of section 3 of Act 60 of 2000 and a 			contravention of section 90 of Act 60 of 2000 is upheld and the 		convictions and sentences are set aside.

_______________________
  	          	 B.R. SOUTHWOOD
JUDGE OF THE HIGH COURT

I agree

_______________________
       K. MAKHAFOLA
ACTING JUDGE OF THE HIGH COURT

CASE NO:  A245/07 

HEARD ON:  21 April 2008

FOR THE FIRST APPELLANT:  ADV. G.S. MARITZ

INSTRUCTED BY:  Legal Aid Board

FOR THE SECOND APPELLANT:  MR. D.H. MOSTERT  

INSTRUCTED BY:  Legal Aid Board   

FOR THE RESPONDENT:  ADV. L. PIENAAR

INSTRUCTED BY:  The Director of Public Prosecutions

DATE OF JUDGMENT:  25 April 2008